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less free than Judge Otis to read another "necessarily implied exception" into the allegedly exclusive word "sole," for such a reading does not turn on the demands of remorseless logic but on practical considerations to which others may attach more weight than did Judge Otis.

B. Expressio Unius, Exclusio Est Alterius

A second "exclusive" argument drawn from the face of the Constitution reflects the maxim expressio unius, exclusio est alterius, and was given its most noted. formulation by Hamilton in Federalist No. 79 :

The precautions for their [judges'] responsibility, are comprised in the article respecting impeachments . . . . This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our constitution in respect to our own judges. 64

That view has recently been espoused by Justices Black and Douglas in notable dissents. To one for the first time encounters the argument that the express provision for impeachment excludes all other means of removal, it comes as a surprise that a canon of construction should be exalted to an impassable Constitutional bar. Such canons, the Supreme Court has repeatedly indicated, merely express rules (and not "inescapable" rules) of construction, not of law.67 "Nothing," said a great judge, Learned Hand, "is so likely to lead us astray as an abject reliance upon canons of any sort; so much the whole history of verbal interpretation teaches, if it teaches anything."68

Indeed Hamilton himself refused to regard the maxim as conclusive where its. application "would be unnatural and unreasonable":

Is it natural to suppose that a command to do one thing, is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain, that an injuction of the trial by jury in certain cases [criminal] is an interdiction of it in others."9

In this he was echoed by the Ratification Conventions, where a vigorous campaign was waged for an express provision for jury trial in civil cases on the ground that otherwise it was likely to be barred by the express provision for jury trial in criminal cases. The doubters were reassured by Marshall, Pendleton, Edmund Randolph, C.C. Pinckney and James Wilson.70 Wilson stated in Pennsylvania, "It is very true that trial by jury is not mentioned in civil cases. . . it is very improper to infer from hence that it was not meant to exist under this government."" Manifestly exclusio unius was no fetish for the Founders. And even with the "necessary independency" of the judiciary in mind, Hamilton made yet another breach in the maxim: insanity of judges, he said, "without any formal or express provision, may be safely pronounced to be a virtual disqualification,' and presumably therefore, should justify removal. Thus he himself read an exception into the provision for impeachment, if that be the "only provision" for removal.

1172

That practical considerations weighed more heavily with the Founders than an interpretive canon was immediately demonstrated by the First Congress which rejected the Hamiltonian "only provision" argument as an alleged bar to Presidential removal of executive officers. "Show me," said Smith in the House, "'where it is said that the President shall remove from office . . . as the Constitution has not given the President the power of removability, it meant he

THE FEDERALIST No. 79, supra note 16, at 513-14.

"Chandler II, 398 U.S. at 136 (1970), Douglas, J., dissenting; Black, J., dissenting, id. at 141-42. Black and Douglas ally it to a theory of "absolute independence," of which more anon.

United States v. Barnes, 222 U.S. 513, 519 (1912); Jarecki v. G.D. Scarle & Co., 367 U.S. 303, 307 (1961).

Van Vranken v. Helvering, 115 F.2d 709, 711 (2d Cir. 1940); cf. United States v. Universal C.I.T. Credi Corp., 344 U.S. 218, 221 (1952): rules of construction " do not solve the special difficulties in construing a part ticular statute."

THE FEDERALIST No. 83, supra note 16, at 540. As Elias Boudinot said in the First Congress: "it is nowhere said that officers shall never be removed but by impeachment; but it says they shall be removed on impeachment." 1 ANNALS OF CONG., supra note 2, at 468.

Pendleton, 3 J. ELLIOT, supra note 15, at 546; Randolph, id. at 573; Pinckney. 4 J. ELLIOT 307; cf. Marshall, id. at 561.

71 2J. ELLIOT, supra note 15, at 488.

72 THE FEDERALIST No. 79, supra note 16, at 514.

should not have that power,' 1973 a persuasive argument under the widely held doctrine of enumberated powers.74 And he continued, "this inference is supported by that clause. which provides that all civil officers . . . shall be removed from office on impeachment . .”75 Although this view was strenuously maintained by a number of other Members, including Gerry, himself a Framer, 76 it was overcome by the argument of Madison and others that such a restrictive reading would be destructive of good government,77 that, as Sedgwick said, impeachment was a "tardy, tedious, desultory road" for the accomplishment of needed removals.78

The Madison view prevailed,70 ostensibly on the theory that the power of removal was a necessary correlative of the power of appointment, though many argued that the Senate therefore should participate in removals as in appointments.80 Impeachment, however, Madison explained, had a special purpose; it was designed to reach a bad officer sheltered by the President, who "could be removed even against the will of the President; so that the declaration in the Constitution was intended as a supplemental security for the good behavior of the public officers."81 This point was made again and again. Impeachment, said Boudinot, enables the House "to pull down an improper officer, although he should be supported by all the power of the Executive."82 "Favoritism," said Baldwin, also a Framer, could not protect a man from the power of the House "in despite of the President" to "drag him from his place."83 The point bears emphasis because it reveals first, that the Founders had learned from English history of the need for power to remove evil favorites, Presidential no less than royal, and that impeachment was in essence not an exclusive medium of removal but a breach in the separation of powers for the purpose of "supplemental security," "an exception to a principle."84

The implication of removal power drawn from the Presidential power of appointment seems to me a weaker argument for breaching exclusivity than that which associates "good behavior" tenure with its traditional termination by scire facias. Despite the emphasis on the relation between the power of appointment and that of removal, the motive power, in my opinion, was furnished by the exigencies of government. It simply made no sense to freeze hundreds of "civil officers" into what in effect would become life tenure, terminable only by the arduous impeachment procedure. 85 There were, however, other remarks in the First Congress noting the special position of judges; but before examining the bearing of those remarks on the intention of the Founders, it will serve chronological coherence to examine that intention first.

C. The Intention of the Framers

A search for the intention of the Framers may seem gratuitous in light of Professor Kurland's statement that "it has been made pellucidly clear by Martha Ziskind that the intention was to make impeachment the sole means of removal of federal judicial officers."'86 But in my opinion, her demonstration does not

731 ANNALS OF CONG., supra note 2, at 457. Compare Justice Black's nothing in the Constitution "gives any indication that any judge was ever to be removed from office except" by impeachment. Chandler II, 398 U.S. at 142 (1970).

....

74 The debaters were reminded of the rule by Lee: "This Government is invested with powers for enumerated purposes only, and cannot exercise any others whatever." 1 ANNALS OF CONG., supra note 2, at 524. For other citations see R. BERGER, CONGRESS V. THE SUPREME COURT 13-14, 377 n.52 (1969). 75 1 ANNALS OF CONG., supra note 2, at 457.

76 Huntington, id. at 459; Gerry, id. at 473, 536.

77 Madison, id. at 496. Sylvester said the doctrine was "big with mischief, and likely to drive the whole Government into confusion." Id. at 562. Hartley said the exclusivist argument "would be attended with very inconvenient and mischievous circumstances." Id. at 480.

78 Id. at 460; see also Vining's remark, quoted supra note 2. For similar remarks by Madison, Boudinot, Hartley and Sylvester, id. at 497, 375, 480, 562.

79 As Chief Justice Taft said, "Hamilton changed his view of this matter," quoting, ""This mode of construing the Constitution has indeed been recognized by Congress in formal acts upon full consideration and debate; of which the power of removal from office is an important instance,' "citing 7 J.C. HAMILTON, WORKS OF HAMILTON 80-81, in Myers v. United States, 272 U.S. 52, 137, 139 (1926).

80 Bland, 1 ANNALS OF CONG., supra note 2, at 374; Livermore, id. at 381, 478; White, id. at 456, 467; Page, id. at 491. Smith quoted Hamilton's statement in Federalist No. 77 that "The consent of [the Senate] would be necessary to displace as well as appoint," id. at 456, but here too the First Congress rejected Hamilton's interpretation.

81 Id. at 372 (emphasis added); similiter Vining, id. at 373; Bland, id. at 374.

82 Id. at 468; similiter Livemore, id. at 478.

83 Id. at 558; Lawrence, id. at 482.

84 Boundinot, id. at 527.

85 Boudinot rejected "perpetuity in office," id. at 469. Sylvester said, if impeachment is "the only way of removing officers, they have all of them an inheritance in cffice." id. at 562; and see Benson, id. at 373, 86 Kurland, supra note 8, at 668.

stand up. Referring to Shartel's view that the Constitution does not bar judicial removal of judges by scire facias, she put her case in a nutshell:

The clearest rejection of Shartel's argument lies in the fact that no colonial or state constitution provided for such a use for the scire facias, `nor was a proposal made to include it during the Constitutional Convention. Even in the unreformed common law, there was a distinction between precedents and fossils.87

Erskine, Holdsworth and others regarded scire facias as vital rather than fossilized; 88 and, as we shall see, at least two of the states she cites provided for removal by courts for misbehavior, which was the purpose of the scire facias proceeding:

The reason why "no colonial constitution" provided for removal of judges by scire facias can be simply stated: almost without exception judicial appointments in the Colonies were made at the King s pleasure, terminable at his will.89 On one occasion in New York, a good behavior appointment was made in violation of instructions, and when the advice of the Attorney General and Solicitor General in England was sought as to the manner of dismissal, they regretfully pointed out that a forfeiture proceeding (by scire facias) would be required 90-a proceeding, we may be sure, that would be brought in the name of the King, not of the Colony. Indeed, one of the grievances recited in the Declaration of Independence was that the King "made judges dependent on his Will alone for the tenure of their offices,' recognition of Colonial powerlessness to interfere with their tenure. This branch of the Ziskind argument, it may be added, could with equal logic be made against the power to impeach, for impeachment of judges was likewise not a feature of Colonial practice.

In a lively, oft cited passage, John Adams painted the astonishment of his colleagues in 1774 when he suggested impeachment of judges who accepted Lieutenant Governor Hutchinson's substitution of royal salaries for the existing payment by legislative appropriations. Adams admitted that the thing was "without precedent .. in this Province" but said that there were precedents in England, pointing to the State Trials on his shelves.91 In later years he was to claim that his was the only copy of the set in Boston, indeed, "that there was not another copy of those works in the United States." 92 It was not, however, ignorance of impeachments 93 but rather lack of power to impeach that accounts for the nonuse and the absence of Colonial precedents. Given the "English

Ziskind, supra note 26, at 138.

8 See pp. 1480-82, and note 38 supra.

S. MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 135, 178 (1965); B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 105-06 (1967); G. WOOD, supra note 60, at 106. The English Board of Trade explained that an independent colonial judiciary would be "subversive of that Policy by which alone Colonies can be kept in a just dependence upon the Government of the Mother Country.' Quoted in Klein, Prelude to Revolution in New York: Jury Trials & Judicial Tenure, 17 WM. & MARY Q. (Ser.3) 439, 448 (1960). The "King in Council, disturbed with the growing colonial movement for judicial independence, had ordered the issuance of new instructions absolutely forbidding governors to grant judicial offices during good behavior . . . ." Id. at 452. I am indebted for this and other Colonial citations to Professor Stanley N. Katz.

The background of the instructions appears in 9 ARCHIVES OF THE STATE OF NEW JERSEY (First Series 1885). Governors were cautioned that judicial "Commissions are granted during Pleasure only, agreeable to what has been the ancient Practice and usage in our said Colonies . . . ." Id. at 321-26, 329-30. See also p. 1481 supra. Cf. Ziskind, supra note 26, at 138.

86 P. 1481 supra. In 1760, a similar "good behavior" appointment was made in New Jersey, when R.H. Morris was made Chief Justice. Later the Attorney General of England declared the appointment invalid because the Governor was limited to "at pleasure" appointments. 9 ARCHIVES, supra note 89, at 216-09, 216, 349-51.380-81 (1885).

42J. ADAMS, THE WORKS OF JOHN ADAMS (C.F. Adams ed. 1850) 329-30; Johnson, "William Cushing,' in 1 JUSTICES OF THE UNITED STATES SUPREME COURT 1789-1969, at 57, 58 (L. Friedman & S. Israel ed. 1969). 92 10 J. ADAMS, supra note 91, at 239.

93 Adams overlooked that Josiah Quincy, Jr. had published a letter in the Boston Gazette January 4, 1768 wherein he directed attention to the scope of impeachment in England and to the impeachments of leading figures across the centuries, drawing on Selden's Jud. Parl., Rushworth's Collections, and the Lord's Journal. QUINCY'S MASSACHUSETTS REPORTS 1761-1772 (1865) at 580-84. Several Colonial libraries in New York had various collections of the State Trials, P. HAMLIN, LEGAL EDUCATION IN COLONIAL NEW YORK 188, 193, 196 (1939); and RUSHWORTH'S HISTORICAL COLLECTIONS (1721), which reported a number of noted impeachments-including that of the Earl of Stratford, reported in 775 folio pages of volume 8-were liberally sprinkled throughout the libraries of the Thirteen Colonies. For citations see H. COLBOURN, supra note 3, Index "Rushworth.

In 1734 William Smith rendered an opinion to the New York Assembly in which he quoted Article 3 of the Clarendon impeachment. J. SMITH, CASES AND MATERIALS ON DEVELOPMENT OF LEGAL INSTITUTIONS 440, 442 (1965). State Trials were referred to in the 1736 Zenger proceedings. J. ALEXANDER, A BRIEF NARRATIVE OF THE CASE AND TRIAL OF JOHN PETER ZENGER 28, 46, 49, 72 (S.N. Katz ed. 1963). References, Professor Katz tells us, were to the second edition of 1730, the Emlyn edition, id. at 215. In 1737, a letter to the Pennsylvania Gazette analyzed the case of the Seven Bishops, reported in the State Trials, id. at 193.

point of view that the judges needed protection from the caprice and parsimony of colonial assemblies," " it is hardly to be presumed that the Crown would countenance impeachment of a royal appointee.

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Appreciation of the lack of power to impeach royal appointees bobs up in the Colonial records. So, the South Carolina House rejected a suggestion by the Council to impeach Chief Justice Nicholas Trott, stating that the "governor and council... were not a House of Lords nor a proper jurisdiction before whom any impeachment will lie." 95 Something of the sort also emerged in Pennsylvania in 1706 when the unicameral assembly brought impeachment charges against the agent of the Proprietor and the Governor refused to try him, insisting that the parliament of England had a 'transcendent power and original jursidiction in itself' whereas the assembly had no power except as it was specifically granted in the charter." 96 Adams harbored no illusion as to the efficacy of an impeachment by the assembly; he freely acknowledged that there was no precedent in the province, that the Council would refuse to act on the impeachment, but urged nevertheless that the impeachment be set afoot to reap the political benefit of the consequences. Events confirmed his judgement. The House impeached, the "Council would do nothing,' and he recorded that the "royal government was from that moment laid prostrate in dust." How could an impeachment be effective when, as Adams himself recognized, the Governor was "possessed of an absolute negative on all acts of the legislature,' ,"97 and when disallowance by the Privy Council loomed ahead? 98 Against this background it is little wonder that the several State constitutions went off in different directions.

As Mrs. Ziskind notes, the State constitutions drafted after 1776 exhibited "no uniform pattern"; 99 but they can be categorized.

(1) Removal by Address 100 without regard to misbehavior: Maryland, Massachusetts, New Hampshire and South Carolina. A variant was supplied by the Georgia provision that every officer shall be lible to be called to account by the house of the assembly. Maryland also provided for removal for misbehavior on conviction in a court of law, which may allude either to a criminal prosecution for misconduct or to a civil removal proceeding.

(2) Impeachment: Delaware, New Jersey, New York, Pennsylvania, Vermont and Virginia. Alternatives were provided by Delaware, conviction of misbehavior at common law; New Jersey and Pennsylvania, removal for maladministration; Vermont, removal of lesser judges for maladministration. In Virginia the impeached judges were to be tried by the Court of Appeals.

(3) North Carolina provided for prosecution on the impeachment of the General Assembly or presentment for maladministration, i.e., a judicial criminal proceeding. 101”

This distribution hardly supports Mrs. Ziskind's statement that "In all but a few states, judges held office during good behavior and could be removed only by impeachment." 102 The States were pretty evenly divided between impeach

94 S. MORISON, supra note 89, at 179. When the Pennsylvania Assembly sought to punish one Moore for an indignity to a prior Assembly, a matter of its own privilege, they were advised in 1759 that the English Attorney General Pratt and Solicitor General Yorke considered that "this unusual power could not be tolerated in the inferior assemblies in the Colonies.' M. CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES 220 n.34 (1943); cf. note 89 supra.

95 Quoted in M. CLARKE, supra note 94, at 42. John Adams, however, recorded in his 1774 diary that when asked "whence can we pretend to derive such a power?" he replied, "From our charter, which gives us in words as express, as clear, and as strong as the language affords all the rights and privileges of Englishmen ." 2 J. ADAMS, supra note 91, at 329. Only eyes aglow with revolutionary fervor could discern in a Crown charter a grant of power to remove Crown appointees.

96 M. CLARKE, supra note 94, at 40-41. In January 1736, Lewis Morris wrote to James Alexander relative to Alexander's disbarment by Chief Justice de Lancey in the Zenger trial: "The thing is ridiculous, but your misfortune is it is difficult to attack a court otherwise than by Impeachment, or Act of Assembly; which, as we stand in New York, is hardly to be come at." Fol. 2, Rutherford ms. N. Y. Hist. Soc. 171. 97 2 J. ADAMS, supra note 91, at 330, 331; 10 Adams, supra note 91, at 236-38, 241. So far as the Convention Record reveals, the Colonial experience ultimately did not exercise as much influence as the English practice. When removal by Address was proposed, references were made, not to the four early State constitutions which provided for such removal, p. 1495 infra, but to the English Act of Settlement. 2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION 428-29 (revised ed. 1937). So too, when Vice President Jefferson was preparing his Manual of Parliamentary Practice for the Senate some ten years later, "he went back to the [English] prototype, not contenting himself with such modifications of the historic practices as had been made in particular American legislative bodies. . . . .." 3 D. MALONE JEFFERSON AND HIS TIME 454 (1962). 98. S. MORISON, supra note 89, at 135.

99 Ziskind, supra note 26, at 139.

100 In England an Address was a formal request made by both Houses of Parliament to the King, asking him to perform some act, By the Act of Settlement (1700), English judges were made removable by the Crown only upon an Address by both Houses. P. 1500 infra.

101 The various provisions are digested in Ziskind, supra note 26 at 139–147.

102 Id. at 152.

ment and removal by Address: four States provided for Address, and a fifth, Georgia, provided for a variant; six states provided for impeachment, and four of these supplied an alternative, removal for misbehavior or maladministration, suggesting that impeachment may have been reserved for special cases.103 The Delaware and Maryland provisions for court removal upon misbehavior preclude an inference that there was total ignorance of judicial forfeiture. If the writ of scire facias was not expressly mentioned, it is not the function of a Constitution to detail the relevant writs.104

Why then was no similar alternative incorporated in the Constitution? For Mrs. Ziskind the fact that no "proposal [was] made to include" scire facias apparently constitutes a conclusive constitutional bar. The test rather is that of Chief Justice Marshall who required a showing that had "this particular case" been suggested-removal by scire facias to effectuate "good behavior”—the Framers would have rejected it.105 And if "misbehavior" does not in fact constitute impeachable misconduct, and if we cannot attribute to the Framers an intention to maintain judges in office notwithstanding their "misbehavior," the means are available, under orthodox rules of construction, to effectuate the manifest purpose of "during good behavior." 108

Viewed from the vantage ground of the Framers, who were hard pressed to complete their extraordinary labors, the various State remedial provisions must have seemed a tangled thicket.107 Then too, removal of judges was of very minor concern to the Framers. We have become so wrapped up in the impeachment of judges that the place of their impeachment in the minds of the Framers has become distorted. The Framers were almost entirely troubled by transgressions of the President and his cabinet; the misbehavior of judges was all but unmentioned. The Framers began with and long debated the impeachment of the President; at first the judges were to constitute the impeachment tribunal; 108 transferral of the function was vigorously debated and was only accomplished at the last minute, September 8th.100 Late in the day, on August 20th, the Committee of Five was directed to report "a mode of trying the supreme Judges in cases of impeachment," and it reported back on August 22d that "The Judges of the Supreme Court shall be triable by the Senate. . . ." 110 Although provision for the establishment of inferior court judges had been made,111 no mention was made of their impeachment, suggesting that no consideration had been given to the impeachment of lesser judges. When they were at last caught up, it was as an unarticulated afterthought, tucked away in a last minute insertion, "civil officers," which itself was added without comment to the Executive Department Article II provision for impeachment of the President.112 Remarking on the absence of a provision for removal in the Judiciary Article, Mrs. Ziskind states, "There is a legitimate textual question whether judges were included in the impeachment provisions of Article II." 113 This "legitimate textual question" plus the fact that no word was said about the impeachment of lesser judges cautions against attribution to the Framers of an undebatable intention to bar removal of judges save by impeachment.

The almost absent-minded last minute inclusion of judges in "civil officers" undercuts the assumption that the Framers had conceived removal of judges by impeachment in special terms because of the "good behavior" provision. Even more plainly the Records of the Convention preclude the notion that "The con

103 The Pennsylvania constitution provided for impeachment of an officer "either when in office, or after removal for maladministration." Ziskind, id. at 141 (emphasis added), as did Vermont. 2 B. POORE, FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS 1863 (1877).

104 L. LEVY, ORIGINS OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION 430 (1968): the constitution makers "did not regard themselves as framers of detailed codes. To them the statement of a bare principle was sufficient, and they were content to put it spaciously, if somewhat ambiguously, in order to allow for its expansion as the need might arise."

105 P. 1483 supra.

106 Pp. 1484-86 supra.

107 See Madison, supra note 60.

108 President: 1 M. FABRAND, supra note 97, at 78, 85, 91, 230; 2 id. at 61, 64-69, 116, 172, 185, 186, 495, 499. Judges: 1 id. at 223-24, 231, 244; 2 id. at 186.

109 2 id. at 42, 423, 500, 522-23, 551.

110 2 id. at 337, 367.

11 June 11th, 1 id. at 124-25.

112 September 8th, 2 id. at 552.

113 Ziskind, supra note 26, at 151. The "question" is pointed up by the Virginia Plan proposal for inclusion of "impeachments of any national Officer" in the jurisdiction of the national Judiciary," while the Paterson-New Jersey Plan proposed inclusion of "federal officers," 1 M. FARRAND, supra note 97, at 22, 244. See also 2 id. at 186. Presumably such jurisdiction would not include trial of themselves, for impeachment of Justices (not inferior judges) was mooted much later. P. 1496 supra.

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