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point of view that the judges needed protection from the caprice and parsimony, of colonial assemblies," 94 it is hardly to be presumed that the Crown would countenance impeachment of a royal appointee.
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 impeachment 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
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.
87 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). 198 S. MORISON, 8u pra note 89, at 135. 9. 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.
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.109 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 constitutional antecedent of the phrase 'good behaviour' is the impeachment clause. Presumably 'good behaviour' was the term chosen because by that wording the tenure of Article III judges was wedded to the strictures of the impeachment clause." 114 Judicial tenure “during good behavior” appeared at the very outset of the Convention, May 29th, in the Virginia Plan submitted by Randolph; and it was likewise contained in the substitute New Jersey Plan offered two weeks later by Patterson, 115 long before the request was made for a tribunal to try impeachments of Justices. In truth, the paramount concern with removal of the President had all but crowded out thought of removal of Justices until the tardy reference to a Committee of the tribunal for their trial. Instead, therefore, of a considered “wedding” of impeachment to judicial "good behavior,” the records reflect a hurried cleanup job in the course of which, hopefully, judges and justices were caught up and lumped with other civil officers” who had no 'good behavior” tenure. One man, Rufus King, did attempt to link "good behavior” with impeachability:
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. 109 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, 264; 2 id. at 186. 109 2 id. at 42, 423, 500, 522-23, 551. 110 2 id. at 337, 367. 1.1 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.
the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? . ; ; He ought not to be impeachable unless he hold his office
during good behavior. ...11 King's attempt to make "good behavior” tenure the test of impeachability did not meet with favor, and the Convention provided for impeachment of “President, Vice President and other Civil Officers," none of whom had such tenure. Thus the Convention itself rejected the inference that “good behaviour is.necessarily wedded to impeachability. And in the upshot the "forum” was not to "try misbehavior” but “high crimes and misdemeanors,” a quite different standard, as will appear.
Nevertheless the notion that there was a special relation between "good behavior” tenure and impeachment turned up in the First Congress "removal” debate. Although insistence that impeachment was the sole means for the removal of “civil officers” in the Executive branch was overridden, several speakers distinguished the case for removal of judges on the ground that they had tenure during good behavior.” 117 Viewed against the above historical background, and the proof yet to come that “high crimes and misdemeanors” was not meant to comprehend infractions of “good behavior,” such remarks were simply mistaken and entitled to no more respect than would be statements that“bribery'' comprehends payments to judges by those who had no pending cases. Since the Framers demonstrably resorted to common law terms of accepted meaning with a limiting purpose in mind, 118 something more than bare assertions in the halls of Congress should be required to alter that meaning,
Moreover these were tangential remarks in a debate devoted to the President's power to remove executive officers. At issue was whether the President could remove those appointed by him, and the operative considerations were laid bare by Roger Sherman, himself a Framer:
I consider it an established principle, that the power which appoints can also remove, unless there are express exceptions made. Now the power which appoints the judges cannot displace them, because there
is a constitutional restriction [“good behavior”] in their favor.119 Stone chimed in that “good behavior” limited “the exercise of the power which appoints. It is thus in the case of judges.” 120 That was the view of Baldwin, like
114 Kramer & Barron, supra note 10, at 460-61. They state also that “the judges were deliberately tied to the impeachment clause” because "They alone are to serve 'during good Behaviour.'” Id. at 460.
116 1 M. FARRAND, 8upra note 97, at 21, 244.
118 2 id. at 66-67. In 1802 Gouverneur Morris said, “Misbehaviour is not a term known in our law; the idea is expressed by the word misdemeanor; which word is in the clause respecting impeachments. Taking, therefore, the two together . the Constitution says: "The judges shall hold their offices so long as they demean themselves well; but if they shall misdemean, if they shall, on impeachment, be convicted of misdemeanor, they shall be removed."'" 11 ANNALS OF CONG. 90 (1802), quoted in Kurland, supra note 8, at 676. Morris was mistaken in stating that “Misbehavior is not a term known to our law''; as misbehavior was expressly made triable in the early Delaware and Maryland constitutions, p. 1495 supra, and the Framers opted for “high crimes and misdemeanors" instead because it was a phrase of limited meaning. P. 1512 infra. For the relation of “misdemean” and “high misdemeanor" see pp. 1509–10 infra.
117 Thatcher, 1 ANNALS OF CONG., supra note 2, at 376: White, id. at 465–66.
wise a Framer: “The judges are appointed by the President but they are only removable by impeachment. The President has no agency in the removal.” 121 The governing principle was underlined by Boudinot who, anticipating Shartel, stated that impeachment was one of the exceptions to a principle, to the separation of powers.l 122 But for that exception Congress also was blocked from removal of Executive officers and of judges as well.123
The First Congress itself furnished us with the best of reasons for not attaching overmuch weight to the several utterances by its Members: when it came face to face with a problem affecting judges, its action repudiated their “exclusive" remarks. In the Act of 1790 the First Congress provided that upon conviction in court for bribery a judge shall be “forever disqualified to hold any office.” 124 Since the impeachment clause provides for disqualification upon impeachment and conviction, the Act is unconstitutional if the clause indeed provides the "exclusive" method of disqualification. The First Congress will scarcely be charged with misconstruing the Constitution; hence the 1790 statute must be regarded as a construction that the impeachment clause does not constitute the "only” means for the disqualification of judges. As with "disqualification” so with "removal,” for the two stand on a par in the impeachment provision. 125 And the statute also illustrates the familiar proposition that broad dicta (here by only a few individuals) respecting a situation not presented for determination cannot be conclusive when the situation is actually presented.126 What the First Congress did when it had to deal with “disqualification” of judges thus speaks against reliance upon some earlier utterances by a few of its Members when the removal of judges was not involved.
In evaluating a nonexclusive interpretation of the impeachment provisions we can profit from the parallel English experience. The Act of Settlement (1700) provided for judicial tenure during "good behavior," but judges could be removed by the Crown upon an Address by both Houses of Parliament.127 The decided preponderance of authority, Lord Chancellor Erskine, Holdsworth and others, consider that this provision did not exclude other means of removal, i.e., by impeachment, scire facias or criminal conviction.128 That Act was designed to curb royal interference with judges, not to restrict Parliament; 129 and as McIlwain pointed out, jneither the Act of Settlement, which provides that the King "may remove," nor any other Act“forces the king to remove or even gives the houses authority to force him to comply with their request for removal.” 130 It follows that were the Act given “exclusive” effect, and were the King to refuse to remove a corrupt judge upon an Address, Parliament would be powerless to remove him. Since it was precisely this power to remove those whom the King sought to shelter for which Parliament had fought, to give the Act “exclusive” effect would be to erect surrender of a hard won power upon an artificial canon of construction.
121 I d. at 557. 122 I d. at 527: cf. Stone, id. at 564-65. 123 Lawrence; the provision that “the Judges should continue during good behavior ... was to render them independent of the Legislature."I d. at 377. Smith said, “It would be improper that (judges) should depend on this House for the degree of permanency which is essential to secure the integrity of judges." Id. at 508.
14 Act of 1790, ch. 9, $ 21, 1 Stat. 117. 125 Article 1, 83 (7): "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold” any office.
128 When some of Chief Justice Marshall's own remarks in Marbury o. Maduson were later pressed upon him, he said, "It is a maxim not to be disregarded, that general expressions, in every opinion ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of the maxim is obvious. The question actually before the Court is investigated with great care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821). 127 The Act of Settlement, 12 & 13 Will
. 3, c. 2, § 3 (1700), is entitled "An Act for further limitation of the Crown” and provides that "Judges Commissions be made Quamdiu se bene gesserint; ... but upon the Address of both Houses of Parliament, it may be lawful to remove them.” The Address is not conditioned upon misbehavior, and the “but” phrase may be read as "notwithstanding" the commission during good behavior judges may be removed upon Address. The implication of “but” as “notwithstanding' is heightened by i Geo. 3, c. 23 (1760) which insured the continuation of judicial tenure despite the demise of the Crown, "Provided always . that it may be lawful for his Majesty ... to remove any Judge or Judges upon the address of both Houses of Parliament.” A respected authority states that the removal by address "is, in fact, a qualification of, or exception from, the words
creating a tenure during good behavior, and not an incident of legal consequence thereof; the power "may be invoked upon occasions when the misbehavior complained of would not constitute a legal breach of the conditions on which the office is held.” A. TODD, supra note 21, at 193.
129 P. 1482 supra. Edmund Burke stated in the Commons, “it is in our choice by an address to remove an improper judge; by impeachment before the peers to pursue to destruction a corrupt judge. in A. TODD, supra note 21, at 194. Not long after, in 1791, a pamphleteer, supposedly a barrister, Spenser Percival, extolled the advantages of impeachment and saw "no reason for abolishing this mode of trial.”' Quoted in 4 J. HATSELL, PRECEDENTS OF PROCEEDINGS IN THE HOUSE OF COMMONS 69–70 n.8, 253 n.8 (1796). In 1806, Lord Grenville urged that if the Commons “think the charges are matter of high crime . it is their duty to impeach." 7 PARL. DEB. 758 (1806). The "right to impeach (judges) . according to ancient law and usage, is a matter of right to those who may suffer from their corruptions or oppressions. Taafe v. Downs, 3 Moo.P.C. 35, 68n., 13 Eng. Rep. 15, 31 n. (1813). A recent English writer states that “the power to remove after an address is additional to the common law. It is a principle of construction that judicial process is not abolished except by clear words...,” R. JACKSON, THE MACHINERY OF JUSTICE IN ENGLAND 289 n.1 (5th ed. 1967).
129 J. STORY, COMMENTARIES ON THE CONSTITUTION § 1623 (5th ed. 1905), stated that “The object of the act of Parliament was to secure the judges from removal at the mere pleasure of the crown; but not to render them independent of the action of Parliament.” See also McIlwain, supra note 28, at 226.
" Quoted 130 The point was nicely made in Pennsylvania when the House sent up an Address to Governor McKean (formerly Chief Justice) who refused to remove. When a committee urged that the term in the constitution “ 'may remove' meant 'must remove,' he replied that he would have them know that 'may' sometimes meant 'won't.' " W. LOYD, THE EARLY COURTS OF PENNSYLVANIA 147 (1910).
Reason and the great weight of authority seem to me to run counter to an "exclusive” reading of the Act of Settlement. The argument for exclusivity of that Act is in pertinent detail much stronger than can be made under our Constitution. In that Act, the “good behavior” and removal provisions are contained in the very same section, whereas in the Constitution the “good behavior” and impeachment provisions were spatially and temporally separated. “Good behavior” appeared from the outset and was embodied in Article III, while the separate provision for impeachment must be located in the belated insertion of "civil officers” in Article II. No indication is found in the Convention records that the insertion was in any way associated with the earlier provision for "good behavior” tenure. 131 Instead, when we come to examine the relation between “good behavior" and “high crimes and misdemenanors” more closely we shall discover weighty reasons against the attribution of such an intention to the Framers.
Judge Otis, the Framers' rejection of removal by Address was all but conclusive proof that there was an intention to bar other means of removal as well. 132 But special considerations led to rejection of removal by Address. Both in England and in the newly independent States removal by Address was untrammeled; 133 and its adoption would have placed judges at the utter mercy of Congress. Gouverneur Morris justly objected that the Address was "fundamentally wrong" and "arbitrary” because it contemplated removal "without a trial.” 134 The Framers were aware of and condemned the sorry spectacle of legislative chastisement of State judges who had dared to question the constitutionality of legislation.135 To leave the judiciary at the unbridled pleasure of Congress would have defeated the Framers' purpose to curb legislative excesses by judicial review.136 Legislative interference was confined to trial by impeachment, under a standard (“high crimes and misdemeanors") of narrow, technical meaning, and even then a two-thirds vote was required for conviction. Nor would impeachment, said James Wilson, be used to remove judges who had declared statutes unconstitutional,137 Judges who would be at the mercy of "every gust of fashion which might prevail in the two branches, of our Government” could not be trusted to exhibit the fortitude needed to set aside an Act of Congress.138 None of the factors which led the Framers to block legislative retaliation against judges by Address had any applicability to removal of judges by judges. Judges enjoyed a respect withheld from the legis
131 P. 1497 supra.
133 For England, note 127 supra. Section 30 of the Maryland Constitution (1776), provided "Judges shall be removed for misbehavior, on conviction in a court of law, and may be removed by the Governor (without reference to misbehavior), upon the address of the General Assembly ... :"1 B. POORE, şupra note 103, at 819. Chapter III, Article I of the Massachusetts Constitution (1780) provided, “All judicial officers shall hold their offices during good behavior ... Provided, nevertheless, The governor ... may remove them upon the address of both houses of the legislature.” Id. at 968. The New Hampshire provisions (1784) were identical with those of Massachusetts, 2 id. at 1290. Inferably the several “Provided, nevertheless" constituted a gloss upon the English statute. Section XX of the South Carolina Constitution (1776) provided judges were to be commissioned "during good behavior, but shall be removed on the address of the general assembly and legislative council," 2 id. at 1619, following in the footsteps of the Act of Settlement.
134 2 M. FARRAND, supra note 97, at 428. Randolph also opposed the Address “as weakening too much the independence of the Judges," id. at 429: and Rutledge regarded it is an "insuperable objection" that "the supreme Court is to judge between the U.S. and particular States," id. at 428, again going to independence of the Congress.
136 R. BERGER, CONGRESS V. THE SUPREME COURT 117-18, 38-39 (1969). 136 Id. at 13-16, and passim.
137 2 J. ELLIOTT, supra note 15, at 478. This was likewise the view of Gerry, 1 ANNALS OF CONG., supra note 2, at 537. In New Hampshire, the court had declared the "Ten Pound Act" unconstitutional, and although the legislature by a 44 to 14 vote then declared the act constitutional, the representatives overwhelmingly approved a committee report that the judges were not Impeachable for Maladministration as their conduct (was) justified by the constitution” of New Hampshire, 2 W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 969–70 (1953).
138 Wilson, 2 M. FARBAND, supra note 97, at 429: cf. THE FEDERALIST No. 78, supra note 16, at 509.