stitutional 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." 14 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: 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... 116

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. 115 1 M. FARRAND, supra note 97, at 21, 244.

116 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.

118 See p. 1512 infra.

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, separation of powers.122 But for that exception Congress also was blocked from removal of Executive officers and of judges as well.123

to the

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

121 Id. at 557.

122 Id. 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.

124 Act of 1790, ch. 9, § 21, 1 Stat. 117.

125 Article I, § 3 (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 v. 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 1 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.

"Quoted

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.‡, 253 n.§ (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.

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. 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.

For 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,185 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

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).

131 P. 1497 supra.

132 Otis, supra note 27, at 29-30.

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, supra 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.

135 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.

lature, 139 and could be counted on to weigh the misconduct of a judge as dispassionately as that of an ordinary citizen.

D. The Argument for Absolute Independence

To buttress their view that impeachment is the sole avenue for removal of judges, Justices Black and Douglas assert that the solicitude of the Founders for judicial independence was all-encompassing, that it included independence even from judicial control and demanded nothing other than "the admittedly difficult method of impeachment." 140 All the remarks in the several Conventions that bear on judicial independence, so far as I could find, referred to freedom from legislative and executive encroachments.141 No one suggested that judges must be immune from traditional judicial control which, minimally, included Attachments that King's Bench had long issued against lesser judges for misconduct and oppression.142 To the contrary, Justice Wilson, a leading Framer, stated in his 1791 Lectures,

The independency of each power consists in this, that is proceedings should be free from the remotest influence, direct or indirect, of either of the other two powers. But further than this, the independency of each power ought not to extend.143

This was the view of judicial independence taken by Judge St. George Tucker in 1803,144 and it may be discerned in Jefferson's recognition that judges can remove judges.14

145

The emphasis of Justices Black and Douglas upon the exclusivity of impeachment suggests a preference for Congressional over judicial trial, surely a strange preference in a Justice. Congressional trial suffers from serious defects. Fresh illustration of the political partisanship that has characterized impeachment has just been furnished by Congressman Gerald Ford's proposal to impeach Justice Douglas.146 As Macaulay said of the Hastings impeachment:

Whatever confidence may be placed in the decision of the Peers on an appeal arising out of ordinary litigation, it is certain that no man has the least confidence in their impartiality, when a great public functionary, charged with a great state crime, is brought to their bar. They are all politicians. There is hardly one among them whose vote on an

139 See note 155 infra

140 Chandler II, 398 U.S. at 136-41 (1970) Douglas, J., dissenting; Black, J., dissenting, id. at 142. This is also the view of Professor Kurland: "certainly there is no point in tinkering with the independence of federal judges by subjecting their tenure to control of other federal judges appointed by the same defective process. Without their independence, the federal judges will have lost all that separates them from total subordination to the political processes from which they ought to be aloof." Kurland, supra note 8, at 667. As if impeachment has not been shot through with political partisanship! See note 148, and pp. 1504-05 infra. I have treated the matter more extensively in Berger, Festschrift, supra note 9.

141 The materials are collected in R. BERGER, CONGRESS V. THE SUPREME COURT 117-19 (1969). In THE FEDERALIST NO. 78, supra note 16, at 503, Hamilton stated, "The standard of good behaviour" is an "excellent barrier to the encroachments and oppressions of the representative body." See also note 123 supra, and note 144 infra. It was from the State legislatures that threats to the judiciary had come. R. BERGER, supra at 38, 42-43, 117.

142 By virtue of its "general Superintendency over all inferior Courts," King's Bench could punish judges of lesser courts by Attachment for Contempt "for acting unjustly, oppressively, or irregularly," "for any practice contrary to the plain rules of natural Justice . . . as for denying a Defendant a Copy of the Declaration against him. . . or for compelling a Defendant to give exorbitant bail." 2 W. HAWKINS, PLEAS OF THE CROWN Ch. 22, §§ 25-26 at 149-50 (1716); and "putting the Subject to unnecessary Vexation by colour of a judicial Proceeding wholly unwarranted by Law." Id. at § 25. So too, 3 M. BACON, supra note 20, at (N) 744, states, "the Court of Kings Bench, by the Plenitude of its Power, exercises a Superintendency over all inferior Courts, and may grant an Attachment against the Judges of such Courts for oppressive, unjust or irregular Practice, contrary to the obvious Rules of Natural Justice."

1431 J. WILSON, THE WORKS OF JAMES WILSON (R. McCloskey ed. 1967) 299.

"That absolute independence of the judiciary, for which we contend is not, then, incompatible with the strictest responsibility ....but such an independence of the other coordinate branches of the government as seems absolutely necessary to secure them the free exercise of their constitutional functions, without the hope of pleasing or the fear of offending. And as from the natural feebleness of the judiciary it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches who have the custody of the purse and sword." ST. G. TUCKER, supra note 12, at App. 359.

145 Writing in 1816, Jefferson lamented that judges had been made "independent of the nation itself. They are irremovable, but by their own body, for any depravities of conduct "Quoted in Ross, supra note 10, at 123-24 (emphasis added). In 1825, Rawle wrote that in England "Judges are liable to trial for every offense before their brethren. "W. RAWLE, A VIEW OF THE CONSTITUTION 214 (2d ed. 1829).

146 In a comment on this proposal, Milton Viorst states, "the 110 sponsors of the anti-Douglas resolution are all conservative Republicans and Dixicrats. This seems persuasive evidence in support of the hypothesis which virtually everyone in Washington accepts; that the undertaking seeks not simply to impeach William Orville Douglas but to discredit the liberalism. inherent in the domestic programs of Democratic Administrations since the New Deal." Viorst, supra note 6, at 32. Representative Ford all but conceded that Resolution was in retaliation for the Senate's rejection of two of President Nixon's nominees to the Suprem Court. 116 CONG. REC. H3118-19 (daily ed. April 15, 1970).

21-183-74-9

...

impeachment may not confidently be predicted before a witness has been examined.147

That statement was amply verified in the impeachments of Justice Samuel Chase and President Andrew Johnson; and impeachment has continued to be colored by political partisanship.14

148

Justice Douglas states, however, that "Our tradition even bars political impeachments as evidenced by the highly partisan, but unsuccessful, effort to oust Justice Samuel Chase of this Court in 1805." 149 Chase's acquittal was no less partisan than his impeachment. At that time the "national judiciary, one hundred percent Federalist, amounted to an arm of that party." 150 Chase, after the fashion of his Federalist brethren, made intemperate attacks on the Jeffersonian administration in harangues to a Grand Jury.151 Not unnaturally the incensed Jeffersonians took out after Chase. The Federalists "supported Chase completely in every test," and with the aid of a group of Jeffersonians whom John Randolph' leader of the impeachment, had alienated, saved Chase from retribution he richly deserved.152 So too, the bitterly partisan impeachment of Johnson narrowly failed, and partisanship has continued to dominate impeachments.153

Apart from partisanship there is the glaring inadequacy of a tribunal at which attendance is so sporadic that never more than a handful of Senators are present at any given time; and they simply cannot find time to study and digest the bulky record.154 Contrast with this the constant attendance of judges schooled to listen to evidence and to grasp complex issues, trained (one hopes) in more dispassionate judgment than a politician. In comparing legislative with judicial trial, it may be noted that the Founders had more confidence in the judiciary than in the legislature. 155 Then too, a number of the prior State constitutions contained provisions for removal of judges by judges, including the Virginia provision for the trial of judges on impeachment by the Court of Appeals.156

147 Quoted in Dougherty, Inherent Limitations Upon Impeachment, 23 YALE L.J. 60, 69 (1913).

148 I have shown this in some detail in Berger, Festschrift, supra note 9. See Ten Brock. Partisan Politics and Federal Judgship Impeachments Since 1903, 23 MINN. L. REV. 185 (1939): Potts, Impeachment as a Remedy, 12 ST. LOUIS L. REV. 15, 35-36 (1927).

149 9 Chandler II, 398 U.S. at 136 (1970) (Douglas, J., dissenting).

150 4 D. MALONE, JEFFERSON AND HIS TIME 458 (1970).

151 1 C. WARREN, supra note 5, at 274-76. For example, Chief Justice Dana of Massachusetts, "in a charge to the Grand Jury denounced the Vice President [Jefferson] and the minority in Congress as 'apostles of atheism and anarchy, bloodshed and plunder.'" Id. at 275.

152 4 D. MALONE, supra note 150, at 479-80. There was at least one solid ground for conviction of Chase, as I proposed to show in my forthcoming book.

153 See note 148 supra.

154 After the 1936 impeachment of Judge Halsted Ritter, Congressman Robison said, "Any one who has been a Member of that body knows it is humanly impossible to have all of the Senators present all the time for a period of 10 days, 2 weeks or more, sitting as a jury. If they did, momentous and pressing interests of the Nation . would suffer." 81 CONG. REC. 6183 (1937). See also Hatton Sumners, id. at 6165. "It is absurd," wrote Professor Moore in the midst of World War II, "to think that large interests during the war, for example, must wait upon the trial of Judge X. . . As a matter of fact, the Senate continues with the nation's business at the expense of Judge X. Senators troop in to answer the roll call when lack of a quorum is suggested and then troop out to the attendance of larger affairs." Moore, supra note 2, at 356-57. For other examples of sparse Senatorial attendance see Potts, supra note 148, at 34-35; see note 194 infra.

After the Ritter impeachment, Congressman Reed stated, "The Senate is composed of busy men, who cannot and will not divest themselves of the time they must necessarily devote to their lawmaking activities and concentrate, analyze and digest the intricate testimony ." 81 CONG. REC. 6175 (1937).

155 Said Madison in the Virginia Ratification Convention, "Were I to select a power which might be given with confidence, it would be the judicial power." 3 J. ELLIOT, supra note 15, at 535. When Jefferson welcomed the "check" which a Bill of Rights "puts into the hands of the judiciary," he added, "This is a body, which if rendered independent & kept strictly to their own department merits great confidence for their learning & integrity." 5 T. JEFFERSON, THE WRITINGS OF THOMAS JEFFERSON 81 (P. Ford ed. 1895). Contrast Madison's remarks in the First Congress that the legislative power is the "most likely to be abused," 1 ANNALS OF CONG. 454 (1789) (Gales & Seaton ed. 1834; print bearing running-page title "Gales & Seaton's History of Debates in Congress"). Smith said that legislative "power is perhaps more liable to abuse than the Judicial." id. at 848. See also Madison, 2 M. FARRAND, supra note 97, at 74: the legislature "was the real source of danger"; and see R. BERGER, CONGRESS V. THE SUPREME COURT 8-13, 132-37. In the Federal Convention Wilson said, "The English courts are hitherto pure, just and incorrupt, while their legislature are base and venal." 1 M. FARRAND, supra note 97, at 261. In 1803 St. George Tucker praised "that preeminent integrity, which amidst surrounding corruption, beams with genuine luster from the English courts of judica. ture. ." ST. G. TUCKER, supra note 12, at App. 356. At another point, Tucker said, "in a republic. the violence and malignity of party spirit, as well in the legislature, as in the executive, requires not less the intervention of a calm, temperate, upright and independent judiciary, to prevent that violence and malignity from exerting itself. id. at 355. Again, he said, "The judiciary, therefore, is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority. . . and the shafts of faction and violence." id. at 357.

Finally, when Chief Baron Walter and Justice Archer were threatened by the King's arbitrary conduct, they did not invoke the protection of impeachment but of scire facias. Pp. 1480-81 supra. And in commending to Parliament remission of a judge's trial to the courts. Lord Chancellor Erskine hardly considered that he would be less fairly tried. P. 1482 supra.

156 P. 1495 supra.