Augustus Ricks was charged with appropriating moneys of the United States to his own use; the Committee recommended censure but the House took no action.191 Grover M. Moscowitz was charged with favoritism towards former law partners in awarding receiverships and allowing excessive fees; the Committee "frowned" upon his actions but made no recommendation.192

Assuming that the House is persuaded of the necessity to proceed, it may yet draw back from taking the time of the entire Senate to try a "crooked judge'; in the words of the verteran Hatton Sumners, Chairman of the House Judiciary Committee and participant in two of the nine impeachments, 193 to do so would take "the time of the entire Senate away from all of the other business of a great nation, and make them sit there for days and days. [W]e know they will not try district judges, and we can hardly ask them to do so." 194 On the other side of the Capitol Senator McAdoo stated after the conviction of Judge Halsted Ritter, "the nature of the process is such that, as evidenced in the recent proceedings, it seriously interrupts for long periods the necessary transaction of important legislative business, places an almost intolerable burden of hearing and weighing testimony upon Senators already charged heavily with other responsibilities, and for this reason alone is always resorted to with extreme reluctance, even in cases of flagrant misconduct." As a result, he said, "the practical certainty that in a large majority of cases misconduct will never be visited with impeachment is a standing invitation for judges to abuse their authority with impunity and without fear of removal." 195

McAdoo's remarks were beautifully illustrated by the subsequent case of District Judge Albert W. Johnson of Pennsylvania. His noisome practices extended over a twenty year period of judicial service; complaints about his official conduct started soon after he took the oath of office; and criticism erupted in the press in 1931.196 Johnson was under almost continuous investigation; a judge of his own Circuit Court of Appeals went to Washington to obtain relief.197 Hatton Sumners gave point to Congressional reluctance to impeach, saying, "If the people of the district are satisfied with Judge Johnson, I am." 198 At last Johnson was indicted, but acquitted, and when impeachment threatened he resigned."

191 Id. at 243.

199

192 Id. at 239. The pervasiveness of such practices led Senator McAdoo, who had served as Chairman of a Senate Subcommittee to investigate receivership and bankruptcy proceedings and thus learned of judicial misbehavior at first hand, to sponsor a bill for judicial trial of judicial misbehavior. McAdoo became convinced that "District Courts... in the management of insolvent properties and corporations, have been, in instance after instance, revealed as too frequently taking action, the effect of which has been to deprive creditors and investors of a proportionate share of the assets to which they are entitled, for the benefit of lawyers and receivers and other court officials. Favoritism and influence have too frequently ruled the selection of receivers and trustees appointed by the courts, and the integrity and ability of these officers of the courts have too frequently been disregarded for other considerations." 80 CONG. REC. 5933 (1936).

193 J. BORKIN, supra note 1. at 197; Sumners was also associated with investigations of other judges. Ibid. 194 81 CONG. REC. 6165 (1937). Sumners knew whereof he spoke. He had participated in the impeachment of Judge Louderback and said, that it was "the greatest farce ever presented. At one time only three senators were present and for ten days we presented evidence to what was practically an empty chamber." Time Mag., Mar. 16, 1936, at 18, quoted in Note, Removal of Federal Judges: a proposed Plan, 31 ILL. L. REV. 631, 634 (1937). Cf. note 2 supra.

195 80 CONG. REC. 5934 (1936). Woodrow Wilson said, "judging by our past experiences, impeachment may be said to be little more than an empty menace. The House of Representatives is a tardy Grand Jury, and the Senate an uncertain court." W. WILSON, supra note 4, at 276. Borkin's study left him with the inescapable feeling "that Congress is sometimes willing to suffer a misbehaving judge rather than stop the legislative activities of the United States." J. BORKIN, supra note 1, at 195.

In the North Carolina Ratification Convention, Iredell stated that "A man in public office who knows there is no tribunal to punish him, may be ready to deviate from his duty." 4 J. ELLIOT, supra note 15, at 32. 196 J. BORKIN, supra note 1, at 143.

197 Judge Biggs testified that he talked to "Chairman Hatton Sumners of the House Judiciary Committee, and to then Representative Estes Kefauver." Hearings Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 89th Cong. 2d sess., 19 (1966) [herinafter cited as Hearings]. 198 J. BORKIN, supra note 1, at 145.

199 Id. at 185, 182. The object of his favors, his co-conspirator son, was convicted, but two of the witnesses who had themselves been convicted, refused to repeat the testimony they had given before the Grand Jury thereby contributing to Johnson's acquittal. Il. at 185.

Another illustration involved the relation between the aged Third Circuit Judge Joseph Buffington and his confrere, Judge Warren Davis. In 1937, Judge Biggs testified, Buffington was 86 years old, blind, had great difficulty hearing and did not employ a law clerk. Hearings, supra note 197, at 15. Judge Davis was then Senior Judge and "was writing and selling the opinions Judge Buffington was signing." J. BORKIN, supra note 1, at 101: Root Refining Co. v. Universal Oil Products Co., 169 F.2d 514, 533 (3d Cir. 1948). The situation led the other circuit judges, testified Judge Biggs, to insist that Buffington and Davis should not sit together. Hearings, supra at 21. Twice Judge Biggs called the matter to the attention of the Assistant to the Attorney General. Subsequently "a letter was written to Judge William Clark at the suggestion of Judge Maris and myself [Biggs] to Mr. Edgar Hoover, and I think that brought the FBI into the situation." Ibid.

Thereafter Attorney General Biddle asked Congress to impeach Judge Davis, but Davis balked the impeachment by resigning and waiving his pension rights. J. BORKIN, supra note 1, at 120. Tactfully Judge Biggs testified that "we persuaded these elderly gentlemen to retire," but "to put it quite frankly, it takes a good deal of effort and quite a long time." Hearings, supra at 15-16. He said that there "is not the slightest doubt" that "the present machinery for the removal of unfit judges is inadequate." Id. at 16. See also the comments on the acquittal of Judge Lauderback in an impeachement upon the complaint of the San Francisco Bar Association, though a majority of the Senate voted him guilty. Note, Removal of Federal Judges: A Proposed Plan, 31 ILL. L. REV. 631, 634 (1937).

Here is a case that is documented; how many were not? How many cases of censurable conduct which rendered a judge unfit for office were screened out because of doubts whether they amounted to "high crimes and misdemeanors'? The testimony of an experienced Congressman, Hatton Sumners, who learned at first hand of the "burden" which impeachment places upon Congress, who sought only to disencumber Congress of that burden to free it for weightier and more pressing tasks, and who did not seek to encroach on the judiciary but to ask it to undertake its own housecleaning, should weigh heavily for the practical need, to borrow Senator McAdoo's phrase, of a "more certain, prompt, and effective method for dealing with" judicial abuses.200

B. Professor Stolz

Conceding that impeachment has a "deservedly bad reputation," Professor Stolz challenges the assumption that it is an "unworkable process" and suggests that it "be modernized to meet current needs" rather than resort to an alternative method of removal that "runs a substantial risk of being held unconstitutional."201 He would restructure impeachment by "(1) Creation of a bipartisan House Committee on Judicial Fitness [for investigation and recommendations to the House]; (2) creation of a permanent professional staff as an adjunct to the Committee; (3) use of a master or masters to conduct formal evidentiary hearings for the Senate and to prepare proposed findings of fact and conclusions of law which would be the basis of argument and decision in the Senate." This, he believes, “would be created without raising any new constitutional problems." 202

To the contrary, he would substitute a serious constitutional doubt for what appears to be no real constitutional problem. Delegation of investigatory functions by the House to a Committee which would report to the House and which the House could reject or adopt has historical precedent. The House of Commons often referred charges to a Committee for investigation, and then debated the Committee report and voted for or against lodging articles of impeachment.203 But delegation of the hearing function by the Senate is something else again.

As Hamilton remarked, the role of the Commons as prosecutor while the Lords sat in judgment was the "model" of the parallel distribution of functions between the House of Representatives and the Senate.204 Although the Lords referred sundry matters to committees, the function of hearing and trial was never delegated, and with good reason. The notable impeachments were chiefly treason trials involving peers, and the trial of a great nobleman "for blood" could scarcely be shunted to a Committee, let alone to a "Master." Conviction would be followed by death, fine or imprisonment, and although the governing law was the "course of parliament" rather than ordinary criminal law, English impeachment was therefore clearly criminal in nature. 205 Said Blackstone, "The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords." 206 Such trial was a substitute for trial by jury in which reference to a Master-an instrument of Chancery, not an adjunct of a criminal trial-found no place.

In the case of capital offenses and treason trials we have unmistakable evidence that trial was to be by the full House of Lords. A resolution by the Lords in 1689 recites, "That it is the ancient right of the Peers of England to be tried, only in full Parliament, for any capital offenses." 207 In 1695 the Trial of Treasons Act provided "That upon the trial of any Peer or Peeress [for treason] . . . all the Peers who have a Right to sit and vote in parliament shall be duly summoned. . . and that every Peer, so summoned and appearing at such trial, shall vote in the Trial of such Peer or Peeress so to be tried. . . . ” 208 Although impeachments for "high crimes and misdemeanors" did not involve "capital offenses" they were nonetheless criminal proceedings; and there is evidence that these too were to be heard by all the Lords. On June 23, 1701, the Lords resolved that "the Lords who absented 200 80 CONG. REC. 5934 (1936). In 1878, Justice Miller siad, it "must be confessed that the means provided by the system of organic law for removing a judge, who for any reason is found to be unfit for his office, is very unsatisfactory [and] after the expdrience of nearly a century must be pronounced inadequate.' 2 N.Y. STATE BAR ASS'N REP. 40 (1878),quoted in Note, Removal of Federal Judges-New Alternatives to an Old Problem: Chandler v. Judicial Council of the Tenth Circuit, 13 U.C.L.A. L. REV. 1385 (1966). 201 Stolz, supra note 8, at 660, 664.

202 Id. at 667. The suggestion that the Senate should entrust the hearing of evidence to a Committee which would act as a master had been mooted by several Congressmen in the House after the Halsted Ritter impeachment proceedings. 81 CONG. REC. 6163, 6172, 6178 (1937).

203 See 4 J. HATSELL, supra note 128, at 99, 110, 111, 113, 118, 121, 122, 128, 132.

204 THE FEDERALIST No. 65, supra note 16, at 425.

205 Berger, Fes'schrift, supra note 9.

206 4 W. BLACKSTONE, COMMENTARIES *260.

207 Quoted in 4 J. HATSELL, supra note 128, at 277-78.

208 Trials of Treason Act, 7 Will. 3, c. 3, § 11.

themselves from the trial of Lord Orford [impeached for "high crimes and misdemeanors'], and shall not make a just excuse for the same, are guilty of a great and wilful neglect of their duty." 209 So too, the impeachment of Lord Chancellor Macclesfield for "high crimes and misdemeanors" in 1725 was before "the Lords being seated in their House. ." 210 No trace of a reference to a Committee of the Lords for hearing of the evidence turned up in my search of impeachment proceedings. The reason appears in a statement made by the Managers of the Lords at a conference between members of the Lords and the Commons (reported January 18, 1691) that

In the case of impeachments, which are the groans of the people... and carry with them a greater supposition of guilt than any other accusation, there all the Lords must judge.211

If the American impeachment process is also criminal, the English practice furnishes the standard, since almost the entire process was lifted bodily from the English practice.212 The American process, I have elsewhere shown, however, is not criminal,213 but the English procedure nonetheless furnished the model, as is confirmed by the Manual of Parliamentary Practice prepared for the Senate by Vice President Jefferson. Citing and in part quoting Wooddeson, Jefferson stated,

This trial. . . differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevailed. .. . The judgment, therefore, is to be such as is warranted by legal principles or precedents.214

Jefferson mistakenly conceived the American impeachment to be criminal in nature, but nonetheless it was a proceeding of so high and serious a nature as to call for adoption of the earlier procedure. Impeachment, said Hamilton, was 'designed as a method of National Inquest into the conduct of public men" and it could result in a sentence of doom "to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country." The trial was confided to the Senate rather than the Supreme Court because "The awful discretion which a court of impeachment must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." 215 Impeachment, it cannot be unduly emphasized, was chiefly designed for the President and his high ministers, as a "bridle" on the Executive; 216 and the Framers would have been aghast had it been proposed that the trial, hearing and sifting of the evidence on the impeachment of the President or of the Secretary of Foreign Affairs should be remitted to a Master, and that it would suffice for the Senate to vote on his findings and conclusions. Impeachment was of a piece, and there is no historical warrant for breaking it into two modes, one for the President and another for inferior federal judges.

With the seven-year-long impeachment of Warren Hastings fresh in their memory,217 the Senate, in the 1797 impeachment of Senator Blount,218 embraced the Lords' practice of sitting as a body-a practice from which, despite the onerous burdens it imposes, it has never departed, and which constitutes a constitutional interpretation entirely in harmony with the constitutional design. And if an analogous proposal to lighten the burdens of the Supreme Court may furnish a guide, a shift of the Senate's hearing function to a Master is of doubtful consti

209 Quoted in 4 J. HATSELL, supra note 128, at 279, 420.

210 16 HOWELL, supra note 173, at 767.

211 4 J. HATSELL, supra note 128, at 343, 333, 342. Lord Grenville stated in the House of Lords, "When you are called upon to arraing an individual, and that individual a judge, everyone must be anxious that the attendance should be as full as possible." 7 PARL. DEB. 762 (1806). And see T. PLUCKNETT, supra note 173, at 232; cf. 1 W. HOLDSWORTH, supra note 28, at 389 (7th ed. 1956).

212 The formula "treason, bribery, high crimes and misdemeanors," was, but for the word "bribery," borrowed from English Law. Hamilton refers to the English "model from which the idea of this institution has been borrowed." THE FEDERALIST No. 65, supra note 16, at 425; and he stated that the "experience of Great Britain affords an illustrious comment on the excellence" of "good behavior" tenure, Id. No. 78, at 511. The division of prosecuting functions between House and Senate was patently modelled on the division of functions between Commons and Lords, Id. No. 65, at 425.

213 Berger, Festschrift, supra note 9.

214 2 R. WOODDESON, supra note 176, at 611; JEFFERSON'S MANUAL, supra note 54, at 153.

215 THE FEDERALIST No. 65, Supra note 16, at 426.

216 Id. at 425.

217 George Mason referred to the Hastings trial in the Federal Convention. 2 M. FARRAND, supra note 97 at 550. Vining referred to it in the First Congress, I ANNALS OF CONG., supra note 2, at 373. The impeachment was instituted in April, 1786. 4 J. HATSELL, supra note 128, at 241 n.*. It took nearly seven years to try. Potts, supra note 148, at 33.

218 F. WHARTON, supra note 54, at 200, 257.

tutionality. At the time of the Court-Packing Plan, Chief Justice Hughes, writing on behalf of Justice Van Devanter, Brandeis and himself, and expressing confidence that his statement was "in accord with the view" of the other Justices, advised the Senate,

I understand that it has been suggested that with more Justices the Court could hear cases in divisions. I may also call attention to the provisions of article III, section 1, of the Constitution that the judicial power of the United States shall be vested "in one Supreme Court".. The Constitution does not appear to authorize two or more supreme courts, or two or more parts of a Supreme Court functioning in effect as separate courts.219

It is food for thought that Hughes did not suggest that the Court could meet its problems by a wholesale delegation of its hearing function to masters.220 Although the Stolz proposal has some superficially attractive aspects, it therefore raises disturbing constitutional issues in its turn.

V. INSANITY, SENILITY, AND DISABILITY

Despite his assertion that impeachment was "the only provision" for removal of judges, Hamilton, as we have seen, felt constrained to recognize that "insanity, without any formal or express provision may be safely pronounced to be a virtual disqualification." 221 Either this means that insanity is a "high crime and misdemeanor,' solecism if impeachable conduct be criminal, for a madman is not. held responsible for his acts, 222 or the removal power must be sought elsewhere Removal of an insane judge by resort to "during good behavior" does not require us to ignore the absence, as in impeachment, of an element of the offense "criminal" intent. Minimally "during good behavior" must premise that the appointee is capable of behaving well. One who is confined in a strait-jacket, for example, is incapable of "behaving" at all within the meaning of "good behavior" in office. In Hawkins' words, the grant of an office implies that the grantee "ought to execute it diligently and faithfully," 223 a condition impossible of fulfillment by a lunatic, so that his tenure is terminated by his insanity.

Inability or senility are not, in my judgment, distinguishable for removal purposes from insanity. Bacon's Abridgment states that an officer may be removed for "insufficiency," "an original Incapacity which creates the Forfeiture of an Office

."' 224 Shartel quotes the statement of an English writer that "good behavior" imports an estate determinable by "incapacity from mental or bodily infirmity, or breach of good behavior," but questions whether disability is a ground of forfeiture.225 He recognizes that "There are certain venerable lines of authority which, if pursued to their logical conclusion might involve this result." For example, "the grant of an office to a person not competent or qualifled was said to be void. Also, a judicial office could not be granted in reversion because though never so fit, the grantee might become unfit before the grant was to take effect." 226 But Shartel does not pursue the logic of such learning because "the lack of authority in the old books and decisions recognizing disability as a ground of removal, has a strong negative significance. Indeed English decisions have often asserted that a good-behavior tenure is forfeitable only for misbehavior.” 227 On this analvsis his entire argument for removal by scire facias falls, for these are precisely the arguments levelled against him by his critics.

219 Quoted in S. REP. No. 711 75th Cong., 1st Sess. 40 (1937).

220 In the general practice, references to Masters have not been favored. Justice Field said that a court "cannot, of its own motion, or upon the request of one party, abdicate its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers." Kimberly v. Arms, 129 U.S. 512, 524 (1889). Under the more liberal present practice, which empowers courts to appoint masters to assist the jury in those exceptional cases where the issues are too complicated for the jury adequately to handle alone, the Supreme Court said that "it will indeed be a rare case in which" the burden of such a showing "can be met." Dairy Queen v. Wood, 369 U.S. 469, 478 (1962).

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

222 The point was made in the First Congress by Jackson, 1 ANNALS OF CONG., supra note 2, at 488, and noted by Henry Adams, 2 H. ADAMS, A HISTORY OF THE UNITED STATES 157 (1962 reprint).

223 P.1508 supra.

224 3 M. Bacon, supra note 20, at (M) 742.

225 Shartel, supra note 22, at 903.

226 Ibid. The authorities are quoted id. n. 90.

227 Id. at 903-04.

For my part, I prefer the hard common sense of Elias Boudinot in the First Congress "removal" debate:

It was asked, if ever we knew a person removed from office by reason of sickness or ignorance. If there never was such a case, it is, perhaps, nevertheless proper that they should be removed for those reasons; and we shall do well to establish the principle.

Suppose your Secretary of Foreign Affairs, rendered incapable of thought or action by a paralytic stroke: I ask whether there would be any propriety in keeping such a person in office, and whether the salus populi, the first object of republican governments, does not absolutely demand his dismission.228

And if no supervening disability cases are met in the old decisions, the cases for removal for original "insufficiency" furnish an analogy from which a healthy common law development may proceed. The law would indeed be an ass if it required removal of one who was insane or incompetent ab initio but would prevent removal where incompetence subsequently developed.

A last Shartel argument is that "the basic common law conception of an office as property is utterly irreconcilable with the notion that such an office is subject to termination on account of supervening disability." 229 He himself noted, however, that "a judicial office could not be granted in reversion because . . the grantee might become unfit before the grant was to take effect," 230 evidence that there could be no "property" in a judicial office. And by the time Hawkins came to state the law, the "basic common law conception of an office as property" was, in the case of public office at least, tempered by recognition that an implied condition of the grant was that the grantee would "execute it diligently and faithfully." 231 One "who neglects publick Office," stated Hawkins, "should rather be immediately displaced than, the publick be in danger of suffering that damage, which cannot but be expected some time or other from his negligence." 232 In a word, the public interest in adequate performance of official duty had become a paramount consideration. In the United States, the notion of property in a public office did not take hold. “Never let it be siad,” Hartley stated in the First Congress, "that he has an estate in his office when he is found unfit to perform his duties." 233 And the Supreme Court declared that the "nature of the relation of a public officer to the public is inconsistent with either a property or a contract right." 234 Implications drawn from the early common law conception of property in an office, therefore, have no place in assessing constitutional power to remove a judge.

Consideration of removal for misbehavior must take into account Professor Kurland's statement that "for every inebriate, senile or malfeasant judge there are several dullards and sluggards immune from removal whatever new standards and machinery are offered." 235 If "dullards" be equated with "ignorant" appointees, the common law runs to the contrary. Forfeiture of an office would lie for "insufficiency,' ," that is, states Bacon's Abridgment, "original incapacity," citing the appointment of one "who is ignorant and unskillful." 236 Vynter's Case is illustrative. A patent to fill the office of coroner and attorney of the king had issued "during good behavior." The Justices found that the office requires "a discreet, learned, and expert person," that "it is impossible that any one can properly use and exercise these offices, unless he shall have been educated in the same,' ," that Vynter "never was educated in those offices" and "is altogether unfit to . . . exercise the said offices," and that the grant was void in law." This

228 The question had been asked by Smith, 1 ANNALS OF CONG., supra note 2, at 457; and Boudinot replied, id. at 469. For similar sentiments see Hartley, id. at 480; Sedgwick, id. at 460.

229 Shartel, supra note 22, at 904.

230 Id. at 903 n.90. To the same effect, Auditor Curle's Case, 11 Co. Rep. 2b, 4a, 77 Eng. Rep. 1147, 1149 (1610); Veale v. Priour, Hardres 351, 357, 145 Eng. Rep. 492, 496 (1664); 2 W. BLACKSTONE, COMMENTARIES *36.

231 P. 1508 supra.

232 1 W. HAWKINS, supra note 142, ch. 66, § 1 at 168.

233 1 ANNALS OF CONG., supra note 2, at 480.

234 Taylor & Marshall v. Beckham, 178 U.S. 548, 577 (1900).

235 Kurland, supra note 8, at 666.

236 3 M. BACON, supra note 20, at (M) 742.