shall continue in office, many of them are neither treason, nor bribery, nor can they be properly dignified by the appellation of high crimes and misdeamenors; and for the impeachment of which no precedent can be found; nor would the words of the Constitution justify such impeachment.

To what source, then, shall we resort for a knowledge of what constitutes this thing called misbehaviour in office? Their misbehaviour certainly is not an impeachable offense; still it is the ground upon which judges are to be removed from office. The process of impeachment, therefore, cannot be the only one by which the judges may be removed from office under, and according to the Constitution.

The additional removal power is in the legislature. Only the President is restricted on "removal." The powers given the legislature-to have the courts meet only every six or ten years, to pack the court, etc.-show that no significant barrier was intended as against the legislature's control of judges.

Senator Bradley also followed the Taylor line. The words "good behavior" have been given assorted meanings in assorted states, but the most appropriate meaning is that used at their source, England. In England, the putting down of courts and justices is considered consistent with holding office during good behavior.

In the House, Representative Giles, on behalf of repeal, asserted that the term independence of judges or of the judiciary department was not to be found in the Constitution but was a mere inference from some of the specified powers. The Constitution only declared that there should be such a department formed by the other two departments who owe a responsibility to the people. The only limitation upon the power of Congress consists in the number of supreme courts to be established, and the spirit, as well as the words of the Constitution, are completely satisfied provided one Supreme Court be established. He therefore felt the firmest conviction that there was no constitutional impediment in the way of repealing the act in question.

John Randolph sought a more sophisticated line and one that might be impossible to draw: 20

I am free to declare that if the intent of this bill is to get rid of the judges, it is a perversion of your power to a base purpose; it is an unconstitutional act. If, on the contrary, it aims not at the displacing one set of men, from whom you differ in political opinion, with a view to introducing others, but at the general good by abolishing useless offices, it is a Constitutional act. Representative Williams asserted that power to decide what grounds are constitutionally adequate for impeachment must be in the legislature. Otherwise the judge can rule any attempt to oust him to be unconstitutional. Courts were created in the interest of the people, not of the judges, and the representatives of the people must, therefore, have final control. It is enough that judges are free from diminution of salary. The characterization of a life contract is inapt.

The opponents of Breckenridge's propositions were not silent. Senator Tracy attempted to dispose of the distinction between the Supreme Court and lower federal courts: 21 "No person will say that the judges of the Supreme Court can be removed, unless by impeachment and conviction of misbehaviour; but the judges of the inferior courts, as soon as ordained and established, are placed on precisely the same grounds of independence with the judges of the Supreme Court."

Governeur Morris claimed that there was no power of removal except on impeachment:22 "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.' " Senator Mason also denied any way of removing a judge from office or the office from the judge except by way of impeachment.

Senator White proposed that on accepting their appointments judges entered into a contract with the government that guaranteed life tenure during good behavior, so that any law diminishing their tenure would be an unconstitutional impairment of contract and ex post facto law. Senator Chipman also asserted that

20 Id. at 652.

21 Id. at 57.

22 Id. at 90.

continuance of office during good behavior was solely at the option of the judge. He relied in part on the proposition that the Constitution, having provided an exception to life tenure by way of the misbehavior clause, excluded all other bases for limiting tenure.

Senator Calhoun asserted that once a judge received his commission, he was "cnpletely beyond the reach of Legislative power. . . . We all fully and at once understand what is good behaviour in a judge, the oath he takes and the very nature of the office show it; to act with justice, integrity, ability, and honor, and to administer justice speedily and impartially, is good behaviour; if he acts contrary, it would be misbehaviour, and the Constitution, in that case, has given a remedy by impeachment."23

Senator Ross rejected the notion that the standard was the same here as in Great Britain where the Crown on the address of both houses could limit tenure. He relied on the need for independence of the judiciary as described by Judge Pendleton of the high court of Virginia.

The judiciary had its defenders in the House of Representatives as well. Hemphill argued that the power to interfere with the judiciary was reserved to the people by the ninth and tenth amendments, in order to assure the people an independent judiciary. Bayard argued that if the judges had shown undue partisanship, the proper remedy was by way of impeachment: "What is meant by tenure of 'good behavior'? It meant a tenure for life, unless the judge committed a misdemeanor. This was the understanding in England. The only express condition was the requirement of good behavior. The provision for such basis for removal precluded any other bases. The framers of the Constitution had been offered the opportunity to provide for removal of judges by other means and had rejected it.

Representative Smith asserted that while the legislature had the power to remove the jurisdiction of the lower courts it had no authority to limit the tenure of the judges except by impeachment. And Representative Rutledge turned to The Federalist for support of a similar conclusion. He quoted from No. 78:24

good behaviour for the continuance in office of the judicial magistracy, is the most valuable of the modern improvements in the practice of government. . . . And it is the best expedient that can be devised in any Government to secure a steady, upright, and impartial administration of the laws. The complete independence of the courts of justice is essential in a limited Constitution; one containing specific exceptions to the legislative authority. . . . Such limitations can be preserved in practice no other way than through the courts of justice. . . . The Convention acted wisely in establishing good behaviour as the tenure of judicial offices. This plan would have been inexcusably defective had it wanted this important feature of good government.

He concluded from this that judges were removable only by impeachment. He then quoted from Madison's debates on the first judiciary bill: "The judges are to be removed only on impeachment, and conviction before Congress." 25 And from Mr. GERRY: 26 "The judges will be independent, and no power can remove them: they will be beyond the reach of the other powers of the Government; they will be unassailable, and cannot be affected but by the united voice of America, and that only by a change of Government i.e., by constitutional amendment or revolution.

A most eloquent defense of judicial independence was made by Mr. Griswold. It was clear to him that judges could lose their office only on conviction for misbehavior after impeachment. He found that the failure to provide for the inclusion of the power of removal that was existent in England, i.e., on motion of both houses of Parliament and action taken pursuant thereto by the Crown, was deliberate. Mr. Dana was even more persuasive. He, too, showed that the proposal for removal by joint motion of both houses was laid before the convention and rejected. Jefferson's Virginia constitution specifically provided that judges of the higher court should hold tenure during good behavior but judges of the lower courts should have tenure during good behavior and the existence of the courts. The absence of such qualification on the tenure of the lower courts in the national constitution indicated the lack of intention to incorporate this difference. Mr.

Dana added that the power to remove judges was not different from the power to remove the President, i.e., only by impeachment processes as specified in the Constitution.

Despite this eloquent defense of the judiciary, the Jeffersonians prevailed, although by but a single vote in the Senate. The courts created by the 1801 Act were abolished. No judicial test of this action was made. Following this success, the Jeffersonians sought to eliminate the Federalist judges who were holding office under the original judiciary act by bringing impeachment proceedings. They were successful in the removal of Judge Pickering of New Hampshire, but this movement floundered when the impeachment of Mr. Justice Chase failed of conviction. B. Judicial reconstruction after the Civil War

In the Reconstruction Congress, there was an interesting forerunner of President Franklin D. Roosevelt's court-packing plan. Of the antipathy of the Radicals to the Court, nothing need be added here. One of the attacks on the Court in the House of Representatives came under the leadership of Representative Bingham. He sought to secure an addition to the Senate Judiciary bill that would "permit" voluntary retirement of judges on pension, and would provide further: 27

That if any judge who shall have attained the aforesaid age shall be incompetent, by reason of disease or infirmity, to make and file such certificate, the facts of his age and incompetency may be proved by satisfactory evidence before any judge of the Supreme Court; and upon such justice filing his certificate of such facts with the President the said judge shall thereupon be excused and retired with like effect as upon his own certificate.

Sec. 6. And be it further enacted, That within six months after the filing with the President of either of the certificates mentioned in section five of this act, or if any judge of any of the courts of the United States whose age now exceeds seventy years, or who shall hereafter arrive at the age of seventy years, shall for one year after the passage of this act, or after arriving at the age of seventy years, continue to hold his office without filing such certificate, it shall in either of such cases be the duty of the President to nominate and appoint, by and with the advice and consent of the Senate, an additional judge for the said court, who shall have the same power and perform the same duties and receive the same compensation as the judge then acting in such court, or who shall be retired and excused from so acting, and shall, in connection with or in the absence of his senior associate, hold the courts prescribed by law for said senior or retired judge; and upon the decease of said senior, associate, or retired judge, or upon his ceasing for any cause to hold said office, the said additional judge appointed under the provisions of this act shall be and become the judge of such court. On the constitutional issue, Bingham asserted: 28

I think I am justified in saying that the committee are of the opinion that it is not competent for the Congress of the United States under the Constitution to pass any law requiring a judge of the United States to resign.

Mr. Speaker, there is another provision of the amendment which may become very important, the provision which provides for retiring incompetent judges and supplying their places. Suppose a judge upon your Supreme bench is struck by paralysis. He is unable to tender his resignation or to take any action in the premises. How can you supply his place except by some such provision as this, which provides for evidence being taken and for the appointment of a judge to take his place as an acting member of the court? It must occure to members of the House that there is no room for the impeachment of a United States judge on account of the visitation of God. His commission runs for life, or during good behavior; and he cannot be removed by reason of having been overtaken by disease, and thereby rendered incapable of taking his place upon the bench. .

When Bingham was challenged on the constitutional question, a rather unenlightening dialogue followed between Bingham and Lawrence.29 Mr. Jenckes, like Bingham, had little difficulty with the constitutional issue. And like Bingham he conceded: 30

We cannot, under the Constitution, compel the judges to resign when they are seventy years of age and accept a pension. The law gives them the office for life or during good behavior. We cannot pass a law excluding them from the court after a certain age and allowing them to draw their present salary, or five times their present salary, if you please. They are created judges by the Constitution, and they hold their offices by a title greater than that which we can create, and their salary by a firmer tenure than that which any law can give.

Mr. Kerr, however, saw the problem differently: 31

But, Mr. Speaker, it is proposed by this bill to retire by congressional legislation certain judges after they shall have passed the age of seventy years. The honorable gentleman from Ohio, [Mr. Bingham,] my colleague on the committee, will doubtless say that such is not the precise proposition contained in this bill. But I insist that the logical effect, the legal effect, the practical effect, of this proposition will be to retire those judges, willing or unwilling. The bill provides that the Supreme Court shall consist of nine judges; and then it is declared that whenever a judge shall have attained the age of seventy years and shall have rendered service for ten years in any judicial department of the Federal Government he may retire from active service and receive a pension equal to his salary.

The court is to consist primarily of nine judges. The gentleman from Ohio undertakes to correct me by saying that it shall ultimately consist of nine judges, together with the retired judges. The retired judges and the judges who shall be appointed to take their places are theoretically to perform precisely the same duties and to have precisely the same jurisdiction. If one holds a circuit court anywhere in the country, the other in theory of law is supposed to sit with him. If the new judge takes his seat upon the bench, the old judge may do the same. If it is competent for Congress to do thus by indirection what it cannot do directly, if it is competent for Congress to enact such a provision as this, then it is equally competent for Congress to say that after a judge shall have attained the age of sixty years or fifty years or forty years, he may in like manner be retired or superseded or may be aided by the appointment of another judge who shall sit with him, dividing with him his jurisdiction-dividing with him every one of the functions of his office until, if this process be continued, the court, so far as this new organization is concerned, will become a mockery of a judicial tribunal.

The man who is thus superseded by the appointment of another judge is practically retired from office, and he, if not we, will so understand it. He and the country will understand when his successor is thus appointed by the President and confirmed by the Senate that he himself is notified that his services are no longer needed on the bench.

It seems to me that this provision will introduce into our judicial system and into the control of Congress over it a most dangerous principle of interference, one that will go to the very fundamental idea upon which that court was organized, upon which its great service as a coordinate department of the Government must always rest. It will go directly, most logically and most dangerously, to disturb the independence of that department of the Government, and to place it, as well as all others, under the power of the legislative department, and I submit that it was that very fear, an apprehension of that very danger, a prescience of what is this day being done, that led the framers of our Constitution to incorporate the provision organizing that court precisely as it is. In this opinion I am not unsustained by the history of this provision in our Constitution. During its consideration in the Convention there was a proposition made concerning which I will read from the Commentaries of Justice Story, section sixteen hundred and nineteen: "A proposition of a more imposing nature was to authorize a removal of the judges for inability to discharge the duties of their office. But all considerate persons will readily perceive that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has no place in the catalogue of any known art or science. An attempt to fix the boundary between the region of ability and inability would much oftener give rise to personal or party attachments and hostilities than advance the interest of justice or the public welfare, and instances of absolute imbecility would be too rare to justify the introduction of so dangerous a provision.".

31 Id. at 341-2.

For the very highest of reasons the constitutional Convention refused to confer upon the legislative department of the Government any right at all under any circumstances to sit in judgment upon the ability or inability of the judges of the Supreme Court. It is not permitted to Congress at all to say what shall be the exact measure of ability for a judge of that court, or what shall constitute disability for the discharge of its duties, or what age in life or service shall limit the judicial capacity. If it were, with what dangers would we be instantly surrounded! If Congress could declare that at the age of seventy years a man was incompetent to perform judicial service in that court, could not Congress, its own discretion being its supreme law, declare that a man at the age of sixty should be held thereafter to be incompetent for the discharge of such duties, or that at forty, or even at thirty-five, he should be held to be incompetent? Whenever you leave the power at all to the legislative department you make the discretion of that body its rule of action, unless you prescribe qualifications and limitations upon that power, which it would be very difficult indeed to do...

The issue was fought, not in Kerr's realistic terms, but on the issue whether Congress could provide annuities for superannuated judges. Thus, Mr. Butler spoke to the constitutional issues on the assumption that all that was involved was voluntary retirement: 32

What is the exact thing we propose? That these men shall remain as judges because we cannot under the Constitution prevent that, but that they may be retired from active duty if they choose. Is there anything against the Constitution in that? My friend says we are doing that indirectly which we cannot do directly. No, sir; let me correct his phrase, with due consideration. We are allowing them to do that for themselves which we cannot do to them. . . . Is there anything in the Constitution which prevents that? Does it militate against the dicta of Hamilton upon this question? Hamilton feared and it was the fear of men of his cast of thought in that day-lest there should be an attempt to remove judges by the Legislature and to overrule the judiciary, for he looked upon, and all the men of that day who thought with him looked upon the judiciary as the great arbiter between the other branches of the Government, the great protector of the rights of the people; and it was thought necessary, even at the risk of all the inconvenience that I have been speaking of, to make the judges independent of every power beyond the very power of removal. In that they but followed the great reform which had not very long before that taken place in England, by which the judges were made independent of the will of the king and held their offices during good behavior.

But, mark the difference of circumstances. We were then but just starting as a nation. John Marshall and the justices of that day were young men. Our fathers saw no evil or trouble arising from old age or incompetency of the judges. They were dealing with a small people. Sir, I agree it is necessary to have an independent judiciary, but it is equally necessary to have an effective judiciary. . . . And I think there is no man in the country who will not say that it is the best way for us to allow the men who from age and infirmity cannot carry on judicial work to remove themselves, and to give them this poor privilege of retiring from active service on the bench with a support for their declining years.

Although the Bingham amendments passed the House, the bill that was ultimately approved provided only for voluntary retirement and omitted the courtpacking provisions. Reading these debates, one wonders why it took so long for Franklin Roosevelt to come up with his version of court-packing.33 Certainly Bingham had anticipated the Roosevelt plan.

C. The abolition of the commerce court

The next set of congressional debates to which I refer centered, as did the 1802 contest, on the power of Congress to abolish judicial posts along with the abolition of a federal court, this time the Commerce Court of the United States. Once again political feelings ran high over the issue. The court was established in 1910, after bitter debate, to centralize review of the Interstate Commerce Commission in a single court. That the court was intended to serve and did serve as a tight rein on the Commission is clear from its antecedents and its judgments. By 1911, the court was already on its death bed.

32 Id. at app. 2.

33 See Leuchtenburg, The Origin of Franklin D. Roosevelt's "Court-packing" Plan, 1966 Sup. Ct. Rev. 347