"So, also, there are offences against the law, or conduct, which might be made so, that peculiarly unfit the man for the office of judge. A vile and overbearing temper becomes sometimes, in one long accustomed to the exercise of power, unendurable to those who are subjected to its humors. But I think the experience of observers will bear me out in saying, that habitual intoxication is of all this class of disqualifications, the most frequent.

"Two things may be suggested as worthy of consideration in any effort to amend the Constitution on this subject, namely: That the causes for which a judge may be removed from office shall be described with the same precision as that which is used in defining indictable offences. Second, that whatever may be the nature of the court before which he is tried, the fact of his guilt of the impeachable offence, or disqualification charged, should be found by a jury or similar tribunal. It is, however, to be remembered that a judge should, in the exercise of his functions, be tramelled as little as possible by fear of consequences to himself, and in view of the resentments of disappointed suitors the providing for removal should not be made too easy."

And it may not be unimportant to note the practice in England. It has been said:3 "In England the Lord Chancellor, or the Chancellor of the Duchy of Lancaster within their several jurisdictions, have power to remove any county judge for either inability or misbehavior.' No farce of an impeachment is required or allowed. A great and perhaps somewhat arbitrary power is entrusted to a great functionary, upon the faith of its judicious exercise, under the corrective influence of public opinion, and the system has not been found satisfactory."

It may well be thought that vesting so much power in one man, and the summary method provided, are alike too undemocratic for our form of government; but it would not be difficult to draft an act defining "good behavior" and providing for a trial by or under the control of the Supreme Court, by which both of these objections would be obviated, and those who had demonstrated their inability properly to perform the duties of their offices could be removed therefrom though not guilty of "treason, bribery or other high crimes and misdemeanors. "Good behavior" means good behavior in or as affecting the office, and a course of conduct which brings the office into disgrace or contempt is, therefore, a violation of the good behavior tenure of the incumbent. An act such as suggested would, therefore, tend to render the judiciary independent of the other great departments of the government, would answer the arguments of those who contend that that the judges should be more responsible to the public will, and would greatly strengthen the judicial system generally.

Senator BAYH. I would say to Senator Byrd that he should feel free to offer to the committee and we will keep the record open for an appropriate length of time-for insertion of any other information, letters, or reports that you may care to enter into the record.

Senator BYRD. Thank you, Mr. Chairman.

Senator BAYH. We will recess the hearings at this time subject to the call of the Chair.

[Whereupon, at 12:55 p.m., an adjournment was taken.]

3 6 Solicitor's Journal and Reporter, 804-805.

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