JUDICIAL TENURE IN THE UNITED STATES JUDICIAL IN THE UNITED STATES WITH ESPECIAL REFERENCE TO THE TENURE OF FEDERAL JUDGES WILLIAM S. CARPENTER, PH.D. DEPARTMENT OF POLITICAL SCIENCE UNIVERSITY OF WISCONSIN NEW HAVEN YALE UNIVERSITY PRESS LONDON: HUMPHREY MILFORD OXFORD UNIVERSITY PRESS MDCCCCXVIII COPYRIGHT, 1918, BY YALE UNIVERSITY PRESS First published, April, 1918 PREFACE The following study is designed to present the historical development of two phases of the American judicial system: the influence of the exercise of the doctrine of judicial review upon the position of the courts, and the political reactions affecting the tenure of the judges. The growth of the doctrine of judicial review in the formative period of Ameri- can institutions had a profound influence upon subsequent constitutional development. When the judges, with popular approval, became the custodians of the Constitution a really independent judiciary became neces- sary to enable the courts fearlessly to mark out the provinces of the other departments of government. Attempts to check the exer- cise of judicial power have invariably taken the form of assaults upon the security of tenure of the judicial office. But even in the heat of partisan conflict the courts have usually withstood the attacks of persons who 8842 vi PREFACE would destroy their independence. And in the end popular sentiment has generally sup- ported the courts. The relative merits of appointive and elec- tive courts have been a topic of much discus- sion. But conclusions based on a compara- tive study of the results of these two modes of selection are almost valueless. The method of selecting judges is best determined by local conditions. It is by keeping the courts free from executive or legislative control and removing them from the influence of tem- porary popular majorities that the independ- ence of the judiciary is maintained. The study has dealt chiefly with the tenure of the federal judges, although popular movements which have resulted in important changes in the State courts have been con- sidered. At the close of the narrative a chapter of conclusions summarizes the prob- lems involved in securing the tenure of the judicial office at the present time. I wish to acknowledge my indebtedness to Professor Henry Jones Ford of Princeton University for helpful suggestions. My associates in the Department of Political Science in the University of Wisconsin have PREFACE vii read portions of the manuscript and have made important corrections. To Professor Edward S. Corwin of Princeton University I am especially indebted not only for the reading of the entire manuscript but for valuable suggestions and stimulating criti- cism throughout the preparation of the work. WILLIAM S. CARPENTER. Madison, Wisconsin, December 10, 1917. Preface Chapter I. Chapter II. Chapter III. Chapter IV. Chapter V. Index CONTENTS Establishment of a Fed- eral Judiciary Congress and the In- ferior Courts . The Eemoval of Judges Selection and Tenure of Judges . Conclusions PAGE 51 101 155 194 225 ESTABLISHMENT OF A FEDERAL JUDICL1RY The judiciary in the United States has be- come an institution of paramount impor- tance, enjoying a security of tenure and a scope of influence elsewhere unknown among modern governments. It has been said that in this country we have no law until the courts have had opportunity to pass upon the validity of legislative enactments and have admitted them to be in harmony with the Constitution. Yet this great power lodged in the courts flows from fundamental principles and is, indeed, a cornerstone of American government. That the courts of the United States may be competent to exercise the great functions laid upon them, involving as they do a check upon legislative action, judicial independ- ence is peculiarly essential. Such independ- ence demands that the judges shall not only 2 JUDICIAL TENURE IN be free from executive and legislative con- trol, but that they shall be free from the political ^ag&ries of the people themselves, in order that within their sphere of govern- ment the courts may move unhindered and without fear. To secure such conditions has been the conscious effort of civil polity throughout the history of our nation. I The colonial judiciary had been the sub- ject of bitter complaint. One of the griev- ances cited in the Declaration of Independ- ence against George III was that "he has made judges dependent upon his will alone for the tenure of their offices and the amount and payment of their salaries." This, more- over, was contrary to the practice in Eng- land where one of the reforms of the Long Parliament had been the establishment of judicial commissions during good behavior. 1 The same tenure had been granted the colo- nial judges down to 1761 when the King, acting upon the advice of the Board of Trade, altered the commissions to a tenure during the royal pleasure on the ground that iCobbett: Parliamentary History, ii, p. 702. THE UNITED STATES 3 the state of learning in the colonies was so low that it was with difficulty that men could be found competent to administer the judicial offices. 2 In August, 1772, the King, finding that the want of a fixed allowance in the colonies for the administration of justice made judicial office very unattractive and prevented the establishment of an effective judiciary system, granted a salary to the judges of the superior court of Massachu- setts, forbidding them to receive the custom- ary grants from the House of Bepresenta- tives, and the Council and Governor. This action of the King aroused much opposition, and a discussion in the public press followed in which John Adams in a series of essays condemned the subjection of the colonial ju- diciary to the crown. 3 Popular resentment rose to such heights, indeed, that an attempt was made in 1774 to impeach Chief Justice Oliver before the assembly, and grand jurors and petit jurors refused to take their oaths in his court. 4 2 N. C. Colonial Records, vi, pp. 582-586. s Adams: Writings, iii, p. 513 et seq. * Ibid., i, pp. 315-317. 4 JUDICIAL TENURE IN II As a result of this experience, the colonists embarked upon the business of establishing judicial departments in their first State con- stitutions with no little concern. In theory it was universally agreed that the judges must be independent, and to this end the usual tenure in the early constitutions was during good behavior. This was the tenure provided in the constitutions of Massachu- setts, Delaware, Maryland, Virginia, North Carolina, South Carolina, and in those drawn up in New Hampshire and Vermont. 5 New York had the same tenure, except that there the judges retired at the age of sixty years. 6 In Pennsylvania and New Jersey the appoint- ments were for seven years. 7 In Connecticut and Ehode Island, where they did not frame constitutions but continued their charter gov- ernments, the judges were still appointed annually by the legislature. In Georgia the people elected their judges annually. 8 s Thorpe: Charters and Constitutions, pp. 564, 1689, 1905, 2466, 2791, 3246, 3746, 3817. Ibid., p. 2634. 7 Ibid., pp. 2596, 3088. s Horace Davis : American Constitutions, J. H. U. Studies, Series 3, p. 507. THE UNITED STATES 5 But the principle of legislative supremacy, which in 1776 was so dominant both in Eng- land and in the colonies, caused much in- fluence over the judiciary to be exercised by the assemblies. In most of the States the leg- islature controlled the appointment of the judges. In Connecticut, Ehode Island, New Jersey, Virginia, North Carolina, and South Carolina the legislature appointed directly. 9 In New Hampshire, Massachusetts, Penn- sylvania, and Maryland the appointments were made by the Governor and Council, while in New York the Governor acted with a special Council of Appointment. 10 Judicial appointments in Delaware were made by the legislature and the executive. 11 On the other hand, the theoretical basis on which the revolutionary state governments rested was a separation of the powers of gov- ernment as laid down by Montesquieu, and on paper this doctrine was well defined. In practice, however, the case was very different. The Massachusetts constitution of 1780 de- clared that : Thorpe: pp. 533, 2596, 2791, 3218, 3246, 3817. 10 Ibid., p. 2633. 11 Ibid., p. 564. 6 JUDICIAL TENURE IN In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them ; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws, and not of men. 12 But we find Madison saying: If we look into the constitutions of the several States we find that, notwithstanding the emphati- cal and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several depart- ments of power have been kept absolutely sepa- rate and distinct. ... It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. 13 . . . The legislative department is everywhere extend- ing the sphere of its activity, and drawing all power into its impetuous vortex. . . . The conclusion which I am warranted in drawing is, that a mere 12 Thorpe: p. 1898. is Federalist, xlvii. THE UNITED STATES 7 demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. 14 In some States efforts were made to erect barriers against the encroachments of the legislature. In New York the Governor, the Chancellor, and the judges of the supreme court were to form a council of revision which had power to veto acts of the legislature. 15 The Pennsylvania constitution of 1776 in- cluded a provision for a Council of Censors who should meet in 1783 and in every seventh year thereafter. This council was to exam- ine into the conduct of the government and had power "to pass public censures, to order impeachments, and to recommend to the Leg- islature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution." 10 The same provision was copied into the constitution of Vermont where it continued in use down to 1869. i* Federalist, xlviii. is Thorpe: p. 2628. iIbid., p. 3091. 8 JUDICIAL TENURE IN These provisions were ineffective and con- tributed neither to check the legislature nor to elevate the judiciary. In his ' i Notes on Virginia " Jefferson made the criticism that all powers of government resulted to the legislative body. He pointed out that : The convention which passed the ordinance of government laid its foundation on this basis, that the legislative, executive, and judiciary depart- ments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between the several powers. The ju- diciary and executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, there- fore, the legislature assumes executive and ju- diciary powers, no opposition is likely to be made. . . . They have, accordingly, in many in- stances, decided rights which should have been left to judicial controversy; and the direction of the executive during the whole time of their session is becoming habitual and familiar. 17 The Pennsylvania Council of Censors at their meeting in 1783 considered the constitution defective in vesting all legislative power in a single house of representatives, "because an IT Works (ed. Ford), viii, p. 362. THE UNITED STATES 9 uncontrolled power of legislation will always enable the body possessing it to usurp both the judicial and the executive authority, in which case no remedy would remain to the people but by a revolution. " At the same time they recommended that the judges be granted a tenure during good behavior be- cause, being commissioned for seven years, "if the assembly should pass an unconstitu- tional law, and the judges have virtue enough to refuse to obey it, the same assembly could instantly remove them. " 18 The extent of the encroachments by the legislature was perhaps most widespread in Vermont. 19 The judiciary was completely subordinated to the legislature, and the latter department made rules, granted new trials, and vacated and annulled judgments. The courts refused to review the constitutionality of legislative enactments, declaring that "a mode of procedure pointed out by statute cannot be turned from although in derogation is Conventions of Pa. (1776-1790), p. 70. is In Pennsylvania the legislature was not considered to be limited in the same degree as were the other departments of government. Eesp. v. Buflington, 1 Dallas 61. See also Calder v. Bull, 3 Dallas 386, and Cooper v. Telfair, 4 Dallas 13. 10 JUDICIAL TENURE IN of the common law. Such action by the courts would be to assume an arbitrary power not warranted by law." 20 But it could not be expected that any doc- trine of this sort should enjoy very long ex- istence. Its early success was due partly to the popularity of the legislature in colonial times and partly to the fact that in most States those who had framed the constitu- tions became the legislators. On the other hand, the case for the American revolution had been built upon the idea that acts con- trary to natural right and justice were null and void, and in the famous controversy over the Writs of Assistance, James Otis had denied the right of Parliament to determine ultimately the validity of its own acts. 21 More important than this political theory was the substantial fact that under legislative dominance the States were becoming involved in confusion and chaos. Paper money legis- 20 Paine v. Ely, 1 Chipman's Keports 37. "No idea was entertained (in Vermont) that an act of legislature, how- ever repugnant to the constitution, could be adjudged void and set aside by the judiciary, which was considered by all a subordinate department of government." Chipman: Memoir of Thomas Chittenden, p. 112. 21 See Haines : Conflict over Judicial Powers, Ch. ] . THE UNITED STATES 11 lation and stay laws became such a menace to domestic peace and prosperity that the respectable element began to consider what curb might be applied to the legislature. 22 Ill In the reaction against legislative omnipo- tence judicial review was born. As early as 1780 the supreme court of New Jersey in the case of Holmes v. Walton had set aside as unconstitutional an act of the legislature which provided that in certain classes of cases a jury might consist of six men. 23 22 Beard : Supreme Court and the Constitution, p. 75. 23 Some writers have claimed the Josiah Philips case which arose in Virginia in 1778 as one of judicial review. See article by William P. Trent, American Historical Re- view, i, pp. 444-454, and Haines: American Doctrine of Judicial Supremacy, pp. 77-80. But in the Jefferson MSS, in the Library of Congress under date of August 15, 1815, is to be found a letter from Jefferson to William Wirt which proves conclusively that in the case of Josiah Philips there arose no question of judicial review. In speaking of the case Jefferson says: "I remember the case and took my part in it. Philips was a mere robber, who availing him- self of the troubles of the times, collected a banditti, retired to the Dismal Swamp, and from thence sallied forth, plun- dering and maltreating the neighboring inhabitants, and covering himself, without authority, under the name of a British subject. Mr. Henry, then Governor, communicated the case to me. We both thought the best proceeding would 12 JUDICIAL TENURE IN Several protests were sent in to the legis- lature by the inhabitants of the counties in- terested in the act adjudged void, but gen- erally the court was sustained. The follow- ing year that part of the act relating to a six- man jury was repealed and it was enacted that "it shall be lawful for either of the parties to such suit to demand a jury of twelve men, which jury the justice shall be empowered to grant." 24 Although this decision attracted some at- tention, 25 the gains to the judicial power were not great because of the incomplete recogni- tion given the doctrine of judicial review by the legislature. The manner in which the be by bill of attainder, unless he delivered himself up for trial within a given time. Philips was afterwards taken; and Mr. Randolph being Attorney General and apprehend- ing he would plead that he was a British subject, taken in arms, in support of his lawful sovereign, and as prisoner of war entitled to the protection of the law of nations, he thought the safest proceeding would be to indict him at common law as a felon and robber. Against this, I believe, Philips urged the same plea; but was overruled and found guilty." 24 Austin Scott : American Historical Review, iv, p. 456. 25 Gouverneur Morris in 1785 pointed out that "a law was once passed in New Jersey, which the judges pro- nounced unconstitutional, and therefore void." Sparks: Life of Morris, iii, p. 438. THE UNITED STATES 13 repeal was enacted must be considered as a compromise which, while not denying the right of the courts to pass upon the consti- tutionality of legislative enactments, left to the legislature in the last analysis the power to define by statute the functions of each de- partment of government. Nor was any con- tribution to the judicial power secured by the obiter dicta of the judges of the Virginia Court of Appeals in the decision of Common- wealth v. Caton in 1782. The judges were of the opinion "that the court had power to de- clare any resolution or act of the legislature, or either branch of it, to be unconstitutional and void." 26 But since the case did not call for the exercise of this power it is not known how these views were received. The next case to receive attention was that of Rutgers v. Waddington decided in the mayor's court in New York City in 1784. 27 Far from asserting the doctrine of judicial review the court in this case merely laid claim on behalf of the judiciary to a judicial dis- 26 4 Call 5. 27 The action was one of trespass brought upon a statute of March 17, 1783. Plea was made that the act was in contravention of the law of nations and the treaty of peace of 1783. 14 JUDICIAL TENURE IN cretion within the limits of Blackstone's tenth rule for construing statutes. Closely following Blackstone, the court observed : The supremacy of the legislature need not be called into question; if they think positively to enact a law, there is no power which can control them. When the main object of such a law is clearly expressed, and the intention is manifest, the judges are not at liberty, although it appears to them to be unreasonable, to reject it; for this were to set the judicial above the legislative, which would be subversive of all government. But when a law is expressed in general words, and some collateral matter which happens to arise from those general words is unreasonable, there the judges are in decency to conclude that the consequences were not foreseen by the legislature ; and therefore they are at liberty to expound the statute by equity and only quoad hoc to disregard it. When the judicial make these distinctions, they do not con- trol the legislature; they endeavor to give their intention its proper effect. 28 Even this modest assertion by the judi- ciary of the right to interpret a statute when not plainly expressed was considered in con- flict with the power given the Council of Revision to object to laws deemed improper 28Coxe: Judicial Power, p. 230. THE UNITED STATES 15 by them. On this ground the decision was seized upon by the "violent Whigs, " as those of the Clinton party were called, and an effort was made to use it as political capital. A public meeting was called on September 13, and an address to the people was prepared. At the meeting of the legislature in the fol- lowing month an attempt was made to pass resolutions of censure upon the mayor and aldermen and to recommend to the Council of Appointment "that at their next appoint- ments they appoint such persons to be Mayor and Eecorder of the City of New York as will govern themselves by the known laws of the land." The resolutions gave rise to an ex- tended debate in the assembly during which the records were brought up for examination but with the result that the matter was dis- missed. 29 Because of the complicated situation in- volved in the New York case and the fact that the decision was used to further partisan politics it is difficult to ascertain what was the real attitude of the people toward the doc- trine of judicial review even in the limited scope laid down by the mayor's court. But 29 Dawson : Pamphlet of Case of Rutgers v. Waddington. 16 JUDICIAL TENURE IN two years later we find popular sympathy enlisted in support of the judiciary in the exercise of judicial review. In the autumn of 1786 the now celebrated case of Trevett v. Weeden came before the superior court of Rhode Island for decision. During the pre- vious year the paper money party had gained control of the state government and pro- ceeded to enter upon a career of "rag money " enactments indicative of fraud, ig- norance and folly. Many merchants refused to accept the paper money as legal tender despite the fact that the legislature had de- clared a penalty of one hundred pounds for such refusal and denied the right of trial by jury in such cases. One of these merchants, John Weeden, was sued by a paper money fanatic by the name of Trevett when he de- clined to accept bills of credit as legal ten- der. 30 The defendant averred that the court could not take cognizance of the case ; that the act constituting three judges of the supreme court without a jury a special court for the trial of such cases was unconstitutional. The 3 Coxe : pp. 234-235. Carey : American Museum, v, pp. 36-38. THE UNITED STATES 17 counsel for the defense, James M. Varnum, in a forceful argument to the court asserted the independence of the judiciary. "The legislature, " he said, "have the uncontrol- lable power of making laws not repugnant to the constitution. The judges have the sole power of judging those laws and are bound to execute them; but cannot admit any act of the legislature as law which is against the constitution. ' m In giving their decision, however, the judges seem to have desired to avoid the main issue by declaring "that the information was not cognizable before them." But the judgment of the court must be con- sidered as having rejected the statute as void. 32 The legislature, mortified and chagrined, ordered the judges before them to explain their action and three of them appeared, the chief justice being prevented by illness from attending. After the judges had been heard in their own defense, an animated discussion arose among the members of the assembly as to whether they were satisfied with the rea- 31 Coxe: p. 242. Varnum: Pamphlet (in New York Free Library). 32 Coxe: p. 245. 18 JUDICIAL TENURE IN sons given by the judges in support of their decision, but the opponents of the judges pre- vailed and a motion was made to dismiss them from office. In the meantime a petition was received from the judges asking a hearing by counsel before a legal and proper tribunal, and the assembly agreed to hear James M. Varnum in their defense. Varnum argued that whether the judgment of the court was right or wrong, the judges could not be brought to answer for it except by due course of law. He pointed out that their tenure w r as not during the pleasure of the assembly but for a period of one year, and their removal could not be effected during that time except upon conviction in open court of some crime, neg- lect, or abuse of trust. The memorial and the address strongly impressed the legislature and they decided to ask the advice of the attorney general. Motion was made to inquire if the assembly, agreeably to law and the constitution, could remove or suspend from office the judges of the supreme judiciary court, without previous charge, due process of law, trial and convic- tion thereon. The opinion of Mr. Channing, THE UNITED STATES 19 the attorney general, and other lawyers be- ing unfavorable to such action by the assem- bly, the judges were not removed. Their judgment was condemned by a large majority of the legislature but no charge of criminality being made, the matter was dismissed. The judges were not, however, re-elected at the next election. 33 In North Carolina the doctrine of judicial review was asserted in 1787. On May 29, as the convention to amend the Articles of Con- federation was assembling in Philadelphia, the court of conference, the highest tribunal in North Carolina, handed down a decision in the case of Bayard v. Singleton. 34 The court seems to have made every effort to avoid a conflict with the legislature but in the end was obliged to set aside as invalid a "quieting act." 35 This was the first case in which a conflict arose between a clause in a written consti- tution and an act of a legislature. The judges in the case were denounced as usurpers of as Chandler: Criminal Trials, ii, p. 336. s* Maryland Gazette, July 3, 1787. 35 1 Martin 42. The act in question was designed to secure in their possession all persons who had purchased lands sold by the commissioners of forfeited estates. 20 JUDICIAL TENURE IN power, Richard Dobbs Spaight, a member of the federal convention, declaring that "the State was subject to three individuals, who united in their own persons the legislative and judicial power, which no monarch in Eng- land enjoys. . . ," 36 He was answered by James Iredell who insisted that : An act inconsistent with the constitution was void; and that the judges, consistently with their duties, could not carry it into effect. The con- stitution appears to me to be a fundamental law, limiting the powers of the legislature, and with which every exercise of those powers must, neces- sarily, be compared. Without an express consti- tution the powers of the legislature would un- doubtedly have been absolute, and any act passed not inconsistent with natural justice (for that curb is avowed by the judges even in England), would have been binding on the people. 37 As a result of the exercise of the doctrine of judicial review the courts came to occupy a far more independent position than they had hitherto enjoyed. They now had a weapon upon which they could rely, enabling them to define the functions to be ascribed to 3Coxe: p. 386. 37 McRee : Life of James Iredell, ii, p. 172. THE UNITED STATES 21 each department of government. Moreover, in the exercise of this new-found power they had gained popular support. 38 Gouverneur Morris in 1785 declared that ' l such power in judges is dangerous ; but unless it somewhere exists, the time spent in framing a bill of rights and form of government was merely thrown away." 39 In the case of the North Carolina judges "charges were brought against them in the legislature, but they were eventually sustained by public opinion. " 40 The Ehode Island judges, despite the positive assurances that the next election would see them replaced by others more favorable to the party in control of the legislature, stood firm against the paper money enactments. The court was moved in one case by way of experiment to cause the bills to be counted, ss Kespecting conditions in New Hampshire in 1786, a letter of William Plumer declares: "The aspect of public affairs in this state is gloomy. Money is scarce; business is dull, and our feeble government is unhinged. Yet, even in these degenerate days, our courts of law are firm, and dare to be honest. If our elective government is to be long supported it will owe its existence merely to the wisdom and independence of the courts. ' ' Plumer : Life of William Plumer, p. 166. 39 Sparks : Life of Morris, iii, p. 438. *oCoxe: p. 252. 22 JUDICIAL TENURE IN and to direct the clerk to record the tender. After due consideration of this motion, the court determined that they had nothing to do with paper bills; and the chief justice took the handkerchief containing them from the table and returned it to the owner, saying to him: "The court have determined that we have nothing to do with your money. ' m IV The federal convention was fully cognizant of the need for the establishment of a national judiciary which should be clothed with such power as would enable it to maintain an in- dependent position as one of the great de- partments of government. Its members were ready to define sharply the province of each department in the new government and to provide such checks and balances as would prevent such encroachments of the legisla- ture as prevailed in the states. Eandolph in presenting his ninth resolution on May 29, 1787, remarked that i ' our chief danger arises from the democratic parts of our constitu- tions. It is a maxim which I hold incontro- vertible that the powers of government ex- 41 Virginia Independent Chronicle, May 9, 1787. THE UNITED STATES 23 ercised by the people swallow up the other branches. None of the constitutions have provided sufficient checks against the democ- racy/ 742 The plan suggested by Randolph called for the establishment of one or more supreme tribunals and of inferior tribunals to be chosen by the national legislature. The judges were to hold their commissions during good behavior and were to receive a fixed compensation which should be neither in- creased nor diminished during their term of service. 43 The New Jersey or " small state " plan submitted on June 15 differed from that of Randolph in that but one supreme tribunal to be chosen by the executive was provided. 44 The separation of the judicial from the legislative power was equally desired with the independence of the courts. Many of the members of the convention wished to join the judges in the making of laws and to that end proposed to associate them with the execu- tive in a Council of Revision to pass upon acts of the national legislature. The friends 42 Farrand : Records of the Federal Convention, i, p. 26. 43 Ibid., p. 21. 4* Ibid., ii, p. 74. 24 JUDICIAL TENURE IN of this proposition urged that it would en- able the judiciary to defend itself against the encroachments of the legislature, would in- spire the executive with additional confidence and firmness, and would be useful to the legis- lature by the valuable assistance it would give in preserving a consistency and techni- cal propriety in all laws. 45 But the provision for a Council of Eevision was rejected because its opponents thought that the power of making ought to be kept separate from that of expounding the laws. Mercer declared that "it is an axiom that the judiciary ought to be separate from the legis- lative, but equally so that it ought to be in- dependent of that department." 46 Charles Pinckney thought that the interference of the judges in legislative business would involve them in parties and give a previous tincture to their opinions, while Eutledge insisted that ' ' the judges ought never to give their opinion on a law until it comes before them. ' m The independence of the judicial depart- ment against encroachments by the legisla- 45Farrand: ii, p. 74. 46 Ibid., ii, p. 298. 47 Ibid., ii, p. 80. THE UNITED STATES 25 ture was felt to be amply protected by the power of judicial review vested in the courts. That the f ramers of the Constitution intended that the courts of the United States should have the power to review legislative enact- ments setting aside such as might be in con- flict with the Constitution has been substan- tially proved by recent investigations. 48 The members of the convention were fully informed as to the success of the doctrine of judicial review in the various state courts where it had been set forth. On June 4, Gerry pointed out that "in some states the judges had actually set aside laws as being against the constitution. This was done, too, with general approbation. ' ' 49 At this time he must have been in possession of informa- tion regarding all the cases mentioned above. At the same time he doubted whether in the formation of a Council of Revision "the judiciary ought to form a part of it, as they will have a sufficient check against encroach- ments on their own department by their exposition of the laws which involves a power 48 Beard: Supreme Court and the Constitution. E. S. Corwin: Michigan Law Review, ix, pp. 102, 283. 49 Farrand : i, p. 97. 26 JUDICIAL TENURE IN of deciding on their constitutionality. " 50 In this view he was supported by Luther Martin, who added that "as to the constitutionality of laws, that point will come before the judges in their proper official character. In this character they have a negative on the laws." 51 Those who desired the establishment of the Council of Revision were entirely in ac- cord with its opponents in the view that the courts might pass upon the constitutionality of acts of the legislature. But Wilson held that this power of the judges did not go far enough. "Laws/' he said, "may be unjust, may be unwise, may be dangerous, may be destructive, and yet not be so unconstitu- tional as to justify the judges in refusing to give them effect. ' ' 52 Nevertheless despite the argument of Madison that the proposition would not be "any violation of the maxim which requires that the great departments of power be kept separate and distinct, " the proposed Council of Revision was defeated and the revision of unconstitutional legisla- tion left to the discretion of the judiciary. 53 so Farrand: i, p. 97. si Ibid., ii, p. 26. 52 Ibid., ii, p. 73. 53 Ibid., ii, p. 76. THE UNITED STATES 27 But while the intention of the convention with respect to the judicial review of acts of Congress was not followed by specific consti- tutional provisions, because such power was thought to flow from fundamental principles, the same power with respect to State legis- lation which might conflict with the Consti- tution was guaranteed by a particular article in the new draft of government. In the origi- nal plan proposed by Kandolph was an article giving the national legislature power "to negative all laws passed by the several states contravening the articles of union. " 54 This provision was accepted until it was chal- lenged on June 20 by John Lansing who said : "It is proposed that the general legislature shall have a negative on laws of the states. Is it conceivable that there will be leisure for such a task! There will, on the most mod- erate calculation, be as many acts sent up from the states as there are days in the year. Will the members of the general legislature be competent judges f Will a gentleman from Georgia be a judge of the expediency of a law which is to operate in New Hampshire? 54Farrand: i, p. 21. 28 JUDICIAL TENURE IN Such a negative would be more injurious than that of Great Britain heretofore was." 55 The question of expediency being raised, a host of objections to the proposition were brought forward. Sherman "thought it un- necessary, as the courts would not consider as valid any law contravening the authority of the union, and which the legislature would wish to be negatived. ' >56 Gouverneur Morris "was more and more opposed to the nega- tive, ' ' maintaining that i i a law that ought to be negatived would be set aside in the judi- ciary department. " 57 But Madison warned them that "confidence cannot be put in the State tribunals as guardians of the national authority and interests." 58 A happy solution of the difficulty was reached when Luther Martin proposed "that the legislative acts of the United States . . . shall be the supreme law of the respective States . . . and that the judiciaries of the several States shall be bound thereby in their decisions, anything in ss Farrand : i, p. 337. se Ibid., ii, p. 27. 57 Ibid., ii, p. 28. 58 ibid., ii. p. 27. THE UNITED STATES 29 the respective laws of the individual States to the contrary notwithstanding." 59 That the independence of the judges might be secured, the superiority of commissions during good behavior was never doubted in the course of the convention. Towards the close of the session, on August 27, Dickinson moved an amendment to provide that judges might be removed by the Executive on application by the Senate and the House of Repre- sentatives. Gouverneur Morris thought it a con- tradiction in terms to say that the judges should hold office during good behavior and yet be remov- able without trial. Besides it was fundamentally wrong to subject judges to so arbitrary an au- thority. Mr. Sherman saw no contradiction or impropriety if this were made a part of the con- stitutional regulation of the judiciary establish- ment. He observed a like provision was contained in the British statutes. Mr. Rutledge : If the Supreme Court is to judge between the United States and particular states, this alone is an insuperable objection to the motion. Mr. Wilson considered such a provision in the British constitution as less dangerous than here, the House of Lords and the House of Commons being less likely to concur on the same occasions. 59Farrand: ii, p. 29. 30 JUDICIAL TENURE IN Chief Justice Holt, he remarked, had successively offended by his independent conduct, both Houses of Parliament. Had this happened at the same time he would have been ousted. The judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our government. Mr. Randolph op- posed the motion as weakening too much the independence of the judges. 60 On Dickinson's motion being put, only one State voted in the affirmative. Hamilton ad- mits that the want of a provision for the re- moval of federal judges on address was the subject of complaint. 61 But the records show that the preponderant opinion of the mem- bers of the convention was that such a pro- vision would be inconsistent with the inde- pendence they deemed necessary to the judi- cial department. To such lengths was the demand for an independent judiciary carried that Madison objected to permitting an increase in salaries of the judges during their term of service on the ground that "whenever an increase is wished by the judges, or may be in agitation ooFarrand: ii, pp. 423, 428. 6i Federalist, Ixxix. THE UNITED STATES 31 by the legislature, an undue complaisance in the former may be felt towards the latter. ' ' 62 But this objection was overruled because it was equally clear that if there was no power to increase their pay according to the increase of business during the life of the judges, it might happen that there would be such an accumulation of business as would reduce the pay to a most trivial consideration. 63 Debate on Kandolph's plan for a federal judiciary centered on that part of the ninth resolution vesting the choice of judges in the national legislature. The opposition in com- mittee of the whole was led by James Wilson who advocated an appointment by the execu- tive. To this Kutledge refused to assent, claiming that such a method savored too much of monarchy. Uncertainty as to the real thoughts of the convention on this point was only too evident and Madison, feeling the need for more mature reflection, threw out the suggestion that this power be vested in the Senate and moved a postponement. 64 When the subject was again discussed in eaFarrand: ii, pp. 44-45. cs Elliot: Debates, iii, p. 517. o4Farrand: i, p. 320-121. 32 JUDICIAL TENURE IN committee, Charles Pinckney and Roger Sherman supported Rutledge in advocating an appointment by the national legislature. Madison objected that many of the members would be incompetent judges of the qualifica- tions necessary for judicial office and pro- posed that "the appointment should be made by the Senate which, as a less numerous and more select body, would be more competent judges, but which was sufficiently numerous to justify confidence in them." 65 The matter was resumed on July 18, when Mr. Gorham, with the provisions of the con- stitution of Massachusetts in mind, rose in convention and proposed that the judges be appointed by the executive, by and with the advice and consent of the Senate. The de- bate was somewhat extended and showed a marked preference on the part of the leaders for an appointment by the Senate alone. Yet it was equally evident that this prefer- ence was dictated by the fact that the Senate was to be small in numbers. Gouverneur Morris and James Wilson continued their opposition to an appointment by the second branch and it was not until quite late in the 65Farrand: i, p. 232. THE UNITED STATES 33 session that the convention agreed to admit the executive as a participant in the exercise of this power and the present provision was drawn up. 66 Some like Madison asserted that the union of the legislative and executive de- partments in the appointing power was ef- fected only in order that the President might be guided by the advice of the Senate. 67 Others saw in the combination a restraint upon the executive and a further means of preventing him from becoming absolute. 68 Thus far could the convention proceed with- out serious dissension in the establishment of a national judiciary. But they had secured merely the independence of the judges and a distinction between judicial and legislative functions. Wilson noted on the margin of his committee report that "the judicial should be commensurate to the legislative and ex- ecutive authority. ' ' 69 To erect the judiciary as a co-ordinate department of government necessitated the consideration of numerous clauses respecting jurisdiction which are be- yond the scope of this inquiry. ee Farrand : ii, p. 589. 67 Ibid., iii, p. 357. 68 Ibid., iii, p. 358. 69 Ibid., ii, p. 237. 34 JUDICIAL TENURE IN In one feature of their plan, however, the friends of a federal judiciary were defeated, and from this has sprung the claim of Con- gress to control within the judicial power. This was the failure to accept that part of the ninth resolution providing for the estab- lishment of inferior courts. Led by Rutledge, the advocates of States' rights made a vigorous assault from the first upon the proposition to create inferior courts. Rutledge argued that: The State tribunals might and ought to be left in all cases to decide in the first instance, the right of appeal to the supreme national tribunal being sufficient to secure the national rights and uni- formity of judgments. He considered that it was making unnecessary encroachments on the juris- diction of the States, and creating unnecessary obstacles to their adoption of the system. 70 He was supported by Sherman who dwelt upon the expensiveness of having a new set of courts when the existing State courts would answer the same purpose and a motion to strike out "inferior tribunals " passed by a vote of five to four. James Wilson and Madison at once pro- 70 Farrand: i, p. 224. THE UNITED STATES 35 posed "that the national legislature be em- powered to institute inferior tribunals, " ob- serving that there was a difference between establishing such tribunals absolutely and leaving their establishment to the discretion of the legislature. But Pierce Butler was strenuous in his opposition declaring: The people will not bear such innovations. The States, he said, will revolt at such encroachments. Supposing such establishment to be useful we must not venture on it. We must follow the example of Solon who gave the Athenians not the best government he could devise but the best they would receive. 71 Luther Martin was of the same opinion, arguing that the inferior courts would create jealousies and oppositions in the State tri- bunals, with the jurisdiction of which they would interfere. 72 Gorham pointed out, how- ever, that there were in the States already federal courts with jurisdiction for the trial of piracies committed on the high seas and that no complaints had been made either by the States or the courts of the States. Sher- man suggested that the power be given the TiFarrand: i, p. 325. 2 Ibid., ii, p. 46. 36 JUDICIAL TENURE IN legislature to establish inferior courts but thought that the State tribunals should be made use of whenever it could be done with safety to the general interest and the ques- tion was thereupon agreed to nem. con. The provision as reported by the committee of detail read "such inferior courts as the Congress may from time to time, when neces- sary, ordain and establish." Again the friends of States' rights protested and the clause "when necessary" was omitted, leav- ing the creation of inferior courts entirely at the discretion of the national legislature. 73 In the opinion of the writers of the Fed- eralist the provisions for the establishment of a federal judiciary merited the greatest praise. Hamilton considered the "judiciary beyond comparison the weakest of the three departments of power" and that "liberty could have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other depart- ments." He therefore thought the tenure during good behavior and the fixed compen- "Farrand: ii, p. 172. THE UNITED STATES 37 sation guaranteed the judges to be necessary in order to guard the judiciary against the encroachments and oppressions of the legis- lative body. The doctrine of judicial review he maintains as a logical inference from the very structure of the Constitution. He points out: There is no position that depends upon clearer principles, than that every act of a delegated au- thority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. If it be said that the legislative body are them- selves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presump- tion, where it is not to be collected from any par- ticular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. 38 JUDICIAL TENURE IN Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both ; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in their Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. 74 The distinction between legislative and judicial functions received confirmation at the very outset of the new government in the debate which took place in the first Congress on the propriety of vesting a power of re- moval in the hands of the President. There Madison claimed that the meaning of the Constitution might as well be ascertained by the legislative as by the judicial authority. 75 But this view was not accepted by Congress, the predominant opinion being expressed by Gerry when he declared : The judges are the expositors of the Constitution and the acts of Congress. Our exposition, there- fore, would be subject to their revisal. The ju- diciary may disagree with us and undo what all 74 Federalist, Ixxviii. 75 Elliot: iv, pp. 382-383, 399. THE UNITED STATES 39 our efforts have labored to accomplish. A law is a nullity unless it can be carried into execution: in this case our law will be suspended. Hence all construction .of the meaning of the Constitution is dangerous or unnatural, and therefore ought to be avoided. This is our doctrine, that no power of this kind ought to be exercised by the legislature. 76 The federal courts were not long in assert- ing their powers under the new government, becoming involved in a controversy with the legislature in 1792. On March 23 of that year, Congress passed an act "to provide for the settlement of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions. " By this act the circuit courts were bidden to receive and sit in judg- ment upon pension applications. Their de- cisions were to be referred to the secretary of war and might be subjected to revision by the legislature. 77 The judges in a very respectful letter to the President protested that the duties as- signed them were not judicial and that, while it was their duty to receive with all possible 76 Elliot: iv, p. 403. " U. 8. Statutes at Large, i, pp. 243-245. 40 JUDICIAL TENURE IN respect every act of the legislature, they could not execute this act. 78 The circuit judges for the New York district agreed to carry out the wishes of Congress in the capacity of com- missioners, and wrote the President to this effect. 79 The judges for the North Carolina district agreed to adjudicate the claims in a similar manner, provided such procedure were constitutional. 80 The circuit court for the Pennsylvania dis- trict consisting of Justices Wilson, Blair, and Peters were much more resolute in refusing to decide the pension claims. They made no protest until the question was raised before them by the presentation of a claim. On April 11, 1792, William Hayburn presented a petition to the judges asking to be placed upon the pension list. After due considera- tion the court refused to proceed in the mat- ter and gave it no further attention. Hay- burn then sent a memorial to Congress stat- ing that the circuit court had refused to take cognizance of his case and begging them for 78 American State Papers, Misc., i, p. 52. 79 Ibid., p. 49. so Ibid., p. 52. THE UNITED STATES 41 relief. 81 The judges thereupon sent a com- munication to the President objecting that the business was not of a judicial nature and pointing out that since the act subjected their decision to a revision by the legislature and by the secretary of war it was radically in- consistent with the independence of the judi- cial power which is vested in the courts. They declared in closing: " These, sir, are the reasons for our conduct. Be assured, that, though it became necessary, it was far from being pleasant. To be obliged to act con- trary either to obvious directions of Con- gress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us which we hope never to experience again. ' * The novelty of the decision of the circuit court is said to have aroused much discussion and no little excitement. Some of the radi- cals advocated measures against the judges though no motion was made in Congress, towards their enactment. 83 Hayburn peti- tioned the House of Representatives com- 81 Annals, 2d Cong., pp. 556-557. 82 American State Papers, Misc., i, p. 51. 83 Infra, p. 108. 42 JUDICIAL TENURE IN plaining against the action of the court and begging them to take cognizance of his case. 84 A writ of mandamus was then sought from the supreme court to compel the inferior court to comply with the act of Congress. This the court held over for advisement until the next term, but no decision was rendered as the legislature in the meantime provided in another way for the relief of the peti- tioners. 85 This action of Congress marks the first acceptance of an adjudication by the courts upon the validity of a legislative enactment. The refusal of the judges to proceed upon the petition of Hayburn is said to have produced a variety of opinions on the part of members of Congress with respect to the measures to be taken on the occasion. Mr. Murray urged the necessity of passing a law to point out some regular mode in which the judges of the courts of the United States should give official notice of their refusal to act under any law of Congress on the ground of unconstitu- tionally, but this he did not put in the form s* Annals, 2d Cong., p. 556. ss Hayburn 's Case, 2 Dallas 409. THE UNITED STATES 43 of a motion. 86 The recognition by Congress of the decision of the circuit court and the subsequent repeal of the act of 1792 gave a fortunate settlement to the dispute. The next year the supreme court decided that the judges who refused to adjudicate under the act of 1792 could not legally do so in the capacity of commissioners. 87 The judges took further steps in 1793 to strengthen their position and to assert their independence of the other branches of gov- ernment. During the controversy with M. Genet, the French minister, as to his right to refit a captured English merchantman as a privateer at an American port, and then send her out for a cruise, the President asked the justices a series of questions compre- hending all the subjects of difference as to the proper exposition of the provisions of our treaties with France under which her minister made claim. They replied that they deemed it improper to enter the field of politics by declaring their opinions on ques- tions not growing out of some case actually before them. No further request of this kind 86 Annals, 2d Cong., i, p. 557. 87 U. S. v. Yale Todd, 13 Howard 52 (note). 44 JUDICIAL TENURE IN has since been made by any of the political departments to a court of the United States, except such as have been addressed to the court of claims. 88 At the same time the progress of the ju- diciary in maintaining their power does not seem to have been impressive. On August 5, 1792, Edmund Eandolph wrote "Washington: It is much to be regretted that the judiciary in spite of their apparent firmness in annulling the pension law, are not, what sometime hence they will be, a resource against the infractions of the Constitution on the one hand, and a steady asser- tion of federal rights on the other. So crude is our judiciary system, so jealous are our State judges of their authority, so ambiguous is the language of the Constitution that the most probable quarter from which an alarming discontent may proceed is the rivalship of these two orders of judges. 89 John Jay resigned from the supreme court after a few years of service as chief justice feeling "perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essen- tial to its affording due support to the na- 88 Baldwin : The American Judiciary, p. 33. 89 Sparks : Life and Writings of Washington, x, p. 513. THE UNITED STATES 45 tional government, nor acquire the public confidence and respect which, as the last re- sort of the justice of the nation, it should possess." 90 While these opinions are from men who had expected a great deal from the federal judiciary, it is apparent that since down to the decision in Marbury v. Madison in 1803 only six cases had come before the supreme court involving questions of consti- tutional law, the people were still strongly attached to their State courts. But about the close of Washington's second administration the judiciary became involved in partisan politics and began to assert their power with increased vigor. Anti-federalist and States' rights sentiment formed the basis for a division into political parties and the consequent growth of party spirit, which was regarded as destructive to constitutional gov- ernment, seemed to strike at the root of the old order. ' ' The very idea of the power and the right of the people to establish govern- ment, " said Washington in his farewell ad- dress, "presupposes the duty of every indi- vidual to obey the established government. All obstructions to the execution of the laws, 00 Jay : Correspondence, iv, p. 284. 46 JUDICIAL TENURE IN all combinations and associations under what- ever plausible character, with the real design to direct, control, counteract, or awe the regu- lar deliberations of the constituted authori- ties, are destructive of this fundamental prin- ciple and of fatal tendency. " As one writer has pointed out, "the be- havior of the Federalist judges during Adams' administration would seem to be an amazing exhibition of headlong and reckless partisanship, if not viewed in the light of their ideas of constitutional privilege and duty. They were trying to uphold the tradi- tional ideal of government. They let no opportunity pass of instructing the people how monstrous and horrid a thing it was for them to rebel against magisterial control and disturb the conditional balance of power among the departments of government by seditious attempts to interfere in the admin- istration of public affairs. The charges to a grand jury at times became a political ha- rangue. In western Pennsylvania, Judge Addison, of the State judiciary, delivered a series of charges on Jealousy of the Admin- istration and Government, the Horrors of Eevolution, etc., pointing out to the people THE UNITED STATES 47 what terrible things were likely to happen if they were not dutiful in their behavior towards constituted authority. ' m Ellsworth, who had succeeded Jay as chief justice of the supreme court, expressed great admiration for these addresses and wrote Secretary Pickering: "I thank you for sending me the charge of that painstaking Judge Addison, who seems to be a light shining in darkness, though the darkness comprehends him not." A little later Ellsworth himself denounced Jefferson and the whole Eepublican party as "apostles of atheism and anarchy, bloodshed and plunder. " 83 In the elections of 1800 the Federalists were defeated in both the legislative and ex- ecutive departments of the national govern- ment but to retain their control of the judi- ciary they determined to fill the courts with partisan appointees. To that end an act was passed on February 13, 1801, altering the judiciary system by the reduction of the su- preme court, after a vacancy should occur, to five justices, the creation of sixteen new 91 Ford: Kise and Growth of American Politics, p. 112. 92 Flanders : Lives of the Chief Justices, ii, p. 193. 3 Ford: p. 113. 48 JUDICIAL TENURE IN judgeships for the establishment of a series of circuit courts, and the abolition of the dis- trict courts for Tennessee and Kentucky, the business of which was transferred to the new circuit courts. 94 By this arrangement the en- tire judiciary system remained in the hands of the Federalists when the Jefferson admin- istration came into power. Republican hostility against the judiciary was at once aroused and the question of judi- cial tenure came to the front as a vital issue of the day. Jefferson had criticised the ju- diciary when, in the enforcement of the sedi- tion act, they had punished Matthew Lyon for his attacks upon the Adams administra- tion. At that time he wrote: "I know not which mortifies me most, that I should have to write what I think, or that my country bear such a state of things. Yet Lyon's judges, and a jury of all nations are objects of rational fear. ' m He now became an active participant in a movement which had as its object the destruction of the constitutional guarantees which surrounded the judiciary and the removal from office of all those judges 94 Annals, 6th Cong., p. 1534. 95 Jefferson MSS., Nov. 26, 1798. THE UNITED STATES 49 who differed from him and his party in politics. Within a year the Republicans had secured the repeal of the judiciary act of 1801, legislating out of office all the judges created by that act. Beginning in Pennsyl- vania in the impeachment and removal of Judge Addison and the attempted impeach- ment and removal of the entire supreme court of the State, a movement spread to secure the removal by the same means of the Federalist judges in the courts of the United States. Although successful in securing the removal of Judge Pickering of the district court for New Hampshire, the Republicans were decisively defeated in their career of " judge breaking " in their failure to convict Associate Justice Chase of the supreme court of the United States and the movement came to an abrupt close. The federal judiciary emerged from these attacks secure in the independence of their functions and the tenure of their offices. As a result of the decision in Marbury v. Madi- son and the acceptance of the doctrine of ju- dicial review as part of the constitutional law of the various States it became a settled prin- ciple that the courts not the legislature should 50 JUDICIAL TENURE IN draw the line separating the functions of the three departments of government. And in the reaction following the acquittal of Jus- tice Chase it became apparent that never again would Congress begin a systematic attack upon the judges from partisan motives. CHAPTER II CONGRESS AND THE INFERIOR COURTS The discretionary power vested in Con- gress "to ordain and establish inferior courts of the United States " became the subject of debate in the first Congress and the extent of this power has been a controverted point since 1801. The establishment of inferior federal courts was strenuously opposed by the States' rights element who thought that the State courts ought to be left to decide all cases in the first instance. 1 In the Senate, Pierce Butler made a "flaming speech " against the judiciary act of 1789 and Richard Henry Lee sought to have the jurisdiction of the federal courts limited to admiralty and maritime cases. 2 But the act was carried by the majority view that "if we have a govern- ment pervading the Union, we must have a judicial power of similar magnitude ; we must 1 Annals, 1st Cong., p. 827. 2 Maclay : Journal, pp. 74, 85. 52 JUDICIAL TENURE IN establish courts in different parts of the Union. " 3 Likewise the independence of the judges was a principle at this time well understood by members of Congress to extend to the in- ferior courts. Mr. Smith, of South Carolina, pointed out that it would not be easy to alter the system when once established. "The judges," he said, "are to hold their commis- sions during good behavior, and after they are appointed they are removable only by impeachment; in consequence the system must be a permanent one. ' '* Madison rested his objection to vesting the State courts with jurisdiction over federal cases on the ground that, in many States, the judges were "so dependent on the State legislatures that to make the Federal laws dependent on them would throw us back into all the embarrass- ments that characterized our former situa- tion. He did not see how it could be made compatible with the Constitution, or safe to the Federal interests, to make a transfer of the Federal jurisdiction to the State courts." 5 3 Annals, 1st Cong., p. 860. * Ibid., p. 828. s Ibid., p. 813. THE UNITED STATES 53 Although the opponents of the inferior federal courts were defeated, the slow devel- opment of the federal judiciary during the first decade of its existence indicated a marked distrust on the part of the vast body of the people toward this new institution. The first United States circuit courts were attended with little business and the first two sessions of the supreme court saw presented but three cases, and, either for want of busi- ness or of a quorum, the court adjourned from day to day. When the courts did begin to exercise authority in the enforcement of the alien and sedition acts, States' rights senti- ment blazed forth in the Virginia and Ken- tucky resolutions of 1798 and 1799 and the federal judiciary again became the target of attack. I Congress had made no move to interfere with the federal judiciary, and the first change in the system as organized by the act of 1789 came in the act of 1801, which placed in office a number of Federalist judges after that party had been defeated in the other de- partments of government. The intent of the 54 JUDICIAL TENURE IN framers of the judiciary act of 1801 has been to the present day a matter of some doubt. On the one hand it has been shown that al- terations in the judiciary system of the United States had long been agitated before the failure of the Federalist party in the elections of 1800. 6 Soon after the establish- ment of federal courts in 1789 relief had been sought by the justices of the supreme court from the arduous duties necessitated in rid- ing the circuits. 7 In 1799 a bill designed to establish a system of circuit courts was re- ported upon which action was postponed. But this later became the basis for the act of 1801. 8 It has, therefore, been contended that, quite apart from the political advantage given the Federalists by the passage of the act of 1801, such changes in the judiciary system were warranted by necessity. At the same time it is equally clear that the amount of business before the courts of the United States, although it had been ex- cessive, had begun to decline. No further prosecutions were to be expected under the See Farrand : American Historical Eeview, v, p. 682. 7 American State Papers, Misc., i, pp. 51-52. s Annals, 7th Cong., 1st Sess., p. 672. THE UNITED STATES 55 alien and sedition acts, and a decrease in the number of suits before the federal courts in- volving other questions was observed even before the accession of Jefferson to the presi- dency. 9 Although the expense involved in the creation of the sixteen additional judgeships was grossly overestimated at the time, 10 it cannot be doubted that the Republicans with their avowed policy of retrenchment had solid ground for feeling that these changes in the judiciary burdened the nation with an un- necessary expenditure. 11 But what aroused the bitterest hostility among the Eepublicans was the partisan character of the appointments made by Presi- dent Adams to the newly created offices. Nominated and confirmed during the last hours of his administration, every officer was a staunch Federalist and thoroughly wanting in sympathy with the new party which was so soon to come into power. A constitutional prohibition prevented the President from re- 9 American State Papers, Misc., i, p. 319 et seq. 10 In the debates on the repeal of the act of 1801 the Republicans claimed the expense of the new courts to be $137,000. Professor Farrand estimates the expense at not more than $50,000. American Historical Review, v, p. 685. 11 Annals, 7th Cong., 1st Sess., p. 26. 56 JUDICIAL TENURE IN warding his friends in Congress with places upon the new circuit courts. 12 But places were found for Richard Bassett, who as a presidential elector in 1797 had voted for Adams, and for Jeremiah Smith, who had dis- tinguished himself during the two adminis- trations of Washington by his unwavering loyalty in the support of all Federalist meas- ures before Congress. Charles Lee, Adams' attorney general, and Oliver Wolcott, who succeeded Hamilton as secretary of the treas- ury and won the undying enmity of the Re- publicans by his conduct of that office, were similarly rewarded. Jared Ingersoll and Philip Barton Key, ardent Federalist parti- sans, were also commissioned. 13 Other appointments to the circuit courts were for the most part made by promotion from the district courts. To the vacancies created in these courts President Adams fol- lowed the same policy of appointing loyal Federalists. Elijah Paine and Ray Greene, members of the United States Senate, and William H. Hill and Jacob Read, members of the House of Representatives, left Con- 12 Art. I, Sec. 4. 13 Executive Journal (1789-1805), pp. 381, 383. THE UNITED STATES 57 gress to receive places on the district courts. Harrison Gray Otis and John Wilkes Kit- tera, able advocates of Federalist policies in the House of Representatives, departed at the same time, carrying with them commis- sions to United States district attorney- ships. 14 It is not surprising, therefore, that factional feeling among the Eepublicans ran high and severe criticism was meted out to the courts. But whether the "act to provide for the more convenient organization of the courts of the United States ' ' was the result of a par- tisan attempt of the Federalists to retain a hold on the national government after they had been defeated in the elections of 1800 may or may not be true. The fact is that by a large group the changes were believed to be of this character. A letter of Stevens Thom- son Mason, a close friend of Thomas Jeffer- son, declares that "a new judiciary system has been adopted with a view to make per- manent provision for such of the Federalists and Tories as cannot hope to continue in office under the new administration." 15 "Executive Journal (1 789-] 805), pp. 384-385. IB Breckinridge MSS., Feb. (19), 1801. The collection 58 JUDICIAL TENURE IN II The Republican hostility to the judiciary was greatly increased and, led by the extreme States' rights advocates, a concerted action was planned by the Jefferson administration to undo the work of their predecessors. How this was to be done occasioned much concern, since the independence of the judiciary was a principle recognized by Eepublicans and Federalists alike. The question was raised by William Branch Giles in March, 1801, in a letter to Jefferson when he suggested that ' ' a pretty general purgation of office has been one of the benefits expected by the new order of things. ' ' But the difficulties in the way of any sweeping changes in the judiciary he recognized by the admission that "the only check upon the judiciary system as it is now organized and filled is the removal of all its executive officers indiscriminately. ' ne Jeffer- son seems to have been satisfied that this was as far as they could go without exceeding the of the Breckinridge family -papers in the Library of Con- gress has not yet been opened to the public. I am indebted to Miss Sophonisba Breckinridge for permission to make use of these unusually valuable MSS. i Jefferson MSS., March 16, 1801. THE UNITED STATES 59 limits of their authority, and replied to Giles that "the courts being so decidedly Federal and irremovable, it is believed that Republi- can attorneys and marshals, being the doors of entrance to the courts, are indispensably necessary to the Republican part of our fellow citizens, which is the main body of our people/' 17 But the removal of the executive officers of the courts was of little avail so long as the judges remained, and by June the actual in- vasion of the judiciary was suggested. Then Giles came to the conclusion that ' ' no remedy is competent to redress the evil but an abso- lute repeal of the whole judiciary system ter- minating the present offices and creating an entire new system, defining the common law doctrine, and restraining to the proper con- stitutional extent the jurisdiction of the courts. " 18 While the federal judiciary system was under discussion by the friends of the admin- istration at Washington, it also became the target of an assault in Kentucky. In that State the people had just completed the or- IT Jefferson MSS., March 23, 1801. is Ibid., June 1, 1801. 60 JUDICIAL TENURE IN ganization of a judiciary system and feared the interference of the new circuit courts with the jurisdiction of their State tribunals. Long before the message of President Jeffer- son in which he suggested that Congress give attention to the judiciary system, John Breckinridge had been the recipient of nu- merous letters from his constituents urging that he strive for the repeal of the act of 1801. One such writer declared: There is no act of the former Congress that in my opinion will work more subtle or certain mis- chief than that of extending their courts, as its tendency will be to disunite the people and to wean their affections for their State governments. In Kentucky it will operate more mischievously than anywhere else, by jeopardizing those principles upon which our courts have hitherto proceeded in settling their land controversies. I much hope this law will be repealed or so much altered that we may feel easy under it. With the other excres- cences of aristocratic legislation these additional judges may be left to graze in their own pastures. 19 To the support of the Eepublicans in their partisan attack on the Federalists in the ju- diciary came the States ' rights element. The is Breckinridge MSS., Nov. 21, 1801. THE UNITED STATES 61 controversy which had raged over the estab- lishment of inferior federal courts in the con- vention of 1787 and in the first Congress was reopened. Not only the repeal of the ob- noxious act of 1801 was demanded, but many wished to have the jurisdiction of the federal courts curtailed and the inferior courts abol- ished entirely. Senator Breckinridge was urged to "go farther and make such a change in the Constitution as to limit the jurisdiction of the Federal courts to courts of admiralty and cases arising under the Constitution. ' ' If this could not be done, he was asked to "have it done away with in the State of Ken- tucky." His constituents pointed out that Kentucky was so remote from the Atlantic and had interests so distinct from the eastern section of the country that the exercise of authority by the federal courts interfered materially with their welfare. 20 Breckinridge was not long in making up his mind to lead the movement for the repeal of the unpopular law. About the time the first message of President Jefferson was read in Congress he wrote to John Taylor of Caro- line asking his views on the judicial system, 20 Breckinridge MSS., Feb. 22, 1802. 62 JUDICIAL TENURE IN and requesting some suggestions as to how a revision might be brought about. In reply Taylor wrote a long academic argument which became the basis of the Eepublican attack in the debates in Congress on the repeal. He considered that the question possessed two phases: first, whether the office should con- tinue ; and second, whether the officer should continue after the office had been abolished as being unnecessary. As to the first, he said : Congress are empowered from time to time to ordain and establish inferior courts. The law for establishing the present inferior courts is a legis- lative instruction affirming that, under this clause, Congress may abolish as well as create these judi- cial offices; because it does expressly abolish the then existing courts for the purpose of making way for the present. 21 It is probable that this construction is correct, but it is equally pertinent to our object whether it is or not. If it is, then the present inferior courts may be abolished as constitutionally as the last ; if it is not, then the law for abolishing the former and establishing the present was unconstitutional, and being so, is undoubtedly repealable. Thus the 21 Although the act of 1801 abolished the district courts in Kentucky and Tennessee the judges were retained in the new circuit courts. THE UNITED STATES 63 only ground which the present inferior courts can take is that Congress may from time to time create, regulate, or abolish such courts as the public in- terest dictate, because such is the very tenure under which they exist. 22 The tenure of the judges whose courts had been abolished by the act of 1801 had not been abridged, but it would be little suited to the purposes of Breckinridge and Ms partisans if they, after abolishing the circuit courts, were obliged to create new courts for the six- teen judges whose offices had been destroyed. Taylor, therefore, in the second part of his argument, sought to point out a way by which the commissions might be destroyed as well as the offices. He said : The Constitution declares that the judge shall hold his office during good behavior. Could it mean that he should hold this office after it was abolished? Could it mean that his tenure should be limited by behaving well in an office which did not exist? It must either have intended these ab- surdities or admit of a construction which will avoid them. This construction obviously is that an officer should hold that which he might hold, namely an existing office, so long as he did that 22 Breckinridge MSS., Dec. 22, 1801. 64 JUDICIAL TENURE IN which he might do, namely his duty in that office ; and not that he should hold an office which did not exist or perform duties not sanctioned by law. If, therefore, Congress can abolish the courts, as they did by the last law, the officer dies with the office, unless you allow the Constitution to admit impos- sibilities as well as absurdities. Moreover the salary is to be paid during their continuance in office. This limitation of salary is perfectly clear and distinct. It literally excludes the idea of paying a salary when the officer is not in office; and it is undeniably certain that he cannot be in office when there is no office. There must have been some other mode by which the officer should cease to be in office than that of bad be- havior, because if this had not been the case the Constitution would have directed that the judges should hold their offices and salaries during their good behavior, instead of directing that they should hold their salaries during their continuance in office. This could only be an abolition of the office itself by which the salary would cease with the office although the judge might have conducted himself unexceptionably. This construction cer- tainly coincides with the public opinion and the principles of the Constitution. By neither is the idea tolerated of maintaining burthensome sine- cure offices to enrich unfruitful individuals. Nor is it incompatible with the good behavior THE UNITED STATES 65 tenure when its origin is considered. It was in- vented in England to counteract the influence of the crown over the judges. And we have rushed into the principle with such precipitancy, in imita- tion of this our general prototype, as to have out- stripped monarchists in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords and Commons, and ours by no similar or easy process. The tenure, however, is evidently bottomed on the idea of securing the honesty of judges while exercising the office, and not upon that of sustain- ing useless or pernicious offices for the sake of the judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of government which necessarily devolves upon it, and is beyond the foresight of a consti- tution because it depends upon variable circum- stances. And in England a regulation of the courts of justice was never supposed to be a viola- tion of the good behavior tenure. If this principle should disable Congress from erecting tribunals which temporary circumstances might require, without entailing them upon the society after these circumstances by ceasing had converted them into grievances, it would be used in a mode contem- plated neither in its original or duplicate. Whether courts are erected by a regard to the 66 JUDICIAL TENURE IN administration of justice or with the purpose of rewarding a meritorious faction, the legislature may certainly abolish them without infringing the Constitution whenever they are not required by the administration of justice, or the merit of the faction is exploded and their claim to reward disallowed. 23 Breckinridge, in moving the repeal of the act of 1801 on January 6, 1802, took the ground that the changes made in the ju- diciary were unnecessary and improper in that they had increased the number of federal judges at a time when the amount of business pending before the courts of the United States was steadily declining. Following the argu- ment of Taylor, and in many points using the identical words of the latter, lie strove to show the power of Congress to put down the addi- tional courts together with their judges. 24 He accepted the construction laid down by Taylor that the act of 1801 was "a legislative construction" of the power of Congress "from time to time, to ordain and establish inferior courts, " giving to Congress the power to abolish as well as to create inferior 23 Breckinridge MSS., Dec. 22, 1801. 24 Annals, 7th Cong., 1st Sess., p. 26. THE UNITED STATES 67 courts, because the two districts were abol- ished by the twenty-seventh section of that act. But independent of this legislative con- struction, he insisted that it would be a para- dox in legislation to say that the legislature in one Congress has a discretionary power to establish inferior courts and yet be restrained from abolishing them in a subsequent Con- gress of equal authority. With respect to the judges he was equally certain that they must cease to be in office when the repeal of the act was accomplished. The constitutional guarantees, he thought, protected them against removal by the ex- ecutive or diminution of their salaries by the legislature but never contemplated the pos- sibility of their surviving the destruction of their offices. This would be to create a group of "nondescripts" unacknowledged by either the letter or the spirit of the Constitution. 25 The Republicans at once assumed the ground that the inferior courts are the crea- tures of the legislature. "I observe, " said Stevens Thomson Mason, "a clear distinc- tion between the Supreme Court and the other courts. With regard to the institution of the 25 Annals, 7th Cong., 1st Sess., p. 29. 68 JUDICIAL TENURE IN Supreme Court the words of the Constitution are imperative; while with regard to the in- ferior courts they are discretionary. ' ' From the language of the Constitution he thought that no other view could be taken than that "the Legislature should have power, from time to time, to create, to annul, or to modify the courts as the public good might require, whenever a change of circumstances may suggest the propriety of a different organi- zation. " M The existence of certain constitutional guarantees protecting the judges he admitted, but thought they amounted to this: "That, unlike other officers appointed by the Presi- dent, judges shall not be removed by him; that their salaries shall not be diminished by the legislature ; and that while the legislature may continue any particular judicial estab- lishment under which a judge is appointed, he shall hold that appointment in defiance of both the other departments of government." Any other construction he thought would render the judges independent of the nation itself. 27 26 Annals, 7th Cong., 1st Sess., p. 60. 27 Ibid., p. 64. THE UNITED STATES 69 The control given the legislature over the inferior courts it was held undoubtedly vested in Congress a power of removal. Senator Stone went so far as to declare that not only could courts be abolished by the repeal of the legislative enactments creating them, but Congress might indeed remove a judge with- out discontinuing his office. This radical position did not find favor even among the Republicans and was repeatedly disavowed by other members of the party. But Senator Stone contended that although misbehavior is not an impeachable offense yet it is the ground upon which the judges are to be re- moved from office, wherefore ' ' the process of impeachment cannot be the only one by which judges may be removed from office, under, and according to the Constitution. " He thought it "to be a thing undeniable, that there resides somewhere in the government a power to declare what shall amount to mis- behavior in office by the judges, and to re- move them from office for the same, without impeachment. ' ' 28 But from the Federalist ranks Gouverneur Morris rose and denied that the people had 28 Annals, 7th Cong., 1st Sess., p. 72. 70 JUDICIAL TENURE IN vested all powers in the legislature. On the contrary, he said, they had "vested in the judges a check intended to be efficient a check of the first necessity, to prevent an in- vasion of the Constitution by unconstitutional laws a check which might prevent any fac- tion from intimidating or annihilating the tribunals themselves. " 29 He answered Mr. Stone by pointing out that in our law mis- behavior is not known but must be expressed by the term misdemeanor which is embraced within the constitutional provision. That Congress could assume any right from the deficiency of the Constitution in this respect he denied. 30 The argument of the Eepublicans that the act of 1801 was unconstitutional in abolishing the district courts of Kentucky and Tennes- see, Morris showed to be unsound. "If the law is unconstitutional/' he said, "why re- peal? In this case no repeal can be neces- sary; the law is in itself void; it is a mere dead letter. " 81 But the power to declare such an act invalid rests with the judiciary, 29 Annals, 7th Cong., 1st Sess., p. 38. so Ibid., p. 90. si Ibid., p. 81. THE UNITED STATES 71 and it was for this reason that Jonathan Mason urged the necessity for the independ- ence of the judges "because the duties which they have to perform call upon them to ex- pound not only the laws but the Constitution also ; in which is involved the power of check- ing the Legislature in case it should pass any laws in violation of the Constitution. For this reason it was important that the judges should be placed beyond the control of the Legislature. ' m Breckinridge, in alarm at the turn the de- bate was taking, made a complete denial of the power of the courts to review acts of the legislature. No such power, he insisted, was granted by the Constitution, and the legis- lature have an equal right of interpretation with the courts; therefore "the Legislature have the exclusive right to interpret the Con- stitution in what regards the law-making power, and the judges are bound to execute the laws they make." 33 Scarcely had he fin- ished when Gouverneur Morris was on his feet demanding to know 82 Annals, 7th Cong., 1st Sess., p. 32. 83 Ibid., p. 179. 72 JUDICIAL TENURE IN If gentlemen are prepared to establish one con- solidated government over this country? All the arguments they have used in this debate went to that conclusion. The power of the courts to decide upon the constitutionality of laws is derived from authority higher than the Constitution; it is de- rived from the constitution of man, from the nature of things, from the necessary progress of human affairs. But the last member up has told us that the legislature may decide exclusively on the Constitution, and that judges are bound to execute the laws which the legislature enact. If this doctrine be sustained, what possible mode is there to avoid the conclusion that the moment the legislature of the Union declare themselves su- preme, they become so? The sovereignty of America will no longer reside in the people, but in Congress, and the Constitution is whatever they choose to make it. If America should be brought under one con- solidated government, it could not continue to be a republic. If the States be destroyed, we must become the subjects of despotism. Are the gentle- men ready to prostrate that sovereignty at the feet of the general government ? 34 That these radical States' rights men had any intention of strengthening the national 34 Annals, 7th Cong., 1st Sess., pp. 180-181. THE UNITED STATES 73 government at the expense of the States could not for a moment be supposed. But the argument of Gouverneur Morris left them as the only alternative the bald admission that partisan motives alone formed the basis for their measure. The independence of the judiciary was wholly denied by Giles when the subject came up for debate in the House of Eepresenta- tives. He had been one of the first to urge the repeal as a means of ousting from the national government his political opponents, 35 and he now sought to show that The term independence of judges or of the judi- ciary department was not to be found in the Con- stitution but was a mere inference from some of the specified powers. The Constitution only de- clared 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 com- pletely satisfied provided one Supreme Court be established. He therefore felt the firmest convic- ss Supra, p. 59. 74 JUDICIAL TENURE IN tion that there was no constitutional impediment in the way of repealing the act in question. 36 But this view was not generally sustained by the other Republicans, and John Randolph sought to "rescue from misrepresentation " the position to which Giles had carried the debate. He agreed that "the Constitution is a limited grant of power, and that none of its general phrases are to be construed into an extension of that grant," and continued: 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 dis- placing 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. 37 On the other hand, in both the House and Senate the Federalists contended that the tenure of the judges * ' is not derived from the laws but from the Constitution," 38 and "that the moment the judge is appointed, the office is ingrafted in, and becomes a part of the 36 Annals, 7th Cong., 1st Sess., pp. 584-586, 602. 37 Ibid., p. 658. 38 Ibid., p. 163. THE UNITED STATES 75 Constitution, and cannot be taken away with- out impairing the Constitution itself. ' * 39 But they admitted a distinction between the office and the officer, and held that to abolish an office and to remove an officer were quite dis- tinct acts. As was pointed out by Mr. God- dard, The abolition of a court does not necessarily imply that a judge is put out of office, or the office itself discontinued. Congress by law may erect courts and create offices but justice cannot be administered in them until afterwards, by an act of the President, judges are appointed. But the legislature must do all that is done on this subject with an eye to the independence of the judges already in office. 40 Although the repeal was carried, the vote was along partisan lines and occasioned the Eepublicans much concern lest the supreme court should declare the act unconstitutional. Breckinridge, although he later denied the power of the courts to review acts of Con- gress, had at the beginning of the debate declared that "if the judges are entitled to their salaries under the Constitution, our re- 39 Annals, 7th Cong., 1st Sess., p. 541. 40 Ibid., p. 731. 76 JUDICIAL TENURE IN peal will not affect them; and they will, no doubt, resort to their proper remedy/' 41 Thereafter an appeal to the courts by the deposed judges had been in the minds of all. To prevent such action the next session of the supreme court was set for February, 1803, the August term being omitted in 1802. This was denounced by James A. Bayard, the leader of the Federalists in the House, as * * a patchwork designed to cover one object, the postponement of the next session of the Supreme Court ... to give the repealing act its full effect before the judges are al- lowed to assemble." 42 Denied a judicial review of the act depriv- ing them of their offices, the judges of the circuit courts forwarded a petition to Con- gress in which they represented "that the rights secured to them by the Constitution, as members of the judicial department, had been impaired," and asking that the case be submitted to judicial determination. The Senate declined to consider the petition, while a proposition to submit the matter to the courts for decision was defeated in the House. *i Annals, 7th Cong., 1st Sess., p. 30. 42 Hamilton MSS., Apr. 12, 1802. THE UNITED STATES 77 Here it was held that the right to abolish inferior courts rested with Congress and that the judges were entitled to compensation only for services rendered. 43 It is superfluous to point out that the im- portance of the repeal of the act of 1801 lay in the fact that the final determination of the right to abolish inferior courts and to de- prive the incumbents thereof of their com- missions fell to Congress. No opportunity being given the judiciary to interpret the Constitution with respect to this power, there was no means of challenging the validity of the measure in the way customary in our gov- ernment. Congress was, therefore, free to claim that a precedent had been set which should determine future action in dealing with the judiciary. Although the Republicans hailed with de- light the death of ' ' Poor Jude, ' ' as they called the act of 1801, and asserted the propriety of the means adopted to secure the repeal, Con- gress has not followed the precedent thus es- tablished. The repealing act, in so far as it deprived the judges of their commissions, has been condemned by the leading COmmen- 43 Annals, 7th Cong., 2d Sess., pp. 427-441. 78 JUDICIAL TENURE IN tators on the Constitution. Story declared that "the measure, if its constitutionality can be successfully vindicated, prostrates in the dust the independence of all inferior judges, both as to the tenure of their offices and their compensation for services, and leaves the Constitution a miserable and vain delu- sion. " 44 But Congress has in every subse- quent alteration of the federal judiciary re- spected the tenure of the judges of the courts abolished. Nor has any attempt been made by Congress to deprive judges of the inferior courts of their commissions, except in the re- cent action in abolishing the United States Commerce Court. Ill In many ways the movement for the aboli- tion of the United States Commerce Court in 1912 and 1913 was analogous to the repeal carried by the Jefferson administration. In the first place, there was far less popular de- mand for the establishment of a commerce court than arose for the creation of circuit courts in 1801. Both institutions were re- garded by their opponents as unnecessary Story on the Constitution, 4th ed., ii, pp. 427-429. THE UNITED STATES 79 and expensive. Indeed, the commerce court owed its existence solely to the perseverance of President Taft and his administration. Their unremitting efforts to secure the pas- sage of the bill amending the interstate com- merce act in 1910 alone prevented the move- ment for the creation of the new court from being sidetracked. In other respects the situation differed markedly from that of 1802. When the be- havior of the commerce court first came up for consideration in Congress, it became ap- parent that the arguments against the tribu- nal went to the question of the fitness of the judges rather than to the theory of the court. Charges of pro-railroad leanings on the part of the judges of the commerce court began to be whispered about. These may have gained substantial ground from the report of the interstate commerce commission, where it was pointed out that "out of 27 cases passed upon by the commerce court, preliminary restraining orders or final decrees have been issued in favor of the railroads in all but seven cases, and of these only three are of any magnitude. ' m At about the same time 451. C. C. Eeport, 1911, p. 59. 80 JUDICIAL TENURE IN evidence was presented resulting in the im- peachment of Judge Archbald, one of the members of the court. It followed, therefore, that in addition to the objections that the commerce court was unnecessary and unduly expensive, the discussion in the House of Representatives assumed that the tribunal was created to give the railroads an advan- tage and the judges were not impartial. 46 The establishment of the United States Commerce Court in 1910 came as a result of attempts to expedite the hearings of appeals from decisions of the interstate commerce commission under the Hepburn amendment to the act to regulate commerce. That amendment, passed in 1906, gave to the inter- state commerce commission power to estab- lish a rate for the future. Prior to this time the commission was an administrative or quasi judicial body, but now it -became en- dowed with legislative functions. 47 At the same time it was the constitutional right of every carrier affected by an order of the in- terstate commerce commission to appeal to 4 Traffic World, is, p. 1015. 47 Hearings on the Legislative, Executive, and Judicial Appropriation Bill, 1914. THE UNITED STATES 81 a court to protect it from the enforcement of the order establishing such rate, where it might appear from the presentation of the facts by the carrier that the effect of the order would be to deprive it of a reasonable return upon its invested capital, and, there- fore, to amount to a taking of property with- out due process of law, contrary to the pro- visions of the fifth and fourteenth amend- ments of the Constitution, or unjustly to dis- criminate against the carrier (Smythe v. Ames, 169 U. S.). Since this right might be exercised in any one of the courts of the United States, it was thought that not only did much delay result in the final observance of the orders of the commission, but consider- able contrariety of decision, with resulting uncertainty in the law. To obviate this con- dition it was decided to concentrate the judi- cial review of the orders of the commission in one court, and the commerce court of the United States was thereupon created. The orders of the interstate commerce commission are in form either: (a) . those granting relief, requiring a carrier to cease and desist from charging a particular rate or continuing a particular practice, and pre- 82 JUDICIAL TENURE IN scribing another and less rate or a different practice; or (b) those denying relief, as dis- missing a formal complaint in which has been alleged the unreasonableness of a rate or practice. Orders of the first type have been called " positive, " those of the second "nega- tive," orders. The act creating the United States Com- merce Court, among other powers delegated, gave them jurisdiction over proceedings "to enjoin, set aside, annul, suspend in whole or in part, any order of the interstate commerce commission." 48 The language of the section would indicate that the court might enjoin "any order of the interstate commerce com- mission" which they might think inequitable or unjust, or which they might disapprove on any other ground. But the supreme court, beginning with the case of the Abilene Cotton Oil Company (204 U. S.), down through a long series of decisions, practically declared that the courts have no right to interfere with the exercise by the commission of the powers conferred upon it by Congress, so long as the commission does not overstep the limits of its jurisdiction. It was therefore Sect. I. THE UNITED STATES 83 provided that the commerce court " shall have the jurisdiction now possessed by the circuit courts of the United States and the judges thereof" in the class of cases speci- fied. 49 That the commerce court might by reason of this jurisdiction take cognizance of ap- peals against the enforcement of "positive" orders of the commission was plain. The act of June 29, 1909 (34 Stat. L., 584), made the orders of the commission self-executing or self-enforcing. The failure, neglect, or refusal to obey them within the time limit thereof was made punishable by heavy pen- alties. A method for annulling them, inas- much as the commission was not a court, was under the Constitution necessary. He against whom the order ran was entitled to his day in court. The interests of the carrier were safeguarded. But it is to the interest of the shipper that opportunity be given for the judicial review of the "negative" orders of the commission, and it was in the attempt to enlarge its jurisdiction so that it might con- sider appeals from the shipper who had been Sect. I. 84 JUDICIAL TENURE IN denied relief that the commerce court met its doom. The great case in which a shipper denied relief at the hands of the interstate com- merce commission sought redress from the commerce court was that of the Procter and Gamble Company v. United States. The facts showed that on February 25, 1910, the Cincinnati, Hamilton and Dayton Railway Company and other carriers had filed with the commission separate tariffs all charging demurrage on private cars whether on their own or on private tracks. The justice of this ruling is patent, as otherwise the way would have been open for collusion between the railroads and big shippers and great injury might have resulted to the smaller shipper unable to provide himself with private cars. But the Procter and Gamble Company com- plained that the rule was unjust and unrea- sonable in that it deprived them of the right to use their private tank cars upon private tracks for their own purposes without paying demurrage charges, although the cars had been delivered to them and had ceased to be engaged in railroad service but still retained their cargo. THE UNITED STATES 85 The interstate commerce commission dis- missed the complaint and the Procter and Gamble Company appealed to the commerce court. Their contention was opposed by the government on two grounds: first, that the commerce court had no jurisdiction to annul a "negative" order of the commission; and, second, that the order was a proper one. The commerce court held that it had jurisdiction to hear the appeal, but that the decision of the commission was fair. 50 When the case was carried to the United States Supreme Court, however, that tribunal held that it need not pass on the legality of the order of the commission since under the law as it now stood, the commerce court had no jurisdic- tion to hear an appeal by a shipper to whom the commission had denied relief. 51 Under the doctrine laid down in this case, the su- preme court dismissed the appeal in two similar cases, Hooker v. Knapp and the Eagle White Lead Company v. Interstate Commerce Commission. 52 By reason of the same decision the commerce court was BO Commerce Court Cases, No. 9. 51 225 U. S. 282. 52 Ibid., 302. 86 JUDICIAL TENURE IN obliged to dismiss nine cases for want of jurisdiction. 53 The twelve cases thus dismissed consti- tuted one-sixth of all the cases filed in or transferred to the commerce court. The elimination of this great number of cases from the docket and the limitation of its jurisdiction to appeals from " positive " orders of the commission raised grave doubts as to the usefulness of such a tribunal. While this phase of the question was under discussion, evidence was presented against Judge Archbald which, if proved, would in- dicate that not only was this member of the court pro-railroad in his attitude but guilty of such judicial misconduct as has seldom characterized any federal judge. 54 This un- questionably brought upon the entire com- merce court the stigma of disrepute and con- tributed to increase its unpopularity through- out the country. Memorials were received in Congress from the Nevada Railroad Com- mission urging the abolition of the tribunal as an unnecessary institution while the State legislature of Arizona expressed the belief 53 Commerce Court Cases, p. 50. 64 Infra, p. 145. THE UNITED STATES 87 that "the court was being used by the rail- road corporations for the purpose of block- ing the work of the interstate commerce commission/' 55 Of course, it was within the power of Con- gress to enlarge the scope of the authority of the commerce court by giving to it juris- diction over appeals by the shipper as well as by the carrier. This was suggested in an amendment in 1912 wherein it was proposed to include within the power of the commerce court jurisdiction "to review, in the same manner as in cases wherein affirmative orders have been made, all errors of law in cases wherein the Interstate Commerce Commis- sion has made a final refusal to grant, in whole or in part, the relief sought in any proceeding before it." 50 Thus while the court would have had no authority to review the findings of fact established by the com- mission, it would in all cases have had the power to mark out the law as applied to par- ticular facts and to certify the law in the case to the commission for its guidance in further proceedings. But such was the feel- 55 Cong. Record, 62d Cong., 2d Seas., pp. 450, 6993. 5 62d Cong., 2d Sess., H. Eep. 1012. 88 JUDICIAL TENURE IN ing with regard to the tribunal that any proposition to increase its power received scant consideration. The movement to abolish the commerce court met with success in the House of Repre- sentatives, but when the measure was sub- mitted to the Senate a sharp contest was precipitated over the clause providing for the destruction of the judgeships. This proposition was condemned by President Taft as scarcely less objectionable as a means of abridging the judicial tenure of office than the popular recall. 57 When the final confer- ence agreement between the two houses was framed, although it definitely abolished the commerce court, the judges were reassigned to service in the circuit courts, from which most of them had been drawn. But the pro- ject was frustrated by the veto of President Taft, who came to the defence of the court maintaining that it was a necessary institu- tion and one calculated to expedite business. 58 Hostility to the judges of the commerce court subsided no less than the determination to destroy the tribunal itself. When in the s? Cong. Record, 62d Cong., 2d Sess., p. 11900. id., p. 11908. THE UNITED STATES 89 autumn of 1913 the abolishment of the court was again brought forward in Congress as a " rider " to the urgent deficiency bill, an amendment was early added depriving its four remaining judges of their commissions. 59 Little opposition to the proposition to abolish the judgeships was encountered in the House of Bepresentatives, but in the Senate a de- bate on the subject scarcely less notable than that of 1802 arose. The arguments in the Senate debate quickly turned upon the constitutional power of Congress to abridge the tenure of judges of the inferior courts commissioned to hold office during good behavior. It was pointed out by Mr. Lewis that the House had appar- ently expressed the wish of the people in abolishing the court and it only remained for the Senate to settle what should be the dis- position of the judges. 60 Senator Nelson ably argued that since the act creating the com- merce court provided for the appointment of five additional circuit judges who might, 59 Judge Archbald had been removed from office as a result of conviction by the Senate upon the articles of im- peachment on January 13, 1913. eo Cong. Record, 62d Cong., 2d Sess., p. 5958. 90 JUDICIAL TENURE IN from time to time, be assigned to duty on this tribunal or upon the circuit courts at the discretion of the chief justice, the judges thus created were upon the same footing as other circuit judges. It might be proper for Con- gress to abolish the commerce court but the judges would nevertheless remain in the en- joyment of their commissions. 61 This the bill recognized; and to secure the elimination of the judges as well as the annihilation of the court, he said, it had been necessary to in- clude as a part of the measure the amend- ment proposed by Mr. Bartlett in the House. The leading argument for the abolition of the judgeships was undertaken by Senator Hoke Smith, who followed quite closely the majority view in the debates of 1802. He went even further, however, insisting that it was within the power of Congress to abolish particular offices thereby legislating out of office particular judges, whenever such legis- lation might be necessary, without abolishing the entire class of courts to which the par- ticular one might belong. 02 But a few well- directed questions from Senators Borah and 01 Cong. Record, 62d Cong., 2d Sess., p. 5954. 2lbid., p. 5955. THE UNITED STATES 91 Shields shattered the arguments of Hoke Smith into fragments of absurdity. Mr. Shields brought out the fact that the judges were judges of the circuit courts and not of the commerce court, and asked if their tenure of office was in any way dependent upon the existence of the latter tribunal. Mr. Smith declared that it was not. "Then," said Mr. Shields, "is not a statute which removes them from office another mode of removing the judges when the Constitution provides that they can be removed only by impeach- ment?" 63 Mr. Smith was no longer able to command serious consideration for his contention, and concluded by insisting that There is nothing in the Constitution that limits the power of Congress to increase or decrease the number of judges of the inferior courts. I take issue with the proposition that having once in- creased their number they must remain increased during the life of the incumbents. 64 To this Mr. Borah sarcastically rejoined : The country will be glad to know, in view of this urgent propaganda for the recall of judges, that es Cong. Kecord, 62d Cong., 2d Sess., p. 5956. e* Ibid., p. 5956. 92 JUDICIAL TENURE IN they need not wait for the slow process of impeach- ment or recall, but can call -upon their Senators and Representatives to eliminate any man from the bench that they want off the bench. They can simply abolish his circuit, get him out, and re- create his circuit. 65 It became apparent that while the Senate felt that the commerce court should be abol- ished, there was by no means a majority of the members who favored the destruction of the judgeships. Mr. Walsh thereupon came forward witb an amendment providing that, although the court should no longer exist : Nothing . . . shall be deemed to affect the tenure of any of the judges now acting as circuit judges by appointment under the terms of said act, but such judges shall continue to act under assignment as the said act provides, as judges of the district courts and circuit courts of appeals; and in the event of and on the death, resignation, or removal from office of any of such judges his office is hereby abolished and no successor to him shall be ap- pointed. 66 This proposition commanded great respect, being predicated on the theory that "al- though Congress has the power to abolish any es Cong. Kecord, 62d Cong., 2d Sess., p. 5957. Ibid., p. 5958. THE UNITED STATES 93 court which it creates, it must do so in sub- ordination to the other provision of the Con- stitution, which provides that the judges of the Supreme and the inferior courts as well shall hold their offices during good behavior. ' m Some further argument for the abolition of the judgeships was made by Senator Bacon on the ground that since these judges were not at the time of their appointment assigned to particular circuits but were in the nature of " floaters, " an entirely new jurisdiction had been created, and that when that jurisdiction was itself abolished the judges would go with it. 68 But although this line of argument was followed up by Hoke Smith, the sentiment of the majority of the members of the Senate was distinctly op- posed to any such view. The view which finally prevailed in the Senate was well stated in the closing hours of the debate by Mr. 'Gorman. After de- claring that he entertained no doubt as to the existence of a power in Congress to abolish any inferior court and thereby legislate out 67 Cong. Record, 62d Cong., 2d Sess., p. 5959. s Ibid., p. 5961. 94 JUDICIAL TENURE IN of office the judge presiding therein, he gave his support to the amendment proposed by Mr. Walsh, because he conceived Of no greater injury that could be done to the judicial department of the country than to have it adopted as the policy of Congress to use this great constitutional prerogative as a substitute for impeachment. It would be very unfair . . . after four or five lawyers have accepted a commission from the President of the United States to take what they had a right to understand was a life position, subject to good behavior . . . that within a few years the Congress for the first time in 111 years should undertake to exercise a power con- fessedly used as a substitute for the impeachment process. If any of these judges have been found untrue or unworthy, we have a familiar procedure established by the Constitution for removing them. That they have not been guilty of offense justifying impeachment is clear from the circumstance that at no time has such a proceeding been threatened against them. 09 IV Whether Congress can be said to have abandoned as unsound the precedent of 1802 is difficult to determine. The hostility to the o Cong. Record, 62d Cong., 2d Sess., p. 5973. THE UNITED STATES 95 judges of the commerce court, so apparent in the beginning, changed to a feeling of sym- pathy at the conclusion of the debates. Since most of the judges had reached their present positions because of promotions from the lower courts, it would be unjust, it was agreed, to sweep away the rew r ards of a life- time of service upon the federal judiciary. At the same time an abundance of evidence was produced to show the need for these judges in a number of the circuit courts where the amount of business before the court threatened to overwhelm the judges already on the bench. But probably the most potent factor in determining the continuance of the judges was the attitude of the President. Mr. Taft in his turn gave unmistakable evi- dence of his feeling. While Mr. Wilson avoided all official utterance as to his view of the matter, it was understood that he was opposed to the proposition to abolish the judgeships and would resist any attempt on the part of Congress to carry it out. The reception accorded the Senators who held to the construction laid down by the majority in 1802 would indicate that the precedent was not in high esteem. But in the absence of 96 JUDICIAL TENURE IN judicial decision on the point any future Con- gress is free to ignore the action of 1913 and to rehabilitate the construction of the Jeffer- sonian faction. The distinction between the judicial office and the judge has received consideration in numerous cases before the courts. The power of Congress to determine the jurisdiction of the inferior courts has been universally ad- mitted and has been granted by the United States Supreme Court. The court has de- clared that "Congress have constitutional authority to establish, from time to time, such inferior tribunals as they may think proper, and to transfer a cause from one such tribunal to another. In this last particular there are no words in the Constitution to pro- hibit or restrain the exercise of legislative power. " 70 That Congress has the power to abolish any inferior court after it has been created is by no means so well established. A decision of the United States District Court for Massachusetts in 1887 maintained that "the original jurisdiction of the Supreme Court of the United States is conferred by the Constitution, and Congress has no power TO Stuart v. Laird, I Cranch 299. THE UNITED STATES 97 to enlarge or restrict it. But the jurisdiction of the inferior courts is derived from and is subject to the absolute control of Congress, and may be changed or taken away at pleas- ure. Existing courts may be abolished, and their jurisdiction, and all cases pending in them, whatever their condition, transferred to other existing courts, or to new courts." 71 Nevertheless, it must be observed that Con- gress is obliged to make adequate provision for the judicial power. Since the defeat of the States ' rights party in the debates on the judiciary act of 1789, both in theory and practice, Congress has continued the design of a judiciary system commensurate to the other departments of government. When- ever courts have been abolished others have been established equally competent to the exercise of the judicial power. This has been the course of Congress as illustrated by the repealing act of 1802 which restored the courts as they had existed prior to February 13, 1801, and in the judiciary code of March 3, 1911, by which the circuit courts were abolished but the district courts at the same 7i United States v. Haynes, 29 Fed. Eep. 696. 98 JUDICIAL TENURE IN moment were equipped with equal compe- tency to exercise the judicial power. 72 Never has Congress, except in the heat of partisan conflict, invaded the independence of the federal judiciary to the extent of de- priving judges of their commissions other- wise than by the constitutional procedure of impeachment. The single assertion by Con- gress of this power has been justly con- demned as an encroachment upon the judicial power which is fraught with the greatest danger to this department of government. It is peculiarly unfortunate that no judicial settlement of this question has been attained. Nevertheless, Chief Justice Marshall in pri- vate commented upon the repealing act of 1802, considering it to be Operative in depriving the judges of all power de- prived under the act repealed. But the office re- mains which is a mere capacity, without a new appointment to receive and exercise any new judi- cial powers which the Legislature may confer. 73 The reasonableness of this view cannot but be apparent. The creation of a judicial 72 For an interesting argument on this point, see 62d Cong., 2d Sess., Senate Doc. 443. 73 Hamilton MSS., Apr. 25, 1802. THE UNITED STATES 99 branch of government is effected by the Con- stitution and the guarantees which shall secure its officers are set forth with equal precision. But the framers of our govern- ment well knew that they were unequal to the task of prescribing the tribunals through which the judicial power should function. It was recognized that changing circum- stances would render unsafe any attempt to describe with a rigidity demanded by a writ- ten constitution a system of courts which should be unalterable. They wisely vested in Congress the power to erect from time to time as conditions might require inferior tribunals and gave to that body the authority to determine their jurisdiction. The necessity which compelled this dele- gation of power it cannot be claimed enables Congress to encroach upon the constitutional prerogatives of the judiciary. That depart- ment is admitted to be a co-ordinate branch of the government. It stands upon the firm foundation of the Constitution and is in no way subject to control by Congress save as emergencies arise necessitating the creation of new courts or the alteration of those ex- isting. Then Congress may, by appropriate 100 JUDICIAL TENURE IN legislation, satisfy the demands of circum- stances, but only in subordination to such other clauses of the Constitution as safe- guard the judicial branch of government. By no other view can Congress exercise its authority to deal with the inferior courts of the United States and at the same time com- ply with the imperative mandate of the Con- stitution that judges shall hold their offices during good behavior. CHAPTER III - ,v - , THE REMOVAL OF JUDGES In order that judicial misbehavior may be effectively dealt with a power of removal must exist somewhere, and to this end the framers of the federal Constitution seized upon the procedure of impeachment and con- viction as the only remedy consistent with the necessary independence of the judges. The idea was borrowed directly from the revolutionary State constitutions where the form of removal on impeachment and convic- tion was in high favor. Nor is this strange when we consider how strongly the colonists had contended for the right of impeachment by their legislative assemblies. John Adams had insisted upon the power and practice of impeachment as essential to every free gov- ernment. 1 But the proprietary government of Pennsylvania seems to have been the only one in which impeachments were provided. 2 1 Adams : Works, ix, pp. 236-241 . 2 Poorer Charters and Constitutions, p. 1521. 102 JUDICIAL TENURE IN The charters of the other colonies were silent on the t s.ubjeet, while in the royal colonies the right JiaS* .been expressly denied by the crown. 18 : /. ' '; In nuineroils conflicts with the home gov- ernment the colonists were repeatedly de- feated in their efforts to secure a power of removal in the hands of their assemblies. 4 The question remained for the clash of arms to settle, but as the colonists prepared to separate from the mother country, one of the great injustices under which they felt they languished was the denial of the right to im- peach and remove public officers whom they considered unfit. It is true that "the bad old days, when judges did the bidding of the King, were much more vivid to them than to us/' It is true that "the fathers of some of these men the grandfathers of all could recall Jeffreys and the Bloody Assizes." But it was these men themselves who had clamored in vain for the right of impeach- ment before their colonial assemblies. What had happened under the last Stuart king was dimmed by long years ; what they had sought 3 Foster on the Constitution, p. 634. Ibid., pp. 634-637. THE UNITED STATES 103 and had been refused was clear to the mind of everyone. The thought of the revolution- ary patriots was not only the creation of an independent judiciary but firm control of such judges as were established. I While the members of the federal conven- tion rejected the English mode of effecting judicial removals by legislative address as being likely to weaken the independence of the courts, at no time did they suggest that the judges should not be punished for mis- behavior in the same way as other civil officers of the United States. 5 It is true, the mode of removal on impeachment and con- viction was discussed in the convention in connection with the executive. But its oppo- nents held that this method of removal was proper only in the case of officers appointed during good behavior, and in this way the judges were brought into consideration, a general agreement being reached that in their case impeachments were proper to secure good behavior. 6 s Supra, p. 30. Farrand : ii, p. 64. 104 JUDICIAL TENURE IN The first motion in the convention to pro- vide for removal on impeachment and con- viction came from Mr. Williamson, who ad- vocated its application to the executive for ' ' malpractice or neglect of duty. ' " This was favorably received and was embodied in the report of the committee. When the matter came up for debate on July 20, the idea was accepted by a vote of eight to two, Massa- chusetts and South Carolina voting in the negative, and was referred to a committee of which Mr. Brearly was chairman. When this committee reported on September 4, the causes for impeachment were limited to treason and bribery. 8 To this Colonel Mason objected as being insufficient, and moved to add after the word "bribery" the words "or maladministration. ' ' Madison thought that "so vague a term would be equivalent to a tenure during the pleasure of the Senate "; whereupon Mason withdrew his suggestion and substituted "other high crimes and mis- demeanors against the State. ' ' On the ques- tion thus altered, eight states voted in the i Farrand : i, p. 88. 8 Ibid., ii, p. 69. THE UNITED STATES 105 affirmative, and the clause was accepted. 9 "State" was later amended to read "United States," but this was dropped by the Com- mittee on Style and the clause was finally drawn up in its present form. The Constitution provides that i i the Presi- dent, Vice-President, and all other civil offi- cers of the United States, shall be removed from office on impeachment for, and convic- tion of treason, bribery, or other high crimes and misdemeanors." 10 Most of the States have drafted their constitutional provisions on this subject in similar language. As there is no enumeration of offenses comprised under the last two categories, no little diffi- culty has been experienced in defining of- fenses in such a way that they fall within the meaning of the constitution provisions. But impeachable offenses were not defined in England, and it was not the intention that the Constitution should attempt an enumera- tion of crimes or offenses for which an im- peachment would lie. Treason and bribery have always been offenses whose nature was clearly understood. Other high crimes and 9 Farrand : ii, p. 495. 10 Art. ii, Sect. 4. 106 JUDICIAL TENURE IN misdemeanors which might be made causes for the impeachment of civil officers were those which embraced any misbehavior while in office. Madison, whose objection led to the insertion of the more definite phrase "high crimes and misdemeanors, " was the strong- est advocate of a broad construction of the impeachment power. He argued that "in- capacity, negligence, or perfidy of the Chief Magistrate " should be ground for impeach- ment. 11 Again, in discussing the President's power of removal, he maintained that the wanton removal from office of meritorious officers would be an act of maladministration, and would render the President liable to im- peachment. 12 Hamilton thought the proceed- ing could "never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of the courts in favor of personal security. " 13 The convention believed the remedy of im- peachment and conviction to be adequate for 11 Elliot : v, p. 341. 12 Ibid., iv, p. 375. is Federalist, Ixv. THE UNITED STATES 107 the removal of all unfit public officials, so that in its application to the judiciary the im- peachment clause must be construed with that clause of the Constitution which guarantees to the judges a tenure during good behavior. It was intended that trial upon impeachment should form a "national inquest into the con- duct of public men." The subjects of its jurisdiction were to be those which proceeded from the misconduct of public officers. It was not the province of an impeachment to mete out justice for criminal acts. It was to be its function to protect the people by re- moving from office and imposing perpetual disqualification from holding office upon such men as showed themselves unworthy of pub- lic trust. For that reason it was provided that the chastisement of a misbehaving pub- lic official should not cease when he was stripped of his honors, but that he might be pursued and punished for crime in the ordi- nary course of law, and without being twice placed in jeopardy. For the same reason the trial of impeachments was vested in a legis- lative body rather than in the courts, as the latter might be called upon to try the offender after he had been removed from office. 108 JUDICIAL TENURE IN The use of the impeachment power as a check upon the courts in the exercise of the doctrine of judicial review was early advo- cated by some "high-fliers in Congress and out. ' ' After the decision of the circuit court for Pennsylvania in the first Hayburn case, some declared that only a general convention is adequate to pass upon the constitutionality of an enactment. One contemporary editor writes : Never was the word "impeachment" so hack- neyed as it has been since the spirited sentence passed by our judges on an unconstitutional law. The high-fliers, in and out of Congress, and the very humblest of their humble retainers, talk of nothing but impeachment! impeachment! impeachment! as if forsooth Congress were wrapped up in the cloak of infallibility, which has been torn from the shoulders of the Pope; and that it was damnable heresy and sacrilege to doubt the constitutional orthodoxy of any decision of theirs, once written on calf skin ! But if a Secretary of War can sus- pend or reverse the decision of the Circuit Judges, why may not a drill sergeant or a black drummer reverse the decisions of a jury? "Why not abolish at once all our courts, except the court martial? and burn all our laws, except the articles of war . . ? THE UNITED STATES 109 But when those impeachment mongers are asked how any law is to be declared unconstitutional, they tell us that nothing less than a general con- vention is adequate to pass sentence on it; as if a general convention could be assembled with as much ease as a party of stock jobbers. 14 But these radicals gained nothing from their outcries, and the power of the courts to set aside as null and void acts of legislation in contravention of the fundamental law became still more firmly established. 15 II That the impeachment power might be used as a weapon of partisan warfare does not seem to have occurred to the members of the federal convention. But as party spirit developed, the latent possibilities in the im- peachment proceeding as a means of destroy- ing political opponents became recognized. Jefferson expressed his fear that the Federa- lists might resort to such means, declaring : I see nothing in the mode of proceeding by im- peachment but the most formidable weapon for the nBache's General Advertiser, Apr. 20, 1792. A similar paragraph appears in Freneau's National Gazette, Apr. 16, 1792. is Corwin : Doctrine of Judicial Review, p. 51. 110 JUDICIAL TENURE IN purpose of a dominant faction that ever was con- trived. It would be the most effectual one for getting rid of any man whom they (the Federalists) consider as dangerous to their views. I know of no solid purpose of punishment which the courts of law are not equal to, and history shows that in England impeachment has been an engine more of passion than of justice. 16 To prevent such perversion of the impeach- ment power, the amendment of the clause was suggested in the Senate and Jefferson sought to have juries introduced into trials on im- peachments. 17 It remained for Jefferson and his partisans to make use of this " formidable weapon " for political purposes. The Eepublicans having become in the elections of 1800 the " domi- nant faction," the call to battle with their Federalist enemies who still were intrenched in the stronghold of the judiciary was sounded. Early in 1803 Jefferson directed Congress to make the first attack upon John Pickering, judge of the district court for New Hampshire. 18 The move was well understood at the time and was considered by the Fed- 16 Madison MSS., Feb. 15, 1798. IT Jefferson MSS., Jan. 25, 1798. is Annals, 7th Cong., 2d Sess., p. 460. THE UNITED STATES 111 eralists as the beginning of a systematic at- tack upon the courts. The business of " judge breaking" had al- ready been carried far in some of the States before it was attempted in the federal judi- ciary. In Pennsylvania, where the Bepubli- can party had early been successful, the im- peachment and removal of obnoxious judges had become a party policy. A beginning was made with Alexander Addison of the State judiciary, who had aroused the democratic element by his political speeches from the bench. Petitions poured into the legislature complaining against the administration of justice in his court, and his impeachment and trial were ordered in 1802. Although Judge Addison defended himself with great ability, his conviction was easily secured and he was removed from office amid the rejoicing of the Eepublicans. Thomas McKean wrote Jef- ferson that they "knew how to get rid of obnoxious judges as well as Congress," and that "the Tories in Pennsylvania were not only humbled but subdued, since Federalism would fall with Addison in the six western counties." 19 is Jefferson MSS., Feb. 7, 1803. 112 JUDICIAL TENURE IN Elated with this success, the Republicans determined to bring about the impeachment of all the members of the supreme court of Pennsylvania, except Judge Brackenridge who was of their party. To secure a basis for the prosecution of the judges, the legis- lature took up a petition which had been pre- sented to them in February, 1803, by one Thomas Passmore, in which he alleged that he had been arbitrarily and unconstitution- ally fined and imprisoned for contempt of court. 20 It was apparent to all, however, that the impeachment was a malicious partisan attack upon the Federalist members of the court, and the entire bar of the State refused to assist in the prosecution. Moreover, the legislature had only a few years earlier re- fused to move in a similar case, declaring that "an error in judgment is no ground for an impeachment." 21 Because of the flimsy grounds upon which the prosecution was based there was little difficulty in securing the acquittal of the judges, but the legislature 20 Foster: op. cit., p. 663; Trial of the Judges (Lancas- ter, Pa., 1805). 21 See petition of Eleazer Oswald, Debates 12th Penn- sylvania Assembly, 3d Sess., IV. THE UNITED STATES 113 thought it wise to enact a statute defining what offenses might be punished as in con- tempt of court in that State. 22 The impeachment of judges from partisan motives ceased in Pennsylvania after this de- feat, but hostility to Federalist officers did not subside. As a part of the same move- ment two impeachments were undertaken in Ohio as late as 1808. Two years earlier Cal- vin Pease, a judge of the circuit court of the State, had held that a portion of the Ohio law respecting the jurisdiction of justices of the peace was repugnant to the constitution of the State and of the United States. This was the first decision in the State which held an act of the State legislature unconstitutional, and was followed by Judges Tod and Hunt- ingdon. Great public excitement was created, and at the next session of the legislature the separate impeachments of Judges Pease and Tod were resolved upon. Judge Hunting- don, in the meantime, had been elected gov- ernor, and the charge against him was aban- doned. Both judges were acquitted, but the 22 Foster : op. cit., p. 664. 114 JUDICIAL TENURE IN legislature by a vote of less than two-thirds proceeded to declare vacant their offices. 23 Ill While these events were in progress in the States, the movement to sweep from the courts of the United States all Federalist par- tisans was begun. In the first flush of victory in Pennsylvania, Congress proceeded to vote the impeachment of Judge Pickering. Presi- dent Jefferson is reported to have said to a member of the Senate that "impeachment was but a clumsy engine to get rid of judges." 24 But the Republicans had been almost unanimous during the debates on the repeal of the judiciary act of 1801 in the belief that no other means of removal existed. 25 Judge Pickering, to the most superficial observer, presented a vulnerable point for the Republican attack. For some time prior to his impeachment it had been known that the administration of justice in his court was subject to irregularities, most of which were traceable to the conduct of the judge himself. 23 Western Law Monthly, ii, p. 1. 2* Ford: Writings of John Quincy Adams, iii, p. 117. 25 Supra, p. 69. THE UNITED STATES 115 An unfortunate lapse from dignity during October, 1802, gave the House of Representa- tives the grounds on which to base articles of impeachment. 26 A case had arisen in the district court in- volving the libeling of a ship and cargo for violation of the customs regulations. When the case came before the court, Judge Picker- ing ordered the vessel and goods to be re- stored to the owner, but the collector of the port objected on the ground that the judge was incompetent and the proceeding irregu- lar. When the libels were again brought to trial, the judge was so drunk and spoke so wildly and incoherently that the court was thrown into an uproar. A postponement was asked, and the judge replied, "My dear, I will give you to all eternity/' He then ordered the court to be adjourned until nine o'clock the next morning, observing that he would "then be sober. " 2T 20 The impeachment was at first presented verbally but the Senate declined to accept this as proper. They declared that the articles must be presented in writing and that no impeachment could be said to exist until such articles had been prepared. Annals, 7th Cong., 2d Sess., p. 267. Also Annals, 8th Cong., 1st Sess., pp. 317-318. 27 Annals, 8th Cong., 1st Sess., p. 339. 116 JUDICIAL TENURE IN The next day the judge appeared as irra- tional as ever. Before reaching the court- house, he had declared his intention of con- demning both ship and cargo. But when the case came up and a few witnesses for the claimant had been heard, the judge ordered that both vessel and cargo be restored to the owner and a decree entered to that effect. In vain did the attorney for the government protest that only one side had been heard; the judge refused an appeal, and the court was adjourned amid much confusion. 28 Articles of impeachment were voted rest- ing upon these facts. When the case came up for trial in the Senate in January, 1804, "the said John Pickering was three times called to answer the articles of impeachment ex- hibited against him by the House of Repre- sentatives, but came not. Upon which a sug- gestion, by petition, was made to this court that said John Pickering was insane; and Jacob S. Pickering, the petitioner, and son to the said John, requested to be heard by counsel on said suggestion. ' ' This proposal caused much perturbation among the Repub- 28 Annals, 8th Cong., 1st Sess., p. 351 et seq. 29 Ibid., p. 360. THE UNITED STATES 117 licans, and several senators vigorously op- posed hearing evidence of insanity. John Quincy Adams declares : The most persevering and determined opposition was made against hearing evidence and counsel to prove the man insane only from fear that if in- sanity should be proved, he could not be convicted of high crimes and misdemeanors by acts of de- cisive madness. Mr. Jackson was for hearing none of these pretenses of insanity; because they might prevent us getting rid of the man. He said the House of Representatives were at that minute de- bating whether they would not impeach another judge, and by and by Judge Chase's friends would come and pretend that he was mad. Mr. Breckin- ridge was for proceeding to trial hearing all the proofs the managers of the House might bring forward of acts of extravagance and folly, and afterwards hear evidence of insanity in mitigation. The dilemma was between the determination to remove the man on impeachment for high crimes and misdemeanors, though he be insane, and the fear that the evidence of this insanity, and the argument of counsel on its legal operation, would affect the popularity of the measure. 30 The trial of Judge Pickering was marked throughout by a most offensive show of par- 30 J. Q. Adams : Memoirs, i, pp. 299-300. 118 JUDICIAL TENURE IN tisanship. The evidence against him was ex parte and the proceedings were probably not impartial. But there can hardly be found any ground to challenge the use of the im- peachment power in this case as improper or to allege that it had been subject to abuse. Several senators refused to vote on the articles, alleging that the offenses charged against the judge did not amount to high crimes and misdemeanors. 31 But these same gentlemen had accepted the theory of im- peachments laid down during the debates on the repeal of the judiciary act of 1801, upon which the charges in this case rested, i.e., that of considering misbehavior and high crimes and misdemeanors as synonymous terms. 32 Still others objected that Judge Pickering was undoubtedly insane and was, therefore, not amenable to any judicial tri- bunal for his acts. But Hamilton in expound- ing the Constitution had expressly admitted insanity to be a cause of removal, while dis- approving any other measure of inability. 33 si J. Q. Adams: pp. 304-309. 32 See speech of Senator White, Annals, 7th Cong., 1st Sess., pp. 117-122. ss Federalist, Ixxix. THE UNITED STATES 119 And it would be difficult to find greater evi- dence of that incapacity which Madison and others thought a cause for impeachment. John Quincy Adams, although he voted "not guilty " on all of the articles of impeachment, admitted that "there were circumstances in the case of Mr. Pickering which might at once contribute to veil the designs of his prosecu- tors, and to apologize for the complaisance of his judges/" 4 The Pickering impeachment would have been of little importance as an isolated case. For the office of judge, Mr. Pickering was utterly unqualified, and as the sentence ex- tended only to removal, the effect worked no injustice. His family and friends had suf- fered him to go at large and to take his place upon the bench, although he had been relieved of his judicial duties at least twice in 1801 during temporary periods of insanity. Since he could not be induced to resign, it was emi- nently proper that he be removed from office by impeachment as the only means known to the Constitution. But the impeachment of Judge Pickering was only the initial step in a movement 34 Ford : Writings of John Quincy Adams, iii, p. 108. 120 JUDICIAL TENURE IN wherein the Bepublicans aimed to replace the Federalists upon the judiciary with their own partisans and to bring the judges within the control of the legislature. That their efforts were confined for the most part to the federal judges was due to the fact that in the States the courts still remained under legislative control as had been the practice since 1776. On the very day upon which Mr. Pickering was convicted, the impeachment of Justice Chase of the United States Supreme Court was voted. The first impeachment "did not sufficiently develop the intentions of those by whom it was managed ; it did not disclose the full extent of their views. " 35 But with the assault upon Justice Chase it became ap- parent that the majority party in Congress had determined to carry out Giles' plan to "sweep the supreme judicial bench clean " through the process of impeachment. A new and broader theory of impeachments under the Constitution was asserted by Giles, who declared: An impeachment is nothing more than an in- quiry by the two Houses of Congress whether the office of a public man might not be better filled by 35 Ford: iii, p. 109. THE UNITED STATES 121 another. He labored with excessive earnestness to show . . . certain principles upon which not only Mr. Chase but all of the judges of the Supreme Court, excepting the last one appointed, must be impeached and removed. He treated with the ut- most contempt the idea of an independent judi- ciary . . . said there was not a word in the Con- stitution about such an independence, and that their pretensions to it were nothing more nor less than an attempt to establish an aristocratic des- potism in themselves. The power of impeachment was given without limitation to the House of Representatives, and the power of trying impeach- ments was given equally without limitation to the Senate. And if the judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconstitutional or to send a mandamus to the President, as they had done, it was the un- doubted right of the House of Representatives to impeach them, and of the Senate to remove them for giving such opinions, however honest or sincere they may have been in entertaining them. A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him, but was nothing more than a declaration of Con- gress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We 122 JUDICIAL TENURE IN want your offices for the purpose of giving them to men who will fill them better. 36 Even among the Eepublicans this broad view of the impeachment power did not find ready acceptance and a serious division in the ranks of that faction soon appeared. 37 Not even the managers of the prosecution were agreed upon the line of argument. While John Randolph supported the view of Giles that the impeachment power is without limit, he was contradicted by other managers who contended that an offense amounting to a crime must be proved to obtain a conviction. The excessive vanity and insolence of Ran- dolph and the repeated contradictions of the other managers threw the argument for the prosecution into such confusion that Timothy Pickering became "persuaded they sincerely wished they had not meddled with Judge Chase. " 38 The managers soon proved to be no match for Mr. Chase and his attorneys, who put such fair and legal construction upon his judicial acts that his acquittal was secured 86 J. Q. Adams: Memoirs, i, pp. 321 et seq. 8? Life and Correspondence of Eufus King, iv, p. 440. 88 Ibid., iv, pp. 441-442. THE UNITED STATES 123 by a good margin, six of the Kepublican sena- tors voting with the Federalists in his favor. 39 IV With the acquittal of Justice Chase the partisans of Jefferson were forced to abandon their attempt to bring about the removal of Federalist judges through the impeachment process. Nevertheless, Kandolph was deter- mined to find further means of bringing the judges under legislative control. To this end he hurried from the high court of impeach- ment upon its adjournment to introduce in the House of Representatives a bill propos- ing a constitutional amendment whereby the judges of the courts of the United States might be removed on joint address of the two Houses of Congress. 40 He declared a prin- ciple had been established by the Senate "that an officer of the United States may act in as corrupt a manner as he pleases, without there being any constitutional provision to call him to account. " His motion was sec- onded by Mr. Smilie, who thought ' ' that part 8 See Eeport of the Trial of Samuel Chase, 2 vols. (Baltimore, 1805). 40 Annals, 8th Cong., 1st Sess., p. 1213. 124 JUDICIAL TENURE IN of the Constitution which relates to the power of impeachment had become a nullity, " and that it had become impossible to convict any man upon an impeachment. 41 But it was then too late in the session for Congress to take up the consideration of the measure. The procedure of removal on joint address of the two houses of the legislature had been incorporated in many of the early State con- stitutions. 42 It was borrowed from the Eng- lish Act of Settlement which guaranteed the judges a tenure during good behavior, but made them removable by the crown upon ad- dress of the two Houses of Parliament. Under the English system the address was originally a petition to the crown, but under the modern theory of Parliamentary sover- eignty the address became essentially an ex- ercise of the legislative power of Parliament. Of course, the concurrence of the crown is essential to a removal, but the refusal of such assent would be as startling as an exercise of Annals, 9th Cong., 1st Sess., pp. 502-503. Of the revolutionary State constitutions five contained provisions for the removal of judges on address or upon joint resolution of the houses of the legislature. See Horace Davis: American Constitutions, J. H. U. Studies, Series 3, p. 508. THE UNITED STATES 125 the veto. Since no legislative body in the United States or in any of the States is en- dowed with the complete sovereignty pos- sessed by the British Parliament, the pro- cedure of removal on address has of neces- sity suffered such modifications as practice demanded. Massachusetts sought to embrace in the exercise of the removal the four organs of government the two houses of the legis- lature, the governor, and the council. 43 Other States have left the judges removable on joint resolution of both houses of the legis- lature but have provided for a hearing and a statement of causes making the procedure similar to that of an impeachment. 44 The intention of the framers of the early State constitutions with respect to the pro- visions for removal on address is somewhat difficult to determine. In England the pro- cedure was adopted as an additional means of securing good behavior on the part of the judges. It did not supersede impeachment, but was available for the removal of judges for any offense whatsoever. At the same time it placed in the hands of Parliament a 43 Thorpe: Charters and Constitutions, p. ]905. "Stimson: Federal and State Constitutions, pp. 232-233. 126 JUDICIAL TENURE IN means of superintending the administration of justice. 45 The only case in which an ad- dress for the removal of an English judge re- ceived the sanction of both Houses of Par- liament and the compliance of the crown charged an impeachable offense. 46 On a re- cent occasion the House of Commons showed its willingness to consider the expedient of address for the removal of a judge who had criticised members of Parliament in a public address. 47 The removal of an English judge, therefore, is but an act of sovereignty, sub- ject to no conditions save such as are volun- tarily imposed. It seems clear, however, that the framers of the Massachusetts constitution of 1780 in adopting the procedure of removal on address intended that this expedient should be used 45 For a study of the English mode of removal on ad- dress see Todd: Parliamentary Government in England, i, pp. 352 et seq., and ii, pp. 727 et seq. ; Broom : Constitutional Law, pp. 792 et seq.; Hansard: Parliamentary Debates, Ixvii, pp. 1006, 1027; clxiii, p. 900; clxxxii, p. 1629; clxxxiii, p. 835. 46 Sir Jonah Barrington, Judge of the High Court of Admiralty, who was removed in 1829. See Todd: op. cit., ii, p. 736. 47 Parliamentary Debates, 5th Series, xxi, p. 291 ; xxii, p. 366. THE UNITED STATES 127 only in cases not warranting impeachment. John Quincy Adams in 1803 dissented from a vote of the legislature for the removal of two judges on the ground that "no judicial officer should be removed from office, by the mode of an address of the two houses, on the ground of offences, for the trial of which the constitution has expressly provided the mode of impeachment. ' H8 Further support for this view of the power of removal on address may be found in the debates of the constitutional convention held in 1820. Justice Story de- clared, "The governor and council might re- move them (the judges of the supreme court) on address of a majority of the legislature, not for crimes and misdemeanors, for that was provided in another manner. " Chief Justice Shaw, of the supreme court of the State, thought the mode of removal on ad- dress was to be used in cases of incapacity from natural infirmities or some disability, and impeachment should be the remedy in 48 Paul D. Sargent and William Vinal, judges of the court of common pleas in Hancock County, were removed after having been convicted of willful extortion in office. Ford: Writings of John Quincy Adams, iii, p. 12. 128 JUDICIAL TENURE IN cases involving crime or misbehavior. 49 The early practice proved to be in harmony with this theory when Theophilus Bradbury, hav- ing been stricken with paralysis in 1803, was removed from the supreme court upon ad- dress. 50 But in Kentucky no limits were placed upon the power of the legislature to vote an address for the removal of a judge. The subject was discussed in the constitutional convention of 1799, and a proposition to render impossible the removal of judges for a judicial opinion, or without a finding facts by a competent jury, was defeated. 51 At no time did the Kentucky general assembly allow the good behavior tenure guaranteed the judges to interfere seriously with their control of the judiciary. On several occa- sions courts were abolished for the sole pur- pose of getting rid of objectionable judges. As early as 1795, an effort was made to ad- dress out of office Judges Muter and Sebas- 416 American Law Review, p. 552; Debates of the Convention (1820), p. 216. so Foster on the Constitution, p. 642. i Breckinridge : Administration of Justice in Kentucky (Dissertation, University of Chicago, 1897), p. 36. THE UNITED STATES 129 tian because of a decision in a case touching conflicting claims to the same land under grants by the commission constituted under Virginia laws. A second attempt to remove Judge Muter was begun in 1806 on the ground that he had become too aged and in- firm to perform judicial duties. The judge was induced to resign before the address was voted, and was granted a pension which the legislature repealed in 1809 over the veto of the governor. 52 In the same year Judge Sebastian was summoned before the legis- lature on a charge of having received a bribe from the Spanish government, but his imme- diate resignation prevented further action. 53 Encroachments upon the judicial department continued at intervals until 1824, when an attempt was made to address the entire su- preme court of State out of office on the ground that such power was available "for any mere error of judicial opinion, which does not amount to misdemeanor, if it inflicts upon the community such injury as in their belief amounts to a reasonable cause of re- 52 Breckinridge : op. cit., pp. 74-77. 53 Monroe MSS., Jan. 3, 1807. 130 JUDICIAL TENURE IN moval, provided only that they observe the constitutional form. ' >54 Whatever may have been the motive for placing the mode of removal on address in the various State constitutions, the practice has been to use the expedient as an alterna- tive for impeachment. In New Hampshire a consistent effort was made to restrict the use of removal on address to cases of mental and physical incapacity, and the early re- movals were for such causes. 55 But in 1871 a number of removals were made for political reasons and an attempt by constitutional amendment to prevent a recurrence of such use of the power of removal on address was defeated at the polls. 56 After 1803 the Massachusetts legislature returned to the principles laid down by the framers of the constitution, and for a time impeachment was the only remedy used in cases of crimes and misdemeanors. 57 But more recently the legislature has declared 5*Breckinridge: op. cit., pp. 78-82. ss Granite Monthly, iv, p. 133. & American Annual Cyclopedia (1871), p. 543; (1877), p. 547. 57 Impeachment of Judge Prescott (1821), Poster: op. cit., p. 641. THE UNITED STATES 131 that "everything which indicates the fitness or unfitness of a judicial officer may be con- sidered upon the question of his removal on address. ' ' 58 Since the Civil War at least two removals have been effected in Massachu- setts for offenses which could have been prosecuted under the impeachment clause. In some of the States the mode of removal on address has been used to rid the bench of judges whose offenses were so serious as to have demanded their removal upon impeach- ment in order that disqualification from hold- ing further office might be imposed. During the period immediately following the Civil War the circuit judiciary of West Virginia was burdened with Nathaniel Harrison, a notoriously corrupt and intemperate man. Several attempts were made to address Judge Harrison from the bench because of the mal- administration of his office and the lewd and corrupt manner of his life. These failed because a majority of the legislature ap- proved his persecution of ex-Confederates and were willing to overlook his defects of character. But his conduct in 1870 aroused es Foster: op. cit., p. 643. See also Eeport of Committee on Eemoval of J. M. Day (Boston, 1881). 132 JUDICIAL TENURE IN such widespread indignation that resolutions for his removal passed both houses of the legislature. In the meantime the judge had fled to Pittsburgh, where he took refuge in a brothel and forwarded his resignation to the governor. 59 All of the removals on ad- dress in New York have been for such mal- versation in office as would properly have been subjects of impeachment in order that the people of the State might have no fear of the offenders being again placed in office. 60 It is perhaps surprising to find that the form of address has seldom been used to re- move judges for political reasons. While legislatures have been very active in limiting the functions of the judiciary and have been extremely parsimonious in providing salaries for the judges, there have been no such par- tisan attacks through the mode of address as were undertaken during the Jeffersonian period through the impeachment process. Maine claims the distinction of having made the first judicial removal on address on the grounds of party policy. In 1856, Woodbury 59 Laws of West Virginia (1870-1871), p. 136; Why the Solid South? pp. 282-284. oo Foster : op. cit., pp. 645-657. THE UNITED STATES 133 Davis, a justice of the supreme court of the State, was removed as a result of a partisan attack by the governor and the legislature. A dispute had arisen over an opinion of the judge upon a constitutional question which he had declared wisely and temperately, but against the interests of the party in power. Instead of taking an appeal to the full bench of the supreme court, an address was carried in both houses along party lines and the assent of the governor secured for the re- moval of Judge Davis. 61 A few years later, Massachusetts was the scene of a partisan removal when the abolitionists attacked Judge Loring. The judge had incurred the hostility of the extreme abolitionists by his execution of the fugitive slave law while act- ing as United States Commissioner. The removal was urged by Wendell Phillips, who gave an impassioned harangue before the assembly, in which he sought to show the un- limited power of the legislature to ask the removal of a judge who had acted contrary to public sentiment. But the address did not pass the legislature until after a long debate, i Adams : Life of Kichard JETenry Dana, i, p. 351 ; Law Eeporter, xix, pp. 61 et seq. ; p. 652. 134 JUDICIAL TENURE IN and two years more elapsed before a com- plaisant governor could be found to assent to the measure. 62 As a matter of fact, removal on legislative address has become in nearly all States obso- lete. Short terms and popular elections have made the judges more responsible to public opinion, but have at the same time rendered them more independent of legislative control. Then, too, the exercise of the power of re- moval on address has been hedged about by many constitutional restrictions. In most States a majority of two-thirds of both houses of the legislature is required to pass an ad- dress, while in many States the judge is en- titled to a hearing and a statement of the causes for removal. The procedure is thus made as cumbrous and unwieldly as an im- peachment and legislatures have hesitated to undertake its exercise. In recent years the tendency has been to free the judiciary from legislative control, and to this end Alabama, Florida and Mississippi have removed the provisions relating to legislative address 2 Phillips: Speeches and Lectures (5th ed.), pp. 154-212; Adams: op. cit., i, pp. 341-347; Merriam: Life and Times of Samuel Bowles, i, pp. 131-134. THE UNITED STATES 135 from their constitutions. 63 At the present time discussions of means of securing respon- sibility on the part of judges and the deter- mination of good behavior have centered on new remedies such as the popular recall. V Efforts to incorporate in the federal Con- stitution provisions for the removal of judges upon legislative address have been made on nearly every occasion when the courts have been under criticism. Such criticism has developed in four well-marked and definite periods of our history, in each of which Con- gress has been besought to place restraints upon the judiciary either by limiting the functions of the courts or by introducing new means of controlling the judges. Nearly all of these proposals are to be traced either to partisan desire to control the judiciary or to efforts to restrain the judiciary from passing upon the constitutionality of acts of Congress. The attempts of the Republicans during the administration of Jefferson to oust the Fed- eralists from the judiciary resulted in the introduction of numerous propositions for 03 Thorpe: op. cit., pp. 207, 802, 1110, 2110. 136 JUDICIAL TENURE IN the removal of judges by legislative address. While Congress turned to other matters of public policy, pressure from the State legis- latures kept the issue alive. The legislature of Vermont in 1807 sent resolutions to the other State legislatures calling attention to the want of a provision for the removal of judges of the federal courts except for causes warranting impeachment. 64 Pennsylvania favored the adoption of an amendment giving Congress power to remove judges on legis- lative address, but Delaware and Rhode Island objected to such provision and in- structed their senators and representatives to oppose its adoption. 65 A general feeling predominated that im- peachment could not be used in practice and that some other means of keeping the judges in order ought to be introduced. Jefferson thought that impeachment was "not even a scare crow" and that the courts had become "independent of the will of the nation it- self. ' ' The independence of the judges was * Annals, 10th Cong., 1st Sess., p. 99. B Journal Pennsylvania Senate (1807-1808), pp. 163- 170; Annals, llth Cong., 2d Sess., p. 631. eo Works (ed. Ford), vii, pp. 134, 192. THE UNITED STATES 137 held to be "one of the greatest absurdities that can possibly be imagined, and in many instances operates exactly the reverse of what was expected by the people: In many instances it is a continuance during bad behavior. ' m The partisan attack upon the judiciary ceased only to break forth again after a few years in a States ' rights movement to restrict the appellate jurisdiction of the Supreme Court of the United States. The great con- stitutional decisions under Chief Justice Marshall aroused the defenders of State sovereignty, and those who had begun the assault upon the courts for the purpose of making partisan removals now turned their attention to measures limiting the jurisdic- tion and functions of the judiciary. Follow- ing the decision in Cohens v. Virginia (6 Wheaton 264), resolutions of protest were passed by the Virginia legislature and pro- posals to urge a series of amendments to the Constitution placing limitations upon the power and jurisdiction of the federal courts 7 Experience the Test of Government (Philadelphia, 1805). 138 JUDICIAL TENURE IN were defeated by a narrow margin. 68 When Congress assembled in 1821 it was proposed to have an amendment to the Constitution giving the Senate appellate jurisdiction "in all controversies where the judicial power of the United States shall be so construed as to extend to any case . . . arising under the Constitution, and to which a State shall be a party. " 69 While this proposition did not meet with much favor, it gave opportunity for the introduction of another bill to provide an amendment giving Congress power to re- move judges upon legislative address bot- tomed on the idea that the judges were too independent for the public good. 70 In reality the opponents of the judiciary had changed the basis of their attack from that of a partisan movement against the judges to an effort to subordinate the federal courts to the theory of State sovereignty. In the new movement only the radical States' rights faction was active. Their struggle cul- minated in the attempt in 1831 to repeal the es Ames: Federal Relations, p. 103. Annals, 17th Cong., 1st Sess., p. 68. See speech of Mr. Holmes, Annals, 17th Cong., 1st Sess., p. 114. THE UNITED STATES 139 25th section of the judiciary act of 1789. In this they were so decisively defeated in the House of Representatives that they gave up all further efforts to place restriction on the courts. 71 A third assault upon the independence of the federal judiciary was undertaken just after the close of the Civil War, when the United States Supreme Court began to emerge from the somewhat humble position into which it had been cast by the circum- stances surrounding the decision in the Dred Scott case. During the winter of 1866 and 1867 the court handed down several decisions which boded ill for the radical projects of reconstruction. Proposals were made to create a special tribunal to decide constitu- tional questions, to require two-thirds of the supreme court to declare an act of Congress unconstitutional, and to make possible the removal of judges upon legislative address. 72 None of these measures became law since the supreme court soon showed a willingness to 71 E. S. Corwin : Michigan Law Eeview, ix, p. 283 ; Niles Weekly Register, xxix, p. 401. 72 Globe, 39th Cong., 2d Sess., pp. 251, 492-498, 1313. 140 JUDICIAL TENURE IN acquiesce in the plans for reconstruction, and opposition to the courts was stilled. The recent criticism of the judiciary, both State and national, has developed because of the numerous legislative enactments which have been set aside by the courts, especially such acts as were believed to be in line with social and economic progress. From this agitation has sprung the new procedure of the popular recall of judges and the demand for the popular review of decisions in which the courts have set aside legislative enact- ments. It is important to note that it is not legislative control of the courts which is now advocated but the responsibility of the judi- ciary to the people. 73 Nevertheless, several propositions have been made looking towards the establishment of removal on legislative address. One of these urged in the House of Eepresentatives by Mr. Hull of Tennessee seeks to establish a simplified substitute for impeachment. Mr. Hull has taken the further view that the regulation of inferior courts is within the power of Congress and it is not unbecoming for the two houses to exercise a power of 78 Cong. Kecord, 63d Cong., 1st Sess., p. 1052. THE UNITED STATES 141 removal with respect to inferior judges. But the supreme court he terms a ' * constitutional court ' ' and omits its justices from the opera- tion of his provision on the ground that their inclusion would be inconsistent with a proper co-ordination of the departments of govern- ment. 74 Much more radical than this was the proposition brought forward by Senator Owen in July, 1911. This proposal was in the form of a bill to provide for the ' ' legisla- tive recall" of any judge of a federal court by the simple expedient of a resolution passed by Congress calling upon the President to nominate a successor to such judge. The constitutionality of this measure was urged on the ground that while the Constitution provides for the removal of judges upon im- peachment, Congress is given a variety of powers to regulate the judicial establishment and from these is to be implied not only the power to recall but also to elect federal judges. 75 Although most of these efforts to impose restraints upon the courts and to limit the independence of the judges have been actu- 74 63d Cong., 1st Sess., H. J. Ees. 114. 75 Cong. Eecord, 62d Cong., 1st Sess., p. 3359. 142 JUDICIAL TENURE IN ated by motives which threatened danger to the judicial department, there has been a well-defined feeling that under the Constitu- tion misbehavior on the part of judges could not be punished. There can be no doubt that while on the one hand the acquittal of Justice Chase was salutary in checking partisan at- tacks on the judiciary, on the other hand the result was practically to narrow the impeach- ment power to such limits as were never in- tended by the framers of the Constitution. There was created in the minds of men the firm belief that where any defense was made, conviction upon impeachment was impossible before men of ordinary prejudices and pas- sions, and that the judges were thus exempt from all control. This belief was voiced in Congress in 1830, when James Buchanan declared that "if the power to impeachment presents no prospect to the people of removing an arbitrary and tyrannical judge, the people will soon begin to inquire whether the judicial office ought not to be limited to a term of years. ' m The same view was reiterated in greater detail by Judge Spencer, who said : 7 Trial of Judge Peck (Washington, 1831), p. 289. THE UNITED STATES 143 If the constitutional power of the House of Representatives to impeach officers of this govern- ment, and the power of the Senate to try them, should become inefficient and a solemn mockery, as it has been represented it would be; and if the people came to believe that guilty men can pass this ordeal unhurt and untouched, the inevitable consequence will be that the tenure of judicial offices will be changed, and the independence of the judiciary will be destroyed. 77 Subsequent efforts to make use of the im- peachment power have tended to strengthen this feeling. In the United States only six cases have come to trial before the Senate since the acquittal of Justice Chase. 78 If we except the case of Judge Humphreys, who was removed on an impeachment when he 77 Trial of Judge Peck, p. 473. 78 The following impeachments have been undertaken before the Senate in the course of our history: William Blount, Senator from Tennessee, acquitted 1798; John Pickering, Judge of District Court, convicted 1803; Samuel Chase, Justice of Supreme Court, acquitted 1805; James H. Peck, Judge of District Court, acquitted 1831; West H. Humphreys, Judge of District Court, convicted 1862; Andrew Johnson, President of the United States, acquitted 1868; William Belknap, Secretary of War, acquitted 1876; Charles Swayne, Judge of District Court, acquitted 1905 ; Kobert W. Archbald, Judge of Commerce Court, convicted ]913. 144 JUDICIAL TENURE IN adhered to the Confederacy and refused to resign his federal office, and who was im- peached because there was no other way of effecting his removal, no convictions were secured until 1913. In each case that has arisen the defense has sought to restrict the scope of the impeachment power to very narrow limits and has succeeded in leading a sufficient number of senators to vote for acquittal in the belief that the offenses charged did not amount to high crimes and misdemeanors. VI But a great change has been wrought in the popular attitude toward the impeachment power by the recent conviction of Judge Archbald, of the United States Commerce Court, who was removed in 1913. Indeed, it has seemed that the ancient remedy can be made as effective as intended by the f ramers of the Constitution. The results in this case have demonstrated that party lines can be swept aside and the technicalities of pleading rejected where it is sought to reach a man wholly unfit for office. Moreover, the scope of the impeachment power was revealed as THE UNITED STATES 145 transcending the narrow limits imposed by the results of the Chase trial. It appeared fully competent to protect the people against unfitness in public officers and became again a vigorous weapon as intended by the f ramers of the Constitution. 79 Prior to his impeachment Judge Archbald had enjoyed a long judicial career. He was appointed in 1901 a judge of the federal dis- trict court for the middle district of Penn- sylvania, where he sat until January, 1911. He was then promoted to the circuit court and was assigned to service on the newly created commerce court. In the course of his trial it became evident that the judicial misconduct of which Mr. Archbald had been guilty had extended over the entire period he had been upon the bench. Charges of misconduct on the part of Judge Archbald were first brought to the attention of President Taft in February, 1911. After a careful investigation by the Department of Justice, the matter was thought to be of sufficient importance to claim the attention of the House of Representatives and, accord- 79 Trial of Robert W. Archbald (3 vols.), 63d Cong., 3d Sess., Senate Document 1140. 146 JUDICIAL TENURE IN ingly, in May all the papers in the case were transmitted to them. The testimony showed that at different times Judge Archbald while on the district bench had sought credit from persons who had litigation in his court. After his appointment to the commerce court, the judge had used his influence to secure favor- able business negotiations with common car- riers engaged in interstate commerce and having at the time suits pending in his court. These were for the most part contracts in- volving options on culm dumps and other coal properties obtained from officers and agents of coal companies which were owned and controlled by the common carriers. Judge Archbald repeatedly sought to in- fluence the officials of the railroads to enter into contracts with his business associates for the financial benefit of himself. While the friends of the judge would locate proper- ties, Mr. Archbald would take up the matter of the purchase or sale of the properties with the railroad companies. He never invested money himself in any of the deals but used his influence to secure favorable terms in con- sideration of which he was to receive a share in the profits. THE UNITED STATES 147 The charges set forth in thirteen articles of impeachment presented no indictable of- fenses. In all cases they alleged instances of misconduct in office which, if true, constituted breaches of the good behavior tenure granted judicial officers. Judge Archbald admitted generally the facts stated in each article but declared that in no case did the charge amount to an impeachable offense. More- over, he sought to limit the scope of the im- peachment power to such offenses only as were indictable, and insisted that only those offenses which were alleged to have been com- mitted in his judicial capacity should be con- sidered. This interpretation would have confined the operation of the impeachment power to such narrow limits as to include only acts of misconduct which amounted to crime within the meaning of the terms high crimes and misdemeanors. This narrow construction of the impeach- ment power was at once denied by Senator Works. Such construction, he said, would continue in office any officer whose bad be- havior did not reach the magnitude of crime. The only question to be answered, he con- sidered, was whether Judge Archbald was 148 JUDICIAL TENURE IN guilty of such misbehavior as would give cause for the forfeiture of an office he was entitled to hold during good behavior. That acts of misbehavior were to be construed as high crimes and misdemeanors, although no crime could be proved, was the view shared by Senators Boot and Lodge. But Mr. Eoot felt that some of the charges, although they involved improper conduct, fell short of high crimes and misdemeanors. After the con- viction of Judge Archbald he issued a state- ment in which he declared: I have voted the respondent "guilty" because I find that he used the power and influence of his office as judge to secure favors of money value for himself and his friends from railroad companies, some of which were litigants in his court and all of which were under the regulation of the Inter- state Commerce Commission subject to the review of the Commerce Court. I consider this course of conduct, and each instance of it, to be a high crime and misdemeanor. I have voted ' ' not guilty 7 J upon other articles because, while most of them involve improper conduct, I do not consider that the acts proved are high crimes and misdemeanors. 80 so Cong. Record, 62d Cong., 2d Sesa., p. 1448. THE UNITED -STATES 149 The first article upon which Senator Root voted guilty, and upon which Judge Archbald was convicted by so large a vote as to be practically unanimous, charged him with hav- ing entered into an agreement with one Edward J. Williams whereby they became partners for the purchase of a property known as the Katydid culm dump near Moosic, Pennsylvania. This property was owned by the Hillside Coal and Iron Com- pany, a corporation all of whose stock was owned by the Erie Railroad Company, and one John M. Robertson. Williams, having been assured that the share of Robertson could be purchased, sought the aid of Judge Archbald in securing the interest held by the Hillside Coal and Iron Company. Despite the fact that the Erie Railroad Company was a party litigant at this time to several suits before the United States Com- merce Court, Judge Archbald entered into negotiations for the purchase of the prop- erty. By correspondence and personal con- ference, not only with officers of the Hillside Coal and Iron Company but also with the officers of the Erie Railroad Company, he secured the transfer of the Katydid culm 150 JUDICIAL TENURE IN dump to the partnership he had formed with Williams. Similar misconduct was charged in the third article upon which conviction was also secured. In this instance Judge Archbald was accused of having used his influence to secure from the Lehigh Valley Coal Company a lease on a culm dump near Shenandoah, Pennsylvania. The coal company was owned by the Lehigh Valley Bailroad Company, which was at that time a party to at least two suits before the commerce court. Upon the fifth article charging slightly different misbehavior Judge Archbald was convicted by as decisive a vote as before. In this case it was shown that the judge had undertaken to intercede with the officials of the Philadelphia and Beading Eailroad Com- pany to secure favorable consideration toward a friend. Frederick Warnke of Scranton, Pennsylvania, had sought repeat- edly to secure a lease on a near-by culm dump owned by the Philadelphia and Beading Coal and Iron Company. His efforts were in vain although he had negotiated with the officers of the owning corporation and with the presi- dent of the Philadelphia and Beading Bail- THE UNITED STATES 151 road Company. He then turned to Judge Archbald who sought to influence the officers of both corporations to accede to the propo- sition made by Warnke. Although he failed in his mediation, Judge Archbald was re- warded by the payment of a promissory note drawn by Warnke and his associates. Misconduct in his judicial capacity was charged against Mr. Archbald in the fourth article. Here it was proved that while the suit of the Louisville and Nashville Railroad Company v. Interstate Commerce Commis- sion was pending in the commerce court a letter was written by Judge Archbald to the attorney for the railroad company asking information as to the testimony of one of his witnesses. Without the knowledge of the other members of the commerce court, Judge Archbald entered into correspondence with the attorney for the railroad company dis- closing certain developments unfavorable to the case of the company and soliciting fur- ther arguments in support of their conten- tions. This action was taken secretly and without the knowledge of the Interstate Com- merce Commission. On this article Judge Archbald was con- 152 JUDICIAL TENURE IN victed by a trifle more than two-thirds of the Senate. Mr. Eoot voted not guilty, express- ing the view that while improper conduct was involved there was no justification for declaring the acts to be high crimes and mis- demeanors. Mr. Lodge, who concurred with Mr. Root in his vote upon all the other articles, voted the respondent guilty upon this charge. The specific charges of misconduct raised in the first twelve articles were reinforced in the last article by a general charge of mis- behavior during the judicial career of Mr. Archbald. Some objection was made by senators to this article on the ground that it was not limited to definite offenses. Never- theless, it presented a comprehensive state- ment of the sort of misbehavior for which the judge was being impeached, and his con- viction on this article was a distinct triumph for the broad view of the impeachment power. Expressions of satisfaction with the action of the Senate in the Archbald case were heard on all sides. The journals hailed the result as an effective answer to those who argued that impeachment was wholly inade- quate for practical purposes, and many saw THE UNITED STATES 153 in it a check upon the agitation for the popular recall. The Nation in an editorial declared : The removal of the impeached judge, with his disqualification ever again to hold an office of honor or trust under the United States, serves at once as a salutary warning, a notification that the ancient remedies of the Constitution have not lost their virtue, and a revelation that the people are aroused and vigilant as regards anything that may stain the purity of the judiciary. No one accused Judge Archbald of any crime for which he could be punished in a court of jus- tice. There was no charge of bribery or indirect sale of decisions. The only legal question was whether the conduct of which he was shown to be guilty came under the head of misdemeanors or of a breach of that good behavior upon which judi- cial tenure depends, in such a way that the Senate could properly remove him from the bench. 81 Unexpected reinforcement to the impeach- ment power has been given through the result of the trial of Governor Sulzer of New York, who was removed in the autumn of 1913. Although the impeachment was a purely political matter, the charges rested upon broad grounds of unfitness and involved si Nation, Jan. 16, 1913. 154 JUDICIAL TENURE IN offenses committed by Mr. Sulzer prior to his election. The significance of this removal lies in the fact that very broad scope can be given to the impeachment power with reason- able certainty of finding popular approval. The most superficial student of the history of our courts must agree with Bryce that although ' ' the judges have shown themselves independent of Congress and of party, yet the security of their position has rarely tempted them to breaches of judicial duty." Impeachment has been resorted to seldom, but the tone of the federal judiciary has been far better than that of most of the State courts. The acquittal of Justice Chase placed a wise check upon partisan assaults against the courts, although it tended to dis- courage all use of the impeachment power. The courts have thus been able to exercise fearlessly and unhampered the great powers entrusted to them by the Constitution. At the same time it has been possible to punish in an effective manner lapses from judicial dignity or the perversion of office to im- proper ends. CHAPTER IV SELECTION AND TENURE OF JUDGES The tenure of office and mode of selection of the federal judges as provided by the con- vention of 1787 was designed to establish the judiciary as a co-ordinate and independent department of government. The judges were chosen neither by the will of one individual nor by the vote of one branch of the govern- ment, but by the concurrent wishes of the President and Senate. They held their offices not at the pleasure of any group, but by the secure tenure of their own good behavior. The federal courts were thus in a position to decide disputes in an enlightened and im- partial manner, and to pronounce their opin- ions without fear, favor, or partiality. In marked contrast to the independence enjoyed by the federal courts, the judiciary in the several States continued under the legislative domination beneath which they 156 JUDICIAL TENURE IN fell in the revolutionary constitutions. In a majority of the States judges were chosen by the popular assemblies, and not even the action of the convention of 1787 in joining the executive and one branch of the legisla- ture in the selection served to bring about a reform in this respect. Only the tenure of office during good behavior assured the judges in most of the States contributed to erect the judiciary as a respectable branch of the government. The security of the judicial office so ar- dently advocated by the colonists tended to discourage any attempt to place limitations upon the tenure of office of the judges. In nearly all of the States tenure during good behavior was granted the judges, even before the convention of 1787 had stamped this standard with its approval. In Pennsylvania where a term of years was provided for the judges of the first courts established, under the influence of the council of censors a change was made in 1790 to the more secure tenure during good behavior. 1 Likewise the new States of Vermont, Kentucky, and Ten- nessee, which were admitted soon after the i Thorpe: Charters and Constitutions, p. 3079. THE UNITED STATES 157 ratification of the federal Constitution, pro- vided for their judges a similar tenure. 2 In Georgia, New Jersey, Rhode Island, and Connecticut alone were short term commis- sions granted the judges. While legislative appointment was held in high favor as af- fording the best method of selecting judicial officers, the States were uniformly satisfied that a tenure during good behavior was suffi- cient to insure the independence of the courts. The most complete subordination of the courts to legislative control was attempted in the Ohio constitution of 1802. The grow- ing sentiment of democracy which stamped the partisans of Thomas Jefferson permeated this charter. Legislative control not merely of the judiciary but of all the organs of gov- ernment was its chief characteristic. In the East such notions came into violent conflict with the older views, but west of the Alle- ghenies they found a virgin soil. Under this influence the people of Ohio gave their gov- ernor no power of veto, entrusted him with no appointments to office, and limited the commissions of all officers to a fixed term of years. The judges were to be selected by the 2 Thorpe: pp. 1270, 3419, 3765. 158 JUDICIAL TENURE IN legislature, and were to hold office for a term of seven years "if so long they behave well." 3 They were further required to hold a supreme court in each county of the State which kept them on horseback half the year and com- pelled them to give decisions in frontier towns where no law books could be had. Naturally this led to confusion in the law. 4 It soon became apparent that the radical innovations introduced by the constitution of 1802 were unwise. Several attempts were made by the legislature to modify the judi- ciary system, but in 1809 Governor Hunting- ton found it necessary to call attention to defects which still. existed and to urge their remedy. 5 The first supreme court of the State is said to have been composed of ex- ceptionally able men, yet ' ' it was the opinion of the bar generally that the judges ought to have been appointed during good behavior. Serious fears were entertained that the short terms of their offices would lead to a want of stability and uniformity of decisions; and 3 Thorpe : p. 2908. * Burnet : Notes on the Northwest Territory (Cincinnati, 1847), p. 356; Debates Ohio Convention, 1850, p. 597. House Journal (1808-1809), pp. 196-199. THE UNITED STATES 159 might bring them under the influence of leading political men. Fears were also en- tertained that in times of high party excite- ment judges would be selected rather for their opinions than for their legal acquire- ments. " 6 Except for the Indiana constitu- tion of 1816, none of the other States seems to have been sufficiently impressed at this time with the short term commissions for judicial officers to embody the principle in its fundamental law. 7 Following the decision of Chief Justice Marshall in the case of Marbury v. Madison the growth of judicial power was very rapid. By 1818 the power of the courts to pass upon the constitutionality of legislation had be- come recognized everywhere except in Rhode Island, and judges were eagerly following the lead of the supreme court of the United States in proclaiming the independence of the judicial department. The doctrine of judicial review as stated in 1814 by Justice Woodbury of New Hampshire came to be the eBurnet: op. cit., pp. 357-358. 7 Thorpe: p. 1066. 160 JUDICIAL TENURE IN rule adopted for the guidance of courts in every State. 8 Obstacles to the realization of the power of the courts to set aside as null and void legis- lative enactments were encountered in greater degree than elsewhere in those States in which the judges enjoyed the least independ- ence. The Ohio judges who declared uncon- stitutional an act of the legislature were im- peached. Although they were acquitted, the legislature was so indignant because of the assertion of judicial power that they pro- ceeded to declare vacant the offices of the of- fending judges. 9 At the same time the house of representatives passed a resolution "that the judges of the supreme court have no right to set aside an act of the legislature, under pretense that the same is unconstitutional/' Such power, they held, is neither granted in terms by the constitution nor to be implied from any grant contained therein. To admit the doctrine of judicial review would ' i render all laws dependent on the arbitrary will, whim, or caprice of the judges, and would necessarily introduce perfect anarchy and 8 Merrill v. Sherburne, 1 N. H. 204. Supra, p. 113. THE UNITED STATES 161 confusion into the government; destroy its fundamental principles, and subvert every principle of public liberty. " 10 Despite this remonstrance, not only did the doctrine of judicial review become a part of the constitu- tional law of Ohio but a new legislature a few years later re-elected for two successive terms one of the deposed judges. 11 In Georgia, where the judges were chosen by the electorate for the brief term of three years, the supreme court asserted its power in 1815 and set aside an act designed to stay the execution of judgments for the recovery of debts. 12 The legislature indignantly re- sented the interference, and denied the right of the judges to question the legality of its acts. But the remonstrance met with a strong dissent in the senate, where it was objected that to deny to the judicial depart- ment authority to pass on acts of the legis- lature "was to confer on the General Assem- bly the omnipotency of the Parliament of Great Britain; destroy the distinctive char- 10 House Journal (1808-1809), pp. 146-158. 11 Calvin Pease remained upon the supreme bench until 1822. 12 Baldwin : American Judiciary, p. 112. 162 JUDICIAL TENURE IN acter of the two branches of government; put the legislature above the courts, remove the last check on legislative tyranny and oppression ; and leave to the people no other alternative than insurrection or servile obe- dience to unconstitutional acts." 13 In Con- necticut, where the courts were subordinated to the legislature, there seems to have been only one case of judicial review prior to the adoption of the constitution of 1818. 14 The dependence of the judges for their places on the annual pleasure of the general assembly caused much dissatisfaction, for the upper house was generally composed of lawyers, whose good will no judge could afford to be wholly unmindful of conciliating. 15 During this time the legislature exercised a constant supervision over the administration of jus- tice. In 1815 they annulled the judgment and is McMaster: History of the People of the United States, v, p. 400. "The Symsbu.ry Case, Kirby 444 (1785). In this case a legislative enactment making a land grant was not set aside as null and void but was merely given a restricted construction so as to prevent its invading a previous grant. Baldwin : The Three Constitutions of Connecticut, Papers of New Haven Colony Historical Society, v, pp. 226-227. THE UNITED STATES 163 set aside the sentence pronounced against a murderer convicted in the superior court. This action is said to have been widely con- demned and is believed to have contributed in no small degree to the demand for the adoption of a written constitution. It was an important reform of the constitutional convention of 1818 when it placed the judges beyond the control of the legislature by granting them a tenure during good be- havior. 16 The steady growth of judicial power alarmed those who were anxious to maintain the supremacy of the legislative department. Although they could not deny the necessity of the power of review in the hands of the courts, the opponents of the judiciary sought to find means of restraining its exercise by the judges. Many objected that the judges were become "a class of men set apart, not simply to administer the laws, but who ex- ercise a legislative and even an executive power directly in defiance and contempt of the constitution. ' m In Congress the fears ie Trumbull : Historical Notes on the Constitutions of Connecticut (Hartford, 1873), p. 43. 17 Aurora, Jan. 28, 1805. 164 JUDICIAL TENURE IN of usurpation by "this check department of the government" were vividly depicted. 18 President Jefferson was bitter in his denun- ciation of Chief Justice Marshall and de- clared Marbury v. Madison to be mere obiter dicta which he would refuse to observe as law. 19 He became so enraged at the outcome of the trial of Aaron Burr that he gave his approval to a proposal to amend the Consti- tution to limit the tenure of federal judges to a term of years, in order that the courts might be brought under control. 20 The failure to subordinate the courts to legislative control by the use of the impeach- ment procedure, together with their inability to secure the adoption of a provision for the removal of federal judges on legislative ad- dress, caused the followers of Jefferson great disappointment. They not only disapproved of the course of the judiciary but really be- lieved the freedom from control enjoyed by the judges was fraught with great danger to the government. Tenure during good be- havior was assailed as a violation of the fun- is Annals, 7th Cong., 1st Sess., p. 552. i Works (ed. Ford), ix, p. 53. 20 Ibid., x, p. 387. THE UNITED STATES 165 damental principles of American govern- ment. In support of this contention, Macon wrote Jefferson : The great principle of the American govern- ments is election for short periods; yet in most of them it has been departed from in the judiciary. This is attempting to mix principles which cannot be united, that is to make men by the tenure of office independent and upright, who are not so from nature or principle. The tenure of good behavior is a violation of the elective principle. It remains to be determined whether govern- ments uniting two opposite principles will go on smoothly. 21 Jefferson thought "a judge independent of a king or executive alone is a good thing ; but independence of the will of the nation is a solecism, at least in a republic government. ' m At the same time he again urged that future appointments be for four or six years, and renewable by the President and Senate, "in order to bring their conduct at regular pe- riods under revision and probation. " 23 Opposition to the exercise of judicial 21 Jefferson MSS., Feb. 2, 1822. 22 Works (ed. Ford), vii, p. 192. 23 Ibid., vii, p. 256. 166 JUDICIAL TENURE IN power and attempts to abridge the tenure of judges continued to excite only the radical States' rights faction. As early as 1817, it was declared from the supreme bench of South Carolina that i i the co-ordinate author- ity of the judiciary and its right and duty to determine, where its functions involve the question, on the constitutionality of a legis- lative act, is a point now settled by the judg- ment of almost every respectable judicial tribunal, and confirmed by the approbation and acquiescence of all wise and sober states- men in the union. ' ' 24 Madison in 1830 in de- fense of the federal courts declared : Occasional decisions there have been from the bench which have incurred serious and extensive disapprobation. Still it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation. 25 So general was the satisfaction with the courts that when the attempt was made in 1831 to secure a repeal of the 25th section of the judiciary act of 1789, only fifty-one mem- bers of the House of Eepresentatives could 24 Niles Weekly Eegister, xii, p. 248. 25 Madison MSS., Aug. 30, 1830. THE UNITED STATES 167 be found to support the measure. All but six of the fifty-one came from States south of the Potomac and Ohio rivers and were staunch supporters of the doctrines of Thomas Jefferson. 26 While the proposal to repeal the 25th sec- tion of the judiciary act of 1789 was under consideration, Mr. Lecompte introduced in the House of Representatives a proposition to instruct the committee on the judiciary "to inquire into the expediency of amending the Constitution of the United States, so that judges of the supreme court and of the in- ferior courts shall hold their respective offices for a term of years." The proposal was rejected by a vote of 115 to 61. Among those who voted for the resolution are to be found nearly all of the fifty-one who, upon the following day, voted in favor of the re- peal of the 25th section. 27 In the next session of Congress, Mr. Lecompte again brought forward his proposition, but could muster only twenty-seven votes in its favor. 28 Fur- ther attacks upon the federal judiciary were 26McMaster: op. cit., vi, p. 61. 27 Debates, 21st Cong., 2d Sess., p. 540. 28 Ibid., 22d Cong., 1st Sess., p. 1856. 168 JUDICIAL TENURE IN thereupon abandoned, and since that time no serious effort has been made to alter the tenure of judges of the courts of the United States. I While the federal courts were becoming established on an independent basis which thwarted all attempts to subject them to leg- islative control, in the States popular senti- ment with regard to the judicial office had undergone a profound change. It has usually been assumed that the wave of democracy which spread over the country after 1824, and which swept Andrew Jackson and his partisans into power, was responsible for the new attitude toward the courts. Judges had for the most part ceased to exhibit the high- handed and arrogant attitude which charac- terized the colonial judiciary and which a few judges like Addison had sought to adopt in the early State courts. 29 Yet there was a well- defined feeling in many States that the courts were undemocratic and this was thought due to the long tenure granted the judges which seemed to establish them as a privileged class. At the same time the power of ap- 2 Supra, p. 46. THE UNITED STATES 169 pointment vested in the legislature or in the governor and legislature was subject to great abuse. Although the courts were not with- out their defenders, it became apparent that the judicial system in many of the States must undergo a complete transformation both w T ith respect to the tenure of judges and the mode of their selection. 30 This reaction against the judiciary which arose shortly before the middle of the nine- teenth century presented a very different aspect from the attacks made on the courts during the first administration of Jefferson. Although it came at a time when legislative power was on the increase, there was no de- mand for the subordination of the judiciary to legislative control. Leaders of the Jack- sonian epoch would have regarded as too centralizing in its effect the political theory so dominant in the earlier period. In Virginia alone the surviving members of the radical group which had led the as- sault upon Justice Chase sought the estab- lishment of legislative control. The consti- tutional convention of 1830 was dominated by the men who had been the active oppo- so Breckinridge : op. cit., p. 42. 170 JUDICIAL TENURE IN nents of the federal judiciary in 1805. Wil- liam Branch Giles as governor of the State was a leading figure, as was also John Ran- dolph. Judge Roane, whose pamphlet at- tacks on the federal judiciary were not less bitter than the political action of partisan friends, was another member. But John Marshall was also present, and, although en- feebled with age, by his calm and logical arguments more than once restrained the fiery Giles. The view that judges, although commis- sioned during good behavior, might be legis- lated out of office by the abolition of their courts was brought forward by Giles. He argued for a power in the legislature to make alterations in the number and organization of the courts regardless of the effect such changes might have upon the incumbents in office. He could not admit that the good be- havior tenure guaranteed the judges should in any way fetter the legislature in abolish- ing a particular court. Judges should con- tinue in office, he thought, only so long as the office to which they had been appointed was permitted to exist. Let the legislature abol- ish a judicial office and the commission of the THE UNITED STATES 171 judge expired with the court. This conten- tion was ably resisted by Chief Justice Mar- shall, but without avail. The convention by a majority of. eight votes refused to provide for the continuance of a judge in office after his court had been modified or abolished. 31 Thus Giles secured in Virginia the adoption of a theory of judicial office for which he had labored so strenuously in the federal govern- ment a quarter of a century earlier. Elsewhere the demand was for the adop- tion of such expedients as would render the judiciary more immediately responsible to the people. 32 Unlimited tenure was declared to promote carelessness, indolence and tyran- nical feelings on the part of judges and to beget a want of courtesy to the bar and to the people. 33 The mode of selection by the legis- lature or by the governor and the legislature was widely condemned as introducing the evils of party politics into judicial appoint- ments. It was openly asserted that judicial places were become the spoils of partisan conflict and that selections were made not on si Debates Virginia Convention, 1830, pp. 726-731. 32 Debates Pennsylvania Convention, 1838, x, p. 181. 33 Ibid., x, p. 211. 172 JUDICIAL TENUEE IN account of ability and fitness but as rewards for political services. To overcome this evil the selection of judges directly by the elec- torate was declared to be the qnly remedy. 34 In the newer sections of the country the reaction against the judiciary may be traced to the attitude of the courts toward the debtor classes. It must be remembered that on the frontier capital was scarce and rates of interest were high. At the same time the legislatures were restrained, either by the federal Constitution or by limitations im- posed by the fundamental laws of the States, from offering adequate relief to debtors. The courts in their administration of justice seemed to bear hardly on the poor and to stand as a bulwark to the rich. The struggle over the judiciary in Ken- tucky during the twenties is so well known that extended consideration of the situation is unnecessary. 35 The legislature in 1820 enacted legislation designed to afford an easy method of release from the obligations which 3* See especially Debates Ohio Convention, 1850, i, pp. 66, 67; Debates Maryland Convention, 1851, ii, pp. 461-464. SB Haines : American Doctrine of Judicial Supremacy, pp. 231-235; McMaster: op. cit, v, pp. 162-166; Breckin- ridge: op. cit., pp. 78-82. THE UNITED STATES 173 were burdening the debtor class of the State. When these acts were contested in the State courts, they were set aside as being uncon- stitutional. Vigorous opposition was at once voiced throughout the State, and an attempt was made to remove from office Judge Clark who had handed down the obnoxious decision. Failing in this, the legislature organized a new court of appeals and the issue was taken up by the politicians. The confusion was gradually resolved and the question soon passed out of Kentucky politics. 36 In Alabama more lasting results followed the outburst of dissatisfaction with the en- forcement of legislation affecting the debtor class. Decisions of the supreme court of the State between 1824 and 1830 permitted, under certain conditions, a rate of interest on con- tracts as high as five per cent, per month and allowed a regular rate of interest at eight per cent, per annum. Much feeling was aroused 36 Collins: History of Kentucky, i, p. 218 et seq. See also Phelan: History of Tennessee, p. 301. In Tennessee the convention of 1834 abolished tenure during good be- havior for the judicial office because of the feeling that the judges had become too high-handed and overbearing. This action followed closely upon two judicial impeach- ments undertaken by the legislature. 174 JUDICIAL TENURE IN and repeated demands for changes in the judicial system were heard. 37 The legislature accordingly in 1830 submitted to the people, and the people approved, an amendment limiting the tenure of office of judges to six years. But it was provided that the judges then on the bench, who had been chosen for unlimited terms, might remain in office until 1833. 38 This marked the beginning of the movement to limit the tenure of judges of the States to a term of years. A few years later the supreme court of Maine brought upon itself adverse criticism as the result of an opinion construing acts of the legislature for the relief of poor debtors. 39 A resolution was passed by the legislature in March, 1839, and submitted to the people in September of that year, pro- viding that "judges should hold office for seven years, if not sooner disqualified. ' >4 The courts in each instance seem to have de- cided in accordance with the law, but con- 37 Henry v. Thompson, 1 Minor 209 (1824) ; Ellis v. Bibb, 2 Stewart 63 (1829). See also Niles Weekly Register, xv, p. 43. ss Brown : History of Alabama, pp. 156-157. Knight v. Norton, 15 Maine Rep. 337. rlVl _ R| "^"^'r^ I rt /inn o i to j nr2 1 64 -IP _ JJ; OEC 8-76 u oOm-7/38 YB 08415 28842 UNIVERSITY OF CALIFORNIA LIRARY