any office under the United States until four years next after he had ceased to be such justice.

71. REMOVAL OF JUDGES-IMPEACHMENT.

The framers of the Constitution, in order to secure the independence of the judiciary, very wisely provided that the judges should hold their office during good behavior, 1 hence they could be removed only by impeachment. The ratifying convention of New York appears to have been dissatisfied with that provision of the Constitution which vested in the Senate the sole power to try impeachments,2 for it included in the series of amendments which it recommended an elaborate article on this subject. It proposed that the court for the trial of impeachments should consist of the Senate, the judges of the Supreme Court of the United States, and the first or senior judge of the highest court of general and ordinary common law jurisdiction in each State, a majority of those present being necessary to convict. In the series of amendments proposed by Mr. Benson of New York, in 1791, for the creation and conduct of general judicial courts, were articles providing that judges of this court might be impeached by the most numerous branch of the State legislature, as well as the House of Representatives, the impeachment to be tried by a court estab lished by an act of Congress, to be held in each State, and to consist only of United States Senators, judges of the United States Supreme Court, and judges of the general judicial courts. A two-thirds vote was necessary for conviction.*

Immediately upon the failure of the Senate to convict Judge Chase in the celebrated impeachment trial in 1805,5 John Raudolph, who had been one of the House managers of the trial, in his discomfiture, proposed an amendment so as to make United States judges removable by the President on the joint address of both Houses of Congress.

1 Art. III, Sec. 1.

2 Art. I, sec. 3, cl. 6.

3 App., No. 70. It further gave Congress power to pass the necessary laws for the estab lishment and regulation of this court. This was modeled after the provision in her constitution.

4 App., Nos. 306, 307, 308.

5 For Jefferson's connection with the attempt to impeach Chase, see Willoughby, The Supreme Court, pp. 90-92; Morse, Jefferson, pp. 262-263. His great disappointment is seen in his letters. "Impeachment is not even a scarecrow." Works, VII, pp. 256; see also ibid., pp. 134, 192, 216. For account of trial see Foster, Com. on Const. 1, pp. 533-542; Adams, U. S., II, Chap. X.

6 App., No. 366. Suggested probably by the English system. See Jefferson's Works, VII, p. 256. A similar provision in five of the State constitutions of the Revolutionary period. Davis, Am. Consts. pp. 506, 530. See ante, par. 29, for amendment introduced by Nicholson reflecting on the judicial fairness of the Senate. Also Bryce, I, p. 268.

The resolution was referred to the Committee of the Whole by a vote of 68 to 33. In the following year he reintroduced this amendment and it received considerable discussion.1 Between the years 1807 and 1812 nine amendments were presented on the removal of judges. Among these were the resolutions of the legislatures of the States of Vermont, Massachusetts, and Pennsylvania,3 but in Massachusetts the next legislature revoked and annulled the instructions of the preceding year.4 There was some difference in these propositions as to the majority required to pass such a joint address. Some, as that proposed by Mr. Wright of Maryland, simply required a majority of the members present, others required a twothirds or a three-fifths vote of each House, while the Massachusetts proposition called for a majority of the House of Representatives and two-thirds of the Senate. The proposition submitted by Mr. Maclay also provided that on all trials of impeachment "a majority of the Senate shall be competent to conviction." This was probably suggested by the fact that a majority vote had been secured on some of the articles in the trial of Judge Chase, but all fell short of the two-thirds essential to convict. Two additional amendments in regard to the removal of judges were presented, one in 1816 by Mr. Sanford of New York, the other in 1822 by Mr. Holmes of Maine. The former provided for the removal of any judge of the Federal courts whenever the President and two-thirds of both Houses of Congress should consider that such action would promote the public good.10 The latter was similar to Randolph's proposition."

With these amendments the only considerable attack on the personnel of the judiciary practically ends, although propositions have since been submitted at two widely separated periods

App., No. 371.

2 App., Nos. 380, 381, 382, 383, 385, 389, 398, 402, 405. The popular branch of the legislatures of Virginia and Tennessee approved of this amendment. History of this attack, see Adams, U. S., vol. IV, pp. 204–207. For reasons which induced presentation of No. 405 (presented by Adams), see Niles' Register, II, p. 109. The legislature of Rhode oppose such an amendment. p. 631.

Island requested their Senators and Representatives to
Annals of Congress, Eleventh Congress, second session,

4 Resolves of Massachusetts, November 14, 1808, vol. XII, p. 12, 317. App., No. 402.

Mr. Tiffin of Ohio, App., No. 380.

7 Mr. Campbell of Tennessee, App., No. 382.

8 App., No. 389.

App., No. 383.

10 App., No. 456. 11 App., No. 508a.

by two different members of Congress. Over a quarter of a century later Mr. Underwood of Kentucky twice proposed an amendment which declared that whenever a majority of the members of each branch of Congress should concur in an address to the President for the removal of any judge, his office should be vacant from the day of the delivery of such address.' In 1867 Mr. Williams of Pennsylvania twice renewed the proposal for the removal of judges by the President on the address of two-thirds of each branch of Congress.2

72. TERM OF JUDGES-AGE LIMIT.

The life tenure of judges was agreed to by the unanimous vote of the Convention of 1787. From time to time attempts have been made to limit this tenure either by prescribing an age limit or by fixing upon a definite term of years. The first of these propositions was introduced by Senator Pope of Kentucky, in 1809, in connection with a provision for the removal of judges. It proposed that judges should not continue in office after attaining the age of 65.3 A second, submitted by Mr. Eastman of New Hampshire, in 1826, fixed the age limit at 70.4 Some ten years later a motion was made directing the Committee on the Judiciary "to inquire at what age judges shall be rendered incompetent to serve."5 An age limit was proposed for the last time by Mr. Ashley, in 1869, in connection with his amendment for a twenty-year term for judges. It required the retirement of judges at 70 years with a pension for life. These resolutions were evidently intended to guard against the chance of a judge remaining on the bench after he had lost his vigor and acumen. The object has been attained by the act of April 10, 1869, providing for a retiring allowance.

The second group of amendments on this subject was probably suggested by a desire to bring the judges more directly App., Nos. 755b, 761.

2 App., Nos. 1208, 1214. A judge may be removed on the address of the legislature in thirty-six of the States. Bryce, I, p. 506; Davis, J. H. U. Studies, 3d series, pp. 506, 530; Foster, Com. on the Const., I, sec. 96, pp. 605-606. An amendment, proposed by Mr. George, in 1882, for the term and election of judges of the inferior courts, provided that the President, with the consent of two-thirds of the Senate, may remove a judge for disability. App., No. 1545.

App., No. 398. 4 App., No. 575.

App., No. 638.

App., No. 1315d. Mr. Ashley said it was a sad sight to see "one-third of its members sleeping upon the bench and dying with age, and one third or more crazed with the glitter of the Presidency." Globe, App., Fortieth Congress, third session, p. 210; ante, par. 70.

7 Revised Statutes, 1878, sec. 714.

under popular influence. Three of these amendments introduced in 1807-08, calling for the removal of judges,' also stipulated that the judges should hold office for a limited term of years. This same proposition was not again introduced until the early thirties, when three resolutions proposing such a change were presented. Between the years 1839 and 1844 Senator Tappan of Ohio offered at four different times an amendment limiting the judges to a term of seven years." Andrew Johnson was particularly zealous in advocating an amendment to limit the judges to a term of twelve years, onethird retiring every four years. This amendment was first presented by him in the early fifties, when a member of the House. In 1860, when Senator, he recommended the same proposition in connection with his compromise amendment, and in this draft he provided that all the vacancies should be filled by persons one-half coming from slaveholding States and onehalf from nonslaveholding States, so that the court should be equally divided between the two sections. In 1868, as President, he again urged in a special message to Congress the necessity of limiting the term of judges to twelve years.

In the later sixties there were five aaditional propositions to change the tenure of judges to a stated term of years. Two of these resolutions proposed an eight-year term, two a ten, and the remaining one a twenty-year term. In 1879 the amendment proposing a twelve-year term was again revived." The preamble of this last resolution characterized "the life tenure

Ante, par. 71.

2 App., Nos. 380, 383, 385.

3 Jefferson's fear and jealousy of the power of the judiciary was so aroused that in 1822 we find him suggesting this means of controlling the court. In a letter to William T. Barry, of July 2, 1822, he writes: "Before the canker is become inveterate, before its venom has reached so much of the body politic as to get beyond control, remedy should be applied. Let the future appointment of judges be for four or six years and renewable by the President and Senate. This will bring their conduct at regular periods under revision and probation and may keep them in equipoise between the general and special governments. That there should be public functionaries independent of the nation, whatever may be their demerits, is a solecism in a republic of the first order of absurdity and inconsistency." Works, VII, p. 256, see pars. 71, 77.

4 App., Nos. 605, 608, 637, €38, 639. Another presented in 1848 by Mr. Thompson of Mississippi, No. 752.

App., Nos. 700, 704, 731, 727.

6 App., Nos. 767, 772.

App., No. 815. Ante, p. 91.

App., No. 1232.

Both by Mr. Cobb of Wisconsin, App., Nos. 1196, 1227; also proposed choice by both Houses of Congress; ante, par. 69.

10 App., Nos. 1246, 1315d, 1320.

11 By Mr. Finley of Ohio, twice; App., Nos. 1478, 1494.

of office" as "a relic of the Old World and incompatible with the genius and spirit of our republican form of government, placing public functionaries above a due sense of responsibility to the people."

1

73. COMPENSATION OF JUDGES.

The ratifying convention of Virginia proposed an amendment which provided that the salary of a judge should not be increased or diminished during his continuance in office otherwise than by general regulations of salary, which should take place in a revision of the subject at stated periods of not less than seven years.2 The North Carolina convention incorporated this same recommendation into their series of proposed amendments, and it was likewise moved in the Senate as an additional article to the Bill of Rights, but it failed to pass. The only other change suggested to the provision of the Constitution on this subject was a verbal one, made in connection with an amendment on the removal of judges in 1809, by Mr. Pope.5

74. ESTABLISHMENT AND JURISDICTION OF INFERIOR COURTS.

Circuit and district courts were created by Congress in 1789 under the power in the Constitution to establish "inferior courts." The ratifying convention of Virginia proposed an amendment, which the North Carolina convention copied, the aim of which was to take from Congress the power to create Federal courts inferior to the Supreme Court, other than courts of admiralty. This same proposition was introduced in the Senate during the first session of Congress. Attempts were likewise made in the House to substitute for the words "tribunals inferior to the Supreme Court" wherever they appear in the Constitution, the words "courts of admiralty," thus accomplishing the same end which the Virginia amendment had in view.8

The New York convention also included in their series of proposed amendments a proposition limiting the jurisdiction

1 Life tenure for judges is only retained in four of the States. Bryce, I, p. 506.

2 App., No. 45.

3 App., No. 98.

4 App., No. 287.

App., No. 398.

App., Nos. 39, 92.

App., No. 284.

8 App., Nos. 201, 208, 237.