other than the Houses of Congress functioning in impeachment proceedings.

It is not merely a question as to whether there be dead words in the Constitution. If these words, the good-behavior provision, do not constitute a justiciable issue, we would have not merely some dead words in the Constitution but we would have dead in the Constitution what would otherwise be as important a remedial and protective provision as is contained in the Constitution.

All commentators agree there are no dead words in the Constitution. Certainly the historical background of this provision in our Constitution precludes any notion that the Executive may vitalize this condition of good behavior. It was included in the English Constitution, from whence it came to us, for the specific purpose of denying to the Executive the exercise of any such power. By the process of elimination we come to the conclusion that only by the recognition of good behavior as a justiciable issue can these words, this important provision, be other than dead in the Constitution.

The Constitution provides two methods of ouster of Federal judges, trial by impeachment, and trial by a court. Let the analogy to the case of a State be considered. Practically all the States have provisions for ousting public officers by the judgment of a court and also by impeachment. For instance, the treasurer of a State who is guilty of embezzlement may be ousted by a court judgment. He still may be ousted by impeachment under the constitution of practically every State in this country. The fact that he may be impeached does not prevent him from being ousted by a court judgment, and the fact that he may be ousted by a court judgment does not prevent him from being impeached. The same is true with reference to Federal judges. This proposed trial of the issue of good behavior in a court is as though there were no impeachment provision in the Constitution. It is a lawsuit based upon an alleged breach of the contract of a judge to behave himself well, a condition in the contract between the judge and the people which by its nature is a justiciable issue.

This bill, of course, would not, per se, interfere with the jurisdiction of the Senate to try an impeachment case. It would not interfere with the power of the House to initiate and prosecute in the Senate. It would add a second method of procedure. Both could be tried and it could be seen which works best.

Impeachment is a blanket power operative upon all civil officers. It does not make any difference what is provided in the law with regard to tenure of office. The impeachment power that is lodged by the Constitution in the Houses of Congress is not given to them as parts of the legislature, but to the persons who constitute the House and the persons who constitute the Senate, and when they act, they act as separate entities. The House discharges its constitutional duties as a separate entity, and the Senate discharges its constitutional duties as a separate entity. They act as the custodian and trustee of a peculiar power that possesses some of the elements of all the powers of government.

Suppose the tenure clause be read again. Judges, it will be seen, are not appointed for life; they are appointed during good behavior. That is a condition included in the contract between the people and the judge. By its nature it is triable and enforceable in a suit. It is justiciable. The logical query is why is there uncertainty about it, not why should it be triable. There is no legal, constitutional, or rational answer.

O

TRIAL OF GOOD BEHAVIOR OF UNITED STATES DISTRICT

JUDGES

JUNE 17, 1937.—Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. CELLER of New York, from the Committee on the Judiciary, submitted the following

MINORITY REPORT

[To accompany H. R. 2271]

It is with great reluctance that I must differ from the views expressed by our esteemed chairman of the Committee on the Judiciary, Mr. Sumners of Texas. It is not often that any of the members of our committee disagree with him. In any event, we are usually loathe to express such difference of opinion because of our deference to his unusually sound judgment. However, H. R. 2271, providing for a rather novel "trial of good behavior" of United States district judges, is so transcendental in importance, and so fraught with intense interest, that I would indeed be derelict in my duties as a Member of Congress and ranking member of the Committee on the Judiciary if I would not express my views, although they may not be in accord with those of our distinguished chairman.

The underlying purpose of the plan proposed is a sort of mild chastisement of the Senate. The Senators have frequently, it is charged, not done their duty as members of a tribunal hearing impeachment charges preferred by the House. The Senators go in and out of the chamber during the trial, few if any have remained throughout the proceedings yet all have a solemn duty to perform. Beyond peradventure of doubt, there is good ground for saying that the Senators have not done their duty. But because the Senators do not do their duty is no valid reason for setting up the novel proceeding embodied in this bill. The proper remedy is for the Senators to perform their duty.

GOOD BEHAVIOR IS NOT A JUSTICIABLE QUESTION

Under the Sumners bill, the court composed of three circuit judges as selected by the Chief Justice of the United States Supreme Court, hear the charges preferred by the House of Representatives. These

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charges shall grow out of the "good behavior" provision of the Constitution. Section 1 of article III of the Constitution states, among other things, that "The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, The charges, therefore, that this new court must sift is the lack or failure of "good behavior", that is, misbehavior. What is "good behavior?" The Constitution does not define it. The instant bill does not define it. What does it mean? What is good behavior to one man may be bad behavior to another. What is one man's meat may be another man's poison. What is good grounds to one man may be "coffee grounds" to another. President Green of the American Federation of Labor would undoubtedly hold Mr. Lewis of the C. I. O. guilty of bad behavior; while Mr. Lewis would undoubtedly hold Mr. Green similarly guilty of bad behavior. When Cleveland, in the Pullman strikes, called out the troops, a vast number of people wanted him impeached, while on the other hand many people praised him to the skies. Roosevelt would alike be condemned and praised if he called out troops in the steel strikes today. Who knows where the truth lies? Who knows what is "good behavior?" The common criminal can claim violation of the due-process clause of the Constitution if the law under which he has been indicted is vague and indefinite, or the indictment itself is ambiguous or indefinable. Certainly, when one is charged with "bad behavior", he is indeed at a loss to know what that means. He can and will invoke the charge of violation of "due process."

THIS BILL WILL STRIKE AT THE INDEPENDENCE OF THE JUDICIARY

We often grow impatient with the courts and the judges, especially when they decide against us. But all sensible men in retrospect are grateful to the judges and the courts, primarily, for their protecting of our liberties; for their protecting the weak against the strong, the poor against the rich, the subject against the ruler, and the humble citizen against the harshness of government. We are often tempted, at times, to strike at and punish the judges. But we must remember that judicial independence is essential to any government designed for free men. The courts must be made as impervious as possible against unnecessary or unwarranted attacks from either the executive or legislative branches of the Government. Montesquieu said, "There can be no liberty if the power of judging be not separate from the legislative and executive powers." This bill would make easier and more frequent the attacks on the judges and the courts. It is claimed that the remedy of impeachment is difficult and cumbersome. I believe that is as it should be. The power to attack the courts should be sparingly if ever used. Impeachment is difficult. It should remain so.

Frankly, are our courts so bad? Our district judges are as conscientious, courageous, and intelligent a lot of judges as can be found. in any land. As a class, they are comparatively free from corruption, chicanery, and fraud. Occasionally, there may be one or two who misbehave. These occasions are rare. Even the diamond has flaws; the sun has its spots. The judges as a class are entitled to a few renegades. In 148 years since the Constitution, only nine judges have been impeached-a d good record. good record. Of the nine judges impeached, five were found innocent. There have been only four judges found guilty and removed in 148 years.

THERE IS NO APPEAL IN THE INSTANT BILL

The distinguished Senator from California, Mr. McAdoo, has offered a bill providing a high court for the trial of judicial officers, to be composed of 10 senior circuit judges and the chief justice of the Court of Appeals of the District of Columbia, 11 judges in all. The accused judge was to be tried before that tribunal, but he has an appeal to the Supreme Court on questions of law. In the Sumners. bill, no appeal whatsoever lies. There is no jury; the decision of three circuit judges is final.

Be it remembered, also, that in an impeachment trial two-thirds. vote of the Senate is necessary. Under the provisions of the instant bill a majority vote of two or three judges is all that is necessary. Be the dissent ever so strong, the judge must be removed.

WHY IS THE BILL LIMITED TO THE TRIAL OF DISTRICT JUDGES?

The President appoints all the judges, the district as well as the circuit judges. If Presidential appointees as circuit judges can try district judges, why should not Presidential appointees as district judges try circuit judges?

WHY LIMIT THE TRIBUNAL TO CIRCUIT JUDGES?

If three circuit judges can constitute a court, the bill, with just as much grace and logic, could just as well provide a tribunal, to be appointed by the President or by the Chief Justice of the Supreme Court, of three ordinary citizens. Why limit the court to circuit judges? It could be three justices of the peace; or three presidents of three ch umbers of commerce, or three Liberty Leaguers, or the butcher, the baker, the candlestick maker? If it is constitutional for us as Members of Congress to set up a court to be composed of three circuit judges, it is equally as constitutional for us to set up a court to be composed of three Daughters of the American Revolution.

FOR 150 YEARS REMOVAL OF DISTRICT JUDGES HAS ONLY BEEN BY IMPEACHMENT

To my mind, the best argument against the validity of this proposed bill is this novelty. Can it for one monent be supposed that the framers of the Constitution intended to vest Congress with an important power, and then so skillfully conceal it that it could not be discovered save after 150 years?

THE INDEPENDENCE OF JUDGES

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I herewith quote from a very interesting article by Merrill E. Otis, reprinted from the Kansas City Law Review, December 1936 issue: "This independence of judges", Alexander Hamilton wrote long since, "is equally requisite to guard the Constitution and the rights of individuals The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate, and if convicted may be dismissed from office and disqualified from holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial

H. Repts., 75-1, vol. 2- --20

character." And long since John Marshall said: "Is it not to the last degree important that he (the judge) should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? * * * I have always thought from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary."

CONGRESS CANNOT LEGISLATE CONCERNING THE TERMS AND TENURE OF OFFICE OF THE JUDGES

This is purely a constitutional matter imbedded in the Constitution. The tenure of office for life during good behavior-anything that affects the tenure of the judges must be as the Constitution dictates. It is not a matter of legislation. A trial for misbehavior, therefore, must be in pursuance of the Constitution.

INTENT OF FRAMERS OF CONSTITUTION CONCERNING OUSTER OF JUDGES

A study of the debates in the Constitutional Convention, and particularly those of Monday, August 27, 1787, clearly indicate that the framers of the Constitution intended only one method of ouster of judges, impeachment. It was on that day that they discussed the provision that judges should hold office during good behavior. Delegate Dickinson of Delaware proposed, as a method for removing judges, additional to impeachment, that they "may be removed by the Executive on the application by the Senate and House of Representatives." (It is not recorded that he argued that what the Congress may do it may undo.) The champions of an independent judiciary were stirred to vigorous and immediate dissent. The proposal almost unanimously was voted down. Would not the framers of the Constitution have been surprised to learn that, themselves spurning an alternative of impeachment almost identical with it, unwittingly they had empowered Congress to adopt any alternative it chose.

The power to try judges, or remove them from office, would clearly be limited to impeachable offenses, under the general doctrine that where a constitution names certain things as constituting offenses, and gives specific powers with reference to certain subject matter, it is intended to be exclusive. Mr. Cooley, in his work on Constitutional Limitations (eighth edition, p. 139), quotes this rule as follows:

Another rule of construction is, that when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.

The Supreme Court of Mississippi, in State v. J. J. Henry (87 Mississippi Reports 125, 40 Southern Reporter 152), under clause (d) of the first syllabus, says:

Where the Constitution enumerates power granted or denied, it must be held to have named all of the powers so dealt with and as being, with the necessary implications, the sole limit of authority or restriction.

To the same effect is the case of Rhode Island v. Massachusetts (12 Peters 657, 9 L. ed. 1233); and Myers v. United States (272 U. S. 52, 71 L. ed. 160).

1 The Federalist, no. LXXIX.

From Debates in Virginia Convention, as quoted by Mr. Justice Van Devanter in Evans v. Gore (253 U. S. 245 (1920)).

See Warren's, "The Making of the Constitution, 532."