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The process of the "Removal"
of judges was explained Tuesday, June 1, at the Press Conference in
the State House.
Two Memoranda were distributed and the
full text of an important case from 1883 was given to everyone. All
three are reported here.
* * * * *
What Is "Removal" of Judges?
What is "Removal" of Judges?
The procedure for the "Removal" of judges
has been in the state Constitution since 1780 without change.
What are the salient words in Article 98 of the state Constitution?
The governor, with the consent of the council,
may remove them [the judges] upon the address of both houses of the legislature.
(Please note that "them" is plural,
showing that the framers contemplated the removal of more than one judge
at a time.)
What was the purpose of these words?
The founders, led by John Adams, anticipated that
judicial tyranny would happen and become a threat to society. When judges
ignore the law and impose their own views on the citizens, the intended
remedy is not to amend the Constitution but to remove the errant judges.
Are there other Articles on this subject besides Article 98?
There are three articles in the Declaration of
Rights with excellent verbiage about the freedom of the people to rule
themselves, but there is only one article in the state Constitution, Article
98, that deals with the remedy that is used in the removal of judges.
The three articles in the Declaration of Rights are Articles 8, 29 and
30:
"Article VIII. In order to prevent
those, who are vested with authority, from becoming oppressors, the people
have a right, at such periods and in such manner as they shall establish
by their frame of government, to cause their public officers to return
to private life; and to fill up vacant places by certain and regular elections
and appointments."
"Article XXIX. It is essential to
the preservation of the rights of every individual, his life, liberty,
property, and character, that there be an impartial interpretation of
the laws, and administration of justice. It is the right of every citizen
to be tried by judges as free, impartial and independent as the lot of
humanity will admit. It is, therefore, not only the best policy, but for
the security of the rights of the people, and of every citizen, that the
judges of the supreme judicial court should hold their offices as long
as they behave themselves well; and that they should have honorable salaries
ascertained and established by standing laws."
"Article XXX. 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 it may be a government of laws and not of
men."
Is it really simple?
Yes. There are no rules or regulations. This is
not a "trial," as in an "impeachment," where there
is a type of indictment which must be proven. In "removal,"
each legislator decides for himself, within his own conscience and soul,
and without explanation to anyone, whether the judge(s) should be removed.
Of course, the legislator will be judged by his constituents at the next
election, regardless of which way he or she votes. For that reason, many
legislators would rather not vote at all.
Where is the "Removal" process found in our Constitution
today?
It is found in two places, in the main body of
the Constitution and in the Amendments. The correct location is in Article
98 (XCVIII) of the Articles of Amendment. Although the exact same words
are found in the main body under Article I of the Judiciary Power, that
has been amended by Article 98 to also include language about the retirement
of judges. The full text of Article 98 (with the unimportant words deleted)
is:
The tenure, that all commissioned officers
shall by law have in their offices, shall be expressed in their respective
commissions. All judicial officers, duly appointed, commissioned and
sworn, shall hold their offices during good behavior, excepting such
concerning whom there is different provision made in this Constitution;
provided, nevertheless, the governor, with the consent of the council,
may remove them upon the address of both houses of the legislature; and
provided, also, that the governor, with the consent of the council, may
after due notice and hearing retire them because of advanced age or mental
or physical disability; and provided further, that upon attaining seventy
years of age said judges shall be retired. Such retirement shall be subject
to any provisions made by law as to pensions or allowances payable to
such officers upon their voluntary retirement."
It is apparent that the last half of Article 98
is what was added about mandatory retirement of judges.
The applicable part of Article 98
Hence, the applicable part of Article 98 is: "All
judicial officers, duly appointed, commissioned and sworn, shall hold
their offices during good behavior …; provided, nevertheless, the
governor, with the consent of the council, may remove them upon the address
of both houses of the legislature; …"
What is the exact wording that has been in
our Constitution without change since 1788?
"The tenure, that all commissioned officers
shall by law have in their offices, shall be expressed in their respective
commissions. All judicial officers, duly appointed, commissioned and sworn,
shall hold their offices during good behavior, excepting such concerning
whom there is different provision made in this Constitution; provided,
nevertheless, the governor, with the consent of the council, may remove
them upon the address of both houses of the legislature;"
Why is this cited by the Legislature as being "under
the provisions of Article I of Chapter III of part the Second of our Constitution?"
The portion of our Constitution that is labeled
Article 98 (XCVIII) has been placed under the Amendments. The following
is found in the Constitution immediately after the numeral 98 (XCVIII):
"Article XCVIII. Article I of Chapter III
of Part the Second of the Constitution, as amended by Article LVIII of
the Amendments to the Constitution, is hereby annulled and the following
Article is adopted in place thereof:-
"Article I. The tenure, that all commissioned
officers shall by law have in their offices, shall be expressed in their
respective commissions. All judicial officers, duly appointed, commissioned
and sworn, shall hold their offices during good behavior, excepting such
concerning whom there is different provision made in this Constitution;
provided, nevertheless, the governor, with the consent of the council,
may remove them upon the address of both houses of the legislature; and
provided, also, that the governor, with the consent of the council, may
after due notice and hearing retire them because of advanced age or mental
or physical disability; and provided further, that upon attaining seventy
years of age said judges shall be retired. Such retirement shall be subject
to any provisions made by law as to pensions or allowances payable to
such officers upon their voluntary retirement."
That is the full text of Article 98. The next
Amendment, Article 99, concerns the valuation of agricultural land.
* * * * *
History of "Removal" of Judges,
Has It Been Used Before?
When Justice Marshall decided the case about
"gay marriage" even before it was filed on April 11, 2001, by
her friend, Mary Bonauto, who can correct this serious disobedience of
our Constitution except for the Legislature? The Courts can not do it.
Nor can the Governor.
Indeed, it was for this occasion that John Adams
had the wisdom and the foresight to include Article 98 and "removal"
in the Constitution during its drafting in 1780.
The power structure has never liked Adams' provision
and has tried several times to remove or modify the provisions of Article
98. It is still trying now in 2004, particularly the lawyers.
A seminal decision by the Supreme Judicial Court
in 1883, "Commonwealth v. Harriman," recited the history of
the provision up until then. (See the separate handout for the full text
of that opinion.) It wrote that the Declaration of Rights and the Removal
provisions were "mostly the work of John Adams."
It stated: "No student of the Constitution
and its history can fail to see that it was the purpose of those who framed
it, and of the people who adopted it, to establish a carefully prepared
system of government, consisting of three coordinate departments, the
executive, legislative and judicial, each, as far as practicable, independent
of the others, each balancing yet protecting, checking yet preserving,
the others."
It continued: "In this form they were accepted
by the people, and have stood unaltered as the fundamental law to this
day, notwithstanding the several attempts which have been made to modify
them."
The first such attempt came at a Constitutional
Convention in 1820 when many of the establishment, "the most eminent
jurists and statesmen," made a "strenuous effort" to make
the requirement be 2/3 of the legislators but this was rejected by the
Convention "by a large majority." Another change, which would
have required that the judges be apprised of the "causes of the removal,"
was approved by the Convention in 1820 but rejected by the people. "[T]hey
[the people] thus [decreed] that the power of removal by address should
stand as it did in the Constitution of 1780."
The Court summarized this in a short statement:
"We think the uniform practice since 1780 has been to regard this
provision as conferring an unrestricted power of removal upon the legislative
and executive departments. When we consider the origin and history of
the provision, the obvious and natural meaning of its language, and the
uniform practical construction which has been given to it, we are forced
to the conclusion that the intention of the people was to entrust the
power of removal of a judicial officer to the two coordinate branches
of the government without limitation or restriction."
The power was used "infrequently," according
to the court, but its presence was a powerful statement to the judges.
It cited an 1803 case, where two judges on the
trial court were removed for extortion. The lawyers representing the plaintiffs
in the 1883 case also mentioned some other cases:
1821. A judge of Probate was removed.
1858. Two trial judges removed for extortion.
Since the decision in 1883, the provision has
remained intact, although there are lawyers who question whether the provision
satisfies federal Due Process. This is an "interesting" question
that lawyers would love to debate for many reasons, but it does not help
this state to move on with its business. Therefore, Representative Goguen
has had an Indictment prepared which sets forth for the four judges a
list of the five Counts which will be used against them in the Removal
procedure.
The Legislature has sent Bills of Address to various
committees in the past, inasmuch as the power structure, particularly
the lawyers, has never liked John Adams' idea. But that process of sending
a Bill of Address to a committee cannot be found in the Constitution,
and there is no reason to do so. Sending it to Committees might be all
right if these were honest Committees, but in the present Legislature
this is just another way for one powerful politician to either delay or
kill the entire process if he desires and thwart the will of the people.
Representative Goguen filed his Bill of Address as a Resolution, but somewhere,
someone changed it to an ordinary Bill which is submitted to Committees.
This gives Representative Salvatore DiMasi (D-Boston) the power to kill
the measure all by himself. He is the leader of the Democratic Party in
the House and is apparently going to attempt suicide for himself and the
Democratic Party as Tom Birmingham did in 2002.
Other removals which were not mentioned in "Commonwealth
v. Harriman" are:
1787. A Removal occurred in 1787 in which a judge,
a justice of the peace and a coroner were removed for "misbehavior
in rebellion," which referred to Shay's Rebellion.
1803. A justice of the SJC removed after he suffered
palsy.
1855, 1856 and 1858. A state judge who was also
a federal commissioner was finally removed after he allowed the extradition
of a fugitive slave in fulfillment of the federal Fugitive Slave Act.
1952. Judge Ruby resigned before the commencement
of removal proceedings.
1965. Judge Gordon resigned after a petition for
a Bill of Address was filed by the Chief Justice of Superior Court.
1972. Judge de Saulnier resigned but a proposed
Bill of Address was rejected by the legislative committee for Judge Brogna.
1973. Judge Troy was Removed by Bill of Address.
1978. Judge Bonin resigned after Removal proceedings
were started.
2001. Judge Maria Lopez resigned after a Bill
of Address was filed.
* * * * *
COMMONWEALTH v. HIRAM P. HARRIMAN, 134 Mass.
314
Jan. 18, 19, Feb. 28, 1883.
These appear to be headnotes entered by someone.
**1 *314 Under the Const. Mass. c. 3, art. 1, providing that "all
judicial officers, duly appointed, commissioned and sworn, shall hold
their offices during good behavior, .... provided, nevertheless, the Governor,
with consent of the Council, may remove them upon the address of both
houses of the Legislature," a judicial officer may be removed by
address, for misconduct and maladministration in office, although he is
liable to trial therefor, by impeachment, by c. 1, § 2, art. 8, of
the Constitution.
An address to the Governor by both houses of the Legislature, under the
Const. Mass. c. 3, art. 1, requesting the removal of a judicial officer,
need not assign any reasons therefor.
INFORMATION, in the nature of a quo warranto, filed, June 28, 1882, by
the Attorney General in behalf of the Commonwealth, at the request and
upon the relation of Joseph M. Day, alleging that the defendant was usurping
the office of Judge of Probate and Insolvency for the county of Barnstable.
The case as it appeared from the pleadings, and the report of C. Allen,
J., before whom it was heard, was as follows:
The relator was appointed Judge of Probate and Insolvency for the county
of Barnstable, on May 19, 1858, by the Governor of the Commonwealth, with
the advice and consent of the Council, and a commission was issued to
him, by the terms of which he was "to hold the said office during
the term of his good behavior therein, unless he shall be sooner removed
in the manner prescribed by our Constitution." He took the oaths
of office, and continued to do its duties until May 26, 1882, when he
was removed from his office by the Governor, with the consent of the Council,
upon the address of both houses of the Legislature. On June 7, 1882, the
Governor nominated the defendant to fill the vacancy created by such removal,
and his appointment was, on June 14, 1882, consented to by the Council;
a commission was issued to him, he took the oaths prescribed by law, and
entered upon the duties of his office.
The relator, to support the averments of his replication to the answer
of the defendant, that he had been removed for alleged misconduct or maladministration
in office, and not for any disability or infirmity, moral or physical,
offered in evidence the *315 report of a joint special committee of the
Legislature, which set forth the charges against the relator, on which
a hearing was had before the committee. This report, being objected to,
was excluded.
The relator also offered in evidence a certificate of the Secretary of
the Commonwealth, that the address of the Legislature to the Governor
was in these words: "The two branches of the Legislature in General
Court assembled respectfully request that your Excellency would be pleased,
with the consent of the Council, to remove Joseph M. Day from the office
of Judge of Probate and Insolvency for the county of Barnstable;"
and that no other communication from the Legislature, or either branch
thereof, to the Governor, or to the Council, in said matter, was or had
been in the custody of the Secretary. This certificate was admitted, no
objection being made to it. The judge reported the evidence excluded,
and reserved the case for the determination of the full court.
**2 If the evidence so excluded was incompetent, such judgment was to
be entered as to law might appertain; otherwise, judgment to be entered
on the case as reserved, with the evidence excluded.
West Headnotes
Judges k11(3)
227k11(3)
(Formerly 227k11)
Under Const. c. 3, art. 1, providing that judicial officers may be removed
by the Governor, with consent of the council, "upon the address of
both houses of the Legislature," the address need assign no reasons.
Judges k11(3)
227k11(3)
(Formerly 227k11)
Under Const. c. 3, art. 1, providing that "all judicial officers
duly appointed, commissioned, and sworn, shall hold their offices during
good behavior, * * * provided, nevertheless, the Governor, with consent
of the council, may remove them upon the address of both houses of the
Legislature," a judicial officer may be removed by address, for misconduct
and maladministration in office, although he is liable to trial therefor,
by impeachment, by c. 1, § 2, art. 8. The address need not assign
reasons. The Constitution authorizes the removal without reasons being
assigned, and, upon the hearing of an information in the nature of a quo
warranto, filed upon the relation of a judicial officer so removed, it
is immaterial what evidences or causes induced the Legislature to vote
the address or led the Governor and council to act upon it.
This appears to be arguments of plaintiff's lawyers.
T. H. Talbot & J. F. Botume, for the relator.
1. The principal question in this case is as to the true construction
of this clause of our Constitution: "All judicial officers, duly
appointed, commissioned and sworn, shall hold their offices during good
behavior, excepting such concerning whom there is different provision
made in this
Constitution: provided nevertheless, the Governor, with consent of the
Council, may remove them upon the address of both houses of the Legislature."
Const. Mass. c. 3, art. 1. A previous provision of the Constitution declares
the Senate to be "a court with full authority to hear and determine
all impeachments made by the House of Representatives, against any officer
or officers of the Commonwealth, for misconduct and maladministration
in their offices." It further provides, that "previous to the
trial of every impeachment the members of the Senate shall respectively
be sworn, truly and impartially to try and determine the charge in question,
according to evidence." Const. Mass. c. 1, § 2, art. 8.
The question then is whether a judicial officer may be removed by address
for misconduct and maladministration in office, *316 notwithstanding the
Constitution has made special provision for the trial of such offences,
one penalty for which is declared to be his "removal from office,"
or whether the power of removal by address applies only to cases of physical
or mental inability to perform the duties of his office, and to cases
where he has already been convicted by a court of justice.
**3 The clause giving the power of removal by address establishes a tenure
of office during good behavior; and it is taken from the English Settlement
Act of 1700. This act provides, that "judges' commissions be made
quamdiu se bene gesserint, and their salaries ascertained and established;
but upon the address of both houses of Parliament it may be lawful to
remove them." St.
12 & 13 Wm. III. c. 2, § 3.
Although, before 1700, the tenure of a judicial office depended on the
pleasure of the Crown, yet the Crown by the act of removal did not determine
the behavior of a judge as good or bad. That could be determined only
by due process of law. Bacon's case, 2 How. St. Tr. 1087. Scroggs's case,
8 How.
St. Tr. 163, 193, 216. Clarendon's case, 6 How. St. Tr. 291, 330, 334,
350.
In the enactment of 1700, "good behavior" meant something the
opposite of which could only be ascertained judicially; and Parliament,
by enacting that judicial officers should hold office during good behavior,
intended that they should hold until the opposite of good behavior should
be judicially established. Such was the construction put by the House
of Lords upon the English statutes in 1806, in the only case in which,
in that country, so far as we know, an attempt has been made to remove
a judge by address. In that case, a proceeding to remove by address a
judge for misconduct in office was ended upon the ground, as the debates
show, that it was not within the intent of the statutes. [FNa1] FNa1.
The case referred to is that of Mr. Justice Fox, of the Court of Common
Pleas, in Ireland. In 1804, petitions were presented both to the House
of Commons and to the House of Lords for his removal by address, for misconduct
in office. In the Commons, the petitions were laid upon the table. In
the Lords, the case was heard ex parte before a committee, and afterwards
was partly heard before the House, the respondent being present by counsel.
Finally, in 1806, a motion was made by Lord Grenville that the proceeding
be adjourned for two months, to a day when the House in all probability
would not meet. This was done for the express purpose of putting an end
to the proceeding. The motion was carried by a majority of nine. See
1 Hansard, ii-vii.
The case is of interest, as being the first in which the power of removal
by address was invoked in England. The debate on the motion of Lord Grenville
is reported 1 Hansard, vii, 755-772. Among those who spoke in favor of
the motion were Lord Grenville and Lord Chancellor Erskine. Opposed to
it were Lord Eldon and others. On p. 788 of the volume referred to is
recorded the formal protest of the Marquis of Abercorn and of Lord Eldon,
and of others whose names are not given. It was contended in support of
the motion that the power of removal by address was intended to apply
where a judge was physically incapacitated from performing the duties
of his office, or where he had been tried and convicted elsewhere. Some
stress was also laid upon the fact, that, if the House of Lords should
vote in favor of an address, the House of Commons might see fit to proceed
by impeachment, and then the case would come before the House of Lords
prejudged and predetermined. Lord Grenville also relied upon the case
of Lord Chief Justice Holt, which was before the House of Lords in 1698,
as a precedent. But the only question in that case was whether the Chief
Justice should be compelled to give to a committee of the House of Lords
his reasons for a judgment rendered by him in the King's Bench. See 2
Campbell's Lives of the Chief Justices, 148-152.
The protest filed by Lord Eldon and others, above referred to, states
that "it is the clear right of this House, according to the provisions
of the Act of Settlement of the 12th and 13th William III., to entertain
in the first instance a motion for an address to his Majesty for the removal
of a judge, provided the facts alleged as the grounds of the address shall
be sufficient to justify the proceeding, and shall have been proved to
the conviction of the House."
**4 *317 The practice in this Commonwealth conforms to our view of the
law.
Prior to the case at bar, no one has been removed from a judicial office
for misconduct in office, except upon a judicial ascertainment of such
misconduct. In 1803, Paul D. Sargent and William Vinal, judges of the
Court of Common Pleas were removed from office by address. But the address
states the cause as follows: "Having been duly convicted before the
Supreme Judicial Court, of the crime of wilful extortion in their offices
of justices of the Court of Sessions." [FNa1] In *318 1821, James
Prescott was removed from the office of Judge of Probate for the county
of Middlesex; but he was formally tried by the Senate as a court of impeachment.
See Prescott's case. In 1858, Edward G. Loring was removed by address
from the office of Judge of Probate for the county of Suffolk; but his
was not a case of official misconduct. See Special Message of the Governor
to the Legislature, of March 19, 1858.
FNa1. The address, which is on file in the office of the Secretary of
the Commonwealth, is as follows:
"May it please your Excellency: The two branches of the General Court,
sensible how important it is that the characters of men appointed to superintend
the execution of the laws should be pure and unsullied, and that their
integrity, uprightness and disposition to obey the laws should not be
subject to any just suspicion, take the liberty to make known to your
Excellency, that Paul Dudley Sargent, of Sullivan in the county of Hancock,
Esquire, and William Vinal, of Vinalhaven, in the same county, Esquire,
justices of the peace within and for that county, and also justices of
the Court of Common Pleas in and for said county, have been duly convicted,
before the Supreme Judicial Court, holden within and for said county of
Hancock, for the counties of Hancock and Washington, of the crime of wilful
and corrupt extortion in their offices of justices of the Court of Sessions,
by means of which conviction the confidence of the people must be in a
great degree diminished in the said Sargent and Vinal, and the honor and
dignity of the government require that men against whom such charges have
been substantiated should not be permitted to exercise offices of such
high trust and importance. The General Court therefore request that your
Excellency would be pleased, by and with the advice and consent of Council,
to remove the said Paul Dudley Sargent and William Vinal from their said
offices of justices of the Court of Common Pleas, and of justices of the
peace in and for the said county of Hancock."
John Quincy Adams and John Woodman were allowed by the Senate to file
the following reasons for their dissent from the vote authorizing the
address:
"First. Because the grounds alleged in the said address for removal
are for official misdemeanors; and they conceive it to be the intention
of the Constitution 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. Second. Because they consider the independence of the
judiciary as materially affected by a mode of proceeding which in its
effects must make the tenure of all judicial officers dependent upon the
verdict of a jury in any one county of the Commonwealth. Third. Because
the decision of the Senate in this case, affecting in the highest degree
the rights, the character and reputation of two individual citizens of
this Commonwealth, ought not to have been taken without giving them an
opportunity previously to be heard in their own defence." Senate
Journal, 1802-3, p. 339.
**5 2. The clause of the Constitution declaring that "the Senate
shall be a court with full authority to hear and determine all impeachments
.... for misconduct and maladministration" in office, further provides
that "the party so convicted shall be, nevertheless, liable to indictment,
trial, judgment and punishment, according to the laws of the land."
It was stated by *319 Mr. Lemuel Shaw, one of the managers in the trial
of Judge Prescott, that the Senate in such a case sits as "a court
of justice, of criminal jurisdiction, possessing all the attributes and
incidents of such a court."
Prescott's case, 182. Jurisdiction therefore being given to the Senate,
as a court, of the offence of judicial misconduct, such jurisdiction must
be exclusive, except so far as concurrent jurisdiction is given to some
other tribunal. The Constitution states one express exception, namely,
the right of the appropriate tribunal to proceed by indictment, but it
states no other. This clause of the Constitution makes judicial misconduct
a crime, and designates the Senate as the tribunal to try it. Being a
crime, it falls within the 12th article of the Declaration of Rights,
which declares that "No subject shall be held to answer for any crimes
or offence, until the same is fully and plainly, substantially and formally,
described to him." It also gives him the right "to meet the
witnesses against him face to face, and to be fully heard in his defence
by himself, or his counsel, at his election." Whereas, if the contention
of the defendant is correct, that the power of removal by address exists
for misconduct in office, no cause need be assigned, no trial need be
had, and, if the wills of the Governor and Council and of both branches
of the Legislature are in unison, a judge may be removed because such
is their pleasure, and the provision that "judicial officers shall
hold their offices during good behavior" becomes of no effect. No
inference can be drawn from the general phraseology of the clause relating
to removal by address, that it was intended to cover a matter before specially
provided for. Field v. People, 2 Scam. 79, 83. Warner v.
People, 2 Denio, 272. Page v. Hardin, 8 B. Mon. 648, 672. Lowe v.
Commonwealth, 3 Met. (Ky.) 237, 242.
3. The phraseology of the clause of the Constitution in question indicates
that it was not intended to apply to the case of maladministration in
office. It declares that "all judicial officers shall hold their
offices during good behavior: provided, nevertheless, the Governor, with
consent of the Council, may remove them." The natural meaning of
this is, that, notwithstanding good behavior, they may be removed, not
that they may be removed for bad behavior. That was already provided *320
for by impeachment.
A proviso cannot by implication repeal the enacting clause. It merely
excepts something therefrom. It may except the case of physical disability
out of the tenure of good behavior; it can do no more. It cannot reach
the subject of bad behavior, which is not in the enacting clause. In Minis
v.
United States, 15 Pet. 423, 445, it is said by Mr. Justice Story, "The
office of a proviso, generally, is either to except something from the
enacting clause, or to qualify or restrain its generality, or to exclude
some possible ground of misinterpretation of it, as extending to cases
not intended by the Legislature to be brought within its purview."
**6 It was generally admitted in the Constitutional Convention of 1820,
that the intent of the framers of the Constitution of 1780 was to limit
the power of removal by address to the case of physical and mental disability,
and some of those who opposed the amendments then proposed did so upon
the ground that they were unnecessary, as the power of removal by address
applied to cases where a trial would be ineffectual, or where it ought
not to be had. [FNa1] [The counsel then proceeded to discuss the *321
admissibility of the evidence offered to show that the removal was for
acts of official misconduct, admitting that the question *322 was immaterial,
if the power of removal by address applied to impeachable offences. This
portion of the argument is omitted.] FNa1. As the opinions expressed in
the debates in the Constitutional Convention of 1820 were relied upon
by the counsel for both parties in argument, and are referred to by the
court in the opinion, an abstract of them so far as they relate to the
point in issue is here given. The references are to the pages of the Journal
of Debates in the edition of 1853.
The first debate arose on the consideration of the resolution of the select
committee, which proposed to alter the Constitution so that judicial officers
should be removable by the Governor and Council upon the address of two
thirds (instead of a majority) of each branch of the Legislature.
Mr. Pickman, of Salem, said, p. 473, that "it was proper to have
a provision of a similar nature, to meet cases that were not the proper
subject of impeachment, such as incapacity from natural infirmities; and
he thought that requiring the consent of two thirds of each branch of
the Legislature would secure the public in cases of manifest incapacity
of this kind, and at the same time give greater independence to the judges."
Mr. Hubbard, of Boston, (afterwards Mr. Justice Hubbard,) said, p. 474,
that "the Constitution was defective in not sufficiently securing
the independence of the judges;" and asked if a judge was free, when
the Legislature might have him removed whenever it pleased. He further
argued, that the tenure of office of judges was not during good behavior,
if the Legislature might deprive them of their office, although they had
committed no crime; and that "sufficient provision was made in the
case of misconduct in the power of impeachment."
Mr. Shaw (afterwards Chief Justice Shaw) said, p. 476: "The general
principle was, that they [the judges] should be independent of other persons
during good behavior. What is meant by good behavior? The faithful discharge
of the duties of the office. If not faithful, they were liable to trial
by impeachment. But cases might arise when it might be desirable to remove
a judge from office for other causes. He may become incapable of performing
the duties of the office without fault. He may lose his reason, or be
otherwise incapacitated. It is the theory of our government that no man
shall receive the emoluments of office, without performing the services,
though he is incapacitated by the providence of God. It is necessary therefore
that there should be provision for this case. But in cases where it applies,
the reason will be so manifest as to command a general assent.
It must be known so as to admit no doubt, if a judge has lost his reason,
or become incapable of performing his duties. As it does not imply misbehavior,
if the reason cannot be made manifest so as to command the assent of a
great majority of the Legislature, of two thirds at least, there can be
no necessity for the removal. By the Constitution as it stands, the judges
hold their offices at the will of the majority of the Legislature."
Mr. Freeman, of Sandwich, said, p. 477, that "he should have liked
this clause as well if the committee had proposed to limit the power of
the Governor and Council to remove judges on the address of the two branches
of the Legislature to specific cases, such as insanity or disability.
But he was willing to adopt the resolution now reported. The judges were
not now independent of the other departments of government."
Mr. Prescott, of Boston, argued in favor of the resolution, on the ground
that the judges should be independent, and said, p. 477: "The two
other departments may remove them without inquiry--without putting any
reason on record. It is in their power to say that the judges shall no
longer hold their offices, and that others more agreeable shall be put
in their places.
.... The mode of removal by address was introduced into the British government
for the purpose of restraining the power of the Crown, but into ours for
another purpose--to provide for a case which could not properly be reached
by the power of impeachment."
Mr. Daniel Davis, of Boston, said, p. 478: "The Constitution contemplates
removal of judges from office for two causes only. For crime, by impeachment
on the grand inquest by the representatives--and for being disqualified
to perform the duties of the office by the visitation of God. .... The
power of removal by address, which was intended to apply only to cases
of disqualification by the visitation of God, in fact extended much farther,
and was liable to be abused. It was a defect which ought to be remedied.
.... If the resolution were before the committee in a form which admitted
of amendment, he would propose to alter it in such manner that the officer
to be removed should have a right to be heard. No reason need now be given
for the removal of a judge, but that the Legislature do not like him."
Mr. Childs, of Pittsfield, said, p. 479, that "it was in violation
of an important principle of the government that the majority of the Legislature,
together with the Governor, should not have the power of removal from
office."
Mr. Cummings, of Salem, p. 479, argued in favor of the Constitution as
it was, on the ground that "this provision is not intended to embrace
cases of crime--it is only for cases when they become incompetent to discharge
their duties."
Mr. Holmes, of Rochester, said, p. 481: "When a judicial officer
has been guilty of maladministration, he will be removed by impeachment.
When it was necessary to remove a judge for any other cause, he thought
that two thirds of both branches would always concur in the removal."
Mr. Webster, p. 482,
said: "As the Constitution now stands, all judges are liable to be
removed from office by the Governor, with the consent of the Council,
on the address of the two houses of the Legislature. It is not made necessary
that the two houses should give any reasons for their address, or that
the judge should have an opportunity to be heard. I look upon this as
against common right, as well as repugnant to the general principles of
the government."
The clause in question was then struck out by a vote of 210 in the affirmative
to 105 in the negative.
The second debate was on the amendment proposed by Mr. Webster, p. 489,
that "No address for the removal of any judicial officer shall pass
either house of the General Court, until the causes of removal are first
stated, and entered on the journal of the house in which it originated,
and a copy thereof served on the person in office, that he may be admitted
to a hearing in his defence."
Mr. Childs, p. 521, said that "he thought that, by adopting the amendment,
the intention of the provision for removal of judges by address of the
two houses would be done away. It placed this proceeding on the footing
of impeachment, and it might as well be struck out. The object in giving
the power to the Legislature was, that judges might be removed when it
was the universal sentiment of the community that they were disqualified
for the office, although they could not be convicted on impeachment."
Mr. Austin, of Boston, p. 522, thought the alteration unnecessary; and,
after referring to the liability of judges to punishment, for great crimes,
by impeachment, said that the Constitution admitted that there might be
cases in which judges might be removed, without supposing a crime; that
if a judge had so far lost public confidence that his usefulness would
be destroyed, he ought to be removed, "but if witnesses were to be
summoned to prove specific charges, it would be impossible to remove him."
Mr. Justice Story, arguing in favor of the amendment, p. 524, remarked:
"It was said that the judges should hold their offices during good
behavior-- the terms were so in the Constitution--but while another clause
of the Constitution remained, the fact was not so. The Governor and Council
might remove them on the address of a majority of the Legislature, not
for crimes and misdemeanors, for that was provided for in another manner,
but for no cause whatever--no reason was to be given. .... He does not
hold the office by the tenure of good behavior, but at the will of a majority
of the Legislature, and they are not bound to assign any reason for the
exercise of their power. Sic volo, sic jubeo, stet pro ratione voluntas.
This is the provision of the Constitution, and it is only guarded by the
good sense of the people." And, on p. 526, he contended that the
object of the St. 12 & 13 Wm. III. "was not to give power to
Parliament to remove the judges, but to induce the King, by a compromise,
to give up a greater right."
The resolution was then passed by a vote of 221 to 3. It was submitted
to the people with two other proposed changes, one of which provided that
justices of the peace might be removed by address, the other being that
the Governor and the two branches of the Legislature should not be authorized
to propose questions to the justices of the Supreme Judicial Court and
require their opinions thereon. The three proposed changes were voted
on as one, and were not ratified by the people, the majority against them
being 2047 in a vote of 26,989.
In his argument in Prescott's case, in 1821, Mr. Shaw, one of the managers,
said: "It is true, that by another course of proceeding warranted
by a different provision of the Constitution, any officer may be removed
by the Executive, at the will and pleasure of a bare majority of the Legislature;
a will, which the Executive in most cases would have little power and
inclination to resist. The Legislature, without either allegation or proof,
has but to pronounce the sic volo, sic jubeo, and the officer is at once
deprived of his place, and of all the rank, the powers and emoluments
belonging to it." Prescott's case, 181.
B. Wadleigh & G. A. King, for the defendant.
This appears to be the beginning of the opinion.
*323 MORTON, C. J.
**7 This is an information in the nature of a quo warranto, filed by the
Attorney General, in behalf of the Commonwealth, at the relation of Joseph
M. Day, to try the title of the defendant to the office of Judge of Probate
and Insolvency for the county of Barnstable. The relator formerly held
that office, having been appointed and qualified in 1858; and, in 1882,
he was removed therefrom by the Governor, with consent of the Council,
upon the address of both houses of the Legislature; and the defendant
was appointed in his place.
*324 The relator contends that his removal was unconstitutional and void;
that he is now de jure the Judge of Probate and Insolvency for the county
of Barnstable; and therefore that the defendant has no title to the office.
The principal ground upon which he founds his claim is that the charges
upon which he was removed were charges of misconduct and maladministration
in office, for which he was liable to impeachment, and that the constitutional
power of removal by address does not include the power to remove for offences
which are impeachable. The question is an important one.
No student of the Constitution and its history can fail to see that it
was the purpose of those who framed it, and of the people who adopted
it, to establish a carefully prepared system of government, consisting
of three coordinate departments, the executive, legislative and judicial,
each, as far as practicable, independent of the others, each balancing
yet protecting, checking yet preserving, the others.
In this division of the functions of government, it was undoubtedly deemed
to be of the first importance to the protection of the liberties and rights
of the citizens, that the judiciary should be put upon such a basis, and
protected by such constitutional guaranties, that it should be fearless
and independent, and free from undue control and encroachments by the
other departments.
These purposes could not be more forcibly stated than in the impressive
language of the Declaration of Rights: "It is essential to the preservation
of the rights of every individual, his life, liberty, property and character,
that there be an impartial interpretation of the laws, and administration
of justice. It is the right of every citizen to be tried by judges as
free, impartial and independent as the lot of humanity will admit.
It is, therefore, not only the best policy, but for the security of the
rights of the people, and of every citizen, that the judges of the Supreme
Judicial Court should hold their offices as long as they behave themselves
well; and that they should have honorable salaries ascertained and established
by standing laws." "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
*325 and judicial powers, or either of them: the judicial shall never
exercise the legislative and executive powers, or either of them: to the
end it may be a government of laws and not of men." Declaration of
Rights, arts. 29, 30.
**8 The Declaration of Rights is entitled "A Declaration of the Rights
of the Inhabitants of the Commonwealth of Massachusetts." It was
intended as a general declaration of the great, fixed and fundamental
principles of reason and right which underlie our system of government
and are the safeguards of liberty. It declares general principles which
are to guide all departments of the government in their respective duties
of making, executing and interpreting laws; but it does not purport to
lay down specific rules of action, or to exactly define the extent and
limitations of the powers of each department. For these we must look to
the other part of the Constitution, "the Frame of Government."
And when we find that the general statements of the Declaration of Rights
are qualified and limited by more specific provisions upon the same subject
in the Frame of Government, the latter must control and govern.
The chapter upon the "Judiciary Power" provides that "The
tenure, that all commission officers shall by law have in their offices,
shall be expressed in their respective commissions. All judicial officers,
duly appointed, commissioned and sworn, shall hold their offices during
good behavior, excepting such concerning whom there is different provision
made in this
Constitution: provided nevertheless, the Governor, with consent of the
Council, may remove them upon the address of both houses of the Legislature."
Const. Mass. c. 3, art. 1. The decision of this case depends upon the
true construction of this article.
The relator contends that the only effect of the proviso is to give the
power of removal by address for causes other than misconduct and maladministration
in office, and that for such misconduct an exclusive remedy is provided
by impeachment under c. 1, § 2, art. 8, of the Constitution. We are
not able to see any just rule of construction by which we can thus limit
and qualify the plain language of the proviso. The language is broad and
general; in its terms it includes a removal for any cause which is deemed
by the legislative and executive departments *326 sufficient. If it had
been intended to exclude from this provision the power to remove for misconduct
in office, leaving that to be dealt with by impeachment exclusively, it
would have been so stated. Neither this article nor the article on impeachment
contains any indication that the power of impeachment was to exclude the
power of removal by address. We must give to the proviso the broad meaning
which its language imports.
The article reaffirms the great principle asserted in the Declaration
of Rights, that judicial officers shall hold their offices during good
behavior; but it was deemed wise, as a check upon the absolute power and
independence of the judicial department, to confide in the other two coordinate
branches of the government the exceptional power of removing judicial
officers by address when an exigency requires it, of which, from the nature
of the case, they must be the sole judges. The obvious and natural meaning
of the language used seems to us to require this construction, and our
view is confirmed by the history of this provision.
**9 It was undoubtedly taken from the English act of Parliament by which
the Crown was settled upon the house of Hanover, which provided that,
"after the said limitation shall take effect as aforesaid, judges'
commissions be made quamdiu se bene gesserint, and their salaries ascertained
and established; but upon the address of both houses of Parliament it
may be lawful to remove them;" and from the later statute of 1 Geo.
III. c. 23, § 1, containing the same provision as to removal by address.
[FNa1] The language of the provisions of these statutes is clearly broad
enough to authorize a removal by address for any cause which might seem
sufficient to both houses of Parliament, including misconduct in office.
FNa1. Prior to the St. of 1 Geo. III. c. 23, § 1, which was passed
in 1760, the commissions of judges terminated on the demise of the Crown.
The language of the act is: "The commissions of judges for the time
being shall be, continue and remain in full force, during their good behavior,
notwithstanding the demise of his Majesty (whom God long preserve) or
of any of his heirs and successors; any law, usage or practice to the
contrary thereof in any wise notwithstanding. Provided always, .... that
it may be lawful for his Majesty, his heirs and successors, to remove
any judge or judges upon the address of both houses of Parliament."
*327 The draft of a constitution prepared by the Council and Representatives
acting as a convention, in 1778, contained no provision for removal by
address. It was rejected by the people, and is of no importance in this
discussion.
In September 1779, was assembled the Convention of Delegates, elected
for the special purpose of framing a Constitution, which continued in
existence until June 1780, and the result of whose labors was the Constitution
of 1780, as ratified and adopted by the people. It is to be regretted
that we have so meagre a report of the doings of this important Convention.
Among its first acts was the appointment of a committee to frame a declaration
of rights and the form of a constitution, to be laid before the Convention.
This committee afterwards reported in favor of a declaration of rights
and frame of government, which was mostly the work of John Adams, and
which served as the groundwork of the future deliberations of the Convention.
See
4 Adams's Works, 215, 216.
It is clear from the imperfect record which has come down to us, that
the subject of the tenure of office of the judiciary was considered as
a matter of the first importance. The clauses which we are considering
were, as the journal tersely says, "largely debated," and were
finally adopted by the Convention in the same form substantially as that
in which they were drafted and presented by Mr. Adams. In this form they
were accepted by the people, and have stood unaltered as the fundamental
law to this day, notwithstanding the several attempts which have been
made to modify them.
**10 The power of removal by address thus established has been infrequently
exercised, but it is an instructive fact that in 1803 two justices of
the Court of Common Pleas were removed by address for extortion in office,
misconduct for which they were clearly liable to impeachment. Added significance
is given to this action of the legislative and executive departments by
the fact that Governor Strong, who removed them, was a member of the Convention
and of the committee which prepared the draft of the Constitution.
In the Convention of 1820, elected by the people to revise the Constitution,
many of its most prominent members, who are recognized as among the most
eminent jurists and statesmen of *328 the country, made a strenuous effort
to change the provision for removal by address established by the Constitution
of 1780. Their arguments were, that the provision, as it stood, gave an
absolute and unlimited power to the legislative and executive departments,
at their will and pleasure, to remove a judge, without a judicial hearing
and without assigning any cause; and that this endangered the freedom
and independence of the judiciary, and was inconsistent with the great
principles of the Declaration of Rights. They proposed to amend the third
chapter of the Constitution, on the judiciary power, so that it should
read that "the Governor, with the consent of the Council, may remove
any judicial officer upon the address of two thirds of the members present
of each house of the Legislature." This proposition was rejected
by the Convention by a large majority. The same members were more successful
in inducing the Convention to adopt an amendment, providing that "No
address for the removal of any judicial officer shall pass either house
of the Legislature until the causes of such removal are first stated and
entered on the journal of the house in which it shall originate, and a
copy thereof served on the person in office, so that he may be admitted
to a hearing in his defence before each of said houses." This amendment
was submitted to the people and rejected by them, they thus decreeing
that the power of removal by address should stand as it did in the Constitution
of 1780. No change was made in this provision in the Constitution which
was submitted to the people by the Convention of 1853, and rejected by
them.
We think the uniform practice since 1780 has been to regard this provision
as conferring an unrestricted power of removal upon the legislative and
executive departments. When we consider the origin and history of the
provision, the obvious and natural meaning of its language, and the uniform
practical construction which has been given to it, we are forced to the
conclusion that the intention of the people was to entrust the power of
removal of a judicial officer to the two coordinate branches of the government
without limitation or restriction.
The relator strongly contends that, upon this construction of the Constitution,
the tenure of judicial office is not during good behavior, but at the
will of the other departments of the *329 government. It seems to us that
this is arguing against the existence of a power clearly conferred, from
the fact that it may be abused and perverted. There is no more danger
of the abuse of the power of removal, if it includes the right to remove
for impeachable offences, than there would be if it were confined, as
the relator contends it should be, to cases of physical, mental or moral
disability of a judicial officer, of which necessarily the removing power
must be the sole judge. Any power may be abused. The judiciary might corruptly
declare any law or body of laws to be unconstitutional and invalid, and
thus encroach upon the powers of the Legislature; yet no one doubts the
right and duty of the judiciary to declare invalid any law which in its
judgment violates the Constitution.
**11 In confiding to the two coordinate branches of the government this
important and exceptional power of removing the judiciary, the people
found a sufficient protection to the substantial independence of the judicial
department in the constitutional guaranties thrown around it, in the fact
that the removal can only be made by the concurrent action of both houses
of the Legislature and of the Governor and Council, all of whom are directly
answerable to the people at frequently recurring periods, and in the trust
and confidence they may rightfully repose in their servants and agents
that in the exercise of any power committed to them they will act in obedience
to their oaths of office, and in the spirit of the fundamental principles
of the Constitution.
The view we have taken of the principal question involved disposes of
the other questions raised by the relator at the hearing. They relate
to the offer of evidence by him to prove the causes for which he was removed,
and the evidence upon which the Legislature voted the address. The Constitution
authorizes the removal without any reason being assigned for it; and therefore
it is wholly immaterial what evidence or causes induced the Legislature
to vote the address, or led the Governor and Council to act upon it. The
evidence therefore was rightly excluded.
Information dismissed.
FIELD & W. ALLEN, JJ., absent.
134 Mass. 314, 1883 WL 10851 (Mass.)
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