3, and in the assembly, after one very emphatic speech against it, by a vote of 64 to 34. It was a party measure. Mr. Clinton had already rendered eminent service as governor, and had devoted his energies and great talents to the success of the canal project, which was then very near completion. It is a matter of history that his removal so aroused the indignation of the people that they elected him governor again the same year, and he was therefore occupying that high office when the Erie canal was completed, in the autumn of 1825.

The legislature exercised here the same kind of power that had become so obnoxious in the hands of the Council of Appointment under the first Constitution. If the legislature, without any assigned cause, and without any pretended excuse, could remove a man like De Witt Clinton from the office of canal commissioner, it is not easy to see what protection the new constitutional rule afforded a judge against a legislative removal which might have been instigated by party passion or malice or caprice, and when the legislature by its resolution was required to make no further declaration than that the judge was thereby removed.

Amendment of 1845.-In Chapter V., in the second volume, I have given an account of the inception and adoption of the amendment of 1845, the text of which will be found in the Introduction, and which gave to the judge against whom proceedings were to be taken for removal an opportunity to be heard, and which required a copy of the alleged causes to be served upon him at least twenty days before action thereon by the legislature. The cause of removal was also to be entered on the legislative journals.

Convention of 1846.-The subject of the removal of judges received some attention in the Convention of 1846. The judiciary committee presented a section in

substance continuing the existing provision in the Constitution of 1821, and combining the amendment of 1845, requiring notice to the judge, and giving him an opportunity to be heard, but without specifying any time for the service of the complaint. Mr. Loomis objected to this mode of trial and removal, and thought that "charges against judicial officers, like all others, should be tried in the tribunals of the country." He proposed the following section:

"The legislature shall define by law offense, misconduct, and negligence in office, which shall be deemed cause of removal. Any officer who may be indicted, tried, and convicted of any such offense, misconduct, or negligence in office, or for any offense committed while holding any public office, the punishment for which by law may be imprisonment, shall, by such conviction and judgment thereon, be ousted from office.”

This was rejected. The last part of the Loomis proposition now appears in substance in § 20 of the public officers law, which declares that an office shall be vacant if the incumbent be convicted of a "felony, or a crime involving a violation of his oath of office."

Mr. Morris said the intention of this section of the Constitution, "which was in part copied from the old Constitution, was originally to reach and remove officers who had become broken in mental vigor, or imbecile; but it had been perverted and used to justify removals on grounds that, if true, would have justified an impeachment." This provision for removal had all "the effect of an impeachment, without the opportunity being given to the incumbent to meet the charge." He proposed an amendment, the effect of which was to prevent the removal of a judge except "for inability to discharge the duties of his office, arising since his election."

Mr. Patterson objected that under this amendment a judge could not be removed for gross immorality or neglect of duty. Mr. Morris thought he might be impeached for this offense. The Morris amendment was rejected. On Mr. Patterson's motion "joint" was changed to "concurrent." A motion by Mr. Crooker that all judicial officers except justices of the peace be made subject to removal in one and the same manner by the legislature for causes for which they could not be impeached was lost by a vote of 34 to 39. A motion by Mr. Morris to authorize the accused judge to introduce witnesses in his defense was lost by a vote of 31 to 32, no quorum being present. This motion was afterwards reconsidered, and again rejected by a vote of 28 to 60.

Mr. Loomis offered another substitute providing for the removal of an officer by the governor "after trial and conviction of any crime, gross immorality, misconduct or negligence in office, or inability to discharge its duties." He considered the existing provision impracticable, "giving, as it did, a party a trial before each house, and converting the legislature into a sort of criminal tribunal." Mr. Marvin doubted the propriety of placing "all judges of the state in the power of any twelve men in the country to pass upon their incompetency." The Loomis amendment was rejected by a vote of 5 to 75. The section was then approved by a vote of 86 to 11, and will be found in the Constitution of 1846, in the Introduction.

Convention of 1867.—The judiciary article of 1869, proposed by the Convention of 1867, required the assent of two thirds of each house on a resolution for the removal of a judge. This was in accordance with the original proposition submitted to the Convention of 1821, but which, as already pointed out, was amended by requiring only a majority vote in the senate. This judi

ciary article also required a copy of the "charges" to be served on the judge, instead of the "complaint," as provided by the Constitution of 1846. I do not find in the debates any reason assigned for this change.

Convention of 1894.-The Convention of 1894 changed the word "charges" to "statement of the cause alleged," and concerning this change Mr. Elihu Root, chairman of the judiciary committee, said: "Under the existing provision of the Constitution, in order that a judicial officer should be removed, it is necessary that there should be something to justify charges against him, and that he should be put in the attitude of a party coinplained of, served with a copy of the charges against him. Now, there have been a number of instances in this state where judicial officers, through no fault or dereliction of their own, have been unable to perform their duties,-justices who had had softening of the brain, who have, through illness, been entirely incapable of performing their duties, and when the suggestion was made that they ought not to remain in the receipt of the large salaries which were attached to their offices while they were not doing anything, the answer was that they could be removed only for some dereliction of duty. Charges must be made against them; culpability must be established; they must be branded with some malfeasance or misfeasance in office; and, therefore, nothing has been done. We have now taken and substituted merely the word 'cause.' They may be removed for cause. statement of the cause shall be served and an opportunity given to be heard; and that is language which has been construed by the court of appeals, and the court of appeals has said that this very language means incapacity to perform the duties of an office."

A

Mr. Root's suggestion that there ought to be authority for the removal of a judge without specific charges was

perhaps based, at least in part, upon the situation presented by an order made by Governor Hill, December 31, 1889, suspending from office a city judge in New York, and directing the discontinuance of his salary, on the ground that he had become incapable of performing his judicial duties by reason of the fact that he was stricken with paralysis in November, 1888, and his illness had continued since that time.

Summary. Summarizing the constitutional provisions relating to the removal of judges by the legislature, we find that, by the Constitution of 1821, such a removal might have been made without assigning any reason, without notice, and without giving the judge any opportunity to be heard; that by the amendment of 1845 the cause of removal was to be entered on the legislative journals, and a copy of the cause alleged was to be served on the accused judge twenty days before action by the legislature thereon; that by the Constitution of 1846 the party complained of was to be served with a copy of the "complaint" against him; that by the judiciary article of 1869 "complaint" was changed to "charges;" and that by the Constitution of 1894 the word "charges" was changed to "statement of the cause alleged." Beginning with 1845 the legislature has been required to enter the cause on its journals; but there has been some fluctuation as to notice to the judge, and as to the procedure giving him an opportunity to be heard. It is doubtless true now, as under the first provision, that the determination. of the legislature as to the sufficiency of an alleged cause is final.

It has already been pointed out that under the first constitutional provision, 1821, a removal must have been by joint resolution, and that the Convention of 1846 changed "joint" to "concurrent.' Probably this change should not be deemed to make any substantial difference