1685: When Quakers in Philadelphia tried to impeach a judge

Many conservatives are rightly upset about the Ninth Circuit's ruling that refused to restore Trump's executive order banning for ninety days immigrants from seven Islamic countries, where the government is in disarray or hostile (except Iraq).

So the question comes up – when is it right to impeach a judge?  This attorney says, "If you had to make a list of things that a judge could do that warrants impeachment, deliberately ignoring an applicable law that contradicts the judge's opinion would be on the list."

What else might be on the list?  We can appeal to precedent in our own founding at Philadelphia, using the Minutes of the Provincial Council in 1685, a primary source. 

Medical doctor and judge Nicholas Moore was an Anglican among Quakers.  He said a new Quaker society would never work.  He abused his power in other ways, too. 

The Constitution uses the phrase "high crimes and misdemeanors" in the context of the executive branch.  So does this primary source below.  It also uses this phrase interchangeably: "crimes and misdemeanors."  So what do those phrases mean?

Here is a list of charges that the Quakers of a legal bent and training put together to try to impeach judge Nicholas Moore:

The Assembly’s Declaration against Nicholas Moore, present May 15th, 1685, to the President and Provincial Council in the council chamber, by the Speaker and members of the Assembly:

For the speedy redress of divers evils and mischiefs which this Province and Territories now labor under and for the preventing of further growth and increase of the same and to the honor and safety of the Governor and Government of this Province and Territories and by good and welfare of the people thereof, the Freemen in Assembly now met, do by this their bill shew and declare against Nicholas Moore do accuse of the said misdemeanors, offenses and crimes.

1st. The said Nicholas Moore, assuming to himself unlimited and arbitrary power beyond the prescription or laws of this government, has presumed of his own authority to send unlawful writs to the sheriffs and to ascertain and appoint the time of the Provincial Circuits without the direction and concurrence of the Provincial Council, whereby the time of their sessions has been anticipated, the several counties being surprised by the shortness of their warning and thereby being impossible to give sue summons according to law, either of juries, witnesses, or persons concerned, whereby some persons have been forced to irregular trials and others absolutely denied justice.

2dly. The said Nicholas Moore, Judge, having high trust lodged in him for the equal distribution of justice without respect of persons, the said judge sitting in judgment at New Castle, has presumed to cast out a person from being of a jury, after the said person was lawfully attested to the true trial of the cause, thereby rending an innocent and lawful person infamous in the face of the county, by rejecting his attestation after lawfully taken and depriving the plaintiff of his right.

3dly. The said Nicholas Moore, sitting in judgment, did in the towns of New Castle refuse a verdict brought in by a lawful jury and by divers threats and menaces and threatening the jury with the same perjury and crime of their estates, forced the said jury to go out so often, until they had brought a direct contrary verdict to the first, thereby preventing justice and wounding the liberties of the free people of this Province and Territories in the tenderest point of their privilege and violently usurping over the consciences of the jury.

4thly. The said Nicholas Moore, although there was no lawful summons according to law for parties concerned to make preparation, did arbitrarily reject and cast out the complaint of John Wooters in New Castle Court, hereby not only delaying but denying justice to him, coming in a lawful way to demand it.

5thly. The said Nicholas Moore, assuming to himself an unlimited and unlawful power, did, sitting in judgment of the aforesaid town of New Castle, wherein two persons stood charged in a civil action, it being in its own nature only trover and conversion, and the pretended indictment raised it no higher, notwithstanding the said Moore did give the judgment of felony, commending to the defendant to be publicly whipped and each to be fined to pay threefold, thereby tyrannizing over persons, estates and reputations of the people of this Province and Territories, contrary to law and reason.

6thly. The said Nicholas Moore, commanding a witness to be examined, did by overawing and greatly perverting the sense of witnesses, charge and condemn the said witness to be guilty of perjury and to suffer the pains in that case provided, and by proclamation to be forever rendered incapable of being rectus in Curia in this government and also fined him, contrary to law.

7thly. And whereas, the wisdom of the General Assembly did conceive the Circular Court would be their best expedient for ending all kinds of differences whatsoever, the said Nicholas Moore, at the said town of New Castle, commanding the records of the former Circular Courts to be produced, which the said Moore reading, he did in the Open Court censure the judgment of preceding judges by saying their judgment was not right, thereby distracting the people betwixt divers and contrary judgments and perpetuating endless and vexatious suits.

8thly. The said Nicholas Moore, sitting in judgment at Chester, did in a most ambitious, insulting and arbitrary way, reverse and impeach the judgment of the justices of the said county court and publicly affronting the members thereof, although the matter came not regularly before the said Circular Court, thereby drawing the magistrates into the contempt of the people and weakening their hands in the administration of justice.

9thly. The said Nicholas Moore, being chosen as abovesaid to be judge of the Circular Court according to law which obliges the said judges both spring and fall to go their circuits; and the said Nicholas Moore, assuming to himself power of appointing the times, as he is pretended Chief Judge in the Province and Territories thereof, has notwithstanding declined the two Lower Circuits to the great delay of justice and breach of his trust and mischief and inconvenience of the free people of the said lower counties.

10thly. The said Judge Moore, resolving to put no bounds to his violence, ambition, and oppression, has, to the dishonor of the Governor and contempt of the Government, declared that neither be nor his actions are accountable to the President and Provincial Council, by despising and containing their orders and precept and questioning and denying their authority, thereby shrouding and protecting himself in all the aforesaid violences, to the rendering the miseries of the oppressed intolerable and perpetual to the subversion of the most excellent frame of this government and the raising himself above the reach of justice.

11thly. For all which and divers other High Crimes and Misdemeanors, the Freemen in Assembly met, saving to themselves by protestation, the liberty of exhibiting now and any time hereafter any further charge and accusation against the said Nicholas Moore, do now impeach the said Nicholas Moore of all the foregoing crimes and misdemeanors and humbly request the President and Provincial Council that he, the said Nicholas Moore, may be removed from his great office and trust and answer to the said objected crimes and misdemeanors.

As it turned out, William Penn, who had returned to England, wrote a letter supporting his friend.  And there is no record of the ultimate outcome.  But we need to hold judges accountable today.

I don't think they should be impeached over differing interpretations, but they are overstepping their bounds.  And if we have to come up with a list of "high crimes (or crimes) and misdemeanors," in  the context of the judiciary, it does not have to be limited to acts like bribery or suborning witnesses.

Article Three mentions "good behavior," and surely this means more than just moral rectitude. The "crimes" or bad behavior can be culled from the principles on the indictment that mostly involve a judge abusing his power in judicial ways.

Of course, elections are the best way to get constitutionalists on the judiciary, but many decisions will be reached long before they make an impact.  So the solution for impeachment is not clear (to me), but surely those immersed in the legal system and the legislators can come up with ways to slow down  runaway judges.