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Docno: ADMS-06-01-02-0096

On the Independence of the Judges

DocGroupNo:

11 January – 22 February 1773

I. JOHN ADAMS TO THE BOSTON GAZETTE, 11 JANUARY 1773
II. JOHN ADAMS TO THE BOSTON GAZETTE, 18 JANUARY 1773
III. WILLIAM BRATTLE TO THE BOSTON GAZETTE, 18 JANUARY 1773
IV. JOHN ADAMS TO THE BOSTON GAZETTE, 25 JANUARY 1773
V. JOHN ADAMS TO THE BOSTON GAZETTE, 1 FEBRUARY 1773
VI. JOHN ADAMS TO THE BOSTON GAZETTE, 8 FEBRUARY 1773
VII. JOHN ADAMS TO THE BOSTON GAZETTE, 15 FEBRUARY 1773
VIII. JOHN ADAMS TO THE BOSTON GAZETTE, 22 FEBRUARY 1773

Docno: ADMS-06-01-02-0096-0001

Editorial Note

The issue addressed by John Adams and William Brattle in this exchange in the pages of the Boston Gazette was a narrow one: the degree to which English judges had historically been dependent upon the Crown and its ministers. But this question arose as part of a broader debate in contemporary Massachusetts politics: the provision for Bay Colony judges in the royal civil list. The General Court had registered strong protests in 1771 when it became known that the governor was to receive his salary from the Crown rather than from the provincial legislature (see Adams' Service in the House, 7 June 1770–16 April 1771, 2d calendar entry for 10 April 1771, above). Opposition to this extension of the civil list, however, was comparatively mild, for, as one historian has remarked, “it was at least logical that the King's servant be paid by the King” (Brown, Revolutionary Politics , p. 52). That moderation ended when Boston received reports in the fall of 1772 that superior court judges were to get crown salaries as well.
The Boston town meeting took the lead in investigating these reports and exploiting them as a political issue. After vain attempts to obtain clarification of the rumors from Governor Hutchinson, the town met on 2 November and named a committee of correspondence “to communicate { 253 } their Sentiment to other towns” (Boston Record Commissioners, 18th Report , p. 93; for an able summary of the exchanges between the town meeting and Hutchinson, Oct.–Nov. 1772, see Brown, Revolutionary Politics , p. 48–57; see also Editorial Note, The Constitutional Debate between Thomas Hutchinson and the Massachusetts House, 26 Jan. – 2 March 1773, below). The committee's work bore fruit in Boston's adoption of two reports on rights and an accompanying letter for other Massachusetts towns, all bound together as The Votes and Proceedings of the Town of Boston. This pamphlet soon brought action in Cambridge.
A number of freeholders petitioned the Cambridge selectmen for a town meeting at which the issue of crown salaries for the judges might be discussed. The warrant for the meeting on 14 December included an article responding to the petition. When the town met, Maj. Gen. William Brattle, widely regarded as a staunch defender of colonial liberties, was elected moderator.
At the meeting Brattle displayed a startling political about-face. A wealthy landowner who had dabbled in medicine, theology, and the law before winning recognition as a military administrator, Brattle emerged that day as a defender of crown measures. (For a sketch of Brattle, see Sibley-Shipton, Harvard Graduates , 7:10–23.) More than forty years later, Adams described him as one who, before the Cambridge meeting of December 1772, “had acquired great popularity by his zeal, and I must say, by his indiscreet and indecorous ostentation of it, against the measures of the British government.” He ascribed Brattle's conversion to Hutchinson, and especially to Jonathan Sewall (to Jedediah Morse, 22 Dec. 1815, JA, Works , 10:194).
Although Adams' explanation of the General's behavior may well be oversimplified, there is no doubt that a conversion had taken place. Brattle used all his considerable authority and influence to discourage discussion of the judges' salaries at the Cambridge meeting. When the letter from the Boston town meeting was read, he objected to taking any action on the communication, for the article in the warrant had not specifically mentioned the letter from Boston.
Brattle's objections were not limited to technicalities. He argued that the town would be “too premature in acting upon this matter at present” and that the next packet from England would probably “give us more light in the affair.” As it was, he continued, “no man in the province could say whether the salaries granted to the judges were durante bene placito, or quamdiu bene se gesserint, as the judges of England have their salaries granted them.” Brattle told the meeting that he “supposed” the salaries were to be granted in the latter fashion, that is, during good behavior, and argued that this would make the judges “independent both upon the king and the people.” He was “very far from thinking there was any necessity of having quamdiu bene se gesserint in their commissions; for they have their commissions now by that tenure as truly as if said words were in,” He closed his arguments for accepting the new method which he sup• { 254 } posed would govern the judges' salaries by remarking “that by the charter and common law of England, there is no necessity of their having any commission at all; a nomination and appointment recorded is enough; nomination and appointment are the words of the charter, a commission for them not so much as mentioned in it” (Brattle to the Massachusetts Gazette , 16 Dec.; JA, Works , 3:516–517).
Brattle's harangue had little effect. The town appointed a committee of correspondence and adopted instructions to the Cambridge representative, Thomas Gardner, which described the judges' salaries as “so great a Grievance, especially when added to the many other Grievances we have been so long groaning under, as to be almost insupportable” (Boston Gazette, 21 Dec.).
Here the matter might have ended had not Brattle decided to live up to his promise to protest the illegality of any action on the Boston letter. Within days of the Cambridge meeting he carried the dispute to the press, summarizing his town meeting oration in a letter dated 26 December and published in the Massachusetts Gazette of 31 December. When his position was questioned in the Boston Gazette, Brattle replied in the Massachusetts Gazette on 7 January, offering to answer those who had leisure to dispute the line of argument he had laid down.
In his autobiographical writings, Adams offers two slightly different versions of why he decided to enter the dispute. In his Diary, he mentions Brattle's publication of 31 December as one of the topics of conversation for Adams' friends the next evening. Adams neglected his Diary for the next nine weeks, and on resuming on 4 March, he explained: “The two last Months have slided away. I have written a tedious Examination of Brattle's absurdities.” Adams described Brattle's pieces in the newspapers of 31 December and 7 January as “vain and frothy Harrangues and Scribblings,” which “would have had no Effect upon me, if I had not seen that his Ignorant Doctrines were taking Root in the Minds of the People” ( Diary and Autobiography , 2:77–78). This explanation, which implies that Adams did not begin drafting his reply to Brattle until he had seen the Massachusetts Gazette of 7 January, seems unlikely since Adams' first essay appeared in the Boston Gazette on 11 January.
Adams had more personal reasons for accepting Brattle's challenge. During the Cambridge meeting, Adams recalled, Brattle had said the complete independence of the judges “I averr to be Law, and I will maintain it, against any Body, I will dispute it, with Mr. Otis, Mr. Adams, Mr. John Adams I mean, and Mr. Josiah Quincy. I would dispute with them, here in Town Meeting, nay, I will dispute it with them in the Newspapers” (same, 2:78).
In his Autobiography, Adams recalled that perhaps he would have said nothing publicly about Brattle's argument had Brattle not “the Week before . . . challenged me by name, to dispute the point with him” (same, 3:297). This version, which suggests that Adams accepted the challenge as soon as he saw Brattle's essay in the Massachusetts Gazette of 31 Decem• { 255 } ber, is more credible. Of course, Adams could have completed two or more of his essays before the first was printed in the Gazette; any more precise dating is impossible considering the complete lack of manuscript versions of Adams' essays and of any dates appended to the published letters. All of Adams' contributions printed below are taken from the Gazette and are given the dates on which they appeared in that paper.
Before he had answered Brattle to his own satisfaction, Adams produced seven learned essays. These appeared in weekly installments along with Brattle's only contribution to the debate he had courted so eagerly. Probably the General despaired of defending himself against Adams' “torrents of law, records and history.” Adams himself did not know whether Brattle's failure to write more rose “from Conviction, or from Policy, or Contempt” (same, 2:78). And although Adams dismissed his own effort as a “tedious Examination,” one suspects that he relished the “delightful work of quotation,” at times losing sight of his opponent in his enthusiasm for exhausting every legal consideration.
These essays, published without title in 1773, appear in Charles Francis Adams' edition of his grandfather's works under the title “On the Independence of the Judiciary” (JA, Works , 3:519–574). John Adams himself, however, referred to them consistently as being “On the Independence of the Judges” (to Cotton Tufts, 3 May 1789, MH:Schaffner Collection; Diary and Autobiography , 3:298). The present editors have chosen to revive Adams' title.
More accurately, Adams should have called his essays “On the Dependence of the Judges,” for he employed English history and legal treatises to demonstrate that the celebrated “independence” of the judiciary was a comparatively recent innovation, resting on limited statute law rather than on common law or time-honored tradition, as Brattle had claimed. Adams left his readers to draw their own conclusions about the dangers of such a system.
These lessons were all the more obvious to his audience since Adams' newspaper series coincided with a full-scale debate between the Governor and the House on constitutional issues involving the judiciary. In the weeks in which he penned the concluding numbers of his series, he was engaged as well, but not publicly, in drafting the central portions of the replies of the House to Governor Hutchinson on the broader issues raised by the prospect of crown salaries for the judges (see 26 Jan. – 2 March 1773, below). These newspaper pieces, to which Adams signed his name, are the first public papers since “Sui Juris” (23 May 1768, above) which he is known to have composed as an individual, rather than as a member of a public committee.
The moral of these essays, the need for a judiciary whose independence was guarded from changing public opinion and legislative whim, proved clearer to Adams than to his countrymen. Shortly after taking office as vice president, Adams suggested that his letters to Brattle be republished. Sixteen years after accepting the General's challenge, Adams { 256 } reflected ruefully, the essays “contain Information that is much wanted. The Constitutional learning on that head is very little known, excepting to those few who read those Letters in their Season. Younger Gentlemen and the rising Generation, know nothing of it, and nothing is of more Importance and Necessity, in order to establish the New Government. . . . Many of the States have their Judges elective, annually, an awful defect in any Constitution” (to Cotton Tufts, 3 May 1789, MH:Schaffner Collection).

Docno: ADMS-06-01-02-0096-0002

Author: Adams, John
Recipient: Boston Gazette (newspaper)
Date: 1773-01-11

I. To the Boston Gazette

[salute] To the PRINTERS.

GENERAL BRATTLE, by his rank, station and character, is intituled to politeness and respect, even when he condescends to harrangue in town-meeting, or to write in a news-paper: But the same causes require that his sentiments when erroneous and of dangerous tendency, should be considered, with entire freedom, and the examination be made as public, as the error. He cannot therefore take offence at any gentleman for offering his thoughts to the public, with decency and candor, tho' they may differ from his own.
In this confidence, I have presum'd to publish a few observations, which have occured to me, upon reading his narration of the proceedings of the late town meeting at Cambridge. It is not my intention to remark upon all things in that publication, which I think exceptionable, but only on a few which I think the most so.
The General is pleased to say, “That no man in the province could say whether the salaries granted to the Judges were durante bene placito, or quam diu bene se gesserint, as the Judges of England have their salaries granted them.” “I supposed the latter, tho' these words were not expressed, but necessarily implied.” This is said upon the supposition, that salaries are granted by the crown to the judges.
Now, it is not easy to conceive, how the General or any man in the province could be at a loss to say, upon supposition that salaries are granted, whether they are granted in the one way or the other. If salaries are granted by the crown, they must be granted, in such a manner as the crown has power to grant them. Now it is utterly deny'd, that the crown has power to grant them, in any other manner than durante bene placito.
The power of the crown to grant salaries to any judges in America is derived solely from the late act of parliament, and that gives no { 257 } { 258 } power to grant salaries for life, or during good behaviour.1 But not to enlarge upon this at present.
The General proceeds. “I was very far from thinking there was any necessity of having quam diu bene se gesserint in their commissions: For they have their commissions now by that tenure, as truly as if said words were in:”
It is the wish of almost all good men, that this was good law. This country would be forever obliged to any gentleman who would prove this point from good authorities, to the conviction of all concerned in the administration of government, here and at home. But I must confess that, my veneration for General Brattle's authority, by no means prevails with me, to give credit to this doctrine. Nor do his reasons in support of it, weigh with me, even so much as his authority. He says, “What right, what estate vests in them, (i.e. the Judges,) in consequence of their nomination and appointment, the common law of England, the Birth-right of every man here, as well as at home, determines, and that is an estate for life, provided they behave well:” I must confess I read these words with surprize and grief. And the more I have reflected upon them the more these sentiments have increased in my mind.
The common law of England is so far from determining, that the Judges have an estate for life in their offices, that it has determined the direct contrary. The proofs of this are innumerable and irresistable. My Ld. Coke in his 4th institute,2 74, says, “Before the reign of E. 1. the chief justice of this court, was created by letters patents, and the form thereof (taking one for all) was in these words.
“Rex, &c. Archiepiscopis, Episcopis, Abbatibus, Prioribus, Comitibus, Baronibus, Vice-comitibus, Forestariis, et omnibus aliis fidelibus Regni Angliae, salutem, cum pro Conservatione nostra, et tranquilitatis Regni nostri, et ad Justitiam universis et singulis de Regno nostro exhibendum constituerimus dilectum et fidelem nostrum Philippum Basset Justiciarium Angliae quam diu nobis placuerit capitalem.—&c.”
And my Lord Coke says, afterwards in the same page, “King E. I. being a wise and prudent prince, knowing that cui plus licet quam par est plus vult quam licet (as most of the summi justiciarii did) made three alterations, 1. By limitation of his authority. 2. By changing summus justiciarius to capitalis justiciarius. 3. By a new kind of creation, viz. by writ, lest if he had continued his former manner of creation, he might have had a desire of his former authority, which three do expressly appear by the writ, yet in use, viz. Rex, &c. E.C. militi salutem, sciatis quod constitumus vos justiciarium nostrum { 259 } capitalem, ad placita coram nobis tenenda, durante beneplacito nostro teste, &c.” Afterwards in the same page Ld. Coke observes, “it is a rule in law, that ancient offices must be granted in such forms and in such manner, as they have been used to be unless the alteration were by authority of parliament. And continual experience approveth, that for many successions of ages without intermission, they have been, and yet are called by the said writ.” His Lordship informs us, also in the same page, that “the rest of the Judges of the King's bench have their offices by letters patent in these words. Rex omnibus ad quos presentes literae pervenient, salutem, sciatis quod constituimus dilectum et fidelem Johannem Doderidge militem unum justiciariorum ad placita coram nobis tenenda durante beneplacito, nostro, teste, &c.”
His Lordship says indeed, from Bracton, that “these Judges are called Perpetui by Bracton, because they ought not to be removed without just cause.” But the question is not what the Crown ought to do, but what it had legal power to do.
The next reason given by the General in support of his opinion, is that these points of law have been settled and determined by the greatest sages of the law formerly and more lately. This is so entirely without foundation, that the General might both with safety and decency be challenged, to produce the name of any one sage of the law ancient or modern, by whom it has been so settled and determined, and the book in which such determination appears. The General adds, “It is so notorious that it becomes the common learning of the law.” I believe he may decently and safely be challenged again; to produce one Lawyer in this country, who ever before entertained such an opinion, or, heard such a doctrine. I would not be misunderstood; there are respectable Lawyers, who maintain that the Judges here hold their offices during good behaviour; but it is upon other principles, not upon the common law of England. “My Lord chief justice Holt settled it so, not long before the statute of William and Mary, that enacts that the words quam diu bene se gesserint, shall be in the Judges Commissions.” And afterwards he says, that “the commissions as he apprehends, were without these words inserted in them, during the reigns of King William, Queen Mary and Queen Ann.”
This I presume must have been conjectured from a few words of Lord Holt in the case of Harcourt against Fox, which I think are these. I repeat them from memory, having not the book before me at present. “Our places as judges are so settled, determinable only upon misbehaviour.”3
Now, from these words I should draw an opposite conclusion from { 260 } the General, and should think that the influence of that interest in the nation which brought King William to the throne, prevailed upon him to grant the commissions to the Judges, expressly during good behavior. I say, this is the most natural construction, because it is certain, their places were not at that time, viz. 5 Wm. and Mary, determined by an act of parliament to be determinable only upon Misbehavior, and it is as certain, from Lord Coke, and from all history, that they were not so settled by the common law of England.
However, we need not rest upon this reasoning, because we happen to be furnished with the most explicit and decisive evidence, that my conclusion is just, from my Lord Raymond.4 In the beginning of his second volume of reports, his lordship has given us a list of the chief officers in the law at the time of the death of King William the third 8 March 1701, 2. And he says in these words, that “Sir John Holt, knight, chief justice of the King's bench, holding his office by writ, though it was quam diu se bene gesserint, held it to be determined by the demise of the King, notwithstanding the act of 12 & 13 Will. 3d.5 And therefore the Queen in council gave orders, that he should have a new writ, which he received accordingly, and was sworn before the lord keeper of the great seal the Saturday following, viz. the 14th of March, Chief Justice of Kings Bench.” —From this several things appear,
1. That General Brattle is mistaken in apprehending that the Judges commissions were without the clause quam diu bene se gesserint, in the reign of King William and Queen Mary, and most probably also in the reign of Queen Ann, because, it is not likely that Lord Holt would have accepted a commission from the Queen during pleasure, when he had before had one from King William during good behaviour. And because if Queen Ann had made such an alteration in the commission, it is most likely Lord Raymond would have taken notice of it. 2. That Lord Holt's opinion was, that by common law he had not an estate for life in his office, for if he had, it could not expire on the demise of the King. 3. That Lord Holt did not think the clause in the statute of 12 & 13 Wm. 3. to be a declaration of what was common law before, nor in affirmance of what was law before, but a new law and a total alteration of the tenure of the Judges commissions, established by parliament, and not to take place till after the death of the Princess Ann. 4. That in Lord Holt's opinion it was not in the power of the Crown, to alter the tenure of the Judges commissions, and make them a tenure for life determinable only upon { 261 } misbehaviour, even by inserting, that express clause in them, quam diu se bene gesserint.
I have many more things to say upon this subject, which may possibly appear some other time.

[salute] Mean while I am, Messi'rs Printers, Your humble Servant,

[signed] JOHN ADAMS
1. The preamble to the Townshend Revenue Act of 1767 stated explicitly that the revenues raised in America under this statute would be used “for making a more certain and adequate Provision for defraying the charge of the Administration of Justice, and the Support of Civil Government, in such Provinces where it shall be found necessary” (7 Geo. III, ch. 46).
2. Sir Edward Coke's Institutes of the Lawes of England is represented in JA 's library by volumes from two editions. The first and fourth Institutes in his set are from the edition printed in London, 1628, while the second and third are from the 6th edition, London, 1681 ( Catalogue of JA 's Library ).
3. This passage from the opinion of Chief Justice Sir John Holt (1642–1710) appears in Sir Bartholomew Shower, Reports of Cases Adjudged in the Court of King's Bench, in the Reign of ... King William III, with Several Learned Arguments, London, 1708, 1:535. The case of Harcourt v. Fox is discussed by JA at length in No. VI, below.
4. Sir Robert Raymond, 1st Baron Raymond, Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas, in the Reigns of the Late King William, Queen Anne, King George the First, and King George the Second, 2d edn., 3 vols., London, 1765, 2:747. Entered in Catalogue of JA 's Library .
5. That is, the Act of Settlement of 12 June 1701, 12 and 13 Wm. III, ch. 20.

Docno: ADMS-06-01-02-0096-0003

Author: Adams, John
Recipient: Boston Gazette (newspaper)
Date: 1773-01-18

II. To the Boston Gazette

[salute] To the PRINTERS,

It has been said already, that the common law of England has not determined the judges to have an estate for life in their offices provided they behaved well. The authorities of Lord Coke and Lord Holt have been produced, relative to the judges of the King's bench. And indeed authorities, still more ancient than Coke might have been adduced. For example, the learned Chancellor Fortescue, in his book in praise of the laws of England,1 1 chap. 51. says, “When any one judge of the King's bench dies, resigns, or is superceded, the King, with the advice of his council, makes choice of one of the Serjeants at law, whom he constitutes a judge, by his letters patent, in the room of the judge so deceased, resigning or superceded:” And afterwards he says “it is no degree in law, but only an office and a branch of magistracy, determinable on the King's good pleasure.” I have quoted a translation in this place, as I choose to do whenever I can obtain one, but I don't venture to translate passages myself, lest I should be { 262 } charged, with doing it unfairly. The original words of Fortescue are, unusual and emphatical. “Ad nutum regis duratura.”
The judges of the court of common pleas, held their offices, by a tenure as precarious. 4 Inst. 100.2 “The chief justice of the common pleas is created by letters patents. Rex, &c. Sciatis quod constituimus dilectum et fidelem E.C. militem, capitalem justiciarium de communi banco. Habendum quam diu nobis placuerit, cum vadiis et feodis ab antique debitis et consuetis. In cujus rei testimonium has literas nostras fieri fecimus patentes, teste, &c. And each of the justices of this court hath letters patents. Sciatis quod constituimus dilectum et fidelem P. W. militem, unum justiciariorum nostrorum de communi banco, &c.,” and this &c. implies the Habendum quam diu nobis placuerit, as in the patent of the chief justice.
It is true, that in the same fourth institute 117, we read, “that the chief baron (i.e. of the exchequer) is created by letters patents, and the office is granted to him quam diu se bene gesserit, wherein he hath a more fixed estate (it being an estate for life) than the justices of either bench, who have their offices but at will: And quam diu se bene gesserit must be intended in matters concerning his office, and is no more than the law would have implied, if the office had been granted for life. And in like manner are the rest of the barons of the exchequer constituted, and the patents of the attorney general and solicitor are also quam diu se bene gesserit.”
It is also true, that by the law of this province—a superior court of judicature, court of assize, and general goal delivery, is constituted over this whole province, and “by one chief justice, and four other justices to be appointed and commissionated for the same; who shall have cognizance of all pleas, real, personal or mixt, as well as pleas of the crown, &c. and generally of all other matters as fully and amply to all intents and purposes whatsoever, as the court of King's bench, common pleas and exchequer within his Majesty's kingdom of England, have, or ought to have,” &c.3
Will it be said that this law, giving our judges cognizance of all matters, of which the court of exchequer has cognizance, gives them the same estate in their offices, which the barons of exchequer had? or will it be said, that by “the judges,” General Brattle meant the barons of the exchequer?
The passages already cited will afford us great light in considering the case of Harcourt and Fox.4 Sir Thomas Powis, who was of council in that case for the plantiff, indeed says, “I take it, by the common law, and the ancient constitution of the kingdom, all officers of courts { 263 } of justice, and immediately relating to the execution of justice, were in for their lives, only removeable for misbehaviour in their offices. Not only my lords the judges of the court in Westminster Hall were anciently, as they now are, since this revolution, quam diu se bene gesserint, but all the officers of note in the several courts under them, were so, and most of them continue so to this day, as the clerks of the crown in this court, and in the chancery, the chief clerk on the civil side in this court, the prothonotaries in the common pleas, the master of the office of pleas in the exchequer, and many others; I think generally speaking, they were all in for their lives, by the common law, and are so still to this day.”5
“And in this particular the wisdom of the law is very great, for it was an encouragement to men to fit and prepare themselves for the execution and performance of those offices, that when by such a capacity they had obtained them, they might act in them safely, without fear or dependance upon favour; and when they had served in them faithfully and honestly, and done their duty, they should not be removed at pleasure. And on the other side the people were safe, for injustice, corruption or other misdemeanours in an office were sufficient causes for removal and displacing the offenders.”
And Serjeant Levinz, says, “If any judicial or ministerial office be granted to any man to hold, so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehaviour. So was Sir John Wallers [Walter's] case, as to the office of chief baron of the exchequer; and so was Justice Archer's case in the time of King Charles the second. He was made a judge of the common pleas quam diu se bene gesserit, and though he was displaced, as far as they could, yet be continued judge of that court to the time of his death; and his name was used in all the fines and other records of the court: And so it is in all cases of grants from the King, or from any other person.”
And afterwards, “It is a grievance that runs through the whole common law,6 as to ministerial offices; for all the offices in this court in the chancery, in the exchequer, in the common pleas, and generally all over the kingdom, relating to the administration of justice, and even the judges themselves, are officers for life; and why there should be more of a grievance in this case, than in theirs, I do not see: In general they are all for life, though some few particular ones may be excepted indeed.”
I have repeated at length these sayings of Sir Thomas Powis, and Serjeant Levinz, because they are music in my ears, and I sincerely { 264 } wish they were well supported, and because, I suspect the General Brattle derived much of his learning, relative to the judges offices, from them.
But alas! so far as they make for his purpose, the whole stream of law and history is against them. And indeed Mr. Hawles who was of council for Mr. Fox, seems to have given a true and sufficient answer to them, in these words, “whatsoever the common law was [as] to officers [offices] that were so ancient, is no rule in this matter; tho' tis we know, that as our books tell us, some offices were for life. And the office of Chancellor of England, my Lord Coke says, could not be granted to any one for life. And why? Because it never was so granted. Custom and nothing else prevails and governs in all these cases;[of] those offices that were usually granted for life, a grant of such an office for life was good, and of these that were not usually granted for life, a grant of such an office for life was void.”
The judges indeed did not expressly deny any of these sayings of Sir Thomas Powis, or of Serjeant Levinz who spoke after him, on the same side, but the reason of this is plain, because, it was quite unnecessary, in that case to determine, what was common law, for both the office of custos rotolorum, and that of clerk of the peace, were created by statute, not erected by common law, as was clearly agreed, both on the bench and at the bar.
Nevertheless, my lord Holt seems to have expressed his opinion, when he said, “I compare it to the case which my Lord Chief Justice Hobart puts of himself in his book 153.—Colt and Glover's case.7 Saith he, 'I cannot grant the offices of my gift as chief justice for less time than for life,' and he puts the case there of a man's assigning a rent for dower out of the lands dowable, that it must be for no less estate than life; for the estate was by custom, and it cannot be granted for a lesser estate than what the custom appoints; and in that case of the chief justice, [in] his granting offices in his gift, all that he had to do, was to point out the person that should have the office, the custom settled his estate in it.”
Thus we see that the sentiments of Lord Coke and of Lord Holt, concur with those of Mr. Hawles that the custom, was the criterion, and that alone. So that if the King should constitute a Baron of the Exchequer during pleasure, he would have an estate for life in his office, or the grant would be void. Why? Because the custom had so settled it—If the King should constitute a Judge of the King's bench, or common bench, during good behavior, he would have only an estate at will of the grantor. Why? Because the custom hath deter• { 265 } mined it so. And that custom could not be annulled or altered but by act of parliament.
But I go on with my delightful work of quotation, 1. Black. Com.8 267, 8—“In order to maintain both the dignity and independency of the judges in the superior courts, it is enacted by the stat. 13 W. 3. c. 2. that their commissions shall be made (not as formerly, durante beneplacito, but) quam diu bene se gesserint and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of Parliament. And now, by the noble improvements of that law in the statute of 1 G. 3. c. 23. enacted at the earnest recommendation of the King himself from the throne, the judges are continued in their offices during their good behavior, not-withstanding any demise of the crown (which was formerly held, see Lord Ray. 747 immediately to vacate their seats), and their full salaries are absolutely secured to them during the continuance of their commissions: His Majesty having been pleased to declare that he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honor of the crown.”
It would be endless to run over all the passages in English history, relating to this subject, and the examples of judges displaced by Kings. It may not be amiss to turn our attention to a very few however. The oracle himself was silenced by this power in the crown. Croke Jac. 407.9 —“upon the 18th Nov. this term Sir Henry Montague was made chief justice of the King's bench, in the place of Sir Edward Coke the late chief justice, who being in the King's displeasure was removed from his place by a writ from the King, reciting that whereas he had appointed him by writ to that place, that he had now amoved him, and appointed him to desist from the further execution thereof: And now this day, Egerton Lord Chancellor came into the King's bench, and Sir Henry Montague one of the King's Serjeants being accompanied with Serjeant Hutten [Hutton] and Serjeant Francis Moore, came to the middle of the bar, and then the Lord Chancellor delivered unto him the King's pleasure to make choice of him to that Place.”
There is a passage in Hume's history of England, which I cannot forbear transcribing, “The Queens (Eliz.) menace, says he, of trying and punishing Hayward for treason, could easily have been executed, let his book have been ever so innocent. While so many terrors hung over the people, no jury durst have acquitted a man whom the court was resolved to have condemned, &c. indeed there scarce occurs an { 266 } instance, during all these reigns, that the Sovereign, or the ministers, were ever disappointed in the issue of a prosecution. Timid juries, and judges who held their offices during pleasure never failed to second all the views of the court [crown].”10
Serjeant Levinz in the argument of Harcourt against Fox, speaking of the first parliament under King William says, “the parliament might observe, that some years before there had been great changing of offices that usually were for life into offices quam diu placuerit, this is very well known in Westminster Hall, and I did know some of them myself, particularly the judges of the courts of common law, for I myself (among others) lost my judges place by it,” &c.11
Mr. Hume in the reign of James II, says, “the people had entertained such violent prepossessions against the use, which James here made of his prerogative, that he was obliged before he brought on Hales's cause, to displace four of the judges, Jones, Montague, Charlton and Nevil.”12
There is not in history a more terrible example, of judges perishing at the royal nod, than this; nor a stronger evidence that, the power and prerogative of amoving judges at pleasure, was allowed to be by law in the crown: It was loudly complained of as a grievance, no doubt and an arbitrary exertion of prerogative, but it was allowed to be a legal prerogative still. And it cannot be doubted that the legality of it would have been denied every where, if the sense of the nation, as well as the body of the law, had not been otherwise, when the circumstances of that case of Sir Edward Hales are considered. And they ought to be remembered, and well considered by every well-wisher to the public; because they shew the tendency, of a precarious dependent tenure of the judges offices. Sir Edward Hales was a Papist—yet the King gave him a commission as a colonel of foot—and he refused to receive the sacrament, and to take the oaths and teste, within the time prescribed by an act of parliament 25. Car. 2. c. 2. by which refusal and that statute he forfeited £. 500. By concert between King James and Sir Edward, his coachman was employed to bring an action against him upon that stat. for the penalty. Sir Edward appears and pleads a dispensation under the broad seal, to act non obstante that statute. To this the plaintiff demurs. When this action was to be bro't to trial, the judges were secretly closeted by the king, and asked their opinions. Such as had scruples about judging as the court directed, were plainly told, by the king himself, that he would have twelve judges of his own opinion, and turned out of their offices. The judges mentioned by Hume, were thus displaced, to their lasting { 267 } honour, and one of them Jones had the fortitude and integrity to tell the king to his face, that he might possibly, make twelve judges, but he would scarcely find twelve lawyers of his opinion. Bedingfield, Atkins, Lutwitche and Heath, to their disgrace and infamy were created judges. And Westminster Hall thus garbled, became the sanctuary of despotism and injustice; all the judges excepting one, gave their opinions for the king, and made it a general rule in law. “1. That the laws of England are the king's laws. 2. That therefore it is an incident, inseparable prerogative of the kings of England as of all other sovereign princes, to dispense with all penal laws, in particular cases, and upon particular necessary reasons. 3. That of these reasons and necessities the king is the sole judge; consequently, 4. That this is not a trust invested in and granted to the king, but the ancient remains of the sovereign power of the kings of England, which never was yet taken from them, nor can be.” In consequence of this decision, the papists, with the king's permission, set up every where in the kingdom, in the free and open exercise of their religion. See Rapin, Burnet, Skinner, Comberbeck, St. Fr. [Tr.] and Sir Edward Herbert's vindication of himself.13
To enumerate all the struggles of the people, the petitions and addresses to Kings, praying that the judges commissions might be granted during good behaviour, the bills which were actually brought into one or the other house of parliament for that purpose, which failed of sucess until the final establishment in the 12 & 13. Wm. 3. would be too tedious, and indeed I anxiously fear I have been so already.
I also fear the proofs that the common law of England has not determined the judges to have estates for life in their offices, appear to be very numerous and quite irresistable. I very heartily wish General Brattle success, in his researches after evidence of the contrary position, and while he is thus engaged, if I should find neither business more profitable, nor amusement more inviting, I shall be preparing for your Press, a few other observations on his first Publication.
[signed] JOHN ADAMS
1. Sir John Fortescue's De Laudibus Legum Angliae, 2d edn., London, 1741. Entered in Catalogue of JA 's Library .
2. That is, Coke's Institutes.
3. “An Act for the Establishing a Superiour Court of Judicature, Court of Assize and General Goal Delivery within this Province,” passed 26 June 1699 (Mass., Province Laws , 1:370–371).
4. In the passage which follows, JA quotes the arguments and decisions as given in Shower, Reports, 1:426–440, 506–536. Sir Thomas Powys and Sir John Hawles argued before Justice Sir William Dolben on 8 Feb. 1692; Serjeant Creswell Levinz offered additional arguments for the plaintiff on 13 May 1693. The judges' opinions were delivered 30 June 1693.
5. Here JA omitted one sentence from Powys' argument: “So it was, and is with the clerks of assize, and so I take { 268 } it, before the statute of 37 Hen., 8 c. 1. it was with the clerk of the peace” (same, 1:429).
6. JA omitted some of Levinz's prefatory remarks on this point. In speaking of the statute of Henry VIII which ended life grants to clerks of the peace, the serjeant explained that such grants were considered grievances “for that statute itself says so, and sets it forth for a grievance, that sure must be that it was granted to unskilful persons for life, or else the mere grant for life is a strange kind of grievance; and it is a grievance, if it be one, that runs through the whole common law” (same, 1:512).
7. This is known more familiarly as the case of commendams. It is reported in The Reports of . . . Sir H. Hobart Resolved and Adjudged by Himselfe and Others in the Reign of James I, with Some Few Cases in the Reign of Queen Elizabeth, London, 1641. For editions of this work owned by JA , see Catalogue of JA 's Library .
8. Sir William Blackstone, Commentaries on the Laws of England. JA 's four-volume set of this work, London, 1768–1770, contained volumes from both the 3d and 4th editions. See Catalogue of JA 's Library .
9. Sir George Croke, Reports . . . of the Court of King's-Bench, and . . . of Common-Bench . . . , 3 vols., London, 1683. Entered in Catalogue of JA 's Library .
10. David Hume, History of England. In the Boston edition of 1854, this passage appears in 4:190. The newspaper mistakenly has “court” for “crown.”
11. Shower, Reports, 1:514.
12. Hume, England, 6:257–258.
13. Thomas Salmon, ed., A New Abridgement and Critical Review of the State Trials and Impeachments for High-Treason, from the Reign of King Richard II, London, 1738. Entered in Catalogue of JA 's Library . A condensation of Herbert's “Vindication” of his course in Hales' case appears at p. 568–571.

Docno: ADMS-06-01-02-0096-0004

Author: Brattle, William
Recipient: Boston Gazette (newspaper)
Date: 1773-01-18

III. William Brattle to the Boston Gazette

[salute] To the PRINTERS,

As the lines of mens minds are as various as the features of their faces, they can no more upon every subject think alike than they can look alike, and yet both be equally honest; consequently they ought respectively to be treated with good manners, let their stations in life be what they may, by all excepting those who think they have infallibility on their side. For the publick peace and good order, I should be willing to be mistaken in my law as John Adams, Esq; in his letter of last week supposes I am, if the writers upon political controversy would follow his example in his decent polite writing. As to his knowledge and learning in the law, I can't expect their imitation, till they have his genius and accomplishments, which I sincerely believe are rare. It appears to me that Mr. Adams's sentiments upon the estate that the justices of the superior court here by virtue of their nomination and appointment have, namely, that they may be legally displaced, meerly by the arbitrary will and pleasure of the Governor and Council, are Tory principles. But as I am convinced to draw the consequence therefrom, that he is one, would be injurious and false, I hope his sentiments (tho' however mistaken) will not be improved { 269 } to his prejudice. I on the other hand have said, and now declare as my opinion, that the Governor and Council can no more constitutionally and legally remove any one justice of the superior court, as the commissions now are, unless there is a fair hearing and trial, and then a judgment that he hath behaved ill, than they can hang me for writing this my opinion, and the latter (if it went no further) would not be of one half the publick mischief and damage as the former, notwithstanding I am very sensible that this hath been the case in one or two arbitrary administrations. I recollect but two since the charter; but these were arbitrary, illegal, unconstitutional measures, and do not determine what the law is, any more then the arbitrary illegal measures of the Steward Kings determine that their measures were legal, and ought to be the rule of his present Majesty's conduct. Arbitrary measures never did, after people had come to their senses, and I hope never will, determine what the law is.
Further I observe, that supposing a corrupt governor and a corrupt council, whether the words in the commission, are so long as the governor and council please, or during good behaviour, will just come to the same thing, the security as to the public will be just the same, but this is not our unhappy case. I am convinced that nothing would induce his Excellency Governor Hutchinson to nominate, or one member of the council to consent to a nomination in the room of any one justice of the Superiour Court (however disagreeable he might be) till he had after a impartial trial been first adjudged to have behaved ill, and so forfeited his estate by a breach of trust. The first thing Mr. Adams expresses his great surprize at is, that I should be at any loss, or any man in the province should be at a loss for what time the grant is made to the Judges; he says the King can't grant salaries in any other manner than durante bene placito, and that the King's power to grant salaries to any Judges in America, is derived solely from the late act of Parliament, and that gives no power to grant salaries for life or good behaviour, the above assertions without the least color of proof, but Mr. Adams's word for it, I deny. The parliament grants no salaries to the Judges of England, the King settles the salaries and pays his Judges out of the civil list; and I challenge Mr. Adams to show one instance of any Judge who was continued in office, tho' at the same time most disagreeable to the king that his salary was taken from him; to suppose this is frustrating the act of parliament that enacts that their commissions should be during good behaviour; for what if they are during good behaviour, what good will it do them, or what safety will it be to the community if it is in the { 270 } power of the King to take away their salaries and starve them? Will they not in this case be as dependent upon the Crown as if their commissions were to determine by the will of the King? Again, this act of parliament with respect to the Judges salaries, was made for no other reason than this, that the King might not pay them out of the civil list, but out of another fund, namely, out of the revenue; here the abovementioned act says nothing about durante beneplacito, and therefore if there is a grant made to the Judges, that grant stands upon the same footing with the salaries granted by the King to the Judges in England. Mr. Adams challenges me to produce one lawyer that ever was, or now is, in the country, that entertained such an opinion as I have advanced, namely, that by the common law of England, the Judges commissions are so long as they behave well: He acknowledges there may be respectable lawyers in this country, that hold that the Judges commissions are during good behaviour, though not expressly mentioned in their commission, but it is on other principles. I answer, if they are of that opinion, it must be upon my principles, for there is no statute law about it which extends to the plantations, the canon law nor civil law says nothing about it; and therefore if they are in sentiments with me, they can found their opinion on the common law only; and this I do solemnly declare, the honorable Mr. Read2 did, who was to every lawyer as highly esteemed for reforming, and correcting the law and the pleadings as Justinian was at Rome. He was my friend, my father, under whose direction I studied the law. I have heard him often and often declare it, as his opinion, and I have living witnesses to prove it; the late Judge Auchmuty3 was of the same mind. I have asked no gentleman at the bar now on the stage their opinion, and do not know it. But this I know, that it is the opinion of the greatest lawyers who are not at the Bar in the province, that I am right in what I have advanced. Mr. Adams makes a further challenge, and denies that I can produce the name of one of the sages of the law, by whom it hath been settled as I contend for, or in other words, that I am alone in my sentiments. This surprizes me much, that a gentleman of Mr. Adams's learning should be so extreamly mistaken and forgetful: Sir Thomas Powis one of the sages of the law gives his opinion in the words following, “I take [it] by the common laws and the ancient constitution of the kingdom all officers of courts of justice, and immediately relating to the execution of justice, were in for their lives, only removeable for misbehaviour in their offices: Not only my lords the judges of the courts of Westminster-Hall were anciently as they now are, since the { 271 } revolution, quam diu [se] bene gesserint, but all the offices [officers] of note in the several courts under them were so, and most of them continue so to this day; as the clerks of the crown in this court and in the chancery, the chief clerk on the civil side in this court, the prothonotaries in the common pleas, [the] master of the office of pleas in the exchequer, and many others. I think speaking generally they were all in for their lives by the common law, and are so to this day.—I shall not enlarge upon this matter, I need not, it being so well known,” says Sir Thomas.4 Sergent Levenz expressly says, that in the time of King Charles the second, S. [John] Archer was made a judge of the common pleas quam diu bene se gesserit. If it never was the common law of England that the judges commissions run during their good behaviour, as Mr. Adams affirms, and there was an act of parliament formerly that they should be during the king's pleasure (which let it be observed Lord Coke never said there was a statute relating to it) unless that statute was repealed, and I challenge Mr. Adams, and so I would my Lord Coke if he was alive, to shew that it was, or even that there ever was such a statute. I quere how it come about that King Charles the second did not conform to said statute, how in the face of an act of parliament or the common law, or both, to give commissions to the judges to continue during good behaviour, and thereby lessen their dependence on him; this can't well be reconciled with the history of his reign. And how come it about that ever since the revolution to George the first time, the commissions were during good behaviour. This I agree with Mr. Adams was the case, and am quite obliged to him for correcting my mistake when in my harrangue I said otherwise. According to Mr. Adams's doctrine, and according to the law, they were ipso facto null and void, because they were directly against law; provided Mr. Adams is right that both common law and statute law formerly obliged the King to give the judges their commission during good pleasure only. But I conceive that King William and Queen Mary that came over to save an almost ruined and undone people, by the tyranny of their predecessors, and their acting directly contrary to the laws of the land, that they should begin their reign by going directly against the law, and thereby violate their coronation oath, this is not credible. What the law was before their reign, was better known, and the law which was often fluctuating by the arbitrary power of some former princes, was put upon a more solid basis since the revolution than it was before. And we are to inquire what the law was formerly by the resolutions, the judgments of court, and the practice since the revolution, and the tenure of the { 272 } judges commission since the revolution being during good behaviour, to the reign of George the first, and when the act of King William was to take place,5 and not before, namely, that during good behaviour should be in their commissions, plainly proves what I have advanced to be law, is law, or else great dishonor is reflected upon King William, Queen Mary, and Queen Ann. I am obliged to Mr. Adams for quoting the following passage out of my Lord Coke, which fully justifies my reasoning upon the Judges commissions. The words are these. “It is a rule in law that ancient offices must be granted in such forms and in such manner as they have used to be, unless the alteration was by authority of parliament.”6
It is manifest to every one that doth not depend upon their memory, that lord chief justice Holt, one of the sages of the law, apprehended that for the Judges commissions being during good behaviour, was upon the rule of the common law. He says after a cause had been argued upon a special verdict; after Sir J. Powes and serjeant Levenz had most positively affirmed, that this was the rule of the common law, not denied by the council on the other side, but rather conceded to: that in giving his opinion upon the whole matter, we all know it, says that great lawyer, and our places as judges are so settled, only determinable by misbehaviour,7 settled by whom? not by an act that was not to take place till the accession of George the first, not by any statute then existing; where is it? Whoever heard of it? Let it be produced; if not by statute, certainly then by common law. And can any man think that Lord Chief Justice Holt would have taken a commission from King William and Queen Mary, if they had offered him one, supposing it had been contrary to law, or rather if it had not been consonant to law: Or can we suppose that all the judges of the King's bench would have heard the before mentioned gentlemen with respect to the tenure of the judges commissions, without a reproof, or at least without telling them it was not law, if all the judges had not thought it was law; I leave the world to determine.
Mr. Adams says, and says truly, that Sir John Holt, kt. chief justice of the King's bench, holding his office by writ, tho' it was quam diu bene se gesserit; held it to be determined by the demise of the King, and therefore Queen Ann ordered a new writ. And what then? Every civil officers commission holden quam diu bene gesserint, died with the demise of the King, till the act made in the present King's reign. Wherefore there was an act of parliament that all officers should be continued a certain time after the demise of the King, to prevent the total stagnation of justice.8
{ 273 }
Mr. Adams supposes a material difference between an estate that the judges have as such for life, or so long as they behave well: the following judges his equals at least differ from him. Serjeant Levenz “I take it clear law, that if an office be granted to hold so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehaviour; for it hath an annexed condition to be forfeited upon misdemeanor, and this by law is annexed to all offices, they being trusts; and misdemeanors in an office is a breach of trust”; and with his opinion agree the judges of the Kings bench in the case of Harcourt against Fox. J Eyre says, I do not think there is plainly given an estate for life in his office determinable upon his good behaviour: J Gregory says the same: J Dolben says that if any man is to enjoy an office so long as he behaves well in it, no one will doubt but the grantee hath an estate for life in it. My Lord Chief Justice Holt says, I do agree with my brothers in opinion.9 Upon the whole, using Mr. Adams's own words, My haranguing in the town meeting in Cambridge hath not received any sufficient legal answer; and not-withstanding my veneration for Mr. Adams's authority, it by no means prevails with me to give credit to his doctrine: Nor do his reasons in support of it weigh with me even so much as his authority.
[signed] W. Brattle
1. This essay appeared in the Boston Gazette of 25 Jan.
2. John Read (1679/80–1749) was the dominant figure in New England law of the early 18th century. For JA 's comments on Read, see his letter to Thomas Welsh, 13 Sept. 1790, JA, Works , 9:572; a sketch of Read appears in Sibley-Shipton, Harvard Graduates , 4:369–378.
3. Robert Auchmuty the elder (d. 1750 or 1751). Of Judge Auchmuty, JA wrote: “Set up all Night at his Bottle. Yet argue to Admiration next Day” ( Diary and Autobiography , 2:113; for a sketch of Auchmuty, see same, 1:160).
4. Powys' arguments in Harcourt v. Fox appear in Shower, Reports, 1:428–429.
5. The Act of Settlement.
6. See No. I, note 2, above.
7. This quotation is taken from Holt's opinion in Harcourt v. Fox, Shower, Reports, 1:535. For JA 's comments on Brattle's interpretation of this remark, see No. VI, below.
8. As JA pointed out in his rejoinder (see No. VIII, below), this statute was passed in the reign of Queen Anne, not in that of George III.
9. That is, Holt agreed with justices Sir Giles Eyre, Sir William Gregory, and Sir William Dolben, who sat with him on King's Bench.

Docno: ADMS-06-01-02-0096-0005

Author: Adams, John
Recipient: Boston Gazette (newspaper)
Date: 1773-01-25

IV. To the Boston Gazette

[salute] To the PRINTERS.

Another observation which occurred to me upon reading General Brattle's first publication, was upon these words, “That by the charter and common law of England, there is no necessity of { 274 } having any commission at all; a nomination and appointment are the words of the charter, a commission for them not so much as mentioned in it. Their commission is only declarative of their nomination and appointment.” Two questions arise upon this paragraph; and the first is, what provision is made by our charter? and the next is, what was necessary to the creation of a judge at common law?
As to our Charter: The King thereby grants and ordains, “That it shall and may be lawful for the said governor, with the advice and consent of the council or assistants, from time to time, to nominate and appoint judges, commissioners of oyer and terminer, sheriffs, provosts, marshalls, justices of the peace, and other officers, to our council & courts of justice belonging.”1
It is obvious from this, that there is no superior court of judicature court of assize and general goal delivery, nor any inferior court of common pleas, or any court of exchequer, expressly erected by the charter. Commissioners of oyer and terminer, the governor, with the advice and consent, of the council, is empowered to nominate and appoint: But it will not follow from hence, that a nomination and appointment, will alone constitute and empower commissioners of oyer and terminer. For the judges, which the governor with the advice of council are empowered to nominate and appoint, are not vested with any powers at all by the charter; but by another clause in it, the Great and General Court or Assembly “shall forever have full power and authority to enact and constitute judicatories and courts of record, or other courts, to be held in the name of us, our heirs and successors; for the hearing, trying and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes and things whatsoever, arising or happening within our said province or territory; or between persons inhabiting and residing there; whether the same be criminal or civil, and whether the said crimes be capital or not capital, and whether the said pleas be real, personal or mixt; and for the awarding and making out execution thereupon.” In pursuance of this authority, our legislature, in 1699. by a law, 2 W. 3. c. 3. have established a “superior court of judicature, court of assize and general goal delivery within this province, to be held by one chief justice, and four other justices to be appointed and commissionated for the same,”2 &c. Is not General Brattle then greatly mistaken when he says that “a nomination and appointment recorded is enough?”—enough for what? enough to constitute judges of our superior court, for they alone can be meant by the General, because the General himself determines his own meaning to be “they who have the same { 275 } powers with the king's bench, common bench and exchequer,” and no other judges have those powers, but the judges of our superior court, &c. and they have them, not by charter, but by the law of the province. If the governor should nominate and appoint with advice and consent, &c. A. to be a judge, or A. B. and C. to be “judges” in the words of the charter, what powers would this nomination and appointment convey? none at all. It would be nugatory, and void. For according to Lord Coke, 4 Inst. 200, a “new court cannot be erected but by act of parliament. And when a new court is erected, it is necessary that the jurisdiction and authority of the court be certainly set down. And that the court can have no other jurisdiction than is expressed in the erection.” And he there mentions the case of a letters patents granted by E.G.3 in these words. “We will and ordain, that Richard Beauchampe, &c. should have it (i.e. the office of the chancellor of the garter) for his life, & after his decease, that his successors should have it forever; and it was resolved unanimously that this grant was void; for that a new office was erected, and it was not defined what jurisdiction or authority the officer should have; and therefore for the uncertainty it was void.”
Let us next enquire, whether by the common law of England, there is or is not a necessity of the judges having any commissions at all. The authorities cited before, seem to shew very plainly, that the judges either of the king's bench, common bench, or exchequer, can be created only by writ, or by letters patents; and altho', these may be said not to be commissions, yet they are surely something more than nomination and appointment. However, writs and letters patents, are commissions, I presume, and should never have doubted it, if I had never read a News-Paper,—But if I had doubted, I might easily have resolved the doubt. For we read in 1 Bac. Abr.4 555. That “all judges must derive their authority from the crown by some commission warranted by law; the judges of Westminster, are (all, except the chief justice of the king's bench, who is created by writ) appointed by patent, and formerly held their places only during the King's pleasure, &c.” 4 Inst. 75. “Where in 5 E. 4. it is holden by all the justices in the Exchequer chamber that a man cannot be justice by writ, but by patent or commission, it is to be understood of all the judges, saving the chief justice of this court, (that is the king's bench) but both the chief justice and the rest of the judges may be discharged by writ under the great seal.” And in page 74, Lord Coke observes, that “the creation of the office, of chief justice, was first by writ, and afterwards by letters patents.”5 —1 Bac. Abr. 555. “As all judges must { 276 } derive their authority from the crown, by some commission warranted by law, they must also exercise it in a legal manner.”
In order to see whether writs and letters patents are not commissions, let us look into any common dictionary or interpreter of law terms. See Cunningham's dictionary and Cowell's interpreter,6 under the word Commission. “Commission commissio” (says Cowell, and after him in the same words Cunningham,) “is for the most part in the understanding of the law, as much as Delegatio with the Civilians. (See Brooke & Sit. [tit.] Commission) and is taken for the warrant, or letters patents, that all men exercising jurisdiction either ordinary or extraordinary have, for their power to hear, or determine any cause or action.”
Thus it seems to be very clear, that by the common law of England, a commission was absolutely necessary, for all the judges known at common law, and as to others erected by statute, let the statute speak. By 27 H. 8. c. 24. it is enacted, “That no person or persons of what estate, degree, or condition soever they be, shall have any power or authority to make any justices of Eyre, justices of assize, justices of peace, or justices of goal delivery; but that all such officers and ministers shall be made by letters patents, under the King's great seal, in the name and by the authority of the King's highness, in all shires, counties, palatine, wales, &c. or any other his dominions, &c. any grants, usages, allowance or act of parliament to the contrary notwithstanding.”
I shall add no more upon this point, but this, we find in Jenkins's centuries 123:7 This question determined by all the judges of England in the Exchequer chamber, “A writ of Admittas in association is directed to the justices of assize; A. shews this writ of admittas, in association to them, but does not shew the patent by which he is made justice: In this case, both ought to be shewn to the justices of assize. By all the judges in the Exchequer chamber, The judges of the king's bench, and common pleas, and the barons of the exchequer are made by patent, in which the word constituimus is used. The chief justice of the king's bench is constituted only by writ.”
[signed] JOHN ADAMS
1. The charter of 1691. See Thorpe, Federal and State Constitutions , 3:1879.
3. A typographical error for “E.4.”
4. Matthew Bacon, A New Abridgement of the Law, 5 vols., London, 1736–1766. Entered in Catalogue of JA 's Library .
5. This is either a misquotation by JA or a misprint. In his 4th Institute, Coke made the reverse of this observation on the chief justice's appointment: “The creation of his office was by letters patents,” he explained, until Edward I, “being a wise and prudent prince,” employed a “new kind of creation, viz. { 277 } by writ.”
6. Timothy Cunningham, A New and Complete Law-Dictionary, 2 vols., London, 1764, 1765; John Cowell, The Interpreter: or Booke containing the Signification of Words, London, 1637. Both entered in Catalogue of JA 's Library . Cowell's citation is to Sir Robert Brooke, La Graunde Abridgement, under the title “Commission.” Brooke is a kind of handbook of cases at common law arranged alphabetically.
7. David Jenkins, Eight Centuries of Reports. The passage quoted here appears at p. 123 of the 2d edn., London, 1734.

Docno: ADMS-06-01-02-0096-0006

Author: Adams, John
Recipient: Boston Gazette (newspaper)
Date: 1773-02-01

V. To the Boston Gazette

[salute] To the PRINTERS,

[epigraph]
One Thing at one Time.
[signed] De Witt.
The question is, in the present state of the controversy, according to my apprehension of it, whether, by the common law of England, the judges of the King's bench and common bench, had estates for life, in their offices, determinable on misbehaviour, and determinable also on the demise of the crown? General Brattle still thinks they had, I, cannot yet find reasons to think so: And as, whether they had, or had not, is the true question between us. I will endeavour to confine myself to it, without wandering.—
Now in order to pursue my enquiry, regularly, it is necessary, to determine with some degree of precision, what is to be understood by the terms “common law”—Out of the Mercian laws, the laws of the West Saxons, and the Danish law, King Edward the confessor extracted one uniform digest of laws, to be observed throughout the whole kingdom, which seems to have been no more than a fresh promulgation of Alfreds code or domebook, with such improvements as the experience of a century and an half had suggested, which is now unhappily lost. This collection is of higher antiquity than memory or history can reach. They have been used time out of mind, or for a time whereof the memory of man runneth not to the contrary. General customs which are the universal rule of the whole kingdom, form the common law in its stricter and more usual signification. This is that law, which determines that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer, among a multitude of other doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is upon common law for their support. Judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The law, and the opinion of the judge are not always convertible terms, tho' it is a general rule that the decisions { 278 } of courts of justice are the evidence of what is common law. See 1 Black. Com. 65, 66, 67, 68, 69, 70, 71, 72, 73. I have endeavoured to ascertain what is meant by the common law of England, and the method of determining all questions concerning it from Blackstone. Let us now see what is said upon the same subject by justice Fortescue Aland in the preface to his reports.1
Our judges, says he, do not determine according to their Princes or their own arbitrary will and pleasure, but according to the settled and established rules, and ancient customs of the nation, approved for many successions of ages. King Alfred who began to reign in 871, Magnus Juris Anglicani Conditor, the great founder of the laws of England, with the advice of his wise men, collected out of the laws of Ina, Offa, and Aethelbert, such as were the best, and made them to extend equally to the whole nation, and therefore very properly called them, the common law of England, because these laws were now first of all made common to the whole English nation. This jus commune, jus publicum, or Folcright, i.e. the peoples right, set done [down] in one code, was probably the same with the doombook or liber judicialis, which is referred to in all the subsequent laws of the Saxon Kings, and was the book that they determined causes by. And in the next reign, that of Edward the elder, the King commands all his judges to give judgment to all the people of England according to the doom book. And it is from this origin that our common law judges fetch that excellent usage of determining causes, according to the settled and established rules of law, and that they have acted up to this rule above eight hundred years together, and continue to do so to this day. Edward the confessor was afterwards but the restorer of the common law, founded by Alfred, and William the conqueror confirms and proclaims these to be the laws of England, to be kept and observed under grievous penalties, and took an oath to keep them inviolable himself. King Henry the first promised to observe them—King Stephen, King Henry the second and Richard the first confirmed them. King John swore to restore them. King Henry 3d confirmed them. Magna Charta was founded on them. And King Edward the first in parliament confirmed them—page 3, 4, 5, 6, 7, 8, 9, 10.
Now I apprehend General Brattle's opinion to be, that the common law of England, the birthright of every subject, or in the language of the Saxons, the Folcright, determines, the judges of the King's bench, and common pleas to have estates for life in their offices, determinable only on misbehaviour, or the demise of the Crown. And this I suppose { 279 } was the meaning of Sir Thomas Powis, when he said, “I take it, by the common law, and the ancient constitution of the kingdom, all officers of courts of justice, &c. were in for their lives, &c. not only my lords the judges of the courts in Westminster Hall, were anciently, as they now are since this revolution, quam diu se bene gesserint.”2
I have never expressed any disrespect to the character of Sir Thomas Powis, and I have no disposition, to harbour any: It is enough for me to say, that these expressions were used by him, when arguing a cause for his client at the bar, not when he was determining a cause as a judge; that they were entirely unnecessary for the support of his cause, which was a very good one, let these expressions be true, or otherwise, i.e. whether the judges, were anciently, in for their lives, or only at pleasure: that they depend wholly upon his affirmation, or rather his opinion, without the colour or pretence of an authority to support them; and that I really believe them to be untrue. And I must add, it appears to me, extraordinary, that a gentleman, educated under that great Gamaliel, Mr. Reed, should ever adduce the simple dictum, of a council at the bar, uttered arguendo, and as an ornament to his discourse too, rather than any pertinent branch of his reasoning, as evidence of a point “settled and determined by the greatest sages of the law formerly and more lately.” Does Sir Thomas Powis produce, the doom book itself, in support of his doctrine? That was irrecoverably lost for ages before he had a being? Does he produce any judicial decision ancient or modern, to prove this opinion? No such thing pretended,—Does he produce, any legal authority, a Hengham, Britton, Fleta,3 Fortescue, Coke, or any Antiquarian, Mathew Paris, Dugdale, Lambard, or any other, or even the single opinion of one historian, to give a colour to his doctrine? No such matter. Nay I must enquire further, can general Brattle, draw from any of these sources, a single Iota to support this opinion? But in order to show for the present the improbability that any such authority will be found, let us look a little into history. Mr. Rapin, in his dissertation on the government of the anglo Saxons, vol. 1. 157.4 says, “one of the most considerable of the kings prerogative[s] was the power of appointing the earls, viscounts, judges and other officers, civil and military, very probably, it was in the king's power to change these officers, according to his pleasure, of which we meet with several instances in history.” By this it appears to have been Mr. Rapin's opinion, that very probably, the kings, under the ancient Saxon constitution, had power to change the judges, according to their pleasure. I would not be understood however to lay any great stress, { 280 } on the opinions of historians, and compilers of antiquities, because it must be confessed, that the Saxon constitution, is involved in much obscurity, and that the monarchical and democratical factions in England, by their opposite endeavors, to make the Saxon constitutions, swear for their respective systems, have much increased the difficulty of determining to the satisfaction of the world, what that constitution in many important particulars, was. Yet Mr. Rapin certainly was not of that monarchical faction, his byass, if he had any, was the other way, and therefore his concession, makes the more in my favour.
Mr. Hume in his “feudal and Anglo Norman government and manners” v.i. quar. 412.5 says “the business of the court was wholly managed by the chief justiciary, and the Law Barons, who were men appointed by the king, and wholly at his disposal.” And since I am now upon Hume, it may be proper to mention the case of Hubert deBurgo, who while he enjoyed his authority, had an entire ascendency over Henry the Third, and was loaded with honours and favours beyond any other subject, and by an unusual concession was made chief justiciary of England for life. 2. Hume 162. Upon this I reason thus, if his being made justiciary for life, was an “unusual concession,” it could not be, by the immemorial, uninterrupted usage and custom, which is the criterion of common law. And the very next words of Hume shew, how valid and effectual this grant, of the office for life was then esteemed, “yet Henry, says Hume, in a sudden caprice, threw off this faithful minister,” which implies, that he was discarded and displaced in both his capacities because the summus justiciarius, or chief justiciary, was in those reigns, supream regent of the kingdom, and first minister of state, as well as of the law. And this seems to shew that the grant for life, was void and not binding on the King in the sense of those times, ancient as they were 1231. This summus justiciarius, is the officer, whose original commission, I gave the public, from lord Coke in my first paper, which was expressly during pleasure. And my lord Coke's account of the change of the chief justice's commission and authority may receive some additional light from lord Gilbert's historical view of the court of exchequer,6 page 7, towards the latter end of the Norman period; the power of the justiciar was broken, so that the Aula Regis, which was before one great court only distinguished by several offices, and all ambulatory with the King before Magna Charta, was divided into four distinct courts, Chancery, Exchequer, King's Bench, and Common Pleas. The justiciary was laid aside, lest he should get into the throne, as { 281 } Capet and Pippin, who were justiciars in France, had done there. See also Gilbert's history and practice of the high court of chancery.7
Now from the exorbitant powers and authority of these justiciaries arises a proof from the frame of the government and the ballance of the estates that the office in those ages was always considered as dependent on the pleasure of the King, because the jealousy, between the Kings and Nobles, or between the monarchical and aristocratical factions, during the whole Norman period, were incessant and unremitted, and therefore it may be depended on that Kings never would have come into the method, of granting such an office usually for life. For such a grant, if had been made, and been valid, must have cost the grantor his throne, as it made the justiciar, independent of the King, and a much more powerful man than himself—and if during the whole Norman period and quite down to the death of Sir Edward Coke, a course of almost six hundred years, the offices of judges were held during pleasure, what becomes of the title to them for life, which General Brattle sets up, by immemorial, uninterrupted usage or common law?
Sir Thomas Powis, however, has not determined, whether, by the ancient constitution of the kingdom, he meant, under the Norman, or the Saxon period; and in order to shew the improbability, that the judges held their offices during good behaviour in either of those periods, I must beg the pardon of your readers, if I lead them into ages, manners and government, more ancient and barbarous, than any mentioned before. Our Saxon ancestors, were one of those enterprizing northern nations, who made inroads upon the provinces of the Roman empire, and carried with them wherever they went, the customs, maxims and manners of the feudal system: And although when they intermingled with the ancient Britons, they shook off some part of the feudal fetters, yet they never disengag'd themselves from the whole. They retained a vast variety of the regalia principis, of the feudal system, from whence most branches of the present prerogatives of our kings are derived. And among other regalia the creation, and annihilation of judges, was an important branch. For evidence of this we must look into the feudal law. It was in consequence of this prerogative, that the courts were usually, held in the aula regis, and often in the King's presence, who often heard and determined causes in person, and in those ages the justiciary was only a substitute or deputy to the king; whose authority ceased entirely in the King's presence. This part of the prerogative, has a long time ago been divested from the crown, and it has been determined { 282 } that, the King has delegated all his authority to his judges. The power of the King in the Saxon period, over the judges, was absolute enough however, and they sometimes treated them with very little ceremony. Alfred himself is said in the mirror of justices8 to have hang'd up 44 of his judges in one year, for misdemeanors.
To some of these facts and principles, Bracton is a witness. “Dictum est, says he, de ordinaria, jurisdictene quae pertinet, ad regem; consequenter dicendum est de jurisdictione delegata ubi quis est seipso nullam habet authoritatem, sed ab illo sibi commissam cum ipse qui delegat non sufficiat per se omnes, causes, sive jurisdictiones terminare et si ipse dom, rex and [ad] singulus causas terminandas non sufficiat, ut levior fit illi labor, in plures personas, partito onere, eligere debet de regno suo viros sapientes et timentes deum. Item justiciariorum quidam sunt capitales generales, perpetui et majores a latere regis residentes qui omnium aliorum corrigere tenetur, jujurias et errores, sicut etiam alii perpetui certo loco residentes sicut in banco. Qui omnes jurisdictionem habere in cipiunt praestito sacramento. Et quam vis quidam eorum perpetui sunt ut videtur, finitur tamen eorum jurisdictio multis modis. v.g. mortuo eo qui delegavit, &c. Item cum delegans revocaverit jurisdictionem.” &c. Bracton. chap. 10. Lib. 3.9
Serjeant Levenz says,10 “if any judicial or ministerial office be granted to any man to hold, so long as he behaves himself well in the office, that is an estate for life, unless he loose it for misbehaviour. So was Sir John Waller's [Walter's] case, as to the office of chief baron of the exchequer”. To all this I agree, provided it is an office, that by custom, i.e. immemorial usage, or common law, (as that of the chief baron of the exchequer was,) or by an express act of parliament, (as that of clerk of the peace in the case of Harcourt against Fox was) has been granted in that manner, but not otherwise. And therefore these words have no operation at all against me. But the serjeant goes on, “And so was Justice Archer's case in the time of King Charles the second. He was made a Judge of the common pleas quam diu se bene gesserit, and tho' he was displaced as far as they could, yet he continued judge of that court to the time of his death; and his name was used in all the fines and other records of the court:”—General Brattle thinks these words are full in his favour, and he can't reconcile this patent to Judge Archer, with the history of Charles the second's reign &c. We shall presently see, if a way to reconcile it, cannot be discovered: But before I come to this attempt, as it is my desire to lay before the public, every thing I know of, which favours General Brattle's hypothesis, and to assist his argument to the utmost of my { 283 } power, I will help him to some other authorities, which seem to corroborate, Serjeant Levinz's saying. And the first is Justice Fortescue Aland, Rep. 394. “Justice Archer was removed from the common pleas, but his patent being quam diu se bene gesserit, he refused to surrender his patent, without a scire facias, and continued justice, tho' prohibited to set there. And in his place Sir William Ellis was sworn.” The next is, Sir Tho's Ray. 217.11 “This last vacation Justice Archer was removed from sitting in the court of common pleas, pro quibusdam causis mihi incognitis; but the judge having his patent to be a judge, quam diu se bene gesserit, refused to surrender his patent without a scire facias, and continued justice of that court, tho' prohibited to sit there, and in his place, Sir William Ellis, kt. was sworn.”
But will any man from these authorities conclude, that King Charles the second, had power by the common law to grant Judge Archer an estate for life in his office? If he had, how could he be prohibited to sit? How came Justice Ellis to be sworn in his stead? Was not the admission of Ellis, by his brother judges, an acknowledgment of the King's authority?—Will any man conclude, from these authorities, that it had before been the custom time out of mind, for Kings to grant patents to the judges, quam diu se bene gesserint?—If we look into Rushworth 1366,12 we shall find some part of this mystery unriddled. “After passing these votes against the judges, and transmitting of them unto the house of Peers and their concurring with the house of commons therein, an address was made unto the King shortly after, that his Majesty for the future would not make any judge by patent during pleasure, but that they may hold their places hereafter quam diu se bene gesserint, and his Majesty did readily grant the same, and in his speech to both houses of parliament at the time of giving his royal assent to two bills, one to take away the high commission court, and the other the court of star-chamber, and regulating the power of the council table, he hath this passage—If you consider what I have done this parliament, discontents will not sit in your hearts; for I hope you remember that I have granted that the judges hereafter shall hold their places, quam diu se bene gesserint—And likewise his gracious Majesty King Charles the second observed the same rule and method in granting patents to judges, quam diu se bene gesserint, as appears upon record in the rolls (viz.) to Serjeant Hide [Hyde], to lord chief justice of the King's bench, Sir Orlando Bridgeman to be lord chief baron, and afterwards to be lord chief justice of the common pleas, to Sir Robert Foster and others; Mr. Serjeant Archer now living (notwithstanding his removal) still { 284 } enjoys his patent, being quam diu se bene gesserit, and receives a share in the profits of that court, as to fines and other proceedings, by virtue of his said patent, and his name is used in those fines, &c. as a judge of that court.” This address was in 1640.
This address of the two houses of parliament, which was in 1640, was made in consequence of a general jealousy conceived of the judges, and the general odium which had fallen upon them, for the opinion they gave in the case of ship money, and other cases, and because there had been not long before changes and removals in the benches; to mention only one, Sir Randolph Crew not shewing so much zeal for the advancement of the loan, as the King was desirous he should, was removed from his place of lord chief justice, and Sir Nicholas Hyde succeeded in his room. See Rushworth, 420. 2. Rush. Append. 266.13 —And King Charles in 1640 began to believe the discontents of his subjects to be a serious affair, and think it necessary, to do something, to appease them.
But will it do to say, that he had power to give away the prerogative of the crown, that had been established in his ancestors for 800 years, and no man can say how many centuries longer, without an act of parliament? against the express words of Lord Coke, which the General thanks me for quoting. “It is a rule in law that ancient offices must be granted in such forms and in such manner as they have used to be, unless the alteration was by authority of parliament.”
As to King Charles the IId, his character is known to have been a man of pleasure and dissipation, who left most kinds of business to his ministers, and particularly in the beginning of his reign, to my Lord Clarendon, who had perhaps a large share in procuring that concession from Charles the 1st, and therefore chose to continue it under the second.
But notwithstanding all this, Charles the IId, soon discovered that by law, his father's concession and his own, had not divested him of the power of removing judges, even those to whom he had given patents, quam diu se bene gesserint, and he actually re-assumed his prerogative, displaced Judge Archer and many others in the latter end of his reign, and so did his successor, see Skinner's reports14 and Ray. 251. These examples shew that those Kings did not consider these concessions as legally binding on them. They also shew, that the judges in Westminster-Hall were of the same mind, otherwise they would not have admitted the new judges in the room of those displaced; and it seems that even the judges themselves who were then displaced, Judge Archer himself did not venture to demand his { 285 } place, which he might have done, if he had an estate for life in his office. Nay, it may be affirmed, that the house of Commons themselves, were of the same mind, for in the year 1680, in the reign of Charles the IId, after the removal of Archer and many other judges, the commons brought in a bill, to make the office of judge during good behaviour: see 8. Hume. 143. Now I think they would not have taken this course, if they had thought Archer had an estate for life in his office, but would have voted his removal illegal, and would have impeached the other judges for admitting another in his room.
Archers “continuing judge,” and “receiving fees for fines” and “his name's being used in the fines,” I conjecture are to be accounted for in this manner. He refused to surrender his patent, without a scire facias. The King would not have a scire facias brought, because, that would occasion a solemn hearing, and much speculation, clamour and heat, which, he chose to avoid; and as his patent remained unsurrendered and uncancelled, and as by law there might be more judges of the common pleas than four, and therefore the appointment of another judge, might not be a supersedeas to Archer, they might think it safest to join his name in the fines, and give him a share in the fees. And no doubt, this might be done in some instances to keep up the appearance of a claim to the place, and with a design to provoke the King's servants and friends to bring a sci. fa. and so occasion an odium on the administrations, and hasten on a revolution.
I have hazarded these conjectures, unnecessarily, for it is incumbent upon General Brattle to shew from good authorities, for the affirmative side of the issue is with him, that, by common law the judges had estates for life in their offices. In order to do this, he ought to shew that the King, at common law, i.e. from time immemorial, granted patents to these judges during good behaviour, or that he the King had his election to grant them either durante beneplacito or quam diu se bene gesserit, as he pleased. Nay, it is incumbent on him to shew that a patent, without either of these clauses, conveys an estate for life. None of these things has he done, or can he do.
It was never denied, nor doubted by me that a grant made in pursuance of immemorial custom, or of an act of parliament, to a man to hold so long as he should behave himself well, would give him an estate for life. The unanimous judgment of the court in that case of Harcourt against Fox proves this. But then, in that case an express act of parliament impowered the custos retulorum, to constitute a clerk of the peace for so long time as he should behave himself well. Nor have I any doubt that the patents to the Barons of the { 286 } exchequer, which are by immemorial usage, quam diu se bene gesserint, convey to them an estate for life: but my difficulty lies here, no custom, no immemorial usage, no act of parliament enabled the King, to grant patents to the judges of Kings bench and common pleas, expressly quam diu se bene gesserint; and therefore, if Lord Coke's rule is right “that ancient offices must be granted in such forms and in such manner as they have used to be, unless the alteration be by authority of parliament,” —the Kings grant, at common law, to a judge of King's bench or common pleas, of his office for life in terms, or during good behaviour, which is tantamount, would have been void,—void I mean quoad an estate for life or good behaviour, but good as an estate at will, and I conceive when we read that the King cant make a Lord Chancellor for life, but that such a grant would be void, the meaning is, that the habendum for life or good behaviour shall be void; but that this shall not vitiate the other parts of the patents, but that they shall convey such estate, and such estate only, as the King had power by custom, or by statute to grant. I don't suppose that the writ to Lord Holt, or the patents to his brothers in the reign of King William were void, but I fear that had the King seen fit to have removed them, by writ, it would have been legally in his power, notwithstanding that clause in their commissions.
[signed] JOHN ADAMS
1. Sir John Fortesque Aland, Reports of Select Cases in All the Courts of Westminster-Hall, London, 1748. Entered in Catalogue of JA 's Library .
2. For Brattle's use of this quotation, see No. III, above.
3. Hengham, Britton, and Fleta are early standard authorities on English law. Sir Ralph de Hengham, Summae Magna Hengham et Parva vulgo Nuncupatae cum Seldeni Notis, London, 1737; Johannes Britton, Britton [on the Laws of England], ed. Edmund Wingate, London, 1640; Fleta in John Selden, Opera Omnia . . . , ed. David Wilkins, London, 1726. All three are listed in Catalogue of JA 's Library . Fleta and Britton are abridgments of Bracton. See note 9, below.
4. Paul de Rapin-Thoyras, The History of England, 2 vols., London, 1732–1733. Entered in Catalogue of JA 's Library .
5. “The Feudal and Anglo-Norman Government and Manners” is appendix 2 of Hume, England. The feudal courts are discussed at 1:497–499 in the Boston edition of 1854.
6. Sir Geoffrey Gilbert, An Historical View of the Court of Exchequer, and of the King's Revenues, There Answered, London, 1738. Entered in Catalogue of JA 's Library .
7. Sir Geoffrey Gilbert, The History and Practice of the High Court of Chancery, London, 1758. Entered in Catalogue of JA 's Library .
8. The Mirror of Justices, London, 1742, transl. W[illiam] H[ughes], London, 1646. The author of this treatise, which is full of ridiculous inaccuracies, distorted borrowings, and romanticized incidents, is unknown, although speculation has assigned the honor to Andrew Home, Chamberlain of the City of London. The MS was composed in the late 13th century. See William Joseph Whittaker, ed., The Mirror of Justices, London, 1895, with introd. by Frederic W. Maitland.
9. Henry de Bracton, De Legibus et Consuetudinibus Angliae, London, 1640.
{ 287 }
10. In the case of Harcourt v. Fox. See Shower, Reports, p. 510.
11. Sir Thomas Raymond, Reports of Divers Special Cases. . . , London, 1743. Entered in Catalogue of JA 's Library .
12. John Rushworth, ed., Historical Collections of Private Passages of State . . . , 4 parts in 7 vols., London, 1659–1701. Only two copies of later editions of vol. 1 are entered in Catalogue of JA 's Library .
13. In Rushworth's Historical Collections, the documents concerning the case brought against John Hampden for refusal to pay ship money in 1637 and the removal of Sir Randolph Crew in 1626 appear in vol. 2:480–605 and in the appendix to the same vol., p. 266–268.
14. Robert Skinner, Reports of Cases Adjudged in the Court of King's Bench from the Thirty-Third Year of ... Charles II to the Ninth Year of William III, with Some Arguments in Special Cases, London, 1728. Entered in Catalogue of JA 's Library .

Docno: ADMS-06-01-02-0096-0007

Author: Adams, John
Recipient: Boston Gazette (newspaper)
Date: 1773-02-08

VI. To the Boston Gazette

[salute] To the PRINTERS.

Two or three anecdotes, were omitted in my last, for want of room, which may be here inserted, in order to shew that General Brattle's “rule of the common law of England” originated in the reign of King Charles the first. I say originated, because the example of Hubert de Burgo, is so ancient and so uncertain, that it is even doubted by Baron Gilbert, whether he was ever chief justiciary or not.
In 1641 King Charles the first, finding his affairs in a desperate condition was obliged to consent to an act of the Scottish parliament, that no member of the privy council, no officer of state, none of the judges, should be appointed, but by advice and approbation of parliament; and all the officers of state were to hold their places quam diu se bene gesserint. Four of the present judges, who had been active on the side of prerogative, were displaced.
In 1642, the parliament of England, transmitted to the King at York, nineteen propositions, in order for an accommodation of the differences then subsisting, the twelfth of which, was, that the judges should hold their places quam diu se bene gesserint. See Rapin and Mrs. Maccaulay.
This was but about two years after the King had given orders, at the instance of parliament, and his royal promise in his public speech, that the judges commissions should for the future be granted quam diu se bene gesserint. And it proves incontestibly one of these things, either that the parliament thought the King's promise was void, as being what he had not power by law to promise—or that the grants so made would be void, at least as to the Habendum during good behaviour, or at least that the crown had its election by law to make judges at pleasure or at will, as it should see fit. Now if either of these apprehen• { 288 } sions were just, it could not be true that at common law, the judges had their commissions quam diu se bene gesserint, nor could it be true that by common law, the judges had estates for life in their offices, whether quam diu se bene gesserint was in their commissions or not.
I believe enough has been said, concerning these dark sayings of Powis and Levenz, let us now proceed to consider what was said by Lord Holt. And I must think the General has discovered a degree of art in managing his lordship's words that is very remarkable; and I beg the reader's patience while I develope in some detail this complicated mystery. In order to this I must state the case of Harcourt against Fox, for this will shew that the decision of that case, is no proof of any thing that I have ever denied, and that General Brattle has unaccountably misinterpreted Lord Holt's words.
The act of Parliament made in the first year of William and Mary says, “the Custos Rotulorum, or other having right to nominate a Clerk of the Peace, shall nominate and appoint a fit Person for the same, for so long Time only as such Clerk of the Peace shall demean himself well in his office.”
The Earl of Clare is made Custos, according to that Statute. By his deed he constituted the Plaintiff Harcourt to be Clerk of the Peace, “to have and execute that office so long as he did well behave himself in it.”
After this the Earl of Clare was removed, and my lord of Bedford was made Custos, and he by his deed appointed Fox the Defendant to be Clerk of the Peace, for so long Time as he should continue Custos, if the said Fox did behave himself well in the Office. And the Question as stated by Lord Holt, was “Whether or no, by the amotion of my lord of Clare from the office of Custos, Harcourt ceased to be Clerk of the Peace? for then the Law was for the Defendant, otherwise it was for the Plaintiff.”
Lord Holt concurred with his Brothers, that Judgment should be for the Plaintiff, and that he was still Clerk of the Peace—And after explaining his Reasons, at great length, and with great Learning and Perspicuity, he hath these Words.
“All that the Custos hath to do in reference to this Office of Clerk of the Peace, is to point out the Person that should have it; and as the other (i.e. the officer appointed by the C.J.) is in by custom, so here he is in by act of parliament; the custos where [when] he hath named him, he hath executed his authority, and cannot qualify the interest, which passeth by the act.
I am the more inclined to be of this opinion, because I knew the { 289 } temper and inclination of the parliament, at the time when this act was made; their design was that men should have places not to hold precariously, or determinable upon will and pleasure, but have a certain durable estate, that they might act in them without fear of loosing them; we all know it, and our places as judges are so settled, only determinable upon misbehaviour.”1
Now I would ask any impartial person, to what those words “We all know it” refer? We all know it? Know what?—That such was the temper and inclination of that parliament, and that such was their design. Can it be said that these words refer to words that follow? We all know it. Know what? “that our places as Judges are so settled?” —Some new kind of grammar, logick and common sense must be invented, and applied to this paragraph, before this construction can be adopted.
I will now repeat the words of General Brattle, “It is manifest to every one that doth not depend upon their memory, that Lord Chief Justice Holt, one of the sages of the law, apprehended that for the judges commissions being during good behaviour, was upon the rule of the common law. He says after a cause had been argued upon a special verdict; after Sir T. Powis and Serjeant Levenz had most positively affirmed, that this was the rule of the common law, not denied by the council for the other side, but rather conceded to; that in giving his opinion upon the whole matter, we all know it, says that great lawyer, and our places as judges are so settled, only determinable by misbehaviour.”2
Now I will ask the same impartial person, to what those words “We all know it” appear to refer, in the foregoing words of General Brattle? We all know it. Know what? That this was the rule of the common law as Powis and Levenz had most positively affirmed.
In Lord Holt's own mouth they referred to the temper, inclination and design of parliament, in General Brattle's writings they are made to refer seemingly, if not necessarily, to the sayings of Powis and Levenz, and to the rule of the common law. I hope this was the effect of haste, inadvertence, any thing rather than design in the General.
I must intreat every gentleman to look into that case of Harcourt and Fox, which is repeated in 1 Shower, at great length, and he must be convinced that taken all together, it makes against General Brattle rather than for him. It was determined, in that case as it had been long before 3. Ass. p1. 93 that to hold an office during good behaviour, was to hold it for life, determinable upon misbehaviour: this was never, and will never be deny'd by me. But it was not determined, { 290 } that the judges offices were held so, or that the King had power to grant them so—What was said by Lord Holt concerning the judges offices, had no direct relation to the point then in judgment before him, which concerned only the office of clerk of the peace. It was only said incidentally, and not explained. It might and probably did mean no more than it was so settled by King William, in the patents he had given the judges as far as it was in his power to settle it; and that it was the inclination and design of the parliament and the then governing interest in the nation, that it should be so settled by act of parliament as soon as it would bear. For it should be here observed, that, although the friends of K. William were most numerous and powerful, yet James had friends too—many and powerful friends, and the government was then weak—the revolution was so recent, that they all had their fears. And the most sagacious of King Williams friends might not choose to have this matter settled very suddenly—they might choose that the judges should remain, subject to a revocation of their patents, if they should fail in supporting King William, altho' they chose to have their patents granted quam diu bene se gesserint, that they might have some hold of the royal word and honour, in order to obtain in due time a settlement of it by act of parliament.
Let me subjoin to this the authority of a very modern, tho' a very able and upright judge, I mean Sir Michael Foster 394.4 “The King (Richard the second) and his ministers, soon after the dissolution of the parliament, entered into measures for defeating this commission. One expedient was to take the opinion of the judges upon the whole proceeding; a refuge constantly open to a corrupt administration, though, be it spoken to the honor of the profession, not always a sure one; even while the judges commissions were determinable, at the pleasure of the Crown.” And in page 396, We find the eighth question propounded by the King to those judges was this, “Since the King can whenever he pleaseth, remove any of his judges and officers, and justify or punish them for their offences; Whether the lords and commons can without the will of the King impeach in parliament any of the said judges or officers for any other offences.” To which the judges answered unanimously, “That they could not, and if any one should do so, he is to be punished as a traitor.” See 1 State Trials,5 the proceedings against Chief Justice Tresillian and others.
It was said in a former paper, that the supream jurisdiction in all causes, and the power of creating and annihilating magistrates, was an important branch of the Jura Regalia Principis of the Feudal Law. These regalia were distributed into two principal divisions, the regalia { 291 } majora and minora. The majora were those “quae personam et dignitatem principis et administrationem republics concernunt, ut collatio dignitatum regalium,6 et jurisdictio summa in causis ecclesiasticis et secularibus,” as well as the “jus belli et pacis &c. et haec alias jura magistatis dicuntur.” Strykii Examen Juris Feudalis.7
Supream sovereign jurisdiction therefore in all causes temporal and spiritual, was one of the greater royalties, or sublimest prerogatives of the feudal princes, and were inseparable from the feudal majesty: and they could not be granted away by the prince to any subject, so as to be irrevocable. And the feudal law says expressly, if an infeudation of these regalia majora should be made, “majestas divisionem non recipiat, nec jura ab ea seperari possint; distinguendum est inter ipsum, jus, et exercitium hujus juris; hoc alteri concedi potest, ut eodem utatur dependenter; illud veropenes principem remanet.”
Stryk. 173.
That this was one of the regalia majora. see, the Consuetudiners Feudorum, Tit. 56. Quae sint Regaliae—Potestas constituendorum magistratuum ad justitiam expediendam.
It was this old feudal idea, that such prerogatives were inseparable from majesty, and so incident and essential to the kingly office that not even an act of parliament could divest it of them; which puzzled the heads of the two James's and the two Charles's, and cost them and the nations they governed, very dear. It was this which was intended by Sir Edward Herbert and his brothers, who determined for Sir Edward Hale's case mentioned in a former paper,8 and gave their opinions and made it a general rule in law that the dispensing power, was an incident inseperable prerogative of the Kings of England, as of all other sovereign princes; and that this was not a trust invested in and granted to the King, but the ancient remains of the sovereign power of the Kings of England, which was never yet taken from them nor can be.
The way is now prepared for the most important question of all.
General Brattle declares his opinion in very strong terms, “that the Governor and Council cannot legally or constitutionally remove a justice of the superior court, as the commissions now are, unless there is a fair hearing and trial, and then a judgment that he hath behaved ill.”
This, I am content to make a question, after premising, that we ought in such enquiries, always to obtain precise ideas, and to give exact definitions of the terms we use, in order to arrive at truth. The { 292 } question then appears to me to be different from what it would be, if we were to ask whether a justice of that court can be constitutionally removed without a trial and judgment? Many people receive different ideas from the words legally and constitutionally. The law has certainly established in the crown many prerogatives, by the bare exertion of which, in their utmost extent, the nation might be undone. The prerogatives of war and peace, and of pardon, for examples, among many others. Yet it would be absurd to say that the crown can constitutionally ruin the nation, and overturn the constitution. The British constitution is a fine, a nice, a delicate machine, and the perfection of it depends upon such complicated movements, that it is as easily disordered as the human body. And in order to act constitutionally every one must do his duty. If the King should suffer no parliament to sit for 12 years, by reason of continual prorogations, this would be an unconstitutional exercise of prerogative. If the commons should grant no supplies for 12 years, this would be an unconstitutional exertion of their privilege. Yet the King has power legally to do one, and the commons to do the other. I therefore shall not contend with General Brattle, what the Governor and Council can constitutionally do, about removing justices, nor what they can do in honor, integrity, conscience, or Christianity. These things I shall leave to the internal sentiments of future Governors and Councils: And shall confine myself to the question, whether they can legally remove a judge.
And it is with great reluctance that I frankly say, I have not been able hitherto, to find sufficient reason to convince me, that the Governor and Council have not, as the law now stands, power to remove a judge as the commissions now are, without a trial and judgment, for ill behaviour.
I believe it to be true that the judges, in all King William's reign, had their commissions quam diu se bene gesserint: Our Charter, and our Province Law erecting the Superior Court, were made in that reign. In the charter the King grants power to the Governor with advice and consent of Council to nominate judges, &c. and to the General Court to erect Judicatories, &c. and that “all and every of the subjects of us, our heirs and successors, which shall go to and inhabit within our said province and territory, and every of their children which shall happen to be born there, or on the seas in going thither, or returning from thence, shall have and enjoy, all liberties and immunities of free and natural subjects within any of the dominions of us, our heirs and successors, to all intents, constructions and purposes { 293 } whatsoever, as if they and every of them were born within this our realm of England.”9
Now admitting for arguments sake, that the judges in England in that reign held their offices legally for life, determinable upon mis-behaviour, and that it was by law in that reign a liberty, of free and natural subjects born within the realms, that the judges should hold such an estate in their offices, what will be the consequence? Will it not be, that the Governor and Council, have power by charter and by law, to grant their commissions quam diu se bene gesserint? And that if the Governor and Council should grant their commissions in that manner, the judges would have estates for life in their offices. But will it follow, that they have such estates, if the Governor and Council do not grant them in that manner? Here then, if these principles are all just, let the just consequence be drawn; let the Governor and Council, I speak with humble defference and submission, issue the commissions to the judges, quam diu se bene gesserint; and if that is declined, let the province, I speak with all possible respect again, make their humble supplications to his Majesty that his Governor may be permitted, or instructed if you will, to grant them in that manner. I fear there is too much reason to think, as no judicature can be created but by the legislature, and the jurisdiction must appear in the erection, and as no judge at common law, or by the law of the province, can hold an office but by commission, that the duration of the judges office or estate must appear in the commission itself.
However, all this reasoning in favour of an estate for life in our judges, is built upon this principle, that Lord Holt and the judges in England, under King William, had estates for life, by law in their offices. And this principle implies, that the Crown at common law had authority to make judges to hold for life, or at will, at its pleasure, which is a problematical doctrine at least. Some of the passages of law and history which I have quoted in former papers, seem to be evidence, that at sometimes the houses of parliament, and some of the ministers of the law had such an apprehension, but a multitude of others, produced in the same papers betray an apprehension of the contrary. But I don't recollect a single circumstance in law or history, that favours the opinion that a judge there had an estate for life, without the words quam diu se bene gesserit, in his commission.
General Brattle took the right way of establishing the independency of our judges, by affirming that they had estates for life, by their nomination and appointment, and by common law, whether their commissions expressed quam diu se bene gesserint or not, or whether they { 294 } had any commissions at all or not. And if he could have proved these allegations, he would have got his cause. But he has been extreamly unfortunate, in having Bracton, Fortescue, Coke, Foster, Hume, Rapin and Rushworth, directly against him, and nothing in his favour, but the say of a lawyer in arguing a cause for his client, and that say by no means so extensive as the General's assertions—for Powis himself don't say the judges at common law were in for their lives, without the clause quam diu se bene gesserint in their commissions. The questions that have been considered are liberal and of much importance. I have done little more than labour in the mines of oar and the quarries of stones. The materials are at the service of the public; and I leave them to the Jeweller and Lapidary, to refine, fabricate and polish them.
[signed] JOHN ADAMS
1. Holt's opinion is given in Shower, Reports, 1:527–536, the passage concerning the “temper and inclination of the Parliament” being on p. 535.
2. See No. III, note 7, above.
3. Book of Assizes, third year of Edward III, Plea 9.
4. Sir Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry . . . , Oxford, 1762. Entered in Catalogue of JA 's Library .
5. A New Abridgement and Critical Review of the State Trials . . . The case cited begins on p. i; the relevant passage is on p. 4.
6. Here JA omitted the phrase: “ Fundatio Academiarum, potestas ferendi Leges, Cura Religionis Jurisdictio summa.”
7. Which of the many editions of Samuel Stryk's Examen Juris Feudalis JA consulted is not known. This quotation is taken from ch. 9.
8. See No. II, above.

Docno: ADMS-06-01-02-0096-0008

Author: Adams, John
Recipient: Boston Gazette (newspaper)
Date: 1773-02-15

VII. To the Boston Gazette

[salute] To the PRINTERS.

We are now upon the commissions of our own Judges, and we ought to examine well the tenure by which they are holden.
It may be depended on, that all the commissions of Judges throughout America, are without the words quam diu se bene gesserint in them; and consequently, that this horrid fragment of the feudal despotism, hangs over the heads of the best of them to this hour. If this is the case, it is a common and a serious concern to the whole continent: And the several provinces will take such measures as they shall think fit, to obtain a better security of their lives, liberties, and properties. One would think there never could happen a more favourable opportunity, to procure a stable tenure of the Judges offices, { 295 } than the present reign, which was begun with his Majesty's most gracious declaration from the throne, “that the independency and uprightness of the Judges, was essential to the impartial administration of justice.”1 However, let us return and confine ourselves to this province. Our Judges commissions, have neither the clause quam diu se bene gesserit, nor the clause durante beneplacito, in them. By what authority, and for what reasons, both these clauses, were omitted, when the commission was first formed and digested, I know not; but the fact is certain, that they are not in it. But will it follow that because both clauses are omitted, therefore the judges are in for life? Why should it not as well follow that they are in only at pleasure? Will it be said that the liberty of the subject and the independency of the Judges is to be favoured; and therefore as there is no express clause to determine it otherwise, it must be presumed to be intended for life. If this is said, I answer, that by all rules common law, is to be favoured, and therefore whatever was the rule at common law must be favoured in this case, and if the judges at common law were in only at pleasure, it will follow that ours are so to, without express words, for there is no rule more established than this, that the prerogative is not to be taken away without express words; and that the King's grant is to be construed most favourably for the King, when it has not the clause ex mero moto, specialia gratia, et certa scientia in it, as these commissions have not.
Why should the omission of both clauses, make the commissions during good behaviour, in the case of a superior judge, any more than in the case of a justice of the peace. The commission of a justice of the peace here is without both clauses, as much as the commission of a judge, yet it never was pretended here that a justice of peace might not be removed, at pleasure, by the Governor and council, and without an hearing and judgment that he had misbehaved.
And I suppose it to be clearly settled so in England. By the form of the commission of the peace in England, which we have in Dalton c. 5, and in 3 Burn. Tit. Justices of the peace, 1 Shaw's Inst. 13. 16. 172 —We find that both these clauses are omitted, out of that commission, which was settled and reformed as it there stands by Sir Christopher Wray Chief Justice of England, and all the other Judges of England in the 32 and 33 Eliz. upon perusal of the former commission of the peace, and often conference within themselves.
Yet these commissions are determinable at pleasure. See Dalton's Justice, c. 3. These commissions of the peace, their authority doth determine by diverse means, yet more usually by three means, 1. { 296 } by the death of the King, or by his resignation of his crown: for by the commission he maketh them justiciarios nostros, so that he being once dead, or having given over his crown, they are no more his justices, and the justices of the next Prince they cannot be, unless it shall please him afterwards so to make them. 2. At the King's pleasure, and that in two sorts, 1. Either by the King's pleasure expressed (as the King by express words may discharge them by his writ, under the great seal) or by supersedeas: but the supersedeas doth but suspend their authority, which may be revived by a procedendo. 2. or by implication; (as by making other commissioners of the same kind, and within the same limits, leaving out the ancient commissioner's names). See Dalton, Burn, or Shaw.
Thus the argument arising from the omission of the clause in our Judges commissions of durante beneplacito, seems to have no weight in it, because the same clause is omitted from the commission of the peace both at home and here, and yet the commission has been settled at home to be determinable, at the pleasure of the King, and here at the pleasure of the Governor and Council, particularly in a late instance, which General Brattle may possibly remember.
Let us now proceed to consider with more particular attention the principle, upon which all colourable pretensions of establishing the independency of our Judges, is founded. The principle is this, that Lord Holt and his brothers under King William had legal estates for life in their offices, determinable only on misbehaviour, and the demise of the Crown, tho' I apprehend, that even this principle will not serve the purpose—It is true, that if this principle is admitted, it will follow, that the Governor and Council here have power to issue the commissions, quam diu se bene gesserint, but it will not follow, that by law they are bound to do that, because King William was not bound by law to do it in England. If King William had his election, to grant commissions, quam diu se bene gesserint, or durante beneplacito, then the natural subjects, born within the realm, had not a right to have the judges patents granted quam diu se bene gesserint, unless the King pleased. It is true upon this supposition that they had a right, to have them granted so if they were happy enough to perswade the crown to grant them so; not otherwise.
The same right and liberty, will belong to the subject in this province. Not a right absolutely to have the judges commissions granted quam diu se bene gesserint, but to have them granted so if the governor and council saw fit, and could be prevailed on to do it.
And on the other hand, if King William had power to grant the { 297 } commissions either way as he pleased, it will follow that the governor and council have power to grant them either way. And if this is true, it is to be hoped General Brattle, will have influence enough, to prevail that the commissions for the future may be granted expressly quam diu se bene gesserint. But until that is done, even upon these principles, our judges hold their places only at will.
However, we must examine yet further, whether the crown, in King William's time or any other, ever had its election, to grant the patents either way?
Lord Coke's authority has been quoted before, several times, and it seems to be very explicit, that a grant of a judicial office for life, which had usually been granted at will is void. 2. Hawkins, p. c. 2 ss. 5.3 “Nay it is said by some, that the king is so far restrained by the ancient forms in all cases of this nature, that his grant of a judicial office for life, which has been accustomed to be granted only at will is void.” And in ss. 6. “And the law is so jealous of any kind of innovation in a matter so highly concerning the safety of the subject, as not to endure, any, the least deviation from the old known, stated forms, however immaterial it may seem, as will be more fully shewn. c. 5. ss. 1.”
I have not been able to find any direct adjudication, of any of the courts of common law or any absolute determination of all the judges in the exchequer chamber, that a grant to a judge of king's bench, or common bench, quam diu se bene gesserint is void, but besides what is before cited from Coke and Hawkins, it is certain, that whenever such grant has been made, the king who made it considered it as void. King Henry thought it was void, when he threw off his faithful Hubert de Burgo, Charles the first thought it void, and so did his parliament, in 1642, as appears by the twelfth article transmitted by them to the king at York, and Charles the second, and James the second, thought it void, as appears many ways by their displacing Judge Archer and others. And it appears also by King Charles's displacing the earl of Clarendon, for there is no reason, why a grant of the office of chancellor for life should be void, as Lord Coke says expressly that it is, and a grant of the office of chief justice in the same manner be good.
1. Sid. 338. Mich. 19. car. 2. B. R.4 “Note that this vacation Sir Edward Hyde Earl of Clarendon and Lord Chancellor of England was deposed by the king from being chancellor, altho' he had a patent for his life, because the taking away of the seal is a determination of the office, as 4 inst.”
{ 298 }
Here the grant for life is considered as void, and Lord Coke's authority is quoted for it. I suppose where he says a grant of the office of chancellor for life is void because it never was so granted, i.e. as I understand it, it never was customarily granted. For it is not literally true, that it never was so granted. It has been granted for life, almost if not quite as often, as the judges offices ever were before the Revolution. It may be proper to shew this.
Thomas Lord Ellesmere, in his observations concerning the office of the Lord Chancellor,5 p. 15. says, “The election or creation of chancellors and keepers, &c. was of more than one sort. Sometimes and for the most part the chancellor was elected by the king durante beneplacito, and put in power of his office by the delivery of the seal, and sometimes the chancellor was made by patent to hold that place or office during his life, as Walter Grey bishop of Chester6 in the time of king John, and others, some, and the most part elected by the king only; some had patents of the king, and were confirmed chancellors by consent of the three estates, as were Ralph Nevil, bishop of Chester7 in the time of king Henry the third, with whom the prince being offended as reports Matthew Paris, and demanding the seal at his hands, he refused to yield the same unto him, affirming that as he had received it by the common consent of the nobility, so he would not, without like warrant resign the same, and in the days of the same king, it was told him by all the Lords spiritual and temporal that of ancient time, the election and disposition of the chief justice, chancellor and treasurer, belonged to the parliament, and although the king in displeasure, did take the seal from him, and deliver[ed] the same to the custody of others, yet did the aforesaid Nevil remain chancellor notwithstanding, and received the profits thereof, to whom the king would have restored the seal, but he refused to receive it.”
Here let me observe that I have a long time expected from General Brattle some such authority as this; for I believe it was in the mind of Sir Thomas Powis, when he said by the ancient constitution, my lords the judges were in for their lives. But let it be considered, that there is no remaining record that the lords spiritual and temporal told the king so, nor any legal authority, to prove it, nor any other authority for it, but Matthew Paris, whose writings are not sufficient evidence of this; let it also be considered, that this king Henry would probably have been obliged, to insert a clause in his Magna Charta to secure this privilege, if the claim of it had been then thought to be well founded, and as this was not done, it is most likely, (admitting Matthew Paris's fact to be true,) that the lords spiritual and temporal { 299 } meant no more than this, that some king of ancient time, had in some few instances, condescended to take the advice of his wittenagemote, or assembly of wisemen, concerning the appointment and removal of such officers: But a few particular examples of royal condescension could form no established rule, and according to the notions of those feudal ages, could never alienate from the prince, any of his regalia majora.
Lord Ellesmere goes on, “And let us note by the way, three several patents were granted unto this Ralph Nevil, two whereby he is ordained to be chancellor, and the third for the custody of the seal, all remaining among the records of the tower, in haec verba.”8
Henricus rex, &c. Archiepiscopis, &c. Sciatis, nos dedisse, concessisse, et hac charta nostra confirmasse, venerabili Randolpho cicistrensi episcopo cancellariam nostram habend. et tenend. toto tempore vitae suae cum omnibus pertinentibus, &c.
His second patent was of this form. Henricus, &c. Archiepiscopis, &c. Sciatis nos concessisse, et hac charta nostra confirmasse, pro nobis et heredibus nostris venerab. pri. Randolpho cicistrensi episcopo, cancellario nostro cancellariam angliae, toto tempore vitae suae, cum omnibus pertinentibus, &c. Quare volumus et firmiter praecipimus pro nobis, et haeredibus nostris, quod praedictus episcopus habeat ipsam cancellariam, toto tempore vitae suae, &c.
This is the transcript of his third patent the same day and year. Henricus, &c. Archiepiscopis, &c. Sciatis nos concessisse, et hac carta nostra confirmasse venerabili patri Randolpho cicest: Episcopo cancellar, nostro, custodiam sigilli nostri toto tempore vitae suae, cum omnibus, &c. ita quod sigillum [illud] portat et custodiat, in propria persona sua, quam diu valecerit [voluerit].
And in page 13,9 Lord Ellesmere says, “Sometimes the chancellors of England were elected by the nobility, as Nicolas of Eli was made chancellor by the barons; but this seemed a usurpation by them, for they were afterwards, the most of them most sharply chastized, and the said Nicolas deprived by Henry the third, disdaining to have officers of that estate appointed him by his subjects.”
Thus we see that a few examples of appointments for life to the office of chancellor, have not been sufficient to establish the power of the crown to grant it in that manner, but it is often said in our books to be void, and in the case of Lord Clarendon was presumed to be so. Why then should a few examples of judges constituted quam diu se bene gesserint, in the reigns of Charles the first and second, and king William determine them to be good?
{ 300 }
I think it has been determined by all the judges of England, that time of memory should be limited to the reign of king Richard the first, and every rule of common law, must be beyond the time of memory, that is as ancient as the reign of that king, and continued down generally until it is altered by authority of parliament.
Sir James Dyer at the end of his reports,10 fol. 378, has given us the names of all the chief justices of the King's bench, from the twenty second year of Edward the third to the sixteenth year of Queen Elizabeth, viz. Thorp, Shareshull, Green, Knyvett and Cavendish under Edward the third—Tresillian and Clopton under Richard the second—Gascoign under Henry the fourth—Hankford under Henry the fifth—Cheney [Cheyne], June [Inyn] and Fortescue under Henry the sixth—Markham and Billing under Edward the fourth—Hussey under Richard Third—Fineux [Fyneux] under Henry the seventh—Montague, Leister [Lyster] and Cholmley, under Henry the eighth—Bromeley, Portman and Saunders under Queen Mary—Catlyne [Catlin] and Wray under Elizabeth.
And also the names of all the chief justices of the common pleas from the year 1399, viz. the last year of the reign of Richard the second, to the twenty fourth of Queen Elizabeth, viz. Heiringe [Thirning] under H. 4. Norton H. 5. Babington, Joyn [Inyn], Cosmore [Cotesmore], Newton and Prisot under H. 6. Danby and Brien [Bryan] E. 4. Woode, Frowicke [Frowyk] and Rede H. 7. Erneley [Ernle], Briednell [Brudenell], Norwiche, Baldwin, Montague, H. 8. Morgan, Brooke and Browne P. and Ma. Dyer and Anderson, Eliz.
The writs or patents of all these chief justices remain enrolled, in the courts of King's bench and common pleas, and also enrolled in chancery, and every one of them is durante beneplacito—as I conclude, because Dyer has given us the tenure of his own commission, Rep. 150. p. 159. a. Ego Jac. Dyer, constitutus fui unus justiciariorum ad placita coram rege et regina tenenda, per L. patentes gerentes datum apud Greenwich 23 die Aprilis, durante beneplacito Regi, &c.—and because, the foregoing lists and the records from whence they were taken, were familiarly known to Sir Edward Coke, and he says that form had been used and approved without any variation for many successions of ages, even from the time of Edward the first, and long before. It may therefore be safely affirmed, that there is no record of any justiciary, or chief justice of king's bench or common pleas, whose writ or patent was not durante beneplacito, quite down to the year 1640, in the reign of Charles the first. I say there is no record of any, because the story of Hubert de Burgo has no record extant to { 301 } prove it, and rests upon no better evidence than Matthew Paris, which in our present view of the matter, is no evidence at all, because he is no legal authority.
If there is no record therefore extant to warrant the crown in granting patents to the Judges quam diu se bene gesserint anterior to 1640, it is in vain to look for any adjudg'd case, that a patent so granted is good, anteriour to that period, and I am equally confident to say there has been none since.
There is a case in the year books, which was quoted by the attorney general in the argument of the case of Harcourt against Fox, to prove that a grant quam diu se bene gesserit conveyed a Franktenement—But common sense without a judicial decision would be sufficient to determine that. It is but the necessary, natural import of the words. If a man has a lease of a house as long as he behaves well, if he behaves well as long as he lives he must hold the house as long as he lives. That case is in 3 Ass. pl. 9. That part of it which is to our present purpose is no more than this. “Note that a grant of rent to be paid another, as long as he wills, or pleases, is a freehold clearly enough, sicut dominus rex concessit alicui aliquam ballivam vel hujus modi, donec bene et fidelitur se gesserit in officio illo.”
It is easy to see that this is no adjudication that the King's grant to a Judge of King's bench or common pleas quam diu se bene gesserit is good and valid, and I believe it may be depended on that there never was such a judgment in Westminster Hall.
I have heretofore mentioned several instances, of great, wise and honest Judges, falling victims at the royal nod, and giving place to others, much their inferiors in all respects. To these let me add the case of the learned, firm and upright Chief Justice Pemberton, who in the thirty fourth year of Charles the second, was obliged to descend from the chief seat in the King's bench into the common pleas, to make way for the cunning chicanery of Sanders, who was elevated to his place, in order to carry some court points, and in the next year, the great and honest man was deposed from his place in the common pleas, and after having been chief justice of both benches, was necessitated to take a place again at the bar, and to bear the sneers and raileries of young mooting barristers, who tho't to recommend themselves at court by insulting him.
And here I cannot forbear introducing a curiosity. It is the speech of the lord chancellor, to Sir Henry Montague, when he was sworn chief justice of the king's bench, in the room of a man much greater and better, I mean Lord Coke. It is found at length in Sir Francis { 302 } Moor's reports11 826, 7, 8, 9.—and I mention it because it is fraught with lessons of instruction. It shews the tendency of holding offices at pleasure. It shews what sordid, nauseaous and impious adulations to superiours, what malicious, envious, and cruel invectives, against honest Coke, or any other brave and honest man, whom the courtiers are determined to hunt down, are inspired by this dependent state of mind. It shews what a deep, and lively sense they had upon their minds of their dependance, every moment of their existence, upon royal will;—and how carefully they cultivated in one another, as the highest virtue, this base servility of spirit.
“The King's Majesty, (says the chancellor to Sir Henry Montague,) in the governing of his subjects, representeth the divine Majesty of Almighty God; for it is truly said of God, that infima per media ducit ad summa, &c.” —“You are called to a place vacant, not by death or cession, but by amotion and deposing of him that held the place before you, by the great king James the great king of Great-Britain, wherein you see the prophet David['s] words are true, he putteth down one, and setteth up another, a lesson to be learned of all, and to be remembered and feared of all that sit in judicial places, &c. It is dangerous in a Monarchy, for a man holding a high and eminent place, to be ambitiously popular: take heed of it.
“Remember Sir Edward Montague your worthy grand-father. You are called to succeed him in this high place, and called thereunto upon amotion and deposing of another, by the great judgment and wisdom of the great king of Great-Britain, whose royal virtues will be admired to all posterity.” Then follows much abuse upon honest Coke.
“Your grand-father doubted not, but if the King by his writ, under the great seal, commanded the Judges that they should not proceed rege inconsulto, then they were dutifully to obey, and to consult with the king not in this Court but in another, that is the court of chancery.
“Remember also, the removing and putting down, of your late predecessor, and by whom, which I often remember unto you, that is by the great King of Great Britain, whose great wisdom, royal virtues and religious care, for the weal of his subjects, and for the due administration of justice, can never be forgotten, but will remain admirable to all posterity.” —Who would think that this was a James!
“Comfort yourself with this that sithe the King's Majesty hath enabled you, who shall or can disable you.”
Let us here subjoin a few clauses more from Hawkins, Book 2. c. 5. ss. 2. “All such justices must derive their authority from such in• { 303 } struments as are of a known, stated and allowed form, warranted by ancient precedents;” &c. “It seems clearly to be agreed by all these books that the best rule of judging of the validity of any such commission is their conformity to known and ancient precedents.”
ss. 4. “Such commissions may be determined expressly or implicitly; expressly by an absolute repeal or countermand from the King, &c.”
[signed] JOHN ADAMS
1. 1 George III's speech to the Houses of Parliament, 3 March 1761 (Ann. Register for 1761, p. 243).
2. Michael Dalton, The Country Justice, London, 1746, and Richard Burn, The Justice of the Peace and Parish Officer, 3 vols., London, 1762, are both entered in Catalogue of JA 's Library . The printer misread JA 's abbreviation for the third work cited, Joseph Shaw, The Practical Justice of Peace, 2 vols., London, 1728. JA probably wrote “Shaw's Just.” The page references are misprinted as well; the pertinent material appears in vol. 1:3–7.
3. William Hawkins, A Treatise of the Pleas of the Crown, 2 vols. in 1, London, 1762. Entered in Catalogue of JA 's Library . Passages quoted in this paragraph are from vol. 2, chs. 2 and 5.
4. Sir Thomas Siderfin, Les reports des divers special cases argue & adjudge en le Court del Bank le Roy, et auxy en le Co. Ba. & lExchequer . . . , London, 1714. Entered in Catalogue of JA 's Library .
5. The page references given here correspond to those in Certaine Observations Concerning the Office of Lord Chancellor, London, 1651, which carried the name of Sir Thomas Egerton, Baron Ellesmere, on the titlepage. Although this attribution was accepted in JA 's lifetime, modern scholars have questioned Ellesmere's authorship of the treatise ( DNB ).
6. An error for “York.”
7. An error for “Chichester.”
8. Certaine Observations, p. 17.
9. A misprint for “18.”
10. Sir James Dyer, Reports of Cases in the Reigns of Hen. VIII. Edw. VI. Q. Mary, and Q. Eliz., London, 1688(?).
11. Cases Collect & Report per Sir Fra. Moore, Chevalier, Serjeant del Ley, London, 1663. For the significance of JA 's use of this collection in his research in early 1773, see Debate between Hutchinson and the House of Representatives, 26 Jan. – 2 March, below.

Docno: ADMS-06-01-02-0096-0009

Author: Adams, John
Recipient: Boston Gazette (newspaper)
Date: 1773-02-22

VIII. To the Boston Gazette

[salute] To the PRINTERS,

In all General Brattle's researches hitherto, aided and assisted as he has been by mine, we have not been able to discover, either that the judges at common law had their commissions quam diu se bene gesserint, or for life, or that the crown had authority to grant them in that manner. Let us now examine and see, whether estates for life, determinable only on misbehaviour or the demise of the Crown, can be derived to the Massachusetts Judges from any other source? If they can, they must be from the Charter, from the nomination and appointment of the Governor with the advice and consent of council, { 304 } from the judges commissions, or from the law of the province; from one, or more, or all these together, they must be derived, if from any thing. For as the judges of the King's bench and common bench, are in by the King's grant or by custom or both, as justices of oyer and terminer, goal delivery, &c. are in by the King's grant as the clerk of the peace, is said by Lord Holt in the case of Harcourt against Fox, to be in by the act of parliament 1 Wm. and Mary, and the officers whose places are in the gift of the chief justice, are in by the custom, so the Massachusetts Justices are in by one or more or all of the four titles mentioned above.
And here the first inquiry is, what is meant by an officer's being in by custom or by statute, &c.? And I suppose the true answer to be this, He is invested with his powers, is obligated to his duties, and holds his estate by that custom or statute, &c. And the next inquiry is, by what are our judges in? that is by what act, or instrument, are they cloathed with their power, bound to their duties, and intitled to their estates?
By the Charter, there are no certain powers given them, no certain duties prescribed to them, nor any certain estate conferred upon them. The Charter impowers the Governor, with advice and consent of Council, to nominate and appoint them, that is, to designate the persons; nothing more.
There are three sorts of officers in the charter. Those reserved to the nomination of the King, as the Governor, Lt. Governor, Secretary, and Judge of Admiralty. And it is not limited how long they shall continue, excepting the first Secretary Addington, and he is constituted expressly during pleasure;1 and the duration of all these officers, has been limited ever since, expressly by their commissions, to be during pleasure. The second sort of officers in the charter are those which the General Court are to name and settle, and the charter expressly says they shall be named and settled annually, so that their duration is ascertained in the charter. The third sort are those which the Governor with advice and consent of Council, is to nominate and appoint—And there are no duties imposed, no powers given, no estates limited to these in the charter. But the power of erecting judicatories, stating the rights and duties, and limiting the estates of all officers, to the council and courts of justice belonging, is given to the General Court, and the charter expressly requires, that all these courts shall be held in the King's name, and that all officers shall take the oaths and subscribe the declarations appointed to be taken and subscribed, instead of the oaths of allegiance and supremacy. And it is in observance of { 305 } this requisition in the charter, viz. That all courts shall be held in the King's name, that the Judges commissions are in the King's name. The governor and council designate a person, not to be the governor and council's justice, but the King's justice, not of the governor and council's court, but of the King's court. And the law of the province requires that the Justices of the Superiour Court should have a particular species of evidence, of their nomination and appointment, viz. a commission, otherwise as General Brattle says, a nomination and appointment recorded, would be enough. And here I cannot refuse myself the pleasure of observing that the opinion of Mr. Read, concurred with, and I humbly conceive was founded on these principles. Governor Belcher perswaded the council, that upon the appointment of a new governor, it was necessary to renew all civil commissions, and the same thing was proposed in council by his successor: But Mr. Read, who was then a member of the council, brought such arguments against the practice, that the majority of the board refused to consent to it, and it never has been done since. 2. Mass. Hist. 375, 6.2 This was an important service rendered his country by that great lawyer and upright man, and it was grounded upon the principles I have mentioned. Civil officers are not nominated to be the governor's officers, they don't hold their courts nor commissions in his name, but in the King's, and therefore governors may come and go, as long as the same King reigns, and they continue the same officers. And in conformity to the same principles, upon the demise of the crown, the commissions must be renewed, because the charter requires they should be in the King's name. The words are, “in the name of us, our heirs and successors” and therefore upon the accession of an heir apparent, i.e. after 6 months from his accession, the commissions must be renewed, otherwise they cannot be held in his name, nor the requisition in the charter complied with. I said in 6 months, because the statute of 6 Ann, c. 7 ss. 8. not the statute of the present King's reign (as General Brattle supposes)3 has provided that no office, place or employment, civil or military, within the kingdoms of Great-Britain or Ireland, dominion of Wales, town of Berwick upon Tweed, Isles of Jersey, Guernsey, Alderney or Sarke, or any of her Majesty's plantations, shall become void, by reason of the demise or death of her Majesty, her heirs or successors, Kings or Queens of this realm; but every person, &c. shall continue in their respective offices, places and employments, for the space of six months next after such demise or death, unless sooner removed and discharged by the next in succession as aforesaid.
{ 306 }
But to return, our Judges are not in merely by nomination and appointment of the Governor and Council, because they are not bound to their duties, nor vested with their powers by the charter immediately nor by that nomination and appointment. They are not in, by the grant of the king merely or by their commissions, because their court is not erected, their powers are not derived, their duties are not imposed, and no estate is limitted by that grant. But their commission is nothing more than a particular kind of evidence, required by the province law, to shew their conformity to the charter in holding their court in the king's name, and to shew their nomination and appointment, or the designation of their persons to those offices by the governor and council.
It is the law of the province, which gives them all the powers and imposes upon them all the duties of the courts of king's bench, common pleas, and exchequer; but it does not limit to them any estate, in their offices. If it had said as it ought to have said, that they shall be commissionated quam diu se bene gesserint, they would have been so commissionated, and would have held estates for life in their offices.
Whence then can General Brattle claim for them an estate for life in their offices? No such estate is given them by the charter, by their nomination and appointment, by their commissions, nor by the law of the province.
I cannot agree with General Brattle, that “supposing a corrupt Governor and a corrupt Council, whether the words in the commission are so long as the Governor and Council please, or during good behaviour, will just come to the same thing.” Because in the one case a judge may be removed, suddenly and silently, in a Council of seven only; in the other, not without an hearing and tryal, and an opportunity to defend himself before a fuller board, knowing his accuser and the accusation: And this would be a restraint even to corruption itself, for in the most abandoned state of it, there is always some regard shewn to appearances.
It is no part of my plan, in this rencounter with the General, to make my Compliments to his Excellency Governor Hutchinson and the present Council: But I may be permitted, to say that the Governor differs in sentiment, from his Major General, about the power of the Governor and Council. In a note in the second volume of the history of the Massachusetts-Bay, we have these words, “The freedom and independency of the judges of England, is always enumerated among the excellencies of the constitution. The Massachusetts judges are far from independent. In Mr. Belcher's administration, they were { 307 } peculiarly dependent upon the Governor. Before and since they have been dependent upon the Assembly for their salary granted annually, which sometimes has been delayed, sometimes diminished, and rarely escapes being a subject of debate and altercation. The dependency in Mr. Belcher's time, is attributed to the pusillanimity of the Council, as no appointment can be made without their advice. And we are told too that the emoluments of a Massachusetts Counsellor are very small, and can be but a poor temptation to sacrifice virtue.”4
All this however has been found in many instances, by experience to be but a poor consolation to the people. Four gentleman, a majority of seven, have since Mr. Belcher's day, been found, under the influence of the same pusillanimity, and for the sake of those emoluments, small as they are, or some other emoluments, have been seen to sacrifice virtue. And it is highly probable men will be composed of the same clay, fifty years hence, as they were forty years ago, and therefore they ought not to be left exposed to the same temptations.
The next thing observable in the General's last publication, is this, “The parliament grants” (says he) “no salaries to the judges of England, the King settles the salaries and pays his judges, out of the civil list.” How is it possible this gentleman should make such mistakes? What is the King's civil list? Whence do the monies come to discharge it? Is it a mine of gold? A quarry of precious stones? The King pays the judges! Whence does he get the money? The Crown, without the gift of the people is as poor as any of the subjects. But to dwell no longer upon an error so palpable and gross, let us look into the book. The act of parliament of the 12 and 13 Wm. 3d, expressly enacts, that the judges salaries shall be ascertained and established, meaning no doubt at the sums, which had then usually been allowed them. And another act of parliament was made in the 32d year of George the second, c. 35. augmenting the salaries of the puisne judges five hundred pounds each, and granting and appropriating certain stamp duties to the payment of it—With what colour of truth then can the General say that parliament grants no salaries, but that the King settles the salaries?
Another thing that follows is more remarkable still. “The act of parliament” (says the General, meaning the late act impowering the Crown to appropriate monies, for the administration of justice, in such colonies, where it shall be most needed) “was made for no other reason than this, that the King might not pay them, (i.e. the judges) out of the civil list, but out of another fund, the revenue.” The General seems to have in his mind a notion that the King's civil { 308 } list is, a magazine of gold and silver, and the Crown a spot where diamonds grow. But I repeat it, the Crown has no riches but from the gifts of the people.
The civil list means an enumeration of the King's civil officers and servants, and the sums usually allowed them as salaries, &c. But the money to discharge these sums is every farthing of it granted by parliament. And without the aid of parliament, the Crown could not pay a porter.
Near the beginning of every reign the civil list revenue is granted by parliament. But are the Massachusetts Judges in the King's civil list? No more than the Massachusetts major-general is. If a minister of state, had taken money from the civil list revenue to pay our Judges, would it not have been a misapplication of the public money? Would it not have been peculation? And in virtuous times, would not that minister have been compelled to refund it out of his own pocket? It is true, a minister, who handles the public money, may apply it to purposes for which it was never intended nor appropriated. He may purchase votes and elections with it, and so he may rob the treasury chests of their guineas, and he has as good a right to do one as the other, and to do either, as to apply monies appropriated to the king's civil list, to the payment of salaries to the Massachusetts Judges.
Without the late act of parliament therefore, as the King could not pay our Judges out of the civil list, because the King can do no wrong, he could not pay them at all, unless he had given them presents out of his privy purse. The act must therefore have been made to enable the King to pay them; with what views of policy, I leave to be conjectured by others.
I am very nearly of a mind with the general, that a lawyer who holds the Judges offices here to be during good behaviour, must do it, upon his principles, because I can see none much more solid to ground such an opinion upon. But I believe his principles appear by this time, not to be infallible.
The General solemnly declares, that Mr. Reed, held this opinion, and upon, his principles. Mr. Reed's opinion deserves great veneration, but not implicit faith; and indeed if it was certain that he held it, what resistance could it make against the whole united torrents of law, records and history? However, we see, by the report, the general was pleased to give the public of Lord Holt's words, that it is possible for him to mistake the words and opinions of a sage; and therefore it is possible he may have mistaken Mr. Reed's words as well as his lordships.
{ 309 }
I believe the public is weary of my speculations, and the subject of them. I have bestowed more labour upon General Brattle's harangue in town-meeting, and his writings in the news-paper, than was necessary to shew their Imperfection: I have now done with both—and subscribe myself, your's, General Brattle's, and the Public's well-wisher and very humble Servant,
[signed] JOHN ADAMS
1. Isaac Addington (1645–1715) was appointed “Our first and present Secretary” of Massachusetts Bay “during Our Pleasure” in the charter granted to the province in 1691 (Thorpe, Federal and State Constitutions , 3:1878). For a sketch of Addington, see Hutchinson, Massachusetts Bay, ed. Mayo, 1:324, note).
2. Thomas Hutchinson, The History of the Province of Massachusets-Bay . . . , Boston, 1767. The Catalogue of JA 's Library lists this first edition.
3. No. III, note 8, above.
4. Hutchinson, Massachusets-Bay, 2; 376. The passage is paraphrased.