[Monday, February 15, 1773
[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,
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.
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
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.”
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
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?
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
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
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•
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.”