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Browsing: Papers of John Adams, Volume 1


Docno: ADMS-06-01-02-0089

Author: Adams, John
Recipient: Whipple, William
Date: 1772-01-27

To William Whipple

Boston, 27 January 1772. Printed: Letters by Washington . . . and Others ... to John Langdon, Philadelphia, 1880, p. 12. JA's reply to Whipple's letter of 16 Jan. on cases involving himself and “Mr. Cutt.” For this litigation, see JA, Legal Papers, 2:104 note.
Printed (Letters by Washington . . . and Others ... to John Langdon, Philadelphia, 1880, p. 12).

Docno: ADMS-06-01-02-0090

Author: Adams, John
Date: 1772-02-09

Draft of a Newspaper Communication

9 February 1772. Printed: JA, Diary and Autobiography, 2:53–54

Docno: ADMS-06-01-02-0091

Author: Adams, John
Date: 1772-02-09

The Brace of Adamses

9 February 1772. Printed: JA, Diary and Autobiography, 2:54–56.

Docno: ADMS-06-01-02-0092

Author: Whipple, William
Recipient: Adams, John
Date: 1772-02-13

From William Whipple

Portsmouth, 13 February 1772. RC (Adams Papers); addressed: “To John Adams Esqr. at Boston favoured P Mr. Cutts”; endorsed. Whipple gives directions for litigation in the admiralty cases involving himself and Cutt. See entry for 27 Jan., above.

Docno: ADMS-06-01-02-0093

Author: Adams, John
DateRange: 1772-03-02 - 1772-05-18

Notes for an Oration at Braintree Concerning Government

Braintree, 2 March – 18 May 1772.. Printed: JA, Diary and Autobiography, 2:56–61.

Docno: ADMS-06-01-02-0094

Author: Freeman, Nathaniel
Recipient: Adams, John
Date: 1772-10-04

From Nathaniel Freeman

Sandwich, 4 October 1772. RC (MiU-C); addressed to John Adams in Boston; endorsed. Freeman notifies Adams that he is appealing a case to the Superior Court and urges Adams, who has been his attorney, not to “take up against me.” Adams' one-sentence reply that he is “ready to engage for him” is on the verso.
RC (MiU-C).

Docno: ADMS-06-01-02-0095

Author: Adams, John
Recipient: Macaulay, Catharine Sawbridge
Date: 1772-12-31

To Catharine Macaulay

Boston31 December 1772. Printed: JA, Diary and Autobiography, 2:75–76.

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 FeudalisJA 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.

Docno: ADMS-06-01-02-0097-0001

Editorial Note

While John Adams was concluding his long series of replies to William Brattle on the independence of the judges, he was engaged with others in a more direct effort to assert in the winter of 1773 the rights of the province. He played a vital part in framing the response of the House of Representatives to two messages sent down to the General Court by Gov. Thomas Hutchinson, and his efforts show the development of his political thought.
The exchanges between Hutchinson and the two legislative houses { 310 } between 6 January and 6 March arose from the same basic issue which had drawn Adams into debate with Brattle: the extent of Parliament's authority. The Votes and Proceedings of the Boston town meeting of 20 November 1772, occasioned by the application of royal revenues to the payment of judges' salaries, had so stirred the Massachusetts towns, among which it had been circulated, that the Governor decided to clear the air with a public examination of the underlying question of Parliament's authority in the colonies. (For a discussion of Hutchinson's reaction to the reception accorded Boston's protest, see Bailyn, Thomas Hutchinson, p. 206–207; Brown, Revolutionary Politics, p. 85–86.) As Hutchinson saw it, Bostonians had based their protest on two false assumptions—that charter rights protected them from the exactions of Parliament, and that there was a deliberate conspiracy against the rights of colonists. Unchallenged, these assumptions must lead to a “total separation from the kingdom, by their independency upon Parliament, the only bond which could keep them united to it” (Massachusetts Bay, ed. Mayo, 3:266). And through a circular letter, Massachusetts would spread these principles to other colonies (Hutchinson to Dartmouth, 7 Jan. 1773, Docs. of Amer. Rev., 6:44).
Recognizing the dangers of public debate, but confident of his own ability to show the fallacies of the whig position, and lacking any instruction from the home government, Hutchinson felt he had to go ahead. To a specially called joint session of the General Court, he explained his position on the principles of the constitution under which the colony must operate. (Hutchinson's message of 6 Jan. is printed in Mass., House Jour., 1772–1773, p. 138–143.) He welcomed, he said, a response to his argument and promised to consider objections. Never had a Massachusetts governor so courted debate on basic principles with the General Court.
Nothing Hutchinson said was new or original; he had explained his views on earlier occasions. The burden of his message was submission to the supreme authority of Parliament; that clause in the charter allowing the provincial legislature to make “such Laws as are not repugnant to the Laws of England” meant that Parliament had a reserve power to bind the colonies by its laws. Despite the charter's guaranteeing to colonists the rights of Englishmen, these rights could not be identical with those enjoyed by Englishmen still at home. Citizens of Massachusetts by their location had relinquished the right of electing members to Parliament, for example. A natural right of consent to Parliament's acts was no justification for denying that body's right to govern them and insisting that the General Court was the only legitimate lawmaking body. Nor could there be two independent legislative bodies in a single state. The only alternative to acceptance of parliamentary authority was complete independence, which would lay the province open to the assaults of dangerous enemies (Bailyn, Thomas Hutchinson, p. 207, 209).
The failure of the House to act immediately in reply to his speech may have encouraged Hutchinson in the belief that many members were { 311 } amazed to learn the true nature of the constitution and that he had won converts to his position (Hutchinson to John Pownall, 7 Jan. 1773, Docs. of Amer. Rev., 6:45). He was to be disabused of these notions. The story repeated by Hutchinson that the House in consternation sent messages southward seeking the aid of Daniel Dulany and John Dickinson (Bailyn, Thomas Hutchinson, p. 208) probably has no foundation. The committee named to draft a reply, made up of Thomas Cushing, Samuel Adams, John Hancock, Joseph Hawley, and five others, was ready with its report within fourteen days, hardly time enough for a messenger to go and return and still permit the committee to get its work done. The committee reported on 22 January, the report being debated that day and on 26 January, when it was unanimously accepted (Mass., House Jour., 1772–1773, p. 146, 172, 177). The reply of the House, responding directly to points made by the Governor, was impressive for its cogency and command of historical and legal sources. Ironically, the Governor's own history of Massachusetts was quoted to refute his claims.
Although John Adams was not a member of the House at this time, he was consulted and left two substantial accounts of the role he played (Diary and Autobiography, 3:304–305; to William Tudor, 8 March 1817, printed in JA, Works, 2:311–313). In both, Adams attributed the committee's turning to him to the influence of Joseph Hawley. Samuel Adams had prepared a draft for the committee, probably with the cooperation of Dr. Joseph Warren and perhaps with the assistance of Benjamin Church, neither of them members of the committee. Dissatisfied with the draft, Hawley, without whose “countenance, concurrence, and support” no “question upon legal and constitutional subjects” could pass the House, insisted that John Adams “must be invited and must be present at every Meeting” of the committee (JA, Works, 2:311; JA, Diary and Autobiography, 3:305).
Despite the “Jealousy and Envy” Adams detected in committee members who resented “this superiour Attachment of Major Hawley to me” (Diary and Autobiography, 3:305), an effective working relationship developed. Although Adams presented a franker version of the tale in his Autobiography than in his tactful letter to Tudor, the two accounts agree on his displeasure with the more “popular” portions of the report prepared by Samuel Adams. Instead, Adams wished to substitute “legal and constitutional Reasonings” more in tune with the Governor's own message. “The gentlemen,” he told Tudor, “very civilly requested me to undertake the task, and I agreed to attempt it.” He described his method thus: “I drew a line over the most eloquent parts of the oration they had before them, and introduced those legal and historical authorities which appear on the record” (Works, 2:313). The resulting document, adopted by the House, appears as No. I, below.
Disappointed in the House reply and perhaps wishing he had not begun a debate, Hutchinson thought at first to delay his rebuttal until the close of the legislative session (Hutchinson to Dartmouth, 1 Feb. 1773, Docs. { 312 } of Amer. Rev., 6:80). But he changed his mind. When his counter-reply came at last on 16 February, it centered attention on the House claim that the colonies as originally foreign territory, acquired but not a part of the realm of England, were outside Parliamentary jurisdiction. Hutchinson's answer was that the realm and other dependencies formed “one intire Dominion.” Massachusetts was a “feudatory of the imperial Crown of England.” No sovereign in his personal capacity could alienate territory to create new and separate governments. Hutchinson held that no responsible authority supported the proposition that only “the ancient territorial Realm” was “subject to the Supreme Authority of England.” Aside from this central point, the Governor complained with some justice that his History had been misused: he cited passages demonstrating that General Courts in the past had specifically acknowledged Parliament's authority (Mass., House Jour., 1772–1773, p. 229–241).
One further reply from the House concluded its side of the debate. On 18 February a committee consisting of Thomas Cushing, Samuel Adams, John Hancock, and six others was named to draft a reply to the Governor's second message. Although Hawley was not on this new committee, Samuel Adams continued to seek the aid of John Adams. The resulting report (No. III, below) was submitted to the House on 2 March and adopted that same day (Mass., House Jour., 1772–1773, p. 245, 268).
The failure of historians to note John Adams' contributions to this second House reply must be attributed to Adams himself, for in his recollections of the incident, he invariably referred to “[a]n Answer” to a “Speech” by Hutchinson. And his reference to Joseph Hawley's part in the matter would lead scholars to believe that Adams was involved only in the reply to the first of Hutchinson's messages, since Hawley was not on the committee named to answer the Governor's second message. But, as Samuel Adams revealed in his note to John, 22? February (No. II, below), the latter had been asked to “commit” his “Thoughts to writing” even before Hutchinson's speech of 16 February appeared in print in the Boston Gazette. Charles Francis Adams recognized more than a century ago that the “casual note of Samuel Adams” showed clearly that John Adams was to participate in drafting the second reply of the House, “at least in that particular upon which the governor had pounced with such assurance of victory”—the House contention respecting realm and dominion. Interpreting Samuel Adams' request as an admission of “the little confidence he had in his own resources to meet the issue he had been the agent to present,” C. F. Adams concluded: “This makes it probable that the reply which closed the controversy is more exclusively the work of John Adams, in manner as well as matter, than the earlier paper” (JA, Works, 1:126).
There is, however, better evidence yet for attributing to John Adams important portions of the second reply to Hutchinson. In the letter to William Tudor of 8 March 1817, John Adams concluded his recollection of his collaboration with the House committee with these sarcastic remarks: { 313 }
“Mr. Hutchinson really made a meagre figure in that dispute. He had waded beyond his depth. He had wholly misunderstood the legal doctrine of allegiance.” To demonstrate the Governor's limitations, Adams continued with this anecdote: “I had quoted largely from a law authority which no man in Massachusetts, at that time, had ever read. Hutchinson and all his law counsels were in fault; they could catch no scent. They dared not deny it, lest the book should be produced to their confusion. It was humorous enough to see how Hutchinson wriggled to evade it. He found nothing better to say than that it was 'the artificial reasoning of Lord Coke.' The book was Moore's Reports. The owner of it, for, alas! master, it was borrowed, was a buyer, but not a reader, of books. It had been Mr. Gridley's” (JA, Works, 2:313).
After more than four decades, Adams recalled with relish Hutchinson's scornful dismissal of the “artificial Reasoning of Lord Chief Justice Coke.” But the Governor made this remark, not in his reply to the first House message of 26 January, but in that to the second House reply. In his final rebuttal, delivered at the close of the General Court session on 6 March, Hutchinson employed the phrase with respect to the passage which argued that “Allegiance is due to the natural Person and not to the Body Politick of the King” (Mass., House Jour., 1772–1773, p. 297). And, to confirm Adams' recollection, this was the only section in either House message which drew upon Cases Collect & Report per Sir Fra. Moore. (For passages taken from Moore, see No. III, notes 5, 7, 9, below. Despite the French title, some of the cases were reported in English.)
The use of Moore is not the only contribution which can be attributed to John Adams. Much of the section introducing the material on realm and allegiance is drawn from his “A Dissertation on the Canon and the Feudal Law” (see 21 May–Oct. 1765May – 21 October 1765, above). Although it is impossible to tell whether John Adams himself rewrote these paragraphs from his earlier essays or whether Samuel “borrowed” heavily from the “Dissertation” for sections which he contributed to the House statement, it is clear that John Adams must have at least reviewed the passages closely. The House reply contains additional material from the historian William Robertson, which did not appear in the “Dissertation,” but which came to John Adams' attention after its publication in 1765, and the pertinence of which he noted in the margins of his own copy of that work's London edition (see No. III, note 2, below).
Portions of the House reply in March which can be identified as Adams' work mark an important development in his political thought. Here the youthful author of the “Dissertation” begins his transformation into the author of the Novanglus letters. His use of Moore's report on the post nati case, the philosophical heart of the House reply, anticipates his fuller presentation of a theory of realm and dominion, colonial rights and parliamentary limitations, in Novanglus nearly two years later. In Novanglus, the reader finds the same arguments now polished and refined, but buttressed with historical precedents which Adams apparently { 314 } found too late to include in the 1773 House document. (See 23 Jan.–April 1775, Novanglus letter No. IX, in JA, Papers, vol. 2.)
Failure to credit Adams with authorship of the central portions of the House reply of 2 March is all the more unfortunate as the relation between that message and his later writings has long been recognized. In 1923 Charles McIlwain wrote admiringly of the House message as “one of the most remarkable in the whole series of American 'revolutionary' state papers”; and he recognized that that message set forth the “historical and constitutional basis of article four of the Declaration [of Rights and Grievances]” drafted in the Continental Congress in October 1774 (The American Revolution: A Constitutional Interpretation, N.Y., 1923, p. 122). He was aware of Adams' authorship of that article in the Declaration as well as of the Novanglus letters, which McIlwain termed, “the most elaborate exposition extant of the American interpretation of the constitutional problem of the empire” (same, p. 139).
In 1929, McIlwain expanded on these themes. Writing of the “Massachusetts doctrine,” that is, “the principle that allegiance to the English King involves no obedience to the English parliament,” he pointed out that that “doctrine” was clearly expressed in the House reply of March 1773, was incorporated in Article 4 of the Declaration of Rights and Grievances, and finally affirmed in Novanglus. The last, McIlwain characterized as “the most powerful and comprehensive statement ever made of the doctrine of the Continental Congress” (“The Transfer of the Charter to New England, and its Significance in American Constitutional History,” MHS, Procs., 63 [Dec. 1929]:61, 62).
In neither discussion did McIlwain realize that the Declaration of 1774 and the Novanglus letters were related to the March 1773 message by more than the accident of time and colony of origin. The developing strain in Adams' thought, moving logically from his 1765 “Dissertation,” which acknowledged the modified feudalism under which Puritans held their land, through Novanglus, was the realization that the legal tradition which he revered could justify an alternative to the forms of royal government imposed on his native province and believed by Hutchinson to be the only forms possible. In 1773, Adams did not submit a blueprint for revolution or insurrection; but he did supply the House with historically and legally respectable arguments for change.
Hutchinson had lost his gamble that his logic might end political dissension. The members of the General Court recognized the opportunity the Governor had given them for publicizing views fundamentally opposed to his. On the morning of 6 March, even before Hutchinson delivered his final speech to the General Court, the House voted to have the documents relating to the debate put into a pamphlet for distribution to each House member and to every town clerk in Massachusetts (Mass., House Jour., 1773–1774, p. 290). The pamphlet appeared as The Speeches of His Excellency Governor Hutchinson, to the General Assembly of the Massachusetts-Bay. At a Session begun and held on the 6th of January, 1773. { 315 } With the Answers of His Majesty's Council and the House of Representatives Respectively, Boston, 1773 (Evans, No. 12856).
Adams saw that Hutchinson's “Ruin and Destruction must spring out of” the controversy he had invited and that the Governor's disgrace must come “either from the Ministry and Parliament on one Hand, or from his Countrymen, on the other” (Diary and Autobiography, 2:77). In the end, Hutchinson could thank both sides for his “Ruin.” The ministry would doubt his ability to govern the unruly and contentious colonists of Massachusetts. And, within the province, he had given men like John Adams a chance to take their thinking one step further toward espousal of independence, although Hutchinson had expected to terrify them with its “Miseries” in order to bring them to their senses.

Docno: ADMS-06-01-02-0097-0002

Author: Adams, John
Author: Massachusetts House of Representatives
Recipient: Hutchinson, Thomas
Date: 1773-01-26

I. Reply of the House to Hutchinson's First Message

[salute] May it please your Excellency,

Your Excellency's Speech to the General Assembly at the Opening of this Session, has been read with great Attention in this House.
We fully agree with your Excellency, that our own Happiness as well as his Majesty's Service, very much depends upon Peace and Order; and we shall at all Times take such Measures as are consistent with our Constitution and the Rights of the People to promote and maintain them. That the Government at present is in a very disturbed State is apparent! But we cannot ascribe it to the People's having adopted unconstitutional Principles, which seems to be the Cause assigned for it by your Excellency. It appears to us to have been occasioned rather, by the British House of Commons assuming and exercising Power inconsistent with the Freedom of the Constitution to give and grant the Property of the Colonists, and appropriate the same without their Consent.
It is needless for us to enquire what were the Principles that induced the Councils of the Nation to so new and unprecedented a Measure. But when the Parliament by an Act of their own expressly declared, that the King, Lords and Commons of the Nation “have, had, and of Right ought to have full Power and Authority to make Laws and Statutes of sufficient Force and Validity to bind the Colonies and People of America, Subjects of the Crown of Great-Britain, in all Cases whatever,”1 and in Consequence hereof another Revenue Act was made, the Minds of the People were filled with Anxiety, and they were justly alarmed with Apprehensions of the total Extinction of their Liberties.
{ 316 }
The Result of the free Enquiries of many Persons into the Right of the Parliament to exercise such a Power over the Colonies, seems in your Excellency's Opinion to be the Cause of what you are pleased to call the present “disturbed State of the Government;” upon which you “may not any longer consistent with your Duty to the King, and your Regard to the Interest of the Province, delay communicating your Sentiments.” But that the Principles adopted in Consequence hereof, are unconstitutional, is a Subject of Enquiry. We know of no such Disorders arising therefrom as are mentioned by your Excellency. If Grand Jurors have not on their Oaths found such Offences, as your Excellency with the Advice of his Majesty's Council have ordered to be prosecuted, it is to be presumed they have followed the Dictates of good Conscience. They are the constitutional Judges of these Matters, and it is not to be supposed, that moved from corrupt Principles, they have suffered Offenders to escape a Prosecution, and thus supported and encouraged them to go on offending. If any Part of the Authority, shall in an unconstitutional Manner, interpose in any Matter, it will be no wonder if it be brought into Contempt; to the lessening or confounding of that Subordination which is necessary to a well regulated State. Your Excellency's Representation that the Bands of Government are weakened, we humbly conceive to be without good Grounds; though we must own the heavy Burthens unconstitutionally brought upon the People have been and still are universally and very justly complained of as a Grievance.
You are pleased to say, that “when our Predecessors first took Possession of this Plantation or Colony, under a Grant and Charter from the Crown of England, it was their Sense and it was the Sense of the Kingdom, that they were to remain subject to the Supreme Authority of Parliament;” whereby we understand your Excellency to mean in the Sense of the Declaratory Act of Parliament aforementioned, in all Cases whatever. And indeed it is difficult, if possible, to draw a Line of Distinction between the universal Authority of Parliament over the Colonies and no Authority at all. It is therefore necessary for us to enquire how it appears, for your Excellency has not shown it to us, that when or at the Time that our Predecessors took Possession of this Plantation or Colony, under a Grant and Charter from the Crown of England, it was their Sense, and the Sense of the Kingdom, that they were to remain subject to the Supreme Authority of Parliament. In making this Enquiry, we shall, according to your Excellency's Recommendation, treat the Subject with Calmness and Candor, and also with a due Regard to Truth.
{ 317 }
Previous to a direct Consideration of the Charter granted to this Province or Colony, and the better to elucidate the true Sense and Meaning of it, we would take a View of the State of the English North American Continent at the Time when and after Possession was first taken of any Part of it, by the Europeans. It was then possessed by Heathen and Barbarous People, who had nevertheless all that Right to the Soil and Sovereignty in and over the Lands they possessed, which God had originally given to Man. Whether their being Heathen, inferred any Right or Authority to Christian Princes, a Right which had long been assumed by the Pope, to dispose of their Lands to others, we will leave to your Excellency or any one of Understanding and impartial Judgment to consider. It is certain they had in no other Sense forfeited them to any Power in Europe. Should the Doctrine be admitted that the Discovery of Lands owned and possessed by Pagan People, gives to any Christian Prince a Right and Title to the Dominion and Property, still it is invested in the Crown alone. It was an Acquisition of Foreign Territory, not annexed to the Realm of England, and therefore at the absolute Disposal of the Crown. For we take it to be a settled Point, that the King has a constitutional Prerogative to dispose of and alienate any Part of his Territories not annexed to the Realm. In the Exercise of this Prerogative, Queen Elizabeth granted the first American Charter; and claiming a Right by Virtue of Discovery, then supposed to be valid, to the Lands which are now possessed by the Colony of Virginia, she conveyed to Sir Walter Rawleigh, the Property, Dominion and Sovereignty thereof, to be held of the Crown by Homage, and a certain Render, without any Reservation to herself of any Share in the Legislative and Executive Authority. After the Attainder of Sir Walter, King James the First created two Virginia Companies, to be governed each by Laws transmitted to them by his Majesty and not by the Parliament, with Power to establish and cause to be made a Coin to pass current among them; and vested with all Liberties, Franchises and Immunities within any of his other Dominions, to all Intents and Purposes, as if they had been abiding, and born within the Realm. A Declaration similar to this is contained in the first Charter of this Colony, and in those of other American Colonies, which shows that the Colonies were not intended or considered to be within the Realm of England, though within the Allegiance of the English Crown. After this, another Charter was granted by the same King James, to the Treasurer and Company of Virginia, vesting them with full Power and Authority, to make, ordain and establish all Manner of Orders, Laws, Directions, Instructions, { 318 } Forms and Ceremonies of Government, and Magistracy, fit and necessary, and the same to abrogate, &c. without any Reservation for securing their Subjection to the Parliament and future Laws of England. A third Charter was afterwards granted by the same King to the Treasurer and Company of Virginia, vesting them with Power and Authority to make Laws, with an Addition of this Clause, “so always that the same be not contrary to the Laws and Statutes of this our Realm of England.” The same Clause was afterwards copied into the Charter of this and other Colonies, with certain Variations, such as that these Laws should be “consonant to Reason,” “not repugnant to the Laws of England,” “as nearly as conveniently may be to the Laws, Statutes and Rights of England,” &c. These Modes of Expression convey the same Meaning, and serve to show an Intention that the Laws of the Colonies should be as much as possible, conformant in the Spirit of them to the Principles and fundamental Laws of the English Constitution, its Rights and Statutes then in Being, and by no Means to bind the Colonies to a Subjection to the Supreme Authority of the English Parliament. And that this is the true Intention, we think it further evident from this Consideration, that no Acts of any Colony Legislative, are ever brought into Parliament for Inspection there, though the Laws made in some of them, like the Acts of the British Parliament are laid before the King for his Assent or Disallowance.
We have brought the first American Charters into View, and the State of the Country when they were granted, to show that the Right of disposing of the Lands was in the Opinion of those Times vested solely in the Crown—that the several Charters conveyed to the Grantees, who should settle upon the Territories therein granted, all the Powers necessary to constitute them free and distinct States—and that the fundamental Laws of the English Constitution should be the certain and established Rule of Legislation, to which the Laws to be made in the several Colonies were to be as nearly as conveniently might be, comformable or similar, which was the true Intent and Import of the Words, “not repugnant to the Laws of England,” “consonant to Reason,” and other variant Expressions in the different Charters. And we would add, that the King in some of the Charters reserves the Right to judge of the Consonance and Similarity of their Laws with the English Constitution to himself, and not to the Parliament; and in Consequence thereof to affirm, or within a limited Time, disallow them.
These Charters, as well as that afterwards granted to Lord Balti• { 319 } more, and other Charters, are repugnant to the Idea of Parliamentary Authority: And to suppose a Parliamentary Authority over the Colonies under such Charters would necessarily induce that Solecism in Politics Imperium in Imperio. And the King's repeatedly exercising the Prerogative of disposing of the American Territory by such Charters, together with the Silence of the Nation, thereupon, is an Evidence that it was an acknowledged Prerogative.
But further to show the Sense of the English Crown and Nation that the American Colonists and our Predecessors in particular, when they first took Possession of this Country by a Grant and Charter, from the Crown did not remain subject to the Supreme Authority of Parliament, we beg leave to observe; that when a Bill was offered by the two Houses of Parliament to King Charles the First, granting to the Subjects of England the free Liberty of Fishing on the Coast of America, he refused his Royal Assent, declaring as a Reason, that “the Colonies were without the Realm and Jurisdiction of Parliament.”
In like Manner, his Predecessor James the First, had before declared upon a similar Occasion, that “America was not annexed to the Realm, and it was not fitting that Parliament should make Laws for those Countries.”2 This Reason was, not secretly, but openly declared in Parliament. If then the Colonies were not annexed to the Realm, at the Time when their Charters were granted, they never could be afterwards, without their own special Consent, which has never since been had, or even asked. If they are not now annexed to the Realm, they are not a Part of the Kingdom, and consequently not subject to the Legislative Authority of the Kingdom. For no Country, by the Common Law was subject to the Laws or to the Parliament, but the Realm of England.3
We would, if your Excellency pleases, subjoin an Instance of Conduct in King Charles the Second, singular indeed, but important to our Purpose; who, in 1679, framed an Act for a permanent Revenue for the Support of Virginia, and sent it there by Lord Colpepper [Culpeper], the Governor of that Colony; which was afterwards passed into a Law, and “Enacted by the King's most excellent Majesty, by and with the Consent of the General Assembly of Virginia.4 If the King had judged that Colony to be a Part of the Realm, he would not, nor could he consistently with Magna Charta, have placed himself at the Head of, and joined with any Legislative Body in making a Law to Tax the People there, other than the Lords and Commons of England.
Having taken a View of the several Charters of the first Colony in America, if we look into the old Charter of this Colony, we shall find { 320 } it to be grounded on the same Principle: That the Right of disposing the Territory granted therein was vested in the Crown, as being that Christian Sovereign who first discovered it, when in the Possession of Heathen; and that it was considered as being not within the Realm, but only within the Fee and Seignory of the King. As therefore it was without the Realm of England, must not the King, if he had designed that the Parliament should have had any Authority over it, have made a special Reservation for that Purpose, which was not done.
Your Excellency says, it appears from the Charter itself, to have been the Sense of our Predecessors who first took Possession of this Plantation or Colony, that they were to remain subject to the Authority of Parliament. You have not been pleased to point out to us how this appears from the Charter, unless it be in the Observation you make on the above-mentioned Clause, viz. “That a favourable Construction has been put upon this Clause, when it has been allowed to intend such Laws of England only as are expressly made to respect us,” which you say “is by Charter a Reserve of Power and Authority to Parliament to bind us by such Laws at least as are made expressly to refer to us, and consequently is a Limitation of the Power given to the General Court.” But we would still recur to the Charter itself, and ask your Excellency, How this appears from thence to have been the Sense of our Predecessors? Is any Reservation of Power and Authority to Parliament thus to bind us, expressed or implied in the Charter? It is evident, that King Charles the first, the very Prince who granted it, as well as his Predecessor, had no such Idea of the supreme Authority of Parliament over the Colony, from their Declarations before recited. Your Excellency will then allow us further to ask, by what Authority in Reason or Equity the Parliament can enforce a Construction so unfavourable to us. Quod ab anitio injustum est, nullum potest habere juris effectum, said Grotius. Which with Submission to your Excellency may be rendered thus, Whatever is originally in its Nature wrong, can never be satisfied or made right by Reputation and Use.
In solemn Agreements subsequent Restrictions ought never to be allowed. The celebrated Author whom your Excellency has quoted, tells us that “neither the one or the other of the interested or contracting Powers hath a Right to interpret at Pleasure.”5 This we mention to show, even upon a Supposition that the Parliament had been a Party to the Contract, the Invalidity of any of its subsequent Acts, to explain any Clause in the Charter; more especially to restrict or make void any Clause granted therein to the General Court. An Agreement ought to be interpreted “in such a Manner as that it may { 321 } have its Effect:” But if your Excellency's Interpretation of this Clause is just, “that it is a Reserve of Power and Authority to Parliament to bind us by such Laws as are made expressly to refer to us,” it is not only “a Limitation of the Power given to the General Court” to Legislate, but it may whenever the Parliament shall think fit, render it of no Effect; for it puts it in the Power of Parliament to bind us by as many Laws as they please, and even to restrain us from making any Laws at all. If your Excellency's Assertions in this and the next succeeding Part of your Speech were well grounded, the Conclusion would be undeniable, that the Charter even in this Clause, “does not confer or reserve any Liberties” worth enjoying “but what would have been enjoyed without it;” saving that within any of his Majesty's Dominions we are to be considered barely as not Aliens. You are pleased to say, it cannot “be contended that by the Liberties of free and natural Subjects” (which are expressly granted in the Charter to all Intents, Purposes and Constructions whatever) “is to be understood an Exemption from Acts of Parliament because not represented there; seeing it is provided by the same Charter that such Acts shall be in Force.” If, says an eminent Lawyer, “the King grants to the Town of D. the same Liberties which London has, this shall be intended the like Liberties.” A Grant of the Liberties of free and natural Subjects is equivalent to a Grant of the same Liberties. And the King in the first Charter to this Colony expressly grants that it “shall be construed, reputed and adjudged in all Cases most favourably on the Behalf and for the Benefit and Behoof of the said Governor and Company and their Successors—any Matter, Cause or Thing whatsoever to the contrary notwithstanding.” It is one of the Liberties of free and natural Subjects, born and abiding within the Realm, to be governed as your Excellency observes, “by Laws made by Persons in whose Elections they from Time to Time have a Voice.” This is an essential Right. For nothing is more evident, than that any People who are subject to the unlimited Power of another, must be in a State of abject Slavery. It was easily and plainly foreseen that the Right of Representation in the English Parliament could not be exercised by the People of this Colony. It would be impracticable, if consistent with the English Constitution. And for this Reason, that this Colony might have and enjoy all the Liberties and Immunities of free and natural Subjects within the Realm as stipulated in the Charter it was necessary, and a Legislative was accordingly constituted within the Colony; one Branch of which consists of Representatives chosen by the People, to make all Laws, Statutes, Ordinances, &c. for the well-ordering and { 322 } governing the same, not repugnant to the Laws of England, or, as nearly as conveniently might be, agreeable to the fundamental Laws of the English Constitution. We are therefore still at a Loss to conceive where your Excellency finds it “provided in the same Charter, that such Acts,” viz. Acts of Parliament made expressly to refer to us, “shall be in Force” in this Province. There is nothing to this Purpose expressed in the Charter, or in our Opinion even implied in it. And surely it would be very absurd, that a Charter, which is evidently formed upon a Supposition and Intention, that a Colony is and should be considered as not within the Realm; and declared by the very Prince who granted it, to be not within the Jurisdiction of Parliament, should yet provide, that the Laws which the same Parliament should make expressly to refer to that Colony, should be in Force therein. Your Excellency is pleased to ask, “Does it follow that the Government by their (our Ancestors) Removal from one Part of the Dominions to another, loses its Authority over that Part to which they remove; And that they are freed from the Subjection they were under before?” We answer, if that Part of the King's Dominions to which they removed was not then a Part of the Realm, and was never annexed to it, the Parliament lost no Authority over it, having never had such Authority; and the Emigrants were consequently freed from the Subjection they were under before their Removal: The Power and Authority of Parliament being constitutionally confined within the Limits of the Realm and the Nation collectively, of which alone it is the representing and legislative Assembly. Your Excellency further asks, “Will it not rather be said, that by this their voluntary Removal, they have relinquished for a Time at least, one of the Rights of an English Subject, which they might if they pleased have continued to enjoy, and may again enjoy, whenever they return to the Place where it can be exercised?” To which we answer; They never did relinquish the Right to be governed by Laws made by Persons in whose Election they had a Voice. The King stipulated with them that they should have and enjoy all the Liberties of free and natural Subjects born within the Realm, to all Intents, Purposes and Constructions whatsoever; that is, that they should be as free as those who were to abide within the Realm: Consequently he stipulated with them that they should enjoy and exercise this most essential Right, which discriminates Freemen from Vassals, uninterruptedly in its full Sense and Meaning; and they did and ought still to exercise it, without the Necessity of returning, for the Sake of exercising it, to the Nation or State of England.
{ 323 }
We cannot help observing, that your Excellency's Manner of Reasoning on this Point, seems to us to render the most valuable Clauses in our Charter unintelligible: As if Persons going from the Realm of England to inhabit in America should hold and exercise there a certain Right of English Subjects; but in order to exercise it in such Manner as to be of any Benefit to them, they must not inhabit there, but return to the Place where alone it can be exercised. By such Construction, the Words of the Charter can have no Sense or Meaning. We forbear remarking upon the Absurdity of a Grant to Persons born within the Realm, of the same Liberties which would have belonged to them if they had been born within the Realm.
Your Excellency is disposed to compare this Government to the Variety of Corporations, formed within the Kingdom, with Power to make and execute By-Laws, &c. And because they remain subject to the Supreme Authority of Parliament, to infer that this Colony is also subject to the same Authority. This Reasoning appears to us not just. The Members of those Corporations are Resi[d]ant within the Kingdom; and Residence subjects them to the Authority of Parliament, in which they are also represented: Whereas the People of this Colony are not Resident within the Realm. The Charter was granted with the express Purpose to induce them to reside without the Realm; consequently they are not represented in Parliament there. But we would ask your Excellency; Are any of the Corporations formed within the Kingdom, vested with the Power of erecting other subordinate Corporations? Of enacting and determining what Crimes shall be Capital? And constituting Courts of Common Law with all their Officers, for the hearing, trying and punishing capital Offenders with Death? These and many other Powers vested in this Government, plainly show that it is to be considered as a Corporation in no other Light, than as every State is a Corporation. Besides, Appeals from the Courts of Law here, are not brought before the House of Lords; which shows that the Peers of the Realm are not the Peers of America: But all such Appeals are brought before the King in Council, which is a further Evidence that we are not within the Realm.
We conceive enough has been said to convince your Excellency, that “when our Predecessors first took Possession of this Plantation or Colony by a Grant and Charter from the Crown of England, it was not and never had been the Sense of the Kingdom, that they were to remain subject to the Supreme Authority of Parliament. We will now with your Excellency's Leave, enquire what was the Sense of our Ancestors of this very important Matter.
{ 324 }
And as your Excellency has been pleased to tell us, you have not discovered that the Supreme Authority of Parliament has been called in Question even by private and particular Persons, until within seven or eight Years past; except about the Time of the Anarchy and Confusion in England which preceeded the Restoration of King Charles the Second; we beg leave to remind your Excellency of some Parts of your own History of Massachusetts-Bay.6 Therein we are informed of the Sentiments of “Persons of Influence” after the Restoration, from which the Historian tells us, some Parts of their Conduct, that is of the General Assembly, “may be pretty well accounted for.” By the History it appears to have been the Opinion of those Persons of Influence, “that the Subjects of any Prince or State had a natural Right to Remove to any other State or to another Quarter of the World unless the State was weakened or exposed by such Remove; and even in that Case, if they were deprived of the Right of all Mankind, Liberty of Conscience, it would justify a Separation, and upon their Removal their Subjection determined and ceased.” That “the Country to which they had removed, was claimed and possessed by independent Princes, whose Right to the Lordship and Sovereignty thereof had been acknowledged by the Kings of England,” an Instance of which is quoted in the Margin;7 “That they themselves had actually purchased for valuable Consideration, not only the Soil but the Dominion, the Lordship and Sovereignty of those Princes;” without which Purchase, “in the Sight of God and Men, they had no Right or Title to what they possessed.” That they had received a Charter of Incorporation from the King, from whence arose a new Kind of Subjection, namely, “a voluntary, civil Subjection;” and by this Compact “they were to be governed by Laws made by themselves.” Thus it appears to have been the Sentiments of private Persons, though Persons, by whose Sentiments the public Conduct was influenced, that their Removal was a justifiable Separation from the Mother State, upon which their Subjection to that State determined and ceased. The Supreme Authority of Parliament, if it had then ever been asserted, must surely have been called in Question, by Men who had advanced such Principles as these.
The first Act of Parliament made expressly to refer to the Colonies, was after the Restoration. In the Reign of King Charles the Second, several such Acts passed. And the same History informs us there was a Difficulty in conforming to them; and the Reason of this Difficulty is explained in a Letter of the General Assembly to their Agent, quoted in the following Words, “They apprehended them to be an Invasion { 325 } of the Rights, Liberties and Properties of the Subjects of his Majesty in the Colony, they not being represented in Parliament, and according to the usual Sayings of the Learned in the Law, the Laws of England were bounded within the four Seas, and did not reach America: However as his Majesty had signified his Pleasure that those Acts should be observed in the Massachusetts, they had made Provision by a Law of the Colony, that they should be strictly attended.” Which Provision by a Law of their own would have been superfluous, if they had admitted the supreme Authority of Parliament. In short, by the same History it appears that those Acts of Parliament as such were disregarded; and the following Reason is given for it; “It seems to have been a general Opinion that Acts of Parliament had no other Force, than what they derived from Acts made by the General Court to establish and confirm them.”8
But still further to show the Sense of our Ancestors respecting this Matter, we beg Leave to recite some Parts of a Narrative presented to the Lords of Privy Council by Edward Randolph, in the Year 1676, which we find in your Excellency's Collection of Papers lately published.9 Therein it is declared to be the Sense of the Colony, “that no Law is in Force or Esteem there, but such as are made by the General Court; and therefore it is accounted a Breach of their Privileges, and a Betraying of the Liberties of their Commonwealth, to urge the Observation of the Laws of England.” And further, “That no Oath shall be urged or required to be taken by any Person, but such Oath as the General Court hath considered, allowed and required.” And further, “there is no Notice taken of the Act of Navigation, Plantation or any other Laws made in England for the Regulation of Trade.” “That the Government would make the World believe they are a free State and do act in all Matters accordingly.” Again, “These Magistrates ever reserve to themselves a Power to alter, evade and disannul any Law or Command, not agreeing with their Humour or the absolute Authority of their Government, acknowledging no Superior.” And further, “He (the Governor) freely declared to me, that the Laws made by your Majesty and your Parliament, obligeth them in nothing, but what consists with the Interests of that Colony, that the Legislative Power and Authority is and abides in them solely.” And in the same Mr. Randolph's Letter to the Bishop of London, July 14, 1682, he says, “This Independency in Government, claimed and daily practised.” And your Excellency being then sensible that this was the Sense of our Ancestors, in a Marginal Note in the same Collection of Papers observes, that “this,” viz. the Provision made for observing the { 326 } Acts of Trade, “is very extraordinary, for this Provision was an Act of the Colony declaring the Acts of Trade shall be in Force there.” Although Mr. Randolph was very unfriendly to the Colony, yet as his Declarations are concurrent with those recited from your Excellency's History, we think they may be admitted for the Purpose for which they are now brought.
Thus we see, from your Excellency's History and Publications, the Sense our Ancestors had of the Jurisdiction of Parliament under the first Charter. Very different from that which your Excellency in your Speech apprehends it to have been.
It appears by Mr. Neal's History of New-England,10 that the Agents who had been employed by the Colony to transact its Affairs in England at the Time when the present Charter was granted, among other Reasons gave the following for their Acceptance of it, viz. “The General Court has with the King's Approbation as much Power in New-England, as the King and Parliament have in England; they have all English Privileges, and can be touched by no Law, and by no Tax but of their own making.” This is the earliest Testimony that can be given of the Sense our Predecessors had of the Supreme Authority of Parliament under the present Charter. And it plainly shows, that they, who having been freely conversant with those who framed the Charter, must have well understood the Design and Meaning of it, supposed that the Terms in our Charter “full Power and Authority,” intended and were considered as a sole and exclusive Power, and that there was no “Reserve in the Charter to the Authority of Parliament, to bind the Colony” by any Acts whatever.
Soon after the Arrival of the Charter, viz. in 1692, your Excellency's History informs us,11 “the first Act” of this Legislative was a Sort of Magna Charta, asserting and setting forth their general Privileges, and this Clause was among the rest, “No Aid, Tax, Tallage, Assessment, Custom, Loan, Benevolence, or Imposition whatever, shall be laid, assess'd, impos'd or levied on any of their Majesty's Subjects, or their Estates, on any Pretence whatever, but by the Act and Consent of the Governor, Council and Representatives of the People assembled in General Court.” And though this Act was disallowed, it serves to show the Sense which the General Assembly contemporary with the granting the Charter had of their sole and exclusive Right to Legislate for the Colony. The History says, “the other Parts of the Act were copied from Magna Charta;” by which we may conclude that the Assembly then construed the Words “not repugnant to the Laws,” to mean, conformable to the fundamental Principles of the English { 327 } Constitution. And it is observable that the Lords of Privy Council, so lately as in the Reign of Queen Anne, when several Laws enacted by the General Assembly, were laid before her Majesty for her Allowance, interpreted the Words in this Charter, “not repugnant to the Laws of England,” by the Words “as nearly as conveniently may be agreeable to the Laws and Statutes of England.” And her Majesty was pleased to disallow those Acts, not because they were repugnant to any Law or Statute of England, made expressly to refer to the Colony; but because divers Persons, by Virtue thereof, were punished without being tried by their Peers in the ordinary “Courts of Law,” and “by the ordinary Rules and known Methods of Justice;” contrary to the express Terms of Magna Charta, which was a Statute in Force at the Time of granting the Charter, and declaratory of the Rights and Liberties of the Subjects within the Realm.
You are pleased to say, that “our Provincial or Local Laws have in numerous Instances had Relation to Acts of Parliament made to respect the Plantations and this Colony in particular.” The Authority of the Legislature, says the same Author who is quoted by your Excellency,12 “does not extend so far as the Fundamentals of the Constitution.” “They ought to consider the Fundamental Laws as sacred, if the Nation has not in very express Terms, given them the Power to change them. For the Constitution of the State ought to be fixed: And since that was first established by the Nation, which afterwards trusted certain Persons with the Legislative Power, the fundamental Laws are excepted from their Commission.” Now the Fundamentals of the Constitution of this Province are stipulated in the Charter; the Reasoning therefore in this Case holds equally good. Much less then ought any Acts or Doings of the General Assembly, however numerous, to neither of which your Excellency has pointed us, which barely relate to Acts of Parliament made to respect the Plantations in general, or this Colony in particular, to be taken as an Acknowledgment of this People, or even of the Assembly, which inadvertently passed those Acts, that we are subject to the Supreme Authority of Parliament. And with still less Reason are the Decisions in the Executive Courts to determine this Point. If they have adopted that “as Part of the Rule of Law,” which in Fact is not, it must be imputed to Inattention or Error in Judgment, and cannot justly be urged as an Alteration or Restriction of the Legislative Authority of the Province.
Before we leave this Part of your Excellency's Speech, we would observe, that the great Design of our Ancestors, in leaving the Kingdom of England, was to be freed from a Subjection to its spiritual { 328 } Laws and Courts, and to worship God according to the Dictates of their Consciences. Your Excellency in your History observes,13 that their Design was “to obtain for themselves and their Posterity the Liberty of worshipping God in such Manner as appeared to them most agreeable to the sacred Scriptures.” And the General Court themselves declared in 1651, that “seeing just Cause to fear the Persecution of the then Bishop[s], and High Commission for nor [not] conforming to the Ceremonies [then pressed upon the Consciences] of those under their Power, they thought it their safest Course, to get to this Outside of the World, out of their View and beyond their Reach.14 But if it had been their Sense, that they were still to be subject to the supreme Authority of Parliament, they must have known that their Design might and probably would be frustrated; that the Parliament, especially considering the Temper of those Times, might make what ecclesiastical Laws they pleased, expressly to refer to them, and place them in the same Circumstances with Respect to religious Matters, to be relieved from which was the Design of their Removal. And we would add, that if your Excellency's Construction of the Clause in our present Charter is just, another Clause therein, which provides for Liberty of Conscience for all Christians except Papists, may be rendered void by an Act of Parliament made to refer to us, requiring a Conformity to the Rites and Mode of Worship in the Church of England or any other.
Thus we have endeavoured to shew the Sense of the People of this Colony under both Charters; and if there have been in any late Instances a Submission to Acts of Parliament, it has been in our Opinion, rather from Inconsideration or a Reluctance at the Idea of contending with the Parent State, than from a Conviction or Acknowledgment of the Supreme Legislative Authority of Parliament.
Your Excellency tells us, “you know of no Line that can be drawn between the Supreme Authority of Parliament and the total Independence of the Colonies.” If there be no such Line, the Consequence is, either that the Colonies are the Vassals of the Parliament, or, that they are totally independent. As it cannot be supposed to have been the Intention of the Parties in the Compact, that we should be reduced to a State of Vassallage, the Conclusion is, that it was their Sense, that we were thus Independent. “It is impossible, your Excellency says, that there should be “two independent Legislatures in one and the same State.” May we not then further conclude, that it was their Sense that the Colonies were by their Charters made distinct States from the Mother Country? Your Excellency adds, “For although { 329 } there may be but one Head, the King, yet the two Legislative Bodies will make two Governments as distinct as the Kingdoms of England and Scotland before the Union.” Very true, may it please your Excellency; and if they interfere not with each other, what hinders but that being united in one Head and common Sovereign, they may live happily in that Connection and mutually support and protect each other? Notwithstanding all the Terrors which your Excellency has pictured to us as the Affects of a total Independence, there is more Reason to dread the Consequences, of absolute uncontrouled Supreme Power, whether of a Nation or a Monarch; than those of a total Independence. It would be a Misfortune “to know by Experience, the Difference between the Liberties of an English Colonist and those of a Spanish, French and Dutch: And since the British Parliament has passed an Act which is executed even with Rigour, though not voluntarily submitted to, for raising a Revenue and appropriating the same without the Consent of the People who pay it, and have claimed a Power of making such Laws as they please to order and govern us, your Excellency will excuse us in asking, whether you do not think we already experience too much of such a Difference, and have not Reason to fear we shall soon be reduced to a worse Situation than that of the Colonies of France, Spain or Holland.
If your Excellency expects to have the Line of Distinction between the Supreme Authority of Parliament, and the total Independence of the Colonies drawn by us, we would say it would be an arduous Undertaking; and of very great Importance to all the other Colonies: And therefore, could we conceive of such a Line, we should be unwilling to propose it, without their Consent in Congress.
To conclude, These are great and profound Questions. It is the Grief of this House, that by the ill Policy of a late injudicious Administration, America has been driven into the Contemplation of them. And we cannot, but express our Concern, that your Excellency by your Speech has reduced us to the unhappy Alternative, either of appearing by our Silence to acquiesce in your Excellency's Sentiments, or of thus freely discussing this Point.
After all that we have said, we would be far from being understood to have in the least abated that just Sense of Allegiance which we owe to the King of Great-Britain, our rightful Sovereign: And should the People of this Province be left to the free and full Exercise of all the Liberties and Immunities granted to them by Charter, there would be no Danger of an Independance on the Crown. Our Charters reserve great Power to the Crown in its Representative, fully sufficient { 330 } to balance, analagous to the English Constitution, all the Liberties and Privileges granted to the People. All this your Excellency knows full well—And whoever considers the Power and Influence, in all their Branches, reserved by our Charter to the Crown, will be far from thinking that the Commons of this Province are too Independent.
MS not found. Reprinted from (Mass., House Jour., 1772–1773, p. 178–190).
1. The Declaratory Act, 7 Geo. III, ch. 49.
2. JA's source for these passages on the Stuarts' assertions that the American colonies were “without the realm” was apparently the 4th edition of Thomas Pownall, The Administration of the Colonies . . . , London, 1768, p. 48–49. It would seem, however, that JA took certain liberties with his source. As described by Pownall, the incidents occurred thus: “So that when the House of Commons, in those reiterated attempts which they made by passing a bill to get a law enacted for establishing a free right of fishery on the coasts of Virginia, New-England, and Newfoundland, put in the claim of the state to this property, and of the parliament to jurisdiction over it; they were told in the House by the servants of the crown, 'That it was not fit to make laws here for those countries which are not yet annexed to the crown. That this bill was not proper for this house, as it concerneth America.'” Pownall's footnotes state clearly that this view of Parliament's authority referred only to the disputes between Parliament and James I in 1621.
Pownall mentions no dissent by Charles I to a bill passed by both Houses on the fisheries question. Indeed, none was ever made, for all bills to end the fishing monopoly in the New England charters failed to pass in Parliament during the reigns of both James I and Charles I (Charles B. Judah, The North American Fisheries and British Policy to 1713, Urbana, 1933 [Ill. Studies in the Social Sciences, 18, nos. 3–4], p. 50–60; George L. Beer, The Origins of the British Colonial System, 1578–1660, N. Y., 1908, p. 272–275).
3. For Hutchinson's comments on this passage, see No. II, below.
4. “An Act for raising a publique revenue for the better support of the government of this his majesties colony,” June 1680, Henings Statutes, 2:466–469.
5. In his address of 6 Jan., Hutchinson had quoted this passage from Emmerich de Vattel, The Law of Nations, or, Principles of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns: “When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother country, naturally becomes a part of the state, equally with its ancient possessions” (bk. 1, ch. 18, sect. 210). The statement offered by the House in rebuttal appears in the same work, bk. 2, ch. 17, sect. 265.
6. The passages quoted in this paragraph appear in Hutchinson, Massachusetts Bay, ed. Mayo, 1:216–217.
7. That is, in a footnote.
8. Passages quoted in this paragraph appear in Hutchinson, Massachusetts Bay, ed. Mayo, 1:272, 2:3.
9. Hutchinson's A Collection of Original Papers Relative to the History of the Colony of Massachusets-Bay, Boston, 1769. This paragraph includes quotations which appear at p. 482, 483, 496, 499, 506, 539, 521.
10. Daniel Neal, The History of NewEngland containing an Impartial Account of the Civil and Ecclesiastical Affairs ... to the Year of our Lord, 1700, 2 vols., London, 1720. Passages quoted in this paragraph appear in 2:479. Only the first volume of JA's set is listed in Catalogue of JA's Library.
11. These passages appear in Hutchinson, Massachusetts Bay, ed. Mayo, 2:48–49.
{ 331 }
12. That is, Vattel. The passage which follows appears in The Law of Nations, bk. 1, ch. 3, sect. 34.
14. This passage from the General Court's petition to Parliament, 1651, appears in Hutchinson, Massachusetts Bay, ed. Mayo, 1:428.

Docno: ADMS-06-01-02-0097-0003

Author: Adams, Samuel
Recipient: Adams, John
Date: 1773-02-22

II. Samuel Adams to John Adams

[salute] My dear Sir

If you have had Leisure to commit your Thoughts to writing agreable to my Request I shall be oblig'd if you will send them by the Bearer. The Govr says the House have incautiously applied a Rule of the Common Law (see the 4th Coll. of his Speech).1 The Assertion is mine, upon your Authority as I thought. If it be vindicable, pray give me your Aid in that as briefly as you please. I am sorry to trouble you at a time when I know you must be much engagd but to tell you a Secret, if there be a Lawyer in the house in Major Hawleys Absense, there is no one whom I incline to confide in.

[salute] Your friend

[signed] S. Adams
RC (Adams Papers); addressed: “To John Adams Esqr”; endorsed by JA: “Sam. Adams in dispute with Hutchinson.” Docketed in a later hand: “See Mass. State Papers p. 374. Feby. 1773 and p. 387.” The “State Papers” referred to is Mass., Speeches of the Governors, &c., 1765–1775. At p. 374 of this work appears that section of Hutchinson's message of 16 Feb. concerning the definition of “realm”; the passages in the House reply of 2 March dealing with allegiance and realm begin at p. 387.
1. Hutchinson's message of 16 Feb. was printed in the Boston Gazette, 22 Feb. The speech took up the three columns of p. 2, continuing over to p. 3. Thus the “4th Coll.” was the 1st column of p. 3, where this remark appeared: “If you mean that no Countries but the ancient territorial Realm can constitutionally be subject to the Supreme authority of England, which you have very incautiously said is a Rule of the Common Law of England, this is a doctrine which you will never be able to support.”

Docno: ADMS-06-01-02-0097-0004

Author: Adams, John
Author: Massachusetts House of Representatives
Recipient: Hutchinson, Thomas
Date: 1773-03-02

III. Reply of the House to Hutchinson's Second Message

[salute] May it please your Excellency,

In your Speech at the Opening of the present Session, your Excellency express'd your Displeasure at some late Proceedings of the Town of Boston, and other principal Towns in the Province. And in another Speech to both Houses we have your repeated Ex• { 332 } ceptions at the same Proceedings as being “unwarrantable,” and of a dangerous Nature and Tendency; “against which you thought yourself bound to call upon us to join with you in bearing a proper Testimony.” This House have not discovered any Principles advanced by the Town of Boston, that are unwarrantable by the Constitution; nor does it appear to us that they have “invited every other Town and District in the Province to adopt their Principles.” We are fully convinced that it is our Duty to bear our Testimony against “Innovations of a dangerous Nature and Tendency:” but it is clearly our Opinion, that it is the indisputable Right of all or any of his Majesty's Subjects in this Province, regularly and orderly to meet together to state the Grievances they labor under; and to propose and unite in such constitutional Measures as they shall judge necessary or proper to obtain Redress. This Right has been frequently exercised by his Majesty's Subjects within the Realm; and we do not recollect an Instance, since the happy Revolution, when the two Houses of Parliament have been called upon to discountenance or bear their Testimony against it, in a Speech from the Throne.
Your Excellency is pleased to take Notice of some Things which we “alledge” in our Answer to your first Speech: And the Observation you make, we must confess, is as natural and as undeniably true, as any one that could have been made; that “if our Foundation shall fail us in every Part of it, the Fabrick we have rais'd upon it, must certainly fall.” You think, this Foundation will fail us; but we wish your Excellency had condescended to a Consideration of what we have “adduced in Support of our Principles.” We might then perhaps have had some Things offered for our Conviction, more than bare Affirmations; which, we must beg to be excused if we say, are far from being sufficient, though they came with your Excellency's Authority, for which however we have a due Regard.
Your Excellency says that “as English Subjects and agreeable to the Doctrine of the Feudal Tenure all our Lands are held mediately or immediately of the Crown.” We trust your Excellency does not mean to introduce the Feudal System in it's Perfection; which to use the Words of one of our greatest Historians,1 was “a State of perpetual War, Anarchy and Confusion; calculated solely for Defence against the Assaults of any foreign Power, but in it's Provision for the interior Order and Tranquility of Society extremely defective.” “A Constitution so contradictory to all the Principles that govern Mankind, could never be brought about but by foreign Conquest or native Usurpation:”2 And a very celebrated Writer calls it “that most iniquitous { 333 } and absurd Form of Government by which human Nature was so shamefully degraded.” This System of Iniquity by a strange Kind of Fatility, “though originally form'd for an Encampment and for Military Purposes only, spread over a great Part of Europe:” and to serve the Purposes of Oppression and Tyranny “was adopted by Princes and wrought into their Civil Constitutions;” and aided by the Canon Law, calculated by the Roman Pontiff, to exalt himself above all that is called God, it prevailed to the almost utter Extinction of Knowledge, Virtue, Religion and Liberty from that Part of the Earth. But from the Time of the Reformation, in Proportion as Knowledge, which then darted its Rays upon the benighted World, increas'd and spread among the People, they grew impatient under this heavy Yoke: And the most virtuous and sensible among them, to whose Stedfastness we in this distant Age and Climate are greatly indebted, were determined to get rid of it: And tho' they have in a great Measure subdued it's Power and Influence in England, they have never yet totally eradicated its Principles.
Upon these Principles the King claimed an absolute Right to and a perfect Estate in all the Lands within his Dominions; but how he came by this absolute Right and perfect Estate is a Mystery which we have never seen unravelled, nor is it our Business or Design at present to enquire. He granted Parts or Parcels of it to his Friends the great Men, and they granted lesser Parcels to their Tenants: All therefore derived their Right and held their Lands, upon these Principles mediately or immediately of the King; which Mr. Blackstone however calls “in Reality a meer Fiction of our English Tenures.”3
By what Right in Nature and Reason the Christian Princes in Europe claimed the Lands of Heathen People, upon a Discovery made by any of their Subjects, is equally mysterious: Such however was the Doctrine universally prevailing when the Lands in America were discovered; but as the People of England upon those Principles held all the Lands they possessed by Grants from the King, and the King had never granted the Lands in America to them, it is certain they could have no Sort of Claim to them: Upon the Principles advanced, the Lordship and Dominion like that of the Lands in England, was in the King solely: and a Right from thence accrued to him of disposing such Territories under such Tenure and for such Services to be performed, as the King or Lord thought proper. But how the Grantees became Subjects of England, that is the Supreme Authority of the Parliament, your Excellency has not explained to { 334 } us. We conceive that upon the Feudal Principles all Power is in the King; they afford us no Idea of Parliament. “The Lord was in early Times the Legislator and Judge over all his Feudatories,” says Judge Blackstone.4 By the Struggles for Liberty in England from the Days of King John to the last happy Revolution, the Constitution has been gradually changing for the better; and upon the more rational Principles that all Men by Nature are in a State of Equality in Respect of Jurisdiction and Dominion, Power in England has been more equally divided. And thus also in America, though we hold our Lands agreeably to the Feudal Principles of the King; yet our Predecessors wisely took Care to enter into Compact with the King that Power here should also be equally divided agreeable to the original fundamental Principles of the English Constitution, declared in Magna Charta, and other Laws and Statutes of England, made to confirm them.
Your Excellency says, “you can by no Means concede to us that it is now or was when the Plantations were first granted the Prerogative of the Kings of England to constitute a Number of new Governments altogether independent of the Sovereign Authority of the English Empire.” By the Feudal Principles upon which you say “all the Grants which have been made of America are founded” “the Constitutions of the Emperor have the Force of Law.” If our Government be considered as merely Feudatory, we are subject to the King's absolute Will, and there is no Room for the Authority of Parliament, as the Sovereign Authority of the British Empire. Upon these Principles, what could hinder the King's constituting a Number of Independent Governments in America? That King Charles the First did actually set up a Government in this Colony, conceding to it Powers of making and executing Laws, without any Reservation to the English Parliament, of Authority to make future Laws binding therein, is a Fact which your Excellency has not disproved if you have denied it. Nor have you shewn that the Parliament or Nation objected to it, from whence we have inferred that it was an acknowledged Right. And we cannot conceive, why the King has not the same Right to alienate and dispose of Countries acquired by the Discovery of his Subjects, as he has to “restore upon a Treaty of Peace Countries which have been acquired in War,” carried on at the Charge of the Nation; or to “sell and deliver up any Part of his Dominions to a foreign Prince or State, against the General Sense of the Nation” which is “an Act of Power” or Prerogative which your Excellency allows. You tell us that “when any new Countries are discovered by English Subjects, { 335 } according to the general Law and Usage of Nations, they become Part of the State.” The Law of Nations is or ought to be founded on the Law of Reason. It was the saying of Sir Edwin Sandis, in the great Case of the Union of the Realm of Scotland with England,5 which is applicable to our present Purpose, that “there being no Precedent for this Case in the Law, the Law is deficient; and the Law being deficient, Recourse is to be had to Custom; and Custom being insufficient, we must recur to natural Reason,” the greatest of all Authorities, which he adds “is the Law of Nations.” The Opinions therefore, and Determinations of the greatest Sages and Judges of the Law in the Exchequer Chamber ought not to be considered as decisive or binding in our present Controversy with your Excellency, any further than they are consonant to natural Reason. If however we were to recur to such Opinions and Determinations we should find very great Authorities in our Favour, to show that the Statutes of England are not binding on those who are not represented in Parliament there. The Opinion of Lord Coke that Ireland was bound by Statutes of England wherein they were named, if compared with his other Writings, appears manifestly to be grounded upon a Supposition, that Ireland had by an Act of their own, in the Reign of King John, consented to be thus bound, and upon any other Supposition, this Opinion would be against Reason; for Consent only gives human Laws their Force. We beg Leave, upon what your Excellency has observed, of the Colony becoming Part of the State, to subjoin the Opinions of several learned Civilians, as quoted by a very able Lawyer in this Country;6 “Colonies, says Puffendorf, are settled in different Methods. For either the Colony continues a Part of the Common Wealth it was sent out from; or else is obliged to pay a dutiful Regard to the Mother Common Wealth, and to be in Readiness to defend and vindicate its Honor, and so is united [to it] by a Sort of unequal Confederacy; or lastly, is erected into a seperate Common Wealth and assumes the same Rights, with the State it descended from.” And King Tullius [Tullus], as quoted by the same learned Author from Grotius, says “We look upon it to be neither Truth nor Justice that Mother Cities ought of Necessity and by the Law of Nature to rule over the Colonies.”
Your Excellency has misinterpreted what we have said, “that no Country by the Common Law, was subject to the Laws or the Parliament but the Realm of England,” and are pleased to tell us that we have expressed ourselves “Incautiously.” We beg Leave to recite the Words of the Judges of England in the beforementioned Case to our { 336 } Purpose.7 “If a King go out of England with a Company of his Servants, Allegiance remaineth among his Subjects and Servants, altho' he be out of his Realm whereto his Laws are confined.” We did not mean to say, as your Excellency would suppose, that “the Common Law prescribes Limits to the Extent of the Legislative Power,” though we shall always affirm it to be true of the Law of Reason and natural Equity. Your Excellency thinks you have made it appear, that “the Colony of Massachusetts-Bay is holden as feudatory of the Imperial Crown of England;” and therefore you say, “to use the Words of a very great Authority in a Case in some Respects analogous to it,” being feudatory it necessary follows, that “it is under the Government of the King's Laws.” Your Excellency has not named this Authority; but we conceive his Meaning must be, that being Feudatory, it is under the Government of the King's Laws absolutely; for as we have before said the Feudal System admits of no Idea of the Authority of Parliament, and this would have been the Case of the Colony but for the Compact with the King in the Charter.
Your Excellency says, that “Persons thus holding under the Crown of England remain or become Subjects of England;” by which we suppose your Excellency to mean, subject to the Supreme Authority of Parliament “to all Intents and Purposes as fully as if any of the Royal Manors, &c. within the Realm had been granted to them upon the like Tenure.” We apprehend with Submission, your Excellency is Mistaken in supposing that our Allegiance is due to the Crown of England. Every Man swears Allegiance for himself to his own King in his Natural Person. “Every Subject is presumed by Law to be Sworn to the King, which is to his Natural Person,” says Lord Coke. Rep. on Calvins Case.8 “The Allegiance is due to his Natural Body.” And he says “in the Reign of Edward II. the Spencers, the Father and the Son, to cover the Treason hatched in their Hearts, invented this damnable and damned Opinion, that Homage and Oath of Allegiance was more by Reason of the King's Crown, that is of his politick Capacity, than by Reason of the Person of the King; upon which Opinion they infer'd execrable and detestable Consequents.” The Judges of England, all but one, in the Case of the Union between Scotland and England,9 declared that “Allegiance followeth the natural Person not the politick;” and “to prove the Allegiance to be tied to the Body natural of the King, and not to the Body politick, the Lord Coke cited the Phrases of diverse Statutes, mentioning our natural liege Sovereign.” —If then the Homage and Allegiance is not to the Body politick of the King, then it is not to him as the Head or any Part of that Legislative Au• { 337 } thority, which your Excellency says “is equally extensive with the Authority of the Crown throughout every Part of the Dominion;” and your Excellency's Observations thereupon must fail. The same Judges mention the Allegiance of a Subject to the Kings of England who is out of the Reach and Extent of the Laws of England; which is perfectly reconcileable with the Principles of our Ancestors quoted before from your Excellency's History, but upon your Excellency's Principles appears to us to be an Absurdity. The Judges, speaking of a Subject, say, “although his Birth was out of the Bounds of the Kingdom of England, and out of the Reach and Extent of the Laws of England, yet if it were within the Allegiance of the King of England, &c. Normandy, Acquitan, Gascoign, and other Places within the Limits of France, and consequently out of the Realm or Bounds of the Kingdom of England, were in Subjection to the Kings of England. And the Judges say, “ Rex et Regnum be not so Relatives, as a King can be King but of one Kingdom, which clearly holdeth not but that his Kingly Power extending to divers Nations and Kingdoms, all owe him equal Subjection and are equally born to the Benefit of his Protection, and altho' he is to govern them by their distinct Laws, yet any one of the People coming into the other is to have the Benefit of the Laws wheresoever he cometh.” So they are not to be deemed Aliens, as your Excellency in your Speech supposes in any of the Dominions; all which accords with the Principles our Ancestors held. “And he is to bear the Burden of Taxes of the Place where he cometh, but living in one or for his Livelihood in one, he is not to be taxed in the other, because Laws ordain Taxes, Impositions and Charges as a Discipline of Subjection particularized to every particular Nation:” Nothing we think, can be more clear to our Purpose than this Decision, of Judges, perhaps as learned as ever adorned the English Nation; or in Favor of America in her present Controversy with the Mother State.
Your Excellency says, that by our not distinguishing between the Crown of England and the Kings and Queens of England in their personal or natural Capacities, we have been led into a fundamental Error. “Upon this very Distinction we have availed ourselves. We have said that our Ancestors considered the Land which they took Possession of in America as out of the Bounds of the Kingdom of England, and out of the Reach and Extent of the Laws of England; and that the King also even in the Act of granting the Charter, considered the Territory as not within the Realm; that the King had an absolute Right in himself to dispose of the Lands, and that this was not dis• { 338 } puted by the Nation; nor could the Lands on any solid Grounds be claimed by the Nation, and therefore our Ancestors received the Lands by Grant from the King, and at the same Time compacted with him and promised him Homage and Allegiance, not in his publick or politick but natural Capacity only.—If it be difficult for us to show how the King acquired a Title to this Country in his natural Capacity, or seperate from his Relation to his Subjects, which we confess, yet we conceive it will be equally difficult for your Excellency to show how the Body Politick and Nation of England acquired it. Our Ancestors supposed it was acquired by neither; and therefore they declared, as we have before quoted from your History, that saving their actual Purchase from the Natives, of the Soil, the Dominion, the Lordship, and Sovereignty, they had in the Sight of God and Man, no Right and Title to what they possessed. How much clearer then in natural Reason and Equity must our Title be, who hold Estates dearly purchased at the Expence of our own as well as our Ancestors Labour, and defended by them with Treasure and Blood.
Your Excellency has been pleased to confirm, rather than deny or confute a Piece of History which you say we took from an anonimous Pamphlet,10 and by which you “fear we have been too easily misled.” It may be gathered from your own Declaration and other Authorities besides the anonimous Pamphlet, that the House of Commons took Exception, not at the King's having made an absolute Grant of the Territory, but at the Claim of an exclusive Right to the Fishery on the Banks and Sea-Coast, by Virtue of the Patent. At this you say “the House of Commons was alarmed, and a Bill was brought in for allowing a Fishery.” And upon this Occasion your Excellency allows, that “one of the Secretaries of State declared that the Plantations were not annexed to the Crown, and so were not within the Jurisdiction of Parliament.” If we should concede to what your Excellency supposes might possibly or “perhaps” be the Case, that the Secretary made this Declaration “as his own Opinion,” the Event showed that it was the Opinion of the King too; for it is not to be accounted for upon any other Principle, that he would have denied his Royal Assent to a Bill formed for no other Purpose, but to grant his Subjects in England the Privileges of Fishing on the Sea Coasts in America. The Account published by Sir Ferdinando Gorges himself, of the Proceedings of Parliament on this Occasion,11 your Excellency thinks will remove all Doubt of the Sense of the Nation and of the Patentees of this Patent or Charter in 1620. “This Narrative, you say, has all the Appearance of Truth and Sincerity,” which we do not deny: and to us it carries { 339 } this Conviction with it, that “what was objected” in Parliament was, the exclusive Claim of Fishing only. His imagining that he had satisfied the House after divers Attendances, that the Planting a Colony was of much more Consequence than a simple disorderly Course of Fishing, is sufficient for our Conviction. We know that the Nation was at that Time alarmed with Apprehensions of Monopolies; and if the Patent of New-England was presented by the two Houses as a Grievance, it did not show, as your Excellency supposes, “the Sense they then had of their Authority over this new-acquired Territory,” but only their Sense of the Grievance of a Monopoly of the Sea.
We are happy to hear your Excellency say, that “our Remarks upon and Construction of the Words not repugnant to the Laws of England, are much the same with those of the Council.” It serves to confirm us in our Opinion, in what we take to be the most important Matter of Difference between your Excellency and the two Houses. After saying, that the Statute of 7th and 8th of William and Mary favors the Construction of the Words as intending such Laws of England as are made more immediately to respect us, you tell us, that “the Province Agent Mr. Dummer in his much applauded Defence, says that then a Law of the Plantations may be said to be repugnant to a Law made in Great-Britain, when it flatly contradicts it so far as the Law made there mentions and relates to the Plantations.”12 This is plain and obvious to common Sense, and therefore cannot be denied. But if your Excellency will read a Page or two further in that excellent Defence, you will see that he mentions this as the Sense of the Phrase, as taken from an Act of Parliament, rather than as the Sense he would chuse himself to put upon it; and he expresly designs to shew, in Vindication of the Charter, that in that Sense of the Words, there never was a Law made in the Plantations repugnant to the Laws of Great-Britain. He gives another Construction much more likely to be the true Intent of the Words; namely, “that the Patentees shall not presume under Colour of their particular Charters to make any Laws inconsistent with the Great Charter and other Laws of England, by which the Lives, Liberties, and Properties of Englishmen are secured.” This is the Sense in which our Ancestors understood the Words; and therefore they were unwilling to conform to the Acts of Trade, and disregarded them all till they made Provision to give them Force in the Colony by a Law of their own; saying, that “the Laws of England did not reach America: And those Acts were an Invasion of their Rights, Liberties and Properties,” because they were not “represented in Parliament.” The Right of being governed only by Laws which were { 340 } made by Persons in whose Election they had a Voice, they looked upon as the Foundation of English Liberties. By the Compact with the King in the Charter, they were to be as free in America, as they would have been if they had remained within the Realm; and therefore they freely asserted that they “were to be governed by Laws made by themselves and by Officers chosen by themselves.” Mr. Dummer says, “It seems reasonable enough to think that the Crown,” and he might have added our Ancestors, “intended by this Injunction to provide for all its Subjects, that they might not be oppressed by arbitrary Power—but—being still Subjects, they should be protected by the same mild Laws, and enjoy the same happy Government as if they continued within the Realm”. And considering the Words of the Charter in this Light, he looks upon them as designed to be a Fence against Oppression and despotic Power. But the Construction which your Excellency puts upon the Words, reduce us to a State of Vassallage, and exposes us to Oppression and despotic Power, whenever a Parliament shall see fit to make Laws for that Purpose and put them in Execution.
We flatter ourselves that from the large Extracts we have made from your Excellency's History of the Colony, it appears evidently, that under both Charters it hath been the Sense of the People and of the Government that they were not under the Jurisdiction of Parliament. We pray you again to recur to those Quotations and our Observations upon them: And we wish to have your Excellency's judicious Remarks. When we adduced that History to prove that the Sentiments of private Persons of Influence, four or five Years after the Restoration, were very different from what your Excellency apprehended them to be when you delivered your Speech, you seem to concede to it by telling us “it was, as you take it, from the Principles imbibed in those Times of Anarchy (preceeding the Restoration) that they disputed the Authority of Parliament;” but you add, “the Government would not venture to dispute it.” We find in the same History a Quotation from a Letter of Mr. Stoughton, dated 17 Years after the Restoration,13 mentioning “the Country's not taking Notice of the Acts of Navigation to observe them.” And it was, as we take it, after that Time, that the Government declared in a Letter to their Agents, that they had not submitted to them; and they ventured to “dispute” the Jurisdiction, asserting that they apprehended the Acts to be an Invasion of the Rights, Liberties, and Properties of the Subjects of his Majesty in the Colony, they not being represented in Parliament; and that “the Laws of England did not reach America.” It very little avails in Proof that they conceded to the Supreme Authority of Parliament, their telling { 341 } the Commissioners “that the Act of Navigation had for some Years before been observed here, that they knew not of its being greatly violated, and that such Laws as appeared to be against it were repealed.” It may as truly be said now, that the Revenue Acts are observed by some of the People of this Province; but it cannot be said that the Government and People of this Province have conceded that the Parliament had Authority to make such Acts to be observed here. Neither does their Declarations to the Commissioners that such Laws as appeared to be against the Act of Navigation were repealed, prove their Concession of the Authority of Parliament, by any Means so much as their making Provision for giving Force to an Act of Parliament within this Province, by a deliberate and solemn Act or Law of their own, proves the contrary.
You tell us, that “the Government four or five Years before the Charter was vacated more explicitly,” that is than by a Conversation with the Commissioners, “acknowledge the Authority of Parliament, and voted that their Governor should take the Oath required of him faithfully to do and perform all Matters and Things enjoined him by the Acts of Trade.” But does this, may it please your Excellency, show their explicit Acknowledgment of the Authority of Parliament? Does it not rather show directly the contrary? For, what need could there be for their Vote or Authority to require him to take the Oath already required of him by the Act of Parliament, unless both he and they judged that an Act of Parliament was not of Force sufficient to bind him to take such Oath? We do not deny, but on the contrary are fully persuaded that your Excellency's Principles in Government are still the same with what they appear to be in the History; for you there say, that “the passing the Law plainly shows the wrong Sense they had of the Relation they stood in to England.” But we are from hence convinced that your Excellency when you wrote the History was of our Mind in this Respect, that our Ancestors in passing the Law discovered their Opinion that they were without the Jurisdiction of Parliament: For it was upon this Principle alone that they shewed the wrong Sense they had in your Excellency's Opinion, of the Relation they stood in to England.
Your Excellency in your second Speech condescends to point out to us the Acts and Doings of the General Assembly which relates to Acts of Parliament, which you think “demonstrates that they have been acknowledged by the Assembly or submitted to by the People:” Neither of which in our Opinion shows that it was the Sense of the Nation, and our Predecessors when they first took Possession of this { 342 } Plantation or Colony by a Grant and Charter from the Crown, that they were to remain subject to the Supreme Authority of the English Parliament.
Your Excellency seems chiefly to rely upon our Ancestors, after the Revolution “proclaiming King William and Queen Mary in the Room of King James,” and taking the Oaths to them, “the Alteration of the Form of Oaths from Time to Time,” and finally “the Establishment of the Form which every one of us has complied with, as the Charter in express Terms requires and makes our Duty.” We do not know that it has ever been a Point in Dispute whether the Kings of England were ipso facto Kings in and over this Colony or Province, the Compact was made between King Charles the First, his Heirs and Successors, and the Governor and Company, their Heirs and Successors. It is easy upon this Principle to account for the Acknowledgment and Submission of King William and Queen Mary as Successors of Charles the First, in the Room of King James. Besides it is to be considered, that the People in the Colony as well as in England had suffered under the Tyrant James, by which he had alike forfeited his Right to reign over both. There had been a Revolution here as well as in England. The Eyes of the People here were upon William and Mary, and the News of their being proclaimed in England was as your Excellency's History tells us, “the most joyful News ever received in New-England.” And if they were not proclaimed here “by Virtue of an Act of the Colony,” it was, as we think may be concluded from the Tenor of your History, with the general or universal Consent of the People as apparently as if “such Act had passed.” It is Consent alone, that makes any human Laws binding; and as a learned Author observes, a purely voluntary Submission to an Act, because it is highly in our Favor and for our Benefit, is in all Equity and Justice to be deemed as not at all proceeding from the Right we include in the Legislators, that they thereby obtain an Authority over us, and that ever hereafter we must obey them of Duty. We would observe that one of the first Acts of the General Assembly of this Province since the present Charter, was an Act requiring the taking the Oaths mentioned in an Act of Parliament, to which you refer us: For what Purpose was this Act of the Assembly passed, if it was the Sense of the Legislators that the Act of Parliament was in Force in the Province. And at the same Time another Act was made for the Establishment of other Oaths necessary to be taken; both which Acts have the Royal Sanction, and are now in Force. Your Excellency says, that when the Colony applied to King William for a second Charter, { 343 } they knew the Oath the King had taken, which was to govern them according to the Statutes in Parliament, and (which your Excellency here omits) the Laws and Customs of the same. By the Laws and Customs of Parliament, the People of England freely debate and consent to such Statutes as are made by themselves or their chosen Representatives. This is a Law or Custom which all Mankind may justly challenge as their inherent Right. According to this Law the King has an undoubted Right to govern us. Your Excellency upon Recollection surely will not infer from hence, that it was the Sense of our Predecessors that there was to remain a Supremacy in the English Parliament, or a full Power and Authority to make Laws binding upon us in all Cases whatever, in that Parliament where we cannot debate and deliberate upon the Necessity or Expediency of any Law, and consequently without our Consent, and as it may probably happen destructive of the first Law of Society, the Good of the Whole. You tell us that “after the Assumption of all the Powers of Government, by Virtue of the new Charter, an Act passed for the reviving for a limited Time all the local Laws of the Massachusetts-Bay and New-Plymouth respectively, not repugnant to the Laws of England. And at the same Session an Act passed establishing Naval Officers, that all undue Trading contrary to an Act of Parliament—may be prevented.” Among the Acts that were then revived we may reasonably suppose was that whereby Provision was made to give Force to this Act of Parliament in the Province. The Establishment therefore of the Naval Officers was to aid the Execution of an Act of Parliament; for the Observance of which within the Colony, the Assembly had before made Provision, after free Debates, with their own Consent and by their own Act.
The Act of Parliament passed in 1741, for putting an End to several unwarrantable Schemes,14 mentioned by your Excellency, was designed for the general Good, and if the Validity of it was not disputed, it cannot be urged as a Concession of the Supreme Authority, to make Laws binding on us in all Cases whatever. But if the Design of it was for the general Benefit of the Province, it was in one Respect at least greatly complained of by the Persons more immediately affected by it; and to remedy the Inconvenience, the Legislative of this Province pass'd an Act, directly militating with it;15 which is the strongest Evidence, that altho' they may have submitted sub silentio to some Acts of Parliament that they conceived might operate for their Benefit, they did not conceive themselves bound by any of its Acts which they judged would operate to the Injury even of Individuals.
{ 344 }
Your Excellency has not thought proper to attempt to confute the Reasoning of a learned Writer on the Laws of Nature and Nations, quoted by us on this Occasion,16 to shew that the Authority of the Legislature does not extend so far as the Fundamentals of the Constitution. We are unhappy in not having your Remarks upon the Reasoning of that great Man; and until it is confuted, we shall remain of the Opinion, that the Fundamentals of the Constitution being excepted from the Commission of the Legislators, none of the Acts or Doings of the General Assembly, however deliberate and solemn, could avail to change them, if the People have not in very express Terms given them the Power to do it; and that much less ought their Acts and Doings however numerous, which barely refer to Acts of Parliament made expresly to relate [to] us, to be taken as an Acknowledgment that we are subject to the Supreme Authority of Parliament.
We shall sum up our own Sentiments in the Words of that learned Writer Mr. Hooker, in his Ecclesiastical Policy, as quoted by Mr. Locke,17 “The lawful Power of making Laws to command whole political Societies of Men, belonging so properly to the same intire Societies, that for any Prince or Potentate of what kind soever, to exercise the same of himself, and not from express Commission immediately and personally received from God, is no better than mere Tyranny. Laws therefore they are not which publick Approbation hath not made so, for Laws human of what kind soever are available by Consent.” “Since Men naturally have no full and perfect Power to command whole politick Multitudes of Men, therefore, utterly without our Consent we could in such Sort be at no Man's Commandment living. And to be commanded we do not consent when that Society whereof we be a Part, hath at any Time before consented.” We think your Excellency has not proved, either that the Colony is a Part of the politick Society of England, or that it has ever consented that the Parliament of England or Great-Britain should make Laws binding upon us in all Cases whatever, whether made expresly to refer to us or not.
We cannot help before we conclude, expressing our great Concern, that your Excellency has thus repeatedly, in a Manner insisted upon our free Sentiments on Matters of so delicate a Nature, and weighty Importance. The Question appears to us to be no other, than Whether we are the Subjects of absolute unlimitted Power, or of a free Government formed on the Principles of the English Constitution. If your Excellency's Doctrine be true, the People of this Province hold their Lands of the Crown and People of England, and their Lives, Liberties { 345 } and Properties are at their Disposal; and that even by Compact and their own Consent. They are subject to the King as the Head alterius Populi of another People, in whose Legislative they have no Voice or Interest. They are indeed said to have a Constitution and a Legislative of their own, but your Excellency has explained it into a mere Phantom; limitted, controuled, superceded and nullified at the Will of another. Is this the Constitution which so charmed our Ancestors, that as your Excellency has informed us, they kept a Day of solemn Thanksgiving to Almighty God when they received it? and were they Men of so little Discernment, such Children in Understanding, as to please themselves with the Imagination that they were blessed with the same Rights and Liberties which natural-born Subjects in England enjoyed? when at the same Time they had fully consented to be ruled and ordered by a Legislative a Thousand Leagues distant from them, which cannot be supposed to be sufficiently acquainted with their Circumstances, if concerned for their Interest, and in which they cannot be in any Sense represented.
MS not found. Reprinted from (Mass., House Jour., 1772–1773, p. 268–280).
1. William Robertson. The quotation given here, “a State . . . defective,” is actually a combination of phrases used by Robertson in The History of the Reign of Emperor Charles V, 1:12, 60.
2. The remainder of this paragraph, after the quotation from Robertson, draws heavily on two sections of JA's “A Dissertation on the Canon and the Feudal Law.” The quotations from Lord Kames (“A Constitution so contradictory”) and from Rousseau (“a very celebrated writer”) are the same ones used in the closing paragraph of No. 2 of that series (“Dissertation” [May-Oct. 1765], No. IV., above). Other sections in this paragraph within quotation marks are close paraphrases of the fifth and sixth paragraphs of No. 1 in the same series (same, No. III, above).
3. William Blackstone, Commentaries on the Laws of England, 2:51.
4. Same, 2:54.
5. The remarks of Sir Edwin Sandys (1561–1629) in this case are taken from Cases Collect & Report per Sir Fra. Moore . . . , p. 791. Cited hereafter as Moore, Cases.
6. James Otis in The Rights of the British Colonies Asserted and Proved, Boston, 1764. For an analysis of Otis' pamphlet, see Bailyn, ed., Pamphlets, 1:409–418. The passages quoted here and below appear at same, p. 437, with exact citations to Pufendorf and Grotius.
7. That is, the Case of the Union of Scotland and England, or Calvin's Case. The quotation appears in Moore, Cases, p. 798.
8. Part 7 of the various editions of Sir Edward Coke, Reports, p. 10, 11–12.
9. The quotations which comprise the remainder of the paragraph are drawn from Moore, Cases, p. 798–800, 805.
10. In his message of 16 Feb., Hutchinson made this reply to the House's remarks on the status of “any new Countries . . . discovered by English Subjects” : “[T]hat it is now, or was when the Plantations were first granted, the Prerogative of the Kings of England to alienate such Territories from the Crown, or to constitute a Number of new Governments altogether independent of the Sovereign Legislative Authority of the English Empire, I can by no Means concede to you. I have never seen any better Authority to support such an Opinion than an anonimous Pamphlet by which I fear you have too { 346 } easily been misled, for I shall presently shew you that the Declarations of King James the First, and of King Charles the First, admitting they are truly related by the Author of this Pamphlet, ought to have no Weight with you” (Mass., House Jour., 1772–1773, p. 231). For the apparent source of the House arguments on this subject, see No. I, note 2, above.
11. Gorges' “Account” appears in his A Briefe Narration of the Originall Undertakings of the Advancement of Plantations into the Parts of America, London, 1658 (reprinted in MHS, Colls., 3d ser., 6 [1837]: 45–93).
12. This passage appears in Jeremiah Dummer (1681–1739), A Defence of the New-England Charters, London, 1721, p. 34; other passages quoted from Dummer in this paragraph appear at p. 34–36.
13. Lt. Gov. William Stoughton's letter of 1 Dec. 1677 appears in Hutchinson, Massachusetts Bay, ed. Mayo, 1:270.
14. George II, ch. 37.
15. “An Act for the more speedy Finishing of the Land-Bank or Manufactory Scheme,” Mass., Province Laws, 3:118. For the background of this legislation, see Hutchinson, Massachusetts Bay, ed. Mayo, 2:298–300.
16. That is, Vattel. See No. I, note 12, above.
17. These passages are taken from the second of John Locke's Two Treatises of Government, “An Essay Concerning the True Original, Extant, and End of Civil Government,” ch. 11. In the 5th edition, London, 1728, this passage appears in a note at p. 231–232. In the sections which follow, some phrases of Locke's have been incorporated into the passages which Locke quoted from Richard Hooker (1554?–1600), Lawes of Ecclesiasticall Politie.

Docno: ADMS-06-01-02-0098

Author: Adams, John
Author: Quincy, Josiah
Author: Palmer, Joseph
Recipient: Braintree, town of
Date: 1773-02-05

Petition to the General Court for Setting off “The Farms” From Dorchester to Braintree

Province of Massachusets Bay
To his Excellency Thomas Hutchinson Esqr. the Honorable his Majesty's Council and the honble. House of Representatives in General Court assembled February A.D. 1773.
The Petition of Josiah Quincy John Adams and Joseph Palmer in Behalf of themselves and the North Precinct in Braintree.
Humbly sheweth. That there is a certain Tract of Land in the Town of Dorchester lying on the south side of Neponset Rive[r] adjoining to said Precinct and bounded as follows,
Northwesterly by said River Southwesterly, by Sagam[ore]1 Creek (so called) to the Angle of meeting between the Towns of Dorchester Milton and Braintree South Easterly, by the Boundary Line between Dorchester and Braintree North Easterly by Billings's Creek (so called) towards the Head thereof to the dividing Line between Oliver Billings and Others and by said Line running about So. East to Braintree Bay.
That the Lands within the Limits aforesaid are owned as follows, vizt. by John Billings, Thomas Wells, Eliza. Glover, Ebenr. Glover { 347 } Oliver Billings Josiah Glover and Ezra Glover who are Inhabitants and Proprietors thereof.
That Jonathan Rawson, Edmund Billings, Nathl. Glover, and William Glover, of Braintree, (and a few Persons, living in Milton and Dorchester, Owners of an inconsiderable Quantity of Salt Marsh) are Proprietors and not Inhabitants.
That most of the Inhabitants and Proprietors first named have Pews in the Meeting House in said Precinct, and all of them and their Families have usually attended the publick Worship therein excepting Oliver Billings.
That in the year 1771. A Number of them prefer'd a Petition to the Town of Braintree desiring their Concurrence in a Petition they were resolved to prefer to the great and general Court that They and their Estates might be set off from Dorchester and annex'd to Braintree declaring their promise to pursue the same to Effect so far as should be in their Power: an authenticated Copy whereof is herewith presented.2
That, in pursuance of the above Resolution and Promise a Petition sign'd by all the Persons abovenamed excepting two or three inconsiderable Proprietors was prefer'd praying for the Reasons therein declared that they and their Estates within the Limits aforesaid might be set off from Dorchester and annexed to the Town of Braintree which has been under your Excellency and Honour's Consideration.3
That The Town of Dorchester at a Meeting legally assembled in the Year 1771 in order to diswade the said Petitioners from their Purpose and as a Motive to retract their Petition did remit to them their ministerial and School Taxes: And at another Town Meeting in the year 1772 passed the following Vote vizt. “Voted to allow the Inhabitants of the Farm's (so called) or any Part of them that will signify to the Courts Committee under their Hands that they are willing to stay in the Town, what they shall be assessed to the Ministry and Schools not only this Year but also for the Time to come so long as they remain in the The Town.”
That in Consequence of the foregoing Votes and other influencing Motives all the Petitioners aforesd. forgetting their Resolution and Promise abovementiond. excepting John Billings and Thos. Wells did sign and prefer a Petition to your Excellency and Honours wherein they retracted their former Request.4
Your Petitioners, therefore, beg Leave to submit the Premises to your Excellency and Honours Consideration together with their Prayer and humble Hope that you will be pleased to order the Lands { 348 } within the Limits aforesaid, and the Inhabitants thereon to be set off from Dorchester and annexed to the North Precinct in Braintree, so, as that their ministerial Taxes may be applyed to the Support of the publick Worship of God therein; and their School Taxes to the Education of their Children. Or otherwise relieve your Petitioners in any other manner though variant from the foregoing Prayer, as to your Excellency and Honours in your great Wisdom shall seem meet.5 And your Petitioners as in Duty bound shall ever pray &c.
[signed] Josiah Quincy
[signed] John Adams
[signed] J. Palmer
The foregoing Petition was rece'd and accepted by this preceinct at their Meeting Legally Assembled this Day and committed to Josiah Quincey Esqr. Chairman of the comtee. apointed and Impowerd to present the Same,
[signed] attest Tompson Baxter Dy. Cler.6
In Council June 3. 1773. Read, together with the an[swer t]hereto and orderd that Saml. Dexter and Walter Sp[ooner] Esqrs. with such as shall be joyned by the H[onb]le. House by a Committee to take the same into Consideration. Hear the Parties, and Report thereon. Sent down for Concurrence.
[signed] Jno. Cotton D. Secy.
In the House of Representatives June 14 1773. Read and Concurrd and Mr. Payne Cap Bacon and Coll Leonard are joynd.
[signed] T Cushing Spkr.
Petition of the north Precinct in Braintree June 25. 1773 In the House of Representatives Feby. 19 1773 Orderd. that the petitioners notify the Inhabitants of the Town of Dorchester (by Leaving an attested copy of this petition and order with the Clerk of said Town) to shew cause on the second Thursday of the next Session of the General Court why the prayer thereof should not be granted. Sent up for Concurrence. T. Cushing Spkr. In Council Feby. 19th. 1773. Read and Concurred.
[signed] Tho. Flucker Secy.
MS (M-Ar: vol. 14:674–677)).
1. MS torn here and below. Missing letters supplied within brackets.
2. This petition was read at the Braintree town meeting of 4 March 1771. The MS has not been found, but the town records describe it as “setting forth a resolution that they [the petitioners] have come into to Petition the Genll. Court that they and their estates may be sett of to Braintree Praying this Town { 349 } in case they should be annexed to Braintree that they may in their own persons be excepted from serving in the office of Constable &c.” On hearing the petition, the town voted that its signers “shall be exempted from serving in the office of a Constable, Provided they be annexed to Braintree as is above proposed” (Braintree Town Records, p. 431).
3. This petition, dated 3 April 1771, was signed by Edmund and John Billings; Ebenezer, Ezra, Josiah, Oliver, and William Glover; and Jonathan Rawson. It was read in the Council on 13 June 1771. The General Court ordered that the town of Dorchester be notified of the action and be required to show cause why the request not be granted. On 15 April 1772 Dorchester's reply and the 1771 petition were referred to a joint committee. On 25 June 1772 the same documents were read again and referred to a new joint committee (M-Ar:Legislative Council Records, 29:43–44, 158–159, 300–301; the petition of 3 April 1771 is in M-Ar:vol. 14:619).
4. This petition has not been found. However, the petition of 1771 was revived and recommitted in the Council on 12 Jan. 1773. When this committee made its report on 4 Feb., the Council gave leave to the original petitioners to withdraw their request, doubtless in view of a second petition drawn up after the concessions from Dorchester (M-Ar: Legislative Council Records, 29:378, 453).
5. This petition of 5 Feb. was first considered by the House on 11 Feb. (Mass., House Jour., 1772–1773, p. 223). Eight days later, the House, with the Council's concurrence, directed that the petitioners notify the town of Dorchester of their application and postponed consideration of the matter until the General Court convened after the May elections (same, p. 246; M-Ar: Legislative Council Records, 29:498–499). On 3 June the Council heard Dorchester's reply to the petition and named a joint committee to consider the problem, with the House concurring on 14 June (Mass., House Jour., 1773–1774, P. 54). On 25 June the Council voted to accept the committee's recommendation that the petition be disallowed, and the petition was sent down to the House (M-Ar:Legislative Council Records, 30:83; Mass., House Jour., 1773–1774, p. 86). The House Journal records no action on the recommendation, and the question apparently was not revived for nearly two decades. “The Farms” remained part of Dorchester until 1791, when the state government accepted another petition from the region, this time a joint request from “The Farms” and the North Precinct of Braintree that they be “set off” from Braintree, the new jurisdiction becoming the Town of Quincy (Pattee, Old Braintree and Quincy, p. 57–62 and notes). At stake for Braintree in 1773 was the securing of taxpayers who could help support the schools and the church. The loss of the North Precinct, where the Adamses lived, and the joining to it “The Farms” to form the new town of Quincy was an ironic outcome for Braintree.
6. This notation and those which follow are entered at the foot of the petition by the several officials whose signatures accompany them.

Docno: ADMS-06-01-02-0099

Author: Adams, John
Author: Boston Town Meeting
Date: 1773-05-05

Petition to Have Boston Accept Pleasant Street

Boston, ante 5 May 1773. MS (MB). John Adams was among the 52 signers who sought to have Pleasant Street “Accepted of and recorded as a Town street as is Usual.” The petition was approved by the Boston town meeting on 5 May 1773 (Boston Record Commissioners, 18th Report, p. 134). Pleasant Street ran south and southeastward from the southwest corner of the Common to join Orange Street, the main road { 350 } leading to the Neck (Lester J. Cappon, Barbara Bartz Petchenik, and John Hamilton Long, eds., Atlas of Early American History, Princeton, 1976, p. 9).
MS (MB).

Docno: ADMS-06-01-02-0100

Author: Hutchinson, Thomas
Author: Massachusetts, Governor of
Date: 1773-05-26

Elected Council Members Negatived by Governor Thomas Hutchinson

Boston, 26 May 1773. MS (M-Ar:vol. 50:449–450. Of the 24 elected by joint ballot of the House of Representatives and outgoing Council, John Adams was one of three rejected by Hutchinson. The others were Jerathmeel Bowers and William Phillips.
MS (M-Ar:vol. 50:449–450).

Docno: ADMS-06-01-02-0101

Author: Hawley, Joseph
Recipient: Adams, John
Date: 1773-06-30

From Joseph Hawley

[salute] Dear Sir

The letter inclosed herewith contains My Answer to the young Gentn. you was pleased recommend Me to as an Assistant in his Study of the Law and it is in the affirmative.1
I have heard Nothing of our Publick Affairs since I left Boston.2 I have only to intreat, That, as I know you Sir can do Much to influence them Nothing be done through Strife or vain glory—and that in all cases which will possibly admit of it, great Consideration and thorough discussion precede action i.e. in other Words that We look before We leap.

[salute] I am Sir with the Sincerest respect and greatest esteem Yr. Most Obedt. Humble Sert,

[signed] Joseph Hawley
RC (Adams Papers); addressed: “Mr. Adams.” Docketed in an unidentified hand, incorporating the address: “Major Hawley to Mr. Adams August 30. 1773 consenting to take Levy Lincoln into his office.”
1. Hawley's enclosed letter to Levi Lincoln of Hingham (1749–1820) has not been found. Lincoln, Harvard 1772, spent a year as clerk in the office of Daniel Farnham of Newburyport before applying to Hawley. Later in his distinguished career, Lincoln became Attorney General of the United States (DAB; Waldo Lincoln, History of the Lincoln Family, Worcester, Mass., 1923, p. 157).
2. Hawley represented Northampton in the House in 1773–1774. Although the first session was prorogued on 29 June 1773, Hawley's last committee appointment was recorded on 18 June, and it is likely he did not attend much later than that date (Mass., House Jour., 1773–1774, p. 66).

Docno: ADMS-06-01-02-0102

Author: Adams, John
Author: Attucks, Chrispus
Recipient: Thomas, Hutchinson
Date: 1773-07-19
Date: 1773-07-26

Chrispus Attucks to Thomas Hutchinson

Boston, 19 or 26 July 1773. Printed: JA, Diary and Autobiography, 2:84–85. Unpublished newspaper contribution.

Docno: ADMS-06-01-02-0103

Author: Adams, John
Date: 1773-08-07

Genealogical Note

Mr Henry Adams before the year 1640, I cant Say how long before, came from Bristol in England, with Eight Sons, and fixed himself at Braintree, in an House nearly opposite to the present Parsonage House of the Church of England, near the late Dr and the present Major Millers—being a Maltster by Trade he Set up a Malt House there upon a Piece of Land between the Brook on the North a Rivulet that crosses the Road on the East, the Road on the South, which Malt house is now Standing and has been in Possn of the Family, to this day. One of the Eight Sons went back to England, the other Seven remained in this Country, and from one or another of them are descended the Multitude who bear the Name of Adams in Boston, Braintree Medfield, Chelmesford, &c &c &c, one of the Eight Sons was named John. He lived upon the Place with his father. He had issue among others Samuel who was afterwards a Justice of the Peace and a Representative of Boston, who was the Father of the intrepid Patriot of the Same Name, who for a Course of Years has been Clerk of the House of Representatives and a Member for Boston, and Joseph, who lived, about a Mile out of the public Road near the Common where Several of his Posterity remain,—This Joseph was the Father of John Adams who lived and died near the foot of Pens hill, and left his two Houses and Estate there to his two Sons John, and Peter Boylstone, who are now living.1
[October 25th. 1764 John Adams the son above mentioned was married to Abigail Smith
July 14th. 1765 Abigail Adams the daughter of John Adams and Abigail his wife was born and (it being Sunday) was baptized in the afternoon by Mr. Smith at Braintree.
July 11th. 1767. John Quincy Adams son of John Adams and Abigail his wife was born and it being Saturday was baptized next day by Mr. Wibert at Braintree. The childs Great Grandfather for whom he was named was dying when the child was christened.2
December 28. 1768 Susanna daughter of the above John and Abigail was born (Wednesday) at Boston and the next Sabbath was baptized 1st. January 1769, by Dr. Cooper. Died Feby. 4th. 1770.
May 29. 1770 Charles son of said John and Abigail was born Thursday3 morning at Boston and was baptized by Dr. Cooper the next Sunday.
Sept. 15. 1772 Thomas Boylston Adams was born at Braintree { 352 } and Christened the next Sunday by Mr. Wibert. The childs great, great Grandfather was of the name of Thomas Boylston and built the Old house at Brooklyne where my mother was born; My mother had also an Uncle of the same name The father of the late Nich. Boylston Esq. and the present Thomas Boylston. Merchant.]
MS (MB). According to a notation made in 1819 by JQA on a copy of this lineage in an unknown hand, JA wrote the account here printed “in a blank page of Willard's Body of Divinity” (Adams Papers, Microfilms, Reel No. 603). The slight stain on the MS and the size and type of paper suggest that it probably was once a blank page in JA's copy of Samuel Willard, A Cormpleat Body of Divinity, now in the Boston Public Library. The continuation of the account, printed here in brackets, is taken from that part of the copy on which JQA noted “Entries made by my father.” JQA noted that his grandfather, Deacon John, had also made entries on another blank page, and JQA himself continued the entries. Except in copies, none of these other entries is known to survive.
1. JA confused the names of his great-grandfather and great-great-uncle and omitted one generation of the family lineage. Joseph (1626–1694), not John (1622–1706), was the son of Henry Adams who remained in Braintree with their father. Joseph's son Capt. John Adams (1661–1702) was the grandfather of the patriot Samuel Adams. Joseph's elder son, Joseph (1654–1737), was the father of JA's father, Deacon John Adams (1690–1761). For a more detailed and accurate account of the Adams line in Massachusetts, see JA, Diary and Autobiography, 3:254–255 and notes.
2. John Quincy (1689–1767), grandfather of AA.
3. 29 May was a Tuesday.

Docno: ADMS-06-01-02-0104

Author: Macaulay, Catharine
Recipient: Adams, John
Date: 1773-08

From Catharine Macaulay

[salute] Sr

I was very sorry to find by your favor of the 19 of Aprill1 that you had so many good reasons to allege for the Depriveing me thus long of the pleasure of your correspondence.
We simpathise so much in mind and Body that you cannot think me guilty of compliment when I say that I was much concerned at the account you gave me of the state of your health and the situation of your public affaires. There are some matters of importance which have come to light since the reception of your letter which will be I hope leading steps to the amendment if not the thorough reformation of that unjust system of policy which has too long prevailed in your Government and filled the hearts of your Patriots with melencholly apprehenssions for the future state of America.
I have just received intelligence that Governor Hutchinson has desired leave to resign.2 The wicked have fallen into the pit they have { 353 } digged for others. May Hutchinsons example be a warning to the rest of your Countrymen, for if American liberty is destroyed the Destruction will be effected by the Vipers which she nourishes in her own Bosom. Your controversy with General Bratle afforded me a good deal of amusement. I am fond of the subject when treated with any degree of perspicuity.3
Plausible argument has a great influence on the judgement of the vulgar and on that consideration had you not received a challenge the pains you took in the controversy was undoubtedly well bestowed.
In the next Letter which I have the honor of receiveing from you I hope to hear that the appearance of a renovation of the union betwixt the Colonies is become a reality. It is the Jealousies and Devissions which has always subsisted among you that has encouraged Ministers to attempt those innovations which if submitted to naturally lead to the subverssion of your Liberties.

[salute] I am Sr with Great esteem Your Very Obed Humble Servt,

[signed] Catharine Macaulay
RC (Adams Papers); addressed: “To <Saml.> John Adams Esqr Boston pr favour of Mr Clarke”; endorsed: “recd by the Hand of Mr Clark, 20 Novr. 1773”; docketed in an unidentified hand: “Mrs. MaCauley 1773.”
1. Not found.
2. Hutchinson's request for leave from his duties as governor was dated 26 June; Dartmouth acknowledged receipt of this letter on 17 Aug. (Docs. of Amer. Rev., calendar entries 1300 and 1407, 4:338, 363); for the background of Hutchinson's decision, see Bailyn, Thomas Hutchinson, chs. VI and VII.
3. The editors have supplied all punctuation within this paragraph. For JA's exchanges with Brattle, see 11 Jan. – 22 Feb., above.

Docno: ADMS-06-01-02-0105

Author: Wilson, Thomas
Recipient: Adams, John
Date: 1773-09-21

Adams Elected to Membership in Supporters of the Bill of Rights

[salute] Sir

Supporters of the Bill of Rights.1
In pursuance of a Resolution of this Society, I am to signify to you that you have this Day been duly elected a Member thereof.

[salute] I am, Sir! Your most humble Servant,

[signed] Thomas Wilson Chairman.
[signed] Signed by his order, John Wilkes
N.B. Subscriptions are received by frederick bull, Esq; Treasurer to this society, at his House in Leadenhall-Street, No. 96.2
{ 354 }
Printed form on folded sheet approx. 13 by 8 inches (Adams Papers); addressed: “John Adams Esqr. Boston”; endorsed on address leaf: “Jan'y 25. 74 Society of bill of rights.” For letter of transmittal on the verso, see note 2, below.
1. Presumably at the suggestion of John Horne Tooke, the Society of Supporters of the Bill of Rights had been started in 1769 while John Wilkes was in prison to raise money for his debts and election expenses (Tooke in DNB). By 1771, the society, split over the issue of raising money for Wilkes, had announced a reform program that included reducing the length of life of Parliaments, more nearly equal representation, and decreasing the number of placemen in the Commons (J. R. Pole, Political Representation in England and the Origins of the American Republic, N.Y., 1966, p. 428–429). No record has been found to show whether JA contributed money to the cause.
2. On the verso appears the following letter, endorsed at the foot, “rec'd. Jan. 25 1774”:

[salute] Sir

I have the honor of transmitting you the inclosed Resolution of the Society of the Bill of Rights which was unanimous.
It affords me great pleasure to find so very respectable a Gentleman of America, disposed to unite with the Friends of Liberty in England for our mutual safety and Defence.
I am most respectfully your very Obedient Humble Servant,
[signed] Stephen Sayre
Sayre, whom JA may have met during his visits to New England in 1766 and 1772, credited himself with being the “chief founder” of the Supporters, but he tended greatly to exaggerate his accomplishments and importance (Sibley-Shipton, Harvard Graduates, 14:207). For a brief sketch of Sayre and bibliographic references for his career, see Adams Family Correspondence, 4:264–265, note.

Docno: ADMS-06-01-02-0106

Author: Warren, Mercy Otis
Recipient: Adams, John
Date: 1773-10-11

From Mercy Otis Warren

To Mr. Adams1

Though short! Far short my pen of the sublime,

Fate urges on and bids me write in Rhyme,

And hope my Friend the Effort will Excuse,

Nor Blame the Heart: but Chide the Niggard Muse.

Is it A Wild Enthusiastick Flame,

That swells the Bosom panting after Fame,

Dilates the Mind, while Ev'ry sails unfurl'd,

To Catch the plaudit of a Gazing World.

Is there no permanent, no steady pole,

To point us on, and Guide the Wandring soul,

Does prejudice, and passion, Rule Mankind.

Are there no springs that actuate the Mind,

Whose deep Maeanders, have some Nobler source,

Than Vain self Love; to Guide their Winding Course.

{ 355 }

That Gen'rous ardor stile'd Benevolence,

Is it an art to Gratify the sense,

Or Give imagination further scope,

That aeiry queen, who Guides the Helm of hope,

Holds A False Mirrour to the Dazzel'd sight,

A Dim perspective, A Delusive light,

That swells the Bubbles of Lifes shortned span,

While Wisdom smiles at the Deluded Man,

Wrap'd in Extaticks, by imagine'd Fame,

When the next Moment, Will Blot out his Name.

Cant the Wise precepts, of A platos school,

(or shall I Name a still more perfect Rule,)

Rouze up the soul, to that Exalted Height,

To Walk by Reason, And Reject the Cheat,

Or are the Fetters that Enslave the Mind

Of that Firm Base, that Adamantine kind,

So Firmly Lock'd, and so securely Reve'd,

The more we search, the More are we Deceived,

Are truth, and Friendship, no where to be Found,

And patriot Virtue, Nothing but A sound.

Then May A Cesar Equal Honours Claim,

With Noble Brutus, Celebrate'd Name,

For the poor tribute, of a short applause,

one stabs A tyrant trampling on the Laws,

While the proud Despot, Marks his Baneful Way

With Virtues tears and triumphs or'e his prey,

Self, the sole point in which they'r both agreed,

By this Romes shackled, or by this shes Free'd,

Self Love, that stimulous to Noblest aim,

Bids Nero Light the Capital in Flame,

Or Bids H—— sell his Native Land

And his Vile Brother Lend his perjure'd Hand,2

While Fredom weeps, and Heavn Delays to shed,

Its awful Vengeance on the Guilty Head.

If such is Life, And Fancy throw the Bowl,

If appetite and Caprice Rule the Whole,

If Virtuous Friendship, has no solid Base,

But False Deception, holds the sacred place,

Then from thy Mem'ry, Race out Ev'ry Line,

Nor Recolect one sentiment of mine,

{ 356 }

But Dark oblivions sable Veil Draw ore,

And I'll Forbear to interupt the more.

For if Vice Boasts, her origen the same,

With social joy and patriotic Flame,

Then I must Wish to bid the World Farewell,

Turn Anchoret, and Choose some Lonely Cell,

Beneath some peaceful Hermitage Reclined,

To Weep the Misery, of all Mankind,

Till Days and years! till time shall Cease to roll,

And Truth Eternal strikes the Won'dring Soul.

MS (Adams Papers) in the hand of Mercy (Otis) Warren. This unsigned poem was doubtless an enclosure in a letter which has since been lost.
1. For Mrs. Warren's relationship with the Adamses, see Adams Family Correspondence, 1:84, note and references there.
2. This reference is not to Gov. Hutchinson's brother, Foster, but to his late wife's brother-in-law, Lt. Gov. Andrew Oliver (1706–1774). Oliver was first charged with “perjury” by his political enemies for statements in his depositions concerning the debates of the Council on the Boston Massacre, 1770. Oliver's good faith was impugned again, in 1773, when his letters to Thomas Whately were published in the province. Disclosure of the “Whately letters” led the House of Representatives to petition the King on 23 June for the removal of Hutchinson and Oliver (Sibley-Shipton, Harvard Graduates, 7:405–411; Mass., House Jour., 1773–1774, p. 75). For a detailed analysis of the impact of the Hutchinson-Oliver correspondence with Whately, see Bailyn, Thomas Hutchinson, p. 223–257; for JA's contemporary comments on the letters, see Diary and Autobiography, 2:79–80, and note at 80–81.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/