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 259capitalem, 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 260the 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 261misbehaviour, 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.

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 262charged, 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 263of 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 264wish 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-265mined 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 266instance, 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 267honour, 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.