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 says, “When any one judge of the King's bench dies, resigns, or is superceded, the King, with the advice of his council, makes choice of one of the Serjeants at law, whom he constitutes a judge, by his letters patent, in the room of the judge so deceased, resigning or superceded:” And afterwards he says “it is no degree in law, but only an office and a branch of magistracy, determinable on the King's good pleasure.”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.

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 269to 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 270power 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 271revolution, 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 272judges 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

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.