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-288sions 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, 290that 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 291majora 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 292question 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 293whatsoever, 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 294had 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.

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, 295than 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. 296by 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 297commissions either way as he pleased, it will follow that the governor and council have power to grant them either way. And if this is true, it is to be hoped General Brattle, will have influence enough, to prevail that the commissions for the future may be granted expressly quam diu se bene gesserint. But until that is done, even upon these principles, our judges hold their places only at will.

However, we must examine yet further, whether the crown, in King William's time or any other, ever had its election, to grant the patents either way?

Lord Coke's authority has been quoted before, several times, and it seems to be very explicit, that a grant of a judicial office for life, which had usually been granted at will is void. 2. Hawkins, p. c. 2 ss. 5.3 “Nay it is said by some, that the king is so far restrained by the ancient forms in all cases of this nature, that his grant of a judicial office for life, which has been accustomed to be granted only at will is void.” And in ss. 6. “And the law is so jealous of any kind of innovation in a matter so highly concerning the safety of the subject, as not to endure, any, the least deviation from the old known, stated forms, however immaterial it may seem, as will be more fully shewn. c. 5. ss. 1.”

I have not been able to find any direct adjudication, of any of the courts of common law or any absolute determination of all the judges in the exchequer chamber, that a grant to a judge of king's bench, or common bench, quam diu se bene gesserint is void, but besides what is before cited from Coke and Hawkins, it is certain, that whenever such grant has been made, the king who made it considered it as void. King Henry thought it was void, when he threw off his faithful Hubert de Burgo, Charles the first thought it void, and so did his parliament, in 1642, as appears by the twelfth article transmitted by them to the king at York, and Charles the second, and James the second, thought it void, as appears many ways by their displacing Judge Archer and others. And it appears also by King Charles's displacing the earl of Clarendon, for there is no reason, why a grant of the office of chancellor for life should be void, as Lord Coke says expressly that it is, and a grant of the office of chief justice in the same manner be good.

1. Sid. 338. Mich. 19. car. 2. B. R.4 “Note that this vacation Sir Edward Hyde Earl of Clarendon and Lord Chancellor of England was deposed by the king from being chancellor, altho' he had a patent for his life, because the taking away of the seal is a determination of the office, as 4 inst.”

Here the grant for life is considered as void, and Lord Coke's authority is quoted for it. I suppose where he says a grant of the office of chancellor for life is void because it never was so granted, i.e. as I understand it, it never was customarily granted. For it is not literally true, that it never was so granted. It has been granted for life, almost if not quite as often, as the judges offices ever were before the Revolution. It may be proper to shew this.

Thomas Lord Ellesmere, in his observations concerning the office of the Lord Chancellor,5 p. 15. says, “The election or creation of chancellors and keepers, &c. was of more than one sort. Sometimes and for the most part the chancellor was elected by the king durante beneplacito, and put in power of his office by the delivery of the seal, and sometimes the chancellor was made by patent to hold that place or office during his life, as Walter Grey bishop of Chester6 in the time of king John, and others, some, and the most part elected by the king only; some had patents of the king, and were confirmed chancellors by consent of the three estates, as were Ralph Nevil, bishop of Chester7 in the time of king Henry the third, with whom the prince being offended as reports Matthew Paris, and demanding the seal at his hands, he refused to yield the same unto him, affirming that as he had received it by the common consent of the nobility, so he would not, without like warrant resign the same, and in the days of the same king, it was told him by all the Lords spiritual and temporal that of ancient time, the election and disposition of the chief justice, chancellor and treasurer, belonged to the parliament, and although the king in displeasure, did take the seal from him, and delivered 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 299meant no more than this, that some king of ancient time, had in some few instances, condescended to take the advice of his wittenagemote, or assembly of wisemen, concerning the appointment and removal of such officers: But a few particular examples of royal condescension could form no established rule, and according to the notions of those feudal ages, could never alienate from the prince, any of his regalia majora.

Lord Ellesmere goes on, “And let us note by the way, three several patents were granted unto this Ralph Nevil, two whereby he is ordained to be chancellor, and the third for the custody of the seal, all remaining among the records of the tower, in haec verba.”8

Henricus rex, &c. Archiepiscopis, &c. Sciatis, nos dedisse, concessisse, et hac charta nostra confirmasse, venerabili Randolpho cicistrensi episcopo cancellariam nostram habend. et tenend. toto tempore vitae suae cum omnibus pertinentibus, &c.

His second patent was of this form. Henricus, &c. Archiepiscopis, &c. Sciatis nos concessisse, et hac charta nostra confirmasse, pro nobis et heredibus nostris venerab. pri. Randolpho cicistrensi episcopo, cancellario nostro cancellariam angliae, toto tempore vitae suae, cum omnibus pertinentibus, &c. Quare volumus et firmiter praecipimus pro nobis, et haeredibus nostris, quod praedictus episcopus habeat ipsam cancellariam, toto tempore vitae suae, &c.

This is the transcript of his third patent the same day and year. Henricus, &c. Archiepiscopis, &c. Sciatis nos concessisse, et hac carta nostra confirmasse venerabili patri Randolpho cicest: Episcopo cancellar, nostro, custodiam sigilli nostri toto tempore vitae suae, cum omnibus, &c. ita quod sigillum illud portat et custodiat, in propria persona sua, quam diu valecerit voluerit.

And in page 13,9 Lord Ellesmere says, “Sometimes the chancellors of England were elected by the nobility, as Nicolas of Eli was made chancellor by the barons; but this seemed a usurpation by them, for they were afterwards, the most of them most sharply chastized, and the said Nicolas deprived by Henry the third, disdaining to have officers of that estate appointed him by his subjects.”

Thus we see that a few examples of appointments for life to the office of chancellor, have not been sufficient to establish the power of the crown to grant it in that manner, but it is often said in our books to be void, and in the case of Lord Clarendon was presumed to be so. Why then should a few examples of judges constituted quam diu se bene gesserint, in the reigns of Charles the first and second, and king William determine them to be good?

I think it has been determined by all the judges of England, that time of memory should be limited to the reign of king Richard the first, and every rule of common law, must be beyond the time of memory, that is as ancient as the reign of that king, and continued down generally until it is altered by authority of parliament.

Sir James Dyer at the end of his reports,10 fol. 378, has given us the names of all the chief justices of the King's bench, from the twenty second year of Edward the third to the sixteenth year of Queen Elizabeth, viz. Thorp, Shareshull, Green, Knyvett and Cavendish under Edward the third—Tresillian and Clopton under Richard the second—Gascoign under Henry the fourth—Hankford under Henry the fifth—Cheney Cheyne, June Inyn and Fortescue under Henry the sixth—Markham and Billing under Edward the fourth—Hussey under Richard Third—Fineux Fyneux under Henry the seventh—Montague, Leister Lyster and Cholmley, under Henry the eighth—Bromeley, Portman and Saunders under Queen Mary—Catlyne Catlin and Wray under Elizabeth.

And also the names of all the chief justices of the common pleas from the year 1399, viz. the last year of the reign of Richard the second, to the twenty fourth of Queen Elizabeth, viz. Heiringe Thirning under H. 4. Norton H. 5. Babington, Joyn Inyn, Cosmore Cotesmore, Newton and Prisot under H. 6. Danby and Brien Bryan E. 4. Woode, Frowicke Frowyk and Rede H. 7. Erneley Ernle, Briednell Brudenell, Norwiche, Baldwin, Montague, H. 8. Morgan, Brooke and Browne P. and Ma. Dyer and Anderson, Eliz.

The writs or patents of all these chief justices remain enrolled, in the courts of King's bench and common pleas, and also enrolled in chancery, and every one of them is durante beneplacito—as I conclude, because Dyer has given us the tenure of his own commission, Rep. 150. p. 159. a. Ego Jac. Dyer, constitutus fui unus justiciariorum ad placita coram rege et regina tenenda, per L. patentes gerentes datum apud Greenwich 23 die Aprilis, durante beneplacito Regi, &c.—and because, the foregoing lists and the records from whence they were taken, were familiarly known to Sir Edward Coke, and he says that form had been used and approved without any variation for many successions of ages, even from the time of Edward the first, and long before. It may therefore be safely affirmed, that there is no record of any justiciary, or chief justice of king's bench or common pleas, whose writ or patent was not durante beneplacito, quite down to the year 1640, in the reign of Charles the first. I say there is no record of any, because the story of Hubert de Burgo has no record extant to 301prove 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 302Moor'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-303struments 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.”