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ON PRIVATE REVENGE. NO. III. - John Adams, The Works of John Adams, vol. 3 (Autobiography, Diary, Notes of a Debate in the Senate, Essays) 
The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams (Boston: Little, Brown and Co., 1856). 10 volumes. Vol. 3.
Part of: The Works of John Adams, 10 vols.
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ON PRIVATE REVENGE.
to the printers.1
It seems to be necessary for me, (notwithstanding the declaration in my last) once more to digress from the road of agriculture and mechanic arts, and to enter the list of disputation with a brace of writers in the Evening Post, one of whom has subscribed himself X, and the other W. I shall agree with the first of these gentlemen, that “to preach up non-resistance with the zeal of a fanatic,” would be as extraordinary as to employ a bastile in support of the freedom of speech or the press, or an inquisition in favor of liberty of conscience; but if he will leave his own imagination, and recur to what I have written, he will not find a syllable against resistance. Resistance to sudden violence, for the preservation not only of my person, my limbs and life, but of my property, is an indisputable right of nature which I never surrendered to the public by the compact of society, and which, perhaps, I could not surrender if I would. Nor is there any thing in the common law of England, (for which Mr. X supposes I have so great a fondness,) inconsistent with that right. On the contrary, the dogmas of Plato, the maxims of the law, and the precepts of Christianity, are precisely coincident in relation to this subject.
Plato taught that revenge was unlawful, although he allowed of self-defence. The divine Author of our religion has taught us that trivial provocations are to be overlooked; and that if a man should offer you an insult, by boxing one ear, rather than indulge a furious passion and return blow for blow, you ought even to turn the other also. This expression, however, though it inculcates strongly the duty of moderation and self-government upon sudden provocations, imports nothing against the right of resistance or of self-defence. The sense of it seems to be no more than this: that little injuries and insults ought to be borne patiently for the present, rather than run the risk of violent consequences by retaliation.
Now, the common law seems to me to be founded on the same great principle of philosophy and religion. It will allow of nothing as a justification of blows, but blows; nor will it justify a furious beating, bruising, and wounding, upon the provocation of a fillip of the finger, or a kick upon the shins; but if I am assaulted, I can justify nothing but laying my hands lightly upon the aggressor for my own defence; nothing but what was absolutely necessary for my preservation. I may parry or ward off any blow; but a blow received is no sufficient provocation for fifty times so severe a blow in return. When life, which is one of the three favorites of the law, comes into consideration, we find a wise and humane provision is made for its preservation. If I am assaulted by another, sword in hand, and if I am even certain of his intention to murder me, the common law will not suffer me to defend myself, by killing him, if I can avoid it. Nay, my behavior must absolutely be what would be called cowardice, perhaps, by Mr. X and W, though it would be thought the truest bravery, not only by the greatest philosophers and legislators, but by the best generals of the world; I must run away from such an assailant, and avoid him if I have room, rather than stand my ground and defend myself; but if I have no room to escape, or if I run and am pursued to the wall or into a corner where I cannot elude his fury, and have no other way to preserve my own life from his violence, but by taking his there, I have an indisputable right to do it, and should be justified in wading through the blood of a whole army, if I had power to shed it and had no other way to make my escape.
What is said by Mr. W, that “if a gentleman should be hurried by his passions so far as to take the life of another, the common law will not adjudge it murder or manslaughter, but justifiable homicide only,”—by which he must mean, if in truth he had any meaning at all, that killing upon a sudden provocation is justifiable homicide,—is a position in comparison of which the observations of the grave-digger upon the death of the young lady, in Shakspeare’s Hamlet, ought to be ranked among the responsa prudentium.
Every catechumen in law, nay, every common man, and even every porter upon the dock, that ever attended a trial for murder, knows that a sudden provocation raising a violent passion, where there is no precedent malice, is, in consideration of human frailty, allowed to soften killing from murder down to manslaughter; but manslaughter is a heinous crime, and subjected to heavy punishments.
Such is the wisdom and humanity of English law; upon so thorough a knowledge of human nature is it founded, and so well is it calculated to preserve the lives and limbs of men and the interior tranquillity of societies! I shall not dispute with Mr. X my affection for this law, in preference to all other systems of law that have ever appeared in the world. I have no connection with parishioners, nor patients, nor clients, nor any dependence upon either for business or bread; I study law as I do divinity and physic; and all of them as I do husbandry and mechanic arts, or the motions and revolutions of the heavenly bodies; or as I do magistracy and legislation; namely, as means and instruments of human happiness. It has been my amusement for many years past, as far as I have had leisure, to examine the systems of all the legislators, ancient and modern, fantastical and real, and to trace their effects in history upon the felicity of mankind; and the result of this long examination is a settled opinion that the liberty, the unalienable, indefeasible rights of men, the honor and dignity of human nature, the grandeur and glory of the public, and the universal happiness of individuals, were never so skilfully and successfully consulted as in that most excellent monument of human art, the common law of England; a law that maintains a great superiority, not only to every other system of laws, martial or canon, or civil and military, even to majesty itself; it has a never-sleeping jealousy of the canon law, which in many countries, Spain in particular, has subjected all officers and orders, civil and military, to the avarice and ambition, the caprice and cruelty of a clergy; and it is not less watchful over the martial law, which in many cases and in many countries, France in particular, is able to rescue men from the justice of the municipal laws of the kingdom; and I will own, that to revive in the minds of my countrymen a reverence for this law, and to prevent the growth of sentiments that seemed to me to be in their tendency destructive of it, especially to revive a jealousy of martial laws and cavalier-like tempers, was the turn which I designed to serve for myself and my friends in that piece which has given offence to X and W.
A certain set of sentiments have been lately so fashionable, that you could go into few companies without hearing such smart sayings as these,—“If a man should insult me, by kicking my shins, and I had a sword by my side I would make the sun shine through him;”—“if any man, let him be as big as Goliah, should take me by the nose, I would let his bowels out with my sword, if I had one, and if I had none, I would beat his brains out with the first club I could find.” And such tempers have been animated by some inadvertent expressions that have fallen from persons of higher rank and better sentiments. Some of these have been heard to say, that “should a man offer a sudden insult to them, they could not answer for themselves, but they should lay him prostrate at their feet in his own blood.” Such expressions as these, which are to be supposed but modest expressions of the speaker’s diffidence of his own presence of mind, and government of his passions, when suddenly assaulted, have been taken for a justification of such returns to an insult, and a determination to practise them upon occasion. But such persons as are watching the lips of others for wise speeches, in order to utter them afterwards as their own sentiments, have generally as little of understanding as they have of spirit, and most miserably spoil, in reporting, a good reflection. Now, what I have written upon this subject was intended to show the inhumanity of taking away the life of a man, only for pulling my nose or boxing my ear; and the folly of it too, because I should be guilty of a high crime, that of manslaughter at least, and forfeit all my goods, besides receiving a brand of infamy.
But I have not yet finished my history of sentiments. It has been said by others that “no man ought to receive a blow without returning it;” “a man ought to be despised that receives a cuff without giving another in return.” This I have heard declared for a sober opinion by some men of figure and office and importance. But I beg leave to repeat it,—this is the tenet of a coxcomb and the sentiment of a brute; and the horse, the bull, and the cock, that I mentioned before, daily discover precisely the same temper and the same sense of honor and decency. If, in walking the streets of this town, I should be met by a negro, and that negro should lay me over the head with his cudgel, should I think myself bound in honor or regard to reputation to return the blow with another cudgel? to put myself on a level with that negro, and join with him in a competition which was most expert and skilful at cudgels? If a mad dog should meet me and bite me, should I think myself bound in honor, (I mean before the poison had worked upon me enough to make me as mad as the dog himself,) to fall upon that dog and bite him again? It is not possible for me to express that depth of contempt that I feel for such sentiments, and for every mortal that entertains them; and I should choose to be “the butt, the jest, and contempt” of all companies that entertain such opinions, rather than to be in their admiration or esteem. I would take some other way to preserve myself and other men from such insolence and violence for the future; but I would never place myself upon a level with such an animal for the present.
Far from aiming at a reputation for such qualities and accomplishments as those of boxing or cuffing, a man of sense would hold even the true martial qualities, courage, strength, and skill in war, in a much lower estimation than the attributes of wisdom and virtue, skill in arts and sciences, and a true taste to what is right, what is fit, what is true, generous, manly, and noble, in civil life. The competition between Ajax and Ulysses is well known.
And we know in whose favor the prize was decreed.
I shall not be at the pains of remarking upon all the rodomontade in the two pieces under consideration, and Mr. X and Mr. W, and the whole alphabet of writers may scribble as many volumes as the twenty-four letters are capable of variations, without the least further notice from me, unless more reasoning and merit appear in proportion to the quantity of lines than is to be found in those two pieces. But since I have made some remarks upon them, it will, perhaps, before I conclude, be worth my while to mention one thing more in each. Mr. X tells us “that cases frequently occur where a man’s person or reputation suffer to the greatest degree, and yet it is impossible for the law to make him any satisfaction.”
This is not strictly true; such cases but seldom occur, though it must be confessed they sometimes do; but it seldom happens, very seldom indeed, where you know the man who has done you the injury, that you can get no satisfaction by law; and if such a case should happen, nothing can be clearer than that you ought to sit down and bear it; and for this plain reason, because it is necessary, and you cannot get satisfaction in any way. The law, by the supposition, cannot redress you; and you cannot, if you consider it, by any means redress yourself. A flagellation in the dark would be no reparation of the injury, no example to others, nor have any tendency to reform the subject of it, but rather a provocation to him to contrive some other way to injure you again; and of consequence would be no satisfaction at all to a man even of that false honor and delicacy of which I have been speaking, unless he will avow an appetite for mere revenge, which is not only worse than brutal, but the attribute of devils; and to take satisfaction by a flagellation in public would be only, in other words, taking a severe revenge upon yourself; for this would be a trespass and a violation of the peace, for which you would expose yourself to the resentment of the magistrate and the action of the party, and would be like running your sword through your own body to revenge yourself on another for boxing your ears; or like the behavior of the rattle-snake that will snap and leap and bite at every stick that you put near him, and at last when provoked beyond all honorable bearing, will fix his sharp and poisonous teeth into his own body.
I have nothing more to add, excepting one word of advice to Mr. W and all his readers, to have a care how they believe or practise his rule about “passion and killing,” lest the halter and the gibbet should become their portion; for a killing that should happen by the hurry of passion would be much more likely to be adjudged murder than justifiable homicide only. Let me conclude, by advising all men to look into their own hearts, which they will find to be deceitful above all things and desperately wicked. Let them consider how extremely addicted they are to magnify and exaggerate the injuries that are offered to themselves, and to diminish and extenuate the wrongs that they offer to others. They ought, therefore, to be too modest and diffident of their own judgment, when their own passions and prejudices and interests are concerned, to desire to judge for themselves in their own causes, and to take their own satisfactions for wrongs and injuries of any kind. NAu.
A DISSERTATION ON THE CANON AND FEUDAL LAW.
The occasion of the production of this Dissertation, has already been explained in the Diary of the author.1 It was printed in the month of August of the year 1765, in the Boston Gazette, there divided into four numbers, and without any title whatever. It attracted much attention in Massachusetts and in England, where it was attributed to Jeremy Gridley, then well known as at the head of the bar in the Colony. Thomas Hollis immediately procured it to be reprinted in the London Chronicle, and three years later, in 1768, caused it to be published by Almon, at the end of a small octavo volume, entitled “The True Sentiments of America,” with the caption by which it has ever since been known. In this volume, it is ascribed to Mr. Gridley; but Mr. Hollis afterwards endeavored to correct his mistake by writing at the end of his copy these words: “This Dissertation on the Canon and Feudal Law was written by John Adams, Esq., a young gentleman of the law, who lately removed from the country to Boston. He has a large practice, and will probably be soon at the head of his profession.” So great was the admiration it excited in him, that at another time, he made the following memorandum, which is found transcribed by Dr. Andrew Eliot, in his copy of the book, now in the possession of Mr. Everett.—2
“The Dissertation on the Canon and Feudal Law is one of the very finest productions ever seen from North America.
“By a letter from Boston, in New England, signed Sui Juris, inserted in that valuable newspaper, the London Chronicle, July 19, it should seem the writer of it, happily, yet lives. T. H.”
This Dissertation was reprinted in London, though without date of any kind, probably in the year 1782, and in Philadelphia, by Robert Bell, at the end of a tract upon another subject, in 1783.
It appears to merit consideration rather as a searching, analytical sketch, than as a complete performance. In the brief compass of a few pages are crowded thoughts sufficient to furnish as much material as is found in some thick quartos. But they are justly denominated by the author, hints for future inquiries, rather than a satisfactory theory. They should be weighed in connection with his remote position, the time of writing, and the general current of thought of even the educated society around him. By this only can the natural energy and expansion of the author’s mind be estimated. Nor yet can it be said, that the reflections contained in the production were thrown off hastily and with little consideration. There is evidence to show that they were slowly and carefully matured and developed. It has already been mentioned, that the first draught is found incorporated in the writer’s Diary for the month of February, 1765. But no publication took place until July and August; the result then discloses the extent of the changes, enlargements, and improvements, which the work had in the interval undergone. As not infrequently happens, however, in this process, one strong passage was lost by it, which at this time must be regarded as the most deserving of any to be remembered. This will be found appended as a note to the place where it belonged.
“Ignorance and inconsideration are the two great causes of the ruin of mankind.” This is an observation of Dr. Tillotson, with relation to the interest of his fellow men in a future and immortal state. But it is of equal truth and importance if applied to the happiness of men in society, on this side the grave. In the earliest ages of the world, absolute monarchy seems to have been the universal form of government. Kings, and a few of their great counsellors and captains, exercised a cruel tyranny over the people, who held a rank in the scale of intelligence, in those days, but little higher than the camels and elephants that carried them and their engines to war.
By what causes it was brought to pass, that the people in the middle ages became more intelligent in general, would not, perhaps, be possible in these days to discover. But the fact is certain; and wherever a general knowledge and sensibility have prevailed among the people, arbitrary government and every kind of oppression have lessened and disappeared in proportion. Man has certainly an exalted soul; and the same principle in human nature,—that aspiring, noble principle founded in benevolence, and cherished by knowledge; I mean the love of power, which has been so often the cause of slavery,—has, whenever freedom has existed, been the cause of freedom. If it is this principle that has always prompted the princes and nobles of the earth, by every species of fraud and violence to shake off all the limitations of their power, it is the same that has always stimulated the common people to aspire at independency, and to endeavor at confining the power of the great within the limits of equity and reason.
The poor people, it is true, have been much less successful than the great. They have seldom found either leisure or opportunity to form a union and exert their strength; ignorant as they were of arts and letters, they have seldom been able to frame and support a regular opposition. This, however, has been known by the great to be the temper of mankind; and they have accordingly labored, in all ages, to wrest from the populace, as they are contemptuously called, the knowledge of their rights and wrongs, and the power to assert the former or redress the latter. I say rights, for such they have, undoubtedly, antecedent to all earthly government,—Rights, that cannot be repealed or restrained by human laws—Rights, derived from the great Legislator of the universe.
Since the promulgation of Christianity, the two greatest systems of tyranny that have sprung from this original, are the canon and the feudal law. The desire of dominion, that great principle by which we have attempted to account for so much good and so much evil, is, when properly restrained, a very useful and noble movement in the human mind. But when such restraints are taken off, it becomes an encroaching, grasping, restless, and ungovernable power. Numberless have been the systems of iniquity contrived by the great for the gratification of this passion in themselves; but in none of them were they ever more successful than in the invention and establishment of the canon and the feudal law.
By the former of these, the most refined, sublime, extensive, and astonishing constitution of policy that ever was conceived by the mind of man was framed by the Romish clergy for the aggrandisement of their own order.* All the epithets I have here given to the Romish policy are just, and will be allowed to be so when it is considered, that they even persuaded mankind to believe, faithfully and undoubtingly, that God Almighty had entrusted them with the keys of heaven, whose gates they might open and close at pleasure; with a power of dispensation over all the rules and obligations of morality; with authority to license all sorts of sins and crimes; with a power of deposing princes and absolving subjects from allegiance; with a power of procuring or withholding the rain of heaven and the beams of the sun; with the management of earthquakes, pestilence, and famine; nay, with the mysterious, awful, incomprehensible power of creating out of bread and wine the flesh and blood of God himself. All these opinions they were enabled to spread and rivet among the people by reducing their minds to a state of sordid ignorance and staring timidity, and by infusing into them a religious horror of letters and knowledge. Thus was human nature chained fast for ages in a cruel, shameful, and deplorable servitude to him, and his subordinate tyrants, who, it was foretold, would exalt himself above all that was called God, and that was worshipped.
In the latter we find another system, similar in many respects to the former;1 which, although it was originally formed, perhaps, for the necessary defence of a barbarous people against the inroads and invasions of her neighboring nations, yet for the same purposes of tyranny, cruelty, and lust, which had dictated the canon law, it was soon adopted by almost all the princes of Europe, and wrought into the constitutions of their government. It was originally a code of laws for a vast army in a perpetual encampment. The general was invested with the sovereign propriety of all the lands within the territory. Of him, as his servants and vassals, the first rank of his great officers held the lands; and in the same manner the other subordinate officers held of them; and all ranks and degrees held their lands by a variety of duties and services, all tending to bind the chains the faster on every order of mankind. In this manner the common people were held together in herds and clans in a state of servile dependence on their lords, bound, even by the tenure of their lands, to follow them, whenever they commanded, to their wars, and in a state of total ignorance of every thing divine and human, excepting the use of arms and the culture of their lands.
But another event still more calamitous to human liberty, was a wicked confederacy between the two systems of tyranny above described. It seems to have been even stipulated between them, that the temporal grandees should contribute every thing in their power to maintain the ascendency of the priesthood, and that the spiritual grandees in their turn, should employ their ascendency over the consciences of the people, in impressing on their minds a blind, implicit obedience to civil magistracy.
Thus, as long as this confederacy lasted, and the people were held in ignorance, liberty, and with her, knowledge and virtue too, seem to have deserted the earth, and one age of darkness succeeded another, till God in his benign providence raised up the champions who began and conducted the Reformation. From the time of the Reformation to the first settlement of America, knowledge gradually spread in Europe, but especially in England; and in proportion as that increased and spread among the people, ecclesiastical and civil tyranny, which I use as synonymous expressions for the canon and feudal laws, seem to have lost their strength and weight. The people grew more and more sensible of the wrong that was done them by these systems, more and more impatient under it, and determined at all hazards to rid themselves of it; till at last, under the execrable race of the Stuarts, the struggle between the people and the confederacy aforesaid of temporal and spiritual tyranny, became formidable, violent, and bloody.
It was this great struggle that peopled America. It was not religion alone, as is commonly supposed; but it was a love of universal liberty, and a hatred, a dread, a horror, of the infernal confederacy before described, that projected, conducted, and accomplished the settlement of America.
It was a resolution formed by a sensible people,—I mean the Puritans,—almost in despair. They had become intelligent in general, and many of them learned. For this fact, I have the testimony of Archbishop King himself, who observed of that people, that they were more intelligent and better read than even the members of the church, whom he censures warmly for that reason. This people had been so vexed and tortured by the powers of those days, for no other crime than their knowledge and their freedom of inquiry and examination, and they had so much reason to despair of deliverance from those miseries on that side the ocean, that they at last resolved to fly to the wilderness for refuge from the temporal and spiritual principalities and powers, and plagues and scourges of their native country.
After their arrival here, they began their settlement, and formed their plan, both of ecclesiastical and civil government, in direct opposition to the canon and the feudal systems. The leading men among them, both of the clergy and the laity, were men of sense and learning. To many of them the historians, orators, poets, and philosophers of Greece and Rome were quite familiar; and some of them have left libraries that are still in being, consisting chiefly of volumes in which the wisdom of the most enlightened ages and nations is deposited,—written, however, in languages which their great-grandsons, though educated in European universities, can scarcely read.1
Thus accomplished were many of the first planters in these colonies. It may be thought polite and fashionable by many modern fine gentlemen, perhaps, to deride the characters of these persons, as enthusiastical, superstitious, and republican. But such ridicule is founded in nothing but foppery and affectation, and is grossly injurious and false. Religious to some degree of enthusiasm it may be admitted they were; but this can be no peculiar derogation from their character; because it was at that time almost the universal character not only of England, but of Christendom. Had this, however, been otherwise, their enthusiasm, considering the principles on which it was founded and the ends to which it was directed, far from being a reproach to them, was greatly to their honor; for I believe it will be found universally true, that no great enterprise for the honor or happiness of mankind was ever achieved without a large mixture of that noble infirmity. Whatever imperfections may be justly ascribed to them, which, however, are as few as any mortals have discovered, their judgment in framing their policy was founded in wise, humane, and benevolent principles. It was founded in revelation and in reason too. It was consistent with the principles of the best and greatest and wisest legislators of antiquity. Tyranny in every form, shape, and appearance was their disdain and abhorrence; no fear of punishment, nor even of death itself in exquisite tortures, had been sufficient to conquer that steady, manly, pertinacious spirit with which they had opposed the tyrants of those days in church and state. They were very far from being enemies to monarchy; and they knew as well as any men, the just regard and honor that is due to the character of a dispenser of the mysteries of the gospel of grace. But they saw clearly, that popular powers must be placed as a guard, a control, a balance, to the powers of the monarch and the priest, in every government, or else it would soon become the man of sin, the whore of Babylon, the mystery of iniquity, a great and detestable system of fraud, violence, and usurpation. Their greatest concern seems to have been to establish a government of the church more consistent with the Scriptures, and a government of the state more agreeable to the dignity of human nature, than any they had seen in Europe, and to transmit such a government down to their posterity, with the means of securing and preserving it forever. To render the popular power in their new government as great and wise as their principles of theory, that is, as human nature and the Christian religion require it should be, they endeavored to remove from it as many of the feudal inequalities and dependencies as could be spared, consistently with the preservation of a mild limited monarchy. And in this they discovered the depth of their wisdom and the warmth of their friendship to human nature. But the first place is due to religion. They saw clearly, that of all the nonsense and delusion which had ever passed through the mind of man, none had ever been more extravagant than the notions of absolutions, indelible characters, uninterrupted successions, and the rest of those fantastical ideas, derived from the canon law, which had thrown such a glare of mystery, sanctity, reverence, and right reverend eminence and holiness, around the idea of a priest, as no mortal could deserve, and as always must, from the constitution of human nature, be dangerous in society. For this reason, they demolished the whole system of diocesan episcopacy; and, deriding, as all reasonable and impartial men must do, the ridiculous fancies of sanctified effluvia from episcopal fingers, they established sacerdotal ordination on the foundation of the Bible and common sense. This conduct at once imposed an obligation on the whole body of the clergy to industry, virtue, piety, and learning, and rendered that whole body infinitely more independent on the civil powers, in all respects, than they could be where they were formed into a scale of subordination, from a pope down to priests and friars and confessors,—necessarily and essentially a sordid, stupid, and wretched herd,—or than they could be in any other country, where an archbishop held the place of a universal bishop, and the vicars and curates that of the ignorant, dependent, miserable rabble aforesaid,—and infinitely more sensible and learned than they could be in either. This subject has been seen in the same light by many illustrious patriots, who have lived in America since the days of our forefathers, and who have adored their memory for the same reason. And methinks there has not appeared in New England a stronger veneration for their memory, a more penetrating insight into the grounds and principles and spirit of their policy, nor a more earnest desire of perpetuating the blessings of it to posterity, than that fine institution of the late Chief Justice Dudley, of a lecture against popery, and on the validity of presbyterian ordination. This was certainly intended by that wise and excellent man, as an eternal memento of the wisdom and goodness of the very principles that settled America. But I must again return to the feudal law. The adventurers so often mentioned, had an utter contempt of all that dark ribaldry of hereditary, indefeasible right,—the Lord’s anointed,—and the divine, miraculous original of government, with which the priesthood had enveloped the feudal monarch in clouds and mysteries, and from whence they had deduced the most mischievous of all doctrines, that of passive obedience and non-resistance. They knew that government was a plain, simple, intelligible thing, founded in nature and reason, and quite comprehensible by common sense. They detested all the base services and servile dependencies of the feudal system. They knew that no such unworthy dependencies took place in the ancient seats of liberty, the republics of Greece and Rome; and they thought all such slavish subordinations were equally inconsistent with the constitution of human nature and that religious liberty with which Jesus had made them free. This was certainly the opinion they had formed; and they were far from being singular or extravagant in thinking so. Many celebrated modern writers in Europe have espoused the same sentiments. Lord Kames, a Scottish writer of great reputation, whose authority in this case ought to have the more weight as his countrymen have not the most worthy ideas of liberty, speaking of the feudal law, says,—“A constitution so contradictory to all the principles which govern mankind can never be brought about, one should imagine, but by foreign conquest or native usurpations.”* Rousseau, speaking of the same system, calls it,—“That most iniquitous and absurd form of government by which human nature was so shamefully degraded.”* It would be easy to multiply authorities, but it must be needless; because, as the original of this form of government was among savages, as the spirit of it is military and despotic, every writer who would allow the people to have any right to life or property or freedom more than the beasts of the field, and who was not hired or enlisted under arbitrary, lawless power, has been always willing to admit the feudal system to be inconsistent with liberty and the rights of mankind.
To have holden their lands allodially, or for every man to have been the sovereign lord and proprietor of the ground he occupied, would have constituted a government too nearly like a commonwealth. They were contented, therefore, to hold their lands of their king, as their sovereign lord; and to him they were willing to render homage, but to no mesne or subordinate lords; nor were they willing to submit to any of the baser services. In all this they were so strenuous, that they have even transmitted to their posterity a very general contempt and detestation of holdings by quitrents, as they have also a hereditary ardor for liberty and thirst for knowledge.
They were convinced, by their knowledge of human nature, derived from history and their own experience, that nothing could preserve their posterity from the encroachments of the two systems of tyranny, in opposition to which, as has been observed already, they erected their government in church and state, but knowledge diffused generally through the whole body of the people. Their civil and religious principles, therefore, conspired to prompt them to use every measure and take every precaution in their power to propagate and perpetuate knowledge. For this purpose they laid very early the foundations of colleges, and invested them with ample privileges and emoluments; and it is remarkable that they have left among their posterity so universal an affection and veneration for those seminaries, and for liberal education, that the meanest of the people contribute cheerfully to the support and maintenance of them every year, and that nothing is more generally popular than projections for the honor, reputation, and advantage of those seats of learning. But the wisdom and benevolence of our fathers rested not here. They made an early provision by law, that every town consisting of so many families, should be always furnished with a grammar school. They made it a crime for such a town to be destitute of a grammar schoolmaster for a few months, and subjected it to a heavy penalty. So that the education of all ranks of people was made the care and expense of the public, in a manner that I believe has been unknown to any other people ancient or modern.
The consequences of these establishments we see and feel every day. A native of America who cannot read and write is as rare an appearance as a Jacobite or a Roman Catholic, that is, as rare as a comet or an earthquake. It has been observed, that we are all of us lawyers, divines, politicians, and philosophers. And I have good authorities to say, that all candid foreigners who have passed through this country, and conversed freely with all sorts of people here, will allow, that they have never seen so much knowledge and civility among the common people in any part of the world. It is true, there has been among us a party for some years, consisting chiefly not of the descendants of the first settlers of this country, but of high churchmen and high statesmen imported since, who affect to censure this provision for the education of our youth as a needless expense, and an imposition upon the rich in favor of the poor, and as an institution productive of idleness and vain speculation among the people, whose time and attention, it is said, ought to be devoted to labor, and not to public affairs, or to examination into the conduct of their superiors. And certain officers of the crown, and certain other missionaries of ignorance, foppery, servility, and slavery, have been most inclined to countenance and increase the same party. Be it remembered, however, that liberty must at all hazards be supported. We have a right to it, derived from our Maker. But if we had not, our fathers have earned and bought it for us, at the expense of their ease, their estates, their pleasure, and their blood. And liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great Creator, who does nothing in vain, has given them understandings, and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean, of the characters and conduct of their rulers. Rulers are no more than attorneys, agents, and trustees, for the people; and if the cause, the interest and trust, is insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attorneys, and trustees. And the preservation of the means of knowledge among the lowest ranks, is of more importance to the public than all the property of all the rich men in the country. It is even of more consequence to the rich themselves, and to their posterity. The only question is, whether it is a public emolument; and if it is, the rich ought undoubtedly to contribute, in the same proportion as to all other public burdens,—that is, in proportion to their wealth, which is secured by public expenses. But none of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of America, than the press. Care has been taken that the art of printing should be encouraged, and that it should be easy and cheap and safe for any person to communicate his thoughts to the public. And you, Messieurs printers,1 whatever the tyrants of the earth may say of your paper, have done important service to your country by your readiness and freedom in publishing the speculations of the curious. The stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavored to discredit your paper, are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing. And if the public interest, liberty, and happiness have been in danger from the ambition or avarice of any great man, whatever may be his politeness, address, learning, ingenuity, and, in other respects, integrity and humanity, you have done yourselves honor and your country service by publishing and pointing out that avarice and ambition. These vices are so much the more dangerous and pernicious for the virtues with which they may be accompanied in the same character, and with so much the more watchful jealousy to be guarded against.
Be not intimidated, therefore, by any terrors, from publishing with the utmost freedom, whatever can be warranted by the laws of your country; nor suffer yourselves to be wheedled out of your liberty by any pretences of politeness, delicacy, or decency. These, as they are often used, are but three different names for hypocrisy, chicanery, and cowardice. Much less, I presume, will you be discouraged by any pretences that malignants on this side the water will represent your paper as factious and seditious, or that the great on the other side the water will take offence at them. This dread of representation has had for a long time, in this province, effects very similar to what the physicians call a hydropho, or dread of water. It has made us delirious; and we have rushed headlong into the water, till we are almost drowned, out of simple or phrensical fear of it. Believe me, the character of this country has suffered more in Britain by the pusillanimity with which we have borne many insults and indignities from the creatures of power at home and the creatures of those creatures here, than it ever did or ever will by the freedom and spirit that has been or will be discovered in writing or action. Believe me, my countrymen, they have imbibed an opinion on the other side the water, that we are an ignorant, a timid, and a stupid people; nay, their tools on this side have often the impudence to dispute your bravery. But I hope in God the time is near at hand when they will be fully convinced of your understanding, integrity, and courage. But can any thing be more ridiculous, were it not too provoking to be laughed at, than to pretend that offence should be taken at home for writings here? Pray, let them look at home. Is not the human understanding exhausted there? Are not reason, imagination, wit, passion, senses, and all, tortured to find out satire and invective against the characters of the vile and futile fellows who sometimes get into place and power? The most exceptionable paper that ever I saw here is perfect prudence and modesty in comparison of multitudes of their applauded writings. Yet the high regard they have for the freedom of the press, indulges all. I must and will repeat it, your paper deserves the patronage of every friend to his country. And whether the defamers of it are arrayed in robes of scarlet or sable, whether they lurk and skulk in an insurance office, whether they assume the venerable character of a priest, the sly one of a scrivener, or the dirty, infamous, abandoned one of an informer, they are all the creatures and tools of the lust of domination.
The true source of our sufferings has been our timidity.
We have been afraid to think. We have felt a reluctance to examining into the grounds of our privileges, and the extent in which we have an indisputable right to demand them, against all the power and authority on earth. And many who have not scrupled to examine for themselves, have yet for certain prudent reasons been cautious and diffident of declaring the result of their inquiries.
The cause of this timidity is perhaps hereditary, and to be traced back in history as far as the cruel treatment the first settlers of this country received, before their embarkation for America, from the government at home. Everybody knows how dangerous it was to speak or write in favor of any thing, in those days, but the triumphant system of religion and politics. And our fathers were particularly the objects of the persecutions and proscriptions of the times. It is not unlikely, therefore, that although they were inflexibly steady in refusing their positive assent to any thing against their principles, they might have contracted habits of reserve, and a cautious diffidence of asserting their opinions publicly. These habits they probably brought with them to America, and have transmitted down to us. Or we may possibly account for this appearance by the great affection and veneration Americans have always entertained for the country from whence they sprang; or by the quiet temper for which they have been remarkable, no country having been less disposed to discontent than this; or by a sense they have that it is their duty to acquiesce under the administration of government, even when in many smaller matters grievous to them, and until the essentials of the great compact are destroyed or invaded. These peculiar causes might operate upon them; but without these, we all know that human nature itself, from indolence, modesty, humanity, or fear, has always too much reluctance to a manly assertion of its rights. Hence, perhaps, it has happened, that nine tenths of the species are groaning and gasping in misery and servitude.
But whatever the cause has been, the fact is certain, we have been excessively cautious of giving offence by complaining of grievances. And it is as certain, that American governors, and their friends, and all the crown officers, have availed themselves of this disposition in the people. They have prevailed on us to consent to many things which were grossly injurious to us, and to surrender many others, with voluntary tameness, to which we had the clearest right. Have we not been treated, formerly, with abominable insolence, by officers of the navy? I mean no insinuation against any gentleman now on this station, having heard no complaint of any one of them to his dishonor. Have not some generals from England treated us like servants, nay, more like slaves than like Britons? Have we not been under the most ignominious contribution, the most abject submission, the most supercilious insults, of some custom-house officers? Have we not been trifled with, brow-beaten, and trampled on, by former governors, in a manner which no king of England since James the Second has dared to indulge towards his subjects? Have we not raised up one family, in them placed an unlimited confidence, and been soothed and flattered and intimidated by their influence, into a great part of this infamous tameness and submission? “These are serious and alarming questions, and deserve a dispassionate consideration.”
This disposition has been the great wheel and the mainspring in the American machine of court politics. We have been told that “the word rights is an offensive expression;” “that the king, his ministry, and parliament, will not endure to hear Americans talk of their rights;” “that Britain is the mother and we the children, that a filial duty and submission is due from us to her,” and that “we ought to doubt our own judgment, and presume that she is right, even when she seems to us to shake the foundations of government;” that “Britain is immensely rich and great and powerful, has fleets and armies at her command which have been the dread and terror of the universe, and that she will force her own judgment into execution, right or wrong.” But let me entreat you, sir, to pause. Do you consider yourself as a missionary of loyalty or of rebellion? Are you not representing your king, his ministry, and parliament, as tyrants,—imperious, unrelenting tyrants,—by such reasoning as this? Is not this representing your most gracious sovereign as endeavoring to destroy the foundations of his own throne? Are you not representing every member of parliament as renouncing the transactions at Runing Mede, (the meadow, near Windsor, where Magna Charta was signed;) and as repealing in effect the bill of rights, when the Lords and Commons asserted and vindicated the rights of the people and their own rights, and insisted on the king’s assent to that assertion and vindication? Do you not represent them as forgetting that the prince of Orange was created King William, by the people, on purpose that their rights might be eternal and inviolable? Is there not something extremely fallacious in the common-place images of mother country and children colonies? Are we the children of Great Britain any more than the cities of London, Exeter, and Bath? Are we not brethren and fellow subjects with those in Britain, only under a somewhat different method of legislation, and a totally different method of taxation? But admitting we are children, have not children a right to complain when their parents are attempting to break their limbs, to administer poison, or to sell them to enemies for slaves? Let me entreat you to consider, will the mother be pleased when you represent her as deaf to the cries of her children,—when you compare her to the infamous miscreant who lately stood on the gallows for starving her child,—when you resemble her to Lady Macbeth in Shakspeare, (I cannot think of it without horror,) who
but yet, who could
Let us banish for ever from our minds, my countrymen, all such unworthy ideas of the king, his ministry, and parliament. Let us not suppose that all are become luxurious, effeminate, and unreasonable, on the other side the water, as many designing persons would insinuate. Let us presume, what is in fact true, that the spirit of liberty is as ardent as ever among the body of the nation, though a few individuals may be corrupted. Let us take it for granted, that the same great spirit which once gave Cæsar so warm a reception, which denounced hostilities against John till Magna Charta was signed, which severed the head of Charles the First from his body, and drove James the Second from his kingdom, the same great spirit (may heaven preserve it till the earth shall be no more) which first seated the great grandfather of his present most gracious majesty on the throne of Britain,—is still alive and active and warm in England; and that the same spirit in America, instead of provoking the inhabitants of that country, will endear us to them for ever, and secure their good-will.
This spirit, however, without knowledge, would be little better than a brutal rage. Let us tenderly and kindly cherish, therefore, the means of knowledge. Let us dare to read, think, speak, and write. Let every order and degree among the people rouse their attention and animate their resolution. Let them all become attentive to the grounds and principles of government, ecclesiastical and civil. Let us study the law of nature; search into the spirit of the British constitution; read the histories of ancient ages; contemplate the great examples of Greece and Rome; set before us the conduct of our own British ancestors, who have defended for us the inherent rights of mankind against foreign and domestic tyrants and usurpers, against arbitrary kings and cruel priests, in short, against the gates of earth and hell. Let us read and recollect and impress upon our souls the views and ends of our own more immediate forefathers, in exchanging their native country for a dreary, inhospitable wilderness. Let us examine into the nature of that power, and the cruelty of that oppression, which drove them from their homes. Recollect their amazing fortitude, their bitter sufferings,—the hunger, the nakedness, the cold, which they patiently endured,—the severe labors of clearing their grounds, building their houses, raising their provisions, amidst dangers from wild beasts and savage men, before they had time or money or materials for commerce. Recollect the civil and religious principles and hopes and expectations which constantly supported and carried them through all hardships with patience and resignation. Let us recollect it was liberty, the hope of liberty for themselves and us and ours, which conquered all discouragements, dangers, and trials. In such researches as these, let us all in our several departments cheerfully engage,—but especially the proper patrons and supporters of law, learning, and religion!
Let the pulpit resound with the doctrines and sentiments of religious liberty. Let us hear the danger of thraldom to our consciences from ignorance, extreme poverty, and dependence, in short, from civil and political slavery. Let us see delineated before us the true map of man. Let us hear the dignity of his nature, and the noble rank he holds among the works of God,—that consenting to slavery is a sacrilegious breach of trust, as offensive in the sight of God as it is derogatory from our own honor or interest or happiness,—and that God Almighty has promulgated from heaven, liberty, peace, and good-will to man!
Let the bar proclaim, “the laws, the rights, the generous plan of power” delivered down from remote antiquity,—inform the world of the mighty struggles and numberless sacrifices made by our ancestors in defence of freedom. Let it be known, that British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, coequal with prerogative, and coeval with government; that many of our rights are inherent and essential, agreed on as maxims, and established as preliminaries, even before a parliament existed. Let them search for the foundations of British laws and government in the frame of human nature, in the constitution of the intellectual and moral world. There let us see that truth, liberty, justice, and benevolence, are its everlasting basis; and if these could be removed, the superstructure is overthrown of course.
Let the colleges join their harmony in the same delightful concert. Let every declamation turn upon the beauty of liberty and virtue, and the deformity, turpitude, and malignity, of slavery and vice. Let the public disputations become researches into the grounds and nature and ends of government, and the means of preserving the good and demolishing the evil. Let the dialogues, and all the exercises, become the instruments of impressing on the tender mind, and of spreading and distributing far and wide, the ideas of right and the sensations of freedom.
In a word, let every sluice of knowledge be opened and set a-flowing. The encroachments upon liberty in the reigns of the first James and the first Charles, by turning the general attention of learned men to government, are said to have produced the greatest number of consummate statesmen which has ever been seen in any age or nation. The Brookes, Hampdens, Vanes, Seldens, Miltons, Nedhams, Harringtons, Nevilles, Sidneys, Lockes, are all said to have owed their eminence in political knowledge to the tyrannies of those reigns. The prospect now before us in America, ought in the same manner to engage the attention of every man of learning, to matters of power and of right, that we may be neither led nor driven blindfolded to irretrievable destruction. Nothing less than this seems to have been meditated for us, by somebody or other in Great Britain. There seems to be a direct and formal design on foot, to enslave all America. This, however, must be done by degrees. The first step that is intended, seems to be an entire subversion of the whole system of our fathers, by the introduction of the canon and feudal law into America. The canon and feudal systems, though greatly mutilated in England, are not yet destroyed. Like the temples and palaces in which the great contrivers of them once worshipped and inhabited, they exist in ruins; and much of the domineering spirit of them still remains. The designs and labors of a certain society, to introduce the former of them into America, have been well exposed to the public by a writer of great abilities;* and the further attempts to the same purpose, that may be made by that society, or by the ministry or parliament, I leave to the conjectures of the thoughtful. But it seems very manifest from the Stamp Act itself, that a design is formed to strip us in a great measure of the means of knowledge, by loading the press, the colleges, and even an almanack and a newspaper, with restraints and duties; and to introduce the inequalities and dependencies of the feudal system, by taking from the poorer sort of people all their little subsistence, and conferring it on a set of stamp officers, distributors, and their deputies. But I must proceed no further at present. The sequel, whenever I shall find health and leisure to pursue it, will be a “disquisition of the policy of the stamp act.” In the mean time, however, let me add,—These are not the vapors of a melancholy mind, nor the effusions of envy, disappointed ambition, nor of a spirit of opposition to government, but the emanations of a heart that burns for its country’s welfare. No one of any feeling, born and educated in this once happy country, can consider the numerous distresses, the gross indignities, the barbarous ignorance, the haughty usurpations, that we have reason to fear are meditating for ourselves, our children, our neighbors, in short, for all our countrymen and all their posterity, without the utmost agonies of heart and many tears.
INSTRUCTIONS OF THE TOWN OF BRAINTREE TO THEIR REPRESENTATIVE, 1765.
An account of the author’s agency in the proceedings which led to the instructions here given, is to be found in the second volume, page 153.
Boston, 14 October.1
We hear from Braintree, that the freeholders and other inhabitants of that town, legally assembled, on Tuesday, the twenty-fourth of September last, unanimously voted, that instructions should be given their representative for his conduct in General Assembly on this great occasion. The substance of these instructions is as follows:—
TO EBENEZER THAYER, ESQ.
In all the calamities which have ever befallen this country, we have never felt so great a concern, or such alarming apprehensions, as on this occasion. Such is our loyalty to the King, our veneration for both houses of Parliament, and our affection for all our fellow-subjects in Britain, that measures which discover any unkindness in that country towards us are the more sensibly and intimately felt. And we can no longer forbear complaining, that many of the measures of the late ministry, and some of the late acts of Parliament, have a tendency, in our apprehension, to divest us of our most essential rights and liberties. We shall confine ourselves, however, chiefly to the act of Parliament, commonly called the Stamp Act, by which a very burthensome, and, in our opinion, unconstitutional tax, is to be laid upon us all; and we subjected to numerous and enormous penalties, to be prosecuted, sued for, and recovered, at the option of an informer, in a court of admiralty, without a jury.
We have called this a burthensome tax, because the duties are so numerous and so high, and the embarrassments to business in this infant, sparsely-settled country so great, that it would be totally impossible for the people to subsist under it, if we had no controversy at all about the right and authority of imposing it. Considering the present scarcity of money, we have reason to think, the execution of that act for a short space of time would drain the country of its cash, strip multitudes of all their property, and reduce them to absolute beggary. And what the consequence would be to the peace of the province, from so sudden a shock and such a convulsive change in the whole course of our business and subsistence, we tremble to consider. We further apprehend this tax to be unconstitutional. We have always understood it to be a grand and fundamental principle of the constitution, that no freeman should be subject to any tax to which he has not given his own consent, in person or by provy. And the maxims of the law, as we have constantly received them, are to the same effect, that no freeman can be separated from his property but by his own act or fault. We take it clearly, therefore, to be inconsistent with the spirit of the common law, and of the essential fundamental principles of the British constitution, that we should be subject to any tax imposed by the British Parliament; because we are not represented in that assembly in any sense, unless it be by a fiction of law, as insensible in theory as it would be injurious in practice, if such a taxation should be grounded on it.
But the most grievous innovation of all, is the alarming extension of the power of courts of admiralty. In these courts, one judge presides alone! No juries have any concern there! The law and the fact are both to be decided by the same single judge, whose commission is only during pleasure, and with whom, as we are told, the most mischievous of all customs has become established, that of taking commissions on all condemnations; so that he is under a pecuniary temptation always against the subject. Now, if the wisdom of the mother country has thought the independency of the judges so essential to an impartial administration of justice, as to render them independent of every power on earth,—independent of the King, the Lords, the Commons, the people, nay, independent in hope and expectation of the heir-apparent, by continuing their commissions after a demise of the crown, what justice and impartiality are we, at three thousand miles distance from the fountain, to expect from such a judge of admiralty? We have all along thought the acts of trade in this respect a grievance; but the Stamp Act has opened a vast number of sources of new crimes, which may be committed by any man, and cannot but be committed by multitudes, and prodigious penalties are annexed, and all these are to be tried by such a judge of such a court! What can be wanting, after this, but a weak or wicked man for a judge, to render us the most sordid and forlorn of slaves?—we mean the slaves of a slave of the servants of a minister of state. We cannot help asserting, therefore, that this part of the act will make an essential change in the constitution of juries, and it is directly repugnant to the Great Charter itself; for, by that charter, “no amerciament shall be assessed, but by the oath of honest and lawful men of the vicinage;” and, “no freeman shall be taken, or imprisoned, or disseized of his freehold, or liberties of free customs, nor passed upon, nor condemned, but by lawful judgment of his peers, or by the law of the land.” So that this act will “make such a distinction, and create such a difference between” the subjects in Great Britain and those in America, as we could not have expected from the guardians of liberty in “both.”
As these, sir, are our sentiments of this act, we, the freeholders and other inhabitants, legally assembled for this purpose, must enjoin it upon you, to comply with no measures or proposals for countenancing the same, or assisting in the execution of it, but by all lawful means, consistent with our allegiance to the King, and relation to Great Britain, to oppose the execution of it, till we can hear the success of the cries and petitions of America for relief.
We further recommend the most clear and explicit assertion and vindication of our rights and liberties to be entered on the public records, that the world may know, in the present and all future generations, that we have a clear knowledge and a just sense of them, and, with submission to Divine Providence, that we never can be slaves.1
Nor can we think it advisable to agree to any steps for the protection of stamped papers or stamp-officers. Good and wholesome laws we have already for the preservation of the peace; and we apprehend there is no further danger of tumult and disorder, to which we have a well-grounded aversion; and that any extraordinary and expensive exertions would tend to exasperate the people and endanger the public tranquillity, rather than the contrary. Indeed, we cannot too often inculcate upon you our desires, that all extraordinary grants and expensive measures may, upon all occasions, as much as possible, be avoided. The public money of this country is the toil and labor of the people, who are under many uncommon difficulties and distresses at this time, so that all reasonable frugality ought to be observed. And we would recommend particularly, the strictest care and the utmost firmness to prevent all unconstitutional draughts upon the public treasury.
THE EARL OF CLARENDON TO WILLIAM PYM.
On the 20th of August, 1765, there appeared in the London Evening Post an article, under the somewhat singularly-chosen signature of Pym, the purport of which seems to have been to avow to the people of the Colonies a settled design in Great Britain to overthrow whatever they had been in the habit of regarding as safeguards to their liberties. The writer of this article is not known; but his style, which is clear and forcible, indicates confidence and connection with the sources of power. The drift of his argument may be gathered from the statement of his position in these words: “Let me inform my fellow-subjects in America, that a resolution of the British Parliament can at any time set aside all the charters that have ever been granted by our monarchs.” Starting in this manner, it is not surprising his consequences should be, that the rights of the colonists were wholly at the mercy of Great Britain.
This article was deemed of such importance as to gain immediate admittance into the columns of the Boston Evening Post, in which it appeared on the 25th of November following. It at once roused a host of writers on the Colonial side, among whom the most conspicuous were James Otis, as Hampden, and John Adams, as Clarendon. However singular the assumption of this last title may appear in the latter, his letters clearly show how much he had studied the character of the man to whom the name had belonged, and of the age in which he lived.
THE EARL OF CLARENDON TO WILLIAM PYM.1
The revolution which one century has produced in your opinions and principles is not quite so surprising to me as it seems to be to many others. You know very well, I had always a jealousy that your humanity was counterfeited, your ardor for liberty cankered with simulation, and your integrity problematical at least.
I must confess, however, that such a sudden transition from licentiousness to despotism, so entire a transformation from a fiery, furious declaimer against power, to an abject hireling of corruption, though it furnishes a clue to the labyrinth of your politics in 1641, gives me many painful reflections on the frailty, inconstancy, and depravity of the human race. These reflections, nevertheless, are greatly mollified, by the satisfaction I feel in finding your old friend and coadjutor, Mr. Hampden, unaltered and unalterable in the glorious cause of liberty and law. His inflexibility has confirmed the great esteem my Lord Falkland and I always had of his wisdom, magnanimity, and virtue; and we are both of us at present as well convinced of his excellency, as a subject and citizen, as we were formerly of his amiable accomplishments in private life. But your apostasy has confirmed our belief of what was formerly suspected, namely,—your subornation of witnesses, your perjuries, briberies, and cruelties; and that though your cunning was exquisite enough to conceal your crimes from the public scrutiny, your heart was desperately wicked and depraved.
Can any thing less abominable have prompted you to commence an enemy to liberty,—an enemy to human nature? Can you recollect the complaints and clamors, which were sounded with such industry, and supported by such a profusion of learning in law and history, and such invincible reasoning, by yourself and your friends, against the Star-Chamber and High Commission, and yet remain an advocate for the newly-formed courts of admiralty in America? Can you recall to your memory the everlasting changes which were rung, by yourself and your party, against ship-money, and the other projects of that disgraceful reign, and on the consent of the subject as indispensably necessary to all taxations, aids, reliefs, talliages, subsidies, duties, &c., and yet contend for a taxation of more than five million subjects, not only without their consent, expressed or implied, but directly against their most explicit and determined declarations and remonstrances?
You, of all mankind, should have been the last to be hired by a minister to defend or excuse such taxes and such courts,—taxes more injurious and ruinous than Danegeld of old, which our countryman Speed says, “emptied the land of all the coin, the kingdom of her glory, the commons of their content, and the sovereign of his wonted respects and observance;”—courts which seem to have been framed in imitation of an ancient jurisdiction, at the bare mention of which I have often seen your eyes lighten, I mean the court of the masters of the king’s forfeitures. I cannot omit so fair an opportunity of repeating the history and unfolding the powers of that court, as it seems to have been the very antitype of the new courts of admiralty in America, and to have been created and erected with the same powers and for the same purposes.1 It was in the reign of King Henry VII. that a British Parliament was found to be so timid, or ignorant, or corrupt, as to pass an act, that justices of assize, as well as justices of peace, without any finding or presentment of twelve men, upon a bare information for the king, should have full power and authority to hear and determine, by their discretions, all offences against the form, ordinance, and effect of certain penal statutes. This unconstitutional act was passed in the eleventh year of that reign; and thus the commons were found to sacrifice that sacred pillar, that fundamental law, that everlasting monument of liberty, the Great Charter, in complaisance to the ravenous avarice of that monarch. In pursuance of this act, Sir Richard Empson and Edmund Dudley were made justices throughout England, and “masters of the king’s forfeitures.” The old sage, Coke, says, that act was against and in the face of that fundamental law, Magna Charta, and that it is incredible what oppressions and exactions were committed by Empson and Dudley upon this unjust and injurious act, shaking that fundamental law. “And that, in the first year of the reign of King Henry VIII. the Parliament recited that unconstitutional act, and declared it void.” And those two vile oppressors fell a sacrifice to the righteous indignation of an injured and exasperated nation. And he closes with an admonition, that the fearful end of these two oppressors should deter others from committing the like, and admonish parliaments that, instead of this ordinary and precious trial, per pares et per legem terræ, they bring not in absolute and partial trials by discretion.
Give me leave, now, to ask you, Mr. Pym, what are the powers of the new courts of admiralty in America? Are the trials in these courts per pares or per legem terræ? Is there any grand jury there to find presentments or indictments? Is there any petit jury to try the fact, guilty or not? Is the trial perlegem terræ, or by the institutes, digests, and codes and novels of the Roman law? Is there not a judge appointed, or to be appointed, over all America? Is not this a much more extensive jurisdiction than that of Empson and Dudley, as justices over all England? Will you say, that no Empsons and Dudleys will be sent to America? Perhaps not; but are not the jurisdiction and power given to the judges greater than that to those oppressors? Besides, how can you prove that no Empsons will be sent there? Pray, let me know, are not the forfeitures to be shared by the governors and the informers? Are we not to prophesy the future by the experience of the past? And have not many governors been seen in America whose avarice was at least as ravenous as that of Henry VII.? Have not many of their tools been as hungry, restless, insolent, and unrelenting as Empson and Dudley, in proportion to their power? Besides, are not the Americans at such a distance from their king, and the august council of the mother country, and, at the same time, so poor, as to render all redress of such insolence and rapacity impracticable?
If you consider the nature of these new American taxations, the temper and manners of the people in that country, their religious and civil principles; and if you recollect the real constitution of Great Britain, and the nature of the new courts of admiralty, you will not wonder at the spirit that has appeared in that country. Their resistance is founded in much better principles, and aims at much better ends, than I fear yours did in Charles’s reign; though I own you were much nearer the truth and right of the cause then than now. And you know, if you had lived in America, and had not been much changed, you would have been the first to have taken arms against such a law, if no other kind of opposition would do. You would have torn up the foundations, and demolished the whole fabric of the government, rather than have submitted; and would have suffered democracy, aristocracy, monarchy, anarchy, any thing or nothing, to have arisen in its place.
You may, perhaps, wonder to hear such language as the foregoing from me, as I was always in an opposite faction to yours while we lived on earth. I will confess to you, that I am in many respects altered since my departure from the body; my principles in government were always the same, founded in law, liberty, justice, goodness, and truth; but in the application of those principles, I must confess, my veneration for certain churchmen, and my aspiring, ambitious temper, sometimes deceived me and led me astray. This was a source of remorse, at times, through my life; and, since my separation, and the sublimation of my faculties, and the purification of my temper, the detestation of some parts of my conduct has been greatly increased. But as these are subjects of very great importance, I shall make them the materials of a correspondence with you for some time to come.
THE EARL OF CLARENDON TO WILLIAM PYM.1
You and I have changed sides. As I told you in my last, I can account for your tergiversation, only on the supposition of the insincerity, baseness, and depravity of your heart. For my own part, as the change in me is not so great, neither is it so unaccountable. My education was in the law, the grounds of which were so riveted in me that no temptation could induce me, knowingly, to swerve from them. The sentiments, however, which I had imbibed in the course of my education from the sages of the law, were greatly confirmed in me by an accident that happened to me in my youth. This is an anecdote relative to my father and me which I presume you must have heard. A scene which will remain with indelible impressions on my soul throughout my duration. I was upon that circuit which led me down to my native county, and on a visit to my aged father, who gave me an invitation to take a walk with him in the field. I see the good old gentleman, even at this distance of time, and in his venerable countenance that parental affection to me, that zeal for the law, that fervent love of his country, that exalted piety to God and good-will to all mankind, which constituted his real character. “My son,” said he, “I am very old, and this will probably be the last time I shall ever see your face; your welfare is near my heart; the reputation you have in your profession for learning, probity, skill, and eloquence, will, in all probability, call you to manage the great concerns of this nation in parliament, and to counsel your king in some of the greatest offices of state; let me warn you against that ambition which I have often observed in men of your profession, which will sacrifice all to their own advancement; and I charge you, on a father’s blessing, never to forget this nation, nor to suffer the hope of honors or profits, nor the fear of menaces or punishments from the crown, to seduce you from the law, the constitution, and the real welfare and freedom of this people.” And these words were scarcely pronounced, before his zeal and concern were too great for his strength, and he fell upon the ground before me, never to rise more! His words sunk deep into my heart, and no temptation, no bias or prejudice, could ever obliterate them. And you, Mr. Pym, are one witness for me, that, although I was always of the royal party, and for avoiding violence and confusion, I never defended what could be proved to be real infringements on the constitution. While I sat in parliament with you, I was as heartily for rectifying those abuses, and for procuring still further security of freedom, as any of you; and after the restoration, when the nations were rushing into a delirium with loyalty, I was obliged, in order to preserve even the appearance of the constitution, to make a stand; and, afterwards, in the reign of my infamous and detestable, though royal son-in-law, James II., I chose to go into banishment, rather than renounce the religion and liberties of my country.
I have made these observations to excuse my conduct in those reigns, in some degree, though I must confess there were many parts of it which admit of no excuse at all. I suffered myself to be blindly attached to the king and some of his spiritual and temporal minions, particularly Laud and Strafford, in some instances, and to connive at their villanous projects, against my principles in religion and government, and against the dying precepts of my father. Besides, my intimacy with that sort of company had gradually wrought into me too great a reverence for kingly and priestly power, and too much contempt of the body of the people, as well as too much virulence against many worthy patriots of your side of the question, with whom, if I had coöperated instead of assisting the court, perhaps all the confusions and bloodshed which followed might have been prevented, and all the nation’s grievances redressed.
These reflections were a source of remorse at times, through my life; and since my departure from the earth I have revolved these things so often, and seen my errors so clearly, that were I to write a history of your opposition now, I should not entitle it a rebellion; nay, I should scarcely call the protectorate of Cromwell a usurpation.
With such principles as these, and divested as I am of all views and motives of ambition, as well as attachment to any party, you may depend upon it, the conduct of Barbadoes has given me great uneasiness.1 That island was settled in the Oliverian times by certain fugitives of the royal party, who were zealous advocates for passive obedience; and I suppose a remnant of the servile spirit of their ancestors and of that ruinous doctrine has prevailed on them to submit. I own it is a severe mortification to me to reflect that I ever acted in concert with a people with such sentiments, a people who were capable of so mean and meaching a desertion of the cause both of liberty and humanity.* But the gallant struggle in St. Christopher’s and on the continent of North America, is founded in principles so indisputable in the moral law, in the revealed law of God, in the true constitution of Britain, and in the most apparent welfare of the British nation, as well as of the whole body of the people in America, that it rejoices my very soul. When I see that worthy people, even in the reign of a wise and good king fettered, chained, and sacrificed by a few abandoned villains, whose lust of gain and power would, at any time, fasten them in the interest of France or Rome or hell, my resentment and indignation are unutterable.
If ever an infant country deserved to be cherished it is America. If ever any people merited honor and happiness they are her inhabitants. They are a people whom no character can flatter or transmit in any expressions equal to their merit and virtue; with the high sentiments of Romans, in the most prosperous and virtuous times of that commonwealth, they have the tender feelings of humanity and the noble benevolence of Christians; they have the most habitual, radical sense of liberty, and the highest reverence for virtue; they are descended from a race of heroes, who, placing their confidence in Providence alone, set the seas and skies, monsters and savages, tyrants and devils, at defiance for the sake of religion and liberty.
And the present generation have shown themselves worthy of their ancestors. Those cruel engines, fabricated by a British minister, for battering down all their rights and privileges, instead of breaking their courage and causing despondency, as might have been expected in their situation, have raised and spread through the whole continent a spirit that will be recorded to their honor with all future ages. In every colony, from Georgia to New Hampshire inclusively, the executioners of their condemnation have been compelled by the unconquerable and irresistible vengeance of the people to renounce their offices. Such and so universal has been the resentment, that every man who has dared to speak in favor of them, or to soften the detestation in which they are held, how great soever his character had been before, or whatever had been his fortune, connections, and influence, has been seen to sink into universal contempt and ignominy. The people, even to the lowest ranks, have become more attentive to their liberties, more inquisitive about them, and more determined to defend them, than they were ever before known or had occasion to be; innumerable have been the monuments of wit, humor, sense, learning, spirit, patriotism, and heroism, erected in the several provinces in the course of this year. Their counties, towns, and even private clubs and sodalities have voted and determined; their merchants have agreed to sacrifice even their bread to the cause of liberty; their legislatures have resolved; the united colonies have remonstrated; the presses have everywhere groaned; and the pulpits have thundered; and such of the crown officers as have wished to see them enslaved, have everywhere trembled, and all their little tools and creatures been afraid to speak and ashamed to be seen.1 Yet this is the people, Mr. Pym, on whom you are contributing, for paltry hire, to rivet and confirm everlasting oppression.
THE EARL OF CLARENDON TO WILLIAM PYM.1
You are pleased to charge the colonists with ignorance of the British constitution; but let me tell you there is not ever a son of liberty among them who has not manifested a deeper knowledge of it, and a warmer attachment to it, than appears in any of your late writings; they know the true constitution and all the resources of liberty in it, as well as in the law of nature, which is one principal foundation of it, and in the temper and character of the people much better than you, if we judge by your late impudent pieces, or than your patron and master, if we judge by his late conduct.
The people in America have discovered the most accurate judgment about the real constitution, I say, by their whole behavior, excepting the excesses of a few, who took advantage of the general enthusiasm to perpetrate their ill designs; though there has been great inquiry and some apparent puzzle among them about a formal, logical, technical definition of it. Some have defined it to be the practice of parliament; others, the judgments and precedents of the king’s courts; but either of these definitions would make it a constitution of wind and weather, because the parliaments have sometimes voted the king absolute, and the judges have sometimes adjudged him to be so. Some have called it custom, but this is as fluctuating and variable as the other. Some have called it the most perfect combination of human powers in society which finite wisdom has yet contrived and reduced to practice for the preservation of liberty and the production of happiness. This is rather a character of the constitution and a just observation concerning it, than a regular definition of it, and leaves us still to dispute what it is. Some have said that the whole body of the laws, others that king, lords, and commons, make the constitution. There has also been much inquiry and dispute about the essentials and fundamentals of the constitution, and many definitions and descriptions have been attempted; but there seems to be nothing satisfactory to a rational mind in any of these definitions; yet I cannot say that I am at a loss about any man’s meaning when he speaks of the British constitution or the essentials and fundamentals of it.
What do we mean when we talk of the constitution of the human body? what by a strong and robust, or a weak and feeble constitution? Do we not mean certain contextures of the nerves, fibres, and muscles, or certain qualities of the blood and juices, as sizy or watery, phlegmatic or fiery, acid or alkaline? We can never judge of any constitution without considering the end of it; and no judgment can be formed of the human constitution without considering it as productive of life or health or strength. The physician shall tell one man that certain kinds of exercise or diet or medicine are not adapted to his constitution, that is, not compatible with his health, which he would readily agree are the most productive of health in another. The patient’s habit abounds with acid and acrimonious juices. Will the doctor order vinegar, lemon juice, barberries, and cranberries, to work a cure? These would be unconstitutional remedies, calculated to increase the evil which arose from the want of a balance between the acid and alkaline ingredients in his composition. If the patient’s nerves are overbraced, will the doctor advise to jesuits’-bark? There is a certain quantity of exercise, diet, and medicine, best adapted to every man’s constitution, which will keep him in the best health and spirits, and contribute the most to the prolongation of his life. These determinate quantities are not perhaps known to him or any other person; but here lies the proper province of the physician, to study his constitution and give him the best advice what and how much he may eat and drink; when and how long he shall sleep; how far he may walk or ride in a day; what air and weather he may improve for this purpose; when he shall take physic, and of what sort it shall be, in order to preserve and perfect his health and prolong his life.
But there are certain other parts of the body which the physician can, in no case, have any authority to destroy or deprave; which may properly be called stamina vitæ, or essentials and fundamentals of the constitution; parts, without which, life itself cannot be preserved a moment. Annihilate the heart, lungs, brain, animal spirits, blood, any one of these, and life will depart at once. These may be strictly called fundamentals of the human constitution. Though the limbs may be all amputated, the eyes put out, and many other mutilations practised to impair the strength, activity, and other attributes of the man, and yet the essentials of life may remain unimpaired many years.
Similar observations may be made, with equal propriety, concerning every kind of machinery. A clock has also a constitution, that is a certain combination of weights, wheels, and levers, calculated for a certain use and end, the mensuration of time. Now, the constitution of a clock does not imply such a perfect constructure of movement as shall never go too fast or too slow, as shall never gain nor lose a second of time in a year or century. This is the proper business of Quare, Tomlinson, and Graham, to execute the workmanship like artists, and come as near to perfection, that is, as near to a perfect mensuration of time, as the human eye and finger will allow. But yet there are certain parts of a clock, without which it will not go at all, and you can have from it no better account of the time of day than from the ore of gold, silver, brass, and iron, out of which it was wrought. These parts, therefore, are the essentials and fundamentals of a clock. Let us now inquire whether the same reasoning is not applicable in all its parts to government. For government is a frame, a scheme, a system, a combination of powers for a certain end, namely,—the good of the whole community. The public good, the salus populi, is the professed end of all government, the most despotic as well as the most free. I shall enter into no examination which kind of government, whether either of the forms of the schools, or any mixture of them, is best calculated for this end. This is the proper inquiry of the founders of empires. I shall take for granted, what I am sure no Briton will controvert, namely,—that liberty is essential to the public good, the salus populi. And here lies the difference between the British constitution and other forms of government, namely, that liberty is its end, its use, its designation, drift, and scope, as much as grinding corn is the use of a mill, the transportation of burdens the end of a ship, the mensuration of time the scope of a watch, or life and health the designation of the human body.
Were I to define the British constitution, therefore, I should say, it is a limited monarchy, or a mixture of the three forms of government commonly known in the schools, reserving as much of the monarchical splendor, the aristocratical independency, and the democratical freedom, as are necessary that each of these powers may have a control, both in legislation and execution, over the other two, for the preservation of the subject’s liberty.
According to this definition, the first grand division of constitutional powers is into those of legislation and those of execution. In the power of legislation, the king, lords, commons, and people are to be considered as essential and fundamental parts of the constitution. I distinguish between the house of commons and the people who depute them; because there is in nature and fact a real difference, and these last have as important a department in the constitution as the former—I mean the power of election. The constitution is not grounded on “the enormous faith of millions made for one.” It stands not on the supposition, that kings are the favorites of heaven, that their power is more divine than the power of the people, and unlimited but by their own will and discretion. It is not built on the doctrine, that a few nobles or rich commons have a right to inherit the earth, and all the blessings and pleasures of it; and that the multitude, the million, the populace, the vulgar, the mob, the herd, and the rabble, as the great always delight to call them, have no rights at all, and were made only for their use, to be robbed and butchered at their pleasure. No, it stands upon this principle, that the meanest and lowest of the people are by the unalterable, indefeasible laws of God and nature, as well entitled to the benefit of the air to breathe, light to see, food to eat, and clothes to wear, as the nobles or the king. All men are born equal; and the drift of the British constitution is to preserve as much of this equality as is compatible with the people’s security against foreign invasions and domestic usurpation. It is upon these fundamental principles that popular power was placed, as essential, in the constitution of the legislature; and the constitution would be as complete without a kingly as without a popular power. This popular power, however, when the numbers grew large, became impracticable to be exercised by the universal and immediate suffrage of the people; and this impracticability has introduced from the feudal system an expedient which we call representation. This expedient is only an equivalent for the suffrage of the whole people in the common management of public concerns. It is in reality nothing more than this, the people choose attorneys to vote for them in the great council of the nation, reserving always the fundamentals of the government, reserving also a right to give their attorneys instructions how to vote, and a right at certain, stated intervals, of choosing a-new; discarding an old attorney, and choosing a wiser and better. And it is this reservation of fundamentals, of the right of giving instructions, and of new elections, which creates a popular check upon the whole government which alone secures the constitution from becoming an aristocracy, or a mixture of monarchy and aristocracy only.
The other grand division of power is that of execution. And here the king is, by the constitution, supreme executor of the laws, and is always present, in person or by his judges, in his courts, distributing justice among the people. But the executive branch of the constitution, as far as respects the administration of justice, has in it a mixture of popular power too. The judges answer to questions of fact as well as law; being few, they might be easily corrupted; being commonly rich and great, they might learn to despise the common people, and forget the feelings of humanity, and then the subject’s liberty and security would be lost. But by the British constitution, ad quæstionem facti respondent juratores,—the jurors answer to the question of fact. In this manner, the subject is guarded in the execution of the laws. The people choose a grand jury, to make inquiry and presentment of crimes. Twelve of these must agree in finding the bill. And the petit jury must try the same fact over again, and find the person guilty, before he can be punished. Innocence, therefore, is so well protected in this wise constitution, that no man can be punished till twenty-four of his neighbors have said upon oath that he is guilty. So it is also in the trial of causes between party and party. No man’s property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws.
Thus, it seems to appear, that two branches of popular power, voting for members of the house of commons, and trials by juries, the one in the legislative and the other in the executive part of the constitution, are as essential and fundamental to the great end of it, the preservation of the subject’s liberty, to preserve the balance and mixture of the government, and to prevent its running into an oligarchy or aristocracy, as the lords and commons are to prevent its becoming an absolute monarchy. These two popular powers, therefore, are the heart and lungs, the mainspring and the centre wheel, and without them the body must die, the watch must run down, the government must become arbitrary, and this our law books have settled to be the death of the laws and constitution. In these two powers consist wholly the liberty and security of the people. They have no other fortification against wanton, cruel power; no other indemnification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds; no other defence against fines, imprisonments, whipping-posts, gibbets, bastinadoes, and racks. This is that constitution which has prevailed in Britain from an immense antiquity. It prevailed, and the house of commons and trials by jury made a part of it, in Saxon times, as may be abundantly proved by many monuments still remaining in the Saxon language. That constitution which has been for so long a time the envy and admiration of surrounding nations; which has been no less than five and fifty times since the Norman conquest, attacked in parliament, and attempted to be altered, but without success; which has been so often defended by the people of England, at the expense of oceans of their blood; and which, cooperating with the invincible spirit of liberty inspired by it into the people, has never failed to work the ruin of the authors of all settled attempts to destroy it.
What a fine reflection and consolation is it for a man, that he can be subjected to no laws which he does not make himself, or constitute some of his friends to make for him,—his father, brother, neighbor, friend, a man of his own rank, nearly of his own education, fortune, habits, passions, prejudices, one whose life and fortune and liberty are to be affected, like those of his constituents, by the laws he shall consent to for himself and them! What a satisfaction is it to reflect, that he can lie under the imputation of no guilt, be subjected to no punishment, lose none of his property, or the necessaries, conveniencies, or ornaments of life, which indulgent Providence has showered around him, but by the judgment of his peers, his equals, his neighbors, men who know him and to whom he is known, who have no end to serve by punishing him, who wish to find him innocent, if charged with a crime, and are indifferent on which side the truth lies, if he disputes with his neighbor!
Your writings, Mr. Pym, have lately furnished abundant proofs that the infernal regions have taken from you all your shame, sense, conscience, and humanity; otherwise I would appeal to them, who has discovered the most ignorance of the British constitution,—you who are for exploding the whole system of popular power with regard to the Americans, or they who are determined to stand by it, in both its branches, with their lives and fortunes.
GOVERNOR WINTHROP TO GOVERNOR BRADFORD
Governor Hutchinson, in the third volume of his History, has the following paragraph, at the close of the year 1766:—
“The publications, in the newspapers, against the Governor, (Sir Francis Bernard) were abusive and licentious to a great degree. Attempts were made to destroy his character, by false and groundless charges, which easily obtain credit with the people when brought against a governor. At length a very sensible and fair writer, under the signature of Philanthropos, undertook his vindication, and, in a series of papers, much attended to, refuted the calumnies brought against him, and silenced his calumniators.”
In a note to this passage, the name of the writer is given. It was Jonathan Sewall, the old friend of Mr. Adams, who was now rapidly coming to the point where the paths of the two were to diverge, never again to join. The two following papers, manifesting the progress of party asperity, seem to have been written to counteract the effect produced by Philanthropos.
GOVERNOR WINTHROP TO GOVERNOR BRADFORD.1
We have often congratulated each other, with high satisfaction, on the glory we secured in both worlds by our favorite enterprise of planting America. We were Englishmen; we were citizens of the world; we were Christians. The history of nations and of mankind was familiar to us; and we considered the species chiefly in relation to the system of great nature and her all-perfect Author. In consequence of such contemplations as these, it was the unwearied endeavor of our lives to establish a society on English, humane, and Christian principles. This, (although we are never unwilling to acknowledge that the age in which we lived, the education we received, and the scorn and persecution we endured, had tinctured our minds with prejudices unworthy of our general principles and real designs,) we are conscious, was our noble aim. We succeeded to the astonishment of all mankind; and our posterity, in spite of all the terrors and temptations which have from first to last surrounded them, and endangered their very being, have been supremely happy. But what shall we say to the principles, maxims, and schemes, which have been adopted, warmly defended, and zealously propagated in America, since our departure out of it,—adopted, I say, and propagated, more by the descendants of some of our worthiest friends than by any others? You and I have been happier, in this respect, than most of our contemporaries. If our posterity have not without interruption maintained the principal ascendency in public affairs, they have always been virtuous and worthy, and have never departed from the principles of the Englishman, the citizen of the world, and the Christian. You very well remember the grief we felt, for many years together, at the gradual growth and prevalence of principles opposite to ours; nor have you forgotten our mutual joy at the very unexpected resurrection of a spirit which contributed so much to the restoration of that temper and those maxims which we have all along wished and prayed might be established in America. Calamities are the caustics and cathartics of the body politic. They arouse the soul. They restore original virtues. They reduce a constitution back to its first principles. And, to all appearance, the iron sceptre of tyranny, which was so lately extended over all America, and which threatened to exterminate all for which it was worth while to exist upon earth, terrified the inhabitants into a resolution and an ardor for the noble foundations of their ancestors.
But how soon is this ardor extinguished! In the course of a few months they have cooled down into such a tame, torpid state of indolence and inattention, that the missionaries of slavery are suffered to preach their abominable doctrines, not only with impunity, but without indignation and without contempt. What will be the consequence if that (I will not say contemptible but abominable) writer, Philanthrop, is allowed to continue his wicked labors? I say allowed, though I would not have him restrained by any thing but the cool contempt and dispassionate abhorrence of his countrymen; because the country whose interior character is so depraved as to be endangered from within by such a writer, is abandoned and lost. We are fully persuaded, that New England is in no danger from him, unless his endeavors should excite her enemies abroad, of whom she has many, and extremely inveterate and malicious, and enable them, in concert with others within her own bosom, whose rancor is no less malignant and venomous, to do her a mischief. With pleasure I see that gentlemen are taking measures to administer the antidote with the poison.
As the sober principles of civil and ecclesiastical tyranny are so gravely inculcated by this writer, as his artifices are so insidious, and his mis-affirmations so numerous and egregious, you will excuse me if I should again trouble you with a letter upon these subjects from your assured and immutable friend,
In the Boston Gazette of the 2d of February is found the following notice:—
“We have received a second letter from Governor Winthrop to Governor Bradford, and are very sorry it came to hand too late for a place in this day’s paper. But the learned and unlearned, the wise and virtuous, lovers of their country, of all denominations, may depend on a delicious regalement next week.”
The paper of Philanthropos to which this is an answer, is found in the Evening Post of the 26th of January, 1767. It is written with great skill, in order to defend the conduct of Sir Francis Bernard in one particular case, called in the letter below, the Concord anecdote, which may be briefly explained thus,—Sir Francis had received instructions from the government at home not to give his assent to any bill passed by the General Court to divide an old town. The motive assigned for this was that the town representation was already too great for convenient despatch of business in the legislative department, and every subdivision of towns tended to increase it. In 1763, however, there arose out of an unhappy dispute in the old town of Newbury an application to the General Court for a division. So strong were the interests enlisted in its behalf that the Governor was finally induced to transcend his instructions, on the condition, however, that the number of representatives from the two towns should not exceed that of the old one before the division. Notwithstanding this proviso the new town of Newburyport sent two representatives to the General Court which met at Concord in 1764, instead of one, to which only it was entitled. The Governor, taking offence, assumed the responsibility of specially excepting the names of the two representatives in the Dedimus potestatem, or form of power to administer the usual oaths to the members at the commencement of a session. The right of the Governor to do this constituted the ground of the dispute.
GOVERNOR WINTHROP TO GOVERNOR BRADFORD.1
That the Hypocrite reign not, lest the People be ensnared.
You have my promise of another letter, concerning the maxims, arts, and positions of Philanthrop; whose performances of the last week I shall proceed to consider, without any formal apology for departing from the plan I proposed at first.
The art employed by this writer, in the introduction to his account of the Concord anecdote, is worth observation, before we undertake an examination of the account itself, and his reasonings upon it. God forbid that I should trifle with religion, or blame any man for professing it publicly. But there is a decency to be observed in this. True religion is too modest and reserved to seek out the market-places and corners of the streets, party newspapers and political pamphlets, to exhibit her prayers and devotions. Besides, there is so much in the temper of times and manners of ages, that ostentation of this kind may be more excusable in one century than another. The age in which you and I lived was religious to enthusiasm. Yet we may safely say, that canting and hypocrisy were never carried to so shameless a pitch, even by a Sir Henry Vane, an Oliver St. John, an Oliver Cromwell or a Hugh Peters, as Philanthrop in his last Monday’s paper has carried them. True religion, my friend Bradford, was the grand motive, with you and me, to undertake our arduous and hazardous enterprise, and to plant a religion in the world, on the large and generous principles of the Bible, without teaching for doctrines the commandments of men, or any mixture of those pompous rituals, and theatrical ceremonies, which had been so successfully employed to delude and terrify men out of all their knowledge, virtue, liberty, piety, and happiness. A religion that should never be made subservient to the pride, ambition, avarice, or lust, of an assuming priesthood, or a cruel and usurping magistracy, was our incessant aim, and unwearied endeavor. And we have now the happiness to reflect on our success; for at least we have approached nearer to such an institution than any others have done since the primitive ages of Christianity. And although stiffness, formality, solemnity, grimace, and cant, very common in our times, have worn off, in a great measure, from New England; yet true religion, on the plan of freedom, popular power, and private judgment, remains and prospers. This, we are fully persuaded, is truth, though the deluded Philanthrop seems to be so far given up to blindness of mind, as to think that his quotations from Scripture, his affected meekness, charity, benevolence, and piety, his formal stiffness, and hypocritical grimace, will divest his countrymen of their senses, and screen him from their jealousy, while he is tearing up, by his principles and practices, conversation and writings, the foundations of their constitution, both in church and state.
But it is not only by attempting to throw around himself the rays of religion, that this writer has attempted to deceive his countrymen; he has labored to possess their minds with principles in government utterly subversive of all freedom, tending to lull them into an indolent security and inattention. In one of his late papers he has a paragraph to this purpose,—“A brave and free people, who are not through luxury enervated and sunk to that degree of effeminate indolence, which renders them insensible to the difference between freedom and slavery, can never fail to perceive the approaches of arbitrary power. The constitution of all free governments, especially that of the English, is of such a nature, the principles of it are so familiar, and so interwoven with the human mind, and the rulers are so circumscribed with positive laws, for the directing and controlling their power, that they can never impose chains and shackles on the people, nor even attempt it, without being discovered. In such a government, and among such a people, the very first act in pursuance of a design to enslave or distress the subjects in general, must be so obvious, as to render all false coloring totally unnecessary to arouse the public attention; a simple narration of facts, supported by evidence, which can never be wanting in such a case, will be sufficient, and will be the surest means to convince the people of their danger.”
What conclusion shall a candid reader draw by a fair interpretation from this wordy, cloudy passage? Would he not conclude that a free government, especially the English, was a kind of machine, calculated for perpetual motion and duration; that no dangers attended it; and that it may easily preserve and defend itself, without the anxiety or attention of the people?
The truth is precisely the reverse of this. Though a few individuals may perceive the approaches of arbitrary power, and may truly publish their perceptions to the people, yet it is well known, the people are not persuaded without the utmost difficulty to attend to facts and evidence. Those who covet such power, always have recourse to secrecy and the blackness of darkness to cover their wicked views, and have always their parties and instruments and minions at hand, to disguise their first approaches, and to vilify and abuse,—as turbulent destroyers of the public peace, as factious, envious, malicious pretenders to patriotism, as sowers and stirrers of sedition,—all those who perceive such approaches, and endeavor to inform and undeceive their neighbors. Liberty, instead of resting within the intrenchment of any free constitution of government ever yet invented and reduced to practice, has always been surrounded with dangers, exposed to perils by water and by fire. The world, the flesh, and the devil, have always maintained a confederacy against her, from the fall of Adam to this hour, and will, probably, continue so till the fall of Antichrist. Consider the commonwealths of Greece. Were not the wisest of them so sensible of it as to establish a security of liberty, I mean the ostracism, even against the virtues of their own citizens,—that no individual, even by his valor, public spirit, humanity, and munificence, might endear himself so much to his fellow citizens as to be able to deceive them and engross too much of their confidence and power? In Rome, how often were the people cheated out of their liberties, by kings, decemvirs, triumvirs, and conspirators of other denominations! In the times when Roman valor, simplicity, public spirit, and frugality, were at the highest, tyranny, in spite of all the endeavors of her enemies, was sometimes wellnigh established, and even a Tarquin could not be expelled but by civil war. In the history of the English nation, which Philanthrop is pleased to distinguish from all others, how many arbitrary reigns do we find since the conquest! Sometimes, for almost a whole century together, notwithstanding all the murmur, clamor, speeches in the senate, writings from the press, and discourses from the pulpit, of those whom Philanthrop calls turbulent destroyers of the public peace, but you and I think the guardian angels of their country’s liberties, the English nation has trembled and groaned under tyranny.
For reasons like these, the spirit of liberty is and ought to be a jealous, a watchful spirit. Obsta principiis is her motto and maxim, knowing that her enemies are secret and cunning, making the earliest advances slowly, silently, and softly, and that, according to her unerring oracle, Tacitus, “the first advances of tyranny are steep and perilous, but, when once you are entered, parties and instruments are ready to espouse you.” It is one of these early advances, these first approaches of arbitrary power, which are the most dangerous of all, and, if not prevented but suffered to steal into precedents, will leave no hope of a remedy without recourse to nature, violence, and war, that I now propose to consider.
And, in the first place, let us see how far the court writer and his opponents are agreed in the facts. They seem to agree that two gentlemen, chosen and returned as members of the house, were expressly excepted by the Governor in the dedimus, or power of administering the usual oaths to the members of the house; that the house, that is, the gentlemen returned from the other towns besides Newbury, would not receive the dedimus with this exception, that is, refused themselves to be sworn by virtue of it. I say, by the way, that Philanthrop agrees to this fact, though he seems to endeavor, by the obscurity of his expression, to disguise it; because the house itself must have considered the exception as an infraction of their right, though Philanthrop only says it was so considered by some among them; otherwise the house would not have chosen a committee to remonstrate against the exception. That the Governor erased the exception, or gave a new dedimus, upon the remonstrance of the committee; that the Governor, however, gave it up only for that time, expressly reserving the claim of right to except members out of the commission, and told the committee he should represent the case home for further instructions concerning it. This being the acknowledged state of facts, trifling with the instance in the reign of king James the First, is as good a proof of Philanthrop’s knowledge in history and the constitution as his shrewd suggestion, that Cassius and B. B. are the same person, is of his sagacity. It is with real sorrow that I now observe and propose hereafter to demonstrate, that both Philanthrop and his idol are too much enamored with the fine example of the Jemmys and Charleys, and too much addicted to an awkward imitation of their conduct. One example of such an imitation is this of the dedimus at Concord, this memorable attempt to garble the house of representatives, which bears so exact a resemblance to the conduct of that self-sufficient innovator, that pedantical tyrant, that I own it seems more probable to me to have been copied designedly from it than to have happened by accident. For the gentleman whose conduct and character Philanthrop defends, cannot be denied to be well read in the reigns of the Stuarts, and therefore cannot be supposed to have been ignorant of James’s conduct. That a solid judgment may be formed of the nature of the privilege for which I contend, and whether it has been invaded or not, I shall produce a short sketch of the history of that transaction, and will then produce the opinion of writers quite impartial, or to be sure not partial in my favor, concerning it.
If we go back so far as the reign of Elizabeth, we find her, on one occasion, infringing on this privilege of the commons, of judging solely of their own elections and returns. This attempt was, however, so warmly resented by the commons that they instantly voted,—“That it was a most perilous precedent, when two knights of a county were duly elected, if any new writ should issue out, for a second election, without order of the house itself. That the discussing and adjudging of this and such like differences belonged only to the house; and that there should be no message sent to the Lord Chancellor, not so much as to inquire what he had done in the matter; because it was conceived to be a matter derogatory to the power and privilege of the house.” After this vote, which had in it something of the spirit of liberty and independency, we hear of no more disputes upon that subject till we come to the reign of James the First, whose whole life was employed in endeavoring to demolish every popular power in the constitution, and to establish the awful and absolute sovereignty of kingship, that, as he expressed himself to the convocation, Jack and Tom and Dick and Will might not meet and censure him and his council. And in order to accomplish the important purpose of his reign, he thought that nothing could be more useful than to wrest from the commons into his own hands, or those of his creature, the chancellor, the adjudication of their elections and returns. Outlaws, whether for misdemeanors or debts, had been declared by the judges, in the reign of Henry the Sixth, incapable by law of a seat in the house, where they themselves must be lawgivers. Sir Francis Goodwin was now chosen for the county of Bucks; and his return was made as usual into chancery. The chancellor decreed him an outlaw, vacated his seat, and issued writs for a new election. Sir John Fortescue was chosen in his room. But the first act of the house was to reverse the decree of the chancellor, and restore Goodwin to his seat. At James’s instigation, the lords desired a conference on this subject, but were absolutely refused by the commons, as the question regarded entirely their own privileges. They agreed, however, to make a remonstrance to the king, by their speaker; where they maintained that though the returns were by form made into chancery, yet the sole right of judging with regard to elections belonged to the house itself. James was not satisfied, and ordered a conference between the house and the judges. The commons were in some perplexity. Their eyes were now opened; and they saw the consequences of that power which had been assumed, and to which their predecessors had in some instances blindly submitted. This produced many free speeches in the house. “By this course,” said one member, “the free election of the counties is taken away; and none shall be chosen but such as shall please the king and council. Let us therefore with fortitude, understanding, and sincerity, seek to maintain our privileges. This cannot be construed any contempt in us, but merely a maintenance of our common rights, which our ancestors have left us, and which is just and fit for us to transmit to our posterity.” Another said,—“This may be called a quo warranto, to seize all our liberties.” “A chancellor,” added a third, “by this course may call a parliament consisting of what persons he pleases. Any suggestion, by any person, may be the cause of sending a new writ. It is come to this plain question, whether the chancery or parliament ought to have authority.” The commons, however, notwithstanding this watchful spirit of liberty, appointed a committee to confer with the judges before the king and council. There the question began to appear a little more doubtful than the king had imagined; and, to bring himself off, he proposed that Goodwin and Fortescue should both be set aside, and a writ be issued by the house for a new election. Goodwin consented; and the commons embraced this expedient, but in such a manner that, while they showed their regard for the king, they secured for the future the free possession of their seats, and the right which they claimed of judging solely of their own elections and returns. Hume, who will not be suspected of prejudice against the Stuarts, and very nearly in whose words this story is related, remarks at the conclusion,—“A power like this, so essential to the exercise of all their other powers, themselves so essential to public liberty, cannot fairly be deemed an encroachment in the commons, but must be regarded as an inherent privilege, happily rescued from that ambiguity which the negligence of former parliaments had thrown upon it.” Smollett concludes his account of this affair with this reflection,—“Thus the commons secured to themselves the right of judging solely in their own elections and returns.” And my Lord Bolingbroke, whose knowledge of the constitution will not be disputed, whatever may be justly said of his religion and his morals, remarks upon this transaction of James thus,—“Whether the will of the prince becomes a law independently of parliament, or whether it is made so upon every occasion by the concurrence of parliament, arbitrary power is alike established. The only difference lies here. Every degree of this power which is obtained without parliament, is obtained against the forms, as well as against the spirit of the constitution, and must, therefore, be obtained with difficulty, and possessed with danger. Whereas, in the other method of obtaining and exercising this power, by and with parliament, if it can be obtained at all, the progress is easy and short, and the possession of it so far from being dangerous, that liberty is disarmed as well as oppressed by this method; that part of the constitution, (namely, the house of commons,) which was instituted to oppose the encroachments of the crown, the maladministration of men in power, and every other grievance, being influenced to abet these encroachments, to support this maladministration, and even to concur in imposing the grievances.”
Now, if we compare the attempt of King James with the attempt of the governor, who can discern a difference between them? James would have vacated the seat of Sir Francis Goodwin, because his election was against law; that is, because Sir Francis was an outlaw. The governor would have vacated the seats of Colonel Gerrish and Captain Little, because their election was against law, that is, because they were both chosen and returned by a town which by law was to choose and return but one. The king in one case, the governor in the other, made himself judge of the legality of an election, and usurped authority to vacate the seats of members. I consider the power of the chancellor here, which the king contended for, as the power of the king; because there is no great difference in such cases, as has been very well known from the time of James to this day, between the power of the creator and that of the creature. And I say, vacate the seats, because an exception from the dedimus is an absolute annihilation of a gentleman’s seat; because by charter no man can vote or act as a representative till he has taken the oaths. It is as entire an exclusion from the house as an expulsion would be.
We will now, if you please, throw together a few reflections upon the soothing, amazing, melting solution of this arduous difficulty with which Philanthrop has entertained the public.
He begins with an instruction to the governor from his majesty not to consent to the division of towns. There has often been conversation during the administration of several late governors, concerning such a royal instruction, which, for any thing I know, may be a good one; but let it be good or evil, or whether there is any such or not, it has been found in experience, that when the division of a town would make way for the election of a friend, this instruction has been no impediment; and I need not go further than Concord and Newbury for two examples of this. Though I must go as far as the celebrated Berkshire for an instance of another member and favorite chosen and returned as expressly against the instruction and law of the province, and knowingly suffered by the governor to be sworn, without any exception in the dedimus, and to vote for the council; and finally left to the house, without any exception, caveat, message, or hint, to judge of their privilege, and vacate his seat. But to return to the instruction, is it a command to the governor to take upon himself to judge of the legality or illegality of the choice, returns, or qualifications of the members of the house? No man will pretend this, or dare throw such an infamous affront upon his majesty or his ministers, who perfectly know that even his majesty himself has no right or authority whatever to judge in this matter; and that for the king himself to attempt to judge of the elections, returns, or qualifications of the members of the house of commons, or of the house of representatives, would be an invasion of their privilege as really, as for them to coin money, or issue commissions in the militia, would be an encroachment on the royal prerogative. If Newbury had sent ten, and Boston forty, members, has the common law, or any act of parliament, or any law of the province, or this, his majesty’s instruction, made the governor the judge, that those towns have not a right by law to send so many? The only question is, who shall judge? Is it the purport of that instruction, that the governor should except the forty and the ten out of the dedimus? Would it not be as much as the king would expect of the governor, if he should give the dedimus in the usual form, that is, to swear all the members, and leave it to the house to judge who the members were? And if the governor really supposed, as Philanthrop says he did, that the house would be jealous of the honor of their own laws, why should he have taken that jealousy away from them? Why did he not leave it to them to vindicate their own cause? If he had known any facts in this case, of which the house was not apprized, it would have been friendly and constitutional in him to have hinted it privately to some member of the house, that he might have moved it there. But there was no pretence of this, the case of Newbury being as well known to the house as to the governor. Or if he must have inserted himself in the business publicly, he might have sent the necessary information to the house in a message, recommending it to their consideration, not giving his own opinion, for this would have been an infraction of their privilege, because they are the sole judges in the matter, and ought not to be under the influence even of a message from his Excellency, expressing his opinion, in deciding so very delicate a point as elections and returns, a point on which all the people’s liberties depend. Five members chosen and returned by Boston would be an illegal election; but how should the governor come by his knowledge, that Boston had chosen and returned five? How should the precepts and returns come into his hands? It is no part of his excellency’s duty to examine the returns which are made to the sheriff, and lodged in the secretary’s office. There can be no objection to his looking over them to satisfy his curiosity; but to judge of them belongs wholly to another department. Suppose him to have inspected them, and found five returned for Boston; would not this be as manifestly against the spirit of the instruction, and the standing law of the province, as the case of Newbury? And what pretence would he have to judge of this illegal election, any more than of any other? Suppose, for instance, it was proved to his excellency, that twenty members returned were chosen by corruption, that is, had purchased the votes of the electors by bribery; or let it be proved that any members had taken Rhode Island or New Hampshire bills, were outlaws, or chosen by a few inhabitants of their towns without any legal meeting, these would be equally illegal elections, equally against the instructions and the law of the land; but shall the governor judge of these things, and vacate all such seats, by refusing them their oaths? Let it be suggested that a member is an infant, an idiot, a woman in man’s clothing, a leper, a petit-maître, an enemy to government, a friend to the governor’s enemies, a turbulent destroyer of the public peace, an envious, malicious pretender to patriotism, any one of these or a thousand other pretences, if the governor is once allowed to judge of the legality or illegality of elections and returns, or of the qualifications or disqualifications of members, may soon be made sufficient to exclude any or all whom the governor dislikes. The supposition that Boston should send forty, and all the other towns ten, is possible; but it is not less improbable than that the governor, and all others in authority, should be suddenly seized with a delirium, negative every counsellor chosen, dissolve the house, call another, dissolve that, command all the militia to muster and march to the frontiers, and a thousand other raving facts; and all that can be said is, that when such cases shall happen, the government will be dissolved, and individuals must scramble as well as they can for themselves, there being no resource in the positive constitution for such wild cases. But surely, a negative, a right of exception in the dedimus, would be of no service to him in such a case. So that no justification or excuse for the governor’s apprehensions or conduct, can be drawn from such supposed cases.
How the governor’s conduct in signing the bill for dividing Newbury came to be considered as so very friendly and highly obliging, is not easily comprehended, unless every act of the governor is to be considered in that light. If he signed the bill to oblige any particular friend, or in order that a friend’s friend might get into the house, it was friendly and obliging no doubt to such friends; but if he signed it because he thought it for the general good, as I suppose he did, it was a part of his general duty, as governor, and no more obliging than any other act of equal importance. I suppose here, that such conduct was not inconsistent with what he knew to be the intention of his instructions; for surely no man will call it friendly and obliging wilfully to break his instructions for so small a benefit to the province as dividing a town. So that he can’t be imagined to have run any risk in this case, any more than in any other instance of his duty.
It is asserted that the governor had been misinformed concerning the custom of the house. How far this is true, I know not. But had he been informed that they had a custom to let the governor judge of their elections and returns; a custom to let him pick out whom he would to be sworn, and whom he would to send home? Unless he had been informed of such a custom, I cannot see that any other misinformation can defend or even palliate his taking that part upon himself. But surely, he had opportunity enough to have had the truest information. There were gentlemen enough of both houses ready to acquaint him with the customs, nay, the journals of the house would have informed him that the returns were all read over the first day before they proceeded to the choice of counsellors. And he ought, one would think, to have been very sure he was right before he made so direct an onset on so fundamental a privilege. Besides, it has been, and is very credibly reported, and I believe it to be true, that he gave out, more than a week before that election, what he would do and did, and that some of his friends, fearing the consequences, waited on him, on purpose to dissuade him from such an attempt, but without success. So that it was no sudden thought, nor inadvertency, nor rashness of passion. I report this, as I have before some other things, from credible information and real belief, without calling on witnesses by name; as such evidence has lately come in fashion and is thought alone sufficient to support narratives and depositions, sent to the boards at home, charging the blackest crimes on the country and some of the most respectable characters in it. But admitting he was misinformed of the custom, I can’t see that this is of any weight at all in the dispute. Whether the house examined any returns at all the first day, or not, he could have no pretence to interpose. If he thought the custom was to examine no returns till the second day, and that such a custom was wrong, and ought to be altered, he might, for aught I know unexceptionably, have sent a message recommending this matter to the consideration of the house, not dictating to them how they should decide; much less should he have decided himself without consulting them; much less should he have taken from them the opportunity of judging at all, as, by excepting the gentlemen out of the dedimus, in fact he did.
Philanthrop makes it a problematical point, whether his excellency’s apprehensions or the custom of the house be most consonant to reason and our constitution. I confess myself at a loss to know, from his account, what his excellency’s apprehensions were. If he means, that his excellency apprehended that the house ought to change their custom, and decide upon all elections and returns before they proceed to the choice of counsellors, I agree with him that such a point is immaterial to the present dispute; but if he means, that his excellency apprehended he had a right to except such members out of the dedimus as he pleased, or any members at all, he begs the question, and assumes that it is problematical whether he is or is not the sole judge of elections, has or has not the same cathartic negative to administer, when he thinks proper, to the house, as he has to the board; which, according to all the authorities I have cited before, and according to common sense, is to make it problematical whether the governor has or has not plenary possession of arbitrary power.
It is asserted by our writer that the two gentlemen were sworn, and voted, or might have voted. As to their being sworn, there could not possibly any harm accrue from any gentleman’s taking the oaths of allegiance, subscribing the declaration, &c. and if the committee had been pleased to swear the whole country on that occasion, no damage would have been done; and from whence the governor’s dread of administering the oaths of allegiance to those gentlemen could arise, I can’t conceive. From scruples of conscience it could not be, because he has often taken those oaths himself. As to the gentlemen’s voting, I believe Philanthrop is mistaken; because I have been strongly assured they did not, but that they stood by till the elections were over, as it was expected by the other members that they should. However, I do not affirm this. The gentlemen themselves can easily determine this matter.
Philanthrop is often complaining of “skulking, dark insinuations,” &c.; but I know of no man who deals in them so much as he. Witness, among a thousand others, his base insinuations about the senate and Gazette,1 in his first piece, and what he says in his last about such a thing “being given out from a certain quarter, from what principle he will not say,” a very dark, unintelligible insinuation of nobody knows what, against nobody knows whom, which leaves everybody at liberty to fix what he will on whom he will, and tends only to amuse and mislead. And nearly of the same character is a curious expression somewhere in the piece, calling the exception of the two gentlemen out of the dedimus, a “caveat to the house;” which is about as sensible as it would be to cut off a man’s legs and chain him fast to a tree, and then give him a caution, a caveat, not to run away.
That the governor did not succeed in his attempt is no proof that he did not make it. Our thanks are not due to him, but to the house, that this dedimus was not received, all the members sworn by virtue of it, and itself lodged on file, as a precedent, to silence all envious and revengeful declaimers, both for himself and all his successors. It is equally true, that King James did not succeed in his attempt, but gave it up. Yet all historians have recorded that attempt, as a direct and formidable attack on the freedom of elections, and as one proof that he aimed at demolishing the constitution, at stretching prerogative beyond its just bounds, and at abridging the constitutional rights and liberties of the nation. What should hinder, but that a governor’s attempt should be recorded too? I doubt not a Bacon quibbling and canting his adulation to that monarch, in order to procure the place of attorney-general or lord chancellor, might celebrate his majesty’s friendly, modest, obliging behavior in that affair; yet even the mighty genius of Bacon could never rescue his sordid soul from contempt for that very adulation, with any succeeding age.
INSTRUCTIONS OF THE TOWN OF BOSTON TO THEIR REPRESENTATIVES, 17 JUNE, 1768.
The history of the seizure of Mr. Hancock’s sloop Liberty, for a violation of the revenue laws, and of the riots that followed, is given at large by Hutchinson1 and by Gordon.2 It is sufficient for the present purpose, to state, that the event led to a crowded town meeting held on the 13th of June, 1768, at which James Otis was made chairman, and a committee of twenty-one persons was appointed to wait on the governor with an address and remonstrance, ascribed by Governor Hutchinson to Otis’s pen. At the same time another committee was appointed to prepare instructions to the representatives, then newly chosen, for their regulation “at this alarming crisis.” That committee reported the following paper to an adjourned meeting on the 17th, when it was unanimously adopted.
These instructions were written by Mr. Adams. They, as well as the address, are given in full by Mr. Hutchinson in the appendix to the third volume of his history.
TO THE HON. JAMES OTIS, AND THOMAS CUSHING, ESQUIRES; MR. SAMUEL ADAMS, AND JOHN HANCOCK, ESQUIRE.
After the repeal of the late American Stamp Act, we were happy in the pleasing prospect of a restoration of that tranquillity and unanimity among ourselves, and that harmony and affection between our parent country and us, which had generally subsisted before that detestable act. But with the utmost grief and concern, we find that we flattered ourselves too soon, and that the root of bitterness is yet alive. The principle on which that act was founded continues in full force, and a revenue is still demanded from America.
We have the mortification to observe one act of parliament after another passed for the express purpose of raising a revenue from us; to see our money continually collecting from us, without our consent, by an authority in the constitution of which we have no share, and over which we have no kind of influence or control; to see the little circulating cash that remained among us for the support of our trade, from time to time transmitted to a distant country, never to return, or, what in our estimation is worse, if possible, appropriated to the maintenance of swarms of officers and pensioners in idleness and luxury, whose example has a tendency to corrupt our morals, and whose arbitrary dispositions will trample on our rights.
Under all these misfortunes and afflictions, however, it is our fixed resolution to maintain our loyalty and duty to our most gracious Sovereign, a reverence and due subordination to the British parliament, as the supreme legislative in all cases of necessity, for the preservation of the whole empire,1 and our cordial and sincere affection for our parent country; and to use our utmost endeavors for the preservation of peace and order among ourselves; waiting with anxious expectation, for a favorable answer to the petitions and solicitations of this continent for relief. At the same time, it is our unalterable resolution, at all times, to assert and vindicate our dear and invaluable rights and liberties, at the utmost hazard of our lives and fortunes; and we have a full and rational confidence that no designs formed against them will ever prosper.
That such designs have been formed, and are still in being, we have reason to apprehend. A multitude of placemen and pensioners, and an enormous train of underlings and dependents, all novel in this country, we have seen already. Their imperious tempers, their rash, inconsiderate, and weak behavior, are well known.
In this situation of affairs, several armed vessels, and among the rest his majesty’s ship-of-war, the Romney, have appeared in our harbor; and the last, as we believe, by the express application of the board of commissioners, with the design to overawe and terrify the inhabitants of the town into base compliances and unlimited submission, has been anchored within a cable’s length of the wharves.
But passing over other irregularities, we are assured that the last alarming act of that ship, namely,—the violent, and, in our opinion, illegal seizure of a vessel lying at a wharf, the cutting off her fasts, and removing her with an armed force in hostile manner, under the protection of the king’s ship, without any probable cause of seizure that we know of, or indeed any cause that has yet been made known, no libel or prosecution whatever having yet been instituted against her, was by the express order or request in writing of the board of commissioners to the commander of that ship.
In addition to all this, we are continually alarmed with rumors and reports of new revenue acts to be passed, new importations of officers and pensioners to suck the life-blood of the body politic while it is streaming from the veins; fresh arrival of ships-of-war to be a still severer restraint upon our trade, and the arrival of a military force to dragoon us into passive obedience; orders and requisitions transmitted to New York, Halifax, and to England, for regiments and troops to preserve the public peace.
Under the distresses arising from this state of things, with the highest confidence in your integrity, abilities, and fortitude, you will exert yourselves, gentlemen, on this occasion, that nothing be left undone that may conduce to our relief; and, in particular, we recommend it to your consideration and discretion, in the first place, to endeavor that impresses of all kinds may, if possible, be prevented. There is an Act of Parliament in being which has never been repealed, for the encouragement of the trade to America. We mean by the 6th Anne chap. xxxvii. sect. 9, it is enacted, “That no mariner or other person who shall serve on board, or be retained to serve on board any privateer or trading ship or vessel that shall be employed in any part of America, nor any mariner, or other person, being on shore in any part thereof, shall be liable to be impressed or taken away by any officer or officers, of or belonging to any of her majesty’s ships-of-war, impowered by the lord high admiral or any other person whatsoever, unless such mariner shall have before deserted from such ship-of-war belonging to her majesty, at any time after the fourteenth day of February, 1707, upon pain that any officer or officers so impressing or taking away, or causing to be impressed or taken away, any mariner or other person, contrary to the tenor and true meaning of this act, shall forfeit to the master or owner or owners of any such ship or vessel, twenty pounds for every man he or they shall so impress or take, to be recovered, with full costs of suit, in any court within any part of her majesty’s dominions.” So that any impresses of any mariner from any vessel whatever, appear to be in direct violation of an act of parliament. In the next place, it is our desire that you inquire and use your endeavors to promote a parliamentary inquiry for the authors and propagators of such alarming rumors and reports as we have mentioned before; and whether the commissioners or any other persons whatever have really wrote or solicited for troops to be sent here from New York, Halifax, England, or elsewhere, and for what end; and that you forward, if you think it expedient, in the house of representatives, resolutions that every such person who shall solicit or promote the importation of troops at this time, is an enemy to this town and province, and a disturber of the peace and good order of both.
INSTRUCTIONS OF THE TOWN OF BOSTON TO THEIR REPRESENTATIVES, 15 MAY, 1769.
In the spring of 1769, an unusual number of British troops were stationed in Boston. The main guard, “unluckily,” as Hutchinson expresses it, and “without any design to give offence, had been stationed in a house which was before unoccupied, opposite to the door of the court house; and, as is usual, some small field pieces were placed before the door of the guard-house, and thus happened to point to the door of the court house.”1 However usual this may have been elsewhere, it was so unprecedented an event in Boston as to give rise to a reasonable suspicion of some design to overawe the legislature about to assemble there. At the annual town meeting, it was decided to appoint a committee to draw up instructions to their representatives, suitable for the emergency. Mr. Adams was placed at the head of this committee, and reported the following paper. Mr. Bradford gives the substance of it in his history, and says it “was an expression of feelings worthy of freemen, and deserving perpetual remembrance.”2
At the adjournment of the meeting of the freeholders, and other inhabitants of this town, on Monday last, the committee appointed for that purpose reported the following draft of instructions, which, being several times distinctly read, was accepted by the town, nemine contradicente:—
TO THE HONORABLE JAMES OTIS, AND THOMAS CUSHING, ESQUIRES; MR. SAMUEL ADAMS, AND JOHN HANCOCK, ESQUIRE.
You have once more received the highest testimony of the confidence and affection of your constituents, which the constitution has empowered them to exhibit,—the trust of representing them in the great and general court, or assembly of this province. This important trust is committed to you at a time when your country demands the exertion of all your wisdom, fortitude, and virtue, and therefore, it is presumed, a free communication of our sentiments cannot but be agreeable to you.
The first object of your attention is the privilege of that assembly of which you are now chosen to be members. The debates there must be free. You will therefore exert yourselves to remove every thing that may carry the least appearance of an attempt to awe or intimidate. As the assembly is called to sit in the usual place, common decency as well as the honor and dignity of a free legislative, will require a removal of those cannon and guards, as well as that clamorous parade which has been daily around the court house since the arrival of his majesty’s troops, and at some times while the highest court of judicature has been sitting there, on the trial even of capital causes. When this grievance shall be removed, and the debates of the assembly shall be free, it will be natural to inquire into all the grievances we have suffered from the military power; why they have been quartered in the body of the town, in contradiction to the express words, and, as we conceive, the manifest intention of an act of parliament; why the officers who have thus violated our rights have not been called to an account, and dealt with as the law required; whether the measure taken by the governor of the province, in appointing an extraordinary officer to provide quarters for the troops, was not an evasion of the act of parliament made for the billeting and quartering his majesty’s troops in America, (the professed rule of their conduct,) and a design to elude the clause of said act purposely providing for the convenience of American subjects, and their security against an excess of military power? Why the repeated offences and violences committed by the soldiery, against the peace, and in open defiance and contempt of the civil magistrate and the law, have escaped punishment in the courts of justice? And whether the attorney-general has not, in some late instances, unduly exercised a power of entering nolle prosequi upon indictments, without the concurrence of the court, in obstruction to the course of justice, and to the great encouragement of violence and oppression?
And, as the quartering troops here has proved the occasion of many evils, we do earnestly recommend to you to use your utmost endeavors for a speedy removal of them.
Should the expense that has been incurred for providing barracks for the troops, and supplying them with necessaries, be required of the house of representatives, we do in the most solemn and express manner enjoin you, by no means to comply with such a requisition. If the general court is a free assembly, no power upon earth has authority to compel it to pay this money. Should it ever be deprived of its freedom, it shall never, with our consent, be made an engine to drain us of the little money we have left.
Another object of great importance, and which requires your earliest attention, is a late flagrant and formal attack upon the constitution itself,—an attempt not only to deprive us of the liberties, privileges, and immunities of our charter, but the rights of British subjects. We have seen copies of letters published here, authenticated by the clerk of the papers to the honorable house of commons, the contents of which must have awakened the jealousy of the country.1 The design of the writer is sufficiently apparent. And, considering his station as representative of the first person in the empire, and the rank of the minister to whom he addressed himself, we cannot wonder that credit has been given to his letters in Great Britain, and that they have already produced effects alarming to the colonies, and dangerous to both countries. It is therefore expected, that you use the whole influence you may have, that the injurious impressions which they have unhappily made may be removed, and that an effectual antidote may be administered, before the poison shall have wrought the ruin of the constitution.
It is unnecessary for us, at this time, to repeat our well-known sentiments concerning the revenue which is continually levied upon us, to our great distress, and for no other end than to support a great number of very unnecessary placemen and pensioners. We have only to add, that our sentiments on this subject are in no respect changed, and we expect that you will pursue with firm resolution and unremitted ardor, every measure that may tend to procure us relief, never yielding your consent to, or connivance at the least encroachment on our rights.
Next to the revenue itself, the late extensions of the jurisdiction of the admiralty are our greatest grievance. The American courts of admiralty seem to be forming by degrees into a system that is to overturn our constitution and to deprive us entirely of our best inheritance, the laws of the land. It would be thought in England a dangerous innovation, if the trial of any matter upon land was given to the admiralty; it would be thought more threatening still, if the power of confiscation over ships and cargoes for illicit trade was committed to the court; but if the forfeitures of ships and cargoes, large penalties upon masters, and such exorbitant penalties as the treble value of cargoes upon every person concerned in landing uncustomed goods were, by act of parliament, appointed to be tried by the admiral, the nation would think their liberties irrecoverably lost.
This, however, is the miserable case of North America! In the forty-first section of the statute of the fourth of George III. chap. xv. we find that “all the forfeitures and penalties inflicted by this or any other act of parliament, relating to the trade and revenues of the British colonies or plantations in America, which shall be incurred there, may be prosecuted, sued for, and recovered in any court of admiralty in the said colonies.” Thus these extraordinary penalties and forfeitures are to be heard and tried, not by a jury, nor by the law of the land, but by the civil law of a single judge! Unlike the ancient barons who answered with one voice, “We will not that the laws of England be changed, which of old have been used and approved,” the barons of modern times seem to have answered that they are willing those laws should be changed with regard to America in the most tender point and fundamental principle.
And this hardship is the more severe, as we see in the same page of the statute, and the section immediately preceding,—“That all penalties and forfeitures which shall be incurred in Great Britain shall be prosecuted, sued for, and recovered in any of his majesty’s courts of record in Westminster, or in the court of exchequer in Scotland respectively.” Here is a contrast that stares us in the face! A partial distinction that is made between the subject in Great Britain and the subject in America! The parliament in one section guarding the people of the realm and securing to them the benefit of a trial by jury and the law of the land, and by the next section depriving Americans of those important rights. Is not this distinction a brand of disgrace upon every American—a degradation below the rank of an Englishman? Is it not with respect to us a repeal of the twenty-ninth chapter of Magna Charta? “No freeman shall be taken or imprisoned or disseised of his freehold or liberties or free customs or outlawed or exiled or any otherwise destroyed, nor will we pass upon him nor condemn him, but by lawful judgment of his peers or the law of the land.” Englishmen are inviolably attached to the important right expressed in this clause, which for many centuries has been the noblest monument and firmest bulwark of their liberties. One proof of this attachment, given us by a great sage of the law, we think proper to mention, not for your information, but as the best expression of the sense of your constituents. “Against this ancient and fundamental law, and in the face thereof,” says Lord C̀oke, “I find an act of parliament made, that as well justices of assize as justices of peace, without any finding or presentment of twelve men, upon a bare information for the king before them made, should have full power and authority by their discretions to hear and try men for penalties and forfeitures.” His lordship, after mentioning the repeal of this statute, and the fate of Empson and Dudley, who received the full weight of the national vengeance for acting under it, concludes with a reflection, which, if well considered, might be sufficient to discourage such attacks upon fundamental principles: “The ill-success of this statute, and the fearful end of these two oppressors, should deter others from committing the like, and should admonish parliaments, that instead of this ordinary and precious trial by the law of the land, they bring not in absolute and partial trials by discretion.” Such are the feelings and reflections of an Englishman upon a statute not unlike the statute now under consideration, and upon courts and judges not unlike the courts and judges of admiralty in America!
The formidable power of these courts, and their distressing course of proceedings, have been severely felt within the year past; many of your fellow-citizens having been worn out with attendance upon them, in defence against informations for extravagant and enormous penalties. And we have the highest reason to fear, from past experience, that if no relief is obtained for us, the properties and liberties of this unhappy country, and its morals too, will be ruined by these courts and the persons employed to support them.
We, therefore, earnestly recommend to you, by every legal measure, to endeavor that the power of these courts may be confined to their proper element, according to the ancient English statutes; and that you petition and remonstrate against the late extensions of their jurisdiction; and, we doubt not, the other colonies and provinces who suffer with us under them will cheerfully harmonize with this in any justifiable measures that may be taken for redress.
We need not here take occasion to instruct you, that while you in the most ample manner testify your loyalty to our gracious sovereign, you strenuously assert and maintain the right of the subject, jointly or severally to petition the king, or to declare it as our clear opinion that the house of representatives in any one province has an undeniable right, whenever a just occasion shall offer, to communicate their sentiments upon a common concern to the assemblies of any or all the other colonies, and to unite with them in humble, dutiful, and loyal petitions for redress of a general grievance.
THE INDEPENDENCE OF THE JUDICIARY; A CONTROVERSY BETWEEN WILLIAM BRATTLE AND JOHN ADAMS 1773
INDEPENDENCE OF THE JUDICIARY.
The origin of the following controversy is given in the Diary of Mr. Adams.1 The assumption of the payment of the judges’ salaries by the king, in conjunction with the natural and general tendency, in all ages and countries, of the legal profession to side with authority, threatened to put the administration of the law completely under the control of government. The people of Massachusetts, greatly alarmed at this state of things, which was not relieved by the signs of temporizing visible in some leading quarters, first resorted, at this moment, to the expedient, which afterwards proved so effective, of a regular organization of committees of correspondence in the towns. Among those who had given signs of a disposition to change his course, was General William Brattle, of Cambridge, senior member of the council, who seized the opportunity of a town meeting, called to remonstrate against the measure, to make a speech designed to reconcile the popular sentiment to it. Relying upon the silence of the bar, it would seem that he ventured so far as to challenge the patriotic party, and even Mr. Adams by name as the most prominent lawyer attached to it, to dispute his positions. The following papers were the result. They are given in series, rather as a curious specimen of the controversial skill and professional learning of Mr. Adams, than as involving any points of great present interest. Although it must be admitted that, by the revolution of sentiment, the question underlying the controversy bids fair to rise again in a modified shape, for decision in America.
Cambridge, 21 December, 1772.
At a legal meeting of the freeholders, and other inhabitants of the town of Cambridge, on Monday the 14th instant, the following vote passed, namely,—
Voted, That a committee be appointed to write to the committee appointed by the town of Boston, and acknowledge the vigilance and care, discovered by the metropolis, of the public rights and liberties; acquainting them that this town will heartily concur in all salutary, proper, and constitutional measures for the redress of those intolerable grievances which threaten, and, if continued, must overthrow the happy civil constitution of this province; and that said committee take under consideration the rights, as stated by the committee of correspondence of the town of Boston, and the infringements and violations of the same, and make report at the adjournment of this meeting.
After which the town voted the following instructions to their representative, Captain Thomas Gardner, namely,—
Sir,—We, his majesty’s most dutiful and loyal subjects, freeholders and other inhabitants of the town of Cambridge, in town meeting legally assembled this fourteenth day of December, 1772, to consult upon such measures as may be thought most proper to be taken at this alarming crisis, and most conducive to the public weal,—do, therefore, with true patriotic spirit declare, that we are and ever have been ready to risk our lives and fortunes in defence of his majesty, King George the Third, his crown and dignity, and in the support of constitutional government. So, on the other hand, we are as much concerned to maintain and secure our own invaluable rights and liberties, and that glorious inheritance, which was not the gift of kings or monarchs, but was purchased at no less price than the precious blood and treasure of our worthy ancestors, the first settlers of this province, who for the sake of those rights left their native land, their dearest friends and relations, goodly houses, pleasant gardens, and fruitful fields, and in the face of every danger settled a wild and howling wilderness, where they were surrounded with an innumerable multitude of cruel and barbarous enemies; and destitute of the necessaries of life, yet aided by the smiles of indulgent heaven, by their heroic fortitude (though small in number) they subdued their enemies before them, and by their indefatigable labor and industry cultivated this land, which is now become a fruitful field, which has much enriched our mother country, and greatly assisted in raising Great Britain to that state of opulence it is now in, that if any people on earth are entitled to the warmest friendship of a mother country, it is the good people of this province and its sister colonies. But, alas! with what ingratitude are we treated—how cruelly oppressed! We have been sighing and groaning under oppression for a number of years; our natural and charter rights are violated in too many instances here to enumerate; our money extorted from us, and appropriated to augment our burdens; we have repeatedly presented our most decent, dutiful, and loyal petitions to our most gracious sovereign for a redress of our grievances, but no redress has as yet been obtained; whereby we have been almost driven to despair; and in the midst of our distress, we are still further alarmed with seeing the governor of the province made independent of the people, and the shocking report that the judges of the superior court of judicature, and other officers, have salaries affixed to their offices, dependent on the crown and ministry, independent of the grants of the commons of this province. By this establishment, our lives and properties will be rendered very precarious; as there is the utmost danger that through an undue influence the streams of public justice will be poisoned. Can we expect the scales will be held equal between all parties? Will such judges be unmoved by passion or prejudice, fear or favor? What a miserable situation will the man be in, under a corrupt administration, who shall dare to oppose their vile measures? Must he not expect to feel the keenest resentment of such administration, by judges thus bribed to pursue the plan of the ministry?
In fine, we look upon this last innovation as so great a grievance, especially when added to the many other grievances we have been so long groaning under, as to be almost insupportable. We therefore think it seasonable and proper to instruct you, our representative in general assembly, that you use your greatest influence at the next session of the general court for a speedy redress of all our grievances.
And, inasmuch as it has been for some years past thought, that the judges of the superior court, especially since their circuits have been enlarged, have not had salaries adequate to their important services, we desire you would make due inquiry into this matter; and, if you shall find it to be a fact, that you would use your utmost endeavors that their salaries may be enlarged, and made adequate to their merit and station. And in all our difficulties and distress, we depend upon your prudence and firmness.
From the Massachusetts Gazette, 4 January, 1773.
to the printers.
Finding in the papers of the 21st instant, sundry votes passed at a legal town meeting held at Cambridge the 14th instant, I thought it proper to give the public the true state of the case, by desiring the same might be printed, that the world may judge whether the inhabitants there convened, had any right to act upon the resolves and letter of the town of Boston. I do this without any design to consider whether what was then voted is right or wrong, provided there had been any thing in the warrant that could have justified the inhabitants in taking the same under their consideration. There was a petition presented to the selectmen, signed by a considerable number of respectable freeholders, inhabitants of Cambridge, desiring that we would call a meeting of the town, to consider what was most proper to be done relative to the salaries granted to the justices of the superior court, by the king, dependent upon him, independent upon the people, and to act and do thereon as the inhabitants should think best; this was the sole prayer of their petition. The selectmen met and voted that a meeting should be called at the time the town did meet, and inserted in the warrant the desire of said inhabitants, which is in the following words: “To hear a motion of a very large number of the inhabitants of this town for calling a town meeting soon as may be, to take under consideration the current report we have of late, that the honorable judges of the superior court have salaries affixed to their offices dependent on the crown and ministry, independent on the people, and to act relating to the same as they shall think proper.” There were two other articles in the warrant, but they related only to the particular business of the town. The town met accordingly; the warrant read; a moderator was chose. I spake my mind very freely upon said clause. I said, in my opinion we were too premature in acting upon this matter at present. The packet was expected daily that might give us more light in the affair, than we now had; and that I was not alone in this sentiment, having heard at sundry times some very respectable gentlemen of Boston, as true sons of liberty as any I know of in the province, express themselves in the same words. I observed that no man in the province could say whether the salaries granted to the judges were durante bene placito, or quamdiu bene se gesserint, as the judges of England have their salaries granted them. I supposed the latter, though these words are not expressed, but necessarily implied; and that there was an essential difference between the one and the other; that I always thought the judges’ salaries should be independent both upon the king and the people; that there was great danger to a commission arising from their dependency upon either; but their grant was only during the king’s pleasure. There was no one living could be more offended at it than myself, or that would exert himself in a constitutional way more heartily, openly, and perseveringly to prevent the grants taking place. And I took the freedom to propose a method, which, if adopted, I have not the least doubt would answer the purpose aforesaid, namely,—to vote the judges an ample and honorable support, suitable to the dignity and importance of their station and the vast trouble that attended it, quamdiu bene se gesserint, and that I doubted not but that his excellency the governor, and the judges themselves, would be our advocates and intercessors; and that his majesty would be graciously pleased to withdraw his grant. The grant not arising from any desire the king had to make the judges dependent upon him, but because they who have the same powers with the king’s bench, common bench, and exchequer, at home, have no more than one hundred and twenty pounds a year. Had there been an adequate salary granted, I believed we should have never heard of any grant from the king to them. I was very far from thinking there was any necessity of having quamdiu bene se gesserint in their commissions; for they have their commissions now by that tenure as truly as if said words were in. That by the charter and common law of England, there is no necessity of their having any commission at all; a nomination and appointment recorded is enough; nomination and appointment are the words of the charter, a commission for them not so much as mentioned in it. Their commission is only declarative of their nomination and appointment. A civil commission by the common law can give no new powers. This is what I am persuaded the governor and council disclaim; it would be most dangerous to suppose and allow it, and tyranny in them to assume it. The great and general court of this province, and they only, have determined what powers and authorities unto the judges do appertain. What right, what estate vests in them, in consequence of their nomination and appointment, the common law of England, the birthright of every man here as well as at home, determines, and that is, an estate for life, provided they behave well. Wherever there is an office there is a trust, whenever there is a material breach of trust there is a forfeiture, and not otherwise. These points of law have been settled and determined by the greatest sages of the law, formerly and more lately. It is so notorious that it becomes the common learning of the law; my Lord Chief Justice Holt settled it so, not long before the statute of William and Mary, that enacts that the words quamdiu bene se gesserint shall be in the judges’ commissions. Upon this it is naturally enough thought and said, if that was law before, what occasion was there for the parliament to have said any thing about it? I answer, the parliament often makes acts which introduce no new law, but in affirmance of the old law, that which was really law before, and there might possibly be a reason for it. It must be remembered this act was not to take place during the lives of King William, Queen Mary, and the Princess Anne, and the commissions I apprehend were without these words inserted in them during their reigns. It took place by said act, upon the accession of King George I. then Elector of Hanover, a sovereign prince.
For these reasons I was for suspending the consideration of the judges’ salaries till we had more evidence and more light than generally arises from a current report.
As to acting upon the letter and resolves aforesaid, which were distinctly read by order of the inhabitants, I observed there was not a single clause in the warrant that could justify any vote to act thereon; then I read the law, which is in the words following,—“That no matter or thing whatsoever shall be voted or determined, but what is inserted in the warrant for calling said meeting.” It was answered that they knew that law very well, but they had a right to act and determine upon such interesting subjects as were contained in said letter and resolves, founded upon the law of nature. I answered that there were plain standing laws of this province that might have been attended to, and yet were not (for what reason I never could conjecture). I thought they ought rather to be attended to and complied with, than to view ourselves in a state of nature, and be governed by any law now existing; because there was not one equal in authority and right to the statute law of this province, touching the point in controversy, and that I, in the most public manner, protested against their proceedings. That, for my own part, I did not look upon myself in a state of nature, and that it was a pity anybody should in this case, where (upon their own principles) they could have so easily removed all these difficulties without placing themselves in so bad a situation as to be in a state of nature, and to be governed by the laws of nature in direct repugnancy and opposition to the well known standing law of the province, founded upon the eternal reason and nature of things, the safety of every town in the government; but, notwithstanding, the votes passed, as mentioned in your paper.
Upon the true principles of liberty I gave my sentiments, apprehending every one hath a right, both natural and constitutional so to do, provided it is with decency and good manners; which I hope I have not deviated from in this narration.
Cambridge, 16 December, 1772.
From the Boston Gazette, 11 January, 1773.
to the printers.
General Brattle, by his rank, station, and character, is entitled to politeness and respect even when he condescends to harangue in town meeting or to write in a newspaper; 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, though they may differ from his own.
In this confidence I have presumed to publish a few observations which have occurred 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 beneplacito, or quamdiu bene se gesserint, as the judges of England have their salaries granted them. I supposed the latter, though these words are 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 denied that the crown has power to grant them in any other manner than durante beneplacito.
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 power to grant salaries for life or during good behavior. But not to enlarge upon this at present.
The General proceeds,—“I was very far from thinking there was any necessity of having quamdiu bene se gesserint in their commissions; for they have their commissions now by that tenure as truly as if said words were in.”
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, (that is, the judges,) in consequence of their nomination and appointment, the common law of England, the birthright 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 surprise 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 irresistible. My Lord Coke, in his fourth Institute, 74, says, “Before the reign of Edward I. the chief justice of this court was created by letters-patent, and the form thereof (taking one example for all) was in these words:—
“Rex, &c., archiepiscopis, episcopis, abbatibus, prioribus, comitibus, baronibus, vice-comitibus, forestariis, et omnibus aliis fidelibus regni Angliæ, salutem. Cum pro conservatione nostrâ, et tranquillitatis regni nostri, et ad justitiam universis et singulis de regno nostro exhibendam constituerimus dilectum et fidelem nostrum Philippum Basset justiciarium Angliæ quamdiu nobis placuerit capitalem, &c.” And my Lord Coke says afterwards in the same page,—“King Edward I. being a wise and prudent prince, knowing that, cui plus licet quam par est, plus vult quam licet, (as most of these 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, namely, 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, namely,—Rex, &c. E. C. militi salutem. Sciatis quod constituimus vos justiciarium nostrum capitalem ad placita coram nobis tenenda, durante beneplacito nostro. Teste, &c.” Afterwards, in the same page, Lord Coke observes, “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 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 literæ pervenerint 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, 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 behavior; 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 quamdiu 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 Anne.
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 misbehavior.”
Now from these words I should draw an opposite conclusion from the General, and should think that the influence of that interest in the nation, which brought King William to the throne, prevailed upon him to grant the commissions to the judges expressly during good behavior. I say this is the most natural construction, because it is certain their places were not at that time, namely, 5 William 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. 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 III., 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 quamdiu se bene gesserit, held it to be determined by the demise of the king, notwithstanding the act of 12 and 13 William III. 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, namely, the 14th of March, chief justice of king’s bench.” From this several things appear: 1. That General Brattle is mistaken in apprehending that the judges’ commissions were without the clause, quamdiu bene se gesserint, in the reign of King William and Queen Mary, and most probably also in the reign of Queen Anne; 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 behavior; and because if Queen Anne 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 and 13 William III. 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 Anne. 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 misbehavior, even by inserting that express clause in them, quamdiu se bene gesserint.
I have many more things to say upon this subject, which may possibly appear some other time.
Meanwhile, I am, Messrs. Printers,
Your humble servant,
From the Boston Gazette, 18 January, 1773.
to the printers.
It has been said already that the common law of England has not determined the judges to have an estate for life in their offices, provided they behaved well. The authorities of Lord Coke and Lord Holt have been produced relative to the judges of the king’s bench; and, indeed, authorities still more ancient than Coke might have been adduced. For example, the learned Chancellor Fortescue, in his book in praise of the laws of England, chap. 51, says, “When any one judge of the king’s bench dies, resigns, or is superseded, the king, with the advice of his council, makes choice of one of the sergeants-at-law, whom he constitutes a judge by his letters-patents in the room of the judge so deceased, resigning, or superseded.” 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 do not venture to translate passages myself, lest I should be charged with doing it unfairly. The original words of Fortescue are unusual and emphatical: “Ad regis nutum duratura.”
The judges of the court of common pleas held their offices by a tenure as precarious. “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 quamdiu nobis placuerit, cum vadiis et feodis ab antiquo 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 quamdiu 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” (that is, of the exchequer) “is created by letters-patents, and the office is granted to him quamdiu 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 quamdiu 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 quamdiu se bene gesserit.”
It is also true, that by the law of this province a superior court of judicature, court of assize, and general jail delivery is constituted over this whole province, to be held and “kept 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 mixed, as well all pleas of the crown, &c.; and generally of all other matters, as fully and amply to all intents and purposes whatsoever, as the courts of king’s bench, common pleas, and exchequer, within his majesty’s kingdom of England, have, or ought to have,” &c.
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. Sir Thomas Powis, who was of counsel in that case for the plaintiff, indeed says, “I take it, by the common law 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 removable for misbehavior in their offices. Not only my lords the judges of the courts in Westminster Hall were anciently as they now are, since the revolution, quamdiu 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, speaking generally, they were all in for their lives by the common law, and are so still to this day.”
“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 dependence upon favor. And when they had served in them faithfully and honestly, and done their duty, they should not be removable at pleasure. And on the other side, the people were safe; for injustice, corruption, or other misdemeanors in an office were sufficient causes for removal and displacing the offender.”
And Sergeant 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 misbehavior. So was Sir John Waller’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 quamdiu se bene gesserit; and though he was displaced as far as they could, yet he continued judge of that court to the time of his death; and his name was used in all the fines, and other records of the court; 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, 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 Sergeant Levinz, because they are music in my ears; and I sincerely wish they were well supported; and because I suspect that 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 counsel for Mr. Fox, seems to have given a true and sufficient answer to them in these words:—“Whatsoever the common law was as to offices that were so ancient, is no rule in this matter; though it is 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 those cases; of those offices that were usually granted for life, a grant of such an office for life was good, and of those 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 those sayings of Sir Thomas Powis, or of Sergeant 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 rotulorum, 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. 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 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 determined 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. “In order to maintain both the dignity and independency of the judges in the superior courts, it is enacted by the stat. 13 W. III. c. 2, that their commissions shall be made, not, as formerly, durante beneplacito, but quamdiu se bene 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. III. 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, notwithstanding any demise of the crown, which was formerly held (see Lord Raym. 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. “Upon the 18th November, 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 sergeants, being accompanied with Sergeant Hutten and Sergeant 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 Queen’s (Elizabeth’s) 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 when the court was resolved to have him condemned. And, indeed, there scarcely occurs an instance during all these reigns, that the sovereign or the ministers were ever disappointed in the issue of a prosecution. Timid juries, and judges who held their offices during pleasure, never failed to second all the views of the crown.”
Sergeant 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 quamdiu 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 judge’s place by it,” &c.
Mr. Hume, in the reign of James the Second, 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.”
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 removing judges at pleasure were 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 everywhere, 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 wellwisher to the public; because they show 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 test, within the time prescribed by an act of parliament, 25 Car. II. c. 2, by which refusal, and that statute, he forfeited five hundred pounds. By concert between King James and Sir Edward, his coachman was employed to bring an action against him upon that statute, 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 brought 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 honor; 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, Lutwyche, 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 everywhere in the kingdom in the free and open exercise of their religion. To enumerate all the struggles of the people, the petitions and addresses to kings, praying that the judges’ commissions might be granted during good behavior, the bills which were actually brought into one or the other house of parliament for that purpose, which failed of success until the final establishment in the 12 & 13 William III., 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 irresistible. 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.
From the Boston Gazette, 25 January, 1773.
Cambridge, 18 January, 1773.
to the printers.
As the lines of men’s 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 public 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, merely 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 (though however mistaken) will not be improved to his prejudice. I, on the other hand, have said, and now declare as my opinion, that the governor and council can no more constitutionally and legally remove any one justice of the superior court, as the commissions now are, unless there is a fair hearing and trial, and then a judgment that he hath behaved ill, than they can hang me for writing this my opinion; and the latter (if it went no further) would not be of one half the public 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 than the arbitrary, illegal measures of the Stuart 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 behavior, 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 superior court (however disagreeable he might be), till he had, after an 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 surprise 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 cannot grant salaries in any other manner than durante beneplacito; 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 behavior. 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, though 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 behavior. For what if they are during good behavior? What good will it do them; or what safety will it be to the community, if it is in the power of the king to take away their salaries, and starve them? Will they not in this case be as dependent upon the crown as if their commissions were to determine by the will of the king? Again, this act of parliament with respect to the judges’ salaries was made for no other reason than this, that the king might not pay them out of the civil list, but out of another fund, namely, out of the revenue; here the above-mentioned 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 behavior, 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 or 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. Read 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 Auchmuty was of the same mind. I have asked no gentlemen 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 surprises me much, that a gentleman of Mr. Adams’s learning should be so extremely 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 law 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 removable for misbehavior in their offices. Not only my lords the judges of the courts in Westminster Hall were anciently as they now are, since the revolution, quamdiu 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, 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. Sergeant Levinz expressly says that in the time of King Charles II., Justice Archer was made a judge of the common pleas quamdiu bene se gesserit. If it never was the common law of England that the judges’ commissions run during their good behavior, 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 show that it was, and even that there ever was such a statute,—I query how it came about that King Charles II. 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 behavior, and thereby lessen their dependence on him; this can’t well be reconciled with the history of his reign. And how came it about that ever since the revolution to George I.’s time, the commissions were during good behavior? This, I agree with Mr. Adams, was the case, and am quite obliged to him for correcting my mistake, when, in my harangue, 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 commissions 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 judge’s commission since the revolution being during good behavior, to the reign of George I.; and when the act of King William was to take place, and not before,—namely, that during good behavior 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 Anne. 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.”
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 behavior, 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 Sergeant Levinz had most positively affirmed that this was the rule of the common law, not denied by the counsel 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 upon misbehavior.” Settled by—whom? Not by an act that was not to take place till the accession of George I. Not by any statute then existing. Where is it? who ever 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, knight, chief justice of the king’s bench, holding his office by writ, though it was quamdiu bene se gesserit, held it to be determined by the demise of the king, and therefore Queen Anne ordered a new writ. And what then? Every civil officer’s commission holden quamdiu bene se gesserit, 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.
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. Sergeant Levinz: “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 misbehavior; for it hath an annexed condition to be forfeited upon misdemeanor, and this by law is annexed to all offices, they being trusts; and misdemeanor in an office is a breach of trust; and with his opinion agree the judges of the king’s bench, in the case of Harcourt against Fox. Eyre, Justice, says, “I do think there is plainly given an estate for life in his office, determinable upon his good behavior.” Gregory, Justice, says the same. Dolben, Justice, 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.” 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 notwithstanding 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.
From the Boston Gazette, 25 January, 1773.
to the printers.
Another observation which occurred to me upon reading General Brattle’s first publication was upon these words:—“That by the charter and common law of England, there is no necessity of having any commission at all; a nomination and appointment recorded is enough; nomination and appointment are the words of the charter, a commission for them not so much as mentioned in it. Their commission is only declarative of their nomination and appointment.” Two questions arise upon this paragraph; and the first is, what provision is made by our charter? and the next is, what was necessary to the creation of a judge at common law?
As to our charter. The king thereby grants and ordains,—“That it shall and may be lawful for the said governor, with the advice and consent of the council or assistants, from time to time to nominate and appoint judges, commissioners of oyer and terminer, sheriffs, provosts, marshals, justices of the peace, and other officers to our council and courts of justice belonging.”
It is obvious from this, that there is no superior court of judicature, court of assize and general jail delivery, nor any inferior court of common pleas, or any court of exchequer, expressly erected by the charter. Commissioners of oyer and terminer, the governor, with the advice and consent of the council, is empowered to nominate and appoint; but it will not follow from hence that a nomination and appointment will alone constitute and empower commissioners of oyer and terminer. For the judges, whom the governor with the advice of council is empowered to nominate and appoint, are not vested with any powers at all by the charter; but by another clause in it, the great and general court or assembly “shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be held in the name of us, our heirs and successors, for the hearing, trying, and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes, and things, whatsoever, arising or happening within our said province or territory, or between persons inhabiting and residing there, whether the same be criminal or civil, and whether the said crimes be capital or not capital, and whether the said pleas be real, personal, or mixt, and for the awarding and making out execution thereupon.”
In pursuance of this authority, our legislature, in 1699, by a law, 2 William III. c. 3, have established “a superior court of judicature, court of assize, and general jail delivery within this province, to be held by one chief justice and four other justices, to be appointed and commissionated for the same,” &c. Is not General Brattle, then, greatly mistaken when he says, that “a nomination and appointment recorded is enough?” Enough for what? Enough to constitute judges of our superior court, for they alone can be meant by the General, because the General himself determines his own meaning to be, “they who have the same powers with the king’s bench, common bench, and exchequer;” and no other judges have those powers but the judges of our superior court, &c., and they have them, not by charter, but by the law of the province. If the governor should nominate and appoint, with advice and consent, &c. A to be a judge, or A, B, and C to be judges, in the words of the charter, what powers would this nomination and appointment convey? None at all. It would be nugatory and void; for, according to Lord Coke,* a “new court cannot be erected but by act of parliament. And when a new court is erected, it is necessary that the jurisdiction and authority of the court be certainly set down. And that the court can have no other jurisdiction than is expressed in the erection.” And he there mentions the case of a letter-patent granted by Edward IV. in these words: “We will and ordain that Richard Beauchampe, &c., should have it (that is, the office of the chancellor of the garter) for his life, and after his decease, that his successors should have it forever”; and “it was resolved unanimously that this grant was void; for that a new office was erected, and it was not defined what jurisdiction or authority the officer should have; and, therefore, for the uncertainty, it was void.”
Let us next inquire whether, by the common law of England, there is or is not a necessity of the judges having any commissions at all. The authorities cited before seem to show very plainly that the judges, either of the king’s bench, common bench, or exchequer, can be created only by writ, or by letters-patent; and although these may be said not to be commissions, yet they are surely something more than nomination and appointment. However, writs and letters-patent are commissions, I presume; and should never have doubted it, if I had never read a newspaper. But if I had doubted, I might easily have resolved the doubt; for we read† that “all judges must derive their authority from the crown by some commission warranted by law. The judges of Westminster are (all except the chief justice of the king’s bench, who is created by writ) appointed by patent, and formerly held their places only during the king’s pleasure, &c.”‡
And Lord Coke observes, that “the creation of the office of chief justice was first by writ, and afterwards by letters-patents.” “As all judges must derive their authority from the crown by some commission warranted by law, they must also exercise it in a legal manner.”*
In order to see whether writs and letters-patent are not commissions, let us look into any common dictionary or interpreter of law terms. “Commission, commissio,” (says Cowell, and after him, in the same words, Cunningham,) “is for the most part, in the understanding of the law, as much as delegatio with the civilians,† and is taken for the warrant, or letters-patent, that all men exercising jurisdiction, either ordinary or extraordinary, have for their power to hear or determine any cause or action.”
Thus it seems to be very clear that, by the common law of England, a commission was absolutely necessary for all the judges known at common law; and as to others, erected by statute, let the statute speak. By 27 H. 8, c. 24, it is enacted: “That no person or persons, of what estate, degree, or condition soever they be, shall have any power or authority to make any justices of eyre, justices of assize, justices of peace, or justices of jail delivery; but that all such officers and ministers shall be made by letters-patent, under the king’s great seal, in the name and by the authority of the king’s highness, in all shires, counties palatine, Wales, &c., or any other his dominions, &c., any grants, usages, allowance, or act of parliament to the contrary notwithstanding.”
I shall add no more upon this point but this. We find in Jenkin’s Centuries, 123, this question determined by all the judges of England in the exchequer chamber: “A writ of admittas in association is directed to the justices of assize; A. shows this writ of admittas in association to them, but does not show the patent by which he is made justice. In this case, both ought to be shown to the justices of assize.
By all the Judges in the Exchequer Chamber.”
The judges of the king’s bench and common pleas, and the barons of the exchequer are made by patent, in which the word constituimus is used. The chief justice of the king’s bench is constituted only by writ.”
From the Boston Gazette, 1 February, 1773.
to the printers.
The question is, in the present state of the controversy, according to my apprehension of it, whether, by the common law of England, the judges of the king’s bench and common bench had estates for life in their offices, determinable on misbehavior, and determinable also on the demise of the crown. General Brattle still thinks they had; I cannot yet find reason to think so. And as whether they had or had not is the true question between us, I will endeavor to confine myself to it without wandering.
Now, in order to pursue my inquiry regularly, it is necessary to determine with some degree of precision what is to be understood by the terms “common law.” Out of the Mercian laws, the laws of the West Saxons, and the Danish law, King Edward the Confessor extracted one uniform digest of laws, to be observed throughout the whole kingdom, which seems to have been no more than a fresh promulgation of Alfred’s code, or Dome Book, with such improvements as the experience of a century and a half had suggested, which is now unhappily lost. This collection is of higher antiquity than memory or history can reach; they have been used time out of mind, or for a time whereof the memory of man runneth not to the contrary. General customs, which are the universal rule of the whole kingdom, form the common law in its stricter and more usual signification. This is that law which determines that there shall be four superior courts of record, the chancery, the king’s bench, the common pleas, and the exchequer, among a multitude of other doctrines, that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support. Judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law. The law and the opinion of the judge are not always convertible terms; though it is a general rule, that the decisions of courts of justice are the evidence of what is common law.*
I have endeavored to ascertain what is meant by the common law of England, and the method of determining all questions concerning it, from Blackstone. Let us now see what is said upon the same subject, by Justice Fortescue Aland, in the preface to his Reports. “Our judges,” says he, “do not determine according to their princes, or their own arbitrary will and pleasure; but according to the settled and established rules and ancient customs of the nation, approved for many successions of ages. . . . . . . King Alfred, who began his reign in 871, magnus juris Anglicani conditor, the great founder of the laws of England, with the advice of his wise men, collected out of the laws of Ina, Offa, and Æthelbert, such as were the best, and made them to extend equally to the whole nation, and therefore very properly called them the common law of England, because those laws were now first of all made common to the whole English nation. This jus commune, jus publicum, or folcright, that is, the people’s right, set down in one code, was probably the same with the Doom-Book, or liber judicialis, which is referred to in all the subsequent laws of the Saxon kings, and was the book that they determined causes by. And in the next reign, that of Edward the elder, the king commands all his judges to give judgment to all the people of England according to the Doom-Book. And it is from this origin that our common law judges fetch that excellent usage of determining causes, according to the settled and established rules of law, and that they have acted up to this rule for above eight hundred years together, and continue to do so to this very day. Edward the Confessor was afterwards but the restorer of the common law founded by Alfred, and William the Conqueror confirms and proclaims these to be the laws of England, to be kept and observed under grievous penalties, and took an oath to keep them inviolable himself. King Henry I. promised to observe them; King Stephen, King Henry II., and Richard I. confirmed them; King John swore to restore them; King Henry III. confirmed them; Magna Charta was founded on them, and King Edward I. in parliament, confirmed them.”*
Now I apprehend General Brattle’s opinion to be, that the common law of England, the birthright of every subject, or, in the language of the Saxons, the folkright, determines the judges of the king’s bench and common pleas to have estates for life in their offices, determinable only on misbehavior, or the demise of the crown. And this, I suppose, was the meaning of Sir Thomas Powis, when he said, “I take it, by the common law and the ancient constitution of the kingdom, all officers of courts of justice, &c., were in for their lives, &c.; not only my lords the judges of the courts in Westminster Hall were anciently, as they now are since this revolution, quamdiu se bene gesserint.”
I have never expressed any disrespect to the character of Sir Thomas Powis, and I have no disposition to harbor any; it is enough for me to say, that these expressions were used by him when arguing a cause for his client at the bar, not when he was determining a cause as a judge; that they were entirely unnecessary for the support of his cause, which was a very good one, let these expressions be true or otherwise,—that is, whether the judges were anciently in for their lives, or only at pleasure; that they depend wholly upon his affirmation, or rather his opinion, without the color or pretence of an authority to support them; and that I really believe them to be untrue. And I must add, it appears to me extraordinary, that a gentleman educated under that great Gamaliel, Mr. Read, should ever adduce the simple dictum of a counsel at the bar, uttered arguendo, and as an ornament to his discourse too, rather than any pertinent branch of his reasoning, as evidence of a point “settled and determined by the greatest sages of the law formerly and more lately.” Does Sir Thomas Powis produce the Dome-Book itself in support of his doctrine? That was irrecoverably lost for ages before he had a being. Does he produce any judicial decision, ancient or modern, to prove this opinion? No such thing pretended. Does he produce any legal authority, a Hengham, Britton, Fleta, Fortescue, Coke; or any antiquarian, Matthew Paris, Dugdale, Lambard, or any other; or even the single opinion of one historian, to give a color to his doctrine? No such matter. Nay, I must inquire further, can General Brattle draw from any of these sources a single iota to support this opinion? But, in order to show, for the present, the improbability that any such authority will be found, let us look a little into history. Mr. Rapin, in his Dissertation on the Government of the Anglo-Saxons, says, “One of the most considerable of the king’s prerogatives was the power of appointing the earls, viscounts, judges, and other officers, as well civil as military. Very probably it was in the king’s power to change these officers, according to his pleasure, of which we meet with several instances in history.” By this it appears to have been Mr. Rapin’s opinion, that very probably the kings, under the ancient Saxon constitution, had power to change the judges according to their pleasure. I would not be understood, however, to lay any great stress on the opinions of historians and compilers of antiquities, because it must be confessed that the Saxon constitution is involved in much obscurity, and that the monarchical and democratic factions in England, by their opposite endeavors to make the Saxon constitutions swear for their respective systems, have much increased the difficulty of determining, to the satisfaction of the world, what that constitution, in many important particulars, was. Yet Mr. Rapin certainly was not of that monarchical faction; his bias, if he had any, was the other way; and therefore his concession makes the more in my favor.
Mr. Hume, in his Feudal and Anglo-Norman Government and Manners,* says: “The business of the court was wholly managed by the chief justiciary and the law-barons, who were men appointed by the king, and wholly at his disposal.” And since I am now upon Hume, it may be proper to mention the case of Hubert de Burgh, who, “while he enjoyed his authority, had an entire ascendant over Henry III., and was loaded with honors and favors beyond any other subject, . . . and, by an unusual concession, was made chief justiciary of England for life.”† Upon this I reason thus: If his being made justiciary for life was an “unusual concession,” it could not be by the immemorial, uninterrupted usage and custom, which is the criterion of common law. And the very next words of Hume show how valid and effectual this grant of the office for life was then esteemed. “Yet Henry, in a sudden caprice, threw off this faithful minister;” which implies that he was discarded and displaced in both his capacities, because the summus justiciarius or chief justiciary, was in those reigns supreme regent of the kingdom, and first minister of state, as well as of the law; and this seems to show that the grant for life was void, and not binding on the king, in the sense of those times, ancient as they were (1231). This summus justiciarius is the officer whose original commission I gave the public from Lord Coke, in my first paper, which was expressly during pleasure. And my Lord Coke’s account of the change of the chief justice’s commission and authority may receive some additional light from Lord Gilbert’s Historical View of the Court of Exchequer. Towards the latter end of the Norman period, the power of the justiciar was broken, so that the aula regis, which was before one great court, only distinguished by several offices, and all ambulatory with the king before Magna Charta, was divided into four distinct courts,—chancery, exchequer, king’s bench, and common pleas. The justiciary was laid aside, lest he should get into the throne, as Capet and Pepin, who were justiciars in France, had done there.* Now, from the exorbitant powers and authority of these justiciaries arises a proof, from the frame of the government and the balance of the estates, that the office in those ages was always considered as dependent on the pleasure of the king, because the jealousy between the kings and nobles, or between the monarchical and aristocratical factions, during the whole Norman period, was incessant and unremitted; and therefore it may be depended on, that kings never would have come into the method of granting such an office usually for life. For such a grant, if it had been made, and been valid, must have cost the grantor his throne, as it made the justiciar independent of the king, and a much more powerful man than himself. And if, during the whole Norman period, and quite down to the death of Sir Edward Coke, a course of almost six hundred years, the offices of judges were held during pleasure, what becomes of the title to them for life, which General Brattle sets up, by immemorial, uninterrupted usage, or common law?
Sir Thomas Powis, however, has not determined whether, by the ancient constitution of the kingdom, he meant under the Norman or the Saxon period; and in order to show the improbability that the judges held their offices during good behavior, in either of those periods, I must beg the pardon of your readers if I lead them into ages, manners, and government more ancient and barbarous than any mentioned before. Our Saxon ancestors were one of those enterprising northern nations, who made inroads upon the provinces of the Roman empire, and carried with them, wherever they went, the customs, maxims, and manners of the feudal system; and although, when they intermingled with the ancient Britons, they shook off some part of the feudal fetters, yet they never disengaged themselves from the whole. They retained a vast variety of the regalia principis of the feudal system, from whence most branches of the present prerogatives of our kings are derived; and, among other regalia, the creation and annihilation of judges was an important branch. For evidence of this, we must look into the feudal law. It was in consequence of this prerogative that the courts were usually held in the aula regis, and often in the king’s presence, who often heard and determined causes in person; and in those ages the justiciary was only a substitute or deputy to the king, whose authority ceased entirely in the king’s presence. This part of the prerogative has a long time ago been divested from the crown, and it has been determined that the king has delegated all his authority to his judges. The power of the king in the Saxon period was absolute enough, however, and he sometimes treated them with very little ceremony. Alfred himself is said, in the Mirror of Justices, to have hanged up forty-four of his judges in one year for misdemeanors.
To some of these facts and principles Bracton is a witness. “Dictum est,” (says he,) “de ordinaria jurisdictione, quæ pertinet ad regem, consequenter dicendum est de jurisdictione delegata, ubi quis ex se ipso nullam habet auctoritatem, sed ab alio sibi commissam, cum ipse qui delegat non sufficiat per se omnes causas sive jurisdictiones terminare. Et si ipse dominus rex ad singulas causas terminandas non sufficiat, ut levior sit illi labor, in plures personas partito onere, eligere debet de regno suo viros sapientes et timentes Deum. . . Item justiciariorum, quidam sunt capitales, generales, perpetui et majores a latere regis residentes, qui omnium aliorum corrigere tenentur injurias et errores. Sunt etiam alii perpetui, certo loco residentes, sicut in banco, . . . qui omnes jurisdictionem habere incipiunt præstito sacramento. . . Et quamvis quidam eorum perpetui sunt, ut videtur, finitur tamen eorum jurisdictio multis modis, s. mortuo eo qui delegavit, &c. Item cum delegans revocaverit jurisdictionem,” &c. Bracton, chap. 10, lib. 3.
Sergeant 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 misbehavior. So was Sir John Waller’s case, as to the office of chief baron of the exchequer.” To all this I agree, provided it is an office that by custom, that is, immemorial usage, or common law, (as that of the chief baron of the exchequer was,) or by an express act of parliament, (as that of clerk of the peace, in the case of Harcourt against Fox, was,) has been granted in that manner, but not otherwise; and therefore these words have no operation at all against me. But the Sergeant goes on: “And so was Justice Archer’s case, in the time of King Charles II. He was made a judge of the common pleas quamdiu se bene gesserit; and though he was displaced as far as they could, yet he continued judge of that court to the time of his death; and his name was used in all the fines and other records of the court.” General Brattle thinks these words are full in his favor; and he cannot reconcile this patent to Judge Archer with the history of Charles II.’s reign, &c. We shall presently see if a way to reconcile it cannot be discovered: but before I come to this attempt, as it is my desire to lay before the public every thing I know of, which favors General Brattle’s hypothesis, and to assist his argument to the utmost of my power, I will help him to some other authorities, which seem to corroborate Sergeant Levinz’s saying; and the first is Justice Fortescue Aland:* “Justice Archer was removed from the common pleas; but his patent being quamdiu se bene gesserit, he refused to surrender his patent without a scire facias, and continued justice, though prohibited to sit there; and in his place Sir William Ellis was sworn.” The next is Sir Thomas Raymond, 217: “This last vacation, Justice Archer was amoved from sitting in the court of common pleas, pro quibusdam causis mihi incognitis; but the judge having his patent to be judge quamdiu se bene gesserit, refused to surrender his patent without a scire facias, and continued justice of that court, though prohibited to sit there; and in his place Sir William Ellis, Knight, was sworn.”
But will any man from these authorities conclude that King Charles II. had power by the common law to grant Judge Archer an estate for life in his office? If he had, how could he be prohibited to sit? how came Justice Ellis to be sworn in his stead? Was not the admission of Ellis by his brother judges an acknowledgment of the king’s authority? Will any man conclude from these authorities that it had before been the custom, time out of mind, for kings to grant patents to the judges, quamdiu se bene gesserint? If we look into Rushworth, 1366, we shall find some part of this mystery unriddled: “After the passing of these votes against the judges, and transmitting of them unto the house of peers, and their concurring with the house of commons therein, an address was made unto the king shortly after, that his majesty for the future would not make any judge by patent during pleasure, but that they may hold their places hereafter quamdiu se bene gesserint, and his majesty did readily grant the same, and in his speech to both houses of parliament, at the time of giving his royal assent to two bills, one to take away the high commission court, and the other the court of star-chamber, and regulating the power of the council table, he hath this passage,—‘If you consider what I have done this parliament, discontents will not sit in your hearts; for I hope you remember that I have granted that the judges hereafter shall hold their places, quamdiu se bene gesserint.’ And likewise his gracious majesty, King Charles II. observed the same rule and method in granting patents to judges, quamdiu se bene gesserint, as appears upon record in the rolls, namely,—to Sergeant Hyde, to be lord chief justice of the king’s bench, Sir Orlando Bridgeman to be lord chief baron, and afterwards lord chief justice of the common pleas, to Sir Robert Foster, and others. Mr. Sergeant Archer, now living, (notwithstanding his removal,) still enjoys his patent, being quamdiu se bene gesserit, and receives a share in the profits of that court, as to fines and other proceedings, by virtue of his said patent, and his name is used in those fines &c. as a judge of that court.”
This address of the two houses of parliament which was in 1640, was made in consequence of a general jealousy conceived of the judges, and the general odium which had fallen upon them, for the opinion they gave in the case of ship money and other cases, and because there had been, not long before, changes and removals in the benches. To mention only one: “Sir Randolph Crew, not showing so much zeal for the advancement of the loan as the king was desirous he should, was removed from his place of lord chief justice, and Sir Nicholas Hyde succeeded in his room.” And King Charles, in 1640, began to believe the discontents of his subjects to be a serious affair, and think it necessary to do something to appease them.*
But will it do to say that he had power to give away the prerogative of the crown, that had been established in his ancestors for eight hundred years, and no man can say how many centuries longer, without an act of parliament, against the express words of Lord Coke, which the General thanks me for quoting? “It is a rule in law that ancient offices must be granted in such forms and in such manner as they have used to be, unless the alteration was by authority of parliament.”
As to King Charles II. his character is known to have been that of a man of pleasure and dissipation, who left most kinds of business to his ministers, and particularly in the beginning of his reign, to my Lord Clarendon, who had, perhaps, a large share in procuring that concession from Charles I., and therefore chose to continue it under the Second.
But notwithstanding all this, Charles II. soon discovered that by law his father’s concession and his own had not divested him of the power of removing judges, even those to whom he had given patents quamdiu se bene gesserint, and he actually reassumed his prerogative, displaced Judge Archer and many others in the latter end of his reign, and so did his successor.† These examples show that those kings did not consider these concessions as legally binding on them; they also show that the judges in Westminster Hall were of the same mind, otherwise they would not have admitted the new judges in the room of those displaced; and it seems that even the judges themselves who were then displaced, Judge Archer himself, did not venture to demand his place, which he might have done if he had an estate for life in his office. Nay, it may be affirmed that the house of commons themselves were of the same mind; for in the year 1680, in the reign of Charles II. after the removal of Archer and many other judges, the commons brought in a bill to make the office of judge during good behavior.* Now I think they would not have taken this course if they had thought Archer had an estate for life in his office, but would have voted his removal illegal, and would have impeached the other judges for admitting another in his room.
Archer “continuing judge,” and “receiving fees for fines,” and “his name being used in the fines,” I conjecture are to be accounted for in this manner. He refused to surrender his patent without a scire facias. The king would not have a scire facias brought, because that would occasion a solemn hearing, and much speculation, clamor, and heat, which he chose to avoid; and as his patent remained unsurrendered and uncancelled, and as by law there might be more judges of the common pleas than four, and therefore the appointment of another judge might not be a supersedeas to Archer, they might think it safest to join his name in the fines, and give him a share in the fees. And no doubt this might be done in some instances to keep up the appearance of a claim to the place, and with a design to provoke the king’s servants and friends to bring a scire facias, and so occasion an odium on the administration, and hasten a revolution.
I have hazarded these conjectures unnecessarily, for it is incumbent upon General Brattle to show from good authorities, for the affirmative side of the issue is with him, that by common law the judges had estates for life in their offices. In order to do this, he ought to show that the king at common law, that is, from time immemorial, granted patents to these judges during good behavior, or that he, the king, had his election to grant them either durante beneplacito, or quamdiu se bene gesserint, as he pleased. Nay, it is incumbent on him to show that a patent without either of these clauses conveys an estate for life. None of these things has he done, or can he do.
It was never denied nor doubted by me, that a grant made in pursuance of immemorial custom, or of an act of parliament, to a man to hold, so long as he should behave himself well, would give him an estate for life. The unanimous judgment of the court in that case of Harcourt against Fox proves this. But then, in that case, an express act of parliament empowered the custos rotulorum to constitute a clerk of the peace for so long time as he should behave himself well. Nor have I any doubt that the patents to the barons of the exchequer, which are by immemorial usage, quamdiu se bene gesserint, convey to them an estate for life; but my difficulty lies here; no custom, no immemorial usage, no act of parliament, enabled the king to grant patents to the judges of king’s bench, and common pleas, expressly quamdiu se bene gesserint; and therefore, if Lord Coke’s rule is right, “that ancient offices must be granted in such forms and in such manner as they have used to be, unless the alteration be by authority of parliament,” the king’s grant at common law, to a judge of king’s bench or common pleas, of his office, for life in terms, or during good behavior, which is tantamount, would have been void—void, I mean quoad an estate for life or good behavior, but good, as an estate at will; and I conceive, when we read that the king cannot make a lord chancellor for life, but that such a grant would be void, the meaning is, that the habendum for life or good behavior shall be void; but that this shall not vitiate the other parts of the patents, but that they shall convey such estate, and such estate only, as the king had power by custom or by statute to grant. I do not suppose that the writ to Lord Holt, or the patents to his brothers in the reign of King William were void, but I fear that, had the king seen fit to have removed them by writ, it would have been legally in his power, notwithstanding that clause in their commissions.
From the Boston Gazette, 8 February, 1773.
to the printers.
Two or three anecdotes were omitted in my last for want of room, which may be here inserted, in order to show that General Brattle’s “rule of the common law of England” originated in the reign of King Charles I. I say originated, because the example of Hubert de Burgh 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 I. 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 quamdiu 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 quamdiu se bene gesserint.*
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 quamdiu se bene gesserint. And it proves incontestably 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 behavior; 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 apprehensions was just, it could not be true that at common law the judges had their commissions quamdiu se bene gesserint, nor could it be true that by common law the judges had estates for life in their offices, whether quamdiu se bene gesserint was in their commissions or not.
I believe enough has been said concerning these dark sayings of Powis and Levinz. 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 develop in some detail this complicated mystery. In order to this, I must state the case of Harcourt against Fox; for this will show 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 motion 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” (that is, the officer appointed by the chief justice) “is in by custom, so here he is in by act of parliament; the custos, 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 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 losing them; we all know it, and our places as judges are so settled, only determinable upon misbehavior.”
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, logic, 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 behavior, 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 Sergeant Levinz had most positively affirmed that this was the rule of the common law, not denied by the counsel 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 misbehavior.’ ”
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 Levinz 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 Levinz, 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 entreat every gentleman to look into that case of Harcourt and Fox, which is reported in 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, that to hold an office during good behavior was to hold it for life, determinable upon misbehavior. This was never, and will never be, denied by me. But it was not determined that the judges’ offices were held so, or that the king had power to grant them so. What was said by Lord Holt concerning the judges’ offices had no direct relation to the point then in judgment before him, which concerned only the office of clerk of the peace. It was only said incidentally, and not explained. It might, and probably did, mean no more than it was so settled by King William in the patents he had given the judges, so 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 King 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 William’s 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; although they chose to have their patents granted quamdiu bene se gesserint, that they might have some hold of the royal word and honor, 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, though a very able and upright judge; I mean Sir Michael Foster: “The king, (Richard II.) 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 of their offences?” to which the judges answered unanimously, that “they cannot; and if any one should do so, he is to be punished as a traitor.”*
It was said in a former paper, that the supreme 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 majora and minora. The majora were those “quæ personam et dignitatem principis et administrationem reipublicæ concernunt, ut collatio dignitatum regalium, et jurisdictio summa in causis ecclesiasticis et secularibus, as well as the jus belli et pacis &c.; et hæc alias jura majestatis dicuntur.†
Supreme, sovereign jurisdiction, therefore, in all causes temporal and spiritual, was one of the greater royalties, or sublimest prerogatives of the feudal princes, was inseparable from the feudal majesty, and 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 separari possint; distinguendum est inter ipsum jus, et exercitium hujus juris;—hoc alteri concedi potest, ut eodem utatur, dependenter: illud, vero, penes principem remanet.”‡
That this was one of the regalia majora, see the Consuetudines Feudorum, tit. 56: “Quæ sint Regalia. 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 Jameses and the two Charleses, 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 Hales’s case, mentioned in a former paper, and gave their opinions, and made it a general rule in law, that the dispensing power was an incident, inseparable 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 inquiries, always to obtain precise ideas, and to give exact definitions of the terms we use, in order to arrive at truth. The question, then, appears to me to be different from what it would be, if we were to ask whether a justice of that court can be constitutionally removed, without a trial and judgment. Many people receive different ideas from the words legally and constitutionally. The law has certainly established in the crown many prerogatives, by the bare exertion of which, in their utmost extent, the nation might be undone. The prerogatives of war and peace, and of pardon, for examples, among many others. Yet it would be absurd to say that the crown can constitutionally ruin the nation, and overturn the constitution. The British constitution is a fine, a nice, a delicate machine; and the perfection of it depends upon such complicated movements, that it is as easily disordered as the human body; and in order to act constitutionally, every one must do his duty. If the king should suffer no parliament to sit for twelve years, by reason of continual prorogations, this would be an unconstitutional exercise of prerogative. If the commons should grant no supplies for twelve 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 behavior.
I believe it to be true that the judges in all King William’s reign had their commissions quamdiu 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 whatsoever, as if they and every of them were born within this our realm of England.”
Now, admitting, for argument’s sake, that the judges in England in that reign held their offices legally for life, determinable upon misbehavior, 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 quamdiu 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 deference and submission—issue the commissions to the judges, quamdiu 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 judge’s office or estate must appear in the commission itself.
However, all this reasoning in favor of an estate for life in our judges, is built upon the 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 some times, 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 do not recollect a single circumstance, in law or history, that favors the opinion that a judge there had an estate for life, without the words quamdiu 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 quamdiu se bene gesserint or not, or whether they had any commissions at all or not; and if he could have proved these allegations, he would have got his cause. But he has been extremely unfortunate in having Bracton, Fortescue, Coke, Foster, Hume, Rapin, and Rushworth directly against him, and nothing in his favor 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 does not say the judges at common law were in for their lives, without the clause quamdiu se bene gesserint in their commissions. The questions that have been considered are liberal, and of much importance. I have done little more than labor in the mines of ore 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.
From the Boston Gazette, 15 February, 1773.
to the printers.
We are now upon the commissions of our own judges; and we ought to examine well the tenure by which they are holden.
It may be depended on, that all the commissions of judges throughout America are without the words quamdiu 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 favorable opportunity to procure a stable tenure of the judges’ offices than the present reign, which was begun with his majesty’s most gracious declaration from the throne, “that the independency and uprightness of the judges were essential to the impartial administration of justice.” However, let us return and confine ourselves to this province. Our judges’ commissions have neither the clause quamdiu 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 are to be favored, 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 favored; and, therefore, whatever was the rule at common law must be favored in this case; and if the judges at common law were in only at pleasure, it will follow that ours are so too, 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 favorably for the king, when it has not the clause ex mero motu, speciali gratia, et certa scientia, in it, as these commissions have not.
Why should the omission of both clauses make the commissions during good behavior, 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 a 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,* 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 Elizabeth, upon perusal of the former commission of the peace, and upon conference within themselves.
Yet these commissions are determinable at pleasure.† “These commissioners of the peace, their authority doth determine by divers means, yet more usually by three means: 1. By the death of the king, or by his resignation of his crown; for by the commission he maketh them justiciarios nostros; so that, he being once dead, or having given over his crown, they are no more his justices, and the justices of the next prince they cannot be, unless it shall please him afterwards so to make them. 2. At the king’s pleasure, and that in two sorts. 1. Either by the king’s pleasure, expressed, (as the king by express words may discharge them by his writ under the great seal,) or by supersedeas; but the supersedeas doth but suspend their authority, which may be revived by a procedendo. 2. Or by implication; as by making other commissioners of the same kind, and within the same limits, leaving out the ancient commissioners’ names.”
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 colorable pretension 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 misbehavior and the demise of the crown; though, 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 quamdiu 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 quamdiu se bene gesserint, or durante beneplacito, then the natural subjects, born within the realm, had not a right to have the judges’ patents granted quamdiu 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 persuade 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 quamdiu se bene gesserint; but to have them granted so, if the governor and council saw fit, and could be prevailed on to do it.
And, on the other hand, if King William had power to grant the commissions either way as he pleased, it will follow, that the governor and council have power to grant them either way. And if this is true, it is to be hoped General Brattle will have influence enough to prevail that the commissions, for the future, may be granted expressly quamdiu 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. “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 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 shown, c. 5, s. 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, quamdiu se bene gesserit, is void; but, besides what is before cited, from Coke and Hawkins, it is certain that, whenever such a 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 Burgh. Charles I. 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 II. and James II. 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. “Note, that this vacation, Sir Edward Hyde, Earl of Clarendon and Lord Chancellor of England, was deposed by the king from being chancellor, although 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, that is, as I understand it, never was customarily so 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 show this.
Thomas, Lord Ellesmere, in his Observations concerning the office of the lord chancellor, 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 Chester, 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 Chester, in the time of King Henry III., with whom the prince being offended, as reports Matthew Paris, and demanding the seal at his hands, he refused to yield the same unto him, affirming that, as he had received it by the common consent of the nobility, so he would not, without like warrant, resign the same; and in the days of the same king, it was told him by all the lords, spiritual and temporal, that of ancient time the election and disposition of the chief justice, chancellor, and treasurer belonged to the parliament; and, although the king in displeasure did take the seal from him, and deliver the same to the custody of others, yet did the aforesaid Nevil remain chancellor notwithstanding, and received the profits thereof, to whom the king would have restored the seal, but he refused to receive it.”
Here, let me observe, that I have a long time expected from General Brattle some such authority as this; for I believe it was in the mind of Sir Thomas Powis, when he said, by the ancient constitution my lords the judges were in for their lives. But let it be considered, that there is no remaining record that the lords spiritual and temporal told the king so, nor any legal authority to prove it, nor any other authority for it but Matthew Paris, whose writings are not sufficient evidence of this; let it also be considered, that this King Henry would probably have been obliged to insert a clause in his Magna Charta to secure this privilege, if the claim of it had been then thought to be well founded; and, as this was not done, it is most likely (admitting Matthew Paris’s fact to be true) that the lords spiritual and temporal meant no more than this, that some king of ancient time had, in some few instances, condescended to take the advice of his wittenagemote, or assembly of wise men, 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 hæc verba:
“Henricus Rex, &c. Archiepiscopis, &c. Sciatis, nos dedisse, concessisse, et hac charta nostra confirmasse, venerabili Randolpho cicestrensi episcopo cancellariam nostram habendam et tenendam toto tempore vitæ suæ, 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 hæredibus nostris venerabili Randolpho cicestrensi episcopo, cancellario nostro, cancellariam Angliæ, toto tempore vitæ suæ, cum omnibus pertinentibus, &c. Quare volumus et firmiter præcipimus pro nobis, et hæredibus nostris, quod prædictus episcopus habeat ipsam cancellariam, toto tempore vitæ suæ, &c.”
This is the transcript of his third patent, the same day and year:—“Henricus, &c. Archiepiscopis, &c. Sciatis nos concessisse, et hac charta nostra confirmasse venerabili patri Randolpho cicestrensi episcopo cancellario nostro, custodiam sigilli nostri toto tempore vitæ suæ, cum omnibus, &c. ita quod sigillum portat et custodiat, in propria persona sua, quamdiu valuerit.”
And in page 18, 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 chastised, and the said Nicolas deprived by Henry III., 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 quamdiu se bene gesserint, in the reigns of Charles I. and II., and King William, determine them to be good?
I think it has been determined by all the judges in England that time of memory should be limited to the reign of King Richard I.; 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, has given us the names of all the chief justices of the king’s bench, from the twenty-second year of Edward III. to the sixteenth year of Queen Elizabeth, namely,—Thorpe, Shareshull, Greene, Knyvett and Cavendish, under Edward III.; Tresilian and Clopton under Richard II.; Gascoigne under Henry IV.; Hankford under Henry V.; Cheyne, Ivyn, and Fortescue, under Henry VI.; Markham and Billing under Edward IV.; Hussey under Richard III.; Fineux under Henry VII.; Montague, Lyster, and Cholmley, under Henry VIII.; Bromley, Portmore, and Saunders under Queen Mary; Catlyne and Wray under Elizabeth.
And also the names of all the chief justices of the common pleas from the year 1399, namely,—the last year of the reign of Richard II. to the twenty-fourth of Queen Elizabeth, namely,—Thirninge under Henry IV.; Norton under Henry V.; Ivyn, Cottesmore, Newton, and Prisot, under Henry VI.; Danby and Brian, under Edward IV.; Woode, Frowicke and Rede, under Henry VII.; Erneley, Brudnell, Norwiche, Baldwin, Montague, under Henry VIII.; Morgan, Brooke and Browne, under Philip and Mary; Dyer and Anderson, under Elizabeth.
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: “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 I. 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 I. I say there is no record of any, because the story of Hubert de Burgh has no record extant to prove it, and rests upon no better evidence than Matthew Paris,1 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 quamdiu se bene gesserint, anterior to 1640, it is in vain to look for any adjudged case, that a patent so granted is good anterior 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 quamdiu se bene gesserit conveyed a frank tenement. 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. 4. 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 to another, as long as he wills or pleases, is a freehold clearly enough. Sicut dominus rex concessit alicui aliquam ballivam vel hujusmodi, donec bene et fideliter 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 quamdiu 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 II., 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 Saunders, who was elevated to his place in order to carry some court-points; and in the next year that 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 railleries of young mooting barristers, who thought 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 Moore’s Reports, and I mention it because it is fraught with lessons of instruction. It shows the tendency of holding offices at pleasure. It shows what sordid, nauseous, and impious adulations to superiors, 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 shows what a deep and lively sense they had upon their minds of their dependence, every moment of their existence, upon the 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 grandfather. 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 grandfather 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 were 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: “All such justices must derive their authority from such instruments 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 commissions, is their conformity to known and ancient precedents.” “Such commissions may be determined expressly or impliedly; expressly by an absolute repeal or countermand from the king,” &c.
From the Boston Gazette, 22 February, 1773.
to the printers.
In all General Brattle’s researches hitherto, aided and assisted as he has been by mine, we have not been able to discover either that the judges at common law had their commissions quamdiu se bene gesserint, or for life, or that the crown had authority to grant them in that manner. Let us now examine, and see whether estates for life, determinable only on misbehavior or the demise of the crown, can be derived to the Massachusetts judges from any other source. If they can, they must be from the charter, from the nomination and appointment of the governor, with the advice and consent of council, from the judges’ commissions, or from the law of the province; from one or more, or all these together, they must be derived, if from any thing. For, as the judges of the king’s bench and common bench are in by the king’s grant or by custom, or both; as justices of oyer and terminer, jail delivery, &c., are in by the king’s grant; as the clerk of the peace is said by Lord Holt, in the case of Harcourt against Fox, to be in by the act of parliament, 1 William and Mary; and the officers, whose places are in the gift of the chief justice, are in by the custom; so the Massachusetts justices are in by one or more, or all of the four titles mentioned before.
And here the first inquiry is, what is meant by an officer’s being in by custom or by statute, &c.? And I suppose the true answer to be this: he is invested with his powers, is obligated to his duties, and holds his estate by that custom or statute, &c. And the next inquiry is, by what are our judges in? that is, by what act or instrument are they clothed with their powers, bound to their duties, and entitled to their estates?
By the charter, there are no certain powers given them, no certain duties prescribed to them, nor any certain estate conferred upon them. The charter empowers the governor, with advice and consent of council, to nominate and appoint them, that is, to designate the persons; nothing more.
There are three sorts of officers in the charter. Those reserved to the nomination of the king, as the governor, lieutenant-governor, secretary, and judge of admiralty. And it is not limited how long they shall continue, excepting the first secretary, Addington, and he is constituted expressly during pleasure; and the duration of all these officers has been limited ever since expressly, by their commissions, to be during pleasure. The second sort of officers in the charter are those which the general court are to name and settle; and the charter expressly says they shall be named and settled annually, so that their duration is ascertained in the charter. The third sort are those which the governor, with advice and consent of council, is to nominate and appoint; and there are no duties imposed, no powers given, no estates limited to these, in the charter. But the power of erecting judicatories, stating the rights and duties, and limiting the estates, of all officers to the council and courts of justice belonging, is given to the general court; and the charter expressly requires that all these courts shall be held in the king’s name, and that all officers shall take the oaths and subscribe the declarations appointed to be taken and subscribed, instead of the oaths of allegiance and supremacy. And it is in observance of this requisition in the charter,—namely, that all courts shall be held in the king’s name,—that the judges’ commissions are in the king’s name. The governor and council designate a person, not to be the governor and council’s justice, but the king’s justice; not of the governor and council’s court, but of the king’s court. And the law of the province requires that the justices of the superior court should have a particular species of evidence of their nomination and appointment, namely, a commission; otherwise, as General Brattle says, a nomination and appointment recorded would be enough. And here I cannot refuse myself the pleasure of observing, that the opinion of Mr. Read concurred with, and, I humbly conceive, was founded on, these principles. Governor Belcher persuaded the council that, upon the appointment of a new governor, it was necessary to renew all civil commissions, and the same thing “was proposed in council by his successor; but Mr. Read, who was then a member of the council, brought such arguments against the practice, that the majority of the board refused to consent to it,” and it never has been done since.* This was an important service rendered his country by that great lawyer and upright man, and it was grounded upon the principles I have mentioned. Civil officers are not nominated to be the governor’s officers; they don’t hold their courts nor commissions in his name, but in the king’s; and therefore governors may come and go, as long as the same king reigns, and they continue the same officers. And, in conformity to the same principles, upon the demise of the crown, the commissions must be renewed, because the charter requires they should be in the king’s name. The words are, “in the name of us, our heirs and successors;” and therefore, upon the accession of an heir apparent, that is, after six months from his accession, the commissions must be renewed, otherwise they cannot be held in his name, nor the requisition in the charter complied with. I said in six months, because the statute of 6 Anne, c. 7, s. 8, not the statute of the present king’s reign, (as General Brattle supposes,) has provided, that “no office, place, or employment, civil or military, within the kingdoms of Great Britain or Ireland, dominion of Wales, town of Berwick-upon-Tweed, isles of Jersey, Guernsey, Alderney, or Sark, or any of her majesty’s plantations, shall become void by reason of the demise or death of her majesty, her heirs or successors, kings or queens of this realm; but every person, &c., shall continue in their respective offices, places, and employments, for the space of six months next after such demise or death, unless sooner removed and discharged by the next in succession as aforesaid.”
But, to return; our judges are not in merely by nomination and appointment of the governor and council, because they are not bound to their duties nor vested with their powers by the charter immediately, nor by that nomination and appointment. They are not in by the grant of the king merely, or by their commissions, because their court is not erected, their powers are not derived, their duties are not imposed, and no estate is limited by that grant. But their commission is nothing more than a particular kind of evidence, required by the province law, to show their conformity to the charter, in holding their court in the king’s name, and to show their nomination and appointment, or the designation of their persons to those offices, by the governor and council.
It is the law of the province which gives them all the powers, and imposes upon them all the duties, of the courts of king’s bench, common pleas, and exchequer; but it does not limit to them any estate in their offices. If it had said, as it ought to have said, that they shall be commissionated, quamdiu se bene gesserint, they would have been so commissionated, and would have held estates for life in their offices.
Whence, then, can General Brattle claim for them an estate for life in their offices? No such estate is given them by the charter, by their nomination and appointment, by their commissions, nor by the law of the province.
I cannot agree with General Brattle, that “supposing a corrupt governor and a corrupt council, whether the words in the commission are, so long as the governor and council please, or, during good behavior, will just come to the same thing.” Because in the one case a judge may be removed suddenly and silently, in a council of seven only; in the other not without a hearing and trial, and an opportunity to defend himself before a fuller board, knowing his accuser and the accusation. And this would be a restraint even to corruption itself; for in the most abandoned state of it there is always some regard shown to appearances.
It is no part of my plan, in this rencounter with the General, to make my compliments to his excellency Governor Hutchinson, and the present council; but I may be permitted to say, that the governor differs in sentiment from his Major-General about the power of the governor and council. In a note in the second volume of the History of the Massachusetts Bay, we have these words:—“The freedom and independency of the judges of England is always enumerated among the excellencies of the constitution.” The Massachusetts judges are far from independent. In Mr. Belcher’s administration they were peculiarly dependent upon the governor. Before and since, they have been dependent upon the assembly for their salary granted annually, which sometimes has been delayed, sometimes diminished, and which rarely escapes being a subject of debate and altercation. The dependency in Mr. Belcher’s time is attributed to the pusillanimity of the council, as no appointment can be made without their advice.
And we are told, too, that the emoluments of a Massachusetts counsellor are very small, and can be but a poor temptation to sacrifice virtue. All this, however, has been found in many instances, by experience, to be but a poor consolation to the people. Four gentlemen, a majority of seven, have, since Mr. Belcher’s day, been found under the influence of the same pusillanimity, and, for the sake of those emoluments, small as they are, or some other emoluments, have been seen to sacrifice virtue. And it is highly probable men will be composed of the same clay fifty years hence as they were forty years ago; and therefore they ought not to be left exposed to the same temptations.
The next thing observable in the General’s last publication, is this. “The parliament grants,” says he, “no salaries to the judges of England. The king settles the salaries, and pays his judges out of the civil list.” How is it possible this gentleman should make such mistakes? What is the king’s civil list? Whence do the moneys come to discharge it? Is it a mine of gold,—a quarry of precious stones? The king pays the judges! Whence does he get the money? The crown, without the gift of the people, is as poor as any of the subjects. But, to dwell no longer upon an error so palpable and gross, let us look into the book. The act of parliament of the 12 & 13 William III. expressly enacts, that the judges’ salaries shall be ascertained and established, meaning, no doubt, at the sums which had then usually been allowed them. And another act of parliament was made in the thirty-second year of George II. c. 35, augmenting the salaries of the puisne judges five hundred pounds each, and granting and appropriating certain stamp duties to the payment of it. With what color of truth, then, can the General say, that parliament grants no salaries, but that the king settles the salaries?
Another thing that follows is more remarkable still. “The act of parliament,” says the General, (meaning the late act empowering the crown to appropriate moneys for the administration of justice in such colonies where it shall be most needed,) “was made for no other reason than this, that the king might not pay them (that is, the judges) out of the civil list, but out of another fund, the revenue.” The General seems to have in his mind a notion that the king’s civil list is a magazine of gold and silver, and the crown a spot where diamonds grow. But I repeat it, the crown has no riches but from the gifts of the people. The civil list means an enumeration of the king’s civil officers and servants, and the sums usually allowed them as salaries, &c. But the money to discharge these sums is, every farthing of it, granted by parliament. And without the aid of parliament the crown could not pay a porter. Near the beginning of every reign, the civil list revenue is granted by parliament. But are the Massachusetts judges in the king’s civil list? No more than the Massachusetts Major-General is. If a minister of state had taken money from the civil list revenue to pay our judges, would it not have been a misapplication of the public money? Would it not have been peculation? And in virtuous times, would not that minister have been compelled to refund it out of his own pocket? It is true, a minister who handles the public money may apply it to purposes for which it was never intended or appropriated. He may purchase votes and elections with it; and so he may rob the treasury-chests of their guineas; and he has as good a right to do one as the other, and to do either, as to apply moneys appropriated to the king’s civil list to the payment of salaries to the Massachusetts judges.
Without the late act of parliament, therefore, as the king could not pay our judges out of the civil list, because the king can do no wrong, he could not pay them at all, unless he had given them presents out of his privy purse. The act must, therefore, have been made to enable the king to pay them, with what views of policy I leave to be conjectured by others.
I am very nearly of a mind with the General, that a lawyer who holds the judges’ offices here to be during good behavior, must do it upon his principles; because I can see none much more solid to ground such an opinion upon. But I believe his principles appear by this time not to be infallible.
The General solemnly declares, that Mr. Read held this opinion and upon his principles. Mr. Read’s opinion deserves great veneration, but not implicit faith; and, indeed, if it was certain that he held it, what resistance could it make against the whole united torrent of law, records, and history? However, we see, by the report the General was pleased to give the public of Lord Holt’s words, that it is possible for him to mistake the words and opinion of a sage; and therefore it is possible he may have mistaken Mr. Read’s words as well as his lordship’s.
I believe the public is weary of my speculations, and the subject of them. I have bestowed more labor upon General Brattle’s harangue in town meeting, and his writings in the newspaper, than was necessary to show their imperfection. I have now done with both,—and subscribe myself, Your, General Brattle’s, and the Public’s, well-wisher, and very humble servant,
[1 ]From the Boston Gazette, 5 September, 1763.
[1 ]From the speech of Ulysses, in Ovid. Metamorphos. lib. iii. l. 363-368.
[1 ]See volume ii. p. 150.
[2 ]Orations and Speeches on Various Occasions, by Edward Everett, vol. i. p. 140, note.
[* ]Robertson’s History of Charles V. ch. v. pp. 54, 141, 315.
[1 ]Rob. Hist. ch. v. pp. 178-9, &c.
[1 ]“I always consider the settlement of America with reverence and wonder, as the opening of a grand scene and design in Providence for the illumination of the ignorant, and the emancipation of the slavish part of mankind all over the earth.”
[* ]Brit. Ant. p. 2.
[* ]Social Compact, page 164.
[1 ]Edes and Gill, printers of the Boston Gazette.
[* ]The late Rev. Dr. Mayhew.
[1 ]Printed from the Boston Gazette, of Monday, 14 October, 1765.
[1 ]A Cambridge correspondent of the Evening Post, in October, 1765, enters into a comparison of these instructions with some of an opposite nature, coming from Marblehead, and published at the same time, and picks out this paragraph, as “worthy to be wrote in letters of gold.”
[1 ]From the Supplement to the Boston Gazette, Monday, 13 January, 1766.
[1 ]“Fearing that the local courts would not be inclined to execute the Stamp Act, penalties incurred in America were made recoverable in any court of record or in any court of admiralty in the Colony, where the offence should be committed, or in any court of vice-admiralty, which might be appointed over all America, at the election of the informer or prosecutor.” Minot’s History of Massachusetts, vol. ii. p. 167-8.
[1 ]From the Boston Gazette, 20 January, 1766.
[1 ]The indignation of the writer at the submission of Barbadoes to the stamp act is expressed in the Diary, vol. ii. p. 173.
[* ]Nova Scotia, Quebec, Pensacola, &c., are more excusable on account of their weakness and other peculiar circumstances.
[1 ]The curious reader will notice that this paragraph is almost a literal transcript from the Diary of the 18th of December, 1765, vol. ii. p. 154.
[1 ]From the Boston Gazette, 27 January, 1766.
[1 ]From the Boston Gazette, 26 January, 1767.
[1 ]From the Boston Gazette of Monday 9, and Monday 16, February 1767.
[1 ]“It must, it cannot but be evident to all who are willing to see and judge for themselves, notwithstanding the slander of Paskalos scribbling in the Gazette, or Tertullus, haranguing in the senate, that we never had a governor in the chair, who discovered more mildness, &c. than Governor Bernard has discovered.”
[1 ]History, vol. iii. pp. 189-193.
[2 ]History of the American War, vol. i. pp. 231-236.
[1 ]Hutchinson comments upon this passage as “aiming at independency.” In a note he says, “this is a singular manner of expressing the authority of parliament.” History, vol. iii. p. 193. The curious reader can compare this proposition with the fourth article of the Declaration of Rights and Grievances, made by the congress of 1774, and with Mr. Adams’s account of the origin of that article. See vol. ii. p. 374, and appendix C.
[1 ]History, vol. iii. p. 231.
[2 ]History, vol. i. p. 180.
[1 ]Copies of six letters of Sir Francis Bernard to the government at home, had been obtained through the agency of Alderman Beckford, a member of parliament, and had been transmitted by the colonial agent, Mr. Bollan, to the council of Massachusetts. The suggestions of changes necessary to be made in the government were well calculated to aggravate the popular irritation already existing.
[1 ]Vol. ii. pp. 315, 317. See also Bradford’s History of Massachusetts, vol. i. pp. 262-264.
[* ]4 Inst. 100.
[* ]1 Blackstone’s Comm. 267-8.
[† ]Croke, Jac. 407.
[* ]See Rapin, Burnet, Skinner, Comberbach, State Trials, and Sir Edward Herbert’s Vindication of Himself.
[* ]4 Inst. 200.
[† ]1 Bacon’s Abr. 555.
[‡ ]4 Inst. 75. “Where, in 5 E. 4. it is holden by all the chief justices in the exchequer chamber that a man cannot be justice by writ, but by patent or commission, it is to be understood of all the judges, saving the chief justice of this court (that is, the king’s bench); but both the chief justice and the rest of the judges may be discharged by writ under the great seal.”
[* ]Bacon’s Abr. 555.
[† ]See Brooke and Lit. Commission.
[* ]See 1 Blackst. Comm. 65-73.
[* ]This is rather an abstract than a quotation from the first ten pages of the preface to the reports of Lord Fortescue, printed in 1748, and signed with the initials J. F. A.
[* ]History of England, vol. i. Appendix II.
[† ]2 Hume, 162.
[* ]See also Gilbert’s History and Practice of the High Court of Chancery.
[* ]Reports, 394, known as Lord Fortescue’s.
[* ]See Rushworth, 420; 2 Rush. Append. 266.
[† ]See Skinner’s Reports, and Raymond, 251.
[* ]See 8 Hume, 143.
[* ]See Rapin and Mrs. Macaulay.
[* ]See 1 State Trials,—the proceedings against Chief Justice Tresilian and others.
[† ]Strykii, Examen Juris Feudalis.
[‡ ]Stryk. 173.
[* ]Which we have in Dalton, c. 5; and in 3 Burn, tit. Justices of the Peace; 1 Shaw’s Inst. 13, 16, 17.
[† ]See Dalton’s Justice, c. 3.
[* ]2 Hawkins’s P. C. 2, ss. 5, 6.
[* ]1 Sid. 338, Mich. 19, Car. II. B. R.
[1 ]Lord Campbell, in his late work, speaks of this case as an exception, thus: “In the vain hope of perpetuating his power, he obtained a grant for life of chief justiciar, which hitherto had always been held during pleasure.” Lives of the Chief Justices, vol. i. p. 49.
[* ]Hutchinson’s History of Massachusetts, vol. 2, p. 375-6, note.