III. William Brattle to the Boston Gazette
Cambridge, January 18, 17731
To the PRINTERS,
As the lines of mens minds are as various as the features of their faces, they can no more upon every subject think alike than they can look alike, and yet both be equally honest; consequently they ought respectively to be treated with good manners, let their stations in life be what they may, by all excepting those who think they have infallibility on their side. For the publick peace and good order, I should be willing to be mistaken in my law as John Adams, Esq; in his letter of last week supposes I am, if the writers upon political controversy would follow his example in his decent polite writing. As to his knowledge and learning in the law, I can’t expect their imitation, till they have his genius and accomplishments, which I sincerely believe are rare. It appears to me that Mr. Adams’s sentiments upon the estate that the justices of the superior court here by virtue of their nomination and appointment have, namely, that they may be legally displaced, meerly by the arbitrary will and pleasure of the Governor and Council, are Tory principles. But as I am convinced to draw the consequence therefrom, that he is one, would be injurious and false, I hope his sentiments (tho’ however mistaken) will not be improved to his prejudice. I on the other hand have said, and now declare as my opinion, that the Governor and Council can no more constitutionally and legally remove any one justice of the superior court, as the commissions now are, unless there is a fair hearing and trial, and then a judgment that he hath behaved ill, than they can hang me for writing this my opinion, and the latter (if it went no further) would not be of one half the publick mischief and damage as the former, notwithstanding I am very sensible that this hath been the case in one or two arbitrary administrations. I recollect but two since the charter; but these were arbitrary, illegal, unconstitutional measures, and do not determine what the law is, any more then the arbitrary illegal measures of the Steward Kings determine that their measures were legal, and ought to be the rule of his present Majesty’s conduct. Arbitrary measures never did, after people had come to their senses, and I hope never will, determine what the law is.
Further I observe, that supposing a corrupt governor and a corrupt council, whether the words in the commission, are so long as the governor and council please, or during good behaviour, will just come to the same thing, the security as to the public will be just the same, but this is not our unhappy case. I am convinced that nothing would induce his Excellency Governor Hutchinson to nominate, or one member of the council to consent to a nomination in the room of any one justice of the Superiour Court (however disagreeable he might be) till he had after a impartial trial been first adjudged to have behaved ill, and so forfeited his estate by a breach of trust. The first thing Mr. Adams expresses his great surprize at is, that I should be at any loss, or any man in the province should be at a loss for what time the grant is made to the Judges; he says the King can’t grant salaries in any other manner than durante bene placito, and that the King’s power to grant salaries to any Judges in America, is derived solely from the late act of Parliament, and that gives no power to grant salaries for life or good behaviour, the above assertions without the least color of proof, but Mr. Adams’s word for it, I deny. The parliament grants no salaries to the Judges of England, the King settles the salaries and pays his Judges out of the civil list; and I challenge Mr. Adams to show one instance of any Judge who was continued in office, tho’ at the same time most disagreeable to the king that his salary was taken from him; to suppose this is frustrating the act of parliament that enacts that their commissions should be during good behaviour; for what if they are during good behaviour, what good will it do them, or what safety will it be to the community if it is in the power of the King to take away their salaries and starve them? Will they not in this case be as dependent upon the Crown as if their commissions were to determine by the will of the King? Again, this act of parliament with respect to the Judges salaries, was made for no other reason than this, that the King might not pay them out of the civil list, but out of another fund, namely, out of the revenue; here the abovementioned act says nothing about durante beneplacito, and therefore if there is a grant made to the Judges, that grant stands upon the same footing with the salaries granted by the King to the Judges in England. Mr. Adams challenges me to produce one lawyer that ever was, or now is, in the country, that entertained such an opinion as I have advanced, namely, that by the common law of England, the Judges commissions are so long as they behave well: He acknowledges there may be respectable lawyers in this country, that hold that the Judges commissions are during good behaviour, though not expressly mentioned in their commission, but it is on other principles. I answer, if they are of that opinion, it must be upon my principles, for there is no statute law about it which extends to the plantations, the canon law nor civil law says nothing about it; and therefore if they are in sentiments with me, they can found their opinion on the common law only; and this I do solemnly declare, the honorable Mr. Read2 did, who was to every lawyer as highly esteemed for reforming, and correcting the law and the pleadings as Justinian was at Rome. He was my friend, my father, under whose direction I studied the law. I have heard him often and often declare it, as his opinion, and I have living witnesses to prove it; the late Judge Auchmuty3 was of the same mind. I have asked no gentleman at the bar now on the stage their opinion, and do not know it. But this I know, that it is the opinion of the greatest lawyers who are not at the Bar in the province, that I am right in what I have advanced. Mr. Adams makes a further challenge, and denies that I can produce the name of one of the sages of the law, by whom it hath been settled as I contend for, or in other words, that I am alone in my sentiments. This surprizes me much, that a gentleman of Mr. Adams’s learning should be so extreamly mistaken and forgetful: Sir Thomas Powis one of the sages of the law gives his opinion in the words following, “I take [it] by the common laws and the ancient constitution of the kingdom all officers of courts of justice, and immediately relating to the execution of justice, were in for their lives, only removeable for misbehaviour in their offices: Not only my lords the judges of the courts of Westminster-Hall were anciently as they now are, since the revolution, quam diu [se] bene gesserint, but all the offices  of note in the several courts under them were so, and most of them continue so to this day; as the clerks of the crown in this court and in the chancery, the chief clerk on the civil side in this court, the prothonotaries in the common pleas, [the] master of the office of pleas in the exchequer, and many others. I think speaking generally they were all in for their lives by the common law, and are so to this day.—I shall not enlarge upon this matter, I need not, it being so well known,” says Sir Thomas.4 Sergent Levenz expressly says, that in the time of King Charles the second, S. [John] Archer was made a judge of the common pleas quam diu bene se gesserit. If it never was the common law of England that the judges commissions run during their good behaviour, as Mr. Adams affirms, and there was an act of parliament formerly that they should be during the king’s pleasure (which let it be observed Lord Coke never said there was a statute relating to it) unless that statute was repealed, and I challenge Mr. Adams, and so I would my Lord Coke if he was alive, to shew that it was, or even that there ever was such a statute. I quere how it come about that King Charles the second did not conform to said statute, how in the face of an act of parliament or the common law, or both, to give commissions to the judges to continue during good behaviour, and thereby lessen their dependence on him; this can’t well be reconciled with the history of his reign. And how come it about that ever since the revolution to George the first time, the commissions were during good behaviour. This I agree with Mr. Adams was the case, and am quite obliged to him for correcting my mistake when in my harrangue I said otherwise. According to Mr. Adams’s doctrine, and according to the law, they were ipso facto null and void, because they were directly against law; provided Mr. Adams is right that both common law and statute law formerly obliged the King to give the judges their commission during good pleasure only. But I conceive that King William and Queen Mary that came over to save an almost ruined and undone people, by the tyranny of their predecessors, and their acting directly contrary to the laws of the land, that they should begin their reign by going directly against the law, and thereby violate their coronation oath, this is not credible. What the law was before their reign, was better known, and the law which was often fluctuating by the arbitrary power of some former princes, was put upon a more solid basis since the revolution than it was before. And we are to inquire what the law was formerly by the resolutions, the judgments of court, and the practice since the revolution, and the tenure of the judges commission since the revolution being during good behaviour, to the reign of George the first, and when the act of King William was to take place,5 and not before, namely, that during good behaviour should be in their commissions, plainly proves what I have advanced to be law, is law, or else great dishonor is reflected upon King William, Queen Mary, and Queen Ann. I am obliged to Mr. Adams for quoting the following passage out of my Lord Coke, which fully justifies my reasoning upon the Judges commissions. The words are these. “It is a rule in law that ancient offices must be granted in such forms and in such manner as they have used to be, unless the alteration was by authority of parliament.”6
It is manifest to every one that doth not depend upon their memory, that lord chief justice Holt, one of the sages of the law, apprehended that for the Judges commissions being during good behaviour, was upon the rule of the common law. He says after a cause had been argued upon a special verdict; after Sir J. Powes and serjeant Levenz had most positively affirmed, that this was the rule of the common law, not denied by the council on the other side, but rather conceded to: that in giving his opinion upon the whole matter, we all know it, says that great lawyer, and our places as judges are so settled, only determinable by misbehaviour,7 settled by whom? not by an act that was not to take place till the accession of George the first, not by any statute then existing; where is it? Whoever heard of it? Let it be produced; if not by statute, certainly then by common law. And can any man think that Lord Chief Justice Holt would have taken a commission from King William and Queen Mary, if they had offered him one, supposing it had been contrary to law, or rather if it had not been consonant to law: Or can we suppose that all the judges of the King’s bench would have heard the before mentioned gentlemen with respect to the tenure of the judges commissions, without a reproof, or at least without telling them it was not law, if all the judges had not thought it was law; I leave the world to determine.
Mr. Adams says, and says truly, that Sir John Holt, kt. chief justice of the King’s bench, holding his office by writ, tho’ it was quam diu bene se gesserit; held it to be determined by the demise of the King, and therefore Queen Ann ordered a new writ. And what then? Every civil officers commission holden quam diu bene gesserint, died with the demise of the King, till the act made in the present King’s reign. Wherefore there was an act of parliament that all officers should be continued a certain time after the demise of the King, to prevent the total stagnation of justice.8
Mr. Adams supposes a material difference between an estate that the judges have as such for life, or so long as they behave well: the following judges his equals at least differ from him. Serjeant Levenz “I take it clear law, that if an office be granted to hold so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehaviour; for it hath an annexed condition to be forfeited upon misdemeanor, and this by law is annexed to all offices, they being trusts; and misdemeanors in an office is a breach of trust”; and with his opinion agree the judges of the Kings bench in the case of Harcourt against Fox. J Eyre says, I do not think there is plainly given an estate for life in his office determinable upon his good behaviour: J Gregory says the same: J Dolben says that if any man is to enjoy an office so long as he behaves well in it, no one will doubt but the grantee hath an estate for life in it. My Lord Chief Justice Holt says, I do agree with my brothers in opinion.9 Upon the whole, using Mr. Adams’s own words, My haranguing in the town meeting in Cambridge hath not received any sufficient legal answer; and not-withstanding my veneration for Mr. Adams’s authority, it by no means prevails with me to give credit to his doctrine: Nor do his reasons in support of it weigh with me even so much as his authority.
1. This essay appeared in the Boston Gazette of 25 Jan.
2. John Read (1679/80–1749) was the dominant figure in New England law of the early 18th century. For JA’s comments on Read, see his letter to Thomas Welsh, 13 Sept. 1790, JA, Works description begins The Works of John Adams, Second President of the United States: with a Life of the Author, ed. Charles Francis Adams, Boston, 1850–1856; 10 vols. description ends , 9:572; a sketch of Read appears in Sibley-Shipton, Harvard Graduates description begins John Langdon Sibley and Clifford K. Shipton, Biographical Sketches of Graduates of Harvard University, in Cambridge, Massachusetts, Cambridge and Boston, 1873– . description ends , 4:369–378.
3. Robert Auchmuty the elder (d. 1750 or 1751). Of Judge Auchmuty, JA wrote: “Set up all Night at his Bottle. Yet argue to Admiration next Day” (Diary and Autobiography description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, 1961; 4 vols. description ends , 2:113; for a sketch of Auchmuty, see same, 1:160).
4. Powys’ arguments in Harcourt v. Fox appear in Shower, Reports, 1:428–429.
5. The Act of Settlement.
9. That is, Holt agreed with justices Sir Giles Eyre, Sir William Gregory, and Sir William Dolben, who sat with him on King’s Bench.