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 misbehaviour, and determinable also on the demise of the crown? General Brattle still thinks they had, I, cannot yet find reasons to think so: And as, whether they had, or had not, is the true question between us. I will endeavour to confine myself to it, without wandering.—

Now in order to pursue my enquiry, 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 Alfreds code or domebook, with such improvements as the experience of a century and an 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, tho’ it is a general rule that the decisions of courts of justice are the evidence of what is common law. See 1 Black. Com. 65, 66, 67, 68, 69, 70, 71, 72, 73. I have endeavoured 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.1

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 to 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 Aethelbert, 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 these laws were now first of all made common to the whole English nation. This jus commune, jus publicum, or Folcright, i.e. the peoples right, set done [down] in one code, was probably the same with the doombook 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 above eight hundred years together, and continue to do so to this 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 the first promised to observe them—King Stephen, King Henry the second and Richard the first confirmed them. King John swore to restore them. King Henry 3d confirmed them. Magna Charta was founded on them. And King Edward the first in parliament confirmed them—page 3, 4, 5, 6, 7, 8, 9, 10.

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 Folcright, determines, the judges of the King’s bench, and common pleas to have estates for life in their offices, determinable only on misbehaviour, 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, quam diu se bene gesserint.”2

I have never expressed any disrespect to the character of Sir Thomas Powis, and I have no disposition, to harbour 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, i.e. 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 colour 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. Reed, should ever adduce the simple dictum, of a council 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 doom 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,3 Fortescue, Coke, or any Antiquarian, Mathew Paris, Dugdale, Lambard, or any other, or even the single opinion of one historian, to give a colour to his doctrine? No such matter. Nay I must enquire 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, vol. 1. 157.4 says, “one of the most considerable of the kings prerogative[s] was the power of appointing the earls, viscounts, judges and other officers, civil and 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 democratical 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 byass, if he had any, was the other way, and therefore his concession, makes the more in my favour.

Mr. Hume in his “feudal and Anglo Norman government and manners” v.i. quar. 412.5 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 deBurgo, who while he enjoyed his authority, had an entire ascendency over Henry the Third, and was loaded with honours and favours beyond any other subject, and by an unusual concession was made chief justiciary of England for life. 2. Hume 162. 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 shew, how valid and effectual this grant, of the office for life was then esteemed, “yet Henry, says Hume, 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, supream regent of the kingdom, and first minister of state, as well as of the law. And this seems to shew 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,6 page 7, 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 Pippin, who were justiciars in France, had done there. See also Gilbert’s history and practice of the high court of chancery.7

Now from the exorbitant powers and authority of these justiciaries arises a proof from the frame of the government and the ballance 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, were 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 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 shew the improbability, that the judges held their offices during good behaviour 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 enterprizing 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 disengag’d 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, over the judges, was absolute enough however, and they sometimes treated them with very little ceremony. Alfred himself is said in the mirror of justices8 to have hang’d up 44 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, jurisdictene quae pertinet, ad regem; consequenter dicendum est de jurisdictione delegata ubi quis est seipso nullam habet authoritatem, sed ab illo sibi commissam cum ipse qui delegat non sufficiat per se omnes, causes, sive jurisdictiones terminare et si ipse dom, rex and [ad] singulus causas terminandas non sufficiat, ut levior fit 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 tenetur, jujurias et errores, sicut etiam alii perpetui certo loco residentes sicut in banco. Qui omnes jurisdictionem habere in cipiunt praestito sacramento. Et quam vis quidam eorum perpetui sunt ut videtur, finitur tamen eorum jurisdictio multis modis. v.g. mortuo eo qui delegavit, &c. Item cum delegans revocaverit jurisdictionem.” &c. Bracton. chap. 10. Lib. 3.9

Serjeant Levenz says,10 “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 loose it for misbehaviour. So was Sir John Waller’s [Walter’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, i.e. 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 serjeant goes on, “And so was Justice Archer’s case in the time of King Charles the second. He was made a Judge of the common pleas quam diu se bene gesserit, and tho’ 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 favour, and he can’t reconcile this patent to Judge Archer, with the history of Charles the second’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 favours 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, Serjeant Levinz’s saying. And the first is Justice Fortescue Aland, Rep. 394. “Justice Archer was removed from the common pleas, but his patent being quam diu se bene gesserit, he refused to surrender his patent, without a scire facias, and continued justice, tho’ prohibited to set there. And in his place Sir William Ellis was sworn.” The next is, Sir Tho’s Ray. 217.11 “This last vacation Justice Archer was removed from sitting in the court of common pleas, pro quibusdam causis mihi incognitis; but the judge having his patent to be a judge, quam diu se bene gesserit, refused to surrender his patent without a scire facias, and continued justice of that court, tho’ prohibited to sit there, and in his place, Sir William Ellis, kt. was sworn.”

But will any man from these authorities conclude, that King Charles the second, 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, quam diu se bene gesserint?—If we look into Rushworth 1366,12 we shall find some part of this mystery unriddled. “After passing 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 quam diu 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, quam diu se bene gesserint—And likewise his gracious Majesty King Charles the second observed the same rule and method in granting patents to judges, quam diu se bene gesserint, as appears upon record in the rolls (viz.) to Serjeant Hide [Hyde], to lord chief justice of the King’s bench, Sir Orlando Bridgeman to be lord chief baron, and afterwards to be lord chief justice of the common pleas, to Sir Robert Foster and others; Mr. Serjeant Archer now living (notwithstanding his removal) still enjoys his patent, being quam diu 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 was in 1640.

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 shewing 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. See Rushworth, 420. 2. Rush. Append. 266.13 —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 800 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 the IId, his character is known to have been 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 the 1st, and therefore chose to continue it under the second.

But notwithstanding all this, Charles the IId, 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, quam diu se bene gesserint, and he actually re-assumed his prerogative, displaced Judge Archer and many others in the latter end of his reign, and so did his successor, see Skinner’s reports14 and Ray. 251. These examples shew that those Kings did not consider these concessions as legally binding on them. They also shew, 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 the IId, after the removal of Archer and many other judges, the commons brought in a bill, to make the office of judge during good behaviour: see 8. Hume. 143. 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.

Archers “continuing judge,” and “receiving fees for fines” and “his name’s 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, clamour 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 sci. fa. and so occasion an odium on the administrations, and hasten on a revolution.

I have hazarded these conjectures, unnecessarily, for it is incumbent upon General Brattle to shew 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 shew that the King, at common law, i.e. from time immemorial, granted patents to these judges during good behaviour, or that he the King had his election to grant them either durante beneplacito or quam diu se bene gesserit, as he pleased. Nay, it is incumbent on him to shew 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 impowered the custos retulorum, 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, quam diu 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 Kings bench and common pleas, expressly quam diu 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 Kings grant, at common law, to a judge of King’s bench or common pleas, of his office for life in terms, or during good behaviour, which is tantamount, would have been void,—void I mean quoad an estate for life or good behaviour, but good as an estate at will, and I conceive when we read that the King cant make a Lord Chancellor for life, but that such a grant would be void, the meaning is, that the habendum for life or good behaviour 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 don’t 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.