Governors or other chief Officers by Us or by Our Royal Predecessors And whereas it does not appear to Us that in the present situation and Circumstances of Our said Colonies it would be either for the interest or advantage of the said Colonies or of this Our Kingdom of Great Britain that the Judges or other Chief Officers of Justice should hold their Offices during good Behaviour It is therefore Our express Will and Pleasure that you do not upon any pretence whatever upon pain of being removed from your Government give your Assent to any Act by which the tenure of the Commissions to be granted to the Chief Judges or other Justices of the several Courts of Judicature shall be regulated or ascertained in any manner whatever And you are to take particular care in all Commissions to be by you granted to the said Chief Judges or other Justices of the Courts of Judicature that the said Commissions are granted during Pleasure only, agreeable to what has been the ancient Practice and usage in our said Colonies and Plantations.' 1 In the above instructions the doctrine is boldly laid down more clearly than ever before by an English ministry, that the Americans were not entitled to the same rights and privileges as their fellow-subjects residing in Great Britain. Four years later the Stamp Act was passed, on the same principle, and then the Americans were aroused to the importance of this idea, as involving all their rights as subjects of the British Crown. The second principle referred to in this document— the independence of the judiciary-attracted little attention at a time when the country was profoundly interested in the French war, but when, soon after, justice was prostituted by the appointees of the Crown, in the administration of the admiralty courts, and in the enforcement of other obnoxious legislation by Parliament (Marshall's Life of Washington, II., 73; Works of John Adams, III., 466), the colonies awoke to the fact that their liberties were being insiduously attacked in a new and vital spot. The immediate occasion of the dispatch of December 2, 1761, was the enactment of a law by the New York legislature to make the commissions of judges hold during good behavior. The Pennsylvania Assembly had enacted such a law in September, 1759, which had received the assent of the LieutenantGovernor, by advice of his council.-Minutes Provincial Council of Pennsylvania, Colonial Records VIII., 398-402. It was disallowed by the king in Council, September 2, 1760, on these grounds: 1, Under the charter of Pennsylvania the appointment of judges was vested in the Proprietaries, and their appointments had been as good as the colony could afford; 2, "It would excite the jealousy of the other colonies, which would demand the same advantage; 3, It would prevent the incompetent judges from being replaced by better men as the latter came into the province; 4, "It was not expedient for the interest of either the mother country or Order in Council directing Instructions to be submitted for the King's signature in relation to Granting Lands and Judges' Commissions. L. S. [From America and West Indies, Vol. 105.] AT THE COURT AT ST JAMES'S THE 3rd PRESENT The King's Most Excellent Majesty in Council Upon reading at the Board, a Report from the Lords Commiss's for Trade and Plantations dated the 24 of this Instant, together with two Draughts of Instructions prepared by them, The one for the Governors of such of His Majesties Colonies upon the Continent of North America, as are under His Majesties immediate Government, and where the Property of the Soil is in His Majesty, forbidding them to pass Grants of, or encourage Settlements upon any Lands within the said Colonies, which may interfere with the Indians bordering thereon: And the other for the Governors of 串 * the colonies, that judges in the plantations should hold their places quamdiu se benegesserint."-Ib., 543-4, 558. The instructions to the royal Governors of New York and New Jersey, from 1686 down to 1761 contained this provision: "You shall not displace any of the judges * * * without good and sufficient cause signified unto us & to our committee of plantations. And to prevent arbitrary removals of judges * You are not to express any limitation of time in yo commissions." -N. Y. Col. Docs., III., 371, 687, 820; V., 130, etc.; N. J. Archives, II., 518, etc.; Leaming and Spicer, 630. In 1733 Governor Cosby took it for granted that judges could not be displaced except for cause.-N. Y. Col. Docs., V., 949. A remarkable instance of the recognition of this principle is the case of Chief-Justice Robert Hunter Morris, of New Jersey, so copiously referred to the correspondence in this volume regarding his claims to that office. He resigned: his resignation was not accepted formally, but a successor, William Aynsley, was appointed, who discharged the duties of the office from March, 1758, until his death in the July ensuing, when another successor was appointed. Then the Chief-Justice concluded, that as his resignation had not been accepted, it was his duty, as it happened also to be his His Majestys American Islands, and for the Governors of those Colonies on the Continent of America which are under His Majestys immediate Government, containing Directions with respect to the Tenures of the Commissions to be by them granted to the Chief Judges and Justices of the Courts of Judicature in the said Colonies His Majesty this day took the said Draughts of Instructions into Consideration, and was pleased with the Advice of His Privy Council to Approve thereof, And to Order, as it is hereby ordered, That the Right Honourable the Earl of Egremont, One of His Majestys Principal Secretarys of State, do cause Instructions to be prepared agreable to the said Draughts (which are hereunto annexed) for the Governors or Commanders in Chief of His Majestys Colonies on the Continent of North America, and also for the Governors or Commanders in Chief of His Maj pleasure, to resume his seat upon the bench, and the other judges decided that he had a right to do so, inas nuch as his commission was during good behavior. Writing in 1756, William Smith, the historian of New York, himself Chief-Justice of the province for many years, and the son of a Supreme Court judge, said the commissions of the judges of that court "were formerly during pleasure, but of late quamdiu se bene gesserint."-Smith's Hist. New York, London Ed., 1776, p. 320. There appears to have been some question, however, as to their terms, and in the early part of 1761 the New York Legislature passed an act "to provide that the judges of the Supreme Court shall have their commissions during good behavior,” but Lieutenant-Governor Colden thought it well "to have the judges removable on the king's pleasure," and succeeded in preventing the passage of the bill. In May following the legislature again passed the bill, and the Governor staved it off for a time with the objection that it contained no provision for fixed salaries, but left the judges dependent from year to year on the will of the Assembly. He admitted that it was a popular bill," and finally assented to it with reluctance. The instructions above given deterred the Assembly from any further efforts in the same direction, but that body resolutely refused to grant any salaries to the judges unless their commissions were issued during good behavior.-Journals Legislative Council of New York, 1691-1775, pp. 1435-7, 1413-51; N. Y. Col. Docs., VII., 462, 470, 484. When the Stamp Act was passed, in 1765, the Americans soon perceived that they would necessarily be dependent for the judicial interpretation and enforcement of obnoxious laws of Parliament on judges holding office at the pleasure of the king, or durante beneplacito, instead of durante se benegesserint, as was the law of England. Here both the practical workings of this system of commissioning and the invidious distinction made between the Americans and their fellow British subjects in England were perceived, and thoughtful men soon saw the importance of having a judiciary with fixed terms and fixed salaries.-Works of John Adams, IV., 186. In that remarkable paper, "The American Claim of Rights," by William Henry Drayton, of South Carolina, dated August 10, 1774, one of the grievances set forth estys American Islands, and of those Colonies on the Continent of America which are under His Majestys immediate Government, and lay the same before His Majesty for His Royal Signature. HEN FANE Draught of an Instruction for the Governors of Nova Scotia, New Hampshire, New York, [New Jersey,] Virginia, North Carolina, South Carolina, and Georgia, forbidding them to grant Lands or make Settlements which may interfere with the Indians bordering on those Colonys Whereas the Peace and Security of Our Colonys & Plantations upon the Continent of North America, does greatly depend upon the Amity & Alliance of the several Nations, or Tribes of Indians bordering upon the said Colonys, and upon a just and faithfull Observance of those Treatys and Compacts which have been heretofore Solemnly entered into with the said Indians, by Our Royal Predecessors, Kings and Queens of this Realm. And whereas notwithstanding the Repeated Instructions which have been from time to time given by Our late Royal Granfather, to the Gov is that "judges hold their seats at the will of the Crown, a tenure dangerous to the liberty of the subject, and therefore justly abolished in England," and therefore he claimed: "That equally as the people of England are interested in the independence of their judges, so are we interested in the independence of our judges; and upon principles of common and impartial justice, claim that their commissions should run quamdiu se benegesserint.”—Gibbes' Doc. Hist. South Carolina, 1764-76, pp. 15, 17. The Declaration of Independence two years later set out as one of the just causes of complaint of the Americans against their king: He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries." When the convention of 1787 met to frame a federal Constitution, the first business submitted was the plan of Edmund Randolph, which included a clause that the federal judges should hold their offices during good behavior, and receive a fixed compensation." Mr. Paterson and Mr. Hamilton in their plans suggested a like provision and it was incorporated in the Constitution unanimously. Journal of the Federal Convention, 69, 125, 131, 137, 188.-[W. N.] ernors of Our several Colonys upon this head, the said Indians have made and do still continue to make great Complaints, that Settlements have been made & Possession taken of Lands the Property of which, they have by Treatys Reserv'd to themselves, by Persons claiming the said Lands, under Pretence of Deeds of Sale and conveyance, illegally, fraudelently and surreptitiously obtained of the said Indians, And whereas it has likewise been represented Unto Us, that some of Our Governors, or other Chief Officers of Our said Colonys, regardless of the duty they Owe to Us, and of the Welfare and Security of Our Colonys, have countenanced said unjust Claims and Pretensions by passing Grants of the Lands so pretended to have been purchased of the Indians, We therefore taking this matter into Our Royal Consideration, As also the fatal Effects, which would attend a Discontent amongst the Indians in the present Situation of Affairs, and being determined upon all Occasions to support and protect the said Indians in their just Rights and Possessions, and to keep inviolable the Treatys and Compacts which have been entered into with them, Do hereby strictly enjoin & Command, that neither yourself nor any Lieutenant Gov, President of the Council or Commander in Chief of Our said of 'do upon any pretence whatsoever, upon pain of Our highest displeasure and of being forthwith removed from Your or his Office, pass any Grant or Grants to any Persons whatever, of any Land within or adjacent to the Territorys possessed or Occupied by the said Indians, or the Property or Possession of which has at any time been reserved to or claim'd by them: And it is Our further Will and Pleasure, that you do publish a Proclamation in Our Name strictly enjoining and requiring all Persons whatever who may either will 1 Colony or Province of --ED. |