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during good behaviour, hath uniformly been adjudged an office for life, determinable on misbehaviour only.*

Constitutional ground, because the Declaration of Rights (art. 29) declares, "It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.”That "it is the right of every citi zen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.”—That "it is therefore not only the best policy, but for the security of the rights of the people and of every

Note, No. I.

See the Case of Harcourt vs. Fox (1. Show. 516) in King's Bench, 5. W. & M. 1693 (about seven years before that statute). In which all the judges gave their opinions seriatim, That where an office is granted "to execute the same for so long time only as he shall well demean himself in the office," is an estate for life, determinable upon the misbehaviour of the officer. Justice Eyres asks, (522) Who will deny that to have been an estate for life?And Justice Gregory says, (523) "If these words had been annexed to the grant of any other office in Westminster Hall, without all question the gran. tee had been an officer for life. The clerk of the peace being an officer rclating to the execution of the law, his office must be governed by those rules that govern other officers of like nature. He should be removeable upon no other cause" (meaning than mishehaviour in his office).-Justice Dolbin says,(525)“ If any office be granted to a man to enjoy so long as he shall behave himself well in it, no one will doubt but the grantee hath an estate for life in the office."

Lord Chief Justice Holt says, (531) The words themselves "for so long time only as he shall behave himself well in the office," in their natural and proper extent, do signify an estate for life. If the word only had been left out, then it had been so indefinite a limitation,

citizen, that the judges of the Supreme Judicial Court should hold their offices AS LONG AS THEY BEHAVE THEMSELVES WELL."-Again it is declared (chap. 3, art.' I) that, "all judicial officers shall hold their offices DURING GOOD BEHAVIOUR, excepting such concerning whom there is different provision made in this constitution."

And no different provision is therein made respecting the judges of the Supreme Judicial Court. The same article further declares, "the tenure that all judicial officers shall by law have in their offices, shall be expressed in their respective commissions." †

that no man, I think, would have doubted; for my part, I should not have made the least question, but that it was an estate for life. To encourage him (the officer) in the faithful execution of the office (534) they settle the estate, so as to put him out of fear of losing it for any thing but his own misbehaviour in it. And the word only he considers makes no difference. Holt adds, (535,6) "The design of parliament 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 MISBEHAVIOUR."

This judgment was affirmed in the House of Lords. See 1. Ld. Raym. 161. See Note No. 3 throughout.

† Note, No. II.

Before our revolution, under the province charter, the judges were nominated and appointed by the governours, by and with the advice and consent of the council, and an entry thereof was made in the council books, and each judge had a commission in the king's name, under the province seal, But neither in the record of the nomination and appointment, nor in the commission was there any mention made of the estate the judge had in his office. Whether he was to hold the office during his good behaviour in it, or during pleasure only.

And the commission of a judge of the Supreme Judicial Court is, "to have and to hold the office, with all the powers,privileges, and emoluments to the same of right appertaining, DURING GOOD BEHAVIOUR." Can words more clearly express the estate which a judge holds in his office?-Thus under the sanction of the constitution, of law, and of the publick faith, a judge of the Supreme Court may, I conceive, rightfully claim an estate in his office for life determinable, like all such estates, by his misbehaviour only.t

But I have understood the late removal was rested on a paragraph which immediately follows that last cited, viz. "Provided nevertheless, the Governour, with the consent of the Council, may remove them (judicial

The governour, who made the appointment, held his office during the pleasure of the king. A question arose which of those estates the judge had in his office. To do away all uncertainty of this kind, our constitution declares they shall hold their offices during good behaviour; and further, that the tenure, by which they hold their of fices, shall be expressed in their respective commissions.

Note, No. III.

During the reigns of the Stuarts, as well as before, some of the judges were appointed during good behaviour, and others during pleasure. When they were appointed during good behaviour, tho' the kings arbitrarily forbad their exercising their office and withheld their salaries, they were nevertheless considered as continuing in their office,even where the appointment of another had been made. "Sir John Walter, (says Sir Thos. Raymond) a man of profound learning and of great integrity and courage, was appointed lord chief baron by patent 1 Car. Quamdiu se bene gesserit, (during good behaviour,) being in the king's displeasure, and commanded that he should forbear the exercising his judicial place in court,never ' after exercised his place in court. And because he had that office quamdiu se bene gesserit, he would not leave bis

officers) upon the address of both houses of the legislature.

This proviso is general; it points out no cause or ground of removal. Is it therefore to be so construed as to authorise the removal of a judge of the Supreme Judicial Court, without assigning any cause or ground of removal, or by assigning any cause or ground other than misbehaviour in the judge? This is the important question-and I think it must be answered in the negative-1st. Because it would otherwise depend upon the mere will and pleasure of the other branches of our government,whether a member of the Supreme Judicial Department should be removed from his office, and his estate therein vacated and annulled, without any default in himself.

place, nor surrender his patent, without a scire facias to shew what cause there was to determine his patent, or to forfeit it; so that he continued chief baron until the day of his death.-Cro. Car. 203. Justice Archer was removed by Char. II. from sitting in the court of Common Pleas. 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 the court, though prohibited to sit there, and in his place Sir William Ellis was sworn. See Sir Tho. Raym. Rep. 217. Rushworth says, "Mr. Sargeant 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 all those fines, &c. as a judge of that court. Hence it would seem, the king or his cabinet, conscious that the words, during good behaviour in an office, gave a lite estate in it, determinable only upon misbehaviour, and the removals being made arbitrarily, without any such cause, it was not thought expedient to bring a scire facias to smul the patent, but to punish learned and upright judges by withholding their salaries only, and forbidding their exercising the daties of their offi.e.

2. Because it would be sticking to the letter of a single detached paragraph of the constitution, and violating an established rule of construction of every law, or instrument, viz. that every part shall have its operation, if by any possibility it can; and no part be rejected unnecessarily. Ex antecedentibus & consequentibus fit optima interpretatio.

3. Because it endangers that impartial interpretation of the laws, and administration of justice, which the constitution declares "is essential to the preservation of the rights of every individual, his life, liberty, property, and character."

4. Because it is irreconcilable with the declared right of every citizen, to be tried by judges as free, impartial, and independent 66 as the lot of humanity will admit." 5. Because it lays the Judicial Department prostrate before the legislative and executive departments; and destroys that barrier, which the constitution has erected between them and the citizen individually considered.

6. Because such a construction of this proviso is also repugnant to the express declarations, positive provision, and the manifest scope and design of the constitution to establish a Judicial Department, free,' impartial, and independent, as well as against the clear legal tenure of the office as expressed (according to the requisition of the constitution) in the commissions of the judges, viz. "to have and to hold the office, with all the powers, privileges, and emoluments to the same of right appertaining, DURING GOOD BEHAVIOUR."

7. Because, to give the proviso a construction which shall extend

it to any other cause or ground of

removal than misbehaviour in the judges, would be to make the conD

Vol. IV. No. 1.

stitution declare they shall hold their offices during good behaviour, that is, shall have a freehold or life estate in them, but shall nevertheless be removable at the mere will and pleasure of the other branches of our government.-A language I am unable to reconcile.

Our constitution was drawn up by the most eminent lawyers, statesmen, and politicians of the commonwealth, who saw the propriety, who felt the necessity, of establishing that department," whose duty it is to decide on the life, liberty, property, and character of their fellow citizens," upon firm and independent ground: "to the end that our's should be a government of laws and not of men." They thoroughly comprehended the force and legal effect of the words "during good behaviour," when they respect the tenure of an office. They were not unacquainted with the mischiefs and oppression endured by the people of England, which resulted from the dependence of the judges, both as to their salaries and their continuance in office, upon the will of the king. They saw the judges and the people relieved from so dangerous and degrading a condition, by this single concise paragraph of the statute of William, "that judges' commis

*Note, No. IV.

king by the House of Commons, in 1641, they say in art. 38, "Judges have been put out of their places for refus ing to do against their oaths and consciences: Others have been so awed, that they durst not do their duties, and the better to hold the rod over them, the clause Quamdiu se bene gesserit, or during good behaviour, was left out of their patents, and the clause, Durante bene placito, or during pleasure, inserted." See 2 Rapin's Hist. p. 392.

In the remonstrance presented to the

Before this, in 1640, the House of Lords addressed the king on the same subject. 2 Mac. Hist. 440.

sions be made during good behaviour, and their salaries ascertained and established." And they have adopted these very terms into our constitution. Can their design, then, be doubtful in doing this? The judges of England do not now rest even upon the salutary provision of that statute. For although they were thereby secured as to their salaries, and continuance in office, during their good behaviour: Yet on the demise of the crown, or, in plain English, on the death of the king, or within six months after their commissions (which run in the name of the king for the time being) ceased, and they were liable to be displaced by the new sovereign. Even this degree of dependence has been taken away.

"In March, 1761," says the British historian,* "the king (Geo. the 3d) proposed a step for securing the independency of the judges, which was justly admired as an eminent proof of his candour, moderation, and publick spirit. To the parliament he explained his purpose in the following manner :... "Upon granting new commissions. to the judges, the present state of their offices fell naturally under consideration. In consequence of the act of Wm. 3d. their commissions have been made during their good behaviour; but notwithstanding that wise provision, their offices have determined upon the demise of the crown, or at the expiration of six months afterwards, in every instance of that nature which has happened."

"I look," says the king, "upon the independency and uprightness of the judges of the land, as essential to the impartial administration of justice, as one of the best secu

* Cormick's Hist. Geo. 3d. ch. 1. §. 27.

rities to the rights and liberties of my loving subjects, and as most conducive to the honour of the crown; and I come now to recommend this interesting object to the consideration of parliament, in order that such further provision may be made, for securing the judges in the enjoyment of their offices, during their good behaviour, notwithstanding any such demise, as shall be most expedient. I must desire of you, in particular, that I may be enabled to grant, and establish upon the judges, such salaries as I may think proper, so as to be absolutely secured to them, during the continuance of their commissions."

This was accordingly done by an act of parliament, "whereby," the historian adds, "the independency of the bench was secured, and the persons entrusted with the administration of justice, were effectually emancipated from all undue influence of the crown."

I have cited these proceedings more at large, because every one, who will take the trouble to compare them with the language of our constitution, will perceive they were under the view of its framers, and that they contemplated the same independency of the Judicial Department of the other branches of our government, which those proceedings did of the king. cite them not as authorities, but for the purpose of explaining our own constitution, when it adopts similar terms and ideas.

I

What a noble spectacle do these proceedings exhibit to our view.A monarch, voluntarily going into parliament, to request them to take from the crown one of its unquestionable prerogatives, because the exercise of it might possibly be productive of injustice and oppression to his subjects, by making the

judges dependent upon the heir apparent for their continuance in office, after the death of the king? If it be asked for what purpose the above proviso is introduced into the constitution, it may be answered first negatively, not to do away, and render null and void, other parts of it, the meaning of which is clear and certain.

To guard against abuses in the Judicial Department there are two modes provided in the constitution, in which a judge may be removed from his office-First, on conviction before the senate, on the impeachment of the house of representatives, for misconduct and maladministration in his office. But

the senate can sustain an impeachment only for official misconduct or maladministration. Yet a judge may be guilty of misbehaviour other than official, utterly inconsistent with his publick character. For example, he may be guilty of crimes which would render him infamous in the eye of the law, or he may become otherwise openly and grossly immoral in his life and conduct. Such would be strong instances of misbehaviour, and afford just grounds of removal from office. But the constitution had made no provision for any other than official misbehaviour-for it had declared only, "That the senate shall be a court, with full authority to hear and determine all impeachments made by the house of representatives, against any officer or officers of the commonwealth, for misconduct and maladministration in their offices."Chap. 1. sect. 2. art. 8.

This proviso for the removal of a judge, by the Governour with the consent of the Council, upon the address of both houses of the Legislature, might therefore well be intended for such like unofficial mis

behaviour. Or possibly (though I doubt it much) that either mode might be pursued, as, according to existing circumstances, the legislature might think best. The cause or ground of removal, however, in either case, always to remain substantially of the same nature, viz. misbehaviour, and proceeding in like manner from the judge himself; and not other and variant, depending upon the mode which may happen to be adopted to affect the removal.

And,

This construction seems to comport with the requisition of the statute establishing this court, viz. that the judges of it shall be "learned in the law, and of sobriety of manners." Giving it this construction, leaves every other part of the constitution its full and proper operation. It secures to the judge his necessary independence of character, and his legal estate in his office, viz. an estate determinable on misbehaviour only. what is infinitely of more importance to the community, it frees him from all undue influence in the interpretation of the laws, and administration of justice. It secures to every citizen his declared "right to be tried by judges as free, impartial, and independent as the lot of humanity will admit." And it may be said, as in the language of our constitution, "It is therefore not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the Supreme Judicial Court should hold their offices as long as they behave themselves well."

This proviso is evidently taken from the abovementioned act of William III, which enacts that "judges' commissions be made Quamdiu se bene gesserit, and their salaries ascertained and es

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