Title: V. To the Boston Gazette, 1 February 1773
From: Adams, John
To: Boston Gazette (newspaper)

        Monday, February 1, 1773

       To the PRINTERS,

        One Thing at one Time.

          De Witt.

      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.
      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.”
      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, 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. says, “one of the most considerable of the kings prerogatives 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. 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, 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.
      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 justices 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.
      Serjeant Levenz 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 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. “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, 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. —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 reports 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.

       JOHN ADAMS


Title: VI. To the Boston Gazette, 8 February 1773
From: Adams, John
To: Boston Gazette (newspaper)

        Monday, February 8, 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 shew that General Brattle’s “rule of the common law of England” originated in the reign of King Charles the first. I say originated, because the example of Hubert de Burgo, 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 the first, 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 quam diu 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 quam diu se bene gesserint. See Rapin and Mrs. Maccaulay.
      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 quam diu se bene gesserint. And it proves incontestibly 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 behaviour, 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 were just, it could not be true that at common law, the judges had their commissions quam diu se bene gesserint, nor could it be true that by common law, the judges had estates for life in their offices, whether quam diu se bene gesserint was in their commissions or not.
      I believe enough has been said, concerning these dark sayings of Powis and Levenz, 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 develope in some detail this complicated mystery. In order to this I must state the case of Harcourt against Fox, for this will shew 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 amotion 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 (i.e. the officer appointed by the C.J.) is in by custom, so here he is in by act of parliament; the custos where 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 loosing them; we all know it, and our places as judges are so settled, only determinable upon misbehaviour.”
      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, logick 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 behaviour, 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 Serjeant Levenz had most positively affirmed, that this was the rule of the common law, not denied by the council 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 misbehaviour.”
      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 Levenz 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 Levenz, 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 intreat every gentleman to look into that case of Harcourt and Fox, which is repeated in 1 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 3. Ass. p1. 9 that to hold an office during good behaviour, was to hold it for life, determinable upon misbehaviour: this was never, and will never be deny’d 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 as 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 K. 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 Williams 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, altho’ they chose to have their patents granted quam diu bene se gesserint, that they might have some hold of the royal word and honour, 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, tho’ a very able and upright judge, I mean Sir Michael Foster 394. “The King (Richard the second) 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 other offences.” To which the judges answered unanimously, “That they could not, and if any one should do so, he is to be punished as a traitor.” See 1 State Trials, the proceedings against Chief Justice Tresillian and others.
      It was said in a former paper, that the supream 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 “quae personam et dignitatem principis et administrationem republics concernunt, ut collatio dignitatum regalium, et jurisdictio summa in causis ecclesiasticis et secularibus,” as well as the “jus belli et pacis &c. et haec alias jura magistatis dicuntur.” Strykii Examen Juris Feudalis.
      Supream sovereign jurisdiction therefore in all causes temporal and spiritual, was one of the greater royalties, or sublimest prerogatives of the feudal princes, and were inseparable from the feudal majesty: and they 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 seperari possint; distinguendum est inter ipsum, jus, et exercitium hujus juris; hoc alteri concedi potest, ut eodem utatur dependenter; illud veropenes principem remanet.”

      Stryk. 173.
      That this was one of the regalia majora. see, the Consuetudiners Feudorum, Tit. 56. Quae sint Regaliae—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 James’s and the two Charles’s, 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 Hale’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 inseperable 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 enquiries, 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 12 years, by reason of continual prorogations, this would be an unconstitutional exercise of prerogative. If the commons should grant no supplies for 12 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 behaviour.
      I believe it to be true that the judges, in all King William’s reign, had their commissions quam diu 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 arguments sake, that the judges in England in that reign held their offices legally for life, determinable upon mis-behaviour, 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 quam diu 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 defference and submission, issue the commissions to the judges, quam diu 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 judges office or estate must appear in the commission itself.
      However, all this reasoning in favour of an estate for life in our judges, is built upon this 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 sometimes 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 don’t recollect a single circumstance in law or history, that favours the opinion that a judge there had an estate for life, without the words quam diu 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 quam diu 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 extreamly unfortunate, in having Bracton, Fortescue, Coke, Foster, Hume, Rapin and Rushworth, directly against him, and nothing in his favour, 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 don’t say the judges at common law were in for their lives, without the clause quam diu se bene gesserint in their commissions. The questions that have been considered are liberal and of much importance. I have done little more than labour in the mines of oar 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.

       JOHN ADAMS


Title: VIII. To the Boston Gazette, 22 February 1773
From: Adams, John
To: Boston Gazette (newspaper)

        Monday, February 22, 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 quam diu 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 misbehaviour 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, goal 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 Wm. 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 above.
      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 cloathed with their power, bound to their duties, and intitled 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 impowers 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, Lt. 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, viz. 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 Superiour Court should have a particular species of evidence, of their nomination and appointment, viz. 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 perswaded 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. 2. Mass. Hist. 375, 6. 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, i.e. after 6 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 6 months, because the statute of 6 Ann, c. 7 ss. 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 Sarke, 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 limitted by that grant. But their commission is nothing more than a particular kind of evidence, required by the province law, to shew their conformity to the charter in holding their court in the king’s name, and to shew 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 quam diu 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 behaviour, 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 an hearing and tryal, 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 shewn 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 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 gentleman, 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 monies 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 and 13 Wm. 3d, 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 32d year of George the second, 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 colour 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 impowering the Crown to appropriate monies, 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, (i.e. 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 nor 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 monies 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 behaviour, 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. Reed, held this opinion, and upon, his principles. Mr. Reed’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 torrents 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 opinions of a sage; and therefore it is possible he may have mistaken Mr. Reed’s words as well as his lordships.

      I believe the public is weary of my speculations, and the subject of them. I have bestowed more labour upon General Brattle’s harangue in town-meeting, and his writings in the news-paper, than was necessary to shew their Imperfection: I have now done with both—and subscribe myself, your’s, General Brattle’s, and the Public’s well-wisher and very humble Servant,

       JOHN ADAMS


Title: Editorial Note
From:
To:

      While John Adams was concluding his long series of replies to William Brattle on the independence of the judges, he was engaged with others in a more direct effort to assert in the winter of 1773 the rights of the province. He played a vital part in framing the response of the House of Representatives to two messages sent down to the General Court by Gov. Thomas Hutchinson, and his efforts show the development of his political thought.
      The exchanges between Hutchinson and the two legislative houses between 6 January and 6 March arose from the same basic issue which had drawn Adams into debate with Brattle: the extent of Parliament’s authority. The Votes and Proceedings of the Boston town meeting of 20 November 1772, occasioned by the application of royal revenues to the payment of judges’ salaries, had so stirred the Massachusetts towns, among which it had been circulated, that the Governor decided to clear the air with a public examination of the underlying question of Parliament’s authority in the colonies. (For a discussion of Hutchinson’s reaction to the reception accorded Boston’s protest, see Bailyn, Thomas HutchinsonBernard Bailyn, The Ordeal of Thomas Hutchinson, Cambridge, 1974., p. 206–207; Brown, Revolutionary PoliticsRichard D. Brown, Revolutionary Politics in Massachusetts: The Boston Committee of Correspondence and the Towns, 1772–1774, Cambridge, 1970., p. 85–86.) As Hutchinson saw it, Bostonians had based their protest on two false assumptions—that charter rights protected them from the exactions of Parliament, and that there was a deliberate conspiracy against the rights of colonists. Unchallenged, these assumptions must lead to a “total separation from the kingdom, by their independency upon Parliament, the only bond which could keep them united to it” (Massachusetts Bay, ed. MayoThomas Hutchinson, The History of the Colony and Province of Massachusetts-Bay, ed. Lawrence Shaw Mayo, Cambridge, 1936; 3 vols., 3:266). And through a circular letter, Massachusetts would spread these principles to other colonies (Hutchinson to Dartmouth, 7 Jan. 1773, Docs. of Amer. Rev.K. G. Davies, ed., Documents of the American Revolution, 1770–1783, Shannon and Dublin, 1972– ., 6:44).
      Recognizing the dangers of public debate, but confident of his own ability to show the fallacies of the whig position, and lacking any instruction from the home government, Hutchinson felt he had to go ahead. To a specially called joint session of the General Court, he explained his position on the principles of the constitution under which the colony must operate. (Hutchinson’s message of 6 Jan. is printed in Mass., House Jour.Journals of the House of Representatives of Massachusetts [1715–], Boston, reprinted by the Massachusetts Historical Society, 1919–. (For the years for which reprints are not yet available, the original printings are cited, by year and session.), 1772–1773, p. 138–143.) He welcomed, he said, a response to his argument and promised to consider objections. Never had a Massachusetts governor so courted debate on basic principles with the General Court.
      Nothing Hutchinson said was new or original; he had explained his views on earlier occasions. The burden of his message was submission to the supreme authority of Parliament; that clause in the charter allowing the provincial legislature to make “such Laws as are not repugnant to the Laws of England” meant that Parliament had a reserve power to bind the colonies by its laws. Despite the charter’s guaranteeing to colonists the rights of Englishmen, these rights could not be identical with those enjoyed by Englishmen still at home. Citizens of Massachusetts by their location had relinquished the right of electing members to Parliament, for example. A natural right of consent to Parliament’s acts was no justification for denying that body’s right to govern them and insisting that the General Court was the only legitimate lawmaking body. Nor could there be two independent legislative bodies in a single state. The only alternative to acceptance of parliamentary authority was complete independence, which would lay the province open to the assaults of dangerous enemies (Bailyn, Thomas HutchinsonBernard Bailyn, The Ordeal of Thomas Hutchinson, Cambridge, 1974., p. 207, 209).
      The failure of the House to act immediately in reply to his speech may have encouraged Hutchinson in the belief that many members were amazed to learn the true nature of the constitution and that he had won converts to his position (Hutchinson to John Pownall, 7 Jan. 1773, Docs. of Amer. Rev.K. G. Davies, ed., Documents of the American Revolution, 1770–1783, Shannon and Dublin, 1972– ., 6:45). He was to be disabused of these notions. The story repeated by Hutchinson that the House in consternation sent messages southward seeking the aid of Daniel Dulany and John Dickinson (Bailyn, Thomas HutchinsonBernard Bailyn, The Ordeal of Thomas Hutchinson, Cambridge, 1974., p. 208) probably has no foundation. The committee named to draft a reply, made up of Thomas Cushing, Samuel Adams, John Hancock, Joseph Hawley, and five others, was ready with its report within fourteen days, hardly time enough for a messenger to go and return and still permit the committee to get its work done. The committee reported on 22 January, the report being debated that day and on 26 January, when it was unanimously accepted (Mass., House Jour.Journals of the House of Representatives of Massachusetts [1715–], Boston, reprinted by the Massachusetts Historical Society, 1919–. (For the years for which reprints are not yet available, the original printings are cited, by year and session.), 1772–1773, p. 146, 172, 177). The reply of the House, responding directly to points made by the Governor, was impressive for its cogency and command of historical and legal sources. Ironically, the Governor’s own history of Massachusetts was quoted to refute his claims.
      Although John Adams was not a member of the House at this time, he was consulted and left two substantial accounts of the role he played (Diary and AutobiographyDiary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, 1961; 4 vols., 3:304–305; to William Tudor, 8 March 1817, printed in JA, WorksThe 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., 2:311–313). In both, Adams attributed the committee’s turning to him to the influence of Joseph Hawley. Samuel Adams had prepared a draft for the committee, probably with the cooperation of Dr. Joseph Warren and perhaps with the assistance of Benjamin Church, neither of them members of the committee. Dissatisfied with the draft, Hawley, without whose “countenance, concurrence, and support” no “question upon legal and constitutional subjects” could pass the House, insisted that John Adams “must be invited and must be present at every Meeting” of the committee (JA, WorksThe 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., 2:311; JA, Diary and AutobiographyDiary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, 1961; 4 vols., 3:305).
      Despite the “Jealousy and Envy” Adams detected in committee members who resented “this superiour Attachment of Major Hawley to me” (Diary and AutobiographyDiary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, 1961; 4 vols., 3:305), an effective working relationship developed. Although Adams presented a franker version of the tale in his Autobiography than in his tactful letter to Tudor, the two accounts agree on his displeasure with the more “popular” portions of the report prepared by Samuel Adams. Instead, Adams wished to substitute “legal and constitutional Reasonings” more in tune with the Governor’s own message. “The gentlemen,” he told Tudor, “very civilly requested me to undertake the task, and I agreed to attempt it.” He described his method thus: “I drew a line over the most eloquent parts of the oration they had before them, and introduced those legal and historical authorities which appear on the record” (WorksThe 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., 2:313). The resulting document, adopted by the House, appears as No. I, below.
      Disappointed in the House reply and perhaps wishing he had not begun a debate, Hutchinson thought at first to delay his rebuttal until the close of the legislative session (Hutchinson to Dartmouth, 1 Feb. 1773, Docs. of Amer. Rev.K. G. Davies, ed., Documents of the American Revolution, 1770–1783, Shannon and Dublin, 1972– ., 6:80). But he changed his mind. When his counter-reply came at last on 16 February, it centered attention on the House claim that the colonies as originally foreign territory, acquired but not a part of the realm of England, were outside Parliamentary jurisdiction. Hutchinson’s answer was that the realm and other dependencies formed “one intire Dominion.” Massachusetts was a “feudatory of the imperial Crown of England.” No sovereign in his personal capacity could alienate territory to create new and separate governments. Hutchinson held that no responsible authority supported the proposition that only “the ancient territorial Realm” was “subject to the Supreme Authority of England.” Aside from this central point, the Governor complained with some justice that his History had been misused: he cited passages demonstrating that General Courts in the past had specifically acknowledged Parliament’s authority (Mass., House Jour.Journals of the House of Representatives of Massachusetts [1715–], Boston, reprinted by the Massachusetts Historical Society, 1919–. (For the years for which reprints are not yet available, the original printings are cited, by year and session.), 1772–1773, p. 229–241).
      One further reply from the House concluded its side of the debate. On 18 February a committee consisting of Thomas Cushing, Samuel Adams, John Hancock, and six others was named to draft a reply to the Governor’s second message. Although Hawley was not on this new committee, Samuel Adams continued to seek the aid of John Adams. The resulting report (No. III, below) was submitted to the House on 2 March and adopted that same day (Mass., House Jour.Journals of the House of Representatives of Massachusetts [1715–], Boston, reprinted by the Massachusetts Historical Society, 1919–. (For the years for which reprints are not yet available, the original printings are cited, by year and session.), 1772–1773, p. 245, 268).
      The failure of historians to note John Adams’ contributions to this second House reply must be attributed to Adams himself, for in his recollections of the incident, he invariably referred to “an Answer” to a “Speech” by Hutchinson. And his reference to Joseph Hawley’s part in the matter would lead scholars to believe that Adams was involved only in the reply to the first of Hutchinson’s messages, since Hawley was not on the committee named to answer the Governor’s second message. But, as Samuel Adams revealed in his note to John, 22? February (No. II, below), the latter had been asked to “commit” his “Thoughts to writing” even before Hutchinson’s speech of 16 February appeared in print in the Boston Gazette. Charles Francis Adams recognized more than a century ago that the “casual note of Samuel Adams” showed clearly that John Adams was to participate in drafting the second reply of the House, “at least in that particular upon which the governor had pounced with such assurance of victory”—the House contention respecting realm and dominion. Interpreting Samuel Adams’ request as an admission of “the little confidence he had in his own resources to meet the issue he had been the agent to present,” C. F. Adams concluded: “This makes it probable that the reply which closed the controversy is more exclusively the work of John Adams, in manner as well as matter, than the earlier paper” (JA, WorksThe 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., 1:126).
      There is, however, better evidence yet for attributing to John Adams important portions of the second reply to Hutchinson. In the letter to William Tudor of 8 March 1817, John Adams concluded his recollection of his collaboration with the House committee with these sarcastic remarks: “Mr. Hutchinson really made a meagre figure in that dispute. He had waded beyond his depth. He had wholly misunderstood the legal doctrine of allegiance.” To demonstrate the Governor’s limitations, Adams continued with this anecdote: “I had quoted largely from a law authority which no man in Massachusetts, at that time, had ever read. Hutchinson and all his law counsels were in fault; they could catch no scent. They dared not deny it, lest the book should be produced to their confusion. It was humorous enough to see how Hutchinson wriggled to evade it. He found nothing better to say than that it was ’the artificial reasoning of Lord Coke.’ The book was Moore’s Reports. The owner of it, for, alas! master, it was borrowed, was a buyer, but not a reader, of books. It had been Mr. Gridley’s” (JA, WorksThe 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., 2:313).
      After more than four decades, Adams recalled with relish Hutchinson’s scornful dismissal of the “artificial Reasoning of Lord Chief Justice Coke.” But the Governor made this remark, not in his reply to the first House message of 26 January, but in that to the second House reply. In his final rebuttal, delivered at the close of the General Court session on 6 March, Hutchinson employed the phrase with respect to the passage which argued that “Allegiance is due to the natural Person and not to the Body Politick of the King” (Mass., House Jour.Journals of the House of Representatives of Massachusetts [1715–], Boston, reprinted by the Massachusetts Historical Society, 1919–. (For the years for which reprints are not yet available, the original printings are cited, by year and session.), 1772–1773, p. 297). And, to confirm Adams’ recollection, this was the only section in either House message which drew upon Cases Collect & Report per Sir Fra. Moore. (For passages taken from Moore, see No. III, notes 5, 7, 9, below. Despite the French title, some of the cases were reported in English.)
      The use of Moore is not the only contribution which can be attributed to John Adams. Much of the section introducing the material on realm and allegiance is drawn from his “A Dissertation on the Canon and the Feudal Law” (see May – 21 October 1765, above). Although it is impossible to tell whether John Adams himself rewrote these paragraphs from his earlier essays or whether Samuel “borrowed” heavily from the “Dissertation” for sections which he contributed to the House statement, it is clear that John Adams must have at least reviewed the passages closely. The House reply contains additional material from the historian William Robertson, which did not appear in the “Dissertation,” but which came to John Adams’ attention after its publication in 1765, and the pertinence of which he noted in the margins of his own copy of that work’s London edition (see No. III, note 2, below).
      Portions of the House reply in March which can be identified as Adams’ work mark an important development in his political thought. Here the youthful author of the “Dissertation” begins his transformation into the author of the Novanglus letters. His use of Moore’s report on the post nati case, the philosophical heart of the House reply, anticipates his fuller presentation of a theory of realm and dominion, colonial rights and parliamentary limitations, in Novanglus nearly two years later. In Novanglus, the reader finds the same arguments now polished and refined, but buttressed with historical precedents which Adams apparently found too late to include in the 1773 House document. (See 23 Jan.–April 1775, Novanglus letter No. IX, in JA, PapersPapers of John Adams, ed. Robert J. Taylor and others, Cambridge, 1977–, vol. 2.)
      Failure to credit Adams with authorship of the central portions of the House reply of 2 March is all the more unfortunate as the relation between that message and his later writings has long been recognized. In 1923 Charles McIlwain wrote admiringly of the House message as “one of the most remarkable in the whole series of American ’revolutionary’ state papers”; and he recognized that that message set forth the “historical and constitutional basis of article four of the Declaration [of Rights and Grievances]” drafted in the Continental Congress in October 1774 (The American Revolution: A Constitutional Interpretation, N.Y., 1923, p. 122). He was aware of Adams’ authorship of that article in the Declaration as well as of the Novanglus letters, which McIlwain termed, “the most elaborate exposition extant of the American interpretation of the constitutional problem of the empire” (same, p. 139).
      In 1929, McIlwain expanded on these themes. Writing of the “Massachusetts doctrine,” that is, “the principle that allegiance to the English King involves no obedience to the English parliament,” he pointed out that that “doctrine” was clearly expressed in the House reply of March 1773, was incorporated in Article 4 of the Declaration of Rights and Grievances, and finally affirmed in Novanglus. The last, McIlwain characterized as “the most powerful and comprehensive statement ever made of the doctrine of the Continental Congress” (“The Transfer of the Charter to New England, and its Significance in American Constitutional History,” MHS, Procs.Massachusetts Historical Society, Collections and Proceedings., 63 [Dec. 1929]:61, 62).
      In neither discussion did McIlwain realize that the Declaration of 1774 and the Novanglus letters were related to the March 1773 message by more than the accident of time and colony of origin. The developing strain in Adams’ thought, moving logically from his 1765 “Dissertation,” which acknowledged the modified feudalism under which Puritans held their land, through Novanglus, was the realization that the legal tradition which he revered could justify an alternative to the forms of royal government imposed on his native province and believed by Hutchinson to be the only forms possible. In 1773, Adams did not submit a blueprint for revolution or insurrection; but he did supply the House with historically and legally respectable arguments for change.
      Hutchinson had lost his gamble that his logic might end political dissension. The members of the General Court recognized the opportunity the Governor had given them for publicizing views fundamentally opposed to his. On the morning of 6 March, even before Hutchinson delivered his final speech to the General Court, the House voted to have the documents relating to the debate put into a pamphlet for distribution to each House member and to every town clerk in Massachusetts (Mass., House Jour.Journals of the House of Representatives of Massachusetts [1715–], Boston, reprinted by the Massachusetts Historical Society, 1919–. (For the years for which reprints are not yet available, the original printings are cited, by year and session.), 1773–1774, p. 290). The pamphlet appeared as The Speeches of His Excellency Governor Hutchinson, to the General Assembly of the Massachusetts-Bay. At a Session begun and held on the 6th of January, 1773. With the Answers of His Majesty’s Council and the House of Representatives Respectively, Boston, 1773 (EvansCharles Evans and others, comps., American Bibliography: A Chronological Dictionary of All Books, Pamphlets and Periodical Publications Printed in the United States of America [1639–1800], Chicago and Worcester, 1903–1959; 14 vols., No. 12856).
      Adams saw that Hutchinson’s “Ruin and Destruction must spring out of” the controversy he had invited and that the Governor’s disgrace must come “either from the Ministry and Parliament on one Hand, or from his Countrymen, on the other” (Diary and AutobiographyDiary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, 1961; 4 vols., 2:77). In the end, Hutchinson could thank both sides for his “Ruin.” The ministry would doubt his ability to govern the unruly and contentious colonists of Massachusetts. And, within the province, he had given men like John Adams a chance to take their thinking one step further toward espousal of independence, although Hutchinson had expected to terrify them with its “Miseries” in order to bring them to their senses.