APPENDIX.

1. HISTORICAL ACCOUNT of the TENURE by which the JUDGES held their OFFICES under the HOUSE of STUART, and LIST of most of those, who were removed for POLITICAL CAUSES.

Rose, p. 35,

IT is stated by Mr. Rose, that on a search in the Rolls, it appears that during the reigns of Elizabeth and James the First, "the commissions note. "of the Chief Justices of the King's Bench were general, without any "specification of the tenure," and of course they were removeable at the pleasure of the King. Sir Francis Bacon in a paper addressed to Bacon's Works, James the First, advising about the displacing of Sir Edward Coke from oct. vi. p. 125. this office, considers this power as a personal prerogative of the King; his words are," considering he holdeth his place but during your will "and pleasure, nor the choice of a fit man to be put in his room are "council table matters, but are to proceed wholly from your Majesty's

great wisdoin and gracious pleasure. So that it is but the significa"tion of your pleasure, and the business is at an end as to him." Mr. Rose also informs us that the puisne Judges of both the King's Bench, and Common Pleas, held by the express words of their patents, quam diu nobis placuerit*, that the Chief Justice of the Common Pleas held also by the same tenure, but that the Chief Baron, and other Barons of the Exchequer were appointed quam diu se bene gesserint.

It is hardly worth noticing that this is not the usual expression, by which a tenure at the will of the Crown is described.

Rushw. iii. 1358.

Parl. Hist. ix.

Charles the First took an early opportunity of manifesting the arbitrary notions, which had accompanied him to the throne, by the removal of Sir Randolf Crew from the office of Chief Justice of the King's Bench, in the second year of his reign. He also displaced Sir Robert Heath Chief Justice of the Common Pleas, but was baffled in his attempt to remove Sir John Walter, who was Chief Baron of the Exchequer, for he refused to surrender his patent, which was quam diu se bene gesserit, and continued in office till his death, though upon the command of the King he had declined sitting in Court. His successor Sir Humphrey Davenport, as Mr. Rose says, in the sixth year of the reign of Charles, accepted a patent by which he was made to hold at the pleasure of the King, and is probably the first Chief Baron of the Exchequer, who ever was so appointed. Mr. Rose says, that the patents of the other Barons "were afterwards conformable" to his, whence it might be concluded that they so continued, at least for the remainder of this reign. But the patents of the Chief and other the Barons of the Exchequer, 'soon afterwards ceased for a time to be determinable at will, as will be stated presently, though for some years after the change made in Sif Humphry Davenport's ease, all the Judges without exception held 'their offices at the pleasure of the King.

When the House of Commons in a subsequent period of this reign, were making inquiries respecting the conduct of the Judges, and preparing to impeach some of them for their judgments in the case of ship money, and other supposed offences, the alteration which the King had made in the tenure of these great judicial offices, and the arbitrary removals which had taken place naturally fell under the consideration of the House of Commons, And when Mr. Hollis went up with the articles of impeachment, he prayed in his concluding speech, in the name of the House of Commons, that the Lords would join them in an address to the King on the behalf of Sir Randolf Crew, who had been long removed from his office of Chief Justice of the King's Bench. The Lords seem not to have noticed this application, but to have taken up the business of the patents of the Judges without asking the concurrence, - or having any communication with the Commons, for in the Journals of the latter are no entries concerning them. But the Lords' Journals

contain very satisfactory information. On the 11th of January, 1640, Lords' Journ. Lords' Committees were appointed to consider about a particular bill,

and likewise to consider of Judges holding their places durante

iv. p. 129.

bene placito. On the 12th, certain, Lords were deputed " to attend his lb. p. 130. "Majesty, and present the humble desires of this House," that he would be pleased," that the Justices of the King's Bench, and Common "Pleas, and Barons of the Exchequer, and Attorney of the Court "of Wards and Liveries may hold their places by patent, quam diu "se bene gesserint, and not durante bene placito." On the 13th, the Ib. p. 131. Lords were appointed to wait upon the King in the afternoon; aud .Ib. p. 132. on the 15th, the Earl Marshal and the Lord Chamberlain reported

1.

that they had presented to his Majesty the humble desire of the House," that all the Justices of the King's, Bench and Court of "Common Pleas, and the Barons of the Exchequer that go circuits, .66 may hold their places by patent from his Majesty quam diu se bene "gesserint, and not durante bene placito; unto which request his Majesty "is graciously pleased to condescend."

In consequence, of this arrangement the patent of Thomas Mallet, Rymer, Foed. one of the Justices, of the Common Pleas, dated the 1st of July, 1641, xx. p. 517. was made quam diu se bene gesserit. And four days afterwards, when Rushw. iii. the King gave the royal assent to the bills for taking away the High P.1366. Commission Court, and regulating the Court of Star Chamber, he said in his speech, "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." The King probably was faithful, to his promise, and the patents of the Judges altered for the remainder of his reign. Besides Sir Thomas Mallet, there were, according to the Political Index, (which with respect to the judicial lists, is so inaccurate as not much to be relied upon) the following Judges made between the time when the King, assented to the alteration, and the end of his reign, viz. on the 23rd of January, 1640, Sir Robert Heath a Judge of the King's Bench; on the 29th of the same month, Sir John Banks Chief Justice of the Common Pleas; and the 31st of January,

Rushw. iii. p. 1366.

p. 82.

1643, Sir Robert Brerewood a Judge of the King's Bench. But the Parliament was not satisfied, and, in the petition and propositions for peace of both houses presented to the King in the latter end of January, 1642, desired the King to restore Sir John Bramston, who had been removed from the office of Chief Justice of the King's Bench, and fill all the Judges places with persons named by them, and also that they, and all the Judges for the time to come, might hold their places quam diu se bene gesserint.

During the protectorate of Oliver Cromwell, either the patents of the Barons of the Exchequer and of the other Courts must have been made out durante bene placito only, or he disregarded them altogether, for he removed a Baron of the Exchequer, and a Judge of the Court of Upper Bench, (which was the name then given to the Court of King's Bench,) as appears from the following list.

Charles the Second, for some time after his restoration, continued the alteration his father had adopted, and Hyde was made Chief Justice of the King's Bench, Bridgman first Chief Baron and then Chief Justice of the Common Pleas, Forster a Judge of the King's Bench, and then Chief Justice of the Common Pleas, and they, as well as others who were raised to the Bench, held their offices quam diu se bene gesserint. But for what period of time the patents of the Judges were continued in this form, I have been unable Ventr. Rep. i. to trace. It is probable that a change was made before Dighton's case, which came before the Court of King's Bench in Trinity Term, 22 Car. II. (1670) for then the offices of judicature in Westminster were mentioned by the Court to be held only durante bene placito. But it was not till the year 1672, after the Duke of York had declared his conversion to the catholic religion, and the King: was driven to extremities, that a formal attack was made upon the independency of the Judges; steps were then taken to remove Archer one of the Justices of the Common Pleas, he resisted, relying upon his patent from the reigning King, which was quam diu se bene gesserit, but submitted to the King's order not to appear

in Court. It is probable that without any noise being made upon the subject, all the subsequent patents of the Judges were made to hold at the pleasure of the King. Welwood remarks that the better to hold a rod over the Judges, the clause quam diu se bene gesserit was left out of their patents, and a new clause durante bene placito inserted, but he does not fix the time when that alteration was made. The attempt to remove Archer, was, made in the Christmas vacation of 1672, and Sir William Wild, who was appointed a Judge of the King's Bench in the next Hilary Term, and Sir Robert Atkins, who was placed on the Bench of the Common Pleas in the succeeding Easter Term, were both removed by the King in 1679, without any contest, while none of the Judges, appointed previous to 1672, appear to have been disturbed in their offices.

The first removal of Judges, holding under these new patents, was in the year 1679, when there was a change of measures, and an appointment of a popular privy council. Four Judges were then removed without Historians having assigned any particular reason for it, but the Duke of York describes them as loyal subjects, Dal. Mem. ú. and speaks of their successors as appointed with intention to fall upon him, and being men, who would find what they please to be law. The following list renders it unnecessary to state the particulars of each separate removal in this, or the ensuing reign.

p. 266.

Pap. i. 111.

In the year 1680, the leaders of the popular party in Parliament Macph. Stat. were desirous to be upon good terms with the King, and, among the propositions they offered, one was that the patents of the Judges should be altered, and made quam diu se bene gesserint, but a change of administration taking place shortly afterwards, Charles returned to his former arbitrary system of Government, and the Judges continued to hold at his pleasure. In the remainder of his reign it will be seen by the list, that he made several removals.

Upon the demise of a King the patents of all the Judges expired Show. Rep. of course, and it so happened that Charles the Second dying about i. p.425. ten in the morning upon Friday the 6th of February, 1685. when