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them; King Stephen, King Henry II., and Richard I. confirmed them; King John swore to restore them; King Henry III. confirmed them; Magna Charta was founded on them, and King Edward I. in parliament, confirmed them."*

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 folkright, determines the judges of the king's bench and common pleas to have estates for life in their offices, determinable only on misbehavior, 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, quamdiu se bene gesserint."

I have never expressed any disrespect to the character of Sir Thomas Powis, and I have no disposition to harbor 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, that is, 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 color 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. Read, should ever adduce the simple dictum of a counsel 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 Dome-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, For

* This is rather an abstract than a quotation from the first ten pages of the preface to the reports of Lord Fortescue, printed in 1748, and signed with the initials J. F. A.

tescue, Coke; or any antiquarian, Matthew Paris, Dugdale, Lambard, or any other; or even the single opinion of one historian, to give a color to his doctrine? No such matter. Nay, I must inquire 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, says, "One of the most considerable of the king's prerogatives was the power of appointing the earls, viscounts, judges, and other officers, as well civil as 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 democratic 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 bias, if he had any, was the other way; and therefore his concession makes the more in my favor.

Mr. Hume, in his Feudal and Anglo-Norman Government and Manners," 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 de Burgh, who, "while he enjoyed his authority, had an entire ascendant over Henry III., and was loaded with honors and favors beyond any other subject, ... and, by an unusual concession, was made chief justiciary of England for life."† Upon this I reason thus: If his being made justiciary for life was an "unusual concession," it could not be by the immemo

* History of England, vol. i. Appendix II.

† 2 Hume, 162.

rial, uninterrupted usage and custom, which is the criterion of common law. And the very next words of Hume show how valid and effectual this grant of the office for life was then esteemed. "Yet Henry, 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 supreme regent of the kingdom, and first minister of state, as well as of the law; and this seems to show 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. 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 Pepin, who were justiciars in France, had done there.* Now, from the exorbitant powers and authority of these justiciaries arises a proof, from the frame of the government and the balance 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, was 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 it 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

* See also Gilbert's History and Practice of the High Court of Chancery.

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 show the improbability that the judges held their offices during good behavior, 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 enterprising 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 disengaged 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 was absolute enough, however, and he sometimes treated them with very little ceremony. Alfred himself is said, in the Mirror of Justices, to have hanged up forty-four 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 jurisdictione, quæ pertinet ad regem, consequenter dicendum est de jurisdictione delegata, ubi quis ex se ipso nullam habet auctoritatem, sed ab alio sibi commissam, cum ipse qui delegat non sufficiat per se omnes causas sive jurisdictiones terminare. Et si ipse dominus rex ad singulas causas terminandas non sufficiat, ut levior sit 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 tenentur injurias et errores. Sunt etiam alii perpetui, certo loco residentes, sicut in banco, ... qui omnes jurisdictionem habere incipiunt præstito sacramento... Et quamvis quidam eorum perpetui sunt, ut videtur, finitur tamen eorum jurisdictio multis modis, s. mortuo eo qui delegavit, &c. Item cum delegans revocaverit jurisdictionem," &c. Bracton, chap. 10, lib. 3.

Sergeant Levinz 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 lose it for misbehavior. So was Sir John Waller'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, that is, 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 Sergeant goes on: "And so was Justice Archer's case, in the time of King Charles II. He was made a judge of the common pleas quamdiu se bene gesserit; and though 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 favor; and he cannot reconcile this patent to Judge Archer with the history of Charles II.'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 favors 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 Sergeant Levinz's saying; and the first is Justice Fortescue Aland: "Justice Archer was removed from the common pleas; but his patent being quamdiu se bene gesserit, he refused to surrender his patent without a scire facias, and continued justice, though prohibited to sit there; and in his place

**

*Reports, 394, known as Lord Fortescue's.

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