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 which 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 gentlemen, 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 moneys 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 & 13 William III. 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 thirty-second year of George II. 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 color 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 empowering the crown to appropriate moneys 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 (that is, 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 or 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 moneys 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 behavior, must do it upon his principles; because I can see none much

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THE INDEPENDENCE OF THE JUDICIARY.

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. Read held this opinion and upon his principles. Mr. Read'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 torrent 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 opinion of a sage; and therefore it is possible he may have mistaken Mr. Read's words as well as his lordship's.

I believe the public is weary of my speculations, and the subject of them. I have bestowed more labor upon General Brattle's harangue in town meeting, and his writings in the newspaper, than was necessary to show their imperfection. I have now done with both, and subscribe myself, Your, General Brattle's, and the Public's, well-wisher, and very humble servant, JOHN ADAMS.

APPENDIX.

A.

(Page 408.)

THE following paper is in the handwriting of Mr. Jefferson. It bears on the back the following endorsement by the hand of General Washington :-"Construction of the powers of the Senate with respect to their agency in appointing ambassadors, &c., and fixing the grade."

How this came into the possession of Mr. Adams, does not appear.

ON THE POWERS OF THE SENATE.

THE Constitution having declared, that the president "shall nominate, and by and with the advice and consent of the senate shall appoint, ambassadors, other public ministers, and consuls," the president desires my opinion whether the senate has a right to negative the grade he may think it expedient to use in a foreign mission, as well as the person to be appointed.

I think the senate has no right to negative the grade.

The constitution has divided the powers of government into three branches, legislative, executive, and judiciary, lodging each with a distinct magistracy. The legislative it has given completely to the senate and house of representatives; it has declared that "the executive powers shall be vested in the president,” submitting only special articles of it to a negative by the senate; and it has vested the judiciary power in the courts of justice, with certain exceptions also in favor of the senate.

The transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly; the constitution itself, indeed, has taken care to circumscribe this one within very strict limits; for it gives the nomination of the foreign agent to the president, the appointment to him and the senate jointly, and the commissioning to the president. This analysis calls our attention to the strict import of each term. To nominate must be to propose; appointment seems that act of the will which constitutes or makes the agent; and the commision is the public evidence of it. But there are still other acts previous to these, not specially enumerated in the constitution, to wit, 1. The destination of a mission to the particular country where the public service calls for it, and, 2. The character or grade to be em

ployed in it. The natural order of all these is, 1. destination, 2. grade, 3. nomination, 4. appointment, 5. commission. If appointment does not comprehend the neighboring acts of nomination or commission, (and the constitution says it shall not, by giving them exclusively to the president,) still less can it pretend to comprehend those previous and more remote of destination and grade. The constitution, analyzing the three last, shows they do not comprehend the two first. The fourth is the only one it submits to the senate, shaping it into a right to say that "A or B is unfit to be appointed." Now, this cannot comprehend a right to say that "A or B is indeed fit to be appointed, but the grade fixed on is not the fit one to employ," or "our connections with the country of his destination are not such as to call for any mission." The senate is not supposed by the constitution to be acquainted with the concerns of the executive department. It was not intended that these should be communicated to them; nor can they, therefore, be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the president; they are only to see that no unfit person be employed.

It may be objected, that the senate may, by continual negatives on the person, do what amounts to a negative on the grade, and so indirectly defeat this right of the president; but this would be a breach of trust, an abuse of the power confided to the senate, of which that body cannot be supposed capable. So, the president has a power to convoke the legislature, and the senate might defeat that power, by refusing to come. This equally amounts to a negative on the power of convoking; yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the constitution had meant to give the senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a sidewind. It could never mean to give them the use of one power through the abuse of another. TH. JEFFERSON.

New York, April 24, 1790.

END OF VOLUME III.