Massachusetts And The Judges: Judicial Independence In Perspective

Law and History Review

Volumn 3, Issue 1, 1985, Pages 101-162

  Black, Barbara Aronstein ^a  

^a Och Spine at New York Presbyterian Hospitals   (United States)

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EID: 84974183761     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/743699     Document Type: Article

References (164)

1. For the salary crisis, see Thomas Hutchinson, The History of the Colony and Province of Massachusetts Bay, Lawrence S. Mayo, ed., 3 vols. (Cambridge, Mass., 1936) iii, 259-65; 277–80, 296–97, 302, 317–26 (hereafter Hutchinson, History); Peter Orlando Hutchinson, ed., The Diary and Letters of His Excellency Thomas Hutchinson, 2 vols. (Boston, 1884–86) i, 136–47 (hereafter Hutchinson, Diary and Letters); Douglass Adair and John A. Schultz, eds., Peter Oliver's Origin and Progress of the American Rebellion (Stanford, 1961) 107–11 (hereafter Oliver, Origin and Progress); Joseph H. Smith, ‘An Independent Judiciary: The Colonial Background’ 124 University of Pennsylvania Law Review 1104 (1976) (hereafter Smith, ‘Independent Judiciary’); Richard D. Brown, Revolutionary Politics in Massachusetts (Cambridge, Mass., 1970) (hereafter Brown, Politics); Peter E. Russell, ‘His Majesty's Judges: The Superior Court of Massachusetts, 1750-1774’ (unpublished dissertation, University of Michigan, 1980); Journals of the House of Representatives of Massachusetts, (Massachusetts Historical Society), xlix, (1980), i, (1981), passim (hereafter H.J.) Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge, Mass., 1974), (hereafter Bailyn, Hutchinson).
2. There was serious trouble over the assemblies refusal to grant a permanent salary to the Governor in a number of colonies, and in Massachusetts a real crisis in the 1720s and 1730s, see Leonard Labaree, Royal Government in America (New York, 1958) 312ff, 355ff, 360ff (hereafter Labaree, Royal Government). On the outcome in Massachusetts, Labaree writes: ‘In the entire range of colonial history the officials of the crown were never so thoroughly put to rout’, Ibid. at 367.
3. Geo. 3, c 46 (1767).
4. See H.J. xlvii, 200–201, 222, 245–46, 252; H.J., xlviii, 32–33, 40, 42–43, 60, 135; H.J. xlix, 10–12, 29, 51–52, 54–56, 90–91, 103-108; Hutchinson, Diary and Letters, i, 133-36; Hutchinson, History iii, 257, 404–405, 406-10; Bailyn, Hutchinson 169, 197–205.
5. ‘Independence of the Judiciary’, The Works of John Adams, 10 vols. (Boston, 1850–56) iii, 513. (hereafter Adams, Works).
6. Smith, ‘Independent Judiciary’, 1104, points out that the Massachusetts situation was unique in that the Crown salary was for Massachusetts judges only, but does not consider the unique constitutional position of Massachusetts judges.
7. That is, in royal colonies. There appears to have been a colorable constitutional claim in proprietary Pennsylvania, see ibid, at 1113, n.47, 1119.
8. For an introduction to the English history see Charles H. Mcllwain, ‘The Tenure of English Judges’, American Political Science Review 7(1913) 217; Smith, ‘Independent Judiciary’, 1105–10.
9. James C. Corson, ‘Judges and Statutory Tenure in England in the Seventeenth Century’, 42 Juridical Review 136 (1930); George W. Keeton, ‘The Judiciary and the Constitutional Struggle, 1550-88’, 7 Journal of the Society of Public Teachers of Law 56 (1962–63).
10. Corson, supra note 9; Keeton, supra note 9; Alfred F. Havighurst, The Judiciary and Politics in the Reign of Charles II, 66 Law Quarterly Review 62, 229 (1950); Richard L. Noble, ‘Lions or Jackals? The Independence of the Judges in Rex v. Hampden’, 14 Stanford Law Review 711 (1962).
11. Keeton, supra note 9; Corson, supra note 9; see Dennis Rubini, Court and Country 1688–1702 (London, 1968) 119–21, for William Ill's hostility to statutory tenure on good behavior; see also ibid, at 171–72.
12. Keeton, supra note 9, at 59.
13. Keeton, supra note 9, at 67.
14. William III, 12 & 13 c. 2 § 3 (1701) (emphasis added). The judicial independence provision was to take effect only after the deaths of William III and Anne, these monarchs thus being left in this unhampered by statutory prescription, or proscription. It was originally proposed that removal be permitted on address of either house; Smith, ‘Independent Judiciary’, 1110, n. 31; Rubini, supra note 11, at 171.
15. House of Commons Debates, 23 March 1954, col. 1061, quoted by Denning, supra note 16, at 349.
16. E.g., J.G. Swift MacNeill, ‘The Independence of the Judges’, 16 Law Magazine & Review 201, 205 (1891). Rubini, supra note 11, at 171, asserts that the address clause ‘has generally been interpreted to mean that the power of their removal was transferred from the crown to parliament’.
17. As unlikely, that is, as refusal of the royal assent to an enactment; the desuetude of the royal veto is, in my opinion, critical here.
18. For the American colonial history of judicial independence see Smith, ‘Independent Judiciary’, passim.
19. Pennsylvania and Massachusetts might rest a claim to this right on other direct sources, see, for Pennsylvania, supra note 7, and for Massachusetts the discussion in text that begins at page 135.
20. See discussion of the Adams-Brattle debate in text at page 137, especially footnote 142 on the Barons of the Exchequer.
21. At least, as Smith puts it, ‘Under orthodox reception theories’, ‘Independent Judiciary’, 1110.
22. Labaree, Royal Government, 388 ff.
23. Governor Hardy, of New Jersey, was recalled in 1761. See Smith, ‘Independent Judiciary’, 1128-30; Labaree, Royal Government, 399 ff.
24. There was also the poor quality of the colonial judiciary, see supra note 27.
25. Smith, ‘Independent Judiciary’, 1117. There is little evidence that the popularly elected assemblies ever were amenable to making the judges independent of ‘the people’ by permanent grants of adequate salaries. The Massachusetts Assembly surely was not, see infra note 35. But the assemblies of Pennsylvania (1759) and South Carolina (1768) were amenable, and in fact enacted legislation proposing the secure salary/secure tenure solution; both Acts were disallowed, see Smith, ‘Independent Judiciary’, 1140–42, 1120–21.
26. Even assuming, that is, that they understood the situation in the realm to be as I have described it (see text, infra), that is, with a judiciary dependent on Parliament under the address provision of the Act of Settlement. Some did, certainly: an address provision was rejected by the U.S. constitutional convention precisely because it put the judiciary at the mercy of the legislature, (infra note 200) even though a United States president would have de facto as well as de jure power to refuse to remove a judge. Some colonial assemblies demanded removal by address along with tenure on good behavior, but, again, the prerogative being alive and well in the colonies, a royal governor or king would be in a position to refuse to comply with such an address, although no doubt the colonists had plans for remedying that situation. Colonial propagandists tended to take the high ground, whether or not really prepared to free the judges of all control, and this usually involved a very whiggish view of English history, with tenure on good behavior an ancient right restored by the Act of Settlement, the assumption (express or not) being that the Act of Settlement really did remove the threat of arbitrary removal, see, e.g., Joseph Galloway, ‘A Letter to the People of Pennsylvania…’ (1760), printed in Bailyn, Pamphlets supra note 28 at 256–72.
27. And so far as I am aware, before the crisis in Massachusetts with which this article deals, only in Pennsylvania, see Smith, ‘Independent Judiciary’, 1119, see also ibid, at 1114, 1123. On Massachusetts, see infra note 146.
28. As, e.g., in 1762, when a report of a House Committee recommended tenure on good behavior while concluding that permanent salaries were ‘not of publick utility’, Archives of the Commonwealth State House, (Boston, Mass) vol. xliv, 503 (hereafter Mass. Arch.).
29. Francis N. Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the States, Territories, and Colonies now or heretofore forming the United States of America 7 vols. (Washington: 1909) iii, 1870 (hereafter Thorpe, Charters).
30. Ibid, at 1879. Histórians assume that by charter prescription the choice of new Councillors was in the whole General Court, and that was eventually accepted by the colonists, but in early days the argument was made that the House alone was meant to do the choosing, see Hutchinson, History ii, 6–7. The charter puts removal of councillors in the General Court as well, Thorpe, Charters iii, 1877.
31. Ibid.
32. Except in Massachusetts, early gubernatorial commissions gave sole appointing power to governors; advice and consent of councillors was a late requirement, see supra note 28.
33. For example, despite imperial policy that colonial courts be created by prerogative, the Massachusetts charter gave the power to erect courts to the General Court, Thorpe, Charters, 3, 1881. The specialness of Massachusetts in this respect was recognized by the omission from the Massachusetts Governors’ Commission and instructions of ‘most of the usual clauses relating to the judicial machinery of the province. Labaree, Royal Government, 376.
34. See sources cited, supra note 9.
35. Bailyn, Hutchinson 169–70.
36. See sources cited, supra note 4.
37. ‘Indignation, fear and rage roared like a sheet of flame across the troubled community’, Bailyn, Hutchinson 205.
38. Mass. Arch., xxvii, 307–308 (Hutchinson to, 30 March 1772); ibid, at 322 (Hutchinson to, 27 April 1772).
39. Ibid, at 307–308, (Hutchinson to Hillsborough, 30 March 1772).
40. Oliver, Origin and Progress, 33.
41. Bernard Mason, ed., The American Colonial Crisis: The Daniel Leonard John Adams Letters to the Press, 1774 J 775, (New York, 1972) 166–68 (hereafter, Colonial Crisis). Not all whigs agreed, see John Allen, The American Alarm or The Bostonian Plea, for the Rights and Liberties of the People (Boston, 1773). (If the judges merit larger salaries, pay them.)
42. Colonial Crisis 167.
43. 51… best acquainted with the Law of any I know in the province, Mass. Arch., xxvii, 307–308 (Hutchinson to 30 March 1772).
44. I have reason to doubt [Trowbridge's] firmness when there may be occasion for it, and I do not know anybody so likely to resist popular attempts to influence, as [Oliver], ibid.
45. Ibid, at 373–74, (Hutchinson to, 23 August 1772).
46. The first significant step was taken by the Boston town meeting, which in late October 1772 presented an address to Hutchinson protesting royal salaries for the judges and asking whether the governor had in fact received any advice from the ministry on this. Hutchinson rejected this request as improper; Hutchinson, History, 3, 259–60.
47. General Court involvement in the judges salary crisis divides into two periods: (1) The Assembly meeting in 1773, see Hutchinson, History, 3, 277–80, 296–97, 302; H.J., xlix, passim. (2) The Assembly meeting in 1774; it was during this session, beginning in January, that the attempt was made to remove Peter Oliver, Hutchinson, History, iii, 317-426; H.J., 1, passim.
48. Hutchinson discovered in September what the proposed royal salaries were to be, Mass. Arch., 27, 390 (Hutchinson to, 24 September 1772).
49. H.J., xlix, 168; Hutchinson, History, iii, 279; Mass. Arch., xxvii, 444–45 (Circular to Justices, 5 Feb. 1773).
50. H.J., xlix, 196.
51. Ibid, at 248; Mass. Arch., xxvii, 452 (Hutchinson to Dartmouth, 22 February 1773).
52. H.J., xlix, 255.
53. Ibid, at 282.
54. According to Peter Oliver, whigs harassed the dying Nathaniel Ropes, ‘who just declared his Non-Acceptance of the Kings Grant, and soon after expired’, Oliver Origin & Progress 109.
55. H.J., 1, 113.
56. Ibid, at 117–18.
57. Ibid, at 136–39.
58. Ibid, at 133–35.
59. Hutchinson, History, 3, 317.
60. L.H. Butterfield, ed., Diary & Autobiography of John Adams, 4 vols. (Cambridge, Mass., 1961), ii, 66–7 (hereafter Adams, Diary & Autobiography).
61. As Hutchinson pointed out, Mass. Arch., xxvii, 525, (Hutchinson to, 11 August 1773).
62. Ibid, at 373–74 (Hutchinson to Bernard, 23 August 1772). Hutchinson pleaded that the puisne judges be granted, at a minimum, more than half the amount to be paid the Chief Justice: his suggestion specifically was £250 to £400. See also, ibid, at 383 (Hutchinson to Hillsborough, 30 August 1772); ibid, at 385 (Hutchinson to Hillsborough, 4 September 1772); see Smith, ‘Independent Judiciary’, 1143 n. 200.
63. Mass. Arch., xxvii, 405 (Hutchinson to Bernard, 10 November 1772).
64. Ibid, at 525 (Hutchinson to, 11 August 1773).
65. Ibid, at 405 (Hutchinson to Bernard, 10 November 1772).
66. H.J., xlix, 208; see also Mass. Arch., xxvii, 444–45 (Circular to Justices, 5 February 1773).
67. H.J., xlix, 208.
68. Mass. Arch., xxvii, 445 (Hutchinson to, 5 February 1773).
69. H.J., I, 146–47.
70. Ibid, at 194–201.
71. Hutchinson, History, 3, 320.
72. Ibid.; H.J. 1, 205–06.
73. Ibid, at 159.
74. Ibid, at 167.
75. Ibid, at 181–83.
76. Ibid, at 182.
77. Thorpe, Charters, 3, 1878.
78. Ibid.
79. Although on the strength of the charter language he might plausibly have done so: for, in most affairs of the province, the Governor is not required by the charter to have the consent of the Council, who are merely to advise and assist; the Council is thus given a truly subordinate role, and it would be consistent with the spirit of this scheme to permit broad gubernatorial discretion here. Strengthening this argument is the fact that there is one matter in which the Governor must have the consent of the Council, and it is easily argued that this is the only matter as to which the governor may not act without the Council. However, this analysis would not have been helpful to Hutchinson in the Oliver case, for the one matter requiring conciliar consent was nomination and appointment of judges. And while the Oliver matter involved removal, rather than appointment, Hutchinson himself equated the two, that is, accepted (indeed insisted) that there could be no removal without the consent of Council, see infra note 155.
80. Hutchinson, History, 3, 321.
81. H.J., 1, 182.
82. Ibid.
83. Hutchinson, History, 3, 319.
84. With apologies to Professor S.F.C. Milsom.
85. Mass. Arch., xxvii, 498 (Hutchinson to, June 1773).
86. H.J., 1, 181.
87. Thorpe, Charters, 3, 1883.
88. H.J.1, 183.
89. Thorpe, Charters, 3, 1880.
90. Acts and Resolves of the Province of Massachusetts Bay, 21 Vols. (Boston, 1869–1922), i, 1692–3, Ch. 25, § 4 (3 November) (hereafter A&R).
91. Hutchinson, History, 3, footnote on page 324.
92. Ibid.
93. Ibid.
94. Ibid.
95. Mass. Arch., xxvii, 409–10 (Hutchinson to Dartmouth, 13 November 1772).
96. Acts of the Privy Council of England (colonial series) 6 vols. (Kraus Reprint Ltd. 1966) v, 330–31.
97. Ibid.
98. As we shall see, forced by this Privy Council opinion to concede the opposite, Hutchinson took the position that removal of a judge was not judicial.
99. H.J., 1, 102–03.
100. Hutchinson, History, 3, footnote 324.
101. H.J., 1, 232.
102. Ibid, at 233–34.
103. Hutchinson, History, 3, 323–24.
104. Although they used the word impeach, we can see that it was a generic, not a technical, employment: the judges were either to declare their intentions by February 8th or it will be the indispensable Duty of the Commons of this Province to Impeach them before the Governor and Council, as men disqualified to hold the important Posts they now sustain. H.J. I, 117–18.
105. Hutchinson, History, 3, 324. Although Adams later wrote that the Council would do nothing, (Adams, Diary and Autobiography, 3, 302) the Council manifestly did something. It cannot now be known whether the Council would have tried Oliver without the Governor, because Hutchinson, believing they would do just that, ended the Session, Hutchinson, History, 3, 324–325.
106. Hutchinson, History, 3, 320.
107. Cf. Bailyn, Hutchinson 266: The Governor ‘could block all such proceedings simply by refusing to cooperate… ’.
108. Impeachment may also have been more effectively inflammatory than the Remonstrance and Petition. Superior Court jurors refused to sit while ‘The Chief Justice… stood impeached of high crimes and Misdemeanors, before his Majestys Council’. Adams, Diary and Autobiography, 3, 302.
109. Hutchinson, History, iii, 325; the prorogation was 8 March 1774. On 17 June 1774, unable to deal with the fractious body any longer, Hutchinson dissolved the General Court, H.J. 1, 243, 291.
110. Andros Tracts, 3 vols. (Boston: The Prince Society 1868–74, B. Franklin reprint, 1967), i, 290; see also ibid, iii at 304; iii, 171 (hereafter Andros Tracts).
111. Hutchinson, Diary & Letters, 1, 134.
112. See sources cited in supra note 4.
113. Nor could Hutchinson's defense of his royal salary constitute a defense of the judicial salaries. His point was that the system of checks and balances in the English constitution required the independence of each branch of government from the others: the desirability of an independent executive obviously does not speak at all to the question of dependence of the judiciary on the executive, much less support that dependence.
114. See H.J., 49, 103–07.
115. Ibid, at 224; see Bailyn, Hutchinson 203 ff.
116. See Boston Gazette, 16 December 1771, 6 January 1772, 13 January 1772; Massachusetts Gazette 2 January 1772; see Bailyn, Hutchinson, 198–99.
117. Greenleafe, writing as Mucius Scaevola, had attacked Hutchinson as ‘a monster in government’ and worse, see Bailyn, Hutchinson, 198-99; H.J., 48, pp.x-xii.
118. Boston Gazette, 13 January 1772.
119. Ibid. Note that Greenleafe's dismissal fits the mold, as I have depicted it, for arbitrary dismissal in the Province, i.e. it was for off-the-bench political conduct, see supra note 36. It seems that a theory was also put forward that his dismissal was justified because he had a duty as a justice of the peace, to suppress a certain writing a transparent attempt to convert off-the-bench political offense into judicial misbehavior. (Cf. the Oliver case). Greenleafe denied the duty, and, for good measure, any inclination to do such suppressing.
120. Although there was some resort to natural law, the claim that judges in Massachusetts served on good behavior was usually grounded by analogy to England; Greenleafe appears to have claimed that English Justices of the Peace served on good behavior (Boston Gazette, 13 January 1772) but they did not and do not. Cf. Adams, addressing Brattle, it never was pretended here that a justice of the peace might not be removed at pleasure by the governor and council, and without a hearing and judgment that he had misbehaved. Adams, Works, iii, 559. Increase Mather, however, had suggested that Justices of the Peace—and Sheriffs—be commissioned quamdiu se bene gesserint, Andros Tracts, i, 296, see infra note 153.
121. That seems to have been Peter Oliver's position, H.J., 1, 216.
122. See page 140 in text.
123. See supra note 5.
124. Mass. Arch., xxvii, 463; Historical Manuscripts Commission Report, 11th Report, Appendix, Part V, (1887), 348–9.
125. Historical Manuscripts Commission Report, 14th Report, Appendix, Part X, Vol. II, (1895), 152–3. Dartmouth's letter also said that the King would ‘permit his Governor to receive his salary from the Province provided that it be not less than £2, 000 per annum’, ibid, at 153. We cannot know whether Hutchinson informed the colonists of the ministry's offer, since all he tells us is that ‘the proposal was favorably received, but the increase in trouble rendered all expedients insignificant and vain’, Hutchinson, History, 3, 280.
126. In fact Hutchinson said at one point that the commissions of Superior Court judges were during pleasure, Chief Justice Thomas Hutchinson's Charge to the Grand Jury, Quincy's Reports, 302 (1768).
127. See, e.g., A Freeholder, Massachusetts Gazette, 5 November 1772, in defense of royal salaries to judges: the Council's political existence depends upon the annual suffrages of the people…. The power of the Crown forms a check to any undue attempt of the people, as does the popular influence to any undue attempt of the Ministry.
128. See infra note 154.
129. Mass. Arch., xxvii, 463 (Hutchinson to Dartmouth, 9 March 1773).
130. Ibid.
131. For information on Hall, see Sibley's Harvard Graduates 17 vols. (Boston, 1873–1975) iii, 11–18. Sibley discusses the removal proceedings at pages 16–17. Hall was alleged to have ‘seized a supposed deserter from the royal navy and committed him “to his Majesty's gaol… upon Suspicion of Disertion, without Trial or Conviction,” where he lay illegally confined for eight months’. ‘The House of Representatives took up the case and after some difficulty compelled the Governor and Council to set April 14, 1748, for a hearing of its charges against Hall for this action’. There was a unanimous Council vote of guilty; and ‘on May 24 the Governor publicly struck his name from the list of justices’. See//J., xxiv, 66, 71–2, 82, 131, 150, 232, 255, 319, 327, 328, 330, 340, 351; Council Records, xii, (1747–48) 30, 32-7; Mass. Arch., xl, 523-31; Mass. Arch., 62, 470.
132. In the context of the significance of a royal salary the former—appointment—is not perhaps terribly important, although Brown tells us that there was fear (in other colonies he seems to mean) that royal salaries would encourage appointment of corrupt officials, Brown, Politics, 49.
133. H.J. 1, 234.
134. Nor would they have been any better pleased with Hutchinson's congratulations to his people on their good fortune in the matter of the judiciary: the condition of the people of Massachusetts, he said in 1768, lies somewhere between that of those happy Englishmen in the realm, whose judges have tenure quamdiu se bene gesserint, and that of the wretched inhabitants of royal colonies, ‘whose judicatories are erected at Home, their judges appointed from thence’. In fact, said the Governor, This, I think, amounts to near the Privilege of the People in England:—there, the judges hold quamdiu, etc.; and here, they are displaced by the Governour, with the Consent of Council… this People are as secure, and as firmly established in their Liberties, as they are in Great Britain. I know of no Difference. Chief Justice Thomas Hutchinson's Charge to the Grand Jury, Quincy Reports, 302–303 (1768).
135. Mass. Arch., xxvii, 512–13 (Hutchinson to, 10 July 1773).
136. In the Massachusetts, this branch is dependent both upon the governor and people, and we have seen, at different times, the influence of the one or the other over this branch, according to the degree of spirit and resolution which has respectively prevailed. We have seen instances also of councellors, who have found fortitude enough to resist an undue influence from either, and who from year to year have had violent opposition to their election. We have seen so many good men members, that I may not give the epithet to this branch which is sometimes used for the small boroughs in England. But we have often seen, that the most likely way to secure a seat for many years is to be of no importance, and therefore it must be pronounced defective. Neither in the Massachusetts, nor in the royal governments, do we meet with that glorious independence, which make the House of Lords, the bulwark of the British constitution, and which has sometimes saved the liberties of the people from threatened encroachments, and at other times put a stop to advances making upon the royal prerogative. Hutchinson History, 2, 7.
137. See Francis G. Walett, The Massachusetts Council, 1766-1774: The Transformation of a Conservative Institution', William & Mary Quarterly 3rd. ser., vi (1949) 605, for the change in composition and attitude of the Council from 1766 on. The semi-popular Council had always been considered a problem by imperial officials, and, not surprisingly, when it became from the imperial perspective altogether unreliable, the pressure was on to do away with it, to substitute, that is, a truly royal Council. What is, perhaps, surprising, is Hutchinson's opposition (at about the time of the Oliver affair) to such fundamental constitutional change, see Bailyn, Hutchinson 190–92, although it was apparently on prudential rather than principled grounds, ibid.
138. And very well described in Peter Hoffer and N.E.H. Hull, ‘Power and Precedent in the Creation of an American Impeachment Tradition: The Eighteenth-Century Colonial Record’, William & Mary Quarterly 3rd ser., 36 (1979) 51 (hereafter Hoffer & Hull). For a very recent, and fuller, treatment of the whole subject see the same authors Impeachment in America, 1635–1805 (New Haven, 1984).
139. Hoffer & Hull, 68.
140. Adams, Diary and Autobiography, iii, 299–300. In fact, so he tells us, he was consulted at every step of the proceedings, ibid, at 300–302 (Hawley ‘would do nothing without me’).
141. I gather this in part from Adams' agreeing with Hutchinson that the Oliver impeachment was ‘unprecedented’, Adams, Diary and Autobiography, iii, 300; see supra note 159. Of course Adams might also, with the Vetch impeachment in mind, really have intended by ‘unprecedented’ the reduction of impeachment to pure removal, but I think not.
142. Adams, Diary and Autobiography, 3, 300.
143. Hutchinson, History, iii, 296, n.*. Although the imitative motif grew stronger in the pre-revolutionary decade, there was nothing new about it; the House, e.g., had in the earliest days of the second charter claimed the powers and privileges of the House of Commons, ‘within the Charter and Province Laws’. 7 A&R (Resolves 1692–1702) (Appendix 2) 34–5.
144. Hoffer & Hull, 75.
145. The fact that there was a charter is very important to an understanding of textual constitutionalism in Massachusetts.
146. Robert Morris wrote that it was more important to have colonial than English judges serving on good behavior ‘as his Majesty can delegate his power but not his virtue’, quoted in Smith, ‘Independent Judiciary’ 1132, n. 146; see also, ibid, at 1135, n. 157. And we see in the colonies a tendency to distinguish between judicial tenure at the pleasure of the king (acceptable) and judicial tenure at the pleasure of the governor (unacceptable): for example, the one colonial judge whose removal precipitated a complaint to the Privy Council urged before that body that judges be declared removable at the pleasure only of the Crown and not of the Governor, (Smith, ‘Independent Judiciary’, 1117).
147. Earlier a judge threatened with arbitrary dismissal by Belcher, ‘applied… to lord chief justice Willes, who signified his resolution that if any judge should be removed, without good reason assigned, he would himself complain to his majesty against the governor’. Hutchinson, History, ii, 286 n. Also, as we have seen, the early history of judicial independence in the colonies involves royal protection of judges against governors by instructions forbidding arbitrary removal, supra note 28.
148. When George III took the throne it was the law that judicial (and other) commissions expired six months after the death of the monarch. Advocating elimination of this rule, • George said that his concern was ‘the Independency and Uprightness of the Judges of the land’. Parliamentary History of England 36 vols. (London, 1806–20) xv, 1007. It has been suggested that he was actually trying to obviate any motive for the judges to cultivate the heir apparent: ‘Independence of the Judges’, The Edinburgh Review xliv (1826) 397. The colonists, however, taking the king at his word, or at least trying to hold him to it, referred repeatedly to his tribute to judicial independence during the salary crisis, e.g., Adams, Works, iii, 559; Report of Boston Record Commissioners, 39 vols., xviii, 91–2, 102 (Boston Town Records, 1770–77, Boston, 1887).
149. HJ., 49, 224.
150. If his urging of a royal salary had anything to do with judicial independence, it would be as a protective rather than a destructive measure, for there is evidence that the Assembly had taken to using their power over salaries to punish judges for decisions displeasing to the representatives, (infra note 186), but Hutchinson's stated reason for pressing for Crown salaries was that the scale of remuneration made it impossible to get, or at least to keep, good men, and despite John Adams's scornful riposte (see text, page 115) we have no reason not to believe the Governor. And an attempt to forestall the resignation of good judges, even if ‘good’, to Hutchinson, meant ‘Tory’, is not an attack on the principle of judicial independence.
151. Brown, Politics 49.
152. Adams, Diary and Autobiography, 3, 297.
153. Assembling the Council to decide whether Oliver's acceptance of a royal salary rendered him an enemy to the constitution skirted the edge, to say the least: as Oliver put it, the Assembly had done ‘him the honor of joining his Majesty with him in the Impeachment, as offering a Bribe to him which he received’, Oliver, Origin and Progress, 111.
154. See text, supra.
155. John Murrin, ‘Review Essay’, History and Theory, 11, (1972) 226.
156. G.B. Warden, ‘Notes and Documents: Law Reform in England and New England 1620-1660’, William & Mary Quarterly 3rd ser., 35 (1978) 690.
157. Some of it in reaction to the royal salary, see, e.g., the town of Pownall borough responding on the salary question, in Benjamin Labaree, Colonial Massachusetts: A History (New York, 1979) 252; Allen, The American Alarm, supra note 49.
158. Murrin, supra note 192, at 259; see Hutchinson, History i, 351 (many years under the second charter have removed the desire to be back under the first). Hutchinson lamented the passing of the first charter for an unusual reason, that is, because the common law, operative in the Provincial period, was more lenient toward adulterers and disobedient children than the colonial laws had been. (Quincy's Reports, 259–60).
159. Brown, Politics 116.
160. Colonial Crisis 222.
161. Murrin, supra note 192, at 258–59.
162. The problem was pointed out to me by an Histórian who professed himself puzzled by what he sees as an about-face from ca. 1776 to 1787.
163. A proposal by John Dickinson to adopt removal on address of both House and Senate was rejected near-unanimously in the Convention, after expression by some of the undesirability of placing the judges to that degree at the mercy of Congress, The Records of the Federal Convention of 1787, 4 vols. (New Haven, 1966), ii, 423, 428–29. In light of the broadly-held view of Dickinson as ultra-conservative it is particularly interesting that he offered the amendment; G. Morris, Rutledge, Wilson and Randolph spoke against it. The Parliamentary precedent, noted, was distinguished by Wilson, who felt that the unlikelihood of concerted action between Commons and Lords rendered the address mechanism less dangerous to the independence of judges in England than it would be in the United States, where the two houses were more likely to act together. Behind this, one presumes, is a sense of the reliably conservative nature of the House of Lords, and, interestingly enough, no such presumption as to the Senate.
164. Constitution of 1780, Part the Second, The Frame of Government, Ch. Ill, Art. I; Thorpe, Charters, iii, 1905. There was no provision for removal by address in the 1778 draft of a constitution, prepared by the Council and the Representatives acting as a Convention, see Oscar Handlin, The Popular Sources of Political Authority (Cambridge, Mass. 1966) 190–201.