1. For the salary crisis, see Hutchinson, Thomas, The History of the Colony and Province of Massachusetts Bay, Mayo, Lawrence S., ed., 3 vols. (Cambridge, Mass., 1936) iii, 259–65; 277–80, 296–97, 302, 317–26Google Scholar (hereafter Hutchinson, History); Hutchinson, Peter Orlando, ed., The Diary and Letters of His Excellency Thomas Hutchinson, 2 vols. (Boston, 1884–1886) i, 136–47Google Scholar (hereafter Hutchinson, Diary and Letters); Adair, Douglass and Schultz, John A., eds., Peter Oliver's Origin and Progress of the American Rebellion (Stanford, 1961) 107–11Google Scholar (hereafter Oliver, Origin and Progress); Smith, Joseph H., ‘An Independent Judiciary: The Colonial Background’ 124 University of Pennsylvania Law Review 1104 (1976)CrossRefGoogle Scholar (hereafter Smith, ‘Independent Judiciary’); Brown, Richard D., Revolutionary Politics in Massachusetts (Cambridge, Mass., 1970Google Scholar) (hereafter Brown, Politics); Russell, Peter E., ‘His Majesty's Judges: The Superior Court of Massachusetts, 1750–1774’ (unpublished dissertation, University of Michigan, 1980Google Scholar); Journals of the House of Representatives of Massachusetts, (Massachusetts Historical Society), xlix, (1980), iGoogle Scholar, (1981), passim (hereafter H.J.); Bailyn, Bernard, The Ordeal of Thomas Hutchinson (Cambridge, Mass., 1974)Google Scholar, (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 Labaree, Leonard, Royal Government in America (New York, 1958) 312ff, 355ff, 360ffGoogle Scholar (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. 7 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, 1850–1856) iii, 513Google Scholar. (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 Mcllwain, Charles H., ‘The Tenure of English Judges’, American Political Science Review 7 (1913) 217CrossRefGoogle Scholar; Smith, ‘Independent Judiciary’, 1105–10.

9. Corson, James C., ‘Judges and Statutory Tenure in England in the Seventeenth Century’, 42 Juridical Review 136 (1930)Google Scholar; Keeton, George W., ‘The Judiciary and the Constitutional Struggle, 1550–88’, 7 Journal of the Society of Public Teachers of Law 56 (1962–1963)Google Scholar.

10. Corson, supra note 9; Keeton, supra note 9; Havighurst, Alfred F., ‘The Judiciary and Politics in the Reign of Charles II’, 66 Law Quarterly Review 62, 229 (1950)Google Scholar; Noble, Richard L., ‘Lions or Jackals? The Independence of the Judges in Rex v. Hampden’, 14 Stanford Law Review 711 (1962)Google Scholar.

11. Keeton, supra note 9; Corson, supra note 9; see Rubini, Dennis, Court and Country 1688–1702 (London, 1968) 119–21Google Scholar, for William III'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. 12 & 13 William III, 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. Compare the provision drafted in 1689 as clause 18 of ‘The Heads of the Grievances’, the prelude to the Declaration of Rights of 1689: ‘Judges commissions to be made quam diu se bene … and not to be removed nor suspended from the execution of their office, but by due course of law’. See, Schwoerer, Lois G., The Declaration of Rights (Baltimore, 1981) 300Google Scholar (last emphasis added). Due course of law at that time would have been impeachment or common law process, both involving proof of misconduct. The decision not to include this clause in the Declaration of Rights rested on recognition of the innovative nature of the clause; at a certain point in the move from Heads of Grievances to Declaration, the decision was taken ‘to separate the clause concerning allegedly ancient rights from those requiring new law’, ibid, at 220, with the judicial tenure provision among the latter, see Ibid., 23–4, 220–31. Although Schwoerer takes historians to task for accepting at face value the claim that the Declaration of Rights (as well as the later Bill of Rights, I Wm. & M. Sess. 2, c. 2 (1689)) was limited to ancient rights, was that is, non-innovative, see Schwoerer at 281, she also describes the effort to eliminate from the Declaration all rights that could not with any degree of plausibility be presented as ancient, or even existing, and notes that one of those eliminated for this reason was the judicial tenure provision. The same rationale explains the later decision not to include a provision on judicial tenure in the Bill of Rights; see Corson, supra note 9 (noting at 136 that traditionally this is seen as an ‘incredible omission’); Smith, ‘Independent Judiciary’ 1109, n.28 (who, citing Corson, attributes the omission to hasty drafting); Rubini, supra note 11, at 120, n.3; X House of Commons Journal 17, 22; (the proviso on judicial independence was deleted in committee and ‘a new bill was to be formulated for this purpose’).

16. Denning, , ‘The Independence and Impartiality of the Judges’, 71 South African Law Journal 345, 348 (1954)Google Scholar; Bamford, B.R., ‘Aspects of Judicial Independence’, 73 South African Law Journal 380, 381, n. 7, (1956)Google Scholar: It was thought by many eminent lawyers (including Maitland) that the Act envisaged two grounds of removal—misconduct and an address—but the modern view is that the latter is purely a procedural provision and misconduct is always essential’, citing Denning, supra. See Maitland, Frederick W., The Constitutional History of England (Cambridge, 1931) 331Google Scholar (‘a judge cannot be dismissed except either in consequence of a conviction for some offense, or on the address of both houses’.) Professor Mcllwain poses the issue this way: ‘… is the house merely ascertaining in a judicial proceeding whether a judge's conduct warrants a removal under the law? If so, then the accused is entitled to be heard, he may employ counsel, the laws of evidence should be strictly observed—in short, the procedure is governed by the lex terrae. The other view is that the whole procedure is purely discretionary with the houses. They may under the act vote for an address for any reason or for no reason. It is an act of power, and the procedure is entirely under their control—a part of the lex parliamenti, supra note 8, 305–306. Pointing out that ‘in practice the legal guarantees and immunities of accused persons have been observed’, Ibid., 307, Mcllwain does not venture an opinion directly on this issue. But he does say that ‘the Crown may remove him without any cause shown, after a joint address of the houses of parliament requesting it, but not otherwise’, ibid., 303 (emphasis added); this is not terribly meaningful if Parliament must prove cause, as it must if the lex terrae governs.

17. As the language of the Act makes clear the King was to have power to refuse to remove a judge after an address requesting removal, and, although there are said to be those who have doubted it (see Denning, supra note 16, at 348) there is no serious doubt that removal of a judge by the King would henceforth be possible only on address of both houses.

18. House of Commons Debates, 23 March 1954, col. 1061, quoted by Denning, supra note 16, at 349.

19. E.g., MacNeill, J.G. Swift, ‘The Independence of the Judges’, 16 Law Magazine & Review 201, 205 (1891)Google Scholar. 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’.

20. It may be said that if the Act of Settlement does legitimate arbitrary removal by a king and parliament of one mind, it reflects some reservation about judicial independence: in theory, after all, a judge who had decided a case properly might be dismissed in reprisal by a king and parliament who preferred improper decision, and while of course such action might be taken with impunity had the address clause never been adopted, that clause gives it a stamp of legitimacy. And, in fact, unless we accept that the aim of the address clause was to facilitate this sort of encroachment upon the independence of the judiciary, that is, political action by the legislature and executive against the judiciary, we have some trouble understanding why it was adopted at all; on this, some possibilities:

(1) The clause reflects not precise calculation but a vague sense of caution about judges; the problem during the reign of the Stuarts had been, after all, not only royal removal of admirable judges but the perceived subservience of wicked judges, and the psychological leap from distrust of men such as Scroggs to that near-total trust that is the essence of truly secure tenure, was not possible.

(2) The clause had nothing to do with judicial independence but was spurred by concern about cases of impairment of judicial capacity by infirmity of one sort or another: insanity, for example. Impeachment was the parliamentary alternative to address and, as Americans were to discover, impeachment is overkill in the case of a judge who is mad rather than bad.

(3) I am wrong and the understanding was that removal could not proceed except for proven misconduct, the address being adopted merely to avoid the manifold inconveniences and inaptnesses of impeachment. If this is the way it was, the procedure is even more tender of judicial sensibilities than is impeachment, for the king plays no role in impeachment, while the king might (in 1701) refuse to remove a judge on address, even when misconduct had been proved.

21. 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.

22. For the American colonial history of judicial independence see Smith, ‘Independent Judiciary’, passim.

23. 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.

24. See discussion of the Adams-Brattle debate in text at page 137, especially footnote 142 on the Barons of the Exchequer.

25. At least, as Smith puts it, ‘Under orthodox reception theories’, ‘Independent Judiciary’, 1110.

26. A parity theory might even on occasion found a colonial claim to something not in practice enjoyed by Englishmen in the realm: actual as opposed to virtual representation for example. There were two answers to the virtual representation justification of Parliamentary authority over the colonies, to the argument that Parliament represented Americans because it represented Manchester, et al. (where no one voted either). The first distinguished away the Manchester precedent: ‘The members of Parliament are in a community of interest with the people of Manchester, but in a conflict of interest with the colonists.’ The second said, bluntly: ‘Enough of Manchester! If the people of Manchester do not vote, they ought to!’ Both answers actually rest on parity (the first, parity de facto, the second, parity de jure), but the latter seems to involve a demand not for equality but for superiority.

27. Smith, ‘Independent Judiciary’, 1117. Smith points out that only one removal was complained of in the course of the struggles over judicial independence in the colonies. The displaced judge was Lewis Morris of New York, and the dismissal became a part of the famous Zenger case, in which it was argued that if the judges' commissions were not on good behavior, they were invalid. See Alexander, James, A Brief Narrative of the Trial of John Peter Zenger, Katz, Stanley N., ed. (Cambridge, Mass., 1972)Google Scholar. That is not to say that there were not other arbitrary removals of judges in the colonies, see as to Massachusetts, e.g., infra note 36, but on the evidence thus far uncovered, there was no pattern of royal attack on the independence of the colonial judiciary. This lends credence to the imperial claim that insistence on keeping colonial judges dependent on the Crown was not a means to secure judicial docility or subservience. On the other hand, the hostility displayed in 1759 and 1768 to colonial legislation which secured judicial salaries in return for tenure on good behavior (see infra note 32) suggests that, by that time at least, something more was involved in the insistence on tenure at pleasure than merely countering the colonial assemblies' salary power. Perhaps it was, as imperial officials often said, the desire to keep a way open to replace incompetent colonial judges (whose numbers were said to be legion) with abler men, should any come along, see Labaree, Royal Government, 393, 394. (This was also one of the excuses used by the assemblies for not surrendering control of judicial salaries, that is, the need to be able to starve out incompetents.) Or perhaps increasing tensions had their effect on imperial willingness to permit independence for the colonial judiciary. See infra notes 28, 29, 30.

28. There were isolated complaints earlier (as in Zenger, see supra note 27) but it is with an enactment in Jamaica in 1751 that the real, and perhaps concerted, colonial pressure for tenure on good behavior begins, and, in reaction thereto, imperial tightening up. The earliest imperial moves in this matter were not aimed at ensuring that colonial judges serve at pleasure, but at preventing arbitrary action against judges by royal governors: (1) From 1672 governors were instructed not to remove judges without cause, see Labaree, Leonard, Royal Instructions to British Colonial Governors 1670–1776 (New York, 1967) 369Google Scholar. (2) A few years later it was found necessary to prohibit the limitation of terms in commissions, ibid. at 366. The tendency of this latter instruction to prevent arbitrary removal seems to have eluded a surprising number of people: See Smith, ‘Independent Judiciary’, 1112 (‘Although its corrective force is difficult to discern …’), and ibid. at n.45 (‘Governor Popple of Bermuda questioned how failure to express limitations of time in judicial commissions prevented arbitrary removal’); Bailyn, Bernard, ed., Pamphlets of the American Revolution 1750–1776, (Cambridge, Mass, 1965) 250Google Scholar (‘a vague ruling that was generally, though not always, interpreted to mean tenure at the pleasure of the crown’). And Labaree says this was clarified by instructions to grant commissions at pleasure only, Royal Government 101. It seems obvious enough that a governor who may appoint for, let us say, one year at a time, has the power arbitrarily to remove by refusing re-appointment to a judge who has behaved well. The difficulty must be failure either to take into account that this was an additional instruction and must be read with the instructions not to remove without cause, or to keep in mind that it had to do only with removal by governors, not by the king, see infra note 177. (3) From 1753 on, instructions forbade gubernatorial appointment of judges without the advice and consent of councillors, in some cases three or more, in others a majority of the council, Labaree, Royal Instructions, 367.

29. Labaree, Royal Government, 388 ff.

30. Governor Hardy, of New Jersey, was recalled in 1761. See Smith, ‘Independent Judiciary’, 1128–30; Labaree, Royal Government, 399 ff.

31. There was also the poor quality of the colonial judiciary, see supra note 27.

32. 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.

33. 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.

34. 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.

35. 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.).

36. There is a curious problem here, for while there were arbitrary removals of Massachusetts Provincial judges it is not clear that they should be viewed as violative of the independence of the Massachusetts judiciary. After all, if we care about the independence of the judiciary it is because we want to protect the decision-making process, but in Massachusetts arbitrary removals did not as a rule threaten that process. Judicial office was patronage, to be awarded for political support and—more to the point—taken away to punish political, off-the-bench opposition rather than unfavorable judicial decision. While a few removals are arguably classifiable as (so to speak) judicially rather than politically retributive, most were not. On the whole there seems to have been little gubernatorial interference with judicial independence; except perhaps for Jonathan Belcher, governors who attempted, as they would naturally do, to secure favorable benches, utilized methods consistent with adherence to the principle.

37. Thorpe, Francis N., ed., The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the Stales, Territories, and Colonies now or heretofore forming the United States of America 7 vols. (Washington: 1909) iii, 1870Google Scholar (hereafter Thorpe, Charters).

38. Ibid, at 1879. Historians 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.

39. Ibid.

40. 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.

41. 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, iii, 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.

42. See sources cited, supra note 9.

43. Bailyn, Hutchinson 169-70.

44. See sources cited, supra note 4.

45. ‘Indignation, fear and rage roared like a sheet of flame across the troubled community’, Bailyn, Hutchinson 205.

46. Mass. Arch., xxvii, 307-308 (Hutchinson to —, 30 March 1772); ibid, at 322 (Hutchinson to —, 27 April 1772).

47. Ibid, at 307-308, (Hutchinson to Hillsborough, 30 March 1772).

48. Oliver, Origin and Progress, 33.

49. Mason, Bernard, ed., The American Colonial Crisis: The Daniel Leonard-John Adams Letters to the Press, 1774-1775, (New York, 1972) 166–68Google Scholar (hereafter, Colonial Crisis). Not all whigs agreed, see Allen, John, The American Alarm or The Bostonian Plea, for the Rights and Liberties of the People (Boston, 1773Google Scholar). (If the judges merit larger salaries, pay them.)

50. Colonial Crisis 167.

51. ‘… best acquainted with the Law of any I know in the province’, Mass. Arch., xxvii, 307-308 (Hutchinson to —, 30 March 1772).

52. ‘… 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.

53. Ibid, at 373-74, (Hutchinson to —, 23 August 1772).

54. 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, iii, 259-60.

55. General Court involvement in the judges' salary crisis divides into two periods:

(1) The Assembly meeting in 1773, see Hutchinson, History, iii, 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, 317-26; H.J., 1, passim.

56. Hutchinson discovered in September what the proposed royal salaries were to be, Mass. Arch., xxvii, 390 (Hutchinson to —, 24 September 1772).

57. H.J., xlix, 168; Hutchinson, History, iii, 279; Mass. Arch., xxvii, 444-45 (Circular to Justices, 5 Feb. 1773).

58. H.J., xlix, 196.

59. Ibid, at 248; Mass. Arch., xxvii, 452 (Hutchinson to Dartmouth, 22 February 1773).

60. H.J., xlix, 255.

61. Ibid, at 282.

62. 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.

63. H.J., 1, 113.

64. Ibid, at 117-18.

65. Ibid, at 136-39.

66. Ibid, at 133-35.

67. Hutchinson, History, iii, 317.

68. Butterfield, L.H., ed., Diary & Autobiography of John Adams, 4 vols. (Cambridge, Mass., 1961), ii, 66–7Google Scholar (hereafter Adams, Diary & Autobiography).

69. As Hutchinson pointed out, Mass. Arch., xxvii, 525, (Hutchinson to —, 11 August 1773).

70. 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.

71. Mass. Arch., xxvii, 405 (Hutchinson to Bernard, 10 November 1772).

72. Ibid. at 525 (Hutchinson to ——, 11 August 1773).

73. Ibid. at 405 (Hutchinson to Bernard, 10 November 1772).

74. H.J., xlix, 208; see also Mass. Arch., xxvii, 444–45 (Circular to Justices, 5 February 1773).

75. H.J., xlix, 208.

76. Mass. Arch., xxvii, 445 (Hutchinson to ——, 5 February 1773).

77. H.J., I, 146–47.

78. Ibid. at 194–201.

79. Hutchinson, History, iii, 320.

80. Ibid.; H.J., I, 205–06.

81. Ibid. at 159.

82. Ibid. at 167.

83. Ibid. at 181–83.

84. Ibid. at 182.

85. Thorpe, Charters, iii, 1878.

86. Ibid.

87. 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.

88. Hutchinson, History, iii, 321.

89. H.J., I, 182.

90. Ibid.

91. Hutchinson, History, iii, 319.

92. With apologies to Professor S.F.C. Milsom.

93. Mass. Arch., xxvii, 498 (Hutchinson to ——, June 1773).

94. H.J., I, 181.

95. Thorpe, Charters, iii, 1883.

96. H.J., I, 183.

97. Historians are alive to the resemblances between eighteenth-century America and seventeenth-century England. Here's a new one. An early and crucial step on the road to the destruction of kingship was the loss of a critical distinction between matters of prerogative, those matters which the monarch might simply command Parliament to cease consideration of, and matters over which the King might exercise control only through the veto; the point of prerogative was precisely that the King, in matters properly appertaining thereto, did not have to resort to the veto. When the system operated effectively, a command to a Parliament to cease deliberation of a matter not properly theirs to consider would be obeyed. It is an ominous sign when the King must protect his prerogative by the veto, harbinger of the disappearance of the veto, and thus ultimately of kingship. Although there are important differences, the similarities between Hutchinson's and the earlier royal predicament are striking. Hutchinson might have taken the veto route, but believing that it was his duty not to bring such a matter as the Oliver charges to the Council, Hutchinson believed further that he also had the right to refrain from bringing it. Most intriguing here is this—the King's power to keep matters from his Parliament would appear to be merely a power, not a duty: but the colonists' constitutional position was that the King had a duty to keep the governance of the dominions from Parliament. By the 1760s and 1770s, when this position was adopted, the alleged royal obligation in this could be met only through the veto—and indeed, in the real world, not even that way lay open to George III; Jefferson and others urged that George veto Parliamentary acts affecting the colonies, but the King faced rebellion at home should he revive this long-unused power. The structural similarity is remarkable. The power of a non-elective executive ruler to keep matters from the cognizance of the representative branch of government is central to the balance of power. The duty to do a thing may be taken to imply the power—so Hutchinson, and so Jefferson, though necessarily in the context of the veto. The distinction that mattered, from the colonial point of view, would be that vis-à-vis the colonists, the British Parliament was no more the representative branch than the king, no less an executive than he, but unlike the king, a usurpative, an illegitimate executive. The Massachusetts assembly was, of course, the colonists' parliament.

98. Thorpe, Charters, iii, 1880.

99. Acts and Resolves of the Province of Massachusetts Bay, 21 Vols. (Boston, 1869–1922), i, 1692–3Google Scholar, Ch. 25, § 4 (3 November) (hereafter A&R).

100. Hutchinson, History, iii, footnote on page 324.

101. Ibid.

102. Ibid.

103. Ibid.

104. Mass. Arch., xxvii, 538 (Hutchinson to ——, 2 September 1773) (not sent). See, Ibid. 537 (Hutchinson to ——, 6 September 1773) (not sent): ‘The Council go on making decrees … altho the Governor does not assent.’ Hutchinson worried that if this practice was disapproved of by the Crown those persons having remarried would be in trouble. Hutchinson in one case at least stayed execution. See Ibid. at 409–410 (Hutchinson to Dartmouth, 13 November 1772). Nancy Cott's investigation of divorce in Provincial Massachusetts, ‘Divorce and the Changing Status of Women in Eighteenth-Century Massachusetts’, William and Mary Quarterly 3rd Ser. xxxiii (1976) 586Google Scholar directs attention to certain puzzling developments which may prove to be linked to this matter of the gubernatorial negative in judicial proceedings. For example, she tells us that during the period 1754–1757, ‘for reasons not apparent in the historical record, the Governor and Council declined to dissolve valid marriages and decreed separate bed and board for petitioners who formerly and subsequently would have been granted divorce’, Ibid. at 590. Relief was sought, in those years, from the General Court, which granted six legislative divorces. Also, Cott sees 1773 as a ‘turning-point’ on the issue of granting divorce to women on grounds of adultery, Ibid. at 602. She notes, moreover, that in fifty-six instances there appear to have been no resolutions of suits for divorce, Ibid. at 596. There are a number of ways in which any or all of these may have been related to the difficulty of which Hutchinson speaks.

105. Mass. Arch., xxvii, 409–10 (Hutchinson to Dartmouth, 13 November 1772).

106. Acts of the Privy Council of England (colonial series) 6 vols. (Kraus Reprint Ltd. 1966) v, 330–31Google Scholar.

107. Ibid.

108. 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.

109. H.J., I, 102–03.

110. Hutchinson, History, iii, footnote 324.

111. H.J., I, 232.

112. Ibid. at 233–34.

113. The Council here may have conceded more than it needed to. It is interesting, at least, that in the very early Province period, under Phips and Stoughton, the Council nominated judicial officers, with the Governor merely assenting or negativing the choices; see Spencer, Henry R., Constitutional Conflict in Provincial Massachusetts (Columbus, Ohio, 1905) 28Google Scholar; Sewall, Samuel, Diary of Samuel Sewall, 1674–1729 3 vols. (New York, 1973), i, 450Google Scholar (24 March 1696/7) (hereafter Sewall, Diary) commenting about the day for nominating Justices, that ‘the heat about what way should do it in was so great, that did nothing’.

114. Note that this comports ill with the notion that judicial tenure is at pleasure.

115. Hutchinson, History, iii, 323-24.

116. 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.

117. Hutchinson, History, iii, 324. Although Adams later wrote that the Council would do nothing, (Adams, , Diary and Autobiography, iii, 302Google Scholar) 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, iii, 324–25Google Scholar.

118. Hutchinson, History, iii, 320.

119. Cf. Bailyn, Hutchinson 266: The Governor ‘could block all such proceedings simply by refusing to cooperate …’.

120. 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, iii, 302.

121. 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., I, 243, 291.

122. Hutchinson could not see this, and his belief that all protest was the work of a few mischief-makers led him badly to underestimate the destructive potential of the judicial salaries; so, he wrote on 30 August 1772, that since the affair of the salaries would be all over by the time his letter reached its destination he would not further belabor the subject, Mass. Arch., xxvii, 383, (Hutchinson to ——, 30 August 1772); see also, Hutchinson to the same effect on the Governor's salary, Ibid. at 346–47 (Hutchinson to Pownall, 22 June 1772), Ibid. at 349–52 (Hutchinson to Hillsborough, 25 June 1772).

123. What follows is necessarily the barest outline of an analysis on which I have been working for some time of the political/constitutional history of early Massachusetts. There is more detail in Black, Barbara A., ‘The Judicial Power and the General Court of Massachusetts Bay (1634–1686)’ (unpublished dissertation, Yale, 1975Google Scholar), and more to come in a work at this point beginning to bear some resemblance to a book. Here I present the seventeenth-century material only as background to the crisis over the judges' salaries in the 1770s.

124. Andros Tracts, 3 vols. (Boston: The Prince Society 1868–1874, Franklin, B. reprint, 1967), i, 290Google Scholar; see also Ibid. iii at 304; iii, 171 (hereafter Andros Tracts).

125. One commentator has noted the relevance of the jury to the issue of judicial independence but, significantly, only to point out that the colonists seemed not to link the two; he finds ‘curiously muted … in the … discussions [of judicial independence] the fact that juries in Massachusetts Bay were traditionally regarded as empowered to find both the facts and the law, a substantial restraint upon the judiciary, in theory at least’, Smith, ‘Independent Judiciary’, 1148, n. 216. But it seems unrealistic to expect those who opposed the royal salary to find consolation in the jury, to say, in effect ‘what does it matter that our judges will be dependent creatures, subservient to royal interests, so long as we have the jury?’ Nor for that same reason is it surprising that the supporters of royal authority did not make argumentative use of the power of juries, a power which, in any case, they were coming more and more to deplore. A strong jury may help in some cases, but it is no substitute for upright judges. The very system that gives broad powers to juries can be subverted by judges: As one whig said, in the context of the salary crisis: ‘Your laws, (not to say your lives) are then no more your own as Juries naturally follow Judges.’ Allen, The American Alarm, supra note 49.

126. This may be queried for the 1770s, since the jury probably became more rather than less powerful in the course of the eighteenth century, but in my opinion as a net matter popular control of the administration of justice declined from 1670 to 1770.

127. Hutchinson, Diary & Letters, i, 134.

128. See sources cited in supra note 4.

129. 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.

130. See H.J., xlix, 103–07.

131. Ibid. at 224; see Bailyn, Hutchinson 203 ff.

132. See Boston Gazette, 16 December 1771, 6 January 1772, 13 January 1772; Massachusetts Gazette 2 January 1772; see Bailyn, Hutchinson, 198–99.

133. Greenleafe, writing as Mucius Scaevola, had attacked Hutchinson as ‘a monster in government’ and worse, see Bailyn, Hutchinson, 198–99; H.J., xlviii, pp.x-xii.

134. Boston Gazette, 13 January 1772.

135. 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.

136. 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.

137. Boston Gazette, 13 January 1772. Interpretive variations on the consequences of omission of one or the other formula are interesting. One correspondent to the Massachusetts Gazette (19 November 1772), noting that the words, durante bene placito do not, any more than quamdiu se bene gesserit, appear in commissions, and assuming that they were omitted for some reason, concluded that tenure was at least not at the pleasure solely of the Crown. By this he appears to have meant, as he had written in another letter, (12 November 1772) that the Council was an indispensable party to removal. And once upon a time Jonathan Belcher deliberately omitted the formula durante bene placito, from the commission for the naval office, on the theory that their inclusion gave the incumbent too much power over a governor, Belcher Papers, VI Massachusetts Historical Society Collections 6th Series, 376–79. (Belcher to Richard Partridge, 4 October 1733). Belcher took the phrase to mean ‘while I [we?] the King am [are?] pleased, whether or not the governor is’. Nor was he the only one who accepted the efficacy of the excision in putting the officer at the mercy of the Governor, Lincoln, Charles Henry, ed., Correspondence of William Shirley, 2 vols. (New York, 1912), i, 41Google Scholar (Shirley to Duke of Newcastle, 23 August 1741); Shirley also believed that since the naval officer's commission was at the governor's pleasure (‘not the King's'), it ‘expir'd with his principal's Commission’.

138. That seems to have been Peter Oliver's position, H.J., 1, 216.

139. See page 140 in text.

140. See supra note 5.

141. As it would indeed be, for those whose goal was true independence, since the royal salaries were to be fixed. I know of no suggestion, contemporary or since, that the Crown meant, in the style of the assemblies, to use salaries as a weapon.

142. His only problem was that from the reign of Henry VI to 1628 Barons of the Exchequer were appointed on good behavior, and that the justices of the Massachusetts Superior Court were, by statute, given the jurisdiction of the courts of king's bench, common pleas, and exchequer. Smith tells us that Adams ‘questioned whether the tenure of the Barons of the Exchequer should control in the case of the Superior Court judges’, (Smith, ‘Independent Judiciary’, 1111), but as I read Adams on this he merely heaped contempt upon the notion: ‘Will it be said that this law, giving our judges cognizance of all matters of which the court of exchequer has cognizance, gives them the same estate in their offices which the barons of exchequer had?’ Adams, Works, iii, 525. The argument might have had merit in colonies in which the judges were given, in Smith's words, ‘the privileges of the judges of … Exchequer’, (Smith, ‘Independent Judiciary’ 1111), although I would think it merely specious even then, but in Massachusetts the point was, as Adams took it to be, derisory.

143. A suicidal position for a common law whose integrity depends on the independence of its judges. Adams's position seems odd. The obvious move, and possibly only hope, for reconciliation, was a mutual surrender of advantage. But Adams's position seems to make it harder to reach such a solution, for he seems to say not only that the King had to agree to life tenure, but that he had to get it through Parliament, one more obstacle. Adams has seemed to historians to have been trying to prevent peaceful settlement of this dispute. However, tucked away in his answer to Brattle is a throw-away line which suggests a very different interpretation: ‘If it [a law of the province] had said, as it ought to have said, that they shall be commissionated, quamdiu se bene gesserint, they would have been so commissionated, and would have held estates for life in their offices’. Adams, Works, iii, 571. Adams, in other words, assumed that the executive, unable to act effectively alone, might act effectively through the Massachusetts General Court, not an obstructionist position. Moreover, I do not read Adams as saying that the goal could have been reached either through the colonial legislature or the British Parliament. For although he does go on and on about Parliament, it is in the context of tenure for English judges. E.g., he repeats Coke's statement of the rule that the King cannot alter the customary manner of granting ancient offices except by acts of Parliament. This simply meant to Adams that the customary tenure of Massachusetts judges could not be altered without act of the General Court. Certainly that fits in with his whole theory of the constitutional structure of the British Empire; in fact, given his theory of Empire, it would be astonishing if he really meant that a British Parliament might alter the tenure of colonial judges, much less that there was no other way. Adams after all is the man who, as Novanglus, denied that the British Parliament had any authority over Massachusetts, who said the King was King of England and King of Massachusetts, and must rule England through the Parliament of England and Massachusetts through the Parliament of Massachusetts. I am quite convinced that Adams meant the General Court and no other, that he would indeed have been amazed to find himself otherwise interpreted, and that this explains why his sentence about the act of the province was a throw-away line; he would have thought it altogether obvious, and not at all in need of underlining, that the King rules Massachusetts through acts of the Massachusetts General Court.

144. Joseph Hawley, ‘Are the Justices of the Superior Court Removable at Pleasure or For Just Cause Only?’ (duplicate copy in possession of author). Although we cannot tell from the incomplete surviving copy, Hawley's answer to the question he poses in his title must have been Adams's. But he departed from Adams on the next point, i.e. the King's power to grant life tenure.

145. Coke referred to the change in the commission of the Chief Justice of King's Bench from letters patent to writ.

146. Mass. Arch., xxvii, 463; Historical Manuscripts Commission Report, 11th Report, Appendix, Part V, (1887), 348–9Google Scholar.

147. 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, iii, 280.

148. In fact Hutchinson said atone 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).

149. 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.

150. See infra note 154.

151. Mass. Arch., xxvii, 463 (Hutchinson to Dartmouth, 9 March 1773).

152. Or for that matter if the judges ‘had been placed upon the footing of the judges in England, and made removable upon the address of the council and house of representatives’, Hutchinson, History iii, 280. Hutchinson's willingness to permit removal on address reflects his understanding that the Governor of Massachusetts could refuse to remove a judge under attack by the House and Council, and possibly also his assumption that removal by address was for cause.

153. ibid.

154. Andros Tracts, i, 296, ‘I take it to be good advise that Judges, Sheriffs, Justices of the Peace … commissions continue quamdiu se bene gesserint’. Mather's friends, and presumably advisors, included Burnet and Somers. I do not know that Mather made this suggestion to the King or even whether he thought the term of office of Massachusetts judges was a matter for the King. As Hutchinson wrote to the ministry, ‘the form [of judicial commissions] was settled here …’, that is, in Massachusetts. Hutchinson also said that he dared not change the form, by insertion of quamdiu se bene gesserint without royal permission, although he conceded that ‘the general voice’ favored the change, Mass. Arch., xxvii, 463 (Hutchinson to Dartmouth, 9 March 1773). It is more than arguable that a Massachusetts Governor and Council could constitutionally do as they wished on this matter, but Hutchinson took no chances; perhaps he had the example of Hardy in mind, supra note 30, but governors in New Jersey were under instruction on this matter, governors of Massachusetts were not.

155. Hutchinson, History iii, 280. Hutchinson is presumably basing this proposition on the rule that removal power accompanies appointing power.

156. [1]—(1706: Byfield), see Black, Barbara A., ‘Nathaniel Byfield, 1653-1733’ in Coquillette, D.R., ed., Law in Colonial Massachusetts 1630-1800 (Boston: The Colonial Society of Massachusetts, 1984), 57–106Google Scholar; [2]—(1712: Foxcroft), Sewall, , Diary, ii, 357Google Scholar; [3]—(1715: Woodbridge), H.J., i, 20-21; (4]—(1716: How), A&R, ix, 497; H. J., i, 143-4, 153, 154-55; [5]—(1721: Frost), Sewall, , Diary, iii, 286–87Google Scholar; [6]—(1728: Tufts), Archives of the Commonwealth, State House, Boston, Massachusetts; Records of the Governor and Council, vol. ix (1728-1741) 15 (hereafter Council Records; [7]—(1732: Mayhew), Council Records (1728-1741), ix, 399, 403, 404, 419; [8]— (1735: Blany), H.J., xiii, 237-38, 247-48, 277; [9]—(1735: Springfield), H.J., xii, 128, 134, 145-47, 151-52, 184-85, 187, 188; [10]—(1735: Allen), H.J., xiii, 149; H.J., xiv, 20; [11]—(1747: Hall), see infra note 157; [12]—(1755: Ingersoll), H.J., xxxii, Part 1, 22, 25, 70-71, 112, 143, 144, 147; A&R, xv, Appendix 10, 378. Ch. 127; [13]—(1760: Clap), H.J., xxvi, 158, 190, 194, 216, 257-58; [14]—(1764: Mather), Mass. Arch., xliv, 517; [15]—(1765: J.P.s of Bristol), ibid, at 554-64; [16]— (1766: Lynde), ibid, at 596; [171—(1767: Campbell), Mass. Arch., lxxxv, 674, 713; Mass. Arch., xliv, 633-38.

157. Two (see [3] and [8], in footnote 156, supra) involved breach of the privileges of the House and would obviously be heard by the House; one [1] involved disobedience to a Council order and would therefore not go through the House. One [4] although involving an accusation of unjust proceedings, prayed only an appeal, and possibly ought not to be included as a complaint against a judge. Of the thirteen remaining, the House was involved in five that I know of, po.ssibly in others. House participation in proceedings against judges is an aspect of the more general subject of House involvement in the administration of justice, and intirrtately tied in with the matter of legislative adjudication.

158. For information on Hall, see Sibley's Harvard Graduates 17 vols. (Boston, 1873-1975) iii, 11–18Google Scholar. 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 H.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., lxii, 470.

159. H.J., 1, 235. This possibly in response to Hutchinson's point that he knew of only one impeachment attempt in Massachusetts (indeed colonial) history, an attempt that had failed. (Hutchinson wrote this later, (Hutchinson, History iii, 320.) but it is most unlikely that he did not say it at the time of the Oliver impeachment.) In this Hutchinson was formally right, meaningfully wrong; the representatives, formally wrong, were meaningfully right. There was, truly enough, only one impeachment precedent: the Vetch affair in 1724. The proceeding was abandoned mid-way in favor of a simpler procedure, a bill of pains and penalties, itself disallowed as an unlawful exercise of criminal jurisdiction by the General Court. ibid.; see Waller, George M., Samuel Vetch, Colonial Enterpriser (Chapel Hill; 1960Google Scholar). But the Vetch impeachment aimed at the imposition of criminal punishment, while the Oliver impeachment was never anything more than a removal proceeding.

160. A removal proceeding in which the Governor had no veto would be new; possibly it was in response to this that the House conceded that the act of removal is an executive act, thus presumably a matter in which the Governor does have a veto. The Governor, then, might refuse to remove after conviction—note the resonances with the proceedings by way of address. Whatever the unreality of the impeached-but-sitting judge, the House logic is sound enough. The Oliver matter was novel as well in the respect that earlier proceedings against judges had involved only lower judicial officers, and not a justice of the Superior Court. This distinction would come into play in arbitrary removal: the argument that Massachusetts judges held on good behavior had such vitality as it had only for the Superior Court judges, by analogy to the situation in England. But in a removal for cause the status of the judge does not appear to be a material fact.

161. 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.

162. See supra note 149. In fact the argument here was that the royal salary brought balance to the Massachusetts constitution.

163. H.J., 1, 234.

164. 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).

165. Mass. Arch., xxvii, 512-13 (Hutchinson to —, 10 July 1773).

166. ‘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 ii, 7.

167. See Walett, Francis G., ‘The Massachusetts Council, 1766-1774: The Transformation of a Conservative Institution’, William & Mary Quarterly 3rd. ser., vi (1949) 605CrossRefGoogle Scholar, 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.

168. E.g., in 1729 the Superior Court of Massachusetts issued a writ of mandamus by which it brought before it a case which had not been heard in any inferior tribunal, 9 H.J. 93; see ibid, at 93-4, 95, 96-7, 99, 106, 109. The House of Representatives believed the Court to have exceeded its powers:

We therefore think it incumbent on this Court to signify their disapprobation of such a practice, or being any ways countenanced; lest ins a short time the courts established here assume to themselves Powers in prejudice of the Rights, Properties and Estates of his Majesty's good Subjects within this Jurisdiction, and the known and well approved way of Trials by Verdict of Jurors, in a great Measure rendered useless.

Ibid, at 94. The writ was declared null and void, and the House sent its order so declaring up to the Council for concurrence, ibid. Unanimously non-concurring, (ibid, at 95) the shocked Council reminded the representatives that the administration of justice to the subject belongs to judges and courts, ‘and therefore for the House to declare as they now do, that they have adjudged the Proceedings of thai Court to be without or rather against Law! This is very Extraordinary, indeed and of the First Impression’. It is ‘most agreeable to the Constitution of our English Government to have Matters of Liberty and Property to be determined by the Courts of Justice, and not by the General Court.’ ibid, at 109.

The Council's tone of horrified protest may mislead, for if the General Court had not, between 1692 and 1729, quite so forthrightly as in 1729 declared the proceedings of the common law courts ‘without or rather against law’, it had often enough done that which is hardly meaningfully distinguishable, and it continued to do so.

169. And very well described in Hoffer, Peter and Hull, N.E.H., ‘Power and Precedent in the Creation of an American Impeachment Tradition: The Eighteenth-Century Colonial Record’, William & Mary Quarterly 3rd ser., xxxvi (1979) 51CrossRefGoogle Scholar (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, 1984Google Scholar).

170. Hoffer & Hull, 68.

171. 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’).

172. 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.

173. Adams, Diary and Autobiography, iii, 300.

174. 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.

175. Hoffer & Hull, 75.

176. The fact that there was a charter is very important to an understanding of textual constitutionalism in Massachusetts.

177. 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).

178. 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.

179. 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, 1806-1820) xv, 1007Google Scholar. 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) 397Google Scholar. 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, 1887Google Scholar).

180. H.J., xlix, 224.

181. 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.

182. Brown, Politics 49.

183. Adams, Diary and Autobiography, iii, 297.

184. It is not too much, indeed, to say that judicial independence was at issue in Massachusetts in the 1770s only in an attenuated sense: we see this in the fact that the question that mattered was not really ‘for what?’ but ‘by whom?’.

185. For example, both House and Council had taken to appointing committees of correspondence to sit in the recess of the General Court; as Hutchinson said, this vitiated his power to prorogue and dissolve the Assembly; see Brown, Politics 109-110 (Marblehead suggests this to get around prorogation and dissolving). Then, the Council had adopted the practice of meeting without the Governor; royal command that this cease (see Bailyn, Hutchinson, 169 n.21) no doubt had a lot to do with the Council's differentiated reaction to the Remonstrance & Petition on the one hand, Articles of Impeachment on the other. On the other side, Hutchinson thought this an appropriate time to cut back on the pitiful remnant of the General Court's adjudicatory function, and in April, 1772, he urged the General Court to cease ‘considering Petitions for new Trials at Law, for leave to sell the Real Estate of Persons deceased by their Executors or Administrators, and the Real Estates of Minors by their Guardians’ (H.J., xlviii, 122). The House, responding, declared itself ‘determined … to consult his Majesty's Real Service—the true Interest of the Province’, (ibid., at 128) and went right on as before.

186. The colonists were newly on the offensive against judges during the 1760s and 1770s. Peter Oliver records a spate of attack on the judges by the House: (1) there was an abortive attempt to deprive ‘a late worthy Chief Justice’ of his extra £30 for a decision someone in the House did not like (Oliver, Origin and Progress 107); (2) the Assembly, angry at judges who were ‘rather too firm to coincide with their views in the subversion of government shortened their allowance £37 10 sterling in the whole’ (ibid, at 108); (3) the vengeful Assembly created two new Counties, adding a punishing (in two senses) 100 miles to the judicial schedule (ibid.). Nevertheless, this kind of abuse of power seems to me qualitatively different from the re-distribution of power represented by the royal salary. Moreover the permanent salary issue had been fought and won by the colonists in the 1730s (supra note 2).

187. It was also a most unfortunate closing off of a safety-valve, compelling the popular forces to take action that proved, in the event, far more serious and disruptive than withholding a judge's salary.

188. Even one who believes that Hutchinson's conduct of the Oliver affair was not exemplary will see his side of things: loyalty to his friend and kinsman Peter Oliver, to his King, to his conception of his own duty, drove Thomas Hutchinson. And then, by the time of the Oliver proceedings Hutchinson, tortured by his enemies, unappreciated by those he sought to oblige, was probably in no condition to exercise whatever of prudence or wisdom he had ordinarily at his command. Sympathy for Hutchinson, however, does not mandate acceptance of his version of things, of his view that in the Oliver affair there was no hint of a respectable constitutional case for the colonists, of his characterization of the impeachment as ‘outré even for a house of representatives’.

189. But see Hutchinson's speech to the House on the Remonstrance: ‘I must repeat to you … that I am the Servant of the King—that I have received no Instructions nor any Significations of His Majesty's Pleasure which are not perfectly consistent with your Charter and which His Majesty has not an indisputable Authority to give—that such Instructions or Significations … are, by my Commission the Rule of my Administration …’ H.J., 1, 182-83. One could read into this the implication that the Governor accepted theory I, but my sense of things is as stated in the text. Hutchinson did concede that he might be wrong, presumably not in defending the King's ‘Instructions or Significations' as constitutional, but in drawing from the particular signification (the grant of the royal salary) the conclusion that he must block deliberation of the charges against Oliver: ‘If I persist in an erroneous Judgment, upon your humble Representation to his Majesty and making the Error to appear, you may be sure of Redress …’ (ibid.). In Hutchinson's insistence that appeal to the King was the only recourse in the Oliver affair we see the people's problem. The cure for gubernatorial misconduct was indeed appeal to the King, but judicial misconduct did not require for its punishment polite waiting, hat in hand, upon the Privy Council. But how meaningful was this difference if the Governor might convert an issue of judicial misconduct into an issue of gubernatorial misconduct? What we see here is obliteration of the distinction between judges and royal officials, disregard of the constitutional singularity of the Massachusetts judge.

190. 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.

191. See text, supra.

192. Murrin, John, ‘Review Essay’, History and Theory, xi, (1972) 226CrossRefGoogle Scholar.

193. Warden, G.B., ‘Notes and Documents: Law Reform in England and New England 1620-1660’, William & Mary Quarterly 3rd ser., xxxv (1978) 690Google Scholar.

194. Some of it in reaction to the royal salary, see, e.g., the town of Pownall borough responding on the salary question, in Labaree, Benjamin, Colonial Massachusetts: A History (New York, 1979) 252Google Scholar; Allen, The American Alarm, supra note 49.

195. 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).

196. Brown, Politics 116.

197. Colonial Crisis 222.

198. Murrin, supra note 192, at 258-59.

199. The problem was pointed out to me by an historian who professed himself puzzled by what he sees as an about-face from ca. 1776 to 1787.

200. 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, 428–29Google Scholar. 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.

201. Constitution of 1780, Part the Second, The Frame of Government, Ch. III, Art. I; Thorpe, , Charters, iii, 1905Google Scholar. 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 Handlin, Oscar, The Popular Sources of Political Authority (Cambridge, Mass. 1966) 190–201Google Scholar.

202. The Constitution of 1780 substituted address for salary as the safety-valve, providing, as to the latter, that: ‘Permanent and honorable salaries shall … be established by law for the Justices of the supreme judicial court’, (Part the Second, The Frame of Government, Ch. I, Art. XIII; Thorpe, Charters, iii, 1903; see also, Constitution of 1780, Part the First, A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, Art. XXIX, i; Thorpe, Charters, iii, 1893.) Nineteenth-century Massachusetts judges discovered, however, that a constitutional command is no guarantee of its implementation, that being constitutionally assured ‘permanent and honorable salaries’ did not put money in the bank. In May 1803, it was still necessary for the Governor to prod the assembly on permanent salaries. The House reply was, if nothing else, florid: ‘We are deeply & solemnly impressed with the importance of rendering the judicial department, as independent, as the lot of humanity, and the state of society, will admit. The evils which arise from temporary Grants, & which are encreasing from their repitition, will, unless speedily remedied, break down the essential branch of our Government, which is a barrier against unlimited disorder. With these sentiments, the House of Representatives, will occupy themselves on this subject, & they will endevour to place the impartial administration of Justice, on the Independent basis, established in the language, and by the Spirit of our Constitution.’ A&R 1802-3, 832-33; see ibid, at 915, (Ch. 125, March 1804) for the action taken, a three-year grant of $800/year.

203. That is, to punish a judge for judicial decision. Judicial salaries might be used as a weapon for other purposes, were indeed likely to be so used when plural office-holding was the rule. Hutchinson tells of an occasion on which the Lieutenant-Governor of the time signed a bill and then, on that same day, he and the other judges (most of them on the council) were granted their salaries: ‘This was afterwards alleged to be a compulsion of the lieutenant-governor, and such of the members of the council as were salary-men’. Hutchinson, , History, ii, 296Google Scholar.

204. So we might point to the conduct of the people's representatives in the 1760s and 1700s, see supra note 186. On the one hand, attack on judicial independence by the House is for a couple of reasons unsatisfactory as evidence: first, there is reason to doubt that House sentiment accurately mirrored that of the generality; town responses to Boston's call for action, e.g., reveal considerable feeling for judicial independence—there, if not in the House, we find suggested the quid of adequate permanent salaries in return for the quo of tenure of good behavior, see Brown, Politics 100, 111. Hutchinson indeed tells us that the Boston town meeting nearly proposed this, Mass. Arch., xxvii, 340-41 (Hutchinson to Bernard, 29 May 1772) (not sent). Then, popular attack on the judges took place in a period of crisis, and may therefore not constitute reliable evidence of even the feelings of those leading the attack; evaluation of evidence of this sort is particularly tricky. But there was a sizeable constituency for an elective judiciary in the constitution-writing years. See Morison, S.E., ‘The Struggle Over the Adoption of the Constitution of Massachusetts 1780’, Massachusetts Historical Society Proceedings, 1, (1916-1917) 353, 382Google Scholar; Handlin, supra note 201; Taylor, Robert J., ed., Massachusetts, Colony to Commonwealth, Documents on the Formation of its Constitution, 1775-1780, (Chapel Hill, 1961Google Scholar).

205. N.b: the same balance was achieved by rejection of an elective judiciary in 1780 and by its adoption in the 1630s. Popular election of judges is now and was in 1780 the antithesis of judicial independence, but in seventeenth-century Massachusetts otherwise. The people's right to elect their judges in the seventeenth century, and the power of elected officials from 1780 on to remove a judge by way of address were functionally identical: they were safety-valves.

206. I do not mean to make what is usually called a ‘mere semantic’ point here, but language has power—the use of the word ‘principle’ is a problem in scholarship as in life. ‘Principled’, of course, equals ‘good’—if the word is reserved for (worse, synonymous with) rigid exclusion of considerations of humanity, the dice are loaded: cf. ‘justice’ v. ‘mercy’, ‘law’ v. ‘equity’.

207. Which is to say that the people of Massachusetts have generally trusted their judges. Serious manifestation of mistrust, moreover, is associated with periods of fundamental upheaval. In the first years of the Province Charter, e.g., we see substantial (though certainly not undiluted) suspicion of the judges. Samuel Sewall complained that ‘Salaries are not spoken of; as if one sort of Men might live on the Aer. They are treated like a kind of useless, worthless folk’. Sewall, Diary, i, 368 (November 4; 1692). Sewall saw another sign of this disdain in the new law ‘for Justices and Ministers Marrying persons…. It seems they [the Deputies] count the respect of it too much, to be left longer with the Magistrate’. Ibid. (See A&R, i, 61 Ch. 25 (1692-1714)). This we would expect; not only was Massachusetts accustomed to electing its judges, but its first experience with appointive judges (under the Dominion of New England) had been a very bad one. See, e.g., Andros Tracts, i, 124, on John Palmer: ‘Could the people of N.E. who are zealous for English Liberties ever endure it long, that such a person as this should be made one of their Judges, that by squeezing of them, he might be able to pay his Debts’? See also ibid, at 72, and the lengthy list of charges against Andros and his ‘Tools’, in a number of cases judges, ibid, at 149. And then, of course, there was the period we have been concentrating on. Hutchinson said, (History iii, 69) that it was the Writs of Assistance matter that taught the people to distrust the judges and he was probably right; something certainly did.