March 1774

The Charter of this Government is as & much Pacta conventa,1 as Magna Charta & it can no more be revoked or infracted by the King, than that can.

The Govr. with Advice & Consent of Council appoint officers & in the nature of that Power must be involved the Idea of a power of removal. Otherwise let an officer behave never so bad he could not be removed & his Majestys Service & the Good of the people must Sustain great damages, as it is Supposed no officer would be wantonly removed without previous enquiry into the Reasons of Removal, that enquiry involves in it the Idea of Reasoning & hearing the other side & it must issue in a Judgment or determination that he ought or ought not to be Removed, which Enquiry & determination is in essence a Court, the Original Appointment & Authority of wch. is necessarily included in the Power of Appointment of Officers, & to this purpose it is Judicial, & for this purpose they have Cognizance of Crimes & Misdemeanors charged upon all Officers as it is on the truth of such a charge that the officer is to be removed, the Jurisdiction of these crimes being for a particular purpose, may not be said to be concurrant with the courts of Justice in the very punishments to be inflicted in Removal & if the causes the Removal, by means of these crimes may be necessary, & the Court which or Power which has Cognizance of his Office may & ought to enquire into it as a necessary Guide to their Conduct, tho perhaps other Judicatories may take Cognizance of such crimes & misdemeanors & punish them as Breaches of the Laws of the Land, A B, & it may ought moreover to be considered that there may be Crimes & misdemeanors of such a nature appertaining to the Execution of an Office which may disqualify the officer & render him liable to censure from the? power wch. appoints him & perhaps even to a Removal which may yet not be of such a nature as to subject the officer to the punishments by the Ordinary Courts of Justice.

And it is further to be observed, that in all Communitys there must be a Supreme Court who have Cognizance of all Crimes & misdemeanors of a public nature, where Officers may be tryed respecting their Conduct529in office, as it would be to no purpose to try an officer in a Court of which he is member & perhaps the first office; there never was an Instance known in England of a Judge of either of the Courts at Westminster being tryed for high crimes & misdemeanors before either of those Courts, but many are the Instances of their being impeached before the Lords.

A. but it is not to be expected not consistent with the dignity of such a Court, that they should wait the event of a Tryal by a Jury, wch. may never take place, before they proceed to enquire into the Reasons & necessity of Such a Removal B. if the Judges hold this officer durante bene pla2 quam. bene gess.3 it unavoidably follows there must be some where a Court Power to determine such good Behaviour wch. Power as it must be exacted by enquiry, is necessarily a Judiciary Court C: Judge O. has declared to to the House, that his Majestys Grant being made so long as he continues in the office Renders his Commison is a tenure of it quamdiu 4 & if so his Behaviour & if so wch. is the Tenure of his Comssn. Grant must be Subject to the examination of some Court, & it must be the Court wch. has power to Repeal the Grant to say that his office being quamdiu by virtue of the Kings Grant & therefore the Good Behaviour which is the source of his Grant must be such Behaviour as his Majesty & his Ministers shall esteem good i:e such as they direct which is the very Biass we complain of

and as the End of that Enquiry into the Good Behaviour is to judge whether the office be determined or not, it must be made by some Court who have jurisdiction over the Officer & power of Removal. If it be said that the House of Lords hear & judge of Crimes & Misdeameanors charged on the Judges tho' they have no power of Removal, to this it may be answered, that the King holds no Court in person but enquires into all matters by his Servants, that those crimes & misdemeanors which peculiarly relate to the Removal of a Judge are never enquired into by the Kings Courts in Westminster, that the House of Lords are vested with the Jurisdiction in such cases & upon Cause of Removal certify the same to the King as address his Majesty for that purpose by the charter of this province, the Govor. wth. adv. & cons: of the Council appoint officers & they have the power of Removal & as they may & do sit as a Court for certain purposes, to them belongs the Enquiry of the Truth of Such Charge.

Partial dft. on two sheets (the final "Answer to his Excellency's Message" regarding the power to remove civil officers is printed below); endorsed on the first sheet: "On the530 Power of Removal, Judge Oliver, 1773"; In another hand: "Bills and papers orderd. to ly May 1773"; Mr. Paine Coll. Bowers and Maj Hawley to bring in a bill to limit the time for Creditors to bring in their Claims on the Estates of persons decd." The second sheet is endorsed: "Draft of Address of H. Reps. to Gov: respecting Impeacht. of Peter Oliver: C.J." A gap in the text indicates that there was perhaps an interim sheet which is now missing.

Sections A, B, and C on the first sheet were lettered to indicate inclusion within the text. Since the intended location of section C was not indicated, all sections have been left as originally positioned.

On the verso of the second sheet are numbered arguments from Blackstone:

1 Black. 244. for as the King cannot misuse his Power without the Advice of his Councellours, and Assistance of wicked Ministers, these men may be examined and punished. The Constitution has therefore provided, by means of Indictments and Parliamentary Impeachments, that no man shal dare to assist the Crown in Contradiction to the Laws of the Land &c.

268. 1 Geo.III.ch.23 an Act for Independancy of the Judges; made on this Declaration of his Majesty, "he looked on the Independancy and uprightness of the Judges, as essential to the impartial Administration of Justice as one of the best Securitys of the Rights and Libertys of his Subjects:" And as most conducive to the honour of the Crown.

272. in 13 Hen 4. a new office being created by the Kings Letters patents for measuring cloths, with a new fee for the same, the Letters patent were, on account of the new fee, revoked and declared Void in Parliament.

269. Were it (the Judicial Power) joined with the executive, this Union might soon be an over ballance for the legislative, for which Reason by the Statue of 16 Car. 1.c.10. which Abolished the Court of Star Chamber, effectual Care is taken to remove all judicial power out of the hands of the Kings Privy Council; who as then was evident, from recent Instances, might soon be inclined to pronounce that for Law which was most agreable to the Prince or his Officers. Nothing therefore is more remainder of text missing.

1.

Covenants agreed upon.

2.

Durante bene placito. During good behavior.

3.

Quamdiu se bene gesserit. During good behavior.

4.

As long as.