Note 6 — Chapter I

There is a notable instance in the case of the judicial tenure. By the British Constitution, the king is not only the fountain of justice, but by a legal fiction he administers it in person, as James I. once proposed to do; and on this theory of actual presence, he chooses his representative and removes him at pleasure. It follows that, when the king dies, the authority of his representative ceases. And such was the case until the reign of William III., when it was attempted to limit the king's prerogative, but with only partial success. By 12 and 13 Will. III. ch. 2 (1701), the judicial tenure was during good behavior instead of the king's pleasure. But George III., a most strenuous asserter of his prerogative, in 1761, soon after his accession, declared to the two Houses that he regarded the independence of the judges as one of the best securities of the rights and liberties of his subjects, and recommended that they should hold office, with settled and permanent salaries, during good behavior, notwithstanding the demise of the crown (House Journal, vol. xxviii. 1094); and this became the law by I Geo. III. ch. 23. Constitutionally the king sat in his provincial courts as well as in British courts, and his surrender of the prerogative ought to have extended to the former. That, however, was not the decision in 1763, when the New York Assembly remonstrated at the appointment of Chief Justice Prat, to hold during the king's pleasure, by whom his salary was paid. This caused great dissatisfaction in the colonies, and in Massachusetts especially, in 1773, when the judges were paid by the king. The matter was not free from practical difficulties. The king had rights to the revenue which colonial juries would not respect; and consequently in 1698 Parliament set up admiralty courts without juries. The king was also interested in the administration of the civil and criminal law; but unless the judges conducted themselves so as to suit the people, the representatives cut down their salaries,—that is, starved them into compliance with the popular will; consequently, the king thought it best not only to retain but to use his prerogative, with respect to the appointment, tenure, and pay of the provincial judges.