Chief Justice's Charge to the Grand Jury

1 Super. Ct. Jud. 301

• Court: Massachusetts Supreme Judicial Court
• Decided: August 15, 1768
• Status: Published

Opinion

GENTLEMEN of the Grand Jury: I have frequently in this Place freely given my Sentiments upon such Subject as I thought of the highest Importance to Society. The Nature of Government in general, and the particular Form of it, in this Province, I have pointed out to Grand Juries, in the Course of my Charges to them, at the Opening of the Courts. This, I am sensible, has been done in an impeded Manner: — but it was in the bell Manner I was capable of.

I observe, Gentlemen, many among you, who are well acquainted with the Nature of your Duty, and what belongs to ye Business of a Grand Jury: — I shall therefore content myself with one or two Observations on the Constitution of this Court.

The Constitution of this Court is set forth in your Charter; (¹) and by this Charter we are distinguished from most of the Provinces on the Continent. And, beyond Dispute, we are favoured more, in this Respect, than any People on the Continent.

The King is, in our Laws, called the Fountain of all Justice: — and, at Home, the Judges are appointed directly by the King, and hold their Commissions during their good Behaviour. The Commissions of the Judges of this Court are, it is true, during Pleasure (²); — but when we consider by whom our Judicatories are appointed, we shall find that we approach very near the Priviledge enjoyed by our Brethren, in England: At least, we are in a Middle between them, and some of our Brethren in America, whose Judicatories are ereited at Home, their Judges appointed from thence, and are removeable at Pleasure.

Our Judicatories are erected by the General Court;— thus the Crown and Province are, finally, the Fountain of Justice. The House of Representatives, in the Erection of a Court, are under no Controul; and we must presume they will ever constitute such a Court as is agreeable to the old Form of Government and the Tempers of the People. — This is certainly no small Priviledge. The Judges of this Court derive all their Power from the Government; they are appointed by the King’s Governour, with the Advice and Consent of ye Council, and are only removeable by the Governour and Council at Pleasure. — This, I think, amounts to near the Priviledge of ye People in England: — There, the Judges hold quamdiu, &c.; and here, they are displaced by the Governour, with the Consent of Council. Now, unless you can suppose a House of Representatives who would join in erecting Judicatories unknown to the Constitution, and investing them with Powers inconsistent with the Priviledges of the People — the Governour and Council appointing Judges unworthy their Station, and removing them for their Integrity — this People are as secure, and as firmly established in their Liberties, as they are in Great Britain. I know of no Difference. Certainly, if they are not up to Great Britain, they are the nearest that can be;—nearer than any other Government on the Continent. Sensible of this, in a Conversation, some Time ago, with one of the Judges from New York, he expressed his Surprise at our happy Circumstances, relative to the Constitution of our Courts and the Appointment and Removal of our Judges. There, they are appointed from Home, and removed by the Governour at Pleasure, and no one to call to Account. Certainly, Gentlemen, we cannot too highly value these Priviledges. It has, therefore, much excited my Wonder and Astonishment, when I have heard Men talk slightly of our Charter, as if it was not worth Anything at all. Such Persons must surely be very ignorant or very bad Men. Our Ancestors thought it, in their Day, a great Blessing; and what is there to alter its Nature since their Time? What I have only now mentioned is enough to make it an Object of our highest Regard.

This leads me to mention a Report which has lately prevailed, very much to my Surprise and Concern: — it has been given out, with a great Deal of Considence, and believed, as I learn, by many People, that I have received from Great Britain a Commission to be Chief Justice of this Court. The first Time I ever saw or heard of any such Thing, was feeing it suggested in our publick Prints. — For a Judge of this Court to endeavour to obtain a Commission of this Sort, so directly against our Charter, would be unpardonable: He would, in my Opinion, be guilty, not only of Insidelity to ye People, but of a plain Violation of his Oaths, by attempting an Innovation unknown to the Laws of the Land, and in Breach of ye Charter of Government. I have been employed now, I think it is upwards of thirty Years, in publick Affairs, and I can say, with ye utmost Sincerity, that I never attempted or countenanced, directly or indirectly, any Invasion of any one Priviledge the People are intituled to by the Royal Charter.

For the Reason I mentioned in the Opening of this Charge, I shall not, Gentlemen, be particular upon the Crown Matters.

You will, Gentlemen, diligently inquire of all Riots, unlawful Assemblies, slagrant Breaches of the Peace, Theft, Robberies, Burglaries, Murders, Treasons and Felonies of every Kind, — all inflammatory, seditious Libels upon Government or the Rulers in Government, which tend to destroy all civil Peace, and strike at the Root of all Order and Government; In short, Gentlemen, every Crime and Offence of every Denomination comes with Propriety before you. If, when you come together, you find no Offences presented, and none come within your own Observation and Knowledge, — in such Cafe, you will find no Bills. — But if, when you come together, you have Offences brought before you, or others which most certainly fall within your own Knowledge and Observation, — in such Cases, you must find Bills: But, Gentlemen, if you negledt your Duty, from any Cause or Motive whatever, you are not only criminal in the Sight of God, by a direct Violation of your Oaths, but, instead of being the Aiders and Supporters of Peace, Order and good Government, and rendering that Service to the Country which is your indispensable Duty, you do it the greatest Disservice in your Power, by introducing the worst of civil Evils.

My Absence from the Court, and other Engagements, during this Term, prevented my taking any Minutes of Arguments at the Bar.

1 (1) Anc. Chart. 31, 2.

2 (2) In 1772 salaries were granted by the Crown to the Justices of the Superior Court, and they were forbidden to receive their usual compensation from the Legislature of the Province. This excited the greatest alarm and indignation among the people, as an act which completed the dependence of the Judiciary on the Crown. Brigadier-General Brattle, senior member of the Council, in behalf of the government party, published an article in the “ Massachusetts Gazette,” Jan. 4, 1773, in which he attempted to prove that the Judges’ commissions were not, (as Hutchinson here acknowledges,) during pleasure, but for life. He was most conclusively answered by John Adams. 2 John Adams’s Works, 316. 3 lb. 511.