Ex Parte Bouldin, 6 Leigh 639

PARKER, J., delivered the opinion of the court. The court has considered, with all the attention due to the subject, the motion made on a former day of the term, for a rule to shew cause why a mandamus should not be directed to the judge of the circuit superiour court of law and chancery of Petersburg, to restore Louis C. Bouldin to the office of attorney for the commonwealth in that court, from which he was lately removed.

We are fully sensible of the peculiar delicacy of the question submitted, involving, as it does, the extent of our own authority under the law conferring the power of appointment, and that we incur some responsibility by deciding, without further argument, that prosecutors for the commonwealth in each county, hold their offices at the pleasure of their respective courts; but such being clearly our opinions, notwithstanding the able ex parte argument we have heard, we think it better for all parties, and wiser in itself, to state, in limine, the result of our deliberations, and to put an end to this unpleasant case here, by refusing to grant the rule asked for, than to continue and increase the excitement naturally growing out of such a controversy, by granting the rule returnable to the next term, with the moral certainty of being then compelled to discharge it.

If we felt ourselves at liberty, in the adjudication of a mere question of law, to rely with any degree of confidence on considerations of policy and expediency, to which some allusions were made in the argument, we do not think they would be found favourable to the claim *bow advanced. We are not aware that any evil or inconvenience has ensued in consequence of the general, and until now, we may say, the universal, impression prevailing in Virginia, that the tenure of the prosecutor’s office, both in the county and superiour courts, is at the pleasure of those courts respectively.

No difficulty has hitherto been experienced in obtaining the services of able and efficient prosecutors; nor is it believed, that any one has ever been prevented from accepting' the appointment, by the reflection that he might be deprived of it in a summarj' way. Judges, acting under a high responsibility, are rather inclined to take the advice petitioner’s counsel, and to “bear and forbear, ” than to do what is always a painful and invidious act; so that, practically, the office had been usually held during good behaviour, and sometimes longer.

Yet the impression prevailing that the courts might determine it at pleasure, has, without doubt, exerted a salutary influence over the incumbents, and induced them to pay a closer attention to their duties, than they might otherwise have done. We cannot think that this conviction has at all interfered with the administration of the criminal law, or is likely to produce that subserviency to the wishes of the judge, or those other compliances with his humours or opinions, to which allusion has been made.

The relations which exist, and which must always exist between the bench and the bar, the character of the latter for firmness and independence, the little comparative value of the office, and above all, the publicity of all ■ proceedings in a court of justice, are sufficient guarantees against all such undue influences.

On the other hand, if the tenure of the office in question, were made one during life, — if the officer were placed beyond the control of the court, which alone is the constant witness of the manner in which he performs his duties, and the best judge of his qualifications, he would be rendered in effect, wholly irresponsible. *To expect his removal by a formal impeachment, would, under any circumstances, be entirely out of the question; and no means of removing him by a joint vote of the general assembly has been devised, under our constitution.

If resort is to be had to an information or indictment, the court must, in general, institute it, and must appoint some other person to act, at least temporarily, for the commonwealth; and thus exercise the very power, which is now denied to it. This other person must be a member of the bar; and we know how difficult, nay how impossible it would be, to induce one of the fraternity to prosecute another, except in flagrant cases of moral delinquency.

Then a jury would have to pass upon the accusation, whatever it might be, and to determine the fitness, perhaps, of the individual for an office, of whose duties they could have but a very inadequate conception. if he was popular, however undeserving, he might be acquitted; if obnoxious either as a man or a politician, however faithful as an officer, he might be condemned.

The mode of trial too would be calculated to enlist partizans, excite the feelings, produce open collisions between the bench and the bar, especially in the county courts, and perhaps, divide the community where it was depending, into fractions that would not readily subside.

And if these difficulties should be surmounted by a more active influence of the judge or justices, that it would be descent to exercise, or by any other means, the modes of prosecution referred to, would afford a | remedy only in cases of misbehaviour in office, and would leave the cases that might frequently occur of loss of character, (and, of course, of usefulness in such a station) or of incapacity from disease or otherwise, wholly without redress.

Looking to these consequences, we are fully persuaded, that to deprive the courts (if they now possess it) of the power to supervise the conduct of those officers, and to take away their power of removal, *would be to place them beyond all real responsibility, and to confer officers for life where the condition of good behaviour would be merely illusory. Therefore, we think, if the law has not established such a tenure of office, it would neither be consistent with the policy of the state, as manifested in other instances, nor with a wise expediency, now to introduce it.

Of course, we attach no weight to the arguments based upon policy or expediency, and therefore forbear to press this part of the subject further. An attempt was made by the able counsel advocating this rule, to compare the case of a grant of an office, to a grant of land, where the grantee at the common law, took an estate for life, unless a smaller estate was limited. We conceive there is no just analogy between the grant of property intended for the sole use and benefit of the grantee, and the grant of an office for the public use and benefit.

The cases are too dissimilar in their objects to authorize us to predicate of the one, what is true in regard to the other. A public office is created for the benefit of the people; and the estate held in it by the grantee, ought to depend, exclusively, upon considerations of public utility. The private advantage of the grantee influences the construction, as to the duration of his estate in property, and the rule governing it, is founded on private considerations, and is merely arbitrary.

There are many obvious reasons in favour of the ability and independence of some offices, and of the greater responsibility of others, which, as we conceive, are entirely independent of those applicable to grants of property. Thus, there is a marked distinction in this respect, between judicial offices, and such as are merely ministerial, although connected with the administration of justice, which analogies, derived from grants of property, can neither establish nor illustrate.

It would have been more pertinent to this inquiry, if the counsel could have maintained the proposition, that *at common law, all such offices as the one in question, were held during good be-haviour. In this, we think he has not succeeded. There were, doubtless, many antient offices in England, connected with the courts, and in the gift of the chief justices or other judges, which were held during good behaviour because usage and custom had established that tenure. To such, chief justice Hobart alluded in Colt & Glover v.

Bishop of Coventry, Hob. 153, where he said — “I cannot grant the offices of my gift as chief justice, for less time than for life.” This is apparent from the observations of chief justice Holt on that saying. In his judgment in the case of Harcourt v. Fox, 1 Show. 531, he refers to this remark of Hobart, and observes, “that all the chief justice had to do, was to point out the person that should have the office, and the custom settled his estate in it.” The case of Harcourt v. Fox was one in which the custom had not settled the estate, for the clerk of the peace there, had been created by act of parliament.

Therefore, the court did not rely on the principle, that in an office so created, the grantee took an absolute estate for life, unless a less estate 'was given, although that principle would have been decisive of the question: but the judges, and among others Holt himself, were compelled to rely on the words of the statute, which declared that the clerk of the peace was to execute the duties of the office, and to take and receive the fees thereof, “for so long a time only as he shall well demean himself in the said office.” The question was one of construction, and the judges endeavoured to prove, that as the officers alluded to by Hobart were in by custom, during good behaviour, so in that case, the clerk of the peace was in for the same estate, by the act of parliament.

In the argument of the case, reported 4 Mod. 167-9; 12 Mod. 13, as well as in Shower 428, the counsel for the plaintiff, arguendo, laid down the proposition which has been cited from 5 Bac.

Abr. *Offices & Officers, H. p. 200, “that by the common law all officers of courts of justice were in for their lives, only removable for misbehaviour.” The court, in its judgment, did not affirm that proposition as a general one; and the counsel for the other side answered, “that this was the rule as to many antient offices, but not all; that the office of chancellor, for example, could not be granted for life, because it had never been so granted; that custom and nothing else prevails in all these cases.” There are, moreover, other authorities besides those cited by the counsel for the applicant, and admitted by him to lean against the side he espoused, which prove that the courts, at a very early period, exercised the power of removal to a considerable extent.

Among these, is the case of Vaux v. Jefferen, 2 Dyer 114, b. where it was determined, that the court of common pleas might, ore tenus, discharge a filazer (a very antient office of that court) although no record was entered at the rolls, and he was never called on to answer; the office being considered as one held at the pleasure of the court. So in Rex v. Evans, 4 Mod. 30, it is said, that if the king grants an office in any of the courts at Westminster, the court may remove the officer for insufficiency, and they are the proper judges of his ability.

And in another case in 2 Dyer 150b, the office of chief prothon-otary being vacant, the chief justice appointed another, and then revoked the gift, and conferred the office on a third person. The other judges did not approve of this latter appointment, and the only question was, whether they (the majority of the court) could not control the chief justice; whereupon a precedent was shewn, proving that even in grants of offices by the crown in the courts at Westminster, those courts might refuse to permit unfit persons to be imposed upon them.

The current of authorities satisfies us, that there was never any general rule, giving estates for life to officers of courts of justice, but that they were frequently removed *at the pleasure of the courts, for unfitness or insufficiency. The office of attorney general in England, like that of lord chancellor, was always at tne pleasure of the king — so was that of the solicitor general, and of every other prosecuting for the king. They were considered as the servants or agents of the kin’g, to perform, in his behalf, particular duties.

These duties did not, in general, partake, in any degree, of the nature of judicial duties, although connected with the administration of justice, but were, to most purposes, purely ministerial, and the offices ministerial offices. Now, in respect to such offices, not an-tient ones whose tenure had been fixed by immemorial custom, we are much inclined to think, that the doctrine has been, at all times, such as it is affirmed to be, by the supreme court of Pennsylvania, in the case of Reynolds v. Bussier, 5 Serg. & Rawle 451.

In that case, a question arose as to the power of the governor to remove an officer, appointed under the constitution of that state, which conferred on him alone the power to appoint, but was silent as to removal, or as to the tenure of the office. The court decided, that the power of removal was an incident to the appointing power; observing, that “as to the tenure of ministerial offices in general, there can be no doubt, that it is during pleasure, unless the law by which the office is established, order it otherwise.” The court goes on to say, that this was not a new question.

It engaged the attention of the congress of the U. States, soon after the formation of the federal constitution, by which the president nominates and appoints by and with the advice and consent of the senate. There was some plausibility in the argument, that the tenure of offices should be at the pleasure of the president and senate, because the president could not appoint without the consent of the senate, and the constitution is silent as to the power of removal.

Yet it was determined, 'K'with general approbation, that the pleasure of the president was the tenure of office.” The supreme court of Pennsylvania there alludes to the decision of congress in the year 1789, when the executive offices were established, after that famous debate, in which our own lamented Madison — clarum et ven-erabile nomen- — took so distinguished a

part in maintaining the power of the president. Whether the doctrine then established, was founded on sound constitutional principles, it is not for us to say, and we do not mean to be understood as affirming or denying its correctness. We rely on the fact, that it was then established, “with general approbation,” and we believe no serious question has ever been raised since, except in the case of Reynolds v. Bussier, just cited, that the power which appoints an officer, has not authority to remove him, if the constitution or law establishing the office, does not order it otherwise.

Be this, however, as it may, one thing, we presume, cannot be denied; namely, that if an office is created, and its tenure is not fixed, we may look to the course of legislation on the subject, to determine whether it was intended to be one for life, or during pleasure; and that, if from that survey, or from the objects and provisions of the law itself, from the known practice under it, or from contemporary exposition, we can gather the intention of the legislature or other body creating it, we ought to give it effect. Chief justice Holt, in Harcourt v.

Fox, already referred to, declared, that he was more inclined to the opinion he gave, “because he knew the temper and inclination of the parliament when the act was made.” And in the very late case of Smyth v. Latham, 9 Bingh. 692, 23 Eng. C. L.

R. 424, where it was decided, that the office of paymaster of exchequer bills was held at the pleasure of the commissioners of the treasury who appointed him, the court of king’s bench said, “that this not being an antient common law office, of which the duration and appointment were governed *by antient usage, the question of its duration and tenure, is no other than an inquiry into the meaning and intention of the statute creating it.” Such an inquiry with reference to the duration and tenure of the office of prosecutor for the commonwealth in Virginia, must, we think, result in the conviction, that the legislature never intended to give a freehold in it.

We have already said, that the attorney and solicitor general, in England, were, at all times, appointed and removed at the pleasure of the crown. They held, .and still hold, their offices during pleasure, whilst the tenure of judicial office has been placed on a more stable footing. Prosecutions at the distant assizes are frequently conducted by king’s counsel appointed for the occasion, and designated, perhaps, by the attorney general. In this country, before the revolution, the attorney general for the colony, held his'office, mediately or directly from the king, and at his pleasure.

The king’s attorneys or prosecutors in the county courts, we have every reason to believe, were recommended by those courts, but appointed by the attorney general, and by him removable at pleasure, being considered merely as his deputies. This state of things continued after the revolution, and after the constitution of 1776 had fixed the tenure of the attorney general’s office as one during good behaviour.

Our laws are, indeed, silent on the subject; but we are informed by a gentleman of this ■city, that about the year 1787, he was •nominated by the county court of Charles ‘City as a fit person to fill the office of attorney for that county; and soon afterwards ■received a letter from the then attorney general, authorizing him to act in that capacity. And we learn from other sources, that such was the practice in similar cases.

When the district courts were established in 1788, the law made it the duty of the attorney general to appoint persons to prosecute “in such of the courts as he' could not attend himself;” Old Rev-Code, ch. 67, 'i 42; Pleasants’s. *edi. 83, thus placing the prosecutors in those courts, on the same footing with the prosecutors in the county courts. It was conceded in the argument, that, if these officers were the deputies of the attorney general, they were removable at his pleasure.

We think this is sufficiently apparent from the terms of the statute, authorizing the appointment 1 ‘in such courts as he could not attend himself.”" But it appears more conclusively in the law ascertaining their salaries, which gave to the attorney general a certain salary, and “to each of his deputies in the district courts 75 dollars per annum.” Id. ch. 57, p. 56. His deputies in the county courts, were paid in a different manner.

Such was the situation of these officers, holding at the pleasure of the attorney general and as his deputies, until January 1800, when it was enacted, “that attorneys to prosecute in behalf of the commonwealth shall hereafter be appointed in the district and all other inferiour courts of this commonwealth, by an order of such courts respectively.” Id. ch. 240, p. 398. This statute only changed the mode of appointment. It said nothing about the tenure of the office.

But if the tenure had therefore been at the pleasure of the appointing power, and never was considered, as one for life or during good behaviour, we think the inference irresistible, that no-change was intended in this respect, or it would have been expressed. The power to appoint, with all its incidents, was conferred as fully as it existed before; among which the power to remove at pleasure was one.

In 1808, when the circuit courts of law were established in each county, it was declared, that the judge of each of those courts should appoint a prosecutor for the commonwealth, who should be allowed five dollars per. day for every day he might be engaged in the public service, to be certified by the judge, provided the sum should not exceed 50 dollars per annum. Under this statute, it was extremely difficult to induce any one to ^prosecute when important cases were depending; and we believe the judges were frequently obliged to engage the services of gentlemen for short periods, by temporary appointments.

They changed them at their pleasure; and under that law it was necessary, that they should do so, as it sometimes happened that one well enough qualified to conduct ordinary prosecutions, would be unfit or unwilling to conduct those of a more important character. We - do not know, that any changes or removals were made in the circuit courts against the consent of the appointee; but we believe the power never was doubted.

And in the parallel case in the county courts, several of us well recollect various instances of the power of removal being exerted, without assigning reasons or hearing the party, and without the right being questioned or denied. In 1831, when the present circuit superiour courts of law and chancery were organized in each county, the legislature re-enacted the provision giving the courts the power to appoint their prosecutor.

At this time, that body could not have been ignorant of the general impression which, it is admitted, had for a long time prevailed, respecting the power of removal, and that such power had been actually exerted by at least some of the county courts. Public attention too, had just been called to the tenure ■of other offices; yet no attempt was made to restrain the power, understood to exist, and to have been exercised, in relation to the prosecutor for the commonwealth in the respective courts.

The tenure of the office -of attorney general had just been changed from one during good behaviour, to one at the pleasure of the appointing power. The same thing had occurred in the case of the clerks of the courts, who are placed by the new constitution under the power of the judges, and are removable at their pleasure. The judges themselves were no longer allowed to hold by the tenure of good behaviour alons. *The “temper and inclination” of the convention and legislature were obviously adverse to the freehold tenure in office.

Under these circumstances, it is impossible to believe, that it could have been intended to place these more important ■officers at the pleasure of the appointing power, under one modification or another, and to give to attorneys for the commonwealth, commissioners of the courts, commissioners to take depositions, and various other inferiour offices connected with the administration of justice, freehold estates.

Por it is to be observed, that any arguments satisfying the mind that attorneys for the commonwealth hold during good behaviour, removable only by impeachment, indictment or information, equally prove, that the other officers mentioned, as well as a host of others appointed by the executive, under the direction of various laws making no provision for their removal, hold by the same tenure.

The counsel who argued this case, strongly urged, that as the attorney general under the old constitution of Virginia, held his office during good behaviour, it was fair to infer that officers performing the same duties in the district and county courts, held by a similar tenure. We do not admit the correctness of such an inference; and we have endeavoured to shew that the fact was otherwise.

But if the argument were a sound one, it would surely be much stronger to prove, that when the tenure of that high office was changed by the new constitution to one at the pleasure of the appointing power, it was no longer the intention of the legislature, that these inferiour officers should hold appointments for life, determinable only by conviction of misbehaviour, particularly when by a change of the law, their salary or compensation was, to a certain extent, placed at the discretion of the court.

The discretion which was confided in, to make them an allowance for their services, might be equally trusted in the matter of removal. *TTpon the whole, we cannot doubt the power of the courts to remove their prosecutors at pleasure, subject to the same responsibility for its abuse, as exists in other cases. And we are, for these reasons, unanimously of opinion, that the rule asked for be denied.

Judge Thompson requests me to say, that he does not wish to be considered as sitting in this case, not having heard the argument, but that his extrajudicial opinion, as far as he has examined the case in conference, is in accordance ' with that just delivered.