This is my fourth post in a series responding to Professor Jed Shugerman’s criticisms of originalist scholarship on Blackstone and removal power (here are part 1, part 2 and part 3). This post addresses what Blackstone said about removal of subordinate magistrates in vol. 1, ch. 9 of the Commentaries. Again, the principal point of debate here is the extent to which Blackstone’s work describes a system in which the king had removal power over executive officers.
As discussed in my previous post, Blackstone opens Chapter 9 with the observation that he will not write about “his majesty’s great officers of state” because “I do not know that they are in that capacity in any considerable degree the object of our laws” (p. 327). Chapter 9 then turns to a detailed examination of the rights and duties of six types of local officers: sheriffs, coroners, justices of the peace, constables, surveyors of highways, and keepers of the poor. He mentions removal only as to the first four (and the last two do not seem to exercise material executive powers).
As to justices of the peace, Blackstone says directly that
As the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, 1. By the demise of the crown, that is, in six months after. 2. By express writ under the great seal, discharging any particular person from being any longer justice. 3. By superseding the commission by writ of supersedeas … 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sheriff or coroner… (pp. 341-342.)
This “during his pleasure” tenure may seem odd because Blackstone wrote earlier that judges had had tenure during good behavior pursuant to the Act of Settlement (see my second post in this series). But justice of the peace was a distinct officer that was executive as well as judicial and was not covered by the Act of Settlement (which applied only to “judges of the superior courts”):
His commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals…. (p. 342.)
Thus a justice of the peace was a substantial local officer without removal protection. Moreover, Blackstone’s description suggests a general baseline principal governing removals, namely that for an office “conferred by the king,” the officeholder can be discharged by the king (a) issuing an “express writ under the great seal” or (b) issuing a new commission to a different person “which virtually, though silently, discharges” the former officeholder. Both points strongly indicate that the crown had removal power over principal executive officers, at least absent any specific exceptions.
As to sheriffs, Blackstone described them as “do[ing] all the king’s business in the county” (p. 328). They were appointed by a process (not fully explained) in which “the judges, and certain other great officers … nominate three persons to the king, who afterwards appoints one of them to be sheriff,” although Blackstone acknowledged some debate about whether in some circumstances they might be appointed by the king alone (pp. 329-331). As to removals, he wrote:
Sheriffs, by virtue of several old statutes, are to continue in their offices no longer than one year; and yet it hath been said that a sheriff may be appointed durante bene placito, or during the king’s pleasure; and so is the form of the royal writ. Therefore, until a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king, in which case it was usual for the successor to send a new writ to the old sheriff. (p. 331.)
This passage is somewhat opaque, for the second sentence seems to contradict the first (especially given how the tenure of justices of the peace is described). The best reading is probably that sheriffs were removeable by the king’s writ (as with justices of the peace), in keeping with their “during pleasure” appointment, and that the second quoted sentence above is incomplete in its description of how the officer’s tenure might be “determined” [i.e., ended].
The third type of local office, coroner, Blackstone expressly describes as “chosen by all the freeholders in the county court” (p. 335) and
chosen for life: but he may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king’s writ de coronatore exonerando, for a cause to be therein assigned, as that he is engaged in other business, incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it. And by statute 25 Geo II c.29, extortion, neglect, or misbehavior, are also made causes of removal. (p. 337).
Thus coroners had a form of good-cause tenure protection. But Blackstone also described their office as “either judicial or ministerial; but principally judicial” – mainly, “enquiring (when any person is slain or dies suddenly) concerning the manner of death.” And they were not appointed by the king. So their offices seem best understood as not materially part of the king’s executive power.
Finally, as to constables, “the general duty of all constables, both high and petty, as well as of the other officers, is to keep the king’s peace in their several districts; and to that purpose the are armed with very large powers, of arresting, and imprisoning, or breaking open houses, and the like…” (p. 344). As to tenure, Blackstone says only that “high constables” are
appointed at the court leet of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removeable by the same authority that appoints them.
This description suggests, without saying directly, that constables do not serve at the king’s pleasure – an interesting point given that they are described as having what appears to be considerable local executive power.
What all this means for local executive power under the English system may be subject to reasonable debate. There is surely some basis for saying that executive power at the subordinate local level (as described by Blackstone) was not entirely unified in the king, but rather was to some extent exercised by local authorities such as coroners and (probably) constables who enjoyed some tenure protection. Nonetheless, it also seems a fair conclusion that much – perhaps most – of the executive power at the subordinate local level (as described by Blackstone) was unified in the king, being exercised by local authorities such as justices of the peace and (probably) sheriffs who served at the king’s pleasure.
More importantly, this discussion further suggests that principal, national-level executive officers served at the king’s pleasure. Even the principal local officers had at-pleasure tenure, and the ones that did not were special cases who either did not have extensive executive power (coroners) and/or had longstanding traditional procedures for selection (coroners and constables). And Blackstone went into the details of the law of local offices after saying he would not discuss principal executive officers because they were not (so far as he knew) “the object of our laws.” The most evident conclusion from all this is that the laws did not provide principal executive officers with tenure protection.
This concludes my survey of Blackstone on removal power. Without engaging in a repetitive restatement of the analysis, in summary I think Blackstone’s account is best read to indicate a unified executive power in the king that included removal power over principal executive officers (but not judges) and most (though probably not all) local executive officers. Thus while I thank Professor Shugerman for engaging in the debate and prompting this reassessment, I find his objections to the originalist account of Blackstone on removal power to be unpersuasive.
Several caveats should be noted.
First, Blackstone was not always accurate in his descriptions of English law, so I’m not making any claims here about what the English law of removal actually was; the point is instead how a careful reader of Blackstone would understand that law. Second, Blackstone was in any event only seeking to describe what English law was at the time, not what it necessarily must be; as an advocate of parliamentary supremacy, Blackstone surely believed that the constitutional structure could be changed by parliament (as parliament had done with respect to judicial tenure in the Act of Settlement). Third, the Constitution did not adopt all of the English system of executive power as described by Blackstone – most obviously, it rejected or limited executive power over appointments and key foreign affairs matters. The limited point here is only how the founding generation in America likely understood the English system as described by Blackstone.
But as to that limited point, I think the foregoing analysis largely confirms what prior executive scholarship has said about it, and refutes the strongly worded objections Professor Shugerman has raised.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
- Using Force in Ukraine Requires Congressional Approval - March 2, 2022
- The Vice President’s Powers and the Electoral Count Act - February 13, 2022
- The Tie-Breaking Vice-President (Revisited) - February 8, 2022