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On the Independence of the Judges: 11 January – 22 February 1773

From: Adams Papers | Papers of John Adams | Volume 1 | On the Independence of the Judges: 11 January – 22 February 1773

It has been said already, that the common law of England has not determined the judges to have an estate for life in their offices provided they behaved well. The authorities of Lord Coke and Lord Holt have been produced, relative to the judges of the King’s bench. And indeed authorities, still more ancient than Coke might have been adduced. For example, the learned Chancellor Fortescue, in...
Another observation which occurred to me upon reading General Brattle’s first publication, was upon these words, “That by the charter and common law of England, there is no necessity of having any commission at all; a nomination and appointment are the words of the charter, a commission for them not so much as mentioned in it. Their commission is only declarative of their nomination and...
Two or three anecdotes, were omitted in my last, for want of room, which may be here inserted, in order to shew that General Brattle’s “rule of the common law of England” originated in the reign of King Charles the first. I say originated, because the example of Hubert de Burgo, is so ancient and so uncertain, that it is even doubted by Baron Gilbert, whether he was ever chief justiciary or...
In all General Brattle’s researches hitherto, aided and assisted as he has been by mine, we have not been able to discover, either that the judges at common law had their commissions quam diu se bene gesserint, or for life, or that the crown had authority to grant them in that manner. Let us now examine and see, whether estates for life, determinable only on misbehaviour or the demise of the...
GENERAL BRATTLE, by his rank, station and character, is intituled to politeness and respect, even when he condescends to harrangue in town-meeting, or to write in a news-paper: But the same causes require that his sentiments when erroneous and of dangerous tendency, should be considered, with entire freedom, and the examination be made as public, as the error. He cannot therefore take offence...
One Thing at one Time . De Witt. The question is, in the present state of the controversy, according to my apprehension of it, whether, by the common law of England, the judges of the King’s bench and common bench, had estates for life, in their offices, determinable on misbehaviour, and determinable also on the demise of the crown? General Brattle still thinks they had, I, cannot yet find...
We are now upon the commissions of our own Judges, and we ought to examine well the tenure by which they are holden. It may be depended on, that all the commissions of Judges throughout America, are without the words quam diu se bene gesserint in them; and consequently, that this horrid fragment of the feudal despotism, hangs over the heads of the best of them to this hour. If this is the...
As the lines of mens minds are as various as the features of their faces, they can no more upon every subject think alike than they can look alike, and yet both be equally honest; consequently they ought respectively to be treated with good manners, let their stations in life be what they may, by all excepting those who think they have infallibility on their side. For the publick peace and...
9Editorial Note (Adams Papers)
The issue addressed by John Adams and William Brattle in this exchange in the pages of the Boston Gazette was a narrow one: the degree to which English judges had historically been dependent upon the Crown and its ministers. But this question arose as part of a broader debate in contemporary Massachusetts politics: the provision for Bay Colony judges in the royal civil list. The General Court...