The Revolutionary Writings of John Adams

6. THE INDEPENDENCE OF THE JUDICIARY

Write_051-100.indd 73 3/30/12 1:14 PM THE INDEPENDENCE OF THE jUDICIARY Write_051-100.indd 74 3/30/12 1:14 PM IN THE SUMMER OF 1772, Massachusetts Governor Thomas Hutchinson announced that he and all superior court judges would no longer need or accept the payment of their salaries from the Massachusetts legislature because the Crown would henceforth assume payment drawn from customs revenues. T he following December, spurred on by Boston radicals, the town of Cambridge condemned the attempt to make the judges' salaries payable by the royal exchequer as a violation of their ancient liberties and practices. At the Cambridge meeting, however, General William Brattle defended the crown's assumption ofthe judges' salaries and issued a challenge to all patriots and, more particularly, to John Adams by name, to debate him on the subject. In brief, Brattle argued that Massachusetts judges were de facto appointed for life, and therefore the assumption of their salaries by the Crown would little threaten their independence. In a dazzling and relentless display ofhistorical and legal research, Adams demonstrated in seven essays that the so-called "independence" of English judges was an eighteenth-century innovation that did not extend to the colonies . The tenure of colonial judges was, Adams argued, dependent on the pleasure of the Crown. The implications for Massachusetts were massive. A judiciary dependent on the Crown for appointment and salary would be entirely beholden to its patron. Adams wrote therefore to alert the people of Massachusetts to the danger of Brattle's myth and to the need for truly independent judiciary. 74 Write_051-100.indd 75 3/30/12 1:14 PM 6 THE INDEPENDENCE OF THE jUDICIARY; A CoNTROVERSY BETWEEN WILLIAM BRATTLE AND joHN ADAMS II january, I773 To THE PRINTERS GENERAL BRATTLE, by his rank, station, and character, is entitled to politeness and respect even when he condescends to harangue in town meeting or to write in a newspaper; but the same causes require that his sentiments, when erroneous and ofdangerous tendency, should be considered with entire freedom, and the examination be made as public as the error. He cannot, therefore, take offence at any gentleman for offering his thoughts to the public with decency and candor, though they may differ from his own. In this confidence I have presumed to publish a few observations which have occurred to me upon reading his narration of the proceedings of the late town meeting at Cambridge. It is not my intention to remark upon all things in that publication which I think exceptionable, bur only on a few which I think the most so. The General is pleased to say, "That no man in the province could say whether the salaries granted to the judges were durante beneplacito, or quamdiu bene se gesserint, as the judges ofEngland have their salaries granted them. I supposed the latter, though these words are not expressed, but necessarily implied." This is said upon the supposition that salaries are granted by the crown to the judges. Now it is not easy to conceive how the General or any man in the province could be at a loss to say, upon supposition that salaries are granted, whether they are granted in the one way or the other. If salaries are granted by the crown, they must be granted in such a manner as the crown has power to grant them. Now it is utterly denied that the crown has power to grant them in any other manner than durante beneplacito. 75 Write_051-100.indd 76 3/30/12 1:14 PM THE INDEPENDENCE oF THE juDICIARY The power of the crown to grant salaries to any judges in America is derived solely from the late act of parliament, and that gives no power to grant salaries for life or during good behavior. But not to enlarge upon this at present. The General proceeds,-"I was very far from thinking there was any necessity of having quamdiu bene se gesserint in their commissions; for they have their commissions now by that tenure as truly as if said words were in." It is the wish ofalmost all good men that this was good law. This country would be forever obliged to any gentleman who would prove this point from good authorities to the conviction of all concerned in the administration of government here and at home. But I must confess that my...