John Adams : Revolutionary Writings

Rule of Law Replaces Rule of Force and Revenge

Rule of law distinguishes civilized people from barbarous ones:

“The man who can run with most celerity, or send the arrow with the greatest force, is the best qualified to procure a subsistence…and any action which may be taken for an insult, will be considered as a pretension to such superiority; it will raise resentment in proportion, and shame and grief will prompt the savage to claim satisfaction or to take revenge. To request the interposition of a third person to arbitrate between the contending parties, would be considered as an implicit acknowledgement of deficiency…Each one, then must be his own avenger. The offended parties must fall to fighting…Indeed, nature has implanted in the human heart a disposition to resent an injury when offered; and this disposition is so strong, that even the horse trading by accident on a gouty toe, or a brickbat falling on the shoulders…and we feel an inclination to kill the horse and to break the brickbat…From this source arises the ardent desire in men to judge for themselves, when, and to what degree they are injured, and to carve out their own remedies for themselves. From the same source arises that obstinate disposition in barbarous nations to continue barbarous…For the great distinction between savage nations and polite ones, lies in this – that among the former every individual is his own judge and his own executioner, but among the latter all pretensions to judgment and punishment are resigned to tribunals erected by the public…”

On Private Revenge #1; August 1, 1763; p 4.

Revenge to restore honor did not come from the military:

“It is not found in one gentleman of sense and breeding in the whole service. All of this character know that the common law of England is superior to all other laws, martial or common…They know, too that civil officers in England hold a great superiority to military officers, and that a frightful despotism would be the speedy consequences of the least alteration in these particulars. And, knowing that, these gentleman…would feel the utmost indignation at the doctrine which should make the civil power give place to the military, which should make a respect to their superior officers destroy or diminish their obedience to civil magistrates, or which should give any man a right in conscience…to neglect the institutions of the public, and such his own remedy for wrongs and injuries of any kind.”

On Private Revenge #1; August 1, 1763; p 5 – 6.

To force into submission violates all rule of laws:

“When it is said, that if we are not subject to the supreme authority of Parliament, Great Britain will make us so, all other laws and obligations are given up, and recourse is had to the ratio ultima of Louis X1V and the Suprema lex of the king of Sardinia,-to the law of brickbats and cannon balls, which can be answered only by brickbats and balls.”

Novanglus: Or, A History Of The Dispute With America, From Its Origin, In 1754 To The Present Time; Fall 1774; No. III; p 171

Love of power inspires slavery and freedom.

“...the love of power, which has been so often the cause of slavery,-has, whenever freedom has existed been the cause of freedom. It is this principle that has always prompted the princes and nobles of the earth, by every species of fraud and violence to shake off all the limitations of their power, it is the same that has stimulated the common people to aspire at independency, and to endeavor at confining the power of the great within the limits of equity and reason.”

A Dissertation on the Canon and Feudal Law; 1765; p 21.

Without honest magistrates rule of law breaks down:

“God, intending that men should live justly with one another, does certainly intend that he or they, who do no wrong, should suffer none; and the law that forbids injuries were of no use if no penalty might be inflicted on those that will not obey it. ... The work of the magistrate is to execute this law; the sword of justice is put into their hands to restrain the fury of those within the society who will not be a law to themselves; and the sword of war to protect the people against the violence of foreigners. ... This strikes at the root of God’s general ordinance that there should be laws; and the particular ordinances of all societies, that appoint such as seem best to them. ...”

“If the laws of God and men are therefore of no effect when the magistracy is left at liberty to break them, and if the lusts of those who are too strong for the tribunals of justice, cannot be otherwise restrained than by sedition, tumults, and war; those seditions, tumults, and wars, are justified by the laws of God and man.”

Novanglus: Or, A History Of The Dispute With America, From Its Origin, In 1754 To The Present Time; Fall 1774; No. VI; p 205-6

A Republic is a Government of Laws Not Men

Adams defines a republic according to Aristotle, Livy, and Harrington:

“They define a republic to be a government of laws, and not of men. If this definition be just the British constitution is nothing more or less than a republic, in which the king is first magistrate. This office being hereditary ... is no objection to the government’s being a republic, as long as it is bound by fixed laws, which the people have a voice in making, and a right to defend.”

Novanglus: Or, A History Of The Dispute With America, From Its Origin, In 1754 To The Present Time; Fall 1774; No. VII; p 226-7

Difference between emperor and absolute monarch:

· An emperor is “bound by no law or limitation but his own will”

· An absolute monarch, although his will is law, “yet his edicts must be registered by parliaments.”

Novanglus: Or, A History Of The Dispute With America, From Its Origin, In 1754 To The Present Time; Fall 1774; No. VII; p 226-7

Independence of the Judiciary: Historical Background

In summer of 1772 Governor Thomas Hutchinson announced that he and all superior court judges would be paid by custom revenues instead of by state legislature. General William Brattle defended this decision and challenged John Adams by name to debate him on it. Adams wrote 7 essays on the topic.

In the early essays (pgs. 75-103) Adams gives thorough, exhaustive and obscure examination of English common law to determine whether judicial appointments are held during the king’s pleasure (durante beneplacito) or during good behavior (quamdiu se bene gesserit). The difference being that “during pleasure” means a king can remove a judge whenever he pleases without justification whereas “during good behavior” means the judge must misbehave and be impeached.

Adams discusses history of judges, originally as substitutes for king in deciding cases, so their authority disappeared in his presence. These judges were clearly “during pleasure.” Eventually king delegated authority completely to judges while still retaining power to appoint them “during pleasure.” This dependence on kings for appointment and continuance in position made for instable legal system and helped tyrannical kings rule absolutely. In 1642 parliament sent Charles I a proposition that judges be appointed “during good behavior” (p. 97). Adams concludes which kind of appointment a judge receives depends on his commission since he can find precedents for both in English law.

American Judicial Commissions are Vague

“all commissions of judges throughout America are without the words quamdiu 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.”

The Independence Of the Judiciary; 11 January 1773; p. 103

“... by all rules, common law is to be favored; and therefore, whatever was the rule at common law must be favored in this case; and if the judges at common law were in only at pleasure, it will follow that ours are so, too, without express words; for there is no rule more established than this, that the prerogative is not to be taken away without express words, and that the king’s grant is to be construed most favorably for the king...”

The Independence Of the Judiciary; 11 January 1773; p 104

Adams decides that since King has power to grant commissions either during pleasure or during good behavior then governors of colonies have same power.

The Independence Of the Judiciary; 11 January 1773; p 105

Dangers of Offices Held At Pleasure

Adams cites the speech of the Lord Chancellor to Sir Henry Montague when he was sworn in as Chief Justice to replace Lord Coke who displeased the king

“because it is fraught with lessons of instruction. It shows the tendency of holding offices at pleasure. It shows what sordid, nauseous, and impious adulations to superiors, what malicious, envious, and cruel invectives against honest Coke, or any other brave and honest man whom the courtiers are determined la hunt down, are inspired by this dependent state of mind. It shows what a deep and lively sense they had upon their minds of their dependerie, every moment of their existence, upon the royal will, and how carefully they cultivated in one another, as the highest virtue, this base servility of spirit.”

The Independence Of the Judiciary; 11 January 1773; p 110

To show the subservience of the “at pleasure” judiciary to the King Adams quotes from this speech:

‘The king’s majesty,’ (says the Chancellor to Sir Henry Montague,) ‘in the governing of his subjects, representeth the divine majesty Of Almighty God…’

The Independence Of the Judiciary; 11 January 1773; p 110

The speech notes that like God the King can take away what he gives; warns officeholders against becoming “ambitiously popular”; and heaps adulations and praise on the King.

The Independence Of the Judiciary; 11 January 1773; p 110-11

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