Vanderbilt Law Review

First Page



Judicial tenure had become a sensitive issue in the colonies before the American Revolution. Although the Act of Settlement of 1701 guaranteed tenure during good behavior for judges in England, this statute did not extend to the colonies, and royal governors regularly were instructed to issue judicial commissions at the pleasure of the Crown. Judges in New York briefly secured appointments for good behavior during the 1750's, but in 1761 the King in Council directed that henceforth no commission could be granted except at pleasure. In 1759 the Pennsylvania Assembly passed a measure providing that judges in that colony would enjoy the same secure tenure as English judges. This law, however, was disallowed by the Crown.' Similarly, the South Carolina Circuit Court Act of 1768 was vetoed in part because it provided for permanent judicial tenure.' This royal opposition to appointments for good behavior, coupled with the expansion of prerogative courts, convinced many colonists that England was engaged in a deliberate conspiracy to undermine the independence of the judiciary.