Papers of John Adams, volume 2

Editorial Note Editorial Note
Editorial Note

A year after his newspaper debate with William Brattle and his contributions to the exchanges of the House of Representatives with Governor Hutchinson over constitutional issues (see 11 Jan. – 22 Feb. 1773 and 26 Jan. – 2 March 1773, above), John Adams took part in the closing chapter of the dispute over crown salaries for superior court judges. This last episode, an attempt to impeach Chief Justice Peter Oliver in February 1774, was also the last in a series of bitter controversies between Hutchinson and the House. It contributed to the weakening of the judicial system of the province.

While Adams in early 1773 had examined the theoretical issues raised by crown salaries for the judges, others had concerned themselves with the practical question of what action to take should the judges accept royal money. First, the House sought to obtain from the judges a refusal of 8crown salaries by asserting that failure to refuse would impugn their character. When neither the judges nor the Governor vouchsafed assurances, the House spoke in stronger language. Those who took crown salaries were enemies to the constitution and promoters of arbitrary government (Mass., House Jour. , 1772–1773, p. 224, 281–282).

Shortly after the General Court was adjourned in March 1773, Chief Justice Oliver (1713–1791) and the four puisne judges of the superior court—Edmund Trowbridge (1709–1793), Foster Hutchinson (1724–1799), Nathaniel Ropes (1726–1774), and William Cushing (1732–1810)—accepted half the salary voted them by the House for 1772, expecting the other half to be furnished by the Crown. (For sketches of members of the court, see Sibley-Shipton, Harvard Graduates , 8:507–520, 737–763; 11:237–243, 572–574; 13:26–39. See also references to these jurists in JA, Diary and Autobiography .) Their action did not become generally known until the treasurer, Harrison Gray, testified before the House in June 1773. Out of patience, the House called for explicit statements from the judges on how each stood and threatened that if no response was forthcoming it would impeach them before the Governor and Council ( House Jour. , p. 76, 86–88, 94). By late August, when the superior court met in Boston, the position of the various judges was still not clear. Uncertainty over their intentions became an excuse for the grand jury formally to express its troubled concern over the issue and for a petit juryman to refuse service. Shortly thereafter it became public knowledge that all but Oliver had declared their intention to the speaker of the House to accept their salaries from the General Court (Massachusetts Spy, 2 Sept. 1773; Boston Gazette, 6, 13 Sept. 1773).

When the General Court came back into session, in January 1774, it accepted Trowbridge's written declaration that he would continue to draw his pay from the province and set a deadline of 8 February for the other judges to make similar declarations ( House Jour. , p. 113, 117–118). Oliver, first to reply to the House demand, submitted a long statement explaining why he could not comply; this became part of the articles of impeachment printed below. The other judges made answers deemed satisfactory to the House, but Oliver's reply was referred to a committee for suggestions for further action (same, 136–139). At this point John Adams came into the picture.

In his Autobiography ( Diary and Autobiography , 3:299–302), Adams gives a lively account of how he astonished members of a dinner party early in 1774 with a proposal that judges accepting crown pay be impeached. All present had expressed fear that province liberties were threatened, but none had had an idea of what to do. Adams compared the House of Representatives to the Commons as a body of grand inquest, and the Council to the Lords as a body competent to try an impeachment. When some protested that the Council would not act, Adams calmly replied that if the House decided it had the power to go ahead, the Council would be forced 9to look into its own powers and duty. Failure to proceed would leave the Council responsible for whatever consequences ensued.

As Adams had expected, his proposal was soon carried abroad and attracted the attention of Joseph Hawley, a member of the House committee named to deal with Oliver's intransigence. According to Adams, Hawley, nearly ignorant of what impeachment was, found the proposal a very strange one and asked him for clarification. Adams lent him several legal treatises. Although Hawley had been a member of the House at the time it threatened impeachment of the judges, he had been absent when the threat was made and had missed whatever discussion had taken place. Adams himself seems not to have known that the word had already been uttered in the House chamber, or time had erased all recollection of the resolution.

How seriously the word “impeach” had been used in the resolution of 28 June 1773 remains a mystery. The term may have been employed without full deliberation, for it is obvious that in February 1774 the House was willing to try every method short of impeachment to remove the Chief Justice. It petitioned the Governor to remove him; it changed the date of the February superior court session in Suffolk co. so that Oliver would not have to sit while the petition was under consideration; and it responded to the Governor's denial that Oliver had done any wrong and that the Council could play any part in hearing charges against him by sending a message to the Council asking for advice and for action as that body saw fit. The House even petitioned the Governor once again, urging him to take the advice of the Council. None of this sounded like a House eager for impeachment ( House Jour. , p. 146–151, 153–154, 159, 162–163, 167–168).

It was during this period, the second and third weeks of February, that Adams recorded visits from Hawley and an unnamed lawyer with whom Adams discussed the impeachment process. He recalled that Hawley also visited Judge Trowbridge, whom Hawley regarded highly for his knowledge of the law and who advised him that the House did indeed have the impeachment power, but that the Council would never carry through the process. When Judge Trowbridge encountered Adams later, he remarked upon Adams' determination “to explore the Constitution and bring to Life all its dormant and latent Powers, in defence of your Liberties as you understand them.” Adams was ready with his answer: “I should be very happy if the Constitution could carry Us safely through all our difficulties without having recourse to higher Powers not written” ( Diary and Autobiography , 3:301)—a lawyer's clear preference for written instruments over less manageable rights based on natural law.

Finally, on 22 February, an angry governor summoned the members of the House to the Council chamber to point out to them that nothing in the charter required him to call the Council together for its advice. When the members got back to their chamber, they resolved at once to impeach the Chief Justice ( House Jour. , p. 183). Hawley, a member of the committee 10to prepare articles of impeachment, was as dependent on Adams for aid as he had been a year earlier when the House engaged in constitutional debate with Hutchinson. Adams recalled that the Northampton lawyer “would do nothing without me, and insisted on bringing them the articles of impeachment to my house, to examine and discuss the Articles paragraph by Paragraph, which was readily consented to by the Committee. Several Evenings were spent in my Office, upon this Business, till very late at night” ( Diary and Autobiography , 3:301–302).

By 24 February the articles were ready for submission to the House, where they were adopted by a vote of 92 to 8 ( House Jour. , p. 199–200). They declared that Oliver's refusal to accept a province salary and his explanation for his refusal constituted a misrepresentation of the character of the Massachusetts government and exposed an intention to alienate the province from the King, all with the purpose of supplanting the existing form of government with “an arbitrary and tyrannical Government in its Stead.” In line with the insistence of Adams and others that the House shared the functions and powers of the House of Commons, the articles closed with a paragraph that paraphrased the customary concluding statements in articles of impeachment brought in Parliament. (See, for example, such statements in T. B. and T. J. Howell, comps., A Complete Collection of State Trials, 34 vols., London, 1816–1828, 12:1215; 14:244; 15:40; 16:784; 18:548.)

Governor Hutchinson continued to deny any competence in the Council to hear charges and any constitutional authority in the House to institute impeachment proceedings. Even though the House persisted in laying the articles of impeachment before the Council and in the Governor's absence, declaring that he was “presumed” present, and even though the House wrote a new preamble to its articles and dropped the word “impeach” in favor of requesting “a Hearing and Trial,” Hutchinson remained unmoved. But when it became clear that the Council was almost as eager as the House to act, with or without the Governor present, Hutchinson adjourned the General Court and thus prevented the Council from taking up the charges ( House Jour. , p. 205, 216–217; M-Ar:Legislative Council Records, 30:257; Hutchinson, Massachusetts Bay, ed. Mayo, 3:325).

Although the effort to remove Oliver was not successful, the impeachment process won another kind of victory: the undermining of Oliver's position on the bench. Adams was correct in his assessment that when Hutchinson blocked the removal, “the Friends of Administration thought they had obtained a Tryumph but they were mistaken” ( Diary and Autobiography , 3:302). Jurors in Charlestown protested Oliver's presence on the bench, and in Worcester jurors probably would not have served had he appeared. The mood of ordinary men was so menacing that Oliver dared not join the court in Barnstable or Plymouth as it moved around on its circuit (Sibley-Shipton, Harvard Graduates , 8:752–753). By the end of August 1774 this open disrespect for the dignity of a judge perhaps made it easier for Massachusetts people to close the courts altogether in protest 11against changes in their charter mandated by the Massachusetts Government Act, one of the Intolerable Acts passed by Parliament in retaliation for the Boston Tea Party.