Diary of John Adams, volume 3

[Independence of the Judges, 1773–1774] JA


[Independence of the Judges, 1773–1774] Adams, John
Independence of the Judges, 1773–1774

In the Year 1773 arose a Controversy concerning the Independence of the Judges. The King had granted a Salary to the Judges of our Superiour Court and forbidden them to receive their Salaries as usual from the Grants of the House of Representatives, and the Council and Governor, as had been practiced till this time. This as the Judges Commissions were during pleasure made them entirely dependent on the Crown for Bread as well as office. The Friends of Government were anxious to perswade the People, that their Commissions were during good Behaviour. Brigadier General Brattle, who had been a Practitioner of Law, and was at this time in his Majestys Council, after some time, came out with his name in one of the Gazettes, with a formal Attempt to prove that the Judges held their offices for Life. Perhaps I should not have taken any public Notice of this, if it had not been industriously circulated among the People, that the General had at a Town Meeting in Cambridge the Week before advanced this doctrine And challenged me by name, to dispute the point with him. His Challenge I should have disregarded, but as his Appeal to me was public, if I should remain silent it would be presumed that my Opinion coincided with his. It was of great Importance that the People should form a correct Opinion on this Subject: and therefore I sent 298to the press a Letter in Answer, which drew me on to the Number of Eight Letters, which may be seen in the Boston Gazette for this Year.1 The Doctrine and the History of the Independence of Judges was detailed and explained as well as my time, Avocations and Information enabled me: imperfect and unpollished as they were they were well timed. The Minds of all Men were awake and every thing was eagerly read by every one, who could read. These papers Accordingly, contributed to spread correct Opinions concerning the Importance of the Independence of the Judges to Liberty and Safety, and enabled the Convention of Massachusetts in 1779 to adopt them into the Constitution of the Commonwealth, as the State of New York had done before, partially, and as the Constitution of the United States did afterwards in 1787. The Principles develloped in these Papers have been very generally, indeed almost universally prevalent among the People of America, from that time, till the Administration of Mr. Jefferson, during which they have been infringed and are now in danger of being lost. In such a Case, as the Ballance in our national Legislature is imperfect and very difficult to be preserved, We shall have no ballance at all of Interests or Passions, and our Lives, Liberties, Reputations and Estates will lie at the mercy of a Majority, and of a tryumphant Party.

At this Period,2 the Universal Cry, among the Friends of their Country was “What shall We do to be saved?” It was by all Agreed, As the Governor was entirely dependent on the Crown, and the Council in danger of becoming so if the Judges were made so too, the Liberties of the Country would be totally lost, and every Man at the Mercy of a few Slaves of the Governor. But no Man presumed to say what ought to be done, or what could be done. Intimations were frequently given, that this Arrangement should not be submitted to.—I understood very well what was meant, and I fully expected that if no Expedient could be suggested, that the Judges would be obliged to go where Secretary Oliver had gone to Liberty Tree, and compelled to take an Oath to renounce the Royal Salaries. Some of these Judges were men of Resolution and the Chief Justice in particular, piqued himself so much upon it and had so often gloried in it on the Bench, that I shuddered at the expectation that the Mob might put on him a Coat of Tar and Feathers, if not put him to death. I had a real respect 299for the Judges. Three of them Trowbridge, Cushing and Brown3 I could call my Friends. Oliver and Ropes abstracted from their politicks were amiable Men, and all of them were very respectable and virtuous Characters. I dreaded the Effect upon the Morals and temper of the People, which must be produced, by any violence offered to the Persons of those who wore the Robes and bore the sacred Characters of Judges, and moreover I felt a strong Aversion to such partial and irregular Recurrences to original Power. The poor People themselves who by secret manoeuvres are excited to insurrection are seldom aware of the purposes for which they are set in motion: or of the Consequences which may happen to themselves: and when once heated and in full Career, they can neither manage themselves, nor be regulated by others. Full of these Reflections, I happened to dine with Mr. Samuel Winthrop at New Boston, who was then Clerk of the Superiour Court, in company with several Members of the General Court of both Houses and with several other Gentlemen of the Town. Dr. John Winthrop Phylosophical Professor at Colledge and Dr. Cooper of Boston both of them very much my Friends, were of the Company. The Conversation turned wholly on the Topic of the Day—the Case of the Judges. All agreed that it was a fatal Measure and would be the Ruin of the Liberties of the Country: But what was the Remedy? It seemed to be a measure that would execute itself. There was no imaginable Way of resisting or eluding it. There was lamentation and mourning enough: but no light and no hope. The Storm was terrible and no blue Sky to be discovered. I had been entirely silent, and in the midst of all this gloom, Dr. Winthrop, addressing himself to me, said Mr. Adams We have not heard your Sentiments on this Subject, how do you consider it? I answered that my Sentiments accorded perfectly with all which had been expressed. The Measure had created a Crisis, and if it could not be defeated, the Liberties of the Province would be lost. The Stroke was levelled at the Essence of the Constitution, and nothing was too dear to be hazarded in warding it off. It levelled the Axe at the Root, and if not opposed the Tree would be overthrown from the foundation. It appeared so to me at that time and I have seen no reason, to suspect that I was in an Error, to this day. But said Dr. Winthrop, What can be done? I answered, that I knew not whether any one would approve of my Opinion but I believed there was one constitutional Resource, but I knew not whether it would be 300possible to persuade the proper Authority to have recourse to it. Several Voices at once cryed out, a constitutional Resource! what can it be? I said it was nothing more nor less than an Impeachment of the Judges by the House of Representatives before the Council. An Impeachment! Why such a thing is without Precedent. I believed it was, in this Province: but there had been precedents enough, and by much too many in England: It was a dangerous Experiment at all times: but it was essential to the preservation of the Constitution in some Cases, that could be reached by no other Power, but that of Impeachment. But whence can We pretend to derive such a Power? From our Charter, which gives Us, in Words as express, as clear and as strong as the Language affords, all the Rights and Priviledges of Englishmen: and if the House of Commons in England is the grand Inquest of the Nation, the House of Representatives is the Grand Inquest of this Province, and the Council must have the Powers of Judicature of the House of Lords in Great Britain. This Doctrine was said by the Company to be wholly new. They knew not how far it could be supported, but it deserved to be considered and examined. After all if it should be approved by the House, the Council would not convict the Judges.—That, I said, was an after consideration, if the House was convinced that they had the Power, and that it was their duty to exercise it, they ought to do it, and oblige the Council to enquire into their Rights and Powers and Duties. If the Council would not hearken to Law or Evidence, they must be responsible for the consequences, and the Guilt and blame must lie at their door. The Company seperated, and I knew that the Governor and the Judges would soon have Information of this Conversation, and as several Members of both Houses were present, and several Gentlemen of the Town, I was sensible that it would soon become the Talk of the Legislatures as well as of the Town. The next day, I believe, Major Hawley came to my House and told me, he heard I had broached a strange Doctrine. He hardly knew what an Impeachment was, he had never read any one and never had thought on the Subject. I told him he might read as many of them as he pleased. There stood the State Tryals on the Shelf which were full of them, of all sorts good and bad. I shewed him Seldens Works in which is a Treatise on Judicature in Parliament, and gave it him to read.4 That Judicature in Parliament was as ancient as common Law and as Parliament 301itself; that without this high Jurisdiction it was thought impossible to defend the Constitution against Princes and Nobles and great Ministers, who might commit high Crimes and Misdemeanors which no other Authority would be powerfull enough to prevent or punish. That our Constitution was a Miniature of the British: that the Charter had given Us every Power, Jurisdiction and right within our Limits which could be claimed by the People or Government of England, with no other exceptions than those in the Charter expressed. We looked into the Charter together, and after a long conversation and a considerable Research he said he knew not how to get rid of it. In a Day or two another Lawyer in the House came to me, full of doubts and difficulties, He said he heard I had shown Major Hawley some Books relative to the Subject and desired to see them. I shewed them to him and made nearly the same comment upon them. It soon became the common Topick and research of the Bar. Major Hawley had a long Friendship for Judge Trowbridge and a high Opinion of his Knowledge of Law which was indeed extensive: he determined to converse with the Judge upon the Subject, went to Cambridge on Saturday and staid till monday. On this Visit he introduced this subject, and appealed to Lord Coke and Selden, as well as to the Charter, and advanced all the Arguments which occurred to him. The Judge although he had renounced the Salary We may suppose was not much delighted with the Subject, on Account of his Brothers. He did however declare to the Major that he could not deny, that the Constitution had given the Power to the House of Representatives, the Charter was so full and express, but that the Exercise of it, in this Case would be vain as the Council would undoubtedly acquit the Judges even if they heard and tryed the Impeachment. Hawley was not so much concerned about that as he was to ascertain the Law. The first time I saw Judge Trowbridge, he said to me, I see Mr. Adams you are determined to explore the Constitution and bring to Life all its dormant and latent Powers, in defence of your Liberties as you understand them. I answered I should be very happy if the Constitution could carry Us safely through all our difficulties without having recourse to higher Powers not written. The Members of the House, becoming soon convinced that there was something for them to do, appointed a Committee to draw up Articles of Impeachment against the Chief Justice Oliver.5 Major Hawley who was one of this Committee, would do nothing without me, and insisted on bringing them to my house, to examine and discuss 302the 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. One Morning, meeting Ben. Gridley, he said to me Brother Adams you keep late Hours at your House: as I passed it last night long after midnight, I saw your Street door vomit forth a Crowd of Senators. The Articles when prepared were reported to the House of Representatives, adopted by them and sent up to the Council Board. The Council would do nothing and there they rested. The Friends of Administration thought they had obtained a Tryumph but they were mistaken. The Articles were printed in the Journals of the House and in the Newspapers, and the People meditated on them at their Leisure. When the Superiour Court came to sit in Boston, the Grand Jurors and Petit Jurors as their names were called over refused to take the Oaths. When examined and demanded their reasons for this extraordinary Conduct, they answered to a Man, that the Chief Justice of that Court stood impeached of high Crimes and Misdemeanors, before his Majestys Council, and they would not sit as Jurors while that Accusation was depending.6 Att the Charlestown Court the Jurors unanimously refused in the same manner: They did so at Worcester and all the other Counties. The Court never sat again untill a new one was appointed by the Council exercising the Powers of a Governor under the Charter after the Battle of Lexington on the 19 of April 1775.


Actually seven letters; see Diary entry of 4 March 1773 and note 2 there.


That is, during the winter of 1773–1774. The attempt by the House to impeach Chief Justice Peter Oliver because he would not renounce salary grants from the crown occurred in Feb. 1774; see Diary entry of 2 March 1774 and note.


William Browne was not appointed to the Superior Court until June 1774, when he succeeded Nathaniel Ropes, who had died in March (Whitmore, Mass. Civil List , p. 70).


The authorities referred to were, presumably, Thomas Salmon, A New Abridgement and Critical Review of the State Trials and Impeachments for High Treason ... , London, 1738, folio; and John Selden's Opera Omnia, ed. David Willkins, London, 1726, 3 vols., folio, both of which remain among JA's books in the Boston Public Library ( Catalogue of JA's Library ).


Adopted on 24 Feb. 1774 by a vote of 92 to 8 (Mass., House Jour. , 1773–1774, p. 194–201).


Graphic accounts of the closing of the Superior Court of Judicature in Boston at the end of August and beginning of September 1774 were furnished to JA in letters from two of the young men in his office, William Tudor, 3 Sept., and Edward Hill, 4 Aug. i.e. Sept. 1774 (both in Adams Papers).

[Report on Boundaries, 1773–1774] JA


[Report on Boundaries, 1773–1774] Adams, John
Report on Boundaries, 1773–1774

In the Fall of the Year 1773, The General Court appointed Mr. Bowdoin and me to draw a State of the Claim of this Province to the Lands to the Westward of New York. Mr. Bowdoin left it wholly to me: and I spent all my Leisure time in the Fall, Winter and Spring in Collecting all the Evidence and Documents: I went to Mr. John Moffat, who had made a large Collection of Records, Pamphlets and Papers, and examined his Treasures: then to Dr. Samuel Mathers Library which descended to him from his Ancestors Dr. Increase Mather, and Dr. Cotton Mather who had been Agent of the Province: and then to the Balcony of Dr. Sewalls Church, where Mr. Prince had deposited the amplest Collection of Books, Pamphlets, Records and Manuscripts relative to this Country which I ever saw, and which as I presume ever was made, Mr. Prince having pursued thro his whole Life a plan which he began at Colledge. I spent much time in 303that elevated Situation, and found some things of Use in my Investigation, but I found a greater Gratification to my Curiosity, and cannot but lament that this invaluable Treasure was dispersed and ruined by the British Army, when they afterwards converted this venerable Temple into a Stable and a riding School. Having compleated my State of the Claim of the Province, and confuted the Pretensions of New York, I reported it to Mr. Bowdoin who after taking Time to read it, for it was very long, told me, that he approved it, and thought it wanted no Addition or correction. He Accordingly reported it to the Senate where it was read and sent down to the House, where it was read again. Mr. Samuel Adams was then Clerk of the House, and in the Confusion which soon afterwards happened at Salem, when the Governor dissolved the General Court for choosing Members to go to Congress, he lost it. But several Years afterwards it was found, and delivered to the Agents for Massachusetts, who attended the Settlement of the dispute with New York. Mr. King has repeatedly told me, that without that Statement, none of them would have understood any Thing of the Subject, and the Claim would have been lost.1 The 304Decision was much less favourable to Massachusetts than it ought to have been, and the State have very unoeconomically alienated all the Land since that time for a very inadequate sum of Money. I wish they had first given me a Township of the Land. It would have been much more prudently disposed of than any of the rest of it was, and more justly. I never had any thing for my half Years service, not even Credit nor Thanks.


This is one of at least three accounts by JA of this interesting episode, all differing in details that are not easily reconcilable because the principal document in question has not been found.

The earliest account, in a letter from JA to Elbridge Gerry, Braintree, 17 Oct. 1779 (LbC, Adams Papers), is doubtless the most reliable. It states that “the General Court in 1774 appointed Mr. Bowdoin and me a Committee to state our Claim to those Lands” now called Vermont but then usually spoken of as the New Hampshire Grants, meaning the territory between the Connecticut River and the New York lakes north of a western projection of New Hampshire's present southern boundary. The date of this appointment, 1 March 1774 (rather than the fall of 1773), is confirmed by copies of the votes of both houses of the General Court among JA's papers relating to his work for this committee that are now in the Huntington Library (see below in this note). JA went on to say in his letter to Gerry that after spending “most of the Winter i.e. spring in rummaging” through books and documents, he “wrote a very lengthy, I cannot say a very accurate State of the Massachusetts Claim to those Lands, a particular Examination, and an Attempt at a Refutation of the Claim of New York, and a similar Discussion of that of New Hampshire.—Mr. Bowdoin revised it and reported it, a few days before Gen. Gage removed the General Court to Salem” in May 1774. At Salem (as told also in the Autobiography) the report was lost in the shuffle. “There is no other Copy that I know of—the first rough blotted Draught, was left in my Table drawer in my Office in Boston, when the Regulars shut up the Town. The Table, Papers and all were carried off, when they left the Town.”

Thus far JA in 1779. The statement in his Autobiography that his report of 1774 reappeared and proved useful a decade later when Massachusetts' western claims were reasserted and eventually settled on the one hand by a cession to the United States and on the other by a compromise with New York, seems to be clearly confirmed by a letter from Tristram Dalton to JA, Newburyport, 6 April 1784 (Adams Papers). (The connection between Massachusetts' claim to Vermont and its claim to lands “to the Westward of New York” was owing to the sea-to-sea grant in the 1629 Charter of the Massachusetts Bay Company; see Paullin, Atlas , pl. 42, 47E, 97A–B, and p. 26, 36, 72–73.)

Only fragments of the once voluminous record of JA's investigation of Massachusetts' territorial claims have survived. These include some dozen folio pages of notes and drafts among his miscellaneous papers (M/JA/17, Adams Papers, Microfilms, Reel No. 191), one page captioned “An Examination of the Claim of New York,” a six-page draft entitled “A State of the Title of the Massachusetts-Bay, to Lands between Connecticutt & Hudsons Rivers, at the North West Corner of the Province,” and three pages of “Additions to be made to the Title of the Massachusetts.” These, at least, were not carried off by the British from JA's Boston office. In the present century a further and very miscellaneous mass of papers assembled by JA during his work for the committee of 1774 came into the autograph market. They are listed and inaccurately described in The Library of Henry F. De Puy (Part One), Anderson Galleries, N.Y., Catalogue of Sale No. 1440, 17–18 Nov. 1919, lot 8 (now in CSmH). They consist of nearly 50 pages in various hands, including JA's, but the principal paper, which is identified in the auction catalogue as JA's “brief” for Massachusetts' claims (to Vermont), is actually, according to both internal evidence and JA's own endorsement there on, a copy by JA of “Charles Phelps's State of this Case.” Phelps was “an Inhabitant of the New Hampshire Grants” who favored Massachusetts' claims; see JA to Gerry, 17 Oct. 1779, cited above. Among the other papers in CSmH is a copy of James Bowdoin's report to the Massachusetts Council on the petition of Charles Phelps, undated but followed immediately by copies of the votes of the Council and House, 25, 28 Feb., 1 March 1774, appointing Bowdoin and JA “to prepare a full and clear State of the Province's Title” (JA's endorsement)—the action that led to JA's undertaking his laborious researches.

Whatever the fate of JA's elaborate but apparently irrecoverable report may have been, his interest in Massachusetts' northern and western territorial claims remained strong, and his early investigation of them later proved extremely useful in the struggle over the northeastern boundary of the United States in the preliminary peace negotiations at Paris; see his Diary entry of 10 Nov. 1782 and note 1 there; also his letters printed in the Boston Patriot, Oct.–Nov. 1811 (partly reprinted in JA, Works , 1:667–668), in which he told once more the story of his defense of Massachusetts' title to Vermont under the Charter of 1629.