Papers of John Adams, volume 2

From James Warren

From Edward Dilly

Articles of Impeachment against Chief Justice Peter Oliver: 24 February 1774 Articles of Impeachment against Chief Justice Peter Oliver: 24 February 1774
Articles of Impeachment against Chief Justice Peter Oliver
24 February 1774
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.

Articles of Impeachment against Chief Justice Peter Oliver
Province of Massachusetts-Bay.

ARTICLES of Impeachment of High Crimes and Misdemeanors against Peter Oliver, Esq; Chief Justice of the Superior Court of Judicature, Court of Assize and General Goal Delivery over this Province, by the House of REPRESENTATIVES, in General Court Assembled, in their own Name, and in the Name of all the Inhabitants of this Province, February 24, 1774.

Whereas their late Majesties King William and Queen Mary of glorious Memory, from their great Regard to the English Constitution, and earnest Desire to establish the same in this his Majesty's Province, did by their Charter made and granted in the third Year of their Reign, establish and ordain, that all and every of the Subjects of Them, their Heirs and Successors, which should come to and inhabit within this Province and Territory, and every of their Children which should happen to be born there, or on the Seas in coming hither or returning from hence, should have and enjoy all Liberties and Immunities of free and natural Subjects within any of the Dominions of them their Heirs and Successors, to all Intents, Constructions and Purposes whatever, as if they and every of them were born within the Realm of England.

And in the said Charter it is further granted and ordained, That the Great and General Court or Assembly of the Province, which is before established in the same Charter, shall forever have full Power and Authority to erect and constitute Judicatories and Courts of Record, or other Courts, for the Hearing, Trying and Determining of all Manner of Crimes, &c.

And the said General Court or Assembly hath by the same Charter, full Power and Authority to impose and levy proportionable and reasonable Assessments, Rates and Taxes, upon the Estates and Persons of all and every the Proprietors and Inhabitants of the Province, for his Majesty's Service in the necessary Defence and Support of his Majesty's Government of the Province, and the Protection and Preservation of the Inhabitants thereof: To the Intent that the Inhabitants of this his Majesty's Province might always have and enjoy that essential Privilege of the English Constitution, of supporting the executive and judicial Officers in the Government of this Province by the free Grants of the People.

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And whereas the Great and General Court or Assembly of this Province, in Pursuance of the Power and Authority granted as aforesaid, and of the good Intention thereof, have uninterruptedly and exclusively from the granting the said Charter, made Provision by their own Grants for the Support of his Majesty's said Superior Court: But many evil-minded Persons, not regarding the said Charter nor the good Intentions of the same, have of late Years combined and conspired together, to put divers Constructions on the said Charter, wholly inconsistent with the aforesaid manifest Intent and Purpose of the same, and destructive of English Liberties; and to introduce and establish another Form of Government, and a new Mode of supporting the executive and judicial Officers of the Government. For which Intent they did by false Representations, procure to be made and passed by the Parliament of Great-Britain, an Act for the Establishment of a Revenue to be levied in America, and appropriated among other Things for the defraying of the Charges of the Administration of Justice in such Colonies where his Majesty should judge proper; and also by false Representations and evil Advice, have procured the royal Grant of large Sums of Money, to be paid annually out of the said Revenue, to the Justices of the said Superior Court; by the Establishment of which the said Justices of the said Superior Court would be aliened from any Connection with the People of this Province, for whose Benefit they are and ought to be appointed, and would be indebted to his Majesty for his Grants made to them for their Services; and by Means thereof become subject to the Influence and Direction of his Majesty's Ministers of State, in Matters appertaining to the Distribution of Justice in this Province; whereby a Foundation will be laid of a Union of the Department of the Judicial Powers here, with that of the King's Ministers of State in Great-Britain, than which nothing is more to be dreaded by a free People.

And whereas Peter Oliver, Esq; Chief Justice of the Superior Court of Judicature, Court of Assize and General Goal Delivery over this Province, a Court wholly erected and constituted by the Great and General Court or Assembly by a Power granted to the said General Court by the Clause in said Charter aforementioned, well knowing the Premises but not regarding the same, with Design to subvert the Constitution of this Province as established by the said Royal Charter, and to introduce into the said Court a partial, arbitrary and corrupt Administration of Justice, declining to take and receive any more the Grants of the General Assembly of this Province, did on or 14about the Tenth Day of January, 1774, at Boston, in the County of Suffolk, take and receive, and resolve for the future to take and receive from his Majesty's Ministers and Servants, a Grant or Salary for his Services as Chief Justice of the said Superior Court, against his own Knowledge of the said Charter, and of the Way and Manner prescribed therein for the Support of his Majesty's Government in the Province, and contrary to uninterrupted and approved Usage and Custom since the erecting and constituting of the said Court. And the said Peter Oliver, Esq; continues in his said Resolution so to do, against the Opinion and Conduct of the other Judges of the said Court, each of whom has declared respecting himself his Resolution to the contrary. And whereas the unmeritted Sum of four Hundred Pounds Sterling, granted by his Majesty, and annually to be paid to the said Peter Oliver, Esq; for his Services as Chief Justice of the said Superior Court, together with the Hopes of it's Augmentation, if he is still suffered to continue in his said Office, cannot fail to have the Effect of a continual Bribe in his judicial Proceedings, and expose him to a Violation of his Oath. And by his accepting and receiving the said Sum he hath betrayed the Corruption and Baseness of his Heart, and the sordid Lust of Coveteousness: In Breach of his Engagements to rely solely upon the Grants of the General Assembly, necessarily implied and involved in his accepting said Office.—

And the said Peter Oliver, Esq; by his taking and receiving the said Grant out of the Revenue unjustly levied and extorted from the Inhabitants of the American Colonies, hath as far forth as lay in Power, put a Sanction on and established the said Revenue, which is a most destructive Infraction of the Constitution of this Province, and a Violation of the natural and most essential Rights of the People,—the exclusive Right of giving, granting and appropriating their own Property, and of Judging of the Merits of their own Servants. And hath counteracted the reasonable Petitions of the Representatives of the People to his Majesty, and other their Constitutional Endeavours to obtain the Redress of this Grievance.

And the said Peter Oliver, Esq; by his Conduct as aforesaid, in Defiance and Contempt of the known Sense of the Body of this People, expressly and repeatedly declared and published by their Representatives and otherwise, hath Wickedly and Perversely endeavoured to continue and increase the Discontent and Jealousies of this People, and the Grievance aforementioned, at a Time when there is Ground to hope that his Majesty, if not otherwise determined by the said Conduct of the said Peter Oliver, Esq; and the continued 15false Representations of others, will be graciously pleased to Revoke said Grant, and order a full Redress.

And the said Peter Oliver, Esq; did on the Eighth Day of February Instant, direct and cause to be delivered to this House, a Writing under his own Hand, dated Middleborough, February 3, 1774; the Tenor of which Writing is in the Words and Figures following, viz.

To the Honorable the House of Representatives, in General Court convened, February 1774.
May it please your Honors,

On the second Instant I received the Resolves of the Honorable House of the first Instant, requiring me to declare whether I had receiv'd in full of the Grants of the General Assembly made to me the last Year, and to declare explicitly whether I would for the future accept the Grants of the General Assembly of this Province as a Justice of the Superior Court, without accepting any Grant from the Crown for my Service as a Justice of said Court. Permit me, May it please your Honors! to state the Circumstances of my Case, as a Justice of the Superior Court.

In the Year 1756 I was appointed as a Justice of that Court, and accepted the Office contrary to my own Inclination, but by the Perswasion of Gentlemen who were then Members of the General Assembly. In this Office I have continued for above seventeen Years; and I hope your Honors will excuse me if I say, that I was never yet conscious that I had ever been guilty of any Violations of the Laws of my Country in a judicial Capacity, but have always endeavoured to act with that Fidelity required in so important a Character; and with this Sentiment I doubt not of ever consoling myself in the Approbation of my own Mind.

During these seventeen Years, I have annually felt the great Inconveniencies of serving in my judicial Office, by suffering in my private Business, and not having a Salary which would any Ways support my Family, which was large, and I cannot charge myself with any Degree of Extravagance in the Support of it: and I wish I may not have been too parsimonious for the Dignity of the Province in my judicial Character.

May it please your Honors!

I can with the strictest Truth assert, that I have suffered, since I have been upon the Bench of the Superior Court, in the Loss of my Business and not having sufficient to maintain my Family from my Salaries, above Three Thousand Pounds Sterling! I have repeatedly 16thrown myself on former Assemblies for Relief, but never have obtain'd any Redress. I have repeatedly attempted to resign my Office, but have been disswaded from it, by respectable Gentlemen of former Assemblies, who encouraged me with Hope of a Support, but I never received any Relief in that Way.

When his Majesty, of his great Goodness and Favour granted me a Salary (as he did to several others on the Continent in my Station) it was without any Application of mine; and when it was granted, I thought it my incumbent Duty, from the Respect and Gratitude which I owed to his Majesty: from a Sense of that Fidelity which I owed to my Country, by being enabled to discharge the Duty of my Office in being less embarrass'd in my Mind whilst in the Execution of it, and being more at Liberty to qualify myself for the Duties of it in Vacation Time: as also from a Principle of Justice due to my Family and to others: On these Accounts, and not from any avaricious Views, I was oblig'd to take his Majesty's Grant from the 5th of July 1772, to 5th of January 1774, and have taken the Grant of the Province only until July 1772.

These Considerations, May it please your Honors! urg'd me to take his Majesty's Grant; and I cannot but hope that the Candor of the honorable House of Representatives will excuse me in so doing, as what proceeded from Necessity and not Avarice or the least Disregard to the Sentiments of the honorable House.

May it please your Honors!

With Respect to my not taking any future Grant from his Majesty; permit me to say, that without his Majesty's Leave, I dare not refuse it, lest I should incur a Censure from the best of Sovereigns. And as the Tenor of the Grant is during my Residence in the Province as Chief Justice, I receive it as during good Behavior, which in my Opinion preserves me from any undue Bias in the Execution of my Office.

I am with the most profound Respect for the honorable House of Representatives, their most obedient humble Servant, Middleborough, Feb. 3, 1774. PETER OLIVER.

In which Writing the said Peter Oliver, Esq; hath ungratefully, falsly and maliciously laboured to lay Imputation and Scandal upon this his Majesty's Government, insolently and contemptously insinuating, that by the Parsimony, Injustice and Ingratitude of the said Government, in with-holding from him an adequate and due Reward for his Services as a Justice of the said Superior Court, he hath been greatly impoverished, and that therefore he was obliged to 17take his Majesty's Grant from a Principle of Justice due to his Family and others. Whereas in Fact, the Rewards granted to him by this Government, were always fully equal to the Merit of his Services as a Justice of the said Court; as it is well known that the said Peter Oliver, Esq: before his Advancement to a Seat in the Superior Court, had been usually employed in the Business of Trade, Husbandry and Manufactures, to which he had applied his Mind; and that he was appointed to said Office without previous Education and regular Study in the Law.

And the said Peter Oliver, Esq; by his Conduct as aforesaid, hath misrepresented and traduced this Government, and endeavoured to alienate the Hearts of his Majesty's Liege People of this Province from his Majesty, and set a Division between them; to introduce into said Court a partial and corrupt Administration of Justice, destroy the present Form of Government in this Province, and establish an arbitrary and tyrannical Government in its Stead.

Wherefore this House of Representatives, in their own Name, and in the Name of all the Inhabitants of this Province, DO IMPEACH the said PETER OLIVER, Esq; of the High Crimes and Misdemeanors aforesaid. And saving to themselves by Protestation the Liberty of exhibiting at any Time hereafter, to the Governor and Council, or to the Council only, any Complaints or Allegations against the said Peter Oliver, Esq; for any Incompetency, Incapacity or Disability for the Execution of his High Office; or any other Accusation or Impeachment against the said Peter Oliver, Esq; for any other Crimes and Misdemeanors by him done and committed: Also of replying to the Answer which the said Peter Oliver, Esq; shall make to the said Articles, or any of them; and of offering Proof of the Premisses, or any of their Impeachments, Accusations and Complaints, that shall be exhibited by them, as the Case shall require, They pray, that the said Peter Oliver, Esq; Chief Justice of the Superior Court of Judicature, Court of Assize and General Goal Delivery over this whole Province, may be put to Answer to all and every of the Premises; and that such Proceedings, Examinations, Trials and Judgments may be had and ordered thereon, as may be agreeable to Law and Justice.

MS not found. Reprinted from (Mass., House Jour. ), 1773–1774, p. 194–199.