USA > Massachusetts > History of Massachusetts from 1764, to July 1775; when general Washington took command of the American Army. V. 1 > Part 24
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* J. Hawley, Esq. a distinguished and most useful patriot, dechred, at this time, 'That it was his opinion, if the people in America would maintain their rights, they must fight for them.'
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to the Assembly, that the King disapproved of the appointment of committees of correspondence, which met and acted during the recess of the General Court. In the answer of the House, with respect to the latter subject, they observed, "That while the common rights of the American subjects continue to be attack- ed in various ways, and at times when the Assemblies are not sitting, it was highly necessary they should correspond with each other, in order to unite in the most effectual means for obtaining redress of their grievances. And as the sitting of the General As- semblies in this and most of the colonies depends on the pleasure of the Governors, who hold themselves under the direction of administration, it is to be ex- pected that the meeting of the Assemblies will be so ordered, as that the intention proposed by a corres- pondence between them will be impracticable, but by committees to sit and act in the recess : That as it has been the practice for the Governor of this province and other officers of the crown, at all times, to corres- pond with ministers of state and persons of influence in the nation, in order to concert and execute mea- sures which were deemed by the colonies to be griev- ous to them, it cannot be thought unreasonable or improper for the colonists to correspond with their agents, as well as with each other; to the end, that their grievances may be so explained to his Majesty, as that in his justice he may afford them necessary relief : That, as the province has, heretofore, felt the great misfortune of the displeasure of our Sovereign, by means of misrepresentations, so there is reason to apprehend that his Majesty has been lately misinform- ed ; and that there are good grounds to suspect, that those who may have misinformed him have had in meditation further measures destructive to the col- onies, which they were apprehensive would be de- feated by means of committees of correspondence, sitting and acting in the recess of the several As- semblies."
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A great portion of this session of the Legislature was occupied in debates and resolves respecting the Judges of the Superior Court, on account of their receiving salaries from the crown. This subject had given much uneasiness the year preceding : And most of the towns in the province expressed an opinion of the great danger to the liberties of the people from such a measure. At the session, in June, 1773, a resolution was adopted by the House of Representatives, declaring it to be the duty of the Judges, explicitly to say, whether they would receive support from the province, or accept it of the crown ; and that it would be the duty of the Representatives, in the latter case, to impeach them before the Governor and Council, as being unfit to hold the high office they sustained. This resolve was passed on the last day of the Court, so that the Judges had no time to make known their determina- tion to the Assembly. At an early day of the pre- sent session, Judge TROWBRIDGE addressed a note to the House ; in which he stated, that he had re- ceived his whole salary from the treasury of the province ; that he intended still to receive the grants of the General Court, and to accept of none from the crown, for his services as a Judge of the Court. This was perfectly satisfactory to the House : But from the other Judges, no communication was re- ceived. On the seventh day of the session, it was voted, that, unless the other Justices should declare to the Honse, within six days, they would accept the grants of the General Assembly for their services, and would receive none from the crown, further and decisive measures would be had on the subject. Letters were received, within the time limited, from Justices ROPES, HUTCHINSON * and CUSHING, in which they declared their determination to receive their salaries from the province, and not from the
* The first letter of Mr. Hutchinson did not give full satisfaction ; and he immediately sent another.
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King. Their declarations were also voted to be acceptable. Mr. OLIVER, the Chief Justice, stated, " that he had received his Majesty's grant for a year and an half past ; and, as to any future grant from the King, that he dare not refuse it, without his Majesty's leave, lest he should incur a censure from the best of Sovereigns." It was then unani- mously voted, by the House, that the reasons given by Mr. OLIVER were not satisfactory, and could not justify his determination. And a few days after, it was resolved,* "that, as he had, contrary to the usage and custom of the Justices of the Court, and contrary to the plain sense and meaning of the char- ter, and against the known constitution of the pro- vince, accepted a salary and reward granted by the King ; and had also plainly given the House to understand, it was his resolution in future to accept such salary and reward granted by his Majesty : And that, as it appeared he had received said salary and reward out of the revenue unjustly and uncon- stitutionally levied and extorted from the people in the colonies ; and had so done, against the known sense of the people of the province, he had, by such conduct, proved himself an enemy to the constitution of the province ; that he had done what tended ob- viously and directly to the perversion of law and justice, and had become justly obnoxious to the good people of the province : That he had thus rendered himself totally unfit to hold and act in the office of a Justice of the Court, and ought to be removed there- from : And that they would remonstrate to the Governor and Council, praying that he be removed from his office without delay." A remonstrance and petition were prepared accordingly, and presented to the Governor and Council. But the Governor declined acting upon it : And the Council had not an opportunity to express their opinion ; for it was not communicated to them ; the Governor contending
* Ninety-six, to nine.
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that they were only to advise in the case, when the subject should be laid before them, by himself, for that purpose ; and that it was with him to decide, whether their opinion was to be given or not. He ob- jected also to the power of the Governor and Council to remove Mr. OLIVER from office ; and observed, that, in his opinion, such an authority was vested only in the King. The House then sent a message to the Council, informing the Board of their pro- ceedings, and requesting their determination thereon. They also again addressed the Governor, and prayed that he would take the opinion and advice of the Council. As no steps were taken by his Excellency on the subject, the two Houses passed a resolve to adjourn the Superior Court, which was to sit the following week in Boston, to a distant day, in order to prevent Mr. OLIVER from officiating as a Judge. Another message was sent from the Governor to the House, in which he insisted on his right to judge of the propriety of submitting the matter to the Coun- cil; and declared, that he feared the displeasure of his royal master, if he should be, in any way, instru- mental in the removal of Judge OLIVER on account of the charges brought against him by the House. The House then* voted to impeach the Chief Justice of high crimes and misdemeanors, in their own name, and that of all the people of the province.
It may be proper to state the reasons and argu- ments suggested, as the grounds of this impeachment, which were as follows: "That the subjects in the province were entitled to all the liberties and immu- nities of free and natural subjects within any of the dominions or the realm of England ; that the General Assembly of the province, established by charter, had power to erect and constitute judicatories for hearing and trying all manner of crimes ; that the Assembly had authority, by charter, to impose and
* Ninety-two votes to eight.
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levy reasonable taxes upon the estates of the inhabi- tants, for the support of his Majesty's government in the province, to the intent that the inhabitants of the province might enjoy the essential privilege of the English constitution, that of supporting the officers of government by the free grants of the people ; that many evil minded persons had combined to in- troduce another form of government, and a new mode of supporting the officers thereof; for which purpose, they had procured a revenue system to be adopted and executed; by which the Judges of the Court, among others, were to be supported; and thus alienated from all connexion with the people of the province, and indebted to the crown for grants for their services ; by means whereof they would become subject to the influence of his Majesty's ministers, in all matters relating to the distribu- tion of justice in the province : And that the Chief Justice had received the grants of the King, as a compensation for his services in his said office, and was determined to receive his support in the same manner in future, contrary to the sense of the people, and of their Representatives, fully and repeatedly declared."
The same day the vote was adopted to impeach the Chief Justice, and a committee was appointed to wait on the Governor and give him notice of the same, with a request that he would order a time for the articles of impeachment to be presented in Coun- cil, he addressed a note to the House, informing them of his having the royal consent to visit Eng- land, of which he intended to avail himself with all convenient dispatch. And the day following, he replied to the application of the House to receive and act on the articles of impeachment; and observ- ed, " that he knew of no species of high crimes and misdemeanors, nor any offence against the laws, committed within the province, which was not cog- nizable by some judicatory; and that he did not
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know whether the Governor and Council had con- current jurisdiction with any judicatory in criminal cases, or any authority to try and determine any species of high crimes and misdemeanors whatever ; and, therefore, that he could shew no countenance to the present process." It was, however, immedi- ately ordered, by the House, that a committee go up to the Council Board, and there impeach PETER OLIVER, Chief Justice of the Superior Court, of high crimes and misdemeanors, and pray the Gover- nor and Council to appoint a time for hearing the same. The committee proceeded, accordingly, to the Council Room, and there, before the Governor and Council, did impeach Mr. OLIVER; and read the articles before prepared ; and laid them before the Honorable Board, and requested that a day be fixed for determining thereon.
No order being taken on these articles of impeach- ment, by the Governor and Council, after several days, the House resolved to prepare a memorial and complaint in a different form from the former; which were, thereupon, drawn up and laid before the Gov- ernor and the Honorable Board ; and in which they prayed, that the Chief Justice might be called upon to answer to the charges exhibited against him. But the Governor refused to sustain the complaint, in any form ; and no examination or decision was had on the subject, before the Council. An able and spirited remonstrance, however, was prepared by the House, and presented to the Governor, on the improper and arbitrary course he had pursued ; in which they insisted on the competency of the Gover- nor and Council to hear and decide on the charges preferred in such a case ; especially as they had the appointment of the Judges, and there was clearly no other Body in the province that might justly exer- cise such authority ; that, if there was no authority to remove Judges and others from office for mal- conduct, for neglect of duty, perversion of justice,
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or disregard to the constitution and the charter, the province was in a most deplorable state; and there was no remedy for the prevention of the greatest corruption and injustice. In voting a compensation to the Judges of the Superior Court, and other officers of government, a few days after, no grant was made to the Chief Justice.
On the 8th of March, governor HUTCHINSON sent his last public message to the General Court, in which he discovered the same disposition to cri- minate and reproach, as in his other communica- tions for several years before. "Their votes and resolves," he said, "struck directly at the honor and authority of the King and Parliament; and he could not neglect bearing public testimony against them, and making use of the power vested in him, to prevent them from proceeding any further in the same way." He then immediately ordered the As- sembly to be prorogued, although the usual request had not been made to him by the two Houses, and much important business was before them, un- finished.
The Council had also addressed the Governor on this subject, and prayed him to order a hearing of the complaint against the Chief Justice, agreeably to the petition of the House. On his intimating to them his purpose soon to prorogue the Assembly, that he might prepare for his voyage to England, they observed, that it would be to the great detri- ment of the people, as much public business re- mained to be transacted ; and, therefore, in their opinion, injurious to his Majesty's service, which he professed to be desirous of promoting. The Gover- nor replied to the Council, that he considered he had the sole authority and right to decide, whether the subject was to be submitted to them; that they were not a Court proper to try officers of the govern- ment, charged as the Chief Justice was; that they were only to give an opinion to the Governor, when
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so requested ; and that he knew of no tribunal in the province, competent to receive and act on arti- cles of impeachment against judicial officers. In an able and learned answer to the Governor, the Council insisted, that it was altogether arbitrary in him to judge in the case without consulting them; and quoted the clause from the charter, in which it was declared, "that the Governor and Council, or a major part of them, should have the ordering and direction of the affairs of the province." They said that there was no other tribunal in the province for trying public officers charged with malconduct; and argued, that, as these officers were appointed by the Governor and Council, so they had a just and consti- tutional right to try and remove them. They also considered themselves treated with indignity, they said, in their official capacities ; and felt it a duty they owed to their constituents, to remonstrate against this arbitrary conduct of the Governor.
When the House perceived, that the Governor was determined not to permit a hearing and trial in the case of the Chief Justice, and that he was about to prorogue the Assembly, they adopted a resolution, " declaring that they had done all in their power to effect the removal of Mr. OLIVER ; and that, in their opinion, the Governor had refused the trial, because he also received his support from the crown, independent of the Legislative Assembly of the province."
In May following, governor HUTCHINSON embark- ed for England ; having borne a principal part in introducing arbitrary power into the province, by which the people had been deprived of ancient, char- ter rights ; and driven, in self-defence, to the very verge of rebellion. His ambition and his servile devotion to the British administration, had produced great uneasiness and distress among the citizens, whom he ought to have protected and served. And he found the indignation he had provoked, ready to
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burst in vengeance on himself and others, who were the selfish agents in the oppressions heaped upon the people.
Mr. HUTCHINSON was, indeed, too ready an in- strument, in the hands of an arbitrary ministry, to undermine the liberties of the province. His po- litical opinions had undergone a great change within ten years ; and he had become an apologist for an arbitrary policy, which he formerly _condemned. But had he been more attached to the rights of the people, and firm in supporting them, he would pro- bably have been superseded ; and a Governor sent from England, who would have been equally sub- servient to the views of administration. They were determined to govern America by prerogative or by force ; and would easily have found an agent fitted to their purpose.
Lord DARTMOUTH, who was favorably disposed towards the colonies, proposed to place Mr. Pow- NALL again at the head of the government in Massa- chusetts, with a view to conciliate and quiet the people : For this statesman had repeatedly, in the course of the year 1773, declared himself in favor of a milder policy in relation to America. But when the intelligence of the destruction of the tea reached Great Britain, and the determined spirit manifested in the colonies, in opposition to all re- venue laws, was made known to ministers, a majority at once resolved on more energetic measures ; and found themselves supported by Parliament in their plans of coercion, regardless alike of the great prin- ciples of the constitution, and of the permanent peace and prosperity of the kingdom .*
There were now, indeed, as on former occasions, some distinguished statesmen in England, who op- posed the plans of administration to take away the rights and privileges of the people secured by the
* Lord North declared, " that he would not listen to any complaints or petitions from America, till she was at his feet."
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charter, and to send a military force into the pro- vince to assist in the execution of most oppressive and unjust measures. They hesitated not to express their fears for the fate of liberty in their own country, if ministers should succeed in establishing tyranny in America. When the bills were before Parliament for blockading the harbour of Boston, and to punish the citizens by prohibiting all commercial inter- course ; to alter the charter of the province so as to give the appointment of Counsellors to the King; to authorize the Govenor alone to appoint all judicial and civil officers ; to subject those accused of opposition to government to be transported to England for trial ; and to place a large military force in the province ; several members opposed their adoption with great eloquence and zeal. BURKE said, "it was only oppressive and unjust laws, which the people had opposed ; that it was most unreasonable to condemn them without a hearing; and that constitutional prin- ciples were not to be settled by the military arm." POWNALL declared, "it was no longer a matter of opinion with the citizens of Massachusetts; things had come to action ; that the Americans would resist all attempts to coerce them, and were prepared to do it; and if there should be a rebellion in that province, the question would be, who caused it ?" Others insisted, that the charter was a solemn con- tract, which neither the King nor Parliament could justly annul or alter, without consent of the subjects in Massachusetts, unless they had forfeited their rights by an infraction of its provisions. Lord CHAT- HAM also opposed these plans of administration with all his former energy and spirit ; although at this time, he was in such a debilitated state, that he seldom took part in the debates in Parliament. He declared himself most decidedly in favor of concilia- tory measures ; for he was of opinion, that the pro- vince had been oppressed, and the liberties of the sub- jects therein most flagrantly violated. He believed,
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that just measures on the part of ministers would quiet the colonies, and restore harmony between them and the parent state. He denounced the proposed system as unconstitutional and tyrannical ; and pre- dicted that the people of Massachusetts would never submit to such palpable and repeated violations of their political rights .*
It was not surprising that these special references should have been made to Massachusetts, in speaking of the British Colonies in America. For the various oppressive and arbitrary acts of Parliament had par- ticular relation to this province. Ministers considered the subjects in this colony, whether justly or not, the most refractory, and the greatest opposers of ministe -. rial measures ; and it became their chief object to subdue or silence them. It was also the policy of the British Ministry at this time, to prevent, if possible, an union of sentiment and action among the several colonies. Besides, such was the power of Britain, that, in the opinion of many, it was little short of mad- ness, to think of open resistance ; nor did many yet believe it would be necessary for the maintenance of
* Col. Barre also made an able apology for the conduct of Massa- chusetts and the colonies, on this occasion. He referred to the wanton act committed by Captain Preston and his soldiers, in firing on the cit- izens of Boston, to the fair and impartial trial they had in the province, as proof of the moderation and orderly conduct of the people ; to their forbearance and patience when Mr. Otis was assaulted and beaten in the streets by a commissioner of the customs and a military officer .- " Yet the noble Lord [North] says," he added, " That we must shew the Americans we will no longer sit quiet under their insults. Sir, I am sorry to say, that this is declamation, unbecoming the character and place of him who utters it. In what manner have you been quiet? Has not government, for many years, adopted a series of irritating and offen- sive measures, without policy, principle, or moderation ? Have not your troops and your ships made a vain and insulting parade in their streets and harbors ? It has seemed to be your study to irritate and inflame them. You have stimulated discontent into disaffection ; and you have goaded that disaffection into rebellion. Can you expect to be well in- formed, when you listen only to partizans ? Can you expect to do jus- tice, when you will not hear the accused ?" He bore testimony to the loyalty of the people of New-England, with whom he had served in the late campaigns. And both he and Mr. Pownall declared, " that Ameri- cans always had been ready and always would be ready to render ser- vice and obedience to England, if justly treated."
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their ancient freedom. A change of measures in the British government was still the hope and belief of a considerable portion of the people.
In the month of March, the Boston port bill, so op- pressive to the inhabitants of the metropolis and so repugnant to the liberties of the whole province, hav- ing been hurried through both houses of Parliament, without suffering the agents from Massachusetts to be heard, received the royal assent. Several regiments of British troops and a large naval force were soon after ordered for Boston. The first day of June was fixed for the act to blockade the port, to go into ope- ration. Those for the selection of Counsellors by the King and his Ministers, and for authorising the Gov- ernor to appoint Judges, Magistrates, and other civil officers within the province, were expected soon to take effect .* It was even provided in the act for the better regulation of the government of Massachusetts, that Jurors should be returned by the Sheriffs, in- stead of their being drawn by lot by the Selectmen in the several towns, according to immemorial usage.
It was generally believed, that Governor HUTCH- INSON advised to these very severe and arbitrary measures .; There is however, no evidence, that he recommended these particular acts ; and yet there cannot be a doubt, that they were adopted in conse- quence of his representations, at different times, of the weakness of government in the province ; of the predominancy of democratic principles ; and of the necessity of abridging the liberties of the people. But the pretended dignity of the British government and the pride of ministers were now engaged in the controversy ; and all concessions to the province, by repealing the revenue acts, or overlooking the violent
* They were passed in May, and were to be in force after the first of August.
t Judge Marshall says, Governor Hutchinson was in England in March, 1774, advising to these acts. But he did not leave Massachu- setts till the last of May.
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and forcible destruction of the tea, were condemned as humiliating and impolitic.
As might justly be expected, these measures of Parliament produced a great excitement in the capi- tal, and through the province. It was believed, that nothing but unconditional submission to the unjust claims of the parent state would place Massachusetts within the influence of ministerial favor. But at- tached as they were to their King and to their breth- ren in England, and desirous as they were of continu- ing a part of the Empire, they were not prepared to sacrifice their civil and political rights to retain such a connexion. They believed they would be unworthy the name of Englishmen, and chargable with a base abandonment of the liberties and welfare of posterity, if they did not oppose such unconstitutional measures.
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