March 1774

The Charter of this Government is as & much Pacta conventa,1 as Magna Charta & it can no more be revoked or infracted by the King, than that can.

The Govr. with Advice & Consent of Council appoint officers & in the nature of that Power must be involved the Idea of a power of removal. Otherwise let an officer behave never so bad he could not be removed & his Majestys Service & the Good of the people must Sustain great damages, as it is Supposed no officer would be wantonly removed without previous enquiry into the Reasons of Removal, that enquiry involves in it the Idea of Reasoning & hearing the other side & it must issue in a Judgment or determination that he ought or ought not to be Removed, which Enquiry & determination is in essence a Court, the Original Appointment & Authority of wch. is necessarily included in the Power of Appointment of Officers, & to this purpose it is Judicial, & for this purpose they have Cognizance of Crimes & Misdemeanors charged upon all Officers as it is on the truth of such a charge that the officer is to be removed, the Jurisdiction of these crimes being for a particular purpose, may not be said to be concurrant with the courts of Justice in the very punishments to be inflicted in Removal & if the causes the Removal, by means of these crimes may be necessary, & the Court which or Power which has Cognizance of his Office may & ought to enquire into it as a necessary Guide to their Conduct, tho perhaps other Judicatories may take Cognizance of such crimes & misdemeanors & punish them as Breaches of the Laws of the Land, A B, & it may ought moreover to be considered that there may be Crimes & misdemeanors of such a nature appertaining to the Execution of an Office which may disqualify the officer & render him liable to censure from the? power wch. appoints him & perhaps even to a Removal which may yet not be of such a nature as to subject the officer to the punishments by the Ordinary Courts of Justice.

And it is further to be observed, that in all Communitys there must be a Supreme Court who have Cognizance of all Crimes & misdemeanors of a public nature, where Officers may be tryed respecting their Conduct529in office, as it would be to no purpose to try an officer in a Court of which he is member & perhaps the first office; there never was an Instance known in England of a Judge of either of the Courts at Westminster being tryed for high crimes & misdemeanors before either of those Courts, but many are the Instances of their being impeached before the Lords.

A. but it is not to be expected not consistent with the dignity of such a Court, that they should wait the event of a Tryal by a Jury, wch. may never take place, before they proceed to enquire into the Reasons & necessity of Such a Removal B. if the Judges hold this officer durante bene pla2 quam. bene gess.3 it unavoidably follows there must be some where a Court Power to determine such good Behaviour wch. Power as it must be exacted by enquiry, is necessarily a Judiciary Court C: Judge O. has declared to to the House, that his Majestys Grant being made so long as he continues in the office Renders his Commison is a tenure of it quamdiu 4 & if so his Behaviour & if so wch. is the Tenure of his Comssn. Grant must be Subject to the examination of some Court, & it must be the Court wch. has power to Repeal the Grant to say that his office being quamdiu by virtue of the Kings Grant & therefore the Good Behaviour which is the source of his Grant must be such Behaviour as his Majesty & his Ministers shall esteem good i:e such as they direct which is the very Biass we complain of

and as the End of that Enquiry into the Good Behaviour is to judge whether the office be determined or not, it must be made by some Court who have jurisdiction over the Officer & power of Removal. If it be said that the House of Lords hear & judge of Crimes & Misdeameanors charged on the Judges tho' they have no power of Removal, to this it may be answered, that the King holds no Court in person but enquires into all matters by his Servants, that those crimes & misdemeanors which peculiarly relate to the Removal of a Judge are never enquired into by the Kings Courts in Westminster, that the House of Lords are vested with the Jurisdiction in such cases & upon Cause of Removal certify the same to the King as address his Majesty for that purpose by the charter of this province, the Govor. wth. adv. & cons: of the Council appoint officers & they have the power of Removal & as they may & do sit as a Court for certain purposes, to them belongs the Enquiry of the Truth of Such Charge.

Partial dft. on two sheets (the final "Answer to his Excellency's Message" regarding the power to remove civil officers is printed below); endorsed on the first sheet: "On the530 Power of Removal, Judge Oliver, 1773"; In another hand: "Bills and papers orderd. to ly May 1773"; Mr. Paine Coll. Bowers and Maj Hawley to bring in a bill to limit the time for Creditors to bring in their Claims on the Estates of persons decd." The second sheet is endorsed: "Draft of Address of H. Reps. to Gov: respecting Impeacht. of Peter Oliver: C.J." A gap in the text indicates that there was perhaps an interim sheet which is now missing.

Sections A, B, and C on the first sheet were lettered to indicate inclusion within the text. Since the intended location of section C was not indicated, all sections have been left as originally positioned.

On the verso of the second sheet are numbered arguments from Blackstone:

1 Black. 244. for as the King cannot misuse his Power without the Advice of his Councellours, and Assistance of wicked Ministers, these men may be examined and punished. The Constitution has therefore provided, by means of Indictments and Parliamentary Impeachments, that no man shal dare to assist the Crown in Contradiction to the Laws of the Land &c.

268. 1 Geo.III.ch.23 an Act for Independancy of the Judges; made on this Declaration of his Majesty, "he looked on the Independancy and uprightness of the Judges, as essential to the impartial Administration of Justice as one of the best Securitys of the Rights and Libertys of his Subjects:" And as most conducive to the honour of the Crown.

272. in 13 Hen 4. a new office being created by the Kings Letters patents for measuring cloths, with a new fee for the same, the Letters patent were, on account of the new fee, revoked and declared Void in Parliament.

269. Were it (the Judicial Power) joined with the executive, this Union might soon be an over ballance for the legislative, for which Reason by the Statue of 16 Car. 1.c.10. which Abolished the Court of Star Chamber, effectual Care is taken to remove all judicial power out of the hands of the Kings Privy Council; who as then was evident, from recent Instances, might soon be inclined to pronounce that for Law which was most agreable to the Prince or his Officers. Nothing therefore is more remainder of text missing.

1.

Covenants agreed upon.

2.

Durante bene placito. During good behavior.

3.

Quamdiu se bene gesserit. During good behavior.

4.

As long as.

March 7, 1774 May it please your Excellency,

The House of Representatives have attentively considered your Message of the twenty-sixth of February, in which your Excellency is pleased to say, "That you know of no species of high crimes and misdemeanors, nor of any offences against the law, committed within this province, let the rank of the offenders be what it may, which 531is not cognizable by some established judicatory or judicatories, and you do not know that the Governor and Council have concurrent jurisdiction with any judicatories in criminal cases, or any authority to try and determine any species of high crimes and misdemeanors whatsoever." And you also add, that "if you should assume a jurisdiction, and with the Council try offenders against the law, without authority granted by the Charter or by a law of the province in pursuance of the Charter, you should make yourself liable to answer," &c.

We assure your Excellency, that as we would not willfully neglect any constitutional endeavours for a redress of grievances which this province labours under, so neither would we desire you to assume any jurisdiction not authorised by the constitution of the province. But your Excellency will allow us to say, that the sentiments advanced in your message, and on which you ground your refusal to comply with our requests, are new and very alarming to us. And as the point in question is of weighty importance to the province, we cannot refrain from freely expressing our minds upon it.

By the charter of this province, the Governor with the advice and consent of the Council, has the sole power of appointing Judges and other civil officers; and though there is no power of removal expressed in the charter, yet such power is necessarily therein implied, and the greatest evils and inconsistencies would arise from a want of it. As no officer ought to hold his office, when his crimes and misdemeanors have rendered him unfit for it, the Governor and Council who have the power of removal, will naturally enquire into the truth of the charges against the officer, previous to the removal; the contrary of which proceedure must suppose, either that an officer cannot be, or is not to be removed from his office, or else, that he may be removed upon the bare allegation of crimes and misdemeanors, without enquiry into the truth of them; neither of which your Excellency can be supposed to assert. As therefore officers must be removed for crimes and misdemeanors, and previous to such removal there must be an enquiry into the truth of such allegations, such enquiry must involve in it the power of notifying and hearing the officer accused; and it must issue in a judgment and determination, that the officer ought, or ought not, to be removed.

This procedure, necessarily involved in the power of appointing officers, is in essence a judicatory; and to this purpose the Governor and Council must have cognizance and jurisdiction of crimes and misdemean-532ors charged upon officers, as it is on the truth of such a charge that the officer is to be removed. This jurisdiction of crimes and misdemeanors, being for a particular purpose, may not be said to be concurrent with the other judicatories; as the only punishment to be inflicted in consequence of conviction is removal, and other judicatories, as the case may be, may take cognizance of such crimes and misdemeanors, and punish them as breaches of law. But, it is not consistent with the dignity and importance of the Governor and Council, vested with the power of removing officers, that they should wait the event of a trial by a jury (which may never take place) before they proceed to enquire into the reasons and necessity of such removal. And we would further observe, that there are high misdemeanors respecting the execution of an office, which may disqualify the officer and render him liable to removal by the power which appoints him, but yet may not be of such a nature as to subject the officer to punishment by the ordinary courts of justice. Should a judge dismiss a Grand Jury soon after their being impannelled, without permitting them to find any bills of presentment—Should he be charged with gross negligence and inattention to the duties of his office, or with great partiality or other corrupt practices, no one, we trust, will say, that such a judge should not be punished: But we do not know that the ordinary courts of judicatory would take cognizance of such offence, neither can we suppose, that the Governor and Council would remove such a judge, without due enquiry into the truth of the charge. From the very nature of our constitution, there must be some where a supreme court who have cognizance of the crimes and misdemeanors of high officers, so far at least, as is necessary for their removal: This supreme court, we take to be the Governor and Council; and to this court are to be presented, all complaints touching the misdemeanors of judges. When complaint is thus made of the crimes and misdemeanors of a judge to the Governor and Council, who have cognizance of his conduct and power of removal, we think the Governor and Council will and ought to enquire into the charge, previous to the removal; and that for this purpose, from the nature and necessity of the thing, the Governor with the Council do "make one Court or justiciary body:" And that, for the same reasons that the Governor and Council are a court for the probate of wills, and deciding controversies concerning marriage and divorce; because, though the removal, in it self considered, may be an act of government, yet, when the proof of misdemeanors is necessary, the enquiring into and determining on such misdemeanors, involves in it, a judical act, which constitutes a court.

533

If this be not the true description of our constitution, respecting the removal of officers, we are at a loss to know, of what use the Council are, or what their department is in Council: for, to suppose that the Council, are to be advising and consenting to the removal of an officer, without enquiring into the truth of any charge against him, is inconsistent and incongruous. If it is intirely in the discretion of the Governor, whether the misdemeanors of an officer shall be enquired into or not, it is then in the power of the Governor to give a sanction to the most flagrant corruption of a judge, and by screening a misbehaving officer from examinaton, to subvert the Justice of the province.

We therefore apprehend, that when a charge is thus made against a Judge before the Governor and Council, it ought to be examined; and if it be not proved, or, if what is proved be not sufficient ground of removal, the determination will be accordingly.

We are not disposed "to ground our construction of the charter on detached paragraphs;" but to consider all the parts, the intents and purview of the whole. And to us it therein appears, that we are expressly intitled to all the liberties enjoyed by the parent state, though "at the distance of three thousand miles from the said parent state"; and that the constitution of our government was designed as "an epitome of the English constitution"; and that such proceedures as we now pray for, have always been had and used in this government, as the case required.

Your Excellency in your message of the fifteenth of February is pleased to say, "If you should comply with our request, or take any steps in order to the removal of the chief justice from his place merely for receiving a salary thus granted him by the King, you should make yourself chargeable with counteracting his Majesty, and endeavouring to defeat his Royal intention expressly signified to you, and you should fear some mark of his Royal displeasure"; and therefore you say, "In duty to the King you are obliged to decline our request." To this we beg leave to answer; that the articles of impeachment referred to, in your Excellency's message of the twenty-sixth of February, and which your Excellency therein signified your refusal to receive, contain other matters besides merely receiving the grants of the King; and such matters as the representative body of this province thought themselves in duty bound to complain of to your Excellency and the Council, in order that enquiry and determination may be had thereon. We apprehend that we can clearly prove, that the articles of our complaint, are of the same kind with great numbers made by the534House of Commons in England, against high officers. As instances of this kind must be fresh in your Excellency's memory, we think it needless at present to adduce them. And as it never was supposed in England, that the dignity of the King was affected by any charges against his officers, we cannot conceive why it should here; for though it is a maxim, that the King can do no wrong, yet, by the misrepresentations of his officers much wrong hath been and may again be brought to pass. If any person may by his conduct, break through the constitution of the province grounded on the charter and confirmed by constant usage, without being liable to be called to account by any judicatory here, merely because the Royal assent to such construction hath been procured, we do not know where such practices will stop; and we fear, that by degrees, without our even having an opportunity of being heard, one innovation after another may be forced upon us, till there will be not only "an abridgment of what are called English liberties," but a total subversion of the constitution.

We assure ourselves, that were the nature of our grievances fully understood by our Sovereign, we should soon have reason to rejoice in the redress of them. But, if we must still be exposed to the continual false representations of persons who get themselves advanced to places of honour and profit by means of such false representations, and when we complain we cannot even be heard, we have yet the pleasure of contemplating, that posterity for whom we are now struggling will do us justice, by abhoring the memory of those men "who owe their greatness to their country's ruin."

Printed in Journals of the House of Representatives, 50:232–236. An incomplete rough draft of this document in the RTP Papers in his hand is printed above.