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.

Boston April 9.1774 Well Brother Paine!

How does the Impeachment set upon the stomachs at Middleborough?1 Cant you steal a Moment in an Evening or Morning to write me a Line, by Kent?2

I asked Putnam,3 at Charlestown this Week, whether the Chief Justice would sit at Worcester. He says he would not advise him to attempt it, and that he has given that answer, to all who have asked him about it, since he came down, of all Parties. The grand Jury at Charlestown, had535it sometime under Consideration, whether they should do any Thing as they were, Summoned by a Writ, tested by Peter Oliver Esqr. They determined to proceed but to tack to their Indictments, a Remonstrance expressing their full approbation of the Impeachment of the grand Inquest of the Province, and their full Reliance that, the said P. O. would not set upon the Tryal of them; This was Subscribed by all but four. The grand Jury had a few Things Said to them by the Court, with much Moderation but they answered with great Firmness, that they looked upon their Honours then present, in the same Light they always did—but they did not think him a constitutional Judge, and if he had been present they should not have taken the oaths.4

Had a Letter, last Week from Cohoss, from Collonell Judge, Clerk, Captain Fenton.5 He says that the spirit runs like wild Fire, to the very Extremities of N. Hampshire and that their Government is as determined, as ours.

News, is the Scarcest Commodity at Markett—Expectations are high—I want to hear how Things, are in your Quarter. Pray write me. I am, your Friend & sert.,

JOHN ADAMS

RC ; addressed: "To Robert Treat Paine Esqr Counsellor at Law at Plymouth"; endorsed.

1.

The home of Chief Justice Peter Oliver.

2.

Benjamin Kent.

3.

James Putnam.

4.

Oliver attended the court at Charlestown in Apr. 1774 but came under heavy criticism from the grand jury, which requested that he not preside at trials until acquitted on the impeachment. He did not attend the Worcester meeting of the court, and the grand jurors refused to sit. After this maneuver by grand jurors was repeated in Northampton and Plymouth, Oliver made no further attempts to convene the court which thus fell into abbeyance (Sibley's Harvard Graduates, 8:752; Boston Gazette, Apr. 11, 1774).

5.

Capt. John Fenton (d. 1785), a retired British Army officer, married Rebecca Temple, a member of the socially prominent Temple family of Boston and Charlestown. Upon receiving a grant of land in New Hampshire from Gov. John Wentworth of New Hampshire he moved there establishing himself in the township of Plymouth close to his land holdings in Coos County (Lawrence Shaw Mayo, John Wentworth, Governor of New Hampshire [Cambridge, Mass., 1921], 153–156).