1774 tion; which they soon desisted from, and, by an act of the legislature, inflicted pains and penalties; but even this was judged in England to be irregular, the crimes mentioned in the act not being cognizable by the general assembly, such proceedings being proper only in the courts of law; and, therefore, the act was disallowed. A committee upon this occasion, notwithstanding, was appointed to carry up the articles to the governor and council, and, in the name of the house, and the good people of the province, to impeach the chief justice, &c., in much the same form of words as is made use of by the house of commons. Notice was given to the governor by the house; and he was desired, by being in the chair, to give them an opportunity of laying the articles of impeachment before him and the council. He signified to the house, in a message, that he knew of no crimes, nor misdemeanours, nor any offences whatever, which were not cognizable before some judicatory or other, in the province; but he knew of no criminal case, of which the governor and council, as a court of judicature, could take cognizance; and, if he should assume a jurisdiction without lawful authority, he should make himself liable to answer for an offence, before a judicature whose authority would be indisputable *. 66 Without taking any notice of this message, they resolved to proceed. Mr. Adams, chairman of the committee, addressed the council in this form :May it please your excellency, and the honourable council." Mr. Bowdoin, one of the council, no doubt by concert, observed to him that the governor was not in council. This gave opportunity for an answer. The governor is "presumed " to be present. This was certainly a very idle presumption. It gave pretence, however, for Mr. Adams to report to the *The king's court in Westminster hall; vide page 262. house, ouse, and, being the clerk of the house, afterwards 1774 o enter upon the journals, that the committee had mpeached the chief justice before the governor and council, and prayed that they would assign a time for hearing and determining thereon. The council were ready to take upon them their part in the scene; and, by their committee, informed the governor of the impeachment and desired that he would appoint a time to be present and to proceed upon the trial. Until now they had kept out of sight. The governor put them in mind of the reasons he had given to the house, of which they could not be ignorant*, against this impeachment; and added, that they had, nevertheless, desired him to appoint a time to take cognizance of it, as if it had been a matter of course; it was therefore necessary for him to observe to them, that in two cases only, which they well knew to be those of divorce, and appeals from inferior judges of the courts of probate, both which were of a civil nature, the governor and council had the powers of a court of judicature, and that in these the governor, though always a necessary, yet was not an integral part; but in all other cases, said to be acts of the governor and council, they were properly acts of the governor, which he was authorized to do with the advice and assistance of the council, for the charter had given to him only the power of assembling the council, whenever he thought proper for that purpose, and the council could not lawfully assemble as a council by any other authority, nor by their own consent or agreeTheir assembling, or not assembling, being thus left to his discretion, it could not reasonably be supposed that he would cause them to be assem ment. It was the practice for the secretary, from mere respect to the council, to read to them all messages from the governor before they were read to the house, even in those cases wherein the council had not been consulted, and had no immediate concern. bled, 1774 bled, in order to lay before them any matter or thing in direct repugnance to the authority of the king and of the parliament. It could, besides, be to no purpose, because hes hould not dare to act. if the council should advise him to it. That the council had a right to meet, of course, upon every matter cognizable by the governor, with assistance of the council, he was determined not to admit. The house, to avoid the governor's exceptions to his acting with the council as a court of judicature, instituted a new process, and, after exhibiting articles in the same words, they altered the conclusion only, and, instead of praying the governor and council, as in the former," that such proceedings, examinations, trials, and judgments, may be had thereon as are agreeable to law and justice," they pray, that, "if he be found guilty, he may, by the governor and council, be forthwith removed from his office, and some other person, more worthy, be appointed in his stead." Both these, like two counts in a writ, lay before the council at the same time, that, if one should fail, the other might serve the purpose. Besides the charge of receiving a salary from the king, he was charged in both, with saying, in his answer to the house, that the salary granted him by the assembly had not been adequate to his support; which they declare to be ungratefully, falsely, and maliciously labouring to lay imputation and scandal upon his majesty's government in the province. This alone, it was said by the members both of council and house, was sufficient to remove him, and might ease the governor of the difficulty of removing him for taking a salary from the king. The chief justice had never received more than two hundred pounds for a year's salary, but this year they advanced the salary to three hundred pounds. Surely it must be because two hundred pounds were not adequate; and yet they charge the chief justice with falsehood and malice for saying it was not adequate. The The governor might very well have justified the 1774 putting a stop to the proceedings of the house, by a prorogation, upon their first vote or resolve upon the subject of the judges' salaries. To prepare them for it, he acquainted them, by a message, that he had obtained his majesty's leave to go to England *, and intended to avail himself of it, and that he should soon put an end to the session, that he might prepare for his voyage, and he recommended the despatch of the "necessary" business of the province. The council and the house continued to apply themselves to obtaining the removal of the chief justice, as the most "necessary" business before them. The latter suppose there must of necessity be a power in the government of removing officers who are guilty of high crimes and misdemeanours, and that this power, in the Massachusetts constitution, is in the governor and council; and, as, in order to a determination, they will, and ought to," inquire" into the charge, the governor with the council do, from the nature and necessity of the thing, make one court, or justiciary body; for the "inquiring" and "determining" involves in it a "involves in it a judicial act, which constitutes a court. The rest of a very long message was framed principally for introducing several fleers, marked by inverted commas, at parts of the governor's speeches at former sessions, and at an expression in one of his letters which had *The unfair manner in which his private letters had been obtained, and the more unfair construction put upon them by council and house, and the arts used, by particular persons, to incense a people against him, whose favour he had enjoyed for many years, brought him into an ill state of health, from the concern upon his mind. This induced him to apply for his majesty's leave, intending to make use of it, if the dark prospect continued. The order was transmitted by the first opportunity, and he was left at his liberty to make use of it, or not, as he thought proper. 2 G been 1774 been before the house; and it concluded with saying, that if, when they complain, they cannot even be heard, they yet have the pleasure of contemplating, that posterity, for whom they are struggling, will do them justice, by abhorring the memory of those men who owe their greatness to their country's ruin. It will be difficult to meet with stronger marks of envy, malignity, and a revengeful spirit, than appear in this composition. The council are still more ingenious in their reasoning. They complain, that when a copy of a remonstrance, which had been addressed to the governor and council, was laid before him, he had given an answer without communicating it to the council; and ask whether this is not an infringement on the rights of the council; and assure the governor, that, if he had communicated it, they would have done nothing inconsistent with their duty to the king. The appointment of persons to office they admit to be by the governor, the council advising and con senting. But they add, that, after being thus appointed, a property is acquired in an office, and no person can be deprived of his property, but by a judicial act; and the power which removes must therefore be considered, and in fact be, a court of justice; and it is essential to a court of justice, that no one member of it, should be an integral part. The governor, with the advice and consent of the council, having, by charter, the power of appointing officers, he is then considered as an integral part; but the power of removing is derived from a parti cular clause in the charter. "The governor with the assistants or councillors, or seven of them at least, shall and may, from time to time, hold and keep a council, for the ordering and directing the affairs of our said province." Thus, they add, the governor |