Two Salaries for Chief Justice Peter Oliver

One of the Massachusetts Whigs’ complaint about Thomas Hutchinson in the 1760s is that he amassed too many offices for himself.

Hutchinson was simultaneously the lieutenant governor, as such a member of the Council, the chief justice of the superior court, and a probate judge.

When Gov. Francis Bernard went home to Britain and Hutchinson became the acting governor, he gave up his judicial posts. Benjamin Lynde seemed like a natural fit for that role—his father, also named Benjamin Lynde, had been chief justice from 1729 to 1745.

After less than two years, however, Lynde resigned. Hutchinson, now governor in his own right, looked for a new chief justice. But first, he appointed his brother Foster to the court.

(Lyndes and Hutchinsons weren’t the only judicial dynasties. In 1772, William Cushing became a third-generation justice.)

Gov. Hutchinson decided to recommend elevating associate justice Peter Oliver (shown above) to the chief position. Oliver had been on the court since 1756. He was a strong supporter of unpopular Crown officials, as he’d shown at the trials of Ebenezer Richardson, Capt. Thomas Preston, and the British soldiers in 1770.

Oliver was also related to Hutchinson by marriage in three different ways. And his own brother Andrew was lieutenant governor. For the Whigs, Hutchinson giving his old jobs to his in-laws didn’t really look like sharing power.

One aspect of royal rule that should seem foreign to us is that Crown officials could keep a lot more of their actions secret from the public. Since the people’s representatives weren’t involved in choosing governors and justices or paying their salaries under the Townshend Acts, why did they need to know?

In July 1772 the Massachusetts General Court demanded that Gov. Hutchinson tell them whether he was getting paid by the Crown. He said he was. Joseph Hawley, a lawyer and representative from Northampton, drafted resolutions condemning this arrangement, but the legislature couldn’t do anything more about it.

It took even more time for the assembly to confirm that the royal government had offered salaries to Chief Justice Oliver and his colleagues. And even then it wasn’t clear the justices would accept that money. That didn’t stop Samuel Adams and the new Boston committee of correspondence from making that their primary complaint to other towns in late 1772.

In early 1773 the General Court tested the system by appropriating £300 to pay Oliver for the previous judicial term and £200 for the associate justices. In June, the newly elected legislature (many of the representatives having been reelected) asked treasurer Harrison Gray if the justices had collected that money. They had taken only half, Gray reported.

Aha! said the legislators. That means the justices were living off the royal government’s tax revenue. At the end of June, the General Court demanded that those men renounce any pay except what it had voted on. This is one of the paradoxical moments in Revolutionary confrontations: Massachusetts politicians demanding to pay government officials they disliked instead of letting the royal government do it. But it was the principle of the thing, you see.

The associate justices agreed that they wouldn’t accept any more royal pay. Chief Justice Oliver didn’t. The next move was up to the Whigs. But according to the provincial charter, they had no role in picking judges. So what could they do?

TOMORROW: John Adams’s bright idea.