“This House will impeach Peter Oliver, Esq;”

John Adams’s memoir, as quoted yesterday, offers his recollection of how he informed the Massachusetts assembly about the possibility of impeaching Chief Justice Peter Oliver—a rare practice, at least in Massachusetts.

The memoir doesn’t state when that happened, only that it occurred after Adams’s exchange of newspaper essays with William Brattle in early 1773.

We can say, however, when the assembly seized on the impeachment remedy. The 1773–74 legislative year started on 26 May, and on 28 June, the second-to-last day of its first session, the house resolved:

That it is the incumbent Duty of the Judges of the Superior Court without Delay, explicitly to Declare, whether they are Determined to Receive the Grants of the General Assembly of this Province, or to Accept of their Support from the Crown;…And in such Case [of delay] it will be the indispensible Duty of the Commons of this Province, to Impeach them before the Governor and Council, as Men disqualified to hold the important Posts they now sustain.

The house thus laid out its plan for the coming months. But that game plan still took a long time to play out.

The house reconvened on 26 Jan 1774. By then the colony was anxiously waiting to see how Parliament and its ministers in London would respond to the Boston Tea Party. But there were still unfinished local business.

On 1 February, the house noted a letter from Justice Edmund Trowbridge saying he wouldn’t take any salary from the Crown. (On that same day the house dismissed John Malcolm’s petition for redress.) The next day, the body demanded answers from the other justices within six days. (It also approved a payment of £500 to Benjamin Franklin for his services, which included the infamous leak.)

In a reply dated 3 February and read to the house on Monday, 7 February, Chief Justice Oliver said he had accepted the royal salary since July 1772. And that he would continue to do so “lest I should incur a Censure from the best of Sovereigns,” which would be George III.

On 11 February, the house approved a remonstrance against Oliver, “praying that he may not be suffered any more to sit and act in his Office of Chief Justice.” There were nine votes against. Three days later, the full legislature agreed that the superior court should be adjourned for three days as this was worked out.

The next day, Gov. Thomas Hutchinson responded to the remonstrance, promising to send it to the royal government in London but refusing to interfere with that government’s choice to put Oliver on the bench and pay him.

The day after that, the house invited the Council to respond to this action. In the afternoon, it resolved that the whole house wait on Gov. Hutchinson and give him a petition seeking “the Removal of the Chief Justice.” Two days later, on 18 February, the house went into the Council chamber and speaker Thomas Cushing read this petition to the governor.

On Monday, 21 February, the house passed another resolve saying it would be “highly improper, and contrary to Usage and Precedent,” for Chief Justice Oliver to sit on the court while this dispute was ongoing.

The next day, Gov. Hutchinson summoned the house members to the Council chamber. He told them he “was obliged to decline” the request to remove Oliver, and that they had misrepresented parts of the provincial charter. In response, at the end of the session on 22 February, the house resolved “That this House will impeach Peter Oliver, Esq; Chief Justice of the Superior Court, of certain High Crimes and Misdemeanors.”

And finally on 24 February, the house did vote to impeach, with only eight nay votes. The was 250 years ago this week. The representatives chose a committee, headed by Samuel Adams, to “lay before the Governor and Council a Copy of the Articles of Impeachment.” 

Because impeachment in the lower house was only the start of the process. Based on the model of Parliament, the next step was for the upper house, the Council, to try the case. And, needless to say, Gov. Hutchinson was not ready to allow that.

TOMORROW: The governor’s move.

Convicted for the Boston Massacre

After Robert Treat Paine finished his closing argument in the second Boston Massacre trial on 5 Dec 1770, the justices delivered their charges to the jury.

In modern trials, judges usually confine their remarks to clarifying points of law. In the eighteenth century, they also analyzed the facts of the case, often making clear what verdict they thought was appropriate.

The justices spoke in reverse order of seniority, with Edmund Trowbridge going first. Having been the province’s attorney general for over a decade, he had the most courtroom experience of any of the judges. Indeed, one didn’t even have to be a lawyer to become a Massachusetts Superior Court justice.

After reviewing British law on murder, Trowbridge got into how to apply it to the specifics of this case:

Some witnesses have been produced to prove that [Edward] Montgomery killed [Crispus] Attucks; and [Edward G.] Langford swears [Mathew] Killroy killed [Samuel] Gray, but none of the witnesses undertake to say that either of the other prisoners in particular killed either of the other three persons, or that all of them did it. On the contrary it seems that one of the six did not fire, and that another of them fired at a boy as he was running down the street, but missed him (if he had killed him, as the evidence stands, it would have been murder) but the witnesses are not agreed as to the person who fired at the boy, or as to him who did not fire at all.

It is highly probable, from the places where the five persons killed fell and their wounds, that they were killed by the discharge of five several guns only. If you are upon the evidence satisfied of that, and also that Montgomery killed Attucks, and Killroy Gray, it will thence follow that the other three, were killed, not by the other six prisoners, but by three of them only: and therefore they cannot all be found guilty of it. And as the evidence does not shew which three killed the three, nor that either of the six in particular killed either of the three, you cannot find either of the six guilty of killing them or either [of] them.

As to the argument that the soldiers were guilty for firing without orders or authorization from a magistrate, Trowbridge stated, “A man by becoming a soldier, doth not thereby lose the right of self-defence which is founded in the law of nature.”

Next came Justice Peter Oliver (shown above), who left no doubt about what verdict he would consider just:

If upon the whole, by comparing the evidence, ye should find that the prisoners were a lawful assembly at the Custom house, which ye can be in no doubt of if you believe the witnesses, and also that they behaved properly in their own department whilst there, and did not fire till there was a necessity to do it in their own defence, which I think there is a violent presumption of: and if, on the other hand, ye should find that the people who were collected around the soldiers, were an unlawful assembly, and had a design to endanger, if not to take away their lives, as seems to be evident, from blows succeeding threatnings; ye must, in such case acquit the prisoners; or if upon the whole, ye are in any reasonable doubt of their guilt, ye must then, agreeable to the rule of law, declare them innocent.

No one kept a detailed record of Justice John Cushing’s remarks. He apparently said much the same as his colleagues.

Finally came the senior and presiding judge, Benjamin Lynde. Only some of his remarks survive. He acknowledged the evidence against Pvt. Kilroy, both in firing a fatal shot and in having a malicious motive, was the strongest against any of the defendants. Then he added:

But whether he can be charged with murder is the question, when he went there, not by himself, but by command of his officer whom he was bound to obey, and placed there in defense and support of sentry fixed at this post by martial authority. And when you consider the threatening given them all, the things flung, and stroke given, and that the person slain [Attucks] was one of the most active, and had threatened he would knock down some of the soldiers, and, what [witness Joseph Hinkley] swears, was animating and pushing on the people, dissuading them from running away, for “they durst not fire,” these things, together with the real danger they all were in from the numbers surrounding, may lessen his crime, from what he is charged with, to manslaughter.

According to Paine’s notes, the case was turned over to the jury “at 1/2 past one” on 5 December. Those twelve men went away and deliberated “for about two hours and an half,” or until late afternoon. In contrast, the jury in Ebenezer Richardson’s trial back in the spring had met from 11:00 P.M. to about 9:00 A.M. before pronouncing the man guilty of murder. The jury in Capt. Thomas Preston’s trial were out from 5:00 P.M. to 9:00 the next morning and decided on acquittal.

Court officials asked foreman Joseph Mayo to announce this jury’s decision about each defendant in turn. The judgments were:

• Cpl. William Wemys, not guilty.
• Pvt. James Hartigan, not guilty.
• Pvt. William Macauley, not guilty.
• Pvt. Hugh White, not guilty.
• Pvt. Mathew Kilroy, not guilty of murder, guilty of manslaughter.
• Pvt. William Warren, not guilty.
• Pvt. John Carroll, not guilty.
• Pvt. Edward (Hugh) Montgomery, not guilty of murder, guilty of manslaughter.

TOMORROW: Inside the jury room.

Ebenezer Richardson’s New Attorney

On 17 Apr 1770, 250 years ago today, the Massachusetts Superior Court convened to try Ebenezer Richardson and George Wilmot for murdering young Christopher Seider.

At least, the court tried to. The attorney whom the judges had ordered to represent Richardson, Samuel Fitch, didn’t appear. He was apparently home sick.

The judges therefore assigned the principal defendant a new lawyer: Josiah Quincy, Jr. (shown here in a posthumous portrait by Gilbert Stuart).

Already, back in late March, Quincy had agreed to help defend Capt. Thomas Preston and the eight soldiers charged with murder for the Boston Massacre. He explained his decision in a firmly worded letter to his father, which I quoted here.

That letter also said the top Boston Whigs supported young Quincy’s choice. They wanted the military men to receive what all of Britain would have to acknowledge was a fair trial. It’s not so clear that they felt the same about representing Richardson, but for Quincy the principle had been established.

Josiah Quincy would have to argue against his older brother, Massachusetts solicitor general Samuel Quincy, on the prosecution team with Robert Treat Paine. But the brothers didn’t have the most curious conflict in the case.

One of the judges overseeing the trial was Edmund Trowbridge, attorney general of Massachusetts from 1749 to 1767. Back in the early 1750s, he had also represented the Rev. Edward Jackson of Woburn in his defamation case against Roland and Josiah Cotton. Just when it looked like Jackson had lost his suit, another man admitted that he had fathered the illegitimate child that the Cotton brothers had blamed on Jackson.

That now-admitted real father was none other than Ebenezer Richardson. He had had to move out of Woburn into Boston. And he had to find a new form of employment—which involved serving Trowbridge as a confidential informant. In a document sent to London in the early 1760s, Trowbridge even cited Richardson for being “very serviceable to me in detecting a conspiracy to father a bastard child on the parson of a parish.” But in the small world of the colonial Massachusetts bar, that wasn’t enough of a conflict to take Trowbridge off the bench for this trial.

The judges rescheduled Richardson and Wilmot’s case for 20 April. In other words, Josiah Quincy had three days to prepare.

The Marriage of Ebenezer and Kezia Richardson

When Kezia Fowle and Thomas Hincher (or Henshaw) first got married in February 1742 (according to our modern calendar), they didn’t go to any of the meeting-houses in their native Woburn. Instead, they went to King’s Chapel in Boston.

That was an upscale Anglican church while their families back home were Congregationalist, but perhaps it was more welcoming to a couple in their circumstances. Three months later Kezia gave birth to the couple’s first child, also called Kezia.

In 1754, when Kezia wished to get married a second time, to her late sister’s husband Ebenezer Richardson, she went back to King’s Chapel (recently rebuilt in stone, as shown above). Their intention was announced in January, though they didn’t actually get married until 14 May. At that time, they both listed themselves as “of Boston,” having left Woburn behind. As I’ve been recounting, Ebenezer and Kezia had made themselves unpopular in two ways:

• by having a child while Rebecca, his wife and her sister, was still alive.
• by letting people believe the Rev. Edward Jackson was the father.

Ironically, if Ebenezer and Kezia had just managed to put off their affair, or not gotten pregnant during it, then they could have married after Rebecca Richardson’s death without raising many eyebrows. I’ve found several examples of widowers marrying sisters of their late wives in eighteenth-century New England.

Boston welcomed Ebenezer and Kezia Richardson in its traditional way: on 30 Sept 1754, a town employee “warned out” the couple, a legal ritual establishing that Boston took no responsibility if they came to need public assistance. But they stayed, and put down roots. In April 1758 the Richardsons buried a child out of Christ Church (now called Old North).

In Woburn, Ebenezer Richardson was a yeoman farmer, but in Boston he had to find a new way to support his family. At some point he began to offer confidential information to the province’s Attorney General, Edmund Trowbridge. (Folks who’ve followed this saga closely will recall that Trowbridge had also been Jackson’s lawyer.) Trowbridge later passed Richardson and his tips on to a Customs official named Charles Paxton.

In 1760 Paxton had a rival in the Boston Customs office: collector Benjamin Barons, who was more popular with local merchants, probably because he let them get away with more. On 4 December, Barons tried to talk Richardson over to his side. The informer heard him out, then hurried to Trowbridge and blabbed. The following February, Richardson signed a deposition about his conversation with Barons that went to London in the record of that office dispute.

Someone in London leaked that document, or news of its contents, back to Boston. From then on, Richardson was known as “the Informer.” He was particularly unpopular with the prominent merchants he’d named as being “concerned in the Illicit trade”: John Rowe, the elder Benjamin Hallowell, Solomon Davis, and Arnold Wells. Around that time the Customs service hired Richardson openly since he could no longer work undercover.

In August 1765, four days after a mob sacked Lt. Gov. Thomas Hutchinson’s mansion in the North End, Boston’s Overseers of the Poor paid a man to carry Ebenezer Richardson, wife, and family to Woburn, possibly for their own protection.

In September 1767, after a dispute over a Customs search in the North End, a crowd of boys jeered Richardson’s home.

And in February 1770, when he tried to break up a picket line of boys outside an importer’s shop, those boys followed Richardson and threw garbage and rocks at his house. That confrontation ended with Richardson shooting Christopher Seider and Sammy Gore, and being arrested for murder.

At that time, Ebenezer and Kezia Richardson were still together. Their family also included two daughters—Sarah and Kezia—old enough to testify at Ebenezer’s murder trial. I haven’t found any other record of those girls.

There’s no evidence that the Richardsons’ marriage lasted through Ebenezer’s conviction, extended stay in jail awaiting sentencing, royal pardon, and flight from Boston. When he and his co-defendant petitioned the Crown for aid in early 1775, the other man referred many times to his “famely”; Richardson didn’t mention having a wife or child.

And that 1775 document is also the last trace I’ve found of Ebenezer Richardson.

“The Defendant...did not appear”

Samuel Sewall, historian of Woburn, recorded a story of what happened when the Rev. Edward Jackson reopened his libel suit against the Rev. Josiah Cotton. But reading between the lines makes it clear that Sewall didn’t believe that tale. It had probably been reshaped over time for dramatic effect.

In January 1753 the Massachusetts Superior Court had ruled Cotton justified in calling Jackson “a vile, wicked man, a fornicator, and unfit to be a minister.” Then in August, Jackson told the court he had new evidence. Here’s the tradition of what happened the following January, in Sewall’s words:

When the Court was assembled and ready to attend to the Review petitioned for, Mr. Jackson put the letter above referred to [see yesterday’s posting] into his Attorney’s hand. The lawyer [Edmund Trowbridge] shows it to its author, a leading man of the Fox [i.e., anti-Jackson] party, then present, and asks him if he knew and would own his own hand? The writer blushed and was confounded.

The cause being explained to Rev. Mr. Cotton, he ran out of the Court house, and cried like a child at perceiving how deceived or mistaken he had been.

How’s that for drama? Jackson vindicated! His rival in tears! His main accuser (probably Roland Cotton) blushing in embarrassment.

But Jackson wasn’t the type to keep quiet about being vindicated for five months, even as his reputation suffered and his livelihood was at risk. During earlier controversies he’d been quick to take action against his critics.

Furthermore, as Sewall notes, the record of the Superior Court hearing in 29 Jan 1754 says:

The Defendant altho’ solemnly called to come into Court, did not appear, but made Default, and the Plaintiff (the Defendant having paid him the Costs) Releases his Demand for Damages.

So by that winter date, Cotton had already paid Jackson his court costs, implying those two men had reached a private settlement. The hearing that Cotton didn’t attend was just a formality. (Jackson had already promised to forgo any damages for libel if Cotton would apologize.)

Instead of January 1754, it looks like the crucial breakthrough in this case occurred in August 1753.

TOMORROW: What folks in Woburn were up to that month.

The Case of Edward Jackson v. Josiah Cotton

In September 1752, the Rev. Edward Jackson filed suit against his cross-Woburn rival, the Rev. Josiah Cotton, for calling him “a vile, wicked man, a fornicator, and unfit to be a minister.” And all because Cotton’s brother Roland had said he’d seen evidence that Jackson had fathered a child by his housekeeper, Kezia Hincher.

For his attorney, Jackson hired Edmund Trowbridge (1709-1793), a scholarly lawyer from Cambridge. (Both men had grown up in Newton.) At some point midwife Hannah Poole and her husband gave him a written statement that, contrary to report, they had never heard Hincher identify Jackson as the child’s father.

Josiah Cotton hired Benjamin Kent (1708-1788) of Charlestown to defend him. According to Woburn historian Samuel Sewall, Cotton

rested his defense, not upon any direct answer to what had been alleged against him in Mr. Jackson’s Declaration, but upon the denial of some promise that Mr. Jackson had averred that he (Mr. Cotton) had made him

I suspect Cotton argued that he’d never promised Jackson a public apology like that already delivered by his brother Roland, which should have been enough to restore Jackson’s reputation.

At the Court of Common Pleas, Jackson won a judgment of £1,000, plus court costs of £1.16s.6d. That was a huge sum by any measure. The magistrates might have meant to pressure Cotton into a public apology before things went any further.

Instead, Josiah Cotton appealed to the Superior Court. The ministers had another chance to settle, but let the case go to a jury. And then Jackson lost almost everything he had won.

In January 1753, the jurors decided that Jackson should not receive any damages and owed Cotton legal costs, implying that his libel suit was baseless and that he was indeed the father of Hincher’s child, then about one year old.

Perhaps the Cottons had mounted a firmer defense at this level, gathering evidence that they hadn’t had before. In the next century Sewall would hear this story from a man named Bartholomew Richardson:

Two of them [enemies of Jackson] in particular, according to a tradition derived from a source of high respectability, encouraged Mrs. Henshaw to go before a magistrate, and swear to the truth of the report which she had put in circulation [about Jackson fathering her child]; and that when she had taken an oath to this effect, they were seen by a friend of Mr. Jackson who was looking on, to put money into her lap.

However the Superior Court verdict came about, Jackson’s reputation was now even lower than before. Reportedly, an official council of ministers gathered to deliberate on his standing.

TOMORROW: But Jackson hadn’t given up.