Last evening at Wheelwrights, with Cushing, Pemberton and Swift. Lt. Govr. Oliver, senseless, and dying, the Governor sent for and Olivers Sons. Fluker [Flucker] has laid in, to be Lieutenant Governor, and has perswaded Hutchinson to write in his favour. This will make a difficulty. C[hief] J[ustice] Oliver, and Fluker will interfere.

Much said of the Impeachment vs. the C.J.—and upon the Question whether the Council have the Power of Judicature in Parliament, which the Lords have at home, or whether the Governor and Council have this Power?1

It is said by some, that the Council is too precarious a Body to be intrusted with so great a Power. So far from being independent, and having their Dignities and Power hereditary, they are annually at the Will, both of the House and the Governor, and therefore are not sufficiently independent, to hold such Powers of Judicature over the Lives and Fortunes of Mankind. But the answer is this, they may be intrusted with the Powers of Judicature, as safely as with the Powers of Legislature, and it should be remembered that the Council can in no Case here be Tryers of Fact as well as Law, as the Lords are at home when a Peer is impeached, because the Council are all Commoners and no more. The House of Representatives are the Tryers of the Facts and their Vote Impeaching is equivalent to a Bill of Indictment, and their Vote demanding Judgment is equivalent to a Verdict of a Jury, according to Selden. Is not the Life, and Liberty and Property of the subject, thus guarded, as secure as it ought to be, when No Man can be punished, without the Vote of the Rep[resentative]s of the whole People, and without the Vote of the Council Board if he can without the Assent of the Governor.

But it is said, that there is no Court of Judicature in the Province, erected by the Charter, only. That in the Charter a Power is given to the general Court to erect Courts. That General Court has not made the Governor and Council a Court of Judicature, and therefore it is not one, only in Cases of Marriage and Probate.

To this it may be answered by enquiring, how the Council came by their Share in the Legislative? The Charter says indeed that the General Court shall consist of Governor, Council and House, and that they shall make Laws, but it no Where says, the Council shall be an integral Part of this General Court—that they shall have a Negative Voice.

It is only from Analogy, to the British Legislative, that they have assumed this Importance in our Constitution.

Why then may they not derive from the same analogy, the Power of Judicature?

About 9 at Night I step’d over the Way, and took a Pipe with Justice Quincy and a Mr. Wendel of Portsmouth. Mr. Wendell seems a Man of Sense and Education, and not ill affected to the public Cause.

Heard the oration pronounced, by Coll. Hancock, in Commemoration of the Massacre—an elegant, a pathetic, a Spirited Performance. A vast Croud—rainy Eyes—&c.

The Composition, the Pronunciation, the Action all exceeded the Expectations of every Body. They exceeded even mine, which were very considerable. Many of the Sentiments came with great Propriety from him. His Invective particularly against a Prefference of Riches to Virtue, came from him with a singular Dignity and Grace.1

Dined at Neighbour Quincys, with my Wife. Mr. John Dennie and Son there. Dennie gave a few Hints of vacating the Charter and sending Troops, and depriving the Province of Advantages, quartering Troops &c.—But all pretty faint.

The Happiness of the Family where I dined, upon account of the Colls. justly applauded Oration, was complete. The Justice and his Daughters were all joyous.

Heard Dr. Cooper in the Morning. Paine drank Coffee with me.

Paine is under some Apprehensions of Troops, on Account of the high Proceedings, &c. He says there is a ship in to day, with a Consignment of Tea from some private Merchants at home—&c.

Last Thursday Morning March 3d. died Andrew Oliver Esquire Lieutenant Governor. This is but the second death which has happened among the Conspirators, the original Conspirators against the Public Liberty, since the Conspiracy was first regularly formed, and begun to be executed, in 1763 or 4. Judge Russell who was one, died in 1766. Nat. Rogers, who was not one of the original’s, but came in afterwards, died in 1770.

This Event will have considerable Consequences.—Peter Oliver will be made Lieutenant Governor, Hutchinson will go home, and probably be continued Governor but reside in England, and Peter Oliver will reside here and rule the Province. The Duty on Tea will be repealed. Troops may come, but what becomes of the poor Patriots. They must starve and mourn as usual. The Hutchinsons and Olivers will rule and overbear all Things as usual.

An Event happened, last Fryday that is surprising. At a General Council, which was full as the General Court was then sitting, Hutchinson had the Confidence to Nominate for Justices of the Peace, George Bethune, Nat. Taylor, Ned. Lloyd [Lyde], Benj. Gridly and Sam Barrett—and informed the Board that they had all promised to take the oath.

The Council had the Pusillanimity to consent by their Silence at least to these Nominations.

Nothing has a more fatal Tendency than such Prostitution of the Council. They tamely, supinely, timorously, acquiesce in the Appointment of Persons to fill every executive Department in the Province, with Tools of the Family who are planning our Destruction.

Neighbour Quincy spent the Evening with me.

This Morning brought us News from S. Carolina of the Destruction of the Tea there, and from England of a Duel between Mr. Temple and Mr. Whately, and Mr. Franklins explicit Declaration, that he alone sent the Governors Letters to Boston and that both Temple and Whately were ignorant and innocent of it1—and that 3 Regiments are ordered to Boston and N. York, that the Judges opinions are required, and the Board of Trade in Motion, and great Things are to be laid before Parliament &c. &c. Twenty Eight Chests of Tea arrived Yesterday, which are to make an Infusion in Water, at 7 o Clock this Evening.

This Evening there has been an Exhibition in Kingstreet of the Portraits of the soldiers and the Massacre—and of H——n and C. J. Oliver, in the Horrors—reminded of the Fate of Empson and Dudley, whose Trunks were exposed with their Heads off, and the Blood fresh streaming after the Ax.

Last Night 28 Chests and an half of Tea were drowned.1

Returned from Charlestown Court with Coll. Tyng of Dunstable, who told me some Anecdotes of Bernard and Brattle, Otis, Hutchinson, &c. Bernard said “he never thought of Pratt”—he would find a Place for him now, upon that Bench. Brattle shall be Colonel and Brigadier, &c.—Bernard said—Afterwards this Miff broke out into a Blaze.1

Jemmy Russell was as sociable, and familiar, with Dix and Gorham, and Stone, and All the Members of the House as possible—an Artfull fellow! deeply covered.—He told a saying of the Admiral, at the Funeral Yesterday. “There never was any Thing in Turkey nor in any Part of the World, so arbitrary and cruel as keeping old Mr. Clark, at the Castle all this winter, an old Man, from his family.”2

This day the General Court prorogued in Anger by the Governor.

Dined at Charlestown with Mr. Thomas Russell, with Mr. Temple,1 Mr. Jacob Rowe, Mr. Nicholls, Mr. Bliss, and several other Gentlemen and Ladies, to me unknown. No Politicks, but Mr. Temples Duell, and the Pieces in the London Papers, relative to it. A young Brother of Mr. Russell came in. Conversation about making Porter here—our Barley, Hops &c.

The Right of private Judgment and the Liberty of Conscience was claimed by the Papists and allowed them in the reign of James 2d.—But has been prohibited by Law ever since. The Advocates for the Administration now in America, claim the Right of private Judgment to overthrow the Constitution of this Province, the Priviledges of all America, and british Liberties into the Bargain—sed Non allocatur.

There has been and is a Party in the Nation, a very small one indeed, who have pretended to be conscienciously perswaded, that the Pretender has a Right to the Throne. Their Principles of Loyalty, hereditary Right, and passive obedience have led them to this Judgment, and Opinion. And as long as they keep these Opinions to themselves, there is no Remedy against them. But as soon as they express these opinions publicly, and endeavour to make Proselytes, especially if they take any steps to introduce the Pretender, they become offenders, and must suffer the Punishment due to their Crimes. Private Judgment might be alledged in Excuse for many Crimes—a poor Enthusiast [may?] bring himself to believe it lawfull for him to steal from his rich Neighbour, to supply his Necessities, but the Law will not allow of this Plea. The Man must be punished for his Theft.

Ravaillac and Felton probably thought, they were doing their Duty, and nothing more, when they were committing their vile assassinations: But the Liberty of private Conscience, did not exempt them from the most dreadfull Punishment that civil Authority can inflict or human Nature endure.

Hutchinson and Oliver might be brought by their interested Views and Motives, sincerely to think that an Alteration in the Constitution of this Province, and an “Abridgment of what are called English Liberties,”1 would be for the Good of the Province, of America, and of the Nation. In this they deceived themselves, and became the Bubbles of their own Avarice and Ambition. The rest of the World are not thus deceived. They see clearly, that such Innovations will be the Ruin not only of the Colonies, but of the Empire, and therefore think that Examples ought to be made of these great offenders, in Terrorem.

The Enmity of Govr. Bernard, Hutchinson and Oliver, and others to the Constitution of this Province is owing to its being an Obstacle to their Views and Designs of Raising a Revenue by Parliamentary Authority, and making their own Fortunes out of it.

The Constitution of this Province, has enabled the People to resist their Projects, so effectually, that they see they shall never carry them into Execution, while it exists. Their Malice has therefore been directed against it, and their Utmost Efforts been employed to destroy it.

There is so much of a Republican Spirit, among the People, which has been nourished and cherished by their Form of Government, that they never would submit to Tyrants or oppressive Projects.

The same Spirit spreads like a Contagion, into all the other Colonies, into Ireland, and into Great Britain too, from this single Province, of Mass. Bay, that no Pains are too great to be taken, no Hazards too great to be run, for the Destruction of our Charter.

Heard Mr. Lothrop [Lathrop] in the Forenoon and Dr. Cooper in the Afternoon. Last evening Justice Pemberton spent with me. He says that Moses Gill has made many Justices by lending Money.

Rode with Brother Josiah Quincy to Ipswich Court. Arrived at Piemonts in Danvers, in good order and well conditioned. Spent the evening, and lodged, agreably. Walked out in the Morning to hear the Birds sing. Piemont says there is a Report that the Sons of Liberty have received some Advices from England which makes them look down—that they have received a Letter from Mr. Bollan that they must submit—and other Letters which they keep secret.

Rode to Ipswich and put up at the old Place, Treadwells. The old Lady has got a new Copy of her GranGranfather Govr. Endicott’s Picture, hung up in the House. The old Gentleman is afraid they will repeal the Excise upon Tea and then that we shall have it plenty, wishes they would double the Duty, and then we should never have any more.

The Q[uestion] is who is to succeed Judge Ropes—whether Brown or Pynchon or Lee or Hatch.1 The Bar here are explicit vs. the 2 last, as unfit. Lowell says Pynchon would take it, because he wants to make Way for Wetmore who is about marrying his Daughter.

Pynchon says Judge Ropes was exceedingly agitated all the time of his last Sickness—about the public Affairs, in general, and those of the Superiour Court in particular—afraid his Renunciation would be attributed to Timidity—afraid to refuse to renounce—worried about the Opinion of the Bar, &c.

Mr. Farnum is exceedingly mollified—is grown quite modest, and polite in Comparison of what he used to be, in Politicks. Lowell is so too—seems inclined to be admitted among the Liberty Men.

At a Meeting of the Bar a Doubt of Brother Lowell was mentioned upon the Law of the Prov[ince] for the Relief of poor Prisoners for Debt. Questions were asked whether appealing an Action was not fraud, whether trading without insuring was not fraud &c. A Question also about the Duty of the Sheriff? Whether a Party Plaintiff could controul the Kings Precept, &c., by ordering the Sheriff not to serve it &c. Mr. Wetmore was agreed to be recommended for the Oath &c.

A dull Day. My Head is empty, but my Heart is full. I am wanted at my Office, but not wanted here. There is Business there, but none here. My Wife perhaps wants to see me. I am anxious about her. I cannot get the Thoughts of her State of Health out of my Mind. I think she must remove to Braintree—and the Family, at least for the Season.

Let me ask my own Heart, have I patience, and Industry enough to write an History of the Contest between Britain and America? It would be proper to begin at the Treaty of Peace in 1763, or at the Commencement of Govr. Bernards Administration, or at the Accession of George 3d. to the Throne—The Reign, or the Peace.

Would it not be proper, to begin, with those Articles in the Treaty of Peace which relate to America?—The Cession of Canada, Louisiana, and Florida, to the English.

Franklin, Lee, Chatham, Campden [Camden], Grenville and Shelburne, Hilsborough, Dartmouth, Whately, Hutchinson, Oliver, J[udge] Oliver, Barnard [Bernard], Paxton, Otis, Thatcher, Adams, Mayhew, Hancock, Cushing, Phillips, Hawley, Warren, with many other Figures would make up the Groope.1