Went to Boston. Dined with Mr. Rowe,1 in Company with Messrs. Gridley, Otis, Kent, and Dudley. After Dinner, went to the Town House, and Attended with the Committee of the Town of Boston and many other Gentlemen in the Representatives Room till about Dark, after Candle Light, when Mr. Adams, the Chairman of the Committee, received a Message from the Governor, by the Deputy Secretary, purporting that his Excellency and the Council were ready to hear 267the Memorial of the Town of Boston, and their Council in Support of it. But that no other Persons might attend.

We accordingly went in. His Excellency recommended it to Us, who were of Council for the Town, to divide the Points of Law and Topicks of Argument, among ourselves, that Repetition might as much as possible be avoided. Mr. Gridley answered, that, as he was to speak last, he would endeavour to avoid Repetition of what should be said by the two Gentlemen, who were to speak before him. Mr. Otis added that as he was to speak second, he would observe the same Rule.

Then it fell upon me, without one Moments Opportunity to consult any Authorities, to open an Argument, upon a Question that was never made before, and I wish I could hope it never would be made again, i.e. Whether the Courts of Law should be open, or not? My old Friend Thatchers Officina Justitiae?

I grounded my Argument on the Invalidity of the Stamp Act, it not being in any sense our Act, having never consented to it. But least that foundation should not be sufficient, on the present Necessity to prevent a Failure of Justice, and the present Impossibility of carrying that Act into Execution.2

Mr. Otis reasoned with great Learning and Zeal, on the Judges Oaths, the&c.3

Mr. Gridley on the great Mischiefs Inconveniences that would ensue the Interuption of Justice.

The Governor said many of the Arguments used were very good ones to be used before the Judges of the Executive Courts. But he believed there had been no Instance in America of an Application to the Governor and Council, and said that if the Judges should receive any Directions from the King about a Point of Law, they would scorn to regard them, and would say that while they were in those Seats, they only were to determine Points of Law.

The Council adjourned to the Morning and I repaired to my Lodgings.

Spent the Morning in sauntering about, and chatting with one and another—The Sherriff, Mr. Goldthwait, Brother Sewal &c—upon the Times. Dined with Brother Kent; after Dinner received a Hint from the Committee that as I was of Council for the Town I not only had a Right, but it was expected I should attend the Meeting. I went accordingly. The Committee reported the Answer of the Board to their Petition. Which was, in Substance, that the Board had no Authority to direct the Courts of Law, in the manner prayed for. That the Memorial involved a Question of Law, vizt., whether the officers of the Government, in the present Circumstances of the Province, could be justified, in proceeding with Business without Stamps. That the Board were desirous that the Judges should decide that Question freely, without Apprehension of censure from the Board, and that the Board recomended it to the Judges of the Inferior Court for the County of Suffolk and to the other Judges of the other Courts in the Province to determine that Question as soon as may be, at or before their next respective Terms.

The Question was put whether that Paper should be recorded. Passed in the Affirmative.

The next Question was, Whether it was a satisfactory Answer to their Memorial. Unanimously in the Negative.1

Then several Motions were made, the first was, that the Meeting be adjourned to a future Day, and that the Towns Council be desired to consult together, and give the Town their Opinions, whether any other legal and Constitutional Steps can be taken by the Town, towards removing the obstructions to Justice. The second Motion was, that those of the Towns Council who were present should then give their opinion. The Third was that Application should be made to the Judges to determine the Question Speedily.

The second prevail’d and I was call’d upon to give my Opinion first. I agreed with Kent that an Application to the Judges might be out of Character both for the Town and the Judges, and that no Person could be in any danger of Penalties on the one Hand, or of having Proscesses adjudged void on the other. But many Persons might entertain Fears, and Jealousies and Doubts, which would everlastingly be a grievance. So that I had heard no Proposal yet made for the future 269Conduct of the Town, which had not Difficulties and Objections attending it, so that I must conclude myself as yet in Doubt. And that I dared not give any opinion possitively, in a Matter of so much Importance without the most mature Deliberation.

Mr. Otis then gave his sentiments, and declared once for all, that he knew of no legal and Constitutional Course the Town could take but to direct their Representatives to request the Governor to call a Convention of the Members of both Houses, as he could not legally call an Assembly, and if his Excellency would not, to call one themselves, by requesting all the Members to meet. But concluded with observing, that as one of their Council was not present, and another was in Doubt, he thought it would be best to take further Time for Consideration. And the Town accordingly voted an Adjournment to next Thursday, 10 O’Clock.

A Consultation, therefore I must have with Messrs. Gridley and Otis, and We must all attend the Town-Meeting next Thursday. What Advice shall we give them?

The Question is “what legal and Constitutional Measures the Town can take to open the Courts of Law?”

The Town in their Memorial to his Excellency in Council, assert that “the Courts of Law within the Province, in which alone Justice can be distributed among the People, so far as respects civil Matters, are to all Intents and Purposes shut up. For which no just and legal Reason can be assigned.”

The Record of the Board, sent down in Answer, admits that the Courts of Law are to all Intents and Purposes shut up, and says that before they can be opened a Point of Law must be decided vizt. whether the officers of the Government in the present Circumstances of the Province, can be justified in proceeding in their Offices without Stamps? which the Judges are to determine.

Are the Board then agreed with the Town that the Courts of Law are shut up? But I hope the Town will not agree with the Board that the Judges are the proper Persons to decide whether they shall be open or not. It is the first Time I believe, that such a Question was ever put, since Wm. the Conquerer, nay since the Days of King Lear. Should the twelve Judges of England, and all other officers of Justice Judicial and Ministerial, suddenly stop and shut up their offices, I believe the King, in Council, would hardly recommend any Points of Law to the Consideration of those Judges. The King it is true of his Prerogative could not remove the Judges, because in England a Judge is quite another Thing from what he is here. But I believe the Com-270mons in Parliament would immediately impeach them all of high Treason.

My Advice to the Town will be, to take the Board at their Word, and to chuse a Committee immediately, in the first Place to wait on the Governor in Council, as the Supreme Court of Probate, and request of them a determination of the Point, whether the Officers of the Probate Courts in the Province, can be justifyed, in Proceeding with Business without Stamps, in the next Place to wait on the honorable the Judges of the Superiour Court to request their Determination of the same Question, and in the Third Place to wait on the Judges of the Inferior Court for the County of Suffolk with the same Request—in Pursuance of the Recommendation of the honorable Board—and unless a speedy Determination of the Question is obtained in all these Courts in this Way, to request of the Governor a Convention of the two Houses, and if that is refused to endeavour to call one, themselves.

What are the Consequences of the supposition that the Courts are shut up? The King is the Fountain of Justice by the Constitution—And it is a Maxim of the Law, that the King never dies.

Are not Protection and Allegiance reciprocal? And if We are out of the Kings Protection, are we not discharged from our Allegiance. Are not all the Ligaments of Government dissolved? Is it not a Declaration of an Abdication of the Throne? In short where will such an horrid Doctrine terminate? It would run us into Treason!