At Home.

Must such a Number of new Crimes be committed, to decide which of these two, Caesar or Pompey, shall be master in Rome? One would hardly purchase at that Price, the good Fortune of having Neither of them for Master.

Grotius De Jure Belli et Pacis B. 2 C. 16. §. 22. N. 1. The Interpretation that restrains the Import of Words is taken either from an original Defect in the Will of the Speaker or from some Accident falling out inconsistent with his design. Note. 1. There are some Cases, which there is good Reason to believe, the Person who speaks either did or at least might foresee them; and yet that he never intended they should be included in the general Terms, tho he has not expressly [facing 288] [facing 289] 289 excepted them, because he supposed such an Exception clear in itself. There are other Cases which could not be foreseen but are such as if they could have come into the Mind of him who speaks, he would have excepted them. This is the Accident, inconsistent with his design.

§.25. Tis also a very usual Inquiry, whether Acts are to be understood, with this tacit Condition if things continue in the same Posture, they are now in: and We frequently read in History, of Embassadors, who understanding that there was so great a Turn in Affairs, as would render the whole Matter and reason of their Embassy void, have returned home without opening their Commission at all. (implied Conditions, tacit Exceptions, tacit Restrictions.)

§. 26. Since it is impossible to foresee and specify every Accident, there is a Necessity for reserving the Liberty of exempting such Cases, as the Speaker would, were he present him self, exempt. One infallible Token that there ought to be such an Exemption is, when to adhere precisely to the Letter would be unlawful i.e. repugnant to the Laws of God and Nature. Another Token of Restriction shall be this, when to stick close to the Letter, is not absolutely, and of it self unlawful, but when upon Considering the Thing with Candor and Impartiality, it appears too grievous and burdensome. Seneca says, In the Law you say there is nothing excepted. But however, many Things which are not expressly excepted, are yet evidently implied to be so. The Letter indeed is narrow but the meaning extensive, and some Things are so very plain, as to want no Exception at all. And again, We engage to appear in Court on a certain day, and yet all those who do not appear, are not liable to the Penalty. There are some invincible Obstacles that excuse a Non Performance.

Thus all the Rules, that have been framed by Phylosophers, Civilians, and Common Lawyers, for the Interpretation of Promises, Covenants, nay Oaths, Treaties, Commissions, Instructions, Edicts and Acts of Parliament, are exactly coincident with the Maxim of Common sense, in the Conduct of private Life, that Cases of Necessity and Impossibility are always excepted. That there is a Necessity for proceeding with Business, has been proved by your old Friend Hampden, beyond all Contradiction. He has proved that Protection and Allegiance are reciprocal, that a Failure of Justice without actual Violence as in Cases of Invasion and Rebellion, is an Abdication of the Crown and Throne. So that if the Prevention of a total Dissolution of Government and an universal Reduction of all Men to a state of Nature, is a Case of Necessity, this Province is at present in that Case.

At Home all day. Mr. Smith, Dr. Tufts, Dr. Savil, Mr. Bass &c. here.

Humphry Ploughjogger received a Letter from a Friend, thanking him for his good Advice and presenting him with a Crimson, Homespun Cap to wear with his Hide, as a Reward.1—Mr. Etter came in before Dinner, about his Petition to the General Court for Assistance in his stocking Weaving Business.—Went in the afternoon with my Wife to her Grandfathers.—Mr. Cleverly here in the Evening. He says he is not so clear as he was that the Parliament has a Right to tax Us. He rather thinks it has not. Thus the Contagion of the Times has caught even that Bigot to passive Obedience and non Resistance. It has made him waver. It is almost the first Time I ever knew him converted or even brought to doubt and hesitate about any of his favourite Points, as the Authority of Parliament to tax us was one. Nay he used to assert possitively, that the King was as absolute in the Plantations as the great Turk in his dominions.

Mr. Quincy gave me, some Anecdotes about John Boylstone2 and Jo. Green &c. Green refused to sign the Resolutions of Merchants at first, but was afterwards glad to send for the Paper. They were at first afraid of Salem, Newbury, Marblehead and Plymouth, but these Towns have agreed unanimously to the same Resolutions.

What will they say in England, when they see the Resolves of the American Legislatures, the Petitions from the united Colonies, the Resolutions of the Merchants in Boston, N. York, Phyladelphia &c.

A Rain.

In one particular, I must confess the Americans have not acted with their usual Acuteness of Understanding, and Firmness of Spirit. I 291mean in that very strange Piece of Conduct of their shutting the Courts of Justice. I call it their Conduct, tho it is apparently against the general Judgment of the People, and it ought to be charged on a few Individuals, who have Other Things in View besides Truth, Right, or Law. Indeed I could scarcely have believed, that the Fact was so, had not the Town of Boston asserted it, in their Memorial to his Excellency in Council, and had it not been admitted to be true, in the Answer of the honourable Board. Shutting the Courts of Law strictly speaking, which is to appear and be tryed by the Records, is a partial and temporary Dissolution of the Government, even in Cases of Invasion and Rebellion, and as I take it so far forth reduces the People to a state of Nature, and leaves every Man in every Case to do him self Justice, and to carve out his own Remedy with his Tongue, his fist or his Sword. Now, I should be very glad to know, whether it appears upon Record, that the Courts of Justice are shut. If it does, I apprehend that Record will justify me in judging in my own Cause, and becoming in all Cases where I am injured or have a Demand, my own Lawyer, Judge, Juror and sherriff. And the same Record will prove too that we are in a state of War foreign or domestic. But We are at Peace no doubt with all foreign Nations. Well then, the only Supposition that remains is that We are in a state of actual Rebellion, and that the Judges cannot sit in Judgment for fear of actual Violence. Will any Man pretend this is our Case? Has any Man within the Province appeared in Arms, unless it was out of Attachment to his Majestys Person and Government, as a Number of the Militia of the Town of Boston did? Has one overt act of Treason been committed within the Province? Was there ever such an Act committed within the Province from its first settlement? Nay, I may go further and ask, has there been a disrespectful Speech uttered of his Majesty or his Government, thro the whole memorable Year 1765, even at Midnight? over the Bowl or the Bottle?—I believe not one.—Oh, But there was a Riot which pull’d down an House.—So have there been an hundred Riots, an hundred skimmingtons Ridings, in which some of his Majestys subjects have received Damage, some by riding a Rail and some a Bull, some for one Misdemeanor and some for another. Nay there have been such Ridings in which some of his Majestys subjects have been slain, some in which the Kings officers, sherriffs have been killed in the Execution of his office. Pray was that an overt Act of high Treason in the whole Province, or in any one Person concerned in the Riot? Was that a Foundation for shutting the Courts? and recording the whole Province in a state of Rebellion? Will it be said that there is no Record of any shutting of Courts? no Record 292to prove any Invasion or Rebellion? How comes it then to have been admitted by the honorable Board that the Courts of Law, so far as respected civil Matters, were to all Intents and Purposes shutt up?

The Truth is here is a strange Ambiguity affected in this Matter. Courts will sit and suffer no Business to be done but adjourn, adjourn to next Spring. So that the Clerks are at a loss whether to make out Writs, the People are uncertain whether such Action will ever be sustained at all, and they know certainly that no Execution can be had till next Spring. So that they think it not worth while to be at the Expence of purchasing Writs. In this situation of Things we are as much deprived of the Kings Protection of our Persons and Properties, as unable to procure Justice, as if an actual Record was made of Invasion or Rebellion. So that the subject is as effectually deprived of the Benefit and Protection of the Law, as if the Laws were silent, drowned in the Din of War! We are therefore in Effect deprived of the Benefit of Magna Charta.