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!

At Home, with my family. Thinking.

Went to Boston. After Dinner rambled after Messrs. Gridley and Otis but could find neither. Went into Mr. Dudleys, Mr. Dana’s, Mr. Otis’s office, and then to Mr. Adams’s and went with him to the Monday night Clubb. There I found Otis, Cushing Wells, Pemberton, Gray, Austin, two Waldo’s, Inches, Dr. Parker—And spent the Evening very agreably, indeed. Politicians all at this Clubb. We had many curious Anecdotes, about Governors, Councillors, Representatives, Demagogues, Merchants &c. The Behaviour of these Gentlemen is very familiar and friendly to each other, and very polite and complaisant 271to Strangers. Gray has a very tender Mind, is extreamly timid—he says when he meets a Man of the other Side he talks against him, when he meets a Man of our Side he opposes him, so that he fears, he shall be thought against every Body, and so every Body will be against him. But he hopes to prepare the Way for his Escape at next May from an Employment, that neither his Abilities, nor Circumstances nor turn of Mind, are fit for.

Cushing is steady and constant, and busy in the Interest of Liberty and the Opposition, is famed for Secrisy,1 and his Talent at procuring Intelligence.2

Adams is zealous, ardent and keen in the Cause, is always for Softness, and Delicacy, and Prudence where they will do, but is stanch and stiff and strict and rigid and inflexible, in the Cause.

Otis is fiery and fev’rous. His Imagination flames, his Passions blaze. He is liable to great Inequalities of Temper—sometimes in Despondency, sometimes in a Rage. The Rashnesses and Imprudences, into which his Excess of Zeal have formerly transported him, have made him Enemies, whose malicious watch over him, occasion more Caution, and more Cunning and more inexplicable Passages in his Conduct than formerly. And perhaps Views at the Chair, or the Board, or possibly more expanded Views, beyond the Atlantic, may mingle now with his Patriotism.

The II Penseroso, however, is discernible on the Faces of all four.

Adams I believe has the most thourough Understanding of Liberty, and her Resources, in the Temper and Character of the People, tho not in the Law and Constitution, as well as the most habitual, radical Love of it, of any of them—as well as the most correct, genteel and artful Pen. He is a Man of refined Policy, stedfast Integrity, exquisite Humanity, genteel Erudition, obliging, engaging Manners, real as well as professed Piety, and a universal good Character, unless it should be admitted that he is too attentive to the Public and not enough so, to himself and his family.

The Gentlemen were warm to have the Courts opened. Gridley had advised to wait for a Judicial Opinion of the Judges. I was for requesting of the Governor that the general Court might assemble at the Time to which they stood prorogued—and if the Town should think fit to request the Extrajudicial Opinion of the Judges. I was for petitioning the Governor and Council to determine the Question first as Supreme ordinary. Gridley will be absent, and so shall I. But I think the apparent Impatience of the Town must produce some spirited Measures, perhaps more spirited than prudent.

The Revolution which one Century has produced in your Principles is not quite so surprizing to me, as it seems to be to many others. You know very well that I always had a Jealousy that your Humanity was counterfeit, your Ardor for Liberty canker’d with simulation and your Integrity, problematical at least. Yet I confess, that so sudden a transition from Licentiousness to Despotism, so entire a transformation from a fiery Declaimer against arbitrary Power, to an abject Hireling of Corruption and Tyrany, gives me many painful Speculations on the frailty of human Nature, as well as a Clue to the Center of the great Labyrinth of your Politicks in 1641. It has confirmed in me, the Belief, of what was formerly suspected, vizt, that your Principles were very wicked and depraved, tho your Cunning was exquisite enough, to conceal your Crimes from the Public scrutiny. I am now brought to believe what was formerly only suspected, vizt. your subornation of Witnesses, your Perjuries, and your Briberies as well as your Cruelty.

Can any Thing less abominable, have prompted you, to commence an Enemy to human Liberty—an Enemy to human Nature—an Advocate for Courts, more frightful, infamous and detestable than the star Chamber and high Commission, for Taxations more grievous, arbitrary and unconstitutional, than ship Money; on which you and your Hampden, were known to ring eternal Changes, and indeed, of which you had so much Right to complain. If ever an Infant Country deserved to be cherished it is America, if ever a People merited Honor and Happiness, they are her Inhabitants. They have the high sentiments of Romans in the most prosperous and virtuous Times of that Commonwealth: Yet they have the tenderest feelings of Humanity and the noblest Benevolence of Christians. They have the most habitual, radical sense of Liberty, and the highest Reverence for Virtue. They are descended from a Race which, in a Confidence in Providence, set the seas and skies, Monsters and savages, Tyrants and Devils at Defyance, for the sake of their Liberty and Religion. Yet this is the People on whom you are contributing, for Hire, to rivit and confirm everlasting Oppression.