Fryday. Decr. 20th. 1765
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 the 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, <
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.
1. John Rowe (1715–1787), the well-known Boston merchant, successful trimmer during the Revolution, and diarist; portions of his valuable diary from 1759 to 1779 have been published in Letters and Diary of John Rowe, ed. Anne Rowe Cunningham, Boston, 1903; the MS is in MHi. Rowe was a member of the committee appointed to present the Boston memorial to the Governor in Council.
2. A page of notes and authorities presumably prepared for this argument, in JA’s hand and headed “Right, Wrong and Remedy,” is in the Adams Papers; though undated, it has been filed under the present date. CFA printed these notes in JA, Works description begins The Works of John Adams, Second President of the United States: with a Life of the Author, ed. Charles Francis Adams, Boston, 1850–1856; 10 vols. description ends , 2:159, note. As reported by Josiah Quincy, JA’s argument on behalf of the Boston memorial does not follow the notes closely; see Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends , p. 200–202. Quincy’s report was also printed in Papers of John Adams, 1:152.
3. Otis “opened with Tears,” according to Josiah Quincy. His argument and that of Gridley are in Quincy, Reports description begins Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772, ed. Samuel M. Quincy, Boston, 1865. description ends , p. 202–209, together with Governor Bernard’s evasive proposal that the town’s plea be taken to the judges, since the Governor and Council had no power to act on it.