Saturday Jany. 11th. 1766.
In one particular, I must confess the Americans have not acted with their usual Acuteness of Understanding, and Firmness of Spirit. I mean 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 to 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.
1. This fragment does not appear in any of the “Clarendon” letters as published.