Argument before Governor Bernard and the Council in Favor of Opening the Courts, 20 December 1765
Argument before Governor Bernard and the Council in Favor of Opening the Courts
[20 December 1765]
Present his Excellency Francis Bernard
Esqr. Govr. &c in Council.
Mr. Adams1 Innumerable are the Calamities which flow from an Interruption of Justice. Necessity requires that the Doors of Justice should ever be open to hear the Complaints of the Injured and Oppressed.
The Stamp-Act, I take it, is utterly void, and of no Binding force upon Us; for it is against our Rights as Men, and our Priviledges as Englishmen. An Act made in Defiance of the first Principles of Justice: an Act which rips up the foundation of the British Constitution, and makes void Maxims of 1800 years standing.
Parliaments may err; they are not infallible; they have been refus’d to be submitted to. An Act making the King’s Proclamation to be a Law, the Executive Powers adjudg’d absolutely void.
The Stamp Act was made where we are in no Sense represented, therefore no more binding upon Us, than an Act which should oblige Us to destroy One half of Our Species.
There are certain Principles fix’d unalterably in Nature. Convention and Compact are the Requisites to make any Law obligatory. That the Subject is not bound by Acts, when He is not represented, is a sound Maxim of the Law, and not pecu[liar] to the British Constitution, but a Maxim of the antient Roman Law: “What concerns All shall be judged of by All.”
The only Reason of the Power of the Parliament in England, is because they are elected by the People; who, if their Liberties are infringed, have a Check at the next Election. Have Americans any such Check? Have they any Voice in Deputation? A Parliament of Great Britain can have no more Right to tax the Colonies, than a Parliament of Paris.
This Act has never been received from Authority, therefore in a legal Sense we know nothing of it.
The Necessities of Business, the Cries of the People call aloud for Justice. It has become impossible to execute this Act, therefore if it were binding, we are excus’d by every Law, human or divine, from a Compliance with it. Wood’s Inst. 561.2 The King’s Writs are ex debitâ Justitiâ, and cannot be denied the Subject. And in Magna Charta, it is said, We deny no Man Justice, we delay no Man Justice. 2 Inst. ch. 29. p. 56.3
MS (MHi:Quincy Papers, 57:96–98); printed with minor variations in , p. 200–202.
1. Although this document is only a report by Josiah Quincy Jr. of JA’s arguments before the Governor and Council supporting the Boston memorial for reopening the courts, its accuracy in reproducing JA’s line of argument would seem acceptable on consideration of the two possible ways that Quincy might have acquired his information.
According to JA, he, Otis, and Gridley went to the Council chamber in company with a committee from the Boston town meeting, as well as with a number of unofficial spectators. Only the three attorneys were allowed to enter the chamber, but nothing prevented the town meeting committee or the spectators from waiting outside. Quincy was not a member of the committee, nor is there evidence that he was one of the spectators; yet for reasons to be given below, it seems likely that he went with the rest and stationed himself outside the Council chamber door, where he was able to hear and record the arguments (, 1:266–267; 3:283–284).
Although Quincy may have heard the three lawyers retell their pleas later, the striking similarity between Quincy’s report and JA’s own description of his argument suggests that Quincy actually overheard the arguments (, 1:267). JA wrote that he argued for opening the courts on the ground that the Stamp Act was invalid, “it not being in any sense our Act, having never consented to it,” but also “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.” Both in substance and in topical sequence Quincy’s report and JA’s account are virtually identical except that Quincy has JA discussing the need for preventing “an Interruption of Justice” before attacking the constitutionality of the Stamp Act. Since JA stated that the denial of the Stamp Act’s constitutionality was only the primary part of his plea, however, without specifying whether it was his first argument, the discrepancy between his account and Quincy’s does not seem significant.
2. The citation of Wood’s Institute applies to the sentence following the page number.
3. In answer to the counsel for the town of Boston, the Governor and Council ruled that they had no power to decide whether the courts should be opened without stamps, that the decision should rest with the judges of the various courts. JA decided to recommend that the town approach first “the Governor in Council, as the Supreme Court of Probate” and then the other judges in turn (, 1:268–270).