Notes on the Opening of the Courts, 19 December 1765
Notes on the Opening of the Courts
[19? December 1765] 1
Common Law is common Right, 1. Inst. 142.a. Cokes Proem to 2d Inst.
The Law is the Subjects best Birthright. 2. Inst. 56.
Want of Right and Want of Remedy is all one, for where there is no Remedy, there is no Right, 1. Inst. 95.b.
The Law provides a Remedy for every Wrong. 1. Inst. 197.b. 2. Inst. 55. 56. [4]05. but see 1. Inst. 199.b.
The Law hath a Delight in giving of Remedy. Lit. 323. 1. Inst. 54.b. 199.b. [2]00.a.
The Act of Law, never doth Wrong. 1. Inst. 88.b. 148.a.b. 379.a.
Where the Construction of any Act is left to the Law, the Law will never construe it to work a wrong. Woods. Inst. P. 4. 5.3
A statute must be construed that no innocent man may by a literal Construction receive Damage. Wood Page 9.
An Act of Parliament can do no Wrong. Holt. 12. Mod. 687. 688. Hill. [13]Wm. 3. B. R. City of London vs. Wood.4
Actus dei nemini facit Injuriam.—Actus Legis nulli facit Injuriam.
The Law forces no one to that which is impossible or vain. 1. Inst. 79.a. 92.a. 127.b.—to procure the Stamp Papers is impossible, and to stop Justice would be vain.
Things of Necessity are to be excepted out of a general Law. 2. Inst. 168.5
There is nothing of greater Necessity than the Administration of Justice,—Justice cannot be administered at present but in the Usual Way.—Therefore the present Case and these Times are excepted out of that general Law the Stamp Act.
Things for Necessity Sake, or to prevent a Failure of Justice, are excepted out of a Statute. Woods. Inst. Page 9 [8].6
Acts of Parliament that are against Reason, or impossible to be performed shall be judged void. 8. Rep. 118. 128. 129. 2. Inst. 587. 588.7
MS (Adams Papers); endorsed by JA: “before Govr and Council abt opening Courts”; Tr (Adams Papers); copied by CFA into M/CFA/31 (Microfilms, Reel No. 327). JA’s MS is torn at several points along the edges; missing words and numbers are supplied from JA’s source; see note 3, below.
1. In , 1:267, note 2, this MS was tentatively dated 20 Dec. 1765, the day on which JA, together with James Otis and Jeremiah Gridley, appeared before the Governor and Council to argue in behalf of Boston’s memorial calling for the opening of the courts in defiance of the Stamp Act. Probably, however, JA made these notes a day earlier when he received a brief note from William Cooper notifying him of his selection to appear with Otis and Gridley as town counsel in this matter (see 18 Dec. 1765, above). After getting Cooper’s letter, JA gave a good deal of thought to the kinds of argument he might use on Boston’s behalf (, 1:265–266). The next day JA was busy traveling to Boston and conferring there with political leaders before he appeared before the Governor and Council—too busy to have had opportunity to write out these notes on that day. Thus, 19 Dec. seems the more plausible date.
2. Presumably JA was unable to avail himself fully of these notes when he appeared in the council chamber, for Otis and Gridley gave their younger colleague the apparently unexpected honor of speaking first. According to a slightly flustered JA, “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” (, 1:267). For JA’s argument, which does cite two authorities, see the next document.
3. Thomas Wood, An Institute of the Laws of England . . . Published for the Direction of Young Beginners, or Students in the Law . . . , 7th or 8th edn., London, 1745, 1754. Pages 4 and 5 under the heading “Rules Concerning Law” contain verbatim all of the statements above, including the citations from Coke’s Institutes. Where the MS is torn numbers have been supplied from Wood. In the first rule, the reference to Coke’s “Proem to 2d Inst.” was apparently supplied by JA.
4. Modern Reports or Cases Adjudged in the Court of King’s Bench from the Second Year of King William III to the End of His Reign, London, 12 [1738]: 687, 688, Hillary [term] 13 William. The quotation is taken from Chief Justice Sir John Holt in City of London v. Wood.
5. These two rules are also from Wood, p. 4–5.
6. JA miscopied the page number.
7. From Wood, p. 9, but JA omitted “common Justice and” before “Reason.”