Thurdsday Jany. 9th. 1765 [i.e. 1766].
Proventu Scelerum quaerunt uter imperet Urbi?
Vix tanti fuerat Civilia Bella movere
Must such a Number of new Crimes be committed, to decide which of these two, Caesar or Pompey, shall be master in Rome? One would hardly purchase at that Price, the good Fortune of having Neither of them for Master.
Grotius De Jure Belli et Pacis B. 2 C. 16. §. 22. N. 1. The Interpretation that restrains the Import of Words is taken either from an original Defect in the Will of the Speaker or from some Accident falling out inconsistent with his design. Note. 1. There are some Cases, which there is good Reason to believe, the Person who speaks either did or at least might foresee them; and yet that he never intended they should be included in the general Terms, tho he has not expressly excepted them, because he supposed such an Exception clear in itself. There are other Cases which could not be foreseen but are such as if they could have come into the Mind of him who speaks, he would have excepted them. This is the Accident, inconsistent with his design.
§.25. Tis also a very usual Inquiry, whether Acts are to be understood, with this tacit Condition if things continue in the same Posture, they are now in: and We frequently read in History, of Embassadors, who understanding that there was so great a Turn in Affairs, as would render the whole Matter and reason of their Embassy void, have returned home without opening their Commission at all. (implied Conditions, tacit Exceptions, tacit Restrictions.)
§. 26. Since it is impossible to foresee and specify every Accident, there is a Necessity for reserving the Liberty of exempting such Cases, as the Speaker would, were he present him self, exempt. One infallible Token that there ought to be such an Exemption is, when to adhere precisely to the Letter would be unlawful i.e. repugnant to the Laws of God and Nature. Another Token of Restriction shall be this, when to stick close to the Letter, is not absolutely, and of it self unlawful, but when upon Considering the Thing with Candor and Impartiality, it appears too grievous and burdensome. Seneca says, In the Law you say there is nothing excepted. But however, many Things which are not expressly excepted, are yet evidently implied to be so. The Letter indeed is narrow but the meaning extensive, and some Things are so very plain, as to want no Exception at all. And again, We engage to appear in Court on a certain day, and yet all those who do not appear, are not liable to the Penalty. There are some invincible Obstacles that excuse a Non Performance.
Thus all the Rules, that have been framed by Phylosophers, Civilians, and Common Lawyers, for the Interpretation of Promises, Covenants, nay Oaths, Treaties, Commissions, Instructions, Edicts and Acts of Parliament, are exactly coincident with the Maxim of Common sense, in the Conduct of private Life, that Cases of Necessity and Impossibility are always excepted. That there is a Necessity for proceeding with Business, has been proved by your old Friend Hampden, beyond all Contradiction. He has proved that Protection and Allegiance are reciprocal, that a Failure of Justice without actual Violence as in Cases of Invasion and Rebellion, is an Abdication of the Crown and Throne. So that if the Prevention of a total Dissolution of Government and an universal Reduction of all Men to a state of Nature, is a Case of Necessity, this Province is at present in that Case.
1. “Lucan’s Pharsalia, 1. 2, v. 60” (CFA’s note 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 , 2:175).
2. The following notes and extracts from Grotius were not used in any of JA’s “Clarendon” letters as published.