Memorial of the Town of Boston

1 Super. Ct. Jud. 198

• Court: Massachusetts Supreme Judicial Court
• Decided: December 15, 1765
• Status: Published

Opinion

MR. ADAMS. 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 refused to be submitted to. An Act making the King’s Proclamation to be Law, the Executive Power adjudged 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 fixed 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 found Maxim of the Law, and not peculiar to the British Constitution, but a Maxim of the antient Roman Law: “ What concerns All thall 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 excused by every Law, human or divine, from a Compliance with it. Wood’s Inst. The King’s Writs are ex debitâ Fustitiâ, and cannot be denied the Subject. And in Magna Charta, it is laid, we deny no Man Justice, we delay no Man Justice. 2 Inst. ch. 29, p. 56. (1)

Mr. Otis (opened with Tears).

It is with great Grief that I appear before your Excellency and Honours on this Occasion. A wicked and unfeeling Minister has caused a People, the most loyal and affectionate that ever King was blessed with, to groan under the most insupportable Oppression. But I think, Sir, that he now stands upon the Brink of inevitable Destruction; and trail that soon — very soon, he will feel the full Weight of his injured Sovereign’s righteous Indignation. I have no doubt, Sir, but that the loyal and dutiful Representations * of nine Provinces, the Cries and Supplications of a distressed People, the united Voice of all of His Majesty’s most loyal and affectionate British-American Subjects, will obtain all that ample Redress they have a Right to expect; and that e’er long, they will fee their cruel and insidious Enemies, both at Home and abroad, put to Shame and Confusion.

My Brother Adams has entered so largely into the Validity of the Act, that I shall not enlarge on that Head. Indeed, what has been observed is sufficient to convince the most illiterate Savage that the Parliament of England had no Regard to the very first Principles of their own Liberties.

Only the Preamble of that oppressive Act is enough to rouse the Blood of every generous Briton. — “ We your Majesty’s Subjects, the Commons of Great Britain, &c., do Give and Grant ” — What? Their own Property? No! The Treasure, the Heart’s Blood of all your Majesty’s dutiful and affectionate British-American Subjects.

But the Time is far spent — I will not tire your Patience. It was once a fundamental Maxim, that every Subject had the fame Right to his Life, Liberty, Property and the Law, that the King had to his Crown; and ’tis yet, I venture to say, as much as a Crown is worth, to deny the Subject his Law, which is his Birth-right. ’Tis a first Principle, “ that Majesty should not only shine in Arms, but be armed with the Laws.” The Administration of Justice is necessary to the very Existence of Governments. Nothing can warrant the stopping the Course of Justice, but the impossibility of holding Courts, by Reason of War, Invasion, Rebellion or Insurrections.* 1 Inst. 249, a & b. This was Law at a Time when the whole Island of Great Britain was divided into an infinite Number of petty Baronies and Principalities; as Germany is, at this Day. Insurrections then, and even Invasions, put the whole Nation into such Confusion, that Justice could not have her equal Course; especially as the Kings in antient Times frequently fat as Judges. But War has now become so much of a Science, and gives fo little Disturbance to a Nation engaged, that no War, foreign or domestic, is a sufficient Reason for shutting up the Courts. But, if it were, we are not in such a State, but far otherwise; the whole People being willing and demanding the full Administration of Government. Vid. Bracton, 240.

The shutting up of the Courts is an Abdication, a total Dissolution of Government. Pollexfen’s Argument at the Revolution Conference, Rapin’s History, 790. Jones, 773, 774. Whoever takes from the King his executive Power, takes from the King his Kingship. Vid. the Speeches of Holt, Somers, Nottingham and other Lords. Rapin, 790. Vid, Bracton, 107.

“ The Laws which forbid a Man to pursue his Right one Way, ought to be understood with this equitable Restriction, that one finds Judges to whom he may apply. When there are no Courts of Law to appeal to, it is then we must have Recourse to the Law of Nature,” &c.* Hugo Grotius, de Jure B. & P. Lib. 1, C. 3, § 2. Lib. 2, C. 4, § 9. C. 7, § 2, n. 2. C. 20, § 2, p. 4 & 5, with Mr. Barbeyrac’s Notes. Code, Lib. 1, Tit. 9, De Jud. & Cæl.

I can’t but observe that cruel and unheard of Neglect of that Enemy to his King and Country, the Author of this Act, that, when all Business, the very Life and Being of a commercial State, was to be carried on by the Use of Stamps, that wicked and execrable Minister never paid the lead; Regard to the Miseries of this extensive Continent, but suffered the Time for the taking Place of the Act to elapse, Months before a single Stamp was received. Though this was a high Piece of Infidelity to the Interest of his royal Master, yet it makes it evident that it could never be intended, that if Stamps were not to be had, it should put a Stop to all Justice; which is ipso Facto a Dissolution of Society.

It is a strange Kind of Law, which we hear advanced now-a-days, that, because one unpopular Act can’t be carried into Execution, that therefore there shall be an End of all Law. We are not the first People who have risen to prevent the Execution of a Law; the very People of England themselves rose in Opposition to the famous Jew-Bill, and got that immediately repealed. And Lawyers know that there are Limits, beyond which if Parliaments go, their Acts bind not. 4 Inst. 122.

The King is always presumed to be present in his Courts, holding out the Law to his Subjects; and when he shuts his Courts, he unkings himself in the most essential Point. 18 E. 3, ch. 1. 1 H. 4. 20 E. 3, ch. 2. 4 H. 4, ch. 1. Vattel, p. 20. And Magna Charta, and the other Statutes are full, “ That they will not defer, delay or deny to any Man Justice or Right.” “ That it shall not be commanded by the Great Seal, or in any other Way to disturb or delay Common Right.” The Judges of England are “ not to counsel, or assent to any Thing which may turn to the Damage or Disherison of the Crown.” They are sworn not to deny to any Man Common Right, by the King’s Letters, nor none other Man’s, nor for none other Cause. Is not the Dissolution of Society a Disherison of the Crown? The “ Justices are commanded, that they shall do even Law and Execution of Right to all our Subjects, rich and poor, without haying Regard to any Person, without letting to do Right for any Letters or Commandment which may come to them from Us, or from any other, or by any other Cause.” 4 Inst. 70. (2)

His Excellency the Governour.

The Arguments made Use of, both by Mr. Adams and you, would be very pertinent to induce the Judges of the Superiour Court to think the Act of no Validity, and that therefore they should pay no Regard to it; but the Question with me is, whether that very Thing don’t argue the Impropriety of our Intermeddling in a Matter which solely belongs to them to judge of in their Judicial Department. And can it be proper for us to command them to act in any particular Way, relative to a Matter which is to come before them in their Judicial Capacity? especially, as from some of the very Authorities you have cited, it appears, that the Judges are to obey no Mandate, come it from whomsoever it will.

Mr. Otis.

Those Mandates spoken of in the Authorities, are such as are made to delay Justice, and command the Judges not to proceed. That very Thing, I take it, shews that Juftice is never to be stopped, but that the Law shall always have its own Course. And surely your Excellency must see a great Difference between a Command in Delay of Justice, and one made in its Furtherance. There is certainly a very wide Distinction to be made, between saying, Justice Shall stop, and a Command or Recommendation to the Judges, to proceed in the several Courts of Judicature, according to the Laws and Customs of the Country.*

Mr. Gridley.

The Question now before your Excellency and Honours, is of great Consequence, of very great Weight. The Safety of the whole People, the Preservation of all Government is in Issue. All Laws are divided into public and private, criminal and civil. The Criminal Law is as free as ever; for the Act excepts Criminal Matters.

The Benignity of the Law says, if the Intention of the Party cannot operate one Way, it shall another. ’Tis so in all private Tranfactions: — How much more so in Things of a publick Nature! Though the criminal Law is free, yet there is such an intimate Connection between this and private Law, that the one cannot subsist without the other. Deprive me of the one, and ’tis worfe than if you deprived me of both. My Property is invaded, but the Invader is no Criminal Where then is my Remedy? He, who deprives me of my Remedy, deprives me of my Right. What shall be done? To shut up the Courts is a Renuntiation of Government. What! shall I live in a Society, and yet have no Redress of my Wrongs? Shall I have no Remedy against him who has broken his most solemn Contracts and Engagements? Shall I bear the Insults of Insolence, and have no Recompence for my Damage and Sufferings as a private Individual? I have an Estate, but I have no Security. — Pursue the Thought, and it is dreadfull. Hunger will break through a Stone Wall. Disputes, Animosities, Wrangles, Disaffections, Hatreds, Heart-burnings, Tumults, Consusions, — ’tis easy for the Imagination to trace the infinite Miseries which rush in upon us like an Inundation; — no Need to pursue it further.

What was the Law instituted for? For the Protection of my Person and Estate. Government is subverted if the Law is not open. ’Tis absurd to suppose that Society can take away from me my Right of Self-preservation as a Man, and not protect my Property as a Citizen. The People must return to a State of Nature. And I had much rather be a Barbarian of the Woods, than live in a State once under Government, but now reduced to Anarchy and Confusion. The Knowledge obtained in Society has only fitted them to execute their Perpetrations with more Dexterity, and rendered their Plots the more terrible.

But let me put the Case, that all the Stamp-Papers had been destroyed by Tempest, or some other Casualty: The Courts in such a Case must have proceeded. There is now as much an Impossibility to use those Papers, as though they were all in the Bottom of the Ocean.

There is not a Syllable in the Act which has the least Aspect, that Courts should stop, if Stamps were not to be obtained. A Mulct is the Punishment for Non-user, —which shows that if a Person will submit to that, the End of the Act is complied with : But Impossibility in such Cafe would assuredly excuse : That the Law never requires Impossibilities is a Maxim of the Law.

Necessity demands Justice should have its Course. It is no Laches, no Default of ours, that the Act cannot be put in Force. The Innocent shall never be involved in the same Fate with the Guilty if it can be avoided. It is not in the Power of any one to obtain a Stamp-Paper. A Thing that is impossible is as though it were not. He who is a Citizen shall never be denied his Law.*, (³)

1 (1) See John Adams’s Diary, December to, 1765. “ I grounded my argument on the invalidity of the Stamp-Aft, it not being in any fenfe our aft, having never confented to it. But left that foundation ihould not be fufficient, on the prefent neceffity to prevent a failure of juftice', and the prefent impoffibility of carrying that aft into execution..

Mr. Otis reafoned with great learning and zeal on the judges ■ oaths, &c.

Mr. Gridley, on the great inconveniences that would enfue the interruption of juftice.” 2 John Adams’s Works, 15,8, 9.