Paper Books Nos. 5, 6, 7, 8
[The preceding text was added in the handwriting of Charles Francis Adams]
Inside Front Cover, upside down
Paper book No. 7.
[The preceding text was added in the handwriting of Charles Francis Adams][No transcription available -- see page image]
Pages c2a - c2b
[Blank pages -- no images available]
MAY 26TH 1760.
Spent the Evening at Mr. Edd. Quincy's, with Mr.
Wibird, and my Cozen Zab. Mr. Quincy
told a remarkable Instance of Mr. Ben. Franklin's Activity,
and Resolution, to promote improve
the Productions of his
own Country, for from that [illegible]
source it must have
sprang, or else from an unheard of Stretch of Benevolence to a stranger.
Mr. Franklin, happening upon
a Visit to his
Germantown Friends, to be at Mr. Wibirts
Meeting, was asked, after Meeting in the afternoon, to drink Tea, at
Mr. Quincys. The Conversation turned upon the Qualities of
American soils, and the Different Commodities raised in these Provinces. Among
the rest, [illegible]
Mr. Franklin mentioned,
that the Rhenish Grape Vines had been introduced, into
Pensylvania, and that some had been lately planted in
Phyladelphia, and succeeded very well. Mr.
Quincy said [illegible]
said, upon it, I wish
I could get some into my Garden. I doubt not they would do very well in this
Province. Mr. Franklin replied, Sir if I can supply you with
some of the Cuttings, I shall be glad to. Quincy thanked him
and said, I dont know but some time or other I shall presume to trouble you.
And so the Conversation passed off. Within a few Weeks Mr.
Quincy was surprised with a Letter from some of
Franklins friends in
Boston, that a Bundle of these Rhenish slips were ready for
him. These came by Water. Well, soon afterwards he
had another Message that another Parcell
were left for him by the Post. The next Time Mr. Franklin was
Boston Mr. Quincy waited on him to thank him
for his slips, but I am sorry Sir to give you so much
Sir, says Franklin the Trouble is nothing Sir, to me, if the
Vines do but succeed in your Province. However I was obliged to take more Pains
than I expected when I saw you. I had been told, that the Vines were in the
City but I found none and was obliged to send up to a Village 70 miles from the
City for them. Thus he took the Trouble to hunt over the City, and not finding
Vines there, he sends 70 miles into the Country, and then sends one Bundle by
Water, and least they should miscarry another by Land, to a Gentleman whom he
owed nothing, and was but little acquainted with, purely for the sake of Doing
Good in the World by Propagating the Rhenish Wines thro
these Provinces. And Mr. Quincy has
some of them now growing in his Garden. This is an Instance too of his amazing
Capacity for Business. His Memory and Resolution. Amidst so much Business as
Counsellor, Post Master, Printer, so many private studies, and so many
Avocations too, to remember such a transient
Hint and exert himself, so in answer to it, is surprising.
This Rhenish Wine is made of a Grape that grows in
Germany upon the River Rhine and from which it receives its
Name, and is very famous, all over
Europe. Let me remember to look in Chambers, under
Rhenish and in Salmons Geography, under the Produce of the Countries upon the
Rhine, for more Particulars of this Vine and Grape, and Wine. The soil it
delights in, the Method of Cultivation, what digging, what Manure, what Pruning
&c. Let me ask Mr. Quincy, whether the soil of his Garden
suits them? and what sorts and how many [sorts?]
Grapes he has? Dont they require more Heat than we have for them? Where he got
his other slips. Where he got his Lime Trees? &c.
At home. Read, in Naval Trade and Commerce.
Loitered the forenoon away upon this Question in Arithmetic. 3 men give 20
shillings for a Bushell of Corn. [illegible] A pays in the Proportion of one half, B in the Proportion
of 1/8 and C in the Proportion of 1/4. Now how many shillings and Pence does
each one pay? I put X, an Algebraicall Expression, for that unknown Quantity,
whose 1/2 1/3 and 1/4 added together would make 20 shillings.
And then formed this Equation. X/2 + X/3 + X/4 = 20. Then to free the
Equation of fractions.
x + 2x/3 + 2x/4 = 40. Then 3x+ 2X+ 6X/4 = 120.
Then 12x + 8x + 6x = 480
[The following mathematical equation has not been fully transcribed. See
page image for the full equation:]
|26x = 480 ||26 [divided into] 480
[see page image ] ||18 12/26 s = 18s ||5 14/26
[divided into] 144
[see page image]
In the afternoon, Zab and I wandered down to
Germantown on foot-running a Parrallell between the Pleasures,
Profits, freedoms, Ease and Uses of the several Professions, especially
Physick and Divinity.
Rose and breakfasted. Have done nothing yet to day,
and God only knows what I shall do. The Question of the Pipe. A Pipe of Wine
has 3 Cocks, one of which would discharge it in 1/4 of an hour, another in 1/2
an hour and the 3rd in 3/4 of an hour all open and running at once. Quere in
what Time, all three together will empty the Cask? Let me Note these
Proportions for the Present.
|cock ||m ||cock ||m ||cock ||m ||cock ||m
|as ||1:||15::||3 ||5 ||as ||1
:||30 ::||3 :||10
|as ||1 ||45 ::||3
:||15.||Now ||m ||m ||m
|5,||10 ||and ||15
|added make ||m
as ||C ||m ||C ||m
:||30 ::||1 :||10
Perhaps this may turn out right.
I must run over Fractions again, vulgar and Decimal, as well as algebraical,
and now and then, a few Questions in Fenning and
Hammond, and Ward, or else I shall totally
forget my Numbers. I find that the Art of numbering depends upon Practice, and
in a short disuse, they will slip from the Memory. A Journal, scrawled with
Algebraical signs, and interspersed with Questions of Law, Husbandry, natural
History &c., will be a useful Thing. The Principal Uses however will be to
my style, and assist my
give me a true Compunction for the Waste of Time, and
urge me of Course to a better Improvement of it. Besides Writing is one of the
greatest Pleasures, and it sooner rouses my ambition, warms my Imagination, and
fixes me in
a train of thinking, than any other Thing that I can
do-than sitting still with my Eyes shut, or than holding a Book to read.
Mem. Last Sunday after Meeting Mr. Cranch explained to us
at Dr. Tufts's, the Machines that are used in the Mines of
Coal in New Castle, and of Tin, in Cornwal, to convey up Water from the Bottom
of the Mine. They go upon the Principles of elastic Air and rarefyed
. They have hollow Globes of plated Iron, or of
Copper, which will hold some Barrells, which they heat with great fires and
have Tubes, and Cocks, and can cast up great Quantities of Water, many Hds
in a minute. But I have forgot the Construction
of the Machines, as well as the Method of Working them. Here is my failing or
one of my failings. My Attention has not been keen enough, to understand and
fix in my Memory the Explications of many of these Machines.
Etter explained to me, his stocking Looms, but I could not
when I left him, have run from the first Motion to the compleat
formation of a stocking. I did not see
it. Cranch once explained to
me, the Machine that draws Water from the Thames, into the Canals under the
London, and that sends Water up into their Garretts, Chambers,
Rooms and Cellars, so that by Opening a Cock you may draw a Pail of Water from
the Thames, in any House in the City almost, but I do not remember the
Construction of it. Let me remember to enquire
him about the Construction of these 2, that for Water from the Thames, and that
for Water from the
Thames, and that for Water from the Mines, and
to go once more to see the stocking Loom.
There is perhaps nothing, perhaps at the present day which has deviated
further from [illegible] design of Instructions which is more
productive more fruitful of destructive evils, or
Few things I believe have deviated so far from the first Design of their
Institution, are so fruitful of other
destructive Evils or so
needful of a speedy Regulation, as Licensed Houses. The Accomodation of
Strangers, and perhaps of Town Inhabitants on public occasions, are the only
warrantable Intentions of a Tavern and the supply of the
with necessary Liquors, in small
Quantities to be consumed at home is the only excusable Design of a
and at the cheapest Rates, are the only excusable Designs of a
Retailer; and that these evils may be
Purposes may be effected, it
is necessary, that both should be selected from the most virtuous, and wealthy
People who will accept the Trust, and so few of each should be erected, that
the Profits may enable them to make the best Provision, at a moderate Price.
But at the present Day, such Houses are become the eternal Haunt, of loose
disorderly People of the same Town, which renders them offensive and unfit for
the Entertainment of a Traveller of the least delicacy; and, it seems that
Poverty, and distressed
Circumstances are become the strongest
Argument, to procure an Approbation, and for [these?]
Reasons, such Multitudes have been lately licensed, that none can afford to
make Provision, for any but the trifling, nasty vicious Crew, that most
frequent them. The Consequences of these Abuses are obvious. Young People are
tempted to waste their Time and Money, and to acquire
habits of Intemperance and Idleness that we often see [illegible]
reduce many of
them to Beggary, and Vice, and lead
of them at last
to Prisons and the Gallows. The Reputation of our
County is ruined among Strangers who are apt to infer the Character of a Place
from that of the Taverns and the People they see there. But the worst Effect of
all, and which ought to make every Man who has the least sense of his
these Houses are
become in many Places the Nurseries of our Legislators; An Artful Man, who has
neither sense nor sentiment may by gaining a little sway among the Rabble of a
Town, multiply Taverns and Dram Shops and thereby secure the Votes
Taverner and Retailer and of all,who will be induced
the Multiplication of Taverns will make many who may be induced by Phlip and
Rum to Vote for any Man whatever.
and for These
I dare not presume to point
Method, to suppress or Restrain these increasing Evils; but I think for these
Reasons it would be well worth the Attention of our Legislature, to confine the
Number of, and retrieve the Character of Licensed Houses; least, that Impiety,
and Prophaneness, that abandoned Intemperance, and Prodigality; that Impudence
and brawling Temper, which these abominable Nurseries daily propagate, should
arise at length to a degree of strength, that even the Legislature will not be
able to controul
Pownals Remark, every other House a Tavern. Twelve in this Town. Call upon
the select men, and not to grant Approbation, upon the grand jurors
to present all bad Houses, &c.
Rose early. Several Country Towns, within my observation, have at least a
Dozen Taverns and Retailers. Here The Time, the Money, the Health and the
Modesty, of most that are young and of many old, are wasted; here
Diseases, vicious Habits, Bastards and Legislators, are frequently
Saunders, J. Spear, N.
Spear, Benoni Spear, would vote for any Man for a
little Phlip, or a Dram. N. Belcher, John
Spear, O. Gay, James Brackett,
John Mills, Wm. Veasey &c. voted for
T. for other Reasons.
Read in naval Trade and Commerce, concerning Factors, Consuls, Embassadors,
&c., and the East South Sea Company,
&c. [Went?] into Water. Talked with Wm.
Veasey about Church &c. He will not allow that Dr.
Mayhew has any uncommon Parts. He had haughty Spirits, and Vanity
&c. -- How the judgment is darkened and perverted by Party Passions!
Drank Tea with Zab. Ran over the past Passages of my Life.
Little Boats, water mills, wind mills, whirly Giggs, Birds Eggs, Bows and
Arrows, Guns, singing, pricking Tunes, Girls &c. Ignorance of Parents,
Masters Cleverly, Marsh, Tutors
Mayhew &c. By a constant Dissipation among
Amuzements, in my Childhood, and by the Ignorance
of my Instructors, in the more advanced years of my Youth, my Mind has laid
uncultivated so that at 25, I am obliged to study Horace and
Homer. -- Proh Dolor!
Read 2 Odes in Horace. Spent the Evening at the
Coll.'s. While we were at supper, the
Coll. received Letters from Mr.
London, with a Bill of Lading and Invoice of about 150
sterlings worth of Glass and Hinges and Nails, and Locks &c. for a House.
These were the Value of a sum of money of the Colls the Coll's.
Money, which Mr. Turner had retained, in his own Hands, about
seven Years since, to satisfy a Debt from Mr. Branden, whom
the Coll. had so strongly recommended, as in
Mr. Turners opinion to make himself Brandens
sponsor. So that it was as sudden and unexpected at least as
[a] Prize in the Lottery would have been, or one taken at
sea; and it had such a joyful Effect.
Coll. Grape vines delight in a
[light?] rockey, and mountainous soil, like our
Commons, which would make excellent Vineyards. -- I suppose that most of the
Wines of the World, are the Growth of Climates at least as northern as
ours.Champaign, and Tockay are more southward, but
Burgundy &c. &c. &c. are northward of us.
Wasted the Day, with a Magazine in my Hand. As it was Artillery Election, it
seemed absurd to study, and I had no Conveniencies, or Companions for Pleasure
either in Walking, riding, drinking, husling, or any thing else.
This Day has been lost in much the same, Spiritless manner.
Read nothing but Magazines as indeed an indisposition rendered me unfit for
any Application. Spent the evening with Zab at Mr. Wibirts
Discharged my Venom to Billy Veasey, against the Multitude,
Poverty, ill Government, and ill Effects of licensed Houses, and the timorous
Temper, as well as criminal [illegible] Designs of the
Select Men, who grant them Approbations. Then Spent the Evening, with
Zab, at Mr. Wibirts.
Arose late. Feel disordered. 8 o'Clock, 3 1/2 Hours after Sun rise, is a
sluggard's rising Time. Tis a stupid Waste of so much Time. Tis getting an
Habit hard to conquer, and Tis very hurtful to ones Health. 3 1/2, 1/7 of the
24, is thus spiritlessly dozed away. God grant me an Attention
to remark, and a Resolution to pursue every Opportunity, for the Improvement of
my Mind, and to save, with the Parsimony of a Miser, every moment of my
FRIDAY 6TH. JUNE.
Arose very late. A cold, rainy northeasterly storm, of several Days
continuance. I have an ugly Cold, a phlegmatic stomach and a Cholicky Pain in
my Bowells this morning. Read Timon of
Athens, the Man hater, in the Evening at the Drs.
Arose late, again. When shall I shake off the shackells of morning slumbers,
and arise with the sun? Between sun rise, and Breackfast, I might write, or read, or contemplate, a
good deal. I might, before Breakfast, [illegible] entirely shake
off the Drowziness of the Morning, and get my Thoughts into a steady Train, my
Imagination raised, my Ambition inflamed, in short every Thing within me and
without, into a Preparation for Improvement. -- I have some Points
[of] Law to examine to day.
Spent the Evening and Night at the Coll's. in ill natured, invidious,
Remarks upon Eb. Thayer, and Morals and General Court
Attended Major Crosbeys Court. Where
[illegible] Capts. Thayer and
Hollis made their Appearance. Thayer had taken 2
Accounts of Nathan Spear, in his own Hand Writing,
and got the Writts drawn by
Niles. But upon my making a Defence
for Hunt, Spear was afraid to enter and so
agreed to pay Costs and drop. But poor Thayer had to say,
several Times I told him so, but he would have his own Way. This little dirty,
petty fogging Trade, Thayer carries on yet.
my Spirits were
wasted Yesterday, by sitting so late the Night before, (till one o'Clock I
believe) and rising so early Yesterday morning, (by sun rise) and walking in
the dewy Grass and damp Air, home to my fathers and then down to Major
Crosbeys, yet the Thought of being employed, and of opposing
Thayer and punishing
Nathan Spear, and Spreading a Reputation, roused my Faculties,
and rolled out Thoughts and Expressions, with a strenth and Rapidity, that I
I remember something of the same sort, when I
first waited on Mr. Gridley. The Awe of his Presence, a Desire
of his Esteem, and of an Introduction to Practice, quickened my Attention and
Memory, and sharpened my Penetration. In short, I never shall shine, till some
animating Occasion calls forth all my Powers. I find that the Mind must be
agitated with some Passion, either Love, fear, Hope, &c. before
she will do her best.
I rambled this Afternoon with the Dr. over the Commons, and amused
my self wit by clearing the Spring and
climbing the Ledges of Rocks, thro the Apertures of
which, the trees had large Trees had grown. But I spend too much
Time, in these Walks, these amusing Rambles. I should be more confined to my
Chamber. Should read and muse more. Running to Dr., to the Barn, down to meals
and for Pipes and Coals and Tobacco &c. take up much of my Time. I have
grown habitually indolent and thoughtless. I have scarcely felt a glow, a Pang,
a Transport of Ambition, since I left
Worcester, since I left my school indeed, for there the
tricks, the prate and the Mischievous Tricks, the perpetual invincible
Prate, and the stupid Dulness of my scholars, roused my Passions, and with them
my Views and Impatience of Ambition. Let me Remember to keep my Chamber, not
run Abroad. My Books, naval Trade, Coke,
Andrews, Locke, Homer,
should not Fields and Groves and Springs and Rocks should be the
Objects of my Attention. Law and not Poetry, is to be the Business of my
This Week has been spent in Business, i.e. filling Writts
, and Journeys to
Boston, Scadding, Weighmouth,
Abington. The other Night Cranch explained,
to Zab and me, the Fire Engine, with which they
throw up Water from the Bottoms of their Tin Mines in
Cornwall, and Coal Mines in
New: Castle. They have a large Cauldron of Plated Iron, filled
with Water, and placed over a large fire
and closely covered, and
placed over a large Fire. From
Out of one side of this Cauldron,
proceeds a large Tube of Iron horizontally, which Ends in a capacious
iron receiver, like
shaped like an Egg, which
will hold a Tun. Half Way between the Cauldron and the Receiver, in the Tube is
a Cock. From the Lower Side of the Receiver perpendicularly goes another Tube,
down into the Well or Bottom of the Mine, i.e. into the Water. At the mouth of
this Tube, where it communicates with the Receiver is a Valve. From the Top of
the same Receiver, perpendicularly upwards goes another Tube, which extends
quite up above the surface of the Ground, and at the bottom of this Tube i.e.
where it communicates with the Receiver, is another Valve. This is the
Description of the Machine. Now when the Water in the Cauldron is
made to boil, it sends a hot
steem along, thro
the Cock into
first opened for that Purpose in the Receiver, which proceeds from the Receiver
one Valve down to the Water and
another Valve, up into open Air. By this steem
the Air, within, is very soon rarified, so as to be no Ballance
for the Pressure of the Air, upon the Water in
the Mine without the Tube. Of Course the Water rises and fills the Receiver.
Then turn the Cock and stop the Passage of the Steem, and the Water beginning
to descend will close down the lower
thus confined in the Cauldron by the Cock, and
the Water confined in the Receiver by the Lower Cock, as soon as you open the
Cock, the furious Vapour
flies out and drives before
it, all the Water in the Receiver, thro
Valve, quite up into open Day, where they have channells &c. to convey it
away. And when this Proscess
, they begin
anew. This Engine was an Invention of Capt.
Savery. They used Copper formerly
originally, but lately,
they use plated Iron. They had
They have a different manner now. They Use a Concentric Tubes, with a Box,
like a Pump Box playing in the central one.
In my journey to
Abbington, my Mind seemed to be confused with the Dust and Heat,
and fatigue. I had not Spirit and Attention to to make any
Observations upon the Lands, Corn, Grass, Grain, Fences, orchards, Houses
&c. I dined at Nortons where the two military Companies of
the Town, were assembled to raise Voluntiers,
Recruits, but I had not Spirits to make Observations, on the Landlord, or Lady,
or Officers or soldiers or House, or any Thing. I eat Milk for Breakfast.
Rose early, 5 o clock. A pleasant Morning. The more I write the better.
Writing is a most useful improving Exercise. Yesterday morning before Break
fast I wrought my Mind into a Course of Thinking, by my Pen, which I should not
have fallen into the whole day without it; and indeed often not
resuming my Pen after Breakfast, I insensibly lost my attention.
Let me Aim at Perspicuity, and Correctness more than ornament, in these
Arose before the sun. Now I am ignorant of the fortune my Future
Fortune, what Business, what Reputation, I may get, which is now far from my
Expectations. How many Actions shall I secure this Day? What new Client shall I
have? 6 Actions I found at Evening, I had secured 6 Actions, but not
one new Client, that I know of.
Arose before the sun again. This is the last day. What, and who
Hayden was altogether new and unexpected. Hollis him
self was altogether new and unexpected and John Hayward was
altogether new and unexpected. 3 entirely new Clients, all from Captn.
Thayers own Parish,one of
one of whom is pretender to
himself a Pretender to the Practice,
are a considerable Acquisition. I believe, by the Writ and Advice I gave
Hayden and the Writt and Advice [illegible]
the Lecture, concerning Idleness and Petty fogging, given
Hollis before Hayward will spread
me. Hollis is very near to Beggary
and Imprisonment. His oxen are attached, and his Cows, and Pew, and a Number of
, and Executions are [out]
against [him and]
not yet extended. He owes
more than his Estate can pay I believe. And I told him that by neglecting his
own proper Business, and meddling with Law which he did not understand, he had
ruined himself. And it is true, for if he had diligently followed his Trade of
making shoes and lived prudently he might at this Day have been clear of Debt
and worth an handsome Estate. But shomaking I suppose was too mean and dimitive
an Occupation for Mr. Thomas
Hollis, as Wig making was to Mr. Nat Green, or House
Building to Mr. Daniel Willard, and he like them in order to
rise in the World procured Deputations from the Sheriff, and after serving long
enough in that office to gett a few Copies of common Writts
and a most litigious Disposition, left the Sheriff
and commenced the Writt Drawer. But poor Hollis is like to be
stripped of all he has, if he should escape the Goal,Daniel Willard made
which Daniel Willard was
obliged to enter, and if he should not be forced to fly like Nat
Green. These sudden Transitions from shomaking, Wigg making and House
building, to the Deputy Sheriffwick; and from thence to the Practice of Law,
commonly hurry Men rapidly to Destruction to Beggary and Goals. Yet
White has rose the same Way,
i.e. by a Deputation from
the Sheriff. But White
had the Advantage of a liberal Education, and had as Rival no Competitor to
oppose him, so that he got quickly sworn. E. Taylor too, was
naturally smart, and had been
long a sheriff, and had the Patronage
and Encouragement of Mr. Trowbridge, who was his Brother in
Law. Applin and Ruggles are in a higher
Class, men of great
Genius and great Resolution, to combat the World
both by Violence and stratagem.
Thayer by his own abject slavery to Coll. Pollard got his Affection and he did every
Thing to encourage him. Dana gives him has given
him great Numbers of Writts to be served on People in
this Town, he takes seven shillings for the Writt, and four shillings always,
and some [times] 5 for the service; of this he gives
Dana one shilling for his Blank, and reserves 10 or 11 to
himself; great Numbers of Writts he has filled
himself, and those which he durst not fill he got Niles to
fill for 3 shillings so that he takes 3, and four is seven and often times
Eight shillings to himself. Thus from Coll.
Pollard, from Mr. Dana and Elisha
Niles he has got his Estate, as his Legislative Authority, as basely
got as Bestia's from the Throne. A little longer Experience will enable me to
trace out the whole system of his Policy and iniquity.
The office of a sheriff, has Dangers and Temptations around it. Most of them
decline, in Morals or Estate or both. Saml. Penniman is
Read but little, thought but little, for the N.E. storm unstrung me.
I have been the longer in the Argt [Argument] of this
Cause not for the Importance of the Cause itself, for in itself it is
infinitely little and contemptible, but for the Importance of its Consequences.
These dirty and ridiculous Litigations have been multiplied in this Town, till
the very Earth groans and the stones cry out. The Town is become infamous for
them throughout the County. I have absolutely heard it used as a Proverb in
several Parts of the Province,
"as litigious as
Braintree." And this Multiplicity is owing to the
Multiplicity of Petty foggers among whom Captn. Hollis is one, who has
[illegible] given out that he is a sworn Attorney till 9/ 10 of
this Town really believe it. But I take this Opportunity, publickly to confront him, and undeceive the Town. He
knows in his Conscience that he never took the Oath of an Attorney, and that he
dare not assume the Impudence to ask to be admitted. He knows that the Notion
of his being a sworn Attorney is an Imposture, is an Imposition upon this Town.
And I take this opportunity publickly to declare
that I will take all legal Advantages, against every Action brought by him or
by Captn. Thayer or by any other
Petty fogger in this Town. For I am determined if I live in this Town to break
up this scene of strife, Vexation and Immorality. (Such suits as this and most
others that ever I have seen before a justice in
this Town, have a
Tendency to vex and imbitter the Minds of the People, to propagate an idle,
brawling, wrangling Temper, in short such suits [illegible]
an Inlet to all manner of Evils.)
And some [i.e. one] of these suit managers, when I first
came to this Town, hearing that I had been thro a
regular Course of study with a regular Practitioner, and that I was recommended
to the Court in
Boston, by one of the greatest Lawyers in
America, and knowing concluded, that I should be
enabled by these Advantages, and prompted by my own Interest if by no higher
Motive, to put an End to the illegal Course of dirty, quacking Practice in this
Town, which he had been in, and thereby enslaved the Minds and
Bodyes and Estates of his Neighbours. And to prevent this he set himself to work
to destroy my Reputation and prevent my getting Business, by such stratagems as
no honest Mind can think of without Horror, such stratagems as I always will
resent, and never will forgive till he has made Attonement by his future
Repentance and Reformation. I thank God his action
Malice has been defeated, he has not been able to enslave me, nor to drive me
out of Town, but Peoples Eyes begin to open, [illegible] and I
hope they will open wider and wider till they can see like other Towns. Happy
shall I be if I can rescue the Souls and Bodies, and Estates of this Town from
that Thraldom and slavery, to which these Petty foggers have contributed to
depress them; and if I can revive in them a generous Love of Liberty
and sense of Honour
. -- After this long
Digression from this Cause
let me return to this Cause, and I rely upon it, it is a vexatious one. I rely
upon it that many of these Articles were borrowed and not bought, and that
therefore this Action cant be maintained for them. I rely upon it, that the
Affair of the Hat is a litigious Thing, that it was a mere piece of Tavern
Amuzement, and if there was any Thing like Bargain and sale in it, the Bargain
was completed, the Hat delivered and the Money paid, and with regard to the
other Articles, we have filed an Account that more than ballances them, and
therefore I pray your Honours
Judgment for Costs.
I must not say so much about my self, nor so much
about Hollis and Thayer by Name. I may
declaim against Strife, and a litigious Spirit, and about the dirty Dablers in
I have a very good Regard for Lt. White, but he must allow
me to have a much greater Veneration for the [forms
of?] Law. To see the Forms and Processes of Law and justice thus
prostituted, (I must say prostituted) to revenge an imaginary Indignity,
offered in a Tavern over a Chereful Bowl or enlivening Mug. To have a mere
Piece of Jocular Amuzement, thus hitched into an
Action at Law, a mere frolick converted into a Law
suit, is a Degree of meanness that deserves no Mercy and shall have none from
me. I don't think
Lt. White considered the Nature
and the Consequences of this Action, before he brought it. If he had he never
would have brot
it. He has too much
to have brot
I suppose the Case was this. Lt. White was a little chagrined,
that my Client had for once outwitted him, and in a Miff, or a Bravado, I say a
Miff or a Bravado, sees Hollis and asks his Opinion. And
Hollis glad of an opportunity to draw a Writ, instantly
encourages the [illegible]
suit, and the suit was
. And when once brot
it was too late to repent. But I dare say he has been severely sorry, that he
it, and will have still further Occasion
to be sorry before it Ends.
As to the Hat, Either it was a Bargain and Sale or it was not. If it was a
Bargain and sale, The Hat is my Clients and the Price agreed upon, which was
the Copper, delivered at the very Time, is Lt. Whites. But if
it was not a Contract, but only a frolick and no one
in Earnest, as I suppose it was, then the Property of the Hat continues in
Lt. White, and he is welcome to take it, returning us our
Germantown in the morning. Cranch says that the
Grindstone is found in the Coal Mines in
Europe. The Coal lies in Apartments, strongly fortified with
Partitions of this stone, and this stone forms the Covering over Head, &c.
I took a good Notice of the Rock Weed, they were burning into Kelp
and I find there are a great Variety of Species of it. Some of it grows out of
a small stalk, which soon spreads into several
, and each of those Branches into several
others, with those little Bubbles or Bladders, full of Air, scattered along at
little Distances, on every Branch and Sprig, but at the End of Each twigg or
Sprig, hangs a large Pod, full of a spongy substance
seed incased in
a spongy substance. We went down to some large stones, which had been thrown
over between high Water and low water mark 2 or 3 Years ago. These stones are
all grown over with the Rock Weed [illegible]
. The seed, We
suppose is deposited by the Water upon the Rock, takes Root and grows. It grows
very fast to the Rock and when you pull, you will sometimes break the stalk,
sometimes pull off a flake of the Rock with it, and sometimes take the Weed, as
it seems to me, fairly up by the roots, and the Roots are little fine Spiculae,
finer than the Point of the finest Needle. These Roots insert themselves into
the Pores of the Rock and thence draw Nourishment. And the connoiseurs say,
that some Rocks will produce Weeds, large and rank and strong, while others,
laid in the same Place at the same time, will produce only a meagre
, short, lingering one. They seem to take a deeper
and stronger Root, in Timber and Planks, as on the sides of Wharfes, than they
do in Rocks. The salt Water seems to be impregnated with the seeds of it, for
whenever a Rock is thrown below high Water mark, immediately a Crop of these
Weeds Spring up. It is excellent Manure for the Soil. The salts
and sulphurs in it are very good. When they thro
into the Kelp Kiln, it is of a dark brown, or a dirty Yellow, but after it has
been heated in the Kiln, it turns of a bright clear green. The Fire occasions
some Change in the Configuration of the surface, that reflects green Rays most
plentifully, where it used to reflect yellow and brown. They burn it into an
ashes, which is a fixed salt, which they call Kelp. 20 Tons of the Weeds will
produce about one Ton of the ashes. It tastes a little like Gun powder, it
smells like marsh Mud, like a muddy Creak, &c [illegible]
has a saltish, sulphurous Taste and Smell. -- The Deacon shewed
us a Sort of Stone, that the old Glass Company
Connecticut, to use instead of Grindstone, for the furnace. He
called it stone of the asbestus Kind. Dr.
used it in his and never found the fire made any
Impression on it. But the Glass men found it dissolved in about 4 months. They
call it a Cotten stone. It seems to have no Gritt at all, it feels as soft as
soap. It cost the Company about [illegible]
or 900. --
Thus, the first Essays, generally [illegible]
unsuccessful, prove burdensome instead of profitable.
21ST. 1760. SATURDAY.
23RD. 1760. MONDAY.
A long obstinate Tryal, before Majr.
Crosby, of the most litigious, vexatious suit, I think that ever I
heard. Such Disputes [illegible] begin with ill humour and scurrilous language, and End in a Boxing Bout or
a Law suit.
Arose early, a very beautiful Morning. Zab. seems to make
insufficient Distinctions between the Vowells. He
seems to swallow his own Voice. He neither sounds the Vowells nor Articulates distinctly. The story of Yesterdays
Tryal, spreads. Salisbury told my Uncle and my Uncle
told Major CrosbyColl.
Quincy. They say I was saucy, that I whipped the old Major, &c.,
that I ripped about the Law suits of this Town And of that House, and that I
reminded the Majer of his oath to be of Council to
neither Party, and to do justice equally between the Parties according to
Went out with the Coll., in his Canoe, after
Tom Codd. Rowed down, in a still calm, and smooth Water, to
Rainsford Island, round which we fished in several Places, but
had no Bites. Then we went up the Island, and round the Hill. Upon the North
Easterly side of the Hill, or Island, is a prodigious Bank or Head, which is
perpetually washing away, with Rains and Tides. Heartley says it has been
washed away 10 feet since he lived on the Island. The Rocks all round the
Island are covered with long, rank, rich Weeds, 3 Years old, which Heartley
sells at 5s. a Load.
At one of the Clock we took our Mutton and Cyder,
under the shade of a fine Tree, and laid our Provisions on a large flat stone
which answered for Table, Dish and Plate, and then we dined expecting with much
Pleasure an easy sail Home before the Wind, which then bread fresh at East.
After Diner we boarded and hoisted sail, and sailed very pleasantly a Mile,
when the Wind died away into a Clock Calm and left us to row against the Tide,
and presently against the Wind too for that sprung up at south, right a Head of
us, and blew afresh. This was hard work. Doubtful what Course to steer, whether
Nut Island, or to
Half Moon, or to
Hangmans Island or to
Q. grew sick which determined us to go ashore at
Hangmans for that was the nearest. As soon as he set foot on
shore he vomited, very heartily, and then weak and faignt, and spiritless, he
crawled up to the Gunning House, and wrapping his great Coat round him, lay
down on the sea weed and slept, while I rambled round the Island after Weeds
and flowers and stones and young Gulls and Gulls Eggs. 500 Gulls I suppose
hovered cawing and screaming over the Island, for fear of their Eggs and Young
ones, all the time we were there. When the Coll. [illegible] awoke and found himself strengthened and inspirited, we
rowed away, under Half Moon, and then hoisted sail and run home. So much for
the Day of Pleasure, The fishing frolick, the Water
frolick. We had none of the Pleasure of Angling, very
little of the Pleasure of Sailing. We had much of the fatigue of Rowing, and
some of the Vexation of Disappointment. However the Exercise and the Air and
smell of salt Water is wholesome.
JUNE 26. THURDSDAY.
Feel indifferently well after my yesterdays walk and sail. I have begun to
read the Spirit of Laws, and have resolved to read that Work,thro, in order and with Attention. I have hit upon a
Project that will secure my Attention to it, which is to write in the Margin, a
sort of Index to every Paragraph.
Read 100 Pages in the Spirit of Laws. Rambled away to a fine Spring in my
Cozen Adam's Land, which gushes thro a Crack in a large flat Rock and gurgles down in a
pretty Rill. The Water is clear, sweet, and cool, and is supposed to have a
very wholsome Quality, because it issues from a
Mountain, and runs towards the North. What Physical Quality its northern
Direction may give it, I know not. By its sweetness it flows
thro clean Earth, and not minerals. Its Coolness may
be owing to its Rise from the Bowells of the Hill.
Zab's Mind is taken up with Arithmetical and Geometrical
Problems, Questions, Paradoxes and Riddles. He studies these Things that he may
be able to gratify his Vanity by puzzling all the vain Pretenders, to
Expertness in Numbers, and that he may be too expert, to be puzzled by any such
Questions from others.
There is a set of People, whose Glory, Pride &c. it is to puzzle every
Man they meet, with some Question in the Rule of three or fractions, or some
other Branch of Arithmetic. Jed. Bass.
Moses French. Tom Peniman, &c. &c.
Smith, Richard Thayer, &c.
JULY 1 ST. 1760.
Went to Town.
Mr. Thatcher. You have read a great deal, Mr.
Adams, in the Roman History, concerning the Modesty of Youth, and
their Veneration of the Elders. Now I think these young Gentlemen had very
little of that Modesty and Veneration, when they went in the face of Law and
against the Remonstrances of all the Elders to act their Plays.
Mr. Otis says there is no Limitation of Attachments. There
is no Proportion established between the Demand and the Quantity to
be attached, so that a Villain may attach 20,000, if he pleases as
security for 20, and take the whole into the Officers Custody.
Tho on second thought, this cant be done without
Collusion between the Plaintiff and the officer, for unless the officer is
malicious as well as the Plaintiff, he will run the Risque for the Defendant, of making a Common Service, and
this is the Reason why there has been no Mischief made of the unlimited Power
JULY 3RD. 1760.
Read pretty diligently in the Spirit of Laws. -- Hayden's
Consultation suggested the following Questions. Q. Is there any Method of
compelling a Grantor to give a new Deed when the Deed he has
executed before happens to be burned or lost?-Q. May an Agreement in Writing
without seal, or by Parol only be given in Evidence against a Bond sealed and
delivered? After Confession of the Forfeiture of the Penalty, any Special
Agreement may be given in Evidence.
SATURDAY JULY 5TH.
[illegible] Last Night Cranch explained to
me, the Water Works in the River Thames which convey water, all round the City
London. There is first, a long water Wheel, like the Water Wheel
of some saw Mills, which is carried round by the River. On the End of the Axis
of this water Wheell are Coggs, which carry round a cogg Wheel. This Cogg wheel
has upon the End of its Axis, a Number of Cranks and each of these Cranks lifts
up and lets down a Pump Box every Time the Cogg wheel Turns. These Pumps are
very large, and prodigious Quantities of Water are pumped away into a general
Conveyance and Receiver, from which Pipes are carried to almost every Cellar
and to many of the Rooms, and Chambers, and Garrotts, in Gentlemens Houses,
thro the City. Cranch says he has
seen the Works for Conveying ships up a Cataract, as that between
Exeter. Vessells are conveyed along,
up Hill, so 3 Miles. They rise [illegible] up hill as far as from
the Bottom of the long Wharf to the Top of
Bacon [Beacon] Hill. They have Walls
[illegible] of great Thickness and strength built across the
River Ex, with Gates, of Timber fortified with Irons, in the Middle. These
Gates are opened, and the Vessells float, within the
Wall. The gates are then shut, and the fresh running Water of the River let
down into that Apartment where the Vessell is which
soon raises the Vessell as high as the Top of the
[illegible] lower Walls when the Gates of the second Wall are
opened and the Vessell is floated within that. Then
the second Gate is shut, and the freshit raises the Vessell up another stair.
These Gates have several smaller sluice Gates in them
slide up and down. These they slide up, and let out as much Water as they can,
before they pretend to open the Great Gates.
This whole Passage and Conveyance is artificial, for the natural Course of
the River was at some Distance. This whole Channell
was cut by Art , and. What an Expence! to
cutt such a Channell for 3
miles, to erect such Walls and so many Walls across the River, to
build such Gates, and such Machines to open them.
Invention has laid under Discouragements in
England, for Inventions to facilitate any Manufacture, by which
Numbers of People might be thrown out of Business have been prohibited by Act
of Parliament. Saw Mills for that Reason were prohibited, That a greater
No. of Hands might be employed in sawing, by Hand,
Boards and Timber &c. But that Act was of no service. Our Merchants could
Holland and buy Boards and all sorts of Timber much cheaper,
than they could procure them at home. I suppose the Act is expired, and not to
be revived, by the Encouragement the society for Encouraging Arts, Manufactures
and Commerce, have offered to the Man who shall produce the best
Modell of a saw Mill.
The Dutch erected a Dike, some Years since, which shut out the sea for a
great [illegible] Extent of Land, and they erected Wind Mills, at
small Distances upon this Dike, which threw all the Water that was left within,
over the Dike into the Sea.
it seems is a reverberating Furnace. That is, the Heat, which is flashed
against the internal surface of the Furnace, when a dry stick of Wood is thrown
in, is reverberated, down into the Pots, and melts the Glass, much more than
the silent Heat below. So that, rugged Excrescences, prominent Bits of
Grindstone, within must be a disadvantage, for if the internal Concave could
be polished like a concave Mirror, it would be in its most perfect
state. Besides this Furnace is too high. These 2 faults,Hight
and internal Ruggedness, the Deacon thinks have
wasted him almost a Cord of Wood a Day.
Cowen and Young Thayer the Marketman are
full of White and Bowditch.
Cowen heard I tore Whites account all to
Pieces, and Thayer thought that White had a
dirty Case. Few Justices Causes have been more famous, than that. Isaac
Tyrrell [Tirrell] had the story too, but he thought
Bowditch was to blame, was abusive.
Heard Mr. Mayhew of
Gould has got the story of White and
[12 or 19 JULY].
I find upon Examination, that a Warrant of Attorney given by an Infant is
void; so that, if you intend during your Apprentices Absence, to put the Note
you mentioned to me in suit, or my other way
to sue for the
Detention of the Province Note, or any other wise to prosecute your Right, the
only Way I can think of is, for the Lad to elect your father for his Guardian
see to procure the judge of Probates allowance of it,
before he goes off. If your father is unwilling to go to Town, you may
ride down and wait on this judge.Altho
Deacon Bass might have
been appointed Guardian to
when a Child, yet you know he has a Right to choose one at
fourteen, and he is no doubt willing to choose his Master, but he must give
security to the judge for the faithful Discharge of his Trust.
From the very hasty and imperfect Account of the Case which you gave me, I
can think of no other Way at Present, that will have any Safety. So you may Act
your own Pleasure.
With Regard to the Notes, as the old Note you mentioned to me, was given to
the Lad an Infant, neither He nor his Guardian will be under any Obligation to
accept it in Satisfaction for the Province Note, unless they please. So that if
that Note is not sufficient to secure the Money, you may bring your Action for
the Detention of the Province Note. But in that Case you know you must be able
to prove by Witnesses, Confession, or other Circumstances, first that your
Apprentice owed the Note, 2dly that French had it in Possession, and idly that
he converted it to his own Use.
If these Hints are of any service to you, I shall be glad, or if, upon your
letting me further into the facts, any Thing further should occur
to me, I shall be ready to communicate it.
Yr. svt., J. Adams
MORNING [13 or 20] JULY 1760.
The week before last Salome Pope appeared before
Coll. Quincy, to confess herself
with Child, by Jos. Ryford.
Her Intention was to complain against Jos. Ryford and
charge him before the justice with being the father of the Bastard Child
with which she is now pregnant. Now what Occasion for taking her
Examination upon Oath?-By the Province Law.
We contend that [illegible]
the Plaintiffs ought to recover
nothing on this Bond, because according to the original Agreement it is paid.
The Case was this. The Plaintiffs about 15 years ago conveyed to one Tower, a
Tract of Land, containing with such and such Boundaries, 30 Acres. And the
present Defendants became jointly bound with the Grantee for the Money, which
was 750, for which they gave 8 or 10 Bonds, one of which was to be paid
off every Year. But at the Time of these Transactions, a suspicion arose, that
the Land included within the mentioned Bounds, did not contain so much as 30
Acres, which induced the Defendants to insist upon and the Plaintiffs to enter
into an Agreement which they committed to Writing, that the Land should be
surveyed, and if it fell short of 30 Acres, the Deficiency should be
deducted out of these Bonds. [illegible]
Accordingly an Admeasurement was made, and the Land fell
Acres and 1/2, which in Proportion to the Price of the whole amounted to about
the Value of this Bond. [illegible]
With regard to the other
Bonds some of them were put in suit, others were paid off and taken up, at
length all of them were taken up, but this, and the Reason why this was never
taken up was this. The Plaintiff Hollis
who had kept all the Bonds in his own Hands never would come to a final
settlement with them. The [young Man?]
made several Payments, and Tower had made several more and
Hayden had made several others. Some of these Payments were
minuted on the Bonds, but many of them were made abroad upon
Hollis Promise to enter them on the Bonds when he went home
which was never done, so that these People [illegible]
Brothers to Hollis and confiding in his Honor have been let
on Blindfold, in midnight Darkness, till they have
already paid 12 or 1500 Pounds for 750, and when all is done they have no Land.
For by some Accident the Deed of this Land is lost, of which
Hollis got scent some way or other and has since conveyed away
this very Land to another Man. This very land is now mortgaged to
The Case of Chambers vs.
Bowles was this.Capt.
Chambers had sold to one Anthony Lopez a Spaniard of
Monto Christo, a Quantity of Merchandizes. Lopez called for the
Goods, but when he came to count his Money he found it fell short, 60 Dollars.
Chambers, who had no other Dealings with
Lopez and was unacquainted with his Circumstances,
refused to trust him for the 60 Dollars, and accordingly took back
Merchandizes, to that Value. Upon this
Captn. Bowles, who was well
acquainted with the Spaniard, and knew him to be rich, spoke a few Words to him
in Spanish and then turning to Captn.
Chambers, said, let Lopez have
[illegible] the goods and I will pay you the Dollars; call upon
me tomorrow or any time and Ile pay you the Money.
Mr. Otis said this fell within the Province Law to prevent
frauds and Perjuries "that no Action shall be brought whereby to charge the
Defendant upon any Special Promise to answer for the Debt, Default or
Miscarriages of another Person, unless the Agreement upon which such Action
shall be brought, or some Memorandum or Note thereof shall be in Writing, and
signed by the Party to be charged therewith," &c. This is, says he, an
Agreement to answer for the Debt or Default or Miscarriage of
Lopez. The Contract and sale was from
Chambers to the Spaniard, not from Chambers
to Bowles. No Discrimination was made between the
Merchandizes sold to Lopez and
these sold to Bowles, but Bowles says let
Lopez have the Goods according to your Contract and I will see
you paid if he dont.
Thatcher. This is not a conditional Undertaking
[illegible] for Another, but an absolute Undertaking for
I remember a Case in
Salkeld precisely parrallel which is this. "A and B go into a
Warehouse together and A says to the Merchant, deliver B such and such
Merchandizes, and if he dont pay you I will.
This Promise is void by the Act of Parliament from which our Province Law was
copied. But if A says Let B have such and such Goods and I will be your Pay
master, or I will see you paid, or I will be answerable to you, in this Case
A's promise is good, is an absolute Undertaking for himself not a conditional
Undertaking for Another, and A shall be answerable. -- Just so in the Case at
Bar. Captn. Bowles says, Let the
Spaniard have the Goods and I will pay you, call tomorrow or any time at my
Lodgings and I will pay you. Here is an Absolute Undertaking for himself, not a
Conditional Undertaking in Case Lopez failed, for We never
sold these Goods to Lopez, we have no Demand
vs. Lopez for them, we refused to
sell them to him: We sold them to
ChambersBowles, he sold them to
Lopez; He only can demand pay of Lopez and we
can demand pay only of him; and we expect your Verdict accordingly. -- This was
like Fairbanks v. Brown. There
Brown Undertook for the [Govt.?], that the
Carter should have such a Price. I will ensure You such a Price. I promise you
such a Price, &c.
The jury gave a Verdict for Chambers in this Case.
This Bond has been at [least]
once and an half, if not
twice, paid. The Case is this. About 15 Years ago, the Plaintiffs sold a tract
Land, containing 30 Acres, within such and such
Boundaries, to one Tower, for 750, and He together with the present
Defendants became jointly bound to the Plaintiffs, in 10 different Bonds, of
which this is one, for the Payment of the Money. But in the Time of it, a
suspicion arose that those Bounds did not include 30 Acres; and least they
should not an Agreement was made and committed to Writing, that the Land should
be surveyed, and if it was found to fall short the Deficiency should be
deducted from some of these Bonds. Accordingly the Land was afterwards
surveyed, and found to fall short, 7 Acres and an half, which at the
Proportion of to
the Price of the whole
amounted to about the Value of this Bond. All the other Bonds have been
discharged and taken up, and this was set against the Deficiency of Land. But
Besides all this [illegible]
, at least one half of it has been
paid another Way. For one of these [illegible]
the Money to Hollis and had 1/2 of what was due upon every
Bond in his Hands callculated, and paid him down his Money, and
Hollis promised to indorse one half, upon every Bond that was
left: yet this has never been indorsed
Hollis has assurance enough to sue for this whole Bond. The
Defendants have been extreemely
negligent. Sometimes they paid Money abroad, and took no Receipts, but relied
on his Honour
to indorse it when he went
home. They even left the Agreement that obliged him to make up the wanting
Land, in Hollis's own Hands; after the Land was surveyed they
left the Plan and survey in his Hands, in short there has been the Utmost
Simplicity and Inattention on their Part in every Part of all these
Transactions; and there have not been fewer Proofs of Artifice, secresy, and
Guile, I must say Guile, on the Part of Hollis, for He always
avoided giving Receipts; he never would suffer any 3d Person to be present,
when he did Business. They sometimes would carry with them a
Numbers, better than they, to calculate for them and see that they were not
injured, but whenever they did so Hollis would never do any
Business with them and at last had the Assurance to tell them that he never
would do any Business with them if they brought any Body with them, as long as
he lived. So that by one Artifice and another we have been led on to pay, I
suppose, 1500 for 750, and what is worse than all the rest, the Deed he
gave is accidentally lost. Of this Hollis got a Hint, and has
since sold it to another Person. This Hollis has
mortgaged this very Land to
, the Clerk of this
Court, since he found We had lost our Deed. Yet he has the assurance to sue
. We have offered him to relinquish his obligation
to make good the deficient Land and pay him the 1/2 of this Bond, if he will
execute a new Deed of the Land; but he cant do that. He has sold it.
Hollis has appealed. If he prosecutes his Appeal, he shall
be paid. I believe there never was an Action in this Court where more Instances
of Ignorance, Negligence and Inattention appeared on one side, and of
and Guile [illegible]
I must say
Guile on the other, since it was erected. Let me draw a Picture of the
Defendants stupidity, and of Plaintiffs Knavery. Neglect to acknowledge the
Deed, to record it. Then the Loss of it, intrusting the Agreement that obliged
him to allow the wanting of Land on these Bonds, in Hollis's
own hands; then leaving the survey, in Hollis's Hands. Paying
him sums of Money abroad, and confiding in his Honour
to indorse them-and consenting to do Business with him alone. On the other side
Hollis has been watchful to draw every Tittle of evidence
within his own Power [illegible]
. I dare not say he has the Deed
of the Land but he has got the Agreement, and he has the survey and he has been
careful never to receive money of us before Witness when he could help it, and
he never would give any Receipts. He would promise to indorse upon the Bond but
he never did it. [illegible]
Nay he had the assurance to tell us
at last, that he never would do any Business with us again, if we brought any
3d Person with us. We thought ourselves ill used several Times. We were
Numbers and Calculations, can but just write our
Names, and we had a Desire that somebody better skilled than we should
calculate and settle for us. Accordingly we got once or twice some of our
, to go with us And see that we want
defrauded. But he never would do any Business with us, and at last he told them
to their Heads, if you ever bring Deacon Penniman, or any
other Man with you again when you come to settle with me, I'le go directly off
and leave you and will do nothing with you.
I must explain and prove Towers Payment of one half, at large, and then
Haydens Payment of .270, and a Book Debt, and the
Indorsements which made the 6 Bonds that Hayden took up.
Drank Tea at Coll. Quincys, with
Coll. Gooch and
Dr. Gardiner. I see Gooch's fiery Spirit, his
unguarded Temper. He Swears freely, boldly. He is a Widower, and delights to
dwell, in his Conversation, upon Courtship and Marriage. Has a violent aversion
to long Courtship. He's a fool, that spends more than a Week, &c. A
malignant Witt. A fiery, fierce outragious Enemy. He quarrells with all Men. He
quarrelled with Coll. Quincy, and
intrigued to [illegible] dispossess him of his Regiment, by means
of Dr. Miller and Mr.
Apthorp. He now quarrells with Coll. Miller and Dr. Miller and
Eb. Thayer. He curses all Governors. Pownal
was a servant, Doorkeeper, Pimp to Ld. Hallifax, and he
contracted with Ld. Hallifax to give him 15s. out of every
Pound of his salary. So that Pownal had 25 pr. Cent Commissions, for his Agency, under Ld.
Thersites in Homer, was,
Aw'd by no shame, by no respect controuled
In scandal busy, in Reproaches bold:
With witty Malice studious to defame
Scorn all his joy and Laughter all his Aim.
But chief he gloried with licentious style
To lash the Great and Monarchs to revile.
Thus we see that Gooches lived, as long ago as the siege of
Spleen to Mankind his envyous Heart possesst
And much he hated all, but most the best.
Long had he liv'd the scorn of every Greek
Vext when he spoke, yet still they heard him speak.
His daughters have the same fiery Temper; the same witty malice. They have
all, to speak decently, very smart Tempers, quick, sharp, and keen.
An Insinuation, of Mr. Pownals giving 3/4 of his salary for
his Commission. -- This is with licentious style Governors to
revile.Coll. Miller can serve the Devil with as much Cunning,
as any Man I know of, but for no other Purpose is he fit. -- This is in scandal
busy, in Reproaches bold.
Gardiner [illegible] has a thin
Grashopper Voice, [illegible] and an affected Squeak; a meager
Visage, and an awkward, unnatural Complaisance: He is fribble.
Q. [Query] Is this a generous Practice to perpetuate the
Shruggs of Witt and the Grimaces of Affectation?
Remonstrated at the sessions vers. Licensing Lambard,
because the select Men had refused to approbate him, because he never was
approbated by the select men, to keep a Tavern in the House he now lives in,
because there are already 3 and his would make 4 Taverns besides Retailers,
within 3/4 of a Mile, and because he obtained an
a License from that
Court, at April sessions, by artfully concealing his Removal from the Place
where he formerly kept, and so by an Imposition on the Court. These Reasons
prevailed. Majr. Miller,Coll.
Ruddock, were the only justices on Lambards
fide, while I had 8 or 9, Wendells, Coll.
Phillips, Mr. Dana,
Mr. Storer &c. &c. &c. Mr. Dana
enquired, whether those Landing Places at
or the Road
where these 4 Taverns stand was not a great stage for
Travellers. I answered no, and rightly, for the greatest stage that I knew
Plymouth, is in the North Precinct of
Braintree, where Mr. Bracket, but especially
where Mr. Bass now keeps. Where Mr. Bass now
keeps, there has been a Tavern, always since my Remembrance, and long before.
It is exactly 10 miles from Town, and therefore a very proper stage for
Gentlemen who are going from
Boston down to
Plymouth, and to the
Cape, and for People who come from the Cape, towards this Town.
And there are very few Travellers either bound to or from
Boston, but what stop here, but this stage is 2 or 3 Miles from
the Place in Question. These Things I should have said, but they did not then
Dana asked next, what Number of Carters, Boatmen,
Shipbuilders &c. were ever employed at a Time, at that Landing Place? I
answered half a dozen Carters perhaps. But my Answer should have been this. At
some times there are 3 or 4. or half a dozen Ship Carpenters, and it is
possible there may have been 2 or 3 Boats at that Wharf at a Time, which will
require 1/2 dozen Boatmen, and [illegible]
there has been perhaps
40 Carts in a day with stones, and Wood and Lumber, but these Carts are coming
and going all Day long so that it is a rare thing to see half a dozen Carts
there at a time. In short there is so much Business done there, as to
render one Tavern necessary, but there is not so much Business,
there is no such Concourse of Travellers, no such Multitudes of busy People at
that Landing as to need all this Cluster of Taverns. One Tavern and one
Retailer was tho't
by the select Men quite
sufficient for that Place. They have Appointed one of each, and pray that your
Honors would [illegible]
recognize no more.
I began Popes Homer, last Saturday Night
was a Week, and last Night, which was Monday night I finished it. Thus I found
that in seven days I could have easily read the 6 Volumes, Notes, Preface,
Essay and Essays, that on Homer, and that on
Homers Battles and that on the funeral Games of
Homer and Virgil &c. Therefore I will be
bound that in 6 months I would [illegible] conquer him in Greek,
and make myself able to translate every Line in him elegantly.
Prat. It is a very happy Thing to have People
superstitious. They should believe exactly as their Minister believes. They
should have no Creeds and Confessions of Faith
not so much as know what they believe. The People ought to be
ignorant. And our Free schools are the very bane of society. They make the
lowest of the People infinitely conceited. (These Words I heard Prat utter.
They would come [illegible]
naturally enough from the mouth of a
Tyrant or of a K [King] [illegible]
Ministry about introducing an Arbitrary Power; or from the mouth of an
ambitious or avaricious
Ecclesiastic, but they are base detestable
Principles of slavery. He would have 99/100 of the World as ignorant as the
wild Beasts of the forest, and as servile as the slaves in a Galley, or as oxen
yoked in a Team. He a friend to Liberty? He an Enemy to slavery? He has the
very Principles of a Frenchman-worse Principles than a Frenchman, for they know
their Belief and can give Reasons for it.)
Prat. It grieves me to see any sect of Religion
extinguished. I should be very sorry, to have the Quaker Society dissolved, so
I should be sorry to [have] Condy's
Anabaptist Society dissolved. I love to see a Variety. A Variety of Religions
[illegible] has the same Beauty in the Moral World, that a
Variety of flowers has in a Garden, or a Variety of Trees in a
This fine speech was Prats. Yet he is sometimes of opinion
that all these Sectaries ought to turn Churchmen, and that a Uniform
Establishment ought to take place through the whole Nation.
I have heard him say, that We had better all of us
come into the Church, than pretend to overturn it &c. Thus it is, that fine
Speechmakers are sometimes for Uniformity, sometimes for Variety, and
Toleration. They dont speak for the Truth or Weight but for the Smartness,
and Novelty, singularity of their speech. However I heard him
make two Observations, that pleased me much more. One was that
People in Years never suppose that young People have
any judgment. Another Was, (when a Deposition was produced taken by
Parson Wells, with a very incorrect Caption, a Caption without
any certificate of
mention of the Cause in which it was to be used,
or certifying that the Adverse Party was present or notifyed) he observed that
Parson could not take a Caption, to save his
Life, and that he knew too much to learn any Thing.
Ephraim Jones, being a Widower and having two Children by a
former Wife marries another, and soon after dies, leaving a Widow, and the two
Children, mentioned before. The Widow takes one third of the personal Estate,
and is endowed of for ever, and is endowed of one third of the real
Estate, which she lets out to one Tower, as we say to the Halves. Tower breaks
up, and plants 1/2 a dozen Acres of the Land with Corn, which he ploughs and
hoes &c. till the 20th of September, when The Widow his Lessor dies,
giving having given by her Will, all her Estate to her Relations,
Strangers to her late Husband and his Heirs. Now The Question is whether, the
one half of the Produce and profits of this Land which the Widow was by
Contract to have had, shall go to the Legatees Executor of her Will,
and so to her Legatees, or else to the Right Heirs, of the Reversion of the
Land, expectant on the Widows Death? And Q. also, whether, the said Right Heirs
have the Property of the feed and the Apples, and such other fruits as the
Earth produces spontaneously, or at least without any immediate
Expence and Industry, of the late Tenant in Dower:
and Q. also whether the Possession of the Land vests in the Right
Eo Instante that the Widow dies, so that he
has an immediate Right of Entry, or Whether the Lessee has not Possession, so
that he must be ejected?
If I am the Proprietor of an House, and I lease it to any Man, and bind my
self to keep it in Repair, it is reasonable and it is Law, that I should have a
Rent. So if I am the owner of a ship, and I let [it] out on
a Voyage to the
Wist Indies or to
Europe it is reasonable, and it is the maritime and
the maritime Law has made provision that I should have [illegible] freight. For the sum of Money, that an House or a Ship
would Cost, would if placed out, on Interest, bring in Annually 6
pr. Cent for my Use. Now I cant loose the Interest
of my money, and besides [illegible] my House is constantly
wearing and decaying and my ship and her Cordage and her Canvas are continually
wearing, so that the Rent and the freight ought to be sufficient to enable
[me] to make these Repairs: But besides this, all Merchants,
all Persons who have Property, in shipping, in Vessells that sail upon the sea, are in a peculiar manner
liable to Accidents and Misfortunes. They are in Danger, from storms, from
Rocks and sands, and they are in Danger from Pyrates
and frenchmen, so that the Law, in establishing the freight of
has made allowance, for these 3
things-for the Interest of Money on the Capital, for the Constant
in Repairing the Hull and the Cordage and
the sails, and for the peculiar Danger from seas, Winds, Rocks and Enemies,
which constantly environ Vessells
on the sea. And
accordingly the freight or Rent of shipping is very high in all foreign
Voyages. Well, now the same Reasons, which have established a freight upon
in foreign Voyages, has by Law established
a certain share of the Profits [of]
this schooner now in
Controversy. But the Case, which is more precisely parrallel to this of
Mr. Lovell, and which is decisive in this Case, is that of
Whaling Voyages. In Whaling Voyages, of [off]
the shoals of
Nantuckett, and in those to
Hudsons Bay, there is frequently, a Master of a
, and a Master of the Voyage i.e. a
ship is taken into the service, and Whale Boats put on Board
her. The Vessell
sails into the Whaling Latitudes,
and then puts her Boats to sea after the Whales. [illegible]
Whales are taken on Board the Vessell
, and brought
Cape Cod we'l say, in a sort of Blubber. Wel there, at
Cape Cod they frequently hire other People, People who had no
Concern with the Voyage, to boil that Blubber into oil. When that is done the
is sent up to
Boston and sold by Persons who are allowed Commissions for their
Pains and after the Oyl
is sold, the Established Rule
is, to pay all the Costs of Boiling the Blubber and the Commissions arising on
the sales and then the Vessell
which went out upon
the Voyage draws one Quarter of the whole Profits of the Voyage. But the
particular Custom which has prevailed among these small Lighters, and schooners
that run out a fishing, where there is not so much Danger of Shipwreck, is that
the schooner or Lighter shall draw one fifth Part of the Profits of the Voyage.
If a schooner runs out in the Harbour
a fishing the
schooner draws every fifth fish, and whenever they have taken up any drifted
Timber or Shingles or Boards, the same proportion has been observed. I have
known several Instances in which our
Braintree Boats have taken up valuable things adrift, in Cases
where there has been no danger to the Lighter, only her time has been consumed,
and the Boat always drew one fifth of such drifted Timber as well as of the
fish. The only thing, that I can think of, and which the first
to its utmost extent [illegible]
of, as I believe to distinguish this Case from any of the 3 that I have
mentioned, either from that of a ship on a foreign Voyage or of any
on a Whaling Voyage or of common Lighters and
on fishing Voyages, is this. That the schooner was not
stout enough to weigh the Anchor and they were obliged to hire another
to go down a Weight [ i.e. and
it. -- I beg your Hs [Honor's]
Attention to this Point, because I suppose the whole stress of the Cause will
be laid upon it, by the other side. -- Now this I insist upon it can make no
Alteration in the Case at all. For Mr. Lovells
went out, upon the supposition that she
should draw 1/5 of the whole Profits of the Voyage, 1/5 of all the fish, that
should be caught, and 1/5 of every Thing that he found adrift upon the surface
or drawn upon from the Bottom of the Sea. And without this Prospect of 1/5 of
the Profits, he would not have let her gone. He could have gone in her himself
and made Profits by her or he could have let her out to others who would have
minded their fishing, and not
and so have gained Profits for him as
well as for themselves. Suppose it had been said to Mr.
Lovell, let us have your schooner to go out a fishing, and if we catch
any, you shall have a fifth, but if we catch none, you shall have
and I believe we shant for we intend to spend most of our time in
Poking after an Anchor or a Chest of Gold, that we suppose to be lost out in
; but if we should find this Anchor or
Chest your schooner is not able to weight it, and so you shall have no Part of
Would Captn. Lovell have
consented to that. No he would have laughed at them for fools to think he
would, or have frowned upon them in Resentment of an Affront, for such a
Proposal in Earnest would have been an affront. Well now what he could not have
been desired too reasonably to have consented to before the Voyage
Your Honor cant desire him to do, and the Law will not oblige him to do after
the Voyage. The Time of [the] Schooner was spent in securing
of the anchor, time in which she might have earned him money either in fighting
or fishing, his Vessell, his Ropes, and Sails were
worn in the service, which will cost him money to repair; and what is worse
than both the former, his Property was endangered, his Anchor was in great
Risque of being irrecoverably lost in the first Place
by its Entanglement with the large Anchor at the Bottom, and afterwards by the
Use they made of it in raking at the Bottom to bring up the Cable of the great
Anchor. And to say that the great Anchor was not weighed by his schooner is to
say nothing. It was secured by his schooner, and totally by his
I say too that the Whales are not taken, cannot be taken by the ship. They
are taken by the Whale Boats: I say too that the ship cant boil the Blubber up
into oyl. But what then? The ship's time
spent, she is wearing out, and she is endangered, and therefore she shall draw
a Quarter of the Neat Profits of the Voyage after Wages for Boiling and
Commissions for selling, and
are paid. This I rely upon, this
schooners being unable to weigh the Anchor, is exactly like the ship in
Hudsons bays being unable to chase and take the Whales. And
their hiring another Vessell
to go down, and weigh
it, is like Whale mens hiring other Men to boil their blubber, and to sell
, and that this schooner has as good a Right to
1/5 of the 2/3 after the one third is taken out, which by Agreement was given
to the Vessell
that weighed it, as a Whaling
has to one fourth of the whole Profits of the
Voyage after enough has been taken out to pay the Boilers and factors.
And nothing can be more reasonable. Suppose I should Agree with a Man, to
let him have my Horse to
Rhode Island to purchase a Quantity of Goods, and he engages I
shall have one fifth or one Qr. of the Profits of his journey. Well when he
Seachonk Plain, He finds a Number of People there a horse
racing. He challenges every Horse upon the Plain
to run. At last
they run for 100 Guineas which my Horse wins. Would it not be reasonable that I
should have a Proportion of that Prize? Shall the Man that I let him to, run
the Hazard of breaking the Neck, or Limbs or Wind of my Horse. Shall he strain,
and violently drive him so as uterly to mar him very much; and I have no
Recompence at all? By no means. Your Honor cant but see, we have a Right, and I
dont doubt youl give it us.
Perhaps some Difficulty may arise in your Honours
mind about the Propriety of the manner of laying this Action. It is an Ind
[Indebitatus] Ass [Assumpsit] for so much
Money had and received by the Defendant, to the Use of the Plaintiffs, and it
is alledged that the Defendant promised to render a
reasonable Account. But this is the constant form of Suing for things of this
sort. If I reck upon a Reckoning and settlement with a man pay him
by a Mistake 20 more than is due to him, I may recover it back, by this
Action, i.e. he has had and received so much money, which did not belong to him
but to me, so if Money is due to me from another man, and some 3d Person goes
to him, and under Pretence of Authority from me, receives that Money, I may
have this Action against him.
And in general if any man has
received Money, which did not belong to him, but does belong to me, I may
recover it of him by this Action. Now I think it is plain that Mr.
Ward has received the sum mentioned in this Writ, that it did not
belong to him but it did of right belong to the owners of the schooner the
present Plaintiffs, and therefore it follows that he is accountable to us for
it, and I dont doubt your honour
will think so
Waited on Mr. Gridley for his Opinion of my Declaration
Lambard v. Tirrell, and for his Advice,
whether to enter the Action or not. He says the Declaration is bad and the
Writ, if Advantage is taken, will abate.
For It is a Declaration on a Parol Lease, not on a Deed, and therefore the
Lessee's Occupancy ought to be sett
forth very exactly,
for it is his Occupancy, not any Contract, that supports the Action. -- You
have declared, that Defendant by Virtue of the Demise, into the Tenements,
entered, and the same Premises had, held and occupied. But you have not
declared when he entered, nor how long he occupied. He might enter, and remove
again from the Premises in 3 months, for ought appears on this Declaration. You
have taken this Declaration from a Precedent of Lillies.
But Lilly and
Mallorry are not Authorities, Coke and
Rastall are, and in them, the Distinction is taken between a
Declaration on a Lease Parol, and one on a Deed, an Indenture. In a Declaration
on an Indenture, it is not necessary to set forth when the Defendant entered
nor how long he held: because by the Indenture he had a Right to enter and
occupy, if he would, but whether he occupied, or not, he has indented to pay
the Rent, when the time is out: But in a Declaration, on a Parol Lease, it is
necessary to set forth, both when he entered and how long he stayed, because
the Occupancy is the Cause and foundation of the Action. Besides you have not
that the Rent was to be yeilded and
payd upon Demand, and this would abate the Writ. -- Mr.
Gridley sent me to Otis's office to examine in Viners
Abrigment, under the Title Rent, and in the Entries, i.e.
Lilly, Mallorry, Coke, and
Rastal, under the Title Debt, for some Authority to decide the
Point whether the Exception was fatal, or not. I could find nothing in
Viner, Lilly, or Mallorry,
but Mr. Gridley shewed
Coke and Rastall the Distinction taken
between a Declaration on a Parol and on a Written Lease.
G. says, that an Indenture for the Year 1758,
att a certain Rent; and the Lessees Continuance in the
House, and the Lessors Permission to continue in the House, thro the Year 1759 without any new Indenture, or any
Contract or Conversation about [illegible] any Rent, is
presumptive Evidence, that Each Party intended, the Rent should continue the
same. The Lessees Continuance, in the House, without taking the Pains of going
to the Lessor, to treat about new Terms, is sufficient Evidence of his
Consent Satisfaction with the old Terms and of his Consent to pay
the old Rent. And the Lessors Permission of his Tenant to continue in the
House, without taking the Pains to make a new Contract, is sufficient Evidence
of his satisfaction with the Terms, and old Terms, and of his
Consent that they should continue.
In Support of Complaint in Case Neal's
Action is not entered.
I do not know, nor is it possible for your Honours
to determine, what Reason induced the Plantiff
renounce this suit. Whether it was, the insolvency or whether
because the Estate is insolvent, or because he had no Cause of Action, or
because his Action was mislayed, or because his Writ was bad, which by the Way
is very probable, considering who drew it, that determined the
, not to enter this Action, I cannot say,
and your Honours
cannot determine. It appears to your
, that the Defendant has been vexed and
distressed by this summons, that she has been obliged to take a journey to this
Town, and to attend upon this Court, where it appears there is nothing for her
to answer to. All this appears. What Motive induced the Plantiff
to drop his Action does not appear, and
therefore We have a Right to Costs. As Things are Circumstanced, I will own,
that had this Action been commenced by any Gentleman, at this Bar, I would have
this Complaint, but it was drawn by a petty
fogging Deputy Sheriff against whom I know it is my Duty, and I think it is my
Interest to take all legall Advantages. And he himself cannot
think it hard, as he has taken both illegal and iniquitous Advantages against
me. Therefore I pray your Honours
Judgment for Costs.
-- Q. If this Action should be entered, what must be done with it? Continued,
or dismissed?-A Motion must be made for a Continuance or a Dismission.
Neals Action is entered so that I have two Actions to
defend by Pleas in Bar and three of the Actions I entered, are to be defended,
Clark is to Plead in Abatement and Tirrell
and Thayer are, I suppose, to plead to issue.
Clark gave a Note of Hand to Captn.
Brackett in his Life time, and after his
Death, on a Reckoning with the Administratrix, [illegible]
was found due to the Estate upon Book,
for which he gave a new Note to the Widow as Administratrix. Now
I have laid both these Notes in one Declaration in Conformity to the Province
Law, which requires
forbids two Bills of Cost, upon Instruments,
Bonds, Bills, Notes &c. executed by the same Party, and made payable to one
and the same Person, and put in suit at the same Time. Dana
pleads in Abatement, that these Notes, tho
by the same Party, were not made payable to one and the same Person. The first
was made payable to Bracket, and the second was made payable to his Wife-and
cites 3rd. Salkeld 202.
"A. owed to B. .20 as
Executor, and 10 more in
his own Right. One Action will not lie against him for the whole Money, because
there must be several judgments." And Dana says, that soon
after he began Practice, he drew a Writ upon a Note taken by an Executor, as
Executor, for a Debt of his Testator, and drew the Writ as if the Note had been
taken in the Executors own private Right. Auchmuty
for the Defendant, pleaded in Abatement
that the Note was given to Plaintiff as Executor, not in his own Right, and the
Court abated the Writ, but he appealed,
and at the Superiour
Court, got Mr.
Reed to speak for him, who contended that the Words as Executor, were
idle, and the Court unanimously set up his Writ.
OCTR. 13TH. MONDAY.
Attended Mr. Niles's Court this morning for John
Holbrook junior in an Action of his against Benja. Thayer
Junior for Holbrook. Holbrook agreed
with Thayer, that to submit all Demands
together with both Actions to 3 men.
Mr. Niles told me, that he consulted Mr.
Thatcher about entering his Action against Mrs.
Brackett. Thatcher told him, it was as likely that
she would recover Costs against him, as that he would recover judgment against
her, And therefore advised him not to enter. Niles's Action is
exactly like Neals. How came Thatcher to
advise to one Thing and Dana to another? The Answer is
Dana dont care, how the Action goes. He is sure
of his Fee and attendance, whether he gets or looses his Cause.
Thus I find the Bar is divided. Gridley is at a loss. He
told me it was a Point of Law that would require a leisurely Examination.
Thatcher is uncertain, but thinks it as likely
[illegible] to go in favour of the
Administratrix as against her, and how much more likely he did not say.
Kent says, the Administratrix will recover Costs, in
Spight of the Devil, and he has recovered many a Time
in such a Case. -- It is a great object of Ambition to settle this Point of
Law, whether a suit brought against an Administrator [illegible] ,
who after the Commencement, Entry and several Continuances, represents the
Estate Insolvent, shall be barred, and the Administrator allowed Costs?
I cannot be compelled to accept Mr. Dana's agreement not to
take Execution. And I insist upon it, if he has judgment, he may take
Execution, and if he takes Execution, what shall hinder the officer, from
levying the whole Debt, and then what becomes of the Province Law, relating to
insolvent Estates? The Words of the Law are
"when the Estate of any Person deceased shall be insolvent, or insufficient
to pay all just Debts, which the deceased owed, the same shall be set forth
and distributed, among all the Creditors in Proportion to the sums
to them owing, so far as the said Estate will extend."
No Debts whatever are excepted from the Average, but Debts due to the Crown
and the Charges of the last sickness and of the funeral. The Charges of the
funeral, of the last sickness and Crown Debts are to be first paid, and then an
Average is to be settled by Commissioners of Insolvency, before the
Administrators can pay another Debt. There is no Exception of Debts legally
demanded before the Representation of Insolvency. If Debts legally demanded,
were to be excepted from the Average, every Debt would be excepted from the
average. As soon as the Intestates Breath is gone, every Creditor
will bring his Action, will make his legal Demand. If this had been Law and
known to be law, 500 suits would have been brought vs. this Administratrix, within a Day after she took
Administration. [illegible] If this Rule of Law should be
established, it would prove the Destruction of every Intestate Estate in the
Province that is considerably in debt. Every Creditor would bring his suit,
immediately, and thus the Costs of Suits would amount to a greater sum,
oftentimes than the Debts.
It would indeed, furnish Employment to the Lawyers, and perhaps, a secret
Regard to Interest [illegible] has blinded some to the
Inconveniences, that must attend it. I think the Point is clear, that a legal
Demand, before the Representation of Insolvency cannot intitle any Creditor to recover his whole Demand.
Now the Q. [Question] is whether, if this suit
should be [Judgment?] this Action should be defaulted,
and Judgment made up, and Execution should issue, it would not issue for the
whole sum; and if it issues for the whole sum, the sheriff must levy the whole
sum. So that, if judgment should be rendered now, the whole Demand would
[illegible] be recovered. For this Court cannot consider an
Average, that is not yet settled.
Well, should this Action be continued, along from Court to Court, and
judgment be entered after the.
In answer to Sewals objection, I say, that an Administrator
de Bonis non, could not maintain an Action vs. this
Defendant, on this Note. [illegible] But the Administration of
this Administratrix must bring the Action, and stand accountable to the
Administrator de Bonis non, for the Money, and if this Defendant should break,
or die insolvent this would be a good Account.
Her delay to represent this Estate insolvent is of no Consequence at all.
She was in Hopes, the Estate would have been sufficient, and she wanted to make
a Calculation between the Estate and its Debts, before she made that
Representation. She did not want to give the Creditors the Trouble of making
out their Claims before Commissioners, if she could pay them without it. She
acted in short as every prudent Administrator would do, to save herself and
family the Disgrace and Curses of Insolvency, and to save her Creditors, the
Trouble of making out their Claims, but People at last grew impatient and some
Gentlemen had propagated an Opinion that those who made a legal Demand before
the Representation, would recover their whole Debts, and
[illegible] summons's flowed in upon her from all Quarters.
Several Actions were brought against her, at this
Plymouth Court, and several more to this Court, and she saw that
Ruin would insue to herself and family if she did not.
Now had this Representation been made when she took Administration, 18
months at least would have been allowed to examine Claims. But 6 months were
allowed [over?] so that the Creditors will receive their share
quite as soon as they would, if it had been represented sooner.
What are the Questions, on which [illegible] Mrs.
Bracketts Bars to Danas Actions turn? - The first
Question is, whether any Action at all can be maintained vs. the Administrator of an Insolvent Estate excepting for
Debt due to the Crown, for sickness and funeral Charges? And the second is,
whether an Action brought before the Representation of Estate of
Insolvency, can be maintained, i.e. Whether an Administrator, by delaying to
represent the Insolvency, makes herself liable to any suit, that is brought
against her. For I take it to be very clear, that when an Estate is represented
insolvent, as soon as an Administrator is appointed no Action can be
maintained. All Actions must be barred, bar'd I mean for a Time, till the
Commissioners have reported and the Average is settled. So that the only
Question is, whether Administrators are liable to suits, till the
Representation is made? And with submission I think [it] is
certain that they are not. In many Cases it is well known, before a Mans Breath
is gone, that he owes more than he is worth, and in such Cases the
Administrator would do well to represent the Insolvency, at his first
Appointment, but there are many Cases, when it is impossible for the
Administrator to know whether his Intestate was is solvent or
insolvent, the Quantity of the his Lands and goods may be unknown,
and the Number and
Quantity of his Debts is always unknown so that
no Computation can possibly be made, and in these Cases, it is certainly
reasonable and it is Law, that the Administrator should have some time to
examine and calculate before he makes a Representation, for if the Estate is
sufficient, it would be folly to draw upon his Intestate and himself and family
the Disgrace of Insolvency, and the Curses of the Creditors needlessly, and it
would be a Pitty
to put the Estate to the
of the Commissioners, and the Creditors to
the Trouble of making out their Claims before them. In all Cases therefore
where it is doubtful whether the Estate is sufficient or insufficient, the
Administrator ought to have time to inform himself, and in the mean time, all
the Creditors must be debared from suits, or if they will bring them they must
do it at their Peril, i.e. if the Estate afterwards proves insolvent, their
Actions must be bared and they must pay Costs. Whether a Law
Limitation of the time, is expedient or not, it is not our Business to inquire,
if the Laws are imperfect in this respect it is the Business of the Legislature
to perfect it, but Mr. Dana cannot avail him self of a Law
that has no being.
Now the Case before your Honour, is of the last
sort. At the Time of Capt.
Bracketts Death, it was very doubtful, with every
he left enough to pay his Debts or not. His Widow, on
her appointment, to the Administration, told the judge, it was uncertain, and
asked time to inform herself; and she has been as diligent as she could,
considering the distressed situation of her family, in making
after the Debts. She found Effects enough in
her Hands to pay all the Debts that she was apprized of, and so was unwilling
to make the Representation, unwilling to put the Estate to needless Charge, and
Disgrace, unwilling to put her Creditors to the Trouble of making out their
Claims with the Commissioners, till she was satisfyd, there was not enough. But
new Creditors are daily making their Appearance, who have large demands, and
some who were never so civil as to let her know she owed them, have sent her
. She was sued in one Action to this Court for
some hundreds, on a Note that she never suspected to be in Being. In short she
finds most of the real Estate under Mortgage, so that most, if not all the
Personal Estate must go to discharge these Mortgages, and then the real Estate
must be sold at Vendue, the Event of which is quite uncertain, and therefore
the Estate is not sufficient to pay. And as the Estate is insolvent, these
suits must be barred. The Law is express, that
shall be allowed. And I presume the Reason,
why the Law has not confined Administrators to narrow limits, is that People
be restrained from rushing on [illegible]
such Estates, and [illegible]
by stifling all the sentiments of
Humanity, bringing Destruction on the fatherless and Widows.
The Time for Enquiry, whether the Estate is
insolvent, or not, must be dilated on. It is a momentous Point. Must
shew, that the time she has taken, is no more than
The Administrator is not liable unless it can be shewn that she has intermeddled with the Goods and made
payment of any Debt. She has never paid any Debt.
In the Beginning of May 58 Mr. Lambard, the
Plantiff, gave a Lease of a House and Barn and
Germantown mentioned in the Writ to the Defendant Mr.
Tirrell, and this Lease you will have with you. You will find by it,
that Tirrill was to give [illegible] &c. the
same Rent, that is sued for, in the present Action. In May 1759, i.e. at the
End of the Year, Mr. Lambard went into the service, without
making any new Contract, and Mr. Tirrell and his family
continued in the House from that time to this. The Plantiff has frequently reque requested his
Rent, but has been always refused, and at last he was obliged to bring
his Action. As I said before there was no express Contract between
the Parties, but
for the Year 1759, but as there was an express
Contract for 58, and as the Plantiff
permitted him to continue, and as the Defendant continued
Defendant continued with [illegible]
his family, and as the
permitted him to continue in the House,
the natural and legal Presumption is, that each Party was satisfyd with the old
Terms, and intended the old Terms should continue. For had the Landlord been
dissatisfyd with the Terms, it would have been his Business to have said, you
must come upon a new Agreement or else leave the House, and had the Tenant been
he should have said I must have the
Place for less Rent or else I must leave. But as each Party was silent, each
Party implicitly consented that the old Conditions should remain; especially as
the Terms were very reasonable. 70 old Tenor, a Year is a moderate Rent
for that Place. There is a very convenient handsome new House, there is a good
Barn, and several good Lotts of Land. Besides the House has had Licence for a .
Tavern for these 7 Years, and Mr. Tirrell has all along kept a
Tavern there and does to this day. Now the single Pri
of keeping a Tavern
upon that Place is worth as much annually as this Rent. For
Germantown, you all know is a Place of considerable Resort.
Hardly any Gentlemen of Curiosity from any of the four Governments come to this
Town, without taking a Ride to
Germantown to see the Manufactures there, that of Glass and that
of Stockings. Great Numbers of People go out [illegible]
this Town upon Parties of Pleasure to
Germantown, and there is a considerable Number of Inhabitants
upon the Place and all these must be entertained and supplied, so that
considering the House, Barn, Land, and these Priviledges
the Rent is quite moderate, and there can
be no Reason why each Party should not be confined, to those Terms, which the
Defendants silence and Continuance in the House, raise a violent Presumption
that he consented to, and I dont doubt-you'l
the sum sued for accordingly.
Dana says the Administrator ought not to regard the
Disgrace or Trouble or Expence of a Commission of
Insolvency, but if it is in the least degree suspicious, that the Estate will
not prove sufficient, he must represent it so, at his first Appointment i.e.
every Day, that he takes to enquire into the Value
of the Estate, and the Number of Debts, is at the Risque of the Creditors, and
if any one Creditor
brings his Action he must maintain it, at the Expence
of the others. For says he, as no Time is limitted
an Administrator may wait a whole Year, before he represents the Estate
insolvent, and live upon the Estate all that time, to the Injury of the
Creditors. Nay he may neglect it two Years, or 10 Years, till he has wasted,
spent, or alienated the whole Estate.
I say, it is reasonable that a Time should be allowed the Administrator to
enquire, to make a Computation of the Effects, and
to enquire into the No.
and Quantity of the Debts, that he may be able to judge, whether the Estate is
insolvent or not. For a Commission of Insolvency is an Evil, always to be
avoided, if Possible. It is always considered as a Disgrace to a family. It is
always a great Expence to the Estate. It always
provokes the Curses of the Creditors, and puts them to the Trouble in attending
the Commissioners to prove their Debts. And it is not only reasonable, that a
Time of Enquiry should be allowed, but it is Law.
And the Executor or Administrator appointed to any Insolvent Estate, before
Payment to any be made, except as aforesaid, shall represent the Condition and
Circumstances thereof unto the judge of Probate. Here is plainly a time allowed
him, and there is no
Limitation of that time , but
is only said the Representation must be made before any Payment is made. And
here is an Exception, which clearly gives the Administrator, some time; the
Exception is of Debts due to the Crown, of sickness and funeral Charges. These
the Administrator, after his Appointment may pay, before he is obliged to
represent it insolvent, and he could not pay these any more than any other
Debts unless some time was allowed him.
Mr. Danas Objections are in my humble opinion of little
Weight. He says, that if the Administrator is not obliged to represent
immediately, he may delay it, till she and her family have consumed, or by
fraud conveyed away the Estate. But your Honours know
that Apprisers are appointed, always directly after the Administrator is
appointed, who are to make an Inventory and then the Administrator charges
herself with all the Articles in the Inventory, and gives Bonds to be
accountable for them at the apprized Value, at the Years End. So that if the
Estate is wasted the Administrators Bond may be put in suit. Besides, admitting
here is a Defect in the Law, in this Respect, Admitting a new Law is expedient,
to limit the Time of representation, such a Law has no Existence,
nor can Mr. Dana avail himself of a Law that has no Being,
however expedient it may be, especially when the Representation is made within
a reasonable Time, as this was. The Representation was made in 9 months,
which was a short space of Time considering the Circumstances of
this affair. Brackett was struck out of Life suddenly, left a
very distressed family, and a very perplexed and embarrassed Estate, so that it
was impossible for the Widow to recover from her surprize
, and make any Inquiry so as to satisfy herself
whether the Estate was sufficient or not, sooner than she did. And I presume
the Reason why the Law has not confined the Administrator to such Estates to
narrow limits, is, because Persons, that die so much in Debt, commonly leave
Widows and Children behind them, who have been used to decent and reputable
living, and will therefore, if some reasonable time is not allowed them to keep
together, recover their surprize
and look about
them, will be driven to absolute Despair. And to this Purpose and that the
Estate may not be burdened with Costs, the Law has provided, that no
shall be allowed, while any such Estate is
depending as aforesaid, which Words extend as well to the Time, the Estate is
depending under the Examination and Enquiry
Administrator as to that between the Representation of Insolvency and the
settling of the Average. And it is quite reasonable that this Action in
Particular, should be barred, because it was entered, out of the meer
and Obstinacy of the Plantiff
it was commenced
before the Representation it was entered afterwards, whereas if he had been a
reasonable Man, instead of entering
and driving this Action, as he
has done, he should have dropd it without Entry.
NOV. 5TH. 1760.
The World will not take no offence I
presume upon the common sense of the World that no offence will be taken at the Freedom of the following
Sentiments while the utmost Deference for Authority and Decency of Language is
preserved, as Persons of obscure Birth, and Station, and narrow Fortunes have
no other Way, but thro the Press to communicate
their Tho'ts abroad, either to the high or the
The Vacancy, in the highest seat of justice in the Province occasioned by
the Death of J. [Judge] Sewal,
naturally stirrs [illegible] the Minds of all, who
know the Importance of a wise, steady and loyal Administration of justice, to
enquire for a fit Person to fill that Place.
[illegible] Such Persons know, that the Rules of the common Law
are extreamly numerous, that Acts of Parliament
are numerous, some taken from, or at least in spirit, from the Civil Law,
others from the Cannon and feudal Law. Such Persons know that the
[illegible] Histories of Cases and Resolutions of Judges
preserved from a very great
Antiquity, and they know also, that every possible Case being thus preserved in
Writing, and settled in a Precedent, leaves nothing, or but little to the
arbitrary Will or uninformed Reason of Prince or judge.
And it will be easy, for any Man to conclude what opportunities, Industry,
and Genius employd from early Youth, will be necessary to gain a Knowledge,
from all these sources, sufficient to decide the Lives, Liberties and fortunes
of Mankind, with safety to the Peoples Liberties, and as well as the
Kings Prerogative, that happy Union, in which the Excellence of british
Government consists, and which has often been preserved by the deep Discernment
and noble spirit of english judges.
It will be easy for any Man to conclude that a Man whose Youth and Spirits
and Strength, have been spent, in Husbandry Merchandize, Politicks,
nay in science or Literature will never master so immense and involved a
science: for it may be taken for a never failing Maxim, that Youth is the only
Time for laying the Foundation of a great Improvement in any science or
Profession and that an Application in advanced Years, after the Mind is
crowded, the Attention divided, or dissipated, and the Memory in part lost
will make but a tolerable Artist at best.
for entries dated November 14, 1760]
NOVR. 15TH. SAT.
Spent last Evening at Coll.
Quincys, with Coll.
Lincoln. Several Instances were mentioned, when the Independency and
Superiority of the Law in general over particular Departments of officers,
civil and military, has been asserted and maintained, by the judges, at Home.
Ld. Cokes Resolution in the Case of in oposition to the
opinion, and even to the orders, and passionate Threatnings of the King.
Ld. Holts refusal to give the House of Lords his Reasons, for
his judgment in the Case of in an extra judicial Manner,
[illegible] i.e. without being legally and constitutionally
called before them by a Rit [Writ ] of Error, Certiorari, or
false judgment or something. And C.
[Chief] J. [Justice] Wills's
resolute spirited assertion of the Rits [Rights] of common
Law in opposition to the Court Martial against the Intercession of powerful
Friends, and even of the Ministry if not the K [King ]
Parson Smith says the Art of Printing like most other Arts,
and Instruments, was discovered by Accident. Somebody, at an idle Hour, had
whitled his Name, cut his Name out in the Bark of a Tree. And when his Name was
fairly cut out, he cut off
it off [and]
into his Hankerchief. The Bark was fresh, and full of Sap, and the Sap colored
his Hankerchief, i.e. printed his Name upon it.
And from observing
that he tooke
WEDNESDAY [19 NOVEMBER].
Dined at Badcocks, with McKenzie. He
pretends to Mechanicks, and Manufactures. He owns
the snuff Mill, and he is about setting up some Machine to hull our Barley. One
Welsh dined with us, who he said was the best, most ingenious Tradesman, that
ever was in this Country. McKenzie and Welsh
were very full of the Machinery, in
Europe, the Fire Engines, the Water Works, the silk Machines,
the Wind Mills, in
Holland &c. McKenzie says there are 27,000
Wheels, and 90,000 Movements in the silk Machine. You may see 10,000 Wind Mills
going at once in
Holland. Thus he tells Wondrous Things, like other Travellers.
-- I suspect he would be unable to describe the fire Engine or the Water Works.
Had I been Master of my self I should have examined
him, artfully, but I could not recollect any one Particular of the fire Engine,
but the Receiver, and that he says is no Part of the Engine. But he talks about
a Center Cylinder.
This conceited Scotchman has been a Rambler I believe. He set up
New London. He married a Cunningham, sister to
Otis's Wife. -- These restless Projectors, in
Mechanicks, Husbandry, Merchandize, Manufactures, seldom succeed here. No
Manufactury has succeeded here, as yet. And I believe Franklins Reasoning is good, and the Causes he mentions will
hinder the growth of Manufactures here in
America, for a great While yet to come.
NOVR. 21 ST. FRIDAY.
This day has been spent to little Purpose. I must confine my Body, or I
never shall confine my Tho'ts. Running to Drs.,
cutting Wood, blowing fires, cutting Tobacco, waste my Time, scatter my
Thoughts, and divert my Ambition. A Train of Thought, is hard to procure.
Trifles light as Air, break the Chain, interrupt the series.
Pater was in a very sociable Mood this Evening. He told 3
or 4 merry stories of old Horn. Old Horn, a little crooked old Lawyer in my
fathers Youth, who made a Business of Jest and Banter, attacked an old Squaw
one Day upon the Neck. The old Squaw made answer, "You poor lit
smitten Boy, you with your Knife in your Tail and your Loaf on your Back, did
your Mother born you so?"
A Man, whom he assaulted at another Time, with his jests, asked him "Did you
come straight from
Boston?" And upon being answered yes, replied you have been
miserably warped by the Way then.
A Girl A Market Girl whom he overtook upon the Neck, and asked to
let him jigg her? answered by asking what is that? What good will that do? He
replied it will make you fat! Pray be so good then says the Girl as to Gigg my
Mare. She's miserably lean
Rode to the Iron Works Landing to see a Vessell
launched. And after Launching went to smoke a Pipe, at Ben.
Thayers, where the Rabble filled the House. Every Room, kitchen,
Chamber was crowded with People. Negroes with a fiddle. Young fellows and Girls
dancing in the Chamber as if they would kick the floor thro. Zab Hayward, not finding admittance
to the Chamber, gathered a Circle round him in the lower Room. There He began
to shew his Tricks and Postures, and Activity. He has
had the Reputation, for at least fifteen Years, of the best Dancer in the World
in these Towns. Several attempted, but none could equal him, in nimbleness of
heels. But he has no Conception of the Grace, the Air nor the Regularity of
dancing. His Air is absurd and wild, desultory, and irregular, as his
Countenance is low and ignoble. In short the Air of his Countenance, the
Motions of his Body, Hands, and Head, are extreamly silly, and affected and mean.
[illegible] When he first began, his Behaviour and Speeches were softly silly, but as his
Blood grew warm by motion and Liquor, he grew droll. He caught a Girl and
danced a Gigg with her, and then led her to one side of the Ring and said,
"Stand there, I call for you by and by." This was spoke comically enough, and
raised a loud laugh. He caught another Girl, with light Hair, and a Patch on
her Chin, and held her by the Hand while he sung a song, describing her as he
said. This tickled the Girls Vanity, for the song which he applied to her
described a very fine Girl indeed.
One of his witty droll sayings he thought, was this. I am a clever fellow,
or else the Devil is in me. That is a Clever Girl or else the Devil is in her.
Wm. Swan is such another Funmaking animal of diverting
Hayward took one Girl by the Hand, and made a Speech to her.
"I must confess I am an old Man, and as father Smith says
hardly capable of doing my Duty." This raised a broad Laugh too.
Thus, in dancing, singing songs, drinking flip, running after one Girl, and
married Woman and another, and making these affected, humorous Speeches, he
spent the whole Afternoon. -- And Zab and I were foolish
enough to spend the whole afternoon in gazing and listening.
Gurney danced, but was modest and said nothing. E.
Turner danced not, but bawled aloud. -- God dam it, and dam it, and
the Devil, &c. -- And swore he'd go to Captn. Thayers, and be merry and get as drunk as
the Devil. He insisted upon it, drunk he would get. And indeed, not 2 pence
better than drunk he was.
Fiddling and dancing, in a Chamber full of young fellows and Girls, a wild
Rable of both sexes, and all Ages, in the lower Room, singing dancing,
fiddling, drinking flip and Toddy, and drams. -- This is the Riot and Revelling
of Taverns And of Thayers frolicks.
[No transcription available -- see page image]
[This page contains an algebraic
Inside Back Cover
Paper Book No. 5 copied
[The preceding text was added in the handwriting of Charles Francis Adams]