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Docno: ADMS-05-01-02-0005-0005

Longman v. Mein; Wright & Gill v. Mein

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1770–1771

Docno: ADMS-05-01-02-0005-0005-0001

Editorial Note

John Mein's stormy career was cut short by two actions brought against him by John Hancock under a power of attorney from Mein's London creditors. That Mein infuriated the “well-disposed” and the Sons of Liberty is certain; that they rejoiced in his difficulties, including these protracted lawsuits, is equally clear.1 It is more doubtful whether Mein was correct in attributing to Hancock the responsibility for initiating the litigation. The evidence tends somewhat the other way.
To begin with, there is no question that by late 1768, Mein had run up sizable debts to two major London suppliers, Thomas Longman, the { 200 } bookseller of Paternoster Row, and a firm of stationers, Thomas Wright & William Gill.2 Mein did swear that his credit would have remained good had not Hancock “with an intent as this deponent believes to distress him the more wrote home letters to ... Longman ... importing that the aforesaid Hancock would willingly accept of a power of Attorney from ... Longman to whom this deponent was indebted as ... Longman alledges in the sum of one thousand six hundred pounds or thereabouts in order to seize or attach the effects of this deponent in Boston.”3
But the other sources suggest that whatever zeal Hancock may ultimately have thrown into the prosecution of the case, the initial impulse came from Longman, who in a letter of 22 July 1769 invited Hancock's assistance in recovering the debt.4 It is not certain just when this letter reached Hancock, nor has his reply survived. Apparently he responded affirmatively on 24 October 1769, requesting a formal power of attorney as well as Mein's account with Longman.5
Between 22 July and 24 October, Mein's standing with the patriot { 201 } party had deteriorated even more sharply. On 21 August he had begun publishing the manifests which incriminated many of the ostensible nonimporters.6 On 5 September, John Robinson had caned James Otis in the British Coffee House, and Mein had defied a mob to stand surety for W. S. Brown, accused of aiding Robinson.7 Enraged, the patriots had on 10 September censured Mein for treating “the whole body of merchants and traders in the most haughty, imperious, and insulting manner.”8 “Mr. Mein at present is so obnoxious to the People on account of his publishing the Manifests that he's obliged to go Arm'd” a contemporary wrote, “and tis but a few Nights since that two Persons who resembled him pretty much were attack'd in a narrow Alley with Clubs, and would in all probability have lost their lives if the Mistakes had not been timely discover'd.”9
Shortly after Hancock accepted Longman's commission, the final storm broke around Mein. On 28 October, as he was walking up King Street, a threatening crowd began to surround him. Pulling out his pistol, he faced down his assailants and slowly backed his way toward the guardhouse at the head of King Street. There he gained safety, but not before Thomas Marshall had laid the sharp edge of a shovel to Mein's back, and Mein's pistol had somehow gone off. Hidden in the guardhouse, Mein managed to elude the mob, even though Samuel Adams and William Molineux obtained a warrant and personally searched the premises for him. Finally, he escaped to a ship in the harbor,10 while ashore his effigy became the hate figure of the annual Pope's Day festivities.11
It was impossible for Mein to return to Boston. When he asked Governor Hutchinson for military protection to enable him to press his civil remedies against those who had mobbed him, Hutchinson refused. “In Ireland perhaps where the people have been long used to the military upon an apprehension only of violence from the populace such a measure might have { 202 } been advisable. In the present state of the colonies I could not think so; and rather thought it advisable for him to forebear prosecuting his complaint for some time.”12 Only one thing remained for Mein to do, and he did it: return to Britain.13
Longman meanwhile, having received Hancock's undertaking to act as attorney, immediately himself executed and caused Wright & Gill to execute certified powers of attorney which, together with bookkeepers' affidavits, were promptly sent to Boston. These arrived on 1 March 1770; that very day, John Adams filled out the writs and had the deputy sheriff seize Mein's property, which included his stock of books and, most important, “Seven frames on which are sixty-five Cases with the Types &c. Two Printing Presses with all the Materials thereto,” and “One composing Stone.”14
As Mein later swore, “On the afternoon of said day it was propos'd to Mr. Hancock's Lawyer (Mr. Adams) to give undoubted security to stand the issue of the suit, he discharging the attachments. This proposal was refused and Mr. Murray (Mr. Mein's friend who made the proposal) given to understand that nothing would be satisfactory but an absolute security for the debt independent of any suit. The day following, Mr. Murray sent proposals of accomodation in writing to Mr. Hancock to which he receiv'd Mr. Hancock's answer on the 3d of March. On the 7 of March Mr. Murray sent other proposals of accomodation to Mr. Greenleaf the Sheriff which Mr. Greenleaf answer'd in a letter to Mr. Fleeming the Friday following [9 March]. On the 25th Mr. Murray again wrote to the Sheriff and receiv'd an Answer the 4th of May.”15
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The texts of Murray's original proposals to Hancock have not been found. Charles Bolton, who appears to have examined them in the early 1900's, when what are now the Hancock Papers at the Massachusetts Historical Society were still in the possession of Charles Pelham Greenough, reported that Murray wanted “to have the attachment withdrawn, allow the suit for £1600 to go on in the King's Bench and abide by the judgment of the Court, the property meanwhile to be appraised upon oath and to be delivered up to Hancock as attorney when executions came to be issued.”16 The reference to the Court of King's Bench may be inadvertent; on the other hand, perhaps Murray contemplated a discontinuance of the Massachusetts action in favor of proceedings in London, before an English jury instead of an American one. If it was the local jury which Murray feared, later events proved his doubts well-founded. And, as it turned out, Longman started a suit in the King's Bench anyway.
Despite the failure of the preliminary settlement negotiations, Murray was able, by a means still unexplained, so to manage matters “with the Sheriff as to get him to accept of a pledge for the value of Mr. Mein's Interest attached at the printing office. This set the press a going again, much to the Surprize and Disappointment of Mr. H—— and his party, with whom this was the Capital Object in this Stroke of his. A method has been since hit on to relieve the books also by a tender of other Goods.”17
It is not clear whether the method of relieving the books ever went into operation. On 18 May 1770, Hancock reported to Longman that Mein's “Effects are in the hands of the Sheriff, and as soon as it has gone thro' the Law, and the Effects turn'd into money, the neat proceeds shall be remitted you, and you will determine the settlement between you and Messrs. Wright & Gill. Tho' I fear even the Whole of his Effects will fall vastly short of the Debts, but I have got all and could get no more.” And Hancock urged Longman to “get further Security of Mr. Mein in London.”18 This Longman had already done, commencing an action in the King's Bench against Mein for the amount of the debt and having him arrested and committed to prison “in hopes of His having some Friends that would appear in His behalf.” Friends did appear, but none apparently with funds sufficient to release the attachment and free Mein.19
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Meanwhile, back in Boston, Fleeming, who had been keeping the Chronicle going, at last gave up. On 25 June 1770, he put out his final number, “shut up his printing office and fled to the castle for protection.”20 And the lawsuits droned on, having been entered at the April 1770 Suffolk Inferior Court, but continued from term to term. As Hancock explained to Longman, “by a law of the Province, when an Action is brought against a man who is out of the Province, the action must be continued in the Inferior court six months. This was the reason why the action against Mr. Mein was continued at first and when the six months were expired, Mr. Kent, the lawyer, appeared for Mr. Mein at the request of Mr. Fleeming who had a power of attorney from Mein, and moved in Court that these actions might be continued three months longer, because he said Mr. Mein had since been arrested in London for the same debt and was a prisoner in the King's Bench for them and therefore desir'd time that they might get evidence of it, in order that the suits here might be discharged. The Court granted the motion.”21
Finally, on 15 January 1771, the actions came on for trial in the Suffolk Inferior Court, with Adams representing the creditors, and Benjamin Kent defending Mein. Our account of what took place is conjectural, for Adams' trial notes have not survived; we have only a list of authorities which he used in argument. The reconstruction which follows has been based on the Hancock correspondence and the court files.
In both actions, the writ had originally sounded in ordinary indebitatus assumpsit, based on an account annexed to the writ, which set out in rudimentary double entry form the amount of Mein's purchases over the years, the sums he had paid on account, the balance due, and (in Wright & Gill's case) the interest.22 When the cases came on, according to Hancock, “an objection was made by Mr. Mein's Council to the Generality of [Longman's, and, presumably, Wright & Gill's] account, that it was not sufficiently explicit, and that the particulars should be Exhibited.” This was, Hancock assured his London correspondents, a mere delaying ruse. None• { 205 } theless, “it is best at the next Trial to be ready to answer and remove their objections.” So he forwarded “Mr. Adams's (my attorney) minutes to me in order to Transmit you, by which you will see what is necessary for you to do, and I pray you will so soon as possible after the receipt of this prepare the necessary papers and accounts and be as explicit as possible. ... You will Communicate this to Messers. Wright & Gill.” That Adams considered the accounts essential to the case may be deduced from the fact that Hancock sent his letter in duplicate by two separate vessels.23
It is not certain whether by 16 January 1771, the date of Hancock's letter, the trials had been held; the court files contain a summons in Adams' hand to “Alexander Reid Stationer, and William Miller both of Boston,” dated 17 January 1771; the return indicates that these witnesses were actually subpoenaed on 19 January.24 Possibly the court heard the preliminary objections and then continued the matters for trial later on in the term; the cases were certainly tried at this term.25 At the trial Adams apparently put into evidence the depositions of the respective bookkeepers which established the facts of the debts; he may also have called Reid and Miller for evidence on the reasonableness of the Wright & Gill prices or even to prove that Mein had actually received the goods in question.26 Whether the defense adduced any evidence is an open question.
From Adams' authorities (Document II) and Hancock's letter of 16 January, referred to above, it appears that the court, on whatever evidence the plaintiffs had brought forward, or perhaps on the basis of defendant's objections to the legal sufficiency of the accounts, had directed a finding for the defendant in one or perhaps both of the actions, and that the { 206 } respective juries had notwithstanding brought in plaintiff's verdicts. The material at the end of the Adams notes suggests that the objection reported by Hancock had been the basis for the court's charge that the accounts lacked particularity.
At any rate, the juries seem to have treated the cases individually. In the Wright & Gill action, the account annexed had listed every single shipment which made up the debt; the verdict was for the net balance, plus the claimed interest. Longman, on the other hand, had sued on an account whose first item was simply “To a Ballance due as per Account then sent ... £1453:10:0,” the other items being individual shipments.27 In reaching its verdict for Longman, the jury deducted the preexisting balance from the balance on the account, thus in a sense giving some effect to defendant's objection and the court's direction. As Adams noted: “Verdict for Longman for about £200, far short of the whole. Apld. both sides.”28
It is clear that the defendant moved for a new trial in the Inferior Court, possibly in both actions, although Adams' collection of authorities on this point bears only the title “Wright and Gill vs. Mein—The Jury.” In his quasi-brief (Document II), the simple point of commercial evidence on which the cases really turned quickly became obscured in the constitutional argument over the sacred right of jury trial, an argument which Adams expounded even more vigorously in the apparently contemporaneous fragment reprinted here from his diary as Document III.
Whether the “free speech” theme which underlay Adams' references to current English political turmoil echoed some of the bitterness of the Boston journalistic controversy, and whether Adams was attempting to inject contemporary local partisanship into an otherwise quiet legal dispute are matters well beyond the scope of the present note. Certainly in Boston, free speech and the power of the jury were related subjects. Three years before, after a series of vicious attacks on then-Governor Bernard had stimulated Chief Justice Hutchinson to a detailed charge upon the subject of criminal libels to the Grand Jury,29 the jurors refused to indict—because they were tampered with, Bernard claimed; because they were “worthy and independent,” the Sons of Liberty boasted.30 And the inter• { 207 } weaving of press and jury, as the issues had arisen in England, was brought vividly to Boston's attention at the very time of the Mein cases, for the Boston Gazette of 28 January 1771 had reprinted the “Junius” letter to Lord Mansfield which Adams quoted in his brief; and the battle between Lord Camden and Lord Mansfield was reported in the Boston Gazette of 4 February 1771.31
Of course, the Bernard libels and the Junius-Mansfield-Camden imbroglio all dealt with the power of a criminal jury to decide law as well as fact. The interesting features of the Mein litigation are that it was an ordinary civil action, and that the court agreed with Adams and allowed the verdict to stand, a point to be considered more fully later in this note.
In view of the right of appeal, why did Mein's attorneys bother to resist the outcome at the Inferior Court stage? Perhaps they felt that some tactical gain would result from a delay. It is noteworthy that Adams did not seek a new trial in the Longman case, where the jury had returned a verdict so much less than the amount sued for. The explanation for that seems to lie in the court's not having directed a larger verdict; thus the smaller verdict did not (so far as plaintiff was concerned) contravene a favorable direction.
The double appeals in the Longman case and Mein's appeal in the Wright & Gill case were entered at the February 1771 Suffolk Superior Court, whence they were continued, possibly because the additional accounts were still in London.32 By August they had arrived, full of enough bibliographical detail to support a doctoral dissertation. Hancock “immediately” delivered them to his “Attornies ... in full Expectation of the { 208 } matter being Determined at our August Term, but the Judges saw fit to Refer it to November.”33
At the November adjournment, Adams chose not to rely solely on the fortified evidence. On 26 November 1771, he filed new declarations, alleging, in addition to the promise to pay, language comprising what Massachusetts lawyers then and now would call “the common counts,” a phrase which is shorthand for stereotyped language stating the debtor creditor relationship in every conceivable way. Moreover, Adams increased the amount of the alleged debt; instead of suing merely for the net amount due, he stated as damages the total of Mein's purchases.34
It is impossible accurately to calculate the date of trial from the minute books. Hancock's letter to Wright & Gill of 30 November says: “The Jury yesterday at Superior Court gave in their Verdict in our favor in Mein's Affairs, but Mr. Mein's Council mov'd for a New Trial. How that will be Determined, I know not, but will inform you and as soon as I obtain Execution will turn the Effects into money as soon as possible. Please to inform Mr. Longman of this as I have not time now to write him.”35
The jury, which had been the same in both cases, although they had been tried separately, brought in verdicts in the amount of the outstanding balances. It is worth noting, in view of the earlier arguments concerning the right of the jury to bring in a general verdict, that the verdicts as the jury originally returned them read, in each instance, “the jury find for the appellant [in Longman —”for the appellees” in the other action] the net amount sued for.” Each verdict was then amended to conform with the pleading in assumpsit to read: “the jury find that the [original defendant] made the promise alledged in the Declaration & assess damages.”36
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There is no indication when, if ever, motions for new trials were heard. If they did come on for hearing, they were apparently denied because, on 23 December 1771, executions were issued.37 Then began the problem of trying to realize on the security. As far back as 24 April 1771, Hancock had warned Longman that despite the assurances of Mein's friends about the adequacy of Mein's effects to cover the claim, “you will find on the settlement of the matter here, it will fall vastly short of their Expectation and manifest their suggestion to be utterly groundless.”38 Now the event proved his prophecy. Longman's original attachment had covered “a large number of books, a parcell of Stationery Ware, an Iron Stove, a Wooden press, some Patent medicines, magazines, Reviews and other pamphlets, pewter plates for Engraving, forty five trunks with a variety of other articles,” which had been stored during the litigation in a house owned by Samuel Fitch, and upon which the Sheriff levied on 27 December 1771. The appraisers were three Boston bookseller-stationers, Henry Knox, the future Secretary of War (appointed by the Sheriff), Joseph Edwards (appointed by Hancock), and John Langdon (appointed by Fleeming). After ten days' contemplation, the appraisers valued the assortment at £1,038 8s. 10d. Massachusetts money. Deduction of various costs (including an appraisement fee of £32 15s. 5d.) brought the figure even lower: on 18 February 1772, all outstanding fees having been deducted, Hancock signed a receipt for “books, other goods and Effects” valued at £956 4s. 6d.39
The dividend on Wright & Gill's claim was similarly slight. On 10 November 1770, three printers—Richard Draper, John Green, and Thomas Fleet—had appraised the printing plant at £185 17s. 4d., of which half belonged to Fleeming. After Sheriff Greenleaf levied execution upon this equipment on 26 December 1771, they again appraised it at the same figure. Some bookbinding equipment being caught within the execution, Langdon and Edwards returned to appraise it, too. Once again, costs were deducted, and Hancock receipted for £94 11s. 6d. worth of bookbinder's tools and printing gear.40
Liquidating the collection was difficult. Not until the fall of 1772 was Hancock able to remit anything to England and even then he had to confess that “to this Day have not Received the Whole Money. There is now outstanding about £100 Lawful Money. However, rather than keep them any longer, I have taken it upon myself and now close the whole.”41
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Whether the underlying motive in these suits was financial or political, they did raise questions of broader significance than Mein's inability to pay his debts or even the patriots' desire to close his newspaper. The issue of a jury's right to decide the law independent of the court's direction or in violation of it (and the closely related question, whether or not counsel could argue law to the jury) claimed much attention in 18th century England and America. It was present not only in this case, but also in Cotton v. Nye, No. 3, and in Rex v. Richardson, No. 59. The problem arose also in the Massacre Trials (Nos. 63, 64) where Adams very carefully urged the jury to rely on the authorities which he was citing (and which the prosecution did not dispute), in order to enable the jury correctly to determine the law itself.42 Josiah Quincy, on the other hand, more “carried away by zeal for his client,”43 argued that the law was the court's concern, and that on the facts, the accused must be acquitted.
The extent of the jury's power and the means by which the judges may impose and maintain bounds on that power agitate the profession even today.44 At early common law, a court at Westminster, when considering the result of proceedings at nisi prius, could, if it “thought that there had been irregularity in the proceedings ... decline to proceed and leave the parties to start proceedings afresh. In other words, there was a new trial.”45 In the 17th century, “it became the practice for the judge, with the consent of the parties, to give leave to move the court to enter a verdict for the other side, if they considered that his direction to the jury had been erroneous.”46
By the beginning of the 18th century, the idea of granting a new trial for misdirection had become rooted in the supervisory functions of the Westminster courts.47 Other grounds for the granting of new trials included the judge's error in admitting evidence or excluding it,48 and a “wrong” finding by the jury. This latter phenomenon divided itself into { 211 } two classes, verdicts “contrary to the evidence” or “against the evidence” and verdicts “against the weight of the evidence.” The distinction does not always emerge clearly from the reports and the abridgments, but the difference seems certain. A verdict contrary to evidence was one in which all the evidence adduced, no matter by whom, tended toward one party and none toward the other. A verdict against the weight of the evidence was one in which, although favorable evidence had been produced for both parties, the evidence, taken as a whole, preponderated for one side or the other. The difference may be illustrated by an anonymous case of 1743. At the trial there had been six witnesses for each side, and the judge certified “that the jury found for the defendant, which was against his opinion, but that he could not take upon himself to say that this was a verdict against evidence, because there was evidence on both sides.”49
Generally, “if the Jury have found a Verdict contrary to the Evidence, the Court will grant a new Trial,”50 the theory being “that the Jury ought to ground the Verdict intirely upon the Evidence given in Court.”51 But, where the trial had seen evidence for both sides, the problem was more difficult. After all, a certification by the trial judge that the verdict was against the weight of the evidence was (and is today) nothing more than a judicial evaluation of the testimony, a difference of opinion between one man and twelve. Which estimate, or rather whose estimate, should prevail, seriously troubled the English judges: “It has been held in some Cases, that if the Jury have found a Verdict which is in the Opinion of the Judge before whom the Cause was tried contrary to the Weight of the Evidence this is a good Reason for the granting of a new Trial.... But it has been held in other Cases that the Court ought not to grant a new Trial; because the Jury have in the Opinion of the Judge before whom the Cause was tried found a Verdict contrary to the Weight of the Evidence.”52
An unreported case set out in Bacon's Abridgment sums up the state of the law on this point. On the motion in the Common Pleas for a new trial, Chief Justice Pratt, before whom the trial had been held at nisi prius, said: “If I had been upon the Jury, and had known no more of the Witnesses than I did when this Cause was tried, I should have thought that the Verdict which is for the Plaintiff ought to have been for the Defendant; but I do not chuse to declare myself dissatisfied therewith: Because wherever there is a flat Contrariety of Evidence as to the principal Matter in Issue, and the Characters of the Witnesses on both Sides stand unimpeached, the Weight of Evidence does not altogether depend upon the Number of Witnesses: for it is the Province of the Jury who may know them all to determine which Witnesses they will give Credence to; and in my Opinion no Judge has a Right to blame a Jury for exercising their Power of determining in such a Case.”
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Clive, J., said: “The granting of a new Trial in this Case would be taking away that Power which is by the Constitution vested in the Jury. It has been said that it is the Duty of the Judge to enlighten the Understanding of the Jury, but that he ought not to lead the Jury by the Nose.”
Bathurst, J.: “As there was in this Case strong Evidence for the Plaintiff a new Trial ought not to be granted, although the Weight of the Evidence was in [the trial judge's] Opinion with the Defendant.”
Gould, J.: “It is very difficult to draw a Line between the Cases in which there ought or ought not to be a new Trial; and perhaps the granting of a new Trial must in every Case depend upon the particular Circumstances of the Case. In the present Case there is no Reason to grant one.”53
And in so-called “hard” cases, that is, actions which the court felt should not in conscience have been prosecuted, new trials were denied after verdicts for the defendant, even though against evidence.54 As Bacon put it: “It has been held in divers Cases that the Court will not grant a new Trial unless the Justice of the Case requires it, although the Jury have found a Verdict contrary to the Evidence.”55
No consideration of the judge-jury problem in English law could properly omit some mention of Bushell's Case, 56 which established the principle that a jury which refused to convict, in defiance of the judge's direction, could not be fined and imprisoned.
Shortly after it was decided, the case was cited in support of the argument that the jurors need not respect the court's direction in anything pertaining to their verdict. In a chapter entitled “That Juries are not Finable, or any way to be punish'd, under Pretence of going contrary to Evidence, or against the Judges Directions,” Henry E. Care, the author of English Liberties, set out large portions of the opinion “to satisfy you that a Jury is in no way punishable for going according to their Conscience, though against seeming Evidence.”57 A close reading of Chief Justice Vaughan's holding indicates, however, that it very narrowly restricts and qualifies the jury's role. Because of the significance of the case, and because Adams apparently cited it in his argument in the instant cases,58 a reappraisal of Bushell's Case is worthwhile here.
Bushell had been one of the jurors who had disregarded the court's instructions and had refused to convict the Quakers Penn and Mead at their { 213 } trial in the Old Bailey. As a result, the judges had imprisoned the jurors and literally starved them. Finally, Bushell's lawyers obtained a writ of habeas corpus from the Court of Common Pleas, and the Sheriffs of London, bringing Bushell with them, came into Court to justify the imprisonment. The main reason was “That the Jury acquitted those indicted against the direction of the Court in matter of Law, openly given and declared to them in Court.”59 Vaughan admitted that “no Issue can be joyn'd of matter in Law, no Jury can be charg'd with the tryal of matter in Law barely, no Evidence ever was, or can be given to a Jury of what is Law, or not; nor no such Oath can be given to, or taken by, a Jury to try matter in Law.” But he denied that the judge “having heard the Evidence given in Court (for he knows no other)” could tell the jury “upon this Evidence, the Law is for the Plaintiff, or for the Defendant, and you are under the pain of Fine and Imprisonment to find accordingly.”
However, he said plainly that the judge could before verdict ask the jury whether it had found a particular fact and, depending on the answer, could “declare 'The matter of Fact being by you so found to be, the Law is for the Plaintiff, and you are to find accordingly for him.'” And a finding for the defendant “may be thought a finding in matter of Law against the direction of the Court; for in that case the Jury first declare the Fact, as it is found by themselves, to which fact the Judge declares how the Law is consequent.”
And even after verdict, the judge may “ask, 'How do you find such a Fact in particular?' And upon their answer he will say, 'then it is for the Defendant,' though they found for the Plaintiff, or e contrario, and thereupon they rectifie their Verdict.”
It was also proper, Vaughan said, to put the matter to the jury hypothetically: “If you find the Fact thus (leaving it to them what to find) then you are to find for the Plaintiff; but if you find the Fact thus, then it is for the Defendant.”
But, because the law of the case depended on the facts, and because the jury alone could find the facts, it was impossible for any judge to direct the jury. “If the Jury were to have no other Evidence for the Fact, but what is depos'd in Court, the Judge might know their Evidence, and the Fact from it, as equally as they, and so direct what the Law were in the Case.” But the jurors, the neighbors of the parties, have knowledge of their own, going either to the issues or to the credibility of the witnesses. It is, therefore, “absurd a Jury should be fined by the Judge for going against their Evidence, when he who fineth knows not what it is. ... [F]or the better and greater part of the Evidence may be wholly unknown to him; and this may happen in most Cases, and often doth.” “[T]he evidence in Court is not binding evidence to a Jury.”
Finally, Vaughan noted, although in some situations, such as demurrers to the evidence, the decision goes “upon the Judge's Opinion of { 214 } the Evidence given in Court, [and] the Plaintiff becomes Nonsuit, when if the matter had been left to the Jury, they might well have found for the Plaintiff,” in all general issues, the jury merely “find for the Plaintiff or Defendant upon the Issue to be tryed, wherein they resolve both Law and Fact complicately, and not the Fact by itself.”
Bushell's Case thus rests principally on a concept of the jurors as quasiwitnesses, an idea which remained very much alive down to Adams' time, as the quotation from Chief Justice Pratt demonstrates. To the Vaughan Pratt view, which is unanswerable once its major premise be accepted, the Massachusetts lawyers added an interpretation of Bushell's Case which had come to them through Care's book, that the jury should always decide the law as well as the fact. On 13 March 1769, the Boston Gazette ran an unsigned letter setting out a long passage from English Liberties, including this sentence: “'Tis by applying Matter of Fact and Law together, and from their due Consideration of, and right Judgment upon both, that a Jury brings forth their Verdict.”60
The author of Appendix II to Quincy's Reports thought that, until the 1800's, Massachusetts civil juries had the right to decide both law and fact, in support of which position he cited Stickney v. Atwood. 61 From Dane's digest of this unreported case, it appears that one of the purported grounds for a new trial was that the verdict was against the court's opinion. The court apparently overruled the motion, however, holding that the verdict was “not against the court's opinion, if the facts be true, of which the jury must judge.” Thus the case seems to stand only for the proposition that if court and jury disagree over the facts, the jury's mind will control.
The distinction between (1) the jury's disregarding the court's direction in a matter of law, and (2) the jury's disregarding the court's opinion of the facts was not entirely clear in 18th-century Massachusetts, although the English decisions, even the Junius cases, made the difference plain. In each of those criminal libel cases, the jury had been asked to find only the bare fact of publication, with the legal effect of publication—the guilt or innocence of the accused—to be decided then by the judge. That is, the court was asking the jury to respond to a kind of special interrogatory: “Did the defendant publish the statement in question?” Or, to put it another way, the courts were attempting to force the jury to return a special verdict (a verdict in which the jury found certain specific facts, leaving it to the court to determine which party should prevail). In a general verdict, on the other hand, the jury found “generally,” that is, for the plaintiff (with assessed damages), or for the defendant according to the plea. It was the juries' insistence on bringing in a general verdict (not guilty) which, combined with judicial attempts to regard these general verdicts as special ones, touched off the controversy. But not even Lord Mansfield himself ever directed a jury to find the simple fact of publication.
Inability to distinguish between the differences stemmed in part, as { 215 } Adams himself noted, from the practice of styling anything the court said a “direction.”62 Thus what today would be considered a judge's summing up, or perhaps his commentary on the evidence,63 might, in Adams' time, be regarded as an attempt to direct a jury's finding. Expressions like “contrary to the mind of the Court,”64 or “against the mind of three in four of us Judges,”65 could be interpreted either way.
Of course, no one took the position that all questions whatsoever were for the jury. Even Adams admitted that there were numerous classes of litigation whose intricacies “would confound a common Jury and a decision by them would be no better than a Decision by Lott.”66 But Adams' point was that the jury would recognize its own limitations and would voluntarily bring in a special verdict in such cases. He argued that it should be the jury's decision rather than the judges' whether or not a special verdict should be employed, and that the jury, if it liked, could decide to determine the law, no matter what the court thought. The opposing view found expression in a letter to The Censor, signed “A.Z.,” which insisted that the losing party receive a new trial “when a jury will pertinaciously determine matters of law directly against the opinion of the Court.”67 A middle view came from Robert Auchmuty and Chief Justice Hutchinson. Arguing against a new trial in a 1763 case, Auchmuty had said: “I confess I wish for a Power in the Court to set aside Verdicts, but not for an unlimited one. ... The Court is not to be Judge of the Law and Fact too absolutely; if it should be, it takes away all Verdicts but such as are agreeable to the Mind of the Court.” And Hutchinson asked: “Are you not agreed, that, were it evidently against Law and Evidence, there the Court may grant a new Trial, but not where there is Evidence on both sides?”68
Whatever the division of powers and function between court and jury, it is apparent that in Massachusetts anyhow, after a verdict the judges could not enter up judgment for the losing party, no matter how strong they thought his case to be. The most he could get was a new trial. Even { 216 } “A.Z.” asked for nothing more than that. It was not until the middle of the 19th century that the Massachusetts Court ruled that if a civil plaintiff's evidence was so weak that “the Court would set aside any number of verdicts rendered upon it, toties quoties, then the cause should be taken from the jury by instructing them to find a verdict for the defendant.”69
1. Note JA 's view in 1775: “There never was before, in any part of the world, a whole town insulted to their faces, as Boston was by the Boston Chronicle. Yet the printer was not molested for printing. It was his mad attack upon other printers with his clubs, and upon other gentlemen with his pistols, that was the cause, or rather the pretence, of his flight. The truth was, he became too polite to attend to his business; his shop was neglected; procurations were coming for more than two thousand pounds sterling, which he had no inclination to pay.” “Novanglus,” No. iii, 4 JA, Works 29, 30. Yet JA apparently bought books of Mein. See 1 JA, Diary and Autobiography 338. As to Mein, see also No. 5.
2. See the accounts in SF 101964. The debt to Longman was £1,643 19s. 3 1/2d.; that to Wright & Gill was £315 3s. 6d. Mein had written Longman on 28 Sept. 1768, forwarding a part payment and assuring prompt settlement of the outstanding accounts. MHi: Hancock Papers. Longman's firm was the direct ancestor of the present London publishing house of Longmans, Green & Co., Ltd. Unfortunately, a wartime bomb destroyed the firm's records for the period in question. Letter to the editors, 30 April 1963, V. L. Ripley (secretary to Mr. Longman).
3. Copy of Mein's affidavit, 22 Feb. 1770, MHi:Hancock Papers. See also Alden, “John Mein: Scourge of Patriots,” 34 Col. Soc. Mass., Pubns. 571, 590 (1942), which notes that the John Carter Brown Library copy of The Letters of Sagittarius (Boston, 1775), a book attributed to Mein, bears on its flyleaf an inscription accusing Hancock of buying up Mein's English debts and, by making “a sudden demand upon honest Mein,” bringing on his ruin.
4. Thomas Longman to John Hancock, 22 July 1769:
“Your haveing several times offered me your kind assistance induces me now earnestly to request it in the following affair.
“Mr. John Mein of Boston (Bookseller) is Indebted to me a very considerable sum of Money, the greatest part of which has been due near three Years, which upon my remonstrating to Him He has several times promised to make such Remittances as w'd be satisfactory, but this He has yet neglected to do, nor now even so much as writes to me by way of appology. I should therefore be greatly obliged to you if you could recommend a proper Person to me to whom it would be safe to send a power of Attorney and to Act for me in the most adviseable manner in this unfortunate affair. I know your time and attention is at present much taken up in Public Affairs, but as the recovery of this Debt is of great consequence to me, hope you will not deny my request but favour me with your answer by the first opportunity which will be ever gratefully acknowledged by Sr. Your much obliged Humble Servant, Thomas Longman.” MHi:Hancock Papers.
It was at Longman's instance that Wright & Gill, too, made Hancock their attorney over a year later. Longman to Hancock, 4 Dec. 1769, MHi:Hancock Papers.
5. “I received your favour of the 24th of October (per Capt. Bryant) on Wednesday last, and shall ever acknowledge my self under the greatest obligations for your readiness to undertake the settling of my Account with Mr. Mein, and for that purpose have inclosed a state of it properly Attested, with a Letter of Attorney impowering you to act for me in this unfortunate Affair.” Thomas Longman to John Hancock, London, 4 Dec. 1769, MHi:Hancock Papers.
6. Andrews, “The Boston Merchants and the Non-Importation Movement,” 19 Col. Soc. Mass., Pubns. 159, 228 note (1918). The publishing stopped temporarily on 19 Oct. 1769. Ibid.
7. Letter, Thomas Young to ——, Sept. 1769, reprinted in Edes, “A Memoir of Dr. Thomas Young,” 11 Col. Soc. Mass., Pubns. 2, 5–6 (1910); James Murray, however, indicates that Murray himself was the sole surety. N. M. Tiffany and S. I. Lesley, eds., Letters of James Murray 160 (Boston, 1901). Mein had apparently been present at the affair: the capias for Brown and Ralph Dundass lists Mein as among the witnesses. SF 89228.
8. Andrews, “Boston Merchants,” 19 Col. Soc. Mass., Pubns. 228 note.
9. George Mason to Joseph Harrison, 20 Oct. 1769, 3 Bernard Papers 53, MH.
10. Alden, “John Mein: Scourge of Patriots,” 34 Col. Soc. Mass., Pubns. 571, 587–589 (1942) vividly uses the sources to describe the near-lynching. See also Rowe, Letters and Diary 194; Tiffany and Lesley, Letters of James Murray 168; John Miller, Sam Adams, Pioneer in Propaganda 205 (Boston, 1936); George Mason to———, 28 Oct. 1769, 3 Bernard Papers 47, MH; Mein to Joseph Harrison, 5 Nov. 1769, id. at 51; Gailer v. Trevett, p. 41, note 35 19 , above.
11. Celebrated on 6 Nov., because 5 Nov. 1769 fell on a Sunday. The effigy carried an acrostic which included the homonymic line “Mean is the man; M—N is his name.” Bolton, “Circulating Libraries in Boston, 1765–1865,” 11 Col. Soc. Mass., Pubns. 196, 198 (1910).
12. Hutchinson to Hillsborough, 11 Nov. 1769, 3 Bernard Papers 53, MH.
13. See George Mason to Joseph Harrison, 11 Nov. 1769, which refers to Mein's taking “his passage home in one of His Majesty's Armed Schooners,” and is docketed “Per Mr. Mein. Reed Jany 3d.” 3 Bernard Papers 54, MH. Compare Arthur M. Schlesinger, The Colonial Merchants and the American Revolution 160 note (N.Y., 1918).
14. Longman to Hancock, 4 Dec. 1769 (docketed “Rec'd by [i.e., via] Paddock March 1st, 1770”): “By this Ship believe you will Receive Letters from Messers Wright & Gill requesting the same favour of you, and as it was by my persuasion they opened an account with Mr. Mein, I could not with Honour take any steps without acquainting them with it.” MHi:Hancock Papers. The writs and the deputy sheriff's return are in SF 89428 and 101964. The powers of attorney are also in SF 101964. Adams' Office Book for the April 1770 Suffolk Inferior Court lists both cases, and notes for each: “Copying acct, at J. Hancock Esq's. Instance,” and “7s posted to J. Hancock Esqr.” MQA.
15. Deposition of John Mein (copy), 22 Nov. 1770, MHi:Hancock Papers. The correspondence between Murray, Greenleaf, and Fleeming appears as Doc. I below. Murray, a Scot like Mein, attracted the ire of the Liberty Party as much for his ancestry as for his tory leanings. “It may not perhaps lessen your opinion of Mr. Murrays good Qualities to inform you that he is a Scotchman and has continually caball'd with his loyal Countreymen in this Town, and the other Governmental tools against the Charter and liberties of this Province.” William Palfrey to John Wilkes, ca. 23–30 Oct. 1770, in Elsey, “John Wilkes and William Palfrey,” 34 Col. Soc. Mass., Pubns. 411, 422 (1941). Anti-Jacobite feeling was apparently strong in Boston in the late 1760's and early 1770's. Adams' notes in No. 5 are headed “News Paper. Jacobite Party.” And the Boston Gazette of 5 Sept. 1768, p. 4, col. 1, ran a violent letter on the subject. It is difficult to estimate how this spirit affected the jury's attitude toward Mein's litigation, but the effect was probably not favorable.
16. Bolton, “Circulating Libraries in Boston, 1765–1865,” 11 Col. Soc. Mass., Pubns. 196, 199. Hancock denied that the proposal would have “fully secur'd” Longman; he insisted that he “waited for Security and finally could obtain none.” Hancock to Longman and Wright & Gill, 10 Jan. 1771, MHi:Hancock Papers.
17. James Murray to Elizabeth Smith, 12 Mar. 1770, in Tiffany and Lesley, Letters of James Murray 169–170. “Relieve the books” means to lift the attachment on them.
18. Hancock to Longman, 18 May 1770, MH-BA: Hancock Letter Book, in A. E. Brown, John Hancock, His Book 94 (Boston, 1898).
19. Longman to Hancock, undated. MHi:Hancock Papers.
20. Christian Barnes to Elizabeth Smith, 29 June 1770, in Tiffany and Lesley, Letters of James Murray 178. The “castle” was Castle Island in Boston Harbor where the troops were quartered.
21. Hancock to Longman, 19 Nov. 1770, MH-BA:Hancock Letter Book, in part in Brown, John Hancock, His Book 95–96. Hancock's report is confirmed by Min. Bk., Inf. Ct. Suffolk, April 1770, Nos. 178, 179; July 1770, Nos. 113, 114; Oct. 1770, Nos. 67, 68. The statute in question was “An Act to Enable Creditors to Receive Their Just Debts out of the Effects of Their Absent or Absconding Debtors.” 4 A&R 168, 169, Act of 13 Feb. 1759: “and such attorney, factor, agent or trustee, upon his desire, shall be admitted to defend the suit on behalf of his principal throughout the course of the law, and an imparlance shall be granted of course at two terms successively, that he may have an opportunity to notify his principal thereof, and at the third term, without special matter alledged and allowed in bar, abatement or further continuance, the cause shall peremptorily come to trial.” Originally, a prayer for leave to imparl meant that the defendant “wanted time to talk matters over with the plaintiff out of court. Later on all that it meant was that he wanted to have until the next term to plead.” Sutton, Personal Actions 104.
22. SF 101964.
23. Hancock to Longman and Wright & Gill, 16 Jan. 1771, MHi:Hancock Papers. The copy is docketed: “To Mr. Thos. Longman to be Communicated to Messers Wright & Gill abt Mein's affairs with Mr. Adams Minutes respectg the Objections to the Accots. Jany 1771. By Jarvis. By White.”
24. SF 101964.
25. See copy of the Inferior Court record, SF 101964. The Longman trial was on the fifth day of the term, and the Wright & Gill trial on the eighth day. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, Nos. 43, 44. The court convened on Tuesday, 1 Jan., but apparently did not sit regularly thereafter, if the assumptions in the text are correct.
26. The depositions actually should have sufficed, under the provisions of “An Act for the More Easy Recovery of Debts in His Majesty's Plantations and Colonies in America,” 5 Geo. 2, c. 7 (1732):
“[I]n any action or suit ... brought in any court of law or equity in any of the said plantations, for or relating to any debt or account, wherein any person residing in Great Britain shall be a party, it shall and may be lawful to and for the plaintiff or defendant, and also to and for any witness to be examined or made use of in such action or suit, to verify or prove any matter or thing by affidavit or affidavits in writing upon oath, or ... affirmation, made before any mayor or other chief magistrate of the city, borough or town corporate in Great Britain, where or near to which the person making such affidavit or affirmation shall reside ...; and every affidavit or affirmation so made ... shall in all such actions and suits be allowed to be of the same force and effect, as if the person or persons making the same ... had appeared and sworn or affirmed the matters contained in such affidavit or affirmation viva voce in open court.”
All the depositions met the statutory requirements; the attestations specifically referred to the Act. SF 101964.
27. SF 89428.
28. See JA , Docket, Suff. Inf. Court, Jan. 1771, Adams Papers, where the entry for “Wright v. Same” is “Verdict for Ptf., Deft, appld.” Both cases were “Posted to Hancock & pd.”
29. Quincy, Reports 262–270 (Suffolk SCJ, March 1768).
30. Bernard to Shelburne, 12 March 1768, 6 Bernard Papers 278, MH:
“[A]s soon as [the Jury] came out of Court they sent for the Attorney General, and directed him to prepare a Bill against the next Morning. But in the Interval the Faction who conducts that Paper was indefatigable in tampering with the Jury; so that when the Business was resumed the next day, the Bill was opposed so effectually that it passed in the negative by a small Majority, some say of only one. Upon this occasion the Managers of the Papers were seen publickly to haunt the Grand Jury Men wherever they went; and the Arguments which were used in the Grand Jury Chamber were almost word for word the same which Otis had before used in Publick.”
The Boston Gazette, 21 March 1768, p. 3, col. 1, reported that at a celebration of the repeal of the Stamp Act, one of the toasts was: “The worthy and independent Grand Jurors.”
31. Boston Gazette, 28 Jan. 1771, p. 1, cols. 1–2, p. 2, cols. 1–2; 4 Feb. 1771, p. 2, col. 3. The arguments for and against rejecting the verdict may even have taken place on 4 Feb.; the appeal bonds in these cases all bear that date, and their execution may well have followed immediately upon the court's upholding the verdicts. See SF 101964.
32. At this stage there were three cases: Longman, appellant, v. Mein; Mein, appellant, v. Longman; and Mein, appellant, v. Wright & Gill. The Feb. 1771 term of the Suffolk Superior Court commenced on 19 Feb., according to the Minute Book, which gives the following history for Longman's appeal: “4th Day. The 1st Jury half fees. 25th Day. Continued to next Term by consent.” Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–13. The other two cases were not called until the twentyfifth day, at which time they, too, were continued to the next term by consent. Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–19 and N–20. A paper inserted in Min. Bk. 91 at the March 1770 term in Benjamin Kent's hand and signed by him shows that the original plaintiffs were allowed to file new declarations “paying Costs.”
The reference to half fees suggests that the jury had been empaneled, if not sworn, and then the case continued. A statute of 1739 had provided that in such cases, the party responsible was to pay half the normal jury fee. Act of 24 June 1739, 2 A&R 938, 939. This Act, which applied to all courts in the Province, had by its terms expired in 1742. The successor legislation, however, had been limited to the Inferior Courts and Courts of General Sessions of the Peace. Act of 15 Jan. 1743, 3 A&R 28, 29. No similar legislation covering the Superior Court appears to have been enacted, which suggests that the Superior Court may have been extending the statute by analogy.
33. Hancock had not received the accounts by 24 April 1771. Hancock to Longman, 24 April 1771, MH-BA:Hancock Letter Book, in Brown, John Hancock, His Book 96. Hancock to Wright & Gill, 24 April 1771, MH-BA:Hancock Letter Book. The accounts and the supporting affidavits appear in SF 101964. Longman's account is of special interest, being a listing of every title shipped to Mein from 1765 to 1769. Ibid. Hancock, who had been ill since April, did not report their arrival until 14 Nov. 1771. Hancock to Longman, Hancock Letter Book. There was no Nov. term of the Suffolk Superior Court. Hancock refers to the action of the court on 10 Sept. adjourning the Aug. term (which had commenced 27 Aug.) to 19 Nov. and again to 26 November. Presumably a long trial list coupled with the imminence of sittings in other parts of the Province provoked the adjournment.
34. The declarations, one in Adams' hand, the other not, are in the file, both docketed as being “filed in the Superior Court at Boston November 26th 1771,” the one in Adams' hand adding “by leave of the Court.” The new language alleged that Mein owed his creditors: (1) for the reasonable worth of the goods; (2) for money had and received; (3) for money laid out and spent; and (4) for goods sold and delivered. SF 101964.
35. The respective Minute Book entries are Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–64 and C–66. Mein's appeal against Longman, which was docketed as C–65, was dismissed on the fourteenth day, its merits having been tested in Longman, appellant, v. Mein. See note 36 below. The Hancock letter appears in MH-BA:Hancock Letter Book.
36. The verdicts are in the file, SF 101964. On the back of each, in a hand not JA 's, is a calculation converting the sterling amount to lawful money (by raising it one third). This is why the Minute Book, Record, and executions give the figures as £2191 19s. o 2/3d. for Longman, and £420 4s. 8d. for Wright & Gill. Longman: Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–64; SCJ Rec. 1771, fol. 210; SF 120432. Wright & Gill: Min. Bk. 95, SCJ Suffolk, 1771, C–66; SCJ Rec. 1771, fols. 210 211; SF 129636.
37. SF 129636.
38. Hancock to Longman, 27 April 1771, MH-BA:Hancock Letter Book, printed in part in Brown, John Hancock, His Book 96.
39. SF 120432.
40. SF 129636.
41. Hancock to Longman, 7 Nov. 1772, MH-BA:Hancock Letter Book. The letter enclosed bills and orders totaling £757 2s. 4 1/2d., but it is not clear whether this all stemmed from the Mein affair or if some was for Hancock's own account. The total net from the executions was £1050 16s., lawful money, or approximately £787 2s. sterling. This approximates the amount Hancock sent, allowing for liquidation shrinkage and attorney's fees. “I have charged no commission, as I promised,” Hancock wrote Longman. “What little service I may have rendered you, if it be acceptable will give me pleasure.” JA 's account with Hancock, receipted 21 Dec. 1771 (p. lxx above), shows for the Jan. 1772 Superior Court: “To the Sum total of the Account in the Case of Longman and Mein—£18 15s. 8d. To Ditto in Wright & Gill v. Mein—£15 5s. 8d.”
44. Statement of Black and Douglas, JJ., on the Rules of Civil Procedure and the Proposed Amendments, Amendments to the Rules of Civil Procedure for the United States District Courts 31–33 (Washington, 1963).
47. “A new trial shall be granted if the Judge of Nisi Prius misdirect the Jury, because those Trials are subject to the Inspection of the Court.” Anonymous, 2 Salk. 649, 91 Eng. Rep. 552 (Q.B. 1702), per Holt, C.J.
48. See cases collected in 2 Viner, Abridgment 485.
49. Anonymous, 1 Wils. K.B. 22, 95 Eng. Rep. 470 (1743). See Angier v. Jackson, Quincy, Reports 84–85 (Mass. SCJ, 1763), which also demonstrates the distinction.
53. Francis v. Baker, 5 Bacon, Abridgment 246 (C.P. 1763).
54. Smith v. Bramston, 2 Salk. 644, 91 Eng. Rep. 543 (K.B. 1695); see also Dunkly v. Wade, 2 Salk. 653, 91 Eng. Rep. 556 (Q.B. 1707) and Sparks v. Spicer, 2 Salk. 648, 91 Eng. Rep. 550 (K.B. 1698). Another case which appears to approve a jury finding against evidence, Deerly v. Dutchess of Mazarine, 2 Salk. 646, 91 Eng. Rep. 547 (K.B. 1696), really rests on a theory of estoppel, that a woman who is reputed to be a feme sole and lives as one may not set up her coverture as a defense to payment of her debts.
55. 5 Bacon, Abridgment 244, which cites all the cases referred to in note 54 above.
56. Vaughan 135, 124 Eng. Rep. 1006 (C.P. 1670).
57. Henry E. Care, English Liberties, or The Free-Born Subject's Inheritance 123, 124–127 (London, 1703).
58. Text at note 19 89 below.
59. Vaughan at 143, 124 Eng. Rep. at 1006. For background see 1 Holdsworth, History of English Law 345. In the quotations which follow, the original emphasis has been retained.
60. Boston Gazette, 13 March 1769, p. 3, col. 1; Care; English Liberties 121.
62. Doc. II. For an example of the use of the word “direct” in this context, which does not, however, resolve the question of the binding effect of the direction, see William Torrey v. Joseph Torrey, Min. Bk. 89, SCJ Suffolk, Aug. 1769, N–59, SCJ Rec. 1769, fol. 248, an action on an account, in which JA had obtained judgment for the defendant on a sham demurrer at the July 1769 Suffolk Inferior Court. Josiah Quincy joined JA for the defendant in the Superior Court, where he again prevailed. A note from the file in the hand of Judge Trowbridge explains why: “Nothing being offered by the plaintiff in Support of his Declaration but the account in the Case Signed by Joseph Torrey The Court Were of opinion That That was not sufficient Evidence to support the plaintiff's Declaration and Directed the Jury Accordingly.” SF 101517. See JA , Docket, SCJ Suffolk, Aug. 1769, Adams Papers.
63. In Massachusetts today, the judge is not permitted to charge the jury “with respect to matters of fact.” Mass. G.L., c. 231, §81.
64. Angier v. Jackson, Quincy, Reports 84 (Mass. SCJ, 1763).
65. “At Superiour Court at Salem, Eliza Ames and her son Eames tried for poisoning his wife. They were acquitted, tho' against the mind of three in four of us Judges.” Lynde, Diary 193 (14 Nov. 1769).
67. The Censor, 14 March 1772, p. 1, col. 2.
68. Angler v. Jackson, Quincy, Reports 84–85 (1763).
69. Denny v. Williams, 5 Allen 1 (Mass. SJC, 1862).

Docno: ADMS-05-01-02-0005-0005-0002

Author: Murray, James
Author: Fleeming, John
Author: Greenleaf, Stephen
Recipient: Murray, James
Recipient: Fleeming, John
Recipient: Greenleaf, Stephen
Date: 1770-03-07
Date: 1770-03-09
Date: 1770-04-25
Date: 1770-05-04

Correspondence of James Murray, John Fleeming, and Sheriff Stephen Greenleaf1

March—May 1770

[James Murray to Stephen Greanleaf]

[salute] Sir

In order to prevent as much as may be any damage to any of the parties in the said suits or to the Officers who laid the attachments the defendants friends propose that you cause the effects attached to be appraised you chusing the appraisers for the defendant and that his friends will shew you other effects of his to the full amount of the Value appraized less perishable than those now attached on which you may lay the attachment to lie forthcoming for the judgment which shall be obtained in the said suits.
They request the favour of you that the appraisement may be as soon as possible and that Mr. John Fleeming the defendant's Attorney may have notice to attend by himself or Agent during the appraisement. I beg an answer to these proposals in writing and am in behalf of the defendant and his friends Sir Your most obedient Servant,
[signed] (Sign'd) Ja Murray

[addrLine] Stephen Greenleaf Esq. High Sheriff of said County

[Stephen Greenleaf to John Fleeming]

[salute] Sir

I yesterday saw Mr. Hancock who consents to have the Goods of Mr. Mein which were attached appraiz'd. I have therefore appointed Mr. Leverett and Mr. Edwards Booksellers to join with any one appointed by Mr. Hancock to execute that business. Mr. Hancock promised to nominate his Man this Morning and then Mr. Cudworth who made the attachment will attend them and give you notice to attend also if you please. The late disorders of the Town have a little delayed this affair which Mr. Mein's friends will excuse. Yours,
[signed] (Sign'd) S Greenleaf

[addrLine] Mr. John Fleeming

{ 217 }
[James Murray to Stephen Greanleaf]

[salute] Sir

It is with much concern for my friend Mr. Mein that I learn his Bookstore is still shut up notwithstanding the fair proposal I had the honor to make you of the 7th. of last Month, where the fault is I know not. It is not at present convenient for me to go to Town to enquire, but I have too good an opinion of you as a Gentleman and an Officer to imagine it lies at your door. I shall be much oblig'd to you for accelerating the business. I am ready to comply with my engagement. In the meantime give me leave briefly to state my friends case in confidence for the Truth of which I appeal to you. A Bookseller and printer for daring to oppose and attempting to expose a combination of several Merchants and others in the Town of Boston is hurt in his trade by many underhand practices. An attempt is made upon his life. He is driven off. Letters of procuration are obtained from his Creditors at home to a Champion of the combination. His Stock in Trade and all tools of trade are attached in his absence. His Stock is shut up from Sale. Undoubted security is offered that the Stock or the value of it should be forthcoming to satisfy the judgments that shall be obtained. That offer is rejected. A second offer is made to shew other effects of the debtors less perishable. That proposal too equitable to be flatly refused is evaded by procrastination and the Debtor thus treated in his absence is to be liable for the prime cost, accruing interest and charges of Goods which he is utterly debarr'd from selling. Is not this what was understood of Old by being compelled to make Bricks without straw. I have the honor to be respectfully Sir Your most obedient Servant,
[signed] (Sign'd Ja Murray)

[addrLine] To Stephen Greenleaf Esq. High Sheriff of Suffolk in Boston

[Stephen Greanleaf to James Murray]

[salute] Dear Sir

Your obliging Letter relative to Mr. Meins affair would have been sooner replied to had I not waited to have it in my power to have given a more pleasing Account than I am yet able to do. Various reasons may be assigned for the delays in the Appraisers. The constant attention which I have been oblig'd for Six Weeks past to pay to the Courts of Justice may serve as some part of an apology for me if any was necessary but when I assure you that nothing has been left undone by me which could be legally done in order to get Mr. Mein's Shop opened and in a course of business your goodness I am sure will lead you to excuse every thing on my part. You have been doubtless informed by Mr. Fleeming that after a considerable delay the [three?] appraisers were got together and Mr. Cudworth (whose business it { 218 } was) appointed [his?] Son to attend de Die in Diem to make out a compleat Catalogue and Inventory of the whole. Mr. Reid also attended. The appraisers finding it would take a long time <to make out a Compleat Catalogue> thought it quite unnecessary for them to be there during the Inventory being taken but agreed as they informed me that as soon as it was done they would set down the price against the several Articles. Cudworth promised to furnish them with a Copy for that purpose which I am told he delivered to Mr. Fleeming. I have since often spoke to the Appraisers but have always found a backwardness, whether owing to an influence, Business of their own or a natural disinclination I am not to say, but so it is. Mr. Leverett (one of them) has been laid up some time with the Gout. I see him this day and he hopes to be able to attend the affair the beginning of the Week when I shall push the matter having obtained a fresh promise from the other two Gentlemen to wait upon him at his own house for that purpose. Whether it won't be still delayed 'till Mr. Hancock can hear from England I know not. His constant business at Cambridge with my unwillingness to be further importunate with a Gentleman of his great superiority has really kept me from applying to him on the Subject and if I know your mind imagine you would not desire me to supplicate the favour. What I can with honor to myself and friendship to Mr. Mein get accomplished will certainly be done. Being with all possible respect Sir Your most obedient Servant,
[signed] (Sign'd) S Greenleaf

[addrLine] James Murray Esq.

1. Copies attested by John Fleeming, as attorney for John Mein, his former partner in Boston, before Justice Edmund Quincy, 29 Sept. 1770. MHi:Hancock Papers. See note 15 above.

Docno: ADMS-05-01-02-0005-0005-0003

Author: Adams, John
Date: 1771-01

Adams' Notes of Authorities1

Suffolk Inferior Court, Boston, January 1771

1771. Jany. Court. Wright and Gill vs. Mein—The Jury.
The Jury found a Verdict for the Sum sued for. Kent moved that the Verdict should be rejected. I deny'd the Power of the Court to reject it, and said if he would move for a new Tryal, that would not be without a Precedent in the Superiour Court tho it would in an inferiour Court.2
{ 219 }
13 Ed. 1. c. 30. Barrington Obs. on Stat. 103. “Item ordinatum est quod Justitiarii ad Assisas capiendas assignati, non compellant Juratores dicere precise, si sit disseisina vel non; dummodo voluerint dicere Veritatem facti, et petere Auxilium Justiciariorum; sed si sponte velint dicere quod Disseisina sit, vel non, Admittatur eorum Veredictum sub suo periculo— The latter part of this Chapter shews, that the Contest between Judges and Juries was of a very different Nature at this Time, from what it hath been of late Years. The Reason of this arises from what I have before observed, with regard to it being very common anciently to bring Attaints against Juries, and an Angry or dishonest Judge therefore drove them to the finding an improper Verdict in order to subject them to the Prosecution by Attaint; Admittatur eorum Veredictum sub suo periculo—As this Law is unrepealed, there can therefore be no doubt but a Jury may find what Verdict they please, and the Misfortune is, that they run no Risque at present of an Attaint; there is however generally that Moderation in Juries, that they seldom abuse this Liberty. This Chapter is generally called the Statute of Nisi Prius; it relates to Actions depending in Utroque Banco, without any Notice of the Court of Exchequer.”3
“If you will take upon you to determine the Law, you may do it, but you must be very sure that you determine, according to Law, for it touches your Consciences, and you Act at your Peril.” Lord Mansfield in Baldwins Case. Junius to Lord M.4
3 Black. 378. “The Jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated Question of fact and Law; and without either Special Verdict or Special { 220 } Case may find a Verdict absolutely, either for Plaintiff or Defendant. Vid. page [ . . . ].”5
5. Bac. Abr. 285. 286. relating to general and Special Verdicts.6
1. Inst. 228. a. Littleton §368. “Also in such Case where the Enquest may give their Verdict at large, if they will take upon them the Knowledge of the Law, upon the Matter, they may give their Verdict generally, as is put in their Charge; as in the Case aforesaid they may well say, that the Lessor did not disseise the Lessee, if they will &c.”7 Note. “Altho the Jurie, if they will take upon them (as Littleton here saith) the Knowledge of the Law, may give a general Verdict, yet it is dangerous for them so to do, for if they mistake the Law, they run into the Danger of an Attaint, therefore to find the Special Matter, is the safest Way, where the Case is doubtfull.”8
4. Rep. 53. b. Rawlins Case. 29–30. Eliz. B.R. “And in such Case the Jury ought, if they will, not find the Special matter, and leave it to the Judgment of the Law, [to] find it at their Peril according to Law.”9
2. Ld. Ray. 1493. Oneby's Case. “The Court are Judges of the Malice and not the Jury.” Page 1494. “Upon the Tryal of the Indictment the Judge directs the Jury thus 'if you believe such and such Witnesses, who have sworn such and such Facts, the Killing the deceased was with Malice prepense express, or it was with Malice implied, and then you ought to find the Prisoner guilty of Murder; but if you do not believe those Witnesses, then you ought to find him guilty of Manslaughter only.'”10
Foster. 255. “In every Case where the Point turneth upon the Question, whether the Homicide was committed willfully and maliciously, or under Circumstances justifying, Excusing, or alleviating; the Matter of Fact, vizt., whether the Facts alledged by Way of Justification, Excuse, or Alleviation are true, is the proper and only Province of the Jury. But whether upon a Supposition of the Truth of Facts such Homicide be justified, excused, or alleviated must be submitted to the Judgment of the Court. For the Construction the Law putteth { 221 } upon Facts stated and agreed or found by a Jury is, in this, as in all other Cases, undoubtedly the Proper Province of the Court. In Cases of Doubt and real Difficulty it is commonly recommended to the Jury to state Facts and Circumstances in a Special Verdict. But when the Law is clear, the Jury under the Direction of the Court in Point of Law, Matters of Fact being still left to their Determination, may, and if they are well advised always will find a general Verdict conformable to such Direction. Ad Quaestionem Juris non respondent Juratores.”11
[1] Burrows 393. Bright Exr. vs. Eynon.12 Lord Mansfield, “Tryals by Jury, in civil Causes could not subsist now, without a Power somewhere, to grant new Tryals, &c. &c.13 If an erroneous Judgment be given in Point of Law, there are many Ways to review and set it right. Where a Court judges of Fact upon Depositions in Writing, their Sentence or Decree may, many Ways, be reviewed and set right.
“But a general Verdict can only be set right by a new Tryal,” &c.14 “The Writ of Attaint is now a mere Sound, in every Case: in many, it does not pretend to be a Remedy.”
Vid. page 3 of this Statute.15
Holt. Rep. 702. Argent vs. Darrell. Holt. “We must not make ourselves absolute Judges of Law and fact too.”16
1 Tr. pr. Pais 28317 Littleton quoted, and then a Note. “The Court cannot refuse a general Verdict, if the Jury will find it; it was so held before Justice Wyndham, Lent Assizes 1681 in Verdons Case at Cambridge.“
Whether a Jury may give a Verdict on their own Knowledge, or on the Knowledge of any one of them, without being sworn as Witnesses? { 222 } Vid. 5. Bac. Abr. 292. Tit. Verdicts.18 Vaughan 147. Bushells Case.19 1. Salk. 405.20 Farr. 2.21 1. Sid. 133. Fitz James vs. Moys.22 Cro. Eliz. 616. Graves vs. Short.23 Obs. on Stat. 7424
Holt 701. 2. Ash vs. Ash. Jury shy of giving Reasons “thinking they have an absolute Despotic Power, but I did recti[fy that] Mistake for they are to [try] Causes with the Assistance of the Judges; and ought to give Reasons when required, that if they go upon any mistake they may be set right.”25
Holt 703. 704. Gay vs. Cross. A general Verdict, and Jury would give no Reason for it. Holt said, “he never had known the like, and that he would have but little regard for the Verdict of a Jury on a Tryal that would not at a Judges desire declare the Reasons which had induced them to give it; for as the Judges of the Courts do publickly declare the Reasons of their Judgments and thereby expose themselves to the Censure of all that be learned in the Law; yet [there is] no Law obliges them to it, but it is for public Satisfaction. So the Jury ought [likewise]” when requir'd by the Court to make known the Reasons but the Court would not grant a new trial tho the Judges were very much dissatisfy'd with the Jury. It was a trial at Bar.26
{ 222 } { 222 } { 223 }
Attaint. Cun. Diet. Tit. Attaint. In what cases an Attaint lies.27 Gilb. H.C.B. 128.28
Obs. on Stat. 74.29 Stat. West. 1st. 3. E. 1. A.D. 1272, chap. 38.30 Le Roi (de son office) donera31 Atteint sur enquestes en pleint de terre, ou de franchise, ou de chose qui touche frank Tenement.
[It is generally agreed, that] No Prosecution by Attaint hath been carried on against a Jury for the last 300 Years.” (Note this. Lord Coke lived 150 Years ago, so that the Attaint had been disused 150 Years when he wrote.) “This arises partly from the more modern Practice of granting new Tryals, and partly from the great Difficulty there is in convicting, as the Jury may give their Verdict upon what is known to themselves, though it hath not appeared in Evidence during the Course of the Tryal. It is indeed said, that a Juror having such private Knowledge of a Fact should disclose it, in open Court; but what signifies the mere Advice of a Judge, which cannot be inforced?”32
“It may [therefore] deserve Consideration, whether this method of Punishment, being now totally disused may not have occasioned a most material Alteration, and Deviation from the Principles, upon which Juries were originally instituted.33
“The Attaint [was trial by twenty-four jurors, of double the substance with the first jury; and it is to be observed that it] lay only in civil Cases, either by common Law or by this Statute. The Reason is, { 224 } a34 strong Presumption, that no Jury would condemn a criminal contrary to the Evidence: and that it would be inconsistent with the Principles of Liberty to permit the Crown [(when it might intend oppression)] to call in Question a Verdict of Acquittal.35 Since [that glorious aera] the Revolution, [the] Kings [of England] have [only] prosecuted as Patriae Patrise [when punishment hath been necessary for the safety of the whole]; but when we look into Tryals during preceeding Reigns, we cannot but revere the wise and noble Constitution established by our Ancestors against the vindictive Prosecution of a Plantaganet and36 a Stewart.”37
Common Law.
Black. 63. bott. “[But, with us at present,] The Monuments and Evidences of our legal Customs, are contained in the Records of the several Courts of Justice, in Books of Reports, and judicial Decisions and in the Treatises of learned Sages of the Profession, preserved and handed down to us, from the Times of highest antiquity.”38 Page 73. “[And thus much for] the 1st. ground and chief corner Stone of the Laws of England, [which] is, general immemorial Custom, or common Law from Time to Time declared in the Decisions of the Courts of Justice; which Decisions are preserved among our public Records, explained in our Reports and digested for general Use, in the Authoritative Writings of the venerable Sages of the Law.”39
Question 1st. “Does the Opinion mean to declare, that upon the general Issue of Not Guilty, in the Case of a seditious Libel, the Jury have no Right by Law to examine the Innocence or Criminality of the Paper, if they think fit, and to form their Verdict with such Examination?
“2. Does the Opinion mean to declare, that in the Case above mentioned, when the Jury have delivered in their Verdict, Guilty, that this Verdict has found the Fact only, and not the Law?
{ 225 }
“3. It is to be understood by this Opinion, that if the Jury come to the Bar, and say, that they find the printing and publishing, but that the Paper is no Libel, that in that Case the Jury have found the Defendant, guilty, generally and that the Verdict must be so entered up?
“4. Whether the Opinion means to say, that if the Judge, after giving his Opinion of the Innocence or Criminality of the Paper, should leave the Consideration of that matter, together with the printing and publishing, to the Jury, such a Direction would be contrary to Law?
“5. I beg Leave to ask, whether dead and living Judges, then absent, did declare their Opinions in open Court, and whether the noble L—d has any Note of such opinions?
“6. Whether they declared such Opinions, after solemn Arguments, or upon any Point judicially before them?”
Questions put by Lord C——n to Lord M——d in answer to a Paper his Lordship left with the Clerk of the Room the day before. M——d refused to answer these Questions, saying he would not answer interrogatories. Newspaper.40
4. Blackstone 35441[But] An open Verdict may be either general, guilty, or not guilty; or Special, setting forth all the Circumstances of the Case, and praying the Judgment of the Court, whether for Instance, on the Facts stated, it be murder, Manslaughter, or no Crime at all. This is where they doubt the matter of Law, and therefore chuse to leave it to the determination of the Court; though they have an unquestionable Right of determining upon all the Circumstances, and finding a general Verdict, if they think proper so to hazard a Breach of their Oaths: and, if their Verdict be notoriously wrong, they may be punished and the Verdict set Aside by Attaint at the Suit of the King; but not at the Suit of the Prisoner, 2. H.P.C. 310.42 But the Practice, heretofore in Use of fining, imprisoning, or otherwise punishing Juries merely at the discretion of the Court, for finding their { 226 } Verdict, contrary to the direction of the Judge, was arbitrary, unconstitutional, and illegal: and is treated as such by Sir Thomas Smith, 200 Years ago; who 'accounted such doings to be very violent, tyrannical, and contrary to the Liberty and Custom of the Realm of England.'43 For as Sir Mathew Hale well observes 2. H.P.C. 31344 'it would be a most unhappy Case, for the Judge himself, if the Prisoners Fate depended upon his Directions: unhappy also for the Prisoner; for, if the Judges opinion must rule the Verdict, the Tryal by Jury would be useless.' Yet in many Instances, 1 Lev. 9,45 T. Jones 163,46 St. tr. 10. 416,47 where contrary to Evidence the Jury have found the Prisoner guilty, their Verdict hath been mercifully set aside, and a new Tryal granted by the Court of Kings Bench: for in such Case as hath been said, it cannot be set right by Attaint. But there hath yet been no Instance of granting a new Tryal, where the Prisoner was acquitted upon the first. 2. Hawk. 442.”48
4. Black. 431.49 The establishment of New Tryals, with the abolition of feodal Tenures, and the Act of Navigation, came out of the Times of Confusion.
5. Rep. 104.50 Bakers Case. “Upon Evidence in an Ejectione firmae between Middleton and Baker, it was resolved by the whole Court, that if the Plantiff in Evidence sheweth any matter in Writing, or of Record, or any Sentence in the ecclesiastical Court, upon which a Question in Law doth arise, and the Defendant offereth to demurr in Law upon it, the Plantiff cannot refuse to join in Demurrer, but he { 227 } ought to join in the Demurrer or waive his Evidence. So if the Plantiff produceth Witnesses to prove any matter in Fact, upon which a Question in Law doth arise, if the Defendant admitteth their Testimony to be true, there also the Defendant may demurr in Law upon it, but then he ought to admit the Evidence given by the Plantiff to be true; and the Reason hereof is, that matter in Law shall not be put to Laymen. So may the Plantiff demurr upon the Defendants Evidence, mutatis mutandis; But if Evidence be given for the King, in Information or other suit, and the Defendant offer to demurr upon it, the Kings Council are not tied to join in Demurrer, but in such Case the Court ought to direct the Jury to find the Special matter, and upon that they shall adjudge the Law as it appeareth 34. H. 8. Dyer 53.51 But that is by the Kings Prerogative who also may waive a Demurrer, and take issue at his Pleasure quod Nota.”
Mem. every Thing that is said by the Court to the Jury, is uniformly styled in our Books a Direction. So the Court give a Charge to the grand Jury to present a particular offence, &c. But the Question is whether the Jury are bound, in Point of Conscience, or of Law, to observe that Direction and find according to it? Are they subject to any Penalty, or Fine, or Imprisonment, or corporal Punishment, if they find contrary to that Direction? No Man will say that they are.52
Question. Whether Ind[ebitatus] Ass[umpsit] may be maintained for “Sundries” or “Sundry Goods Wares and Merchandizes,” or “sundry Goods Chattells and Articles,” without any Account or Schedule of Particulars annexed to the Writ, or enumerated in the Declaration. Saunders 69. Peacock vs. Bell & Kendal, 70, 71.
“Ind. fuisset pred. Ri. and Ben. in £39 L.M.” “Pro diversis Merchandizis et Mercimoniis, per pred. Ri. and Ben. eidem Johanni Peacock, ad Specialem instanciam et Requisitionem ipsius Jo. Peacock, ante Tempus i[llud] vendit et deliberat. Et sic &c.”53
{ 228 }
2. Instructor cler. 161, 2. “If one be indebted unto another upon simple Contract, and the Plantiff sue for it upon a Promise to pay it, he must shew how the first Debt grew due and for what; as upon an Ind[ebitatus] Ass[umpsit] where the Debt is the Consideration of the Promise.”54
Sed Vid. [ . . . ] 55 is not said how particular you must be. See 2. Ins. Cler. 157 a Declaration for diverse Merchandizes sold and deliverd.56
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185. These notes were written on several sheets which may once have formed a gathering but are now loose and worn. JA partly paged them, but the order of the material, written at different times and hurriedly, is not always clear.
2. In the margin appears the following: “See, however, The several Titles of Mistrial, New Tryal &c. Verdict may be set aside and a venire facias de novo [new jury, that is, new trial] awarded.” The precise treatise or treatises to which JA here refers have not been identified. See, however, 5 Bacon, Abridgment 240, tit. Trial: “A new Trial ought not to be granted by an inferior Court, and if the Judge thereof does grant one a Mandamus lies for a Procedendo ad Judicium upon the first Verdict.”
3. Barrington, Observations upon the Statutes 103–104. Quotation marks supplied. The Latin expression is from the Statute of Westminster II, 13 Edw. 1, c. 30 (1285): “And also It is Ordained, That the Justices assigned to take Assises shall not compel the Jurors to say precisely whether it be Disseisin or not, so that they do shew the Truth of the Deed [fact] and require Aid of the Justices; but if they of their own head will say, that it is [or is not] Disseisin, their Verdict shall be admitted at their own Peril.” 1 Statutes of the Realm. 86 (London, 1810).
4. This paragraph is written in the margin. Quotation marks supplied. Rex v. Baldwin (K.B. 1770) was apparently never reported. See 20 State Trials 922; Frederick Siebert, Freedom of the Press in England 387–388 (Urbana, 111., 1952). The quotation here is taken, with only pronominal changes, from Junius' letter to Lord Mansfield, 14 Nov. 1770 (No. XLI), 2 Letters of Junius 159, 174–175 (London, ed. Woodfall, 1814).
5. 3 Blackstone, Commentaries *378. Quotation marks supplied. This paragraph is also written in the margin.
6. 5 Bacon, Abridgment 285–287. This collects the authorities, many of which JA cites or quotes later in the present minute.
7. Coke, Littleton 228a. Quotation marks supplied.
8. Coke, Littleton 228a. The note is Coke's. Quotation marks supplied.
9. Rawlyn's Case, 4 Co. Rep. 52a, 53b, 76 Eng. Rep. 1007 (K.B. 1585). Quotation marks supplied. JA has erroneously inserted a comma between “they will” and “not find”; also “it” between “find” and “at their Peril.”
10. Rex v. Oneby, 2 Ld. Raym. 1485, 1493–1494, 92 Eng. Rep. 465, 470–471 (K.B. 1727). Quotation marks in part supplied.
11. Foster, Crown Cases 255–256 (1762). Quotation marks supplied. The Latin phrase means, roughly: “The jurors do not answer questions of law.”
12. Bright, Executor v. Eynon, 1 Burr. 390, 393, 97 Eng. Rep. 365, 366 (K.B. 1757). Quotation marks supplied. Action on note to testatrix; defense: discharge in defendant's hand, signed by testatrix; reply: forgery. No evidence of the forgery being introduced, the trial judge (Lord Mansfield) left it to the jury to say whether there had been (1) forgery or (2) fraud. The jury found for the defendant. On motion for new trial, held, rule to set aside verdict made absolute, because by “the Evidence on both Sides, the Transaction to get her Hand to this Writing must have been fraudulent.” 1 Burr, at 396, 97 Eng. Rep. at 368.
13. The “&c.'s” do not appear in the printed text.
14. JA omits: “which is no more than having the Cause more deliberately considered by another Jury; when there is a reasonable Doubt, or perhaps a Certainty, that Justice has not been done.”
15. Marginal note. The reference is obscure.
16. Argent v. Sir Marmaduke Darrell, Holt K.B. 702, 90 Eng. Rep. 1288 (1699). Quotation marks supplied. This paragraph appears in the margin of the MS .
17. Duncombe, Trials Per Pais 283 (1766). The quotation from Littleton appears in the JA minutes, at note 7 77 above.
18. 5 Bacon, Abridgment 292. The general subject is “In What Cases a Verdict is Bad Upon the Account of a Misdemeanor in One or More of the Jurors”; and at the page cited Bacon collects authorities (including those in the next four footnotes) on the question whether the jury's verdict must rest solely on evidence adduced in court.
19. Bushell's Case, Vaughan 135, 147, 124 Eng. Rep. 1006, 1012 (C.P. 1670): “[The jurors] may have Evidence from their own personal knowledge, by which they may be assur'd, and sometimes are, that what is depos'd in Court, is absolutely false. ... The jury may know the Witnesses to be stigmatiz'd and infamous, which may be unknown to the parties, and consequently to the Court.” For a discussion of Bushell's Case see text at notes 56–60 above.
20. Anonymous, 1 Salk. 405, 91 Eng. Rep. 351 (K.B. 1696): “If a jury give a Verdict on their own Knowledge, they ought to tell the Court so, that they may be sworn as Witnesses; and the fair Way is to tell the Court before they are sworn, that they have evidence to give.”
21. Note, Farr. (7 Mod.) 2, 87 Eng. Rep. 1056 (Q.B. 1702), a paraphrase of the case in note 90 20 above.
22. Fitz-James v. Moys, 1 Sid. 133, 87 Eng. Rep. 1014 (K.B. 1663): One of the jury, having heard the evidence, was himself sworn as a witness, testified, and yet continued on the jury.
23. Graves v. Short, Cro. Eliz. 616, 78 Eng. Rep. 857 (Q.B. 1598). No error for juror to show his fellows a paper not otherwise in evidence but favoring one of the parties. The case is cited in 5 Bacon, Abridgment at 291.
25. Ash v. Lady Ash, Holt K.B. 701–702, 90 Eng. Rep. 1287 (1696). Quotation marks and words JA omitted are supplied. This paragraph appears in the margin of the MS and is partly worn away.
26. Gay v. Cross, Holt K.B. 703, 90 Eng. Rep. 1288 (1702). Quotation marks and words JA omitted are supplied. This paragraph was inserted in the margin and between paragraphs written earlier in the MS .
27. Cunningham, Law Dictionary , tit. Attaint: “[S]o this is the only curb that the law has put in the hands of the judges to restrain jurors from giving corrupt verdicts.”
28. Gilbert, Common Pleas 128: “Now the Jury may be attainted two Ways; First, where they find contrary to Evidence, 2dly, where they find out of the Compass of the Allegata; but to attaint them for finding contrary to Evidence is not easy, because they may have Evidence of their own Conuzance of the Matter by them, or they may find upon Distrust of the Witnesses on their own proper Knowledge.”
29. Barrington, Observations upon the Statutes 74. Quotation marks are supplied throughout the passages from Barrington, text at notes 32, 33, and 37 102, 103, and 107 , below.
30. Thus in MS and Barrington, Observations upon the Statutes 58. The correct date is 1275, 1 Statutes of the Realm 36 (1810). Statute of Westminster II, 3 Edw. 1, c. 38: “[T]he King, of his office, shall from henceforth grant Attaints upon Enquests in Plea of Land, or of Freehold, or of anything touching Freehold, when it shall seem to him necessary.”
31. Thus in MS . “Durra” in Barrington, Observations upon the Statutes 74, and in the statute. Barrington, Observations upon the Statutes 74 note, says: “De son office should be translated of right ...; durra, which follows, is put corruptly for donera.”
32. Barrington, Observations upon the Statutes 74. Quotation marks and words JA omitted are supplied. JA omits Barrington's footnote: “It should seem to have been understood in the time of Henry the Third, to have been the duty of the judge to control the verdict of the jury,” citing Bracton, lib. iv, c. 19.
34. Thus in MS . The text reads: “The reason of which seems to have been grounded upon the strong Presumption.” Barrington, Observations upon the Statutes
35. Beside the words in brackets, JA omits: “It is for the same reason when a crime is prosecuted by appeal (the remedy of a private person) and not by indictment (which is the suit of the crown), that there is no intervention of a grand jury to find the bill. Happily for this country ...”
36. Thus in MS ; “or” in Barrington.
37. Barrington, Observations upon the Statutes 75. Words JA omitted are supplied.
38. 1 Blackstone, Commentaries *63–64. Closing quotation marks supplied.
39. 1 Blackstone, Commentaries *73. Closing quotation marks supplied.
40. Quotation marks supplied. Lord Mansfield's conduct of the trial of Woodfall for the publication of the Junius letters having been the subject of Parliamentary debate, Mansfield deposited with the Clerk of the House a copy of his charge to the jury in that case. The next day, 11 Dec. 1770, Lord Camden propounded these questions, which Mansfield never answered. 16 Parliamentary History 1312–1322 (London, 1813); C. H. S. Fifoot, Lord Mansfield 44–46 (Oxford, 1936); James Stephen, History of the Criminal Law of England, 2:325–326 (London, 1883). Camden was a legal hero to the patriots, Quincy on one occasion referring to him as “undoubtedly the first common lawyer in England.” Josiah Quincy, Josiah Quincy, Jr. 272. Which “Newspaper” JA took these “Questions” from is not known.
41. 4 Blackstone, Commentaries *354–355. Quotation marks in part supplied.
42. 2 Hale, Pleas of the Crown 310, discusses the means of punishing a jury for finding against evidence.
43. Thomas Smith, Commonwealth of England and Manner of Government Thereof 203 (London, 1640).
44. 2 Hale, Pleas of the Crown 313: “And to say the truth, it were the most unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence of the prisoner, and if the judge's opinion must rule the matter of fact, the trial by jury would be useless.”
45. Rex v. Read, 1 Lev. 9, 83 Eng. Rep. 271 (K.B. 1661): No new trial in the event of an acquittal.
46. Rex v. Smith, T. Jones 163, 84 Eng. Rep. 1197 (K.B. 1682): Verdict of guilty, against the judge's direction, set aside and new trial awarded.
47. Ashley v. Simons the Jew, 10 State Trials 411 (K.B. 1752); reported also from MS sub nom. Rex v. Simonds, 5 Bacon, Abridgment 243. The facts appear in No. 59, note 180 7 .
48. 2 Hawkins, Pleas of the Crown 442: “[I]t hath been adjudged, That if the Jury acquit a Prisoner of an Indictment of Felony against manifest Evidence, the Court may, before the Verdict is recorded, but not after, order them to go out again and reconsider the Matter; but this is by many thought hard, and seems not of late Years to have been so frequently practiced as formerly.”
50. Baker's Case, 5 Co. Rep. 104a, 77 Eng. Rep. 216 (Q.B. 1600). Quotation marks supplied.
51. Rex v. Muschampt, Dyer 52b, 53b, 73 Eng. Rep. 116 (Exch. 1543): Information for maintenance and buying of pretended titles. “[T]he Court charged the jury to enquire of the whole matter, and to find it, and upon such finding the Court would adjudge upon the law.”
52. The state of the MS suggests that this paragraph was written at a later time than the one which precedes it. The observations are apparently original with JA .
53. Peacock v. Bell and Kendal, 1 Saund. 69, 71, 85 Eng. Rep. 81, 82 (K.B. 1667). Quotation marks supplied. “[Peacock] was indebted to the said Richard [Bell] and Benjamin [Kendal] for £39 lawful money ... for divers merchandises and wares which the said Richard and Benjamin had before that time sold and delivered to the same John Peacock at his special instance and request.” There is dictum in the report that the declaration as here set out was faulty for failure to allege where the goods had been sold and delivered.
54. Gardiner, Instructor Clericalis 161–162. Quotation marks supplied.
55. This is a marginal note, with a tear in the MS .
56. Gardiner, Instructor Clericalis 157. The declaration there set out does not allege the place where the goods were delivered.

Docno: ADMS-05-01-02-0005-0005-0004

Author: Adams, John
Date: 1771-02-12

Adams' Diary Notes on the Right of Juries1

1771. Feby. 12.

At a Time, when the Barriers against Popery, erected by our Ancestors, are suffered to be destroyed, to the hazard even of the Protestant Religion: When the system of the civil Law which has for so many Ages and Centuries, been withstood by the People of England, is permitted to become fashionable: When so many Innovations are introduced, to the Injury of our Constitution of civil Government: it is not surprizing that the great Securities of the People, should be invaded, and their fundamental Rights, drawn into Question. While the People of all the other great Kingdoms in Europe, have been insidiously deprived of their Liberties, it is not unnatural to expect that such as are interested to introduce Arbitrary Government should see with Envy, Detestation and Malice, the People of the British Empire, by their Sagacity and Valour defending theirs, to the present Times.
There is nothing to distinguish the Government of Great Britain, from that [of] France, or of Spain, but the Part which the People are by the Constitution appointed to take, in the passing and Execution of Laws. Of the Legislature, the People constitute one essential Branch–And while they hold this Power, unlimited, and exercise it frequently, as they ought, no Law can be made and continue long in Force that is inconvenient, hurtful, or disagreable to the Mass of the society. No Wonder then, that attempts are made, to deprive the Freeholders of America and of the County of Middlesex, of this troublesome Power, so dangerous to Tyrants and so disagreable to all who { 229 } have Vanity enough to call themselves the better Sort.–In the Administration of Justice too, the People have an important Share. Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People.
As the Constitution requires, that, the popular Branch of the Legislature, should have an absolute Check so as to put a peremptory Negative upon every Act of the Government, it requires that the common People should have as compleat a Controul, as decisive a Negative, in every Judgment of a Court of Judicature. No Wonder then that the same restless Ambition, of aspiring Minds, which is endeavouring to lessen or destroy the Power of the People in Legislation, should attempt to lessen or destroy it, in the Execution of Lawes. The Rights of Juries and of Elections, were never attacked singly in all the English History. The same Passions which have disliked one have detested the other, and both have always been exploded, mutilated or undermined together.
The british Empire has been much allarmed, of late Years, with Doctrines concerning Juries, their Powers and Duties, which have been said in Printed Papers and Pamphlets to have been delivered from the highest Trybunals of Justice. Whether these Accusations are just or not, it is certain that many Persons are misguided and deluded by them, to such a degree, that we often hear in Conversation Doctrines advanced for Law, which if true, would render Juries a mere Ostentation and Pagentry and the Court absolute Judges of Law and fact. It cannot therefore be an unseasonable Speculation to examine into the real Powers and Duties of Juries, both in Civil and Criminal Cases, and to discover the important Boundary between the Power of the Court and that of the Jury, both in Points of Law and of Fact.
Every intelligent Man will confess that Cases frequently occur, in which it would be very difficult for a Jury to determine the Question of Law. Long Chains of intricate Conveyances; obscure, perplext and embarrassed Clauses in Writings: Researches into remote Antiquity, for Statutes, Records, Histories, judicial Decisions, which are frequently found in foreign Languages, as Latin and French, which may be all necessary to be considered, would confound a common Jury and a decision by them would be no better than a Decision by Lott. And indeed Juries are so sensible of this and of the great Advantages the Judges have [to] determine such Questions, that, as the Law has given them the Liberty of finding the facts specially and { 230 } praying the Advice of the Court in the Matter of Law, they very seldom neglect to do it when recommended to them, or when in any doubt of the Law. But it will by no Means follow from thence, that they are under any legal, or moral or divine Obligation to find a Special Verdict where they themselves are in no doubt of the Law.
The Oath of a Juror in England, is to determine Causes “according to your Evidence”–In this Province “according to Law and the Evidence given you.” It will be readily agreed that the Words of the Oath at Home, imply all that is expressed by the Words of the Oath here. And whenever a general Verdict is found, it assuredly determines both the Fact and the Law.
It was never yet disputed, or doubted, that a general Verdict, given under the Direction of the Court in Point of Law, was a legal Determination of the Issue. Therefore the Jury have a Power of deciding an Issue upon a general Verdict. And if they have, is it not an Absurdity to suppose that the Law would oblige them to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment and Conscience.
[It] has already been admitted to be most advisable for the Jury to find a Special Verdict where they are in doubt of the Law. But, this is not often the Case–1000 Cases occur in which the Jury would have no doubt of the Law, to one, in which they would be at a Loss. The general Rules of Law and common Regulations of Society, under which ordinary Transactions arrange themselves, are well enough known to ordinary Jurors. The great Principles of the Constitution, are intimately known, they are sensibly felt by every Briton—it is scarcely extravagant to say, they are drawn in and imbibed with the Nurses Milk and first Air.
Now should the Melancholly Case arise, that the Judges should give their Opinions to the Jury, against one of these fundamental Principles, is a Juror obliged to give his Verdict generally according to this Direction, or even to find the fact specially and submit the Law to the Court. Every Man of any feeling or Conscience will answer, no. It is not only his right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the Court.
A religious Case might be put of a Direction against a divine Law.
The English Law obliges no Man to decide a Cause upon Oath against his own Judgment, nor does it oblige any Man to take any Opinion upon Trust, or to pin his faith on the sieve of any mere Man.
1. 2 JA, Diary and Autobiography 3–5. As to the genesis of this material, see id. at 5 note.