Browsing: Legal Papers of John Adams, Volume 1

This suit, as Adams noted in his diary, “arose from Ambition”1 and (apparently) from competition for the favors of the voters of Sandwich. Rowland Cotton, the town's representative in the General Court since 1758, had lost his seat to Stephen Nye in 1761, but had then obtained the sinecure of Clerk of the House of Representatives.2

In February 1763, Nye presented a petition to the General Court on behalf of “Jabez Joseph, Indian Man of Plymouth Setting forth That he served as a Soldier ... at Crown Point in 1761, and that in his way home he froze both his feet, and lost part of both, so that he is like to be a Cripple all his days, And Praying an Allowance.” The court voted a total of £4 to be paid to Nye “to be by him delivered to Mr. Elisha Tupper for the use of” Joseph. In addition Tupper, who had apparently been Joseph's master, was to receive £4 annually for three years, if Joseph lived so long, for Joseph's use.3

In the summer of 1763, Cotton appears to have “presented a Memorial to the General Court ... suggesting ... a mistake” in the grant of the pension because of the court's “supposing the said Jabez to be a legally mustered Soldier when probibelly he was not so.”4 The court then appointed John Murray of Rutland and Thomas Foster of Plymouth to investigate the matter. Nye told the committee that Cotton had obtained an order from Joseph's master to receive Joseph's wages from the Province Treasurer. When Cotton denied this, Nye said that he had seen in the Treasurer's office not only the order but also Cotton's receipt for the wages. The Treasurer, however, supported Cotton, and certified to the committee that Nye's declaration was “altogether false and Groundless.”5 The committee then reported in Cotton's favor.

According to depositions in the file, Nye accused Cotton of reading the committee's report to a group in a Boston or Cambridge barbershop and then taking it to the General Court where the Speaker read it aloud. Early in January 1767 Cotton invited Nye to call a general town meeting, “that the Inhabitants thereof might judge of the Difference between Them.” Nye failed to accept the invitation, and on January 12, before a group of townsmen at Nathaniel Bassett's blacksmith shop in Sandwich, told Cotton: “That is a false, lying paper which you made yourself and forged the Committee's name to it.”6

Cotton, represented by Paine, thereupon commenced an action for slander in the Barnstable Inferior Court which Adams defended on Nye's behalf. The cause was tried on 7 April 1767, and after the jury found for Cotton in the sum of twenty shillings and costs,7 both parties appealed to the Barnstable Superior Court.

There, on 14 May 1767, the case came on anew. After trial, the jury brought in a general verdict for Cotton for £7 and costs, and Nye's motion in arrest of judgment, argued at Boston in August 1767, was overruled.8 Admitting that Nye had uttered the words, Adams had sought to argue that they were not actionable. The notes set out below suggest that his point was technical: the act of which Nye accused Cotton not being criminal, plaintiff could not recover without a showing of special (i.e. provable) damages. It is not clear whether this argument, which found considerable support in the authorities which Adams collected,9 was addressed to the court as well as to the jury. Adams' diary entry (Document VII) shows that he attempted vainly to argue the question to the jury. His minutes (Document V) show that the court unanimously upheld the actionability of the words. It cannot be determined whether the judges gave this ruling as part of the usual seriatim charge; whether they intended it as a determination binding the jury, as in the English criminal libel practice; or whether the ruling was made upon the motion in arrest of judgment.10

There are four separate Adams minutes or notes for this case (Documents II, IV, V, VI). Their exact dating is uncertain, but the present arrangement is supported by Paine's dated minutes of the Inferior Court proceedings (Document III).

Poor Nye of Sandwich, seems dejected. I should suspect by his Concern that Cotton gained Ground vs. him. He seems to be hipp'd.2 It fretts and worries and mortifies him. He cant sleep a Nights. His Health is infirm.

Cotton is insane, wild. His Proposal of giving his House and Farm at Sandwich to the Province is a Proof of Insanity.... His sitting down at the Council Table with his Hat on and Calling for his Deed and a Justice to acknowledge it when the Council was sitting.

Cottons Method of Getting Papers Signed by Members, in order to demolish poor Nye is new. The Certificate from Murray and Foster if genuine is a mean, scandalous Thing. It was mean in Murray and Foster to sign that Paper. For one Rep[resentative] to give a Constituent a Weapon to demolish another Rep., is ungentlemanlike.

Hovey.2 Certificate.3

Benja. Fessenden. Bassetts Shop. Lying Papers. Set their Names to it.

D [eaco] n. Forster. Signd the Certificate,4 &c.

Dr. Smith. Cotton said in Barbers Shop that he had a Certificate from Com[mittee] to prove Nye a Lyar. Understood that it was agreed5 and to be destroyd.

John Jennings. False lying Paper, which you made yourself, and forgd their Names to it.6

Prince Tupper. A False lying Paper. Had stolen it or forgd it. Might as well do it as to put Turners Name to it. Annual Meeting, had been reading several Papers.

Nathl. Bassett. Cotton said he had read a Certificate about Nyes lying.7

Mathias Ellis. Whether he stole that, or made another just like it he could not tell.8

Nehemiah Webb. Made out of his own Head. Had stolen it or forged it, as he did some other. Mr. Spooners Name.

Paine. Wherever Words tend to the slander of a Mans Reputation I shall be for maintaining an Action to preserve the Peace.9

Court of Law a substitute in the Place of Passion.

Defendant

It may be part of a great plan to get Representat[ion over?] that Paper.

It is true he made the Story for he drew it up.

Plaintiff put in memorial to cross Col. Cotton.2

The Committee had no business to sign said Certificate.

The design of the Paper was to fix a Lye upon Nye and was a parlimentary paper.

“A lying Paper,” no Slander.

This was not Forgery. 485 Bac. 4.3 HPC 1854

The House [of] Repres[entatives] would have votd he was crazy. Cotton's Character is not so imaculate.

4. Bac. 485. “All Words are actionable which import the Charge of such a Forgery, as is within any of the statutes against this offence.”2

“An action also lies for charging a Man with Forgery, although it is not said to be of such a Record, Deed, Writing, or Instrument as is within any of the statutes; for Forgery is an offence indictable and punishable at common Law.”3

“But no Action lies for saying of J.S. he hath forged the Hand of J.N., these Words being too general; for unless it had been said to what Deed or Instrument, this is no offence under any of the statutes or at Common Law.”4

1. Roll. Abr. 66. Pudsey and Pudsey.5 1. Roll. Abr. 65. Garbritt and Bell.6 3. Leon. 231.7 1 Roll. Abr. 65 pl. 4.8

3. Leonard. 231. Hill. 31. Eliz.9 “An Action upon the Case was brought for these Words vizt. Thou hast forged my Hand: It was holden by Gawdy and Wray Justices that such Words are not actionable, because too general, without shewing to what Writing. And by Wray, these Words Scil. Thou art a Forger, are not actionable because it is not to what Thing he was a Forger. Godfrey, Between Warner and Cropwell Scil. She went about to kill me; an Action lyeth for them: for if they were true, she should be bounden to the good Behaviour.

“And by Gawdy, for these Words scil. 'Thou hast forged a Writing': {p. 146} They are not actionable because they are uncertain Words; which Wray concessitt:10 But if the Declaration had been more certain, as “innuendo,11 such a Deed,” then it had been good enough.

“Fuller, a Case was betwixt Brook and Doughty, Scil.; He hath Counterfeited my Lord of Leicesters Hand unto a Letter against the Bishop of London; for the which he was committed to the Marshalsea for it. And it was holden, not Actionable. And afterwards in the principal Case, Judgment was, Nihil capiat Per Billam.”12

Hawk. P.C. 1st. Part. chap. 70. Page. 184. §8. “and first it is clear, that one may be guilty thereof by the Common Law, by counterfeiting a matter of Record.” §9. “any other authentic matter of a public Nature,” &c.13

§11. “As to other Writings of an inferiour Nature, [ . . . ] the Counterfeiting them is not [properly] forgery,” rather Cheats.14

§12. Forgery by Statute. §13.15

Cheats.

Page 188, §4. Offences of this Kind &c. falsely and deceitfully obtain Money, Goods Chattells, Jewells by counterfeit Letter.16

Libel, Lye to Damage.

1. Roll. Abr. 65. pl. 4. “Si home dit al Auter17 he hath forged the Queens Evidence and I would not be in his Coat for £1000. Nul Action gist pur ceux Parols, par le Generality de eux.”18

1. Roll. 66. [pl.] 8. “Si home dit al Auter “Thou hast made forged {p. 147} Writings and thou shouldest have lost thy Ears for it. Null Action gist pur ceux Parols, pur ceo que est tout ousterment uncerten queux Writings, il intend par le[s] primer Parols, car peradventure il intend ascuns Writings le Forgerie de que ne violent deserver le perder de ses Aures et donque les d'arren Parols ne explaneront son Intention, entant que Poet estre que ceo fuit forsque un male Conclusion sur le[s] Premisses.”19

“9. Si home dit al J.S. Thou didst Forge an Acquittance, and I will prove it, Action gist, car n'est material pur quel Chose L'Acquittance fuit, car tiel Forgerie est deins l'Estatute.”20

“10. Thou has caused a Deed to be forgd and a dead Mans Hand to be put to it, and cheated and couzened my Husband of his Land. Action gist. [ . . . ] Pudsey and Pudsey.”21

“11. Si A. dit, This is B. his Writing and he hath forged this Warrant (innuendo, &c.) B. n'avira ascun action pur ceux Parols par ceo le Parol Warrant est de un uncertain sense et le innuendo ne ceo aidera.”22

Sheppards Actions on the Case for slander.23

“It is said to be adjudgd not to lie for this thou are a forger of false Writings.”

“Nor as it seems for this Thou hast made false Writings, thereby to get my Land from me.”24

Croo. 1. Shep. Page. 166.25

Otis.2 Certificate of General Assembly.

Law very much altered of late Times.

To prevent Gothic Contentions and single Combats.

High Proceedings.

Strange 747.3 Order for Allom. Forgery at common Law.

Protection from a Member.

Possibility of Damage.

Reason of the Thing. Injury.

Paper indictable.

Public Record.

Q. If Cotton had forgd this Paper, whether he would have been liable to an Indictment for a Misdemeanor?4

4. Bac. 506.5

Made a false Record. Forgery of a Writ.

Great Slander and Defamation.

Court unanimous Nyes Words actionable.

Certificate2

Mr. Fessenden. A Lye of his own making, and he had set their Names to it.

The Court was fixed in the Sandwich Case. Cotton is not only a Tory but a Relation of some of the Judges, Cushing particularly.... Cushing was very bitter, he was not for my arguing to the Jury the Question whether the Words were Actionable or not. He interrupted me—stopped me short, snapd me up.—“Keep to the Evidence—Keep to the Point—dont ramble all over the World to ecclesiastical Councils—dont misrepresent the Evidence.” This was his impartial Language. Oliver began his Speech to the Jury with—“A Disposition to slander and Defamation, is the most Cursed Temper that ever the World was plagued with and I believe it is the Cause of the greatest Part of the Calamities that Mankind labour under.” This was the fair, candid, impartial Judge. They adjudged solemnly, that I should not dispute to the Jury, whether the Words were actionable or not.

In the spring of 1770 the schooner Hitty, John Burnam, master, sailed from her home port of Marblehead to Philadelphia. As she lay at the wharf in the latter port, Burnam spent a night ashore. Next morning, a small locked trunk in which he kept gold coin was missing from its place inside a larger chest in his cabin. Two or three days later the empty trunk was found floating in the harbor with the bottom knocked out of it. The Captain's suspicions lighted upon James Mugford, a member of the crew. When the Hitty was about three days out of Philadelphia, homeward-bound, he undertook an inquiry to verify those suspicions. In the course of his investigations Burnam found a sum of money in gold dollars and johannes, amounting to about £20, part wrapped in a handkerchief and part in a purse, both of which were in a pair of Mugford's breeches hidden in some straw in the latter's quarters. After questioning the rest of the crew, Burnam confronted Mugford with his find and accused him of the theft. Mugford denied his guilt and insisted that the money was his, saying that the Captain had most likely come back aboard and taken the money himself. Angry words and threats followed between the two, but the net result was that Burnam kept the money.1

Mugford brought suit against Burnam within a few days after their return to Marblehead. His declaration in trespass alleged a taking “at said Marblehead,” a fictitious allegation intended to overcome any objection to the venue based on the fact that the incident had not occurred within Essex County.2 At the July 1770 term of the Inferior Court at Salem, after a plea of the general issue, the jury found a verdict for Mugford of £22 damages and costs.3

On the appeal which followed, Adams joined John Lowell as counsel for Captain Burnam. Adams' minutes of testimony at the trial in the Superior Court in June 1771 offer some interesting views of life aboard ship and indicate what a slender thread of circumstantial evidence there was to justify Burnam's taking. These witnesses and the depositions on file in the case were agreed that Mugford had had money when he got to Philadelphia, and that Burnam had taken money from Mugford's possession. Burnam could offer no direct evidence that the money was his, or that Mugford had come by it wrongfully. Thus, Mugford's title, as well as his possession, was made out. In this state of the case it is hardly surprising that the jury returned a verdict affirming the former judgment for Mugford.4

Jno. Melzond. Was on board the Vessell with Captn. Burnam and Mr. Mugford. Burnam took an Hankercheif and a Purse and 1/2 Jo[hannes] 2 in it, and some small Money. B. askd Mugford is that your Money? Yes. M. said Do you intend to keep it. M. claimed it as his Money. Said it was his Money and asked C[aptain] B[urnam] if he want going to let him have it. B. said No. Cant say if the Handkerchief was his. 1/2 Jo. in the Purse. B. did not claim any Thing but the Money. I had seen M. have such a Purse and wear such a Pair of Breeches. He had a Chest on board. Dont know how M. came by the M[oney].3 M. said he brought the Money from Spain. He had a Watch which he used to keep in the Coopers Chest. C.B. was out that {p. 151} Night. Fortnight or 3 Weeks before. I went and made the C[aptain]s Cabbin. Dunlop the officer, and Mugford playd a Game of Cards. I saw the Cabbin open and his Trunk next Morning. B had Money in that Trunk. Mugford had Money, with him when he went to Phyladelphia. He lent 21/2 Jos. and said his father gave em to him to buy Pork. M. a foremast Hand. B. when he found his Trunk was broke he said he had lost about £4500. [ . . . ]. The Trunk was found between the Wharfe and ship. The Trunk was generally lockd the Chest Unlock'd. 2 Hds. Molasses rolled off the Wharf that Night.

James Mugford—father of Plaintiff. The Voyage before this, he went to Spain, and he carried with him Fish &c. which sold for £60 L.M. He had a Months pay of C.B. and the neat Proceeds of an Hogshead of Molosses, which might amount to £70 L.M. He told me he brought Money from Spain. He brought from Phyladelphia 5 Barrels flour and 1000 Wt. Bread. I gave him no Johannes to buy Pork, or anything, before he sail'd.

Lowell.

George Wilfords Deposition vid.4

Grist. M. told me that C. Mugford5 accused him with stealing Money, which he was innocent of, as the Child in the Womb. He said He carried 10 Jos. which his father gave him, to buy Pork. He did not buy it because the Pork was so dear.

Mr. Grist. M. told me he was clear, &c.