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Browsing: Legal Papers of John Adams, Volume 1


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Preface
Preface

Preface

Preface

Docno:
Until recently the study of American legal history, except for legislative and constitutional developments involving public law, has not been considered academically respectable. Inquirers have had to make do with pious “Notices of Eminent Lawyers and Judges” in works of local history and “Historical Addresses on the Bench and Bar” of such-and-such a county—works which are occasionally useful but are always long on sentiment and anecdote and short on documentation.
Whatever the explanation may be, the result has been that we have known little about what colonial lawyers actually did as they earned their daily living and adapted to transatlantic conditions and purposes the British and still older legal institutions that they had inherited. To be sure, some advances into this terra incognita have lately been made, with the publication of early court records and of a few—too few—specialized studies. But general histories still usually ignore law as argued and adjudicated in the courts, and with few exceptions biographers of lawyers and judges famous in their time hurry over the legal chapters in their subjects' lives in order to get them into the more familiar and hence more comfortable arena of politics.
John Adams is a conspicuous example of this treatment. Everyone who has written about him has agreed with each other and with Adams himself that he was a hard-working, learned, and able lawyer, and that his reading and training in the law furnished him a firm base for his rise to the highest offices in the land. But surprisingly few details have been put forward, and only meager documentation for his practice has been published. In Charles Francis Adams' mid-19th-century edition of his grandfather's writings, hardly half a dozen of the sixty-four cases set out in the present volume were printed even in part, and only a few others were discussed either in the “Life” that occupies the entire first volume or in the extensive notes and appendixes in the other nine volumes. The cases partially printed in the Works have become the celebrated ones: the argument over Writs of Assistance in 1761, which Adams merely—though memorably—reported; Adams' defense of John Hancock against charges of { 20 } smuggling in 1769; the trial later the same year of Michael Corbet for murder on the high seas; and the trials in 1770 of Captain Thomas Preston and the luckless British troops indicted for their part in what is known as the Boston Massacre. These important cases, naturally enough, have been worked hard by Adams' biographers, for every one of them has not only high human interest but large political implications. Yet taken all together they give little notion of Adams' laborious years at the bar, even when embellished with anecdotes, character sketches, and entertaining reflections on the life of a colonial lawyer drawn from Adams' Diary, Autobiography, and early letters.
The materials for doing much better than this existed but lay out of sight. In the handling of his grandfather's legal papers C. F. Adams fell signally below his own standards as a scholarly editor. He examined the voluminous and disorderly mass, printed some selected pieces, and levied on a few others for his “Life” and Works of John Adams. But he then gave up, bundled up the lot, and put them away for good. After the 1850's they seem to have been very seldom looked into until the Adams Papers editorial enterprise was launched in 1954 at the Massachusetts Historical Society, where the family archives had been deposited in 1902 but had not been made available to scholars.
The first inspection of them by the editor in chief of the Adams Papers was frustrating enough to evoke a certain sympathy with his predecessor, the family archivist and editor. Apart from a few bound or sewn volumes containing court dockets, commonplace-book entries, pleading forms, and records of several important cases in admiralty, John Adams' legal papers as found were a jumbled mass of stitched and loose leaves of various sizes that commonly showed wear from being carried in the lawyer's pocket. Almost all were written with the haste characteristic of an attorney under the usual pressures and distractions of courtroom and office. Many bear as a caption the name of the pertinent case, but few bear the name or term of the court, and virtually none gives the date when it was written. These orphic leaves may include copies of some of the actual documents pertaining to their respective cases and occasional scraps of correspondence and accounts with clients. But for the most part they are jottings of authorities and arguments used, or to be used, in a given trial; notes on depositions and courtroom evidence on one or both sides of a case; sometimes the judges' interjections and opinions; and, rarely, a written-up version of Adams' appeal to the jury. In short, they are Adams' working papers as a trial lawyer.
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How completely or incompletely they represent the entire body of Adams' records as a lawyer is beyond conjecture. Adams himself said that he lost important papers from his house and office during the British occupation of Boston in 1775–1776. Both the fragmentary character of many of the surviving pieces and the disorder in which the corpus was found strongly suggest that these are simply what happened to survive—in effect the sweepings of his office. This suggestion is supported by the fact that the manuscripts document more or less satisfactorily only a few hundred cases among the many hundreds in which we know from other evidence that Adams was professionally concerned.
At any rate, such were the legal materials found among the Adams family manuscripts in 1954. Despite their unpromising condition, it seemed clear even to an historian without legal training that there was valuable ore in this lode which should be mined. An examination of the material by Mark DeWolfe Howe, professor of law at Harvard and a member of the Adams Papers Editorial Advisory Committee, strongly confirmed this opinion. What was needed, clearly, was an intensive study, arrangement, and cataloguing of every piece by some one who was trained in the law and who cared about the history of the law in early America. These qualifications are not commonly found in combination, but beginning in 1957, with the active encouragement of Dean Erwin N. Griswold, arrangements were made for a pair of third-year Harvard law students to perform this task while enrolled for credit in a history course offered by the editor in chief of the Adams Papers in the Harvard Graduate School. They were Messrs. R. Tenney Johnson and Hiller B. Zobel; their work was later taken up by Mr. L. Kinvin Wroth, who had recently graduated from the Harvard Law School. In the summer of 1961, the study and arrangement of the legal papers having been substantially completed, Mr. Wroth (then assistant professor in the Dickinson School of Law, Carlisle, Pennsylvania, and now associate professor of law, University of Maine Law School) and Mr. Zobel (associated with the firm of Bingham, Dana and Gould in Boston) jointly proposed a plan for editing a selected but large-scale collection of John Adams' legal papers, the materials to be drawn not only from the family archives but from all other pertinent sources and to be accompanied by appropriate commentary and annotation. The plan was laid before the Adams Papers Administrative Board and approved in the fall after discussions with those interested at the Harvard Law School, the Harvard University Press, and the Massachusetts Historical Society. { 22 } Through the good offices of Dean Griswold another essential party was brought into the agreement early in 1962. The Trustees of the William Nelson Cromwell Foundation of New York City, an organization devoted among other good causes to furthering studies in American legal history and with a distinguished record in that field, made a grant, later supplemented, to cover the costs of editorial work. Harvard University Press undertook to publish two (later increased to three) volumes of the Legal Papers of John Adams under its Belknap Press imprint, as a unit—though a separable one—of The Adams Papers. 1 The editors were to be, and are, Messrs. Wroth and Zobel, serving as research associates in law at Harvard University, under the general supervision of the editor in chief. Professor Howe has acted throughout the enterprise as a generous and invaluable consultant to all parties. Public announcement of the undertaking was made in March 1962. An office was made available in Austin Hall, adjacent to the Harvard Law School Library, Miss Judith Diekoff (now Mrs. Daniel J. Burton) was engaged as secretary and editorial assistant, photoduplicates of the relevant files in the Adams Papers were produced, and work on the Legal Papers of John Adams began in earnest in July 1962.
Figuratively, and in some respects almost literally, what the editors have carried out in the volumes now presented is an extended piece of archeological reconstruction, as imaginative in its controlling principles as it is meticulous in its scholarly details. The work could hardly have been done at all without the existence of the incomparable archives of early Massachusetts courts in the custody of the Clerk of the Supreme Judicial Court for Suffolk County in Boston. Consisting of minute books and written-up records for the highest court in all counties and of file papers for over 175,000 cases before 1800, these have been described in more detail by the editors in their Introduction. What the editors have not described is the laborious process by which every case documented even fragmentarily in the Adams Papers { 23 } has been checked against the court files for its date and history and for other papers bearing on the case. The yields of information and additional documentation have been tremendous and have led on to other judicial archives and to collections of personal papers in Massachusetts and elsewhere. A large portion of the findings is now laid before the reader. Adams' condensed, cryptic, and sometimes half-legible jottings are here dated, put in context, and frequently amplified by related documents that help tell the story; and the legal and historical significance of each case has been searchingly appraised. Moreover, the technical language of an old and conservative profession—what Adams called the “lignum Vitae words” of the law–has been explained so that laymen can understand what is going on, and the reports and statutes have been cited and quoted so that readers who care to can follow the judicial process into its last refinements. In short, the editors have brought John Adams the lawyer alive and have enabled us to watch him at work. Clearly no other method than this “documentary reconstruction” (to borrow a phrase used by Professor Goebel in his work on Alexander Hamilton's law practice) could accomplish this end so well.
One or two limitations must be mentioned. It has already been said that the materials now printed are only a selection from those extant. The editors have explained their principles of selection but would plainly admit that they have omitted some cases as worthy of editorial attention and publication as some that they have included. (All of those surviving in John Adams' files are available in the microfilm edition of the Adams Papers, but they are very partially and defectively identified and arranged there.) It should be added that the selection has been made within narrow bounds. Aside from the initial notes on Adams' early legal studies and his book of pleading forms, all the documents relate to actual cases or court actions. Deliberately excluded are whole classes of Adams' writing that have a different sort of legal interest, for example his papers as a town officer and as a legislator, his instructions written for the towns of Braintree and Boston to their members in the General Court, his argument against crown salaries for judges, and his numerous published and unpublished writings on constitutional issues during the ten-year public debate that preceded the Revolution. Although these have been touched on in the editors' Introduction and been drawn on in their commentary when relevant, the writings themselves have been left for presentation among Adams' papers as a statesman, which will include as well his principal contribution to public law, the Massa• { 24 } chusetts Constitution of 1780, and his later writings on constitutional and international law. Chronologically the Legal Papers end with Adams' last case at the bar, the initial stage of Penhallow v. The Lusanna (No. 58 in these volumes) in the New Hampshire Court Maritime in December 1777. In his Autobiography Adams recalled that it was while he was speaking in that court that “Mr. Langdon came in from Phyladelphia and leaning over the bar whispered to me, that Mr. Deane was recalled [as a member of the American Commission in Paris], and I was appointed to go to France.” More than two decades of continuous and all-absorbing public service followed. Upon being retired from the Presidency in 1801, Adams considered the possibility of resuming his practice or at least taking in some students to read law, but he apparently never returned to the courtroom after sailing to France in February 1778.
The papers here assembled richly reveal the life and mind of John Adams the attorney and barrister, the life of the law in his time and place, and life in New England on the eve of the Revolution. To the first two of these topics the editors have addressed themselves systematically in their general Introduction, and to the second, of course, throughout the volumes. But on the third—Adams' legal papers as materials for social history—a nonlegal historian may be permitted to enlarge a little.
The concerns of litigants in the 1760's and 1770's were, as at any other time, representative of the concerns of their contemporaries generally. But people in court talk more, or at least talk more earnestly, and they are obliged to answer questions regarding matters that vitally affect their interests. They have to explain things that in other situations, say in writing a letter to a friend or a relative, can be assumed and therefore do not have to be explained. Just why and how did a dispute arise over a piece of property, an unpaid loan, a mill shut down for lack of water, a meadow flooded by too much water, a sailor's right to defend himself against impressment, a printer's right not to divulge the authorship of an offending article, a Negro man or woman's rights in colonial Massachusetts, a protested tax for the support of the town minister, the eligibility of a voter in a town meeting debating a heated issue, the right to dig clams on a tidal flat, the support of an errant wife, an illegitimate child, or a destitute family? It is the fullness of detail with which the relevant circumstances must be set forth on both sides of an argument that gives court testimony its peculiar value as a transcript of life in a given place and time.
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The cases in the Legal Papers of John Adams touch on almost every concern that 18th-century New Englanders had. The very first group of interrelated cases here printed documents a quarrel over an indentured boy among members of the great Mayhew clan of Martha's Vineyard, all of them bearing Old Testament names and many of them behaving according to the ancient code of an eye for an eye. In one of the trials Thomas Daggett, a member of the posse that had gone to serve a warrant on a particularly Amazonian Mayhew female, testified that during the melee that followed, “Bethiah said I shall go into a fit.” Bassett, the deputy sheriff, then “let her go.” Whereupon, “She struck him.” Feelings ran so high in this complex of suits and countersuits, John Adams said, that it was literally “impossible for human Sagacity to discover on which Side Justice lay.” And no wonder.
Respecting the next case, King v. Stewart (No. 2), we have hitherto had only a tantalizing reference in a letter John Adams wrote to his wife in 1774, on the very eve of his departure for the first Continental Congress, when traveling the “eastern circuit” for the last time. His letter expressed his detestation of “private Mobs” and described how a riffraff of merchant Richard King's disgruntled neighbors in Scarborough, Maine, “broke into his House and rifled his Papers, and terrifyed him, his wife [who was well along in pregnancy], Children and Servants in the Night.” Adams, who was counsel for King, called it “a famous Cause,” and it was certainly a protracted one since the mobbing had occurred eight years earlier during the Stamp Act troubles. It has, however, never been documented, or more than passingly mentioned in print, until now. The materials for doing so existed, notably in the New-York Historical Society among the papers of Senator Rufus King (son of the plaintiff), where an extensive file on the elder King's efforts “to bring the Parpitrators to Justice” reposes; in the Adams Papers, which contain Adams' emotional plea to the jury fully written out; and, for the progress of the case through the courts, in the judicial archives in the Suffolk County Courthouse. These have now at length been brought together to tell a dramatic and revealing tale of rural New England.
The name of the Province in which John Adams grew up and practiced law was Massachusetts Bay, and fittingly, since the sea furnished not only a great part of the colonists' livelihood but also of their diet. And since 18th-century Boston was virtually an island, almost all of its inhabitants were in some sense seafarers. The earliest court action of historical importance in which Adams was concerned, and hence { 26 } the earliest included in these volumes (Petition of Lechmere,No. 44), was the argument before the Superior Court of Judicature in February 1761 over the legality of writs of assistance—instruments sought by customs officials to facilitate searches for goods smuggled in by water. The celebrated case of Sewall v. Hancock (No. 46) over John Hancock's sloop Liberty also involved smuggling and, as argued by Adams in defending Hancock, raised grave constitutional issues. Two of Adams' most spectacular cases, both of which were tried in special admiralty courts and in both of which he saved his clients from hanging, were on charges of murder at sea. Concerning Michael Corbet's killing of Lieutenant Henry Panton of the Royal Navy—the latter a man of such nonchalant elegance that one would suppose him more at home in Pall Mall than off Marblehead—we know every last detail because every man jack aboard the Pitt Packet seems to have testified except the dead man, who had bled to death from a harpoon driven into his neck (Rex v. Corbet,No. 56). In the other murder case Adams himself was never able to determine the innocence or guilt of his client Nickerson, the only survivor of a peculiarly “misterious, inexplicable Affair” (Rex v. Nickerson,No. 57); nor shall we. But the colorful documentation for both cases prompts the observation that there are materials among Adams' legal papers that writers of historical fiction, as well as historians, have overlooked. Another example is “the Case of the Whale” (Doane v. Gage,No. 43), in which more than seventy witnesses furnish in their own tarry language a superlatively vivid picture of life among the whalers of the North Atlantic and a virtual textbook of whaling practices and customs. The documents prove Melville right in representing whalers as generally talkative and contentious. But not even Melville has drawn a more engagingly eccentric character than the crew member whose credibility was questioned because he had a habit of jumping into the sea with his clothes on and kept a journal which he boasted was better than the captain's.
We know from John Adams' letters and Diary that he had a special talent for rendering dialogue, and the talk of the witnesses as he recorded it in his minutes of court actions is endlessly fascinating. It is the genuine, not invented, talk of his unsophisticated neighbors. Of old Mr. Clap of Scituate, whose peculiar will full of blank pages was being contested, a defense witness rejoicing in the name of Bezaliel Curtis remarked: “He said Will [Clap's eldest son, who had been cut off in the will] had wronged him, and had Creatures [i.e. had taken or borrowed some of his father's stock or “critters”] and not { 27 } returned 'em” (Clap's Will,No. 15). In the bastardy case of Gage v. Headley (No. 29), poor, confused Lydia Gage of Lincoln is a classic type of the country girl in the worst trouble she could possibly get into; in the harsher language of the day she was “a common Strum.” It was agreed by all that her child was “got soon after the Trooping at Sudbury.” (The clergy were always pointing out that muster days, like elections, encouraged sinfulness.) But the question was, Who was the father? Witnesses said that from time to time during her pregnancy Lydia had mentioned various candidates. “Twas a transient Person, and [Simeon] Hagar, and Pucker, a poor Toad.” But some said that this was because the real offender had both bribed and threatened her to stop her from telling the truth. For example, Sufferana Hagar (could her name have been a Yankee version of Sophronia?) testified that the suspect Josiah Headley “said he would take his gun and shoot her. But I did not think, he intended to shoot deeper than some People think he had done.” To establish paternity, and thus assure support for the child, the law required, among other things, that the woman accuse the man during her actual travail. Fortunately Lydia (or humanity) had a friend in Deacon Humphry Farrar, who appeared as her first witness in court and declared that “At the Groaning I heard her say that it was Josiah Headleys of Weston the Miller and Tavernkeeper.” Since the records of the Middlesex Court of General Sessions have been lost, we do not know how this case came out. The Lincoln town records show that five years later the child, named Josiah “doubtless in honor of the putative father,” was living in Deacon Farrar's family. This may mean any one of several things that the reader's imagination will have to supply.
For the student of language, as well as of manners, education, religion, economics, or any other facet of colonial life, the documents furnish some agreeable finds and occasional puzzles. Here are “Pampousies,” probably to be equated with “pampouties,” a kind of slippers from the East Indies, and “Catalaber,” more or less recognizable as an early form of “cantilever,” a timber bracket under a projecting roof. But sound and context alone will have to supply the meaning of a few words so far not found in any general or specialized dictionary. “Hiddalo,” found in the case of Rex v. Richardson (No. 59) in a context suggesting uproar and confusion, may be etymologically related to our “hubbub” or “hullabaloo.” “Scurlogging,” the first word in Adams' minutes of the trial of Richard King's persecutors, apparently means a mobbing or a “roughing up” of some hapless victim by his neighbors. The phenomenon, if not the word itself, is no doubt { 28 } related to the English “skimmington-ride,” found elsewhere in Adams' legal papers and well known from Hardy's description of such a rural incident in The Mayor of Casterbridge.
These are mere incidental notes that could be continued indefinitely. Every document throws at least a pinpoint of light on the way people in Massachusetts Bay felt, thought, spoke, and acted two centuries ago; and some of them throw strong and steady beams of light on matters we needed to know more about. The capital example is the assemblage of material in the third volume documenting the two major trials (Rex v. Preston, Rex v. Wemms,Nos. 63, 64) that grew out of the mobbing and killing in King Street (present State Street), Boston, on the night of 5 March 1770.
It is astonishing, but true, that despite all the words and ink spent on the subject, no comprehensive and reliable account of the Boston Massacre and its sequels has hitherto been written. The reasons are twofold. For a long time after the Massacre occurred, few if any people would have found a reliable, that is to say an impartial, account acceptable. That the British soldiers had committed bloody butchery in King Street was one of the pieties most firmly fixed in the American mind. But as the piety faded and history began to replace propaganda and folklore, such new documentation as appeared was defectively presented and much more of the essential documentation had dropped from sight. In these circumstances the present editors very properly determined to furnish the fullest possible record of the two Massacre trials in which John Adams was concerned. They have included, in text or notes, not only the transcript of the second trial (that of the soldiers), which was contemporaneously printed and has therefore been the main reliance of historians, but also a substantial but hitherto unpublished summary of the defense evidence in the first trial (that of Captain Preston), for which no transcript of the court proceedings exists. In addition, here are notes, in large part published for the first time, of most of the lawyers who participated in the trials, on their own witnesses and arguments and on those of the other counsel. Taken all together these constitute a body of documentation that is uniquely thick-textured and that brings us as fully and continuously into the courtroom of 1770 as 20th-century readers can ever hope to be.
About 120 witnesses furnished evidence in the Preston and Wemms trials. Their testimony and the half-dozen lawyers' arguments based on it present a morbid anatomy of a town torn and harried by political strife and military occupation. Everyone of course wanted to tell his own story of the fatal night, but the very profusion of evidence makes { 29 } the truth hard, perhaps impossible, to isolate. What is truth in such circumstances? No surviving participant or witness could tell more than a fraction of what actually happened when the townspeople and soldiers shouted, shoved, tussled, slipped, and slid on the ice and snow around the gutter that ran in front of the Custom House. But here, at any rate, is what every available witness thought happened, and from this abundant and conflicting evidence readers must reconstruct the events of the night and assign responsibility for them as best they can.
More important, of course, than who did precisely what, is the question of how well the leaders of the community managed to bridle their emotions and to put their minds on the administration of justice, or on what the editors call “the control of vengeance.” Did anyone, in fact, really want impartial justice done? John Adams' testimony on this question is disappointingly meager and cryptic and merely contributes to the mysteries concerning the Massacre and the trials that will probably remain forever unsolved. He put down few of his private thoughts during 1770, and his reflections afterward were pervaded by a self-pity that hardly seems warranted. The known facts do not suggest that either he or Josiah Quincy lost status or suffered reprisals for their part in defending Preston and his troops. That there were threats of mob action and attempts to pack the juries is true, and it is also true that one of the judges wrote in a highly unjudicial way about “the Dishonour of the Inhabitants” while the first trial was in progress. Yet persons of both persuasions who attended that trial remarked on the “order and decorum” of the proceedings and spectators. And from a source highly placed and not likely to be prejudiced in favor of “the Inhabitants,” came a clear assertion soon after the trials were over that justice had been done in spite of the inflamed state of the community. In announcing the result to an English friend, Lieutenant Governor Hutchinson said: “There certainly is a stock of Virtue in the Country though sometimes overborne by the Violent Efforts of some as bad men perhaps as any upon the Globe.” However strongly feelings ran in Massachusetts Bay in 1770, they did not in this critical instance overrun the processes of law. This cannot be said of certain later and similar incidents in our history, some of them shamefully recent and even current. But if it can be said of the Boston Massacre, it restores that sad and somewhat squalid affair, considered in its larger implications, to rank among events in which Americans may take pride.
[signed] L. H. Butterfield
Editor in Chief
1. In the general plan of The Adams Papers , the present volumes, though complete in themselves, are to be considered as a supplement to the as yet unpublished Papers of John Adams, that is, to Part 1 of Series III, the General Correspondence and Other Papers of the three Adams statesmen. For the general plan of publication, necessarily though regrettably complex, see the Introduction to the Diary and Autobiography of John Adams , 1:xxxvii–xli. Since work is going on concurrently on several different and more or less completely independent series and parts of the edition, there can and will be no continuous volume numbering throughout The Adams Papers. All scholarly references to The Adams Papers should therefore be to the title and volume of the particular unit concerned—in this case, of course, to the Legal Papers of John Adams.