John Adams was before anything else a practicing lawyer—a man of the office, the library, and the courts. Future legal historians and biographers must describe in comprehensive detail the legal system of pre-Revolutionary Massachusetts in which he studied and practiced, and the extent to which his legal training and the habits thereby developed influenced his later public service. The Legal Papers of John Adams is intended to furnish some of the raw material for such comprehensive studies. This Introduction seeks only to help the reader find his way into the context of 18th-century Massachusetts practice and to describe briefly Adams' legal career.
Practice and Procedure
The Courts of Provincial Massachusetts
It is a commentary, either on Adams' time or our own, that the court system in which he practiced was as jurisdictionally differentiated as the Massachusetts judicial system of today. The discussion which follows is not and cannot be definitive. Only enough detail has been included to permit an intelligent appreciation of the juridical framework of Adams' practice. A thorough treatment of the court system must, like so much other work on this subject, await the documentary exhumation of which the present edition is only a spadeful.
At the bottom of the judicial pyramid came the individual courts of the justices of the peace. Appointed on a county-by-county basis, these justices held one-man courts with civil jurisdiction over “debts, trespasses, and other matters” involving controversies of under forty shillings (and not involving title to land); appeal lay to the Inferior Court.10
On the criminal side, the justices could hear complaints of breaches of the peace, violation of the Sabbath laws, and other minor offenses. A justice could impose a fine of up to twenty shillings, and could sentence a convicted prisoner to imprisonment up to twenty-four hours, to the stocks, or to be whipped.11
Appeals in criminal cases lay to the Court of General Sessions of the Peace.12
All the justices of the peace in each county were, in accordance with English practice, named and appointed in a single commission, which authorized all of them, jointly or severally, to keep the peace. The justices of each county, sitting together, jointly comprised the next rung of the judicial ladder, the Court of General Sessions of the Peace. One such court sat quarterly in each county, concurrently with the Inferior Court of Common Pleas for the county.13
It heard appeals in criminal matters from the courts of the individual justices of the peace, with the appeal apparently entailing a new trial, by jury.14
And appeals lay from the Sessions to the Superior Court of Judicature.15
Administratively, the various Courts of General Sessions served their counties as regulatory agencies. An examination of the statutes and the available minute books and files shows that the Sessions supervised county finances; regulated highways; controlled the establishment of inns and liquor retailers; appointed a host of wine gaugers, sealers of leather, and the like; exercised a kind of pure-food jurisdiction; protected monopolies; supervised the operation of the poor laws; and even attended to the construction of public buildings. In the Suffolk Files, for example, are accounts and orders dealing with the construction of the new Suffolk County courthouse in the 1760's, richly illustrative, not only of the Sessions' administrative functions, but of the architectural practices of the time.16
Each county also had its own Inferior Court of Common Pleas, which sat quarterly, at one or more locations throughout the county. This court consisted of four judges, appointed by the governor and council, any three to be a quorum.17
A statute provided that “all civil actions, other than such as are cognizeable before a justice of the peace, shall be originally heard and tryed in an inferiour court of common pleas, except in suits where the king is concerned which may be brought in any of his majesty's courts within this province at the pleasure of the prosecutor.”18
Writs ran throughout the province, but venue of most personal actions lay only in the plaintiff's or the defendant's home county.19
A dissatisfied litigant in the Inferior Court might appeal to the next term of the Superior Court where a trial de novo
was held, with each party “allowed the benefit of any new and further plea and evidence.”20
Occasionally, the legislature would allow relief to a would-be appellant who had a justifiable reason for a late filing.21
The Inferior Court for each county had its own clerk, its own bar, and its own rules of practice. An interesting note from the Suffolk Files is a letter dated 10 September 1763 from Daniel Leonard to Ezekiel Goldthwait, the clerk of the court, requesting “an attested
copy of the Rules of Court that were made at July Term for the Regulation of Practice.”22
At the head of the judicial system came the Superior Court of Judicature, Court of Assize and General Gaol Delivery, a single court with five justices (any three of whom were a quorum) appointed, like all the other judges, by the governor “with the advice and consent of the Councill,”23
sometimes from the bar, but frequently (and with notable success) from the laity. While the court in Adams' day leaned heavily for what might be called legal advice on a brilliant and learned former barrister, Edmund Trowbridge, it is also true that such non-lawyers as Peter Oliver and Thomas Hutchinson made, as far as one can tell from imperfect evidence, reasonably astute judges. Hutchinson, the Chief Justice from 1760 to 1769, diligently compensated for his lack of legal education by wide reading, common sense, and a cultivated ability to make the barristers do the legal spadework for him. “I never presumed to call myself a Lawyer,” he wrote after leaving the bench. “The most I could pretend to was when I heard the Law laid on both sides to judge which was right.”24
It might be noted that, although special justices could be appointed by the Governor and Council to sit on specific cases where a justice might decline to act or disqualify himself,25
the regular justices could and sometimes did hold other government positions. Hutchinson, for example, was simultaneously Chief Justice of the Superior Court, Lieutenant Governor of the province, Councilor, and Judge of Probate for Suffolk County.26
By statute, the Superior Court exercised jurisdiction over all actions, real, personal, or mixed, including pleas of the crown—in other words, common-law jurisdiction as full and ample as the jurisdiction the common-law courts in England “have or ought to have.”27
The court possessed original jurisdiction only over matters involving the crown.28
Under its appellate jurisdiction, the appellant could claim an entire new trial in the Superior Court.29
The loser in an appeal, if his purse allowed, and provided he had not already lost in the Inferior Court, was entitled to bring an action of review in the Superior Court, which afforded still another opportunity for a new trial.30
The Province Charter also permitted an appeal to the Privy Council “in any Personall Accion” where the amount in controversy exceeded £300. But the word “Personall” appears to have been construed, in England at least, to include real actions, as well.31
An appeal also lay to the Superior Court from the Court of General Sessions in criminal matters. By means of the writ of certiorari, the Superior Court controlled the Sessions in administrative disputes as well,32
and, like the common-law courts in England, regulated the exercise of what was considered common-law jurisdiction by non-common-law courts. Thus the Superior Court occasionally issued a prohibition to the Royal Court of Vice Admiralty to prevent the prosecution of an action properly cognizable only at common law.33
Finally, the judges seem occasionally to have provided the Governor, on request, with advisory opinions of law.34
The Superior Court rode a statutorily established and frequently revised circuit of all the counties in the Province, including the “Eastern Counties” of York and Cumberland in what is now Maine. It had its own clerks and its own bar, which was not organized on a county-by-county basis, although certain lawyers, Joseph Hawley, for example, rarely practiced before the court except in their home counties. Cases arising within a county were tried at the court's sitting
in that county, but points of law could be, and frequently were, argued at sittings in other counties.
Matters involving complicated factual issues or masses of evidence were frequently heard, under order of court, by specially appointed referees, usually three in number. The process was called “referring” a case, and the matter was said to be “under reference.” After taking evidence, the referees would then “report” to the court, somewhat in the manner of a jury bringing in a special verdict, and the court would then usually “accept” the report and enter judgment thereon. The Basset-Mayhew-Allen litigation, No. 1
, is an excellent example of a reference.35
In commercial matters, or cases turning on bookkeeping or business practices, the parties were sent to panels of merchants called auditors, whose function, apparently, was similar to that of referees, although it seems to have been generally limited to the ascertainment or “auditing” of figures, rather than the finding of facts generally or specially.36
Although no separate court of equity or chancery jurisdiction existed, equitable concepts were apparently known and applied. Thus one action at law refers to litigation by trustees of a testamentary trust, the res
being land in Roxbury “given to the use of the free school in said Roxbury.”37
In the absence of a chancellor, the existing legal institutions were used to apply what might be considered equitable relief. So by statute, in suits on penal bonds, the court was empowered to “chancer” plaintiff's recovery down from the amount of the bond to the actual amount of his loss.38
In one case, a petition was made to the General Court for relief from a mistake.39
The common-law jurisdiction of the justice courts and of the In•
ferior and Superior Courts was supplemented by other specialized tribunals. Wills and intestacies were regulated by Courts of Probate, one to a county, presided over by a single Judge of Probate aided by a Register (i.e. Clerk) of Probate. Probate and common-law jurisdictions crossed in one recurrent way. When the personalty of an estate (that is, everything but the real property) was insufficient to pay the legacies, the Superior Court, on motion and upon presentation of a certificate from the cognizant Judge of Probate, would make an order permitting sale of so much of the real estate as was necessary to pay the legacies. But control over the various county judges of probate lay in the Governor and Council, sitting as a Supreme Court of Probate, to whom appeals from the county courts lay.40
The Governor and Council likewise constituted the Province's divorce court, having in this instance sole jurisdiction.41
Here, too, the Superior Court appears to have played a supplementary role, for a Minute Book of 1773 notes the filing of a petition by John Adams on behalf of Sarah Griffin “for Alimony.”42
Last, although in some ways highest, on the list of tribunals before which Adams practiced was the Court of Vice Admiralty, which unlike the other courts depended for its authority directly on the Crown rather than on the Massachusetts legislature.43
It was in this court, sitting without a jury, that the great revenue battles were fought, as well as the notable Case of the Whale.44
The Documents of a Law Suit
A discussion of the documents found in a typical Superior Court file will serve as an introduction to the basic pleading and practice in a civil action as well as to an understanding of the limitations of the Suffolk Files as a documentary source.
A file in the Superior Court of Judicature is comprised usually of two sorts of documents, copies of papers from the Inferior Court,
and documents newly introduced in the Superior Court itself. A typical file contains various documents:
(1) The writ was the initial paper commencing the action in the Inferior Court, endorsed by the party or his attorney to guarantee payment of costs if the defendant prevailed. A copy was made for the Superior Court action, because it was not the practice to file a new writ for a Superior Court proceeding. The Inferior Court writ was a printed blank, strikingly similar to that used in Massachusetts today. It read in the form of a command from the sovereign to the sheriff of the county in question, directing him to summon the defendant to appear before a given session of the court “to answer unto” the plaintiff “in a plea of” whatever the form of action was. On the back of the writ the officer who had served the defendant made a “return,” that is, indicated in a brief sentence that he had complied with the command. If the plaintiff requested it, the officer might either take the defendant bodily, or attach his goods.
(2) In the body of the writ, the plaintiff set forth his declaration, a formalized statement of the plaintiff's claim against the defendant. Most of the forms in Adams' Pleading Book, printed below, are declarations.
(3) Further pleadings
were generally inscribed on convenient blank places on the writ's front or back, or, if elaborate, on a separate sheet. Although the purpose of pleadings in Massachusetts, as in other courts, English and American, was to arrive at an issue
or triable point of difference between the parties, the science of pleading in Massachusetts never reached the heights of complexity which it attained in 18th-century England.45
In most cases the defendant interposed a plea in bar, denying the facts alleged by the plaintiff, or asserting new facts in justification, either ordinarily being sufficient to bring the case to an issue of fact for the jury, and therefore to close the pleading phase of the matter.
Occasionally a defendant who disputed the legal basis for the plaintiff's claim, although admitting the existence of the facts of the matter, would file a demurrer. By demurring, the defendant would in effect be saying: “Everything you allege is true, but as a matter of law you are not entitled to recover anything.” At this point the dispute became a purely legal issue to be determined by the court alone, after argument by counsel. Another kind of legal question could be raised by a plea in abatement, which attacked the technical sufficiency of the writ without reference to the merits.
Ordinarily the pleadings in the Inferior Court bound the parties in the Superior Court. Occasionally, to avoid the cost of two trials, a defendant in an Inferior Court action would frame a patently frivolous “sham” demurrer. In an action for trespass to land, for example, with the declaration in an acceptable form, the defendant might demur on the grounds that the plaintiff had no cause of action. The plaintiff would thereupon pray judgment, which would be allowed by the court.
Under appropriate circumstances, plaintiffs, as well as defendants, could set up one of these apparently frivolous objections. Thus, in the hypothetical trespass-to-land case mentioned earlier, the defendant's answer might be in proper form, but the plaintiff would demur, alleging that the plea was “insufficient in law.” Judgment would thereupon be rendered for the defendant.
In a variant of this procedure, the defendant, instead of demurring to the declaration, might answer legal gibberish. Thus, in the trespass case we have been considering, where the proper plea was “not guilty of the trespass in the form and manner as aforesaid,” the defendant might answer “that he never made the contract,” or even “that the defendant is an honest man.” Plaintiff would thereupon demur to the plea, and would receive judgment. Generally the party demurring took the precaution of expressly reserving his right to waive the demurrer in the Superior Court and plead over. When the matter came up before the Superior Court, he would file a pleading sufficient properly to raise the triable issue.
(4) Whether the action in the Inferior Court went on to trial or came up on one of the forms of demurrer, the court entered judgment for the prevailing party. An appropriate notation, reciting the writ, the subsequent pleadings, and the judgment, was made in the record; a certified copy of the record entry pertaining to this action was included as part of the file sent up to the Superior Court.
(5) Ostensibly to prevent unmeritorious appeals, a statute required the losing party in the Inferior Court contemplating an appeal to post an appeal bond
an undertaking to prosecute the appeal. The bond, signed by the party and two others, may usually be found in the Superior Court file. These obligations were apparently formal only, because the sureties almost invariably included the party's attorney, as well as other lawyers, and on occasion even one of the opposing counsel.
(6) Documents which had been put in evidence in the Inferior Court trial usually appeared in the Superior Court files, either in the
original or by certified copy. And, of course, new documentary evidence introduced in the Superior Court also remains in the files. None of the papers are “exhibits” in the modern sense; frequently they contain no indication that the court admitted them as evidence, although occasionally a paper may be endorsed or subscribed “for this court.”
(7) Under a statute47
could be taken in civil causes under limited circumstances: if the deponent was aged or infirm; if he was bound to sea; or if he lived more than thirty miles from the place of trial. The Superior Court files frequently contain depositions from the Inferior Court proceedings, as well as depositions taken in connection with the Superior Court litigation. Sometimes a deposition will bear the notation “sworn in court,” which suggests that, even when a witness was present at the trial, his previously taken deposition could be admitted, although the restrictions, if any, on its use do not appear.
(8) The jury always rendered its verdict
written on a scrap of paper, in sentence form, as: “The jury find for the defendant costs of suit,” or, “The jury find for the plaintiff, and assess the damages as 10 pounds and costs of suit.” The file generally contains the Superior Court verdict, and, where the matter was tried in the Inferior Court, a copy of the verdict from that tribunal as well. Occasionally the jury found, either on its own initiative or at the request of the court, a special verdict
. This was nothing more than the jury's finding of a specific fact or facts, leaving the legal effect to the court. In a trespass case, for example, the jury might find that the defendant had committed the acts alleged, but by special verdict leave to the court to decide whether or not plaintiff should prevail. Precisely when, if ever, the jury brought in a special verdict uninstructed, we do not know. Because some of the surviving special verdicts are in the identifiable hands of various attorneys, we know that sometimes the lawyers prepared them; it also appears that the judges sometimes participated in the process.48
(9) The prevailing party, at either stage of the case, was entitled to costs, governed by statute. These were drawn up by the party's attorney and then “taxed” (i.e. approved) by the clerk. The bills of costs, sometimes informally drawn, generally appear in the files. Costs in the Superior Court included any costs which might have been taxed against the party in the Inferior Court.
(10) In cases where the losing party below had failed to prosecute his appeal, the Court, on prayer of the appellee, would affirm the Inferior Court judgment. The complaint, the document praying affirmation (usually a printed form), is frequently found in the files, because there seem to have been almost as many such cases as there were fully prosecuted appeals.
(11) If the losing party failed to satisfy the judgment voluntarily, the prevailing party could obtain from the clerk an execution, a writ directing the sheriff to seize the losing party's property, sell it, and turn the proceeds (up to the amount of the judgment) over to the winner. If the sheriff could find no property, he could jail the losing party until the judgment was satisfied.
Of most of the actual courthouses where Adams practiced we know little, much of it trivial. The Cambridge courthouse, for instance, occupied the present site of the Harvard Trust Company in Harvard Square; at Falmouth (now Portland), court was held in a church.49
Details of the courts' seat in Boston are a bit more precise. From 1747 to 1769, the courts sat in the Town House (today the Old State House); in the latter year, a new courthouse—on Queen (now Court) Street—costing over £2400 in Massachusetts currency, was completed under the supervision of the Suffolk Sessions.50
It was a three-story building, with the Superior Court clerk's office at the east end of the ground floor, and the Inferior Court clerk's office at the west end. The courtroom itself was on the second floor, with a chimney and fireplace behind the “judges' seat.”51
The reported events of the Richardson trial, No. 59
, suggest that the jail was located at some remove from the courthouse. This building had been reconstructed in 1766, and the prisoners moved in the meantime to the Cambridge jail.52
We have embarrassingly little knowledge of the way in which the Massachusetts courts regulated their business and conducted their trials. Litigation was certainly more peremptory than it is today; the
Minute Books show that the Superior Court would dispose of as many as six jury trials (using only two twelve-man juries) in a single day, and the Massacre Trials, Nos. 63
, were said to have been the first criminal matters to require more than one day for trial in the history of Massachusetts.53
But even so, the court seems to have faced the problem of clogged dockets:
At Plymouth Court April Term 1763. Ordered—That for the future in all the Courts except for the County of Suffolk the continued Actions be first tried in the order they shall stand entered and then the new entries in the same order and in case of the continuance of any Action upon sufficient Reason offered the next Action in order shall be immediately called and brought to trial.54
What might constitute “sufficient Reason” is suggested by an entry in the Suffolk Inferior Court Minute Book: “Cont[inue]
d by Order on the Motion of the Def[endan]
t W. Story, he having made Oath that he has a material Witness absent, whose Evidence [i.e. deposition]
he has not been able to Procure.”55
All issues of fact were tried to a jury; there is no presently known instance of trial to the court alone. The jury panel was assembled by the clerk of court's sending to each town in the county a document called a venire
, requiring the inhabitants of the town to nominate a specified number of men for jury duty. Statutes regulated the entire proceedings, and failure to attend as a venireman was a fineable offense.56
Once assembled at court, the veniremen were divided into two panels of twelve, called respectively the first and second jury. Trials then commenced, with the juries alternating. In criminal cases, which appear from the Minute Books to have been tried in a block after the civil business, juries were apparently new-empaneled. At any rate, as some of the cases printed in this edition show,57
the judges could exert very little control over a jury once a case had been sent to the jury room.58
The judges of the Superior Court rendered few opinions in writing, none on any regular or formal basis, although they seem occasionally to have reduced the reasoning in selected cases to writing and caused the “report” to be filed with the papers of the case.59
Sometimes matters presented to the court were considered so important that an attested memorandum was filed by leave of court, presumably as a guide for the future. In one case, for example, plaintiff's bookkeeper was testifying on his employer's behalf. Defendant's counsel on cross-examination asked if it were not true that some of plaintiff's goods had been seized by the customs officers for being unlawfully imported. Plaintiff's counsel objected to the question as being “impertinent to the Issue and tending to charge the plaintiff with an offence against which he was not prepared to Defend himself.” The four-judge Superior Court split, the objection was sustained, and the report filed.60
Whether the Inferior Courts followed the practice of memorandum opinions is not known, although on one notable occasion, “After the Court had given Judgment Mr. Gridley moved for a Minute of the Reasons of the Judgment. [Judge]
Wells said the Court was not accountable to the Bar for their Reasons.” But, “after some Debate, the Clerk was ordered to minute the Reason.”61
Generally, however, except for such private and unofficial collections of arguments and decisions as that compiled by Josiah Quincy Jr., and the memory of bench and bar, little in the way of precedent and stare decisis
bound the judges. A fine example of informal adherence to a prior decision is Alcock v. Warden
, No. 8
. But even English authority, cited so regularly, seems to have been only of persuasive, rather than binding, force. And, where the Massachusetts conditions seemed to justify the modification of an English rule, the local judges apparently innovated as necessary.62
But certainly the constant citation of so much English legal material, treatises as well as reports, suggests that the Massachusetts judges did not regard themselves as free to write on a blank slate.
In the absence of a comprehensive set of reported decisions or a complete analysis of the Suffolk Files, it is difficult to generalize about the litigatory diet of the Massachusetts judicial system. The cases printed in this edition suggest that virtually every kind of action known to the common law came before the courts. Simple contracts and commercial relations were the most frequent types of litigation, with land cases second. Except for defamation and injuries to property, tort law seems to have been embryonic, as it was in England. Even in the Suffolk Files, very few “personal injury” actions (except assault) have come to light, although actions against physicians for malpractice seem to have been known, and several esoteric tort theories have been unearthed.63
Massachusetts had an exceptionally detailed approach to criminal law. In addition to what might be called “ordinary” offenses, such as murder, manslaughter, rape, burglary, forgery, and arson, the Massachusetts courts were concerned with punishing a host of somewhat more unusual crimes.64
Moreover, criminal procedure had many present-day features, such as extradition,65
petition for change of venue,67
and appointment of counsel. This last was apparently an established practice, although it is not yet clear whether the practice was limited to capital cases. In an undated document one Hindrick Hirsst, “a Sweed by birth, not well acquainted with the English tongue,” petitioned the Superior Court for “an attorney to make his defense as in such Cases is usual in the Law.”68
Worcester, in September 1768, Adams himself represented such a defendant. Samuel Quinn, accused of rape, “named me to the Court for his Council. I was appointed, and the Man was acquitted, but remanded in order to be tryed on another Indictment for an assault with Intention to ravish. When he had returned to Prison, he broke out of his own Accord—God bless Mr. Adams. God bless his Soul I am not to be hanged, and I dont care what else they do to me.”69
Despite these manifestations of judicial sophistication, 18th-century Massachusetts law could be barbarous. A convicted counterfeiter might have his ear cut off, and a convicted thief, unable to pay for the goods stolen, might be sold for a term of years to one of His Majesty's subjects.70
John Adams the Lawyer
The Legal Education of John Adams
“Let us look upon a Lawyer,” wrote John Adams to his college classmate Charles Cushing in April 1756.
In the beginning of Life we see him, fumbling and raking amidst the rubbish of Writs, indightments, Pleas, ejectments, enfiefed, illatebration and a 1000 other lignum Vitae words that have neither harmony nor meaning. When he gets into Business he often foments more quarrells than he composes, and inriches himself at the expense of impoverishing others more honest and deserving than himself. Besides the noise and bustle of Courts and the labour of inquiring into and pleading dry and difficult Cases, have very few Charms in my Eye.71
These seem to have been the last brave arguments of a young man about to enter upon a course which he has known for some time that he will take. Adams' family had assumed when he went to Harvard, at some sacrifice to them, that he would enter the Congregational ministry, following in the footsteps of his uncle Joseph, Class of 1710, an eminent New Hampshire clergyman.72
Upon graduation in 1755,
however, Adams put off the moment of decision by undertaking to keep a school in Worcester. There he had at first spent his leisure hours in reading and copying out sermons—an occupation which he found “worth while for a candidate for the ministry”—and in long evenings of theological discussion.73
Despite these activities, and letters of encouragement from his classmates, his resolve began to waver. In his Autobiography, written nearly fifty years later, Adams said that his “Inclination was fixed upon the Law” while he was still a student at Harvard through participation in readings and debates.74
Certainly at Worcester he seemed in no hurry to follow the paths of ministerial righteousness. He started to read works of political and natural, as well as moral, philosophy, and his evening conversations began to turn more and more toward practical affairs.75
And there was ample stimulus for one interested in the law. A leading member of Adams' social circle was James Putnam, Harvard 1746, a successful lawyer and an eager disputant on the topics of the day. Moreover, amidst rural boredom, the law was hardly an arid study but the principal entertainment after church-going—other pastimes being frowned upon by the godly and prohibited by the legislature. The county Inferior Court and Court of Sessions sat in Worcester four times a year, and every September the Superior Court, with its train of lawyers from Boston, came there on circuit.
In his April letter to Cushing, although Adams had pointed out as a serious drawback of the ministry the church's constant internal wrangling, he had concluded that it was still the most desirable of the professions. But he was “as yet very contented in the place of a School Master” and would “not therefore very suddenly become a preacher.” This phrase should have warned all his solicitous friends. After a
spring in which “Company, and the noisy Bustle of the publick Occasion” engendered by the May term of the Inferior Court had interrupted his meditations,76
and a summer in which he achieved nothing worth speaking of, he made the decision that he had been resisting for a year. On 21 August 1756 he “compleated a Contract with Mr. Putnam, to study Law under his Inspection for two years,” and on the following day he “Came to Mr. Putnams and began Law. And studied not very closely this Week.”77
Adams kept no diary during his two years with Putnam, but his course of study can be pieced together from other sources. The bulk of the curriculum seems to have been readings in the traditional masters of the common law. Two years after the completion of his studies, he wrote:
Wood. Coke. 2 Vols. Lillies Ab[ridgemen]
t. 2 Vols. Salk[eld's]
. Swinburne. Hawkins Pleas of the Crown. Fortescue. Fitzgibbons. Ten Volumes in folio I read, at Worcester, quite thro—besides Octavos and Lesser Volumes, and many others of all sizes that I consulted occasionally, without Reading in Course as Dictionaries, Reporters, Entries, and Abridgements, &c.78
Putnam seems to have done little in the way of active teaching. Soon after his admission to the bar Adams complained: “Now I feel the Dissadvantages of Putnams Insociability, and neglect of me. Had he given me now and then a few Hints concerning Practice, I should be able to judge better at this Hour than I can now.”79
Improvements in methods of legal instruction have not altogether eliminated this problem.
His apprenticeship completed, Adams came home in the fall of 1758, despite the urgings of friends in Worcester that he remain there. He was determined to settle in Braintree, there being no other practitioner in Suffolk County established outside of Boston. Because he had not been admitted to the bar of the Inferior Court in Worcester, he had to present himself to the leading lawyers in Boston, who subjected him to a series of oral quizzes in order to ascertain his qualifica•
tions for practice. There were giants at the bar in those days—at least in the eyes of a raw young lawyer. On his first appearance in the court house he “felt Shy, under Awe and concern, for Mr. Gridley, Mr. Prat, Mr. Otis, Mr. Kent, and Mr. Thatcher were all present and looked sour.”80
Mastering his fears, however, he proceeded to call on these men, seeking their approval.
For Adams, the most meaningful of these interviews was that with Jeremiah Gridley, dean of the Massachusetts bar. After asking the candidate about his studies, Gridley urged upon him a broad course, covering not only the common law, but also “civil Law, and natural Law, and Admiralty Law,” and gave him directions for study in each. Then came timeless words of counsel:
I have a few Pieces of Advice to give you Mr. Adams. One is to pursue the study of the Law rather than the Gain of it. Pursue the Gain of it enough to keep out of the Briars, but give your main Attention to the study of it. The next is, not to marry early. For an early Marriage will obstruct your Improvement, and in the next Place, twill involve you in Expence. Another Thing is not to keep much Company. For the application of a Man who aims to be a lawyer must be incessant. His Attention to his Books must be constant, which is inconsistent with keeping much Company.81
Adams took these words as his guide. Gridley's approach fitted his own intellectual inclinations precisely, so that throughout his life he remained a student, considering all legal learning his domain, and from that moment looked to Gridley as his master. His wry comment years later indicates that Gridley's philosophy had its disadvantages:
His Advice made so deep an Impression on my mind that I believe no Lawyer in America ever did so much Business as I did afterwards in the seventeen Years that I passed in the Practice at the Bar, for so little profit: and although my Propensity to marriage was ardent enough, I determined I would not indulge it, till I saw a clear prospect of Business and profit enough to support a family without Embarrassment.82
Upon the recommendations of Gridley and others, Adams was sworn an attorney in the Suffolk County Inferior Court on 6 November 1758, taking substantially the same oath still given at the Massachusetts bar.83
He then settled down in Braintree to pursue the lonely
and arduous routine of any young lawyer starting out for himself. Since he was not at once overrun with clients, he was able to devote much of his time to the furtherance of his legal education. Following Gridley's advice, he embarked upon an impressive course of reading in the civil law, reporting in November 1760 that, in spite of occasional lapses for which he constantly chided himself, “Justinian's Institutes I have read, thro, in Latin with Vinnius's perpetual Notes, Van Muydens Tractatio Institutionum Justiniani, I read thro, and translated, mostly into English, from the same Language. Woods Institute of the Civil Law, I read thro. These on the civil Law.” In the same period, he had read four common-law treatises, as well as “some Reporters” and “a general Treatise of naval Trade and Commerce.”84
One product of this enterprise was certainly his Commonplace Book, printed in the present edition,85
which he filled with abstracts drawn from his reading.
Not all learning came from books. Adams was barely back in Braintree before he attended a trial before Col. Josiah Quincy, one of the local justices of the peace, and he went to court in Boston even before he was admitted to the bar.86
His diary shows that after his admission he was in frequent attendance on both the Inferior and Superior Courts, making notes of the arguments which he heard, digesting the authorities cited in these arguments, and elaborating in his own words upon the points raised. He also sought practical information from all available sources. While reading the treatise on naval trade, for example, he asked the master of a ship “what is a Bill of Lading, what the Pursers Book. What Invoices they keep. What Account they keep of Goods received on Board, and of Goods delivered out, at another Port. &c.”87
On another occasion, after a discussion of real-estate leases with several Braintree neighbors, he wrote: “I find that as much knowledge in my Profession is to be acquired by Conversing with common People about the Division of Estates, Proceedings of Judge of Probate, Cases that they have heard as Jurors, Witnesses, Parties, as is acquired by Books.”88
However knowledgeable the litigious yeomanry of Braintree may have been, the bar was undoubtedly an educational resource of more lasting value. Adams took frequent opportunity to ask his seniors questions “concerning some Points of Practice in Law” that puzzled him, and to record their conversations upon such matters. On at least one occasion he sought advice more formally, asking Gridley for specific criticism of a declaration which he had drawn.89
Further self-education resulted from correspondence with lawyers of his own generation on interesting points which each had come upon.90
The Development and Extent of Adams' Practice
Less than two months after his admission to practice, Adams drew his first writ, a “Declaration in Trespass for a Rescue.” This suit, before a local justice of the peace, arose between two Braintree neighbors, one of whose cattle grazed on the field of the other. Unfortunately, Adams' declaration was defective and the writ abated. In his diary he bemoaned his “Precipitation” in taking the case, blaming “the cruel Reproaches” of his mother, “the Importunity” of the client, and “the fear of having it thought I was incapable of drawing the Writt.”91
He was sure that the episode would make him a laughingstock and drive away potential clients, but the next month he appeared again before a justice, and in July 1759 he entered his first action in the Inferior Court.92
His diary entries for the year reflect other business as well.
Early in 1760, Adams took positive steps to bring himself to the attention of potential clients. In May he wrote an essay decrying the number of alehouses in Braintree. After a year's campaign, he succeeded: the town meeting passed a resolution limiting the number of liquor licenses to three.93
At about the same time he launched another reform movement, this time against “pettyfoggers,” local deputy sheriffs and scriveners who gave bad legal advice and fomented
Perhaps because of these activities, he was able to report in June 1760 that he “had secured 6 Actions” for the July Inferior Court, and a day later “3 entirely new clients.”95
From that point on, his diary contains numerous drafts of arguments and other notes which indicate a steadily developing practice. His fragmentary lists of writs drawn, beginning in January 1761, show that he soon had from ten to twenty writs per term in the Inferior Court in the years before 1763.96
In November 1761 Adams was admitted an attorney in the Superior Court.97
The following year, in a move attributed to Chief Justice Thomas Hutchinson's desire to add dignity to the proceedings of that court, all members of its bar were formally called as barristers at the August term. Adams was among those who thereafter appeared in “Gowns and Bands and Tye Wiggs.”98
This marked the beginning of his practice in the Suffolk Superior Court, where, according to the Minute Books, for the next two or three years he was of counsel in from one to five actions at each term. For the time being, however, his principal concern remained the Common Pleas. In January 1763, for example, he had thirty-six actions at the Suffolk Inferior Court.99
It was not until 1765 that he seems to have made any significant progress in the Superior Court. In March of that year he appeared in at least five actions there, two of which he tried to a jury without success. He was of counsel in eight actions at the August term, prevailing in two of four jury actions.
As he became better established, Adams' business began to expand outside Suffolk County. As early as June 1762, his diary records that he journeyed “To the Land of the Leonards” (Bristol County, a region populated by lawyers and judges of that name) to attend the Inferior Court at Taunton.100
His surviving docket lists for the years 1764 to 1768 show that he attended the Taunton Inferior Court frequently
and had cases at nearly every term of the Plymouth Inferior Court during this period. In addition, he was sometimes present at the Barnstable and Middlesex Inferior Courts and even traveled at least once to the Inferior Court at Pownalborough in Lincoln County, District of Maine, the farthest extent of Massachusetts justice to the eastward.101
At the same time, he rode circuit with the Superior Court, appearing at Bristol in October 1764 and subsequent terms, at Plymouth for the first time in 1765, Worcester and Essex in 1766, Barnstable and Middlesex in 1767, Hampshire in 1768, and Cumberland and Lincoln in 1769.
Adams entered the most active phase of his career in 1768. He appeared in a total of 110 cases entered at nine different terms of the Superior Court (nearly double his previous best annual total) and about 200 cases in various Inferior Courts; he also began to practice in the royal Vice Admiralty Court, where he had one civil case and several important actions for breach of the Acts of Trade.102
His practice seems to have reached a peak in 1772 and 1773. In 1772 he appeared in 202 Superior Court cases in all counties. The next year he drew 262 writs in the Suffolk Inferior Court (not all of which were served or entered) and in 38 more cases there represented the defendants.103
In these years he was certainly the busiest lawyer in the Province, being engaged in 85 entries at the August 1772 Suffolk superior Court. Thereafter he had fewer cases, because political developments in 1773 and 1774 hurt all lawyers' business. After 1774 his political activities kept him out of what little law business there was until his retirement from Congress at the end of 1777. He then returned to Massachusetts, fired by tales of prosperity at the bar and full of expectations of profit. But he was almost immediately appointed Joint Commissioner to France. His departure for that post in February 1778 after only one known court appearance marked the end of his career as a practicing lawyer.104
The content of Adams' practice has not yet been analyzed in detail, but it is safe to say that it covered almost every public and private activity carried on in the Province. The majority of his cases arose out of the simpler financial transactions of trade and commerce, being suits to recover obligations embodied in promissory notes, bonds, or accounts. The more complicated suits of this variety stemmed from the involved affairs of Boston's merchants and their European and West Indian correspondents. Another significant group of cases concerned real estate. Land was one of the principal elements of provincial wealth, and land speculation was a major stimulus to settlement and exploitation of the still empty back country. In the realm of tort, the majority of cases seemed to involve injury to property interests, whether real or personal. Adams also had many suits for defamation in an era of strict honor and tender feelings, as well as a number of actions for assault and battery.
Public matters, too, produced a substantial amount of litigation. Adams devoted much time to suits to collect taxes, to enforce other Province laws, and to protect town interests in land. Other town matters—proceedings under the poor laws, on highway regulation, and the like—brought him often before the county courts of general sessions of the peace, which were charged with administering the great bulk of local regulation. As an active trial lawyer, Adams also had many criminal cases. This branch of the practice involved a familiar range of ills—murder, rape, larceny, assault, counterfeiting—and some more peculiar to Adams' times, such as rioting, mobbing, and tarring and feathering.
Although most of Adams' cases were in the courts of common law, he ventured into every other type of court held in the Province. His practice in the Vice Admiralty Court, almost entirely limited to actions under the Acts of Trade, has already been mentioned. He also appeared in special courts of admiralty called for the trial of felonies committed at sea; in the county courts of probate, as well as before the Governor and Council sitting as the Supreme Court of Probate; and before Governor and Council in their capacity as a court of divorce.
Adams spent most of his time in the trial of cases. In 18th-century Massachusetts much of the office work that today occupies many lawyers almost exclusively—the drafting of wills, deeds, and con•
tracts—seems to have been performed by such non-lawyers as scriveners, notaries, or the parties themselves. The bar apparently claimed no monopoly in these matters, trying to protect itself only from unauthorized practice in the courts. Nevertheless, Adams did on occasion perform counseling and drafting services for his clients in matters not directly connected with litigation.
In his diary for 1759–1760 appear entries which show that he had been called upon to draft a deed, to give advice orally to several “Consultors” who came to his office, and to render a written opinion to a client contemplating suit on an obligation owed to an apprentice.105
Thereafter, such matters continued to form a small but steady part of Adams' practice. For example, his dockets for the southern counties to which he rode circuit contain occasional entries for fees received for “advice” apparently rendered from the saddlebag. Adams' account with John Hancock, receipted in December 1771, contains two items for “advice” and one for drawing a bill of sale.106
Documents pertaining to the Boston Tea Party in 1773 show that Adams and another lawyer were retained by the owners of one of the tea ships to give legal advice just before the events which made their queries moot.107
Letters in the Adams Papers indicate also that clients sometimes sought counsel in a formal way. In March 1773, one W. L. Morgan, who said that he had previously conducted certain “Evening Amusements” at Portsmouth and now wished to put on his entertainment in Boston, wrote for a legal opinion on his plans. He enclosed a proposal, evidently for a kind of private subscription arrangement, which he hoped would “secure me and my necessary Assistants from being troubled by the Act of the Province (if it now exists) against Theatrical Entertainments.”108
Adams' reply unfortunately has not been found.
On at least one occasion Adams served as administrator of the estate of a deceased intestate, as is evidenced by a copy of the letters of administration in the Adams Papers.109
Litigation itself produced a certain amount of activity more in the nature of negotiation than advocacy. In January 1767, for example, Adams informed his friend and brother-in-law, Richard Cranch, that, rather than again sue a “miserable animal” of a debtor who would be badly hurt by the costs, he had taken the debtor's note for the amount of a debt owed Cranch on a previous judgment and was forwarding the note with an account that the debtor claimed Cranch owed him.110
Satisfaction of a judgment could lead a lawyer to extraordinary efforts. On 1 April 1770 Adams wrote to George Hayley, London merchant and correspondent of John Hancock, that he had been obliged to travel to Gloucester with an execution in Hayley's favor, which he was there able to satisfy out of the real estate of the debtor, who had absconded. The letter describes the problems and mechanics of sale, concluding with a request that someone else be given charge of the property, because “it lies so far out of my Province, both in the Nature and Situation of it.”111
Adams' clients came from all segments of Massachusetts society. Probably the majority of them were the solid yeomen of Suffolk County—particularly those in the Braintree area—who year in and year out were constantly bringing one another into court to resolve petty differences. A number of his relatives, of whom he had many, appear regularly as clients. As his reputation increased, however, Adams began more and more to draw his business from the upper ranges of the social and financial order. In his diary for 30 June 1772 he catalogued some of the leading citizens who had been his clients: Silvester Gardiner, James Bowdoin, James Pitts, John Hancock, John Rowe, Jeremiah Lee, Daniel Sargeant, Robert Hooper, and Elisha Doane—all men of great wealth, many of whom were engaged in politics as well.112
Other clients of importance included Governor John Wentworth of New Hampshire; Harrison Gray, Treasurer of the Province; William Story, Deputy Register of the Vice Admiralty Court; Benjamin Hallowell, a commissioner of the customs; and, on at least one occasion, ex-Governor Sir Francis Bernard. The names of others known to history as well as to their contemporaries appear in his cases—for example, Paul Revere, Joseph Warren, and Benjamin Church. There was also the Kennebec Company, consisting of Gardiner, Bowdoin, Pitts, and Hallowell, proprietors of a vast tract in the Kennebec Valley in Maine, whose interests Adams served for many years. In addition, Adams acted in behalf of many towns, including Boston, a name appearing frequently in his accounts.
Many of Adams' cases are important today because of their connection with the dynamic political forces at work in pre-Revolutionary Boston. Among such cases printed in the present edition are the trials in which Adams and others braved public opinion to defend the British officer and soldiers charged with the killings known as the Boston Massacre Nos. (63
); the argument of James Otis against writs of assistance, which was later much circulated as reported by Adams (No. 44
); numerous suits for violation of the British Acts of Trade, including the prosecution of John Hancock for the alleged smuggling of prohibited wine in his sloop Liberty
); the suits brought by Hancock on behalf of certain London creditors of tory printer John Mein, an effective opponent of the nonimportation movement (No. 12
); and the trial of Michael Corbet and other seamen before a special court of admiralty for the killing of a British naval officer who had boarded their merchant vessel at sea allegedly to impress them (No. 56
). In cases not reported in these volumes, Adams represented James Otis in his suit against John Robinson, a customs commissioner who had seriously injured Otis in a tavern brawl,113
and took the case of two county officers sued by merchant Ebenezer Cutler for assisting a mob to harass him when he had transported British goods in defiance of the nonimportation agreement.114
Without a more elaborate analysis of the substantive law of 18th-century Massachusetts than the editors have been able to undertake,
it is not possible to define fully or accurately Adams' contribution to legal development. Isolated instances of influence may be found, however. His cases in the field of administrative law, for example, helped to define the Superior Court's scope of review over the courts of sessions, one decision in his favor even leading to a legislative change (No. 27
). In two of Adams' cases the opinions of Judge Edmund Trowbridge on questions having to do with levy of execution were considered significant enough to be printed in the 19th-century Massachusetts reports.115
Certain of the forms copied into his Pleadings Book, printed elsewhere in this volume,116
were included in a form book published in successive editions between 1802 and 1905.
Some of Adams' cases also had a bearing on later developments in constitutional law. Several suits in which slaves sued for their freedom were decided on technical rather than humanitarian considerations, but they mark the first stirrings of a later movement (Nos.
38, 39, 40, 41, and 42
). Adams was of counsel in a number of cases arising out of the struggles of Baptists and other dissenters against the Congregational religious “establishment.” The concessions won by the dissenters in these suits surely prepared the ground for the intensified battles over religious liberty which followed the Revolution (No. 37
). One of Adams' last cases, a prize suit in the New Hampshire state admiralty court, went through a series of appeals and countersuits that finally brought it before the United States Supreme Court in 1795 (No. 58
). The decision there, long after Adams had severed all connection with the case, treated important questions of federal and state power that were but dimly perceived in 1777.
The Mechanics of Practice
Adams and his contemporaries at the bar were sole practitioners, partnerships in the modern sense being unknown. The informality and closeness of the bar supplied many of the advantages of partnership, however. For instance, lawyers freely loaned books to those who lacked them.117
They also seem commonly to have assisted one another in such matters as court appearances. Adams wrote to Samuel Quincy, asking him to enter some forty actions at the current Suffolk Inferior
Court, “and answer for me in all things once more, and to write me one Line to let me know my Fate, as usual.”118
Adams' dockets in later years show that he would on occasion divide up his entries at a particular term among several lawyers when he was unable to attend.119
It was usual for two lawyers to argue on each side in a case, but we do not know whether such arrangements represented the choice of the client or of the lawyers. In any event these pairings were too fluid to be called partnerships. The Superior Court Minute Books show that Adams more frequently appeared alone than with co-counsel. When he was not alone, Jonathan Sewall, Robert Treat Paine, Josiah Quincy Jr., and three or four others were the lawyers most often paired with him. But he appeared in one or more cases with at least thirty lawyers between 1762 and 1774 and was opposed even to Sewall, Paine, and Quincy far more often than he was joined with them.120
Adams established his office in Braintree at the beginning of his career and remained there until 1768.121
In the latter year, finding that he was spending more time traveling than in court, he moved with his family to Boston, where both the bulk of his practice and the political events which were demanding more and more of his time were concentrated. Between 1768 and 1771 he changed his Boston residence three times. He may have had an office in his first house at Brattle Square not far from the Court House. In the spring of 1769 he moved his family to Cole Lane, some distance away. He then probably took the office “near the steps of the Town house Stairs” where, according to his Autobiography, he was sitting on the morning after the Boston Massacre in 1770 when approached by Captain Preston's representative.122
In 1771, Wearied by the pace of life in town, Adams brought his family back to Braintree to live, becoming for a while virtually a commuter. He then took an office in Queen (now Court) Street, at
which he was in steady attendance while the court was in session. Sometimes he traveled back and forth between Boston and Braintree in the same day; at other times he stayed with friends or relatives.123
In this routine he apparently found some relief for a while, but business-public and private—soon called him back to Boston. In the fall of 1772 he bought a house in Queen Street, “near the Scaene of my Business, opposite the Court house ... and inconvenient and contracted as it was I made it answer both for a Dwelling and an Office, till a few Weeks before the 19th of Appril 1775 when the War commenced.”124
As the account of his practice suggests, Adams must have spent nearly as much time in the saddle, riding circuit, as he did at his desk. These trips to Taunton, Plymouth, Worcester, Salem, Falmouth (now Portland), and other places were often unproductive and always arduous. In his diary and letters Adams spoke frequently of the expense of travel and the potentially more rewarding practice which he was missing at Boston. He spoke too of the boredom and discomfort of his trips and of his ardent longings for familiar scenes and faces. The long eastern circuit to Ipswich and down to Maine which the Superior Court made each June seemed particularly painful, doubtless not only because it entailed a two or three-week separation from his family but because of the long distances and rude living conditions involved.
Adams' trip on the eastern circuit in 1771 is typical.125
On 17 June he set out from Braintree “in a Cloth Coat and Waiscoat, but was much pinched with a cold, raw, harsh, N.E. Wind. At Boston I put on a thick Flannel Shirt, and that made me comfortable, and no more—So cold am I or so cold is the Weather.” After the stop in Boston and dinner in Maiden, he pressed on, riding for a while in company with Judge Cushing of the Superior Court. The two stopped briefly in Lynn, but Adams went on to spend the night in Salem, complaining that “I have hurt myself today, by taking cold in the forenoon, and by drinking too much Wine” at his various way stops. No relief was immediately at hand, however. A friend, grief-stricken at the recent loss of his wife, shared Adams' chamber, keeping him awake for hours with his woes.
The next day Adams arrived at Ipswich, where he remained in reasonably comfortable surroundings for the week that the court sat there. Then came a day's ride to York, with a lengthy stop on the way in Portsmouth, New Hampshire. After four days in York, Adams and several other lawyers departed for Falmouth, spending the night at Biddeford. Rain delayed the party for a day, but on Sunday they went on to Scarborough, and, after going “to meeting forenoon and afternoon,” proceeded to Falmouth. There, on 2 July, Adams expressed his disgust in his diary: “This has been the most flat, insipid, spiritless, tasteless Journey that ever I took, especially from Ipswich. I have neither had Business nor Amusement, nor Conversation. It has been a moping, melancholly Journey upon the whole.” Yet he was still there on 5 July, having argued at least one case in a manner which brought him what he felt to be ill-deserved compliments. His diary breaks off at this point, but presumably he then began the homeward trip, which would have taken him at least three more days of riding—a total elapsed time of over three weeks.
Despite their inconveniences these trips had certain advantages. In the first place, they must have produced a favorable financial balance. The trips to Bristol and Plymouth always resulted in much business, and the journeys to the eastward usually concerned the affairs of the Kennebec Company, one of Adams' most lucrative connections. Riding circuit must have had a major effect on the atmosphere in which practice was conducted. As Adams' 1771 trip shows, judges and lawyers often traveled together, finding lodgings at the same inn and frequently spending the evenings in mild conviviality. There were also chances for more serious discussion. On the trip just described, for example, Adams spent two evenings in conversation with Judge Trowbridge, one of the foremost legal minds in the province.126
Men thus thrust together in common discomfort must inevitably have developed an easy familiarity that made their professional relations closer and more relaxed.
The routine of litigation varied with Adams' location. In Suffolk County the practice centered on the paperwork of an action in the Inferior Court. Adams apparently obtained blank writ forms from the clerk prior to the beginning of each term of court. A client would request that Adams draw a writ as the first step in what was, for many simple notes and accounts, just another coercive measure in the collection process, intended to force payment from a reluctant debtor. The small number of writs which actually led to litigation attests this fact. Often a settlement satisfactory to the plaintiff occurred before
the defendant was served. Where more pressure was necessary, Adams or his client delivered the writ to the sheriff; service on the defendant had to be accomplished at least fourteen days before the court sat.127
Service led to a few more settlements. If the action was to proceed, Adams entered it on the docket of the court, a step which had to be taken on or before the first day of the term.128
The clerk of the court prepared lists of all the entries and distributed them to the lawyers. But many cases on these lists were never tried, either because the writ could not be served or because of a late compromise by the parties.
Adams was retained by defendants in relatively few cases, but a far greater proportion of these matters was actually tried than was true of cases in which he represented plaintiffs. This fact suggests that, unlike his modern counterpart, the 18th-century defendant did not obtain counsel until just before trial. Once a case reached the trial stage, it no longer fitted into the paperwork routine. It might be continued (that is, put over) for several terms, demurred, or tried to a jury. If there was a judgment, execution would issue, or an appeal might be taken to the Superior Court. The appeal itself might be dropped, in which case a complaint for affirmation had to be filed; or it might be continued or tried. At these later stages, Adams might be engaged to try or argue a case with which he had not been previously connected.129
On circuit, the routine was like that after entry in Suffolk. The drawing of writs and entering of actions in the Inferior Court seems to have been accomplished by local counsel; when Adams took a case, it was usually either to replace the local man or to join with him.130
He tried some of his circuit cases by prearrangement with Boston
clients who had business in the outlying counties. Other cases came to him after his arrival in the shire town—virtually at the courthouse door. This feature of ambulatory law practice is perhaps best illustrated by Adams' comment in a letter written during a halt en route to Falmouth from York in July 1774, that Josiah Quincy Jr. “would not stop, but drove forward, I suppose that he might get upon the Fishing Ground before his Brother Sam, and me.”131
The account books necessary for an estimate of Adams' income from the practice of law are missing, and there are no other comparable sources. If we are to take him at his word, we must conclude that he made no fortune at the bar. But he was able to purchase modest realestate holdings in Braintree and a house in Boston, as well as to spend “an Estate in Books [and]
a Sum of Money indiscreetly in a Lighter, another in a Pew.”132
It was not from such modest investments, or his conservative speculations in mortgages, that wealth came in 18th-century Boston, however. Adams recognized this in his Autobiography: “I was too much enamoured with Books, to spend many thoughts upon Speculation on Money.... I was more intent on my Business than on my Profits, or I should have laid the foundation of a better Estate.”133
Even at the peak of his career, Adams owed any financial success more to quantity of business than to high fees. His charges seem to have been standard for nearly all clients and in many cases were governed by statute. The minimum for drawing a writ was seven shillings, but in cases where a complex declaration was required the figure might go as high as eighteen shillings. The average seems to have been about twelve shillings. Adams often bore the cost of service (usually three or four shillings) in the first instance, as existing accounts with sheriffs for their labors show.134
When an action was entered in the Inferior Court, there were clerk's, justices', and other fees totaling 9s. 8d.135
In many cases Adams received twelve shillings from the client for entry, treating the difference as an advance to be
credited later. If Adams obtained judgment in his client's favor, charges for service and entry were taxed as costs against the losing defendant. These charges were often also paid by the defendant when an action was settled, although it seems to have been more common for the plaintiff to bear his own costs in such cases, as is usual today.
Once the case was entered, most of the fees were limited by statute. A lawyer could charge twelve shillings for a trial in the Superior Court and six shillings for an Inferior Court trial. In addition, whether or not the case came to trial, Adams charged his clients 1s. 6d. per day for “attendance,” that is, presence in court until the case was disposed of. These sums were also taxed as costs.136
In cases where points of law were argued separately from the trial, a matter not covered by statute, Adams, at least later in his career, charged an extra five-shilling “arguing fee.” The usual charge for “advice,” when distinct from litigation, seems to have been about twelve shillings.
Most of Adams' income seems to have come to him through these small increments—a great many twelve-shilling writs and a substantial number of litigated matters that brought him no more than a pound or two. More rarely a single case might be complicated enough to bring a larger fee, but usually the figure would have been earned shilling-by-shilling through the same painstaking series of small steps that made up the lesser business.
John Hancock's account with Adams, rendered and paid in December 1771, is a good demonstration of the economics of practice.137
It covers the period March 1769 to December 1771 (the month in which writs for the January 1772 Inferior Court were drawn) and contains twenty-five items in nineteen different matters, amounting to a total charge of some £55. Of these twenty-five items, seventeen are under a pound, and only two exceed £2 10s. Of the nineteen matters, twelve produced fees amounting to less than a pound. The cases producing higher fees had been entered on the docket and involved one or more trial fees and numerous days' attendance. The only two really substantial sums were fees in the two suits against John Mein which Hancock had managed; these came to £34. The Mein actions, as the discussion of them in this volume shows, were continued several times in both the Inferior and Superior Courts. Lengthy accounts had to be procured and annexed to the writs, and elaborate
new pleadings were filed on appeal. The fees here too were undoubtedly made up of a multitude of small items.138
Adams' fees were not always measured by this scale, however, and there were occasionally other sources of income. The Kennebec Company paid him a flat sum of £30 annually to cover fees and expenses on each of his trips to Falmouth from 1769 to 1771; his account with the company, receipted in February 1774, shows an item in June 1772 for “a Journey to Falmouth in Casco Bay and Fees in your Causes and Concerns at that Court by agreement for” £15.139
In January 1778, just before Adams' departure for France, the grateful proprietors voted that the Treasurer give him “a Fee of One hundred Dollars for carrying on the Company's Cause with Coll. Tyng.” This was a case for which Adams had billed earlier at the usual rates. He had apparently participated only in the preparation for trial in 1778, so that the size of the figure (inflation aside) indicates that the tales of prosperity which drew him back to practice at the end of 1777 were not unfounded.140
There are occasional records of other lump-sum fees which do not seem directly based on item-by-item charges for the services involved. For example, in his suit with John Robinson, James Otis made it a condition of the settlement which finally resulted that Robinson would provide a fee of £30 for each of Otis' lawyers—a sum which Adams described in a docket note as “a genteel Fee.”141
In the Boston Massacre trials, the total fees of £136 10s. to be divided among four lawyers for the two trials suggest something more than the usual charges.142
Fees in Admiralty also seem to have been computed on a different scale. In the fall of 1772 Adams received a total of £12 for his services in the preliminary stages of the Kennebec Company's defense of its logs against Surveyor General John Wentworth (No. 55
For the defense of Ansell Nickerson in a special court of admiralty, Adams received a note (never paid) for £6 13s.144
fees were also a fairly frequent source of income not regulated by statute. Sums of a pound or more might be paid to a lawyer, as much to prevent the other side from obtaining his services as anything else.145
It is possible to reconstruct the methods by which Adams kept his financial records. In his earliest years at the bar, he kept a single record in which he entered under the appropriate term of court each writ drawn and each suit in which he represented the defendant. Under each such entry he thereafter made a minute of his fee and of all subsequent phases of the case involving money, his receipts, and his own dealings with any funds of his clients that came into his hands.146
As his practice became more extensive, Adams' accounting techniques grew correspondingly more sophisticated. At first he seems to have operated entirely on a cash (or at least negotiable instrument) basis, and in the counties to which he traveled on circuit he apparently continued to use this method with all but a few major clients. After about 1768, however, the notation “posted” begins to appear beside certain entries in his lists of Suffolk County actions, indicating that his fees and other charges for those suits were being entered in an account ledger of some sort against the name of his client.147
Surviving materials for the years after 1770 show that there were at least three accounting tools in Adams' bookkeeping system.
The basic device was the “Office Book” or “Writ Book,” a term-by-term listing of writs drawn for the Suffolk County Inferior Court, in which all fees and charges for drawing, entering, and serving each writ appeared, as well as the terms of any pretrial settlement of the action or direct payment of cash to Adams by or on behalf of the client.148
If the disposition of the case was such that no execution was to issue, then the notation “finished” would appear beside the entry if
Adams had been paid in cash or by note; “posted” would appear if any unpaid balance was being transferred to the client's account; or “not to be posted” might be written, indicating that for some reason Adams was not charging for his services. Sometimes the notation would be “posted to Mr.——,” a third party who apparently was bearing the charges of a particular action.
If execution was to be levied in behalf of Adams' client, the entry “posted E.B.” would appear in the Writ Book, meaning that the case had been entered in the second bookkeeping device, the “Execution Book.”149
There the amounts of the judgment, costs, and fee for the execution were entered. Upon satisfaction, Adams either received the amount of the costs (his fees and outlays) in cash, in which case the notation “finished” appears, or the balance of costs outstanding was “posted” to the client's account.
Debtor and creditor ledgers in which each client had a separate account were the third device. Here were posted entries from the writ and execution books. Other fees and charges, such as those for attendance at court, arguing and trying cases, and obtaining copies of the record and papers in appealed cases, were entered separately in the ledgers when the matter was such that no bill of costs embodying these charges could be taxed against the other party. Credits, such as payments on account, were also entered.150
The means which Adams used for keeping track of these last billable items is not entirely clear. He was charged for copies of records by the court clerk who prepared them, and he posted such charges from the bill to the appropriate accounts.151
The other matters are occasionally noted in the docket lists supplied by the clerk each term, which Adams used as a kind of running register of the disposition of his cases. Inconsistency in such entries suggests the existence of still a fourth bookkeeping tool, a case-by-case record in which attendance and like matters were recorded systematically. Occasional mentions of “minute books” in the docket lists may refer to such a device.152
Since Adams' receipts tended to take the form of promissory notes or accounts receivable, collection was a serious problem. Part of the difficulty lay in Adams' extreme slowness about calling his debtors to book, a trait probably resulting from press of business, rather than generosity. For example, Hancock's account, already described, covered a period of over two years when rendered, and in the Adams Papers there are still a number of unreceipted notes for legal fees given by various impoverished clients.153
In 1790, when he was serving in Philadelphia as the nation's first Vice President, accounts both for and against him, dating from his pre-Revolutionary law practice, were still outstanding.154
Adams was not always so slow, however, and was, in fact, one of his own best clients. Nearly forty actions in which he was plaintiff have been identified in the court files. Although many of them are suits on notes or bonds which could have arisen in other ways, several are on accounts which clearly show that the defendant was a defaulting client.155
The Intellectual Side
Amidst the confusion and detail of his extensive practice, Adams never lost sight of the one element in his professional make-up which raised him above so many of his contemporaries at the bar. His questing, Harvard-opened mind, stimulated by the example of Putnam, and to a far greater extent by Gridley, always approached the law on the highest possible plane as an intellectual discipline—one of the humanities. As he read the dry and endlessly annotated texts of the civil law and the ancient common-law classics urged upon him by Gridley, he also worked his way through the philosophers of the Enlightenment, who spoke so much in jurisprudential terms. Justinian, Vinnius, Bracton, Coke, Bolingbroke, Montesquieu, and Rousseau mingle in the early diary entries that record his reading. From this course of study came the appreciation of law as politics, law as philosophy, and law as jurisprudence which so colored Adams' later approach to the problems of his time and was so much a part of his contribution to their solution.
Gridley's original inspiration had been a critical factor in the
formation of this intellectual interest, and Gridley was to be instrumental in reviving it and directing it at its maturity. In January 1765 the older lawyer brought Adams and two or three contemporaries together in a legal study and discussion group, which Adams called the “sodality,” or “Sodalitas, A Clubb of Friends.”156
The group does not seem to have lasted long, but while it flourished, Adams found it highly stimulating and rewarding. The readings in the ancient English and Roman law were such as he might have pored over alone, but the sodality changed what had been dutiful labor into a source of heightened comprehension, as the “Friends” explored thoroughly the philosophical and historical roots of their legal system. Out of this exploration came Adams' first major piece of writing, later called “A Dissertation on the Canon and Feudal Law,” which is discussed more fully below.
An important manifestation of Adams' intellectual approach to the law was the size and breadth of his law library. Naturally, a busy and prosperous lawyer would require a full collection of reports, treatises, abridgments, collections of precedents, and statute books. These were stock in trade, but the expansion of Adams' library into what he later described as “the best Library of Law in the State”157
was in great measure a part of his broader intellectual development.
As early as 1761 Adams could report that he had “bought some Books &c.,” and there is evidence of sporadic purchases after that, but for many years he could satisfy his appetite only through borrowing from others. Harvard College, Gridley, Otis, and Samuel Quincy were among those who lent him books too esoteric and expensive for a young lawyer to buy, even if he could have found them in the bookstalls of Boston.158
He apparently bought many of Gridley's books at auction after the latter's death, a solid start for a substantial collection.159
In 1768, when his practice had begun to bring him significant returns, he wrote in his diary on the eve of the Gridley sale that he was “mostly intent at present, upon collecting a Library,” a project which he found took “a great deal of Thought, and Care, as well as Money.”160
The source of his later complaints that he had “spent an
Estate in Books” is apparent in his efforts in 1771 to open a “Correspondence” with Messrs. Dilly, London booksellers. He expected to spend £20 or £30 a year on books and wanted sent to him “every Book and Pamphlet, of Reputation, upon the subjects of Law and Government as soon as it comes out—for I have hitherto been such an old fashiond Fellow, as to waste my Time upon Books, which noBody else ever opened here, to the total Neglect of spick and span.”161
The editors have not attempted to produce a detailed bibliography of Adams' law books, or even to identify them consistently in footnotes. The sources for a bibliographical study exist, and it is to be hoped that one may be forthcoming, either as part of a larger study of the successive and cumulative Adams family libraries to be prepared by the Adams Papers editors, or as a separate essay. The best existing source is the printed Catalogue
of John Adams' books as they now stand in the Boston Public Library.162
This work shows, for example, that he owned at least nineteen volumes of reports, including Barnardiston, Burrow, Coke, Croke, Hobart, Kelyng
, Lord Raymond, Salkeld, Saunders, and Vernon; Bacon's and Viner's Abridgments;
Ruffhead's English Statutes at Large;
Rastell's, Coke's, and Lilly's books of entries; and a large number of treatises and general works on common law, civil law, the law of nations, and more general jurisprudential topics. Among the treatises were Gilbert's works on the Exchequer, the Court of Chancery, and feudal tenures; Barrington, Observations on the Statutes;
Godolphin, Orphans' Legacy
and Repertorium Canonicum;
Foley, Poor Laws;
Fortescue, De Laudibus Angliae;
Calvinus, Lexicon Juridicum;
Gardiner, Instructor Clericalis
; Hale, History of the Pleas of the Crown
; Hawkins, Pleas of the Crown
; Selden, Opera Omnia;
Malynes, Lex Mercatoria;
Swinburne, Testaments and Last Wills;
, in English and American editions (to the latter of which Adams was a subscriber);163
and many other 18th-century legal works.
cannot be relied upon as accurate for two reasons. First, it does not represent the entire Adams family library by any means. Among John Quincy Adams' books in the Stone Library at Quincy are undoubtedly books once belonging to the elder Adams
that were appropriated by the younger, who also had a brief legal career.164
Secondly, Adams remained interested in the law for nearly fifty years after he left active practice, and in many cases it cannot be determined when a given book in the Catalogue
was purchased. There are specific references to a few books in Adams' diary and correspondence which permit such a dating,165
and occasionally a book itself bears a date of acquisition. There are also countless citations of legal works, not only in the present edition, but throughout the diary as well. Although these citations are a great aid in determining the content of Adams' library, they present certain pitfalls. Since lawyers frequently lent one another books, a particular citation may mean only that the cited work was owned by someone in Boston. It may not mean even that much. Careful scrutiny will reveal that citations have often been lifted bodily from another source, such as a treatise or abridgment. This is especially true of references to the more obscure English reports. The final compilation of an Adams legal bibliography will thus involve a careful process of study of the available books themselves and contemporary references to them, combined with a weighing of the probabilities that Adams used a given work.
The Legal Profession
Adams' awe before the leaders of the bar at the time of his admission in 1758 has been described. His own professional maturing can perhaps be measured in the speed with which awe and the desire to attract and please turned into critical evaluation. His keen eye soon caught their foibles: Gridley's “great Learning, his great Parts and his majestic Manner ... diminished by stiffness and affectation”; Prat, with “a strong, elastic Spring, or what we call Smartness, and Strength in his Mind” Otis, “extremely quick and elastic,” who “springs, and twitches his Muscles about in thinking”; Thatcher, lacking “this same Strength and Elasticity ... sensible, but slow of Conception and Communication ... queer, and affected.”166
Kent, “for fun, Drollery, Humour, flouts, Jeers, Contempt ... an irregular
immethodical Head, but his Thoughts are often good and his Expressions happy.”167
Younger men, too, came under his critical gaze. Fitch was “not Steady,” with “a look of Conceit, affectation, Suspicion, and Diffidence. His swell. His Puff.”168
Auchmuty argued with “voluble Repetition and repeated Volubility.” How was “this Man conspicuous? in Reasoning? in Imagination? in Painting? in the Pathetic? or what? In Confidence, in Dogmatism, &c.” To call him a leader of the bar was “a Libel upon it—a Reproach and disgrace to it.”169
And through all runs the tragic decline of Otis, once “Nervous, Concise, and pithy,” now (in 1770) “verbose, roundabout and rambling, and long winded ... an Object of Admiration, Reverence, Contempt and Compassion all at once.”170
As his personal evaluations of the bar sharpened, his collective judgment of his colleagues grew more dispassionate. In 1766, he could, without comment, rank himself and two contemporaries among the leaders and calmly wonder which of them would be gone four years later.171
That he had taken his colleagues' measure is perhaps most clearly expressed in his description of them in 1769: “I don't think the World can furnish a more curious Collection of Characters” than Otis, Kent, Dana, Gridley, Fitch, and the others.172
The informal manner in which Adams was examined and recommended for admission to the bar in 1758 suggests that this “curious Collection of Characters” was at that time very loosely organized, with rather ill-defined requirements of study and apprenticeship. The beginnings of a more formal organization may stem from Hutchinson's creation of the grade of barrister and the formalities of gown and wig in 1762. In any event, an actual bar association is known to have met thereafter. In February 1763 the bar agreed upon rules limiting practice in the Inferior Court to a “sworn attorney,” only to see the court reject the proposals when Otis, who had apparently kept silent before, opposed them on presentation. “Thus,” reported Adams, no doubt particularly aroused because of his long campaign against
pettifoggers, “with a whiff of Otis's pestilential Breath, was this whole system blown away.”173
At another meeting described by Adams in July 1766, the bar met formally to vote upon the admission of “3 young Gentlemen”—a significant advance over the private consultations with which Adams was ushered into practice. Still more important, at this meeting “the Bar has at last introduced a regular Progress, to the Gown, and seven Years must be the State of Probation.”174
The new rule seems to have meant three years of study, two years as an Inferior Court attorney, and two years as an attorney in the Superior Court—a “Progress” slow enough to meet the twin aims of assuring adequate preparation and hindering the development of competition.
In January 1770, for reasons that are obscure, a number of Suffolk County barristers and attorneys formed a new bar association in which Adams was to play a leading part. At the first meeting he was elected secretary and directed to “wait on Judge Auchmuty, and request of him, the records of a former Society of the Bar in this County.”175
The new group continued to meet regularly thereafter until July 1774, when the closing of the courts and the departure of many members (including the secretary) for other concerns brought a temporary halt. By 1778 the Society had begun to meet again, and, as the first Boston Bar Association, continued in existence until 1835.176
Like its predecessor, the new association concerned itself with rules of practice, but most of its deliberations were devoted to the regulation of law study and admission to the bar. At the start, prior practices were followed. For example, in October 1770 it was voted that Josiah Quincy Jr., Sampson Salter Blowers (two of the “3 young Gentlemen” admitted in 1766), and Francis Dana “be admitted as barristers, they having studied and practised the usual time.”177
February 1771 the bar accepted the report of a committee of which Adams was a member, recommending adoption, with amendments, of certain rules of the Essex County bar. The new Suffolk rules embodied the requirement of a total of seven years' “Progress to the Gown,” but added certain qualifications. No member was to take a student without consent of the bar, nor was anyone to be recommended for admission to the Inferior Court who had not studied with a barrister for at least three years. The consent of the bar was to be given only at a general meeting, and was not to be given to one who had “not had an education at college, or a liberal education equivalent in the judgment of the bar.”178
Adams had more than a casual interest in the rules he helped to formulate, for one of his own significant contributions to the development of the legal profession was his role as teacher of the students who served as clerks in his office. When the new rules were adopted he already had two clerks and had seen at least one earlier student enter upon a successful career at the bar. He considered preceptorship a serious responsibility, for, he said on taking two clerks in 1769, “[M]
y own Honour, Reputation and Conscience, are concerned in doing my best for their Education, and Advancement in the World. For their Advancement I can do little, for their Education, much, if I am not wanting to myself and them.”179
That he found it a responsibility worth bearing, however, appears in his comment in 1778 that “Few Things ever have given me greater Pleasure than the Tuition of Youth to the Bar, and the Advancement of Merit.”180
In his Autobiography, Adams recalled that, from 1769 until the
Revolution, he “had never been without three Clerks in my Office.”181
The following chronological listing of the ten men known to have clerked for him shows that this recollection is substantially correct:
|Jonathan Williams Austin
||August 1769–July 1772
||August 1769–July 1772
||May 1771–February 1773
||September 1772–ca. October 1774
||October 1772–ca. January 1775
||December 1773–September 1774
||July 1774–May 1775
||July 1774–July 1777
||September 1775–August 1776
There may possibly have been others who entered his office, but it seems probable that this list is nearly complete. Because in 1769 Adams had been reluctant to take even two clerks, it is unlikely that he would have carried any greater number than that appearing here in later years. As to the period before 1769, it seems probable that Angier, who was subsequently admitted in Plymouth County, was Adams' only student before he moved his office to Boston in 1768.182
Biographical details on Adams' clerks appear under their names in the Register of Bench and Bar. In summary, they were a group of young men of brilliant promise which most of those who survived the Revolutionary decade went on to fulfill in public service. Eight
were Harvard graduates, one was a Yale man, and one came from Princeton. Austin, Thayer, Williams, and Hill had all died by 1780, Hill while in the army, and Austin after two years of service. Angier, before his death in 1786, had amassed a considerable fortune in practice and had served in the first General Court elected after Independence. Trumbull, early American poet and wit, became a successful lawyer and judge in Connecticut. Tudor and Mason went on to long and productive careers in private practice and in state and federal government. Thaxter, who became an intimate of the whole family, was Adams' private secretary in Europe from 1779 to 1783. Rice served ably in the Continental Army through the Revolution and was a lieutenant colonel in the Provisional Army from 1799 to 1800.
The documentary remains of Adams' practice show that his students, like many others before and since on both sides of the Atlantic, did their share of “raking amidst the rubbish of Writs.” The writs filed in his cases, notations in his dockets and account books, forms copied into his Pleadings Book, are more often than not in the handwriting of one or another of his “young Gentlemen.” Perhaps remembering the dissatisfactions of his own student days, Adams gave his clerks much more than this fundamental 18th-century course of law study. In the first place, he expressed great personal warmth toward them, bringing some of them into his family and developing lifelong personal friendships with them.183
Secondly, he gave them much responsibility for the conduct of the lesser phases of his practice—drawing writs, entering actions, keeping track of the court docket, and collecting fees from clients.184
Most important was the intellectual approach to the law, learned from Gridley and painstakingly developed further on his own initiative, which Adams sought to instill in his students. By personal example and teaching, he undoubtedly encouraged them to make constant use of his ample library. His diary and letters contain many references to the need for steady application to study. His views appear most strongly in two letters to Jonathan Mason written in 1776 when
Mason had nearly completed a frustrating year in what was left of Adams' office and was contemplating abandoning study for more worldly pursuits. Adams advised his student against going into practice.
[I]t is of more Importance that you read much, than that you draw many Writts. The common Writts upon Notes, Bonds and Accounts, are mastered in half an Hour. Common Declarations for Rent, and Ejectment and Trespass, both of Assault and Battery and Quare Clausum fregit, are learn'd in very near as short a Time. The more difficult special Declarations, and especially the Refinements of Special Pleadings, are never learnd in an office. They are the Result of Experience, and long Habits of Thinking.
To learn the art of pleading, Mason was advised to read Plowden, Instructor Clericalis,
Mallory, Lilly, Rastall, and Coke. “Your time will be better spent upon these authors than in dancing attendance upon a Lawyer's office and his Clients.”185
But this was only a beginning. The student must read all of the amassed wisdom of the common law to be found in Coke's Institutes
, and Reports;
in Horne, Bracton, Britton, Fleta, Glanville, and other ancient masters; and in the yearbooks, the earliest common-law reports. In addition, the great works of the civil law should be studied—not only Justinian and his commentators, but Wood, Domat, Ayliffe, and Taylor—because this was a study “so interspersed with History, Oratory, Law, politics, and Warr, and Commerce, that you will find Advantages in it, every day.”186
If this was a course of study which might have caused the hardiest enthusiast to wonder when he would have time to eat and sleep, it was no more than Adams had set for himself and largely accomplished in the years since Worcester. If, as a practical matter, even Adams could not have allowed a clerk the time to get through such a curriculum, nevertheless, the very fact that such a challenge could be made must have opened the minds of his students to the broader meaning of the law.
Law and Public Life
John Adams brought two great qualities to public life from his legal training and experience. The first was a lawyer's natural aptitude for the business of government. The analytical and organizational abilities, the knowledge of the workings of daily affairs, which the study and practice of law develop in a lawyer, make him an instinctive specialist in administration and legislation. The second, perhaps more peculiarly Adams' own, was a broad understanding of the law as political philosophy. His extensive knowledge of comparative law and constitutional theory, a product of his years of reading, was an ideal background for the political crises of the times.
Adams put the first of these qualities into practice early in his career. After attracting attention in Braintree with his campaigns against alehouses and pettifoggers, he found as early as 1761 that he was being consulted on the town's highway problems. For several years thereafter, he served on committees having to do with such matters, as well as with the sale of town lands, and in March 1765 he was chosen surveyor of highways.187
The “Abstract” of the writs of assistance argument which Adams prepared in 1761 (No. 44, Document II
) was his first significant demonstration of the second quality. In 1765 the fortunate coincidence of developments in his private intellectual life and the passage of the Stamp Act by Parliament gave him an opportunity to bring the broader resources of his legal background directly to bear in a matter of great public importance. From that point on, the roles of lawyer, public servant, publicist, and political philosopher were inextricably mixed.
In January 1765 Adams' participation in Gridley's “sodality” had led him to contemplate, through the medium of legal history, the oppressive nature of the basic institutions of English government. His paper on the canon and feudal law, apparently first prepared for a meeting of the group sometime in the spring, described those oppressions at length and compared them most unfavorably with the efforts of the Puritan settlers of Massachusetts to escape the old ways and establish their own form of government in the New World.188
Late in the spring came news of the Stamp Act, which Adams, bemoaning the damage it had done to his practice, called “this execrable Project ... set on foot for my Ruin as well as that of America in General, and of Great Britain.”189
But, as Bernard Bailyn has pointed out, far from bringing him to “Ruin,” the Stamp Act brought Adams for the first time into the affairs of province and empire.190
His essay on the canon and feudal law now took on new meaning as he revised and expanded it for publication in the Boston Gazette.
It appeared there in four installments between August and October 1765, with a conclusion characterizing the Stamp Act as a measure born of the old feudal tyranny and intended to aid in the suppression of hard-won colonial liberties.191
At about the same time Adams made his first official pronouncement on public issues. As a member of a town committee, he drafted Braintree's Instructions to its Representatives in the General Court, attacking a vice in the Act of particular concern to a lawyer—trial of offenses in admiralty without a jury—with supporting authority from Magna Charta.192
In December, Adams brought his legal talents directly into play when he argued before the Governor and Council in behalf of the town of Boston that the courts should be opened for business despite the lack of stamps. Adams' notes show that although his speech, like a courtroom argument, was narrowly phrased, it called for action in the broadest language, citing Coke and other authorities which supposedly demonstrated the limited power of Parliament.193
His “Clarendon” letters, published in the Boston Gazette
in January 1766, with their elaborate description of the British constitution, relied heavily on Coke, both as authority and inspiration.194
Riding the crest of the notoriety which the Stamp Act had brought him, Adams was elected a Braintree selectman in March 1766, defeating a candidate supported by the pro-government faction.195
He then apparently campaigned for the General Court in May, but, while the rest of the Province rewarded the recent opponents of Parliamentary rule, Braintree, “insensible to the Common Joy” at repeal of the Stamp Act, returned a Crown supporter to the legislature.196
Adams consoled himself in the office of selectman, where for two years he served the public in a more workaday fashion, becoming immersed in the perennial problems of local government—schools, poor relief, taxes,
and roads. In later years, when he tried many cases under the poor and tax laws, he was undoubtedly grateful for this exposure to local problems from the administrative viewpoint.197
In 1768 Adams declined to run for selectman again and moved to Boston, where he at once became involved in the clubs and caucuses of urban politics. Events soon brought his law practice and his political activities into phase. In the turmoil after the seizure of John Hancock's Liberty
in June 1768, he drafted Boston's Instructions to its representatives, putting forward legal arguments against the presence of H.M.S. Romney
in Boston Harbor and the impressment activities of her captain. His defense of Hancock in suits for penalties for alleged smuggling in the Liberty
was the source for a second set of Boston Instructions in March 1769 and several contributions to “A Journal of the Times,” a patriotic propaganda column which appeared in both Boston and other colonial newspapers. These writings again drew heavily on Coke and his interpretation of Magna Charta, as well as on a number of civil-law authorities.198
At about this time Adams achieved enough prominence to lead various Crown adherents into unsuccessful efforts to draw him to the royal side.199
Adams was elected to the House of Representatives from Boston in June 1770,200
despite his having agreed to defend Preston and the British troops after the Massacre (Nos. 63
). There he served with great industry for a year, apparently acting as legal adviser to the patriot faction in its clashes with Lieutenant Governor Hutchinson. He was a member of several committees formed to protest Hutchinson's order that the House sit in Cambridge, and he helped to prepare the final resolution which the House defeated in preference to dissolution.201
Hutchinson reported that “the members of the first character for knowledge in the law were much engaged in” a subsequent controversy over the form of the enacting clause in legislation regulating provincial salaries. Adams, Joseph Hawley, and Daniel Leonard were members of a committee appointed to report on the matter.202
A number of nonpolitical measures dealt with matters of importance to Adams then or later in his legal career. Among several new towns which the House carved out of hitherto unincorporated districts were four within the propriety of the Kennebec Company along the Kennebec River in Maine.203
Because Adams had been active in litigation for the Company since 1769, it seems probable that he had a part in the passage of these acts. In November 1770 a committee of which he was a member brought in a bill, ultimately enacted, for a new statute of limitations, ending a twenty-year suspension of the limitations on certain actions. Adams must have found his acquaintance with this act useful when its construction became an issue in a case which he argued the next June.204
Another measure arose out of a matter in which he had been concerned as counsel—the efforts of Baptists and Quakers to avoid taxation for support of the ministry. An act renewing exemptions for the dissenters, with “some small alteration in favour to the Baptists,” included a provision of former acts, missing in the immediately previous one, that those exempted from taxation could not vote in town meeting on church matters. An election case which Adams had argued in 1769 demonstrated this gap in the existing statute.205
The combination of a hectic legislative term and a busy law practice, which had included the Boston Massacre trials, led Adams to leave not only the House but the town in April 1771, complaining that both his health and his business had suffered in the public service. When he brought his family back to Boston in the fall of 1772, it was with a firm resolve to stay out of politics altogether.206
In this effort he was for a time successful, at least as far as elective office was concerned. The House chose him to sit on the Council in 1773 and
again in 1774, but he was negatived on both occasions by the Governor.207
Adams did engage in one piece of public service of at least superficially a nonpolitical character. On 1 March 1774 the General Court appointed him, with James Bowdoin, a committee to prepare a statement of Massachusetts' claim to the “western lands,” territory extending westward to the Pacific Ocean, which the province claimed under the terms of the old Bay Colony charters. According to his later account, Adams produced a brief supporting the Massachusetts position, which was not acted upon in 1774 because of sudden changes in the political scene, but which was rediscovered and used by the Massachusetts representatives in boundary negotiations with New York after the Revolution. A copy of this document, as supplemented by a committee in 1783, has survived, together with Adams' notes for it and materials he assembled to refute the New York claims.208
Since the arguments seem to have been based on the terms of the various royal charters and confirmatory legislation, he must have found his work of the preceding year on the Kennebec Company's claim to mast trees cut on its lands (No. 55
) a useful preparation.
In matters of more immediate political importance, Adams' resolve to avoid involvement soon weakened, but his role was to be unofficial. When Governor Hutchinson, addressing the House in January 1773, announced that Parliament could bind the colonies by legislation “in all cases whatsoever,” the House felt obliged to reply. Adams supplied the authorities and reasoning underlying the paper delivered to the Governor on 26 January.209
More critical were questions concerning the judiciary. Since Thomas Hutchinson's appointment as Chief Justice in 1760 at the expense of the elder James Otis' claims to the post, the Superior Court bench had been involved in controversy. Hutchinson's plural officeholding, the appointment of his brother Foster to the bench after the
Governor resigned, the appointment as Chief Justice of Judge Peter Oliver (a relative by marriage of the Hutchinsons and brother of Andrew Oliver, Secretary of the Province), the fact that neither Oliver nor the Hutchinsons had received formal legal training, had all aroused criticism from the patriot side for years. Crisis finally came with the proposal of the Crown to make the judges of the Superior Court independent of the provincial legislature by paying them salaries out of revenues collected in the colonies.210
At a Cambridge town meeting in December 1772, William Brattle, a member of the Council, had argued that the proposal was harmless, because the judges, having life tenure during good behavior, would not be influenced by the source of their salaries. Brattle then challenged Adams by name to debate the point and proceeded to have his argument published in the Boston News Letter.
Adams, fearful that, as a result of “These vain and frothy Harrangues and Scribblings,” Brattle's “Ignorant Doctrines were taking Root in the Minds of the People,” wrote a series of seven articles in reply, evoking a single rebuttal from Brattle. Adams contended that, unless a statute altered the common law, judges held office only at the King's pleasure, arguing that this was the rule in England until the Act of Settlement in 1701 gave judges life tenure. The authority which he cited to support this position is a good demonstration of his weapons for such a controversy. Besides citations from numerous reporters and the State Trials
, he brought to bear not only such common-law authorities as Bracton, Coke, Fortescue, Bacon, Gilbert, Hawkins, and Blackstone, but also historians Hume, Rapin, Rushworth, and Stryk.211
These articles did not themselves end the controversy over judges' salaries, but they put Adams in a position to prepare the measure which did. According to his Autobiography, to avoid mob violence against the judiciary, he proposed that judges taking royal grants be impeached by the House and tried by the Council. He recalled that
he had supplied the authorities on which the proceedings were based, had developed arguments based on those authorities to convince the waverers that the power thus claimed existed, and had advised the committee of the House finally chosen to draft articles of impeachment against Peter Oliver, the Chief Justice, who alone had not renounced the royal salary. At the end of February the House adopted the articles and the matter went to the Council. There it remained unacted upon, despite further encouragement from Adams, because Hutchinson refused to preside.212
Although impeachment failed, its real purposes were ultimately achieved. Refusals of juries to serve if Oliver appeared, and threats of violence in the shire towns, had kept him from the bench through the spring of 1774. At the August term of the Superior Court in Boston he determined to face the issue and took his place with the court. As the mob, held back only by the fear of troops, roamed Boston, the jurors to a man refused to take the oath while Oliver, under impeachment, sat as Chief Justice. The court therefore heard only non-jury business for the brief remainder of the term. When it sat again in February 1775, with Oliver presiding in a now safely loyalist Boston, only a single case was called, and the history of royal justice in Massachusetts came to an end.213
The courts in effect were closed, and the breakdown of civil order which could end only in Revolution had begun.
Adams characteristically bemoaned the effects upon his practice of these events and the passage by Parliament of the Coercive Acts,214
but he had little time to spare in regrets. In June 1774 he was appointed to what became known as the First Continental Congress, and he left for its meeting at Philadelphia early in August. There he
found that nearly half the delegates were lawyers.215
Like him they were experienced in public service of the conventional sort, and many of them had also spent the last decade advocating opposition to the Crown on grounds in large measure drawn from the knowledge of legal history and constitutional theory that was part of the learning of their profession. With these arguments the lawyers had made a revolution. Now they were faced with the tasks of turning arguments into the constitutional basis of a new government and applying their talents for public service to make that government work.
Accordingly, after August 1774 Adams devoted his legal knowledge and abilities very largely to the development and operation of the governments of Massachusetts and the United States. In Massachusetts he sat in the Provincial Congress and on the Council, but his most important role was in the judiciary. He was made a justice of the peace for Suffolk County in September 1775, presumably the same kind of courtesy appointment that had been one of the old regime's major sources of patronage. On 28 October 1775 the Council notified him that he had been appointed Chief Justice.216
This position might have seemed to him the peak of achievement in other times, but, with his constant absences to attend Congress, it proved a source of more vexation than pleasure. After much soul-searching Adams finally resigned the office in February 1777 on the grounds that he was unable to perform his duties and that he was being charged with the same kind of plural office-holding that he had found so obnoxious in the Hutchinsons and the Olivers before the Revolution.217
While he held judicial office, Adams worked steadily for the restoration of the judiciary and regular court sessions. He viewed these as essential to the establishment of a stable state government, not only because the judicial system was the part of government with which he was most familiar, but because he knew that it was through the
courts that most people, especially in the remote parts of the state, received their principal contact with the central authority. His letters written from Philadelphia to his friends and judicial colleagues at home were filled with urgings and questions about the preparations for reopening the courts. On a brief visit to Massachusetts in the winter of 1775–1776, he drafted a proclamation for the General Court which was to be read in town meetings and at the opening of the courts—perhaps as part of the charge to the grand jury, a common vehicle for political pronouncements at this time.218
In this document Adams set forth briefly the justifications for independence and for the establishment of a state government and called upon all to support the new institutions. He gave particular emphasis to the “magistrates and courts of justice,” who were “to see those laws enforced, which are necessary for the preservation of peace, virtue, and good order.”219
Adams' only direct participation in the return of justice to Massachusetts was literally nominal: his name was “tested” (i.e. signed) as Chief Justice by the clerk on the venires for each county. When the courts finally did reopen in June 1776, however, his spirit was behind the careful dignity with which the judges proceeded, and his eager queries as to their success were in their hands almost as soon as the terms were over. Only after he was satisfied that the people had accepted the new system did he feel that he had sufficiently discharged his trust to be able to resign his office.220
Countless legislative and administrative labors which cannot be detailed here occupied Adams in the Continental Congress. Two in particular seem directly related to his previous career at the bar. He was on committees assigned to draft rules for the government of the navy in 1775 and to revise the articles of war in 1776. These military codes were largely based on the British articles of war and certain provisions of the Mutiny Acts, with which he must have been familiar
from his experiences with the British forces in Boston, not only at the time of the Boston Massacre, but during the months of occupation that preceded Lexington and Concord.221
Adams' other service of a distinctly legal nature was his membership from March 1777 until his retirement in November of that year on the congressional committee formed to decide appeals from the newly formed state admiralty courts in cases of prize. In this role he sat on what was essentially a judicial body, clearly bringing to bear all his long courtroom experience.222
Adams' most significant services on the national level are beyond the scope of this essay. As a framer of and apologist for the constitutional basis of revolution, he put his broad understanding of law and politics and his personal experience with many of the critical issues to constant use in the congressional debates which formulated the theoretical consensus leading to the Continental Association in 1774 and the Declaration of Independence in 1776. The consensus was supported by his “Novanglus” papers (1775), a definitive statement of the colonial position, in which he cited an array of common-law and civil-law authorities, as well as writings in political philosophy.223
Adams made another important contribution to the growth of the new nation with his works on the constitutions of the state governments formed as a necessary part of national development. The Massachusetts Constitution of 1780, which he drafted, was a vivid example for other states of theory being put into practice.224
All of these activities, as well as his diplomatic career and his subsequent service as Vice President and President, drew to a greater or lesser extent on his background as a lawyer and student of law.
Detailed discussion of the relation between Adams' legal back•
ground and his life in public service must await publication of his political and philosophical writings and public papers in later volumes of
The Adams Papers.
From even this bare summary, however, we may conclude that, in the practice of law and, most of all, in his own profoundly intellectual approach to the law, Adams found the great sources of inspiration which shaped and directed his contribution to the founding of this nation. In translating the residue of so many centuries of legal development into new ideas and forms of government that were to alter the course of world history, Adams stands as a classic demonstration of the wisdom of his guiding genius, Coke, who urged modern readers not to neglect the ancient yearbooks, because, “Out of the old fields must spring and grow the new corn.”225
[signed] L. Kinvin Wroth
[signed] Hiller B. Zobel