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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0003-0003-0001

Editorial Note

This suit, as Adams noted in his diary, “arose from Ambition”1 and (apparently) from competition for the favors of the voters of Sandwich. Rowland Cotton, the town's representative in the General Court since 1758, had lost his seat to Stephen Nye in 1761, but had then obtained the sinecure of Clerk of the House of Representatives.2
In February 1763, Nye presented a petition to the General Court on behalf of “Jabez Joseph, Indian Man of Plymouth Setting forth That he served as a Soldier ... at Crown Point in 1761, and that in his way home he froze both his feet, and lost part of both, so that he is like to be a Cripple all his days, And Praying an Allowance.” The court voted a total of £4 to be paid to Nye “to be by him delivered to Mr. Elisha Tupper for the use of” Joseph. In addition Tupper, who had apparently been Joseph's master, was to receive £4 annually for three years, if Joseph lived so long, for Joseph's use.3
In the summer of 1763, Cotton appears to have “presented a Memorial to the General Court ... suggesting ... a mistake” in the grant of the pension because of the court's “supposing the said Jabez to be a legally mustered Soldier when probibelly he was not so.”4 The court then appointed John Murray of Rutland and Thomas Foster of Plymouth to investigate the matter. Nye told the committee that Cotton had obtained an order from Joseph's master to receive Joseph's wages from the Province Treasurer. When Cotton denied this, Nye said that he had seen in the Treasurer's office not only the order but also Cotton's receipt for the wages. The Treasurer, however, supported Cotton, and certified to the committee that Nye's declaration was “altogether false and Groundless.”5 The committee then reported in Cotton's favor.
According to depositions in the file, Nye accused Cotton of reading the committee's report to a group in a Boston or Cambridge barbershop and then taking it to the General Court where the Speaker read it aloud. Early in January 1767 Cotton invited Nye to call a general town meeting, “that the Inhabitants thereof might judge of the Difference between Them.” Nye failed to accept the invitation, and on January 12, before a group of townsmen at Nathaniel Bassett's blacksmith shop in Sandwich, told Cotton: “That is a false, lying paper which you made yourself and forged the Committee's name to it.”6
{ 142 }
Cotton, represented by Paine, thereupon commenced an action for slander in the Barnstable Inferior Court which Adams defended on Nye's behalf. The cause was tried on 7 April 1767, and after the jury found for Cotton in the sum of twenty shillings and costs,7 both parties appealed to the Barnstable Superior Court.
There, on 14 May 1767, the case came on anew. After trial, the jury brought in a general verdict for Cotton for £7 and costs, and Nye's motion in arrest of judgment, argued at Boston in August 1767, was overruled.8 Admitting that Nye had uttered the words, Adams had sought to argue that they were not actionable. The notes set out below suggest that his point was technical: the act of which Nye accused Cotton not being criminal, plaintiff could not recover without a showing of special (i.e. provable) damages. It is not clear whether this argument, which found considerable support in the authorities which Adams collected,9 was addressed to the court as well as to the jury. Adams' diary entry (Document VII) shows that he attempted vainly to argue the question to the jury. His minutes (Document V) show that the court unanimously upheld the actionability of the words. It cannot be determined whether the judges gave this ruling as part of the usual seriatim charge; whether they intended it as a determination binding the jury, as in the English criminal libel practice; or whether the ruling was made upon the motion in arrest of judgment.10
There are four separate Adams minutes or notes for this case (Documents II, IV, V, VI). Their exact dating is uncertain, but the present arrangement is supported by Paine's dated minutes of the Inferior Court proceedings (Document III).
2. Resolve of 22 Feb. 1762, 17 A&R 160.
3. Resolve of 16 Feb. 1763, 17 A&R 349.
4. Declaration, SF 144208.
5. Certificate (copy), SF 144208.
6. Depositions of Nathaniel Bassett, John Jennings, and Thomas Clapp; Declaration, Cotton v. Nye, SF 144208.
7. Inferior Court record, Barnstable, April 1767 (extract copy), SF 144208.
8. SCJ Rec. 1766–1767, fols. 228–229; Min. Bk. 82, SCJ Barnstable, May 1767, N–2. As to the motion, see the file wrapper and bill of costs. SF 144208.
9. See 8 Holdsworth, History of English Law 353–356, which discusses the practice whereby 17th-century judges sought to discourage actions for slander by holding that “in these actions the words complained of must be construed not in their natural sense, but, whenever possible, in 'mitiore sensu.' That is, they must be held not to be defamatory if a non-defamatory sense could be twisted out of them.” Id. at 355.
10. As to criminal libel and instructions to the jury generally, see No. 12. The motion in arrest of judgment was a means of attacking the legal sufficiency of the declaration after verdict, as on a demurrer. See Sutton, Personal Actions 129–131. Compare William Sheppard, Actions upon the Case for Slander 275 (London, 2d edn., 1674). If the court chose to regard actionability as matter of law only, it could overturn the jury's finding by this device. Few examples of the motion have been found in Massachusetts. Its use here and in No. 36, another defamation action, suggests that the independence of Massachusetts juries may have given it a special utility in such cases. See No. 36, note 7.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/