A website from the Massachusetts Historical Society; founded 1791.
close
-
The Adams Papers Digital Edition is undergoing active maintenance while we work on improvements to the system. You may experience slow performance or the inability to access content. We apologize for any inconvenience this may cause. We will endeavor to return to full capabilities as soon as possible.

Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0008-0001-0002

Author: Adams, John
Date: 1766-08

Adams' Minutes of the Argument and Decision1

Suffolk Superior Court, Boston, August 1766

Town of Boston vs. Roxbury.
Fitch. 1st Question whether Appeal will lie?
Page 33 of tem[porary] Acts. Art —.2
Otis. Case of Barnstable vs. Bodfish. June 1747, in Sessions. Superior Court, Barnstable July 1747.3
Prov. Law 21. Relations.4
{ 293 }
Lynde. Bastardy, Highways—Ministers and Paupers, no Appeal has been allowed.5
Gridley. This not taking up the Law upon the sense of it: but is taking up one Part of the Law to make it militate vs. another. This is nothing but an Apex Juris,6 that never occurrd to the Legislature.
Otis. The Q. is whether an Appeal will lie, from an order of Sessions, concerning the Maintenance of a Pauper.
No Appeals lie at Common Law. No Appeal in England upon Facts, nor ought there to be here.
This is not an Appeal from a Sentence, but an Order.7
Judicium i.e. quasi Juris dictum. Ld. Coke.8
Court unanimously, The appeal must not be allowed.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Presumably a reference to the Act of 15 Jan. 1743, c. 18, §1, 3 A&R 37, which appears at p. 33 of a volume supplementary to the Temporary Acts and Laws (Boston, 1763), entitled The Acts Contained in this Book were ordered to be left out of the last Impression of Temporary Laws and printed by themselves (Boston, 1763). The section provided that all doubts or controversies concerning which town was liable for a pauper's support, or whether a pauper's condition was sufficiently “necessitous” to entitle him to relief, “shall be determined by the justices of the court of general sessions of the peace, in the county to which such poor person doth belong; and the said justices are hereby fully authorized and impowered fully to determine the same, upon application to them made for that purpose.”
3. A reference to Bodfish et al. v. Selectmen of Barnstable, SCJ Rec. 1747–1750, fol. 3 (Barnstable, July 1747), an appeal from an order of the Court of General Sessions of the Peace for Barnstable County in June 1747, directing the appellants to pay to the selectmen £2 17s. 6d., which the latter had advanced to one Thomas Haddeway, an indigent person. The appeal was dismissed with costs of £3 2s. 6d, to the selectmen. The proceeding was probably one against the relatives of the indigent, who were liable for his support under the provision next cited by Otis (note 4note 13 below). That Act was apparently construed as giving the justices sitting in sessions jurisdiction in such matters without regard to their powers under the Act of 1743, cited in note 2note 11 above. See Tomlin's Petition (1735), Records of the Court of General Sessions of the Peace for the County of Worcester, Massachusetts, from 1731 to 1737 133 (Worcester, Mass., ed. F. P. Rice, 1882); Petition of Southboro (1737), id. at 177. Any doubt that this procedure was correct was removed by Act of 12 June 1764, c. 2, 4 A&R 705.
4. The reference is to the Act of 16 Nov. 1692, c. 28, §9, 1 A&R 67–68, which appears at Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New England 21 (Boston, 1759). The section, which is set out at length in No. 25, note 42, provided that a person who had been in a town for three months without being warned out, should be considered “the proper charge of the same in case through sickness, lameness, or otherwise they come to stand in need of relief, to be born by such town, unless the relations of such poor impotent person in the line or degree of father or grandfather, mother or grandmother, children or grandchildren be of sufficient ability; then such relations respectively shall relieve such poor person in such manner as the justices of the peace in that county where such sufficient persons dwell shall assess.”
5. These were the principal areas of the General Sessions' administrative jurisdiction. See Act of 1 Nov. 1692, c. 18, §5, 1 A&R 52 (Sessions to determine paternity and order father to pay maintenance of bastard; see No. 28); Act of 19 Feb. 1757, c. 18, 3 A&R 1001 (appeal to Sessions on damages for highway land-taking); Act of 4 Feb. 1734, c. 14, 2 A&R 834 (Sessions may award damages for town's refusal to allow a private way); Act of 7 June 1698, c. 2, 1 A&R 311, as amended by Act of 4 July 1734, c. 2, 2 A&R 711 (Sessions may order removal of structures encroaching on highways; see No. 33, note 117); Act of 4 Nov. 1692, c. 26, §§1, 2, 1 A&R 62 (Sessions may order town to provide and maintain a minister and charge inhabitants; see Parsons' Petition [1732], Worcester Sessions Records 47); Act of 14 Nov. 1706, c. 9, 1 A&R 597 (Grand jury to present delinquent towns to Sessions. If towns do not comply with Sessions' orders, General Assembly will provide minister). As to the last two acts, see No. 37, note 2.
6. Literally, the summit of the law. Here used in the sense of a legal subtlety or technicality that carries a rule to an extreme beyond even strict application. Black, Law Dictionary.
7. The Act of 16 June 1699, c. 1, §1, 1 A&R 367, established the justices of the peace for each county as the Court of General Sessions “impowred to hear and determin all matters relating to the conservation of the peace, and the punishment of offenders, and whatsoever is by them cognizeable according to law, and to give judgment and award execution therein.” The act provided in §3, p. 368, “That it shall and may be lawful for any person agrieved at the sentence of the justices in any court of general sessions of the peace, to make his appeal from such sentence (the matter being originally heard and tryed in said court) unto the next court of assize and general goal delivery to be held within or for the same county, there to be finally issued,” if the appellant gave security, and filed reasons of appeal and copies of the sentence appealed from and the evidence with the clerk of the court to which the appeal was taken.
8. Probably Coke, Littleton 39a: “Judgement. Judicium quasi juris dictum, the very voice of Law and Right, and therefore, Judicium semper pro veritate accipitur. The ancient words of Judgment are very significant, Consideratum est, &c., because that Judgment is ever given by the Court upon due consideration had of the Record before them.” Compare id. at 168a, 226a. Otis may mean that in the absence of statute providing an appeal the court is bound by the record.
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/