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Browsing: Legal Papers of John Adams, Volume 1


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

Cotton v. Nye

DocGroupNo:

1767

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.
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Docno: ADMS-05-01-02-0003-0003-0002

Author: Adams, John
Date: 1767-04-04

Adams' Diary1

4 April 1767

Poor Nye of Sandwich, seems dejected. I should suspect by his Concern that Cotton gained Ground vs. him. He seems to be hipp'd.2 It fretts and worries and mortifies him. He cant sleep a Nights. His Health is infirm.
Cotton is insane, wild. His Proposal of giving his House and Farm at Sandwich to the Province is a Proof of Insanity.... His sitting down at the Council Table with his Hat on and Calling for his Deed and a Justice to acknowledge it when the Council was sitting.
Cottons Method of Getting Papers Signed by Members, in order to demolish poor Nye is new. The Certificate from Murray and Foster if genuine is a mean, scandalous Thing. It was mean in Murray and Foster to sign that Paper. For one Rep[resentative] to give a Constituent a Weapon to demolish another Rep., is ungentlemanlike.
2. “To affect with hypochondria, to render low-spirited.” OED.

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

Author: Adams, John
Date: 1767-04

Adams' Minutes of the Trial1

Barnstable Inferior Court, April 1767

Cotton vs. Nye
Hovey.2 Certificate.3
Benja. Fessenden. Bassetts Shop. Lying Papers. Set their Names to it.
D[eaco]n. Forster. Signd the Certificate,4 &c.
Dr. Smith. Cotton said in Barbers Shop that he had a Certificate from Com[mittee] to prove Nye a Lyar. Understood that it was agreed5 and to be destroyd.
{ 144 }
John Jennings. False lying Paper, which you made yourself, and forgd their Names to it.6
Prince Tupper. A False lying Paper. Had stolen it or forgd it. Might as well do it as to put Turners Name to it. Annual Meeting, had been reading several Papers.
Nathl. Bassett. Cotton said he had read a Certificate about Nyes lying.7
Mathias Ellis. Whether he stole that, or made another just like it he could not tell.8
Nehemiah Webb. Made out of his own Head. Had stolen it or forged it, as he did some other. Mr. Spooners Name.
Paine. Wherever Words tend to the slander of a Mans Reputation I shall be for maintaining an Action to preserve the Peace.9
Court of Law a substitute in the Place of Passion.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. The dating is based on similarity with Paine's minutes (Doc. III).
2. The position of this name in the MS and the Minute Book entry suggest that James Hovey was not of counsel and that his name appears inadvertently or inexplicably.
3. “Deft, objects to it, there ought to be an Attestation of the Clerk of the House. The committee have no right to sign.” Paine Law Notes, Barnstable Inferior Court, April 1767. See note 1note 22 below.
4. Deacon Thomas Foster was a Justice of the quorum and of Plymouth Inferior Court. Whitmore, Mass. Civil List 142, 96.
5. That is, the dispute was settled.
6. Jennings' deposition, to which he also swore in the Barnstable Superior Court, 14 May 1767, is in the file. SF 144208.
7. See to this effect deposition of Thomas Clapp. SF 144208.
8. Ellis' deposition, sworn to in the Barnstable Superior Court, 14 May 1767, is in the file. It contains the exact wording here set out. SF 144208.
9. See 4 Bacon, Abridgment 506: “and per Holt Ch. J. 'It is not worthwhile to be very learned on this point [i.e., the rule of mitiore sensu discussed in note 9 above]; for, wherever Words tend to slander a Man and to take away his Reputation, I shall be for supporting Actions for them for the Preservation of Peace,'” citing Baker v. Pierce, 2 Ld. Raym. 959, 960, 92 Eng. Rep. 139, 140; 6 Mod. 23, 24, 87 Eng. Rep. 787, 788 (K.B. 1704).

Docno: ADMS-05-01-02-0003-0003-0004

Author: Paine, Robert Treat
Date: 1767-04

Paine's Minutes of the Argument1

Barnstable Inferior Court, April 1767

Defendant
It may be part of a great plan to get Representat[ion over?] that Paper.
It is true he made the Story for he drew it up.
Plaintiff put in memorial to cross Col. Cotton.2
The Committee had no business to sign said Certificate.
The design of the Paper was to fix a Lye upon Nye and was a parlimentary paper.
“A lying Paper,” no Slander.
{ 145 }
This was not Forgery. 485 Bac. 4.3 HPC 1854
The House [of] Repres[entatives] would have votd he was crazy. Cotton's Character is not so imaculate.
1. Paine Law Notes, Barnstable Inferior Court, April 1767. A portion of Paine's minute has been omitted because of its similarity to JA's (Doc. II). See note 153 above.
2. The sentence is clear in the MS, but makes no sense as it stands because Cotton was the plaintiff and had submitted the memorial.
3. See note 272 below.
4. See note 4015 below.

Docno: ADMS-05-01-02-0003-0003-0005

Author: Adams, John
Date: 1767-05

Adams' Notes of Authorities1

Barnstable Superior Court, May 1767

Cotton vs. Nye
4. Bac. 485. “All Words are actionable which import the Charge of such a Forgery, as is within any of the statutes against this offence.”2
“An action also lies for charging a Man with Forgery, although it is not said to be of such a Record, Deed, Writing, or Instrument as is within any of the statutes; for Forgery is an offence indictable and punishable at common Law.”3
“But no Action lies for saying of J.S. he hath forged the Hand of J.N., these Words being too general; for unless it had been said to what Deed or Instrument, this is no offence under any of the statutes or at Common Law.”4
1. Roll. Abr. 66. Pudsey and Pudsey.5 1. Roll. Abr. 65. Garbritt and Bell.6 3. Leon. 231.7 1 Roll. Abr. 65 pl. 4.8
3. Leonard. 231. Hill. 31. Eliz.9 “An Action upon the Case was brought for these Words vizt. Thou hast forged my Hand: It was holden by Gawdy and Wray Justices that such Words are not actionable, because too general, without shewing to what Writing. And by Wray, these Words Scil. Thou art a Forger, are not actionable because it is not to what Thing he was a Forger. Godfrey, Between Warner and Cropwell Scil. She went about to kill me; an Action lyeth for them: for if they were true, she should be bounden to the good Behaviour.
“And by Gawdy, for these Words scil. 'Thou hast forged a Writing': { 146 } They are not actionable because they are uncertain Words; which Wray concessitt:10 But if the Declaration had been more certain, as “innuendo,11 such a Deed,” then it had been good enough.
“Fuller, a Case was betwixt Brook and Doughty, Scil.; He hath Counterfeited my Lord of Leicesters Hand unto a Letter against the Bishop of London; for the which he was committed to the Marshalsea for it. And it was holden, not Actionable. And afterwards in the principal Case, Judgment was, Nihil capiat Per Billam.”12
Hawk. P.C. 1st. Part. chap. 70. Page. 184. §8. “and first it is clear, that one may be guilty thereof by the Common Law, by counterfeiting a matter of Record.” §9. “any other authentic matter of a public Nature,” &c.13
§11. “As to other Writings of an inferiour Nature, [ . . . ] the Counterfeiting them is not [properly] forgery,” rather Cheats.14
§12. Forgery by Statute. §13.15
Cheats.
Page 188, §4. Offences of this Kind &c. falsely and deceitfully obtain Money, Goods Chattells, Jewells by counterfeit Letter.16
Libel, Lye to Damage.
1. Roll. Abr. 65. pl. 4. “Si home dit al Auter17 he hath forged the Queens Evidence and I would not be in his Coat for £1000. Nul Action gist pur ceux Parols, par le Generality de eux.”18
1. Roll. 66. [pl.] 8. “Si home dit al Auter “Thou hast made forged { 147 } Writings and thou shouldest have lost thy Ears for it. Null Action gist pur ceux Parols, pur ceo que est tout ousterment uncerten queux Writings, il intend par le[s] primer Parols, car peradventure il intend ascuns Writings le Forgerie de que ne violent deserver le perder de ses Aures et donque les d'arren Parols ne explaneront son Intention, entant que Poet estre que ceo fuit forsque un male Conclusion sur le[s] Premisses.”19
“9. Si home dit al J.S. Thou didst Forge an Acquittance, and I will prove it, Action gist, car n'est material pur quel Chose L'Acquittance fuit, car tiel Forgerie est deins l'Estatute.”20
“10. Thou has caused a Deed to be forgd and a dead Mans Hand to be put to it, and cheated and couzened my Husband of his Land. Action gist. [ . . . ] Pudsey and Pudsey.”21
“11. Si A. dit, This is B. his Writing and he hath forged this Warrant (innuendo, &c.) B. n'avira ascun action pur ceux Parols par ceo le Parol Warrant est de un uncertain sense et le innuendo ne ceo aidera.”22
Sheppards Actions on the Case for slander.23
“It is said to be adjudgd not to lie for this thou are a forger of false Writings.”
“Nor as it seems for this Thou hast made false Writings, thereby to get my Land from me.”24
Croo. 1. Shep. Page. 166.25
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. 4 Bacon, Abridgment 485. Quotation marks supplied.
3. 4 Bacon, Abridgment 485. Quotation marks supplied.
4. 4 Bacon, Abridgment 485. Quotation marks supplied. The citations at notes 30–335–8 below appear as notes in Bacon.
5. See text at note 4621 below.
6. Garbritt v. Bell, 1 Rolle, Abridgment 65 (K.B. 1639): Action lies for saying of B: “I have found Records which he hath forged, and he shall dearly pay for it. I have catched the forger.”
7. See note 349 below.
8. See note 4318 below.
9. Anonymous, 3 Leon. 231, 74 Eng. Rep. 652 (Q.B. 1589).
10. “Conceded.”
11. “Meaning.” The innuendo was that part of a declaration for libel or slander which explained or pointed out the defamatory nature of the words. Here Gawdy was noting that not all forgeries were crimes (as forgery of a deed was), and that therefore an imputation of an undifferentiated forgery would not be actionable.
12. “He takes nothing by his writ.” That is, judgment for the defendant. Quotation marks supplied.
13. 1 Hawkins, Pleas of the Crown 184. Quotation marks supplied.
14. 1 Hawkins, Pleas of the Crown 184. Quotation marks supplied. At the ellipsis JA has omitted the words: “it seems to have been generally laid down as a rule that.”
15. 1 Hawkins, Pleas of the Crown 184–185. The statute is 5 Eliz., c. 14 (1562). See note 4520 below. (The section numbers refer to the treatise, not the statute.)
16. 1 Hawkins, Pleas of the Crown 188: “Offenses of this kind by statute depend upon 33 Hen. VIII c. 1 [(1541)] by which it is enacted, 'That if any person or persons shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods, chattels, jewels, or other things of any person or persons, by colour and means of any privy fake token, or counterfeit letter made in another man's name,'” he or they shall upon conviction be liable to suffer imprisonment or any corporal punishment other than death.
17. “If a man says to another.”
18. “No action lies for these words, because of their generality.” 1 Rolle, Abridgment 65. Quotation marks supplied.
19. “No action lies for these words, because it is completely uncertain which writings he meant by the first words; for peradventure he meant some writings the forgery of which would not cost one the loss of his ears; and thus the last words would not disclose his intent, so that perhaps it would be a wrong conclusion in the circumstances.” 1 Rolle, Abridgment 66. Quotation marks supplied.
20. “If a man says to J.S. ... an action lies, for it is not material by what means the acquittance came, for such a forgery is within the statute.” 1 Rolle, Abridgment 66. Quotation marks supplied. The statute referred to is 5 Eliz., c. 14 (1562), “An Act Against Forgers of False Deeds and Writings,” especially §3.
21. 1 Rolle, Abridgment 66. Quotation marks supplied.
22. “If A says ... (meaning &c.) B shall not have any action for these words because the word 'warrant' is of uncertain sense and the innuendo will not aid it.” 1 Rolle, Abridgment 66. Quotation marks supplied.
23. Sheppard, Actions upon the Case for Slander. The two following paragraphs appear at p. 166 of this treatise.
24. Sheppard cites “Croo. 1 part last publisht 855,” probably an inadvertence for Perkinson v. Bowman, Cro. Eliz. 853, 78 Eng. Rep. 1079 (1600), which indeed seems to hold as the treatise suggests. Quotation marks supplied in this and the preceding paragraph.
25. Notes 4823, 4924, above.
{ 148 }

Docno: ADMS-05-01-02-0003-0003-0006

Author: Adams, John
Date: 1767-05

Adams' Minutes of the Argument1

Barnstable Superior Court, May 1767

Otis.2 Certificate of General Assembly.
Law very much altered of late Times.
To prevent Gothic Contentions and single Combats.
High Proceedings.
Strange 747.3 Order for Allom. Forgery at common Law.
Protection from a Member.
Possibility of Damage.
Reason of the Thing. Injury.
Paper indictable.
Public Record.
Q. If Cotton had forgd this Paper, whether he would have been liable to an Indictment for a Misdemeanor?4
4. Bac. 506.5
Made a false Record. Forgery of a Writ.
Great Slander and Defamation.
Court unanimous Nyes Words actionable.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. James Otis, counsel for Cotton.
3. Rex v. Ward, 2 Str. 747, 93 Eng. Rep. 824 (K.B. 1727): Trial for forging an order for a quantity of alum. Held: a criminal forgery even though it did not appear that defendant had actually obtained any alum as a result of the forgery.
4. This is apparently JA's query.
5. 4 Bacon, Abridgment 506. The treatise at this point catalogues the actionability of various words, but does not mention forgery; see note 219 above.

Docno: ADMS-05-01-02-0003-0003-0007

Author: Adams, John
Date: 1767-05

Adams' Minutes of the Evidence1

Barnstable Superior Court, May 1767

Cotton vs. Nye
Certificate2
Mr. Fessenden. A Lye of his own making, and he had set their Names to it.
Jennings.3 Memento.   }   Deps.  
Bassett.4  
Ellis.5  
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. See text at note 5 above.
3. See note 18 above.
4. See text at note 197 above.
5. See note 208 above.
{ 149 }

Docno: ADMS-05-01-02-0003-0003-0008

Author: Adams, John
Date: 1767-05-16

Adams' Diary1

16 May 1767

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