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Browsing: Papers of John Adams, Volume 1

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Docno: ADMS-06-01-02-0056

Author: Sewall, Jonathan
Recipient: Adams, John
Date: 1765-10-05

From Jonathan Sewall

[salute] Dear Bror: Adams

The Bearers John Oliver and Michael Nagail are indicted of the ignominious narrow-Soul'd Crime of Sheep-stealing (at Taunton Superior Court). They depended on my going down to defend them { 145 } but my Business at Boston Court prevents me. I have therefore advised them to you; they intend also to engage Colo: White1 with you.
Their Defence principally rests on these two points which they expect to prove, namely, that they bonâ fide, bought and paid for as many Sheep as were ever seen in their Drove, and that some of them were mark'd with the same Marks as Colo. Northrop's, whose they are charged with stealing. The proof against them is this, Colo. Northrop will swear that at, or near, the Time when they passed by his Farm he lost the Number of Sheep mentioned in the Indictment, which, as I remember is 50. or upwards. One Ezekiel Gardner swears that about the same Time he lost 15. out of his pasture, and hearing that Oliver and Nagail were seen in his pasture, he pursued them and found his 15. Sheep and they delivered them up to him; and at the same Time he saw a Number of Sheep in their Drove with Colo. Northrop's mark. This is the material Evidence against which you are sensible is clearly avoided, if they can prove they bought Sheep with the same Mark, and bought the full Number which they brot: home with them (unless the Kings Attorney can prove that they disposed of 50. before they reach'd home; which he cannot do.) Observe, I dont find that any one will swear he saw in their Drove to the Number of Fifty, with Colo. Northrops Mark, or near that Number, but only that they saw some, and this (if they bonâ fide bought of another person, some with the same Mark) proves nothing.
But let me just add, that even if our Clients Should fail in their proof; yet if it be considered with Attention how difficult it is, when passing thro' the Country with a Drove, to prevent other sheep from mixing with them; when the Drove are frequently jumping over into pastures, and the Sheep in Inclosures jumping into the Road when they hear the bleating of a large Drove, how easily others mark'd precisely, or nearly, in the same Manner, may get among them unobserved by the Drovers; and if it be considered that the Intention constitutes the Crime. These Things being attended to, I say, the Jury ought to have clear proof of an Intention to steal, before they can declare them guilty, even tho' they should be satisfyed that some of Northrops Sheep were in their Drove. The Evidence which would prove Conversion, in Case he had brought Trover for the Sheep, will by no Means prove a Theft.
I hint these Things to you not because I think my Head is better than your's, but because two Heads are better than one; on the Credit of which proverb you know the Boy advised his Father to take the Dog with him.
{ 146 }
As I really believe them innocent I am concerned for them, and beg you would exert your Talents in their Defence, for which I hope they will give you a hansome Fee.
I am with great Affection, Your hearty Friend and Bror. (in Law),
[signed] Jon. Sewall
RC (MHi: Robert Treat Paine Papers, 11:26); endorsed.
1. Samuel White (1710–1769), attorney in Bristol co. and speaker of the House of Representatives, 1759, 1764–1766 (Sibley-Shipton, Harvard Graduates, 9:110–112). Apparently JA failed to join White in defending Oliver and Nagail, since there is no mention of these defendants in JA's legal records nor any indication of a connection between them in the Superior Court of Judicature Records.
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.