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Browsing: Early Diary of John Adams, Volume 1


Docno: ADMS-02-01-02-0010-0007-0004

Author: Adams, John
DateRange: 1758-12 - 1759-01
{Folio: 27, right side up}

[Further Notes on Civil Law, December 1758–January 1759.]1

Judicial [stipulations] are those which proceed from the mere Office of a Judge, as Surety vs. fraud [ . . . ] pursuing a servant, who is in flight. Surety concerning fraud is required, when the Danger is, lest an Adversary commit a fraud [upon things of?] ours. Surety concerning pursuing a servant, is that [when?] an Heir promises the Legatary, that he will pursue at his own Expense a servant [which?] is [given?] as a Legacy, who is running away, and restore either servant or his Value. Praetorial Cautions are those which proceed from the mere Office of the Praetor, as a surety of Damage, that is [ . . . ] and of Legacies. Damage is all Diminution of our [Pa]trimony. A Damage not done, is that which is not yet done but which we fear will be done. [A] surety of a Damage, not done, is that by which, the owner of decayed Buildings engages to his Neighbor [that] he will repay thereafter what ever Loss or Damage shall [happen?] by the fault of his buildings. [A] surety of Legacies is that by which the Heir, having given Bondsmen, engages to a Legatary to whom a Legacy [is] bequeathed on Condition, or at a certain day, that he on the fulfilment of the Condition, or [ . . . ] of the day, will pay the Legacy [ . . . ].2 But if the owner will not give the said sureties to the Neighbor, nor the Heir to the Legatary, the Neighbour is put into possession of the decayed House by the Praetor and the Legatary into [possession?] of the hereditary Things. It is peculiar to the Pretors Cau[tions] to [need Bondsmen?]. Convent[ion]al Cautions are those which are conceived by the Agreement [of] either Party. There are as many Kinds of these as there are of things to be contracted. Common are those which proceed as well, from the Office of Praetor, as of that [of] Judge, as that the Estate of a Pupill shall be safe, which is given by Tutors; and a Surety, by which, he who manages the Business of another when he doubts of a Command, he engageing that the Master shall have [ . . . ]3 due. Of useless Stipulations. An useless stipulation is one that has no Effect in Law. Stipulations are useless, either by Reason of the Thing, or of { 101 } the fact included in the Stipulation, or by Reason of the Contractor, or by Reason of the form or manner of the Contract. A stipulation is useless by Reason of the Thing, if any one stipulate a Thing, which neither is, nor can be, in the nature of Things; allso a Thing which is not in Commerce, as a Thing sacred, holy, religious, public, a free man, or at least beyond the Commerce of the stipulator. Also if any one stipulate a property purely, or [even?] the Thing plainly incertain. If any one shall promise the <fact> Act of another, without any Penalty annexed, also [anything that?] is impossible, either in nature or Morals. By Reason of the Contract, if they are unqualified, as dumb, deaf, mad, infant; also, as made between a father and a son or servant and Master; also if any one shall stipulate to Another than himself unless it shall [be] to him to whom it is [ . . . ], or a Penalty [is annexed?].
Let me get a clear Knowledge of the Proceedings in the Courts of Probate.4 Ex[ecuto]r, who accepts the Trust is accountable to the Judge of Probate. [A Jud]ge of Probate, by Warrant under his Hand and seal, directed to sherriff &c. to cause such suspected Person to be apprehended, and brought before such Judge to be [examined?] and proceeded with. A Person suspected of convaying or imbezzling Part any Part of the Estate of any Person deceased, shall have been cited, pursuant to Law [sentence unfinished]
1. This entry is a continuation, without break, of JA’s notes on Van Muyden’s Tractatio on Justinian’s Institutes, entered physically at a much earlier point in the Diary Fragment; see p. 55–59, above, and editorial notes there. The present jottings are based on Van Muyden, p. 121–124, continuing the Institutes, bk. 3, title 19, and covering part of title 20.
2. Three or four words illegible.
3. Three words illegible.
4. Although there is no indication of a break in the MS, JA has here obviously dropped Van Muyden. The following three sentences are partly quoted and partly paraphrased from An Act for Further Regulating the Proceedings of the Courts of Probate within this Province, passed by the General Court on 5 Jan. 1753 (Mass., Province Laws, 3:639–640).

Docno: ADMS-02-01-02-0010-0007-0005

Author: Adams, John
DateRange: 1758-10 - 1758-12
{Folio: 28}

[Shakespeare’s Characters and Figurative Language, October–December 1758.]1

Shakespeare, in the Character of Lady Mackbeth, and of Gertrude, the Wife of old Hamlet, and afterwards of King Claudius, and in the Character of Lady Anne in King Richard, has shewn a sense of the Weakness of Woman’s Reason, and strength of their Passions.
The Horror of both divine and Human Vengeance, that attends guilty minds is strongly represented in the Characters of Mackbeth and his Lady. He grows daily more and more timorous of the Nobility, { 102 } and of every man of [Respect?] in their Realm. At last, they are afraid that the stones and trees, and Birds will reveal their Murder and demand Revenge. Blo[o]d for Blood.
Shakespears vicious Characters are aggravated beyond Life. He draws Ingratitude, Treason, Hypocrisy, Murder, in the strongest Colours of Horror.—In Thinking of any Thing, every Image that can resemble it, rises at once in strong Colours in Shakespears mind. When the News of his Ladies death is brought to Mackbeth, he turns his Thoughts upon Life.

Out out brief Candle!

Lifes but a walking Shadow, a Poor Player

That struts and frets his Hour upon the Stage

And then is heard no more! It is a Tale

Told by an Ideot, full of Sound and Fury

Signifying Nothing.2

Here he compares Life, 1st to a Candle, then to a Shadow, an Image taken from scripture, then to a Player on the stage of Life. Now to a Tale told by an Ideot, another scripture similitude.—Persons in Mackbeths situation are very apt to make these Reflections and Comparisons. After having committed every Vice and folly, in order to attain the Goods of this Life, they find that these Goods are all Trifles, light vain, idle Toys, and then they compair Life to such Things with great Wisdom. Oh the Horror and despair, the Distress and Anguish of a guilty mind.
Richard, Claudius, Mackbeth and his Wife and Iago are Characters of Fiends, not of men. The times have been, that when the Brains were out, the man would die, and there an End, but now they rise again with 20 mortal murders on their Crowns, and push us from our stools. Malcolm and Donalbain when they find their father murthered and a bloody Dagger laid near their Bed, and their own Hands stained with Blood, concluded that the Design was to charge the Murder on them, and to avoid the consequences they fled to England, and a faulcon towering in her Pride of Place, was by a mousing Owl haukt at and killed. The faulcon is Duncan, the mousing Owl is Mackbeth. The old man observed the Omen. Rosse takes Notice of another Omen that preceded Duncans Death. Duncans Horses, beauteous and swift, the Minions of their Race, turned wild in Nature, broke their stalls, flung out, contending gainst Obedience, as they would make War with man. Thriftless Ambition that will raven up thy own lifes means.
Mackbeth kills the others that lay in the K[ing]’s Chamber out of { 103 } pretended Rage at their [Murder] of the King and tells the Lords and Attendants, their faces and Hands were besmeared in blood and that [an] unwiped Dagger laid by the Bed side. Not only Omens preceded, but sympathy in Nature attended Duncans Death. Chimneys were blown down.

Lamentings heard i’the air, strange screams of Death.

Of dire Combustion and confusd Events

New hatchd to the woeful time.

The obscure bird clamourd the livelong night

Some say the Earth was feverous and did shake.3

Mackbeths Imagination was [struck?] and afraid, was as lively and teemed with Notions, a Thousand thoughts came into his Head when he was [remainder missing]
His imagination created 100 things, a Voice crying, Sleep no more, Mackbeth doth Murder Sleep; the innocent Sleep. Sleep is the Idea now. What Thoughts does this call up. Sleep that knits up the ravelled sleeve of Care, the Death of each days Life. As Death is to a mans whole Life, so is <Sleep to a day> each nights Sleep to us, sore Labours Bath, Bath of Labour, Balm of Hurt minds, great natures second Course, chief Nourisher in Lifes feast. The Eye of [remainder missing]
1. There is nothing to indicate the date of these comments on Shakespeare, although it may be noted that on 5? Dec. 1758JA entered in his Diary as published in 1961 an injunction to himself beginning: “Let me search for the Clue, which Led great Shakespeare into the Labyrinth of mental Nature!” (Diary and Autobiography, 1:61). As usual, JA’s quotations are approximate.
2. Act V, scene v, lines 23–28.
3. Act II, scene iii, lines 61, 63–66.
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/