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Browsing: Early Diary of John Adams, Volume 1

Docno: ADMS-02-01-02-0006-0001-0001

Author: Adams, John
DateRange: 1758-10 - 1758-12
{Folio: 6}

[On the Law of Nature and the Moral Sense among Animals and among Men, October–December 1758.]1

Q[uery]. Has any Species of Animals, besides Mankind, ever given Proofs that they have any idea of Justice, of R[igh]t or Wrong. That they have any Discernment of the Difference between Actions and Characters? Have they any moral Sense?
Q. Have they any sense of the Advantages of Temperance and of the Disadvantages of the Contrary. Will not horses, when they are hot, drink large Quantities of Water without Regret and frequently Chest-founder themselves so? They seem to have very little Concern or Apprehension about the Consequences of Violent Exercise and plentiful Eating and drinking.
Q. Did the2 Jewish Law that oxen, and Horses, that pushed or kicked a Man to death, or that copulated with any man or woman, should be slain, stand on this Principle, that the Brutes knew the Prohibitions they were under and were accountable, for the Breach of them?
Q. Let me examine, when, and how this Notion of a Law common to Beasts and men, arose in the World, and in what sense it was understood.
Q. If there are Rules of Justice, of Morality, that extend to all Animals, what do those Men deserve, who have believed this and yet plundered, preyed upon, Murdered Fowl, Beasts and fishes in all Ages.—How can we answer for robbing the Birds Nests of their Eggs and Young, for butchering, fleecing, Sheep, Lamb’s, Calves, Oxen &c., or will the Assistance we give them, in providing Food and shelter for them in Winter, and Pasturage in Winter [i.e. summer?], justify our { 54 } Cruel Depredations upon them?—But we never feed or Clothe Robbins, <wild Geese> wild fowl &c. What Justice then, in killing them? Is it not Murder?
Q. <Self Love and> Self Preservation, and the Desire of Propagation, are common to all Animals. But the Law of Nature, which teaches other Species to nurse their Young, teaches man to imbue the tender Minds of Children, with Knowledge and Virtue.
Q. The Law of Nature, as an Instinct is perhaps common, but the Institutions which Reason adds to Instinct, are peculiar to man. Now Justice, Temperance, Gratitude, Benevolence, &c. are Institutions of Reason, are found and proved to be human Duties, and beneficial to society, by Reason and Experience.
Jus naturale est quod Natura omnia Animalia docuit, Jus enim istud non est humani Generis proprium, sed omnium Animalium, quae, aut in terra, aut in mari aut in Coelo nascuntur.3
Temperance, Prudence, Justice, and Fortitude.
Jus naturale, is omnium Animalium.
Is the Law of Nature, common to all Animals, from Man the Lord of all, down to the smallest Animalcules, discernible by Glasses?
Are all the Rules of natural Law, which men are obliged to observe, incumbent upon all Birds, Beasts, fishes.
Temperance, Prudence, Justice, and Fortitude, are Duties of the Law of human Nature. But have the Beasts and Birds and Fishes, given any Proofs that they have any Idea of these Virtues? any sense of their obligation to Practise them? Do they not gorma[n]dize, do <they not> what Prudence, do they not rob, each other. Are not many of them timorous, afraid of Trifles and shadows? But their Vices are no Proof that they are not under these Laws, more than human Vices will prove that Men are not.—We do not understand their Language, their signs, nor their sounds enough to know, what Knowledge they have of their own Constitutions, and Connections.4 But is this Question worth a [ . . . ] Discussion?—I have no concern with a society of Birds or Beasts or fishes, or Insects. I shall neither be [concerned?] for nor against the Cattle. The Law of Nature includes the Laws of Reason as much as Self Love and Desire of Propagation and education, includes those Rules of Temperance, Prudence, Justice, and Fortitude which Reason, by the help of Experience, discovers to be productive of the <good> Happiness and Perfection of human [Nature?].
1. The entry which follows is in JA’s small and sometimes almost indecipherable hand familiar in his Diary and correspondence from the latter part of 1756 on. Having left three pages blank after his entry of 19 March 1754 (see note on that entry, preceding), he afterward economically filled them up, no { 55 } doubt at about the same time that he wrote the later entries in the Diary Fragment, which are in the same hand and unquestionably belong to the last three months of 1758, or, at the latest, the first week or so of Jan. 1759.
2. MS: “they.”
3. “Natural law is taught by Nature to all living things, for that law appertains not only to the human species but to all living things that are born in the earth, sea, or sky.” Source not identified, but compare the phrasing in Justinian’s Institutes, bk. 2, title 1, § 12, as quoted by JA in his Legal Papers, 2:73.
4. Possibly “Conventions.”

Docno: ADMS-02-01-02-0007-0001-0001

Author: Adams, John
Date: 1754-04-01

{Folio: 7}April 1st. 1754.

<Then, Mr. Winthrop began a Course of Experimental>1
1. Written in JA’s experimental hand of 1754–1756, with this fragmentary line canceled and the date heading certainly intended to be. This false beginning of JA’s notes on Winthrop’s lectures heads p. {7} of the MS and was lined out, presumably at once, because JA supposed that he would need more space than he had left for his (unwritten) journal entries for the last dozen days of March; see note on entry of 19 March 1754, above. For the true beginning of the lecture notes, see the second entry of 1 April 1754, p. 60, below.

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

Author: Adams, John
DateRange: 1758-12 - 1759-01

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

Sequestration is when two, or more, deposit a controverted Thing, with a 3d Person, on that Condition, that he, at the Conclusion of the suit, Dispute, will restore the Thing to the Conqueror.2 This is either voluntary, which is <made> done by the Agreement of Parties, or necessary, which is done by the Authority of a Judge. This, regularly, is prohibited. From a Deposit, arises a twofold Action, direct and contrary. A direct Action of detinue, is a personal Action of good Faith, famous, public, which is given [ . . . ] to the Deponent against the Depositary, <to> for this, viz. that he may restore the thing deposited, sarcio, to repair, mend, and repair the Damage given by fraud and faults committed. Lata Culpa, by a gross fault. A contrary Action is given to the Depositary against the Deponent, to be saved harmless.
A Pawn or Pledge is a Contract of the Law of Nations, of good faith, re constans, consisting in a thing, fact, by what means, in what Ways, an Obligation <to> Contract, in fact by a fact, an Action or Deed, consisting in fact, in a Thing, by which any Thing is given to a Creditor by a Debtor or [any other?]<for a> as a Security of his Debt, on that Condition that the same Thing be restored, in Specie, on the Payment of the Debt. Soluto Debito, the Debt being paid, eadem res in Specie. From this Contract, arises an Action, direct and contrary. The direct Action <of a Pl> for a Pawn is given to the Debtor, on Payment of the Debt, against the Creditor, for this, that he restore the Pawn with all Cause, and repair the Damage, given by fraud, or by any gross or even by a light fault. Levis culpa, a light fault. A Contrary Action is given to the Creditor, against a Debtor, to be saved harmless. { 56 } Of the Performance of fraud, of fault, and Accident. Praestare. To answer for a fraud or fault is to repair the Damage, given by Deceit, by Accident or by fault. Deceit is all subtilty, Deceit, or Contrivance, employed to circumvent, deceive, or delude another. A fraud is all subtilty, Deceitfulness, or Contrivance, employed to circumvent, deceive, delude another. A fault is nothing less than Negligence [ . . . ], whether of omission or Commission, in the Affairs of another, and is T[hree]fold gross, light and lightest. A gross fault is not to use that dilligence which even a negligent father of a family uses, or to be ignorant of what all understand. This in Contracts is compared to Deceit, fraud, excepting the Case of a Capital Crime. A light fault is not to use that diligence which a thrifty and diligent father of a family, uses in his own Things. This fault is regularly meant, denoted when the Word faults is put simply in the Laws. The lightest fault is not to adhibit, use, employ, exert that diligence, which a most diligent father of a family exerts. An accidental Misfortune is a greater Strength, to which human Weakness is not able to resist. Humana, Casus fortuitus, a casual Mishap. A Chance medly. [ . . . ] Dolum. To answer for a fraud. Fraud is answered for, paid for, repaid in all Contracts. Accidents, misfortune in none, except in Lending, Loan. Loan. Payment of what is not due, is in some respects like a Loan, which nevertheless is not a true Contract but a sort of Contract, by which he who received what was [undue?] is obliged to him, who by Error and Ignorance paid what was [ . . . ] that it be [ . . . ].3 A fault, regularly, is made good, repaid, according to these 3 Rules, 1. As often as a <Contract> Bargain is driven, a Contract is taken, entered into, for the Sake of the giver alone, so often Deceit only and a gross fault is answered for, as in a Deposit. 2. As often as a Contract is celebrated, for the sake of the receiver alone, so often fraud, deceit, fault, even the lightest is answered for as in [commodatum].4 A direct Action of [ . . . ] is a personal civil Action, demanding a Thing, which is given to a Lender against the Borrower to restore the Thing lent in Specie, and answer for fraud and [ . . . ] the light fault.5 3. As often as the Utility, Advantage, Benefit of both, takes place in a Contract, so often fraud, a gross and a light fault, is answered for, as in a Pawn, Buying and selling. The aforesaid Rules concerning fraud, Negligence and Misfortune, then cease, if the contractors otherwise agree; except if it is agreed that fraud shall not be answered, even when any special Reason shall except this or that Contract from the common Rules.
Of the Obligations of Words. An Obligation of Words, or any Stipulation, is a Contract of the civil Law, of strict law, consisting in { 57 } Words, by which he, who is asked, whether he is about to give [or to do?] what he is interrogated, answers. Emancipation is an Act by which Children are dismiss[ed] from the father’s Power. Act.6 From a Stipulation arises a two fold Action, a personal Action of a certain Thing; if a certain Thing is drawn into a Stipulation and of an uncertain Thing, or an Action, from a Bargain, if an uncertain Thing is drawn into a Stipulation. Each is a personal Action, civil, of strict Law, which is given to the stipulant, against the Promisor to oblige him to perform what he promised.
Every Stipulation is either pure, or for a certain day, or conditional. A pure Stipulation is one which is contracted without [the addition?] of any time or Condition, and in that pure Stipulation, the Day of the Obligation begins, and comes immediately. The Day of the Obligation is said to proceed when a Thing, drawn into Obligation, begins to be due, altho it cannot yet be demanded. A day is said to come when that can be demanded which is due. A stipulation, at a certain day, is that which is [made] annexing a day, appointing a day, in which the Money is to be paid. A day may be added to an Obligation 2 Ways, either as a Time from which, as after 5 years I will give, or as a Time to which, as untill 5 years, or as long as I shall live. In the 1st Case, the day of the Obligation, immediately [goes?] but comes not before the day exists. It is [right?] however for the Debtor to pay before the day if he will. In the other Case also, the time being past, the Obligation is perpetuated by the Law it self, but the Promissor of the Agreement, by the Exception of the Agreement [ . . . ] may [ . . . ] himself. The time moreover may be added to the Stipulation not only expressly, but also it is sometimes tacitly implied; which happens if a Place is added to the Stipulation, the Performance it self of the Thing, or fact in it self against a space of Time. A conditional stipulation is, one which is made, with regard to a future, [uncertain?] Case, in that the day of the Obligation, neither goes nor comes, unless the Condition happens. Yet the Hope of the future Obligation is transmitted, from the Part of each Contractor to his Heirs. [But?] if the Condition is affixed to the present or the past time, that is scarcely esteemed a [Contract?] nor differs the Obligation.
{Folio: 8, upside down}7 A Stipulation is made in any Tongue yet the Question and Answer must agree, and, all things [ . . . ] drawn into that, which are in Commerce, also the facts must be possible and lawful, [ . . . ] own, not [anothers?]. If a fact is drawn into [ . . . ] in a Stipulation, the Promissor cant be compelled precisely to the fact, but is freed from [ . . . ] and therefore it is [actible?] to [ . . . ]8 Stipulator, for { 58 } thus he exempts himself from the difficulty of proving that which is due.
Of the 2 Parties of stipulating and promising. The [accessors] of the Stipulation are 2 Stipulators to each of whom the same Thing, Speech by [ . . . ] is [promised?] in the whole. The [Accessor?] of promising or of owing the [joint?] Promisers or [ . . . ] conjuncta oratione. Fellow Promisers, joint Promisers [ . . . ]9 2 [promisors?] who singly promise the same Thing, at one time, to a Person Stipulating. Stipulans, in eadem Res, the en solidum, the same thing to a [ . . . ]. Eandem Rem, in solidum. That therefore 2 may be joint Accessers to [ . . . ] of Stipulating or promising, it is required 1. that the same Thing be draw[n] into the stipulation, brought into the Stipulation. 2. That the Promise be made from one and the same Cause. 3. That the whole be promised to both, and by both. Yet one of the Accessors may be rightly obliged, purely, and the other, on Condition, or to a certain day. The Effect of such a stipulation is, that the 2 Partners may act or agree, for the whole, singly, separately, yet so that one accepting, receiving a Debt, or one paying the whole Obligation is destroyed. But if joint Debtors are obliged to any thing by an alternate Engagement, they may enjoy the Benefit [of the] Divisons. Of the Stipulation of Servants. Even servants may stipulate from the Person of their Masters, also an hereditary servant, and a common servant. But a servant acquires not any thing that is stipulated to himself, but to his Master or to the Inheritance or if there are many Masters he stipulates to each for Part, unless it was by the Order of one, or for one by name. Yet a servant, if he stipulates for a fact, acquires it to himself. Of the Division of Stipulation. [ . . . ] Stipulations are either, judicial, or praetorial, or conventional, or common.10
1. The text of this entry is written in JA’s small but familiar hand, immediately following the canceled beginning of his notes on Winthrop’s lectures, preceding, on a page of the MS otherwise left entirely blank in 1754. For the assigned date see the following note.
2. This is the beginning of JA’s notes on Johannes van Muyden’s Tractatio . . . , 3d edn., Utrecht, 1707, an abridgment of Justinian’s Institutes, which had been lent to him by Jeremy Gridley in Oct. 1758, which JA read during the following months, and which he later obtained for his own library from the sale of Gridley’s books. See the Introduction, p. 15–16, and references there; see also the titlepage of the Gridley-JA copy of the Tractatio (now in MB) as reproduced in the present volume. JA‘s notes in this entry are drawn from p. 114–121 of Van Muyden, beginning in the Institutes at bk. 3, part way through title 15, and continuing part way through title 19. Since JA is known to have resumed his reading of this work on 20 Dec. 1758 at p. 99 (Diary and Autobiography, 1:63), we may suppose the present notes were written late in Dec. 1758 or early in Jan. 1759.
It cannot be said that JA was an exemplary note-taker. He not only omitted author, title, and all references to sections and pages of the book he was abstracting, but seems to have been satisfied at times with gibberish. His writing { 59 } is so cramped and his translation so rough that sometimes, even with the Latin original in hand, it has proved impossible to render his words and grasp his meaning.
3. The preceding four lines, beginning with the word “Loan” as repeated, are out of context; they are possibly from some source cited in Van Muyden’s marginal gloss.
4. Omitted in JA’s notes; supplied from Van Muyden’s text.
5. The preceding sentence is out of context; see note 3.
6. This word and the whole sentence preceding it are out of context; see note 3.
7. The notes that follow in this entry are upside down on p. {8} of the MS, below the passage we have entitled Rules for Determining the Excellence of a Language (next entry in the Diary Fragment). It may therefore be presumed that all the notes on Van Muyden were written later than the “Rules.”
8. Five or six words undecipherable.
9. Two or three words undecipherable.
10. JA’s notes on Van Muyden continue without a break much later in the MS; see p. 100, below.
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, 2018.