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Browsing: Early Diary of John Adams, Volume 1


Docno: ADMS-02-01-02-0010-0001-0003

Author: Adams, John
DateRange: 1758-10 - 1758-12
{Folio: 16}

[A Letter to Richard Cranch about Orlinda, a Letter on Employing One’s Mind, and Reflections on Procrastination, Genius, Moving the Passions, Cicero as Orator, Milton’s Style, &c., October–December 1758.]1

What is Wisdom? Is it, to write dramatic Poetry, like Milton or Shakespear? Is it to write on Astronomy and Physicks like Newton, or is it to know the human mind like Lock? Does it consist in Genius and Learning? No Genius and Learning have been oftener mad than wise. It is not to Act or think beyond man kind.
[Draft of a Letter to Richard Cranch.]2
Say was there most of Cruelty or of Cunning in sealing up this cruel scroll <this Paper full of Disappointment, Spleen and Heart Ache> in a Letter from you.3—As the Doctor, to cheat his Patients Eyes, conceals his bitterest Potions in the sweetest Consalves4 and Confections, as the Manchineal conceals her Poisonous Juices under the Appearance of a fair delicious Fruit,5 as the Bee conceals her self and her fatal Sting in the Center of an Honey Comb, <in the same manner> Orlinda incloses this Paper, full of Disappointment, Spleen and Heart Ach, in a Letter from my dearest Friend!
You are sensible, my Friend, that the night Working Fancy of a Lover which steals him often, o’er seas and mountains to the <Arms> Company of his Mistress, and which figures, in his Slumbers, a thousand various scenes of Pleasure, only serves to increase his Misery, when he wakes, by <the Thought, that he cant possibly partake such Pleasures is too far [removed?] cannot possibly enjoy> exciting Desires which he cannot gratify. Just so this <Letter> Billet has roused in my Imagination a scene of Pleasure, which I should not otherwise have <wished for> tho’t of,6 a scene which seems to be grappled to my soul with Hooks of Steal, as immoveably as I wish to <be> grappled in <the> my Arms the Nimph, who gives it all its ornaments. <Wherever I go, { 70 } whatever I do, asleep or awake, This dear bewitching scene attends me, and takes up all my Thoughts.>7 If I look upon a Law Book and labor to exert all my Attention, my Eyes tis true are on the Book, but Imagination is at a Tea Table with Orlinda, seeing That Face, those Eyes, that Shape, that familiar friendly look, and [hear]ing Sense divine come mended from her Tongue. <When I should be at my Devotions> When the rest of the family are at their Devotions I am paying <mine> my Devoirs across a Tea Table to Orlinda. <When I attempt to Sle> I go to bed and lie ruminating on the same Ideas half the night, then fall asleep and dream about the same, till morning Wakes me, and robs me of my Bliss.8 If, as grave folks say Madness is occasioned by too long and close an Attention to one set of Ideas, I shall soon I fear grow mad for I have had no Idea, but that of Orlinda, that Billet and Disappointment in my Head since you saw me.
Oh Tea, how shall I curse thy once delightful but now detested stream. May I never taste thy Waters more, for thy Waters will forever bring the Remembrance of Orlindas Cruelty, my eager Wishes and fatal Disappointment. Or if I must taste, for my Cup from thy stream may I drink whole Buckettsfull from Lethe to forget my Woe <,which that would otherwise without such an Antidote always renew>.9
Shall such Cruelty go unpunished. No may she <have a husband> be in less than a year from this day be tied in the everlasting Chains of Wedlock.10
If he has the Spirit of a Man, he will be ready to bite his own Flesh.11
{Folio: 17}
[Draft of a Letter to an Unidentified Correspondent.]12

[salute] My Friend

Such is the Nature of <Man> the human mind, that each individual must and will have some Employment, for his Thoughts, some <Amusement,> Business, study, Pleasure or Diversion, virtuous or vicious, lawdable or Contemptible, to consume his Time. If he is not instructed to contemplate the Heavens, he will instruct him self to contemplate Cockell shells and Pebblestones; if his Rank and Fortune exempt him from <Labour> Business, he will engage himself in Study or in Play, in Hunting or <whoring,> or something else, better or worse. The first Question, then that a young man should ask himself is, what Employment am I by the Constitution of my mind and Body, and by the Circumstances of Education, Rank and Fortune, directed to pursue? And { 71 } the next is what is the best Method, the safest, easiest, nearest Road to the proper End of that Employment I have chose?
Suppose you had chosen the study of Nature, for the Business of your Life, should you not inquire in the first Place, what is the End of that study? Is it to improve the Manufactures, the Husbandry, or the Commerce of Mankind, or is it to adorn a Library with Butterflies of various sizes, Colours and shapes? Or suppose you had chosen the study of History, should you not inquire is the End of this study the naked Knowledge of great Names and [ . . . ][Actions?] or is it a personal Improvement in Virtue and Capacity, by imitating the Virtues and avoiding the Vices of great men, and by judging of the Effects of Causes now at Work, by those Causes which have appeared heretofore? Should a Student in History inquire chiefly of the Dress, Entertainments and Diversions, instead of the Arts, Characters, Virtues and Opinions of ancient Nations, and the Effects of these on their public and private Happiness would not you laugh? There was nothing in the Lamp, by which Demosthenes wrote his orations, that deserved the Attention of the present Race of men, more than there is in the Candle by which I write this Letter. And I would pay no more Admiration to a man who could [tell]13 me the exact Highth of Cicero, or the Number of Hairs that grew upon his Head, a Pice of Knowledge that I cannot now attain, than I would to one who could tell me the exact Number of Letters, Comma’s and semicolons that are in all his Works, which [I]14 have the means of knowing.
We are not therefore, to measure of Admiration of a man by the Number alone, but by the <Importance, Usefulness and> Utility and Number jointly of the Propositions that he knows, and his Dexterity in apply[ing] them to Practice.
<The great secret therefore, the main> The primary Endeavour therefore, should be to distinguish between Useful and unuseful, to pursue the former with unwearied Industry, and to neglect with much Contempt all the Rest. We need not fear that subjects of Inquiry will be so few, that the Treasures of useful Knowledge will be exhausted.— Every Moment of the longest Life, may be spent in acquiring Knowledge of the greatest Moment, in the Course of Life.
Perhaps many hundreds, in the English Nation, have employed the same <Attention,> Industry, and Sagacity in discovering the Properties of Animalcules that Escape the natural sight, as Sir Isaac Newton did in discovering and demonstrating the true system of the World. I will venture yet further, perhaps these men, if they had employed Experiment and [Geometry?] in the [method?] he used would have made as { 72 } wonderfull discoveries. It [is]15 the Method then, and not the Drudgery of science that is chiefly to be [pursued?][pressed?].
Why am I so silly as to trifle away my Time in such <useless> unprofitable scribbling—waste Paper, Pen, Ink, Time, Wood, Candles, in this idle Amuzement.
{Folio: 18}What is the Cause of Procrastination? To day my Stomack is disordered, and my Thoughts of Consequence, unsteady and confused. I cant study to day but will begin tomorrow. Tomorrow comes. Well, I feel pretty well, my head is pretty clear, but Company comes in. I cant yet study tomorrow, but will begin in earnest next day. Next day comes. We are out of Wood, I cant study: because I cant keep a fire. Thus, something is always wanting that is necessary.
What are the Proofs, the Characteristicks of Genius?—Answer Invention of <a System> new Systems or Combinations of old Ideas.
The Man, who has a faculty of inventing and combining into one Machine, or System, for the Execution of some Purpose and Accomplishment of some End, a great Number and Variety of Wheels, Levers, Pullies, Ropes &c. has a great Mechanical Genius. And the Proofs of his Genius, (unless it happen by mere luck) will be proportionably to the Number, and Variety of Movements, the Nice Connection of them, and the Efficacy of the entire Machine to answer its End. The last, I think at present, ought to be considered in [estimating?] any Genius. For altho Genius may be shewn in the Invention of a complicated Machine, which may be useless, or too expensive, for the End proposed, yet one of the most difficult Points is to contrive the Machine in such a manner, as to shorten, facilitate, and cheapen, any Manufacture &c. For to this End a Man will be obliged to revolve in his Mind perhaps an hundred Machines, which are possible but too unwieldy or expensive, and to select from all of them, one, which will answer the Purposes mentioned.
2. The Man who has a Faculty of feigning <a great Number, and Variety of Characters, Actions, Events &c.> and combining into one regular, correct, consistent Plan or Story, a great Number and Variety of Characters, Actions, Events &c. has a great poetical Genius. And the Proofs of his Genius are in Proportion to the Variety, Consistency and Number of his Characters, Actions and Events; and to the nice Connection and Dependence of these upon each other thro a whole Poem. And these Proofs have been given in a surprizing degree by { 73 } Milton and Shakespear, Homer, Virgil &c. Milton has feigned the Characters of Arch Angells and Devills, of Sin, Death, &c., out of his own creative Imagination and has adjusted, with great Sagacity, every Action and Event in his whole Poem to these Characters.
3. The Man, who has a Faculty of inventing Experiments and [reasoning?] on them [means?] of Starting new Experiments from that Reasoning, and on these Experiments forming new Reasonings till he reduces all his Experiments, all his Phenomena, to general Laws and Rules, and combines those Rules to an orderly [and re]gular Dependance on each other, thro the whole System, has a great Phylosophic Genius.
4. The Man who has a Faculty of considering all the faculties and Properties of human Nature, as the Senses, Passions, Reason, Imagination and faith, and of <combining> classing all these into order, into Rules, for the Conduct of private Life, has a great Genius in Morality.
5. He who has a Faculty of combining all these into Rules, for the Government of Society, to procure Peace, Plenty, Liberty, has a great political Genius.
Thus Order, Method, System, Connection, Plan, or whatever you call it, is the greatest Proof of Genius, next to Invention of new Wheels, Characters, Experiments, Rules, Laws, which is perhaps the first and greatest. Q[uery]. Does not the Word Invention express both these faculties, of inventing Wheels &c. and putting them in order.
Q. May not Genius be shewn in aranging a Mans Diet, Exercise, Sleep, Reading, Reflection, Writing &c. in the best order and Proportion, for His Improvement in Knowledge?
These are but vague, general, indeterminate Reflections. I have not Patience to pursue every particular attentively. But, This Patience <is the greatest Attainment> or a great Superiority to a mans own unsteadiness, is perhaps one of the greatest Marks of Genius. Inatention, Wandering, Unconnected Thoughts, are the opposites to this Patience.
Q[uery]. Had not Mr. [Prat?] some such Reflections in his mind, when he said that Mr. Edwards had given proofs of a Great Genius.16 —And Q. is not The Pilgrims Progress, according to these Rules, a Proof of a great Genius.—There is Invention.17
{Folio: 19}Ballast is what I want, I totter, with every Breeze. My motions are unsteady.
{ 74 }
Of what use to a Lawyer is that Part of oratory, which relates to the moving of the Passions? Without Simplicity no human Performance can arrive to any great Perfection.
The Talent, and Art of moving the Passions, may be used in a Capital Trial by the Counsel for the King, to raise the Resentment of the Jury, against the Crimes of the Prisoner, and by the Counsell for the Prisoner, to move the Compassion of the Jury.
It may be used to raise, in the Judges, Jury and Spectators, an Admiration, and Esteem of the wise, humane, equitable and free Constitution of Government we are under. It may be used to rouse in the Breasts of the Audience a gallant Spirit of Liberty, especially when declaiming upon any Occasion, on any Instance of arbitrary Conduct in an Officer or Magistrate.
Sound is I apprehend a more powerful Instrument of moving the Passions than Sense. Musick is capable of raising in the Mind every tender, generous, noble Passion and Sentiment. And as a Musician, to get the skill of moving the Passions, must study the Connection between sounds and Passions, so should an orator. Every Passion has its distinct peculiar sound. Anger, and Compassion, produce very different Modulations of the Voice, and so do fear, Love, Contempt, Joy, sorrow, and Admiration. An Orator to gain the Art of moving the Passions, must attend to Nature, must observe the Sounds in which all sorts of People, express the Passions and sentiments of their Hearts, and must learn to adapt his own Voice, to the Passion he would move. The easiest Way to this will be to possess his own Mind strongly, with the Passion he would raise, and then his Voice will conform it self of Course. Thus if you will raise in a Jury a Resentment of some great Crime, resent it strongly yourself, and then the boldest <Expressions> Thoughts and Words will occur to your mind, and utter themselves with the most natural Tone of Voice, Expression of Countenance and Gesture of your Body.
[Let] me examine in the greatest orators of Rome and Britain, what peculiar Sounds are used [to] express the different Emotions of the Mind—as Grief, Resentment, Fear, Horror, Courage, [Com]passion, Love, Joy &c. To examine this Point thoroughly would require a search [of] all the Poets and orators of all the Languages I understand.
Grief and Fear, in Tullies Oration for Milo,18 are uttered by Interrogations, and Exclamations. Quid me reducem esse voluistis? An ut, inspectante me, expellerentur ei, per quos essem restitutus? Nolite { 75 } obsecro vos, pati mihi acerbiorem Reditum esse, quam fuerit ille ipse Discessus. Nam qui possum putare me restitutum esse, si distrahar ab iis, per quos restitutus sum? Utinam dii immortales fecisse[n]t (pace tua, Patria, dixerim).19 This Figure which addresses Things without Life, as a Country, a Temple, a Monument, Virtue or Vice, Wisdom, Folly &c. as if they were Personages, is much used both in Poetry and oratory. [ . . . ] says,

Welcome for thee fair Virtue all the Past.

For thee fair Virtue welcome even the last.

He looks and speaks to Virtue as Tully looks and speaks to Patria his Country.—I believe tis called Apostrophe some times. Popes Address to L.B. in the Conclusion of his Ethic Epistles, is called an Apostrophe. [C]ome then my friend my Genius come along, Oh Master of the Poet and the Song.20
The Point, that Tully drives at, is the Acquittal of Milo. He is afraid that the Judges will sentence him to death or Banishment. It is Lachrimis non movetur Milo &c.21 His design here is to raise their Admiration of Miloes strength and Constancy of mind and of his Love of Virtue and Contempt of Exile. Then he speaks, in pungent, keen Questions, to the Judges. Vos Iudices quo tandem animo Eritis? Memoriam Milonis retinebitis, ipsum ejicietis? Et erit dignior Locus in Terris ullus, qui hanc Virtutem excipiat quam hi qui procreavit?—Thus I see that any great Agitation of mind breaks out into exclamations and Interrogations.—Vos, Vos appello fortissimi Viri. There is great Warm[th] in that Repetition of Vos, qui multum pro Republica sanguinem effudistis Vos in viri et in civis invicti appello periculo, Centuriones, vos que militus; vobis non modo inspectantibus, sed etiam armatis, et huic ludicio praesidentibus, haec tanta Virtus ex hac Urbe expellatur? exterminabitur? projicietur? <An Address with so much Vehemence> An Appeal to the Centurions and soldiers, complimenting them with the Epithet fortissimi Viri made with so solemn and vehement a Repetition Vos Vos, and feeling with so much sensibility, the Ingratitude, Cruelty, and folly of Banishing a Man who had rendered the Republic such Important services and was able and zealous to render still more, must have drawn Tears to their Eyes and Rage to their Breasts. His Mind seems to waver between Indignation at Clodius, and Admiration of Milo, between Love and Gratitude to Milo for his past favours to him and Services to the State, and Fear, dread of his Banishment. His Mind is a Ship in a Tempest, tossed and tumbled { 76 } with great Impetuosity, every Way. He breaks out into Exclamations to the Immortal Gods, and to the happy Coasts that shall receive Milo when banished and to his own ungrateful miserable Country if she shall banish him. I take it this Peroration for Milo, may be studied as a Model of the Pathetic.
I should distinguish between moving the Passions of another, as an Orator, and expressing Passion naturally, like a Dramatic Poet, for tho there may be an Affinity between them, yet they are distinct. Tully, in that Peroration, expresses the Passions of his own Mind, his Love, his Gratitude, his Grief and fear, and at the same time moves the Passions of the Judges, the Centurions and soldiers by appealing to them, to Heaven by exclaiming to his Country and that Country that should receive Milo if Banished, but a Dramatic Poet has to make each Character express his own Passions well, in order to raise the Passions of the Audience &c.
{Folio: 20}With what pathos does Othello bid farewell to War, in Shakespear.

Oh now forever

Farewell the tranquil Mind! farewell content;

Farewell the ploomed Troops and the big War

That make Ambition Virtue! Oh! farewell!

Farewell the neighing Steed, and the shrill Trump

The spirit stirring Drum, th’ear piercing fife

The Royal Banner and all Quality,

Pride, Pomp, and Circumstance of glorious War

And Oh! you mortal Engines, whose rude Throats

Th’immortal Joves dread Clamours counterfeit

Farewell! Othello’s Occupations gone!22

These Exclamations, Apostrophe’s, express, with the utmost grandeur of sounds, the deep Grief, Misery, and despair that <were in> raged within his Mind. Q[uery], is Grief always so sonorous23 and harmonious? Is it ever expressed in short broken sounds? I believe not, it always swells into numbers. I may say that Passion swells into Numbers, and Metaphors.
I have so many Irons in the Fire, that every one burns.—I have common, civil, natural Law, Poetry, Oratory, in Greek, latin, french, english to study, so that when I set down to read or think, so many subjects rush into my mind that I know not which to chuse.
{ 77 }
But to what End this subtle Inquiry into Niceties.—A minute Examination of syllables and sounds will never procure Genius. But Genius has often hit without design upon the most grand and proper sounds.
What are the Motives, that ought to urge me to hard study? The Desire of Fame, Fortune and personal Pleasure. A critical Knowledge of the Greek and Roman <Tongues and of the> and french Poetry, History and Oratory, a thorough comprehensive Knowledge of natural, civil, common, and Province Law, will draw upon me the Esteem and perhaps Admiration, (tho possibly the Envy too) of the Judges of both Courts, of the Lawyers and of Juries, who will spread my Fame thro the Province, will draw around m[e a S]warm of Clients who will furnish me with a plentiful Provision for my own Support, and for the Increase of my fortune. And by means of this Authority and Consideration, with the Judges, Lawyers, Juries and Clients, I shall be able to defend Innocence, to punish Guilt, and to promote Truth and Justice among Mankind.—But besides these Motives, there is another, no less powerful than either, which is the active Acquisition of Knowledge, in a peaceful, undisturbed Retirement. Here I should moderate my Passions, regulate my Desires, increase my Veneration of Virtue, and Resolution to pursue it, here I should range the whole material and Intellectual World, as far as human Powers can comprehend it, in silent Contemplation.—Now, if Fame, Fortune, Pleasure and Virtue have not Power to influence me, what am I? <Oh Genius> Oh [ . . . ]!24 Oh Learning! Oh Eloquence! <how shall I> may I dare to think I have the first? How shall I assume a Power to command the other two. Knowledge I can and will acquire, and has Language Power to charm, and shall not I avail my self of that Power?
Longinus says there is an Art of the Sublime. Swift says there is an Art of the Profound. Q[uery]. What Rules will help us to acquire both or either. As the sublime is a Property of Discourse, whether in Speaking or Writing, some real Cause which produces in the Hearer or Reader, Transport and Rapture, no doubt, that Property may be found out by examining critically those Passages which produce that Effect, and by comparing them with other Passages which produce no such Effect, or a contrary Effect, as Drowsiness, &c. And when the true, real Cause is known, we may endeavour to infuse it into our Discourse—e.g. If this Cause consists in sound only, we must inquire what sounds have and what have not this Effect upon us. And we must { 78 } chuse out such Words, as have that sound and avoid others. If it consists in sounds, we must inquire whether it consists in the sound of a particular Word or in the combination of all the Words in a Period. If it consist in the Idea only, we should inquire what Ideas have this Effect on the human mind? And we shall find, that the Ideas of Objects that are great in Nature, as that of the Sun, Moon, the Sky, Earthquakes, Thunder, Tempests, Comets, extensive Prospects &c. have this Effect on the mind. If it consist in the sentiment, we must inquire what sentiments have this Effect on the Mind? And we shall find that fixed Resolutions in favour of Virtue, Courage, disinterested Charity, Generosity, Contempt of littlenesses &c. have this Effect—Now from such observations as these, no doubt, Rules may be collected, and reduced into an Art for acquiring the sublime, the grand and noble, and for avoiding the low, little and mean in Discourse. I have not Leisure nor Patience, for examining the sublime Passages in Tully, Virgill, Milton, Shakespeare, Pope, Bolinbroke, Swift, Addison, Tillotson, Ovid, Horace &c. by these Rules. In that very sublime Passage in Milton where the Effect of Satans Speech upon his infernal Host is described,25 The sublimity consists, Partly, in the sound of the Words, partly in the Ideas, that they convey, and partly in the Sentiments.—Out flew Millions of flaming Swords drawn from the [Thigh]s of Mighty Cherubim, the sudden Blaze far round illumind Hell, highly they ragd [Again]st the highest, <and fierce>—Many of these Words, as flew, flaming, [ . . . ]26 drawn, mighty, Blaze, far, round, highly, ragd, have when pronounced seperately, a grand Sound, and here they are arranged into a very harmonious order.
{Folio: 21}And fierce with grasped Arms, clashd on the sounding Shields the Din of War, Hurling Defiance towards the Vault of Heaven.
The Words fierce, grasped, Arms, clashd, sounding, War have a loud grand sound and are so disposed in this Line, as both to elevate and quicken the Voice of the Reader, which makes the whole frame of both Reader and Hearer thril with Transport.
Then in the next Line, hurling, Defiance, Vault, have all a bold elevated sound.
Thus it seems that the bare sound of the Words, as disposed in this Passage, have an Effect upon the Hearer like the sound of a musical Instrument, playing some grand and sublime Tune.
Now let us examine the Ideas conveyed by these Sounds. Out flew—The Idea of Millions, a great, a surprizing Number of blazing swords. There is something great and terrible in the Idea of a single blazing glittering sword, because we associate with it, the Idea of Slaughter { 79 } and Blood and Death, which naturally shock and arouse us, but when the Idea of Millions of blazing swords, as much larger than our swords as a Devil is supposed larger than a Man, flying instantaneously out from the scabbards of a whole Host of Devils, and brandished in air, enters the Mind it alarms, rouses, astonishes it. But then the sudden Blaze [created?] by all these Swords illumins all Hell. The Idea of a Flash of Lightning, is grand and elevating to the Mind, but a flash like this, that brightens the dark Abodes below, astonishes every mind. Then the Idea of grasping suddenly their Arms, Spears, Swords &c. and each one clashing his upon his shield, raises an Idea of a direful Clash, that neither Thunder, Earthquake nor Tempest, tho’ all of them grand sounds can equall. Then the Din of War calls up the Ideas of all those sounds that attend an Army, the sound of Drums, Trumpetts, and all sorts of musical Instruments, the murmuring, shoutings, screamings of living and [dying?], which is very terrible and shocking to the Mind. Then come the Ideas of Hurling, which denotes strength and Activity, both of which are [ . . . ] and elevating, then of Defiance, which denotes a grand Temper of mind, then the Idea of the Vault of [Hea]ven, which is one of the sublimes[t] Objects in Nature.—It is scarce possi[ble to] conceive how a greater Number of great Ideas could be asserted [in] so few Lines.
[Lastl]y let us examine the Sentiments. The general sentiment is that of Rebellion and Warfare, proclaimed by all the infernal Host against the Almighty, which is a sentiment that cant fail to excite Horror and Astonishment in every human mind. Then comes a sentiment, that they raged against God which raises the [ . . . ] still higher, till at last it breaks out into open impious Defiance, scorn and Contempt, which compleats the Passage and makes the Blood of [every?] Reader, who has a soul, curdle from his fingers to his Toes.
Perhaps few Passages can be quoted, in any Language in Prose or Verse, where sounds, Ideas, and Thoughts [conspire?][conform?] so perfectly and seem to [contend?] which shall produce most Astonishment in the Reader, with this.
N.B. Tho I always admired this Passage, and have repeated it 1000 times, yet I never found 1/2 so many Beauties in it as this Examination has laid open to my sight.
Thus we see in this Passage, not only soft and smo[o]th sounds but such as are harsh and grating, not only Ideas of Objects that are beautiful and lovely, but of such as are deformed and detestible, not only sentiments that are generous, grateful, noble, but such as are ungrateful, impious, horrible, may be employed in producing the sublime.
{ 80 }
But to return. I collect from this Heap, that The Art of the sublime, like the Art of natural Philosophy is [formed?][founded?] in a science, and that Experiment and Observation are the natural means of improving both. We must make Trial of the Effects of different Sounds, of different Ideas, and of different Sentiments, on the human Senses, Passions, Imagination, and Understanding, to discover general Rules for producing the Sublime and avoiding the low.
Tis desirable to know the general system of humanity, to know the most remarkable Things in this World.
1. This very miscellaneous entry, occupying pages {16–21} of the MS as it survives, is actually a series of detached jottings, letter drafts, literary exercises, notes on books read, &c., which seem from the handwriting and the appearance of the MS to have been put down at the same period, although not all at once and not necessarily consecutively. That they all belong to the last three months of 1758 seems clear from the evidence adduced and discussed in the Introduction.
2. The recipient’s copy of this letter, bearing the addressee’s name on the cover, is in the Adams Papers, having been returned at some point by a Cranch descendant. It is without date or signature (but see the discussion of its probable date, Nov.–Dec. 1758, in the Introduction, p. 13) and varies sufficiently from the draft to show that JA worked hard over his epistolary style; see the textual notes below.
On Richard Cranch (1726–1811), see Adams Genealogy; indexes to JA, Diary and Autobiography, and to Adams Family Correspondence; Sibley-Shipton, Harvard Graduates, 11:370–376.
3. That is to say, Cranch’s letter (not found), to which JA is replying, enclosed a note (also not found) from “Orlinda.” From what follows it would appear that Cranch and Hannah wrote their notes to JA during a gay rendezvous over a tea table. JA may have been invited, but he could not or at any rate did not attend. On the identification of “Orlinda” as Hannah Quincy, and JA’s love affair with her, see the Introduction, p. 11–13.
4. Thus also in RC. This spelling is not recorded, but the word is probably JA’s fancy equivalent of “conserves.”
5. Manchineel: “A West Indian tree . . . having a poisonous and caustic milky sap, and acrid fruit somewhat resembling an apple” (OED).
6. RC: “which my Pen cannot describe.”
7. RC adds a sentence at this point: “The Idea of this has engrossed my whole Attention.”
8. In RC this sentence reads: “I go to bed, and ruminate half the night, then fall asleep and dream of the same enchanting scenes till morning comes and brings Chagrin, fretfulness and Rage, in exchange for Bliss and Rest.”
9. It should be pointed out that it was over a tea table at Col. Quincy’s that JA and Hannah Quincy had their first recorded, and very intimate and revealing, conversation, apparently early in Jan. 1759 (JA, Diary and Autobiography,1:66–67).
10. This wish, or curse, was almost literally realized. In the minds of Braintree people, even if not formally, Hannah Quincy and Dr. Bela Lincoln (1734–1773), of Hingham, her brother Sam’s Harvard classmate, were engaged from at least early 1759—at the very time JA was nearly trapped into making a marriage proposal to her. The courtship did not go at all smoothly, but the marriage took place on 1 May 1760. See JA, Diary and Autobiography, 1:87–88, 102, 114, 118–119, 176–177; and, on Lincoln generally, Sibley-Shipton, Harvard Graduates, 13:455–457. A few months later JA described in shockingly vivid terms a scene between the new husband and wife that drove from his mind any bad wishes he had ever made for Hannah. In her own father’s house { 81 } Lincoln “treated his Wife, as no drunken Cobler, or Clothier would have done, before Company. Her father never gave such Looks and Answers to one of his slaves.” Examples follow of Lincoln’s “hoggish” and “brutally rustic” conduct toward Hannah that made her sink “into silence and shame and Grief” (JA, Diary and Autobiography,1:176–177).
Two things may be said of this account. JA’s affection for “Orlinda” was not yet dead, and Hannah’s fate was a sad one for a girl who had recently had many of the young men of Braintree at her feet. As things turned out, Bela Lincoln died before he was forty, and in 1777 his widow married a well-to-do Boston widower, Ebenezer Storer, merchant, deacon of the Brattle Square Church, and recently appointed treasurer of Harvard College—“an exceeding good match,” as AA reported to her husband, “and much approved of” (Adams Family Correspondence, 2:356). Storer was famous for his kindness and good works, and the marriage was a long and happy one. (On Storer generally, see Sibley-Shipton, Harvard Graduates, 12:208–214.) The Adams Papers files show that AA sent Mrs. Storer news and patterns from Europe, and the families remained on cordial relations for many years.
Mrs. Storer long outlived her husband, as JA outlived AA. The history of JA’s relationship with the fascinating Orlinda closes with an incident as dramatic as it is fitting. It was told by a great-nephew of Mrs. Storer, Josiah Quincy (1802–1882), author of a charming book of reminiscences. From boyhood he remembered a certain “sylvan spot,” in that part of Braintree that became Quincy, which was always known as “Cupid’s Grove” and plays a part in his anecdote. Sometime in the early 1820's young Quincy was “deputed to attend [his] venerable relative on a visit to the equally venerable ex-President,” the Adams and the Quincy homesteads not being far apart.
“Both parties [Quincy relates] were verging upon their ninetieth year.... When Mrs. Storer entered the room, the old gentleman’s face lighted up, as he exclaimed, with ardor, ‘What! Madam, shall we not go walk in Cupid’s Grove together?’ To say the truth, the lady seemed somewhat embarrassed by this utterly unlooked-for salutation. It seemed to hurry her back through the past with such rapidity as fairly to take away her breath. But self-possession came at last, and with it a suspicion of girlish archness, as she replied, ‘Ah, sir, it would not be the first time that we have walked there!’” (Figures of the Past, p. 56–57.)
11. There is nothing to indicate to whom this passage, possibly a quotation, was meant to apply.
12. The impersonal style and the general substance of the letter that follows suggest that it was written as a literary exercise rather than addressed to a friend. Possibly it was intended for newspaper publication.
13. Editorially supplied.
14. Editorially supplied.
15. Editorially supplied.
16. Apparently an allusion to remarks made by Benjamin Prat (1711–1763), Harvard 1737, a leader of the Boston bar and later chief justice of New York Province, in reference to the celebrated theologian and author Jonathan Edwards (1703–1758), Yale 1720. On Prat see Sibley-Shipton, Harvard Graduates, 10:226–239; on Edwards, DAB.
17. It is at this point in the MS, between {18} and {19}, that three leaves (six pages) were slit out by JA for some other use, probably (but not certainly) before the present reflections were entered in the Diary Fragment. See the Introduction, p. 5.
18. Relevant to the following analysis of Cicero’s rhetoric and its actually physical effect on JA is the following passage, written at approximately the same time:
“Thurdsday [21 Dec. 1758]. Yesterday and to day I have read loud, Tullius 4 Orations against Cataline. The Sweetness and Grandeur of his sounds, and the Harmony of his Numbers give Pleasure enough to reward the Reading if one understood none of his meaning. Besides I find it, a noble Exercise. It exercises my Lungs, raises my Spirits, opens my Porr[s], quickens the Circulations, and so contributes much to Health” (JA, Diary and Autobiography, 1:63).
19. From Cicero’s Speech on Behalf of Titus Annius Milo, §§37–38.
20. These lines, addressed by Pope (as { 82 } JA says) to “L[ord] B[olingbroke],” are not from the “Ethic Epistles” or Moral Essays, but from the Essay on Man, Epistle IV, lines 373–374.
21. This and the following quoted and paraphrased matter are from Cicero’s Oration for Milo, §37.
22. Othello, Act III, scene ii, lines 347–357.
23. MS apparently reads “sonorerous.”
24. Here is an unresolved crux in the text, and, unfortunately, in a passage very revealing of JA’s hopes and fears concerning himself—a passage, too, of some interest for the historian of ideas because of its distinction between “genius” in its then very newest sense and acquired knowledge and skills.
JA clearly first wrote: “Oh Genius! Oh Learning! Oh Eloquence!” and, hardly daring to ask himself if he had “the first” of these, he could comfort himself only with the realization that, with effort, he could acquire the other two—“Learning” (or “Knowledge”) and “Eloquence” (or “Language [with] the Power to charm”). In shaping these thoughts he at some point crossed out the first of the three qualities in his list (“Genius”), but what he cramped into the space above it is utterly cryptic; perhaps “Gens” or Gius”—a hasty and contracted restoration of what he had originally written and then (wrongly) crossed out. Whatever he finally wrote, it seems unquestionable that he meant “Genius.”
25. Paradise Lost, bk. I, lines 663–669, whence the quoted and paraphrased matter below is taken.
26. Corner of page torn away in MS.

Docno: ADMS-02-01-02-0010-0002-0001

Editorial Note on the Case of Field v. Lambert

By L. Kinvin Wroth and Hiller B. Zobel

A number of the later entries in the newly discovered Diary Fragment add precious scraps of information to the relatively little known of the very beginnings of John Adams’ career as a lawyer. Much the most important among them are the notes and drafts, scattered and disorderly but substantial, that Adams prepared for his first case, Field v. Lambert. In combination with several entries in the Diary as published in 1961, these materials permit a detailed examination of this crucial and traumatic episode.1
The new materials on Field v. Lambert appear in three separate entries in the MS of the Fragment. In keeping with the editorial policy throughout this volume, they are printed in their original order at pages 89–90, 93–94, and 94–96, below. Within these entries five separate items may be distinguished. In the first entry are a brief discussion of the calling and name of mason and a list of queries concerning the declaration in the case. The second entry is a draft of the declaration. The third entry contains an alternative or revised passage from the declaration and some further notes and queries on it.
{ 83 }
The case arose on 10 October 1758, when two of Luke Lambert’s horses broke into Joseph Field’s Braintree meadow “and lay there some time, damage feasant.” When Lambert discovered the horses, he entered the meadow himself, anxious to avoid paying for any harm that they had done. Despite Field’s active protests, Lambert “waved his Hat, and Screamed at” the horses, driving them away, “with[out] tendering Feild his Damages.” Field, who had been unable to collect damages in an earlier similar incident, now brought suit against Lambert by making complaint before Justice Josiah Quincy, Adams’ Braintree friend and neighbor. The defendant apparently did not appear when summoned, because Field obtained a warrant of contempt, “directed to the Constable, who brought the Offender before the Justice, attended with the Complainant, and the Witnesses ordered to be summoned.” Adams was present at the hearing on the warrant, held on 13 October.2 He was apparently not of counsel in the case, but sat in as friend, not only of the court, but of the only attorney who seems to have appeared, and presumably of the parties as well.
The legal gist of Field’s case was that Lambert was guilty of a “Rescous,” or rescue, an unlawful taking of property from one who is lawfully detaining it. Field’s position was that he had been in the process of driving the offending animals to the town pound, where by law they could be boarded at the owner’s expense.3 His claim was based on a Province statute which provided that a person rescuing from one “about to drive them to the pound” animals which had been “taken up” after being “found damage-feasant in any . . . inclosure” should forfeit the sum of 40s. to the poor of the town and be liable for “all just damages” suffered by the rescuee.4
Justice Quincy never reached the merits of the case. Before he could proceed, his son Samuel, Adams’ contemporary at the bar, “took Exception on the Warrant” in Lambert’s behalf. In effect young Quincy was saying that his client could not be held in contempt, because the Justice had lacked jurisdiction in the original suit. The grounds of the exception were, first, that the total sum claimed in the suit (40s. forfeiture and 9s. damages) exceeded the statutory limit of 40s. placed on the jurisdiction of a single justice,5 and, second, that an action under the statute could { 84 } be brought only in a “court of record” and that the court of a single justice was not such a court. Justice Quincy forthwith ordered an adjournment that he might “inform himself” upon the two points raised.6
In his Diary, following his account of the proceeding, Adams noted several questions involved in the court-of-record problem.7 These notes support his subsequent assertion that he had been the first to suggest the lack of jurisdiction. Nearly a month later Justice Quincy reported that he had learned from a fellow justice of the peace that his was indeed not a court of record. Quincy boasted of the acumen of his son “Sammy,” who “was all along of that Opinion,” but affected not to remember Adams’ position on the question. Adams squirmed under the slight, asking himself, “Was forgetfulness, was Partiality, or was a cunning Design to try if I was not vain of being the Starter of the Doubt [as to jurisdiction], the true Cause of” it?8 No record has been found, but the Diary entries indicate that, whoever raised them, these jurisdictional issues were the basis for a dismissal of Field’s action.
Thereafter, Adams was retained by Field to bring a new action against Lambert. On 18 December he delivered to his client “a Declaration in Trespass for a Rescue,” about which he expressed manifold misgivings:
I was obliged to finish it, without sufficient examination. If it should escape an Abatement, it is quite indigested, and unclerklike. I am ashamed of it, and concerned for it. If my first Writt should be abated, if I should throw a large Bill of Costs on my first Client, my Character and Business will suffer greatly. It will be said, I dont understand my Business. No one will trust his Interest in my hands. I never Saw a Writt, on that Law of the Province. I was perplexed, and am very anxious about it.... How this first Undertaking will terminate, I know not. I hope the Dispute will be settled between them, or submitted, and so my Writt never come to an Examination.9
It is Adams’ draft of this declaration, seeking 40s. forfeiture and 20s. damages, which appears in the Diary Fragment in the second of the entries that relate to Field v. Lambert.
The court in which Adams intended to enter the action cannot be determined with certainty on the basis of present evidence. The most likely possibilities are (1) that it was to be a suit in the Suffolk County Inferior Court of Common Pleas and (2) that it was simply to be a new proceeding before Justice Quincy or another local justice of the peace.10
{ 85 }
If Field’s first action before Quincy was in fact disposed of upon jurisdictional grounds, it seems unlikely that Adams would have proceeded again before a justice of the peace. There is other evidence that the second action was in the Suffolk Inferior Court. The fact that the declaration sought damages in the lump sum of £3 suggests that Adams was not overly concerned with monetary limits on jurisdiction. Moreover, 18 December was the day before the deadline for the service of writs to be returned to the January 1759 Suffolk Inferior Court, which sat on 2 January.11 This fact might explain the necessity for hasty drafting which Adams lamented in the Diary entry just quoted. The importance which Adams attached to the matter in that Diary entry also suggests that he was about to walk upon a stage broader than that of a justice’s court. That he did at least some business at the January Inferior Court, appears from his writ in Adams v. Penniman, dated 19 December, which was entered at that term.12 Finally, in his later queries about the writ, appended to the first Field v. Lambert entry in the Diary Fragment, Adams spoke of the alternative possibility of filing “an Information ... vs. Lambert this Court,” which could well have meant at the then current term of the Inferior Court in which the civil action was pending.
The only difficulty with this hypothesis is that no entry for Field v. Lambert has been found in the Minute Book of the Suffolk Inferior Court for the January 1759 term. If the case was in fact decided by that court, either it was omitted from the Minute Book through clerical error, or the questions raised by the plea in abatement on which it was disposed of were decided by the court prior to entry. It is possible that there was some such informal proceeding before the start of the term, established by rule of court to save litigants some of the costs of proceeding in vain cases, but no other evidence of its existence has been uncovered.13
In view of these problems, it is possible that the action was brought before a justice of the peace, despite the jurisdictional objections which had seemed to prevail against Field’s first action. Lambert, or his counsel, may simply have agreed to waive the jurisdictional questions so that the matter could be disposed of without the expense and delay of a trial in the { 86 } Inferior Court.14 Or Adams may have convinced his adversaries that in a new proceeding he could successfully argue that the case was within the jurisdiction of a single justice. In October he had made note of authorities from which he might have contended that a justice’s court was a court of record.15 Perhaps he was also prepared to urge that the 40s. limit on the jurisdiction was not exceeded when damages were sought on two separate grounds, each of which alone was within the limit.16
In the days following his delivery of the writ, Adams’ misgivings continued to mount. He noted endless queries on points of detail in the first and third entries bearing on the case in the Diary Fragment, until, at last exhausted, he asked himself, “What have I been doing. Only drawing a Writt.” Finally, Lambert’s plea in abatement was filed. The grounds for the plea may have included the failure of the writ to allege Lambert’s “addition,” or calling, correctly. On this point Adams prepared a fairly elaborate note which is a part of the first Field v. Lambert entry in the Diary Fragment. This was probably only preliminary research or thought on the question, but could possibly have been part of an argument. Whether such an argument was ever delivered has not been determined. At length the writ abated, apparently on the different ground that Adams { 87 } had omitted “the County, in the Direction to the Constables of Braintree,” a slip which he had earlier noted in his first list of queries as perhaps constituting “a fatal omission.”17
The self-doubt apparent in Adams’ initial worries about his draftsmanship burst forth again in his reaction to the unfortunate news. He expressed his fears that the affair would make him a laughingstock, then went on to a thorough analysis of his failings:
Impudence, Drollery, Villany, in Lambert, Indiscretion, Inconsideration, Irresolution, and ill Luck in me, and Stinginess as well as ill Luck on the Side of Field, all unnite in this Case to injure me....
Let me Note the fatal Consequences of Precipitation. My first Determination, what to do in this affair was right. I determined not to meddle. But By the cruel Reproaches of my Mother, by the Importunity of Field, and by the fear of having it thought I was incapable of drawing the Writt, I was seduced from that determination, and what is the Consequence? The Writt is defective. It will be said, I undertook the Case but was unable to manage it. This Nonsuit will be in the mouth of every Body. Lambert will proclaim it....
An opinion will spread among the People, that I have not Cunning enough to cope with Lambert. I should endeavor at my first setting out to possess the People with an Opinion of my subtilty and Cunning. But this affair certainly looks like a strong Proof of the Contrary.18
Time has proved Adams’ fears unfounded, but he seems to have learned at least one lesson that would help him to avoid similar setbacks in the future. “Let me never undertake to draw a Writt,” he wrote, “without sufficient Time to examine, and digest in my mind all the Doubts, Queries, Objections that may arise.”19
That Adams had spent enough time after this writ was drawn in examining “Doubts, Queries, Objections” appears from his many queries concerning it. One group of problems, pertaining to the writ proper, has already been mentioned. They dealt with the defendant’s “addition” and the omission of the word “county” from the direction to the constables. These matters would have appeared in the formal part of the writ embodied in the printed portion of the form usually used and so are not found in Adams’ draft of the declaration. They seem to have been the only questions actually considered by the court.
A second group of problems concerned the declaration. Adams was worried that many specific allegations were defective. For example, he feared that the words “taken up” were too specific a description of Field’s { 88 } discovery of the horses and thus might lead to a fatal variance between pleading and proof; that “Damage feasant” was too vague an allegation of the activities of the horses prior to Field’s attempt to impound them; that the damage done by the horses should have been pleaded specially; and that whether the forfeiture was to the poor of the precinct or of the town should have been specified.
A more fundamental difficulty lay in Adams’ confusion as to whether the action should have been in debt or in trespass. The action of debt lay for the recovery of a sum certain and was the usual form of proceeding for a penalty recoverable by statute. Such actions were usually “qui tam” in form—that is, brought by a private individual “who sues as well in behalf of” whoever was beneficiary of the penalty “as for himself.” Trespass, on the other hand, was the proper remedy for damages occasioned by the defendant’s direct physical act against the person, property, or lands of the plaintiff. Perhaps Adams may be forgiven his confusion: the statute provided both a fixed penalty, such as was commonly sued for in debt, and actual damages of the sort for which trespass might have been said to lie.
If it was necessary to choose between the two forms, debt probably would have been the better alternative. Recovery of the forfeiture to the poor in trespass does not seem in accord with the direct-injury-damages rationale of that action as it was known in the 18th century. Recovery of the actual damages in debt, on the other hand, seems easier to rationalize, on the theory that the damages, equally with the forfeiture, were owing by virtue of the statute. Contemporary Massachusetts forms and later authority suggest that debt’s requirement of a sum certain was relaxed in such statutory actions.20 Perhaps still another course would have been wiser. If the statute could have been read to permit it, Adams might have brought separate actions of debt for the forfeiture and trespass on the case for the damages. This method, which avoids the conceptual difficulties presented by a single action, was adopted in a revision of the statute enacted in 1789.21
Many, if not most, of Adams’ “Doubts, Queries, Objections” probably would have had more force in the realm of speculation than in the reality of the courtroom—especially in a jurisdiction not given to excessive formality in pleading. Nevertheless, they are of interest, showing, as they do, not only the excessive legalism of the new-hatched lawyer, but also the painful { 89 } doubts which can assail even an experienced practitioner who has just concocted pleadings that are slightly out of the ordinary.
1. JA’s early career is summarized and pertinent references to his Diary and Autobiography are collected in JA, Legal Papers, 1:lv–lvii. The brief account of Field v. Lambert and the statement that JA’s first action in the Suffolk Inferior Court was entered in July 1759 are inaccurate, as the present discussion demonstrates.
2. JA, Diary and Autobiography, 1:48 (13 Oct. 1758). For the earlier controversy between the two, see same, p. 50. This proceeding was apparently one under the Act of 18 June 1697, c. 8, §1, 1 Mass., Province Laws 282–283, providing that upon complaint of any “debt, trespass or other matter” within his jurisdiction, a justice of the peace was to grant a writ against the party complained of, to be served by the sheriff or other officer in the normal manner. “And in case of non-appearance upon summons duely served, being so returned by the officer, such justice may issue out a warrant of contempt, directed to the sheriff, or marshal, or other officer, as aforesaid, to bring the contemner before him, as well to answer the said contempt as the plaintiff’s action.” See also the form of a warrant for contempt, Act of 5 June 1701, c. 4, §1, same, p. 463.
3. Act of 10 June 1698, c. 6, §§2, 3, same, p. 322–323.
4. Act of 10 June 1698, c. 6, §4, same, p. 323, set out at p. 93, note 2, below.
5. By Act of 18 June 1697, c. 8, §1, same, p. 282, “all manner of debts, trespasses and other matters, not exceeding the value of forty shillings (wherein the title of land is not concerned), shall and may be heard, tryed, adjudged and determined, by any of his majestie’s justices of the peace within this province, in their respective precincts.”
7. Same, p. 49–50.
8. Same, p. 57–58 (5? Nov. 1758).
9. Same, p. 62–63 (18 Dec. 1758).
10. Although it is possible that the action was to have been brought in the Bristol or Plymouth County Inferior Courts, which also had December terms (Act of 23 April 1743, c. 32 §1, 3 Mass., Province Laws 64), this seems improbable, because a writ served on 18 December would have been too late for either court under the statutory rule that service must be had at least fourteen days prior to the sitting of the court at which the writ was returnable. Act of 26 June 1699, c. 2, §3> 1 Mass., Province Laws 370. Furthermore, there is no evidence that JA had at this early stage taken steps to procure his admission to practice in any county other than Suffolk.
11. See Act of 26 June 1699, c. 2, §3, 1 Mass., Province Laws 370; Act of 23 April 1743, c. 32, §1, 3 Mass., Province Laws 64.
12. Min. Bk., Inf. Ct., Suffolk, Jan. 1759, No. 100. The suit was on a note. Plaintiff recovered judgment by default of £9 8s. 7d. and costs of £2 7s. 6d. See the writ (in JA’s hand and endorsed by him) and the bill of costs in the Inferior Court Files, Jan. 1759. Office of the Clerk of the Superior Court for Civil Business, Suffolk County Court House, Boston, Mass.
13. Under the Act of 15 Jan. 1743, c. 13, §1, 3 Mass., Province Laws 29, the jury in the Suffolk County Inferior Court was not to attend until the second Tuesday of each session, in order that pleas in abatement and other nonjury matters might be heard first. No statutory provision for a hearing session prior to the beginning of each term has been found, however. JA’s Diary entry, note 18 below, to which the date 29 Dec. 1758 was originally assigned by the editors, would seem to support the preliminary-hearing theory. The position of the entry in the MS is such, however, that it could date from the following week; it is thus also consistent with the clerical-error theory.
14. Although there was authority in the 18th century that such a waiver of jurisdiction was of no effect if the judgment were later attacked, the rule that the court could raise this question on its own motion seems to have been a more recent development. See Lucking v. Denning, 1 Salk. 201, 202, 91 Eng. Rep. 180, 181 (Q.B. ca. 1702); Mansfield C. & L.M. Ry. Co. v. Swan, 111 U.S. 379 (1884); Shipman, Common Law Pleading 385; Dobbs, “The Decline of Jurisdiction by Consent,” 40 N.C.L. Rev. 49, 66–75 (1961).
15. See JA, Diary and Autobiography,1:49, where JA apparently refers to Thomas Wood, An Institute of the Laws of England 447 (London, 6th edn., 1738), and Giles Jacob, A New Law-Dictionary, title Court (London, 5th edn., 1744), works familiar to him from his studies with Putnam. See JA, Diary and Autobiography,1:173. The passage from Wood, essentially similar to that from Jacob, is as follows: “A Court of Record is that which hath Power to Hold Plea according to the Course of the Common Law, of Real, Personal and Mixt Actions, where the Debt or Damage may be 40s. or Above, and where it may hold Plea of Trespasses Vi et Armis; and Whose Acts and Memorials of the Proceedings in the Courts are in Parchment.... A Court Not of Record is either, where it cannot hold Plea of Debt or Trespass, if the Debt or Damages amount to 40s. or of Trespasses Vi et Armis; or where the Proceedings are not according to the Course of the Common Law, and where the Acts of Court are not Enroll’d in Parchment.... Note, That a Court that is not of Record, cannot impose a Fine, or Imprison.” JA also mentioned Michael Dalton, The Countrey Justice (London, 1746), undoubtedly referring to this passage at p. 5: “They [i.e. justices of the peace] be called Justices because they be Judges of Record.”
16. In a modern view, at least, if the prior decision in fact had been on jurisdictional grounds, these arguments might have run afoul of the doctrine of res judicata, unless Justice Quincy could be understood to have decided only the question of jurisdiction over the writ before him. See American Law Institute, Restatement of Judgments §50 (St. Paul, 1942).
17. See JA, Diary and Autobiography,1:65. The “direction” was the phrase at the beginning of the statutory form of writ, “to the sheriffe or marshal of our county of S., his undersheriffe or deputy, greeting.” Act of 3 June 1701, c. 2, §1, 1 Mass., Province Laws 460 (Inferior Court); Act of 5 June 1701, c. 4, same, p. 462 (Justice of the peace). Where the amount sued for in the Inferior Court was less than £10, writs might “be also directed to the constable of the town.” Act of 26 June 1699, c. 2, §3, same, p. 370. A direction to the constable was also proper in a writ to a justice of the peace. Act of 18 June 1697, c. 8, §1, same, p. 282.
19. Same, p. 65.
20. See forms attributed to JA’s contemporaries, Richard Dana, Jeremiah Gridley, and William Pynchon in American Precedents of Declarations 342–344 (N.Y., 2d edn., John Anthon, 1810); compare Reed v. Davis, 8 Pick. (Mass.) 514, 516 (1829).
21. Act of 14 Feb. 1789, §6, 1 Laws of Mass. 458 (1807). See Melody v. Reab, 4 Mass. 471, 473 (1808). Trespass on the case, rather than trespass, presumably would have been the proper form, because loss of compensation for the harm done by the horses was only an indirect result of the rescue. Of course, if a separate action could be brought for the damages, the only reasons for bringing the forfeiture action at all would seem to be either the desire to lower the town poor rates by providing an additional source of funds, or an urge for revenge upon the defendant.
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/