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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0003-0002-0005

Author: Cushing, William
Date: 1773-06

Cushing's Report of the Argument1

Cumberland Superior Court, Falmouth, June 1773

Richard King v. Jno. Stewart & al
This was an action of trespass—and on motion of Mr. Bradbury attorney to plaintiff after issue joined—plaintiff was allowed by the Court to strike out the names of several of the Defendants in order that they might be witnesses for plaintiff—on payment of costs—1 { 117 } Wils. 89, Trials per pais 386, Str. 420, were cited.2 On the trial of the issue the plaintiff offered to prove, by comparison of hands that an anonymous letter which had been found posted on the plaintiff's door was written by Defendant—This kind of evidence was objected to by Sullivan for Defendants—but allowed by the Court as good in civil actions.
Oliver, CJ, Hutchinson, Ropes and Cushing, Justices
Vide Evans' translation of Pothier on obligation Append. 2d vol. No. XVI sec. 6c.3 8 Ves. 438 Egleton v. Kingston.4
1. Cushing Reports, fol. 4.
2. It was necessary for King to dismiss his action against those defendants whom he wished to have testify for him, not merely to dispose them favorably toward him, but in order to make them competent as witnesses. At common law, parties to an action could not testify. The authorities cited in the text were as follows:
Noke & Chiswell v. Ingham, 1 Wils. K.B. 89, 90, 95 Eng. Rep. 508, 509 (K.B. 1745): “Lee Ch. Justice: It is agreed on all hands, that in trespass against several, the plaintiff may enter a nolle prosequi [an abandonment of further prosecution] as to one, and that will not discharge the other.”
2 Duncomb, Trials Per Pais 386 (8th edn., 1766): “Trespass against several; after issue joined on motion, one of the defendants name was struck out, that he might be a witness for the plaintiff. 2 [i.e. 1] Siderf. 441 and the like done as to a person named in the simul cum [“together with,” i.e. the phrase linking defendants known and unknown], 1 Mod. 11.”
Bayly v. Raby et al., 1 Str. 420, 93 Eng. Rep. 608 (K.B. 1721): Motion to consolidate four separate declarations in trespass against four separate defendants denied, despite affidavit that the trespass, if any, was committed by all jointly. “The plaintiff may have the benefit of the other's evidence in his action against either, but this will be to deprive him of that.”
3. M. Pothier, A Treatise on the Law of Obligations or Contracts, 2:182–186 (London, transl. W. D. Evans, 1806). An essay by the translator on the English law of handwriting evidence. “[T]he practice of the law seems to be clearly settled, that the casual knowledge or belief of a person, who has once seen the witness write, and speaks from the effect of that incident upon his memory, in respect to the character of the writing, is admissible, and a sufficient foundation for reading the disputed paper; but that a direct comparison with the greatest possible number of authentic papers, indicating the similarity to the most obvious inspection, and confirmed by the most critical scrutiny, is wholly inadmissible.” Id. at 185. This and the citation in note 4note 23 below were obviously added, by someone unknown, at a date much later than 1773.
4. Eagleton & Coventry v. Kingston, 8 Ves. Jr. 438, 474, 32 Eng. Rep. 425, 438 (Ch. 1803), per Lord Eldon, C: “[T]ill very lately, I never heard of evidence in Westminster Hall of comparison of hand-writing by those, who had never seen the party write; though such evidence had been frequently received in the Ecclesiastical Court.”

Docno: ADMS-05-01-02-0003-0002-0006

Author: King, Richard
Recipient: Burbank, Silas
Date: 1773-05-31

King to Silas Burbank1

[addrLine] Mr. Burbank

[salute] Sir

I receved Yours of the 17th. Current, and a Second that appears { 118 } to have ben wrote Since. In your first You point out the Horrows of a Goal, and Compair Your present state of Confinement, To that which Succeeds a wicked life in this world unregreted, and unrepented of, with a verry Just Exception. If taken in a spiritul Sense that You are a Prisoner of Hope, Your Pathatic Complaint of being deprived of the Company of an agreeable wife, and the parental Duty You owe to your Innocent Children, is Sufficiant to move a Heart much less Serceptive of Humain Misery then mine. You Conclude with observing, the Time has ben, when our affections mutualy flowed in kindness towards Each other, But that now there is as remarkable a Coldness.
Now Sir as You have opened this Channel of Communication between us, I will Treat the Subject with that unreservedness of mind that I should be glad to have from You. If I shall herein Charge you wrongfully in any Part, I will (when that shall appear) not only aske Your Pardon, but Publickly Confess my Error.
You Justly observe, the Time has ben when there was a mutual flow of Affection between us. I Can only add, that on my part it was Sinceer. Let us now Enquire how the Change Came, and who was first in the Offence, was it not anough on Your part to make use of the law. To Palm The Cabinet wair on me, which our privat Confidence in Each other Should have obliged You to have look'd upon as Sent at Your own Risque.
But having Comminced your Action against me at Oct. Court 1765 in order to make up your own loss, out of the owner that had also lost the Vessell that Carried it: How then Could you think of Joyning in a Plan, and Find [Fiend] like Exerting Your Selfe in adding final Distruction to the remaining Interest of your Confessed old Friend. You now Complain of the Dismel Gloom of a Goal, wherein you are Surrounded, with Massy Barrs of Iron, and thereby deprived of the Peacefull and InExpressable Philicity of Family Connections. This Misfortune You point to me, as tho I was mercyless and Cruell, void of Natural Affection, and delighting in misery. As almighty God has made all men of one Blood, and Given them the Same perseptions of Pain and Pleasure, Love and hatered, life and Death Com back with me to the 18 of March 1766. Here view Your Selfe without the least Cause of affrunt; Engaging others on that and on the Succeding Day to meet at Your House on the night of the 19th. keeping that blackest part of the Designe a Secret from all Such who's humanity you sur• { 119 } spected would Shudder at so Dark a Sceene, Till you had Got them mett at your own House with you and other whoes minds were Proof against all Virtue. Behold Your Selfe using fair Speaches, and threats by Turns, to hold Those that discovered an unwillingness to Joyne in So Horrid an act of Ingratitude, and unjustness. But behold Still the most Horrid Part Consealed in the brest of you and a Select few, that were at the Bottom. In fine behold your Selfe now at the Head of a Banddity of Thieves and Robbers, under the Cover of night, determined to Carry Terror, and Turpitude unprevouked Destruction and Enrich Your selves out of the Spoiles of the Greatest Benefactor in Trade that Ever Dealt in the Place. To Robb and Plunder him of the verry means with which he was to discharge the Debt which he owed for what they and others had Eat, Drunk, wore, bought, and built with and this Too at a Time whin his late Loss would have Excited Pitty from one Enemy Towards another.
Here let the Sceene Change to the House of him whoes doors were allwais open, whoes open Heart had dealt out (tho' Greatly to his loss) as freely to the Necessities of the Poor, as to the Abilities of the Rich. Here behold a General Benifactor Sleeping in Perfect Security, not dreaming of Envy or Mallice, his bosom Frind upon his arm who's months with her at that Time Called for Tender usage, his Young Brood lodged around him. In this state awoaked out of sleep by the dashing in of his windows, behold him in Great amaze opening the Chamber door, Calling aloud to know the matter, his wife holding him by the arme, no humain voice in answer, Except a servant informing that his life was threatened In case he attempted his masters Relief. Here behold a murcyless hand Thorw a hatchet into the windo whence the voice of distress was heard which dashing the Glass about the Naked Bodys Scarce Miss'd their heads. Behold the Tenderer Sexes in untimly Time for flight, faultering, Sinking, Dieing, and the distress'd Husband Conveying her back to her Bead to Die there but being doubly armed with life, Each by Turn recaught the Electrical Fire. Open also your Ears to the Tender Cryes of his Childeren Crying, Father woant they kill me, Father Save me.
View this and much more also, not as an Ammaginary, but as a real Act, and Your selfe as a Principal actor in this, Original Tragedy. Then passby all that past between. Even Your threats uttered to myface Til we Com to the Night of the 14th. May 1767. Here Stop and view the Flaims. Consider well the Spirit that set them on Fire recolect the out Guards Planted there, and near my own Dwilling House also at the Same Time; hear and See a frish the Destress of a mother. { 120 } Espessuuly upon hering her outcries Eccoed by one find [fiend] to another in the Neighbouring bushes. Here again the Cries of helples Children, Intreeting their pairents to flee as Expecting Every momentto be Surounded in flaims, but flee wheather. Devowerers had Surrounded us, and were Yelling like finds of H—ll for their prey. Two fatted Calves did not appear to Suffize them. Take a Back Sight upon the whole. Look up to God, as looking upon us lay Your hand on Your brest, and Say Your Innocent of any part of the foregoing Charges, or that King has Treated you unjustly. In Your Second letter, you Say “You think the poor Deceased Captive Creaturs have little Sense of what is Past, and that for all that is past, to the Day Instent, the portions remaining to all are Equall.” I Chuse to leeve it to the Proper Profession to Instruct how Solomon and other Sacred writers are to be understood but without Intrudeing; I think this much may be Clearly asserted that vice only can make us Miserable in this life, that he that allowedly lives and Delights therein Can never be happy so long as his mind is So desposed and that on the Contrary the Virtous and well meaning Can never be Miserable. For the Truth of this we need only look into our Selves, and Enquire, whether vice Ever gave us True Pleasure, or Virtue Pain. The Same that we Sow, that shall we reap, and the Lord of the Harvest will Gather us accordingly.
1. FC, apparently in King's hand. Docketed in same and another hand. NHi:Rufus King MSS. This and the following documents indicate something of the mechanics by which Burbank's testimony was obtained.
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/