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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0002-0001-0001

Editorial Note

In common with most lawyers John Adams maintained a collection of pleading forms to help in future drafting. A number of such forms exist in the Adams Papers as loose sheets among the case notes and other legal materials, but the majority of those which have survived were entered by Adams or one of his clerks in an untitled small quarto volume bound in law calf, which is referred to in the present edition as the Pleadings Book. The order of the forms, and the dates of Adams' involvement with most of the cases from which they come, indicate that he used the volume for this purpose from 1771 to 1773.1 Adams was of counsel in at least 23 of the 29 cases represented in the Pleadings Book, but he probably drafted only 7 of the forms. The rest are the work of his contemporaries at the bar. The forms are printed here as they appear in the manuscript, except { 27 } that the editors have given each case an identifying roman numeral and have supplied descriptive captions and titles where Adams omitted them. For each case, the facts and disposition, so far as they are known, and a brief summary of any matters of historical or legal significance are given in footnotes.
At first glance a collection of pleading forms looks like dull reading. The facts that lie behind the forms are seldom dull, however. For example, many of the cases presented here involve important historical events and personalities. The declarations in Richards v. Doble (Form VI) and Gailer v. Trevett (Form VII), for all their stilted technical phraseology, offer grisly accounts of the Boston mob in action, with particular emphasis on the mechanics of tarring and feathering. These two pleadings, with Palmes v. Greenleaf (Form XVI), serve as footnotes to several major Adams cases dealt with elsewhere in these volumes. There are also pleadings which show Paul Revere having trouble with an apprentice (Form XI), the maternal and paternal ancestors of Oliver Wendell Holmes engaged in a joint real estate venture (Form XIII), Adams' wealthy client Elisha Doane successfully avoiding taxes (Form VIII), and the family of Fisher and Nathaniel Ames engaged in an intramural dispute (Form XX). Many of Massachusetts' more litigious, if less well-known, citizens also make their contentious, cantankerous way through these pages. Braytons, Robinsons, Needhams, Kingsburys, Metcalfs, Halls, Greens, and Lorings were all involved in feuds that found expression in the courts.2
The pleadings, in conjunction with the other cases in these volumes, are also of interest in helping to define the scope of Adams' practice. He is widely and justly known for his defense of the British soldiers after the Boston Massacre (Nos. 63, 64), and of John Hancock in the affair of the sloop Liberty (No. 46). These and other similar matters made up only a small proportion of his cases. Day in and day out during his fifteen active years at the bar, even while occupied with affairs of great public significance, he was constantly concerned with a vast flow of actions on the order of those which make up the Pleadings Book. They ranged from minor loan transactions to the relatively large sums involved in the management of an estate or the winding up of a major business, and they involved all of the activities of colonial life. Here are cases arising from shipping, commerce, agriculture, the use and conveyance of land, the paper and iron industries, retail trade, crafts, death, and taxes. Such matters were the materials from which a lawyer gained his livelihood.3
The primary significance of the Pleadings Book is the cross section of the law in 18th-century Massachusetts which it provides. Pleading was the heart of the traditional common-law jurisprudence under which Adams practiced. No claim could be redressed unless the facts giving rise to it could be made to fit one of the common law forms of action, the centuries-old classifications in which the substantive law of England had grown up. { 28 } It was through the pleadings that substantive rights were stated in terms appropriate to one of these forms. Many of the decided cases that make up the common law are determinations of the adequacy of such statements. Further, it was the pleadings which determined the facts which the parties had to establish at the trial. Great numbers of other cases concern the relations between pleadings and facts. The 18th century marked the zenith of the formulary system. The law which Adams knew was the natural end product of a development in which “substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms.”4
The pleadings which Adams collected show nearly all of the remedies given by the forms of action being applied in Massachusetts, with some changes to take account of local practices or needs. There are declarations in most of the usual English actions, including account, special and general assumpsit, several varieties of debt, ejectment, replevin, trespass to person and to lands, trespass on the case for various wrongs, and writs of entry asserting title to lands. The most significant changes were in the last class of actions, where only the rudiments of the ancient and complex English forms were retained in a simplified system that served as the basis of the Massachusetts law of real actions for a century afterward.5 Other alterations included the use of account, debt, and assumpsit for matters that in England would have been within the jurisdiction of the court of equity or the ecclesiastical courts, neither of which existed in Massachusetts, and the adaptation of replevin to do the work of a libel in rem at a time when the court of Admiralty was in great disfavor for political reasons.6
Adams' forms suggest that the Massachusetts practitioners were deficient in one important aspect of the English system—special pleading, the devious art of narrowing the issue through a series of successive pleadings.7 The Pleadings Book contains only three examples of pleas other than the general issue or a general demurrer, and in those cases there were no further pleadings beyond the replication. A study of other Massachusetts cases indicates that this was generally so. The rejoinders and surrejoinders, rebutters and surrebutters that were the glory of the English system were virtually unknown in Massachusetts. Since occasional examples of special pleading are found,8 it would seem that a taste for simplicity and a { 29 } desire to get on with the matter, rather than ignorance, account for the Massachusetts practice.
In 1859 Theophilus Parsons Jr. wrote, “In my father's time, there was a very general ignorance on this subject [pleading]. Only a few of the leading lawyers pretended to be good pleaders; and the inaccuracy or insufficiency of the pleading was one of the causes of the disorder and confusion which prevailed in the courts.”9 Since Theophilus Parsons Sr., Chief Justice of Massachusetts from 1806 to 1813, was a law student from 1770 until his admission to the bar in 1774,10 his “time” may be said to have included the years which the Pleadings Book covers. Whatever laxity developed in the aftermath of the Revolution, Adams' forms and those seen in other cases of the period do not merit Parsons' criticism in an important sense. Most of them, both in substance and formal parts, were consistent with examples found in contemporary or later English books of forms (or “precedents” as they were called); and the bar and the courts were aware of technical rules such as those against duplicity and argumentativeness. In some respects, however, the practice of Adams' day did not meet 19th-century standards. Commentators found a few of the old forms confused and oversimplified,11 and the lack of special pleading was a defect at what even American lawyers of this period considered the heart of the matter. Nevertheless, as far as they go, Adams' pleadings show that the Massachusetts bar before the Revolution was true to the English system in general, and capable of applying it in detail when pressed.
Even Parsons presumably would have found at least some of the Pleadings Book forms acceptable. After the passage just quoted, he went on to recount that his father “was himself a very good pleader, having devoted much time to the science. When he had students, every one was expected to write out, in a book prepared for that purpose, declarations, pleas, and forms, which my father had prepared or adopted. I have some of these books now; and the volumes of precedents, afterwards published for the use of the profession, by Anthon, Story, Oliver, and others, were compiled in a good degree from these books.”12
Whatever one may think of the copying out of pleadings as a method of law study, it was a means of preserving and passing on forms from one generation to the next. Undoubtedly Adams' students and other lawyers copied forms from the Pleadings Book. By some such means a few of Adams' pleadings survived to appear in the numerous “volumes of precedents” which the 19th century brought forth. In 1802, Benoni Perham, a young Massachusetts law student, compiled and published at Boston the first of these works, American Precedents of Declarations, Collected Chiefly { 30 } from Manuscripts of Accomplished Pleaders; Digested and Arranged under Distinct Titles and Divisions; and Adapted to the Most Modern Practice. The volume contained the declarations in Holden v. Conner (Form I), Waldo v. Gridley (Form II), Hill v. Whiting (Form IV), and Richards v. Doble (Form VI). These pleadings appeared with only slight changes, and all but Waldo were attributed (with some unfairness to their real drafters) to “J. Adams.” In addition, numerous similarities may be observed between forms in the Pleadings Book and those taken by Perham from Parsons and other lawyers.
Perham's work, revised by John Anthon, appeared in at least two later editions.13 In 1828 at Boston, Benjamin Lynde Oliver brought out an enlarged version of American Precedents entitled Forms of Practice; or American Precedents in Actions, Personal and Real. Anthon and Oliver both reprinted Adams' pleadings with Perham's other forms. In the fifth revised edition of Forms of Practice, published in 1905 when the old system had all but run its course, those forms still appeared.14
In the 19th century, as the practice of law in the United States grew more sophisticated, the works of the great English pleading authorities—Chitty, Stephen, and others—were published in numerous American editions and became the standard for several generations of lawyers.15 Under this influence American pleading developed into a science that rivaled or even exceeded the English practice in complexity. At the same time the native tradition of simplicity and adaptability derived from the 18th-century forms was preserved in American Precedents and its successors. Native jurists like Stearns and Dane cited the work. In at least one instance, one of the Adams pleadings appearing in it was discussed at some length as a useful and unique Massachusetts practice still followed there.16 Adams' Pleadings Book thus helped to carry forward into the busy 19th century the law of an earlier era in which flexibility was as important as technicality.
1. Adams Papers, Microfilms, Reel No. 186. In subsequent footnotes the editors have identified as far as possible the hands of JA's law clerks, but the identifications are all tentative. Inside the front cover of the Pleadings Book JA wrote this motto: “Vitanda est improba Siren, Desidia,” from Horace, Satires, bk. II, Satire 3, lines 14–15 (“You must shun the wicked siren Indolence”). Pages 2–31 of the volume were numbered by JA. The editors have supplied page numbers in square brackets for citations of the pleadings from page [32] to page [62], where JA's forms end. The remainder of the volume is largely blank, but toward the middle are some additional pleading forms, which from internal evidence seem to have been copied in after the Revolution. These forms and a few pages of notes on astronomy are all in a later, unidentified hand, possibly in more than one hand. At the back, and running the other way in the volume, are four pages of pleadings in the hand of John Quincy Adams, including the form for a libel in Admiralty for seamen's wages in the United States District Court for the District of Massachusetts, dated 5 Nov. 1793.
The separate pleadings forms found in the Adams Papers include Roby v. Stone (declaration in trespass for mesne profits); Reading v. Framingham (plea to complaint under the poor laws); Potter v. Burchsted (double pleas of justification by leave of court in suit by widow of non compos mentis: (1) sale by guardian; (2) dower in deceased's mother); Hoyt v. Brown (declaration in case against deputy sheriff for failure to keep vessel under attachment); Apthorp v. Stanbridge (plea of tender in indebitatus assumpsit); Capen v. Spear (declaration in trespass for cutting trees and plea of justification); Church v. Bunney (form of summons where goods are attached); Epes v. Flagg (Latin form of plea of non cepit, the general issue in replevin). All are in Adams Papers, Microfilms, Reel No. 185. Pleadings from the Adams Papers and the court files are printed as documents in the following cases in the present work: King v. Stewart, No. 2; Apthorp v. Gardiner, No. 9; Prout v. Minot, No. 13; Chelsea v. Boston, No. 26; Brookline v. Roxbury, No. 27; Essane v. Dotey, No. 28; Josselyne v. Harrington, No. 30; Emmons v. Brewer, No. 33; Pierce v. Wright, No. 36; Margaret v. Muzzy, No. 40; Petition of Lechmere, No. 44; Sewall v. Hancock, No. 46; Dowse v. 33 Hogsheads of Molasses, No. 47; Dowse v. 19 Casks of Molasses, No. 49; Surveyor General v. Logs, No. 54; Rex v. Corbet, No. 56; Rex v. Preston, No. 63.
2. See Forms XV, X, XXIII, IX, XVIII.
3. For further discussion of JA's practice, see Introduction.
4. Sir Henry S. Maine, Dissertations on Early Law and Custom 389 (N.Y., 1886). As to the forms of action generally, see Frederic W. Maitland, The Forms of Action at Common Law 1–11 (Cambridge, 1936); Fifoot, History and Sources, passim; Sutton, Personal Actions 1–33, 46–71; Plucknett, Concise History 353–377.
5. See Forms IV, XIII, XV.
6. See Forms IX, XVIII, XIX, XXIV.
8. See, for example, the pleadings in Ware v. Brick, a case in which Jonathan Sewall and Francis Dana were of counsel, in Theophilus Parsons, Precedents (MS) 58–61, MH-L.
9. Theophilus Parsons, Memoir of Theophilus Parsons 221 (Boston, 1859).
10. See Parsons, Memoir 23–24.
11. See notes 171, 5640, 9377, below. As to the technical rules in Massachusetts, see No. 9.
12. Parsons, Memoir 221. See the elder Parsons' own MS book of “Precedents” in MH-L.
13. American Precedents of Declarations (N.Y., 2d edn., John Anthon, 1810); (Brookfield, Mass., 3d edn., John Anthon, 1821). Perham (1777–1804), Harvard 1800, had assistance from an unnamed young lawyer who was probably Joseph Story. See Benjamin L. Oliver, Forms of Practice; or, American Precedents, in Actions, Personal and Real vi (Boston, 1828); MH-Ar. Anthon (1784–1863), Columbia 1801, was a leader of the New York bar who assisted in founding the New York Law Institute in 1830. DAB.
14. Benjamin L. Oliver, Forms of Practice; or, American Precedents, in Personal and Real Actions 37, 281–282, 578 (Boston, 5th rev. edn., 1905).
15. See, for example, Joseph Chitty, Treatise on Pleading and Parties to Actions (N.Y., 1809); id. (Springfield, Mass., 16th Amer. edn., 1879, 1882–1885); Henry J. Stephen, Principles of Pleading in Civil Actions (Phila., 2d Amer. edn., 1831); id. (Phila., 9th Amer. edn., 1867); Edward H. V. Lawes, An Elementary Treatise on Pleading in Civil Actions (Portsmouth, N.H., 1808); John F. Archbold, Practice of the Court of King's Bench in Personal Actions, and Ejectment (N.Y., 1823); id. (N.Y., 2d Amer. edn., 1827).
16. See Asahel Stearns, A Summary of the Law and Practice of Real Actions 178–179 (Boston, 1824), discussed in note 13note 29 below. For other examples of the citation of American Precedents, see 1 Dane, Abridgment 167; 5 id. at 214.
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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/