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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0008-0006-0002

Author: Adams, John
Date: 1768-09

Adams' Minutes of the Testimony1

Middlesex Court of General Sessions, Concord, September 1768

Lidia Gage vs. Josiah Headley.
Sarah Garfield.
D[eaco]n Farrar.2 Last of Deer. It is Josiah Headleys. The next Saturday, she said she was sorry she had told me what she did. Not { 327 } because it want true, but because he said he'd get her whipped. 10 days after she said if the Premisses were not fullfilled, she would tell the whole Truth. Afterwards she said Headly [hired?] her to lay it to Zack Parkes, Simeon Hagar, or some body else. Said she had 2 or 3 meetings, with Headley. Parkes told me, that Headly said he would come and settle it. At the Groaning, I heard her say that it was Josiah Headleys of Weston the Miller and Tavernkeeper. Knew that she had chargd Parkes but never mentiond it to her.
Rebecca Brown.<Deposition vide—Aug.> I talked with her before and after she went before Coll. Jones. A Month before. She said she had Promisses of £300 and other Gifts, and her Brother Robert was to receive it. That Headly asked her to lay it to Zack Parkes, Simeon Hagar, or a transient Person unknown. She had wronged her soul, by clearing Headley. She lived with me 20 Year, never afraid to Trust her. Not given to lying. Robert Gage told me a week before his death, Mr. Headly a friend of his, and he did not choose to say any Thing unless under Oath.
Mrs. Horsemore. Last Winter, Lidia said she was sorry she had been to clear him up before his Wife. Headly had perswaded her in the shed under the Tree, nobody present. She said that it was Headleys to Deacon Farrar, and got soon after the Trooping at Sudbury. I've seen him, and you never see any poor Creature take on so. Deacon Farrar asked her how she came to lay it to Zach Parks.
Susannah Gage. Wife of Robt. Gage. January. I shant tell. Tis not a Man I can have, but a Man that can pay. Headly ta[l]ked so, that he convinced my Husband she had wronged Mr. Headley. She said that it was Headleys as true as a God in Heaven. That he perswaded her, and promised her Money. She came and asked my Husband if Money was left for her.
Lidia Parks. At Mr. Underwoods as she came from Horsemores. Lidia Gage said she would not damn her own Soul any longer for any Body. Headley told me, she had better take what she had and go off, or else he'd Send her to the Devil. Sister in Law to Zach. Parks. If he had not rid her skimmington3 he had some other Way.
Sufferana Hagar. Lived in the House with Lidia Gage. I knew She { 328 } was with Child, as soon as she did. She said she never had accused him of this Child, and was not a going to. Middle of July, I knew she was with Child. Never knew H[e]adley at the House. She never told me, who was the father, but she gave me two Hints, she said if Headleys family were affronted with her for such Things, they should be affronted worse before long. Latter End of Octr. or Beginning of Novr. I told Headley. He said he would take his Gun and shoot her. But I did not think, he intended to shoot deeper than some People think he had done. His General Character very good, till this came out.
Sarah Garfield. I asked her who was the father, 30 March, in Extremity, she said Headley and no Man else. I asked her how she came to clear him before Coll. Jones. She said He promised her Money and that she should never want. As she expected to answer it before God.4
Mrs. Allen. At the Travel [Travail]. She came in to our House a few days before her Travel. I charged her. She said she was told, that if she laid it to Parks she should get nothing, that Daniel Parks had been to a Lawyer, and told her those stories. That all Zack had was made over to maintain Phoebe, i.e. her last Child. Robert Gage told me there was no Truth in the story, that Headly had never offerd a farthing.
Mrs. Gage. At the Travel, as before. Headly came to our House and said he had an Arrant [Errand?] to do to Lidia from a Gentleman. She said Twas a transient Person, and Hagar and Pucker, a poor Toad. In January Headley calld her out under the shed, and talked with her. The family suspected Headley, before she chargd any Body. Under Guardian.
Ephraim Parks. Brother to Zach and Guardian. Zach denyd it. I went to her, and Asked her if she could clear him. She said Zack is clear, and I never laid it to him and ant a going to. He has had nothing to do with me. Did not threaten to put away Phoebe, nor say that she could get nothing.
Wm. Horsemore. Town ant so devilish good to me. They need not concern themselves. She did not lay it to any Body.
Simeon Hager. James Parks. Week before Trav[ail] talked with <Lidia Gage> Headley. Said he was going to Deacon Farrar to settle that Affair. Would you have me pay, if clear? No. I'm as clear as the sun.
{ 329 }
Putnam. If the Inconstancy can be accounted for, from a natural Source, so that she is believed, it is within the Law. The only Question is whether her Charge is true.
Her weakness, no Impeachment of her Veracity.
She would tell Deacon Parks the Truth. And she told him, it was Headley. Deacon Farrar meets with Headley. Headley said it was a Matter he would consider of. Tho he denyed the Charge.
A Difficulty arises, and a great deal is to [be] made of it. The next Time she told the Deacon she was sorry she had laid it to Headley. She did not pretend to say she had chargd him wrongfully. A Temptation—a snare—a Trap.
Another Objection, she is not the most chaste Woman. A common Strum.5 She may know, notwithstanding her Inchastity, who is the father. The law does not confine it, to any Number of Times.
Another Objection that being a Lyar, will discredit her Testimony.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Probably the Humphry Farrar in whose family Lydia's child was at the time of his baptism, 31 Oct. 1773. Vital Records of Lincoln 38. The names of most of the other witnesses, including Hosmers (“Horsemores”) and Hagars, are found in the Vital Records, showing the local nature of the affair.
3. “To ride skimmington” in rural England was to hold “a ludicrous procession” of villagers intended to ridicule a shrewish woman, an unfaithful husband, or, alternatively, the victim of such a person. OED. Here the term is apparently extended to include the conduct which would cause such ridicule to fall either upon Headley's wife or upon Lydia. In Massachusetts, the word also seems to have connoted “mobbing.” See 1 JA, Diary and Autobiography291; JA's minutes, Hodges v. Gilmore, Adams Papers, Microfilms, Reel No. 185.
4. According to the deposition of Lydia Farrar in the Middlesex Files (note 2 above), “Mrs. Sarah Garfield” was a midwife present at Lydia's labor, who asked her who the father was. 30 March 1768 was the date of the child's birth. See note 1 above.
5. “A handsome wench or strumpet.” OED.

Docno: ADMS-05-01-02-0008-0007-0001

Editorial Note

Ann Josselyne of Marlborough claimed that John Harrington of the same town was the father of her illegitimate child born in June 1768. At the Middlesex General Sessions, Concord, September 1769, she was fined five shillings for fornication, and her accusations were tried.1 After hearing evidence and the oath of the complainant that Harrington was the father, the court ordered him to pay support for the child and give bond to indemnify the town (Document I).
In the same month Samuel Fitch, acting for Harrington, moved the Superior Court sitting at Worcester for a writ of certiorari returnable at the October 1769 Cambridge term. The writ issued and the case was docketed in Middlesex County.2 The first two errors assigned by Fitch (Document II) are the same kind of omission from the record of findings of statutory requirements which Adams urged in Essane v. Dotey, No. 28. The third error, seemingly based on the reasons stated by the court for its decision in the latter case, was that the judgment of the Sessions had been founded only upon the complainant's oath. Finally, Fitch urged that the complainant { 330 } had not in fact been examined in her “travel” (travail), and that she had not accused Harrington until after the event. He had previously assigned as error the failure of the record to recite these facts, but he now seemed to be going behind the record and asserting a failure of proof.
The case was continued from term to term until April 1771, when the court held “that there is no Error either in the Record and proceedings aforesaid, or in the Rendition of the Judgment aforesaid, and that the said Record is in no wise vitious, or defective.” The judgment of the Sessions was affirmed with costs.3 After Essane v. Dotey, the question of what recitals, in addition to the complainant's oath, were necessary to the record had remained open. Josselyne v. Harrington indicates that none of the requirements of the statute were considered “jurisdictional” in the sense that the record was faulty without them. Fitch had apparently urged that the court read the record (Document I) so that the word “thereupon” in the phrase “they do thereupon adjudge” referred back to the oath only.4 The record also recites that the Sessions heard “Evidence,” a statement not present in Essane. This distinction may have been the basis upon which the Superior Court rejected Fitch's reading and upheld the record in the present case.
Adams' minutes (Document III) present the further interesting possibility that the Superior Court heard evidence on at least one of the points raised by Fitch's fourth assignment of error, despite the fact that it had seemed to find the matters there asserted nonjurisdictional in the sense that they need not appear of record. This is a possibility only, because Adams' minutes cannot be dated precisely by either internal or external evidence. The fact that they are headed “Ann Josselyne vs. John Harrington. Bastardy,” and the English rule that on certiorari nonjurisdictional questions were to be dealt with only on the basis of the record, suggest that the document dates from the Sessions.5
On the other hand, there is much to support the theory that it is a minute of proceedings in the Superior Court. It opens with a question asked by the “C.J.,” or Chief Justice, relative to the validity of circumstantial evidence as a substitute for the statutory requirement of examination during travail. Since this was precisely one of the points which Fitch had raised on certiorari, the question was a logical one to be asked at those proceedings. Moreover, the usage “Chief Justice” indicates the Superior Court. The statutes establishing the court system expressly provided such an officer for that tribunal, but did not so provide for the Inferior Court of Common Pleas, or the Court of General Sessions. In fact the presiding justice of those courts was usually known as “First Justice,” a reference to the position of his name in the commission appointing the court.6 Finally { 331 } the language of the court's decision, already quoted, is not inconsistent with the view that the court had gone behind the record as Fitch had asked. The finding of no error in “the rendition of the judgment” is stated disjunctively from the findings regarding the record,7 indicating a separate finding that there was evidence to support the judgment.
If Adams' minutes are in fact from the Superior Court, the procedure followed can be rationalized with the usual understanding of the scope of review on certiorari only on the assumption that the court ignored the English view that “jurisdictional” facts had to appear of record, but went into the questions here raised because they were “jurisdictional” in the sense that they reflected the requirements of the statute.
1. See her recognizance, dated 9 Aug. 1769, and bill of costs. Rex v. Joslin, Files, Middlesex Court of General Sessions, Sept. 1769. Office of the Clerk, Middlesex County Superior Court, East Cambridge, Mass.
2. Min. Bk. 90, SCJ Worcester, Sept. 1769, following N–79; SF 147733; Harrington v. Josselin, Min. Bk. 88, SCJ Middlesex, Oct. 1769, N–10.
3. Harrington v. Josselin, SCJ Rec. 1771, fol. 72. See also Min. Bk. 88, SCJ Middlesex, April 1771, C–8. Compare the decision of the court in No. 28, note 141.
4. See text at note 92 below.
5. As to the English rule, see No. 27, text at note 7. The court refused to hear evidence outside the record without indicating whether the matter was jurisdictional in Pond v. Medway, Quincy, Reports 193 (Mass. SCJ, 1765).
6. See Act of 26 June 1699, c. 1, §1, 1 A&R 367; Act of 26 June 1699, c. 2, §1, 1 A&R 369; Act of 26 June 1699, c. 3, §1, 1 A&R 370. As to the usage “First Justice,” see No. 27, Doc. V. See also the writ of certiorari in Harrington v. Jocelin, SF 147872; Whitmore, Mass. Civil List 79.
7. Text at note 3 above.
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/