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Browsing: Legal Papers of John Adams, Volume 2

Docno: ADMS-05-02-02-0004-0005-0004

Author: Wetmore, William
Date: 1771-11

Wetmore's Minutes of the Argument1

Essex Superior Court, Salem, November 1771
Trespass for enslaving Plaintiff; plea non cul. Plaintiff offered evidence of beating imprisoning and abusing the plaintiff by defendants { 61 } vendees. As the defendant was the first cause <of> by illegal conveyance the Court unanimously admitted the proof, altho' said that it cannot appear by records.
Caesars wife offered as a witness. Objected to her as his wife and interested, and proof offered of cohabitation. Answer that there was no contract but what was dissolvable at will and said to be determined that no negro could be a bastard, but J[udge] Trowbridge said that proof of Cohabitation was proof of marriage, and evidence by witnesses was admitted of cohabitation for a course of years. White woman married to negro Slave not allowed to sue without naming him.2
Adams. It has been ruled in 3 cases by the Court, in Slewman, in Billings, and at Cambridge that negroes are presumed to be slaves and must make their freedom appear.3
Lowell.4 Made difference between property in matter and moral beings.
Hut[chinso]n. The Evidence not admissible on the plea.
Trowbridge of the same opinion.
Oliver also, of the same opinion.
Lynde in doubt.
Cushing not in[ . . . ].
2. That is, the husband would have to be joined in the action as a plaintiff.
3. The three cases are probably Slew v. Whipple, No. 38; Newport v. Billing, No. 39; and Margaret v. Muzzy, No. 40.
4. John Lowell, counsel for plaintiff.

Docno: ADMS-05-02-02-0004-0005-0005

Author: Wetmore, William
Date: 1772-06

Wetmore's Minutes of the Argument1

Essex Superior Court, Ipswich, June 1772
Essex Novemr. 1771.
On motion to give property in evidence on non cul. ruled that in this case it must not be, ruled by 3 of the Justices. R[opes] and Cushing gave no Opinion having heard no argument.
Mr. Adams then moved for a repleader. Objected that its grantable not of right but [favor?] and its error when granted or refused wrongfully. Its grantable in cases where the right of the suit cant be determined by the issue.2 Also objected that this is after verdict below.
{ 62 }
J. Trow[bridge]. The diff[iculty?] is that the defendant by repleader deprives the plaintiff of the advantage. Hut[chinson]and Trow[bridge] against it because the plaintiff may lose an advantage. Cushing inclining to replead. J. Ropes says nothing. J. Oliver against a repleader.
Adams moved to ask the plaintiffs witnesses whether the plaintiff was not reputed a Slave and used as such by his master the defendant (in mitigation of Damages).
Proof was given that Taylor owned3 a bargain between Caesar and him for his freedom for £600 O[ld] T[enor] and that part of it had been paid.
Note. J. Trowb[ridge] said in this case that the pleadings allowed the plaintiff to be a person and one able to sue. He is therefore not property which is a thing and a thing can't maintain an action. By English laws a person must be free, else no murder to kill him.
Said by Mr. Adams that Superior Court in J. Sewall's day determined from civil law authorities produced by Mr. Gridley and Pratt, that the children of a woman slave were the property of the master of the mother, and that negroes are in classe rerum and are Slaves in this Country.4
1. Wetmore Notes. Adams Papers, Microfilms, Reel No. 184. The date heading the document refers to the term from which the case was continued, because William Cushing and Nathaniel Ropes were not appointed to the Superior Court until 15 Jan. 1772. Whitmore, Mass. Civil List 70.
2. “Occasionally the Court would order a repleader, that is to say, that the pleadings should start afresh, for it might turn out that owing to some error which had been overlooked the fact on which issue had been joined did not dispose of the questions between the parties, so that the Court was after all not in a position to give judgment either way, no matter how that question of fact had been determined.” Sutton, Personal Actions 134.
3. That is, admitted.
4. Stephen Sewall (1702–1760) was Associate Justice of the SCJ from 1739 to 1752, Chief Justice from 1752 to 1760. The case in question has not been identified. On Jeremy Gridley's use of civil law authority on behalf of the defendant in a slave case, see No. 38.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2018.