Adams Family Correspondence, volume 15
I recd in due Course your favour of
March 18 and thank you for your prompt and punctual attention to my several
requests.1 The Harleyan Miscellany I
should be glad to have.2 Mr Dobsons account I presume is correct. I know not the Cost of
the Harleyan Miscellany: but if any ballance should remain you may take it in any Books
you may want, or Send any to me that you think have merit. I have recd the Vote of Thanks from the Secretary of the A. P. society
Mr John Redman Coxe.3
I have had it long in contemplation to write you some further hints
upon a subject on which I wrote you some time Since, which you have not mentioned to
have recd, the Common Law. Mr
Bayard in his Speech has mentioned several Topicks which I had thought of Suggesting to
you.4 The Importance of the Law of
Evidence, to Life Liberty Property, Security, Reputation, in short to Every Interest of
human Society, is beyond Calculation. consider the Evidence of other Nations, from the
Rack & Torture of all Europe, to the Suspicion and Suspicions of being Suspected of
the French Revolution, and compare them with Gilberts Law of Evidence, the Chapter on
Evidence in Tryals per Pais, or the Title of Evidence in any Abridgment, and you will
see the difference. For Example “The 193 Presumption is
always in favour of Innocence. Every Man is presumed to be innocent untill the contrary
is proved. Two guilty Men had better go unpunished than that one innocent Man should
Suffer.”5 Where do We find this candid,
humane, as well as equitable Rule? Not in the constitution of the United States: not in
any Statute of Congress: Not in the constitution of any particular State, nor in any
statute Law of any state. It is to the common Law alone that We owe the Obligation to
observe this rule—from that source alone do We derive our Right to the protection of
it.
For another Example. Hearsay Evidence shall not be admitted, but in certain particular Cases. Has this Law been enacted by any express constitution or statute in America.? Whence is it derived? from the common Law— It is the Birth Right of Us all.
For a third Example. No Man shall be a Witness in his own Case. No Man shall be a Witness in a Cause in which he is interested nor a Judge nor a Juror.— Whence comes this Rule? Not from France, nor from our states or our Congress: But from that common Law which is the natural & unalienable Inheritance of Us all.
Run through all the other Rules of Evidence. e.g. The best Evidence shall be produced which the nature of the Thing will admit &c and See the infinite Obligation We are under, above every other People under heaven, to this common Law.
I write in haste & very Superficially and keep no Copy. You know the Consequence. [Cauto].
your affectionate Father
RC (Adams
Papers); addressed: “Thomas B. Adams Esqr / Philadelphia”; internal address:
“T. B. Adams Esq”; endorsed: “John Adams Esqr: / 10 April
1802 / 17th: Do Recd: / 21st: ansd:”; notation by JA: “J. Adams.”
Not found.
The Harleian Miscellany; or, A Collection
of Scarce, Curious, and Entertaining Pamphlets and Tracts, ed. William Oldys, 8
vols., London, 1744–1746.
On 19 March Dr. John Redman Coxe, for whom see vol. 12:509, wrote to JA
on behalf of the American Philosophical Society to acknowledge his donation of vols. 2
and 3 of
Defence of
the Const.
(Adams
Papers).
For James Asheton Bayard’s 19 Feb. speech to the House of Representatives in which he defended the Judiciary Act of 1801, see TBA to AA, 22 Feb. 1802, and note 3, above.
Here, JA was referencing Sir Geoffrey Gilbert, The Law of Evidence, London, 1756, and Giles Duncombe, Trials per Pais; or, The Law of England Concerning Juries by
Nisi Prius, &c., London, 1666, ch. 15.
JA purchased an edition of The Law of
Evidence in Boston on 29 July 1766, and a 1766 edition of Trials per Pais is in his library at MB (JA, D&A
, 1:317;
Catalogue of JA’s
Library
).