Title: Fitch’s Assignment of Errors: Suffolk Superior Court, Boston, March 1770
From: Fitch, Samuel
To:

       In the Case of the Select-Men of the Town of Brooklyn against the Town of Roxbury heard and adjudged at the Court of General Sessions of the Peace held at Boston in and for the County of Suffolk by Adjournment on Monday the Seventh Day of November A.D. 1768. The Errors assigned by the Select-Men of the Town of Roxbury, which appear by the Records and Proceedings of said Court in said Case, on the Certiorari are as follows Vizt.
       First, For that it appears by the Records of said Court of Sessions in said Case, that the Matters and things set forth and alledged in the Petition of the Select-Men of the Town of Brooklyn to the said Court were only Matters of supposed Error, and enquirable into as such; and that therefore the said Court; which is not a Court for the Tryal of Errors, could not by Law take Cognizance of, or determine upon the same.
       2dly. The said Select-Men in their said Petition do not alledge that the Paupers therein mentioned, were not the Poor of the said Town of Brooklyn, and properly belonging to them to Maintain, nor do they shew forth any Facts whereon that Matter could be properly Enquired into and determined, or desire that it should be: And yet they pray that the said Paupers may be removed from Brooklyn to Roxbury and that the Town of Roxbury should Repay to Brooklyn the Expences they had been at in Supporting said Paupers with their Costs and the said Court Granted the said prayer of their Petition as appears by their Records of Proceedings in said Case.
       3dly. The Select-Men of the said Town of Roxbury in their Answer to the said Petition Alledged, first that the said Court ought not to take Cognizance of the Matters and things shewn forth therein by the said Select-Men of said Brooklyn; Because the same were only such Matters as were properly enquirable into as Error, and not appertaining to the Merits of the Cause: and secondly that the Matters and things offered and objected by the said Select-Men of Brooklyn, were not sufficient for said Court to Grant the Prayer of said Select-Men of Brooklyn on: And the said Court Thereupon Determined and delivered their Opinion, that there was not Matter sufficient in said Petition whereby the said Court, might proceed to an hearing of the Merits so as to determine whether the said Paupers were the proper Poor of Roxbury or Brooklyn; but yet notwithstanding, the said Court, would not dismiss the said Petition (when it was moved that it should be dismissed) but sustained the same, and Granted the Prayer thereof as aforesaid; which is absurd and Contradictory: All which appears by the Records and Proceedings of said Court in said Case.
       4thly. The said Court of Sessions cou’d not with any propriety or Consistancy grant the said Prayer of said Petition without Enquiring into the Merits of said Cause and Determining whether the said Paupers were the proper Poor of the said Town of Brooklyn, or of the said Town of Roxbury: And yet the said Court did Grant the said Prayer of said Petition as aforesaid, without Entering into, or making any such Enquiry or Determination, as appears by their Records and Proceedings in said Case.
       5thly. There appears by the said Records of the said Court of Sessions to be no Adjudication that the said Paupers or any of them are or were the proper Inhabitants of the said Town of Roxbury, or that they be, or should be, or ought to be supported and maintained by said Town; or that they had been illegally or improperly removed from said Town, to the said Town of Brooklyn or that the Order for removing them be Quash’d: and yet it appears, by the same Records that the said Court ordered, that the said Paupers should be returned to the said Town of Roxbury, and that the Inhabitants of said Town should pay and Refund unto the Select-Men of the Town of Brooklyn all such Charge and Expence as had arisen to them for the support and Maintenance of said Paupers; therefore the said Order of the said Court of Sessions for the Removal of said Paupers and for Refunding said Charges, is not founded on any direct Adjudication, but at best is founded on an uncertain adjudication, by Implication only; and it is repugnant and Contradictory to and inconsistant with the other Parts of said Record as beforementioned, and is altogether illegal and Erronious in Substance.
       Wherefore the said Select-Men of the Town of Roxbury pray that the Order, Sentence, Judgment and proceedings of said Court of Sessions, may be Quashed, and the said Town of Roxbury restored to what they have suffered and paid in Consequence thereof and be allowed their Costs.

        Saml. Fitch for the Select Men of Roxbury


Title: Editorial Note
From:
To:

       The jurisdiction of the Court of General Sessions of the Peace in cases of bastardy originated in its role as a conservator of public morals. The effect of bastardy proceedings, however, was less to punish the guilty than to provide for the support of the innocent and save the town from charge; thus they may properly be viewed as a phase of the court’s administrative powers in welfare matters. The jurisdiction was established by a statute dealing with a number of noncapital offenses, including swearing, drunkenness, burglary, breach of the peace, forgery, and perjury. The section on bastardy, after establishing pecuniary and corporal penalties for fornication, provided, “And he that is accused by any woman to be the father of a bastard child, begotten of her body, she continuing constant in such accusation, being examined upon oath, and put upon the discovery of the truth in the time of her travail, shall be adjudged the reputed father of such child, notwithstanding his denial, and stand charged with the maintenance thereof, with the assistance of the mother, as the justices of the quarter sessions shall order; and give security to perform the said order, and to save the town or place where such child is born, free from charge for its maintenance and may be committed to prison until he find sureties for the same, unless the pleas and proofs made and produced on the behalf of the man accused and other circumstances be such as the justices shall see reason to judge him innocent and acquit him thereof, and otherwise dispose of the child.”
       Cases under this Act were a frequent item on the dockets of the Courts of General Sessions (successors to the quarter sessions), and Adams tried a substantial number of them. They are of interest both for the social problem which they reveal and because of the procedural steps adopted for its solution.
       Jane Dotey, of “Duxborough” (Duxbury) in Plymouth County, gave birth to an illegitimate child in September 1767. In July she had been examined by Gamaliel Bradford, a Justice of the Peace, and had made oath that one Manuel Essane was putative father of the child with which she was then pregnant (Document I). On Bradford’s warrant, Essane, a minor apprenticed to Rouse Bourne of Marshfield, was brought before the Plymouth Court of General Sessions then sitting and was apparently bound over to abide the event by virtue of another provision of the statute. Finally at the December Sessions, Jane appeared, was fined for the crime of fornication, and again made oath that Essane was responsible for her plight. The court adjudged Essane “reputed father of the said child,” and ordered him to pay maintenance and costs, and to give bond to indemnify the towns of Plymouth, Duxbury, and Marshfield from charges for the child (Document II).
       On the motion of Adams, who had represented Essane at Sessions, the Superior Court at its March 1768 Suffolk Term ordered a writ of certiorari to issue returnable at Plymouth in May. Adams filed an assignment of errors (Document III), in which he attacked the Sessions proceedings on six grounds. The first three errors assigned alleged the absence from the record of any findings of compliance with the statutory requirements of accusation and examination before and during delivery. The other assignments were that the order for maintenance was either beyond the court’s jurisdiction, or void for uncertainty; that as a minor Essane could not be ordered to give bond; and that the portion of the order requiring Essane to indemnify the three towns was void because there was no finding or evidence as to the child’s birthplace, and because, in any event, only the town in which the birth occurred was liable for his charges.
       When the case was heard at Plymouth in May, the Court quashed the order of Sessions and filed a memorandum of its reasons, an unusual item, which is printed as Document IV. The first reason, the omission of the child’s birthplace from the record, was probably considered “jurisdictional”; that is, the fact omitted was necessary to a valid order, at least one requiring that indemnity be given to a town. In its second reason, that the judgment was based only on the complainant’s oath, the court avoided a direct confrontation of the jurisdictional issues in Adams’ first three assignments of error, stating in effect only that the facts alleged were insufficient, without saying what particular additional facts would have been necessary. The final reason, that the order should have required the father to indemnify only the town of the child’s birthplace, could either be said to go to an excess of jurisdiction or could be considered the correction of an order inconsistent on its face. The presence in the Superior Court file of Jane Dotey’s examination (Document I), and the warrant issued by Justice Bradford on the basis of it, suggest an unsuccessful attempt to cure some of these errors by material not strictly speaking in “the record.”


Title: Jane Dotey’s Examination: Plymouth, 6 July 1769
From: Bradford, Gamaliel
To:

       Plymouth Ss. The Information of Jane Doty now Residing in Duxborough single woman taken before me Gamaliel Bradford Esqr. one of his Majestys Justices of the Peace for the said County this Eighth Sixth Day of July 1767.
       Q. Are you now with Child.
       A. Yes.
       Q. Who is the father of the Child you are now Big with.
       A. Mannuel Essane of Marshfield servant to Rouse Bourne Between on the Seventeenth and twenty seventh and thirtyeth Days of January Last did enter and had Carnal Knowledge of her Body two several times.
       Q. Had any other man Carnal Knowledge of your Body aboute that time.
       A. No nor Never in all her Lifetime.
       Q. Where was the place he had Carnal Knowledge of your Body.
       A. In the House My Gradmother now Lives in in Duxborough.
       herJane X DotyMark
       Sworn the Day and year above said before Me, Garni. Bradford Justice of peace.


Title: Adams’ Assignment of Errors: Plymouth Superior Court, Plymouth, April 1768
From: Adams, John
To:

       In the Case of Jane Dotey vs. Manuel Essane heard and adjudged at the Court of General Sessions of the Peace held at Plymouth within and for the County of Plymouth on the first second Tuesday of December being the Eighth day of said Month in the Year of our Lord 1767, the Errors assigned by said Manual, on the Certiorari are as follow viz.
       1st. It does not appear by the Record of the Judgment or Sentence of said Court of General Sessions of the Peace in said Case that Manual Essane was ever accused by the said Jane, to be the Father of the Bastard Child born of her Body, in September last, before the said Child was born.
       2d. It does not appear by the Record of said Judgment or Sentence, nor by any other Record of any Proceedings in the Case, that the said Jane, continued constant in her Accusation, of the said Manual to be the Father of said Bastard Child.
       3d. It does not appear by said Record of said Sentence, or Judgment, that said Jane was ever examined upon oath while she was pregnant with said Bastard Child, nor that she was put upon the Discovery of the Truth in the Time of her Travail, all of which by Law ought to have appeared.
       4. The said Court have, by their Sentence aforesaid, ordered the said Manual, “that he pay the sum of Three Pounds it being the one half of the Charge of her lying in &c. for the first Month, and allso that he pay the sum of Twenty one shillings, it being for Keeping said Child to the Eleventh Day of December,” in which the said Court have exceeded their Jurisdiction they not having Authority by Law to make such an order, and if they had such Authority, in this Case the order is uncertain, insensible and void, the said Court not having ordered the said Manual to pay the aforesaid Sums to any Person whatever in certain.
       5. The said Court has ordered the said Manual to enter into Recognizance with two sureties, &c. which the said Manual was then and still is by Law incapable of doing as he then was and still is an Infant under the Age of Twenty one Years
       6. The said Court have by the sentence aforesaid ordered the said Manual, that he recognize in the sum of Forty Pounds with two sureties to Secure and Save harmless the Towns of Plymouth, Duxborough and Marshfield from all Charges and Damages that may arise by said Child which the said Court had no Authority by Law to do, for it does not appear by said sentence, or any Record in said Case, that said Bastard Child was born in any of those Towns, and if it did, it would still be certain that said Town Child could not be born in more than one of said Towns, and therefore in that Case, said Manual could be obliged only to give security to Save that Town harmless where said Bastard Child was born.

       Where fore the said Manual prays that the aforesaid order, Sentence, Judgment, and Proceedings of the said Court of Sessions may be quashed.
        John Adams for said Manual


Title: Reasons for the Judgement: Plymouth Superior Court, May 1768
From: UNKNOWN
To:

       In Superior Court at Plymouth May 1768.
       Order’d that the aforesaid Judgment and proceedings of the Court of General Sessions of the peace be quash’d—1st. Because it doth not appear in the Record aforesaid where the Child aforesaid was born.
       2. It appears by the Record aforesaid that the aforesaid Judgment was founded on the Oath of the said Jane and on that only.
       3. The said Manuel is ordered to recognize in £40 with Sureties to save the Towns of Plymouth Duxborough and Marshfield from all Charge and Damages that may arise by the said Child. Whereas the said Court of General Sessions of the peace, if the said Manuel has been duely adjudged the reputed Father of the Child abovesaid could only have ordered the said Manuel to give Security to save the Town or Place where the Child was born from Charge for its maintenance.
        S. Winthrop Cler.


Title: Adams’ Minutes of the Testimony: Middlesex Court of General Sessions, Concord, September 1768
From: Adams, John
To:

       Lidia Gage vs. Josiah Headley.
       Sarah Garfield.
       Deacon Farrar. Last of Deer. It is Josiah Headleys. The next Saturday, she said she was sorry she had told me what she did. Not 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 talked 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 skimmington he had some other Way.
       Sufferana Hagar. Lived in the House with Lidia Gage. I knew She 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 Headley 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.
       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 Travail 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.

       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. 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.


Title: Editorial Note
From:
To:

       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. 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. 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 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. 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. 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.
       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. Finally 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, 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.


Title: Record: Middlesex Court of General Sessions, Concord, September 1769
From: UNKNOWN
To:

        [seal] Middlesex Ss. Anno Regni Regis Georgii Tertii magnae Brittanicse Francae et Hibernise nono.

       At a Court of General Sessions of the Peace begun and Held at Concord within and for the County of Middlesex on the Second Tuesday of September being the twelfth Day of said Month Annoque Domini 1769.
       John Harrington of Marlborough in the County of Middlesex Husbandman being bound by Recognizance for his Appearance at this Time to answer to the Complaint of Anna Josslin of Marlborough aforesaid Spinster for begetting her with Child of a Bastard, (of which she was delivered in Marlborough aforesaid on the twenty fourth Day of June AD 1768) And the said John being now in Court and charged by the said Anna with being the Father of the said bastard Child born of her Body as aforesaid, denied the said Charge and Accusation; and after a full hearing of the Parties and their Evidence, it appears to the Court and they adjudge that the said Anna Josslin be admitted to her Oath, and she being Sworn, upon her Oath, in Court, says that the said John Harrington is the Father of the bastard male Child born of her Body as aforesaid.
       It’s thereupon Considered by the Court and they do thereupon adjudge the said John Harrington to be, and he is hereby adjudged to be the reputed Father of the same Child and order that he stand chargeable with the Maintenance thereof with the Assistance of the said Anna Josslin the Mother; and that he pay the said Anna the Sum of forty eight Shillings for the first four Weeks next after the Birth of the Said Child towards the defreying the Charges and the Maintenance of the Same Child to that Time, and that he also pay her two Shillings per Week from thence to this Time, and also that he the said John pay to the said Anna from hence forward two Shillings per Week, weekly, towards the Maintenance of the Same Child untill the further Order of this Court. Also it’s Ordered by the Court that the said John Harrington give Security, himself as Principal in the Sum of one hundred Pounds with two Sureties in the Sum of fifty Pounds each for his Performance of the above Order with Respect to the Maintenance of the said Child. And also that he give Security, himself as Principal in the Sum of fifty Pounds with two Sureties in the sum of twenty five Pounds each to save the Town of Marlborough, where the same Child was born, harmless and free from any Charge for the Maintenance of the said Child; And that he pay Fees and Costs of this Prosecution; Standing committed ’till performed.


Title: Fitch’s Assignment of Errors: Middlesex Superior Court, Cambridge, October–November 1769
From: Fitch, Samuel
To:

       In the Case of Ann Jocelin against John Harrington heard and Adjudged at the Court of General Sessions of the Peace held at Concord within and for the County of Middlesex on the Second Tuesday of September in the Year of our Lord 1769. The Errors Assigned by the said John on the Certiorari are as follows vizt.
       1. It doth not Appear by the Record of the Judgment or Sentence of said Court of General Sessions of the peace, or by any part of the Record in said Case That the said John Harrington was ever accused by the said Ann Jocelin of being the Father of the Bastard Child born of her Body in June 1768 before the said Child was born nor ’till more than Twelve Months after:
       2. It doth not Appear by the Record of said Judgment or Sentence nor by any other Record of any proceedings in said Case That the said Ann Continued Constant in her Accusation of the said John to be the Father of the said Bastard Child, or That She was ever Examined upon Oath while She was pregnant with said Bastard Child, touching the same, nor that she was put upon the Discovery of the Truth relative thereto, in the Time of her Travail, all which by Law ought to have Appeared;
       3. It doth Appear by the Record of the said Judgment and Sentence of said Court in said Case, That The said Judgment was founded upon the Oath of the said Ann in said Court, That the said John was the Father of said Bastard Child, and upon that only;
       4. The said Ann was not put upon the Discovery of the Truth relative to said Bastard Child during the Time of her Travel nor did she Charge the said John with being the Father of said Child during said Time, nor till long after.
       Wherefore the said John prays That the said Order Sentence Judgment and proceedings of said Court of General Sessions of the peace, may be quashed and That he be allowed his Charges occasioned thereby and Costs.
        Saml. Fitch for the said John Harrington


Title: Adams’ Minutes of the Testimony: Middlesex Superior Court, Charlestown, April 1771
From: Adams, John
To:

       Ann Josselyne vs. John Harrington. Bastardy.
       Putnam.
       C.J. If there is other Evidence of Circumstances that tend to render it probable, will not that answer the End of that Prerequisite, of Examination in the Time of Travail?
       Jerusha Newton. In feby. she sent for the Man and Jno. Harrington came. She was very suddenly taken in Travel, and very bad. Midwife not there till an Hour after the Child was born. That very day before her Delivery she said Jno. Harrington was the father. She was then very comfortable and well. No Question was put, in the Time of her Travail. She said she wonderd how any Man could serve any Woman as Jno. Harrington did.

       Mary Morse. Did not examine her. There was Something Said after the Birth, of the Childs looking like Jno. Harrington.
       Adonijah Newton. I went and found him at a Burying. All I had to do was to ask him to come, I did not know she was with Child. Some time after she wanted to see him again. Then I mistrusted she was with Child. He wonderd what she wanted to see him for. She told me, before the Child was born, that she was like to have a Child by Harrington.
       Thos. Josselyne. Harrington Said, I f——d her once, but I minded my pulbacks. I sware I did not get it.
       Rebecca Drummond. 2 Months ago. He denyed it, &c. That all the Money they had of him was for work.
       Joshua Newton. I think he said she should not have no more Money than she had got. 3 or 4 Pistareens, and 10 dollars.
       Gershom Newton. Knew of his coming to see her often and staying all Night. I carried a Letter from her to the Monadnocks. He admired she should send to him for Money for he had left her some. He gave me a Note for £20 which I gave him up again, because he said his father would cut him off.
       Never knew him there but two Nights.
       Solomon Wheeler. Jno. Harrington was there once, and laid on the Bed alone. He afterwards called me a fool for telling of it. He said it would make a Talk.


Title: Adams’ Minutes of the Trial: Essex Superior Court, Salem, November 1771
From: Adams, John
To:

       Pingry vs. Thurston

        Lowell.

       Prov. Law, page 29. If any Dispute shall arise, it shall be determined. A Penalty for permitting a Person to give his Voice who is not a qualified Voter.
       Benja. Adams. Parliamentary Abilities. Knew all his Party.
       Jona. Herriman. Abel Plummer voted in the Choice of the Moderator. Deacon Thurston said He could, did, and would count him as a Voter. It never was disputed at that Time among the whole People that he was counted. Chaplain said I cant count Abel Plummer. Deacon Thurston said I can, and I do count him. He is as good a Voter as any at of the People. Heard the Deacon say since, that he was sorry, he had counted him.
       Benj. Adams. They want i.e. weren’t satisfyed at first, and went out of the two Doors, and as they came in, he could and did count him.
       Holmes. Deacon said it was pitty, that Pingry should be at the Expence of proving that he allowed Plummer to vote for he did and would allow it, and pleaded Conscience for so doing. He counted and allowed him a Voter. He mentioned a Mistake of the Assessors, and said that Plummer had more than Estate eno.

        Mr. Farnham.

       Jeremiah Searl. Clerk of the Meeting, and by the Moderator the whole Time. Many Thought Plummer was a Voter, many Thought otherwise. Much said upon it. Moderator said he was not acquainted with the Law. A Vote was called by Hand. The Moderator was not satisfyd. A Poll was called for. I heard him declare he should not count Abel Plummer. Anabaptists were all among the opposite side to Plummer. The Moderator condescended to Poll the People, and desired the Constable and one Mr. Chaplain to assist him. Moderator and Constable, and Chaplain went to one Door, and Moderator and Constable to the other. Moderator got up and told em to attend to a Vote, there was no need of the Noise, there was a Vote without Plummer. 1/2 a doz. times said he should not reckon him and declared it when he ordered me to record it—a Vote without reckoning Plummer—allowing the Baptists and rejecting Plumer a Vote.
       Mr. Spoffard. Moderator commanded silence, and said there was no need of the Clammr. There is a Vote without Plummer, and I declare it a Vote without him. Clerk record it.
       Moses Dole. Moderator declared at the Door, there was a Vote without Abel Plummer. They need not make such a Clamr.
       John Tinney, Constable. An Objection vs. A. Plummer. Moderator tryd by Hand Vote. 48. 58. 68. A Mistake in the Valuation. Moderator tryd 3 Ways. I counted with him, and there was a Dispute about 3 Baptists. I made one Odds for the Vote. Moderator said leaving out Ab. Plummer and counting the Baptists there was one Odds. No need of the dispute. There is a Vote without Plummer. Such a Noise that half could not hear. We dont want him, I declare it a Vote. Afterwards he said he determined to set him aside if there had been a Tye.
       Wm. Chandler. 3 Ways. I dont want him to vote, there is a vote without him. I declare it to be a Vote. Clerk record it.


Title: Editorial Note
From:
To:

       Two leading natural resources of the North Shore, clams and salt-marsh hay, provided the stakes in this unusual trespass action. The land in question lay largely under water in what was then Chebacco Parish, Ipswich, and is now a part of the town of Essex, apparently in the area known today as Cross Island, near the mouth of the Essex River.
       Ipswich people, and those from neighboring Gloucester (sometimes called “Cape Ann”), had disputed the common boundary since at least 1642, and had apparently resolved the issue by a joint “perambulation” in 1767. Meanwhile, the Proprietors of the Common Lands of Ipswich, otherwise known as the Commoners, had annually let the thatch banks to the highest bidder, only Commoners having the right to bid. They had also attempted to regulate the clam trade, by appointment of a committee and promulgation of a kind of bag limit.
       Enter now in canoes, digging, Adams’ clients, Israel and John Herrick, Gloucestermen both, and an anonymous crowd of their fellow townsmen. They “trod down, trampled upon, dug, tore up, and consumed the soil and Thatch Banks . . . and thereout dug, took and converted to their own Use one hundred Bushels of Clams of the said Proprietors there being and growing.” The Commoners responded by voting John Patch III, Isaac Smith, and Isaac Dodge, a committee to “Persue the Trespassers to finall Judgment and Execution.” This the committee tried to do, commencing an action in the Ipswich Inferior Court in March 1771, and after a jury verdict for the Herricks, appealing to the Superior Court. There, on the testimony summarized in Adams’ minute set out below, the jury brought in a special verdict: the land was on salt-water flats on an arm of the sea about two miles up Chebacco River, the Commoners held title to it, the defendants had entered upon it and dug fifty bushels of clams, and damages totaled four shillings. To the judges the jury left the decision whether or not plaintiffs’ action was well founded.
       Although the file papers and Adams’ minutes afford slim evidence of the question the court faced, Adams and John Lowell, his co-counsel, seem to have argued that trespass could not lie here (at least for the clams), because the Province Charter guaranteed free fishing. They also apparently attempted to introduce evidence of a custom of clamming, which plaintiffs opposed on the technical ground that such evidence was inadmissible when the defendants, as here, had merely pleaded “not guilty,” and had not raised any legal justification in their plea. On the basis of the materials Adams himself set out, his legal position seems weak. The Court shared this view, and in June 1772 entered up judgment for the plaintiffs for the four shillings plus costs of £16 9s. 8 1/2d.


Title: Adams’ Minutes of the Trial: Essex Superior Court, Salem, November 1771
From: Adams, John
To:

       Patch vs. Herrick. Clams.
       Pynchon. Grant of Ipswich or rather Jurisdiction between the Towns from Glocester Town Book. 1642. And from the Province Secretary.

       1767. Perambulation, from Gloucester between there and Ipswich.
       Jacob Story. Perambulated for 20 Years. We did not go to the Marsh.

        Wm. Butler.

       Wm. Choate. The Line a Mile in the nearest Place I should think. People freely dug.
       Lufkin. Freely dug. People on there, when the Commoners and their Assigns, have been dig mowing. Talk about 3 Years, about digging. Never forbid till within 3 Years, and never knew of People’s asking Leave.
       Wm. Choate. 1770. 27 July. 17 Persons. 5 Canoes—75 Bushells. Dont know who they are. Israel Herrick and Jno. Herrick it was then said were there. I went to ’em once, and told em they were trespassing 7 Years ago. 1761 give 20s a Barrell for digging—so that the Custom about 2s a Bll.
       Lufkin. 5 Canoes. 15 Persons. Cape Ann People. Know Jno. and Israel Herrick. We said nothing. Nor they to Us. 4 Barells of Meat. 100 Bushells in shells. 4 dollars a Barrell. Never knew prohibited.
       Jacob Davis. Went from Cape Ann 5 Years ago, and forbid, and we went off. They threatned to prosecute.

       July 19. 1744 to 1760. Thatch banks, and all the Knobs, at Bull Island. Leases. 20S., &c. and 21S.
       Story. Hired the Knobs. I looked upon it, I hired to low Water Mark as much as the Grass. Remember when there was no Grass on the flatts. Now there is, and it increases, and Clams under the Thatch. Digging has a Tendency to prevent the Grass from getting in.
       Lufkin. Our Thatch grows poorer. They have dug away most of the Clams where there is no Thatch.
       Lowell. Charter last Page.
       Mem. † Old Colony Laws. page 90. Tit. Liberties Common.
       Gilbert, Tryals Per Pais about pleading Custom.
       2. Ld. Ray. 860. Replevin of a Brass Pan.
       † Old Colony Laws. 90. Tit. Liberties. “2. Every Inhabitant who is an Householder, shall have free Fishing and Fowling in any great Ponds, Bays, Coves and Rivers, so far as the Sea Ebbes and Flowes, within the Precincts of the Town where they dwell unless the Freemen of the same Town or the General Court have otherwise appropriated them. Provided that no Town shall appropriate to any particular Person or Persons, any great Pond, containing more than 10 Acres of Land and that no Man shall come upon anothers Propriety without their Leave otherwise then as hereafter expressed.

       “The which clearly to determine;
       “It is declared, that in all Creeks, Coves and other Places about and upon Salt Water, where the sea Ebbes and flowes, the Proprietor, or the Land adjoining shall have Propriety to the Low Water Mark where the Sea doth not Ebbe above an 100 Rods, and not more wheresoever it ebbes further, Provided that such Proprietors, shall not by this Liberty have Power to stop or hinder the Passage of Boats or other Vessells, in or thro any Sea, Creacks or Coves, to other Mens Houses or Lands. And for great Ponds lying in Common, though within the Bounds of some Town, it shall be free for any Man to fish and fowle there and may pass and repass on Foot through any Mans Propriety for that End, so they trespass not upon any Mans Corn or Meadow 1641, 47.”


Title: Editorial Note
From:
To:

       Redevelopment of Boston’s North End is not a wholly modern phenomenon or problem. In the case which follows, Adams represented two housewrights and two bricklayers in an action of trespass brought by Jacob Emmons, alleging that on 30 April 1767 they “with force and arms . . . broke and entered the plaintiff’s Close” and “did then and there break down and erase to the foundation the brick walls and chimmies of the plaintiff’s dwelling house there standing and did then and there with force as aforesaid fill up the cellars of the plaintiff’s said house with dirt, bricks and other rubbage.”
       The matter was tried at the Suffolk Inferior Court on 7 January 1772, where, upon a sham demurrer to Adams’ plea of not guilty, judgment was rendered for the defendants. The matter was appealed to the Suffolk Superior Court, where, at the August 1772 sitting, the pleadings were reopened and Adams put forth his real defense, a plea in confession and avoidance (Document I). After a formal traverse of the force and arms alleged as a necessary part of the declaration in trespass, the plea admitted the acts complained of, but asserted that the defendants had been authorized by law. The house in question had stood in the area desolated by the great fire of 3 February 1767, and the defendants had acted pursuant to statute in clearing a newly widened street which encroached upon the plaintiff’s property and in removing the remains of the buildings thereon as a common nuisance and hazard to passersby. Jonathan Sewall for the plaintiff thereupon demurred to the plea. At the hearing on the demurrer, however, as Adams’ minutes (Document II) show, Samuel Quincy argued in plaintiff’s behalf. The court overruled the demurrer and awarded the defendants their costs, taxed at £4 11s. 2d.


Title: New Pleadings: Suffolk Superior Court, Boston, August 1772
From: Adams, John,Sewall, Jonathan
To:

       Suffolk Ss. Common Pleas. Boston January Term 1772.
       Jacob Emmons Ptf. vs. William Crafts and others Defts.
       And the Said William Crafts, Giles Brewer, Benjamin Richardson and Asa Stodder, come and defend &c. and as to the Force and Arms, and any Thing that is against the Peace, and also the whole Trespass aforesaid excepting the Breaking and entering the Dwelling House aforesaid, breaking and entering the Close aforesaid, and breaking down and erasing to the Foundation the brick Walls and Chimnies of the Dwelling House aforesaid, and filling up the Cellars aforesaid with Dirt, Bricks and other Rubbish, the said William, Giles, and Benjamin and Asa say they are not guilty thereof and of this they put themselves on the Country.

        John Adams
        And the Plantiff likewise.
        Jon. Sewall

       And as to the breaking and entering the Close aforesaid and breaking down and erasing to the Foundation the brick Walls and Chimnies of the Dwelling House aforesaid, and filling up the Cellars aforesaid with Dirt, Bricks and other Rubbish the said William, Giles, Benjamin, and Asa Say, the said Jacob, his Action aforesaid thereof against them ought not to have or maintain, because they say, that the Close aforesaid, and the Dwelling House aforesaid, and the brick Walls and Chimnies aforesaid, and the Cellars aforesaid are and at the Time when the supposed Trespass aforesaid is alledged to have been committed were all in a public street or high Way in the Town of Boston aforesaid, and were all then and there common Nusances to the subjects of our Lord the King. And the said Defendants further say that by an Act or Law of this Province made and passed in the Fourth Year of the Reign of the late King William and Queen Mary, intituled “an Act for building with Stone or Brick in the Town of Boston, and preventing Fire” it is among other Things enacted “That in all void and unbuilt Places, which shall hereafter be improved for building, or when at any Time any total Consumption or Desolation shall happen in any Street or Lane within the said Town, it shall be in the Power of the said Justices of the Peace of said Town then in being, together with the Select Men, or the Major Part of both, to State and lay out Such Streets, Ways and Passages, as may be most for the Conveniency and Accomodation of the Place: As also where any Desolation has happened, to regulate and enlarge other narrow and crooked Lanes or Passages.”
       And the said Defendants further say that the greatest Part of the Lands from Middle Street to Ann Street in said Boston, were by the Fire which happened in said Boston on the third Day of February Anno Domini 1767 become desolate and vacant, that Paddy’s Alley So called, which run through those Lands, though very narrow, was from its Situation extremely beneficial and usefull to the Inhabitants of said Town and that it was on the sixteenth Day of April Anno Domini 1767, had been long before and has been ever since absolutely necessary that there should be a commodious public Street or high Way there.
       And Samuel Wells, Joshua Winslow, Richard Dana, Foster Hutchinson, John Ruddock, Nathaniel Balstone, John Hill, Edmund Quincy, John Avery and John Tudor Esquires being the Major Part of His Majesty’s Justices of the Peace for the County aforesaid, dwelling in the Town of Boston aforesaid, and Joseph Jackson, Samuel Sewall, John Hancock, William Phillips, Timothy Newhall and John Rowe being the major Part of the select Men of the same Town, having met together and taken the Premisses into their Consideration, carefully viewed the said Alley and the Lands so made desolate on each side of it, and duely considered the premisses, for the Conveniency and Accommodation of that Place and of the Inhabitants aforesaid, pursuant to the Power given them by a law of this Province, made in the fourth Year of King William and Queen Mary intituled “an Act for building with Stone or Brick in the Town of Boston and preventing Fire,” did at said Boston on the Said Sixteenth day of April Anno Domini 1767, State, lay out, and establish, a Street thro the vacant and desolate Lands aforesaid, including the aforesaid alley or Part of it, in manner and Form following, that is to say beginning at the North easterly corner of the yard behind the brick Dwelling House belonging to the Heirs of Mr. Andrew Tyler deceased and running South a little westerly along by the back of the said House and across the said alley including it, nineteen Feet and Eleven Inches, which Line is at the Eastern End of the same new Street, then turning and running West more northerly making a Small bend one hundred and fifty feet and nine Inches, then running West more northerly to the House of Thomas Emmons, ninety and four Feet and Six Inches, then turning north a little Eastwardly, crossing the said Alley, Strait along by the End of Mr. Gidneys House, then occupied by William Crombay, thirty feet, which Line is at the Westerly End of the same Street then returning East, a little southerly, on the northerly Side of the same Street, ninety one Feet, then running East less southerly, Sixty five Feet, where it measures across to the south Side or Line, thirty five feet, then running East again, Something more southerly hence to the said Brick house, Eighty four feet and Six Inches then turning South a little Westerly, along by the same House to the Corner thereof, nine feet and Seven Inches, then turning the said Corner and running along by the same House to the aforesaid Corner of the Yard aforesaid Twenty Eight Feet and about Eleven Inches, where the said new Street ends. And the said Justices and select Men then and there, laid and sett off all the Lands of every Person Whomsoever included and falling within the Lines and Boundaries aforesaid into the same new Street, to remain and continue a Part and Parcell thereof forever.

       And the Defendants further say, that all that Part of the Plantiffs Close aforesaid described in his Declaration aforesaid, wherein the Brick Walls, Chimnies, aforesaid and the Cellars aforesaid mentioned in said Declaration were at the Time when the supposed Trespass was committed, was included and Fell within the Lines and Boundaries of the aforesaid new street so laid out and established as aforesaid.
       And the said Defendants further say, that at said Boston on the said Thirtyeth day of April Anno Domini 1767 the Brick walls and chimmies as in the plaintiff’s declaration aforesaid mentioned being part of the  occasioned by the Fire aforesaid and in a weak and tottering condition and the Cellar aforesaid in said Declaration mentioned being left by the fire aforesaid open and uncovered, were dangerous to the Lives and Limbs of the Inhabitants of said Town, and of his Majesty Subjects in general who had right and occasion to pass and repass with their Horses and Carriages, in the new Street aforesaid and were common Nusances to his Majestys Subjects in general.
       And the Said Defendants on the Day and Time mentioned in the Plantiffs Declaration aforesaid, in order to remove the said Common Nusances, and that they and their fellow subjects might pass and repass in said new street, on foot and with their Horses and Carriages, as they had right and occasion to do broke and entered the said Close, in said Declaration mentioned, and then and there broke down and erased to the Foundation the Brick Walls and Chimnies of the Plantiffs Dwelling House there standing, and did then and there, fill up the Cellars aforesaid of the Plantiffs said House, with Dirt, Bricks and other Rubbish and thereby wholly Spoil and destroy the same, as well and lawfully they might. Which is the Same breaking and entering, the Plantiffs House, and breaking down and erasing to the Foundation the Brick Walls and Chimnies of his Dwelling House and filling up the Cellars of his said House with Dirt, Bricks and other Rubbish and wholly Spoiling and destroying the same, whereof he complains.

       And all this the said William, Giles, Benjamin and Asa are ready to verify wherefore they pray Judgment if the said Jacob his Action aforesaid thereof against them ought to have or maintain.

        John Adams

       And the said Jacob says that the same plea of the said William, Giles, Benjamin and Asa, last above in Manner and Form aforesaid pleaded, and the Matter therein contained are not sufficient in Law to bar the said Jacob from having and maintaining his Action aforesaid against them, nor is he the said Jacob under Necessity or bound by the Law of the Land to make any Answer to that same plea in Manner and Form aforesaid pleaded; and this he is ready to verify; wherefore for want of a sufficient plea in this behalf, the said Jacob prays Judgment and his Damage by Reason of the Trespass aforesaid to be adjudged him, with Costs.
       Jon. Sewall

       And the Said William, Giles, Benjamin and Asa say their plea aforesaid in manner aforesaid and the matter therein contained are sufficient in Law to preclude and bar the said Jacob from having and maintaining his Action aforesaid thereof against them which same Matter in the same plea in Bar aforesaid pleaded they the said William Giles Benjamin and Asa are ready to verify and prove when and where &c. Wherefore because the said Jacob has not answered to the same plea in Bar, or in any manner denied the same the said William Giles Benjamin and Asa pray Judgment and that the said Jacob may be barr’d from maintaining his Action aforesaid for their Costs.
       John Adams


Title: Adams’ Minutes of the Trial: Suffolk Superior Court, Boston, August 1772
From: Adams, John
To:

       Emmons vs. Brewer.
       Samuel Quincy. Prov. Law. 1st in the Book. Obsolete.
       Against common right. Not to be done by Legislature.
       Must be strictly pursued.

       Not a total desolation. The Bricks Wall and Chimney standing.
       Dont appear that the Justices and Select Men were notified. The Law says the Major Part of both. It must have been preceded by a Notification of all the Justices and select Men.
       Not mentioned any Recompence to the Party.
       1. Black. 139. Regard to private Property.


Title: Adams’ Minutes of the Wadsworth Trial: Plymouth Inferior Court, Plymouth, April 1766
From: Adams, John
To:

       Wadsworth vs. Loring et als.
       Paine. Wadsworth, a Commissioner of Duxborough to take Care of the Herring Way.
       Q. Whether Wadsworth did any Thing to defeat the Condition?
       Levi Loring. Deposition. Making Interest. Told Town, nothing was done.

        Thomas Adams.

       Pirez Loring. Would make Interest, but Loring said it was not fair.

       Jno. McGlathly. Judah Sampson came and wantd him to see how many would vote for Wadsworth.
       Abner Louden. Askd to go to Meeting but not to vote. Voted against it.
       Job Brewster. General talk unfair to make Interest.
       434. 435. 436. Our Act.
       Confession—whose case.

        Hovey.

       Coll. Bradford. Fair Vote.
       Deacon Wadsworth. Defendants said make what Interest you can and so will I. Aggrievd the People.
       Prior. Enemy.
       P. Sampson. Petition not to give up the Priviledge.


Title: Adams’ Minutes of the Winslow Trial: Barnstable Inferior Court, Barnstable, December 1767
From: Adams, John
To:

       Winslow qui tam vs. Clark
       Hovey. 239. Page. Nusances in Rivers. Natural, usual or common Passage.

       Wm. Robbins. Knows the Brook. Saw Clark make a Ware with sticks and stones and Boards. Saw James Clark catch Fish.

        Thos. Snow.

       Our Witnesses.
       Lt. Freeman. No Water in the guzzell when Winslow Gates are down in Herring Time.

        Tupper.

        Clark.


Title: Editorial Note
From:
To:

       Colonial Massachusetts is often charged with having supported a religious establishment. As Green v. Washburn,  No. 37, indicates, there is a sense in which this charge is all too well-merited. The “establishment” which existed in the 18th century, however, was far from being the state-controlled church administering a rigid dogma which the term suggests. Indeed, local autonomy was the very essence of the Congregational faith of the Massachusetts Puritans. The “establishment,” whatever support it may have received from the state, was only the sum of several hundred self-sufficient congregations which subscribed to certain common principles but were jealously independent in defining their faith within the limits of those principles and in governing their own temporal affairs. Fundamental to this spirit of independence was the jurisdiction of each church over the conditions of its membership. Deacon Thomas Pierce’s suit for defamation against Samuel Wright arose from the latter’s invocation of this jurisdiction in the Church of Christ in Wilmington, to which they both belonged.
       In September 1767 Pierce and Wright had, with Philemon Chandler, served as arbitrators in a dispute between Jeremiah Bowen and Zacheus Hibberd over the division of certain timber which they had jointly arranged to have cut and sawed. The award of the arbitrators had provided, among other things, that Bowen should receive “all the Ship Timber and half the Boards they got Sawed,” as well as certain “Coals,” presumably charcoal. According to later witnesses, after the award was read to the parties, Wright further said that Bowen was to understand that he was not thereby entitled to take any of the “plank” cut, which had been reserved for the floor of Hibberd’s barn. Pierce and Chandler did not object to this statement and indicated by later comments that it represented their understanding as well. The next stage in the proceedings occurred two or three weeks later before Justice of the Peace Josiah Johnson, where Hibberd was suing Bowen. It is not clear whether the original arbitration had been conducted as part of this suit, or whether the suit was newly brought on some phase of the award. In any event, the issue seems to have been the right to the “plank.” Thomas Pierce was called as a witness and apparently testified that the arbitrators had intended that all of this commodity should go to Bowen.
       After an unsuccessful effort to change Pierce’s position, Wright submitted a formal complaint against him to Isaac Merrill, pastor of the Wilmington church. The complaint charged that Pierce when under oath had solemnly declared “Things contrary to Truth and contrary to his holy Profession. And . . . dishonorary to God and Religion.” After the service on 11 October, the complaint was read to the assembled members, and Wright stated that he had meant to charge Pierce with perjury. Ten days later Pierce demanded in writing that Wright give him “Christian satisfaction” (that is, a retraction and apology before the congregation), threatening otherwise “to seek after it in a Legal Way.”

       No retraction seems to have been forthcoming, because Pierce brought an action of the case against Wright at the November 1767 term of the Middlesex Inferior Court, with separate counts in libel and slander, alleging £500 damages. The declaration (Document I), probably drawn by Jonathan Sewall, counsel for Pierce at the trial, is a classic example of the common-law form in such matters, complete with inducement, colloquium, innuendo, and all. On a plea of the general issue the suit went to the jury at the March 1768 session. Although Benjamin Kent was counsel of record for Wright, Adams argued his case, unfortunately without success. Pierce won a verdict of £3 and both parties appealed to the Superior Court. There at the October 1768 term, with James Putnam joining Sewall, and Adams again appearing for Wright, Pierce obtained a second verdict. On a motion in arrest of judgment the case was continued, but at the April 1769 term judgment for £9 damages and £28 13s. Id. costs was entered for Pierce on the verdict.
       Adams’ undated minutes (Document II) have been assigned to the March 1768 Inferior Court trial. They are chiefly of interest because they record an argument in which Adams presented the defense of privilege. He first demonstrated that the Cambridge Platform of 1648, the traditional governing ordinance of the Congregational churches, gave to members the right to accuse before the congregation brothers whom they felt had strayed from the ways of righteousness. This procedure, Adams argued, was necessary to the principal end of the church, the mutual encouragement and preservation of godliness. No action for defamation should lie against one who sought to exercise the right. The possibility of liability would discourage members from coming forward, and the church could not protect itself against the unrighteous. There would be no abuse in the absence of a civil remedy, however. One who sought deliberately to injure another with false charges would be discovered and punished in the course of the trial of his own accusations. As a separate point Adams also contended that Wright’s written complaint was not actionable, drawing an analogy to English authority which held that documents in legislative and judicial proceedings, including those in spiritual courts, were privileged.
       Modern theory recognizes two branches of privilege—the absolute privilege to defame regardless of motive that is accorded to participants in judicial and legislative proceedings as a matter of public necessity, and the qualified privilege which exists in certain other circumstances and may be defeated on a showing that the defamer acted with “malice”—that is, abused the privilege by publishing defamation to serve an interest other than that meant to be protected. In the modern view members of religious and other groups have a qualified privilege to defame other members in the course of their proceedings.
       At the time of Pierce v. Wright, as Adams’ authorities show, the common law had long known the absolute judicial and legislative privilege. But the concept of a qualified privilege in other matters was barely in its infancy. It first appeared in something like its modern form in a dictum of Lord Mansfield’s in 1769 to the effect that a master was qualifiedly privileged in describing a former servant to a prospective employer. In several early 19th-century American decisions the courts extended a qualified privilege to church deliberations, but the reasons given are confusing. The servant cases were usually cited, as well as a very brief opinion in an English criminal libel proceeding which seemed to give the privilege to church members on the grounds that the affair was “merely a piece of discipline.” Courts and counsel relied heavily upon the older judicial-privilege authorities, however, and the opinions are really framed on the analogy of church to court proceedings.

       This last analogy runs throughout Adams’ argument and is express in his reference to the judicial-privilege cases. His suggestion that abuse of privilege was to be remedied by action within the church shows that he did not envision the modern concept of qualified privilege. Nevertheless, his argument contains a principle that goes far beyond the unrealistic church-court analogy drawn by later cases. In emphasizing the constitution and aims of the church he anticipated the basis of the modern grant of privilege to church members. It is not the judicial nature of the deliberations, but the right of the members to protect or advance the common interests for which they have banded together that requires their proceedings to be privileged. If Adams did not fully articulate the modern theory, he at least saw the significance of the relationship which underlies it more clearly than did the 19th-century judges.
       Although a general verdict and the lack of any record of the court’s charge make it impossible to know the precise legal bases of the decision in Pierce v. Wright, the result would indicate that Adams’ arguments were not accepted. With the notion of privilege based on common interests still undeveloped in England, it is not surprising that a Massachusetts court should reject a defense based upon it. That the analogy to judicial and legislative privilege also failed suggests that, to the 18th-century judges and jury at least, the “established” church was not so much a creature of the state that its deliberations had the character of public proceedings.


Title: Thomas Pierce’s Writ and Declaration: Middlesex Inferior Court, Charlestown, November 1767
From: Pierce, Deacon Thomas
To:

        To the Sheriff of Our County of Middlesex, his Under-Sheriff or Deputy, Greeting.

       WE Command you that you summon Samuel Wright of Wilmington in our said County Yeoman (if he may be found in your Precinct) to appear before Our Justices of Our Inferior Court of Common Pleas to be holden at Charlestown within and for Our said County of Middlesex on the last Tuesday of November next, Then and there in Our said Court to answer to Thomas Peirce of Wilmington aforesaid Gentleman in a Plea of Trespass on the Case for that whereas the Said Thomas is and from his Nativity has been a Person of good Name, Fame and Reputation and free from the atrocious Crimes of false Swearing and Perjury, and by his pious and virtuous Behaviour had so far obtained the Esteem and good opinion of the Church of Christ in Wilmington aforesaid as to have been received and to have continued for the Space of fifteen years last past a Member in full Communion with the said Church and also had so far obtained their Esteem and good Opinion as that in the month of February A. Dom. 1766 he was elected and appointed one of the Deacons of the Same Church in which office he has ever since continued; Nevertheless the said Samuel, not ignorant of the Premises, but maliciously minding and contriving to injure the said Thomas in his good Name, Fame and Reputation and to deprive him of the Esteem and good opinion of the Members of the same Church and of all the other Churches of Christ throughout this and the neighbouring Provinces and thereby to deprive him of the Benefits and Comforts of the holy ordinance of the Lords Supper and also to expose the said Thomas to the Pains and Penalties by Law appointed for those who are guilty of wilfull and corrupt Perjury, did on the tenth Day of October instant at Wilmington aforesaid make and publish the following false defamatory scandalous and malicious Libel of and concerning the said Thomas, Vizt.,
       “To the Reverend Mr. Isaac Merrill Pastor of the Church of Christ in Wilmington, please to communicate the following Complaint of me the Subscriber against our Brother Deacon Thomas Peirce a Member of the Church in this Place, Vizt: For that I heard the said Thomas Peirce when under the Solemn Oath of God administered by Mr. Justice Johnson about the middle of September last, say and solemnly declare Things contrary to Truth and contrary to his holy Profession, and as I apprehend dishonorary to God and Religion, as I understand the Matter. I also say that I have proceeded with him according to the Gospel Rule; but can obtain no Satisfaction; Wherefore I remain uneasy and dissatisfyed with our Said Brother; Therefore I desire that the Church of Christ in this Place may have an opportunity to hear and inquire further into the matter as the Gospel requires as soon as conveniently may be. Samuel Wright. Wilmington October 10th, 1767.”
       Meaning that he the said Samuel had heard the said Thomas commit wilfull and corrupt Perjury in a Tryal of a Cause wherein one Zacheus Hibberd was Plaintiff and one Jeremiah Bowen was Defendant at a Court held about the middle of September last before Josiah Johnson Esq. a Justice of the Peace for the County aforesaid, being a Court of Record, and that he the Said Thomas had refused to make Christian Satisfaction therefor when thereto required by the said Samuel, and that therefore he the said Samuel was dissatisfied and uneasy and desired the said Church would deal with the said Thomas according to the Rules prescribed in the Gospel with all convenient Speed.
       And the said Samuel afterwards, to wit, on the eleventh Day of October instant at Wilmington aforesaid of his further Malice had against the Plaintiff and still further intending and maliciously contriving to injure that Plaintiff did, in the Presence and hearing of diverse of our leige Subjects being members of the Church of Christ aforesaid with a loud Voice speak and publish the following Words, Vizt: “I” (meaning the said Samuel) “meant thereby” (Speaking of and meaning the Libel aforesaid) “to charge him,” (meaning the said Thomas) “with Perjury.”
       By means of which Libel so made and published by the said Samuel as aforesaid, and by the Means of the Words spoken and published by the said Samuel as aforesaid the said Thomas has sustained great Injury in his good name, Fame and Reputation and has been and yet is exposed and in Danger of being deprived of the Blessings, Benefits and Comforts of Church Communion and the holy ordinance of the Lords Supper and has been and yet is exposed to the Infamy and Disgrace of being degraded from his said Office of Deacon of the Church aforesaid and of being excommunicated or Suspended from Communion with all and every of the Churches of Christ thro’ the Land and has been and still is exposed to the Pains and Penalties of the Law for Perjury, from all which he has suffered grievous Pain and Anxiety of Mind and has been compelled to expend divers Sums of Money to manifest and make known his Innocence in the Premisses.
       All which is To the Damage of the said Thomas as he saith the Sum of five hundred Pounds, which shall then and there be made to appear, with other due Damages; And have you there this Writ, with your Doings therein. Witness Samuel Danforth Esq; at Cambridge the twenty sixth Day of October In the eighth Year of Our Reign, Annoque Domini, 1767.


Title: Adams’ Minutes of the Trial and Notes for His Argument: Middlesex Inferior Court, Charlestown, March 1768
From: Adams, John
To:

       Pierce vs. Wright.

        Sewall.

       Action of slander. Not directly charging Perjury.
       Things contrary to Truth and contrary to his holy Profession. Dishonorary to God, and Religion. I mean to charge him with Perjury.
       Witnesses.
       Buck. Charge in Writing. Mr. Morrill said the Charge was Perjury. Gave a Jogg. Let it go. I meant it so, and am able to prove it with several Aggravations. Church could not finish the Matter. Church did not refuse. Have done nothing. I took it he spoke to Mr. Merrill.
       Captn. Walker. Wright said Charge must be read. If I understand Grammar you have charged Pierce with Perjury. I meant it so, and can prove it with several Aggravations.
       Benja. Jaquith. Deposition. Vide.
       Joseph Lewis. Do you mean to charge him with Perjury or false swearing, or any thing of that sort. Answer, Yes, and I told them so yesterday.

       Moses Baron. Idem. Dont know but what Boin Bowen feed them. They did take a false oath.
       Revd. Mr. Morrill. Delivered Copy to Pierce. Wright had been according to Gospell Rule.
       Rich and Tucker. Satisfaction in a Christian Way.
       Sewall. Identicall Words unnecessary.
       Words of same import as those in the Declaration. Same Reason, as Declaration on a Promise.
       Q. Whether there is any such Thing as slandering a Man in the Church. Absurd Doctrine. Dangerous. The Worst Men may ruin the Characters of the best. And establishing Slander by a Law. Wreak Malice and Vengeance. Without are slanderers Lyars and Backbiters, not within. Should have been heard in the Church. What Right had the Church to try Perjury. Platform. All goes upon the supposition that the Charge is true, Q. about Writs, Petitions.
       Sewall. Definition of Libells. Bacon. Written Scandal, held in greatest Detestation.
       Ego. The Question that is made is Whether there is any such Thing as slander in the Church?
       Platform, Page 12, §2. Church Power is in the People.

       Page 24, §3. This Government is a mixed one.
       Page 25, §5. The Prerogative or Priviledge of the Church, in Choosing officers, in Admission of Members. Case of offence, any Brother hath Power to convince and admonish, and to take one or two, and to tell the Church. Admonition or Excommunication.
       Page 27, §9. It belongs to Elders to receive Accusations brought to the Church and to prepare them for the Churches Hearing, and to pronounce sentence with the Consent of the Church.
       Page 39. Of Excommunication and other Censures.
       Page 40, §3. Offence public, of an heinous and criminal Nature.

       Page 42, §8. Toleration of Profane and scandalous Livers, a great sin.
       In order to determine the Question, let us consider and enquire what a Church is? A Church is a voluntary society of Christians. Voluntary, because no Man is compellable to join with the Church. A society, a Body politick, framed for certain Ends. What are those Ends? Why their mutual Advancement in Knowledge, and their Growth in Piety and Virtue. Their Connexion is therefore spiritual, merely. No Concern with the Lives, Liberties, Estates or Reputations, of the Members any further than these have Relation to another, a future state. Jesus Christ is the great Head and Law giver of his Church. And Kings, Princes Parliaments and Judicatories, have no Concern with them as Church Members. One End of Church society, and Government is mutual Watch and Jealousy over each other, mutual Advice, Admonitions Censures, and that all evil Examples may be suppressed. And the only Punishment they have in their Power is Admonition or Excission. Thus the fundamental Principle of Ecclesiastical Polity is that as every Member is a Volunteer, if he will not submit to their Rules he shall be cut off. Come into our Company if you are qualified and will continue to be qualified i.e. continue in the Faith and order of the Gospell, but We will have the Right to examine your Qualifications before we admit you, and We will also hold the Right of observing your Life and Conversation, and if that should become sinfull and scandalous, we will expell you, and if you are not willing to submit to this, dont join Us. The Candidate agrees to this, and takes the Covenant.
       But when the Church assembles to admit and receive him, I say that every Church Member has a Right to object to him. And to give his Reasons. Now suppose a vicious Man should assert propound his Desires to come into full Communion. Would not the Church Members have a Right to go to the Minister and object, and to tell the Minister his objections. When the Church assemble would he not have a Right to tell the Church, that at such a Time he heard him tell a Lie, at such a Time he saw him drunk. At such a Time he heard him swear, and perjure himself. According to Mr. Sewall he would be liable to an Action of slander, if he did. If he is liable to an Action will not this forever cutt off the Priviledge of Church Members to object to the Admission of new ones. It is the same after Admission. Every Member may complain against every other. But says the Gentleman it will put it in the Power of the worst Men, to wreak their Malice and Revenge on the best? To this I answer, is it common for the worst Men to be Church Members! By no Means. Church Members are generally much more virtuous, and benevolent than others. It is not to be supposed that Churches will admit such malicious and revengefull Men to their fellowship. But if such an Instance should happen, that a wicked, malicious Man should deceive the Church, and be admitted, and should bring a malicious and false accusation against his Brother, He must do it publickly. He cant propagate his malicious Whispers in secresy. It must come before the Church, and be examined, and the Complainant must prove his accusation, and if he cannot, but appears to have done it from a factious malicious Spirit, he will himself fall under the Censure of the Church. The accused will be honourably acquitted, and the Accuser will be censured. And is not a Church a Competent Judge? Is not the Vote of a Church, concerning a fact, as good, after Examining Proofs as the Verdict of a Jury? Juries try Perjuries, Forgeries, Murders, Treasons, Blasphemies, and why should not the Churches try the same?
       Every Writing that contains a false Charge and Accusation vs. a Person is not a Libell. Writs and Declarations, Petitions to the General Court. Libel in the Spiritual Court.


Title: Editorial Note
From:
To:

       The Province Charter of 1691 provided that there should be “a liberty of Conscience allowed in the Worshipp of God to all Christians (Except Papists)” who inhabited Massachusetts. Despite these bold if less than all-embracing words, the faith of the founding Puritans constituted the “establishment” of the province. It continued as such beyond the time of independence and well into the 19th century. As the discussion in Pierce v. Wright,  No. 36, suggests, however, the term “establishment” is here used in a rather special sense. Local autonomy meant that Massachusetts had neither an established religion nor quite an established church.
       Nevertheless, there were established churches. Within each town in the Province at least one church or congregation—generally Calvinist in doctrine and congregational in polity—was entitled under the existing laws to receive special favors from the government. Statutes provided financial and other support for the church with which a majority in each “town or place” was affiliated. That majority in almost every case subscribed to doctrines which, however variant, had enough in common to occupy the broad theological center which was Congregationalism. Dissenters to the left and right might worship as they chose, but they were rarely in a position to receive the kind of state sanction and assistance accorded to the Congregational churches. Moreover, despite exemption acts, they had to battle constantly to avoid contributing to support the established order.
       The principal dissenting denominations in 18th-century Massachusetts were the Episcopalians, the Quakers, and the Baptists. All three fought establishment actively, but after about 1750, the Baptists were its chief opponents. Green v. Washburn is an example of the varied litigation which their struggle produced.
       Barely a year after the promulgation of the Charter, the basic principle of establishment was laid down by statute. “Able, learned, orthodox” ministers “of good conversation,” approved by a majority of the church-going voters in a “town or place” were to be supported by taxes levied upon all of the inhabitants. If a town was delinquent in providing itself with such a minister, the Court of General Sessions for the county could “take effectual care to procure and settle a minister qualified as aforesaid, and order the charge thereof and of such minister’s maintenance to be levied on the inhabitants of such town.” A dissenter was free to support his own church as well, but if he did so he paid twice.
       In 1724 the Privy Council ordered the remission of part of the province tax intended to support Congregational ministers in two towns in which a majority of the inhabitants were Quakers. This decision was itself of narrow effect, but the dissenters pressed the attack, perhaps inspired by the Board of Trade’s position that the tax in question was contrary to the Charter. At length, in 1728, having previously granted Episcopalians the right to have their taxes paid to their own pastors in certain cases, the General Court passed legislation relieving Quakers and Baptists (or “Anabaptists” as they were called) from taxes “assessed for the support of the minister or ministers of the churches established by the laws of this province.” Eligibility for exemption was first determined on the basis of attested lists of those who attended meeting and professed themselves Baptists or Quakers, which were to be furnished by principal members of the denominations in each town. A re-enactment in 1734 provided that lists of exempt Baptists were to be prepared by the town assessors, but omissions could be supplied on the certificate of “two principal members of that perswasion” that they believed omitted persons “to be conscientiously of their perswasion, and that they do frequently and usually attend their meetings for the worship of God, on the Lord’s Day.”

       After the Great Awakening of the 1740’s had left an irremediable split within Congregationalism, problems in the administration of these laws increased. The “New Lights,” who had supported the revivalist movement, in many cases formed Separate churches and sought the same tax relief that had been given earlier to the dissenting sects; but the “Old Lights,” and those New Lights who continued to support the established order, resisted, apparently finding outright dissent easier to tolerate than Separatism. The inspiration of the Great Awakening had also produced a division in the Baptist ranks between the old General Baptists with their Arminian beliefs and New Light Baptists, who adhered to the strict Calvinism of the revival. With doctrinal differences few, many Congregational Separates became Baptists, forming for themselves, or joining New Light Baptists in, what came to be called Separate Baptist churches. This development brought forth from the Standing Order and from unconverted Separates alike the charge that the converted ones had had themselves “dipped to wash away their taxes.” The criteria for determining who was a Baptist took on a new importance as this sudden growth in what had theretofore been a static and relatively innocuous minority began to threaten both the doctrinal and the financial stability of the established churches.
       To meet the situation the General Court tightened the exemption laws, requiring in an Act of 1753 that a Baptist’s certificate of faith and attendance was to be given by the minister of his church, as well as by two principal members, all of whom had to be vouched for in turn by three other Baptist churches. The latter requirement, which had proved most obnoxious to the Baptists, was eliminated in 1758 when a statute was enacted to replace all previous exemption acts for Baptists and Quakers, which had by then expired. The new measure carried forward the exemption in terms similar to those of previous acts, but provided that no person was to be “esteemed or accounted an Annabaptist” unless his name appeared on a list given to the assessors over the certificate of the minister and three principal members of his church to the effect that all those on the list were “really belonging thereto, that they verily believe them to be conscientiously of their perswasion, and that they do frequently and usually attend the publick worship in such church on the Lord’s day.” The first-quoted clause apparently added actual church membership to the requirements under earlier law.
       Since the assessors were often hostile toward those seeking exemption, these provisions produced much dispute and consequent litigation. A detailed study of this litigation based upon court records has yet to be made and cannot be undertaken here. Secondary sources and the documents in a few cases in which John Adams was involved indicate that the usual suit was one brought by the dissenting taxpayer against the town officials who had either collected the tax from him or had had his goods or body taken by way of distress. These suits seem to have turned principally on the questions whether the plaintiff’s eligibility for exemption was made out by his certificate, and whether the certificate itself was executed in proper form. And procedural points, common to all litigation in Massachusetts, were often present to cloud the issue.

       Although larger questions of fundamental rights may have been raised in argument, these cases can hardly be said to have adjudicated any such issues. The famous controversy concerning the Baptists of the town of Ashfield did seem to resolve more basic questions, but resolution took place on a level higher than that of the courts of the province. The earlier exemption acts had provided that the exemption should not “extend to new towns, granted upon condition of settling an orthodox minister and erecting a house for the public worship of God, till such time as those things are accomplished.” This provision was omitted from the 1758 exemption act, but since that statute applied to taxes levied in a “town, district, precinct, or parish,” the practice under the former act of denying exemption in unincorporated “plantations” was apparently continued. After the plantation of Huntstown was “erected into a town by the name of Ashfield” in 1765, indeed, the proprietors continued to assess ministerial taxes against all, regardless of religion. When the Baptists sought legislative relief, they were met with a special act which only strengthened the proprietors’ position, providing that the taxes should be levied against every part of each proprietor’s right, “in whose hands soever the same may be,” and that the lands of delinquents might be sold to pay the tax.

       Despite more petitions, the Baptists’ lands were sold in 1769 for nonpayment of the tax. The conflict which then arose brought forth a full range of the kind of argument on religious toleration and human rights with which today such controversies are customarily clothed. The General Court remained unmoved, but in 1771 the Ashfield Act came before the Privy Council and was disallowed. While the exact grounds of this decision are unknown, it in effect adopted a Board of Trade recommendation based on a broadly worded finding that “This Clause, whereby all persons of whatever sect or persuasion in religion, occupying Lands in this Township are equally and indiscriminately taxed for the support of the Independent Church therein established, is in our opinion equally unusual and unreasonable particularly in the case of the Sect commonly called the Antipedobaptists.”
       Perhaps as important to the Baptist churches as the right of their membership to freedom from ministerial taxes was the right of their ministers to the privileges and immunities of the established clergy. An act of 1760 provided that no assessments could be levied for the support of a minister who did not have either a suitable formal education, or the testimony of a majority of the clergy in his county that his learning was sufficient. Baptist ministers apparently both lacked the requisite learning and experienced great difficulty in obtaining the necessary support among their Congregational counterparts. As a result, in one well-known case, even though the majority in the town of South Brimfield were Baptists, they were not allowed to apply their taxes to the support of a minister of their own persuasion.
       A further problem was the status of the ministers themselves as taxpayers. The annual acts which authorized the towns to assess and levy province, county, and town taxes exempted a long list of persons, including “settled ministers.” In 1762, early in the Ashfield controversy, the town assessors, themselves Baptists, had applied this exemption to their minister, Ebenezer Smith. According to a later report by Smith and one of the assessors, a taxpayer complained to the Hampshire County Court of General Sessions that he had been “overrated.” The assessors were summoned and on the trial in May 1762, the court “would not suffer [them] to bring any Proof of the said Ministers Settlement neither by Certificate nor by living Evidence and said that if they should prove his Ordination yet he should not be free paying Taxes. And in the Conclusion cast 4 pounds lawful Money Charges on the two Assessors,” denying them an appeal to the Superior Court on the grounds that no appeal lay in such a case.
       These problems of ministerial status were at least partially resolved by Green v. Washburn. Nathaniel Green, pastor of what was known as the Second Baptist Church in Leicester, had been ordained a minister in October 1763, at which time he took charge of his congregation, which had gathered only the year before. Green’s church first met in Spencer, but soon moved to the western part of Leicester. Perhaps because of its pastor’s experiences, to be related, the church joined the newly formed Warren Association in 1768 and thus became part of the organized Separate Baptist movement for the attainment of religious liberty.

       In December 1767 when Seth Washburn and others, the assessors of Leicester, had levied the province, county, and town taxes upon Green, he had refused to pay. Accordingly, in February 1769, his body was taken in distress by the constable, and he was held in custody for several hours until he paid the tax. At the May 1769 Worcester Inferior Court, with John Worthington as his attorney, Green brought suit against Washburn and the other assessors in an action of the case, alleging that, knowing of his status as a settled minister, they had illegally assessed him, and had ultimately procured his arrest. Adams, for the assessors, entered a plea of not guilty, and the case went to trial.
       Adams’ minutes of the trial (printed below) suggest that he relied largely on the language of Province statutes dealing with the ministry to define the term “settled minister” in the tax act. The earliest statutes could be read to mean that only those “able, learned and orthodox” ministers who had been approved by a majority of the voters in a town and were to be supported by all of the town’s taxpayers were “settled.” The act of 1760, already referred to, seemed to add the further requirement of education, or at least ministerial approval. In contrast, the only Act which dealt with the qualifications of a Baptist minister required that for him to certify members of his church to the tax assessors he need have only certificates attesting to his faith from three other Baptist churches. James Putnam, who joined Adams, elaborated upon this theme in a brief but notable address which seemed to sum up all the contempt of the Harvard-bred establishment for the rude and argumentative religion of the Baptists.
       Worthington, citing Locke, argued for a broader construction of the tax act, urging that it covered any man chosen by his flock as a minister. Witnesses testified as to Green’s ordination and the size and continuing existence of his church. Despite other testimony apparently intended to show that, even among Baptists, Green’s was merely a splinter group not entitled to recognition as a church, the jury brought in a verdict for the plaintiff of £2 and costs. On appeal to the Superior Court in September 1769, with Adams no longer involved in the case, Green won again, although his recovery was reduced to£1 13s. 6 1/2d., the amount of the tax, and costs.

       If no great constitutional pronouncement came out of this case, the principle which it announced was nevertheless considered an important one. In his Church History of New England, Isaac Backus, a leading figure in the Warren Association and a participant in many such battles, capped his account of the storms of the 1760’s by reporting that “one thing that gave check to oppression was a determination of authority, that the ministers of the Baptist Churches were lawful ministers, so as to have a right to marry people, and to be exempted from civil taxes.” This “determination” took place in two Superior Court decisions, one of which was Green v. Washburn.


Title: Adams’ Minutes of the Trial: Worcester Inferior Court, Worcester, May 1769
From: Adams, John
To:

       Prov. Law. 16. 33. 386. Temporary Laws. About Certificates for Anabaptist Ministers and People, to be used in the Case following of

       Green vs. Washburn et als.
       Worthington. All wise States have seen the Necessity of some Religion for the Support of Society.

       The Happiness of British dominions that an order of Men. The Romans and Grecians would have thought themselves happy if they had had such an order of Men.
       All Ministers are exempted. By the annual Tax Act.
       Mr. Locks Definition of a Church. Ecclesia. A Number of Persons met to worship God. And that Man they choose for their Head shall be their Minister. He thinks him self as orthodox as any.
       A Number of People, whether they disliked their former Ministers. About 50 Men and Women agreed to meet. An Anabaptist Church and an Anabaptist Minister.
       Witnesses.
       Mr. Streeter. About 50 when called. 100 now. 7 male members. About as many females. In Octr. the ordination 1763. The Church unanimous. Not certain whether the Congregation voted. They belonged to Leicester, Spencer and Charlton. Green was a Mason by Trade.

       Mr. Alden. Mr. Green came to a general Meeting of the united Churches of the Anabaptist order. Mr. Stillman’s Church was not then one. Mr. Mannings of Providence was not then. We examined him, found him Sound in Principle, and of regular Conduct. We went and read certain Rules.
       We were sent to afterwards, and after being formed into a Council, and Enquiry after their Covenant &c., We ordaind him.

       Mr. Jacob. Of Killingsley. The Elder 18 Years.
       Hall. Dont work much, reads Bible and Annotations &c. 2 exempted.
       Mr. Alden and Mr. Jacobs broke fellowship with the Church I belonged to, and were formerly dealt with for so doing. Mr. Green, I understand, preaches in Charlton.
       Dr. Greens Society and Mr. Southgates, are in Leicester. Strict Communion, and Strict Principles. Mr. Alden said He thought he missed it in giving the Charge he did to Mr. Green.
       Mr. Putnam. Some Learning is necessary. Learning comes not by Inspiration, great Labour and study is necessary. The Law could not intend that every Man who shall start up, should be a Minister. He is learned in his Trade no doubt, and may understand his Bible, well eno’ to secure his own Salvation. But he is wrong in leading People off from their legal Pastors, and forming Seperations. He seperates for trifles, I cant think ’em essential. He cant communicate with them, because they dont insist on the Formality of laying on Hands. One Motive why he became a Preacher, might be, because he did not love to work.