Title: 1760. Aug. 9th.
From: Adams, John
To:

       Drank Tea at Coll. Quincys, with Coll. Gooch and Dr. Gardiner. I see Gooch’s fiery Spirit, his unguarded Temper. He Swears freely, boldly. He is a Widower, and delights to dwell, in his Conversation, upon Courtship and Marriage. Has a violent aversion to long Courtship. He’s a fool, that spends more than a Week, &c. A malignant Witt. A fiery, fierce outragious Enemy. He quarrells with all Men. He quarrelled with Coll. Quincy, and intrigued to dispossess him of his Regiment, by means of Dr. Miller and Mr. Apthorp. He now quarrells with Coll. Miller and Dr. Miller and Eb. Thayer. He curses all Governors. Pownal was a servant, Doorkeeper, Pimp to Ld. Hallifax, and he contracted with Ld. Hallifax to give him 15s. out of every Pound of his salary. So that Pownal had 25 pr. Cent Commissions, for his Agency, under Ld. Hallifax.
       Thersites in Homer, was,

          Aw’d by no shame, by no respect controuled
          In scandal busy, in Reproaches bold:
          With witty Malice studious to defame
          Scorn all his Joy and Laughter all his Aim.
          But chief he gloried with licentious style
          To lash the Great and Monarchs to revile.

         Thus we see that Gooches lived, as long ago as the siege of Troy.

          Spleen to Mankind his envyous Heart possesst
          And much he hated all, but most the best.
          Long had he liv’d the scorn of every Greek
          Vext when he spoke, yet still they heard him speak.

         His daughters have the same fiery Temper; the same witty malice. They have all, to speak decently, very smart Tempers, quick, sharp, and keen.

       An Insinuation, of Mr. Pownals giving 3/4 of his salary for his Commission.—This is with licentious style Governors to revile.—Coll. Miller can serve the Devil with as much Cunning, as any Man I know of, but for no other Purpose is he fit.—This is in scandal busy, in Reproaches bold.
       Gardiner has a thin Grashopper Voice, and an affected Squeak; a meager Visage, and an awkward, unnatural Complaisance: He is fribble.
       Query. Is this a generous Practice to perpetuate the Shruggs of Witt and the Grimaces of Affectation?


Title: 1760. Aug. 12th.
From: Adams, John
To:

       Remonstrated at the sessions vers. Licensing Lambard, because the select Men had refused to approbate him, because he never was approbated by the select men, to keep a Tavern in the House he now lives in, because there are already 3 and his would make 4 Taverns besides Retailers, within 3/4 of a Mile, and because he obtained a License from that Court, at April sessions, by artfully concealing his Removal from the Place where he formerly kept, and so by an Imposition on the Court. These Reasons prevailed. Majr. Miller, Coll. Miller and Ruddock, were the only Justices on Lambards side, while I had 8 or 9, Wendells, Coll. Phillips, Mr. Dana, Mr. Storer &c. &c. &c. Mr. Dana enquired, whether those Landing Places at Braintree and Weighmouth or the Road where these 4 Taverns stand was not a great stage for Travellers. I answered no, and rightly, for the greatest stage that I knew of from Boston to Plymouth, is in the North Precinct of Braintree, where Mr. Bracket, but especially where Mr. Bass now keeps. Where Mr. Bass now keeps, there has been a Tavern, always since my Remembrance, and long before. It is exactly 10 miles from Town, and therefore a very proper stage for Gentlemen who are going from Boston down to Plymouth, and to the Cape, and for People who come from the Cape, towards this Town. And there are very few Travellers either bound to or from Boston, but what stop here, but this stage is 2 or 3 Miles from the Place in Question. These Things I should have said, but they did not then occur.
       Dana asked next, what Number of Carters, Boatmen, Shipbuilders &c. were ever employed at a Time, at that Landing Place? I answered half a dozen Carters perhaps. But my Answer should have been this. At some times there are 3 or 4 or half a dozen Ship Carpenters, and it is possible there may have been 2 or 3 Boats at that Wharf at a Time, which will require 1/2 dozen Boatmen, and there has been perhaps 40 Carts in a day with stones, and Wood and Lumber, but these Carts are coming and going all Day long so that it is a rare thing to see half a dozen Carts there at a time. In short there is so much Business done there, as to render one Tavern necessary, but there is not so much Business, there is no such Concourse of Travellers, no such Multitudes of busy People at that Landing as to need all this Cluster of Taverns. One Tavern and one Retailer was tho’t by the select Men quite sufficient for that Place. They have Appointed one of each, and pray that your Honors would recognize no more.


Title: [August 1760]
From: Adams, John
To:

      August 3d. 1760.

       Hollis has appealed. If he prosecutes his Appeal, he shall be paid. I believe there never was an Action in this Court where more Instances of Ignorance, Negligence and Inattention appeared on one side, and of Artifice, Secresy and Guile I must say Guile on the other, since it was erected. Let me draw a Picture of the Defendants stupidity, and of Plaintiffs Knavery. Neglect to acknowledge the Deed, to record it. Then the Loss of it, intrusting the Agreement that obliged him to allow the wanting of Land on these Bonds, in Hollis’s own hands; then leaving the survey, in Hollis’s Hands. Paying him sums of Money abroad, and confiding in his Honour to indorse them—and consenting to do Business with him alone. On the other side Hollis has been watchful to draw every Tittle of evidence within his own Power. I dare not say he has the Deed of the Land but he has got the Agreement, and he has the survey and he has been careful never to receive money of us before Witness when he could help it, and he never would give any Receipts. He would promise to indorse upon the Bond but he never did it. Nay he had the assurance to tell us at last, that he never would do any Business with us again, if we brought any 3d Person with us. We thought ourselves ill used several Times. We were ignorant of Numbers and Calculations, can but just write our Names, and we had a Desire that somebody better skilled than we should calculate and settle for us. Accordingly we got once or twice some of our Neighbours, to go with us And see that we want defrauded. But he never would do any Business with us, and at last he told them to their Heads, if you ever bring Deacon Penniman, or any other Man with you again when you come to settle with me, I’le go directly off and leave you and will do nothing with you.
       I must explain and prove Towers Payment of one half, at large, and then Haydens Payment of £270, and a Book Debt, and the Indorsements which made the 6 Bonds that Hayden took up.

   Thus in MS, for “wa’nt” (wasn’t or weren’t).

      1760. Aug. 9th.

       Drank Tea at Coll. Quincys, with Coll. Gooch and Dr. Gardiner. I see Gooch’s fiery Spirit, his unguarded Temper. He Swears freely, boldly. He is a Widower, and delights to dwell, in his Conversation, upon Courtship and Marriage. Has a violent aversion to long Courtship. He’s a fool, that spends more than a Week, &c. A malignant Witt. A fiery, fierce outragious Enemy. He quarrells with all Men. He quarrelled with Coll. Quincy, and intrigued to dispossess him of his Regiment, by means of Dr. Miller and Mr. Apthorp. He now quarrells with Coll. Miller and Dr. Miller and Eb. Thayer. He curses all Governors. Pownal was a servant, Doorkeeper, Pimp to Ld. Hallifax, and he contracted with Ld. Hallifax to give him 15s. out of every Pound of his salary. So that Pownal had 25 pr. Cent Commissions, for his Agency, under Ld. Hallifax.
       Thersites in Homer, was,

          Aw’d by no shame, by no respect controuled
          In scandal busy, in Reproaches bold:
          With witty Malice studious to defame
          Scorn all his Joy and Laughter all his Aim.
          But chief he gloried with licentious style
          To lash the Great and Monarchs to revile.

         Thus we see that Gooches lived, as long ago as the siege of Troy.

          Spleen to Mankind his envyous Heart possesst
          And much he hated all, but most the best.
          Long had he liv’d the scorn of every Greek
          Vext when he spoke, yet still they heard him speak.

         His daughters have the same fiery Temper; the same witty malice. They have all, to speak decently, very smart Tempers, quick, sharp, and keen.

       An Insinuation, of Mr. Pownals giving 3/4 of his salary for his Commission.—This is with licentious style Governors to revile.—Coll. Miller can serve the Devil with as much Cunning, as any Man I know of, but for no other Purpose is he fit.—This is in scandal busy, in Reproaches bold.
       Gardiner has a thin Grashopper Voice, and an affected Squeak; a meager Visage, and an awkward, unnatural Complaisance: He is fribble.
       Query. Is this a generous Practice to perpetuate the Shruggs of Witt and the Grimaces of Affectation?

   Long afterward JA wrote a detailed account of the method by which Joseph Gooch displaced John Quincy of Mount Wollaston as colonel of the Suffolk militia in 1742; see JA to Jonathan Mason, 3 Oct. 1820, which gives a considerable account of Gooch (Adams Papers; extracts quoted in JA, WorksThe Works of John Adams, Second President of the United States: with a Life of the Author, ed. Charles Francis Adams, Boston, 1850–1856; 10 vols., 2:93, note). Since the Quincy and Adams families were united by JA’s marriage (his wife being a granddaughter of Col. John Quincy and their eldest son being named for him), any retrospective account by an Adams is likely to be prejudiced. But the reference in JA’s Diary, it should be noted, antedates the union of the families.

   According to JA, Gooch, who was well-to-do, made a bargain with leading Anglicans, including Rev. Ebenezer Miller, minister of Christ Church in Braintree, offering to build a steeple for Christ Church if his influential friends could persuade Governor Shirley to obtain the colonelcy for Gooch. Shirley did so, but the new colonel proved highly unpopular in Braintree and before long moved to Milton without carrying out his part of the bargain. Deacon John Adams had had a part in this affair, as his son recalled: the elder Adams had been a lieutenant in the militia, but upon being offered a captaincy under Gooch he declined to serve under any other officer than Quincy.

   Trifling, frivolous (OEDThe Oxford English Dictionary, Oxford, 1933; 12 vols. and supplement.). This comment on Dr. Gardiner appears to be JA’s own, though by arbitrarily enclosing this paragraph in quotation marks in his text of the Diary CFA attributes it to Gooch and thus makes him the subject of JA’s rebuke in the next paragraph; see JA, WorksThe Works of John Adams, Second President of the United States: with a Life of the Author, ed. Charles Francis Adams, Boston, 1850–1856; 10 vols., 2:95. It is more likely that JA is rebuking himself.

      1760. Aug. 12th.

       Remonstrated at the sessions vers. Licensing Lambard, because the select Men had refused to approbate him, because he never was approbated by the select men, to keep a Tavern in the House he now lives in, because there are already 3 and his would make 4 Taverns besides Retailers, within 3/4 of a Mile, and because he obtained a License from that Court, at April sessions, by artfully concealing his Removal from the Place where he formerly kept, and so by an Imposition on the Court. These Reasons prevailed. Majr. Miller, Coll. Miller and Ruddock, were the only Justices on Lambards side, while I had 8 or 9, Wendells, Coll. Phillips, Mr. Dana, Mr. Storer &c. &c. &c. Mr. Dana enquired, whether those Landing Places at Braintree and Weighmouth or the Road where these 4 Taverns stand was not a great stage for Travellers. I answered no, and rightly, for the greatest stage that I knew of from Boston to Plymouth, is in the North Precinct of Braintree, where Mr. Bracket, but especially where Mr. Bass now keeps. Where Mr. Bass now keeps, there has been a Tavern, always since my Remembrance, and long before. It is exactly 10 miles from Town, and therefore a very proper stage for Gentlemen who are going from Boston down to Plymouth, and to the Cape, and for People who come from the Cape, towards this Town. And there are very few Travellers either bound to or from Boston, but what stop here, but this stage is 2 or 3 Miles from the Place in Question. These Things I should have said, but they did not then occur.
       Dana asked next, what Number of Carters, Boatmen, Shipbuilders &c. were ever employed at a Time, at that Landing Place? I answered half a dozen Carters perhaps. But my Answer should have been this. At some times there are 3 or 4 or half a dozen Ship Carpenters, and it is possible there may have been 2 or 3 Boats at that Wharf at a Time, which will require 1/2 dozen Boatmen, and there has been perhaps 40 Carts in a day with stones, and Wood and Lumber, but these Carts are coming and going all Day long so that it is a rare thing to see half a dozen Carts there at a time. In short there is so much Business done there, as to render one Tavern necessary, but there is not so much Business, there is no such Concourse of Travellers, no such Multitudes of busy People at that Landing as to need all this Cluster of Taverns. One Tavern and one Retailer was tho’t by the select Men quite sufficient for that Place. They have Appointed one of each, and pray that your Honors would recognize no more.

      1760 Aug. 19th.

       I began Popes Homer, last Saturday Night was a Week, and last Night, which was Monday night I finished it. Thus I found that in seven days I could have easily read the 6 Volumes, Notes, Preface, Essays, that on Homer, and that on Homers Battles and that on the funeral Games of Homer and Virgil &c. Therefore I will be bound that in 6 months I would conquer him in Greek, and make myself able to translate every Line in him elegantly.
       Prat. It is a very happy Thing to have People superstitious. They should believe exactly as their Minister believes. They should have no Creeds and Confessions of Faith. They should not so much as know what they believe. The People ought to be ignorant. And our Free schools are the very bane of society. They make the lowest of the People infinitely conceited. (These Words I heard Prat utter. They would come naturally enough from the mouth of a Tyrant or of a King or Ministry about introducing an Arbitrary Power; or from the mouth of an ambitious or avaricious Ecclesiastic, but they are base detestable Principles of slavery. He would have 99/100 of the World as ignorant as the wild Beasts of the forest, and as servile as the slaves in a Galley, or as oxen yoked in a Team. He a friend to Liberty? He an Enemy to slavery? He has the very Principles of a Frenchman—worse Principles than a Frenchman, for they know their Belief and can give Reasons for it.)
       Prat. It grieves me to see any sect of Religion extinguished. I should be very sorry, to have the Quaker Society dissolved, so I should be sorry to have Condy’s Anabaptist Society dissolved. I love to see a Variety. A Variety of Religions has the same Beauty in the Moral World, that a Variety of flowers has in a Garden, or a Variety of Trees in a forrest.
       This fine speech was Prats. Yet he is sometimes of opinion that all these Sectaries ought to turn Churchmen, and that a Uniform Establishment ought to take place through the whole Nation. I have heard him say, that We had better all of us come into the Church, than pretend to overturn it &c. Thus it is, that fine Speechmakers are sometimes for Uniformity, sometimes for Variety, and Toleration. They dont speak for the Truth or Weight but for the Smartness, and Novelty, singularity of their speech. However I heard him make two Observations, that pleased me much more. One was that People in Years never suppose that young People have any Judgment. Another Was, (when a Deposition was produced taken by Parson Wells, with a very incorrect Caption, a Caption without mention of the Cause in which it was to be used, or certifying that the Adverse Party was present or notifyed) he observed that the Parson could not take a Caption, to save his Life, and that he knew too much to learn any Thing.

   For the editions of Pope’s translations of the Iliad and Odyssey owned by JA, see Catalogue of JA’s LibraryCatalogue of the John Adams Library in the Public Library of the City of Boston, Boston, 1917., p. 122–123.

   A line across the page in the MS separates the present paragraph from those reporting Prat’s observations that follow; the latter may therefore have been recorded at any time from 19 Aug. to 23 Sept. 1760.


Title: 1760. Septr. 24th.
From: Adams, John
To:

       Ephraim Jones, being a Widower and having two Children by a former Wife marries another, and soon after dies, leaving a Widow, and the two Children, mentioned before. The Widow takes one third of the personal Estate, for ever, and is endowed of one third of the real Estate, which she lets out to one Tower, as we say to the Halves. Tower breaks up, and plants 1/2 a dozen Acres of the Land with Corn, which he ploughs and hoes &c. till the 20th of September, when The Widow his Lessor dies, having given by her Will, all her Estate to her Relations, Strangers to her late Husband and his Heirs. Now The Question is whether, the one half of the Produce and profits of this Land which the Widow was by Contract to have had, shall go to the Executor of her Will, and so to her Legatees, or else to the Right Heirs, of the Reversion of the Land, expectant on the Widows Death? And Q. also, whether, the said Right Heirs have the Property of the feed and the Apples, and such other fruits as the Earth produces spontaneously, or at least without any immediate Expence and Industry, of the late Tenant in Dower: and Q. also whether the Possession of the Land vests in the Right heir Eo Instante that the Widow dies, so that he has an immediate Right of Entry, or Whether the Lessee has not Possession, so that he must be ejected?


Title: Septr. 24th. 1760.
From: Adams, John
To:

       If I am the Proprietor of an House, and I lease it to any Man, and bind my self to keep it in Repair, it is reasonable and it is Law, that I should have a Rent. So if I am the owner of a ship, and I let it out on a Voyage to the Wist Indies or to Europe it is reasonable, and the maritime Law has made provision that I should have freight. For the sum of Money, that an House or a Ship would Cost, would if placed out, on Interest, bring in Annually 6 pr. Cent for my Use. Now I cant loose the Interest of my money, and besides my House is constantly wearing and decaying and my ship and her Cordage and her Canvas are continually wearing, so that the Rent and the freight ought to be sufficient to enable me to make these Repairs: But besides this, all Merchants, all Persons who have Property, in shipping, in Vessells that sail upon the sea, are in a peculiar manner liable to Accidents and Misfortunes. They are in Danger, from storms, from Rocks and sands, and they are in Danger from Pyrates and frenchmen, so that the Law, in establishing the freight of Vessells has made allowance, for these 3 things—for the Interest of Money on the Capital, for the Constant Expences in Repairing the Hull and the Cordage and the sails, and for the peculiar Danger from seas, Winds, Rocks and Enemies, which constantly environ Vessells on the sea. And accordingly the freight or Rent of shipping is very high in all foreign Voyages. Well, now the same Reasons, which have established a freight upon Vessells in foreign Voyages, has by Law established a certain share of the Profits of this schooner now in Controversy. But the Case, which is more precisely parrallel to this of Mr. Lovell, and which is decisive in this Case, is that of Whaling Voyages. In Whaling Voyages, off the shoals of Nantuckett, and in those to Hudsons Bay, there is frequently, a Master of a Vessell, and a Master of the Voyage i.e. a ship is taken into the service, and Whale Boats put on Board her. The Vessell sails into the Whaling Latitudes, and then puts her Boats to sea after the Whales. The Whales are taken on Board the Vessell, and brought home to Cape Cod we’l say, in a sort of Blubber. Wel there, at Cape Cod they frequently hire other People, People who had no Concern with the Voyage, to boil that Blubber into oil. When that is done the oyl is sent up to Boston and sold by Persons who are allowed Commissions for their Pains and after the Oyl is sold, the Established Rule is, to pay all the Costs of Boiling the Blubber and the Commissions arising on the sales and then the Vessell which went out upon the Voyage draws one Quarter of the whole Profits of the Voyage. But the particular Custom which has prevailed among these small Lighters, and schooners that run out a fishing, where there is not so much Danger of Shipwreck, is that the schooner or Lighter shall draw one fifth Part of the Profits of the Voyage. If a schooner runs out in the Harbour a fishing the schooner draws every fifth fish, and whenever they have taken up any drifted Timber or Shingles or Boards, the same proportion has been observed. I have known several Instances in which our Braintree Boats have taken up valuable things adrift, in Cases where there has been no danger to the Lighter, only her time has been consumed, and the Boat always drew one fifth of such drifted Timber as well as of the fish. The only thing, that I can think of, and which the first  to its utmost extent  think of, as I believe to distinguish this Case from any of the 3 that I have mentioned, either from that of a ship on a foreign Voyage or of any Vessell on a Whaling Voyage or of common Lighters and schooners on fishing Voyages, is this. That the schooner was not stout enough to weigh the Anchor and they were obliged to hire another Vessell to go down a Weight i.e. and weigh it.—I beg your Honor’ s careful Attention to this Point, because I suppose the whole stress of the Cause will be laid upon it, by the other side.—Now this I insist upon it can make no Alteration in the Case at all. For Mr. Lovells Vessell went out, upon the supposition that she should draw 1/5 of the whole Profits of the Voyage, 1/5 of all the fish, that should be caught, and 1/5 of every Thing that he found adrift upon the surface or drawn upon from the Bottom of the Sea. And without this Prospect of 1/5 of the Profits, he would not have let her gone. He could have gone in her himself and made Profits by her or he could have let her out to others who would have minded their fishing, and so have gained Profits for him as well as for themselves. Suppose it had been said to Mr. Lovell, let us have your schooner to go out a fishing, and if we catch any, you shall have a fifth, but if we catch none, you shall have nothing and I believe we shant for we intend to spend most of our time in Poking after an Anchor or a Chest of Gold, that we suppose to be lost out in the Harbour; but if we should find this Anchor or Chest your schooner is not able to weight it, and so you shall have no Part of that.
       Would Captn. Lovell have consented to that. No he would have laughed at them for fools to think he would, or have frowned upon them in Resentment of an Affront, for such a Proposal in Earnest would have been an affront. Well now what he could not have been desired reasonably to have consented to before the Voyage Your Honor cant desire him to do, and the Law will not oblige him to do after the Voyage. The Time of the Schooner was spent in securing of the anchor, time in which she might have earned him money either in fighting or fishing, his Vessell, his Ropes, and Sails were worn in the service, which will cost him money to repair; and what is worse than both the former, his Property was endangered, his Anchor was in great Risque of being irrecoverably lost in the first Place by its Entanglement with the large Anchor at the Bottom, and afterwards by the Use they made of it in raking at the Bottom to bring up the Cable of the great Anchor. And to say that the great Anchor was not weighed by his schooner is to say nothing. It was secured by his schooner, and totally by his schooner.
       I say too that the Whales are not taken, cannot be taken by the ship. They are taken by the Whale Boats: I say too that the ship cant boil the Blubber up into oyl. But what then? The ship’s time is spent, she is wearing out, and she is endangered, and therefore she shall draw a Quarter of the Neat Profits of the Voyage after Wages for Boiling and Commissions for selling, are paid. This I rely upon, this schooners being unable to weigh the Anchor, is exactly like the ship in Hudsons bays being unable to chase and take the Whales. And their hiring another Vessell to go down, and weigh it, is like Whale mens hiring other Men to boil their blubber, and to sell their Oyl, and that this schooner has as good a Right to 1/5 of the 2/3 after the one third is taken out, which by Agreement was given to the Vessell that weighed it, as a Whaling Vessell has to one fourth of the whole Profits of the Voyage after enough has been taken out to pay the Boilers and factors.
       And nothing can be more reasonable. Suppose I should Agree with a Man, to let him have my Horse to Rhode Island to purchase a Quantity of Goods, and he engages I shall have one fifth or one Qr. of the Profits of his Journey. Well when he gets upon Seachonk Plain, He finds a Number of People there a horse racing. He challenges every Horse upon the Plain to run. At last they run for 100 Guineas which my Horse wins. Would it not be reasonable that I should have a Proportion of that Prize? Shall the Man that I let him to, run the Hazard of breaking the Neck, or Limbs or Wind of my Horse. Shall he strain, and violently drive him so as uterly to mar him very much; and I have no Recompence at all? By no means. Your Honor cant but see, we have a Right, and I dont doubt youl give it us.
       Perhaps some Difficulty may arise in your Honours mind about the Propriety of the manner of laying this Action. It is an Indebitatus Assumpsit for so much Money had and received by the Defendant, to the Use of the Plaintiffs, and it is alledged that the Defendant promised to render a reasonable Account. But this is the constant form of Suing for things of this sort. If I upon a Reckoning and settlement with a man pay him by a Mistake £20 more than is due to him, I may recover it back, by this Action, i.e. he has had and received so much money, which did not belong to him but to me, so if Money is due to me from another man, and some 3d Person goes to him, and under Pretence of Authority from me, receives that Money, I may have this Action against him. And in general if any man has received Money, which did not belong to him, but does belong to me, I may recover it of him by this Action. Now I think it is plain that Mr. Ward has received the sum mentioned in this Writ, that it did not belong to him but it did of right belong to the owners of the schooner the present Plaintiffs, and therefore it follows that he is accountable to us for it, and I dont doubt your honour will think so too.


Title: [September 1760]
From: Adams, John
To:

      1760. Septr. 24th.

       Ephraim Jones, being a Widower and having two Children by a former Wife marries another, and soon after dies, leaving a Widow, and the two Children, mentioned before. The Widow takes one third of the personal Estate, for ever, and is endowed of one third of the real Estate, which she lets out to one Tower, as we say to the Halves. Tower breaks up, and plants 1/2 a dozen Acres of the Land with Corn, which he ploughs and hoes &c. till the 20th of September, when The Widow his Lessor dies, having given by her Will, all her Estate to her Relations, Strangers to her late Husband and his Heirs. Now The Question is whether, the one half of the Produce and profits of this Land which the Widow was by Contract to have had, shall go to the Executor of her Will, and so to her Legatees, or else to the Right Heirs, of the Reversion of the Land, expectant on the Widows Death? And Q. also, whether, the said Right Heirs have the Property of the feed and the Apples, and such other fruits as the Earth produces spontaneously, or at least without any immediate Expence and Industry, of the late Tenant in Dower: and Q. also whether the Possession of the Land vests in the Right heir Eo Instante that the Widow dies, so that he has an immediate Right of Entry, or Whether the Lessee has not Possession, so that he must be ejected?

   This entry and virtually all of those that follow concerning law cases through 3 Nov. 1760 were omitted by CFA in editing JA’s Diary.

      Septr. 24th. 1760.

       If I am the Proprietor of an House, and I lease it to any Man, and bind my self to keep it in Repair, it is reasonable and it is Law, that I should have a Rent. So if I am the owner of a ship, and I let it out on a Voyage to the Wist Indies or to Europe it is reasonable, and the maritime Law has made provision that I should have freight. For the sum of Money, that an House or a Ship would Cost, would if placed out, on Interest, bring in Annually 6 pr. Cent for my Use. Now I cant loose the Interest of my money, and besides my House is constantly wearing and decaying and my ship and her Cordage and her Canvas are continually wearing, so that the Rent and the freight ought to be sufficient to enable me to make these Repairs: But besides this, all Merchants, all Persons who have Property, in shipping, in Vessells that sail upon the sea, are in a peculiar manner liable to Accidents and Misfortunes. They are in Danger, from storms, from Rocks and sands, and they are in Danger from Pyrates and frenchmen, so that the Law, in establishing the freight of Vessells has made allowance, for these 3 things—for the Interest of Money on the Capital, for the Constant Expences in Repairing the Hull and the Cordage and the sails, and for the peculiar Danger from seas, Winds, Rocks and Enemies, which constantly environ Vessells on the sea. And accordingly the freight or Rent of shipping is very high in all foreign Voyages. Well, now the same Reasons, which have established a freight upon Vessells in foreign Voyages, has by Law established a certain share of the Profits of this schooner now in Controversy. But the Case, which is more precisely parrallel to this of Mr. Lovell, and which is decisive in this Case, is that of Whaling Voyages. In Whaling Voyages, off the shoals of Nantuckett, and in those to Hudsons Bay, there is frequently, a Master of a Vessell, and a Master of the Voyage i.e. a ship is taken into the service, and Whale Boats put on Board her. The Vessell sails into the Whaling Latitudes, and then puts her Boats to sea after the Whales. The Whales are taken on Board the Vessell, and brought home to Cape Cod we’l say, in a sort of Blubber. Wel there, at Cape Cod they frequently hire other People, People who had no Concern with the Voyage, to boil that Blubber into oil. When that is done the oyl is sent up to Boston and sold by Persons who are allowed Commissions for their Pains and after the Oyl is sold, the Established Rule is, to pay all the Costs of Boiling the Blubber and the Commissions arising on the sales and then the Vessell which went out upon the Voyage draws one Quarter of the whole Profits of the Voyage. But the particular Custom which has prevailed among these small Lighters, and schooners that run out a fishing, where there is not so much Danger of Shipwreck, is that the schooner or Lighter shall draw one fifth Part of the Profits of the Voyage. If a schooner runs out in the Harbour a fishing the schooner draws every fifth fish, and whenever they have taken up any drifted Timber or Shingles or Boards, the same proportion has been observed. I have known several Instances in which our Braintree Boats have taken up valuable things adrift, in Cases where there has been no danger to the Lighter, only her time has been consumed, and the Boat always drew one fifth of such drifted Timber as well as of the fish. The only thing, that I can think of, and which the first  to its utmost extent  think of, as I believe to distinguish this Case from any of the 3 that I have mentioned, either from that of a ship on a foreign Voyage or of any Vessell on a Whaling Voyage or of common Lighters and schooners on fishing Voyages, is this. That the schooner was not stout enough to weigh the Anchor and they were obliged to hire another Vessell to go down a Weight i.e. and weigh it.—I beg your Honor’ s careful Attention to this Point, because I suppose the whole stress of the Cause will be laid upon it, by the other side.—Now this I insist upon it can make no Alteration in the Case at all. For Mr. Lovells Vessell went out, upon the supposition that she should draw 1/5 of the whole Profits of the Voyage, 1/5 of all the fish, that should be caught, and 1/5 of every Thing that he found adrift upon the surface or drawn upon from the Bottom of the Sea. And without this Prospect of 1/5 of the Profits, he would not have let her gone. He could have gone in her himself and made Profits by her or he could have let her out to others who would have minded their fishing, and so have gained Profits for him as well as for themselves. Suppose it had been said to Mr. Lovell, let us have your schooner to go out a fishing, and if we catch any, you shall have a fifth, but if we catch none, you shall have nothing and I believe we shant for we intend to spend most of our time in Poking after an Anchor or a Chest of Gold, that we suppose to be lost out in the Harbour; but if we should find this Anchor or Chest your schooner is not able to weight it, and so you shall have no Part of that.
       Would Captn. Lovell have consented to that. No he would have laughed at them for fools to think he would, or have frowned upon them in Resentment of an Affront, for such a Proposal in Earnest would have been an affront. Well now what he could not have been desired reasonably to have consented to before the Voyage Your Honor cant desire him to do, and the Law will not oblige him to do after the Voyage. The Time of the Schooner was spent in securing of the anchor, time in which she might have earned him money either in fighting or fishing, his Vessell, his Ropes, and Sails were worn in the service, which will cost him money to repair; and what is worse than both the former, his Property was endangered, his Anchor was in great Risque of being irrecoverably lost in the first Place by its Entanglement with the large Anchor at the Bottom, and afterwards by the Use they made of it in raking at the Bottom to bring up the Cable of the great Anchor. And to say that the great Anchor was not weighed by his schooner is to say nothing. It was secured by his schooner, and totally by his schooner.
       I say too that the Whales are not taken, cannot be taken by the ship. They are taken by the Whale Boats: I say too that the ship cant boil the Blubber up into oyl. But what then? The ship’s time is spent, she is wearing out, and she is endangered, and therefore she shall draw a Quarter of the Neat Profits of the Voyage after Wages for Boiling and Commissions for selling, are paid. This I rely upon, this schooners being unable to weigh the Anchor, is exactly like the ship in Hudsons bays being unable to chase and take the Whales. And their hiring another Vessell to go down, and weigh it, is like Whale mens hiring other Men to boil their blubber, and to sell their Oyl, and that this schooner has as good a Right to 1/5 of the 2/3 after the one third is taken out, which by Agreement was given to the Vessell that weighed it, as a Whaling Vessell has to one fourth of the whole Profits of the Voyage after enough has been taken out to pay the Boilers and factors.
       And nothing can be more reasonable. Suppose I should Agree with a Man, to let him have my Horse to Rhode Island to purchase a Quantity of Goods, and he engages I shall have one fifth or one Qr. of the Profits of his Journey. Well when he gets upon Seachonk Plain, He finds a Number of People there a horse racing. He challenges every Horse upon the Plain to run. At last they run for 100 Guineas which my Horse wins. Would it not be reasonable that I should have a Proportion of that Prize? Shall the Man that I let him to, run the Hazard of breaking the Neck, or Limbs or Wind of my Horse. Shall he strain, and violently drive him so as uterly to mar him very much; and I have no Recompence at all? By no means. Your Honor cant but see, we have a Right, and I dont doubt youl give it us.
       Perhaps some Difficulty may arise in your Honours mind about the Propriety of the manner of laying this Action. It is an Indebitatus Assumpsit for so much Money had and received by the Defendant, to the Use of the Plaintiffs, and it is alledged that the Defendant promised to render a reasonable Account. But this is the constant form of Suing for things of this sort. If I upon a Reckoning and settlement with a man pay him by a Mistake £20 more than is due to him, I may recover it back, by this Action, i.e. he has had and received so much money, which did not belong to him but to me, so if Money is due to me from another man, and some 3d Person goes to him, and under Pretence of Authority from me, receives that Money, I may have this Action against him. And in general if any man has received Money, which did not belong to him, but does belong to me, I may recover it of him by this Action. Now I think it is plain that Mr. Ward has received the sum mentioned in this Writ, that it did not belong to him but it did of right belong to the owners of the schooner the present Plaintiffs, and therefore it follows that he is accountable to us for it, and I dont doubt your honour will think so too.

   Second entry so dated. This draft of JA’s argument in Lovell v. Ward was hastily and carelessly written and a few passages remain obscure.

   Two or three words illegible.


Title: Octr. 7th. 1760.
From: Adams, John
To:

       Waited on Mr. Gridley for his Opinion of my Declaration Lambard v. Tirrell, and for his Advice, whether to enter the Action or not. He says the Declaration is bad and the Writ, if Advantage is taken, will abate.
       For It is a Declaration on a Parol Lease, not on a Deed, and therefore the Lessee’s Occupancy ought to be sett forth very exactly, for it is his Occupancy, not any Contract, that supports the Action.—You have declared, that Defendant by Virtue of the Demise, into the Tenements, entered, and the same Premises had, held and occupied. But you have not declared when he entered, nor how long he occupied. He might enter, and remove again from the Premises in 3 months, for ought appears on this Declaration. You have taken this Declaration from a Precedent of Lillies. But Lilly and Mallorry are not Authorities, Coke and Rastall are, and in them, the Distinction is taken between a Declaration on a Lease Parol, and one on a Deed, an Indenture. In a Declaration on an Indenture, it is not necessary to set forth when the Defendant entered nor how long he held: because by the Indenture he had a Right to enter and occupy, if he would, but whether he occupied, or not, he has indented to pay the Rent, when the time is out: But in a Declaration, on a Parol Lease, it is necessary to set forth, both when he entered and how long he stayed, because the Occupancy is the Cause and foundation of the Action. Besides you have not alledged that the Rent was to be yeilded and payd upon Demand, and this would abate the Writ.—Mr. Gridley sent me to Otis’s office to examine in Viners Abrigment, under the Title Rent, and in the Entries, i.e. Lilly, Mallorry, Coke, and Rastal, under the Title Debt, for some Authority to decide the Point whether the Exception was fatal, or not. I could find nothing in Viner, Lilly, or Mallorry, but Mr. Gridley shewed me in Coke and Rastall the Distinction taken between a Declaration on a Parol and on a Written Lease.
       G. says, that an Indenture for the Year 1758, att a certain Rent; and the Lessees Continuance in the House, and the Lessors Permission to continue in the House, thro the Year 1759 without any new Indenture, or any Contract or Conversation about any Rent, is presumptive Evidence, that Each Party intended, the Rent should continue the same. The Lessees Continuance, in the House, without taking the Pains of going to the Lessor, to treat about new Terms, is sufficient Evidence of his Satisfaction with the old Terms and of his Consent to pay the old Rent. And the Lessors Permission of his Tenant to continue in the House, without taking the Pains to make a new Contract, is sufficient Evidence of his satisfaction with the old Terms, and of his Consent that they should continue.


Title: 1760. Oct. 9th.
From: Adams, John
To:

       In Support of Complaint in Case Neal’s Action is not entered.
       I do not know, nor is it possible for your Honours to determine, what Reason induced the Plantiff to renounce this suit. Whether it was, because the Estate is insolvent, or because he had no Cause of Action, or because his Action was mislayed, or because his Writ was bad, which by the Way is very probable, considering who drew it, that determined the Plantiff, not to enter this Action, I cannot say, and your Honours cannot determine. It appears to your Honours, that the Defendant has been vexed and distressed by this summons, that she has been obliged to take a Journey to this Town, and to attend upon this Court, where it appears there is nothing for her to answer to. All this appears. What Motive induced the Plantiff to drop his Action does not appear, and therefore We have a Right to Costs. As Things are Circumstanced, I will own, that had this Action been commenced by any Gentleman, at this Bar, I would have dispensed with this Complaint, but it was drawn by a petty fogging Deputy Sheriff against whom I know it is my Duty, and I think it is my Interest to take all legall Advantages. And he himself cannot think it hard, as he has taken both illegal and iniquitous Advantages against me. Therefore I pray your Honours Judgment for Costs.—Q. If this Action should be entered, what must be done with it? Continued, or dismissed?—A Motion must be made for a Continuance or a Dismission.


Title: 1760. Octr. 13th. Monday.
From: Adams, John
To:

       Attended Mr. Niles’s Court this morning for John Holbrook Junior in an Action of his against Benja. Thayer Junior. Holbrook agreed with Thayer, to submit all Demands together with both Actions to 3 men.
       Mr. Niles told me, that he consulted Mr. Thatcher about entering his Action against Mrs. Brackett. Thatcher told him, it was as likely that she would recover Costs against him, as that he would recover Judgment against her, And therefore advised him not to enter. Niles’s Action is exactly like Neals. How came Thatcher to advise to one Thing and Dana to another? The Answer is Dana dont care, how the Action goes. He is sure of his Fee and attendance, whether he gets or looses his Cause.
       Thus I find the Bar is divided. Gridley is at a loss. He told me it was a Point of Law that would require a leisurely Examination. Thatcher is uncertain, but thinks it as likely to go in favour of the Administratrix as against her, and how much more likely he did not say. Kent says, the Administratrix will recover Costs, in Spight of the Devil, and he has recovered many a Time in such a Case.—It is a great object of Ambition to settle this Point of Law, whether a suit brought against an Administrator, who after the Commencement, Entry and several Continuances, represents the Estate Insolvent, shall be barred, and the Administrator allowed Costs?
       I cannot be compelled to accept Mr. Dana’s agreement not to take Execution. And I insist upon it, if he has Judgment, he may take Execution, and if he takes Execution, what shall hinder the officer, from levying the whole Debt, and then what becomes of the Province Law, relating to insolvent Estates? The Words of the Law are “when the Estate of any Person deceased shall be insolvent, or insufficient to pay all just Debts, which the deceased owed, the same shall be set forth and distributed, among all the Creditors in Proportion to the sums to them owing, so far as the said Estate will extend.”
       No Debts whatever are excepted from the Average, but Debts due to the Crown and the Charges of the last sickness and of the funeral. The Charges of the funeral, of the last sickness and Crown Debts are to be first paid, and then an Average is to be settled by Commissioners of Insolvency, before the Administrators can pay another Debt. There is no Exception of Debts legally demanded before the Representation of Insolvency. If Debts legally demanded, were to be excepted from the Average, every Debt would be excepted from the average. As soon as the Intestates Breath is gone, every Creditor will bring his Action, will make his legal Demand. If this had been Law and known to be law, 500 suits would have been brought vs. this Administratrix, within a Day after she took Administration. If this Rule of Law should be established, it would prove the Destruction of every Intestate Estate in the Province that is considerably in debt. Every Creditor would bring his suit, immediately, and thus the Costs of Suits would amount to a greater sum, oftentimes than the Debts.
       It would indeed, furnish Employment to the Lawyers, and perhaps, a secret Regard to Interest has blinded some to the Inconveniences, that must attend it. I think the Point is clear, that a legal Demand, before the Representation of Insolvency cannot intitle any Creditor to recover his whole Demand.
       Now the Question is whether, if this Action should be defaulted, and Judgment made up, and Execution should issue, it would not issue for the whole sum; and if it issues for the whole sum, the sheriff must levy the whole sum. So that, if Judgment should be rendered now, the whole Demand would be recovered—for this Court cannot consider an Average, that is not yet settled.
       Well, should this Action be continued, along from Court to Court, and Judgment be entered after the.
       In answer to Sewals objection, I say, that an Administrator de Bonis non, could not maintain an Action vs. this Defendant, on this Note. But the Administration of this Administratrix must bring the Action, and stand accountable to the Administrator de Bonis non, for the Money, and if this Defendant should break, or die insolvent this would be a good Account.
       Her delay to represent this Estate insolvent is of no Consequence at all. She was in Hopes, the Estate would have been sufficient, and she wanted to make a Calculation between the Estate and its Debts, before she made that Representation. She did not want to give the Creditors the Trouble of making out their Claims before Commissioners, if she could pay them without it. She acted in short as every prudent Administrator would do, to save herself and family the Disgrace and Curses of Insolvency, and to save her Creditors, the Trouble of making out their Claims, but People at last grew impatient and some Gentlemen had propagated an Opinion that those who made a legal Demand before the Representation, would recover their whole Debts, and summons’s flowed in upon her from all Quarters. Several Actions were brought against her, at Plymouth Court, and several more to this Court, and she saw that Ruin would insue to herself and family if she did not.
       Now had this Representation been made when she took Administration, 18 months at least would have been allowed to examine Claims. But 6 months were allowed over so that the Creditors will receive their share quite as soon as they would, if it had been represented sooner.


Title: 1760. Octr. 17th.
From: Adams, John
To:

       What are the Questions, on which Mrs. Bracketts Bars to Danas Actions turn?—The first Question is, whether any Action at all can be maintained vs. the Administrator of an Insolvent Estate excepting for Debt due to the Crown, for sickness and funeral Charges? And the second is, whether an Action brought before the Representation of Insolvency, can be maintained, i.e. Whether an Administrator, by delaying to represent the Insolvency, makes herself liable to any suit, that is brought against her. For I take it to be very clear, that when an Estate is represented insolvent, as soon as an Administrator is appointed no Action can be maintained. All Actions must be barred, bar’d I mean for a Time, till the Commissioners have reported and the Average is settled. So that the only Question is, whether Administrators are liable to suits, till the Representation is made? And with submission I think it is certain that they are not. In many Cases it is well known, before a Mans Breath is gone, that he owes more than he is worth, and in such Cases the Administrator would do well to represent the Insolvency, at his first Appointment, but there are many Cases, when it is impossible for the Administrator to know whether his Intestate is solvent or insolvent, the Quantity of his Lands and goods may be unknown, and the Number and Quantity of his Debts is always unknown so that no Computation can possibly be made, and in these Cases, it is certainly reasonable and it is Law, that the Administrator should have some time to examine and calculate before he makes a Representation, for if the Estate is sufficient, it would be folly to draw upon his Intestate and himself and family the Disgrace of Insolvency, and the Curses of the Creditors needlessly, and it would be a Pitty to put the Estate to the Expence of the Commissioners, and the Creditors to the Trouble of making out their Claims before them. In all Cases therefore where it is doubtful whether the Estate is sufficient or insufficient, the Administrator ought to have time to inform himself, and in the mean time, all the Creditors must be debared from suits, or if they will bring them they must do it at their Peril, i.e. if the Estate afterwards proves insolvent, their Actions must be bared and they must pay Costs. Whether some Limitation of the time, is expedient or not, it is not our Business to inquire, if the Laws are imperfect in this respect it is the Business of the Legislature to perfect it, but Mr. Dana cannot avail him self of a Law that has no being.
       Now the Case before your Honour, is of the last sort. At the Time of Capt. Bracketts Death, it was very doubtful, with every body, whether he left enough to pay his Debts or not. His Widow, on her appointment, to the Administration, told the Judge, it was uncertain, and asked time to inform herself; and she has been as diligent as she could, considering the distressed situation of her family, in making Enquiry after the Debts. She found Effects enough in her Hands to pay all the Debts that she was apprized of, and so was unwilling to make the Representation, unwilling to put the Estate to needless Charge, and Disgrace, unwilling to put her Creditors to the Trouble of making out their Claims with the Commissioners, till she was satisfyd, there was not enough. But new Creditors are daily making their Appearance, who have large demands, and some who were never so civil as to let her know she owed them, have sent her Writts. She was sued in one Action to this Court for some hundreds, on a Note that she never suspected to be in Being. In short she finds most of the real Estate under Mortgage, so that most, if not all the Personal Estate must go to discharge these Mortgages, and then the real Estate must be sold at Vendue, the Event of which is quite uncertain, and therefore the Estate is not sufficient to pay. And as the Estate is insolvent, these suits must be barred. The Law is express, that No Proscess shall be allowed. And I presume the Reason, why the Law has not confined Administrators to narrow limits, is that People must be restrained from rushing on such Estates, and by stifling all the sentiments of Humanity, bringing Destruction on the fatherless and Widows.
       The Time for Enquiry, whether the Estate is insolvent, or not, must be dilated on. It is a momentous Point. Must shew, that the time she has taken, is no more than reasonable.
       The Administrator is not liable unless it can be shewn that she has intermeddled with the Goods and made payment of any Debt. She has never paid any Debt.


Title: 1760. Oct. 17.
From: Adams, John
To:

       In the Beginning of May 58 Mr. Lambard, the Plantiff, gave a Lease of a House and Barn and Land in Germantown mentioned in the Writ to the Defendant Mr. Tirrell, and this Lease you will have with you. You will find by it, that Tirrill was to give illegible initial &c. the same Rent, that is sued for, in the present Action. In May 1759, i.e. at the End of the Year, Mr. Lambard went into the service, without making any new Contract, and Mr. Tirrell and his family continued in the House from that time to this. The Plantiff has frequently requested his Rent, but has been always refused, and at last he was obliged to bring his Action. As I said before there was no express Contract between the Parties, for the Year 1759, but as there was an express Contract for 58, and as the Defendant continued with his family, and as the Plantiff permitted him to continue in the House, the natural and legal Presumption is, that each Party was satisfyd with the old Terms, and intended the old Terms should continue. For had the Landlord been dissatisfyd with the Terms, it would have been his Business to have said, you must come upon a new Agreement or else leave the House, and had the Tenant been dissatisfyd he should have said I must have the Place for less Rent or else I must leave. But as each Party was silent, each Party implicitly consented that the old Conditions should remain; especially as the Terms were very reasonable. £70 old Tenor, a Year is a moderate Rent for that Place. There is a very convenient handsome new House, there is a good Barn, and several good Lotts of Land. Besides the House has had Licence for a Tavern for these 7 Years, and Mr. Tirrell has all along kept a Tavern there and does to this day. Now the single Priviledge of keeping a Tavern upon that Place is worth as much annually as this Rent. For Germantown, you all know is a Place of considerable Resort. Hardly any Gentlemen of Curiosity from any of the four Governments come to this Town, without taking a Ride to Germantown to see the Manufactures there, that of Glass and that of Stockings. Great Numbers of People go out from this Town upon Parties of Pleasure to Germantown, and there is a considerable Number of Inhabitants upon the Place and all these must be entertained and supplied, so that considering the House, Barn, Land, and these Priviledges the Rent is quite moderate, and there can be no Reason why each Party should not be confined, to those Terms, which the Defendants silence and Continuance in the House, raise a violent Presumption that he consented to, and I dont doubt, you’l give us the sum sued for accordingly.


Title: [October 1760]
From: Adams, John
To:

      Octr. 7th. 1760.

       Waited on Mr. Gridley for his Opinion of my Declaration Lambard v. Tirrell, and for his Advice, whether to enter the Action or not. He says the Declaration is bad and the Writ, if Advantage is taken, will abate.
       For It is a Declaration on a Parol Lease, not on a Deed, and therefore the Lessee’s Occupancy ought to be sett forth very exactly, for it is his Occupancy, not any Contract, that supports the Action.—You have declared, that Defendant by Virtue of the Demise, into the Tenements, entered, and the same Premises had, held and occupied. But you have not declared when he entered, nor how long he occupied. He might enter, and remove again from the Premises in 3 months, for ought appears on this Declaration. You have taken this Declaration from a Precedent of Lillies. But Lilly and Mallorry are not Authorities, Coke and Rastall are, and in them, the Distinction is taken between a Declaration on a Lease Parol, and one on a Deed, an Indenture. In a Declaration on an Indenture, it is not necessary to set forth when the Defendant entered nor how long he held: because by the Indenture he had a Right to enter and occupy, if he would, but whether he occupied, or not, he has indented to pay the Rent, when the time is out: But in a Declaration, on a Parol Lease, it is necessary to set forth, both when he entered and how long he stayed, because the Occupancy is the Cause and foundation of the Action. Besides you have not alledged that the Rent was to be yeilded and payd upon Demand, and this would abate the Writ.—Mr. Gridley sent me to Otis’s office to examine in Viners Abrigment, under the Title Rent, and in the Entries, i.e. Lilly, Mallorry, Coke, and Rastal, under the Title Debt, for some Authority to decide the Point whether the Exception was fatal, or not. I could find nothing in Viner, Lilly, or Mallorry, but Mr. Gridley shewed me in Coke and Rastall the Distinction taken between a Declaration on a Parol and on a Written Lease.
       G. says, that an Indenture for the Year 1758, att a certain Rent; and the Lessees Continuance in the House, and the Lessors Permission to continue in the House, thro the Year 1759 without any new Indenture, or any Contract or Conversation about any Rent, is presumptive Evidence, that Each Party intended, the Rent should continue the same. The Lessees Continuance, in the House, without taking the Pains of going to the Lessor, to treat about new Terms, is sufficient Evidence of his Satisfaction with the old Terms and of his Consent to pay the old Rent. And the Lessors Permission of his Tenant to continue in the House, without taking the Pains to make a new Contract, is sufficient Evidence of his satisfaction with the old Terms, and of his Consent that they should continue.

   JA’s client, the plaintiff, recovered £9 6s. 8d. as a result of this action in the Inferior Court; the defendant appealed to the Superior Court at its Feb. 1761 term, but did not prosecute, and judgment was affirmed (Superior Court of Judicature, Records, 1760–1762, fol. 177). The bills of costs in both courts, in JA’s hand, are in Suffolk County Court House, Early Court Files, &c., No. 81586. See JA’s argument under second entry of 17 Oct., below.

      1760. Oct. 9th.

       In Support of Complaint in Case Neal’s Action is not entered.
       I do not know, nor is it possible for your Honours to determine, what Reason induced the Plantiff to renounce this suit. Whether it was, because the Estate is insolvent, or because he had no Cause of Action, or because his Action was mislayed, or because his Writ was bad, which by the Way is very probable, considering who drew it, that determined the Plantiff, not to enter this Action, I cannot say, and your Honours cannot determine. It appears to your Honours, that the Defendant has been vexed and distressed by this summons, that she has been obliged to take a Journey to this Town, and to attend upon this Court, where it appears there is nothing for her to answer to. All this appears. What Motive induced the Plantiff to drop his Action does not appear, and therefore We have a Right to Costs. As Things are Circumstanced, I will own, that had this Action been commenced by any Gentleman, at this Bar, I would have dispensed with this Complaint, but it was drawn by a petty fogging Deputy Sheriff against whom I know it is my Duty, and I think it is my Interest to take all legall Advantages. And he himself cannot think it hard, as he has taken both illegal and iniquitous Advantages against me. Therefore I pray your Honours Judgment for Costs.—Q. If this Action should be entered, what must be done with it? Continued, or dismissed?—A Motion must be made for a Continuance or a Dismission.

   Joseph Neal had sued the widow of Capt. Richard Brackett as administratrix of Brackett’s estate. JA drafted arguments for this case in several entries below. It is not known how the action, which was entered and continued, presumably in the Inferior Court, came out; but in the case of Joseph Neal v. Nathan Spear, which grew out of it, JA won costs by a plea in abatement of the writ (see an entry under the assigned date of Jan.? 1761, below).

      1760. Oct. 11th.

       Neals Action is entered so that I have two Actions to defend by Pleas in Bar and three of the Actions I entered, are to be defended, Clark is to Plead in Abatement and Tirrell and Thayer are, I suppose, to plead to issue. Clark gave a Note of Hand to Captn. Brackett in his Life time, and after his Death, on a Reckoning with the Administratrix, a Ballance was found due to the Estate upon Book, for which he gave a new Note to the Widow as Administratrix. Now I have laid both these Notes in one Declaration in Conformity to the Province Law, which forbids two Bills of Cost, upon Instruments, Bonds, Bills, Notes &c. executed by the same Party, and made payable to one and the same Person, and put in suit at the same Time. Dana pleads in Abatement, that these Notes, tho executed by the same Party, were not made payable to one and the same Person. The first was made payable to Bracket, and the second was made payable to his Wife—and cites 3rd. Salkeld 202. “A. owed to B. £20 as Executor, and £10 more in his own Right. One Action will not lie against him for the whole Money, because there must be several Judgments.” And Dana says, that soon after he began Practice, he drew a Writ upon a Note taken by an Executor, as Executor, for a Debt of his Testator, and drew the Writ as if the Note had been taken in the Executors own private Right. Auchmuty for the Defendant, pleaded in Abatement that the Note was given to Plaintiff as Executor, not in his own Right, and the Inferiour Court abated the Writ, but he appealed, and at the Superiour Court, got Mr. Reed to speak for him, who contended that the Words as Executor, were idle, and the Court unanimously set up his Writ.

   Robert Auchmuty the elder (d. 1750 or 1751), a Scot trained at the Middle Temple who was prominent in the early Boston bar and other colonial affairs; from 1733 to 1741 he was judge of admiralty for New England. His son Robert was an associate of JA’s in the Suffolk bar, notably as co-counsel in the defense of Captain Preston in 1770, but he became a loyalist and left America. A sister of the younger Auchmuty, Isabella, married the lawyer and judge Benjamin Prat. (DABAllen Johnson and Dumas Malone, eds., Dictionary of American Biography, New York, 1928–1936; 20 vols. plus index and supplements., under both Auchmutys; NEHGRNew England Historical and Genealogical Register., 12 [1858]:69–71.)

      1760. Octr. 13th. Monday.

       Attended Mr. Niles’s Court this morning for John Holbrook Junior in an Action of his against Benja. Thayer Junior. Holbrook agreed with Thayer, to submit all Demands together with both Actions to 3 men.
       Mr. Niles told me, that he consulted Mr. Thatcher about entering his Action against Mrs. Brackett. Thatcher told him, it was as likely that she would recover Costs against him, as that he would recover Judgment against her, And therefore advised him not to enter. Niles’s Action is exactly like Neals. How came Thatcher to advise to one Thing and Dana to another? The Answer is Dana dont care, how the Action goes. He is sure of his Fee and attendance, whether he gets or looses his Cause.
       Thus I find the Bar is divided. Gridley is at a loss. He told me it was a Point of Law that would require a leisurely Examination. Thatcher is uncertain, but thinks it as likely to go in favour of the Administratrix as against her, and how much more likely he did not say. Kent says, the Administratrix will recover Costs, in Spight of the Devil, and he has recovered many a Time in such a Case.—It is a great object of Ambition to settle this Point of Law, whether a suit brought against an Administrator, who after the Commencement, Entry and several Continuances, represents the Estate Insolvent, shall be barred, and the Administrator allowed Costs?
       I cannot be compelled to accept Mr. Dana’s agreement not to take Execution. And I insist upon it, if he has Judgment, he may take Execution, and if he takes Execution, what shall hinder the officer, from levying the whole Debt, and then what becomes of the Province Law, relating to insolvent Estates? The Words of the Law are “when the Estate of any Person deceased shall be insolvent, or insufficient to pay all just Debts, which the deceased owed, the same shall be set forth and distributed, among all the Creditors in Proportion to the sums to them owing, so far as the said Estate will extend.”
       No Debts whatever are excepted from the Average, but Debts due to the Crown and the Charges of the last sickness and of the funeral. The Charges of the funeral, of the last sickness and Crown Debts are to be first paid, and then an Average is to be settled by Commissioners of Insolvency, before the Administrators can pay another Debt. There is no Exception of Debts legally demanded before the Representation of Insolvency. If Debts legally demanded, were to be excepted from the Average, every Debt would be excepted from the average. As soon as the Intestates Breath is gone, every Creditor will bring his Action, will make his legal Demand. If this had been Law and known to be law, 500 suits would have been brought vs. this Administratrix, within a Day after she took Administration. If this Rule of Law should be established, it would prove the Destruction of every Intestate Estate in the Province that is considerably in debt. Every Creditor would bring his suit, immediately, and thus the Costs of Suits would amount to a greater sum, oftentimes than the Debts.
       It would indeed, furnish Employment to the Lawyers, and perhaps, a secret Regard to Interest has blinded some to the Inconveniences, that must attend it. I think the Point is clear, that a legal Demand, before the Representation of Insolvency cannot intitle any Creditor to recover his whole Demand.
       Now the Question is whether, if this Action should be defaulted, and Judgment made up, and Execution should issue, it would not issue for the whole sum; and if it issues for the whole sum, the sheriff must levy the whole sum. So that, if Judgment should be rendered now, the whole Demand would be recovered—for this Court cannot consider an Average, that is not yet settled.
       Well, should this Action be continued, along from Court to Court, and Judgment be entered after the.
       In answer to Sewals objection, I say, that an Administrator de Bonis non, could not maintain an Action vs. this Defendant, on this Note. But the Administration of this Administratrix must bring the Action, and stand accountable to the Administrator de Bonis non, for the Money, and if this Defendant should break, or die insolvent this would be a good Account.
       Her delay to represent this Estate insolvent is of no Consequence at all. She was in Hopes, the Estate would have been sufficient, and she wanted to make a Calculation between the Estate and its Debts, before she made that Representation. She did not want to give the Creditors the Trouble of making out their Claims before Commissioners, if she could pay them without it. She acted in short as every prudent Administrator would do, to save herself and family the Disgrace and Curses of Insolvency, and to save her Creditors, the Trouble of making out their Claims, but People at last grew impatient and some Gentlemen had propagated an Opinion that those who made a legal Demand before the Representation, would recover their whole Debts, and summons’s flowed in upon her from all Quarters. Several Actions were brought against her, at Plymouth Court, and several more to this Court, and she saw that Ruin would insue to herself and family if she did not.
       Now had this Representation been made when she took Administration, 18 months at least would have been allowed to examine Claims. But 6 months were allowed over so that the Creditors will receive their share quite as soon as they would, if it had been represented sooner.

   Thus in MS.

      1760. Octr. 17th.

       What are the Questions, on which Mrs. Bracketts Bars to Danas Actions turn?—The first Question is, whether any Action at all can be maintained vs. the Administrator of an Insolvent Estate excepting for Debt due to the Crown, for sickness and funeral Charges? And the second is, whether an Action brought before the Representation of Insolvency, can be maintained, i.e. Whether an Administrator, by delaying to represent the Insolvency, makes herself liable to any suit, that is brought against her. For I take it to be very clear, that when an Estate is represented insolvent, as soon as an Administrator is appointed no Action can be maintained. All Actions must be barred, bar’d I mean for a Time, till the Commissioners have reported and the Average is settled. So that the only Question is, whether Administrators are liable to suits, till the Representation is made? And with submission I think it is certain that they are not. In many Cases it is well known, before a Mans Breath is gone, that he owes more than he is worth, and in such Cases the Administrator would do well to represent the Insolvency, at his first Appointment, but there are many Cases, when it is impossible for the Administrator to know whether his Intestate is solvent or insolvent, the Quantity of his Lands and goods may be unknown, and the Number and Quantity of his Debts is always unknown so that no Computation can possibly be made, and in these Cases, it is certainly reasonable and it is Law, that the Administrator should have some time to examine and calculate before he makes a Representation, for if the Estate is sufficient, it would be folly to draw upon his Intestate and himself and family the Disgrace of Insolvency, and the Curses of the Creditors needlessly, and it would be a Pitty to put the Estate to the Expence of the Commissioners, and the Creditors to the Trouble of making out their Claims before them. In all Cases therefore where it is doubtful whether the Estate is sufficient or insufficient, the Administrator ought to have time to inform himself, and in the mean time, all the Creditors must be debared from suits, or if they will bring them they must do it at their Peril, i.e. if the Estate afterwards proves insolvent, their Actions must be bared and they must pay Costs. Whether some Limitation of the time, is expedient or not, it is not our Business to inquire, if the Laws are imperfect in this respect it is the Business of the Legislature to perfect it, but Mr. Dana cannot avail him self of a Law that has no being.
       Now the Case before your Honour, is of the last sort. At the Time of Capt. Bracketts Death, it was very doubtful, with every body, whether he left enough to pay his Debts or not. His Widow, on her appointment, to the Administration, told the Judge, it was uncertain, and asked time to inform herself; and she has been as diligent as she could, considering the distressed situation of her family, in making Enquiry after the Debts. She found Effects enough in her Hands to pay all the Debts that she was apprized of, and so was unwilling to make the Representation, unwilling to put the Estate to needless Charge, and Disgrace, unwilling to put her Creditors to the Trouble of making out their Claims with the Commissioners, till she was satisfyd, there was not enough. But new Creditors are daily making their Appearance, who have large demands, and some who were never so civil as to let her know she owed them, have sent her Writts. She was sued in one Action to this Court for some hundreds, on a Note that she never suspected to be in Being. In short she finds most of the real Estate under Mortgage, so that most, if not all the Personal Estate must go to discharge these Mortgages, and then the real Estate must be sold at Vendue, the Event of which is quite uncertain, and therefore the Estate is not sufficient to pay. And as the Estate is insolvent, these suits must be barred. The Law is express, that No Proscess shall be allowed. And I presume the Reason, why the Law has not confined Administrators to narrow limits, is that People must be restrained from rushing on such Estates, and by stifling all the sentiments of Humanity, bringing Destruction on the fatherless and Widows.
       The Time for Enquiry, whether the Estate is insolvent, or not, must be dilated on. It is a momentous Point. Must shew, that the time she has taken, is no more than reasonable.
       The Administrator is not liable unless it can be shewn that she has intermeddled with the Goods and made payment of any Debt. She has never paid any Debt.

      1760. Oct. 17.

       In the Beginning of May 58 Mr. Lambard, the Plantiff, gave a Lease of a House and Barn and Land in Germantown mentioned in the Writ to the Defendant Mr. Tirrell, and this Lease you will have with you. You will find by it, that Tirrill was to give illegible initial &c. the same Rent, that is sued for, in the present Action. In May 1759, i.e. at the End of the Year, Mr. Lambard went into the service, without making any new Contract, and Mr. Tirrell and his family continued in the House from that time to this. The Plantiff has frequently requested his Rent, but has been always refused, and at last he was obliged to bring his Action. As I said before there was no express Contract between the Parties, for the Year 1759, but as there was an express Contract for 58, and as the Defendant continued with his family, and as the Plantiff permitted him to continue in the House, the natural and legal Presumption is, that each Party was satisfyd with the old Terms, and intended the old Terms should continue. For had the Landlord been dissatisfyd with the Terms, it would have been his Business to have said, you must come upon a new Agreement or else leave the House, and had the Tenant been dissatisfyd he should have said I must have the Place for less Rent or else I must leave. But as each Party was silent, each Party implicitly consented that the old Conditions should remain; especially as the Terms were very reasonable. £70 old Tenor, a Year is a moderate Rent for that Place. There is a very convenient handsome new House, there is a good Barn, and several good Lotts of Land. Besides the House has had Licence for a Tavern for these 7 Years, and Mr. Tirrell has all along kept a Tavern there and does to this day. Now the single Priviledge of keeping a Tavern upon that Place is worth as much annually as this Rent. For Germantown, you all know is a Place of considerable Resort. Hardly any Gentlemen of Curiosity from any of the four Governments come to this Town, without taking a Ride to Germantown to see the Manufactures there, that of Glass and that of Stockings. Great Numbers of People go out from this Town upon Parties of Pleasure to Germantown, and there is a considerable Number of Inhabitants upon the Place and all these must be entertained and supplied, so that considering the House, Barn, Land, and these Priviledges the Rent is quite moderate, and there can be no Reason why each Party should not be confined, to those Terms, which the Defendants silence and Continuance in the House, raise a violent Presumption that he consented to, and I dont doubt, you’l give us the sum sued for accordingly.

   Second entry so dated. This is a draft of JA’s argument in the case of Lambard (or Lambert) v. Tirrell in the Inferior Court; see 7 Oct. and note, above.


Title: [3] Novr. 1760. Monday.
From: Adams, John
To:

       Dana says the Administrator ought not to regard the Disgrace or Trouble or Expence of a Commission of Insolvency, but if it is in the least degree suspicious, that the Estate will not prove sufficient, he must represent it so, at his first Appointment i.e. every Day, that he takes to enquire into the Value of the Estate, and the Number of Debts, is at the Risque of the Creditors, and if any one Creditor brings his Action he must maintain it, at the Expence of the others. For says he, as no Time is limitted an Administrator may wait a whole Year, before he represents the Estate insolvent, and live upon the Estate all that time, to the Injury of the Creditors. Nay he may neglect it two Years, or 10 Years, till he has wasted, spent, or alienated the whole Estate.
       I say, it is reasonable that a Time should be allowed the Administrator to enquire, to make a Computation of the Effects, and to enquire into the No. and Quantity of the Debts, that he may be able to judge, whether the Estate is insolvent or not. For a Commission of Insolvency is an Evil, always to be avoided, if Possible. It is always considered as a Disgrace to a family. It is always a great Expence to the Estate. It always provokes the Curses of the Creditors, and puts them to the Trouble in attending the Commissioners to prove their Debts. And it is not only reasonable, that a Time of Enquiry should be allowed, but it is Law. And the Executor or Administrator appointed to any Insolvent Estate, before Payment to any be made, except as aforesaid, shall represent the Condition and Circumstances thereof unto the Judge of Probate. Here is plainly a time allowed him, and there is no Limitation of that time. It is only said the Representation must be made before any Payment is made. And here is an Exception, which clearly gives the Administrator, some time; the Exception is of Debts due to the Crown, of sickness and funeral Charges. These the Administrator, after his Appointment may pay, before he is obliged to represent it insolvent, and he could not pay these any more than any other Debts unless some time was allowed him.
       Mr. Danas Objections are in my humble opinion of little Weight. He says, that if the Administrator is not obliged to represent immediately, he may delay it, till she and her family have consumed, or by fraud conveyed away the Estate. But your Honours know that Apprisers are appointed, always directly after the Administrator is appointed, who are to make an Inventory and then the Administrator charges herself with all the Articles in the Inventory, and gives Bonds to be accountable for them at the apprized Value, at the Years End. So that if the Estate is wasted the Administrators Bond may be put in suit. Besides, admitting here is a Defect in the Law, in this Respect, Admitting a new Law is expedient, to limit the Time of representation, such a Law has no Existence, nor can Mr. Dana avail himself of a Law that has no Being, however expedient it may be, especially when the Representation is made within a reasonable Time, as this was. The Representation was made in 9 months, which was a short space of Time considering the Circumstances of this affair. Brackett was struck out of Life suddenly, left a very distressed family, and a very perplexed and embarrassed Estate, so that it was impossible for the Widow to recover from her surprize, and make any Inquiry so as to satisfy herself whether the Estate was sufficient or not, sooner than she did. And I presume the Reason why the Law has not confined the Administrator to such Estates to narrow limits, is, because Persons, that die so much in Debt, commonly leave Widows and Children behind them, who have been used to decent and reputable living, and will therefore, if some reasonable time is not allowed them to keep together, recover their surprize and look about them, will be driven to absolute Despair. And to this Purpose and that the Estate may not be burdened with Costs, the Law has provided, that no Proscess shall be allowed, while any such Estate is depending as aforesaid, which Words extend as well to the Time, the Estate is depending under the Examination and Enquiry of the Administrator as to that between the Representation of Insolvency and the settling of the Average. And it is quite reasonable that this Action in Particular, should be barred, because it was entered, out of the meer Humour and Obstinacy of the Plantiff. Tho it was commenced before the Representation it was entered afterwards, whereas if he had been a reasonable Man, instead of entering and driving this Action, as he has done, he should have dropd it without Entry.


Title: Nov. 5th. 1760.
From: Adams, John
To:

        Messrs.

       I presume upon the common sense of the World that no offence will be taken at the Freedom of the following Sentiments while the utmost Deference for Authority and Decency of Language is preserved, as Persons of obscure Birth, and Station, and narrow Fortunes have no other Way, but thro the Press to communicate their Tho’ts abroad, either to the high or the low.
       The Vacancy, in the highest seat of Justice in the Province occasioned by the Death of Judge Sewal, naturally stirrs the Minds of all, who know the Importance of a wise, steady and loyal Administration of Justice, to enquire for a fit Person to fill that Place. Such Persons know, that the Rules of the common Law are extreamly numerous, that Acts of Parliament are numerous, some taken from, or at least in spirit, from the Civil Law, others from the Cannon and feudal Law. Such Persons know that the Histories of Cases and Resolutions of Judges have been preserved from a very great Antiquity, and they know also, that every possible Case being thus preserved in Writing, and settled in a Precedent, leaves nothing, or but little to the arbitrary Will or uninformed Reason of Prince or Judge.
       And it will be easy, for any Man to conclude what opportunities, Industry, and Genius employd from early Youth, will be necessary to gain a Knowledge, from all these sources, sufficient to decide the Lives, Liberties and fortunes of Mankind, with safety to the Peoples Liberties, as well as the Kings Prerogative, that happy Union, in which the Excellence of british Government consists, and which has often been preserved by the deep Discernment and noble spirit of english Judges.
       It will be easy for any Man to conclude that a Man whose Youth and Spirits and Strength, have been spent, in Husbandry Merchandize, Politicks, nay in science or Literature will never master so immense and involved a science: for it may be taken for a never failing Maxim, that Youth is the only Time for laying the Foundation of a great Improvement in any science or Profession and that an Application in advanced Years, after the Mind is crowded, the Attention divided, or dissipated, and the Memory in part lost will make but a tolerable Artist at best.


Title: Novr. 14th. 1760.
From: Adams, John
To:

       Another Year is now gone and upon Recollection, I find I have executed none of my Plans of study. I cannot Satisfy my self that I am much more knowing either from Books, or Men, from this Chamber, or the World, than I was at least a Year ago, when I wrote the foregoing Letter to Sewal. Most of my Time has been spent in Rambling and Dissipation. Riding, and Walking, Smoking Pipes and Spending Evenings, consume a vast Proportion of my Time, and the Cares and Anxieties of Business, damp my Ardor and scatter my attention. But I must stay more at home—and commit more to Writing. A Pen is certainly an excellent Instrument, to fix a Mans Attention and to inflame his Ambition. I am therefore beginning a new literary Year, with the 26th. of my life.


Title: 1760. Novr. 15th. Sat.
From: Adams, John
To:

       Spent last Evening at Coll. Quincys, with Coll. Lincoln. Several Instances were mentioned, when the Independency and Superiority of the Law in general over particular Departments of officers, civil and military, has been asserted and maintained, by the Judges, at Home. Ld. Cokes Resolution in the Case of —— in oposition to the opinion, and even to the orders, and passionate Threatnings of the King. Ld. Holts refusal to give the House of Lords his Reasons, for his Judgment in the Case of —— in an extra judicial Manner, i.e. without being legally and constitutionally called before them by a Rit Writ of Error, Certiorari, or false Judgment. And Chief Justice Wills’s resolute spirited assertion of the Rits Rights of common Law in opposition to the Court Martial against the Intercession of powerful Friends, and even of the Ministry if not the King himself.


Title: Wednesday [19 November].
From: Adams, John
To:

       Dined at Badcocks, with McKenzie. He pretends to Mechanicks, and Manufactures. He owns the snuff Mill, and he is about setting up some Machine to hull our Barley. One Welsh dined with us, who he said was the best, most ingenious Tradesman, that ever was in this Country. McKenzie and Welsh were very full of the Machinery, in Europe, the Fire Engines, the Water Works, the silk Machines, the Wind Mills, in Holland &c. McKenzie says there are 27, 000 Wheels, and 90, 000 Movements in the silk Machine. You may see 10,000 Wind Mills going at once in Holland. Thus he tells Wondrous Things, like other Travellers.—I suspect he would be unable to describe the fire Engine or the Water Works. Had I been Master of my self I should have examined him, artfully, but I could not recollect any one Particular of the fire Engine, but the Receiver, and that he says is no Part of the Engine. But he talks about a Center Cylinder.
       This conceited Scotchman has been a Rambler I believe. He set up Merchandize in New London. He married a Cunningham, sister to Otis’s Wife.—These restless Projectors, in Mechanicks, Husbandry, Merchandize, Manufactures, seldom succeed here. No Manufactury has succeeded here, as yet. And I believe Franklins Reasoning is good, and the Causes he mentions will hinder the growth of Manufactures here in America, for a great While yet to come.


Title: 1760. Novr. 21st. Friday.
From: Adams, John
To:

       This day has been spent to little Purpose. I must confine my Body, or I never shall confine my Tho’ts. Running to Drs., cutting Wood, blowing fires, cutting Tobacco, waste my Time, scatter my Thoughts, and divert my Ambition. A Train of Thought, is hard to procure. Trifles light as Air, break the Chain, interrupt the series.


Title: 1760. Novr. 21st. Friday.
From: Adams, John
To:

       Finished the History of the Common Law, the second Time. The Dissertation on hereditary Descents, and that on Tryals by Juries, are really, very excellent Performances, and well worth repeated, attentive Reading.


Title: [November] 1760.
From: Adams, John
To:

       Pater was in a very sociable Mood this Evening. He told 3 or 4 merry stories of old Horn. Old Horn, a little crooked old Lawyer in my fathers Youth, who made a Business of Jest and Banter, attacked an old Squaw one Day upon the Neck. The old Squaw made answer,  “You poor smitten Boy, you with your Knife in your Tail and your Loaf on your Back, did your Mother born you so?”
       A Man, whom he assaulted at another Time, with his Jests, asked him “Did you come straight from Boston?” And upon being answered yes, replied you have been miserably warped by the Way then.
       A Market Girl whom he overtook upon the Neck, and asked to let him jigg her? answered by asking what is that? What good will that do? He replied it will make you fat! Pray be so good then says the Girl as to Gigg my Mare. She’s miserably lean.


Title: 1760. Novr. 26th. Wednesday.
From: Adams, John
To:

       Ten days are now elapsed, since I began Hale the 2d time, and all the Law I have read, for 10 days, is that Book once thro. I read Woods Institute thro the first Time with Mr. Put. in twice that time i.e. in 3 Weeks, and kept a school every day. My present Inattention to Law is intolerable and ruinous.


Title: 1760. Novr. 26th Wednesday.
From: Adams, John
To:

       Night before Thanksgiving.—I have read a Multitude of Law Books—mastered but few. Wood. Coke. 2 Vols. Lillies Abridgment. 2 Vols. Salkeld’s Reports. Swinburne. Hawkins Pleas of the Crown. Fortescue. Fitzgibbons. Ten Volumes in folio I read, at Worcester, quite thro—besides Octavos and Lesser Volumes, and many others of all sizes that I consulted occasionally, without Reading in Course as Dictionaries, Reporters, Entries, and Abridgments, &c.
       I cannot give so good an Account of the Improvement of my two last Years, spent in Braintree. However I have read no small Number of Volumes, upon the Law, the last 2 Years. Justinians Institutes I have read, thro, in Latin with Vinnius’s perpetual Notes, Van Muydens Tractatio Institutionum Justiniani, I read thro, and translated, mostly into English, from the same Language. Woods Institute of the Civil Law, I read thro. These on the civil Law; on the Law of England I read Cowells Institute of the Laws of England, in Imitation of Justinian, Dr. and student, Finch’s Discourse of Law, Hales History, and some Reporters, Cases in Chancery, Andrews &c. besides occasional searches for Business. Also a general Treatise of naval Trade and Commerce, as founded on the Laws and Statutes. All this series of Reading, has left but faint Impressions, and a very Imperfect system of Law in my Head.
       I must form a serious Resolution of beginning and pursuing quite thro, the Plans of my Lords Hale, and Reeve. Woods Institutes of common Law I never read but once, and my Ld. Coke’s Commentary on Littleton I never read but once. These two Authors I must get, and read, over and over again. And I will get em too, and break thro, as Mr. Gridly expressed it, all obstructions.
       Besides, I am but a Novice in natural Law and civil Law. There are multitudes of excellent Authors, on natural Law, that I have never read, indeed I never read any Part of the best authors, Puffendorf and Grotius. In the Civil Law, there are Hoppius, and Vinnius, Commentators on Justinian, Domat, &c. besides Institutes of Cannon and feudal Law, that I have to read.
       Much may be done in two Years, I have found already. And let it be my Care, that at the End of the next two Years I be better able to shew that no Time has been lost than I ever have been yet.
       Let me practice the Rule of Pythagoras.

        Μηδ᾽ ὕπνον μαλακοῖσίν έπ᾽ ὄμμασι προσδέξασθαι
         πρίν τῶν ἡμερινῶν ἔργων τρὶς ἕκαστον επελθεῖν
        πη παρεβην; τί δ᾽ερεξα; τι μοι δεον οὐκ ετελεσθη;

       Thus let me, every night before I go to bed, write down in this Book, what Book of Law, I have read.


Title: 1760 Novr. 28th. Friday.
From: Adams, John
To:

       I have not read one Word of Law, this Day. But several Points, and Queries have been suggested to me, by the Consultors.—In whom is the Fee, and Freehold of our burying Yard? What Right has any Man to erect a Monument, or sink a Tomb there, without the Consent of the Proprietors? In England, the Church Yards are the Places of Burial, and the Parson is seised in fee, of them as of the Ground whereon the Church stands. But our Burying Yards, as well as the Ground, on which our Temples stand, are not vested in our incumbent Ministers, but in the Precinct or Parish, (the Corporation socalled) where they lie, according to the late Resolution in the Dedham Case.
       The Property of our Meeting House, is in the Precinct, i.e. the dissenting Part of it,—And I think the Precinct, by its Committee sold the Pews to particular Persons, and perhaps, the Persons who have erected Tombs, might previously ask And obtain the Priviledge of the Precinct.


Title: 1760. Novr. 29th. Saturday.
From: Adams, John
To:

       Read no Law.—An exclusive Property is certainly claimed and enjoyed, by private Persons, in Tombs and Monuments, as well as in Pews. Inhabitants of other Towns, have usually asked Leave of the Select Men, to bury their dead in our burying Place. But I should think the Precinct Assessors, or Parish Committee, had rather the Inspection of our burying Yard. My Father never knew License given nor asked of Town, nor Precinct to sink a Tomb, nor to raise a Monument.
       Suppose my Father, Wife, Child, friend died, and I order the sexton, or on his Refusal my own servant to open any Tomb in our burying Yard, and without further Ceremony deposit the Corps there, can the pretended Proprietor have any Action, or Remedy against me? The Course of the Descent of these Tombs and Pews, when undisposed by Will, is a matter of uncertainty too. Do they descend to the Heirs, as Inheritances in Houses and Lands, or do they go to the Executor or Administrator, as personal Estate?
       There is an Anecdote in the Spectator, of De Wit, the famous dutch Politician. Somebody asked him how he could rid his Hands of that endless Multiplicity and Variety of Business that passed thro them, without Confusion? He answered, “by doing one Thing at once.” When he began Any Thing, he applied his whole Attention to it, till he had finished it.—This Rule should be observed in Law. If any Point is to be examined, every Book should be consulted and every Light should be considered, before you proceed to any other Business or study. If any Book is to be read, no other Book should be taken up to divert or interrupt your Attention till that Book is finished.
       Order, Method, Regularity in Business or Study have excellent Effects both in saving of Time and in bettering and improving Performance. Business done, in order, is done sooner, and better.


Title: Novr. 30th. Sunday.
From: Adams, John
To:

       Read no Law. Read Bolinbroke.