Title: Editorial Note
From:
To:

       This was an action brought by John Gray for injuries inflicted upon him by Lendall (or Lindall) Pitts in a scuffle outside Dehon’s barber shop in Boston. Adams’ minutes indicate that the underlying cause was an earlier incident in which Pitts had “gallanted” what he assumed to be an attractive young lady, only to learn that feminine clothes covered a masculine form—either Gray himself or another male procured by him. Pitts blamed Gray in any case and, after unsuccessfully demanding an apology, opened Gray’s scalp with a walking stick.
       Gray sued in the July 1771 Suffolk Inferior Court for £300; Josiah Quincy was able to win him only a £5 verdict, which Gray appealed to the August 1771 Suffolk Superior Court. There, the jury awarded him £18 damages and costs of £10 8s. 8d. Adams, who had been specially appointed guardian ad litem for Pitts (a minor), was his counsel at both trials.
       From a technical standpoint, the case is interesting because, although the plea was not guilty, that is, a flat denial of the assault, Adams was allowed to introduce evidence in justification of the blow.

       Adams’ minutes suggest that James Otis spoke at the trial on 2 and 3 December 1771, although he was not counsel of record for either party. In fact, on the latter date Otis, having been certified “a distracted person” by the Selectmen of Boston, was “carried off ... in a post chaise, bound hand and foot.” If the remarks recorded by Adams were actually made in court, they not only offer a striking glimpse of Otis on his way to the madhouse, but suggest a very informal court room atmosphere.


Title: Adams’ Minutes of the Trial: Suffolk Inferior Court, Boston, July 1771
From: Adams, John
To:

      Gray vs. Pitts.
       James Melvin. Saw Pitts push Gray off with one Hand and give him a stroke with his Stick. G. no Hatt on. Saw the Blood run. A knotty Stick—big as the Thumb. Bigger than Wallaces’s. Did not strike so hard as he could.
       Wm. Winter. Gray came into Dehons shop. Pitts and he went out. Pitts demanded Satisfaction. I ask your Pardon you chuckle headed son of a Bitch. Pitts held up his Fist and Gray held up his, and then Pitts pushed him off with one hand and struck him with the other.
       Mr. Hutchinson. Pitts told me, he had sent a Lad to demand Satisfaction for the Insult he had received. Saw Gray stand holding his Coat, the Blood dropping from his Head.
       Odin.Pitts sa Gray said you woolly headed Rascall. Pitts said you shall—The Blow did not seem very hard. Saw Blood.
       Mr. Molineux.


Title: Adams’ Minutes of the Trial: Suffolk Superior Court, Boston, December 1771
From: Adams, John
To:

      Gray vs. Pitts. Assault and Battery.
       J. Quincy.
       We had done nothing but what was justifiable by the Laws of our Country.
       J. Whitworth. Pitt said in the forenoon, that Gray had used him very ill, and he would beat him whenever he met him. About 11/2 Hour before, he did  Very ill in Speaking Reports of him.
       Mr. Hutchinson. Pitts told me he had sent a Lad to the Custom house to call Gray out to demand Satisfaction of him. And I saw em at it, and the Blood dropping from G’s Head. Stick knotty, 1/2 Inch Diameter.
       Tim. Odin. Pitts went into the Barbers shop, and asked Gray if he would ask his Pardon. No, you wooly headed Rascall, I wont. D—n you you shall, running his Fist up says Pitts. I could not hear the rest of the Conversation till Pitts struck him. The stick did not seem to be struck hard. But Gray said, Ile set this down to your everlasting Account.
       Melvill. Gray had no stick nor Hatt. Gray and Pitts were coming from Dehones shop, to Carpenters. Pitts in a Passion. Pitts shoved him off first with his Hand, and then a stroke with a stick. Saw the Blood.
       Isaac Pierce. Heard a Blow at the Town House steps. About 3. Rods.
       Dr. Roberts. 2 Wounds, one about 3/4 of an Inch, the other between 1/3 and 1/2 on the scalp, Top of the Head. Both done at one blow. About 12 or 14 days. Every other day. Bill a Guinea. No more than a flesh Wound.
       J. Quincy. If he had a Mind to discover his Manhood as much as he had at other Times he would have taken another Weapon.
       Knows Gentlemen who have a Talent of diminishing or exagerating just as they please.

       Pain, of Body, Expences, Ignominy.
       Of great Importance that Juries should be uniform and steady in their Decisions, and that Capriciousness and Humour should not prevail.
       Atrocious, inhuman, Injury &c.
       Our Witnesses
       Shaw. No you woolly headed Rascall dam ye you woolly headed Rascall, I ask your Pardon. And Gray run his Fist up at his face in a threatning manner. Cant say which fist was up first, Grays or Pitts’s.
       Jones. Pitts told me Gray had used him at in a Rascally Matter. Gray called him chucklehead, and put his fist up to Pitts’s face, cant say he touched him. 1636 upon the Head of it. The stick was like a fishing Cane. I ownd it—lent it to P. 2 or 3 Months before. Very light stick and hollow I thought.
       Mr. Plaisted.
       Mr. Molineux. I saw him dressed in Womens Cloaths. He had the outward Appearance of a Woman, a Gown and Womens Cloaths. I saw a Couple of young Gentlemen gallanting him. Pitts was one. I was very sensible they were taken in. Plaisted was the other. They appeared to be very loving—she rather Coy. I called out to Pitts at New Boston. He turnd a deaf Ear. He came back and said he had a very clever Girl, and went to her again.
       Otis. Clodius, dressed in Womans Apparell, broke in upon the Sacrifices of the Bona Dea.
       Orat. pro Milone beginning.

       J. Quincy. No smart saying, no pointed Turns. Amorous Rencounter.
       Judge Hutchinson. Prov. Law Page 61. last Clause of the Act to prevent Incestuous Marriages.


Title: Editorial Note
From:
To:

       This action was the climax of a series of clashes between James Steel of Haverhill, Massachusetts, and Asa Porter, a merchant and trader from the upper Connecticut Valley Coös region of New Hampshire. In September 1767 Steel had sold Porter and his partner Andrew Savage Crocker a consignment of 1600 barrel hoops. After Porter accepted settlement against him in another matter, Steel sued out a writ for the value of the hoops returnable at the December 1769 term of the Essex County Inferior Court.
       Porter traveled south into Massachusetts in the fall of 1769, settling his accounts with various correspondents. At the beginning of November he told Jacob Rowell to leave a note of Porter & Crocker, which he held, at Walker’s Inn in Haverhill, where Porter would settle it. On 29 November Porter stopped at Walker’s and left Rowell a letter, reporting that he was unable to pay the note now but that satisfaction could be had from a correspondent in Newburyport. On the next day Porter and Steel met at Harriman’s Inn at Plaistow, New Hampshire. Here, Porter paid Steel’s claim for the hoops and, according to Porter, also gave Steel the sum owed to Rowell with instructions that it be paid over to the latter. Porter took a receipt and then departed for Coös.
       Whatever the agreement, Steel did not make payment to Rowell. Accordingly, Porter & Crocker brought suit against Steel at the July 1770 Essex Inferior Court. The declaration contained two counts: (1) That Steel had “received of the Plaintiffs the sum of five pounds ten shillings and in consideration thereof promised the plaintiffs to pay the same sum to one Jacob Rowell on their account and to procure the same sum to be endorsed on a note of hand which the said Rowell had of the plaintiffs payable to the said Rowell.” (2) A count in indebitatus assumpsit for the same amount, “had and received by said James for the use of the Plaintiffs.” On a plea of the general issue entered by Nathaniel Peaslee Sargeant, counsel for Steel, the case went to the jury, which returned a verdict for Porter in the sum sued for and costs.
       Steel appealed to the Superior Court, where at the June term 1771 he obtained a verdict reversing the prior judgment. Porter now sought a writ of review. In November 1772 the case came on in the Superior Court at Salem, with Adams joining Sargeant as Steel’s counsel, and John Lowell appearing for Porter. The form of Steel’s receipt and the nature of the pleadings suggest some interesting possibilities in the law of contracts, but no issues in this field seem to have been raised. Adams’ minutes of the evidence (Document I), and minutes of a portion of the argument in Wetmore’s hand (Document II) indicate that Steel’s basic contentions were factual: he had not signed the memorandum of the contract urged against him; he had not received the sum sued for. As to the first point, the plaintiffs introduced the original memorandum and a handwriting sample to establish Steel’s signature. Steel then urged that the instrument had been altered after he had signed it, but the court ruled that he bore the burden of proof on this issue. The jury apparently found that he had not met this burden and that circumstantial evidence indicated that he had received the money, because the verdict was for Porter & Crocker.


Title: Adams’ Minutes of the Review: Essex Superior Court, Salem, November 1772
From: Adams, John
To:

       Porter vs. Steel.
       John Lowell. Receipt. Wm. Wingate.
       Serjeant.
       Mr. Webster. Porter said Steel owed him. Sued him for 100 dollars. S. paid ½ of it, and was sued again for the other 50. S. said he was never paid for Hoops. P. said he cheated me out of 6 dollars in the 1st settlement of the 50 dollars, if there was some Hoops. S. then sued Porter, for the Hoops.
       Writ. S. vs. P. & Crocker for Hoops.
       Jona. Serjeant. 1600 Hoops. S. deliverd.
       Amos Mullikin. C. received the 50 dollars. C. paid the 6 dollars for my fees, generously, and treated Us too, upon our representing Poverty. Rather than S. should have gone to Goal, Mr. Wallace would have paid the whole 100 dollars. Dont think that S. knew that Wallace had any more Money.
       S. Harriman. P. came into my House, and call’d for Drink, and Sat by the fire. P. moved to S. to walk into another Room. Moved it twice. At last they went into a cold Room. Saw em at the Table with Pen and Ink. Porter took up the drink and drank but never asked S. to drink, and never bid him farewell.

       Moses Cushing. They sat at Table settling as I thought. No freedom between em.
       Nat. Walker. Jacob Rowell lodged his Note with me. The young Man said P. was to be along and pay it. P. came along and asked me, about the Note, twice. He said he was bound on his Journey and could not take up that Note. He after left a Letter at my House, for Rowell. I am not in a Capacity to take up that Note now, but I have left a Letter to let him know when and where to receive it. Rowell came, and opend the Letter. The day I remember by the difficulty of passing the River.
       Jos. Dodge. The River froze over 28th. Novr. 1769.
       James Walker. Rowell left the Note. P. came down and left a Letter and then went and led his Horse over the Ice. There had not been any Horse over before. S. at Newburyport offered P. to pay the Money, if you will give your Oath, that you gave me that Money. P. said I have your Receipt and nothing to say to you.
       Letter left at Walkers, 29 Novr. 1769. Dated a day before it was left.
       Jacob Rowell. P. down from Cohoss. 1st Novr. 1769. Told me to leave my Note at Mr. Walkers. And he would pay. I did. Some time after I call’d, but Note not paid. Some time after called again and found the Letter. Sometime the next June after Balch told me, that he had wrote that he had left the Money with a Man but never said who nor where. In March he wrote me that his Money holding out better than he expected he had left it upon the Road.

       P. when he took up the Note, he askd me if Steel had got the Letter he wrote to me.
       S. Chadwick. P. left Money with me for Rowell, fore Part of Summer before the suit. P. said nothing to me about S’s ill treating him. He asked what sort of a Man S. of Haveril was accounted. I said little. Brother in Law. P. resumed. S.’s Character. Nothing. Heard Webster say, if he had opportunity to talk with Ingalls before he should have got better Evidence from him.
       S. Whites Deposition.
       Number of Gentlemen to Character.
       Mr. Balch. I told Mr. P. the Money was not indorsed. He said he was surprized.  Steel offerd P. to pay if he would swear, he was very much in a Rage with P. and abusive. Quite in a Passion, and much beside himself. P. said Yes you did pay me that Money. S. said if you’l swear it, I’le pay it.
        Fitz. S. in a great Passion. Said the Receipt was forged. S. said he should prove he was used to doing such Things. His father had not brought him up to Colledge for Nothing. I told P. he would give S. an Advantage if he went to Swear.
       Moses Littles Deposition. Good Character.
       Jacob Chase Deposition. Went thro Chester.
       Susanna Hale and other.


Title: Wetmore’s Minutes of the Review: Essex Superior Court, Salem, November 1772
From: Wetmore, William
To:

       Porter and Steel. Case for money received and promise to pay it. Plea no promise. Proof. Produced a Receipt and the signing was denied. The Clerk of Inferior Court produced the original receipt.
       Sargeant for Steel. The Qu. is (as this is a review) whether the former Judgment be wrong.
       Adams. The principal query is whether the Receipt was sign’d.
       Oliver J. Steele owns his subscribing the paper but says a part has been added at the top. This must be proved by him else of no consequence save to his own disadvantage.


Title: Adams’ Report of the Argument: Suffolk Superior Court, Boston, August 1766
From: Adams, John
To:

       Alcock vs. Warden.
       On a Bill of Exchange, drawn on N. York, protested.
       Q. made was whether Bill on N. York was a foreign Bill? So as to carry 10 Per Cent damages and 6 Per Cent Interest, as a Bill on London.
       Fitch reminded Court of the Case of Wimble and Bayard, in which he Said 10 Per Cent was allowed, upon Argument. Auchmuty recollected the Case by Pratts introducing a little Book, which no Body else knew. It was Marius on Bills of Exchange, which Holt calls a good Book. Winthrop, Price, Goldthwait &c. were enquird of and agreed that 10 Per Cent was allowd.
       Otis. Viner. Title, Bills of Exchange. Goldsmith’s Note indorsed, is a Bill of Exchange. We dont find any Distinction, between inland and foreign Bills, even in England, and the Inconvenience which is the Reason, is greater, in the Case at Bar, than in a Bill in England protested in any Part of Europe.
       Auchmuty. The Custom is not the same in all the Provinces. In Phyladelphia, they allow, 20 Per Cent. Here 10.

       Bacons Abridgment. Title Merchant and Merchandize. Of Inland Bills. Page 603.
       Cunninghams Law of Bills of Exchange.
       Gridley. The Foundation of this Damage is, that no Proscess runs from one Kingdom to another—and the Disappointment. Bills of Exchange, saving the Risque and Expence of Carriage, are of such Convenience that the whole commercial World is come into it.
       Court all of a Mind that 10 Per Cent should be allowed. Lynde thought this was not an Inland Bill.


Title: Editorial Note
From:
To:

       This case throws some light on the conduct of business in Boston in the middle 1760’s, but it is primarily of interest for the pleading problem which it presents. James Apthorp, younger son of a leading Boston mercantile family, and William Gardiner, in the course of breaking up their business partnership in 1763, had made an agreement under seal which provided among other things that Apthorp would “pay all debts that are now or may hereafter become due from said company to any person or persons whomsoever for any matter, cause or thing whatsoever, and [would] forever hereafter indemnify and save harmless the said William Gardiner, his Executors and Administrators, of and from all debts and demands now due or that hereafter may become due from said company on any account whatsoever.”
       Apparently Apthorp had not succeeded in meeting all of the “company’s” obligations, for early in 1765 Trecothick & Thomlinson, London merchants, advised Gardiner that his old firm owed them £6949 7s. 11d. sterling, plus interest. The letter pointed out that no remittance had been received on the account, “Mr. Apthorp’s efforts having as we apprehend been bent to reduce other ballances,” and added that “we have good reason to believe that the greatest part if not all the other demands on Messrs. Apthorp & Gardiner are paid off.” This rather knowing tone is perhaps explained by the fact that the Apthorp family had had a long commercial and personal relationship with Trecothick & Thomlinson. Apthorp’s father and brother were at different times in partnership with the firm, and his sister Grizzel was married to Barlow Trecothick, once a Boston merchant, soon to be Lord Mayor of London.
       In 1766 Gardiner brought suit against Apthorp in the Suffolk Inferior Court, alleging that the “demand” from Trecothick & Thomlinson was a breach of the foregoing covenants, in that “the said James though requested hath not paid all the debts that were then and are now due from the company nor hath he the said James though requested indemnified and saved harmless him the said William of and from all debts and demands that were then ... and are now due from said company ... and the said William is still held and obliged to pay the debt and never discharged or indemnified therefrom by the said James ... to the damage of the said William as he says the sum of twelve thousands pounds lawful money of Great Britain” (Document I).

       Apthorp’s plea to the declaration was a form of specific traverse technically known as non damnificatus, in which he asserted “that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner” (Document II). Gardiner demurred to the plea in a lengthy special demurrer (Document III). The gist of his attack was that the plea did not answer the separate allegation of a breach of the promise to pay debts. In the alternative he asserted that if the plea were taken as an answer to this breach, it was bad because it was not a direct contradiction of the allegation. It thus violated the rule that pleadings must not be argumentative and must not contain a “Negative Pregnant.”
       After several continuances the court in July 1767 found for Gardiner on the demurrer. On appeal to the Superior Court the point was argued again at the March term 1768, with Robert Auchmuty and James Otis appearing for Gardiner, and Samuel Fitch and Jonathan Sewall for Apthorp. Although Adams was not of counsel, the questions involved apparently interested him greatly, for he made extensive minutes of the arguments and of the court’s ruling (Document IV). That his minutes were taken down on the spot appears in the verbatim phrases from cases read to the court by counsel, which Adams copied with a keen ear, but often without regard to relevance.
       The issue argued was a rather fine point of pleading, but it is a good demonstration of the way in which such heroic struggles over form could often represent the actualities of the case. In pleading non damnificatus, Apthorp was trying to put in issue the only point which he could hope to establish on trial, that Gardiner had not been harmed because he had never actually paid or even been sued for the debt due to Trecothick & Thomlinson. Behind the barrage of technical arguments there thus lay one substantial question: did Apthorp bind himself only to indemnify and save Gardiner harmless, either by reimbursing him after he had paid a debt, or by defending any suit brought on it? Or was Apthorp to pay the debts as they arose? If the former, then non damnificatus, amounting to performance of the covenant, was a good plea, for Gardiner had in fact been indemnified. If the latter, then the plea was subject to all the technical defects which Auchmuty ascribed to it.
       In spite of Fitch’s very modern-sounding argument that, whatever its language, the real purpose of the agreement was only to indemnify, the court found that, notwithstanding its generality, the contract embodied a separate promise to pay debts. Since the mere breach of the promise to pay debts would give rise to damages without a showing of special harm, the absence of harm would have served no better as a defense on the trial than it did as a pleading.
       On the subsequent trial of the issue of damages, the jury brought in a special verdict which raised this question in another form. They awarded Gardiner £12,000 sterling, the full amount set forth in his ad damnum, if the court found that he was “entitled to recover full damages for the debt ... though [he] was not actually sued therefor nor paid the same.” If he was not entitled to full damages, then the jury found that he should receive the amount of the debt, plus interest, which amounted to £8,290 2s. 5 2/3d. At the August term 1768 the court held that the damages were in the lesser amount. The facts that Apthorp had sought to plead in bar to the action thus at least served to limit Gardiner to a recovery for the breach of the promise to pay debts, with no additional damages for a failure to indemnify. While even this result may seem to give Gardiner a windfall, it is in accord with modern authority.
       Gardiner’s victory seems to have been a hollow one. After a motion for new trial on the grounds of excessive damages that was either denied or withdrawn, Apthorp’s counsel entered an action of review, which remained on the docket of the Superior Court until February 1778 when it was finally discontinued by agreement on terms which do not appear. After the 1768 decision, execution had issued, but the court files show that it was returned unsatisfied. Apthorp had been declared an insolvent debtor in February 1768 and had apparently succeeded in winding up his affairs in time to evade Gardiner’s demands.


Title: Plea: Suffolk Inferior Court, Boston, July 1767
From: Fitch, Samuel
To:

       And the said James comes and defends &c., and saith that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his Declaration hath alledged and supposed and thereof the said James puts himself on the countrey.

        Saml Fitch


Title: Special Demurrer and Joinder: Suffolk Inferior Court, Boston, July 1767
From: Auchmuty, Robert Jr.,Fitch, Samuel
To:

       William Gardiner v. James Apthorp
       And the said William says that the plea aforsaid pleaded by the said James in manner and form afore pleaded and the matter in the same contained are insufficient in Law and that he the said William to that plea in manner and form aforsaid pleaded hath no necessity nor is bound by the Law of the Land in any way to answer and this he is ready to verify wherefore for want of a sufficient plea in this behalf the said William prays Judgment and the damages by reason of the premises to be adjudged to him and costs.
       And for causes of demurrer in Law in this behalf according to the form of the Statute in such case made he sets down and to the Court here expresses the causes following

       First
       Because the said James in his plea aforsaid hath not answered one of the breaches assigned in said declaration by said William in the words following to wit “yet the said James tho requested hath not paid all the debts that were then or now due from the said company.”
       secondly
       Because the said James in his said plea hath pleaded “that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in, his declaration hath alledged and supposed and thereof the said James put himself on the countrey” but hath not in his said plea given any answer to the breach of covenant contained and set forth at large in the said Williams declaration against the said James for not paying all the debts that were due from the said James and William in Company
       3dly.
       Because the said William in his said declaration alledges that the said James covenanted with the said William “that he the said James would pay all the debts that were then or should thereafter become due from said company to any Person or Persons whomsoever for any matter cause or thing whatsoever” and the said William afterwards in his said declaration further alledges as a breach of said covenant that the said James tho requested hath not paid all the debts that were then or now (meaning at the time of making said covenant and the purchase of said writ) due from the said company and the said William further alledges in said declaration that on the twenty fifth day of January AD. 1765 there was due from said company to Messrs. Trecothick & Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in company as aforsaid yet the said James in his plea aforsaid hath not in any manner answered the said breach of covenant declared on in manner as aforsaid by the said William in his said declaration.
       4thly.
       Because the said James in his said plea hath not alledged that he hath paid all the debts that were due from the said company and shewn in particular how and when as by Law he ought to have done
       5thly.
       Because the said William in his said declaration hath alledged that the said James tho requested hath not paid all the debts that were then or now due from the said company nor hath the said James tho requested indemnified and saved harmless him the said William of and from all debts and demands that were then to wit on the first day of January AD. 1763 and are now due from the said company for that on the twenty fifth day of January AD. 1765 there was due from said company to Messrs. Trecothick & Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in Company as aforsaid which said sum and the interest thereof then at Boston aforsaid by the said Messrs. Trecothick & Thomlinson were demanded of the said William as one of the first mentioned company and the said William is still held and obliged to pay the same and never discharged or indemnified by the said James therefrom and the said James in his said plea hath pleaded that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his said declaration hath alledged and supposed and thereof the said James puts himself on the countrey and so the said James in his said plea hath given a negative answer only to the aforsaid breach assigned by the said William in his said declaration which is also in the negative and therefore the said James hath not tendred to the said William any proper issue to join and yet the said James hath concluded his said plea to the countrey. Which he ought not to have done but ought to have concluded his said plea with a verification of the same and prayed Judgment if the said William ought to have and maintain said Action against him the said James whereupon the said William might have replied and shewed forth other and special damnification.
       6thly.
       Because the plea of the said James is too general and argumentative and informal and not direct and certain for in said plea the said James alledges that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his declaration hath alledged and supposed which is not a direct and positive negation of a demand made upon the said William by the said Messrs. Trecothick & Thomlinson as set forth in said declaration but is an argumentation and too general an answer to the said declaration because if there was not a demand made upon the said William as aforsaid then he could not be damnified thereby and if there was then the said James in his said plea traverses the damnification resulting therefrom to the said William. And the said William further says that the plea of the said James by him recorded as aforsaid is inconsistent incertain not issuable and wants form.

        Robt. Auchmuty

        And the said James says that the plea aforsaid by him in manner aforsaid pleaded and the matter therein contained are good and sufficient in Law to preclude him the said William from his action aforsaid against him the said James which plea the said James is ready to Verify &c. and because the said William doth not answer to that plea nor hitherto any ways deny the same he the said James prays Judgment that the said William may be precluded from his action aforsaid against him and he be allowed his Costs.
       Saml. Fitch


Title: Adams’ Minutes of the Argument: Suffolk Superior Court, Boston, March 1768
From: Adams, John
To:

       James Apthorp vs. Gardiner, William.
       Covenant Broken. Plea.
       Special Demurrer. 1. 2. 3. 4.
       Joinder in Demurrer.
       Auchmuty. 2 Breaches assigned in Declaration by Plaintiff. 1. 2. not indemnifying. Plea is that Plaintiff was not damnifyd by any Demand from Trecothick & Thomlinson.
       The 3 first Reasons in the Special Demurrer, are to the same Point. —Tro.
       Holts Reports. Page 206. Annersley vs. Cutter. 2nd. Exception is that he did fit him to be Master of Arts. As to the first the Plea is good. Scismaticus inveteratus. Pleas adjudgd bad because not shewn who maintained him, from the Time of Batchelor till Master. Incompleat Plea.
       1. Salk. 179. Weaks vs. Peach. Replevin for. Plea an Answer to Part and whole. 2 Breaches in the Declaration, but one answerd in the Case at Bar. They come and defend &c. i.e. take the whole Defence upon them, and then go on, and answer but one Cause of Action. All Declarations must have compleat Answers.
       4th. Objection to the Plea—that he has not in his Plea set forth that he had paid the Debts, and how and when and where &c. 3d. Inst. Cler. 522. Covenant to indemnify and save harmless, ought to shew how he saved harmless. Our Breaches are that he hath not paid, and hath not saved harmless. An Issue cannot be made out of two Negatives any more than out of two Affirmatives.
       Infregit Conventionem. 3. Levinz. 19. Pitt vs. Russell. Breach assigned in the Negative and Plea in the Negative.

       Cro. Car. 316. Non Debet. Oyer. Payment at Day. Court if issue joined aided by Statute Jeofails, ’tho upon Demurrer bad.
       Informal, argumentative, &c. Too general, not direct and certain. A Negative Pregnant. Cro. Jac. 559. Lee vs. Luther. Pleaded in the Negative that he had not, &c. Plaintiff demurred.
       Negativa pregnans. 1st. Argument. 1st. Cause.
       Ours is non Payment, we in the Reason of the Case and therefore the Case must uphold us. These are the Exceptions and these the Authorities to support them. Negative answers to Negative Breaches. All the Entries, all the Precedents shew the Plea to be bad. Law abhors and detests a negative pregnant. Double Pleadings by the Statute and the Leave of the Court, may be, but no Statute allows of a Negative pregnant.
       This Plea concludes to the Country too, which it ought not.
       Fitch. For Defendant Apthorp. Honors have heard Declaration, Plea and Exceptions. We have answerd that Gardiner Plaintiff hath not been damnified by any such Demand as he has set forth in his Declaration. The whole Effect of the Covenant is, to indemnify Gardiner, from certain Debts and Demands. 2 Ways of indemnifying, are by Payment, by procuring a Discharge.
       This Covenant is only a Covenant to save harmless, and the Effect is the same as a Bond with a Penalty conditioned to save harmless. Non Payment is no Breach, and would be bad upon a general Demurrer.
       Saville. Page. 90. Case 167. Anonimous. Debt upon an Obligation. Ought to plead not damnified. Bound to discharge pay and save harmless from Rent. Had Defendant pleaded that Plaintiff was not damnifyed, it would have been good. Nothing to distinguish this Case from that of Savilles. This exempts this Case from the Force of every Authority the Gentleman has presented.
       1. Salk. 196. Griffith vs. Harrison. In some Cases the Intention is traversable. Plaintiff did not shew a Disturbance. Counterbond cannot be sued without a Special Damnification.
       If Plaintiff can support an Action now without a special Damnification, he might have supported one Eo Instante that the Covenant was executed.
       Cro. Jac. 634. Horseman vs. Obbins. Debt on obligation Conditiond for Indemnification. Demurred because not shewn quo modo indemnem &c. Being a Plea in the Affirmative, should have shewn quo modo, but if he had pleaded generally that he had not been damnified non damnificatus, it would have been good.
       Cro. Jam. Jac. When one pleads a discharge and that he saved him harmless he ought to shew how, but if he had pleaded generally non damnificatus it had been good &c.
       3. Mod. 252. Mather vs. Mills. Non Damnificatus and Demurrer. Negative Parish not damnified. Good.
       2. Mod. 305. Shaxton vs. Shaxton. Condition to save harmless, &c. Defendant pleads not damnified, &c. Same Principle.
       Negative Answer to Negative Breach. This is a wrong Representation. The Words of the Declaration. Covenant. Will save harmless from all Debts due from the Company of Gardiner & Apthorp to Trecothick & Company. They have made use of negative Words, but not to the Purpose. What is our Answer to their Declaration. That they have not been damnified, by any such Demand, which is the only Breach they have alledgd that could support their Action. Concluding in Bar, when the Matter is brought to a plain Affirmation and Negation would be ill, because it tends to protract Pleadings in Infinitum, therefore we concluded properly to the Country.
       Jenkins’s Centuries Page 110. Case 12. Non Damnificatus a general Issue.
       Sewall run over the same Ground.
       Otis. Read Several Authorities, one from Leonard and several others, to shew that where there is a Covenant or Bond to save harmless only, there Non Damnificatus will do for a Plea. But where there is Covenant or Bond to pay Rent, to pay Debts, &c. and to save harmless from that Rent, those Debts &c., there Non Damnificatus will not do.
       C. J. There is no Time sett, when the Payment of the Company Debts shall be made, in the Covenant.
       To pay, and shall pay all the Debts, due or that shall hereafter become due.
       Difference between an Undertaking, by Covenant or Bond, to pay and save harmless, And an Undertaking to save harmless only.
       The Judges of England make a strong Inference from the Silence of Precedents.
       Tis a Duty as much when there is no Day fixed as when there is a Day fixed, and the Law says it shall be done in a reasonable Time.


Title: Editorial Note
From:
To:

       On 22 November 1762, Jeremiah Lee, prominent Marblehead ship owner and merchant, obtained a policy of marine insurance upon one half the cargo of the schooner Merrill for a voyage “from Marblehead to any and all the Islands in the West Indies to Windward of St. Croix, St. Thomas, Havannah and Jamaica until the cargo is sold and delivered.” The Merrill was then 79 days out of Marblehead. The eight underwriters, of whom Jonathan Bancroft was one, did not know that on October 17th, while making for Martinique, she had been taken by a Spanish privateer. When Lee subsequently presented his claim for the loss the underwriters refused payment on grounds of fraud. About a year later, the claim was submitted to arbitration in accordance with a provision of the policy. In November 1763 the arbitrators, Foster Hutchinson, John Rowe, and Melatiah Bourne, returned their unanimous report that Bancroft and six of his fellow underwriters, who had agreed to the submission, were liable in the amounts which they had subscribed. These seven made payment accordingly. The eighth underwriter, William Shillaber, was less tractable. He had not agreed to the arbitration, and Lee was forced to bring suit against him on the policy. In June 1767 Shillaber finally prevailed in an action of review in the Superior Court.
       Thereafter Bancroft and two other underwriters brought actions against Lee, claiming that the policy was void and demanding return of the payments made under it. Bancroft’s case, in which Adams was of counsel for Lee, provides some useful insights into the conduct of maritime and mercantile affairs. It also raises an interesting problem of the effect of an arbitration proceeding upon subsequent litigation between the same parties and shows bench and bar applying English authority of most recent date to this question.
       Bancroft’s declaration in an action on the case in deceit alleged that Lee had induced the underwriting by his deliberate false affirmation that the insurance was a “fair chance,” and that he had knowingly concealed two circumstances which materially altered the risk: (1) that the master’s sailing orders had directed him to proceed to “the Island of Martineco (if he could get in there)”; and (2) that Lee, before the policy was written, “had received certain Intelligence that the said Schooner had not arrived at Martineco ... when she had been gone from Marblehead ... by the space of thirty three days.” After Lee prevailed in the Inferior Court on a sham demurrer, Bancroft appealed to the Superior Court, where at Ipswich in June 1769, upon waiver of the demurrer, the case was tried to a jury. Document 1 is Adams’ memorandum of authorities on the issues presented by the fact that the vessel was actually lost at the time of the underwriting. Since Lee’s policy included the words “lost or not lost,” the underwriters were liable unless Lee had sought the insurance with knowledge of the loss. This question was apparently determined adversely to Lee, because the jury found for Bancroft in the amount paid out, plus interest.

       Lee then obtained a writ of review, which was first brought on for trial in November 1770, but was continued on the withdrawal of a juror. In June 1771 at Ipswich the case came on again, but after Bancroft had put in at least a part of his evidence, it was continued on Lee’s motion, the ground not appearing. Adams’ minutes of this phase (Document II) are largely a summary of the testimony. John Lowell, counsel for Bancroft, after expounding authorities in his favor, produced evidence tending to show that the Merrill had in fact sailed for Martinique. He then sought to establish his allegations as to Lee’s concealment of knowledge of the vessel’s loss and as to his calling the risk a “fair chance.” The question of knowledge turned on the deposition of one Captain Howard, who had returned to Marblehead two weeks prior to the writing of the policy, reporting that he had heard nothing of the Merrill. Did this report amount to “certain intelligence” of her nonarrival, and was it known to Lee or to the underwriters?
       The case was brought to trial a third time in November 1771. Here Adams’ minutes (Document III) suggest that after Lowell had concluded his case the court on its own motion raised the problem of the effect of the 1763 arbitration report. In any event the jury was again dismissed and the action continued, this time by order of court. While Adams may have raised this question himself, it is interesting to note that this was the first occasion on which Foster Hutchinson, newly appointed to the court, had sat on the case, that he was one of the referees in 1763, and that he seemed to take the lead in dealing with the issue.
       After this continuance Adams and Jonathan Sewall, who with Lowell was of counsel for Bancroft, entered into a stipulation to the effect that if the court found that the report (which had not been pleaded) could be admitted in evidence under the general issue, and found that, if admissible, the report was a bar to Bancroft’s action, then Bancroft would default. In June 1772 the court found the report admissible and once again ordered a continuance, doubtless for argument on the second point. At Salem in November 1772, according to William Wetmore’s minutes (Document V), Hutchinson disqualified himself, and, with the other referees, gave evidence concerning the arbitration proceedings. Their testimony as minuted by Adams (Document IV) shows that the questions of the Merrill’s actual destination and Lee’s knowledge of her apparent non arrival had been raised at the hearing in 1763. The court had at first held that the award without more was not a bar, but on this showing they found that the action could not be maintained, applying the doctrine known today as collateral estoppel. A jury which had been empaneled was dismissed, and Bancroft’s default was entered in accordance with the agreement.


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

       Lee vs. Bancroft. Ipswich June 1771.
       Lowell. Cun. 173. Concealment of Intelligence, a Fraud. Each Party ought to know all the Circumstances.
       178.–179. 184.
       79 days from Gordon’s sailing to the Insurance, which was a good Chance to have heard of her Arrival at any Part of the W. Indies.
       J. Pedricks Deposition. Gordons Protest. Jab. Harlow’s Deposition.
       Captn. Jos. Howard. Arrived from Martinique 7th. Novr. Saild, 7. Octr. Frenchman arrived from Guadaloupe. Deposition vid.
       Mr. Shillibeare. I asked whether the Vessells were in Time or whether the Chances were fair. A few days after Mr. Hooper came into the office and enquired if Lee said nothing of his having a Chance. Then he has taken you in, &c. From 20 to 26 or 27 days a common Chance. I would not have wrote under 50 Per Cent. I did not know there was such a Man as Captain Howard. Never heard of his going to the W. Indies. I have been Master, but never was strictly bound up.
       C. Hodges. 3 Vessells together. Dont remember any Questions put to him. No dispute—all seemd fair. Hooper came in and said We were taken in. Somebody said We should have looked to our Title. Never knew a Policy underwrote without enquiring when the Vessell sail’d. Something said in the office about the Vessells being overset before she sail’d. At the Time when Lee was in the Office and Cabbit present talking with Lee. It appeared to me to be in Time and a customary Praemium. One said she was fair, in season, in Time. They often take it from the 1st. underwriter who enquires the Circumstances. Those that follow sometimes take it for granted.
       Jos. Hodges. Lee wrote the Minutes himself. Cabbit said fair Chances I suppose. Yes. I Asked how long those Vessells had been out. Lee made a Pause. Lee said the 1st. Advice will give an Account of 2 of em. And it did. 2 were taken. I relyed upon Lees Honour that he would not put in an unfair Chance. 30 days a Chance. I did not know of the Arrival of Howard. I would not have wrote upon any Consideration. Dont remember Powers being mentiond. Fellows not mentiond that I remember. Many Vessells at that time had long Passages. Knew Howard was an Eastern Master. But should not have thought to enquire W. India News of him.
       Jona. Gardiner Junr. Nothing said of Howards Arrival. I did not know of it. Coll. Lee once scratched his Name out once and said he never took desperate Chances, and never put in unfair ones. A Man of Character declaring it is a fair Chance is generally satisfactory.
       Jona. Ropes Junr. I underwrote for Pedrick, and was a good Mind to take £20 more for Lee but did not. I did not know of Howards Arrival. I knew when she sailed. But it might be because, We must write on all 3 or none. The Risque not so great when a Number, as on one. Dont know that ever I underwrote first without enquiring when the Vessell sailed, and the Circumstances.
       George Dodge. Col. Lee said fair Chances. I had underwrote upon Gordon before, and did not know of Howards Arrival. I have made several Voyages in 14 Weeks. Hoopers News was received in the Office with surprise, and uneasiness.
       Warwick Palfry. She might have returned and made her Voyage in 79 days. I knew a Vessell that performed 3 Voyages nearly in 10 Weeks and 3 or 4 days.
       Saml. Ward. Lee said he never put a Vessell in out of Time and never took a desperate Chance.
       Gordons Sailing Orders.


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

       Salem. Novr. 1771. Lee vs. Bancroft.
       Lowell. 24 or 25 days a Chance. Passages from 17 to 25.
       Vessell in Time. A fair Chance. Did not mention how long she had been out, nor Howards arrival.
       Col. Lees Character so respectable, and Knowledge so perfect, that “a fair Chance” &c. from him would preclude all Enquiry.
       1764 Jany. 28. Receipt for Money.
       Judge Hutchinson mentiond a Case in Wilson that the Court will not sustain an Action when the Policy is or has been under Refference. But the Clause in the Policy, that it shall be left to Arbitration, shall not preclude an Action.
       Moses vs. Macfarlan. Burrows. Vol. 2d. 1009. Money paid upon a Risque deemed to be fair.


Title: Editorial Note
From:
To:

       This is a companion case to Bancroft v. Lee, No. 10. John Crowningshield was one of the underwriters on the marine insurance policy taken out by Lee in 1762 upon one half the cargo of the schooner Merrill. He had submitted to the arbitration of Lee’s claim, and in 1765 he finally paid his share of the Merrill’s loss after Lee had recovered judgment against him upon the arbitration award in the Inferior Court. Crowningshield thereafter died, but in March 1769 his widow, perhaps inspired by the success of other underwriters in reopening the matter, brought an action against Lee in the Salem Inferior Court, alleging a false affirmation and the concealment of material circumstances in language virtually identical with that used in Bancroft’s declaration. At the July term 1769 she obtained judgment after a jury trial, and Lee appealed to the Superior Court, where Adams and James Putnam served as his counsel.
       Adams’ short minutes of the trial in November 1769, printed below, deal almost entirely with the evidence presented on the question whether Lee’s failure to reveal his orders to the master, Nicholas Gordon, amounted to concealment of a material circumstance. Lee’s written application sought insurance for a voyage “from Marblehead to any and all the West India Islands to Windward of St. Croix, St. Thomas, the Havana, and Jamaica till said Cargo is sold and delivered.” Although this description is not without ambiguity, read literally it would seem to include both Guadeloupe, to which the master testified that Lee had directed him orally, and Martinique, the destination in Lee’s written orders. Both islands lie generally in the direction of the prevailing easterly trade winds from the named points. The plaintiff presumably accepted this reading, since she did not plead and does not seem to have argued either that this language, which was substantially repeated in the policy, was a warranty breached by a voyage to Martinique, or that a voyage to Martinique was outside the policy’s coverage. Her point may have been that failure to disclose orders to Martinique was a concealment despite the literal meaning of the description of the risk, because the island had just been captured from the French and was still in a dangerous zone.
       Lee apparently relied on the master’s testimony that the final orders were to Guadeloupe. His position may have been that such orders were not a material circumstance, since the latter island had been in English hands since 1759. More simply, Lee may have urged that Mrs. Crowningshield’s action failed because her declaration alleged concealment of orders to Martinique and the proof was that the orders had been to Guadeloupe. Whatever the argument, Lee prevailed. The judgment of the Inferior Court was reversed with costs.
       Mrs. Crowningshield entered an action of review at the November 1770 Salem Superior Court, with Adams now alone as Lee’s counsel. At this term three of the other underwriters joined Mrs. Crowningshield in a rule to refer their claims. The referees brought in a unanimous report in Lee’s favor, awarding him costs both of the action and the reference.


Title: Adams’ Minutes of the Trial: Essex Superior Court, Salem, November 1769
From: Adams, John
To:

       Crowningshield vs. Lee. Salem S. Ct. Novr. Term.
       Receipt for the Money, “and Costs of Court.”
       1762. Aug. 9. Sailing orders. To proceed to Martineco or any other Island—“and sell, at said Island, or any other Island in the West Indies.”
       1762. Novr. 4. Grand terre. Nick Gordon, the Masters Protest, that they saild 4. Septr. from Marblehead bound to Martineco. 17th. Octr. taken.
       1769. July 10. Gordons Testimony. “By particular verbal Directions, from Lee, a few Hours before sailing, I proceeded for Guadaloupe, and because Lee told me, that R. Hooper had orderd Captn. Power to Martineco, &c. After trying to get to Guadaloupe and could not, I thought it best to try for Martineco. My Written orders to proceed to Martineco or any other Island.”
       Rob. Hooper Esqrs. Testimony.
       The Mate’s.


Title: Editorial Note
From:
To:

       John Mein’s stormy career was cut short by two actions brought against him by John Hancock under a power of attorney from Mein’s London creditors. That Mein infuriated the “well-disposed” and the Sons of Liberty is certain; that they rejoiced in his difficulties, including these protracted lawsuits, is equally clear. It is more doubtful whether Mein was correct in attributing to Hancock the responsibility for initiating the litigation. The evidence tends somewhat the other way.
       To begin with, there is no question that by late 1768, Mein had run up sizable debts to two major London suppliers, Thomas Longman, the bookseller of Paternoster Row, and a firm of stationers, Thomas Wright & William Gill. Mein did swear that his credit would have remained good had not Hancock “with an intent as this deponent believes to distress him the more wrote home letters to ... Longman ... importing that the aforesaid Hancock would willingly accept of a power of Attorney from ... Longman to whom this deponent was indebted as ... Longman alledges in the sum of one thousand six hundred pounds or thereabouts in order to seize or attach the effects of this deponent in Boston.”
       But the other sources suggest that whatever zeal Hancock may ultimately have thrown into the prosecution of the case, the initial impulse came from Longman, who in a letter of 22 July 1769 invited Hancock’s assistance in recovering the debt. It is not certain just when this letter reached Hancock, nor has his reply survived. Apparently he responded affirmatively on 24 October 1769, requesting a formal power of attorney as well as Mein’s account with Longman.
       Between 22 July and 24 October, Mein’s standing with the patriot party had deteriorated even more sharply. On 21 August he had begun publishing the manifests which incriminated many of the ostensible nonimporters. On 5 September, John Robinson had caned James Otis in the British Coffee House, and Mein had defied a mob to stand surety for W. S. Brown, accused of aiding Robinson. Enraged, the patriots had on 10 September censured Mein for treating “the whole body of merchants and traders in the most haughty, imperious, and insulting manner.” “Mr. Mein at present is so obnoxious to the People on account of his publishing the Manifests that he’s obliged to go Arm’d” a contemporary wrote, “and tis but a few Nights since that two Persons who resembled him pretty much were attack’d in a narrow Alley with Clubs, and would in all probability have lost their lives if the Mistakes had not been timely discover’d.”
       Shortly after Hancock accepted Longman’s commission, the final storm broke around Mein. On 28 October, as he was walking up King Street, a threatening crowd began to surround him. Pulling out his pistol, he faced down his assailants and slowly backed his way toward the guardhouse at the head of King Street. There he gained safety, but not before Thomas Marshall had laid the sharp edge of a shovel to Mein’s back, and Mein’s pistol had somehow gone off. Hidden in the guardhouse, Mein managed to elude the mob, even though Samuel Adams and William Molineux obtained a warrant and personally searched the premises for him. Finally, he escaped to a ship in the harbor, while ashore his effigy became the hate figure of the annual Pope’s Day festivities.
       It was impossible for Mein to return to Boston. When he asked Governor Hutchinson for military protection to enable him to press his civil remedies against those who had mobbed him, Hutchinson refused. “In Ireland perhaps where the people have been long used to the military upon an apprehension only of violence from the populace such a measure might have been advisable. In the present state of the colonies I could not think so; and rather thought it advisable for him to forebear prosecuting his complaint for some time.” Only one thing remained for Mein to do, and he did it: return to Britain.
       Longman meanwhile, having received Hancock’s undertaking to act as attorney, immediately himself executed and caused Wright & Gill to execute certified powers of attorney which, together with bookkeepers’ affidavits, were promptly sent to Boston. These arrived on 1 March 1770; that very day, John Adams filled out the writs and had the deputy sheriff seize Mein’s property, which included his stock of books and, most important, “Seven frames on which are sixty-five Cases with the Types &c. Two Printing Presses with all the Materials thereto,” and “One composing Stone.”
       As Mein later swore, “On the afternoon of said day it was propos’d to Mr. Hancock’s Lawyer (Mr. Adams) to give undoubted security to stand the issue of the suit, he discharging the attachments. This proposal was refused and Mr. Murray (Mr. Mein’s friend who made the proposal) given to understand that nothing would be satisfactory but an absolute security for the debt independent of any suit. The day following, Mr. Murray sent proposals of accomodation in writing to Mr. Hancock to which he receiv’d Mr. Hancock’s answer on the 3d of March. On the 7 of March Mr. Murray sent other proposals of accomodation to Mr. Greenleaf the Sheriff which Mr. Greenleaf answer’d in a letter to Mr. Fleeming the Friday following 9 March. On the 25th Mr. Murray again wrote to the Sheriff and receiv’d an Answer the 4th of May.”

       The texts of Murray’s original proposals to Hancock have not been found. Charles Bolton, who appears to have examined them in the early 1900’s, when what are now the Hancock Papers at the Massachusetts Historical Society were still in the possession of Charles Pelham Greenough, reported that Murray wanted “to have the attachment withdrawn, allow the suit for £1600 to go on in the King’s Bench and abide by the judgment of the Court, the property meanwhile to be appraised upon oath and to be delivered up to Hancock as attorney when executions came to be issued.” The reference to the Court of King’s Bench may be inadvertent; on the other hand, perhaps Murray contemplated a discontinuance of the Massachusetts action in favor of proceedings in London, before an English jury instead of an American one. If it was the local jury which Murray feared, later events proved his doubts well-founded. And, as it turned out, Longman started a suit in the King’s Bench anyway.
       Despite the failure of the preliminary settlement negotiations, Murray was able, by a means still unexplained, so to manage matters “with the Sheriff as to get him to accept of a pledge for the value of Mr. Mein’s Interest attached at the printing office. This set the press a going again, much to the Surprize and Disappointment of Mr. H—— and his party, with whom this was the Capital Object in this Stroke of his. A method has been since hit on to relieve the books also by a tender of other Goods.”
       It is not clear whether the method of relieving the books ever went into operation. On 18 May 1770, Hancock reported to Longman that Mein’s “Effects are in the hands of the Sheriff, and as soon as it has gone thro’ the Law, and the Effects turn’d into money, the neat proceeds shall be remitted you, and you will determine the settlement between you and Messrs. Wright & Gill. Tho’ I fear even the Whole of his Effects will fall vastly short of the Debts, but I have got all and could get no more.” And Hancock urged Longman to “get further Security of Mr. Mein in London.” This Longman had already done, commencing an action in the King’s Bench against Mein for the amount of the debt and having him arrested and committed to prison “in hopes of His having some Friends that would appear in His behalf.” Friends did appear, but none apparently with funds sufficient to release the attachment and free Mein.

       Meanwhile, back in Boston, Fleeming, who had been keeping the Chronicle going, at last gave up. On 25 June 1770, he put out his final number, “shut up his printing office and fled to the castle for protection.” And the lawsuits droned on, having been entered at the April 1770 Suffolk Inferior Court, but continued from term to term. As Hancock explained to Longman, “by a law of the Province, when an Action is brought against a man who is out of the Province, the action must be continued in the Inferior court six months. This was the reason why the action against Mr. Mein was continued at first and when the six months were expired, Mr. Kent, the lawyer, appeared for Mr. Mein at the request of Mr. Fleeming who had a power of attorney from Mein, and moved in Court that these actions might be continued three months longer, because he said Mr. Mein had since been arrested in London for the same debt and was a prisoner in the King’s Bench for them and therefore desir’d time that they might get evidence of it, in order that the suits here might be discharged. The Court granted the motion.”
       Finally, on 15 January 1771, the actions came on for trial in the Suffolk Inferior Court, with Adams representing the creditors, and Benjamin Kent defending Mein. Our account of what took place is conjectural, for Adams’ trial notes have not survived; we have only a list of authorities which he used in argument. The reconstruction which follows has been based on the Hancock correspondence and the court files.
       In both actions, the writ had originally sounded in ordinary indebitatus assumpsit, based on an account annexed to the writ, which set out in rudimentary double entry form the amount of Mein’s purchases over the years, the sums he had paid on account, the balance due, and (in Wright & Gill’s case) the interest. When the cases came on, according to Hancock, “an objection was made by Mr. Mein’s Council to the Generality of Longman’s, and, presumably, Wright & Gill’s account, that it was not sufficiently explicit, and that the particulars should be Exhibited.” This was, Hancock assured his London correspondents, a mere delaying ruse. Nonetheless, “it is best at the next Trial to be ready to answer and remove their objections.” So he forwarded “Mr. Adams’s (my attorney) minutes to me in order to Transmit you, by which you will see what is necessary for you to do, and I pray you will so soon as possible after the receipt of this prepare the necessary papers and accounts and be as explicit as possible. ... You will Communicate this to Messers. Wright & Gill.” That Adams considered the accounts essential to the case may be deduced from the fact that Hancock sent his letter in duplicate by two separate vessels.
       It is not certain whether by 16 January 1771, the date of Hancock’s letter, the trials had been held; the court files contain a summons in Adams’ hand to “Alexander Reid Stationer, and William Miller both of Boston,” dated 17 January 1771; the return indicates that these witnesses were actually subpoenaed on 19 January. Possibly the court heard the preliminary objections and then continued the matters for trial later on in the term; the cases were certainly tried at this term. At the trial Adams apparently put into evidence the depositions of the respective bookkeepers which established the facts of the debts; he may also have called Reid and Miller for evidence on the reasonableness of the Wright & Gill prices or even to prove that Mein had actually received the goods in question. Whether the defense adduced any evidence is an open question.
       From Adams’ authorities (Document II) and Hancock’s letter of 16 January, referred to above, it appears that the court, on whatever evidence the plaintiffs had brought forward, or perhaps on the basis of defendant’s objections to the legal sufficiency of the accounts, had directed a finding for the defendant in one or perhaps both of the actions, and that the respective juries had notwithstanding brought in plaintiff’s verdicts. The material at the end of the Adams notes suggests that the objection reported by Hancock had been the basis for the court’s charge that the accounts lacked particularity.
       At any rate, the juries seem to have treated the cases individually. In the Wright & Gill action, the account annexed had listed every single shipment which made up the debt; the verdict was for the net balance, plus the claimed interest. Longman, on the other hand, had sued on an account whose first item was simply “To a Ballance due as per Account then sent ... £1453:10:0,” the other items being individual shipments. In reaching its verdict for Longman, the jury deducted the preexisting balance from the balance on the account, thus in a sense giving some effect to defendant’s objection and the court’s direction. As Adams noted: “Verdict for Longman for about £200, far short of the whole. Apld. both sides.”
       It is clear that the defendant moved for a new trial in the Inferior Court, possibly in both actions, although Adams’ collection of authorities on this point bears only the title “Wright and Gill vs. Mein—The Jury.” In his quasi-brief (Document II), the simple point of commercial evidence on which the cases really turned quickly became obscured in the constitutional argument over the sacred right of jury trial, an argument which Adams expounded even more vigorously in the apparently contemporaneous fragment reprinted here from his diary as Document III.
       Whether the “free speech” theme which underlay Adams’ references to current English political turmoil echoed some of the bitterness of the Boston journalistic controversy, and whether Adams was attempting to inject contemporary local partisanship into an otherwise quiet legal dispute are matters well beyond the scope of the present note. Certainly in Boston, free speech and the power of the jury were related subjects. Three years before, after a series of vicious attacks on then-Governor Bernard had stimulated Chief Justice Hutchinson to a detailed charge upon the subject of criminal libels to the Grand Jury, the jurors refused to indict—because they were tampered with, Bernard claimed; because they were “worthy and independent,” the Sons of Liberty boasted. And the interweaving of press and jury, as the issues had arisen in England, was brought vividly to Boston’s attention at the very time of the Mein cases, for the Boston Gazette of 28 January 1771 had reprinted the “Junius” letter to Lord Mansfield which Adams quoted in his brief; and the battle between Lord Camden and Lord Mansfield was reported in the Boston Gazette of 4 February 1771.
       Of course, the Bernard libels and the Junius-Mansfield-Camden imbroglio all dealt with the power of a criminal jury to decide law as well as fact. The interesting features of the Mein litigation are that it was an ordinary civil action, and that the court agreed with Adams and allowed the verdict to stand, a point to be considered more fully later in this note.
       In view of the right of appeal, why did Mein’s attorneys bother to resist the outcome at the Inferior Court stage? Perhaps they felt that some tactical gain would result from a delay. It is noteworthy that Adams did not seek a new trial in the Longman case, where the jury had returned a verdict so much less than the amount sued for. The explanation for that seems to lie in the court’s not having directed a larger verdict; thus the smaller verdict did not (so far as plaintiff was concerned) contravene a favorable direction.
       The double appeals in the Longman case and Mein’s appeal in the Wright & Gill case were entered at the February 1771 Suffolk Superior Court, whence they were continued, possibly because the additional accounts were still in London. By August they had arrived, full of enough bibliographical detail to support a doctoral dissertation. Hancock “immediately” delivered them to his “Attornies ... in full Expectation of the matter being Determined at our August Term, but the Judges saw fit to Refer it to November.”
       At the November adjournment, Adams chose not to rely solely on the fortified evidence. On 26 November 1771, he filed new declarations, alleging, in addition to the promise to pay, language comprising what Massachusetts lawyers then and now would call “the common counts,” a phrase which is shorthand for stereotyped language stating the debtor creditor relationship in every conceivable way. Moreover, Adams increased the amount of the alleged debt; instead of suing merely for the net amount due, he stated as damages the total of Mein’s purchases.
       It is impossible accurately to calculate the date of trial from the minute books. Hancock’s letter to Wright & Gill of 30 November says: “The Jury yesterday at Superior Court gave in their Verdict in our favor in Mein’s Affairs, but Mr. Mein’s Council mov’d for a New Trial. How that will be Determined, I know not, but will inform you and as soon as I obtain Execution will turn the Effects into money as soon as possible. Please to inform Mr. Longman of this as I have not time now to write him.”
       The jury, which had been the same in both cases, although they had been tried separately, brought in verdicts in the amount of the outstanding balances. It is worth noting, in view of the earlier arguments concerning the right of the jury to bring in a general verdict, that the verdicts as the jury originally returned them read, in each instance, “the jury find for the appellant [in Longman —”for the appellees” in the other action] the net amount sued for.” Each verdict was then amended to conform with the pleading in assumpsit to read: “the jury find that the [original defendant] made the promise alledged in the Declaration & assess damages.”

       There is no indication when, if ever, motions for new trials were heard. If they did come on for hearing, they were apparently denied because, on 23 December 1771, executions were issued. Then began the problem of trying to realize on the security. As far back as 24 April 1771, Hancock had warned Longman that despite the assurances of Mein’s friends about the adequacy of Mein’s effects to cover the claim, “you will find on the settlement of the matter here, it will fall vastly short of their Expectation and manifest their suggestion to be utterly groundless.” Now the event proved his prophecy. Longman’s original attachment had covered “a large number of books, a parcell of Stationery Ware, an Iron Stove, a Wooden press, some Patent medicines, magazines, Reviews and other pamphlets, pewter plates for Engraving, forty five trunks with a variety of other articles,” which had been stored during the litigation in a house owned by Samuel Fitch, and upon which the Sheriff levied on 27 December 1771. The appraisers were three Boston bookseller-stationers, Henry Knox, the future Secretary of War (appointed by the Sheriff), Joseph Edwards (appointed by Hancock), and John Langdon (appointed by Fleeming). After ten days’ contemplation, the appraisers valued the assortment at £1,038 8s. 10d. Massachusetts money. Deduction of various costs (including an appraisement fee of £32 15s. 5d.) brought the figure even lower: on 18 February 1772, all outstanding fees having been deducted, Hancock signed a receipt for “books, other goods and Effects” valued at £956 4s. 6d.
       The dividend on Wright & Gill’s claim was similarly slight. On 10 November 1770, three printers—Richard Draper, John Green, and Thomas Fleet—had appraised the printing plant at £185 17s. 4d., of which half belonged to Fleeming. After Sheriff Greenleaf levied execution upon this equipment on 26 December 1771, they again appraised it at the same figure. Some bookbinding equipment being caught within the execution, Langdon and Edwards returned to appraise it, too. Once again, costs were deducted, and Hancock receipted for £94 11s. 6d. worth of bookbinder’s tools and printing gear.
       Liquidating the collection was difficult. Not until the fall of 1772 was Hancock able to remit anything to England and even then he had to confess that “to this Day have not Received the Whole Money. There is now outstanding about £100 Lawful Money. However, rather than keep them any longer, I have taken it upon myself and now close the whole.”

       Whether the underlying motive in these suits was financial or political, they did raise questions of broader significance than Mein’s inability to pay his debts or even the patriots’ desire to close his newspaper. The issue of a jury’s right to decide the law independent of the court’s direction or in violation of it (and the closely related question, whether or not counsel could argue law to the jury) claimed much attention in 18th century England and America. It was present not only in this case, but also in Cotton v. Nye, No. 3, and in Rex v. Richardson, No. 59. The problem arose also in the Massacre Trials (Nos. 63, 64) where Adams very carefully urged the jury to rely on the authorities which he was citing (and which the prosecution did not dispute), in order to enable the jury correctly to determine the law itself. Josiah Quincy, on the other hand, more “carried away by zeal for his client,” argued that the law was the court’s concern, and that on the facts, the accused must be acquitted.
       The extent of the jury’s power and the means by which the judges may impose and maintain bounds on that power agitate the profession even today. At early common law, a court at Westminster, when considering the result of proceedings at nisi prius, could, if it “thought that there had been irregularity in the proceedings ... decline to proceed and leave the parties to start proceedings afresh. In other words, there was a new trial.” In the 17th century, “it became the practice for the judge, with the consent of the parties, to give leave to move the court to enter a verdict for the other side, if they considered that his direction to the jury had been erroneous.”
       By the beginning of the 18th century, the idea of granting a new trial for misdirection had become rooted in the supervisory functions of the Westminster courts. Other grounds for the granting of new trials included the judge’s error in admitting evidence or excluding it, and a “wrong” finding by the jury. This latter phenomenon divided itself into two classes, verdicts “contrary to the evidence” or “against the evidence” and verdicts “against the weight of the evidence.” The distinction does not always emerge clearly from the reports and the abridgments, but the difference seems certain. A verdict contrary to evidence was one in which all the evidence adduced, no matter by whom, tended toward one party and none toward the other. A verdict against the weight of the evidence was one in which, although favorable evidence had been produced for both parties, the evidence, taken as a whole, preponderated for one side or the other. The difference may be illustrated by an anonymous case of 1743. At the trial there had been six witnesses for each side, and the judge certified “that the jury found for the defendant, which was against his opinion, but that he could not take upon himself to say that this was a verdict against evidence, because there was evidence on both sides.”
       Generally, “if the Jury have found a Verdict contrary to the Evidence, the Court will grant a new Trial,” the theory being “that the Jury ought to ground the Verdict intirely upon the Evidence given in Court.” But, where the trial had seen evidence for both sides, the problem was more difficult. After all, a certification by the trial judge that the verdict was against the weight of the evidence was (and is today) nothing more than a judicial evaluation of the testimony, a difference of opinion between one man and twelve. Which estimate, or rather whose estimate, should prevail, seriously troubled the English judges: “It has been held in some Cases, that if the Jury have found a Verdict which is in the Opinion of the Judge before whom the Cause was tried contrary to the Weight of the Evidence this is a good Reason for the granting of a new Trial.... But it has been held in other Cases that the Court ought not to grant a new Trial; because the Jury have in the Opinion of the Judge before whom the Cause was tried found a Verdict contrary to the Weight of the Evidence.”
       An unreported case set out in Bacon’s Abridgment sums up the state of the law on this point. On the motion in the Common Pleas for a new trial, Chief Justice Pratt, before whom the trial had been held at nisi prius, said: “If I had been upon the Jury, and had known no more of the Witnesses than I did when this Cause was tried, I should have thought that the Verdict which is for the Plaintiff ought to have been for the Defendant; but I do not chuse to declare myself dissatisfied therewith: Because wherever there is a flat Contrariety of Evidence as to the principal Matter in Issue, and the Characters of the Witnesses on both Sides stand unimpeached, the Weight of Evidence does not altogether depend upon the Number of Witnesses: for it is the Province of the Jury who may know them all to determine which Witnesses they will give Credence to; and in my Opinion no Judge has a Right to blame a Jury for exercising their Power of determining in such a Case.”

       Clive, J., said: “The granting of a new Trial in this Case would be taking away that Power which is by the Constitution vested in the Jury. It has been said that it is the Duty of the Judge to enlighten the Understanding of the Jury, but that he ought not to lead the Jury by the Nose.”
       Bathurst, J.: “As there was in this Case strong Evidence for the Plaintiff a new Trial ought not to be granted, although the Weight of the Evidence was in [the trial judge’s] Opinion with the Defendant.”
       Gould, J.: “It is very difficult to draw a Line between the Cases in which there ought or ought not to be a new Trial; and perhaps the granting of a new Trial must in every Case depend upon the particular Circumstances of the Case. In the present Case there is no Reason to grant one.”
       And in so-called “hard” cases, that is, actions which the court felt should not in conscience have been prosecuted, new trials were denied after verdicts for the defendant, even though against evidence. As Bacon put it: “It has been held in divers Cases that the Court will not grant a new Trial unless the Justice of the Case requires it, although the Jury have found a Verdict contrary to the Evidence.”
       No consideration of the judge-jury problem in English law could properly omit some mention of Bushell’s Case, which established the principle that a jury which refused to convict, in defiance of the judge’s direction, could not be fined and imprisoned.
       Shortly after it was decided, the case was cited in support of the argument that the jurors need not respect the court’s direction in anything pertaining to their verdict. In a chapter entitled “That Juries are not Finable, or any way to be punish’d, under Pretence of going contrary to Evidence, or against the Judges Directions,” Henry E. Care, the author of English Liberties, set out large portions of the opinion “to satisfy you that a Jury is in no way punishable for going according to their Conscience, though against seeming Evidence.” A close reading of Chief Justice Vaughan’s holding indicates, however, that it very narrowly restricts and qualifies the jury’s role. Because of the significance of the case, and because Adams apparently cited it in his argument in the instant cases, a reappraisal of Bushell’s Case is worthwhile here.
       Bushell had been one of the jurors who had disregarded the court’s instructions and had refused to convict the Quakers Penn and Mead at their trial in the Old Bailey. As a result, the judges had imprisoned the jurors and literally starved them. Finally, Bushell’s lawyers obtained a writ of habeas corpus from the Court of Common Pleas, and the Sheriffs of London, bringing Bushell with them, came into Court to justify the imprisonment. The main reason was “That the Jury acquitted those indicted against the direction of the Court in matter of Law, openly given and declared to them in Court.” Vaughan admitted that “no Issue can be joyn’d of matter in Law, no Jury can be charg’d with the tryal of matter in Law barely, no Evidence ever was, or can be given to a Jury of what is Law, or not; nor no such Oath can be given to, or taken by, a Jury to try matter in Law.” But he denied that the judge “having heard the Evidence given in Court (for he knows no other)” could tell the jury “upon this Evidence, the Law is for the Plaintiff, or for the Defendant, and you are under the pain of Fine and Imprisonment to find accordingly.”
       However, he said plainly that the judge could before verdict ask the jury whether it had found a particular fact and, depending on the answer, could “declare ’The matter of Fact being by you so found to be, the Law is for the Plaintiff, and you are to find accordingly for him.’” And a finding for the defendant “may be thought a finding in matter of Law against the direction of the Court; for in that case the Jury first declare the Fact, as it is found by themselves, to which fact the Judge declares how the Law is consequent.”
       And even after verdict, the judge may “ask, ’How do you find such a Fact in particular?’ And upon their answer he will say, ’then it is for the Defendant,’ though they found for the Plaintiff, or e contrario, and thereupon they rectifie their Verdict.”
       It was also proper, Vaughan said, to put the matter to the jury hypothetically: “If you find the Fact thus (leaving it to them what to find) then you are to find for the Plaintiff; but if you find the Fact thus, then it is for the Defendant.”
       But, because the law of the case depended on the facts, and because the jury alone could find the facts, it was impossible for any judge to direct the jury. “If the Jury were to have no other Evidence for the Fact, but what is depos’d in Court, the Judge might know their Evidence, and the Fact from it, as equally as they, and so direct what the Law were in the Case.” But the jurors, the neighbors of the parties, have knowledge of their own, going either to the issues or to the credibility of the witnesses. It is, therefore, “absurd a Jury should be fined by the Judge for going against their Evidence, when he who fineth knows not what it is. ... [F]or the better and greater part of the Evidence may be wholly unknown to him; and this may happen in most Cases, and often doth.” “[T]he evidence in Court is not binding evidence to a Jury.”
       Finally, Vaughan noted, although in some situations, such as demurrers to the evidence, the decision goes “upon the Judge’s Opinion of the Evidence given in Court, [and] the Plaintiff becomes Nonsuit, when if the matter had been left to the Jury, they might well have found for the Plaintiff,” in all general issues, the jury merely “find for the Plaintiff or Defendant upon the Issue to be tryed, wherein they resolve both Law and Fact complicately, and not the Fact by itself.”
       Bushell’s Case thus rests principally on a concept of the jurors as quasiwitnesses, an idea which remained very much alive down to Adams’ time, as the quotation from Chief Justice Pratt demonstrates. To the Vaughan Pratt view, which is unanswerable once its major premise be accepted, the Massachusetts lawyers added an interpretation of Bushell’s Case which had come to them through Care’s book, that the jury should always decide the law as well as the fact. On 13 March 1769, the Boston Gazette ran an unsigned letter setting out a long passage from English Liberties, including this sentence: “’Tis by applying Matter of Fact and Law together, and from their due Consideration of, and right Judgment upon both, that a Jury brings forth their Verdict.”
       The author of Appendix II to Quincy’s Reports thought that, until the 1800’s, Massachusetts civil juries had the right to decide both law and fact, in support of which position he cited Stickney v. Atwood. From Dane’s digest of this unreported case, it appears that one of the purported grounds for a new trial was that the verdict was against the court’s opinion. The court apparently overruled the motion, however, holding that the verdict was “not against the court’s opinion, if the facts be true, of which the jury must judge.” Thus the case seems to stand only for the proposition that if court and jury disagree over the facts, the jury’s mind will control.
       The distinction between (1) the jury’s disregarding the court’s direction in a matter of law, and (2) the jury’s disregarding the court’s opinion of the facts was not entirely clear in 18th-century Massachusetts, although the English decisions, even the Junius cases, made the difference plain. In each of those criminal libel cases, the jury had been asked to find only the bare fact of publication, with the legal effect of publication—the guilt or innocence of the accused—to be decided then by the judge. That is, the court was asking the jury to respond to a kind of special interrogatory: “Did the defendant publish the statement in question?” Or, to put it another way, the courts were attempting to force the jury to return a special verdict (a verdict in which the jury found certain specific facts, leaving it to the court to determine which party should prevail). In a general verdict, on the other hand, the jury found “generally,” that is, for the plaintiff (with assessed damages), or for the defendant according to the plea. It was the juries’ insistence on bringing in a general verdict (not guilty) which, combined with judicial attempts to regard these general verdicts as special ones, touched off the controversy. But not even Lord Mansfield himself ever directed a jury to find the simple fact of publication.
       Inability to distinguish between the differences stemmed in part, as Adams himself noted, from the practice of styling anything the court said a “direction.” Thus what today would be considered a judge’s summing up, or perhaps his commentary on the evidence, might, in Adams’ time, be regarded as an attempt to direct a jury’s finding. Expressions like “contrary to the mind of the Court,” or “against the mind of three in four of us Judges,” could be interpreted either way.
       Of course, no one took the position that all questions whatsoever were for the jury. Even Adams admitted that there were numerous classes of litigation whose intricacies “would confound a common Jury and a decision by them would be no better than a Decision by Lott.” But Adams’ point was that the jury would recognize its own limitations and would voluntarily bring in a special verdict in such cases. He argued that it should be the jury’s decision rather than the judges’ whether or not a special verdict should be employed, and that the jury, if it liked, could decide to determine the law, no matter what the court thought. The opposing view found expression in a letter to The Censor, signed “A.Z.,” which insisted that the losing party receive a new trial “when a jury will pertinaciously determine matters of law directly against the opinion of the Court.” A middle view came from Robert Auchmuty and Chief Justice Hutchinson. Arguing against a new trial in a 1763 case, Auchmuty had said: “I confess I wish for a Power in the Court to set aside Verdicts, but not for an unlimited one. ... The Court is not to be Judge of the Law and Fact too absolutely; if it should be, it takes away all Verdicts but such as are agreeable to the Mind of the Court.” And Hutchinson asked: “Are you not agreed, that, were it evidently against Law and Evidence, there the Court may grant a new Trial, but not where there is Evidence on both sides?”
       Whatever the division of powers and function between court and jury, it is apparent that in Massachusetts anyhow, after a verdict the judges could not enter up judgment for the losing party, no matter how strong they thought his case to be. The most he could get was a new trial. Even “A.Z.” asked for nothing more than that. It was not until the middle of the 19th century that the Massachusetts Court ruled that if a civil plaintiff’s evidence was so weak that “the Court would set aside any number of verdicts rendered upon it, toties quoties, then the cause should be taken from the jury by instructing them to find a verdict for the defendant.”


Title: Adams’ Diary Notes on the Right of Juries: 1771. Feby. 12.
From: Adams, John
To:

       At a Time, when the Barriers against Popery, erected by our Ancestors, are suffered to be destroyed, to the hazard even of the Protestant Religion: When the system of the civil Law which has for so many Ages and Centuries, been withstood by the People of England, is permitted to become fashionable: When so many Innovations are introduced, to the Injury of our Constitution of civil Government: it is not surprizing that the great Securities of the People, should be invaded, and their fundamental Rights, drawn into Question. While the People of all the other great Kingdoms in Europe, have been insidiously deprived of their Liberties, it is not unnatural to expect that such as are interested to introduce Arbitrary Government should see with Envy, Detestation and Malice, the People of the British Empire, by their Sagacity and Valour defending theirs, to the present Times.
       There is nothing to distinguish the Government of Great Britain, from that of France, or of Spain, but the Part which the People are by the Constitution appointed to take, in the passing and Execution of Laws. Of the Legislature, the People constitute one essential Branch–And while they hold this Power, unlimited, and exercise it frequently, as they ought, no Law can be made and continue long in Force that is inconvenient, hurtful, or disagreable to the Mass of the society. No Wonder then, that attempts are made, to deprive the Freeholders of America and of the County of Middlesex, of this troublesome Power, so dangerous to Tyrants and so disagreable to all who have Vanity enough to call themselves the better Sort.–In the Administration of Justice too, the People have an important Share. Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People.
       As the Constitution requires, that, the popular Branch of the Legislature, should have an absolute Check so as to put a peremptory Negative upon every Act of the Government, it requires that the common People should have as compleat a Controul, as decisive a Negative, in every Judgment of a Court of Judicature. No Wonder then that the same restless Ambition, of aspiring Minds, which is endeavouring to lessen or destroy the Power of the People in Legislation, should attempt to lessen or destroy it, in the Execution of Lawes. The Rights of Juries and of Elections, were never attacked singly in all the English History. The same Passions which have disliked one have detested the other, and both have always been exploded, mutilated or undermined together.
       The british Empire has been much allarmed, of late Years, with Doctrines concerning Juries, their Powers and Duties, which have been said in Printed Papers and Pamphlets to have been delivered from the highest Trybunals of Justice. Whether these Accusations are just or not, it is certain that many Persons are misguided and deluded by them, to such a degree, that we often hear in Conversation Doctrines advanced for Law, which if true, would render Juries a mere Ostentation and Pagentry and the Court absolute Judges of Law and fact. It cannot therefore be an unseasonable Speculation to examine into the real Powers and Duties of Juries, both in Civil and Criminal Cases, and to discover the important Boundary between the Power of the Court and that of the Jury, both in Points of Law and of Fact.
       Every intelligent Man will confess that Cases frequently occur, in which it would be very difficult for a Jury to determine the Question of Law. Long Chains of intricate Conveyances; obscure, perplext and embarrassed Clauses in Writings: Researches into remote Antiquity, for Statutes, Records, Histories, judicial Decisions, which are frequently found in foreign Languages, as Latin and French, which may be all necessary to be considered, would confound a common Jury and a decision by them would be no better than a Decision by Lott. And indeed Juries are so sensible of this and of the great Advantages the Judges have to determine such Questions, that, as the Law has given them the Liberty of finding the facts specially and praying the Advice of the Court in the Matter of Law, they very seldom neglect to do it when recommended to them, or when in any doubt of the Law. But it will by no Means follow from thence, that they are under any legal, or moral or divine Obligation to find a Special Verdict where they themselves are in no doubt of the Law.
       The Oath of a Juror in England, is to determine Causes “according to your Evidence”–In this Province “according to Law and the Evidence given you.” It will be readily agreed that the Words of the Oath at Home, imply all that is expressed by the Words of the Oath here. And whenever a general Verdict is found, it assuredly determines both the Fact and the Law.
       It was never yet disputed, or doubted, that a general Verdict, given under the Direction of the Court in Point of Law, was a legal Determination of the Issue. Therefore the Jury have a Power of deciding an Issue upon a general Verdict. And if they have, is it not an Absurdity to suppose that the Law would oblige them to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment and Conscience.
       It has already been admitted to be most advisable for the Jury to find a Special Verdict where they are in doubt of the Law. But, this is not often the Case–1000 Cases occur in which the Jury would have no doubt of the Law, to one, in which they would be at a Loss. The general Rules of Law and common Regulations of Society, under which ordinary Transactions arrange themselves, are well enough known to ordinary Jurors. The great Principles of the Constitution, are intimately known, they are sensibly felt by every Briton—it is scarcely extravagant to say, they are drawn in and imbibed with the Nurses Milk and first Air.
       Now should the Melancholly Case arise, that the Judges should give their Opinions to the Jury, against one of these fundamental Principles, is a Juror obliged to give his Verdict generally according to this Direction, or even to find the fact specially and submit the Law to the Court. Every Man of any feeling or Conscience will answer, no. It is not only his right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the Court.
       A religious Case might be put of a Direction against a divine Law.
       The English Law obliges no Man to decide a Cause upon Oath against his own Judgment, nor does it oblige any Man to take any Opinion upon Trust, or to pin his faith on the sieve of any mere Man.