Legal Papers of John Adams, volume 2
On 25 July 1768 the legally qualified voters of Rowley's West Parish met to determine how the parish would dispose of its old meetinghouse and erect a new one on a different plot.1 Following the procedure prescribed for town meetings, they first chose a moderator, Deacon Richard Thurston.2 Before the meeting could proceed further, however, someone questioned the qualifications for voting of one Abel Plummer. By statute in such cases, the moderator was required to rule on Plummer's qualifications, basing his decision on the current assessors' valuation.3 That docu-2ment listed Plummer's estate at only £18 16s.,4 which was less than the statutory minimum of £20. Thurston apparently allowed Plummer to vote anyway, at least in an initial show of hands on one of the five questions before the meeting. Unable to determine the result in the question, Thurston called for a “poll,” which Adams' minutes, set out below, suggest was conducted like a modern parliamentary “division”: all the voters left the meeting house, re-entering it by one of two doors, according to their votes.
Plummer apparently participated in the poll, but it is not clear whether or not Thurston counted him. In any event, according to witnesses, Plummer's vote had not been necessary to a result on the question before the meeting. This was apparently the basis of Thurston's defense in a qui tam action of debt brought by Asa Pingry of Rowley on the statute levying a penalty against a moderator who permitted an unqualified voter “to give his voice” in the meeting.5 If the vote was not necessary, Thurston contended, the moderator could not be said to have permitted the voter to participate within the meaning of the statute. Whatever the weakness of this contention as an exercise in statutory construction, it appears to have had jury appeal. Pingry did take a verdict in the Salem Inferior Court in December 1768, but Thurston, with Adams of counsel, won both the appeal at the Ipswich Superior Court in June 1769 and the action of review at Salem in November 1771.6 Adams' minutes seem to date from the latter action, in which Daniel Farnham was of counsel with him. John Lowell represented Pingry.
See the warning, 15 July 1768, and minutes of the meeting, 25 July 1768, in SF 132134. The West Parish was the Second Parish. A. E. and E. M. A. Jewett, Rowley, Massachusetts 101 (Rowley, 1946). According to one historian, “In 1769, a new meeting-house, fifty-five feet by forty, was raised, with a steeple and porch, all in one day. This house was dedicated, September, 1770, and the dedication sermon preached, by the eminent Rev. George Whitefield, of England.” Thomas Gage, History of Rowley 32 (Boston, 1840).
Minutes of the meeting, SF 132134. The procedure was established under Act of 22 Dec. 1716, 2 A&R 30: “[A]t every such meeting a moderator shall be first chosen by a majority of votes, who shall be thereby impowered to manage and regulate the business of that meeting. And when it shall so happen that any matter remains doubtfull after a vote, the moderator is hereby directed and required that the same be decided by the poll, if seven or more desire it, presently after the vote is called in question.” Thurston had been a deacon since the founding of the church in 1732. Gage, Rowley 95. JA described him as “a venerable old Man, with his snowy, hoary Locks,” when they met on the evening of 4 Nov. 1771, possibly to discuss this case. Diary and Autobiography
50.
Act of 15 Jan. 1743, 3 A&R 47–48: “[N]o person shall be deemed duly qualified or be admitted to vote in the choice of officers, or in the other affairs to be transacted at any meeting of the town, precinct or parish where he dwells, but such only who are personally present at such meeting, and have a rateable estate in such town or district, besides the poll, amounting to the value of twenty pounds, by the following method of estimation; viz., real estate to be set at so much only as the rents or income thereof for the space of six years would amount to were it let at a reasonable rate; and personal estate and faculty to be estimated according to the rule of valuation prescribed in the act from time to time made for apportioning and assessing publick taxes. . . . [W]hen any dispute shall arise respecting the qualifications of any person offering his vote in any such publick meeting, the same shall be determined by the moderator of such meeting according to the list and valuation of estates and faculties of persons, in such town or district, last made by assessors under oath; and if it thereby appear that such person is not qualified as by this act is provided, his vote shall not be received:
provided, that the value of lands leased shall not be reckoned to qualify the ter-tenant, but to qualify the lessor if he be an inhabitant in such town, precinct or parish. . . . [I]f the moderator of any such meeting shall countenance and permit any person not qualified as aforesaid, whose qualification for voting has been called in question, to give his voice in any such meeting, he shall forfeit and pay the sum of five pounds; and whosoever shall presume to put in more than one vote at a time shall forfeit and pay the sum of five pounds; one moiety of the said forfeitures to be for the use of the poor of the town where the offence shall be committed, and the other moiety to him or them that shall inform or sue for the same in any of his majesty's courts of record.”
SF 132134.
For the Act, see note 3 above. “Qui tam” is the Latin for the form of the writ in a penal action, in this case, “who sues as well in behalf of the poor of said Town of Rowley as for himself.” SF 132134. Compare the practice in Admiralty proceedings under the Acts of Trade. No. 46, notes 28,
For the judgment of the Inferior Court, see SF 132134. For the Superior Court actions, see Min. Bk. 85, SCJ Ipswich, June 1769, N–9; SCJ Rec. 1769, fols. 62–63. Min. Bk. 93, SCJ Salem, Nov. 1771, N–4; SCJ Rec. 1771, fols. 196–197.
1771-11
Lowell.
Prov. Law, page 29. If any Dispute shall arise, it shall be determined. A Penalty for permitt
Benja. Adams. Parliamentary Abilities. Knew all his Party.
Jona. Herriman. Abel Plummer voted in the Choice of the Moderator. Deacon Thurston said He could, did, and would count him as a Voter. It never was disputed at that Time among the whole People that he was counted. Chaplain said I cant count Abel Plummer. Deacon Thurston said I can, and I do count him. He is as good a Voter as any at
Benj. Adams. They want
Holmes. Deacon said it was pitty, that Pingry should be at the Expence of proving that he allowed Plummer to vote for he did and would allow it, and pleaded Conscience for so doing. He counted and allowed him a Voter. He mentioned a Mistake of the Assessors, and said that P
Mr. Farnham.
Jeremiah Searl. Clerk of the Meeting, and by the Moderator the whole Time. Many Thought Plummer was a Voter, many Thought otherwise. Much said upon it. Mod
Mr. Spoffard. Moderator commanded silence, and said there was no need of the Clammr. There is a Vote without Plummer, and I declare it a Vote without him. Clerk record it.
Moses Dole. Moderator declared at the Door, there was a Vote without Abel Plummer. They need not make such a Clamr.
John Tinney, Constable. An Objection vs. A. Plummer. Moderator tryd by Hand Vote. 48. 58. 68. A Mistake in the Valuation. Moderator tryd 3 Ways. I counted with him, and there was a Dispute about 3 Baptists.5 I made one Odds for the Vote. Moderator said leaving out Ab. Plummer and counting the Baptists there was one Odds. No need of the dispute. There is a Vote without Plummer. Such a Noise that half could not hear. We dont want6 him, I declare it a Vote. Afterwards he said he determined to set him aside if there had been a Tye.
Wm. Chandler. 3 Ways. I dont want him to vote, there is a vote without him. I declare it to be a Vote. Clerk record it.
In JA's hand. Adams Papers, Microfilms, Reel No. 185.
See note 3 above. Lowell's citation is to Temporary Acts and Laws Of His Majesty's Province of the Massachusetts Bay in New-England (Boston, 1763), where the Act appears at p. 28–30.
Thus in MS.
Thus in MS. JA's notes are slightly garbled, but the sense is clear.
The dispute may have arisen because the Baptists in question were exempt from taxation to support the ministry. See No. 37. If such were the case, it may have been argued that they could not vote on a question involving church affairs. That this argument was invalid in 1768 is suggested by the fact that the ministerial tax exemption act of 30 June 1740, c. 6, §4, 2 A&R 1022, expressly barring persons exempt from tax for religious reasons from voting on questions pertaining to the settlement of ministers and the construction of meetinghouses, expired in 1757. Its successor, the Act of 25 Jan. 1758, c. 20, 4 A&R 67, contained no such bar, and a restriction was not enacted again until the Act of 20 Nov. 1770, c. 10, §5, 5 A&R 113.
That is, “need.”