Legal Papers of John Adams, volume 2

Wetmore’s Minutes of the Argument<a xmlns="http://www.tei-c.org/ns/1.0" href="#LJA02d025n1" class="note" id="LJA02d025n1a">1</a>: Essex Superior Court, Ipswich, June 1772 Wetmore, William

1772-06

Wetmore’s Minutes of the Argument: Essex Superior Court, Ipswich, June 1772 Wetmore, William
Wetmore's Minutes of the Argument1
Essex Superior Court, Ipswich, June 1772
Essex Novemr. 1771.

On motion to give property in evidence on non cul. ruled that in this case it must not be, ruled by 3 of the Justices. Ropes and Cushing gave no Opinion having heard no argument.

Mr. Adams then moved for a repleader. Objected that its grantable not of right but favor and its error when granted or refused wrongfully. Its grantable in cases where the right of the suit cant be determined by the issue.2 Also objected that this is after verdict below.

62

J. Trowbridge . The difficulty is that the defendant by repleader deprives the plaintiff of the advantage. Hutchinsonand Trowbridge against it because the plaintiff may lose an advantage. Cushing inclining to replead. J. Ropes says nothing. J. Oliver against a repleader.

Adams moved to ask the plaintiffs witnesses whether the plaintiff was not reputed a Slave and used as such by his master the defendant (in mitigation of Damages).

Proof was given that Taylor owned3 a bargain between Caesar and him for his freedom for £600 Old Tenor and that part of it had been paid.

Note. J. Trowbridge said in this case that the pleadings allowed the plaintiff to be a person and one able to sue. He is therefore not property which is a thing and a thing can't maintain an action. By English laws a person must be free, else no murder to kill him.

Said by Mr. Adams that Superior Court in J. Sewall's day determined from civil law authorities produced by Mr. Gridley and Pratt, that the children of a woman slave were the property of the master of the mother, and that negroes are in classe rerum and are Slaves in this Country.4

1.

Wetmore Notes. Adams Papers, Microfilms, Reel No. 184. The date heading the document refers to the term from which the case was continued, because William Cushing and Nathaniel Ropes were not appointed to the Superior Court until 15 Jan. 1772. Whitmore, Mass. Civil List 70.

2.

“Occasionally the Court would order a repleader, that is to say, that the pleadings should start afresh, for it might turn out that owing to some error which had been overlooked the fact on which issue had been joined did not dispose of the questions between the parties, so that the Court was after all not in a position to give judgment either way, no matter how that question of fact had been determined.” Sutton, Personal Actions 134.

3.

That is, admitted.

4.

Stephen Sewall (1702–1760) was Associate Justice of the SCJ from 1739 to 1752, Chief Justice from 1752 to 1760. The case in question has not been identified. On Jeremy Gridley's use of civil law authority on behalf of the defendant in a slave case, see No. 38.

Adams’ Minutes of the Trial<a xmlns="http://www.tei-c.org/ns/1.0" href="#LJA02d026n1" class="note" id="LJA02d026n1a">1</a>: Essex Superior Court, Ipswich, June 1772 JA

1772-06

Adams’ Minutes of the Trial: Essex Superior Court, Ipswich, June 1772 Adams, John
Adams' Minutes of the Trial1
Essex Superior Court, Ipswich, June 1772
Tayler vs. Caesar. Salem Novr. 1771
contd.

Mem. examine civil Law, and Villenage, to see what Rules are to govern these Negro Causes.

Sergeant. 2

63

Tim. Fuller. Known Caesar between 20 and 30 years. I bought him, about 12 years old. A new Negro, right from Guinea, could not talk English. Tayler bound him, 3 Years. He came to me to buy him when Hircum owned him. I hired him of Tayler, a Month. He gave me Liberty to hire him, and I paid the Negro. Tayler said if he behaved well and got him his Money, he should be willing to let him have his Time. I said if he did not get the Money by such a Time3

Indian Woman rejected because Caesars Wife.4

Josh. Felt. 5 Tayler told me, that he sold him, because he behaved6

Trials Per Pais 538. Regula.7 But read the Cases that follow in Illustration of the Rule, which shew that the Rule takes Place where a Person meddled with the Property of another.8

Wilson 254.9 Court gave Leave to Defendant to withdraw the general Issue and Plead a Justification.

Court determined that the Master should not give in Evidence that Caesar was a slave.

1.

Adams Papers, Microfilms, Reel No. 185. Apparently JA wrote the title of this minute and noted the continuance at the Salem Superior Court, Nov. 1771. But the notes seem to have been taken at the Ipswich Superior Court, June 1772.

2.

Nathaniel Peaslee Sergeant was Caesar's attorney.

3.

The MS breaks off here. The next paragraph is in a clearer hand, suggesting that JA took time off to sharpen or replace his quill.

4.

“Husband and Wife cannot be admitted to be Witnesses for or against each other, for if they swear for the Benefit of each other, they are not to be believed, because their Interests are absolutely the same, and therefore they can gain no more Credit when they attest for each other, than when any Man attests for himself.” Gilbert, Evidence 135–136.

5.

Josiah Phelps, according to the file. SF 132190.

6.

Sentence left incomplete by JA.

7.

“Regula. Upon the General Issue, if by the Evidence the Defendant acknowledge that he did the Wrong, and justify this, and gives the Matter that goes to discharge him of the Act by Justification, this Evidence is not good, but he ought to have pleaded it.” 2 Duncombe, Trials Per Pais 538.

8.

“This Rule is demonstrated by those Cases, where, upon Not guilty in Trespass, the Defendant would say the Property was in a Stranger, and that by his Commandment, or as his Servant, he took the Goods.” 2 Duncombe, Trials Per Pais 538.

9.

Taylor v. Joddrell, 1 Wils. K.B. 254, 95 Eng. Rep. 603 (1749):

“Imprisonment: defendant pleaded the general issue inadvertently, and now moved to withdraw it, and for leave to plead a justification that he was master of a ship, that the plaintiff was making a mutiny therein, and so he imprisoned him. . . . Per curiam: There are many instances of this having been done when the court can prevent the plaintiff from suffering any inconvenience by it, as by obliging the defendant to take short notice of trial, and that if there be a verdict for the plaintiff he shall have judgment as of the present term; therefore let the defendant be at liberty to plead a justification, and the general issue also, if he pleases, upon the terms mentioned.”