A number of the later entries in the newly discovered Diary Fragment add precious scraps of information to the relatively little known of the very beginnings of John Adams’ career as a lawyer. Much the most important among them are the notes and drafts, scattered and disorderly but substantial, that Adams prepared for his first case, Field v. Lambert. In combination with several entries in the Diary as published in 1961, these materials permit a detailed examination of this crucial and traumatic episode.1

The new materials on Field v. Lambert appear in three separate entries in the MS of the Fragment. In keeping with the editorial policy throughout this volume, they are printed in their original order at pages 89–90, 93–94, and 94–96, below. Within these entries five separate items may be distinguished. In the first entry are a brief discussion of the calling and name of mason and a list of queries concerning the declaration in the case. The second entry is a draft of the declaration. The third entry contains an alternative or revised passage from the declaration and some further notes and queries on it.

The case arose on 10 October 1758, when two of Luke Lambert’s horses broke into Joseph Field’s Braintree meadow “and lay there some time, damage feasant.” When Lambert discovered the horses, he entered the meadow himself, anxious to avoid paying for any harm that they had done. Despite Field’s active protests, Lambert “waved his Hat, and Screamed at” the horses, driving them away, “without tendering Feild his Damages.” Field, who had been unable to collect damages in an earlier similar incident, now brought suit against Lambert by making complaint before Justice Josiah Quincy, Adams’ Braintree friend and neighbor. The defendant apparently did not appear when summoned, because Field obtained a warrant of contempt, “directed to the Constable, who brought the Offender before the Justice, attended with the Complainant, and the Witnesses ordered to be summoned.” Adams was present at the hearing on the warrant, held on 13 October.2 He was apparently not of counsel in the case, but sat in as friend, not only of the court, but of the only attorney who seems to have appeared, and presumably of the parties as well.

The legal gist of Field’s case was that Lambert was guilty of a “Rescous,” or rescue, an unlawful taking of property from one who is lawfully detaining it. Field’s position was that he had been in the process of driving the offending animals to the town pound, where by law they could be boarded at the owner’s expense.3 His claim was based on a Province statute which provided that a person rescuing from one “about to drive them to the pound” animals which had been “taken up” after being “found damage-feasant in any . . . inclosure” should forfeit the sum of 40s. to the poor of the town and be liable for “all just damages” suffered by the rescuee.4

Justice Quincy never reached the merits of the case. Before he could proceed, his son Samuel, Adams’ contemporary at the bar, “took Exception on the Warrant” in Lambert’s behalf. In effect young Quincy was saying that his client could not be held in contempt, because the Justice had lacked jurisdiction in the original suit. The grounds of the exception were, first, that the total sum claimed in the suit (40s. forfeiture and 9s. damages) exceeded the statutory limit of 40s. placed on the jurisdiction of a single justice,5 and, second, that an action under the statute could84 be brought only in a “court of record” and that the court of a single justice was not such a court. Justice Quincy forthwith ordered an adjournment that he might “inform himself” upon the two points raised.6

In his Diary, following his account of the proceeding, Adams noted several questions involved in the court-of-record problem.7 These notes support his subsequent assertion that he had been the first to suggest the lack of jurisdiction. Nearly a month later Justice Quincy reported that he had learned from a fellow justice of the peace that his was indeed not a court of record. Quincy boasted of the acumen of his son “Sammy,” who “was all along of that Opinion,” but affected not to remember Adams’ position on the question. Adams squirmed under the slight, asking himself, “Was forgetfulness, was Partiality, or was a cunning Design to try if I was not vain of being the Starter of the Doubt as to jurisdiction, the true Cause of” it?8 No record has been found, but the Diary entries indicate that, whoever raised them, these jurisdictional issues were the basis for a dismissal of Field’s action.

Thereafter, Adams was retained by Field to bring a new action against Lambert. On 18 December he delivered to his client “a Declaration in Trespass for a Rescue,” about which he expressed manifold misgivings: I was obliged to finish it, without sufficient examination. If it should escape an Abatement, it is quite indigested, and unclerklike. I am ashamed of it, and concerned for it. If my first Writt should be abated, if I should throw a large Bill of Costs on my first Client, my Character and Business will suffer greatly. It will be said, I dont understand my Business. No one will trust his Interest in my hands. I never Saw a Writt, on that Law of the Province. I was perplexed, and am very anxious about it.... How this first Undertaking will terminate, I know not. I hope the Dispute will be settled between them, or submitted, and so my Writt never come to an Examination.9 It is Adams’ draft of this declaration, seeking 40s. forfeiture and 20s. damages, which appears in the Diary Fragment in the second of the entries that relate to Field v. Lambert.

The court in which Adams intended to enter the action cannot be determined with certainty on the basis of present evidence. The most likely possibilities are (1) that it was to be a suit in the Suffolk County Inferior Court of Common Pleas and (2) that it was simply to be a new proceeding before Justice Quincy or another local justice of the peace.10

If Field’s first action before Quincy was in fact disposed of upon jurisdictional grounds, it seems unlikely that Adams would have proceeded again before a justice of the peace. There is other evidence that the second action was in the Suffolk Inferior Court. The fact that the declaration sought damages in the lump sum of £3 suggests that Adams was not overly concerned with monetary limits on jurisdiction. Moreover, 18 December was the day before the deadline for the service of writs to be returned to the January 1759 Suffolk Inferior Court, which sat on 2 January.11 This fact might explain the necessity for hasty drafting which Adams lamented in the Diary entry just quoted. The importance which Adams attached to the matter in that Diary entry also suggests that he was about to walk upon a stage broader than that of a justice’s court. That he did at least some business at the January Inferior Court, appears from his writ in Adams v. Penniman, dated 19 December, which was entered at that term.12 Finally, in his later queries about the writ, appended to the first Field v. Lambert entry in the Diary Fragment, Adams spoke of the alternative possibility of filing “an Information ... vs. Lambert this Court,” which could well have meant at the then current term of the Inferior Court in which the civil action was pending.

The only difficulty with this hypothesis is that no entry for Field v. Lambert has been found in the Minute Book of the Suffolk Inferior Court for the January 1759 term. If the case was in fact decided by that court, either it was omitted from the Minute Book through clerical error, or the questions raised by the plea in abatement on which it was disposed of were decided by the court prior to entry. It is possible that there was some such informal proceeding before the start of the term, established by rule of court to save litigants some of the costs of proceeding in vain cases, but no other evidence of its existence has been uncovered.13

In view of these problems, it is possible that the action was brought before a justice of the peace, despite the jurisdictional objections which had seemed to prevail against Field’s first action. Lambert, or his counsel, may simply have agreed to waive the jurisdictional questions so that the matter could be disposed of without the expense and delay of a trial in the86 Inferior Court.14 Or Adams may have convinced his adversaries that in a new proceeding he could successfully argue that the case was within the jurisdiction of a single justice. In October he had made note of authorities from which he might have contended that a justice’s court was a court of record.15 Perhaps he was also prepared to urge that the 40s. limit on the jurisdiction was not exceeded when damages were sought on two separate grounds, each of which alone was within the limit.16

In the days following his delivery of the writ, Adams’ misgivings continued to mount. He noted endless queries on points of detail in the first and third entries bearing on the case in the Diary Fragment, until, at last exhausted, he asked himself, “What have I been doing. Only drawing a Writt.” Finally, Lambert’s plea in abatement was filed. The grounds for the plea may have included the failure of the writ to allege Lambert’s “addition,” or calling, correctly. On this point Adams prepared a fairly elaborate note which is a part of the first Field v. Lambert entry in the Diary Fragment. This was probably only preliminary research or thought on the question, but could possibly have been part of an argument. Whether such an argument was ever delivered has not been determined. At length the writ abated, apparently on the different ground that Adams87 had omitted “the County, in the Direction to the Constables of Braintree,” a slip which he had earlier noted in his first list of queries as perhaps constituting “a fatal omission.”17

The self-doubt apparent in Adams’ initial worries about his draftsmanship burst forth again in his reaction to the unfortunate news. He expressed his fears that the affair would make him a laughingstock, then went on to a thorough analysis of his failings:

Impudence, Drollery, Villany, in Lambert, Indiscretion, Inconsideration, Irresolution, and ill Luck in me, and Stinginess as well as ill Luck on the Side of Field, all unnite in this Case to injure me....

Let me Note the fatal Consequences of Precipitation. My first Determination, what to do in this affair was right. I determined not to meddle. But By the cruel Reproaches of my Mother, by the Importunity of Field, and by the fear of having it thought I was incapable of drawing the Writt, I was seduced from that determination, and what is the Consequence? The Writt is defective. It will be said, I undertook the Case but was unable to manage it. This Nonsuit will be in the mouth of every Body. Lambert will proclaim it....

An opinion will spread among the People, that I have not Cunning enough to cope with Lambert. I should endeavor at my first setting out to possess the People with an Opinion of my subtilty and Cunning. But this affair certainly looks like a strong Proof of the Contrary.18

Time has proved Adams’ fears unfounded, but he seems to have learned at least one lesson that would help him to avoid similar setbacks in the future. “Let me never undertake to draw a Writt,” he wrote, “without sufficient Time to examine, and digest in my mind all the Doubts, Queries, Objections that may arise.”19

That Adams had spent enough time after this writ was drawn in examining “Doubts, Queries, Objections” appears from his many queries concerning it. One group of problems, pertaining to the writ proper, has already been mentioned. They dealt with the defendant’s “addition” and the omission of the word “county” from the direction to the constables. These matters would have appeared in the formal part of the writ embodied in the printed portion of the form usually used and so are not found in Adams’ draft of the declaration. They seem to have been the only questions actually considered by the court.

A second group of problems concerned the declaration. Adams was worried that many specific allegations were defective. For example, he feared that the words “taken up” were too specific a description of Field’s88 discovery of the horses and thus might lead to a fatal variance between pleading and proof; that “Damage feasant” was too vague an allegation of the activities of the horses prior to Field’s attempt to impound them; that the damage done by the horses should have been pleaded specially; and that whether the forfeiture was to the poor of the precinct or of the town should have been specified.

A more fundamental difficulty lay in Adams’ confusion as to whether the action should have been in debt or in trespass. The action of debt lay for the recovery of a sum certain and was the usual form of proceeding for a penalty recoverable by statute. Such actions were usually “qui tam” in form—that is, brought by a private individual “who sues as well in behalf of” whoever was beneficiary of the penalty “as for himself.” Trespass, on the other hand, was the proper remedy for damages occasioned by the defendant’s direct physical act against the person, property, or lands of the plaintiff. Perhaps Adams may be forgiven his confusion: the statute provided both a fixed penalty, such as was commonly sued for in debt, and actual damages of the sort for which trespass might have been said to lie.

If it was necessary to choose between the two forms, debt probably would have been the better alternative. Recovery of the forfeiture to the poor in trespass does not seem in accord with the direct-injury-damages rationale of that action as it was known in the 18th century. Recovery of the actual damages in debt, on the other hand, seems easier to rationalize, on the theory that the damages, equally with the forfeiture, were owing by virtue of the statute. Contemporary Massachusetts forms and later authority suggest that debt’s requirement of a sum certain was relaxed in such statutory actions.20 Perhaps still another course would have been wiser. If the statute could have been read to permit it, Adams might have brought separate actions of debt for the forfeiture and trespass on the case for the damages. This method, which avoids the conceptual difficulties presented by a single action, was adopted in a revision of the statute enacted in 1789.21

Many, if not most, of Adams’ “Doubts, Queries, Objections” probably would have had more force in the realm of speculation than in the reality of the courtroom—especially in a jurisdiction not given to excessive formality in pleading. Nevertheless, they are of interest, showing, as they do, not only the excessive legalism of the new-hatched lawyer, but also the painful 89doubts which can assail even an experienced practitioner who has just concocted pleadings that are slightly out of the ordinary.

The Mistery of Masonry not Freemasonry, comprehends the Plaistering of Walls and Cielings, as well as the Laying of Bricks and building Chimneys, so that it is more extensive than the Addition of Bricklayer.1 Masonry deals in Cement, in every Thing which requires the Use of the Trowell, and was an Art, an Occupation before the society that goes by that name was ever heard of in the World, for this society took its Name from that Trade by reason of The Trowell which was an Instrument common to these Gentlemen and their less honourable brethren, the Bricklayers, and Mortar managers. This Society has been called Lobronorum, ficto nomine, generosa, compacta societas,2 which shews it was a Nick name borrowed from these manual Artificers and applied to that Society.

Query. Is not the omission of the County, in the Direction to the Constables of Braintree, a fatal omission.

2. Should it I not have been added, after “said Joseph,” these Words, “who sues as well in Behalf of the Poor of the North Precinct, in Braintree, as for him self.”

3. Would not the Word “found” have been more proper than “taken up” and if Defendant pleads not guilty modo et forma, will not a failure to prove that Field had taken the Horses up i.e. that he had bridled or haltered them or else had begun to drive them towards the Pown,3 be a failure to prove the Declaration? Or in other Words, will Evidence Proof by Witnesses that he had seen the Horses, been to his Neighbours House to borrow a Halter, and then into his own to get a Hand to assist him in catching the Horses, be sufficient Evidence of his taking up the Horses according to the Words of the Declaration.

4. Should there not have been a more express and positive Averrment that the Horses broke into his Close and did Damage there than that which is implied in the Words, “rescu’d 2 Horses which the Plaintiff had taken up Damage feasant,”4 there?

5. Should it not have been averred, that Lambert entered the Close subtilly and craftily, intending and contriving, to prevent the said Field from driving them to Pound, and of consequence to defraud90 Field of his Recompence for the Damages the Horses had done him?

6. The Declaration begins in Trespass, but it concludes in Debt, “which sums so forfeited and due,”5 the Defendant has refused to pay. This sounds like Debt for some certain sum that is compleatly due by force of some Law of the Province. These sums may be said to be compleatly due, but the Damages, that Field was to recover for himself, were quite uncertain. Now Query whether this is not in some sort blending together Debt and Trespass, and Q. whether such a blending is not fatal?

7. It is concluded ad Damnum of said Joseph the whole sum Damages and forfeiture and all.—Q. will not this be fatal.

8. Is Mason a good Addition?6

9. Should there not have been a more particular Averment of the Value of the Damages the Horses did, in breaking Fence, trampling and eating Grass &c.

10. What is the Method of Proceedings on an Information? Can an Information be filed vs. Lambert this Court?

11. Should the forfeiture be sett forth to be to the Poor of the North Precinct or to the Poor of the Town of Braintree.

Close against the Road, from which the Horses broke in was in that Place where the Horses broke in Difference, as the Horses had no Right to go in Road?7

And Query Whether that Entry and driving away, is a Rescous. Field had not actually taken up the Horses, i.e. had not bridled nor haltered them.8