REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY, BETWEEN 176i AND I772. BY JOSIAH QUINCY, JUNIOR. PRINTED FROM HIS ORIGINAL MANUSCRIPTS IN THE POSSESSION OF HIS SON, JOSIAH Q.UINCY, AND EDITED BY HIS GREATGRANDSON, SAMUEL M. QUINCY. W ITH AN APPENDIX UPON THE WRITS OF ASSISTANCE. "Many records have in long procefs of time been loft, and poffibly the things themfelves forgotten at this day; which yet, in or near the times wherein they were made, might caufe many of thofe authoritative alterations in fome things touching the proceedings and decifions in law; the original caufe of which change being otherwife at this day hid and unknown to us." - HALE'S HISTORY OF THE COMMON LAW. BOSTON: LITTLE, BROWN, AND COMPANY. x865. Entered according to A6t of Congrefs, in the year i865, by LITTLE, BROWN, AND COMPANY, in the Clerk's Office of the Diftriat Court of the Diftrit of Maffachufetts. RIVERSIDE, CAMBRIDGE: PRINTED BY H. O. HOUGHTON AND COMPANY. PREFACE. T HE name of JOSIAH QUINCY, JR., as a patriot, is well known to thofe who are familiar with the provincial hiftory of Maffachufetts. But of JOSIAH QUINCY, JR., as a lawyer, of his profeffional labors and acquirements, and his pofition at the bar, nothing can now be known except by his immediate defcendants. He was a jurift as well as a patriot; and his love of his profeffion for its own fake was only furpaffed by his devotion to the caufe of his country. The manufcripts here publiflhed are in the poffeffion of Hon. JOSIAH QUINCY, the fon of the reporter, now in his ninety-third year. It is needlefs to fay that they are now offered to the profeffion merely as matters of legal and hifforical curiofity and intereft; the only other ante-revolutionary reports which have ever been publilhed in this country being 1 Harris and McHenry, Jefferfon, and 1 Dallas, pp. 1 to 29. Thefe manufcripts confift of three volumes; one with paper covers, (from the original color of which it is referred to as "Red Reports,") and two others bound in parchment, and numbered "3" and "4." The firft two volumes of this fet are miffing, and were probably deftroyed in a fire by which the reporter's law library was loft. The Middlefex cafes reported between pp. 318 and 340 are contained in the fragment of another volume apparently juft commenced, but not in the handwriting iv Preface. handwriting of JOSIAH QUINCY, JR. Whether in thefe cafes he employed an amanuenfis, or whether the volume is the work of another reporter, cannot now be known, as the firif pages were unfortunately deftroyed by one ignorant of their value. All the others are in QUINCY'S own hand, the reports at the firft term having been taken while he was yet an undergraduate in college. The firif fet of foot-notes, to which reference is made by afterifks, &c., are the original notes of the reporter; thofe referred to by numerals are by the editor, as are alfo the marginals. The " Records" referred to in the margin are thofe of the Superior Court of Judicature, and are to be found in the Clerk's Office of the prefent Supreme Judicial Court. The notes and Appendix to the celebrated cafe of the " Writs of Affiffance," and the notes relating to Slavery in Maffachufetts and in England, are the work of HORACE GRAY, JR., ESQ%, of the Bofton Bar. This volume is printed verbatim et literatim from the manufcript, and, as the reader will fee, in fome places partakes more of the nature of a private journal than of that of a volume of law reports. It had been my intention to give an outline of the hiftory of the Province during the period which it embraces, as well as fome biographical fketches of the moft diftinguifhed of thofe whofe names are mentioned, but that the breaking out of the war in which the country is fiill involved has fuddenly called me from the profeflion to more engroffing duties, which allow neither time nor opportunity for the completion of the tafk propofed. For all other omiflions of whatever the preface ihould explain or fupply, I muff afk the reader to accept the fame excufe. SAMUEL M. QUINCY. PORT HUDSON, LA., Feb. 9th, 1864. A TABLE OF THE CASES Reported in this VOLUME. A. C. Page Page Advocate-General v. Hancock. 457 Campbell, Blower v. 8 Allifon v. Cockran. 95 Carpenter v. Fairfervice. 239 Angier v. Jackfon 84 Charges to the Grand Jury IIo, I75, 2I8, Anonymous.... 370 232, 24I, 258, 30I, 306 Apthorp v. Eyres. 229 Clark, Derumple v.... 38, Pattefhall v.... 79 Cockran, Allifon v... 95 -v. Pattefhall... I86 Cook, Ingraham v.. 4 v. Shepard... 298 Culnon, Brown v. 66 Cunningham, Banifter v.. 56 B. Curtis v. Nightingale.. 256 Baker v. Frobifher. 4 D. --------- v. Mattocks 69 Dalton, Hallowell v. 33 Ballard v. McLean I06 Daniels v. Bullard. 4 Baliton, Gridley v.. 65 Davis, Richmond v.. 279 Banifter v. Cunningham. 56 Dennie, Thwing v. 338 - - v. Henderfon... 9 Derumple v. Clark.. 34 Barnes v. Greenleaf. 4 Dewing v. Irvine. 339 Baffett v. Mayhew 93 Doaks, Rex v. 90 Belcher, Jones v. 9 Doble, Lovell v. 88 Bicknell, Draper v. I64, Poor v. 86 Bifhop v. Brig Freemafon.. 387 Dom. Rex v. Doaks.. 90 Blower v. Campbell 8 v. Gay.. 9 Bofton's Memorial.. I98 -- v. Mangent. x62 Box v. Welch. 227 - v. Pourksdorff. 04 Bradley, Zuill v.. 6 Dougharty, Poor v. I Brewfler, Pynchon V. 224 Dudley v. Dudley. xt Brideoak, McNeal v.. 470 Dunn, Scollay v.. 74 Brig Freemafon, Bifhop v 387 v. Scollay.87 Britifh Soldiers, Petition of Jurors on Dunten v. Richards.. 67 Trial of.... 382 Draper v. Bicknell. x64 Bromfield v. Little... o8 - v. Lovejoy ~ 273 E Brown v. Culnon. 66 E.66 Bullard, Daniels v.. 4i Elwell v. Pierfon. 42 vi Table of Cafes. Page Erving v. Cradock 553 K. Eyres, Apthorp v. 229 Page Kenwrick, Rogers v. 62 Fairfervice, Carpenter v.. 239 L. - N, Norwood v... I 89 Le Teftue, Glover v.... 225 -- R v. Norwood. I93 Little, Bromfield v..o8 Flagg v. Hobart.. 332 -_ v. Holdin 338 Foye, Jackfon 3.. 26 Lovejoy, Bromnfield v.. 237 ~FoeJ ov..2 Lovellv. Doble k 88 Freemafon, The. 387 Frobifher, Baker v. M. G. Malcolm v. Gleafon.. 25r Man v. Proprietors, &c. in Dorchefter 546 Gardyner v. Purrngton 59 Mangent, Rex v.. 62 Gay, Rexibbs v. Gibbs2 Mattocks, Baker v.. 69 Gleafon, Malcolm v.. 25 Mayhew, Baffett v...93 Glover v. Le Teftue 22 McLean, Bullard v. io6 Glover v. Le Te'tue. 225 McNeal v. Brideoak.. 470 Goodfpeed v. Gay 98 note, 55 8 Gordon, Ruddock v....5Medway, Pond v. I93 Gould v. Stevens.. Memorial of Bofton.. 198 Gratu heK v. Steve34 Metcalf, Wrentham Proprietors v. 36 Grant, The King v. 326 Gray, Treafurer, v. Paxton 54 Mier, Ha. 252Prout Greenleaf, Barnes v... Minot v. 9o Gridley v. Balfton. 65 Grout, Hooton v... 343 N. Newman v. Homans...5 Nightingale, Curtis v.... 56 Hall v. Miller.... 252 Noble v. Smith... 254 v. Richardfon.... 329 Norwood v. Fairfervice.. 89 -, Wiswall v. * 7, Fairfervice v... 93 Hallowell v. Dalton. 33 Hammond, Rochefter Prop's v. I59 O. Hancock, Advocate-General v. 457 Oakes, Ruffell v..... 48 HIanlon v.. 48 Hanlon v. Thayer 99 Oliver v. Sale.....30 Hafey, Watts v.. 194 Haven, Whitney v.. 558 Henderfon, Banifter v. 1. 9 Hill, Symes v. 3 I 8 P. Hobart, Flagg v... 332 Parker v. Willard. 326 Holdin, Little v...338. Homans, Newman v.. Pateallv. Apthorp.. I79 Hooton v. Grout. 343 Paxton's Cafe.86 Paxton, Gray v...54I.-.. —, Province v.. 548 Ingraham v. Cook. 4.. 4 Petition of Jurors in Trials of Prefton and Britifh Soldiers.. 382 J. Pierfon, Elwell v..... 42 Pond v. Medway....93 Jackfon, Angier v. 84 Poor v. Doble.... 86... v. Foye.... 26 -- v. Dougharty.. Jones v. Belcher.9 Pourksdorff, Rex v... 04 Table of Cafes. vii Page Page Preiton, Capt., Petition of Jurors on Spurr v. Shippey. 28 Trial of.382 Stevens, Gould v. 34 Proprietors, &c. in Dorchefterv. Man 546 Symes v. Hill... 38 Prout, Minot v. 9 Province of Maffachufetts Bay v. Pax- T. ton...... 548 Purrington, Gardiner v.. 59 Thayer, Hanlon v.. 99 Pynchon v. Brewfter... 224 The King v. Grant. 326 Thorp, Sayer v.. 28 R. Thwing v. Dennie. 338 Train, Dewing v. 339 Reed's Cafe..33' Tuttle v. Willington.. 335 Richards, Dunten v. 67 Tyler v. Richards..95, Tyler v.... g95 Richmond v. Davis 279 W. Rochefter Proprietors v. Hammond I59 Rogers v. Kenwrick... 62 Watts v. Hafey. 194 Ruddock v. Gordon.. 58 Welch, Box v. 227 Ruffell v. Oakes. 48 Whitney v. Haven. 334 -- v. Whitney. 11. 7 S. Willard, Parker v.. 326 Willington, Tuttle v.. 335 Sale, Oliver v..... 30 Wiswall v. Hall. 27 Sayer v. Thorp 28 Wrentham Proprietors v. Metcalf. 36 Scollay, Dunn v... 87 Wyman, Fowle v..336 v. Dunn. * * * 74 Shepard, Apthorp v... 298 Z. Shippey, Spurr v..... 28 Smith, Noble v.... 254 Zuill v. Bradley.... 6 Auguft Term II Georgii Ter. in Sup. Cur. Prefent: The Honourable Thomas Hutchinfon, Efqr., Chief Juflice. Benja: Lynde, John Cufhing, Efqrs., Juftices. Peter Oliver, 1762. POOR Poor verf. Dougharty. A. DOUGHARTY. Fol. ios. HE Defendant Dougharty loft fome Goods, Rec. 1763. _ which he fufpedted Poor had ftolen; upon which Complaint was made to a Juftice of the Peace, who A Jufice of heard their feveral Stories, and ordered Poor to not beadmitGoal for further Examination. Poor was again ted to atefnytify examined, but Dougharty not appearing, was dif- ter which came before charged, and fuffered to go without Day. The himjudicially, Juftice kept no Record of any Part of the Tranf- ltpthough he adtion. The prefent Adion was commenced by ord of the Tranfa&ion. Poor vs. Dougharty for falfe Imprifonment. The In an AcJ7zifice was offered as a Witnefs to prove the Fads tion for falfe Imprifonalledged, and obje&ed to, for that whatever came ment, the before him was Matter of Record, for a Juftice's uftimus, Mit-on Court is a Court of Record, and that no Parol Evi- which the Plaintiff was dence committed. 2 Auguft Term 2 Geo. 3. 1762. dence can be given of that which is Matter of RecPOOR ord. For this was cited 2 Lilly, 419; Wood's D v. Inft. Com. Law, 82. DOUGHARTY. is not Evi- Mejfrs. Otis 8S Thacher. It was faid contrary, dence of the Fadts therein that though it be Matter of Record, yet, if it is not recited.t recorded, then the Juftice may be called. The only But it may go to the Rule being that you fhall produce the beft Evidence JMittimus. you can. Now as Poor is unable to produce RecMittimus. Oli'ver & ord, not through any Default of his own, he may be Curbing, Y7., dif. allowed to produce Parol Evidence. That if a Whether Record is burnt, they may fwear Witneffes to prove a Paper ffiall go to the Ju- the Fa&t which had been recorded, and this within rywhen th the fame Reafon. Authorities cited: 1 Salk. 14; Court is 1 Strange, 691; Viner, Tit. Evid. 56; 7 Mod. 169; vided on that 2 Show. 145. Queltion - quere. Mr. Gridley. It was faid further, for the Defendant, what is in Court mufft be proved by Record, what is in Pais by Witneffes; Anything which paffes before a Court is not Matter of Faet, but of Record. The Court (1) upon this Point ruled unanimoufly, that the Juftice fhould not be fworn to Anything that came before him judicially. (2) Then (I) Under the Provincial Government, the Superior Court of Judicature confiffed of five judges, and was held for all purpofes by a full bench. All jury trials were condu6ted in the prefence of the full Court, and not lefs than three judges were competent to prefide. Anc. Chart. 330. 9 Pick. 569. (2) S. P. Sayles v. Briggs, 4 Met. 42I. There the juftice was offered to prove fa&s of which he fhould have made a record. Mr. Juftice Hubbard fays: "It is argued that this teltimony ihould be received from neceffity, AuguR Term 2 Geo. 3. 3 Then the Juftice's Mittimus was produced as 1762. Evidence. The Mittimus, as a Mittimus, was Poor allowed by the Council for the Defendant. But DV the Recital of the Fat contained in it was excepted to, and the Exception was ruled by the Court to be good. It was then debated whether the Mittimus was to be given to the Jury or not, as one Part of it was legal Evidence and the other not —on which the Court was divided. (3) It was then debated whether it mufft go in, as the Court was divided upon it, or be taken out, upon which they were alfo divided, and the Cafe was adjourned for a full Court. (4) At February, A. D. 1763, the Mittimus was admitted: Oliver 4; Cufbing against; Ch. 7yufi., Lynde, 4r Ruf]ell for it. necefflity, as there is no way by which the plaintiff can obtain redrefs; and that this is the beft teftimony which now exifts. But it will be produEtive of lefs mifchief for an individual to fuffer from the negleE or misfortune of an officer in not making a judicial record, than to eftablifh a precedent that the record itfelf, or a part of it, may be proved by parol. It has been argued that the record may be prefumed to be loft. The rules which apply to the admiflion of teftimony to prove the contents of a loft record, or to the introduftion of minutes by which the record may be extended, have no real bearing on a cafe like the prefent, where no fuch lofs ever took place, and no fuch minutes were ever made." See alfo Kendall v. Powers, 4 Met. 553; Wells v. StevPens, 2 Gray, xI5; lillotfon v. Warner, 3 Gray, 574. (3) In Commonwvealth v. Wingate, 6 Gray, 485, the Court allowed a complaint in evidence to go to the jury, although the record of the conviaion of the defendant was upon the fame paper- the jury being inftruded that fuch convifion could not be confidered as evidence. (4) The effe& of a divifion is to incapacitate the Court from taking any a&ion whatever on that point. 3 Chit. Prac. Io. x2 Co. xI8. 1 Salk. IS. Goddard v. Cofin, Daveis, 381. And the burden being on the 4 Auguft Term 2 Geo. 3. 1762. BAKER FROBISHER. Baker verf. Frobifher. Rec. 1762. F OR felling the Plaintiffunmerchantable Soap.(l) Fol. 38~7 V It was faid there was no exprefs Warranty at On a Sale of the Time of the Sale. But 2d Lord Raymond, is an implied 1120, was cited contra. And the JuJfices were of Warranty the Opinion that every Man is bound to fee his that they are merchantable, Goods are merchantable at the Time of Sale. (2) unlefs fold by But Evidence being brought to prove that the Plaintiff's Wife, who was the Contradtor, faw a Sample of the Soap, the Jury were directed to find Cofls for the Defendant. INGRAHAM CO. Ingraham verf. Cook & al. COOK. Rec. 1762. IN this cafe, Ingraham, the Plaintiff, indorfed the Fol. 288. Writ. It was urged by the Council for the DeA new In- fendant, before the Trial, that Ingraham was gone dorfer to a Writ will be in ordered when, ever it can be made to ap- the party offering the paper, it would feem that a divided court would pear that the have no power to admit it. prefent In- (i) The declaration in this cafe alleged that the defendant, a foapdorfer cannot doanfwer Conns. boiler, "deceitfully contriving to defraud" the plaintiff, delivered him *" unmerchantable foap of ftinking material," and " falfely affirmed the fame to be good and merchantable." (2) The oppofite doarine now prevails -all fuch cafes being held to be within the principle of ca'veat emptor. Winsor v. Lombard, I 8 Pick. 6o. Mixer v. Coburn, x I Met. 559. But the rule intimated above feems once to have been affumed in Maffachufetts. See Olinver v. Sale, poft- Otis, arguendo: " The rule of merchandife which obliges the vendor to anfwer for what he fells without warranty, is confined to manufaltures of the country, which a man muff be fuppofed to know the quality of." Auguft Term 2 Geo. s. 5 in the Army, had no Eftate, and could not anfwer 1762. the Cofls. It was faid contra, that a new Indorfer IGRAAM is never ordered but in the Cafe of abfconding in- c. folvent Debtors, and that the Plaintiff was in the Pay of the Government. But the Court ruled, that a new Indorfer ought to be found in every Cafe where it could be made to appear to the Court that there was Danger the prefent Indorfer could not anfwer Coffs. But a Witnefs was produced who knew the Plaintiff to have a confiderable Sum of Money at Intereft; upon which the Motion was filenced. (i) N EWMAN Newman verf. Homans. V. HOMANS. T [~HE Queftion was, whether Intereft or Depre- Rec. 1762. tiation ought to be allowed by a Fa&or after - 383 After a rea__any fonable Time a Faaor is (I) The Prov. Sts. of I Geo. I and I Geo. 2 (Anc. Chart. 406, 466) liable for Inprovided for the indorfement of all writs by the plaintiff or attorney, tereft on the but contained no provifion for finding a new indorfer in any cafe. The Price received for Goods of St. of 1784, c. 28, provided in addition, that where the plaintiff was not his Principal. an inhabitant of the State, he ihould procure a fufficient indorfer who was, And fuch and alfo that where the writ was indorfed by plaintiff's attorney, if such Intereft may attorney was ihown to be of infufficient ability, a new indorfer fhould be be recovered ordered. This a&t was repealed by St. I833, c. 50, which contains the In an Affion of Affumpsit, provifions fubftantially reina6ted by the Rev. Sts. c. go, ~ I o, (Gen. Sts. as well as in c. 123, ~ 20; C. I29, ~ 29,) viz., making the indorfement a condition pre- Account. cedent only where the plaintiff is not an inhabitant of the State, and giving the Court discretionary power to require it wherever it appears reafonable. But it feems that mere poverty of the plaintiff will not be confidered fufficient caufe for fuch requirement, in the abfence of vexation or oppreffion. Per Shawtv, C. J., 2 Pick. 212. An indorfer will be required where the plaintiff removes from the State during the pendency of the aAion. 8 Mass. 272. I Gray, 114. But the removal of a foreign plaintiff into the State does not have the effea to difcharge the indorfer. 8 Met. 149. 6 AuguRt Term 2 Geo. 3. 1762. any Period, otherwife than upon an Adtion of AcNEWMAN count, in which he fhews at what Time he received HONS. Pay for the Goods. (1) HOMANS. The Court was of Opinion, that after a reafonable Time he ought. (2) ZUILL Z. Zuill verf. Bradley. BRADLEY. Rec. 1762. T HE Plaintiff fues Bradley by the Name of Fol 388- Daniel Bradley, of Haverhill, &c., Trader. Where Father and Son of the Upon which the Defendant pleads as follows: fade in the "And Daniel Bradley, junior, of Haverhill, &c., fame Town,," Innholder, whofe Body was attached by this Writ, it feems that the Omiflion "comes and fays he is the fame Person who was fued if ajWrit "by the faid John Zuill by the Name of Daniel againft the "Bradley, of Haverhill, &c., Trader. And the faid Son, is good Caufe of "Daniel Bradley, junior, fays this Writ ought to abate, Abatement "becaufe he fays that at the Time of the Purchafe Itfeemr, that Duplicity "thereof there were two Men in faid Town of Hais no Objection to a Plea " verhill known by the names of Daniel Bradley and in Abate- " Daniel Bradley, junior, and that he hath been alment. ways (i) It appears by the record that this was indebitatus afumpfit for money had and received. The declaration alleged a promife to pay, with intereft, to which the defendant demurred in the Court of Common Pleas, and the demurrer was fuftained. In the Superior Court this decifion was reverfed, and the cafe fent to a jury. (2) S. P. Dodge v. Perkins, 9 Pick. 368. Where a factor, having received money, unreasonably negle6ts to inform his principal, he is liable for intereft for the time of fuch unreafonable delay. Auguft Term 2 Geo. s. 7 "ways called and known by the Name of Daniel 1762. "Bradley, junior, and not by the Name of Daniel ZUILL "Bradley only, as in this Writ is fuppofed, and that B. "the faid Daniel Bradley, fenior, is his the laid Dan"iel Bradley junior's Father, and all this the faid "Daniel Bradley, junior, is ready to verify; where" fore he prays Judgment of this Writ that it abate, "and for his Colts. "2. The faid Writ ought to abate, for that he the " faid Daniel Bradley, junior, was at the Time of the " Purchafe of this Writ, and ftill is, an Innholder, and "not a Trader, as in this Writ is fuppofed, and this "he alfo is ready to verify; wherefore he prays Judg"ment of this Writ that it abate, and for his Colts." O. Thacher. To which it was obje&ed, that there was a Duplicity which deftroyed it, for that he pleaded, that his Name was Daniel Bradley, junior, and not Daniel Bradley only, and alfo that he was an Innholder and not a Trader; and Mod. was cited. But it was overruled. (1) Upon (I) The Court would feem to have held duplicity to be no objeaion to a plea in abatement. The cafe of Tre~velian v. Seccomb, Carth. 7, 8, feems to countenance fuch a view, but the miftake is explained in Steph. P1. note (56). See alfo Bac. Ab. Abatement, (P); and 5 Pick. 223, where the objeaion of duplicity was overruled on the ground that one of the allegations was furplufage. It has been held in the Superior Court of Suffolk, that under the Pradice A& of I852, an anfwer in abatement may be objefted to for duplicity, on motion. 20 Law Rep. 463. And this on the ground that the anfwer is fubje& to the fame rules againft duplicity as was formerly the plea. But before the Pracice A&, duplicity could not be taken advantage of. St. x836, c. 273, ~ 3. I Cuih. 137. And by ~ I3 of the a&, "different confiftent defences may be ftated in the fame anfwer." 8 Auguft Term 2 Geo. 3 1762. Upon a full Hearing, it was ruled, that as they ZUILL were in the fame Town, and Father and Son, it was "V. a Mifnomer sufficient to abate the Writ. (2) Ch. BRADLEY. uf. doubted of the Words "there were." He thinks that the Latin Word " habentur" is of greater Extent, but fuppofes it is not fufficient to make it bad. (3) BLOWER Blower verf. Campbell. CAMPBELL. Rec. 1763. T HE Defendant was named in the Writ, BlackFol. i6. j fmith, to which he pleaded he was a Nailor, Whether and not a Blackfmith, and therefore prays Judgtion "Black- ment for the Abatement of the Writ. fmith" includes a Nailor or not It was replied that Blackfmith was a general qurre. Name, including many Species, of which a Nailor was one. The Defendant's Council anfwered that they were fo diftin6t that the one knew Nothing of the other's Businefs, and a Forger, Gunfmith, &c., might as well be called Blackfmith. The (2) " It feems to be only in the cafe of a father and fon of the fame names, that the addition is required to be flated in a writ where the fon is made defendant." Kincaid v. Ho.we, Io Mafs. 204. See alfo 5 Dane Ab. 705. To the point that "junior" is no part of a man's name, but an addition ufed to defcribe and defignate the perfon, fee I Pick. 388; i5 Pick. 7; 17 Pick. 200. (3) It appears, however, by the record, that the judgment was finally given "on the fecond exception," perhaps on account of the Chief Juftice's doubt on this point. Augufr Term 2 Geo. 3. 9 The Court were unanimoufly of the Opinion that 1762. the Writ was good, but for different Reafons; fome BLOWER becaufe the Defendant had at certain Times done d CAMPBELL. fome Articles of Blackfmith's Work; others for the Reafon aforefaid. Jones verf. Belcher. JONES BELCHER. D EBT upon a Bond given here, which it was Rec. 1762. fuggefted was for a Debt due in England. Fol. 389. Moved that Englifh Intereft only fhould be paid. A Bond Cafes in Eq. 288, cited. giva Debt duhere foin England to a third Party, But the Court were of Opinion, as the Bond was draws New given to a Perfon here, (not the Creditor in Eng- England Intereft. land,) and the Debt was become his, New England Intereft ought to be granted. (1) MINoT Minot verf. Prout, MINOT PROUT. EBT upon a Bond. Defendant pleads as fol- Rec. - 766. lows: "The faid Timothy comes and de- Fol78fends Suing and entering upon a Mortgage is (I) This is according to the general rule of computing intereft accord- no Barion upon ing to the lex loci contractus. Winthrop v. Carleton, I2 Mafs. 4. Yon the Bond feHemert v. Porter, II Met. r o. But where intereft is given as dam- cured thereages, the lexfori prevails. Barringer v. King, 5 Gray, 9, I 2. Eaton v, by. Mellus, 7 Gray, 566. 10 Augurt Term 2 Geo. 3. 1762. "fends, &c., and prays Oyer of the Condition thereMINOT "of, and the fame is read to him in there Words:'V. PRou'r. ". The Condition of the aforewritten Obligation, "&c., (this Condition as ufuall,) which being read "and heard, the faid Timothy faith that the faid "Chriftopher his A6tion aforefaid againft him the "faid Timothy ought not to have and maintain, "becaufe he faith that the faid Timothy, on the "Day of the Date of the faid Obligation, and col"lateral thereto, at Bofton aforefaid, made and exe" cuted to the faid Chriftopher a Deed of Mortgage "of a Meffuage and Land, fituate, &c., which "Mortgage was executed to the faid Chriftopher "to be a collateral Security for the Payment of the "Sum in the Condition aforecited mentioned and "the Intereft thereof, and afterwards, viz., at Bof"ton aforefaid, on the 13th of December, 1758, he "the faid Chriftopher by his Deed, fealed with his " Seal, affigned and conveyed the faid Mortgage, "as well as the Obligation now fued on, to one "~William Brown, of, &c., and the faid William "afterwards, viz., the fame Day, made his Ele&tion, "and for the Non-payment of the faid Sum en"tered on the faid mortgaged Premifes, and became "feifed thereof in his Demefne as of Fee, and frill "holds the faid mortgaged Premifes; and all this "the faid Timothy is ready to verify, wherefore he "prays Judgment if the faid Chriftopher his ACtion "aforefaid againft him the faid Timothy fhall have "and maintain. "O. Thacher." To Auguft Term 2 Geo. 3. To which the Plaintiff replied: "And the faid 1762. "Chriftopher faith, that for Anything above al- MRIOT "ledged, he the faid Chriftopher ought not to be PT. "barred from having and maintaining his A&tion "aforefaid, becaufe protefting the faid William "Brown never made any Ele&ion as he the faid " Timothy above fuppofeth for Plea, the laid Chrif"topher faith that the jaid Will'am Brown did not "enter into or upon the jaid mortgaged Premzjes for "the Non-payment of the jaid Sum mentioned in the "Condition aforefaid, and the Intereft thereof, as the " faid Timothy in his Plea abovefaid hath alledged, " and this the faid Chriftopher prayeth may be in" quired of by the Country. " R. Dana." Upon Demurrer, Exception taken to the Replication, that it was a Negative Pregnant. Do&. Placi: tandi, 256, cited: That either the whole Plea fhould have been traverfed, or he lhould have fet forth the particular Matter. Cro. James, 559. Contra. They having demurred to our Replication, on that Demurrer we may take Exception to their Plea, which if bad we need not anfwer their Exception to our Replication. Their Plea is infufficient; for though he had entered upon the Mortgage, yet that is not conclufive that the Bond may not be fued. Upon this it was largely debated whether a Mortgage being fued and entered upon, the Bond could have Effe&, and e contra. Ruled 12 Augurt Term 2 Geo. 3. 1762. Ruled unanimoufly, that it could, and that the MINOT Plea is bad. (1) PROUT. Bond to be chancered next Term. (2) DUDLEY.DUDLEY Dudley verf. Dudley & al. (3) DUDLEY. Rec. I762. THE late Governour Dudley, by his Will, deFol 415vifed as follows: Devife as follows: " I give to my "I give my Wife One Hundred Pounds per new Farm in Annum, to be paid quarterly during her Life by R " henfrom Paul Dudley my eldeft Son, out of the Iflues and whence he ihall annually "Rents of my Eftates herein given him. fupply and bring Home to his Mother "I give to my Son, William Dudley, my new her Firewood during her " Farm in the Woods in Roxbury, containing 15o Life. vehi " Acres with the Woodland there, purchased of alfo give him my Farm of "Devotion Craft, from whence he fhall annually Iooo Acres fupply (I) S. P. Amory v. Fairbanks, 3 Mafs. 562. Ely v. Ely, 6 Gray, 439. See alfo 8 Pick. 336; 5 Curh. 231. (2) A bill in chancery was accordingly filed praying that the penalty "be chancered down to the fum of one penny." But the Court gave ~I76 Ios. (3) This was a review of a " plea of partition " brought by the younger children of William Dudley, againft Thomas the eldeft fon. The fpecial verdi& found that the premifes were the fame called by the teftator his " farm of a thoufand acres at Manchaug," that William died inteftate, and that Thomas then entered on the premifes; " if therefore the faid William, by force of the will aforesaid, took an eftate in fee fimple in the thoufand acres aforefaid, then they find for the defendants colts; otherwise they find for the original defendant and now plaintiff." Auguft Term 2 Geo. s. 13 " fupply and bring Home to his Mother her Fire- 1762. "wood during her Life. DUDLEY DUDLEY. "I alfo give him my Farm of one looo1000 Acres at M. and "at Manchaug and Three Hundred Pounds toward ~300 toward "building him an Houfe. building him an Houfe." After other "I have already difpofed in Marriage of my aeg Refiduary "Four Daughters, and paid them what I intended. Devife, the following: " And my' I further give each of them looo Acres, to be Wmy Landshat "taken out of my 6000 Acres in the Town of Ox- defcend after " ford; and to my Nephew Daniel Allen, and my of England "Niece Ann Hilton, 500 Acres, out of the fame forever; to the Male " Dividend, to be equally divided between them; Heirs firfi and after to the " all thofe Lands to defcend to the Children fev. Females. If "erally, and the Heirs of their Bodies. either of my Sons die without Male " To my eldeft Son Paul I give the Inheritance Brother and "of all my Houfes and Lands in Roxbury, Oxford, his Male Iffue /hall inherit "Woodltock, Newtown, Brookline, Merrimack, or the Lands "elfewhere, all my Stock, Debt, Money, and all herein be"Eftate belonging to me whatfoever, except as Held, thatW. took a Fee " above fet down. And my 1Will is that my Lands Simple in the defcend after the Manner of England forever; to the " Farm of ooo Acres "' Male Heirs firf, and after to the Females. If either at M." "of my Sons die without Male Idue, his Brother and "his Male Iffue Jhall inherit the Lands herein be"queathed," 4"c. The Queffion in this Cafe was, whether William Dudley took a Fee Simple by his Father's Will. Mr. 14 Augurt Term 2 Geo. 3. 1762. Mr. Otis for the Fee Simple. (4) The Words upon DUDLEY which I fuppofe they build their Fee Tail are thefe, DUDLEY "If either of my Sons die without Male Iffue, his "Brother," rc. There are no Words precedent to thefe which can be fuppofed in the leaft to favour that Opinion, but on the contrary are inconfiftent with it; he muft have intended to have given him a Fee in the looo Acres, or his End, which was to build him an Houfe, could not be anfwered, for ~300 can't be fuppofed any way fufficient, and therefore we muft fuppofe he defigned William fhould fell the Land; and it is Law and Reafon that a fpecial Devife fhould take Effe&t, which could not otherwife, a general Claufe notwithftanding, nor is the Law to be wrefted in favor of fuch Eftates; for however Eftates Tail were once favoured and praifed, as in the Statute De Donis, yet Ld. Coke tells us they were convinced of their Miftake, and exclaims in pretty full Terms. Co. L. 20. Wood, Infl. And here the Reafon is greater than in England, for here all Eftates are partable. (5) Nay I don't think the Words give even Paul an Eftate Tail. The Intention of the Teftator is one of the grand Principles, and fhall not be countera&ted, and it is to be favoured as far as poffible confiftent with the Rules of the Common Law; and unlefs there are fome operative Words, Fee Simple muff (4) The MS. report of the arguments in this cafe bears evidence of being the original minutes taken in court. A little confufion, and an occafional defe& in grammar, are thus accounted for. (5) See poft, Baker v. Mattocks. Augur Term 2 Geo. 3. 15 mufft be fuppofed to be given. Now here are no 1762. exprefs Words in Favour of a Fee Simple. "And DUDLEY "my Will is that my Land defcend after the Man- E. "ner of England forever, to the Male Heirs firft, "and after to the Females, &c." I think it manifeft his Intention was, that they fhould defcend according to the Common Law, which knows no Effate Tail; and that being his Intention, the Law will not admit an Inheritance contrary to the known Law of the Country; and this being contrary to the Law defcends as a Fee Simple, and the Word "Male Heirs, &c." fhall be attributed to Unfkillfulnefs. Mr. Kentfor the Tail. Mr. Otis can't fuppofe an Eftate Tail can't be made in this Province, fo we need only inquire into the Teftator's Intention. Cites 3 Salk. 394, Fiyher vs. Nichols, of the favourable Conftruftion of Wills. In Paul's Gift there was nothing enjoined him, but annual Payments which the Profits would fecure. "To William I give " Manchaug Farm, and ~300 towards building him " an Houfe," they are evidently feparate. He gives him Manchaug Farm, and moreover I give him ~300 towards building him an Houfe. To Paul he gives the Inheritance of his Land, &c.; this Word is ufed in Tails. Vid. Cafes in Eq. Abr. 178, 1791 Salk. Tit. Devife, 234. The Court aiked, as there had been no Authorities yet produced on the other Side, whether it would not be more regular to have them read now, before the Council in Favour of the Tail clofed. Upon which Mr. Gridley produced his Authorities. 1 Inft. 9 b, any Eftate charged is a Fee Simple. 2 Peere Wms. i6 Auguft Term 2 Geo. s. 1762. Wms. 673. Siderfin, 312. Moore's Rep. 53. ViDUDLEY ner, Tit. Devife, 82. 3 Mod. 02. cv. DUDLEY. Mr. Trowbridge for the Tail. In his firft Devife to his Wife, he gives her lioo, for Paul to pay out of the Rents and Iffues of his Eftate, which evidently exclude from his Intention to give Paul a Fee Simple; fo in the Gift of the Wood it is idle to fay that is greater or anything near equal to the yearly Rents of the 15o Acres. And as to the Manchaug Farm and ~300; it is true ~300 would not build him an Houfe at Roxbury, but does it appear that he meant fo? Perhaps, and mofl probably, he intended on the Farm at Manchaug. Ch. yufi. The words are build him an Houfe; not an Houfe fimply, but him, one whom he knew was to live at Roxbury. Trowbridge continues. The firft Words in a Will may dire&, but the laft fhall controul, and this is the Difference between Wills and Deeds. The Devife to his Couzins is in there Words, "to defcend to "the Children feverally, and the Heirs of their Bodies." A Fee Tail may defcend. If in the firft Words he intended a Fee Simple, in the laft he altered his Mind, and intended to controul the firft. " If either "die without Male Iffue, then," &c.- either. A Devife of this Sort is as great an Eftate Tail as can be given, and the Word Body fhall be fupplied. Lilly, Tit. Devife. 6 Coke, 16, Collier's Cafe. Ventris, 230. Hawk. Abr. 17. Had he defigned it fhould defcend as Fee Simple in England, it would have defcended Auguft Term 2 Geo. 3. 17 defcended to the Daughters of William before the 1762. Sons of Paul, &c., but here it is otherwife. DUDLEY,'. Mr. Gridley for the Fee. The Intent of the De- vifor is the only Thing your Honours will govern yourfelves by, (Vid. Peere Wms. ut fupra,) and that Intention is to be fpelt out by little Hints, by other Devifes, &c. Viner, Tit. Devife, 182. Notwithflanding'tis a Devife he fays'ihall defcend.' He defigned William lhould fell, and he muft fell, and that gives a Fee Simple, as much as exprefs Words. He defigned William fhould live in Roxbury, and ~300 is not fufficient to build him an Houfe there, a Dwelling Houfe. The Law takes Notice of the Rule of Grants, Words in the Beginning and End refer to the Whole. Sid. utfupra. It is not —I give 1ooo Acres, I give him ~300 towards building him an Houfe, but they are fo coupled as to be the fame; I give him 1000 Acres and ~300 towards building him an Houfe. Vid. Moore's ut fup. (Ch. fufl. In the Authority you cite, they were each equally applicable to the Purpofe, here not: Land does not feem fo much fo as Money.) In this Country we make our Real Eftate almoft Perfonal Eftate by Act of Parliament, and our own Acts; befides, Gov. Dudley did not perhaps leave a Sufficiency in Money. The Word defcend I grant is ufed in Tails, but when it is ufed, there we always ufe the proper exprefs, Words of Tail; here it is — hall defcend to him- not the Heirs of the Body, &c. Eftates Tail can never be fuppofed by a Devife after the Manner of England, for being a minor Eftate ihould have been mentioned in exprefs Words. Suppofing the Females deceafe, there is 3 no !8 Augurt Term 2 Geo. 3. 1762. no further Devife, if it is a Tail. The Law of this DUDLEY Province forbids his giving it as the Law of EngL. land: But if he meant fo, it could not be Tail, for DUDLEY. it is the Common Law. I imagine Governor Dudley thought that was the Manner of England, that the Sons of the other ihould take exclufively of' the Daughters of the other, and the Will is inaccurate throughout as to the Daughters. Shall what is underflood be fet afide by one infenfible Expreflion? It was moved by Mr. Kent, and feconded by Mr. Trowbridge, that they might be heard again before Judgment, and the Court thinking it a Matter of Nicety and Confequence, defired a further Argument, and continued it to the next Term for Judgment. (4) Mr. Otis. The fingle Queftion is, whether thefe Words, " I alfo give him my Farm of 100ooo Acres at Manchaug and Three Hundred Pounds to build him an Houfe," compared with the whole Will, make a Fee Simple or a Tail. The Words of Ads executed in the Life are to be "to Heirs forever," in a Fee Simple, "Heirs of the Body" general, Male or Female, in a Fee Tail; greater Indulgence is to be given to Wills. I lhall endeavour to fhow that from this Claufe by itfelf, or confidered with Refpe& to the others, it muft (4) The report of the cafe accordingly breaks off at this point in the MS., and is refumed between the cafes of Gardner v. Purrington and Rogers v. Kenrick, decided at the next term. For convenience, however, it is printed as a whole. Auguft Term 2 Geo. s. 19 muff be the Intention of Dudley to give his Son a 1762. Fee Simple; and Separately confidered, there could DUDLEY be no Doubt; but'tis the Claufe " after the Manner DUe of England, &c." which caufes it. The Queftion will be whether the laft Words create a Tail in any, even to the Eftate given Paul, and if it does, whether they extend through the Whole. Ld. Hobart fays the two great Principles upon which all Devifes hang, are the Intention of the Teflator, which fhall be indulged as far as the Rules of Law admit. I think the Confideration of the Intention, is the moft rational Way of judging of any Will; and I think whoever does that will think an' Eitate Tail remote from the Teflator's Intention. The firif Words are only an Inheritance according to the Intent of the Common Law; his Intent was, I allow, to make a Common Law Defcent, Spite of the Province Law, - to cut off his Daughters only. We fhall confider how far this Intent is to be indulged. No Man Ihall create an Eftate contrary to the Laws of his Country; we know none according to the Courfe of the Common Law. As for the other Words of the Will, Manchaug Farm is given for fuch a Purpofe, as could not be anfwered by fuch an Eftate as they contend for; he has it given to build an HIoufe, which he could not do, if he had only his Life in it. Co. Lit. 9, b. It is an old Principle, that paying is an Argument that the Land ihall go. It has been faid that a Devife of Woodland formerly in this Country conveyed a Fee Simple, and that it has been adjudged fo; any Words that can amount to an Intent that the Devifee 20 Augurt Term 2 Geo. 5. 1762. vifee ihall have the Advantage of the Whole of it, DUDLEY fhall have a Fee; it is not the firft or laft Part of a "V. Will that mhall Rfand, but the Whole together. DUDLEY. Viner, 324, Tit. Devife. If he intended he fhould reap the fame Benefit, as he would if it had been a Fee, it thall be. Viner, 224, 13. Will to be taken altogether. Ibid. 182, 11, 12, 13. His Intent being contrary to Law, firft Devifees take a Fee Simple. Ibid. 229. Swin. 165, 141. Entails diffavoured.-No Tail unlefs the firft Words give a Fee Simple; none where it is given in any fuch Manner. The firit Words may be controuled, where it is a plain Fee Simple, here it is not; he tries to invent a new Conveyance, his Words are apt to convey according to the Law of England; he muff either give it according to the Cufitom of the Country, or in Fee Tail general or fpecial. An implied Eftate Tail has never been raifed when the firfc Words were to give an Eflate unknown to the Law of the Country. No Teftator was ever interpreted to mean to give a Tail becaufe that came neareft to his Intention. Mr. Gridley's Authorities: Sid. 312 —Rule that firft and laft Words relate to the whole; middle to the middle only. Moor, Cafe 153, p. 52.- Plowd. Comment. 540. Viner, Tit. Devife, 182, 11. 3 Lev. 111. 4 Mod. 154. 3 Lev. 125. 3 Mod. 182. Styles, 276, 392. Mr. Azchmuty. I fhall confider this by looking into the Words of the Will, collet the Intent, and compare it with the Rules of Law. —" His Brother and his Male Iffue mhall inherit." Thefe Words are AuguR Term 2 Geo. 3. 21 are descriptive of an Eftate Tail, and no other. The 1762. firfi Words are liable to be reitrained, controuled, DUDLEY or defeated by the laft; if a laft Word contradi&t DLEY. the firit, the laft fhall ftand. 1 Lilly, 449. Co. Lit. 1 12, b. The Words relate as well to William as Paul. Cro. Ja. 448. This is a Cafe Mr. Otis faid could not be found. Cro. Ja. 695, Chadock v. Cowley. It feems abfurd that an exprefs Elfate may be controuled by latter Words, and yet that where there is no certain Eftate given by the firfi Words, that they ihall not; I ihould think they might a fortiori. 9 Coke, 128, Sonday's Cafe. 1 Ld. Raymond,;85, Baker vs. Wall. Ib. 568, Nottingham vs. yennings. Comyns, 539, Brice vs. Smith. I cite there to {how the firft Words need not be exprefs, and that the laft lhall explain the firft. I utterly deny that the giving Woodland could by Law give a Fee; but if that be the Cafe, when the Teftator afterwards explains his Meaning, that muff caufe it to be otherwife. As to the Pradice of the Court, the Rules of Law by being recollected would deftroy it. I believe no Pratice agreeable to that Rule of Woodland can be brought, and if there can, not where there are other fuch Words as are here. As to the Houfe, it does not appear that it was to build an Houfe at Roxbury; he was at that Time building an Houfe there, and the Devife, which takes no Effe&t till the Death of the Teftator, might be fome Years off. — Could he not have paffed it by Deed, had that been his Intent? It is much more rational to conclude, that, as he had given him a Farm, he intended he fhould live there, therefore gave him ~300 to build him an Houfe there, 22 Auguft Term 2 Geo. 3. 1762. there, to encourage the Settlement: There are two DUDLEY TraCds given William and Paul much in the fame DUDLEY. Words. I can't find any Reafon why they Ihould be confined to Paul; all the Lands therein bequeathed, in Cafe one died without Iffue Male, are given to the other; he defigning to entail all his Lands to the Survivor of his Sons, and his Male Iffue, he has done it. I agree he intended to exclude the Daughters; could he then think he was giving a Fee Simple, when he exprefsly excludes them? He has not given a general Effate Tail, but confined it to Male Iffue —They fay he is making a new Eftate, I fay he has made an old one. In the Cafe of Raymond,'tis faid he intended an Eftate Tail, becaufe the Daughters were excluded. Take it as a Tail, all Purpofes will be anfwered, the Daughters will be excluded, the Heirs Male will have it; and'tis a Tail with Crofs Remainders, all which he feems to have had in View. The Heir-at-Law is favoured-fo he is here: As to the paying, it is not always denotive of a Fee: The Wood is out of Roxbury, what is that to Manchaug? He has given that Farm, and ordered that Wood to be furnifhed; there is a Difference where a Sum in grofs is ordered, and where an annual Sum not exceeding the Rents. Co. Lit. 9, b. There is an Authority that fays, where he gives it Specially, it is not an Inheritance. 2 Bacon. William could not be a Lofer by fuch a Payment. Gilbert cites Cro. Eliz. 498. If the Devifor orders A to pay B a Sum in grofs, this gives a Fee, though not even then, I fuppofe, if he afterwards explains it otherwife. As to the Authorities of Viner, they relate only to the Conftrution of Wills, which we agree with them: As Auguft Term 2 Geo. 3. 23 As for the Cafe from Moor, of the Coats, (5) they 1762. were to be paid forever: It would be inconfiftent, but DUDLEY that as the Incumbrance was perpetual, the Eftate. lhould be perpetual alfo. The other Moor Cafe is only that all Parts of a Will are operative, we agree to it, if they can be reconciled. How can it be fuppofed the Land as well as ~300 are to go towards building him an Houfe? -the other Words of the Will difpofe of the Land otherwife, this is in Anfwer to the Grammar Cafe (6); Plowden's Cafe is only the Say of Council. Moor's Cafe of the Item (7) is anfwered by Cro. Ja. 695. The Intention of the VWrill can be no otherwife anfwered than by Tail; —if a Tail not an Iota is loft. Mr. Trowbridge. We all agree that the whole Will is to be taken together; that if the firft Words are doubtful, the laft may explain them, but if the firft are exprefs, the latter ihall not controul them. It muft be abfurd to fuppofe that the Farm as well as Money was given to build an Houfe; in fome Cafes the Item may couple, in fome not. 5 Co. 7, JWyndham's Cafe. 6 Co. 61, Catesby's Cafe. That the Word "and" is to be governed according to the Subje&-Matter. —If there is any particular Eftate limited, paying does not make a Fee. i Vent. 227. Gilb. Law of Devifes. Comyn's, 539, Brie vs. Smith. Thofe Lands which he gives his Daughters, he expreffly entails, fo he does what he gives his Couzins, and ufes the Word defend as he does here; as for the Word Inheritance, an Eftate Tail is (5) Erroneoufly cited; the " Cafe of the Coats " is Smith v. Tyndal, 2 Salk. 685. (6) Sid. 312. (7) Moore, cafe i53. 24 AugufR Term 2 Geo. a. 1762. is as much an Inheritance as a Fee Simple. As for DUDLEY the Manner of England, I deny that he meant ComDUDLEY. mon Law, he only intended it fhould be partable as here; If his Intent could not be anfwered according to the Rules of Law, the Law will mould it into fuch one, as is moft agreeable to his Will and Defign. Mr. Gridley. The Intent of the Devifor ihall be the Pole Star of the Will, and then every Iota ihall have its Force, if it can confistent with the reft. I agree that the Subjed-Matter muft govern in all Cafes; the Subjeft-Matter here is a Supply to William to build him an Houfe. With Regard to Mr. Trowbridge's Authorities, I fee not how they are applicable; the firit is a Common Law Conveyance, to be judged by Common Law Maxims, to be taken moft ftrongly againff the Grantor; here the Intent of the Devifor is to be purfued; --- If the ~300 is given for the Houfe, the Lands are given; they are tied by an indiffoluble Band, and can't be feparated, but by a Violence upon Common Senfe. The Moor Cafe has Item, here is none. We muff confider of our Country and Real Eftate here: To a Perfon unacquainted with our Eftate, this might feem ifrange, but to us who know Real Eftates are liable for the Payment of Debts, and are by A& of Parliament made Chattels Real, for the Payment of Debts, (8) that they are almoff the only Things we have to trade upon, and that they continue in a Family fcarce over three Generations,'tis not ftrange they fhould be put upon the fame Footing with Perfonal Eftate. In this I take it, both muft be fupported (8) Anc. Chart. 292. Augurt Term 2 Geo. s. 25 fuppofed for the fame Purpofe, it is a Conftru&tion 1762. arifes from the Neceffity of the Thing, and the DUDLEY Nature of Real Efiate here. As for the Obje&ion. DUDLEY. againft our Conftru&ion, that it is uncertain how long he would live; there was an Houfe for Paul, and one defigned for William; if there was none ere&ing,'twas for one hereafter to be built, if one was built, to finifh it or to reimburse him. As for the after Words; whether they fhall deitroy the Force of the Firft -the Words " after the Manner of England," - it being unlimited, it muft be Common Law; who would fuppofe Tail Male to mean the Manner of England. "The Heirs Male, and after to the Female;" the whole Complexion is to the Creation of a new Eftate; this laft ought to be wholly laid afide, this extraordinary, impoffible Claufe. If this Claufe operate at all, it can't take to the Manchaug Farm; if that can be fatisfied elsewhere, it need not be applied here; let it go to the Roxbury Lands. 9 Mod. 154, Adams vs. Clark. The Chief YuJfice delivered the Judgment of the Court in Favour of the Fee Simple. (g) (9) This judgment is recorded as of September term at Worcefter, but the entry bears evidence of having been inferted at a later date. The decifion was undoubtedly given, as here reported, at February term in Suffolk. It alfo appears that " immediately upon entering up this judgment, the laid Thomas moved for an appeal to his Majefiy in Council, which the Court did not allow." The Province Charter provided for an appeal to the King in " perfonal aEtions " only. Anc. Chart. 32. It is to be regretted that we have no means of ascertaining on what ground this decifion was given. If the Court were fatisfied that the 4 land, 26 Augurt Term 2 Geo. s. 1762. JACKSON FOYE. Jackfon verf. Foye. Rec. 1762. Fol. 385. RS. JACKSON was upwards of thirty Evidence lvi Years a Tenant to Mrs. Foye, paid her of Payment Rent without any Dedu&tion but for Repairs, which of full Rent by a Tenant, were often made. A. D. 1758 they fettled Acfor thirty counts, and Mrs. Jackfon, owing Mrs. Foye, gave Years, and of the givinga her a Note of Hand on Intereft. The prefent Note of Hand for the A&tion was brought by Jackfon againit Foye for Balance half the Rates for Twenty Years. found due on a Settlement, isPfufficient The only Queftion was, whether thefe SettleContral to ments, that Note of Hand given, when, if the Rates pay Taxes under the had been reckoned, there would have been a BalProvince ance due to Jackfon, amounted to Evidence of an Law, which provides that exprefs Contrat. "' where no Contra& is" the the Landlord fhall reimburfe half the land, as well as the money, was given "toward building the houfe," it was Taxes. Ruf- evidently excepted from any operation of the fubfequent general claufe. fell, J., dien- But if the effect of that claufe became neceffary to be confidered, a more tiente. difficult queftion muff have arifen. The words diretting a defcent " according to the manner of England," &c., feem clearly to intend a common law defcent, in oppofition to the law of the Province. But the words which immediately follow, " If either of my fons die," &c., would feem to import an indefinite failure of iffue, and to give the brothers eftates in tail male general, with crofs remainders, alfo in tail male. Abbott v. Effex Co. iS How. 202. Hall v. Prieft, 6 Gray, i8, and cafes cited. The queftion cannot be better flated than in Mr. Otis's words, ante, p. 20 - Can an implied eftate tail ever be raifed, when the firit words give an eftate unknown to the laws of the country?" In the cafe of Bani~fer v. Henderfon, poft, I 3 I, Mr. Auchmuty fays that " the point of charge had weight " in this cafe. This feems hardly probable, as one was dire&tly on the rents and profits, and the other a charge of wood to be furnished from the land itself. See 24 Pick. I39. And even a perfonal charge of a fum in grofs will not enlarge a clear eflate tail, though only arifing by implication. 2 Jarman on Wills, (xst Am. ed.) x72. 5 T. R. 535. B.& Ad. 38. Auguft Term 2 Geo. s. 27 The Court (YuJfice Ru/fell difentiente) gave it to 1762. the Jury as their Opinion, that it did, and dire&ed JACKSON them to give the Defendant Cofts, which they F"a did. (1) Wifwall verf. Hall. WISWALL'V. HALL. pLAINTIFF and Defendant had formerly fub- Rec. 1762. mitted Matters in Controverfy to certain Ref- Fol- 385. erees, who had reported thereon. This Adtion was Referees cannot be adbrought by Wifwall vs. Hall to recover the Cofs mitted to tefupon that former Suit, for though the Referees had tify that their Award that reported that they fhould bear the Cofts between each Party them, yet Wifwall alledged that it was upon a his owndbCofts, Promife of Hall to bear the whole Colts. (2) To was made in Confideration verify this he offered the Referees as Evidence. But of a Promife the Court ruled unanimoufly that they could not by by one Party never to enparol Evidence controul the Report which was of force acertain Record. (3) Judgment other. (I) This decifion was under the following provifion contained for many years in the annual tax a&s of the Province: "Saving all contra&s between landlord and tenant, and where no contra& is, the landlord to reimburse one half of the tax fet upon fuch houfes and lands." See poft, Derumple v. Clark. The fame provifion in fubflance is contained in Rev. Sts. c. 7, ~ 8, by which the tenant was authorized to retain half the taxes out of his rent, unlefs there was an agreement to the contrary. By Gen. Sts. c. i i, ~ 9, he may fo retain the whole taxes or recover the fame by adion. (2) This is inaccurately ftated. The declaration alleges that the promife by the defendant, but for which "the referees would have awarded the plaintiff coils," was, never to enforce a certain other judgment for coils previoufly recovered. (3) Arbitrators cannot by parol'teftimony contradi&t their formal award in writing. Io Met. 433. 4 Cufh. 3x7, 399. 28 Auguft Term 2 Geo. 3. 1762. eV. SAYER THORP. Sayer & al. verf: Thorp & al. Rec. I763. Fol. I7hFol. Ir T HE only Queftion of Law in this Cafe was, the Owner whether the Owner of a Veffiell and the Perand Hirer of fon who hired and freighted her could join in an a Vetffell can join in an Action of Trefpafs for running away with the VefATrion of fell. (1) It was not doubted that they might both Trefpafs for running away have their Ations, (2) but whether they could join with the Vefell a-quere. was the Doubt. It was faid on one Side, that Tenant (I) There are feveral depofitions on file in this cafe, from which it appears that the floop Profperous was employed in freighting wood on the ChigneEto River, Nova Scotia, for the ufe of Fort Cumberland, and that the party who ran away with her were deserting foldiers of the fort. The defence was, the confent or connivance of the mafter, who was alleged to have been paid for a fimilar ufe of the floop on a former occafion, and to have induced the attempt by telling the foldiers that there would be no refiftance, and that they were fools to ftay in fo bad a place after their time was up. And in his own depofition he acknowledges having found forty-one dollars in his cabin, which he was told the foldiers had left, and which he was induced to put in his cheft. There appears alfo among the papers a printed proclamation by Governor Pownall, bearing date March 17, 1759, and reciting that his Majefty, having determined to make a general invafion of Canada, called upon his faithful and brave fubjeEts of New England for affiflance; and that the Province, having refolved to raife a number of men, " have made provifion for the levying and fupport of fuch to the firft day of Nosvember next, faid men to be then difmiffed." The words here in Italics are underscored, fhowing that the paper was offered to prove that the foldiers' term of enliftment had expired before the running away with the veffel. See 3 Hutchinfon's Hilt. Mafs. 79. The verdi& was for the defendants. (2) It was formerly held that both owner and bailee might maintain trefpafs, but that a recovery by one flould ouft the other of his right ot aEtion. Bac. Ab. Trefpafs, C. 2. It has been fince decided, that general ownership, without either poffeffion or right to poffeffion, is not fufficient. Ward v. Macauley, 4 T. R. 488. Muggridge v. Ecveleth, 9 Met. 233. Auguft Term 2 Geo. $. 29 ant and he in Reverfion of a Freehold fhall never 1762. join; and on the other, that it would be a Caufe of SAYER multiplying Adions. The Parties agreeing, this TV Point was not determined. Mr. Gridley in this Argument faid: Trefpafs and Debt are the two great A6tions on which the Fullnefs of Evidence is required, and are Aftions of the higheft Nature. Oliver verf. Sale. OLIVER'V. SALE. OLIVER fues the Defendant for felling him two ~iIJ free Mulattos for Slaves. (1) There was no Feo. 386. Bill of Sale, but only feveral Receipts of Money for two Negro Boys fold 4' delivered. It was fug- who fells a gefted on the other Side that the Defendant fold Negro as a Slave, whom them not as Slaves, but only his Right, if he had he knows to be free, is liaany, in them. (2)-The Cafe was thus argued. ble to an AcMr. tion by the Mr- Vendee for the Fraud. (I) The declaration was for deceit, in felling the mulattos to the plain- Aliter, where he tells the tiff as flaves, knowing them to be free. endee at the (2) Previoufly to the adoption of the State Conftitution in 1780, ne- Time of Sale gro flavery exifted to fome extent in Maffachufetts, and negroes held as that he will flaves might be fold; but all children of flaves were by law free. Body not fell the of Liberties of 1641, art. 9I. Mafs. Colony Laws, (ed. i66o,) 5; (ed. Negro as a of Liberties of i641,d ~Slave. 1672,) Io. Prov. Sts. 2 & 4 Anne. Anc. Chart. 52, 53, 745-749- x A DepofiHutchinfon's Hiff. Mafs. 444. 2 Hildreth's Hift. U. S. 49I. John tion which Adams's Works, 5, 55. James Otis's Rights of the Colonies, (1764,) comes up in 29, 37- 4 Mafs. Hift. Coll. 194 4 feq. 2 Dane Ab. 413, 4i6,426, a Cafe from 427. 3 Plym. Col. Rec. 27. 5 Ib. 2I6. Winfor's Hift.of Duxbury, the Inferiour 70, 71, & note. Cutler v. Matech, Rec. I697, fol. $9.- Allifon v. Cock- Court may be read, though ran, poft, 94. 4 Mafs, I27, I28,& note. I3 Mafs. 551,552. i6 Mafs. the Witnefs 75, 76. io Cufh. 410. 2 Kent Com. (6th ed.) 252. 2 Palfrey's Hifl. is alfo prefent New England, 30 & note, 28o note, 370. in Court. Slaves 30 Auguft Term 2 Geo. s. 1762. Mr. Thacher, for Plaintiff. I think from the OLIVER Words of the Receip t may be learnt what was s. his Intent. Sold %4 delivered conveys the Property; and as he had really no Right to a Day's Service in the Lads, as they were free, he could not pafs any Property Slaves were admitted to be church members at a period when church members had peculiar political privileges. 2 Winthrop, 26, & Savage's note. Anc. Chart. II7. I Bancroft's Hift. U. S. 360. Slaves were Sometimes required, Sometimes prohibited, to ferve in the militia. 3 Mafs. Col. Rec. 268, 397. 4 lb. pt. i, 86, 257. Journals Mafs. Prov. Congrefs, (ed. x838,) 29, 302, 553. They were enlifted in the army in the Old French War. 4 Mafs. Hill. Coll. I99, 2o03 98 Mafs. Archives, I22. They were competent witneffes, even in capital friasT:e. g. in the trial of the Briti/h Soldiers in 1770, (ed. 1770, p. I I,) and in fuits of other flaves for freedom, as appears by the files of court. The right to marry was fecured to them in 1705 by Prov. St. 4 Anne. Anc. Chart. 748. The fubfequent records of Bolton and other towns thow that their banns were published like thofe of white perfons. In I745, a negro flave obtained from the Governor and Council a divorce for his wife's adultery with a white man. Jethro Bofton's Cafe, 9 Mafs. Archives, 248. In 1758, it was adjudged by the Superior Court of Judicature, that a child of a female flave, " never married according to any of the forms prescribed by the laws of this land," by another flave, who "' had kept her company with her mafler's confent," was not a ballard. Flora's Cafe, Rec. 1758, fol. 296. And the wife of a flave was not allowed to tertify againft him. MS. note by John Adams of Cxrfar v. Taylor, in Effex, 1772, (Rec. I772, fol. 9I,) in the poffeffion of Hon. Charles Francis Adams; which alfo ihows that the defendant in an aEtion of falfe imprifonment was not permitted under the general iffue to prove that the plaintiff was his flave. Such aftions, called "fuits for liberty," were common as early as I765. 2 John Adams's Works, 2oo. The lateft inftance of a verdi& for the makter is believed to have been in I768. Ne'wport v. Billing, Rec. I768, fol. 284. But the cafe of James v. Lechmere, in Middlefex, a year later, which has been often fpoken of as having determined the unlawfulnefs of flavery in Maffachufetts, is fhown by the records and files of court to have been brought up from the inferior court by fllam demurrer, and, after one or two continuances, fettled by the parties. Rec. 1769, fol. I96. The cafe mentioned by Dr. Belknap in 4 Mafs. Hill. Coll. 202, as " the firft trial of this kind," may have been that of Margarett v. Muzzy, which was a writ de homine replegiando, fued out and tried in Middlefex in 1768, and on review in 1770, in which, as appears by the Auguft Term 2 Geo. s. 31 Property in them, and therefore muff be fuppofed 1762. to have fold them as Slaves, or meant from the firif OLIVER to have defrauded. L-. SALE. Ch. Juft. Everything which is bought is fold. Witneff'es were produced who were prefent at the Time of the Sale, and heard Defendant fay they were Slaves. Mr. Otis, for DefendaZ4 I hold in the Cafe of a Negro, there fhoul&be an exprefs Warranty of their Freedom, and that the Rule of Merchandife which obliges the Vendor to anfwer for what he fells without Warranty is confined to Manufadtures of the Country which a Man muff be fuppofed to know the Quality of; but in this Cafe it is impoflible in moft Cafes to know whether they are free or not. Ch. the depofitions on file, there was much confliting evidence, and the plaintiff prevailed. Rec. 1768, fol. 311; 1770, fol. 2x6. Slavery was certainly recognized by law in Maffachufetts after this; for in May, 177 I, Hutchinfon wrote to Lord Hillfborough, "Slavery by the Provincial laws gives no right to the life of the fervant; and a flave here is confidered as a fervant would be who had bound himfelf for a term of years exceeding the ordinary term of human life; and I do not know that it has been determined that he may not have a property in goods, notwithftanding he is called a flave." 27 Mafs. Archives, IS9, I6o. qc Slaves convi~ted of theft were fentenced, like other perfons, befides being whipt, to pay treble the value to the owner of the goods ifolen, and, if unable to do fo, were ordered to be " difpofed of in fervice" for life, or for a term of years, " for payment of the fame." Hercules f Sharper's CaJes, Rec. I757, fol. 54, 55; Docket of February term, 1757, in Suffolk, ad finem. Yeoffs's Cafe, Rec. I77 1, fol. 35. By virtue of the firfi article of the Declaration of Rights, prefixed to the Conftitution of Maffachufetts, if not before, flavery was entirely abolifhed here. 2 Bradford Hill. Mafs. 124. 4 Mafs. Hiftll. Coll. 201203. 31 Ib. 90. 34 lb. 333. Willard Memoir, 153. 4 Mafs. 128. 9 Amer. Jur. 490. 8i Pick. 208-210. 7 Cufh. 296. 7 Gray, 478. 5 Leigh, 622, 623. 20 Law Rep. Ixo, io8, 456. 32 Auguft Term 2 Geo. s. 1762. Ch. yuft. Is there not as palpable a Fraud, when OLIVER a Man fells a Negro as a Slave whom he knows to e. be free, as when he fells a Bag of Feathers and SALE. affures them to be Hops? That he knew them to be free they muff prove, or do not fupport their Declaration. (3) Mr. Otis offered a Depofition lodged in the Cafe to be read. Mr. Thacher demanded, as the Witnefs was there in Court, she might be examined orally. (4) Court ruled, that when Depofitions come up in the Cafe they may be firft read. (5) Mr. (3) According to the rule now fettled in this country, it feems that the fcienter would be unneceffary - the vendor being liable on the implied warranty of title in the fale of a chattel. Coolidge v. Brigham, I Met. 547. (4) Among the papers in this cafe are the depofitions of Anna Bill and Lydia Whitaker, one of whom was undoubtedly the witnefs " there in Court." The depofitions are fubfiantially fimilar, and the following is an exa& copy of that of Lydia Whitaker:" Lydia Whitaker of Lawfull age tertifies & fays that fhe was at the "houfe of Capt. John Sale when Mr Nath'l Brown & Mr John Oliver "came to buy two of his negro boys & Capt. Sale told them that he "would not fell them for Slaves becaufe he underitood they were to be "free after fome time, & he would only fell his right & title in them, "& Mr Oliver faid he would run the rifk of their ever getting free. her "LYDIA X WHITAKER mark "Sworn before the Court in O&'r I76I " Att. MIDDLECOTT COOKE Cler." (5) The cuftom of ufing the depofition in addition to oral teftimony once prevailed in Maffachufetts. Compare Colony Law of I647 and Prov. St. of 7 W. 3, (Anc. Chart. 209, 288,) with the St. of 1797, C. 35, reina&ed in Rev. Sts. c. 94, ~ 25, and Gen. Sts. c. 131, ~ 28. Auguft Term 2 Geo. 3. 33 Mr. Otis. When the Apprentice's Indentures are 1762. affigned, he may properly be faid to be fold, but OLIVER'tis no Argument of his Slavery. SALE. The Evidence being clear that Sale had faid he would not fell them as Slaves, and told Plaintiff fo when they were fold, the Court dire~ted the Jury to find Defendant Coffs. N. B. In Aggravation of Damages, had they found for the Plaintiff, Mr. Thacher faid: "Oliver by felling thefe Boys for Slaves expofed himfelf to a Writ of Replevin,* upon which if Sheriff returns'They are Efloigned,' there fhall go a Capias in WiYthernam,t and his own Body lhall be fubje&ted to Confinement till they are produced." Hallowell verf. Dalton. HALLOWELL DALTON. Tr-IHIS Cafe was a Review of an A&tion brought Rec. 1762. I by Dalton againft Hallowell. The only Fol. 390. Queftion of Law was, whether after Bond given to After Bond given to rereview, before the Service of the Writ, there can be iew, and befaid to be fo much of Suit depending, and fo much fore the Service of the of Parties, as that a Juftice may, out of Court, take Writ, the the. Evidence of' Men going to Sea, according to Depfition of the Province Law 7 W. 3, c. 11. (1) Ruled, there is. going to Sea may be taken under the * Homine replegiando. Vid. F. N. B. 66. New Nat. B. ISI, 152. Province t If this is returned non eft invent., a Capias fhall iffue againlt the Law of 7 W. Defendant's Goods and Effe&s. 3, c. II. (x) This law provided for the taking of affidavits of " witneffes in civil 5 caufes," 34 Auguit Term 2 Geo. 3. 1762. GOULD Gould verf. Stevens.'V. STEVENS. 1 T HIS Adtion was an Attachment againft SteFol. 383. vens as Executor of Somebody, a Debtor of the Plaintiff's. Plea in Abatement was made, that An Executor of his own by the Law as Executor he fhould have been fumWrong is not moned, and not his Body or proper Goods attached. liable to an Attachment The Replication to this was, that though he was of his Body named Executor in the Writ, he was not appointed Goods on a by the Teftator, but was Executor of his own Debt of the Teftator. Wrong. Mr. Thacker. The Province Law 2 Ann. c. 5, (1) directs the Manner of Suits againft Executors and Adminiftrators. Executor of his own Wrong takes the Duty and the Burden, he is by Wrong in the fame Manner as if by Right, and is anfwerable no further than as Effe&s come to his Hands. The Common Law is the fame with the Province Law. Mr. Sewall, contra. An Executor in his own Wrong cannot maintain an Adion certain. He is not favoured as Executor by Right. 4 Wm. & Mary, c. 2. 1 Salk. 297. 2 Ventris, 179. The Law knows Nothing of them but to reftrain and punifh them. Judgment that the Writ abate. caufes," with a " notification to the adverfe party," but fpecified no time as the commencement of a fuit. Anc. Chart. 288. But the St. of 1797, C 35, provided for taking depofitions only " when the writ, original fummons, or complaint fhall have been ferved." This is in fubifance reenaled in Rev. Sts. c. 94, ~ I5, and Gen. Sts. c. 131, ~ I9. (I) Anc. Chart. 377. St. I783, c. 32, ~ 9. Rev. Sts. C. IIO, ~ I. Gen. Sts. c. z28, ~ S. AuguRt Term 2 Geo. 3. 35 1762. BARRISTERS' Memorandum. (1) HABITS. JAMES OTIS, Edmund Trowbridge, Jeremy Rec. I762. Gridley, Richard Dana, Benjamin Kent, Dan- Fol. 4 iel Farnham, John Worthington, James Otis, junr., James Putnam, Jofeph Hawley, John Chipman, Oxenbridge Thacher, Robert Auchmuty, Sam'l White, James Hovey, Samuel Fitch, Jonathan Sewall, William Cufhing, Robert Treat Paine, William Pynchon, William Read, Samuel Swift, Jofeph Dudley, Benja: Gridley, Samuel Quincy, and John Adams, having been called by the Court to be Barrifters at Law, the following Gentlemen, viz., Edmund Trowbridge, Jeremy Gridley, Benjamin Kent, James Otis, junr., Oxenbridge Thacher, Robert Auchmuty, Samuel Fitch, Jonathan Sewall, Robert Treat Paine, Samuel Swift, Samuel Quincy, and John Adams, Efquires, appeared accordingly this Term in Barriflters' Habits. (2) (I) As this memorandum clofes the record of the term on the Suffolk docket, it is here inferted, although not a part of Mr. Q__incy's reports. (2) John Adams was fworn on the I4th of November, I76i. Rec. 176I, fol. 239. In a note to his diary at that date he fays: " About this time the projeEt was conceived, I fuppofe by the Chief JufRice, Mr. Hutchinfon, of clothing the judges and lawyers with robes. Mr. Quincy and I were directed to prepare our gowns and bands and tie wigs, and were admitted barrifiers, having prafifed three years at the inferior courts according to our new rules." 2 John Adams's Works, 133. See alfo Adams's Letters to Tudor,,xo lb. 233, 245. February Term III Georgii Ter. in Sup. Cur. Prefent: The Honourable Thomas Hutchinfon, Efqr., Chief Juilice. Benja: Lynde, John Cuihing, Efqrs., Jufices. Chambers Ruffell, Peter Oliver, WRENTHAM ROPRIETORS Wrentham Proprietors verf Metcalf. (1) METCALF. Rec. I763. T was moved that fome of the Proprietors Fol. 17. Fo. fhould be admitted Witneffes in this Cafe, Proprietors who were not of the Committee who brought this of common and undivided Suit. 2 Lev. 231,* was cited, where Scroggs, Ch. Lands are incompetent ~Uft., Witnefles in a Suit where * - uaere of this Cafe. Theory of Evid. Ios, xo6, and 2 Lilly's Abr. the Corpora- 702. x Str. 575, xo69. Vid. 2 Lev. 236. 2 Sid. og9. x Vern. xI4. tion is a 2 Vern. 317. Vid. Cun. Law Dict'y, Will. Party. (I) This was an aEtion of ejeEtment, originally brought in the Inferior Court againft Jofhua Daniels, who fuggefted that he held the premifes by deed of bargain and fale with warranty from Jonathan Metcalf, whom he prayed might be vouched in to defend the fuit, and who was fubfequently admitted for that purpofe. In the Superior Court the cafe was entitled as above. February Term s Geo. s3 37 uJfi., fays, "that it ought not to be a general Rule 1763. "that Members of Corporations fhall be admitted WETHAM " or denied to be V'itnefi es in A6tions for or againft PROPRIE'rORS "their Corporations: But every Cafe ftands upon MErCALF. "its own particular Circumifances, viz., whether "the Interefi be fo confiderable as by Prefumption "to produce Partiality or not." In this Cafe at Bar it was obje&ted that they were liable to Cofls, and might each Member be taken for the Whole. A Guardian not admitted in Evidence in Favour of his Charge. Ruled, that they be not admitted in this Cafe. Ch. 7ufl. doubted whether in any Cafe, where the Intereft was ever fo fmall, if they were dire& Plaintiffs they fhould be admitted. (2) (2) The general rule feems to have been that only members of public or municipal, religious, and charitable corporations were competent witneffes in fuits where the corporation was a party or intereited. i Greenl. Evid. ~~ 331, 333. The St. of I792, c. 32, provided for the admiffibility of members of any " town, difirid, precint, parifh or other religious incorporate fociety." Counties, fchoo! diftriEs and mutual infurance companies were afterward added to the lift. Rev. Sts. c. 94, ~ 54. St. I85o, c. 34. By the pradice ats of i85I and I852,all incompetency from intereit was removed, except in cafe of parties to filits; and finally, by Sts. i856, c. I88, and i857, c. 305, parties themselves have been admitted. Gen. Sts. c. 13I, ~~ I3, 14. 38 February Term 3 Geo. 3. 1763. DERUMPLE CLARK. Derumple verf. Clark. Rec. I763. THIS A&ion was brought by the Tenant Fol. 19. 1 againft the Landlord for the Recovery of Evidence half the Taxes, upon the Province Law called the of Payment of full Rent by Tax A&. (i) This Cafe was faid to differ from the a Tenant for Carfe of Jackfon v. Foye, (2) try'd before this Court five or fix Years, with- in Auguft Term laft, as in that Cafe Jackfon had out any Claim of Dedufition been Tenant to Foye fo many Years, there had for Taxes, been many Settlements,-whereas here Derumple fuch being alfo the had been Tenant only five or fix Years. The Rent Cuflom of the Town, is had been paid, but there had been no regular fufficient Evi- methodical Settlement. dence of a Contra& to under the Mr. Auchmuty, for Plaintzf, urged, that the Law Province was very exprefs and particular —" Where no ConLaw, which provides that "traCt is, the Landlord ihall reimburfe the Tenant "where no "half the Taxes," fo that the Payment of the whole Contra& is" the Landlord Rent is no Argument of a Contra&t to pay half the fhall reimburfe half the Taxes, for the Tenant by the Law is not to keep Taxes. Ruf- back his Rent, but to have the Taxes reimburfed, fell, J,.dientiente. which is an Argument that the Whole is firit to be paid. I can have no Idea of an implied Contra&t in this Cafe; the Law evidently points out an exprefs one. Mr. Thacher, for Defendant. It has been the uninterrupted Cuftom of this Town for the Tenant to pay the whole Taxes, and though this Law is of very (I) See ante, p. 27, note (I). (2) Ante, p. z6. February Term 3 Geo. s. 39 very antient Date, (3) we find no A&tion on it till 1763. 1752; fo that it always fuppofed that fuch a Con- DERML tradt is made. The Words of the Law are not -- where no exprefs,-no written,-no verbal, —but " where no Contraf is." And I think the continual paying Rent for feveral Years without any Demand of a Dedudion, and feveral Receipts having been given by the Plaintiff to the Defendant in full of all Accounts, are full Evidence that fuch was the Intention and Meaning of the Parties, which is a fufficient Contra&. To have this Point called in Queftion would be big with the greateft Inconveniences. If Landlords who from Year to Year have received their whole Rents, and given Difcharges for them, are to be called to account for many Years' Taxes, it would be productive of an ample Harveft of Suits, of which perhaps our Brotherhood might reap the Gleanings. Mr. Auchmuty. As to the Cuftom of the Town; if there had been no Law, that might have been an Argument of fome Weight; but the Law is exprefs, and lhall any pretended Cuftom controul it? As for the Confequences they muff not be confidered - if it is Law, it is Law, &c. Yuftice (3) The earlieft ftatute provifion that we find on this fubje& is in the Prov. St. of 4 W. & M. in x692. By this aA however, as by the Gen. Sts. of I86o, c. II, ~ 9, the landlord was to pay the whole taxes in the abfence of any particular agreement. The first provifion for a contribution was in the Prov. St. of 6 W. & M. in x694, and is as follows: " The fermer or occupier of any houfes or lands, being affeffed for the fame in his occupation, to be reimbursed the one half of what he ihall fo pay toward the faid affeffment by the landlord or leffor where there is no particular contraa to the contrary, and Ihall be allowed to difcount the fame out of his rent." The laf claufe was omitted in fubfequent aAs. Ante, p. 27, note (I). 40 February Term s Geo. 3. 1763. yuJtice Olhver. As for the Cuftom of the Town, DERUMPLE I can't think it of any Weight; but as the Law CLK. fays "' where no Contra& is," you mufft confine it to an exprefs Contra&. I fee no effential difference between this and the Cafe of Foye 4 7ackfon, and can't but think the Evidence you have is a Prefumption of a Contrad fo ftrong that you muff find for the Defendant. JufJice Ru/ell. I think the Law evidently means an exprefs Agreement. However, I don't think we have here any Evidence of an implied Agreement, or any Agreement at all. yufJice Cu/hing. If there be Anything to fhow the Intention of the Parties, I hold that Evidence of a fufficient Agreement within the Senfe of the Law; and that the Intention of thefe Parties was that the Tenant fhould pay the Whole, may be colle&ted from the Evidence joined to the Cuftom of the Town. yufJice Lynde. I always thought that the Intention of this Law was not to affect the Taxes in fuch Towns as this, but merely where Farms are let to the Halves, where the Benefit of the Eflate being divided,'tis but juft the Charges fhould be divided too. I think the Cuftom of the Town is a great Thing, and that the Parties are to be fuppofed to intend according to the Cuftom. I think the Evidence fufficient to prove a Contra& within the Intendment of the Law. Ch. yufi. You are to go according to Law and Evidence. February Term s Geo. s. 41 Evidence. Where the Law is in any Cafe doubt- 1763. full and the Equity of it plain, you ihould verge DERUMPLE towards Equity. Cuftom ihall not be placed in cV Oppofition to Law, but it may be a Circumflance going to interpret the Intention of the Parties. I fee Nothing to diftinguifh this from the Cafe of Yackfon v. Foye. JYerdis for Defendant. DANIELS Daniels verf. Bullard.,. BULLARD. A DEPOSITION was offered; the Caption RFec.; 763. imported that the Witnefs was immediately going out of the Country, and therefore the oppo- thata&Wit fite Party not notified. Ruled bad. nefs is immediately about to leave the Country will not authorize the taking his Depofition without NoBarnes verf. Greenleaf. tice totheopTHE Queftion in this Cafe was, whether Mr. BARNES Wheelwright fhould be admitted as a Wit- GREENLEAF. nefs. The A&ion was brought againft Greenleaf Rec. I763. (Sheriff) for an infufficient Service of a Writ upon Fol. 23. which the Return ftood thus: " I have attached the An Officer who dif. Defendant, and taken Mr. Wheelwright's Word chargesaDefor his Appearance." (i) Mr. Wheelwright was fendant from Arrelt in offered Confideration of the Promire of a third (I) The return as fet forth on record is as follows: Perfon for "Suffolk fs. Boiton, June 17, 1762. I attached the body of the his Appear6 within ance, can 42 February Term 3 Geo. 3. 1763~ offered to prove that at the Plaintiff's Confent the BARNES Prifoner was difmiffed. He was obje&ted to, beV. caufe'twas faid the Sheriff would recur to him, if GREENLEAF. he loft in this Adtion. But'twas anfwered, there maintain no A&ion on could be no fuch Recourfe, for the Sheriff deviating fuch Promife; from the Path of his Duty muff expea the Confeand fuch Per- fon is there- quence. (2) He was admitted and fworn.* fore a competent Witnefs for the Officer in an Adtion for the infufficient Service. ELWELL Elwell verf. Pierfon. PIERSON. Rec. 1763. (From E/ffx.) (3) Fol. 56. Devife of Devife of Po~THE Queffion in this Cafe was, whether SamLand as fol- uel, Son of the original Devifor, took an Eftate lows: "To my Son S. and Tail, his Heirs for- * Vid. 4 Bac. Ab. 462, 463, top. (4) ever, provided that my faid Son ihall maintain My- within named Thomas Carnes, and Nathaniel Wheelwright Efq. gave felf and his Mother dur- his word for his appearance at Court. ing our Lives BENJA: CUDWORTH, with fufficient Deputy Sheriff." and convenient Maiconven- (2) S. P. Denny v. Lincoln, 5 Mafs. 385. In that cafe the officer tenance." forbore to arreit, upon a promife by a third party to deliver the debtor Afterwards: to him at a day named. Parfons, C. J. " It is to be regretted that " Alfo where- officers having a plain path before them will not purfue it. If they as it is ex- deviate from it, it muff be at their own peril, and they cannot protet preffed that my Son thall themselves againft the damages arifing from a breach of official duty have this my by any collateral itipulation for indemnity." See alfo 4 Mafs. 370. Living to him But taking receipts for property attached, or notes in confideration of and his for- forbearing to attach, is confiftent with the officer's duty. Foiter v. ever, my Will Clark, x9 Pick. 329. And fuch receiptor has been held incompetent iand Mning d through intereft. 23 Pick. 86. hereby ap- (3) The eftate fued for is defcribed as " a neck of land in Glocefter point my Harbour now called Pierfon's Neck." Grandfon R., (4) Bac. Ab. Sheriff, O. February Term s Geo. 3. 43 Tail, and if he did, whether the Plaintiff is fole Heir 1763. in Tail of Samuel, being eldeft Son of eldeft Son ELWELL all along. Po. PIERSON. Son of faid S., The Words of the Will are there: "I give to to be the next "Samuel Elwell the Houfe I now live in," &c. immediate Heir unto this my Living after his Afterwards: "I give all my faid Houfing &c. Father, to "expreffed, to him my faid Son Samuel, and his enjoy the fame to him "Heirs forever, provided that my faid Son ihall and hisHeirs "maintain Myfelf and his Mother during our Lives forever. thatnd " with fufficient and convenient Maintenance." faid R. do die without Heir, it ihall then Afterwards: "Alfo whereas it is above expreffed fall to the next eldeft " that my Son Samuel ihall have this my Living of my Grandfons furviv"above faid to him and his forever, my Will and ing, and fo in " Meaning is, and I do hereby appoint my Grand- like Cafe of Mortality, " fon Robert, Son of faid Samuel, to be the next one from another to the "immediate Heir unto this my Living after his next eldeft "Father, my faid Son Samuel, to enjoy the fame to of myn Grandfons furviv" him and his Heirs forever. And in Cafe that faid ing." Held, " Robert do die without Heir, it ihall then fall to thnat S took "the next eldeft of my Grandfons Surviving, and fo Fee Simple. It Jfems, "in like Cafe of Mortality one from another to the that but for "next eldeft of my Grandfons furviving." the Charge of Maintenance, S. would have Mr. Thacher for the Tail. It is obje&ted that taken an there were but two Witneffies to the Will. At that Eflate Tail. Time the Law required but two. The Statute of Frauds was never fuppofed to extend here, till we made a like Law here. (5) Vid. Old Colony Laws, 158. (5) Prov. St. 4 W. & M. Anc. Chart. 233. 44 February Term 3 Geo. 3. 1763- 158. (6) The Queflion is, whether Samuel took an ELWELL Eflate Tail, by the Words of the Will. Great eV. Condefcenfion is given to Wills, and Words, which in A&ts executed in the Lifetime would not make Eftates Tail, will make them in Wills, becaufe Teftators are fuppofed to be imops confilz; and Lord Holt obferves that there were no fuch Conveyances at Common Law, but by Statute. The Teftator's Intent is to be the Rule of Conftru&ion, if agreeable to Rules of Law. The firPc Devife is an Inheritance; then he explains his Grandfon Robert to be the next immediate Heir of his faid Son Samuel; he does not retra&t, but only dire&s how that Inheritance fhall go. The Intent appears from this alfo —He fays, the next eldeft Brother fhall inherit for want of Heirs; now he could not die without Heirs, while he had any Brothers, whence it appears he excluded Brothers from his Idea of Heirs in this Cafe, and fo could only mean Heirs of the Body. There is a Difference between the Remainder over being given to a Stranger, and to one of Kin; in the firft Cafe it cannot be explanatory of what Heirs are meant; in the laft it is. 9 Co. 128, Sonday's Cafe. Cro. Ja. 415, JAebb 4 Hearing. Id. 448, King vs. Rumball. Id. 695, Chaddock vs. Cowley. 1 Ld. Raym. 569,.Nottingham vs. Yennings. Comyns, 539, Brice vs. Smith. Ld. Talbot, 1, Tyte vs. 1Willis. The only Queftion remaining is, whether this Eftate Tail firft vefted in Samuel the Son, or Robert (6) Col. Laws, ed. of i672. Anc. Chart. 204, ~ 2. February Term s Geo. s. 45 ert the Grandfon; I think in Samuel, firit, becaufe 1763. Samuel had an Inheritance by the firft Words; ELWELL Secondly, becaufe the Teftator appoints Robert his ev next immediate Heir; this is furely ihowing how the Inheritance {hall be limited, and it is as it would be limited by Law, fuppofing it an Eftate Tail. The Inheritance of Samuel fhall by no means be taken away, if the Will can be conftrued otherwife, as in this Cafe the Words do not make an Eftate for Life only, but a Limitation. Mr. Gridley. The Queftion is, whether Samuel took a Fee Simple or Tail; the firft Words of the Will give him a Fee, but afterwards fay Robert ihall be his Heir: We all agree as to the Feewe fay the other Words fhew the Intent. If Samuel had a Fee, he could convey it, and Robert would not be his Heir; in the fecond Place, every Word ihall be operative if poffible; whereas on their Suppofition the laft Words are of no Force. Robert on their Suppofition Ihould take only as the Law gave him, and Robert took as a Purchafer, which he could not do unlefs Samuel took an Eftate for Life: If a Fee, he could not -if he took a Fee, the laft Words go for Nothing. Auchmuty agaizfi the Tail. Their Authorities do not reach this Cafe, the Intent of the Teftator is to be followed, but the Intent muft be clear and muft be agreeable to the Rules of Law. The Fee is at firft plainly given; and where an exprefs Eftate is given, nothing by Implication fhall take it away. 1 Salk. 236, Popham vs. Banfield. Cro. Cha. 368, Spirt vs. Bence. 6 Co. 16, Wild's Cafe. Where an 46 February Term 3 Geo. 3. 1763. an Implication affe&ts an Heir at Law, that ImELWELL plication mufft be very ftrong. 2 Bac. 66, Tit. s. Devife. PIERSON. I'll confider the Force of the Words in the Will, and whether thofe Words operate fo ftrongly as to turn the plain Fee Simple into a Tail. If Robert died and left Iffue, well -but if not, then to the next eldeft Grandfon, which is not the Courfe of Tails; fo that the Teflator's meaning cannot be collefted from thefe Words; and if a Man fhall try to make fuch an Eftate as the Law never made, I take it to be utterly void. I ihall ihew the Words, pointing out the next immediate Heir a meer Nullity. The Grandfon of an younger Son may be an elder Grandfon than thofe of an elder, which is not agreeable to Tail. Ch. 7zdf. Qeure - Whether the fecond Son of an eldeft Son may not be called an elder Grandfon, than an elder Grandfon of a younger Son? Mr. Azlchmuty. This with vulgar Minds would not be a natural Thought. I think if he has any Eftate, it is a Fee Simple. Cro. Jam. 590, Pells vs. Brown. (This Cafe he largely compared with the Cafe at Bar.) The ordering him to maintain his Mother amounts to his ordering him to pay her a Sum in grofs, which is allowed to caufe a Fee Simple. 2 Bacon, 54. (7) 3 Rep. 31, a. 1 Lill. 451. The true Diftinftion is between a Sum to be paid out (7) Bac. Ab. Devife, C. February Term 3 Geo. 3. 47 out of the Rents, and a Sum in grofs, which may 1763. be greater. But fuppofing the Cafe to be doubtful, ELWELL as they are the Plaintiffs, I take it to be incumbent In upon them to make out a clear Title. PIERSON. Mr. Gridley. 2 Bacon, 62. (8) With Regard to the Difherifon of the Heir, that is not in this Cafe to be confidered — if it is the Mind of the Teffator, that is the Rule. By the firit Part Samuel was to have had a Fee Simple, but fo as not to exclude Robert;'tis plain he intended Robert fhould have the Eftate. Samuel muff either have a Fee Simple, Tail or an Eftate for Life: If for Life, how is it to him and his Heirs?.- if in Fee, what has Robert? The laft Claufe confirms my Opinion, it muff be fuppofed that by eldeff Grandfon he intended Grandfon by Samuel; this is the natural Courfe, that if Robert died, it fhould go to the Brothers of Robert, other Children of Samuel. Ch. yuf. Is it not better firft to make it an Eftate Tail in Samuel, that it fhould rather go to thefe, than other Grandfons, than becaufe it is thus divided, that therefore it is an Eftate Tail? Mr. Gridley. Cafes in Equity, 184, Cafe 28, Shaw vs. Weigh. Cro. Cha. 57. As for the Cafe Pells 4 Brown, here is nothing like a Limitation; Upon his Suppofition it tends to fuch a Perpetuity as the Law abhors, it fhould have been "if Samuel die without Ifflue;" here it is " if Robert." With (8) Bac. Ab. Devife, D. 48 February Term 3 Geo. 3. 1763. With Regard to the Maintenance, if there is a LEwELL Doubt, what the Eftate is, it fhall be a Fee Simple, PION. but never was any Maintenance conifrued to make a Fee Simple, when a clear Tail was: Maintenance in fome Tails is good. The Court chore to confult upon the Matter, and fo Judgment was adjourned to Auguff Term, where the Chief 7Jufice delivered the Opinion of the Court, which he faid was unanimous that Samuel by the WVlords would have taken a Tail; but that the Burden and Duty of Maintenance made it a Fee Simple. (9) Ruflel verf. Oakes. RusSEL.RU L (From Middlefex.) OAKES. Rec. I763 T HIS was an Adtion of the Cafe on a Note of Fol. 91._ Hand which was indorfed to the Plaintiff, Payment and appeared to have been paid before the Indorfeby the Maker to the Prom- ment. The Queftion was, whether the Plaintiff ifee of a Note fhould recover in this Adtion or be barred by the on Demand is a good De- Payment. (1) fence againit a fubfequent r. Indorfee for Value without Notice. Hutchinfon, (9) It would feem, however, that the Court muff have confidered the C. Y., difl. intent of the teftator to be doubtful, as otherwife it would be difficult to anfwer Mr. Gridley's pofition that " never was any maintenance conftrued to make a fee-fimple when a clear tail was." 2 Jarman on Wills, 172. (I) It appears by the declaration that the note in fuit bore date, October 19, i759, and was payable on demand to one James Webber or February Term 3 Geo. 3. 49 Mr. Trowbridge for Defendant. Strange, 674. 1763It is always held when Payment is once made, a RUSSEL Promife is of no Force. Lucas, 287. (2) After the OAES. Promifee had once received it he could not recover himfelf; he cannot give a greater Power than he has himfelf. Skinner, 410o. In a Declaration on inland Bills'tis faid "then wholly unpaid." 2 Show. 495. Mr. Gridley. This Cafe muft appear evident on our Side to any Perfon who is at all acquainted with the Nature of Bills of Exchange. To pay him or his Order, is there any Inrtereft to transfer? Is not the Intereft gone? The Indorfer is guilty of a Fraud againft the Indorfee, who has his Adtion for it. There is an entire Difference between this and in Cafe it had not been paid till after the Indorfement, for by this the Property is changed and in the Indorfee. Trade would be rendered very precarious, if fuch negotiable Notes can't be difcharged but by taking up of the Note. Mr. Kent. Cunningham on Bills of Exchange cites Comyns. It was formerly fettled Law that the Confideration fhould not be called in Queftion they are upon the fame Footing as Inland Bills. Ch. Jy/tf. If this A&ion mhould be barred, it feems order, and by him indorfed to the plaintiff. The queftion of law was raifed by a fpecial verdi&, which fhowed that the plaintiff took the note by indorfement on the 4th of Auguft, I76i, after it had been paid, but without knowledge of the payment. (a) -- v. Ormfion, io Mod. 287. 7 50 February Term s Geo. 3. 1763. feems to me that one half of the Trade muft be RUSSEL extremely precarious, for it refts upon fuch Bills, Vn~s. whofe Credit muff be deftroyed. It deitroys the OAKES. Diftintion between Notes negotiable and not. yuft. Rufell. There is no Difference between them till the Indorfement. Judgment was rendered at Cambridge in Auguft Term, 1763, for Defendant.* (3) Ch. Tuff. di/enthente. * Qu. If the Reafon of the Judgment in Strange, ix55, would not have been pertinent in this Cafe. Vid. Salk. 344; Carth. 356; L'd Raym'd, 87. (3) S. P. Baker v. Wheaton, 5 Mafs. 5 2. Hemmenoway v. Stone, 7 Mafs. 58. But see St. I839, C. 12I, ~ I; Gen. Sts. c. 53, ~ xo. The cafe on the next page, argued and decided at Auguft term, I76I, the pecond feems to have been copied into the book here from notes taken at that Argument time. That the notes were Quincy's own appears from the memorandum upon Writs prefixed to the argument of Otis, poft, 55; and at the end of the cafe of Affiftance. in the MS. is a reference to " Law File C," which probably contained his original notes, now lollt. It feems ftrange that this argument fhould not have been mentioned by the hiftorians. Even John Adams, who was admitted to the bar only four days before, (ante, 35,) and to whom we are indebted for a report of the firfi argument upon Writs of Affiftance in February 176I, (post, 469,) does not appear to have left any notice of this one, except in a letter of Ol&ober 4, 1780, to Mr. Calkoen, in which he fays that the quedfion " was folemnly and repeatedly argued before the fupreme court by the moft learned counfel in the Province." 7 John Adams's Works, 267. But Adams's diary contains only one entry between his admiffion and June 5, I762. 2 John Adams's Works, I33, I34. And his autobiography and his letters to William Tudor were written many years afterwards. Fid. poft, 409, 417. Hutchinfon, having received his inflrufions from England fince the firft argument, (poft, 415, note,) probably confidered the fecond argument a mere form. For copies of the papers, and other information about the Writs of Affiftance, fee Appendix I. August Term (1) Georgii Ter. in Sup. Cur. 1761. Paxton's Cafe of the Writ of Affiftance. 7. PAXTON'S ~ HARLES PAXTON, Efq., applied to the CASE. Superiour Court for the Writ of Affiftants, as Reo.,176. by Ad of Parliament to be granted to him. This Court has Power to Upon this, the Court defired the Opinion of the iffue general Bar, whether they had a Right and ought to grant it. Writs of Affiftance to Officers of Mr. Otis (c4 Mr. Thacher fpoke againft. the Cuftoms. MeJfrs. Gridley 4' Auchmuty (2) for granting it. Mr. Thacher firit read the A6ts of 14 Car. 2, ch. 22, and 7 & 8 of Wm. & Mary, upon which the Requeft for this Writ is founded. (3) Though this A6t of Parliament has exifted 60 Years, yet it was never applied for, nor ever granted, till (I) Auguft term I Geo. 3, which was adjourned without day on Thurfday, November x9th, 176I. Rec. 176I, fol. 239. The argument and decision, here reported, were made upon Wednefday, the x8th of November. Bofton Gazette of November 23, 176I. (2) Auchmuty was foon after appointed Advocate General, in the place of Otis, who had refigned to avoid arguing for these Writs. Wafhburn's Jud. Hilt. Mafs. x85, I86. (3) Sts. I3 & I4 Car. 2, c. II, ~ 5; 7 & 8 W. 3, c. 22, ~ 6 i quoted in Gridley's firft argument, poft, 480, 48 I. 52 Augurt Term 1 Geo. 3. 1761. till 1756; (4) which is a great Argument againfE PAXTON'S granting it; not that an A& of Parliament can be CASE. antiquated, but Non-ufer is a great Prefumption that the Law will not bear it; this is the Reafoning of Littleton and Coke. Knight Service, p. 80o, Se&t. 1oS. (5) Moreover, when an A& of Parliament is not exprefs, but even doubtfull, and then has been negle&ted and not executed, in fuch a Cafe the Prefumption is more violent. Ch. yuftice. (6) The Cuftom Houfe Officers have frequently applied to the Governour for this Writ, and have had it granted them by him,(7) and therefore, though he had no Power to grant it, yet that removes the Argument of Non-ufer. Mr. Thacher. If this Court have a Right to grant this Writ, it mufl be either ex debita yuftiti'a or difcretionary. If' ex debita Juftitia, it cannot in any Cafe be refufed; which from the A&t itfelf and its Confequences, he argued, could not be intended. It can't be discretionary; for it can't be in the Power of any Judge at discretion to determine that I ihall have my Houfe broken open or not. As fays Juft. Holt, "There can be no difcretionary Power whether a Man fhall be hanged or no." (8) He moved further that fuch a Writ is granted and muft iffue from the Exchequer Court, and no other (4) Paxton's cafe, Auguft term, 1755; poft, 402-404, & notes. (5) Co. Lit. 8i a, 8 b. S. P. xi Met. 291. (6) Hutchinfon, appointed November x3th, 1760. Po/t, 4Io, 411. (7) S. P. 3 Hutchinfon's Hift. Mafs. 92. Post, 401. (8) drmfirong v. Li/le, (i697) Comb. 410. S. C. J. Kel. 95, Io5; Skin. Auguft Term 1 Geo. S. 53 other can grant it; 4 Inir. 103; and that no other 1761. Officers but fuch as constitute that Court can grant PAXT S it. CASE. Skin. 671; Holt, 63; I2 Mod. I09, 157; Carth. 395; I Salk. 63. The decifion in that cafe was, that a conviction of manflaughter and allowance of benefit of clergy were a bar to an appeal of murder by the heir of the deceafed; and that the defendant was entitled to be allowed his clergy at once, without waiting for the trial of the appeal, on which, if conviced, he might be hanged. S. P. 3 Inst. I30; Smith v. Taylor, (1771) 5 Bur. 2778. Benefit of clergy does not appear to have been allowed in the Colony Benefit of of Maffachufetts. I Hutchinfon's Hiff. Mafs. (3d ed.) 388, note. At clergy in Maflfachua later period, it was allowed in the Province in cafes of manflaughter fettas and burglary., Trial of the BritiJh Soldiers, (ed. 1770) 209. Wafhburn's Jud. Hilf. Mafs. I94. But it was not fettled to what other crimes it extended. Refolution of General Court in February, i768, 14 Mafs. Archives, 507. 2 John Adams's Works, 534. Opinion of Trowbridge on " Benefit of Clergy refpeEting Rape," Keith MS. No. Ii. (Vid. post, 478.) It was abolifhed here by St. 1784, c. 56. The appeal of death was by Lord Holt " efleemed a noble remedy, Appeal of and a badge of the rights and liberties of an Englifhman." Rex v. death in Eng7oler, x Ld. Raym. 557; 12 Mod. 375; Holt, 483. See Barrington land. on Sts. (5th ed.) 27. In the early part of the laft century in England, persons who had been acquitted on indictments for murder, were often tried, convicted and executed on appeals. Kendall on Trial by Battel (3d ed.), 44-47. In I770 its abolition was Suggested in the Houfe of Commons, but not prefled. 2 Cavendifh Debates, 13. 20 Howell's State Trials, 716. An appeal of murder was brought in England as lately as I817, but defeated by the appellant's declining to accept the wager of battel. AJhford v. Thornton, x B. & Ald. 403. Such appeals, as well as all trials by battel, were then abolifhed by St. 59 G. 3, c. 46. The Englifh Sts. of 9 H. 3, c. 34, & 6 Edw. i, c. 9, concerning ap- Appeal of peals of murder, were in force in the Provinces of Pennfylvania and murder in Maryland. Report of Judges, 6 Binn. 599, 604. Kilty on Maryland the other Sts. 141, I43, I58. It is faid that no fuch appeal was ever brought in Colonies. Pennfylvania. Roberts on British Statutes in Pennfylvania, 59, 60. But in Maryland in 1765 a negro was convi&ed and executed upon fuch an appeal. Soaper v. Tom, I Har, & McHen. 227. The St. of 9 H. 3 was expreffly adopted in South Carolina in I712; and Mr. Cooper, the ftate editor of its ftatutes, doubts whether trial by battel and appeal of death were not both frill in force there in I837. 2 Sts. at Large of South Carolina, 401, 403, 7I5. On the debate in the Houfe of Commons in 1774 on the bill " for In Maffachuthe better adminiftration of Ju(tice in Maffachufetts Bay," a claufe fetts Bay. fufpending 54 Auguft Term 1 Geo. 3. 1761. it. 2 Inft. 551. That this Court is not fuch a PAXTON'S one, vid. Prov. Law.(g) This Court has in the CASE. moft folemn Manner difclaimed the Authority of the Exchequer; this they did in the Cafe of McNeal of Ireland & McNeal of Bofton. (1o) This they cannot do in Part; if the Province Law gives them any, it gives them all the Power of the Exchequer Court; nor can they chufe and refufe to a&t at Pleafure. But fuppofing this Court has the Power of the Exchequer, yet there are many Circumitances which render that Court in this Cafe an improper Precedent; for there the Officers are fworn in that Court, and are accountable to it, are obliged there to pafs their Accounts weekly; which is not the Cafe here. In that Court, there Cafes are tried, and there finally; which is another Diverfity. Befides, the Officers of the Cuftoms are their Officers, and under their Check, and that fo much, that fufpending the appeal of murder was vigoroufly affailed by Dunning, Burke, Fox, and others, and withdrawn. 17 Parl. Hift. I291, I292, 1296. And Mr. Kendall thinks, it exifted in the Colonies. Kendall, 248, 249, 272. But Mr. Dane fays, the appeal of felony did not exist here. 7 Dane Ab. 336. And fee Conftitution of Maffachufetts, c. 6, art. 6; Declaration of Rights, arts. I2, I5; U. S. Conftitution, amendment 5. Trial by bat- In England, the last joinder of iffue for trial by battel was on a writ tel. of right in i638; but the judges deferred the combat from time to time for error in the record until I641, when the Houfe of Commons, upon the petition of the tenant, "ordered a bill to be brought in to take away trial by battel." Claxton v. Lilburne, 2 Rufhw. Hift. Coll. 788, 790; 3 lb. 356. Commons & Lords Journals I620-I641, quoted in Kendall, I35, note. 3 B1. Corn. 337 &feq. But no fuch bill was paffed in Englana until 1820, ut sup. This mode of trial is not fuppofed to have been introduced in America, unlefs in South Carolina, ut sup. Poft, I78. 3 Wilfon's Works, I42. 3 Dall. 350. 2 Sumner, 68. (9) Prov. St. iI W. 3, Anc. Chart. 330, 33I. (Io) McNeal v. Brideoak, post, 47o, note. Auguit Term 1 Geo. s. 55 that-for Mifbehaviour they may punifh with corpo- 1761. ral Punifhment. 3 & 4 Car. 2, ~ 8. (11) 7 & 8 PAXTON'S W. & M. does not give the Authority. (12) CASE. (Mr. Otis was of the fame Side, but I was abfent, while he was speaking, moft of the Time, and so have but few Notes.) Mr. Otis. 12 Car. 2, 19. (13) 13 & 14 Car. 2, p. 56. Let a Warrant come from whence it will improperly, it is to be refufed, and the higher the Power granting it, the more dangerous. The Exchequer itfelf was thought a Hardfhip in the firif Conftitution. Vid. Rapin, Vol. lft, p. 178, 386, 403, 404. (14) Vol. 2, 285, (15) 375. (16) It (11) St. 13 & 14 Car. 2, c. II, ~ 8. (I2) St. 7 & 8 W. 3, C. 22, ~ 6. (13) St. i2 Car. 2, C. I9, poft, 395, note. (14) Rapin's Hifl. of Eng. (2d ed.) London, 1732. The pages referred to in the firft volume relate to the Court of Exchequer and pro. ceedings therein. (IS) Where Rapin fays, that in i629 the privy council of Charles I Breaking of gave orders, " impowering the officers of the cuftoms to enter into any houfes, &c., fhip, veffel, or houfe, and to fearch in any trunk or cheft, and break any by officers of bulk whatfoever, in default of the payment of cuftoms. But befides that cffomsd in this had never been pradtifed before, another inconvenience arofe. Thefe Engla629nd in officers, under colour of Searching, ufed many oppreffions and rogueries, which caufed the people ftill the more to exclaim." See alfo I Rufli. worth's Hill. Coll. 665, 668, 669; 2 lb. 8, 9. Before writs of affiftance were iffued in Maffachufetts, the officers of In Maffachuthe customs, " merely by the authority derived from their commifflions, fetts before had forcibly entered warehoufes, and even dwelling-houfes, upon infor- I755. mation that contraband goods were concealed in them." But "the people grew uneafy under the exercife of this affulned authority," and refifted or fued the officers. 3 Hutchinfon's Hiff. Mafs. 92. (i6) The articles of impeachment againit the Earl of Strafford in Impeachment x641, beginning with the ninth article, which charged him with iffuing of Strafford. general warrants of arreft. S. C. & S. P. in Rufhw. Hift. Coll. 65, 236-240; 3 Howell's State Trial 1391, 1404, 1427. 56 Auguft Term 1 Geo. a. 1761. It is worthy Confideration whether this Writ was PAXTON'S conftitutional even in England; (17) and I think it CASE. plainly appears it was not; much lefs here, fince it was not there invented till after our Conftitution and Settlement. (18) Such a Writ is generally illegal. Hawkins, B. 2, ch. 1, Of Crim. Jur. (19) Viner, Tit. Commiffion, A. (20) 1 Inft. 464. (21) 29 M. (22) Mr. Auchmuty. Bacon. (23) 4 Inft.. loo. From the Words of the Law, this Court may have the Power of the Exchequer. Now the Exchequer always had that Power; the Court cannot regard Confequences, but muff follow Law. As for the Argument of Non-ufer, that ends whenever the Law is once executed; and this Law has been executed in this Country, and this Writ granted, not only by the Governor, but alfo from this Court in Ch. Juftice Sewall's Time. (24) Mr. Gridley. This is properly a Writ of Affiftants, (17) An indication of the pofition, more diftinftly fiated in Otis's firft argument in February, 176I: " An a&t of Parliament againft the Conifitution is void." Vid. poft, 474, & Appendix I, J. (I8) QU. Whether Otis here intended to deny that Af&s of Parliament bound the Province. See Appendix I, J. (I9) 2 Hawk. c. I, ~~ 7, 8. (20) 1" If commiffion iffues to take J. S. and his goods, without indiament, or fuit of the party, or other procefs, this is not good; for it is againft the law." (2i) Probably I Inft. 272 b, note to Lit. ~ 464: "The fureft conftruction of a ftatute is by the rule and reafon of the common law." (22) Probably c. 29 of Magna Charta: " Nullus liber homo capiatur,,vel imprifonetur," &c. 2 Inft. 45 & feq. See Appendix I, E. (23) Bac. Ab. Court of Exchequer. (24) I755-1759,poft, 403-406. Auguft Term i Geo. 3. 57 ants, not Affiftance; not to give the Officers a 1761. greater Power, but as a Check upon them. For PAXTON'S by this they cannot enter into any Houfe, without CASE. the Prefence of the Sheriff or civil Officer, who will be always fuppofed to have an Eye over and be a Check upon them. Quoting Hiftory is not fpeaking like a Lawyer. If it is Law in England, it is Law here; it is extended to this Country by A& of Parliament. 7 & 8 Wm. & M. ch. 18. (25) By A& of Parliament they are entitled to like Affiftants; (26) now how can they have like Affiftants, (26) if the Court cannot grant them it; and how can the Court grant them like Affiftance, if they cannot grant this Writ. Pity it would be, they fhould have like Right, and not like Remedy; the Law abhors Right without Remedy. But the General Court has given this Court Authority to grant it, and fo has every other Plantation Court given their Superiour Court. (27) The yuflZces were unanimoufly of Opinion that this Writ might be granted, and fome Time after, out of Term, it was granted. (28) (25) St. 7 & 8 W. 3, c. 22, ~ 6. (26) Altered in the MS. from " Affifance " to "Affiftants." The words of St. 7 & 8 W. 3, c. 22, ~ 6, are " like affiftance." (27) But it is faid that in other colonies the writs were refufed. 7 John Adams's Works, 267. 4 Bancroft's Hist. U. S. 43I, note. (28) Judgment was given at the conclufion of the argument on the x8th of November, 176I. Boifon Gazette of November 23, 176i. And it appears by the court files that the writ was iffued on the 2d of December, 1761. See App. I, C. For a report of another cafe of public intereft, decided foon after, to which Paxton was a party, fee Province of Maffachufetts Bay v. Paxton, App. II. 8 February Term III Geo. 3. 1763RUDDOCK V GORDON. Ruddock verf. Gordon. Rec. 1763. Fol. 22. UDDOCK was a Collector of Taxes in the A Collec- Town of Bofton, and brought his A&ion, tor of Taxes which was Trefpafs upon the Cafe, for the Defendtainnot main- ant's Tax, upon a general Indebitatus A4umpfit. tion to recover them where the Remedy There were three Exceptions to the Writ, and given by Stat- Pleas in Abatement. Firft, to the Loofenefs of ute is by Diftrefs. the Account, which was only in general for Tax The Want for the Year 1761; and'twas faid that the Account of Power to maintain fuch was Part of the Declaration, and that the Action A&dion is not Matter of would not be a Bar to another which might be Abatement, brought hereafter for each Tax in particular. Secondly, that the Colle&tor has no Right or Authority to bring fuch A&ions, the Law having pointed out another Way, viz., by Diftrefs. Thirdly, that if any Aftion lay at all, it fhould be Debt, and not Cafe. (1) It (I) The Rev. Sts. c. 8, ~ Ix, provide that in certain cafes the col. le&or " may maintain an adtion of debt or affumpfit." And by the St. of I859, C. I71, the right of adtion is extended to all cafes of a negled to pay for the fpace of one year after the tax has been committed to the colle&or. Gen. Sts. c. i2, ~ i9. February Term 3 Geo. s. 59 It was anfwered to the firft, that in the Town of 1763. Bofton all the Taxes were made up together, and RUDDOCK that Tax was a Noun colle&tive, including all, and eG. would be a Bar; that as for the Colle&tor's Right of bringing this A&tion, that ought to be confidered upon the Merits and not in Abatement; and as for its being Debt, it is merely a Matter zn Pais. The Court ruled unanimoufly, that the Obje&ion to the Colledtor's Power is not Matter of Abatement, but to be try'd upon the Merits. (2) But the Opinion of the Court being afked by both Parties upon that Point, the Court were of Opinion that they had no fuch Power, and that this Aftion can't be fupported. (3) Gardiner verf. Purrington. GARDINER PURRINGTON. T HIS is an Aftion of Trover brought to the Rec. 1763. Inferiour Court in Szffolk for a Quantity of Fol. 22. Timber cut in the County of CZmberland. In Trover The for Trees, the Plaintiffs' Title to Land (2) The general principle has Sometimes been flated to be, that a in another perpetual difability in the plaintiff is to be pleaded in bar, but if only County, on temporary, then in abatement. 5 Dane Ab. 693. But this rule has which theyan many exceptions; and it feems to be now fettled that a perpetual dif- not be given ability, which forever deftroys the plaintiff's right of aftion, is pleadable in Evidence either in abatement or bar, (Langdon v. Potter, Ix Mafs. 313,) the rule.where the that a plea in abatement muff give a better writ having fo many excep- Avion might tions that it can hardly be called a general rule of law. 6 Pick. 369. brought in (3) S. P. Crapo v. Stetfon, 8 Met. 393. " A colleEtor of taxes can- that County. not maintain an aCtion to recover them in any cafe befides thofe in which an adtion is given to him by Rev. Sts. c. 8, ~ ri." See alfo 6 Mafs. 44. 60 February Term 3 Geo. s. 1763. The Queftion was, whether the Title of Land can GARDINER be given in Evidence in Trover in another County n. than where the Land lies. PURRINGTON. 1 Bacon, 35; 1 Salk. 29o, Brown vs. Hedges; Mod. Cafes, 322, WYalrond vs. Van Mofes, (i) were cited in Favour of the ACion; and it was faid by the Council on this Side, that the giving Title under this A6tion did not bar or affe6t an A&ion of Ejefdment brought in the County where the Land lies. Gridley. There is no fpecial Pleading in Trover, except a Releafe, which admits the Converfion. The Title is often given in Trefpafs where the Poffeflion is not clear,'tis what the Law calls incidental; yet'tis neceffary in Trefpafs; juft fo in Trover. The Man cuts down the Timber —I may bring Trefpafs; fo I may Trover. The Timber is mine after it is cut down; the Tort never fhall give him Property. It is mine in the Timber as it is mine in the Tree, and I may bring my Aftion: Now how can I prove my Property, unlefs I can give my Title in Evidence? When the Poffefflion feems mutual, it can never be determined, and though my own, (the Thing may be,) if I may not be admitted, I may never recover my own. In the Admiralty, many Things that are not naturally within its Jurifdition may be tried there. Difference between an Inconvenience and a Mifchiefwhenever the Law has once confidered of this, it vaniihes; (I) Anon., cited in Walrond v. Van Mofes, 8 Mod. 322. February Term 3 Geo. 3. 61 vanifhes; in determining what is an Inconvenience, 1763the Law is fettled. GARDINER.ufl. Rufell. Whether this Cafe is not different from the Cafe of Mod. Cafes, (2) where it was admitted for the Inconvenience, and is it not the fame in Effect as if the Title was determined? Ch. YJfl. Whether it will not operate againft another Rule of Law about Titles of Land coming in Queftion in another County? Auchmuty. The Title is not determined. Ch. Yufl. As my Brother Ruffell obferves, is it not the fame Thing? It is not whether Trover is a tranfitory A&tion, (3) but whether that which is of the Nature of a real one {hall be given in Evidence. Mr. Gridley cites Styles, 331. /Mr. (2) The cafe cited in Walrond v. Van Mofes, ub. fup., is as follows: "Nota. At the trial of this caufe a cafe was cited that trover lay in England for timber taken away and converted in Ireland; and this was by the opinion of the late Chief Juflice Holt, though it was objeaed that it might bring the title of lands in Ireland in queftion, which could not be tried here; but he anfwered that as trover was a tranfitory aftion it might be brought here for a converfion in Ireland; nor ihall any incident queftion which may arife on the fame bar the plaintiff of fuch adtion; for if it ihould, then a perfon being in England can have no remedy here when the defendant is guilty of a trover in Ireland, and comes from thence into this kingdom." (3) Trover for cutting down trees is a tranfitory action. Steph. Nifi Prius, 2695. Brozwn v. Hedges, ub.fitp. So alfo an adion of trefpafs de bonis afportatis for burning down a fmall houfe ere&ed for a temporary purpofe, and without a cellar. I5 Pick. I56. 62 February Term s Geo. s. 1763. Mr. Kent. 1 Bacon, 32. Mod. Cafes,. A GARDINER perfonal Adtion may grow into a real one as here. eV. 1 Lilly, 20. PURRINGTON. The Court were of Opinion that the Cafes cited in Favour of this Evidence refpe&ted only Cafes of Neceflity, and where they could not be tried in the fame County, which not being the Cafe here, they determined that in this Cafe it could not be admitted. (4) ROrGERS Rogers verf. Kenwrick. "v. KENWRICK. Rec. I763. (From BarnfJable.) Fol. 46. It is noOb- T HIS Adion was Debt upon an Arbitration jedtion toan Bond. No Award pleaded. Award was Award that it fettles the read as follows: " We do determine and fettle the Boundary Line between northweft Corner Bound as fettled by us is an Heap adjacent of Stones," &c., "which appears to be the reputed the Parties known N. W. Bound for many Years, and nothing without ordering Re- appears leafes. Hutchinfon, c. 7., & Oliever, J., dif. (4) Adtions, perfonal in form, which involve or bring in iffue the title to land, have been held to become thereby real, within the meaning of the ftatutes concerning colts and the jurifdiEtion of juftices of the peace. 4 Pick. I69 Io Pick. 473. But the point here decided appears to be, not that the aftion becomes local, but that the title to real eftate in another county ihall not incidentally be given in evidence to fupport a tranfitory a&ion which might have been brought in that county. This feems a difficult pofition to fupport, as the title to the land is only offered as a means of proving a right to poiffeffion of the trees when converted, on which latter point alone is the judgment conclusive. February Term s Geo. s. 63 appears but was always fo," &c., "and that the faid 1763. Kenwrick pay," &c. (1) Now'twas anfwered by ROGERS cV. KENW RICK. Mr. Paine. That the Arbitrators had taken upon them to determine a Title of Freehold, and therefore the Arbitration void and no Award. Where the Right of Freehold is in Debate, the Property cannot be transferred by an Award; the Arbitrators only are in Stead of the Parties, and can do no more than can be done by them. Now the Parties themfelves cannot pafs corporeal Inheritances without folemn Livery. 1 Roll. Abr. 242. 14 H. 4, 19, 24. 9 H. 6, 6. 3 H. 4, 6. 11 H. 4, 12. Keilw. 99. 1 Leon. 228. 1 Roll. Abr. 244. 1 Bacon, 132. But if Condition of the Obligation is to ftand to Award of Arbitrators, who award the Land to one, and that the other ihall releafe, who does not, the Penalty of the Obligation is forfeited, but if no A& to be done by the Party, as releafing, is awarded, it is not forfeited though the other do not convey to him a good Title. (2) Mr. Otis, contra. I grant the Award to be void if (I) The replication further alleged that the defendant had not kept up to the tenor of the award, but had broken over the line by cutting wood on the land of the plaintiffs. And among the papers on file appeared the depofition of Jonathan Kenwrick, fealed up and dire&ted, " For the Clerk of ye Superiour Court of Judicature" &c. This being opened by the prefent Clerk of the Supreme Judicial Court, it appeared that the deponent teftified to feeing the defendant " cutting wood about fix rods to ye weftward of ye range that was fettled by ye arbitrators." (2) Among the papers on file appears one which would feem to have been part of Mr. Paine's brief, fince it contains the above argument and lift of authorities almoft'verbatim; the whole being taken from Bac. Ab. Arbitrament, A. 64 February Term s Geo. 3. 1763. if the Arbitrators have determined the Freehold; ROGERS but here they have not, they have only determined x. the Line; the real Boundary is but a mathematical KENWRICK. Line without Breadth or Thicknefs, the fettling that does not affe6t the Freehold. 1 Bacon, Tit. Arbitra. I think then a Bond conditioned to abide by fuch Award is good, and the Award good, and if not complied with, the Obligation ihould be forfeited. Paine. When they fettle the Line, they fay to whom the Land on each Side belongs. They have awarded Nothing to be done; they fhould have ordered Releafes. yudgment for the Plaintif: (3) Ru/Jell, Cujhing, Lynde, againfl Oliver; Ch. YufJice. Ch. YufJ. very warmly againit the Determination.* * Quere, if this Cafe is not agreeable to Law? Vid. Vol. I, (4) p. i8, and the Authorities there cited. (3) S. P. yones v. Bofton Mill Corp. 6 Pick. I48. Goodridge v. Duftin, 5 Met. 363. In this cafe the previous decifion in YWhitney v. Holmes, I5 Mafs. x52, was partially overruled, and the rule ftated by Mr. Juftice Hubbard to be, that an award which fettles a boundary, " although it will not have the direot effedt of conveying lands, will yet conclude the parties from difputing the title or boundary which is dillindtly fettied by the award, and that it fhall operate by way of eftoppel." See alfo Searle v. Abbe, 13 Gray, 409. (4) This volume is mifling. Many other references to miffing volumes are omitted. See Preface. February Term s Geo. 3. 65 1763GRIDLEY Gridley verf. Balfion & al. B. BALSTON and others were Executors of Palmer Rec. 1763. of London, who was Agent for the Plaintiff Fol. I5. in his Lifetime. A Ship was configned to Palmer The Eftate of a Teftator by the Plaintiff, but Palmer died before her Arrival is not liable or Knowledge of it. The Executors undertook the for the Negligence of Bufinefs and tranfated it, and are now fued as Exo Executors in ecutors to Mr. Palmer for Breach of Truft. (1) arying out a Confignment made to The Queftion was, as Confignment was made in the Teltator Mr. Palmer's Life, and the Executors prosecuted it, tinhs Lfewhether they fhould anfwer as Executors, and Palmer's Eftate be liable in their Hands. 2 Bacon, 144. (2) It was faid, if the Breach of Truft was in Mr. Palmer -being a Tort, it dies with him; if not, he can't be chargeable. On the other Hand that it was but a Continuance of the fame Affair, and they a&ted in his Stead. Viner, Tit. Executor, P. 4, Plea 39, 43. 1 Lill. 778, Let. H. Dyer, 324. Thre (I) The declaration alleged that the teftator, being faAor of the plaintiffs, procured infurance on the freight of the plaintiff's galley from Jamaica to London; that when fhe arrived the teitator died; and that the executors undertook to fettle and manage the faid truit, but managed it ill, and " perfun&torily aated with great negligence " in fettling a leakage of fugars. (2) Bac. Ab. Executor, P. 2. " The taking up of an executorfhip doth not embark executor in the perfonal trufts of the deceafed." 9 66 February Term s Geo. s. 1763. The Court unanimous that thefe Authorities are GRIDLEY not in Point, and the A&ion will not lie. WV. BALSTON. BROWN Brown verf. Culnon. CULNON. Rec. 1763. (From Middlefex.) Fol. io. A Town U PON a fpecial Verdi&, which was: "The of an In- ver Jury find that the Overfeers of the Poor in dividual "the Abfence of the Defendant and without his Money advanced by the "Requeft advanced for the neceffary Support of the thverfeers of Defendant's Wife and Children a certain Sum, and the Poor for the neceffary if by Law the Plaintiff as Treafurer of the Town Support of his Wife and "ought to recover the fame back from the DefendChildren. "ant, they find for the Plaintiff - otherwife, for the " Defendant." Judgment that the Defendant is liable. (1) (I) S. P. Hanoiver v. 7urner, 14 Mafs. 227. Nerw Bedford v. Chace, $ Gray, 28. But the town cannot recover for fupplies fuitable to the wife's condition in life, beyond her neceffary fupport as a pauper. Mon. Son v. Williams, 6 Gray, 4I6. February Term 3 Geo. s. 67 1763. DUNTEN Dunten verf. Richards. RCR RICHARDS. (From Cambridge.) Rec. 1763. LAINTIFF was an Apprentice bound by his A Guardian who has Guardian to the Defendant, who covenanted executed his among other Things to pay the Plaintiff 80o (1) at dWeatures I the Expiration of the Time of his Service. This Apprenticefhip has no Adtion was Covenant broken. Oyer of the Inden- Power to reture, upon which Defendant pleads that Plaintiff leafetheMafter from his was not capable of ferving him as he covenanted, Covenant of and that in Confideration thereof the Guardian had Payment to the Ward, in releafed the Payment of the @8o. The Queftion Settlement of a Claim was, whether the Guardian had Authority to make againft himfuch Releafe. fel. for De. ceit, grounded It on the Ward's alledged In(x) The declaration alleged that the plaintiff bound himfelf with the performing content of the guardian, and that the defendant covenanted to difmifs his Covenants him at the end of the term " with two fuits of apparell, one for the Sab- of Service. bath and one for every day, and to give him eighty pounds in bills of public credit of the old tenor, or the value thereof in fuch money as ihall then be current," which value was alleged to have been ~xo I 3S. 4d. The plea fet forth that the defendant was deceived and impofed upon by the guardian in binding the minor, whom he found deficient in underftanding, and not capable of learning or ferving him, wherefore he infifted that the apprentice fhould be taken back, and, after much difpute and controverfy, it was finally agreed that the mailer fhould releafe all demands on account of the imposition, and that the guardian fhould releafe the ~8o as aforesaid, which was accordingly done. To this plea there was a " replication in writing, as on file, concluding to the country," and a rejoinder, after which the cafe was fent to a jury, who found for the plaintiff " three pounds money damage and coilts." The cafe was continued for argument on the fpecial plea, and judgment was finally entered for the full amount of ~xo I3s. 4d. It would feem that this argument muft have been on a motion for judgment non obftante'veredicto, but as all the Middlefex files of court for I763 are mifling, no information can be obtained except from the record. 68 February Term 3 Geo. 3. 1763. It was faid by the Plaintiff that Guardians have DUNTEN no Right to releafe or give Difcharge but for Sums a. received. Moore, 852, White vs. Hall. RICHARDS. On the other Hand, the Guardian was a Party by their own fhewing, and releafed no other Contra&t than he made himfelf. Court were unanimoufly of Opinion that the Guardian had no Right to Releafe. (2) (2) From the pleadings in this cafe it would feem that there was no attempt to affeat the guardian with any liability on the covenants of the indenture, but that the mafter's claim was on the ground of deception and impofition in inducing him to enter into it. See Blunt v. Melcher, 2 Mafs. 228. In that cafe it was held, that where a ward binds himfelf with the affent of his guardian, the words defcribing his duties are not the covenants of the guardian, though he figns and feals the indenture. But in an indenture between father, fon, and mafler, under 5 Eliz. c. 4, the father is anfwerable in covenant for what is to be performed by the fon. Com. Dig. Covenant, A 2. Doug. SI8. 8 Mod. 190. 3 Dane Ab. 588. Whether a father or guardian liable on a broken covenant for fervice would have any power to releafe the malter from a covenant beneficial to the minor, is not here decided. It is a general rule that contrads beneficial to the ward cannot be avoided by the guardian. See 13 Mafs. 240. Auguft Term III Georgii Ter. in Sup. Cur. Prefent: The Honourable Thomas Hutchinfon, Efqr., Chief Jufiice. Benja: Lynde, ohn Cufhing, Efqrs., Jufices Chambers Ruflell, Juices Peter Oliver, 1763Baker verf. Mattocks. (1) BAKER'U. MATTOCKS. PT g-HE Queftion in this Cafe was, whether Eftates Rec. 1763..1. in Tail are partable in this Province, by the Fol. xs 8. Province Law. The Prov. Mr. St.of4W. & M. by which Lands (i) Formedon in the defcender. The declaration alleged a gift in tail defcend to all to Samuel and Confiance Mattocks, and a defcent according to the the Children, form of the gift to Samuel, the fon of the donees, and to the faid Sam- empowers the uel's eldeft fon, who died leaving the plaintiff and another daughter, Anceftor who died leaving a fon, who died without iffue, " after whofe death the to convey or whole right to the demanded premifes came to the plaintiff according devife them to the form of the gift." The fpecial verdia found that Samuel, the at his Pleafgrandfather of the plaintiff, made a deed of the premifes to the defend- not extend to ant, one of his younger fons, and that there were many other defcend- Eftates Tail, ants but leaves 70 Augurt Term $ Geo. 3. 1763. Mr. Fitch in Favour of the Partability. The Defign BAKER of the Province Law (2) was to alter the Common C. Law Defcent. All Eftates Tail at Common Law MATTOCKS. were Fee Simple conditional. Co. Lit. 20 a.'Tis them as at the Statute of Weftminfter that forms Eflates Tail. the Common Law. Cu/b- This Statute does not alter the Courfe of the Comingi Y. & mon Law Defcents, it only limits them. Co. Lit. Hutcbinfon, C. J., di. 19 a. Co. Lit. 1 lo b, This is the Cafe of Gavelkind Lands. Vin. Tit. Gavelkind, B. yuJfiice Rujell. The Common Law never took Place with Regard to Gavelkind Lands, but the Common Law takes Place here unlefs in Cafe of particular Eftates. Mr. Gridley. The Tail is only cut out of Fee Simple, ants of the original donees betides the parties to this cafe; "and if it fhall appear to the Court upon the whole that the faid Samuel and Conftance, the donees, took an eftate in tail, and that the faid efiate tail is not made partible by the law of this Province, then the jury find for the appellant poffeffion of the premifes fued for and cofts; otherwife they find for the appellee cofls." (2) Prov. St. 4 W. & M. This was the law by which the right of primogeniture was firft abolifhed in the Province, for the reafons fet forth in the preamble as follows: " Whereas eftates in there plantations do confift chiefly of lands which have been fubdued and brought to improvement by the induftry and labour of the proprietors, with the affiftance of their children, the younger children.generally having been longeft and moit Serviceable unto their parents in that behalf, who have not perfonal eftate to give out unto them in portions, or otherwise to recompenfe their labour. " Se&t. i. Be it therefore enaated," &c., " that every perfon lawfully feifed of any lands, tenements, or hereditaments within this province, in his own proper right in fee fimple, fhall have power to give, difpofe, and devife as well by his laft will and teftament in writing as otherwife by any a& executed in his life, all fuch lands, tenements, and hereditaments to or among his children or others as he ihall think fit at his pleafure, and if no fuch difpofition, gift, or devife be made," then prefcribing the rules of defcent to all the children. Anc. Chart. 230. Augurt Term s Geo. 3. 7' Simple, it is only excluding others to whom it 1763. would otherwife defcend. BAKER'V. Mr. Thacher. But for the Province Law, neither Fee Simple or Tail would be partable. The Queftion then is, whether this Law is extended to Eftates Tail; by this Law, every Perfon ihall have Right of Difpofition, and if no fuch be made, then follow the Rules of Defcent.'Tis certain the Legiflature had Fee Simple only in Contemplation; both would have gone according to the Common Law of England, but our Fee Simple is by this Adt taken out of that Courfe, while the Fee Tail is not. The Statute of Weftminfter left Gavelkind as it found it. Lilly, 648.'Tis otherwife with Regard to our Province Law, which Ihall alter no further than its Defign to alter. Mr. Otis. The Manner of Succeffion, if traced to its Original, is merely arbitrary; the Law of Nature is a Stranger to it; by that, no Man has a Right to more than his Life. States have an undoubted Right to fettle it as they pleafe: I fay this in Anfwer to the Argument of the Natural Right of Defcent to all the Children alike. When once any State has fettled the Courfe of Defcents among them,'tis of great Importance that the Principles Should be kept to. The Method of Defcent in England to the eldeft Son is 700 Years —nay, as old as the Common Law itfelf. I conclude that before the Conqueff the Right of Primogeniture did not take Place; fomewhere between William 1 and Henry 1 it arofe, but that does not affe6t the Cafe; it is now, and long has been fo fettled. Now as the Province 72 Augurt Term 3 Geo. 3. 1763. Province Law has altered this Rule of Defcent with BAKER Regard to the Fee, the Queftion is, whether of ConTC fequence it has alter'd the Courfe of Tails. No Statute can alter the Courfe of the Law further than the exprefs Words of the Statute. Viner, Tit. Tail. It has been doubted whether any Alteration at all by our Province Law is good; it has been determin'd to be good at Home in the Cafe of Fee Simple, and for the Reafon given in our Law, which does not hold with Regard to Tails. Mr. Gridley. The Queftion is, whether as Fee Simple is partable by Cuftom or by Law of the Land, Tail is not alfo partable; that is the Cafe in the Cuftom of Gavelkind. Fee Simple contains in it Fee Tail, which is a Part of it; as it was in the Fee Simple, fo muff be the Courfe of Defcent in the Fee Tail. Heirs in Fee Simple are Heirs in Fee Tail; only certain Heirs are excluded, cut out, and'tis an univerfal Interpretation of thefe limited Efates, that they ihould follow the Rule of Fee Simple. Now ihall we take the Courfe of our Effates Tail from our own Fee Simple, out of which they are created, and interpret the Rule of their Defcent by it, or to interpret our Tails ihall we have Recourfe to the Fee Simple of England to judge of our Tail? 7uJice Oliver. Till the Statute De Donis, Tails were Fee Simple Conditional; by that, Eftates Tail were created. We brought over both the Common Law and Statute with us. (3) This Law of ours relates (3) S. P. i Mafs. 6o, 6x. 2 Mafs. 534. 8 Pick. 3I6. 13 Met. 68. Augurt Term s Geo. s. 73 relates particularly to Fee Simple, and I think does 1763. not affe& Eftates Tail, but leaves them as in Eng- BAKER land. I am againfi the Partability. MATK. MATTOCKS. ufZice Ru/fell. The very Intent of Tails was to fecure Eftates in Familys, and keep them together. The Intent ought to be obferved, but would be deftroyed by fuch a Conffruftion of the Law. I am therefore againft the Partability. Juftice Cujhing. This Point is of great Confequence to the Province, and it would be attended with great Difficulty at this Day to determine, that Eftates Tail were partable, the general Tenor having been otherwife, yet if the Law is plain, as I hold it is, I don't fee how it can be help'd. If there was no other than Fee Simple intended by the Prov. Law; yet as it was there fettled, who were Heirs, that fettled Eftates of Inheritance, all being made out of Fee Simple, and being a Limitation, not an Alteration. This is the Manner of Conftru&tion of the Law at Home: Where Fee Simple is partable, fo are Efitates Tail; and where Fee Simple defcends to the eldeft Son, fo does Tail. uJflice Lynde. Had there been no particular Law of our Province, I fhould have thought Fee Simple and Tail would have gone alike, but now I think by our Law, Fee Tails are exempted and left at Common Law. Fee Eftates only are directed to defcend to all the Children, and with Reafon. It feems dire&ly againft the Reafon and Intent of Eftates Tail that they fhould be partable, and that they IO 74 Auguft Term $ Geo. 3. 1763- they are not made partable by this Law, is my BAKER Opinion.'V. MATTOCKS. Ch. YufJice. It feems evident to me that it is the Spirit of the Englifh Law, that all Inheritances fhould follow the Method of Fee Simple: If it was now a thing intirely upon the Law I ihould not have the leaft Difficulty of thinking Fee Tail, as well as Fee Simple, was partable; but it has been fo long thought otherwife here, and this has been the uninterrupted contemporaneous Expofition of the Law, and many Judgments of Court founded on it, that it creates a great Difficulty, and I am glad that the Point is determined without me, for how fuch a Cuftom can prevail againft plain Law, I doubt. (4) SCOLLAY VA. Scollay verf. Dunn. DUNN. Rec. 1763. D UNN brought a Libel in the Admiralty againif Fol. o107. Scollay, for that he was a Mate on board a An Hof- Veffell of Scollay's, which was taken, and ranfomed tage fent by the Mafter by the Mafter, and Dunn went as an Hoftage. He for the Ranfom of a Ship was taken by the not maintain not maintain (4) Judge Trowbridge, in an opinion given upon the will of Shute Admiralty Shrimpton Yeomans, who died in I769, (for an opportunity of examinProcefs in ing which we are indebted to Edmund Trowbridge Dana, Efq.,) took Perfonam the fame view of the law as the Chief Juftice and Juftice Cufhing in againft the this cafe. But the law in this State has fince been fettled in accordance Owners for with the decifion of the majority of the Court. Corbin v. Healy, 20 refufing to pay the Money Pick. 5I6. Wight v. Thayer, I Gray, 284, 286. It was not until after for his Libera- the Revolution that the provifions for barring entails by common deed tion. Oliver, of warranty were enacted. St. 1791, c. 60. And even at the prefent a', ddfen- day this cannot be done by will. Gen. Sts. c. 92, ~ r. 6 Gray, 24. tiente. Augurt Term s Geo. 3. 75 was long Prifoner, and at laft releafed by the Money 1763. raifed by fome of his Friends, and now returned to SCOLLAY Bofton. Libels againit Scollay and others, Owners DUN. of the Veifell. A Prohibition was granted, and the No Appeal prefent Queftion was, whether the Prohibition ftand lies to the or a Confultation ordered; The Point was, whether King in' Council from the Procefs in the Admiralty againft the Owners' a Decifion of this Court Perfons was good. (1) granting a M/r. Prohibition to the Admiralty in a Caufe (I) The writ of prohibition is addreffed " to Chambers Ruffell Efq., wherein the Judge of our Court of Vice-Admiralty, Charles Paxton Efq., Marfhal, Matter in Andrew Belcher Efq., Regifter, and all the officers of faid Court." The Controverfy is lefs than libel is alleged to have fet forth as follows: "That the libellant was mate ~300. of the brigantine Peggy belonging to John Scollay and Thomas Fletcher, and Ifaac Freeman was mailer of her, and that the was taken on the high feas as prize by a private French {hip of war called the Entreprenante, belonging to Monfieur Boutellier at Nantes, and that the faid Ifaac ranfomed her and her cargo for 5000 livres, to be paid in fix months, and that the faid John, at the faid lfaac's requeft and dire&ion, became hoftage for fecuring the payment, and was by Peter Thibaut, the French captain of faid thip, carried to Nantes," &c., " and that the libellant was finally obliged to pay the fum of ~2z3 Ios. of his own money to obtain his liberty." The petition further alleged that " the brigantine was not then here, and that the faid Court of Admiralty could not award any procefs againft her, and that the libellant did not allege that ihe ever came to the petitioners' poffeffion, or that they ever agreed to the faid contradt of ranfom, but that the defign of the libellant was to make the petitioners' perfons and eftates liable for the default of the malter, whereof they were wholly unknowing." After reciting the petition at length, the writ concludes as follows: "' We therefore willing to maintain the Laws and Rights of our Judi"catories and Courts of Record, and being unwilling our liege people "with delays to hurt, Command and firmly Enjoin you that you meddle "not further in the faid Plea or Caufe, nor moleft or caufe to be molefted "the faid John Scollay and Thomas Fletcher or either of them in the "Caufe aforefaid in the faid Court of Vice Admiralty neither attempt or "prefume to attempt anything more therein: Untill our faid Juftices have "advifed and confulted therein at our Superiour Court of Judicature "Court of Affize, and general Goal Delivery to be holden at Bofton, "within and for our County of Suffolk on the third Tuefday of Feb"ruary inftant, when and where you the faid Chambers Ruffell and the "faid John Dunn or any other perfons may be prefent, if you or they "C pleafe 76 Auguft Term 3 Geo. s. 1763. Mr. Auchmuty for the Yurlfdiflion. The firfi beSCOLLAY ing taken upon the High Seas, Fa&ts arifing afterDUN wards in Confequence in the Body are within the Jurifdi&tion of the Court of Admiralty. Mailers may make Contra&ts that bind the Owners. Molloy, B. 2, C. 1, ~ to; Ch. 2, ~~ 14 & 16. Ib. B. 2, Ch. 2, ~ 2. Hardres, 183, Sparks vs. Stafford. In Salkeld the Cafe is not fo well reported as the fame in Mod. Rep.'Tis unneceffary to fet forth Order to redeem; as the Mafler may juftify throwing over Goods in Cafe of a Storm to fave a greater Lofs, fo may he redeem, as otherwife the Whole would be lofllt. 2 Ld. Raym. 931, Tranter vs. Watfon. As for the Cafe of yohnfon vs. Shippin in Salkeld, that the MaPler by his Contra~ds cannot make the Owners liable, 6 Mod. 79 is the fame Cafe, and not fo reported, befides there the Contra&t appeared to have been made at Land; as for the Veffell's being loft,'tis of no Avail —the Owners muft be bound inflantly or not at all; if the Maiter has a Right to bind the Owners by his Contraet, they are bound, and the Contra&t cannot be refcinded but by the Parties, and not depend upon fuch a Contingency as the Arrival of the Veffell. Mr. Gridley. If the Admiralty has Jurifdi&tion of the Principal, it has of the Incidents; if of the Thing, it has of the Perfon; as in the Cafe of Damage "pleafe to fhow forth and maintain if you or they can, that the aforefaid "Plea or Caufe is cognizable in the faid Court of Vice Admiralty. "Witnefs, Thomas Hutchinfon Efq. at Bofton this twelfth day of "February in the third Year of our Reign Annoque Domini 1763. "NATH'L HATCH, Cler." AuguR Term 3 Geo. 3. 77 age done by one Ship againft another. Molloy, 1763. B. 2, C. 2, p. 2. SCOLLAY.DUNN Thacher. Whether the Owners muff anfwer in their Perfons for the Adt of the Mafler at Sea, of which they were utterly unknowing, is the Queftion; I take it not the Owners perfonally, for the Thing itfelf is bound. Every Ranfom is a new Purchafe, and if the Owners are liable in this Cafe, they would be liable if the Mailer had contra&ed with the Captors for another Ship, and fent an Hoftage as a Pawn. Ch. yu0fice. It differs from a new Purchafe, for a new Purchafe from an Enemy is void;'tis a Redemption, a Saving it from being the Enemy's Property. 4Thacher. If the Veffell be liable for the Ranfom, and the Mafler may retain her for the Ranfom Money, then fhe can't remain fo abfolutely the Owner's Property as the was before the Capture. 2 Ld. Raym. 932, Tranter vs. Waatfon. Ch. yujfice. The Queition feems to me to be, whether the Contra&t of the Maiter upon the High Sea is the Contra& of the Owner; and whether, if it is, there is any Initance of Suit in the Admiralty againfi the Perfons of the Owners. Otis. The very Idea of Hypothecation is that the Malter may bind the Owners, fo far as that Interelc of theirs goes, with what he is intereited. Molloy, 15, 2, Ch. 1 i, ~ 11. It 78 Augurt Term s Geo. s. 1763. It is now fettled that Owners lhall not be liable SCOLLAY for the Barratry of the Mafter further than the Ship N. and Freight. 7 G. 2. DUNN. The Power of the Mafler is confined to the Ship and Cargo. Holt's Rep'ts, 48. Viner, Tit. Court of Admiralty. The Cafe of Hardres is confident with the above Rule. Grzdley. There are fome Things though tranfa&ted upon the High Sea are not of a Maritime Nature, are not within the Jurifdi&tion of the Court of Admiralty. Things of a Maritime Nature tranfadted at Sea are undoubtedly within its Jurifdi&ion. So there are fome Things of a Maritime Nature, though not tranfaeted upon the High Seas, that are within the Jurifdi&tion of the Admiralty; fuch are Wages of Seamen. There is Nothing that Owners are not liable for, which is neceffary for the Support of the Voyage; it is no Argument that becaufe the Veffell is liable, the Owners are not alfo; Veffell, Malter, and Owners are all liable for Wages. Viner, Tit. Hypoth. 329, bot. Otis. This is Nothing but Hypoth. Viner, Tit. Mariner, 236; Tit. Mafler of a Ship, 348. Mr. uftJice Oliver delivered his Opinion in Favour of the Jurifdi&tion of the Admiralty. Jfufjice Lynde. I take the Affair of Ranfom to be a Matter upon Sea, and therefore if the Libel was on the Ship or Cargo, I fhould hold it good; but Auguft Term s Geo. s. 79 but as it is not, I cannot but be for the Prohibition 1763. fianding. SCOLLAY "V. Chie'f yufJ2e. Ranfom as far as it refpets Mafler and Hoflage maritime, fo far as Owner and Mafler does not appear to be a Contra& upon the High Seas. None of the Authorities maintain the Jurifdi&tion in this Cafe; and where it is doubtfull, I think'tis a Rule that common Jurifdi&tion ought to be maintained, and that the Admiralty Jurifdiction ought to be made plain and clear, which I think is not the Cafe now. Prohibition ftands. (2) 3Mr. (2) There cannot be much doubt that the contra&t between the owner and the hoftage who pawns himfelf bfor the ranfom, is maritime, and within admiralty jurifdiAion. See the cafes cited above; alfo 3 Doug. x66; I Ld. Raym. 22. The conclufion arrived at by Mr. Juftice Lynde is, that although the contradt be maritime, yet that only the remedy in rem can be fought in the admiralty. The oppofite do&rine may now be confidered as eftablifhed in this country, "if indeed," as fays Mr. Juftice Sprague, (2z Law Rep. 605,) "anything as to admiralty jurifdiflion can now be deemed fettled." See Andrenws v. Wall, 3 How. 573, Story, J. -" Over maritime contra&s the admiralty poffeffes a clear and effablifhed jurifdiEtion capable of being enforced in perfonam as well as in rem." Newo Yerfey Steam Navigation Co. v. Merchant's Bank, 6 How. 392, NelJon, 7.-" If the caufe is a maritime caufe, fubjedt to admiralty cognizance, jurifdidtion is complete over the perfon as well as over the ihip; it cannot be confined to one of the remedies on the contra&, when the contradt itfelf is within its cognizance." Alfo De Lovio v. Boit, 2 Gallis. 462; Clerke's Praxis, Tit. I. But that it was once fo confined to one remedy in fome cafes by the Englifh law, fee the diffenting opinion of Mr. Juffice Johnfon in Allegre v. Ramfay, 12 Wheat. 6x4. The refolutions of i632 gave the admiralty jurifdidion in rem, but not in perfonam, over contradts for " building or mending, faving or neceffary viEtualling of a ship." And Mr. Juftice Johnfon, ub. fup., contends that the only inftance of admiralty jurifdidtion in perfonam upon contrats was for feamen's wages, which was allowed on the principle of communis error 80 AuguR Term s Geo. s. 1763. Mr. Gridley then claimed an Appeal to the King SCOLLAY and Council: Reafon of Government requires that an. they ihould have Power of final Judgment in Cafes DUNN. of Importance; at Home, in Cafe of Ejefione Firme on a Leafe, Appeal lies. Auchmuty. This is a Matter that deferves Appeal. Vaughan Rep. 290, 402. That Writs of Error lie in all inferiour Dominions, Ib. 418. Admiralty Jurifdidtion is expreffly excepted from our Charter; (3) and if no Appeal lies in this Cafe, it feems to me that Exception is of no Value. 1 Peere Wms. 330, ChriJfian vs. Corren. Mr. Thacher. The laft Claufe of the Charter relative to this Matter of Appeals feems evidently explanatory errorfacitjus. But fee 3 Burr. I740, where Dunning, arguendo, "admitted that adions had been brought in the admiralty by the hoftage againft the owners who refuted to ranfom him." Alfo 5 Rob. IO4, where it is flated that in fuits for ranfom on the part of the enemy, " proceedings were always carried on againit the owner in the name of the hoftage ruing for his liberty." Whether the claim of the hoftage againft the owners is in the nature of falvage, and therefore dependent on the fafe arrival of the veffel, or whether, as argued here, the owners are bound instantly by the a6t of redeeming her from her prefent peril - qucere. A recapture of a fhip from the enemy or from pirates is falvage. The lrelazwney, 4 Rob. 227. And where the poffeffion has been parted with for the benefit of the owner, proceedings in perfonam may be fuflained. The Hope, 3 Rob. 2I6. (3) "Provided always, and it is hereby declared, that nothing herein fhall extend or be taken to ere& or grant or allow the exercife of any admiral court, jurifdition, power or authority, but that the fame fhall be, and is hereby referved to us and our fucceffors, and fhall from time to time be ere6ted, granted and exercised, by virtue of commiffions to be iffued under the Great Seal of England, or under the feal of the high admiral, or the commiffioners for executing the office of high admiral of England." Province Charter, Anc. Chart. 36. Auguft Term s Geo. s. 81 explanatory of the firft, (4) the Matter in Difference 1763. only is what is to be confidered in giving Jurifdic- SCOLLAY tion, and not the Suggeftion of Damages. DUNN. Otis. It appears to me that by the plain Con. ftru&ion of the Words of the Charter, the Matter in Difference mull neceffarily be ~300. Courts have conftantly denied Appeals where there has has been no Judgment for more than that Sum; this has been the contemporaneous Expofition of it. Gridley. The Charter fhould be liberally conifrued in Favour of Appeals. I hold, this Court, by the Claufes in our Charter relative to this Matter, is to judge of the Limitations of Appeals. " In all Matters deserving the fame," are the Words upon which my Opinion is founded. It feems to be fettled that the Subje6 has a Right in all Caufes to appeal; therefore even the King cannot abridge it. "All Matters deferving the fame" ought to have a liberal Conftruftion in Favour of the Subje&t. "We think it neceffary that our Subje~ts fhould have Liberty of Appeal to us in all Cafes that may deferve the fame." The Conftruftion, the Gentlemen on the other Side would give, feems to be providing Appeals only for the Defendant; upon their Principles, (4) " And whereas we judge it neceffary that all our fubjetis Ihould have liberty to appeal to us, our heirs and fucceffors, in cafes that may deferve the fame, we dohby thefe prefents ordain, that in cafe either party thall not reft fatisfied with the judgment or fentence of any judicatories or courts within our faid province or territory, in any perfonal adtion, wherein the matter in difference doth exceed the value of three hundred pounds fterling, that then he or they may appeal to us, our heirs and fucceffors, in our or their privy council." Proqvince Charter, Anc. Chart. 32. II 82 AuguR Term 3 Geo. s. 1763. Principles, a Demurrer being to the Declaration, and SCOLLAY Judgment againft the Plaintiff, how can he ever V.I DUNN. appeal. YufJi/ce Oliver. I take the firft Claufe in the Charter relating to Appeals to be only introdu&ory to the fecond, and that there can be no Appeal where the Matter in Difference is lefs than ~300; and upon that fecond Claufe I am againft granting an Appeal in this Cafe. uJklice Cujhing. I take, the fecond Claufe is explanatory, and fo I am againft it.?ufJice Lynde. With Regard to the firft Claufe, it appears to me to be only introdu&ory, and therefore on that I am of the fame Opinion; as to the fecond I am doubtfull, but as I am in general againfit Appeals, I am againft it in this Cafe. Chief Jufiice. Firif, whether the SubjeEt Matter comes within the Claufe of the Charter relative to Appeals, as it is an Affair begun in the Admiralty and brought here only by Prohibition; and for this we mull look into the Charter, which entirely referves and excepts it, and'tis by a fubfequent A&t we have any Right to iffue Prohibitions to it;(5) and (5) The Province Law of Ix W. 3, which gave the Superior Court general jurifdidion "as fully and amply to all intents and purpofes whatfoever as the Courts of King's Bench, Common Pleas and Exchequer within his Majefty's Kingdom of England, have or ought to have." Anc. Chart. 331. " The rights of the courts of common law within the Province of the Maffachufetts to reftrain the exceffes of the Admiralty Jurifdiltion, are not derived from their charter, but from fubfequent AuguR Term s Geo. s. 83 and if we have any Right to judge, I think it is the 1763. fame as if the Matter came originally before this SCOLLAY Court. Under the old Colony Charter, there was D. no Mention of Appeals; this was Objetion againif that Charter. One while in the Quo Warranto, that Claufe in the new Charter was looked upon as a great Priviledge; (6) had it ftood without any Claufe, all Caufes would have been appealable: I take it therefore to be a Priviledge in our Charter; " all Caufes which deferve it," is explained to be above ~300, but fhould it be admitted to be within the Difcretion of the Court to grant Appeals, whether lefs or more, I ihould be againft it, in Favour of Priviledge. As for this Cafe, whether it exceeds ~300 or no, there is the Difficulty. I am confidering the Allegations, &c., in Favour of Appeal. (7) fubfequent laws of the Province, confirmed afterwards by the Crown." Dummer's Defence of the New England Charters, (Bofton ed. 1745,) 26. (6) Under the Colony Charter no appeals to England were allowed. See the remonftrance of the legiflature to the Long Parliament -" We have not admitted appeals to your authority, being affured they cannot Rfand with the liberty and power granted us by our charter." I Bancroft's Hift. U. S. 44I. Afterwards in the reign of Charles 2, the colony "joined iffue with the King by denying the right of appeal." 2 Ib. 74. And this was one of the principal caufes of the fubfequent iffuing of the Quo Warranto, by which the charter fell. (7) The appeal was not granted. On a fubfequent page in the MS. is the following memorandum: "Dunn v. Scollay, Cafe of Hoftage & Ranfom: Authorities in Favour of the Plaintiff were Molloy, (Old Edit.) 205 Io1, 212 ~ 14, 213 ~ 14. Molloy, (New Edit. 1744,) 358, 237, 8; 244, 5. 2 L'd Raymond, 93I; Lord Holt's Opinion relied on; Sea Laws, 128. In Favour of the Defendant were 2 Chancery Cafes, 239; I Salk. 35; 3 Bacon, 592, 595. 84 Auguft Term 3 Geo. 3. 1763. ANGIER Angier verf. Jackfon. ev. JACKSON. ReFol. 9763. Caufe was from Middlefex. It feems the f Jury gave a Verdi& for Damages in Favour of Itfieems, that a new Jackfon, original Plaintiff, contrary to the Mind of Trial may be the Court. granted where the Court. the Verdi& is againft Law and Evidence, Trowbridge. When the Jury give a Verdid but not where againft Evidence, the Court may grant a new Trial. there is Evidence on both That Jury are not abfolute Judges of Evidence and Sides. Damages, fee Holt's Rep. 701, 702, Afh vs. Lady Afh. Jurys are to try Caufes with the Afliftance of Judges. Lucas's Cafes of L. & Eq. 202. (1) Miftake of Judge or Jury good Caufe for new Trial. Strange, 110o5. Ibid. 584. Evidence doubtfull no new Trial fhould be granted, but here'twas againft dire6t Evidence. New Trial granted after Trial at Bar, is conceded. This Cafe is not like Eje6tment —he may have a new Eje6tment; not fo here. Auchmuty. If ever any Cafe was excepted from new Trials, this is. Trial at Bar is more favoured than Trial otherwife, becaufe of its Solemnity. I confefs I wifh for a Power in the Court to fet afide Verdi&s, but not for an unlimited one. This Cafe was not againft Evidence. I allow there was Evidence againft Evidence; and two Verdids, though no Rule of Controul, is yet of fome Weight. (2) Strange, (I) io Mod. 202, The -ueen v. Helfton. (2) S. P. 7 Mafs. 3o0. 9 Mafs. 450. I8 Pick. iS. 8 Gray, 46. Auguff Term 3 Geo. s. 85 Strange, 110o5. Evidence doubtfull. Ibid. 1142. 1763. Salk. 648, Sparks vs. Spicer. The Court is not to ANGIER be Judge of the Law and Fa& too absolutely; if it a. fhould be, it takes away all Verdidts but fuch as are agreeable to the Mind of the Court. It would be opening a Door to great Inconveniences to the Subje~t, even if Attaints did not lie; but here Attaint lies. (3) Ch. 7uf/ice. Are you not agreed, that, were it evidently againft Law and Evidence, there the Court may grant a new Trial, but not where there is Evidence on both Sides. (4) Trowhbrdge. It can never be fuppofed that a Verdi& will be given againfl dire& Evidence, without Shadow of Evidence to fupport it. This differs from the Cafe of Fuller Sc Clark at Cambridge -there was plainly Evidence againft Evidence. I hold, this Court always have Right to grant new Trials when they think Injuflice like to be done. YufJices Oliver, Cu/hing, Rufell 4; Lynde againif a new Trial, becaufe the Court were not clear in the fbrmer Trial. (3) It feems however that attaints had long been obfolete. See 3 B1. Com. 390 - " The attaint is now as obfolete as the trial by battel which it fucceeded, and we fihall probably fee the revival of one as foon as the revival of the other." But in Alhford v. Thornton, I B. & Ald. 460, wager of battel was fuftained by the Court in i8i8. (4) See 20 Pick. 289, Shazv, C. J.-" For a long time it was confidered that a new trial could only regularly be granted, where the verdiA was without evidence or againft the whole evidence. It has however been extended to cafes, where the verdit is clearly againft the weight of evidence, although evidence was given on both fides." 86 Augurt Term 3 Geo. 3. 1763. POOR IDOL. Poor verf. Doble. DOBLE. Reol. I37 POOR brought an A&ion againif one Jutlham, An Adtion and, it being fuggefted to the Admiralty that on the Cafe Jutiham was on board a Veffell in the Harbour, for a Refcue the Writ was committed to a Water Bailiff, who cannot be brought in a entered the Veffell and took him. Doble interthe Confpira- pofed, went up to Boflon, and upon his Return cy to refcue, forced the Defendant Jutfham from the Officer and but not the Refctue itfelf, carried him off; upon this the prefent A&ion was tOnk 7dge grounded. There were feveral Exceptions in Abatedifenting. ment of the Writ taken. The firif was, " Not within the Jurifdit&ion of the Court;" it was faid they confpired at Bofton, but the Adt was done below. (1 ) MAr. (i) The declaration fet forth the original caufe of a&ion, the purchafe of the writ, and the fubfequent iffue of a warrant from the Court of Admiralty, by virtue of which the deputy marfhal " went on board the floop Pompey, being then within the jurifdiction of the faid Court of Admiralty, and there found the faid Samuel Jutfham and him detained as a prifoner till he fhould convene him to juftice or deliver him to the:heriff of this county or his deputy, that the faid writ of attachment might be duly ferved on him." And it was further alleged that the defendants having conspired and agreed to refcue the prifoner, " in purfuance of the faid unlawful confpiracy and agreement," "procured a boat at Boffon and went down to the faid floop Pompey, then lying at anchor in Nantafket Bay, fo called, about a quarter of a mile from the fhore," that they refcued the prifoner, forced the officer to return to Bofton without him, and the floop Pompey to put to fea and carry him off, " whereby the plaintiff hath wholly loft the benefit of the writ of attachment and his debt aforesaid." The defendants pleaded in abatement " that the faid Patrick hath not in faid declaration fhown forth that the caufe of the faid adtion arofe within the county of Suffolk;" and the writ was abated " upon the firft exception." Auguft Term s Geo. s. 87 Mr. Thacher, in fupport of the Writ faid, that 1763. the former Writ was faid to be purchafed in Bof- P ton, Complaint made there, Warrant procured there D. D OBLE. and Contrivance there. Ch. yvfi. If Confpiracy be in one County and Refcous in another, could the Courts in both have Jurifdi&tion? Mr. Gridley. Jurifdiction of inferiour Courts muft be fhewn. This is a Court of a limited Jurifdi&tion; they have lhewn the Confpiracy to be within, but'tis the Refcue, and not Confpiracy, which is the Caufe of A&tion. WYrit abated, 3 vs. 1. (2) (2) It appears to have been affumed that a civil a&tion for a refcue was local, and could only be brought in the county where the caufe of a&ion or fome part thereof arofe, and the decifion was fimply to the point that a confpiracy alone within a county was not fufficient to authorize the a&tion to be brought there. No queftion of admiralty jurifdilion could have arifen, becaufe even if a ihip " in Nantafket Bay a quarter of a mile from fhore " was not infra corpus comitatus, (12 Met. 387,) yet of torts upon the high fea the common law had concurrent jurifdition. 2 Gallis. 422. For a fomewhat analogous decifion in a cafe in which the locality of the tort was the limit of jurifdidion, fee Adams v. Haffard, 20 Pick. 127, where it was held, that an imprifonment on fhore, in pursuance of orders given on the high fea, did not conftitute a caufe of adtion within admiralty jurifdi6tion. But whether an a&ion on the cafe againft refcuers is local at common law, quare. An a&ion of efcape againit the officer is tranfitory. Bac. Ab. Efcape, F. 2 Chit. P1. (6th Am. Ed.) 736, 737, & note (d). 88 Auguft Term s Geo. s. 1763. LOVELL DOLE. Lovell verf. Doble. Rec. 17 65. HIS was for the fame Caufe, and the DeclaraFol. i29. tion was the fame. Exceptions to the Declaration fhould Firft Exception was, that it was not alledged in Special De- the Declaration that they fet forth to the Admiralty murrer, and that Jutfham had absconded and concealed himfelf not by Plea in Abate- on board fome Veffell from the Service of the Writ. ment. A Plea in Abatement Second Exception. They have not alledged that to the Declaration, which the Admiralty had Jurifdidtion of the Matter of faid does not point Complaint. Given up out a better Declaration, cannot be fupported as Auchmuty. Thefe Pleas are all negative; they in the Nature find Fault with this, but do not point out a better. of a Special Demurrer. Pleas muff be certain -not Supported by Argument or Implication. 3 Do&. Plac. 54. Gridley. They are defe&ive in a material Point in their Declaration, your Honours will not fupport it; our firft Plea being over, and having been argued upon in Subfrance, they are too late to take Exceptions to this. duchmuty. The firft Plea had no Exception to Form, but SubiPance; they are all feparate and diftin&. All they verify is, that we have not done fo and fo - they do not verify it to be neceffary. As for confidering there Pleas as Special Demurrers, I think it cannot be intended here. He muff conform to Rules of Abatement, and cannot avail himfelf Auguft Term s Geo. 3. 89 felf of what he might upon Special Demurrer; in 1763. Demurrer it might have been final againft them, LOVELL but in Abatement they plead over. DOBLE. Fitch. Abatement is regularly to the Writ; Exceptions to Form of Declaration is by Special Demurrer. Here they are generally taken in Abatement, not at Home, therefore we ought not to be taken up for conforming: However there are Inftances of' the like Pleas in Abatement; Lilly Ent. p. 9, Tit. Abatement; and many other Inifances in Special Demurrer where the Plea is negative without pointing out a better. Lilly, Tit. Demurrer, io6, 186. (1) Gridley. Thefe Pleas are in the Nature of Special Demurrer, but according to Cuftom we have concluded in Abatement. When we have faid that there is an Omiffion, do they fay Anything new? Will your Honours go on with a Writ materially faulty, becaufe we have not pointed out? Otis. They might have demurred, but have chofen Abatement, and fo have entitled themfelves to all the Disfavour of Abatement. Ch. Yyft. Plea in Abatement mufi be to the Writ, not Declaration. (2) Otis. (I) See 6 Pick. 369, WVilde, y. -" The exceptions to this rule [that the plea muff give a better writ] are fo numerous that it can, hardly be called a general rule of law." (2) A plea in abatement which concluded to the writ and declaration has been fuftained, on the ground that fo much of the declaration as i2 would 90 Auguft Term 3 Geo. 3. 1763. Otis. They may plead Matter of Fa& in AbateLOVELL ment. DOBLE. Exception not well taken. Another Plea in Abatement was that they had not alledged the Admiralty to have had Jurifdi&ion of the Matter of the Complaint. Salk. 404, Tit. Jurifdi&tion. Fitch. They have not alledged they had any Caufe of Complaint to the Admiralty. Hobart, 129. Auchmuty. We have fet forth that he was concealed within their Jurifdiftion. (3) REX ". Dom. Rex verf. Doaks. DOAKS. Rec. I763. OAKS was indi6ted before the Seffions for Fol. IIo. keeping a Bawdy Houfe, found guilty there In Support and fined; from thence fhe appealed, and it appeared of an Indidmentforkeep- that Part of the Time ihe was indi&ed for, fhe was aig a BawdY only a Lodger, and not Miflrefs of the Houfe. dence of A&s of Lafcivioufnefs by the The King's Attorney offered to give Evidence of Defendant fome Adts of Lafcivioufnefs before the Time in while a Lodger, and which before fhe was Miftrefs of the Houfe, would be neceffary to make a perfet writ, is a part of the writ, and may is inadmiffiisble. inadmif be excepted to in abatement. Illey v. Stubbs, 5 Mafs. 285. On Trial (3) The fecond exception was given up, and the cafe entered " Neiof an Indit- ther Party." Auguft Term s Geo. s. 9' which lhe was proved to have been Miftrefs of the 1763. Houfe. He faid it was by Way of Inducement, REX but the Court ruled, that no Evidence before ought DAKS. to be admitted. ment for keeping a He likewife offered to prove her of general ill Bawdy Chara&er, but the Court, on that Point too, ruled, Houfe, Evidence of the that he could not enter into that, before the other Defendant's Side attempted to fupport it. (g) general Charmiffible for the GovernThe Jury, by Dire&ion of the Court, brought in ment, until their Verdi&t "Not Guilty." the Defend-at tempted to fupport it. REX Dorn. Rex verf. Gay. U. GAY. G-1 AY was indided for aflaulting and beating the Rec. 1763. Sheriff in the due Execution of his Office. The Cafe appeared to be this: Gay by Virtue of ha Juicer the Province Law relative to Highways, 5 W. & to iffue a Capies to bring M. c. 8, & 11 G. 1, c. 3, (2) was warned to mend before him a the Highways, and upon Complaint to a Juflice that Perfon charged with he had negle&ed his Duty therein, the Juftice made NegleA in out a Warrant to bring Gay before him to anfwer Highways. for A Warrant irregular on its Face is no Juftification (I) S. P. Common.wealth v. Hardy, 2 Mafs. 318, Parfons, C. 7. " It of the Officer. is not competent for the profecutor to go into this inquiry until the defendant has voluntarily put his character in iffue." (2) The provifions of thefe ftatutes are that in cafe of negleft " upon complaint and proof thereof before the next juftice of the peace, without reafonable excufe made, and allowed by fuch juftice, he fhall caufe to be levied of every fuch offender's goods the fum or penalty of two Ihillings and fixpence," &c. Anc. Chart. 268, 44o. 92 AuguR Term s Geo. 3. 1763. for the Negle&. Dean, the Sheriff, having the WarREX rant, took Gay, who refcued himfelf and beat the G.- Sheriff. The Queftion was, whether that Warrant fhould be given as Evidence of Dean's Right to take Gay, the Affault being confeffed and juftified. Otis. The Juftice had no Right to iffue a Capias in this Cafe, and if fo, Dean made the firft Affault. A Warrant from an inferiour Court is lefs refpe&ed than from a fuperiour, yet even a Warrant iflluing from this Court, illegally, would be a Trefpafs in the Perfon granting, and alfo in the Perfon executing it. It falls within that Rule, that the Officer executes at his Peril. This Court will not iffue previous Procefs againft the Body, when Execution can only go againft the Goods; this is the Reafon why original Summons iffues againic Executors and Adminiftrators and Truftees of abfconding Debtors. Difference between this Cafe and that of Affeffors who have Authority of the Perfon. (3) Every Officer is bound to know what is within the Jurifdi&tion of the Court. Hawkins's Plea, 81. (4) Thacher. The Juftice has a Right to convene, and this Capias iffued for that Purpofe, &c. Warrant not admitted, (5) 3 Judges againif it, 2 doubtful. In Confequence of this, Defendant acquitted. N.B. (3) Prov. Law, 4 G. 2, Anc. Chart. 477. Gen. Sts. c. I2, ~ I3. 8 Met. 102. (4) x Hawk. c. Io, ~ 4. (S) An illegal warrant is a juftification only when regular on its face, and Augurt Term s Geo. 3. 93 N. B. Mr. Thacher fays that in a Cafe at Barn- 1763flable (Mayhew cy IWYadfworth,) the Ch. yufi. held, an REX irregular Warrant might be admitted in Juftifica-. tion of the Officer, and that the Court were wrong in the Cafe of Gay on the other Side. (6) and apparently within the jurifdiction of the court or magiitrate iffuing it. FiJher v. McGirr, I Gray, 45. Clark v. May, 2 Gray, 410, 413. (6) The cafe referred to is Cornelius Bafett v. Iadfworth Mayhe.w BASSE'rT & al. May Term 1763, which was an a&ion of trefpafs for fhooting "V. the plaintiff, a deputy iheriff, in the leg, while he was endeavoring to MAYHEW. arreft the defendant by virtue of the following warrant: Rec. 1763. " Dukes County fs: To the Sherriff of faid County, his Under Sher- 47 " riff or Deputy, Greeting. Whereas Robert Allen of Chill[sEAL.] "mark in faid County, Gent". Has this Day appeared before " the Juftices of our Lord the King at His Majefty's Court of "General Seffl: of The Peace, and made Complaint That he being in "the Execution of his office as Corroner, at the Houfe of Zacheus "Mayhew Efq in Chillmark in the County aforefaid: Lawfully au' thorized by a Mittimus to carry one Jerufha Mayhew to his Majefty's "Goal in Edgartown in faid County, he was there oppofed in his faid' Office by one Wadfworth Mayhew of faid Chillmark by violently "feizing the body of the faid Jeruffa & holding her, and Prevented his "Carrying faid Jerufha to his Majefty's Goal: Which Doings of faid " Wadfworth is Contrary to Law, &c. Thefe are therefore in His "Majefty's Name, To Require You or Either of You forthwith to "take the Body of the faid Wadfworth (if he may be found in your "Precind), Againit all Oppofition to enter any Houfe where you fhall "fufper him faid Wadfworth to be, & to bring him forthwith before "the Juftices of Our Lord the King at his Majefty's Court of Genral " Seff:s of the Peace now Sitting in Seff:' at Tilbury: So that he may "be Dealt with According to Law in the Premifes. Hereof fail not "& make Return of this Writ with your Doings therein into PId Court. " Dated at Tifbury The 26th Day of Odor. Anno Dom: 1762 & In "the Third Year of his Majefty's Reign. "Per Order of Court " JAMES ATHEARN Cler." Auguft Term IV Georgii Ter. in Sup. Cur. Prefent: The Honourable Thomas Hutchinfon, Efqr., Chief Juftice. John Cuihing, qr, ices. Peter Oliver, Efqrs.,Julices. 1764. N ALLISON CoCKRAN. Allifon verf. Cockran. Rec. 1764. Fol. I03. TROVER* for a Negro. (1) The AdminifcraAdminif- 1 trix of one Cockran, (Father-in-Law to the trators are in- Defendant,) competent WNitneffes in Matters af- *,u. if this AEtion is well brought, for Trover lies not for a Negro. feting the 2 Salk. 666. Ld. Raym. 1274, 146. Cafes in the Time of Holt, 495. Eftate of their Inteftate, except where fuch Etatere uchis in- () In i677, the Court of King's Bench, confifting of Rainsford, C. folvent. 7., 7wiJfden, Wild & Yones, J.7., expreffed an opinion that trover would The Re- lie for negroes, who had been found, by fpecial verdidt, to be " infidels," port of the and "ufually bought and fold in America," [or, as other reporters CommiffionesCommishony- have it, "in India,"] "as merchandife, by the cuftom of merchants." ers is the only legal Evi- Butts v. Penny, 2 Lev. 20I; 3 Keb. 785; Freem. 452. But the record dence of fuch fhows that the negroes in that cafe were "in India;" 20 Howell's Infolvency State Trials, 52; and the decifion, as reported by Freeman, was put upon Auguft Term 4 Geo. 3. 95 Defendant,) deceafed, was offered as an Evidence to 1764. prove the Sale from Allifon to the Father. ALLISON Ruled V,. COCKRAN. which can upon that ground only-" Held per Curiam, that although by the law eftablifh the Competency with us a man cannot have an abfolute property in the body of another, of the Adyet the cuftom of India concerning buying and felling of flaves being ministrator. found, a trover and converfion would lie well enough." Freem. 452. Whether This does not appear to have been known to the fucceffors of thofe Trover lies judges, (Freeman's Reports not being yet published,) when they " de- for a Negronied the opinion in the cafe of Butts & Penny." 2 Ld. Raym. 1275. In the fame court in I68o, Dolben, _7., faid that trover, brought by one tenant in common " for half a negro," " has been allowed." 2 Show. 177. But it does not appear where that negro was. The decifion referred to may have been in Butts v. Penny, ub.fup., which is reported by Keble as " trover of so negroes and a half; " 3 Keb. 785; (although the record of that cafe only mentions ten; 20 Howell's State Trials, xr, note;) or, more probably, the cafe thus quoted in the Court of Chancery in 1687: " Mr. Sergeant Maynard's cafe was cited, who recovered a debt contra&ed here againit the executor of an owner of a plantation in Barbadoes, and by his advice an a&ion of trover was brought, and judgment obtained for the fourth part of a negro." I Vern. 4.533 In I689, Lord Holt, & Rokeby & rurton, 7J., (three of the four judges who afterwards decided Chamberlain v. Harvey, infra,) joined in an opinion, given to the King and Council, that negroes were merchandife in the colonies. I Burge Col. & For. Laws, 736, note. It is faid to have been afterwards adjudged in the Common Bench that trover will lie for negroes. Gelly v. Cleue, (I693,) I Ld. Raym. 147, ex rel. Place. 3 Lev. 337. But it muft be prefumed that thofe negroes too were in the colonies; for if they were in England, the decifion is inconfiftent with a feries of cafes in the King's Bench, (cited in Quincy's note, fupra, 94,) by which it was very foon afterwards eftablihed as the law of England, that "as foon as a negro comes into England, he becomes free; one may be a villein in England, but not a flave." 2 Salk. 666; Caf. temp. Holt, 495. In thofe cafes, it was held, that trefpafs would not lie for taking a negro in England, without declaring (as in the cafe of the taking away of any other fervant) per quod fervitium ami/it; Chamberlain v. Harwvey, (I696,) I Ld. Raym. I46; 3 lb. 129; 5 Mod. I82, I86; Carth. 397: Nor indebitatus afumpfit for the price of a negro, without averring that at the time of the fale he was in a country by the laws of which he might be fold as a chattel; Smith v. Broown, 2 Salk. 666 i Caf. temp. Holt, 495: Nor trover. Smith v. Gould, (I706,) 2 Ld. 96 Augurt Term 4 Geo. 3. 1764. Ruled by the Court, (after hearing the Arguments ALLISON of Meffrs. Gridley, Otis 4y Auchmuty, pro 4 con,) that VC. Adminiftrators COCKRAN. Ld. Raym. 1274; 2 Salk. 666. That the converfion alleged in the laft cafe was in England is manifefl from the grounds given for the decifion by Lord Holt -" The common law takes no notice of negroes being different from other men. By the common law no man can have a property in another, but in fpecial cafes, as in a villein," &c. " There is no fuch thing as a flave by the law of England." 2 Ld. Raym. 1274, I275. The Statement at the end of Salkeld's report of this cafe -" the Court feemed to think that in trefpafs quare captivum fuum cepit the plaintiff might give evidence that the party was his negro and he bought him " - appears to be an unwarranted inference of the reporter, inconfiftent with Lord Raymond's report, and with the cafe of Chamberlain v. Harwvey, ub.fup. There is no Englifh adjudication fince, which conflits with thefe decifions of Lord Holt. In Pearne v. Li.le, (I749,) Ambl. 75, Lord Hardivicke refufed a writ of ne exeat againft one who owed the plaintiff for the hire of certain negroes, upon the ground that it was a legal demand on which the defendant might be arrefted at law, faying: " As to the nature of the demand, it is for the ufe of negroes; a man may hire the fervant of another, whether he be a flave or not, and will be bound to fatisfy the mafler for the ufe of him." This paffage accords with the fuggeition in Chamberlain v. Harvey, ub. fup., that trefpafs per quodfer'vitium amifit might be maintained in England for enticing away a flave; and conclufively fhows that, even if the writ of ne exeat had been granted, the cafe would have involved no decifion of the queftion of what property one might have in a negro. The additional remark of the Lord Chancellor -" I have no doubt that trover will lie for a negro flave; it is as much property as any other thing" -is therefore wholly extrajudicial; and is moreover accompanied by a mifreprefentation of the grounds of Lord Holt's decifion, and by a manifeft defire to confirm the opinion given by Lord Talbot and himfelf in I729 as attorney and folicitor general, in favor of holding flaves in England, of which Lord Mansfield faid that it "was upon a petition in Lincoln's Inn Hall, after dinner; probably, therefore, might not be taken with much accuracy." Lofft, 8; 20 Howell's State Trials, 70o. Lord Hardwicke's opinion on this fubje& has never been recognized as law by any court in England. In 1762, a bill in equity, filed by an adminiftrator to recover back money given by his inteftate to a negro who had been brought to England as a flave, (which was apparently founded on the fuppofition that the negro was itill a flave, and therefore incapable Augufft Term 4 Geo. s. 97 Adminiitrators could not be Witneffes, except when 1764. the Eftate is infolvent. A LLISON Mejfrs. COCKRAN. incapable of receiving a gift,) was difmiffed by Lord Northington, who faid: "As foon as a man fets foot on Englifh ground, he is free; a negro may maintain an aAion againif his mailer for ill ufage, and may have a habeas corpus if refrained of his liberty." Shanley v. Har'vey, 2 Eden, 127. It appears by Granville Sharp's MS. that Lord C. J. Ilmot, in I768, held, that a female negro slave, married in England to a negro man who had alfo been brought from the Well Indies as a flave, could not be carried back without the confent of the hufband; and that Lord C. J. De Grey, about the fame time, more than once expreffed the opinion, that there could be no property in the perfon of a flave by the law of England. Sharp's Memoirs, (2d ed.) 72, IIo. The fame book contains a full account of Lord Mansfield's evafions of a decifion of the general queltion in the cafe of Rex v. Stapylton, in I77 r. Ib. 82, 89-92. It is clear from there authorities, (without relying on the cafe of the Rufian Slazve in 1569, mentioned in 2 RuIhw. Hilt. Coll. 468,) that Lord Mansfield's reludtant discharge of the Negro Sommerfett in 1772, (Lofft, I7-19; 20 Howell's State Trials, 79-82,) was but a re-affirmance of the law of England, as previoufly determined by Lord Holt and other eminent judges - notwithftanding the fubfequent ftatement of Lord Mansfield, in 7'he King v. Thames Ditton, (I785,) 4 Doug. 301, that " the cafe of Sommerfett is the only one on this fubjeEt; " and the affertion of Lord Stowell, in the cafe of the Sla've Grace, (I827,) 2 Hagg. Adm. R. i06, 114, that Lord Mansfield, in Sommerfett's cafe," "made a change in the law." For an examination of fome of the obiter dicta of Lord Stotwell, fee 20o Law Rep. 99, Io05-107. That learned civilian does not manifeft any knowledge that one of his predeceffors, Sir George Hay, almoit as foon as Sommerfett's cafe was decided, twice held, upon fiull argument, that, before as well as fince that decifion, negroes could not lawfully be held or fold as flaves in England. Cay v. Crichton, (I773,) in the Prerogative Court; Rogers v. Jones, (1776,) in the High Court of Admiralty; both reported in Granville Sharp's "Jufi Limitation of Slavery," (London,,776,) App. Io & II, pp. 77-86. Sir William Blackjtone's oscillations in this matter are too characteriftic to be paffed by, notwithftanding the length to which this note has already extended. In the firft edition of his Commentaries, publifhed in 1765, founding himfelf upon Lord Holt, (" Salk. 666,") he wrote: " This fpirit of liberty is fo deeply implanted in our Conftitution and rooted in our very foil, that a flave or a negro, the moment he lands in England, falls under the proteftion of the laws, and, with regard to I 3 all 98 Auguft Term 4 Geo. 3. 1764. Meffrs. Otis 4' Gridley, Council for Defendant, faid ALLISON it was univerfally known that the Eftate of Cock-'*. ran, the Father, was infolvent, and appealed to the Chief Juftice (who was likewife Judge of Probate) (2) for the Truth of their Suggeftion. The all natural rights, becomes eo injftanti a freeman." In his third edition, publifhed in i768, after the queftion had begun to be re-agitated in England, he altered the laift claufe of his ilatement to this: " and fo far becomes a free man; though the maiter's right to his fervice may probably ifill continue." Againft which Q.uincy has written, in the margin of his copy, " Curious! " In the fourth edition, publiihed two years later, "poffibly" was fubItituted for "probably." i B1. Com. I27. After the paflage had affumed this Ihape, Hargrave truly faid of it, " There appears to be fomewhat of very fubtle diftinrtion, if not rather of contradiction." 20 Howell's State Trials, 30, note. Trefpafs will lie in England for taking flaves on the high feas, or in a country where flavery is not prohibited by law, from one who is not prohibited by the laws of his own country from trading in flaves. Madrazo v. Willes, (i820,) 3 B. & Ald. 353. Buron v. Denman, (I848,) 2 Exch. I67. But the commander of a Britifh veffel is not liable to an adtion for refufing to deliver up to their mafter flaves who have efcaped from a foreign country where flavery is recognized by law, and got on board his veffel, and are unwilling to return. Forbes v. Cochrane, (i824,) 2 B. & C. 448; 3 D. & R. 679. By the Englifh authorities, therefore, the right to maintain trover for a negro would feem to depend upon the queftion whether he may be held and fold as a chattel by the law of the country where his malter's poffeffion of him is interfered with. The fadt fuggefted by Hargrave, arguendo, in 20 Howell's State Trials, 53, that "the malter's power over the flave doth not extend to his life, and consequently the maftiler's property in the flave is in fome degree qualified and limited," would feem to be no valid objecaion to the maintenance of the action; for trover lies by one who has any fpecial property in a chattel, with the right to immediate poffeffion. 2 Saund. 47, & note. At the time of the trial of the cafe here reported by Quincy, negro flaves were held and fold as property in Maffachufetts. Ante, 29, note (2) to Oliver v. Sale, and authorities there cited. And in 1763 trover had been maintained in this court for a negro. Goodfpeed v. Gay, in Barnftable, Rec. 1763, fol. 47. But it has been faid, that in Connedicut, while flavery exifted there, trover would not lie for a flave. Reeve Dom. Rel. 340. (2) By the Province Charter the jurisdidtion in matters of probate was Auguft Term, +! Gee. s;. The Ch. Yuft. faid that from the Accounts given 1764. him of the Eftate, and from his own Knowledge, %A -' he had no Manner of Doubt but that the Eftate V. was infolvent; yet as the Commiffioners had not COCKWAN made Report, there was no legal Evidence of the Infolvency. And the Court ruled, that the Adminiftratrix of Cockran the Defendant's Father Ihould not be fworn. (3) HANLON Hanlon verf: Thayer. THAYER. HE Plaintiff (Hanlon's Wife) (i) brings Tro- Rec. 1764 ver againf Thayer (a Sheriff) for attaching Fol. io9. her Apparell. (2) There were two Queftions in Articles of this Apparell and _his Ornament of a Wife, owned by her bewas veiled in the Governor and Council as a civil law court, who ap- fore her Marpointed judges of probate in each county as their delegates or fubftitutes. riage, (except Anc. Chart. 32. Governor Pownall's Meffage to the Council in Feb- neceffary ruary, 1760, App. III. 3 Hutchinfon's Hif. Mafs. 45x, note. 2 Mafs. wearing Ap8$4. 8 Cufh. 541. 2I Law Rep. 78, 79. liable to At (3) It is not eafy to fee why an adminiftrator, not a party to the fuit, tachment for and without any beneficial interefl in the truit fund, fhould not be a com- the Debts of petent witnefs for the eftate, without regard to its folvency or insolvency. the Hufband. 2 Stark. Evid. (2d Amer. ed.) 775. 3 Dane Ab. 420. I2 Mafs. 358. But it is probable that, in pra&ice, adminiftrators were paid by a commiffion on the amount colle&ted, as was afterwards exprefily provided by the Rev. Sts. c. 67, ~ 8 -which might require a releafe to make them competent witneffes. xi S. & R. 208. x5 Ib. 235. 7 Ib. II6. See alfo i6 Mafs. xi S. (I) Mark Hanlon was the plaintiff. The writ, however, was indorfed by Mary Hanlon, his attorney, who may have condu&ed the cafe, and thus occafioned the miftake. (2) The common law proceeding by attachment was merely to compel the defendant's appearance where he failed to answer the fummons. The Colony Law of x644 gave plaintiffs the power to take out either fummons or attachment in the firft inftance. Anc. Chart. 49. But the attachment 100 Augurt Term 4, Geo. s. 1764. this Cafe; one, whether, as the Apparell attached HANLON 2 was the Property of Hanlon's Wife before the InW,. termarriage, it did not make a Difference in the THAYER, Law from Cafes where Apparell after the Marriage came to the Wife; the other, whether the feveral Articles in the Schedule annexed were all necel/ary wearing Apparell. Mr. Auchmuty, taking no Notice of the firft Queftion, endeavoured to prove the Apparell mentioned was neceffary, by obferving, what was neceffary for one Station in Life was not fo for another, and faid the Law never meant the Word "Neceffary" in its ftri&eft Senfe. Mr. Chardon for Defendant. The Argument ab Inconvenienti is of very great Weight in the Law, and by admitting all thefe Things (in the Schedule) as nece/fary wearing Apparell, would be putting it in the Power of almoft every Debtor to defraud his Creditor. (3) To explain and lhow the Senfe in which attachment being difcharged by an appearance, as at common law, or at moft by a judgment, twelve hours before execution, it was afterwards provided in 165o that goods fo attached ihould "ftand engaged" until the judgment fhould be fatisfied. lb. Vx. By the Prov. St. of I3 W. 3, the duration of the liability was limited to thirty days after judgment. lb. 367. Gen. Sts. c. 123, ~ 42. The chattels liable to attachment have always been held to be fuch only as may legally be taken on execution, and where this latter right is left at the common law, " fo muft the right to attach depend upon the common law." 6 Mafs. 244. By the Colony Law of x647, officers were prohibited from levying execution on " any man's neceffary bedding, apparell, tools or arms, neither implements of houfehold which are for the neceffary upholding of his life." Anc. Chart. Iz5. (3) The fchedule comprises earrings, necklaces, laces, ribbons, fans, &c., Auguft Term 4 Geo. s. lo1 which the Law ufes the Word Necefary, I cite 4 1764. G. 2, c. 1. (4) HALON'V. Mr. Gridley. Nothing is necejary in the Law THAYER. but what is neceffary to defend from the Inclemency of the Weather, (5) or neceffary to the Degree: But before they can talk highly of Degree they muff pay their Debts. If any befides what is barely neceffary is allowed for Comfort, it is not the Law, but Humanity. The Law here wifely ufes the Word Nece.7ary, for the Boundary of Neceffity is determinate, but Conveniency not, - Conveniency! What is convenient? &c. (a little Rhetorick and concludes.) Mr. Gridley alfo faid: If a Judge of Probate grant to the Wife of an Inteftate whofe Eftate is infolvent, two Beds, where one only was neceffary, the other immediately became liable to be attached, and he cited Hardfley & Barney, (Comber. 356,) where Holt fays if the Party have two Gowns, Sheriff may take one.* Mr. Otis relied chiefly on the Evidence that proved Hanlon never bought or paid for a fingle Rag * ~u. if I Inft. 35i b, top, would not have been a good Authority? &c. There appears alfo a lift of neceffary articles which the defendant tendered back to Mrs. Hanlon before the date of the writ. (4) Anc. Chart. 481. (5) I pr Glofhoes" (goloihes) and " Green Embrillo" appear upon the fchedule, but were not among the articles tendered back as neceffary. About this time, " Umbrillos" were firft advertifed in the papers, and were doubtlefs then confidered articles of luxury. See Drake's Hiftory of Bofton, p. 660. 102S Auguft Term. s Geo. s. 1764,. Rag of his Wife's Cloaths, but that fhe brought — 1LvON all with her at the Marriage, and faid it had been the Cuffom univerfally, never to take Cloaths fo TBYER- brought, for the Debts of the Hufband. yuJfices Oliver 4' CfJzing both faid the Cafe was very hard upon the Wife, who brought all thefe Cloaths at Marriage, yet "as they are perfonal Property, they become the Husband's. on, Marriage, and therefore liable," Ch. 3u7f. I fhould have been extremely glad if this Cafe had been argued a little more largely by the Gentlemen of the Bar, and more Authorities cited, in Matter of fo great Confequence. I always took it to have been the Cuftom in fuch Cafes as this, for the Wife to have her Cloaths; in Cafes that have come before me as Judge of Probate I never knew it denied to the Wife where the Eftate was infolvent. (6) In the Cafe cited (by Mr. G.) I fuppofe the Woman was a Party, and the Debt contra6ted (6) The Prov. St. of 9 Anne referved only " the neceffary bedding, utenfils and implements of houfehold," where the eftate was infolvent. Anc. Chart. 390. At common law, however, there feems to have been a queftion to what extent the widow's "paraphernalia," beyond neceffary wearing apparel, was liable to creditors of the hufband's eftate. Bac. Ab. Baron & Feme, C. 3. I Dane Ab. 364. And the praEtice of allowing the widow her apparel in all cafes was afterwards confirmed by Sts. 1783, c. 36; I802, c. 93; 18i6, c. 95. The Revifed Statutes, c. 65, ~ 5, excepted from the inventory of the eftate "all the articles of apparel or ornament of the widow, according to the degree and eftate of her hufband," "although his eftate fhould be infolvent." The St. of 1838, c. I45, omits the limitation as to the hu/band's degree, and provides that the articles aforefaid ihall be confidered as exclusively belonging to the widow. Gen. Sts. c. 96, ~ 4. Auguft Term 4 Geo. s. 103 contra&ed by her; this alters the Cafe much, but 1764. yet I apprehend (here Ch. yufI. makes an Apology HANLON for what follows) that this may be one of thofe. Cafes where the Juftice fays a Thing obiter, or fuddenly; for one Gown can never be fuppofed fufficient - muff ihe go naked when that is wafhing?. Upon the Whole I think it would be very hard upon the Wife, fhould fuch a Precedent as this take Place, that her Cloaths which fhe brought in Marriage mupf go to discharge the Hufband's Debts. I fhould think it fafer to verge towards Conveniency than to ftrain the Word Necefary. (7) The Ch. yufJ. in the Courfe of this Cafe afked if it would not have been better to have brought Detinue. N. B. The Jury found for the Defendant Coifs. Adjourned to September 11th -and then met Chief Juifice. LRynfihll, Juffices. (7) Somewhat fimilar opinions have been fubfequently expreffed. See 4 Cufll. 361, Shamw, C. Y. -" This word is not ufed in its moft rigid fenfe, as Something abfolutely indifpenfable, and without which a debtor cannot live." And the exemption of " neceffary wearing apparel " has been held to extend to cloth in the hands of a tailor. Richardfo/n v. Buffwell, io Met. so6. 104 Augurt Term 4 Geo. s. 1764. REX POURKSDORFF. Dom. Rex verf. Pourkidorff. Rec. 1764. Fol. i25. JNDICTMENT vs. Pourkfdorff for Stealing. A A Convic- I Woman offered as Evidence who at the fame tion of Petit Term had pleaded guilty to an Indidment of the Larceny and Judgment fame Nature. (1) thereon do not deftroy the Compe- The Attorney General obje&ted to her, that fhe tency of a Witnefs. pleaded guilty to an infamous Crime, and therefore no Witnefs, and cited Hawkins's Pleas of the Crown, B. 2, ch. 33, ~ 129; ch. 37, ~~ 48 to 53. Mr. Kent for the Prifoner. Law of Evid. 145. Judge Raymond, 32. 2 Sid. 51. (2) The Attorney General then moved for Judgment; and Granted. The Queftion then arofe, whether, when there is a Judgment, and not an infamous Judgment,* it bars the Perfon on whom Judgment is paffed, from being a Witnefs. Attorney General - Mr. Kent cited as above. Ch. * It is the Crime and not the Punifhment that makes a Man infamous. Theory of Evid. 107, q.,v. (I) Rex v. Pourkfdorff & al., Rec. 1764, fol. 123. (2) Where it is decided that a conviftion without judgment thereon is not fufficient to difqualify a witnefs. Auguri Term 4 Geo. s. 105 Ch. yuft. When the Crime is fo great and of 1764. fuch a Nature (for Inftance the Crimen Fal/i in Law) REX as it is to be fuppofed that the Perfon guilty has URK loft all Senfe of Truth, and would not hefitate at violating his Oath, in fuch Cafe no Doubt not to be admitted, but even where the Judgment is infamous, (as that a Perfon ihall fit in the Pillory for writing a Libel,) yet if the Crime is not of fuch a Nature as the leaft to invalidate the Credit of the Witnefs's Oath, (as in the Cafe I mentioned, and that of the Witnefs now offered,) no Doubt they may be admitted. Attorney General. Theft is infamous. Kent. Petit Larceny is not. Attorney General. There is no Difference between grand and petit Larceny. Ch. yuft. Do you fuppofe, Mr. Attorney, every Perfon convited of petit Larceny at the Old Baily is ever after barred from being a Witnefs? Attorney General. I don't know. The Court unanimously held, No; (3) and ordered the (3) It feems to have been affumed that the conviction in this cafe was for petit larceny. But the only inditment againft a woman for larceny, on the record of this term, is againit Margaret Knodle, joined with Pourkfdorff on a former indi&ment for grand larceny, to which lhe pleaded guilty. In either cafe, however, the decifion appears unac. countable, in view of the well-known rules of the common law on this fubje&, at that time unaltered by ftatute. A conviation of felony de14 ftroyed 10o6 Auguft Term 4 Geo. 3. 1764. the Witnefs to be fworn, direting the Jury to give REx what Weight they pleafed to her Evidence. cv. This Evidence alone cleared Pourkfdorff, by fwearing ihe ftole the Goods herfelf. Prefent: Ch. Juftice, Judge Lynde, Cufhing & Oliver. BALLARD Ballard verf. McLean. "V. MCLEAN. Rec. 764. THIS was a Writ of Review. McLean was Fol. III. _ called, of Milton, but it was fully proved that Miftake in he did not belong to Milton. The Queftion was, the Addition whether, this being a Writ of Review, which iffues of Place will abate a Writ out of the Clerk's Office, it fhould abate. of Review. /Mr. ftroyed the competency of a witnefs. Co. Lit. 6 b. And petit larceny was felony, although it did not produce a forfeiture of land. See I Hawk. (ed. of 1795) c. 36, ~ 6. But the punishment for grand larceny (burning in the hand) reftored the competency of the witnefs (Com. Dig. Tefimoigne- Witnefs A 3), while that for petit larceny had no fuch effe6t, for which reafon it was fubfequently provided in England by 3i Geo. 3, c. 35, " That nc. perfon fhall be an incompetent witnefs by reafon of a conviction of petit larceny." Whether the diffindtion between grand and petit larceny was ever adopted or recognized in Maffachufetts - quere. In Commoncwealth v. Keith, 8 Met. 531, it was held that a conviCtion of larceny to the value of forty cents, before a juftice of the peace, was fufficient to exclude the witnefs. And there can be no doubt that any conviftion of larceny had this effeEt until all incompetency from crime was finally abolifhed by Sts. I85x, c. 233, ~ 97, & I852, c. 312, ~ 60. Common-'wealth v. Green, 17 Mafs. 515, 537. Commonwealth v. Keith, ub.fup. Auguft Term 4 Geo. 9. 107 Mr. Dana, in Support of the Writ, urged that the 1764. three Years (the Time limited by Law for bringing BALLARD a Writ of Review) would expire before they could M. bring another Writ; and faid further that the Defendant was late of Milton, and was called in the original Writ, of Milton, which caufed the Miftake; and faid it would be a great Hardfhip upon the Plaintiff, when it was no Fault of his, for the Writ iffued out of the Clerk's Office, that he fhould be precluded from bringing his Review. Cited 2 Strange, 924, CortJfos vs. Munoz. Mr. Thacher, contra. Had he been named nuper, it might have done, but the Plaintiff has declared with Certainty. As to Writs of Review, they always have been and are fubjedt to the fame Rules with other Writs; and the Cuftom has ever been in this Court to ihow Writs of Review no more Favour than to other Writs. YufJiices Lynde, Cuyhing ~4 Oliver for abating it. (1) Ch. JuJlice. Abftradted from the Cuftom, I fee no Reafon why it fhould abate. (I) Where a writ of review was improvidently iffued, without notice to the oppofite party, the Court ordered a hearing, but refufed to quaih the writ, becaufe, the three years having elapfed, the plaintiff would thereby lofe his right to bring another petition. Clap v. Yo/lyn, x Mafs. 133. And in Brewer v. Sibley, 13 Met. I77, it is intimated that in cafe of review " it would be reafonable to reftridt the defence to the merits." o108 Augurt Term 4 Geo. s. 1764. Prefent: Ch. Juffice, Jufftice Cufhing & Juffice Oliver. BROMFIELD.BROMFIED Bromfield verf. Little. LITTLE. Rec. 1764. N this A&ion was a general Indebitatus AfJumpFol. 98. fit on Account annexed. One Article was a thaeemss Charge of Intereit. that there is no Cuftom of Merchants intry The Council for the Plaintiff urged, that it was of charging a Cuftom of Merchants here to charge Intereft after Interet after a Year on the a Year: (Several Merchants were fworn on this PrGods old, Head, but they did not agree about the Time, neiwhich will ther whether they did or did not firft inform the raife an implied Con- Debtor.) The Juftnefs of the Charge was argued thra to pay from the Charge of Intereft after a Year, at Home. In Behalf of Defendant,'twas laid, there was no fuch Cuftom here at all; yet if it could be faid there was a Cuftom here to charge after Notice either at or after Sale, certainly not before Notice. lufl. Oliver. Whether this is a reafonable Cuftom muff firft be confidered. I think it is. I think, too, it appears to be a Cuftom. yufl. Cu/hing. This Cafe is very different from what it is at Home;'tis there the univerfal Ufage, which makes it the Suppofition of every Party at firif; and, as a Perfon purchafing Goods without any fpecial Promife is fuppofed to promife the Payment Augurt Term 4 Geo. s. log ment of the Cuflomary Price, fo he is fuppofed to 1764. engage to pay the cuitomary Allowance for For- BROMIELD bearance; but here, however reafonable it may be, it is yet otherwife, nor is it implied in the Contra. LITTLE. Ch. uftZice. This Cafe is of much Importance to the Community.'Tis agreeable to natural Equity that Intereft fhould be allowed; and I am glad it is growing into a Cuftom; but the Rule is that both Parties ought at the Time of contra&ting to underftand it fo, and I doubt whether it is fo general as that it can be fuppofed in this Cafe. The yury did not allow Intereft. N. B. The Superiour Court now altered, and the Sitting, inflead of being the third Tuefday of February and third Tuefday of Auguit, is the fecond Tuefday in March and laft Tuefday in Auguft. March 12, A. D. 1765. (1) (I) Prov. St. 5 G. 3, c. 6, Mafs. Perpet. Laws, 481. March Term V Geo. Ter. in Sup. Cur. &c. Prefent: The Honourable Ch. Juft., Lynde, & Cufhing. 1765. CHARGHE The Charge to the Grand Jury by Ch. Juirice. GRAND JURY. T!~O relieve the Oppreffed, to guard the Innocent, to preferve the Order of Society, and the Dignity of Government is a noble Principle of the Mind. This is the Duty of every Individual of the Community, but is more particularly incumbent, Gentlemen, upon you, as the Grand Inqueft for this County. Our Bufinefs, Gentlemen, at this Time, is to diftribute Juftice, and to punilh all Crimes and Offences. It is this latter Part of our Duty that you, Gentlemen, are to aflift us in; to point out and bring forward all Crimes and Offences againft the Tranquillity and Order of Society which fhall by any Means come to your Knowledge. But before I enter upon the particular Branch of your Duty, I Ihall obferve, that it is a very common March Term 5 Geo. 3. 111 mon Thing in England to prefent Offences, when 1765. there is no Offender known, for wherever there is CHARGE the one, there is always the other. Whenever there TO THE GRAND JURY. are any notorious Offences, as I obferved before, in England, they always prefent them. I remember in particular (if it may be called an Offence) that at Middlefex, the Jury prefented, that there was unneceffary Multiplication of licenfed Houfes, which tended greatly to the Deftru&tion of the Health and Morals of the People. I do not mention this as the Cafe here, but only by Way of Example, to Chow, that wherever you find any notable Things done that are detrimental, or any Things negle&ted which ought efpecially to be done that are beneficial to Society, you have, Gentlemen, a difcretionary Power to prefent them. I would have you, Gentlemen, to enquire into the State of our Goal, for it has been reprefented, and I believe it but too true, that it is a moft ihocking, loathforne Place. For my own Part, when I have been obliged by the Nature of my Office to commit any of my Fellow Creatures, I could not help feeling for them, when I thought where I was fending them — a dark, damp, and peftilential Room - to fuch a Place to fend our Fellow Creatures mulf caufe the moft tender and exquifite Senfations to Men of the leaft Senfibility or Humanity. I do not think there is fuch a Place for the Reception of Prifoners anywhere in the King's Dominions. I do not fay this by Way of Refledion on the Gentlemen who have the proper Care of our Goal, nor upon the Sheriff* of this County, the Keeper * Mr. Greenleaf. 112 March Term 5 Geo. 3. 1765. Keeper of our Prifon, who I know to be a Man of CHARGE great Tendernefs: But from whatever Caufe, GenTO THE tlemen, it arifes, whether from Negled or a MifunGRAND JURY. derftanding among the Gentlemen whofe Province it is to look after it, or any Caufe whatever,'tis your Duty to give your particular Attention to it. I remember, Gentlemen, a Cafe in fome late Reports, of a Sheriff committing a Man to a new plaiftered, wet and unwholefome Room, by which he was put into violent Fever and died; the Sheriff on this was committed, tried and hanged. (i) Our Goal is not intended as a Punifhment, it is only to keep Offenders for Trial, or after Trial till Sentence is fulfilled. Every Man in the Eye of the Law is prefumed innocent till proved guilty. How prepofterous then, Gentlemen, is it to commit a Man to a Place, who whether innocent or not muff run the Hazard of his Life -a Place which will bring a Man of the beff Conftitution in Danger of his Life; how long then will a Perfon of a weakly Conftitution furvive? I mufft, Gentlemen, repeat it again, this demands your peculiar Attention, and the Attorney General will give any DireCtions you may want. A Government always thinks itfelf happy when the Grand Jury can find no Offenders to prefent. This (I),uxere, whether the Chief Juftice had not in his mind the cafe Rex v. Huggins, 2 Stra. 882; Ld. Raym. 1574, where the warden of the Fleet Prifon was indicted for the murder of a prifoner by confining him in a "new-built room, the walls being damp and unwholefome." The offence was held to be murder, but the prifoner was acquitted on the ground that it was the aC of a deputy. A feries of fimilar cafes is reported in 9 Howell's State Trials, 146-234, but neither of them refulted in a convidtion. March Term 5 Geo. s. 113 This is not our Cafe. There has been a moft fcan- 1765. dalous and notorious Riot, not only againft Com- CHARGE mon Law, Natural Law, that is, the Law which TO THE every Man has implanted in him, but diredtly J againft a Law of this Province; (2) nay the Offenders had Notice of the very Law, and warned againft a Violation of it; and I queftion whether there is any Law of this Province more univerfally known than this. For your Direction, Gentlemen - Riots, Routs, and unlawful Affemblies are where there are any Number not lefs than three, where they come with an Intent to commit fome unlawful Act- if they take not one Step they ought to be punifhed for this Intent; if they move forward, it is a Rout; if they commit any one A&t, it is a Riot; every Man ought to ufe his utmoft Endeavour for the Suppreffion of fuch Scandalous Breaches of the Public Peace; and I am informed that the Magiftrates and others of this Town did their utmoft to prevent that Infult upon Government in this notorious Riot, but it feems all proved ineffe&tual —You cannot be infenfible that I have Reference to that lawlefs Mob who affembled on the 5th of laft November, (3) moft atrocioufly broke the Peace, put every (2) Anc. Chart. 595. This ftatute was for the fuppreffion of diforders caufed by " tumultuous companies carrying about with them pageants and other ihews through the Gtreets and lanes of the town of Boiton." See note (3) infra. (3) The anniverfary of the Gunpowder Plot, known as " Pope Day," had been for many years the occafion of an annual riot between the "north-enders" and " fouth-enders" in the town of Bofton. Each of there rival faEtions celebrated the day by a proceffion carrying the effigies of the Pope, the Devil and the Pretender upon a platform, under which fmall boys, by means of rods conne&ed with the figures, caufed them to rife up and look into chamber windows as they paffed. IS The 114 March Term'5 Geo. s. 1765. every Member of this Town in Confufion, and many CHARGE in the utmoft Hazard of their Lives; and I would TO THE mention for the Benefit of all prefent, as they are a GRAND JURY. pretty large Concourfe of People, that Perfons in general do not know what a Danger they run, in mixing in fuch a Mob; if there had been any Perfon killed, every Man there would have been liable to be tried for his Life, and by a rigorous Conftruation of the Law, might have loft it: It would have lain upon every Perfon to have proved how he came there and what was his Bufinefs; and every Perfon who could have been proved to have been aiding before the Faa, encouraging and affifting after it was begun, and ad&ually doing, or protefting and fcreening after it was committed, muft have come to his Trial, and for aught I fee mufft have been convi&ed; for there are no Acceffories in Murder; all are Principals. There is another Offence-you have feen it in the public Prints - of Robbery on the HighwayMoney The houfeholders were called upon for contributions for the celebration under the penalty of broken windows; and the two proceffions, after parading the town, met in Union Street, where they fought for the figures, which were afterwards burnt, either on Copps' Hill or the Common, according as vi&tory remained with the north or fouth end. See Drake's Hiftory of Bofton, p. 66I. Before the next anniverfary in 1765, the general indignation occafioned by the Stamp A& had caufed a reconciliation to be effeAed, and both parties joined in the efcort of a " Union Pope," together with feveral additional figures reprefenting Tyranny, Oppreffion, Slavery, &c. Mafs. Gazette, Nov. 7, I765; Bofton Evening Poft, Nov. ii, 1765. The description of this celebration which appeared in both the above papers, concludes as follows - " This Union and one other more extenfive may be looked upon as the (perhaps the only) happy effeas arifing from the S-p A-t." March Term 5 Geo. s. 115 Money demanded and a&ually taken; an Offence 1765. very heinous in its Nature, and very rare in this CHARGE Country, and I hope it will be univerfally dif- TOATHE couraged; and I queftion whether it is univerfally known, that by a late Law of this Province, it is Death to commit a Robbery on the Highway. Another Offence -I take Notice of it with Pleafure - that was formerly very common, but has not of late been heard of among us - I mean the Forgery and Counterfeiting our Public Bills of Credit: The Rigour of the Law, the Severity with which this Court has adjudged in feveral fignal Inftances, their full Determination to perfevere with the fame Rigour in all fimilar Cafes has happily been the Caufe of its Suppreffion. Yet there is another Kind of Forgery, very pernicious to the Commonwealth, which will come before you; the Forgery of Notes of Hand: You perceive, Gentlemen, what Confufion fuch a Pra6tice muff introduce, how wicked a Crime this is in its Nature, and how deftru&tive its Confequences; on this Head I need fay no more. I will take up no more of your Time, Gentlemen. I will fpare you, the Court and the Audience; only obferving further that all Offences, from Murder, the higheft of all Felonies, down to fimple Felony, are fubje& to your Inquiry; yet though you fhould be fatisfied that there have been a Number of thefe leffer Offences committed, as thefe come more immediately under the Cognizance of the lower Courts, you may omit taking Notice of fuch Mifdemeanors, 16 March Term 5 Geo. 3. 1765. Mifdemeanors, unlefs you fhould think there has CHARGE been any grofs Negled in the Courts of Inferiour TO THE Jurifdi&tion. GRAND'JURY. But before I leave you, Gentlemen, I would obferve one Word more relative to your Duty. In the Petty Jury, Gentlemen, you are fenfible that all muft agree in the Verdit; but to every Indi6tment the Agreement of twelve only is fufficient. One other Point there remains, Gentlemen, for you to obferve, and that is, you are to keep your own and the King's Council; this, Juries in general, difregarding their Oaths, do not, itrictly enough, obfervenay, I myfelf have often heard that the Jury had found a Bill, long before it was publilhed in Court. But, Gentlemen, even after that, you are not liberated from your Oaths - you are to keep the Names of the Informers, and Everything elfe that comes before you'in your prefent Capacity, fecret; and unlefs this is done how will Offenders ever be brought to Juftice? An Informer comes, purely for the public Good, to reveal fome grofs Abufe of the Laws, and hoping he may do fome Good, yet unwilling that he fhould be known to be the Perfon. Soon after it is blazed abroad that he was the Informer, and every Circumftance aggravated to make him odious; will he ever again hazard his Reputation - nay, even his Property? will not this deter many good Men from doing eminent Services to the Public? In Confequence of which many heinous Crimes will go unpuniffied, many wholefome Laws will be broken with Impunity. (4) And (4) See John Adams's Diary, under the date of the following December. March Term 5 Geo. s. 117 And finally, Gentlemen, I would obferve, that 1765. though it may give you great Uneafinefs to bring CHARGE Offenders to Punilihment, yet this, Gentlemen, fhould TO THE not prevent the Performance of what is incumbent J on you as the Grand Inqueft.'Tis the Good of the Whole demands it; and that Self-Approbation which always attends a Confcioufnefs of having discharged our Duty will ever be an ample Recompenfe. I Ihall add no more; but only pray that Infinite Wifdom may diret you, and that the Supreme Fountain of all Goodnefs may affift you in the Profecution. Present: A full Court. WHITNEY'V. Whitney verf. Whitney. WHITNEY. Rec. 1765. A SSUMPSIT on a Note. Note offered in Fol. I36. Evidence to the Jury. In a Declaration on a Note by the JlIr. Adams (objected.) The Word Order is Payee, the Omiffion of omitted; we take it to be an effential Variance. "Order" is There is not a greater Difference between a Bond an immaterial and Aliter, in a Declaration by an Indorcember. " Who has made it his conftant endeavour to difcountenance the odium in which informers are held? Who has taken occafion in fine-fpun, fpick and fpan, fpruce, nice, pretty, eafy, warbling declamations to Grand InquefRs, to render the charaaers of informers honourable and refpe&able?" 2 John Adams's Works, x69. ii8 March Term 5 Geo. S. 1765. and a Note, than between a Note negotiable, and WHITNEY not. Such kind of Variances are fatal. Vid. WHITNEY. Fitzgib. 131, Baynham's Cafe; Law of Evid. 191. Mr. Auchmuty. The Note is, to pay Plaintiff Order: The or is left out. Where a Note is nonfenfical we are not obliged to follow it. There can be no Doubt but whether this is Evidence to a Jury or not. In Favour of Juftice doubtless it is. As to the Authorities the Gentleman cites "a Note of a different Date," is a much ftronger Cafe, for that is a totally different Note. Cites Trials per Pais. 399. The Court ruled, that the Note ihould go in as Evidence, on another Point.* That, as the Note had not been indorfed, the Omiffion of Order was immaterial - otherwife had it been indorfed. (1) Ch. NufJ. did not give his Opinion. * Vid. the Cafe, Ru11ell t Oakes. (2) (i) S. P. Fay v. Goulding, xo Pick. xI22-" Per Curiam. As the aftion is brought by the payee this is not a material variance. If the plaintiff were an indorfee it would have been neceffary to allege that the note was payable to the payee or his order." (2) Ante, p. 5o, where it is faid by Rufell J. that there is no difference between notes negotiable and not, until the indorfement. March Term 5 Geo. s. 119 1765. Banifter verf Henderfon. BANISTER TV. HENDERSON. Mefrs. Dana q Gridley, for Banzfter. Rec. I766 Mefrs. Auchmuty q Otis, (1) for Henderfon. Fol. 8o. Special Verdif. Cohabitation and univerfal Report r~HOMAS BANISTER, Grandfather of the are fufficient'1 prefent Demandant, made his Will the 25 Evidence of a Marriage January, Anno 1708-9, and after divers Legacies to eftablish the Legitifollows: macy of the Demandant in a Real "Item, after my juft Debts and Funeral Charges Action. Devife as "are paid, I give all my Houfes, Warehoufes, follows: "I "Lands, Mortgages, Bills, Bonds, Money, Plate, give allmy "Debts, Wares, Merchandizes, both at Sea and Warehoufes, "Land, as alfo all Books, Bedding, Houfehold gagends, Mort " Stuff, Horfes, Cattle, and all that of Right any ey, Merchandire," &c. &c. "Ways belongs and appertains to me, whether "and all that "named or not named, to my three Sons, Thomas, of Right any "Samuel and John, to be equally divided among and appertains to me,"'"them in three equal Shares or Proportions, after " to my three " my Sons, T., S., "my and J., to be equally di(x) James Otis's will, made many years after, during the unfortunate them in three condition of mental derangement in which his life ended, commences equal Shares as follows: "In the name of God, Amen. - I, James Otis, being in no or Propormanner of fear of Death, though called by fome the King of Terrors, tions, after and by old Bannifter in his will, a fergeant- " Tudor's Life of my Debts, Otis, p. 483. And in the will of Thomas Banifter, the teftator in this FuLegacies, andEx cafe, of which a copy is on file, appears the following:- " When penfes are Thou Jehovah {hall fend Thy inexorable ferjeant Death to arreft this paid; and if body, and carry it to that dark prifon of the grave," &c. either of my three Sons --- " Had I but time, (as this fell fergeant, Death die without Is ftri&C in his arreft,)" Heirs lawfulHAMLET, At V., Sc. a ly begotten 120 March Term 5 Geo. 3. 1765. "my Debts, Legacies and Funeral Charges are paid, BANISTER "and if either of my three Sons die without Hefrs HENRSN. "lawfully begotten in Wedlock, I will their Share or HENDERSON. "Proportion to the surviving Sons or Son and their in Wedlock, "Heirs forever. And the Reafon why I make my I will their Share or Pro- "eldeft Son Thomas but equal with his Brothers portion to the ", Samuel and John, is for there Reafons; firif, he furviving Sons or Son "hath had a confiderable Share already, Secondly, aHeirsthe fior- "I have given his Son 500oo if the Lord fpare his ever." Alfo " Life - I need add no more Reafons, but this - a Legacy of 500oo previ- " they are all equally dear to me." oufly given to a Daughter was in a cer- Afterwards: " I will to my beloved Wife Sarah tain Event A' to be paid " Banifter, said Pew for her Life, to order who fhall to my three "fit with her in it, and untill my Grandfon Thomas Sons or their Heirs, to be "Banifter is of Age of twenty-one Years, if he livvideually diong "eth to have Male Heirs, I give it to him and to them as I "his Male Heirs lawfully begotten in Wedlock forever, have willed the reft of my "both Proprietorfiip and Pew, but if he dieth diEftate to be "without Male Heirs, I give it to the next Male divided among them "Heirs, and to defcend to the next Male Heirs, withor the Survivors of "out any Alienation forever." (2) them." Held, In that the Brothers took an equal Tenancy in Com- (2) The fpecial verdiEt further found that the three brothers entered in the Real in the Real under the provifions of the will aforelaid, that Samuel and John (who Eftate, de- foon after died without iffue) made a letter of attorney to Thomas, who terminable on conveyed the premifes to Giles Dyer, who reconveyed to Thomas, who either's dying conveyed again to Dyer one moiety of the premifes. Thomas died, without Iffue in thoue Life of leaving the demandant his fon and other children. Dyer then made a fome other deed of the whole of the premifes to Samuel, who afterwards, together Son, and an with Frances, the widow of Thomas and mother of demandant, conexecutory veyed the premifes to Peter Luce, who conveyed to John Henderfon, Devife over father of the tenant, after which Samuel died without iffue. If the deof fuch De- mandant was entitled to recover, the jury found for him poffeffion of the Share to the whole, or one moiety, or any leffer part to which the Court decided Survivor or that he was entitled. " But if he be intitled to no part thereof," then for March Term 5 Geo. s. 121 In fettling the special Verdi&t, there were three 4 5. Points the Parties could not agree on. One was, whether the prefent Demandant was legitimate; V. or, in other Words, whether Thomas and Frances Banifter, Father and Mother of the Demandant, Survivors. were legally married. Hutchinfon, Olinver, J., di/T Thomas and Frances Banifler came over from If an Eftate England, and lived as Man and Wife, both in Old Tail with and New England. mainders, whether Conveyances by Mr. Auchmuty, again the Legitimacy of thle De- the Brothers mandant. Had it been perfonal Eftate, no Doubt eral Warrancommon Report might have done to prove the bind theldnt Marriage, but here is a great Real Eftate to be IfRue, qurhe? determined — hall common Fame be relied on in Province Charter no this Cafe. (3) No Certificate of the Marriage, the Appeal lies to higheft, the only legal Evidence. Had it been in the King in Council, in a a new Country where Records are not kept, there Real Aftion. might have been fome faint Colour for not producing a Certificate, but in England there Records are moft ftri6tly kept; for they know it is the only Evidence that will ferve; the only Proof' of the Legality of Marriage. Mr. for the tenant colts. That part of the cafe between the ftatement of the devife and Mr. Dana's argument is reported in the MS. as of the previous term, after the cafe, Rex v. Pourkfdorff. For convenience the cafe is printed as a whole. (3) See Means v. Welles, I Met. 36, Hubbard, J.-" It was argued that mere cohabitation was not a fpecies of evidence fufficient to fuilain a writ of right. But we are aware of no diftinction as to the amount of proof neceffary to eftablifh a marriage in any one cafe more than another, where marriage is a faAt to be proved in order to fuftain an a6tion." x6 122 March Term 5 Geo. 3. 1765. Mr. Gridley. In Striftnefs of Law they ought BANISTER to produce a Copy, and not a Certificate, though H N. generally allowed. It has been faid that a Certificate is the higheft Evidence; but I fay the Perfons prefent at the Marriage is Evidence higher in its Nature -for how will that ever prove the Identity of the Perfons?. Cohabitation and univerfal Report have always been deemed fufficient Evidence, and I never in the Courfe of my Practice heard it denied before. Ch. uflt. Have you no Authorities, Gentlemen? Mr. Gridley. There is no Authority that the Sun fhines. 1uchmuty. But there is Evidence. Ch. Jufl. How do Quakers ever prove Marriage except by Report. Mr. Auchmuty answered, Favour was Ihown them. Mr. Gridley. There lhall be no baffardizing Iffue after Death, is a Maxim of the Law. Auchmuty. A Baftard can't be Heir till Death, and after Death Baftardy can't be proved.* 7ufl. Ruffell only inftanced in Quakers. JuZf. Lynde. I can't think a Certificate alone is Evidence, or the belt- that is greater which Mr. Gridley * 9,u. if Cases in Time of Holt, 287, would not have been pertinent. March Term 5 Geo. 3. 123 Gridley mentioned. Perfons prefent at the Mar- 1765. -riage can only prove the identical Perfons. (4) BANISTER Univerfal Report is, in my Opinion, fufficient Evi- H O dence, corroborated with other Circumftances, of the Marriage. Ch. Iufl. From Thomas and Frances Banifter living in Old and New England as Man and Wife, I think it may well be inferred they were fo. (5) I am forry for Want of Authorities, and that this Point was not left to the Court as well as the Reft; for it is not properly a Matter of Fat. The fecond Point (Matter of a Perfon's Death) was proved to Satisfa&ion. The third, whether there was an a&ual Entry into the demanded Premifes was given (in Effe&t) up; for a Devife vefts the Eftate immediately in the Donee; it does not mean an aftual Seizin in Law, but Right to Seizin. The Jury found the two Points in Favour of the Demandant. N. B. The next morning Ch. Ytufl. produced the following Authority from Burn's Ecclefiaft. Law, vol. 2d, p. 36. (6) Tit. Marriage: " The Proof "of (4) S. P. Commonwealth v. Norcrofs, 9 Mafs. 492. Ellis v. Ellis, iI Mafs. 92. (5) S. P. Newoburyport v. Boothbay, 9 Mafs. 414. Means v. Wlelles, 12 Met. 36. Aliter in criminal proceedings before St. 1841, c. 20. Commonswealth v. Littlejohn, I5 Mafs. x63. (6) Burn's Eccl. Law, Marriage, X. 5. 124 March Term 5 Geo. 3. 1765. "of Marriage may be by Witneffes who were prefBANISTER "ent at the Solemnization; by Cohabitation of the VO. ( "Parties; by publick Fame and Report; by ConH. feffion of the married Perfons themfelves, although "their Acknowledgment might be only to avoid the "Puniffiment of Fornication, and by divers other "Circumftances which, if they amount to a half "Proof, ought to be extended in Favour of Marri"age, rather than contrary to it. Wood, Civ. Law, " 122." Mr. Dana. The Demandant Banifter demands by Force of the Will before me; his Pedigree is fet forth in the fpecial Verdict. I need not obferve that the Intent of Teftator is to be the fole Director for Conftrution of the Words, unlefs a new Eftate is created contrary to Law. Now from the whole Tenor of the Will the Teftator's fole Aim appears to be the keeping his Eftate in his Family; and this Intention of his is the general Key to the Underftanding the Will, and, if attended to, will thow in the cleareft Manner he defigned an Eftate Tail. He gives his Eftate "to his three Sons Thomas, Samuel and John, and if either of my three Sons &c., to the furviving SONS OR SON;" Samuel, (I can't imagine how he came to take it in his Head) fuppofing he had a Fee, conveys away this Eftate; but if this is an Eftate Tail, it wipes away all Conveyances whatfoever; for Eftates Tail are inalienable, except by Fine and Recovery, and that reduces it to Fee Simple. I am fenfible when a Man gives all his Eftate without any otherwife exprefling his Intent, a Fee paffies. March Term 5 Geo. 3. 125 paffes.* 1 Salk. 239, Hopewell vs. Ackland. If the 1765. Teftator had faid no more than "I give all my BANISTER Houfes," &c., they would have had a Fee; but his RSN. Intent through the whole Will being not only to take Care of his Sons, but their Pofterity — and though he gives all " to his three Sons Thomas, Samuel and John, to be equally divided among them, in three equal Shares or Proportions," yet he afterwards explains himfelf —"If either die without Heirs," and he then explains what Heirs, "Heirs lawfully begotten in Wedlock," then goes on -" I will their Share or Proportion to the furviving Sons or SON; " and though the Words following, " their Heirs forever," are not aptly expreffed, yet they ihall not vitiate, for his Meaning is evident from all the Words taken together, and his Intent ihall take Effet.t Cites 1 Salk. 226, 227, BlzhJet vs. Cranwell, and 2 Vent. 285. As to his willing " all to his three Sons to be equally divided among them," there are numberlefs Authorities where the firft Words give a Fee, by giving Lands to a Man and his Heirs forever, yet the after Words, explaining what Heirs he meant, make it a Tail. NAottingham vs. Jennings, 1 Salk. 233, as in our Cafe. Soulle vs. Gerrard, 1 Cro. 525. The after Exprefflions fhew he meant Heirs lawfully begotten in Wedlock, and created a Tail: So in the Cafe laft cited, the firft Words ihall be fet afide, becaufe contrary to his Intent. But full to * Vide 3 Mod. 45, Reedves v. Winnington. t.u. whether 8 Rep. 95 b, would not have been a good Authority to this Point. 126 March Term 5 Geo. s. 1765. to our Point is the Cafe of Chadock vs. Cowley, 2 BANISTER Cro. 695. HereHENDERSON. Mr. Otis. Are you not fenfible, Sir, Lord Holt denies that Cafe to be Law? * Mr. Dana. No: But if he does, he is not infallible: But the Authorities mentioned are fufficient. Cites 3 Lev. 70, Parker vs. Thacker, and 2 Cro. 415, WYebb vs. Hearing — a Cafe in Point. It appears by all there Authorities, una voce, that Devifors' Intent fhall govern, the Intent ihall be colle&ed from all the Words together; and though the fame Words give a Fee, yet if other Words explain what Heirs he means, vizt " Heirs of the Body," or "Heirs lawfully begotten in Wedlock," it fhall make a Tail; and in our Cafe it is a Tail with a Limitation over to "either of the Sons or SON," which the Law calls Crofs Remainders. The Intent of our Grandfather was fo fixed to keep his Eftate in his Family, and to make a Tail, that he extends it even to Perfonal Eftate, in which he is "againff the Rules of Law," therefore we don't demand it; t but his Intent in this is ifrongly marked. "To the furviving Sons or SON." The Iffue take, as much as if' their Father had furvived. Authorities to fupport the Crofs Remainders. T. Jones, * -u. if Mr. Otis was not miftaken, and that he blended it with the Cafe of Hearn v. Allen, 3 Croke, 57, which Ld. Holt feems to doubt of in the Cafe of Nottingham v. Jennings, x Ld. Raym. 570? and qu. if that Doubt of Lord Holt does not make againfi Mr. Otis? t -Uy. if the Cafe Nottingham vs. Jennings, I Ld. Raym. 570, would not be in Favour of the Demandant. March Term 5 Geo. 3. 127 T. Jones, 172, Holmes vs. Meynel. Thomas Ray- 1765. mond, 452. This laft Cafe is full in Point. "As for BANISTER Authorities, you cannot expe& many in a Will; HENRSN. every Will flands upon its own Legs." Pollexfen, 425. (This Cafe enlarged upon, therefore look into it more efpecially.) Crofs Remainders may be by Implication. Dyer, 303, Tit. Devife. T. Jones, 172. Ch. Dufl. But it muff be exprefs Implication. Is this fo? Dana. Yes. Vid. Dyer, 303. (This Authority much relied on.) Gr;dley. Dyer, Saunders, &c.; four of them of the fame Opinion, that Crofs Remainders may be between three. 1 Vent. 224, Cole vs. Levingifon. By the whole Current of the Authorities, Crofs Remainders may be between three; our Cafe is much clearer than is common in thefe Cafes "To the furviving Sons or SON." Ch. yufi. "And their Heirs forever." Dana. I take it fo: And he has ihown what Heirs he meant; "Heirs lawfully begotten in J4ledlock. The Expreffion "If either die," is an Anfwer to your Honour. Ch..7ufi. Did the Teftator intend a Tail to all of his Sons? Gridley. 128 March Term 5 Geo. 3. 1765. Gridley. They took Tails with Crofs Remainders BANISTER over. eV. Dana. On the Whole, the Teftator's fole Intent plainly appears to intail his Eftate; his Words aptly enough exprefs his Intent; and, as it is confiftent with the Rules of Law, it is the Bufinefs of the Law to fulfill that Intent. Mr. Auchmuty. This is a Cafe of great Expetation and great Importance. We differ very much and very materially. In order to elucidate any Point in a Will, the other Parts conne&ted with and referred to it muft all be confidered. Mr. Dana fays the Conveyances will not hurt, but will all be "wiped away" if this is an Eftate Tail: I fay not. Ch. 7yuf. What do you fuppofe can bar an Eftate Tail Au.chmuty. Conveyances with collateral Warranty. Gridley. Abolifhed long ago by Ad of Parliament. Auchmuty. But firft to the Tail. He has expreffly given Money to go over as the other Eftate: "My Will is that faid Legacy of 500oo be equally "divided among my three Sons, Thomas, Samuel and " John, with the Reft of my Eftate as hereafter is men"tioned." And afterwards, if certain Things happen, "then I will the lafJ mentioned -Sum of 500o "Jhall March Term 5 Geo. $. 129'JCall at her Death be paid back again to my 3 Sons 1765. "or their Heirs, to be equally divided among them, as I BANISTER "have willed the Re.f of my Eftate to be divided among H. "them or the Survivors of them." Can his Intent * be fuppofed a Tail, when he devifes Monies to go as his other Eftate? He very expreffly intails his Pew, very trifling in its Nature, in the ftrongeft Terms, which ihews he was not ignorant of apt Words to make a Tail. But to the Dotrine of Implication which the Gentlemen infift on. The Expreflions to make a Tail muff be ftrong and coercive. 2 Bac. 66. " No "- Words ihall be conftrued to make a Tail without "plain Implication." The Courts will never extend Implications, againfi Eftates Fee, the noblefi Eftates, to Fee Tail, Eftates of a much bafer Nature. Wild's Cafe, 6 Coke, 16 b. To make Eftates Tail "the "Intent ought to be manifefi and certain, not ob"fcure and doubtfull." In the fame Cafe: " The In" tent, and not the Words only of the Devifor, ought "to make it an Eftate Tail, then this Intent ought "to be manifeff and certain, and fo expreffied in the " Will;" and in our Cafe, as in Wild's, no fuch Intent appears.- They have cited no Authorities, but where the Implication has been fo firong that there was no avoiding the Conftruftion. Cro. Car. 368, Spirt vs. Bence. In this Cafe, where the Intent is not very clear, the Court will not conftrue againfi the Common Law. I remember in Croke, Walmfley faid, Implication mufl be very ftrong to difinherit other * 9,u. Might not this be Evidence of his firong Intent, as Mr. Dana hinted? i7 130 March Term 5 Geo. 3. 1765. other Children, and to carry the Intent againit the BANISTER Rules of Defcent. It is faid alfo in 3d Mod., the CU. Court will not puzzle themfelves about the Intent of a Man who was perhaps lick and confuted in his Senfes at the Time of making the Will, but let it defcend according to Law. 3 Mod. 104, Hanchet vs. Thelwal. — " No Reafon can be given why this Court "fhould not conftrue Wills according to the Rules "of the Common Law, where an Eftate by Implica"tion is fo uncertain; for when Men are fick, yet "have a difpofing Power left, they ufually write "Nonfenfe, and the Judges muff rack their Brains "to find out what is intended." You are fenfible when there are pecuniary Legacies to pay, prima facie a Fee. What an Eftate foever they took, they had it charged with " Funeral Charges, Debts and Legacies," &c., many of which were very large. Thefe and many other Things to be paid, no Perfonal Efltate appears to be left wherewith to difcharge them-none found in the Verdid; thus by Reafon of thefe Charges, it converts the Eftate into a Fee. 1 Lilly, 451, 2. To the fame Point is 3 Rep. 21, BoraJion's Cafe. Ch. 7uftice. The Books vary in that Point. Auchmuty. Where there is a Sum in Grofs, that creates a Fee, but where a Sum is to be paid out of the Annual Profits, that do'n't alter; that I take to be the Rule.* Your Honours remember the Cafe * @-. if any Eftate but an Eftate for Life can be enlarged by any Charge. For it is Law that " no Eftate ihall pafs by Implication of Law March Term 5 Geo. 3. 131 Cafe Elwell y Pierfon, (7) and the Cafe of Dudley 1765. vs. Dudley. (8) This Point (of Charge) had great BANISTER Weight, and juffly, in thofe Cafes. HENDERSON. The Words on which the Crofs Remainders are founded are Fee Simple; for it is, in Cafe of Death and no Iffue, to the Survivor and "their Heirs forever." Had Banifter the Grandfather intended a Tail, would he have ufed thefe Words, -efpecially when he fo well knew the Words of Tail, as in the Cafe of the Pew? Ch. yufl. "Heirs lawfully begotten in Wedlock "-is that Tail or Fee?.Auchmuty. A Fee; for if a Man will depart from the Rules of Law, his Eftate Ihall go according to the Rules of Defcent. But if there is any Doubt in this Cafe, it is at End: It is clearly then with us, both by the Principles of Law and Equity. 1 Lilly, 454. No Intent fhall go againit the exprefs Words of the Devifor; at this Rate from a Paffage or two inadvertently written, fhall go againft the general Tenor and plain Words of a Will. 2 Bac. 68. To conifrue the Intent againft the Words is directly againft all the Books. The Courts have always detefted Crofs Remainders among more than two; I Law againft the exprefs Limitation of the Party, altho' the Limitation is void." 2 Rep. 55 b, and fo adjudged in the Cafe of Hog vs. Crofe, Cro. Eliz. 254. Ideo - -y. whether the Cafe of Elwell (cited above) was not adjudged againft Law. (7) Ante, p. 42. (8) Ante, p. I2. 132 March Term 5 Geo. s. 1765. I would obferve upon Raym'd that the Cafes are BANISTER different. In order to induce the Court to thefe Vv. Crofs Remainders, Mr. Dana has obferved that the Devifor's whole Intention was to keep his Effate in the Family. This is Implication upon Implication which no Lawyer ever heard of. This Intent is got by Implication, and Crofs Remainders are built on that Implication: But the moft natural Implication is, that he never intended a Tail at all. According to thefe Gentlemen's Way, you may add Implication on Implication in Infinitum, and we fhall have no fettled Rules of Law to go by. In all their Authorities, the Devife was only to two, with Crofs Remainders over, but the Cafe they would extend it to, is among three; and the Reafon is given —it is to avoid Confufion by fplitting Eftates into a thoufand Parts, and to keep Peace among Men, from difputing about fo many confufed Crofs Remainders: Befides, the Remainders cited in the Books are not founded upon Implication, but upon Certainty. Mr. Dana has faid, there may be Words which import a Fee, changed into a Tail by after Words. Agreed; but no fuch Words here-nay, the after Words are, " their Heirs forever," a plain Fee. They can't produce a fingle Authority where the firft Words controul the laft; here the laft Words are Fee. If any Parts clafh, I can't help that; if a Tefcator will devife in fuch a Manner that there is no telling what Eftate paffes, it muff pafs according to Law. " Where a certain Intent may be colle&ed, it fhall be " conftrued according to that Intent, but where it is "uncertain, it is void. The Intent of the Devifor "muff be collected upon plain Words, and not "upon Words which engender Confufion." And Walmfley March Term 5 Geo. s. 133 Walmfley faid, " It is a good Way when the Words 1765. "in a Will are ambiguous, fo as the Intent may not BANISTER "be colle&ed, to expound the Will according to HENRSN. "the Law." Cro. Eliz. 742, Taylor 4k Ux. vs. Sayer. Is not the Intent here, at beft, uncertain? Are the Devifor's Words plain? Don't his Words engender Confufion? Therefore by the laft and the other Authorities, the Intent void, and the Rules of Defcent mufi be obferved. The lafi Thing I ihall mention, having already faid enough, is the feveral Deeds from Samuel, John and Frances, the Warrantys of which are collateral, and therefore bind the Ifflue. Lit. ~~ 709, 716, 717, with Coke's Commentary read at large. 1 Inif. 373 a, 375 b. 376 a. It is true there is a Statute about Warranties, but unlefs they produce, I fhall not anfwer it. Upon the Whole, Eftates Tail are never implied except when the Intent is obvious — never have been, at Home or here. The Courts are very cautious how they give the Conffruction of Tail to Words in a Will, efpecially such Words as thefe; and I believe never known to extend them to create Crofs Remainders among three. I ihall not recapitulate my Arguments, but only obferve that it will caufe the utmoft Confufion thus to eject People out of Lands they have for fo many years quietly enjoyed; and now to turn them out upon fo ftrained a Conftru&ion of Words inadvertently dropped in a Man's laif Illnefs, would be as much againft Juflice and Equity, as Law and Common Senfe. Mr. 134 March Term 5 Geo. 3. 1765. Mr. Otis. The prefent Queflion arifes on this BANISTER Claufe of Mr. Banifrer's Will: "After my juflJ V. Debts," &c. In the Courfe of my Argument I fhall examine what Eftate the Brothers took, whether Tail or Fee. 2dly. If a Tail, whether with Crofs Remainders over. 3dly. If Remainders over, whether the Remainders were in Tail or in Fee. 4thly. If a Tail with Crofs Remainders in Tail, whether the Collateral Warranty will not bind the Iffue. The Terms Fee Simple, Tail, general and fpecial, Crofs Remainders, Executory Devife are well known, but yet as this Cafe depends pretty much on having clear and precife Ideas of them, your Honours will pardon me, if to refreih our Memories, I juft run over the feveral Definitions. (Mr. O. then gave the feveral Definitions of the above Terms, chiefly from Black. Anal. qd vid.) Crofs Remainders, as commonly fpoken of, mean implied Remainders. I will for the prefent allow a Tail, their Whole depending on their fhewing implied Crofs Remainders rationally and legally implied. Hobart, 29, 34, Counden vs. Clerke. Though the Intent of ye Devifor is jufily called the Pole-Star of the Will, yet this is not the only Dire6tor; for this I cite the laff Cafe. There are a Variety of Opinions on this Point, and that too among the moft eminent Judges; fome paying an unlimited Obedience to the Teftator's Intention, and others as much flighting it. The true Medium, I take it, is laid down in this Cafe; "the " Devife March Term 5 Geo. s. 135 "Devife muff be taken according to the Intent of 1765. "the Party Devifor," yet "fuch Intent muff be fo BANISTER "expreff'd in the Will, that it may be certain to ~V. "the Court, and not agazinJ Law." Hobart, 32. All the Vagaries of a difeafed Mind are not to be attended to; yet the rational and legal Intent of a Teftator mhould be obferv'd. (Relative to the Crofs Remainders, Mr. O. cited the following Authorities:) Viner, Tit. Remainder; the whole of this Chap. Here "Crofs Re"mainders fhall not rife between 3, unlefs the "XWords do very plainly exprefs the Intent of "the Devifor to be fo;" "between 3 the Law "will not endure Crofs Remainders, by Reafon of "the Confufion which will enfue." "Two Crofs "Remainders may well ftand together, but three "cannot well fland together; for that would make " fuch Confufion as the Law abhors, and that was' the Reafon of the Judgment in the Cafe of Gilbert " vs. JJitty,* which Pemberton, Ch. yufi. faid he took "to be found Law.' 2 Show. 139, Holmes vs. Meynill." And per Holt, Ch. Y. - "a Crofs Remainder is an " awkward Sort of a Thing; the Cafe of Holmes vs. "Meynillt has prevail'd, and is not fit to be ftirr'd "now;" "and Powell, Y. faid that the Cafe never "went down with him, though affirmed on a Writ "of Error, and he has heard learned People fpeak "againft it " — (And goes on, and finifhes the Chapter, and reads the whole of the Cafes cited above by Viner and others.) Viner, Tit. Rem. M. p. 1, 2. Ibid. Tit. Devife L. p. 1-6. o1 Rep. Seymour's Cafe, 1 Inft. i b, (Fee Sim.) From * 2 Croke, 655. 2 Show. I36. 136 March Term 5 Geo. s. 1765. From all there Authorities there may be fuch a BANISTER ConftruCtion as is confiftent with the Rules of Law, N. if it be conftrued a Devife in Fee with an Executory Devife over. Thefe Authorities are againft them dire~tly: "3 Crofs Remainders cannot well ftand together." " Between 3 the Law will not endure Crofs Remainders," and why? "'Twould make fuch Confufion as the Law abhors:" they are never favour'd in Law - Holt much againft them; they are never raif'd by Implication; "Crofs Remainders will not arife to more than 2 by Implication." Viner, Tit. Rem. X. p. 4, Notes, cites 8 Mod.' 260, Shaw vs. Weigh; T. Raym'd, 455, Holmes vs. Meynz'll. Befides from the plain Words, the whole Contexture and Tenor of this Will,'tis plain he intended an Executory Devife over of the Deceafed's Share to ye Survivors or Survivor; certain he never intended a Tail with Crofs Remainders over, -yet if there is the leaft Doubt, the Cafe is with us. But which is likeliest to get into the Head of a mere Layman -— thofe Crofs Remainders, which thefe Gentlemen contend for, which, after they have got beyond two, have puzzled the wifeft Heads in Europe, or that of an Executory Devife over, on a Fee determinable on either of his 3 Sons dying without Iffue? Mr. Gridley. Do you think the Teftator had a clearer Idea of an Executory Devife than Crofs Remainders? Mr. Otis. Though there may be fome Niceties in the Difference between Executory Devifes and other * Alias, Cafes in Law and Equity. March Term 5 Geo. 3. 137 other Devises, yet the general Idea is much more 1765. likely to enter into a Layman's Head, than that of "B'iT" R Crofs Remainders. ". HENDERSON.'Tis manifefi from the Words of the Will he intended Equality among his Children. " The Rea"fon why I make my Eldefl Son but EQUAL with hhi " other Brothers," —" They are all EQUALLY dear to me:" Would what thefe Gentlemen contend for be confiftent with this intended Equality Would not ours? An equal Tenancy in Common being, as we fay, devifed in Fee, determinable on either dying without Iffue in the Life of' fome other Son, and then an Executory Devife over of fuch deceafed's Share to the Survivor or Survivors. The Words in the Will do not make an Eftate Tail. Hanchet vs. Thelwal, 3 Mod. o10, 6. In Order to make this Will agree with their Scheme, they are obliged to have Recourfe to double Implications; firft an Eftate Tail is to be implied and then Crofs Remainders. "An Eftate "by Implication was never thought of' in a Deed, "nor in a Will, but in Cafes of Neceffity." Cafes in the Time of L'd Talbot, 3, Glenorchy v. Bofville. One would think this Rule would be fufficient to put an End to their Claim. But if they will have Implication, what fo fProng for a Fee, as Charges of "Debts and Legacies," &c. This Implication of a Fee is confiflent both with Law and Equitytheirs dire&tly againft both. "A. devifes his Brother, " Lands &c., and all his Perfonal EfZate, defiring him " to payhis Debts and Legacies,-a Fee pafes." 2 Vers8 non, 138 March Term 5 Geo. s. 1765. non, 687, Ackland vs. Ackland. 3Cro. 58. 2 Strange, BANISTER 1175, Barker vs. Suretees. Thus there was not even'*. an implied Tail in the three Brothers; next there were no Crofs Remainders: The Gentlemen can't find I believe, if they examine all the Books from William the Conqueror down to this Time, where there are Crofs Remainders by Implication, without an exprefs Tail. There are no Crofs Remainders between 3 Brothers to be found in any of the Books, not even that of Dyer, 303. That was nothing but Talk. (Mr. 0. here expatiates on the aforecited Paifages of Viner.) But taking this Cafe of Dyer to have been adjudged (which is far from being certain), " Itfeem'd to the Court," &c. Mr. Gridley. Videbatur was always ufed by the Roman Judges, and is often in the Books. Mr. Otis. Let it be fo: It is well known there are obiter Opinions, which are properly enough expreffed by "It feems," yet are not to be relied on as Law. An obz'ter Opinion, I take it, is about a Medium between what the firft Council in England fay arguendo, and the folemn Judgments of the Court, after a full Hearing the Council. The Cafe of Dyer, 303, on which they bottom themfelves is totally different from the Cafe at Bar; excepting this Cafe of Dyer it is fettled that Crofs Remainders fhall not be among more than 2, and this Cafe being among 3, it falls to the Ground. 3 Leon. 115, Brian vs. Cawsen, as cited by Viner, Tit. Rem. X. p. 5. 1 Leon. 166. Gilbert vs. Witty, Cro. James, 655. Roll. Abr. 835. Viner, Tit. Devife, Let. K. 4 Mod. 282. Cro. Jam. 59o, Pells vs. Brown. (Thefe Authorities March Term 5 Geo. 3. 139 Authorities cited by Mr. O. to fhew the Brothers 1765. took by Executory Devife.) BANISTER HENDsERSoN. I ihall now {how, if all the foregoing Points were againit us, yet the Collateral Warranty binds the Iffue, and therefore the prefent Demandant muff fail; but before I enter on this, the Deeds mufi be looked into, and your Honours will there fee how the feveral Warranties defcend. It is incumbent upon me to fhew that Collateral Warranty is a Bar, without Affetts, notwithstanding the Statute of Ann. 10o Rep. 95 b, Edward Seymour's Cafe. Lineal Warranty bars with Affetts, Collateral Warranty without; it may appear hard, but if the Reafon is attended to, it will be cleared; it is for the Safety of Men's Eftates, and that People ihould not be defrauded of what they bond fide bought, many Years after Purchafe. And there are other Artificial Reafons, as no Man is prefumed to difinherit his own Blood without leaving him greater Advancement, &c. i Inft. 373 a, b, 375 b, 376 a, &c. Viner, Tit. Voucher, U. b. 2, to U. b. 6. Holt, Ch. 7., faid, "That the true Reafon of Collateral " Warranty was the Security of Purchafers, and for "their Encouragement; as alfo for the eflablifhing "and fettling of fuch as were in by Title or Defcent "caft, and this was the only Security fuch Perfons "could have at Common Law; and becaufe the "Eflates of fuch Perfons as are in by Title, are "much favoured in Law, there Covenants that were "for Strengthening them were favoured likewife." Same Tit. U. b. 5. 12 Mod. 512. The Collateral Warranties which are made void againfi the Heir are thofe made by any Anceftor who has no Eftate 140 March Term 5 Geo. 3. 1765. EJiate of Inkeritance in Pofge/fion of the Lands. 4 & 5 BANISTER Ann, ch. 16. Now, according to their own SuppoV. fition and the Special Verdit, the Ancefror making HENDERSON. this Collateral Warranty had an Eftate of Inheritance in Poffeffion, and therefore does not come within this Statute; but I deny the Statute of Ann to extend here. The Common Law and Policy of England have been, this 4 or 500 Years, tired of thefe intailed Eftates; and therefore every legal Method has been prosecuted for their Suppreffion. Many have been the ill Effets felt both by State and Individuals, in Conveyance of thefe Eflates; therefore fo far from being favoured they have ever been difcountenanced; and furely never was fuch an Eflate as is here contended for, favoured - big with the greateft Confufion and Injuftice- inconfiftent both with Law and Common Senfe. I therefore fubmit it to your Honours' Judgment, not doubting that Judgment will be rendered according to Law. Mr. Gridley. " After my jufJ Debts, c5c., I give all," 4c. "If either," &c., "to tlve furvvzing Sons or Son." The Queftion is, whether there was a Tenancy in Common in Fee, with an Executory Devife over, or a Tail with Crofs Remainders: On the other Side they fay, the firft Words are Fee, and the after Claufe, "If either die without Iffue," makes an Executory Devife over: We fay, if there were no more Words, a Fee, but the after Words make a Tail, and the laft, Crofs Remainders.'When we read a Will, we aim at the Devifor's Intent; we aim at the general governing Idea of the Teftator's Mind. If we enter March Term 5 Geo. 3. 141 enter into the Will, you will find, that the grand 1765. and fole ObjeE of the Devifor was the Emolument BANISTER of his Pofterity, and the Perpetuity of his Eftate in H. his Family. Let us fee, if we can't make fuch a System of Eftate as will be confiitent with the Law, and enforce the Teftator's Intent; if it is poffible it fhall be done: But thefe Crofs Remainders between 3 frighten the Gentlemen; no fuch Thing in the Books; no fuch Crofs Remainders by Implication: We will fee. The firft Words, " All, cfc." a Fee, the Words laft, a Tail-as for "Heirs," the other Words fhew what he means. "Heirs lawfully begotten in Wedlock." The Gentlemen talk of Implication upon Implication, and Implication upon that again; the Words by which the Tail is made are implied, but a neceffary Implication. Heirs in general make a Fee, but he fhews what Heirs he intended; "If either die, then to the frvlvzng Sons or Son," this makes the Crofs Remainders. The Sons Thomas, Samuel and John took Tails with Crofs Remainders over, each upon the other: Upon John's Death, Thomas and Samuel were jointly feized of John's Part; upon Thomas' dying, Samuel and Thomas' Iffue were feized together; and upon Samuel's Death, the Whole remained to the Father of the prefent Demandant. This was the Intent of the Teftator, that the Brothers took Tails with Remainders, one upon the other. It is the Bufinefs of the Law to explain the Pregnancy of Expreffion, and when this Pregnancy is drawn out, this is the mighty Confufion, this is the terrible Bugbear. The Lawyers who talk of the Abhorrence of the Law, the Confufion, the Awkwardnefs, and I don't know what all, of Crofs Remainders, were 142 March Term 5 Geo. 3. 1765- were afleep, I believe, and had their Heads muffled BANISTER up in Napkins. qV. HENDERSON. Mr. _uAchmuty. I don't underftand fuch Reflections. Mr. Gridley. I meant no Refletion on you, Sir. Mr. Otis. Mr. Auchmuty, I did not take Mr. Gridley intended to reflet upon us, but on all the Judges of England. Mr. Gridley. What mighty Difficulty to former People I can't tell;'tis very plain now. Crofs Remainders may be among 2; why not 3? If John dies, then to Thomas and Samuel; if Thomas dies, then to Samuel; each have a Tail with a Remainder expe&tant upon the Death of the others dying without Iffue. A Fee can't be limited upon a Fee - they ftrived hard for it in the Cafe of Devifes, but then it was only for Years. "All the Candles burning at once," as one of the Judges * expreffed it. Chadock vs. Cowley, Cro. Jam. 695. Dyer, 303. Here is one Acre to A. and the Heirs Male of his Body, another to B. and another to C. in like Manner. "And if they all die without Iffue of their or " any of their Bodies or either of them," Remainder over; here are Crofs Remainders among all the 3 Sons. Dyer, 303. The Darknefs is here diffipated from Crofs Remainders, the Words, dying " without * wifden. March Term 5 Geo. 3. 143 without Ifflue " are direfly againft Executory De- 1765. vifes.* BANISTER qv. HENDERSON. Mr. Auchmuty has endeavour'd from feveral Charges to prove it a Fee. The Manner of Conftrution in Law is, reddendo Singula Singulis; every Thing mufi be rendered according to its Nature. An ample perfonal Eftate was left —real fhall never be taken in fuch Cafe. The Charge was perfonal, and not upon the Land: Befides, it does not appear that there was no perfonal Eflate left; the Special Verdi& ought to have fet forth, there was no perfonal Eftate left; this is not done, fo that's at an End.t It has been faid, Devifor defigned Equality- he did do Equality — all had Tails; the Event as to the Remainders was left to Chance. I won't produce 20 Authorities where i is neceffary; here have been numerous Authorities cited, to what Purpofe I know not, unlefs Show. Mr. Otis. You muft allow Children a little Oftentation. Mr. Gridley. I won't fay the Cafe of Gilbert f IVitty is not Law, but I will produce Jones to Ihow wherein * It is faid (in Carth. 3IO) that " It is a certain Rule that a Will shall never operate by Way of Executory Devife, if it may take Effe& by Way of Remainder.".,u. if this Authority would have been impertinent. +t,u. if perfonal Eflate is not found in the Verdi&, whether it is to be prefumed. Vid. 3 Mod. 45, 46. 144 March Term 5 Geo. s. 1765. wherein it is wrong; Dodridge was certainly wrong, BANISTER when he faid, no Crofs Remainders among 3. 7 Edv. ward 6 (Year Book). Dodridge ought to have read. this before he pronounced. It appears by this Book* that Dodridge was wrong, on whom the Gentlemen fo much rely:'Tis true I have not produced the Year Book, but I have produced Hobart, whom I can truft, for he was an Oracle of' the Law. 2 Jones, 172, Holmes vs. Meynill. Pemberton too is with us, one of the Miracles of Mankind; he was not afraid of the Reveries of Sick Men; was not afraid of plaguing his Mind in finding out the Meaning of difeafed Minds: He ufed the Affiduity becoming a Judge to get the Devifor's Intent, and when he had found it, he had it fulfilled.'Tis not the Part of Judges to frifle, but to enforce the Devifor's Intent; you had Crofs Remainders among 3 at the Common Law, and Dyer, 303, has carried them as far as 4. Mr. Otis fays there was no Judgment in this Cafe. Dyer feldom ufes more than " z feems;" this Mr. Otis knew: It is very firange Dodridge fhould fay, no Crofs Remainders between 3, when here is 4, and I have fhewn the Year Book; Dyer full with us, the greateft Judge that ever fat in the King's Bench, - as great in Law as Sir Ifaac Newton in Mathematicks and Philofophy. Pollexfen, 413. So, taking' there Authorities, we have 5 Judges againfl 3, Dodridge and other obfcure Names.t Skinner Rep. 17. Ld. Raym'd, Meynmll's Cafe. I have looked over all their Authorities, * Hob. Rep. 34. " A Devife to 3 Brothers in Tail, and that one shall be Heir to the other, this makes Crofs Remainders." Hob. 34. t Holt and Powell. March Term 5 Geo. s. 145 ities, and thefe few I have fele&ed as to the Point, 1765. and have obferved on them what is neceffary. BANISTER HENDERSON. The Intent of the Teftator is the only Rule, the only Director, whether that Intent is got by Implication or otherwife: His Intent can't be fulfilled without Crofs Remainders, and if Crofs Remainders are good among 2, certainly among 3; they have been carried to 3, and even to 4 according to the Authorities cited; therefore as his Intent is with us, and the Law is with us, your Honours will give Judgment accordingly. N. B. Mr. Gridley made an Excufe for not fpeaking to the Collateral Warranty, as it was a Point he did not think would be flarted, and therefore begged time to look into the Books. This Requell was granted. Afterwards Mr. Gridley fpoke to this Point, of Collateral Warranty, and, as I heard, fo conclufively that the Council for the Tenants waived the Matter.* The Court defiring that a brief State of the Cafe, Banzifer vs. Henderfon might be given in by the Council on both Sides, the following States were delivered to the Court. The * Sed quaere, and fee Dr. Sullivan's Le&. on the Laws of England, I82, 3, and qu. if ye At of Parliament extends, or is binding here..y. If z Strange, 969, 996, might not with Propriety have been produced in Favour of the Tenants. Vid. Stephen v. Stephen, Chan. Cafes, i68, I69, &c.; I Ld. Raym'd, zo8. Vid. 2 Wilfon's Rep. 88 b. Dricver v. Standring. I9 146 March Term 5 Geo. s. 1765. BANISTER The State of the Cafe by the Council for the HENDERSON. Tenant. Banifter's Cafe. Whatever Eftate the Devifees took, was by Implication - not by exprefs Devife. Implication muff be neceffary, and not barely poffible. 2 Bac. 66 (G). 6 Co. 17. Cro. Car. 368. Intent to be colleeted from the whole Willtherefore the Devifes to the Grandfon and the Daughter, as well as joining real and perfonal Eftate muff be confidered. Alfo the Words in Remainder in the Claufe now in Difpute. From all which it appears, the Teftator never meant to Entail; the Diffindion between the Devife of the Pew and the Reft of the Eftate proves the fame Point. The Remainder being an Exprefs Eftate in Fee, argues that the firfc Eftate was alfo intended in Fee. The Teftator meant to convey an equal Tenancy in Common, in Fee, determinable on either's dying without Iffue in the Life of fome other Son, and an Executory Devife over, of fuch Deceafed's Share to the Survivor or Survivors. The Eftate being fubjeCted to the Payment of Debts and Legacies, is equal to being fubjeft to Payment March Term 5 Geo. 3. 147 Payment of certain Sums; and the Eftate being 1765. implied makes a Fee Simple. 2 Vern. 687. 1 BANISTER Lill. 451, 452. 3 Co. 19, Borafton's Cafe. 1 Cas. H`S Abr. Equ. 176, 9, 10, 12. But if doubtfull, then Judgment muff be for us, in Law and Equity; Law, that the Demandant clearly prove his Writ, and Cro. Eliz. 743 what Walmfley faid; Equity — fairly purchafed, long poffeffed, the Purchafe Money uied to fupport the Family. To prove it no Tail, 3 Mod. 104; 3 Cro. 57; 2 Strange, 1 172. Granting for Argument Sake, that the firif Words create an Elfate Tail by Implication, yet the Remainders not crofs. Hob. 34. Vin. Tit. Devife, X. pl. 1, and Notes. Vin. Remainder, per tot; 2 Cro. 655. 2 Show. 139. 8 Mod. 260. When John died, Tom. and Sam., expreffly by the Devife over, became Jointenants in Fee of his Part; and on Tom.'s Death, all his Part of John's Third that was undifpofed went to Sam., by Survivorihip, and never can go back as a Remainder to the Heirs of Tom. If Jointenants in Fee, there cannot be Crofs Remainders of that joint Eftate, for that would be limiting a Fee on a Fee at Large. The Collateral Warranty binds. 1 Infc. ~~ 709, 716. 1 Co. 63. 10 Co. 97. Vin. Tit. Voucher, U. 148 March Term 5 Geo. 3. 1765. U. b. pl. 5, U. b. 6, pl. 1 & 2, & Notes. W. b. pl. BANISTER 5. W. b. 4. Notes on pl. 2. U. b. 3, pl. 25, & VHR. g Notes. Voucher, X. a. 2, pl. 5, U. b. 3, pl. 3. C. b. pl. 3, & Notes. What is the Diftin&tion between a Collateral and Lineal Warranty is proved by 1 Inft. ~~ 704, 705, & 717. By the Council for the Demandant. Cafe of Banater vs. Henderfon. Mr. Thomas Banifter by his laft Will devifed (among other Things) ~5oo to his Daughter Mary Banifter; but if fhe did not live to have Iffue, then to be paid to his three Sons to be equally divided amongft them, as he had willed the Reft of his Eftate to be divided among them, or the Survivors of them. Item. He gave all his Houfes, Lands, Mortgages, Bills, Bonds, Money, Plate, Debts, Merchandizes, both at Sea and Land; as alfo all Books, Bedding, Houfehold Stuff, Horfes, Cattle, and all that of Right any ways belonged or appertained to him whether named or not named to his three Sons Thomas, Samuel, and John; to be equally divided amongft them; and if either of his three Sons die without Heirs lawfully begotten in Wedlock, he willed their Share to the furviving Sons or Son, and their Heirs forever. By this Devife the three Sons took an Eftate in Common March Term 5 Geo. S. 149 Common in Tail general in the Lands &c. devifed, 1765. with Crofs Remainders in Tail among them of BANISTER each other's Shares. V. HENDERSON. Firfl. By the Devife of all his Houfes and Lands &c., and all that of Right anyways belonged to him, whether named or not named, a Fee would have paffed to his three Sons by Force of the Words taken by themfelves. Vid. 1 Salk. 239, Hopewell vs. Ackland, where Alleyn, 28, Wheeler's Cafe, and 2 Vent. 285, Willow's Cafe, are rely'd on; for the Words are as ifrong and comprehenfive as thofe made Ufe of in thofe Cafes, and muff comprehend all his Eftate, which alone would pafs a Fee; and as by Devife of all his Lands an Eftate for Life paffed, the following Words, unlefs they comprehend his Efiate in thofe Lands, muit be ufelefs. Secondly. The following Words, "equally to be divided among them," make them Tenants in Common of the Whole. Vid. 1 Salk. 226, Bl/fet vs. Cranwell. Thirdly. By the fubfequent Words —if either of his three Sons die without Heirs lawfully begotten in Wedlock, he wills their Share to the furviving Sons or Son, and to their Heirs foreveran Eftate Tail general is created of their feveral Shares; for this fhews the Intent of the Teftator to be Heirs of their Bodies, by neceffary Implication; fo that Heirs here fignifies the fame as Iffue; for they could not die without Heirs, living their Brother. Vid. Cro. James, 415, 416, AYebb vs. Hearing. 50o March Term 5 Geo. s. 1765. Hearing. Same, 448, King vs. Rumball.* 3 Lev. BANISTER 70, Parker vs. Thacker. 1 Salk. 233, Nottingham vs. HENDERSON. yennings. Cro. James, 695, Chadock vs. Cowley. Fourthly. By thefe Words — if either of his three Sons die without Heirs lawfully begotten in Wedlock, he willed their Share to Surviving Sons or Son, and their Heirs forever — Crofs Remainders in Tail are created among them of their feveral Shares; for the Words "if either of them," &c. make Crofs Remainders, exprefs, and differs the Cafe from that of Gilbert, Witty. In 1 Vent. 224, Cole vs. Levingfton, per Hale, C. J. Vid. alfo Dyer, 303. Crofs Remainders exprefs among four, exa&ly agreeing with the prefent Cafe. 2 Jones, 172, Holmes vs. Meynill, a Crofs Remainder by Implicationwhereas this exprefs, and confequently a much ftronger Cafe. In both the faid Cafes the Crofs Remainders vefted in Tail, as well as the firft Eftate of each in their feveral Shares; and by the fame Reafon and Law, they fhall veft in Tail in the prefent Cafe; fo that the Eftate fhall not revert till all the Sons are dead without Iffue, and the whole Eftate Tail entirely fpent. And this is corroborated by the Limitation to the furviving Son as well as Sons, which plainly fhows the Intent of the Teftator was, that all thefe Remainders to each of the Sons, of the other's Shares, fhould veft in Tail immediately by the Devife; and this is perfe&ly agreeable to the Refolution in * By the firft and laft Cafes in Cro. James, it appears it was not a Contingent Eftate, but took Place immediately by the Devife. March Term 5 Geo. 3. 151 in the above Cafes, particularly that in Dyer, which 1765. correfponds exactly to it, and is full in Point; and BANISTER this Conftruction renders the whole Devife in every RSON. Part of it perfectly confifient and agreeable to the evident Defign and Intention of the Tefiator. Upon the Whole, the Devife then as was obferved at firif will ftand thus: To Thomas, Samuel and John, in Common in Tail general, with Crofs Remainders in Tail to each of the others' Shares; fo that when John died firif without Iffue, his Efiate was entirely fpent, and the Remainder of his Share came equally to Thomas and Samuel in Tail; when Thomas died leaving Ifflue, his Moiety defcended to the Heirs of his Body in Tail, and alfo the Remainder in Tail of John's Moiety, which was veifted in Thomas, defcended upon the Death of Thomas to the Heirs of his Body in Tail; fo that when Samuel died without Iffue, his Moiety alfo came to the Iffue of Thomas in Tail; and no Part of the faid Eftate so devifed can revert to the Heirs of the Devifor till all the Iffue of the Body of Thomas is entirely fpent. (Another State of BaniJer's Cafe which I received from Chief yufiice Hutchinfon, together with theforegoing State of that Cafe, by the Demandant's Council.) Cafe of Banifler vs. Henderfon. The Teftator devifes all his Houfes, Lands, &c., and all that of Right anyways belonged or appertained to him, whether named or not named, to his three Sons Thomas, 152 March Term 5 Geo. s. 1765. Thomas, Samuel and John, to be equally divided BANISTER among them; and if either of his three Sons die Xv. without Heirs lawfully begotten in Wedlock, he willed their Share to the furviving Sons or Son, and their Heirs forever. It was argued for the Defendant, that this was an Executory Devife, &c. In Anfwer to which, it was urged for the Plaintiff, that it is a fettled and certain Rule of Law, that a Will fhall never operate by Way of Executory Devife, if it might take Effect by Way of Remainder, viz., if there is a particular Eftate fufficient to fupport it. Vid. Carthew, 310, in the Cafe of Reeve vs. Long; 2 Saund. 380, Purefoy vs. Rogers, at the latter End of the Cafe; 2 Bacon, 72, where thefe and feveral other Cafes are cited. By this Devife (as we Shall fhew clearly) an Eftate Tail was created in the three Sons, of their feveral Shares; which is a particular Eftate fufficient to fupport a Remainder; and therefore by the Rule, the Limitation ihall take Effe&t by Way of Remainder, and cannot be conftrued an Executory Devife. It is infifted for the Plaintiff, that, by this Devife, the three Sons took an Eftate in Common in Tail general in the Lands devifed, with Crofs Remainders in Tail among them of each other's Shares. To fhew this, they obferve - Firfl. By Devife of all his Land, and all that of Right March Term 5 Geo. 3. 153 Right anyways belonged to him, &c., a Fee would 1765. have paffed to the three Sons, by Force of thefe BANISTER Words taken by themfelves; for this they rely on V. the Cafe of Hopewell vs. Ackland, 1 Salk. 239, where Alleyn, 28, W/heeler's CaSe, and 2 Vent. 235, /Willow's CaJe, are rely'd on; for thefe Words are as full and itrong as thofe made Ufe of in thefe Cafes, and muff comprehend all his Eftate. Secondly. The following Words, "equally to be divided among them," make them Tenants in Common; for which Vid. 1 Salk. 226, Bli/eft vs. Cranwell. Thirdly. By the subfequent Words —if either of his three Sons die without Heirs lawfully begotten in Wedlock, he wills their Share to the furviving Sons or Son, and their Heirs for ever. By the firfit Part of them, an Eftate in Tail general is created of their feveral Shares: For this ihows the Intent of the Teftator to be, Heirs of their Bodies; fo that Heirs here fignifies the fame as Iffue, for neither could die without Heirs in the general Senfe of the Word, living his Brothers. For this they rely on Cro. James, 415, 416, HWebb vs. Hearing; Same, 448, King vs. Rumball; Same, 695, Chaddock vs. Cowley; 3 Lev. 70, Parker vs. Thacker; 1 Salk. 233, Nottingham's Cafe. N. B. By the above Cafes of' Webb 4~ Hearing, and Chaddock y Cowley, and their Analogy to the prefent, it appears that this was not a contingent Eftate, but took Place and veiled immediately by the Devife. 20 Fourthly. 154 March Term 5 Geo. 3. 1765. Fourthly. By the fame Words, alfo (the latter BANISTER Part of them), Crofs Remainders are created among HENDERSON the three Sons, of their feveral Shares. Thefe Words, "if either of them," &c., make Crofs Remainders exprefs, (1 Vent. 224, Cole vs. Livl;gfJon) and is not by Implication, but as determinate as if Crofs Remainders had been drawn out at Length. And this differs the Cafe from that of Gilbert 4 Witty, produced on the other Side. Vid. also, Dyer 303, Crofs Remainders in Tail among 4, a Cafe in Point. Alfo 2 Jones, 172, Holmes 4 Meynill, where the Cafe of Gilbert 4 Wlitty is queftioned. Vid. Hobart, 34, which Cafe, and that in Dyer, muff have been overlooked by Juflice Dodridge. He faid, in Gilbert 4Witty, that it would not be found in any Book that Crofs Remainders could be between three. It appears, alfo, by the Limitation being to the Surviving Son as well as Sons, that it was the Intent of the Teftator that the laft furviving Son, the other two dying without Iffue, fhould take the Whole. This could not take Effe& by any Conftru&tion, but the above of Crofs Remainders in Tail executed; but upon this Conftru&tion, no Part of the Eflate could revert to the right Heirs of the Devifor, until all the Sons were dead without Iffue, and the whole Eftate Tail in each fpent, according to the above Cafe in Dyer. Upon the Whole, therefore, the Devife ftands thus: To Thomas, Samuel and John in Common, in Tail general; and if' Thomas die without Iffue, the Remainder of his Share to Samuel and John in Tail; and if Samuel dies without Iffue, the Remainder March Term 5 Geo. $. 155 mainder of his Share to Thomas and John in Tail; 1765. and if John dies without Ifflue, the Remainder of BANISTER his Share to Thomas and Samuel in Tail. HV. HENDERSON. So that when John died without Iffue, his Share came to Thomas and Samuel in equal Moieties in Tail, with Crofs Remainders in Tail between them of each other's Shares; and when Thomas died leaving Iffue, his Share, and his Moiety of John's Share, came to his Iffue in Tail; and when Samuel died without Iffue, his Share, and his Moiety of John's Share, came to the Iffue of Thomas in Tail. The lafl Words, " then to the furviving Sons or Son, and their Heirs for ever," could not poflibly make a Jointenancy in Fee, in Cafe of Death without Iffiue. The Survivor was to have the Whole, which might have been prevented by fevering the Jointenancy; so that, to anfwer the Teifator's Intent, a Remainder in Tail veited in Thomas upon Samuel's Eftate in Tail in this Moiety; and so vice versa, and upon Samuel's Death, this Remainder came veiled in Poffeflion. Judgment was afterwards rendered at Worcefter Court for the Tenants: By the Opinion of Lynde, Curbing 4' Rufell: Chief yuflice ~4 Oliver full in Favour of the Demandant.* (g) *.u. if 2 Black. Comment. ch. 20, PP. 302, 303, and ch. 23, pp. 381, 382, would have been impertinent in this Cafe. (9) It is to be regretted that we have no means of ascertaining conclufively on what grounds this decifion was given. The three points raifed are briefly as follows: I. Whether the words of the will created an 156 March Term 5 Geo. 3. 1765. an eftate tail, or a fee with executory devifes; 2. If an eftate tail, whether __o crofs remainders can be created by implication among more than two; BANISTER 3. Whether collateral warranty will not bind the iffue. Quincy ftates eV. that the laft point was given up by the tenant's counfel; and although HENDERSON. it was inferted in his "itate of the cafe," yet its not being mentioned in the others, would feem to ihow that it was, in effet, abandoned. As to the fecond point, it is true that moft of the authorities at that day leaned ftrongly againft the eftablifhment of crofs remainders among more than two. See 3 B1. Com. 381, 2, cited by Quincyfupra. But upon this ground alone, it is difficult to fee why the demandant fhould not have had judgment for one third of the premifes. And it was foon after eftablifhed that crofs remainders might arife among any number. Cowp. 780. 2 East, 36. Hall v. Prieft, 6 Gray, i8, in which laft cafe they were eftabliihed among eight. From there confiderations, it feems to us more probable that the decifion was given upon the firft point; and we have, accordingly, fo ftated it in the marginal note. But whether the point of collateral warranty was not well taken, quare. That the reporter foi confidered it, appears from his note, ante, 145, and his citation, fupra, of 3 B1. Com. 303, where it is laid down that collateral warranty is ftill a bar, " notwithftanding the ftatute of Queen Anne, if made by tenant in tail in poffeffion." Among the law papers of John Adams, for accefs to which we are indebted to the kindnefs of Hon. Charles Francis Adams, we find a copy of an opinion given in 1745, by the diliinguifhed lawyer, John Read, upon a cafe which had arifen upon the fame claufe in the will, and in which fome of the fame questions were involved. That opinion is printed below. The cafe refulted in favor of the tenants; but it will be feen that Mr. Read's opinion coincided with that of the minority of the Court in Banifter v. Henderfon, viz., that the devife created an eftate tail with crofs remainders. It appears, alfo, that the point was raifed which was afterwards decided in Baker v. Mattocks (ante, p. 69), viz., the partibility of eftates tail; and that the opinion of Mr. Read, and alfo, it would feem, of Mr. Pratt (afterwards Chief Juftice of New York), was in favor of the partibility, coinciding with that of the minority of the Court in Baker v. Mattocks, and with that of Judge Trowbridge. See ante, p. 74, note. " Mr. Banifter's Cafe v. Nat. Cunningham. BANISTER.BANISTER 692. The Province Law, p. 3, enateth that any Man Seized in CUNNING- Fee Simple of Land in this Province may difpofe of it at Pleafure by HAM. Deed or Will; or it fhall be Subje6Et to a Divifion with his Perfonal Rec. I754. Eftate, vizt, a double Portion to his eldeft Son, and equal Shares to Fol. 148. the Reft of his Children. 1708. Mr. Thomas Banifter devifed, among other Things, ~5oo to his Daughter, Mary Banifter, but if ihe did not live to have Iffue, then March Term 5 Geo. 8. 157 then to be paid to his 3 Sons, to be equally divided among them, as he 1765. had willed the Reft of his Eftate to be divided among them or the Survivor of them." BANISTER Item. He gave all his Houfes, Ware-houfes, Lands, Mortgages, "v. Bills, Bonds, Money, Plate, Debts, Wares, Merchandizes, both at Sea CUNNINGHAM. and Land, as alfo all Books, Bedding, Houfehold Stuff, Horfes, Cattle, and all that of Right any'ways belonged or appertained to him,'whether named or not named, to his Three Sons, Thomas, Samuel and John, to be equally divided among them; and if Either of his Three Sons dye'tithout Heirs lavwfully begotten in Wedlock, he uwilled their Share to the Survi'ving Sons or Son, and their Heirs for e'ver. The Teftator died; then his Son John died without Iffue; then Thomas leaving lffue, whereof the Eldeft Son is fince deceafed without Iifue; but there are now living John, Samuel Annefley, and Frances Wife of Wm. Bowen. The Teftator's Son Samuel, furviving his two Brothers, mortgaged 7 Acres of Pafture in Boston, Part of the Eftate devifed them, to Nathaniel Cunningham, and his Heirs, by Force whereof he entered and held it, and then the Mortgagor died without Iffue. Q. Is Nath'l Cunningham's Eftate in this Pafture good, or not? A. His Eftate is void, for the Mortgagor had but one Half, and that in Tail, by the Devife above. - For the Devife above, giving all that of Right any ways belonged to the Teftator, gave every Parcell of his Eftate, and all the Right he had therein, and is as large as the Expreffion in the Cafe of Hopewell vs. Ackland, I Salk. 239, viz'., " and whatfoever elfe I have not before difpofed of;" and therefore would by itfelf pass a Fee Simple to the Three Sons. And there Words added, "to be equally divided among them," would make them Tenants in Common of the Whole. I Salk. 226, Blifet vs. Cran'well. But by farther devifing the Remainder to the Survivor, if either of his Three Sons dye without Heirs lawfully begotten in Wedlock, the Teftator createth an Entail of their feveral Shares. x Salk. 233, Nottingham vs. Jennings. Devife to his fecond Son to hold to him and his Heirs for ever, and for Want of fuch Heirs, then to his own Right Heirs - adjudged an Eftate Tail; and the Word Heirs can import nothing more than Iffue, for he could not die without'Heirs, living Heirs of the Father. Laftly, by devifing the Share of fuch as dye without Heirs lawfully begotten in Wedlock, to the Surviving Sons or Son, and their Heirs for ever, makes Crofs Remainders among them. So that when John died firft without Iffue, the Remainder of his Share came equally to Thomas and Samuel in Tail; when Thomas died leaving Iffue, his Moiety defcended to the Heirs of his Body in Tail; and when Samuel died without 158 March Term 5 Geo. s. 1765. without Iffue, his Moiety came to the Heirs of the Body of Thomas in _ _ Tail. 2 Jones, 172, Holmes vs. Meynell, on Crofs Remainders by BANISTER Implication, where Croke, James, 655, Gilbert e litty, is queftioned.,v. CUNNINGHAM. See Dyer, 303, Devife. Crofs Remainders exprefs among 3, as this Cafe is. And Mr. Samuel Banifter's furviving both his Brethren doth not change his Eftate, which was an Entail immediate by the Will, Remainder to Thomas and John, and the Heirs of their Bodies. Cro. James, 695, Chadock vs. Cowcley. Therefore by Samuel's Death without Iffue, his Eftate is determined; by the Death of John without Iffue, and of Thomas leaving Iffue, the Right to this Remainder, by Force of the Gift vefteth in Thomas's Iffue in Tail, the Reverfion to the Right Heirs of the Donor. Wherefore the Heirs of ye Body of Thomas ihall demand and recover the Pafture of Mr. Cunningham by Force ofthe Devife aforefaid. Q. 2. To whom doth this Pafture fall, - to John the eldeft Son furviving, or to the four Children of Thomas equally? A. This Pafture defcends to all his Children equally as Coparceners by the Prov. Law, and they muft join in Suit. The Teftator was Seized of this Pafture as of an Inheritance defcendible to all his Children as Coparceners as above, and therefore by giving it in Tail to his Sons and the Heirs of their Bodies, he could not alter ye Defcent, and make'that defcendible to the Eldeft Son only, which was by Law defcendible to all ye Children; for x. The fulleft Words of Limitation to make an Intail, as in a Gift to A. and his Heirs of his Body begotten, have no Tendency to alter the Courfe of Defcent, but only to limit whofe Iffue fhall inherit, and so how long the Inheritance fhall endure; and when that Itfue is fpent, the Eftate reverts to the Donor. Lit. Ten. 5 is, I9. 2. The Stat. of Weft. 2, c. I, makes no Intail but of fuch Eftates as were Fee Simple Conditional at Common Law, and confirms them according to the Will of the Donor, but makes no Alteration of the Courfe of Defcent. Co. Lit. xI, I9. Therefore Lands of Inheritance, whether intailed or not, always descended to the fame Heirs. So Lands in Burrough Englifh to the youngeft Son. Co. Lit. x Io, b. Lands in Gavelkind to all the Sons. Co. Lit. I75, &c.'3. If the Donor, intending by exprefs Words to alter the Courfe of Defcents, gives Lands to a Man and his eldeft Heirs females of his Body, or Lands holden in Gavelkind, to a Man and his eldeft Heirs, he cannot thereby alter the Law; the Word Eldeft fhall be reje&ed, and all the Parceners fihall inherit. Co. Lit. 27, E 3. By ye fame Reafon and Law, this Pafture, defcendible to all his Children as Parceners in Fee Simple by the Prov. Law, now intailed defcends to all the Children, and they muff bring the Aation. Bofton, December x9, I745. John Read. Or March Term 5 Geo. 3. 159 Or say,- 1765. I. The Nature of an Intail confifts in limiting what Iffue ihall in- herit, and how long the Inheritance shall endure, before the Donor or BANISTER his Heirs may enter as in their Reverfion. Lit. Ten.. CUNNIGHAM. 2. The Stat. of Donis conditionalibus creates no Eftate Tail but of fuch an Eflate as was Fee Simple at the Common Law, and is defcendible in fuch Form as it was at the Common Law. Co. Lit. i9, Decvant le dit Statute, &c. - the penultimate Sentence of the fecond Paragraph. Therefore Lands of Inheritance, whether intailed or not, always defcend to ye Same Heirs in Either Cafe, Lands in Burrough Englifh to the youngef Son. Co. Lit. ~ I65. 7outes les 7erres ou Tenements. Lands in Gavelkind to all the Sons. Co. Lit. ~ 265. N. B. This laft was, I think, in Mr. Pratt's Handwriting. Rochefter Proprietors verf. Hammond. ROCHESTER PROPRIETORS V. (From Plymouth.) HAMMOND. Pleas in Abatement. Rec. 1764. Fol. 238. HE Writ: Attach Nathan Hammond to InEjeEtment, anfwer the Proprietors of the common and a Defcription undivided Land belonging to the Old Townfhip of as"I2o Acres of Common Rochefter, in our County of Plymouth, in a Plea Land that liof EjeCtment, wherein they demand againft the faid eth in a Tra& containing Nathan Hammond Poffeflion of 120 Acres of xo0 Acres," Common Land that lieth in a Tract of Land con- thd givin of taining 210 Acres in Rochefter aforefaid; the whole the whole Trace, is bad Trad being bounded as follows, &c.; and fay that for Unceron the 20th of December, 1739, in a Time of Peace, tainty. in the Reign of our late royal Grandfather, George the 2d, that they, among other Common Lands in the faid Old Townihip of Rochefter, were seized of faid 120 Acres of Land in their Demesne as of Fee, i6o March Term 5 Geo. s. 1765. Fee, taking the Profits thereof to the Amount of ROCHESTER ~5 by the Year; and they ought to hold the fame PROPRIETORS quietly; yet neverthelefs the faid Nathan Hammond'V. HAMMOND. has, within 20 Years laft pafi, entered into the faid Tradt of Land, and now unjuftly holds the Plaintiffs out of faid 120 Acres of Common as aforefaid; and, tho' requested, refufes to deliver up the Poffeffion thereof; to the Damage of the faid Proprietors, &c. Pleas: And the faid Nathan Hammond comes and defends, &c., and faith the Plaintiffs' Writ and Declaration aforefaid is bad and ought to abate, for that the Proprietors therein demand againft the faid Defendant Poffeffion of 120 Acres of Land, but have not therein fet forth the Bounds of faid Land, nor defcribed the fame with fufficient Certainty, as by Law they ought to have done; 2d, for that the Plaintiffs have not therein fet forth that the Defendant ever eje&ed them from faid Land, as they ought to have done; 3rd, for that the Plaintiffs have not fet forth that they were feised of Land at the Time when the Defendant in faid Declaration is faid to enter into the fame, as they ought to have done; and thefe Pleas the Defendant is ready to verify, and thereof prays Judgment. R. T. Paine. And the faid Nathan comes and faith that he holds 98 Acres of Land within the Bounds fet forth in the Plaintiffs' Declaration, by Virtue of a Deed of Bargain and Sale from his Father, N. Hammond, dated the 26th of March, 1734, who is fince deceafed, which Deed includeth a Covenant of March Term 5 Geo. s. 161 of Warranty againft all Perfons, and that his faid 1765. Father held the fame by Deed of Bargain and Sale, ROCHESTER dated January 30, 1699, of John Hammond, who PROPRIETORS is fince deceafed, and which laft Deed contains a HAMMOND. Covenant of Warranty general; and the faid Nathan alfo faith, that he holds twenty-two Acres of Land within the faid Bounds, of Jofeph Jenkins of Edgartown, in the County of Dukes County, by a Deed of Bargain and Sale from him, with a Covenant of Warranty general, dated March 3rd, 1763, and therefore prays Procefs of this Honourable Court may iffue to vouch in the Heirs of the faid John Hammond and the faid Jofeph, to defend his Title to faid Land. R. T. Paine. Mr. Paine. Your Honours will obferve that there is not the leaft Certainty in their Declaration. No Bounds are fet to the Land demanded, but only the Bounds are given of a certain Tra& from whence they are demanded. Now in England you muff fet forth not only the Bounds, but alfo the particular Sort of Land, whether Pafture, Meadow Land or not. As in Savel's Cafe, 11 Rep. 55- In this Cafe they have gone infinitely wide of the Mark. They have not told us whereabouts the Land they would eje&t us from lies; their Writ muff of Confequence fail. Mr. Otis. Your Honours will prefume in Favour of the Writ, if not exprefs. The Lot from whence we demand this Land is clearly defcribed; and we have fet forth that we demand the foutherly Part of a 21o-Acre Lot. The Sheriff, when he 21 gives 162 March Term 5 Geo. 3. 1765. gives us Poffeflion, may affign to us the fouthernROCHESTER moft Part of the Lot, and Id Certum efJ, quod, &c. PROPRIETORS But let the Sheriff give us Poffeffion of the Whole, HAMMOND.'twill certainly be good for our Part recovered. Mr. Gridley. They have failed in a material Point. No legal Judgment can ever be grounded on this Procefs. No Execution, which is the Fruit of Judgment, can ever be levied, fhould they recover; for a Sheriff fhall not make that certain which his Precept has not made fo. yuft. Rzeufell. If the Sheriff fhould lay out wrong, would not Hammond remain poffeft of the Whole? Ch. uJfiice.'Tis impoflible for the Sheriff to lay out at all. Unanimously abated. (1) Dom. Rex verf. Mangent. Lzfe 4 Death. DOM. REX MANGENT. T HIS Caufe held from o10 in the Morning to 8 Rec. 1765. at Night, during which Time neither Judges Fol. 5 I. or A Certificate from a Minifter in another (I) See Atwood v. Atwood, 22 Pick. 287, Wilde, J.- " When lands Province is are demanded, the defcription of them muft be fo certain that feifin Proof of a may be delivered by the fheriff without reference to any defcription deMarriage, hors the writ." March Term 5 Geo. S. 163 or Jury departed. It turned chiefly on Matters of 1765Fadt; and the Arguments too prolix to give even a DOM. REX Summary. The Indictment was for MURTHER of ENT a baftard Child. (1) without any AuthenticaThe Authorities on Behalf of the Prifoner were tion from a as follows: 2 H. P. C. p. 438, ch. 46, ~ 43, Tit. Magifirate. Evid. 1 & 2 Wm. & Mary, 2 H. P. C. 15 ch. p. 104 5, ~ 61, p. 118. H. P. C. 428, Evid. ~ 5, 431. 1 Inft. 373. I Salk. 123. 1 Bac. 310, Baftardy. Kelyng, 32, an Authority much enlarged and infifted on. No Authorities produced on behalf of the King. N. B. It was ruled in this Caufe, that a Certificate from a Minifter in another Government, of the Marriage of two Perfons, might be admitted to prove the Marriage, though the Certificate was without any Authentication from any Magiftrate. The Reafon for this Admifflion was, that this Court had no Power to compell any one in another Province to give Evidence in a Caufe pending before this Court. In England it is otherwife, for a Latitat iffues in fimilar Cafes from the King's Bench. However, the Ch. Juftice feemed to doubt. Vid. Voltaire's Corn. on ye Effays on Crimes, &c. p. ist. (I) It appears by the record that the prisoner was acquitted, the attorney general having agreed that Ihe might give marriage in evidence, "tho' fhe answers to an indictment wherein fhe has the addition of spinifer given her." 164 March Term 5 Geo. S. 1765. Draper (1) verfy. Bicknell. (From Taunton.) Special Verdif. DRAPER rTHE Queftion in this Cafe was, whether a Man, BICKNELL. 1 having been only on the Alarm-Lift for a Rec. I765. Number of Years pafl, could be from thence fo Fol. 304. transferred by a general Warning from a Sergeant, A Perfon or Notification, as to make him liable to the PenSoldier upon alty of' the Law for Non-Attendance. (2) the AlarmLift of a Military Mr. Otis. Every man is prefumed, prima Facie, Company, to be on the Train-Band-Lift.'Tis for him to receives a lhow himself exempted; the fpecial Verdit does Notice from a Sergeant to not find any fuch Exemption. The Cafe is too appear at plain to bear Argument. Mufter, is thereby ren- Mr. dered liable to the Penalty of the Law for Non- (I) In the MS. this cafe is entitled " Clark v. Bicknall." Draper Attendance. was " Clerk" of the company. (2) The fpecial verdi& found as follows:" That in the year 1754, Japheth Bicknell, the plaintiff in review, was " returned to the Governour as a foldier upon the Alarm-Lift of the Third "Military Company in the town of Attleborough. That afterwards, in "the year 1757, the faid Japheth was duly warned to appear as a trained "band foldier at what was called a little training, which preceded the "General Mufter of said Company, and alfo to appear at faid General "Mufter; and that his name was called among the trained band fol"diers at both training and General Mufter, and that he did not appear "at either. They further find, that fome time before faid little training, "the Captain of faid Company declared that the faid Japheth fhould be "upon the trained band lift; but whether fuch declaration was made "before faid warning or not, doth not appear. And if, upon the "whole," &c. The March Term 5 Geo. $. 165 Mr. Trowbridge.'Tis found in the Verdi& that 1765. Bicknell had been on the Alarm-Lift. Now, will DRAPER fuch general Warning at once bring him into the BICELL. Train-Band-Lift? This, I take it, would be extending the Power of Officers beyond all Bounds. In fuch Cafe no Man is fafe; for when a Man is on the Alarm-Lift, he is prefumed exempted from Training. Now, after this, how unjuft is it, by fuch a general Warning, to clap him on the TrainLift and make him liable to fo heavy a Fine! It is putting it in the Power of every Officer to diftrefs his Neighbours, who from long legal Exemption have thought themfelves not liable to be transferred without fpecial Notice; and never was it till now pretended fuch Transfer could be made by fuch general The notification to appear, of which a copy is on file, is as follows: "Mr. Japheth Bicknell, - "You, being a Training Soldier in the Company of Militia, under "the Command of Capt. John Stearns, are hereby required in his "Majefty's Name to appear at your Colours upon Tuefday the 22d of "March next, at the Meeting Houfe in the fir/f Precint, at nine " o'clock in the Morning, on the fecond Beat of the Drum, with Arms " compleat, according to law; Whereof you are not to fail; it being "according to an Ad of the Great and General Court or Affembly of "this Province requiring the fame upon a penalty of paying the Sum "of twenty Pounds for Non-Appearance. "Attleborough, February 1757. JAMES PULLEN." The a& referred to was that of I757 by which the Province provided for railing I8oo men to ferve under Lord Loudoun againft the French; and the mufler, for non-attendance upon which fo heavy a fine was impofed, was held for the purpofe of raifing the above force, " either by inlifiment or imprefs." It appears by the papers on file, that the abfent Bicknell was drawn for the expedition, but was afterwards excufed on account of being " blind with the right eye." 166 March Term 5 Geo. s. 1765. general Warning. Your Honours will therefore DRAPER be cautious how fuch an arbitrary and unjuft PreceIC. dent is made. BICKNELL. Mr. Gridley.'Tis by Martial Law that every Perfon is obliged by fuch Warning to attend, unlefs exempted. Some Exemptions are only temporary, and they have not shewn whether theirs is of this Kind or not. If they abfent themfelves without being legally exempted, they muft bear the Confequences. 7Judgment for the Plaintiff (3) (3) The afion here reported appears by the record to have been " a plea of review of a plea of review of a plea of debt," - the fecond review " being authorized by an order of the Great and General Court." The case seems to have been obftinately contefted through feveral years. On the fir&i trial in the Inferior Court, the plaintiff had judgment. The defendant appealed and fucceeded in obtaining a reverfal. The plaintiff then brought his review, and obtained a fecond judgment. The fubfequent hiftory of the cafe is recited as follows, in the defendant's petition for the order abovementioned:.-.- "Your petitioner manifeftly made appear to this Honourable " Court, by former petitions, the hardfihip of that judgment; and it "appeared a fubje& worthy the juftice of this Court to give him a new " trial. " Accordingly, in the year x76r, the Honourable General Court " gave order for a new trial, and enabled your petitioner to bring a Writ "of Review for that purpofe. " This writ being bro't to the Superiour Court in Taunton, A. D. "' 76, the defendant Draper pleaded in abatement thereto, that the "pet'r did not name his aAion, a plea of review of a plea of review, &c. - "for this exception the writ abated and the petitioner had new coil to "pay to the adverfe party. " On representation of this matter to this Honourable Court, the "petitioner obtained an order for another Writ of Review, and that "the merits of the caufe ihould be confidered and determined. In this "writ the petitioner took care to amend the fault found with his lafi Writ, March Term 5 Geo. s. 167 "Writ, and named his plea, a plea of review of a plea of review of a plea 1765. "of debt; and, Alas I even fo he could not be right; for it was obje&ed "by motion that this Honourable Court's order authorized a writ of DRAPER "review of the a6tion of debt, but not a plea of review of a plea of re- "v "view, &c. So, on this motion the Court difmiffed the writ and "ordered the petitioner to pay coft. " Wherefore, the petitioner humbly prays an order may pafs this' Court to enable him to bring forward a new writ of review," " and "that the merits of his caud m4y be a laft determined." The prayer of the petition was granted, and an order paffed, by virtue of which was iffued the prefent writ, to which the defendant again pleaded in abatement, " that if any order of the Great and General Court of this Province authorizes the plaintiff to bring this writ, a profert of ye copy of fuch order in Court is not fufficient, as in this writ, but fuch order and ye feffion wherein it paffed ought to have been particularly fet forth above, and that such order appears by record of ye fame Court." This plea, however, was overruled, and the cafe at laft went to trial, and refulted in the fpecial verdiEt and decifion above reported. Auguft 27th, A.D. I765. 1765. T HERE cannot, perhaps, be found in the RecDESTRUC_".ords of Time, a more flagrant Inifance, to TION OF THE what a Pitch of Infatuation an incenfed Populace HOUSE OF THECHIEF may arife, than the laft Night afforded. The JUSTICE. Deftru&tions, Demolitions and Ruins caufed by the Rage of the Colonies, in general perhaps too juftly inflamed, at that fingular and ever memorable Statute called the Stamp.A&, will make the prefent Year one of the moft remarkable AEras in the Annals of North America. And that particular Inflammation which fired the Breafts of the People of New England in particular, will always diftinguifh them as the warmeft Lovers of Liberty; though undoubtedly, in the Fury of Revenge againft thofe who they thought had disclaimed the Name of Sons for that of Inflavers, and oppreffive Taxmafters of their native Country, they committed A&s totally unjuftifiable. The Populace of Bofton, about a Week fince, had given a very notable Inftance of their Deteftation of the above unconftitutional A&; and had sufficiently Augufr 5 Geo. 3. 169 fufficiently fhown in what Light they viewed the 1765. Man who would undertake to be the STAMP DIS- DESTRUCTRIBUTOR. * But, not content with this, the laft TION OF THE HOUSE OF Night they again affembled in King's Street, where, THE CHIEF after having kindled a Fire, they proceeded, in two JUSTICE. feparate Bodies, to attack the Houfes of two Gentlemen of Diftinction,t who, it had been fuggefted, were Acceffaries to the prefent Burthens, and did great Damage, in deftroying their Houfes, Furni: ture, &c.; and irreparable Damage in deftroying their Papers.+ Both Parties, who before had ated Separately, then unitedly proceeded to the Chief Juftice's~ Houfe, who, not expecting them, was unattended by his Friends, who might have aflifted, or proved his Innocence. In this Situation, all his Family, it is faid, abandoned the Houfe, but himfelf and his eldeft Daughter, whom he repeatedly begged to depart; but, as he found all ineffectual, and her Refolution fixed to ftay and {hare his Fate, with a Tumult of Paflions only to be imagined, he took her in his Arms and carried her to a Place of Safety, juft before the incenfed Mob arrived. This filial Affedion faved,'tis more than probable, his Life.- Thus unexpefted, and Nothing removed from the Houfe, an ample Field offered to fatiate, if poffible, this Rage-intoxicated Rabble. * Andrew Oliver, Efqr., Secretary of the Province, whofe Lofs was eftimated by the Committee of the Council at ~129, 3, o Sterling. + Benja: Hallowell, Efqr., Comptroller, and Wm. Story, Efqr., Deputy RegifRrar of the Admiralty. +- The Lofs of Mr. Hallowell was eftimated by the aforefaid Com. mittee at ~4I2, I9, I Sterling, and Mr. Story's at Io02, I, 6 Sterling. ~ Thomas Hutchinfon, Efqr., Lieutenant Governour of the Province. 22 170 AuguRt 5 Geo. 3. 1765. ble. They befet the Houfe on all Sides, and foon DESTRUC- deftroyed every Thing of Value.* TION OF THE HOUSE OF THE CHIEF Furor Arma m/nzflrat. JUSTICE. VIRG. The Deftruetion was really amazing; for it was equal to the Fury of the Onfet; but what above all is to be lamented, is the Lofs of' fome of the most valuable Records of the Country, and other antient Papers; for, as his Honour was continuing his Hiftory, the oldeft and mofi important Writings and Records of the Province, which he had feleded with great Care, Pains and Expenfe, were in his Poffefflion. This is a Lofs greatly to be deplored, as it is absolutely irretrievable. The Diftrefs a Man muff feel on fuch an Occafion can only be conceived by thofe, who, the next Day,$ faw his Honour the Chief Juffice come into Court, with a Look big with the greateft Anxiety, cloathed in a Manner which would have excited Compaffion from the hardeft Heart, though his Drefs had not been ftrikingly contrafted by the other Judges and Bar, who appeared in their Robes. - Such a Man, in fuch a Station, thus habited, with Tears ftarting from his Eyes, and a Countenance which ftrongly told the inward Anguifh of his Soul, - what mufi an Audience have felt, whofe Compaffion * The Lofs fuflained by the Chief Juftice fuppofed to be upwards.~3000 Sterling.t t Afterwards eftimated by the Council Committee at ~2376, 13, 4 Sterling. + Firfi Day of the Superiour Court's Sitting. - ~CYI- --- -r —----- -— ~ Auguft Term 5 Geo. 3. 17' Compaflion had before been moved by what they 1765. knew he had fuffered, when they heard him pro- DESTRUCnounce the following Words, in a Manner which TION OF THE the Agitations of his Mind di&tated! — THE CHIEF J USTICE. Augut Term V. Geo. S in Sup. Cur. Prefent: The Honourable Thomas Hutchinfon, Efqr., Chief Juiiice. LJohn Cufhingj Efqrs., Juftices. Peter Oliver, qJ I THE Chief Juftice, addreffing the whole} Court, faid,Gentlemen: There not being a Quorum of the Court with- ADDRESS OF THE CHIEF out me, I am obliged to appear. Some Apology JusTICE. is neceffary for my Drefs - indeed I had no other. Deftitute of Everything-no other Shirt —no other Garment, but what I have on. - And not one in my 172 Auguft Term 5 Geo. s. 1765. my whole Family in a better Situation than myfelf. ADDRESS OF The Diftrefs of a whole Family around me, young THE CHIEF and tender Infants hanging about me, are infinitely JUSTICE. more infupportable than what I feel for myfelf; though I am obliged to borrow Part of this Cloathing. Senfible that I am innocent, that all the Charges againft me are falfe, I cannot help feeling:- And, though I am not obliged to give an Anfwer to all the Queflions that may be put me by every lawlefs Perfon-yet I call GOD to witnefs,-and I would not for a thoufand Worlds call my Maker to witnefs to a Falfehood, —I fay, I call my Maker to witnefs, that I never, in New England or Old, in Great Britain or America, neither dire6ly nor indiretly, was aiding, aflifting or Supporting, or in the leafit promoting or incouraging what is commonly called the STAMP ACT; but, on the contrary, did all in my Power, and firove as much as in me lay, to prevent it. — This is not declared through Timidity, for I have Nothing to fear. — They can only take away my Life, which is of but little Value when deprived of all its Comforts, all that is dear to me, and nothing furrounding me, but the moft piercing Diftrefs. I hope the Eyes of the People will be opened, that they will fee how eafy it is for fome defigning wicked Man to fpread falfe Reports, raife Sufpicions and Jealoufies in the Minds of the Populace, and inrage them againft the Innocent - but, if' guilty, this is not the Way to proceed - the Laws of our Country are open to punifh thofe who have offended. Auguft Term 5 Geo. S. 173 offended. - This deftroying all Peace and Order of 1765. the Community - all will feel its Egfets. -And I ADSS OF hope all will fee how eafily the People may be THE CHIEF deluded, inflamed, and carried away with Madnefs JUSTICE. againft an innocent Man - I pray GOD give us better Hearts! The Court was then adjourned on Account of the riotous Diforders of the preceding Night and univerfal Confufion of the Town, to the 15th of October following. Learn WISDOM from the prefent Times! Oh, ye Sons of Ambition! beware left a Thirif of Power prompt you to inflave your Country. Oh ye Sons of Avarice! beware left the Thirft of GOLD excite you to inflave your native Country. Oh ye Sons of Popularity! beware left a Thirft of ApplauJe move you groundleffly to inflame the Minds of the People. - For the End of Slavery is Mifery to the World, your Country, Fellow-Citizens and Children, - the End of popular Rage, Deftrudion, Defolation and Ruin. Who, that fees the Fury and InJfability of the Populace, but would feek Protetion under the ARM OF POWER? Who that beholds the Tyranny and Oppre/ion of arbitrary POWER, but would lofe his Life in Defence of his LIBERTY? Who, that marks the riotous Tumult, Confufion and Uproar of a democratic - the Slavery and Diftrefs of a defpotic State, the infinite Miferies attendant on both, but would 174 Augur Term 5 Geo. 3. 1765. would fly for Refuge from the mad Rage of the ADDRSS oF one, and oppreflive Power of the other, to that belt THECHIEF Afylum, that Glorious Medium, the BRITISH CONSTITUTION! Happy People! who enjoy this bleffed Conflitution. Happy! thrice happy People! if ye preferve it inviolate. May ye never lofe it through a licentious Abufe of your invaluable Rights and Blood-purchafed LIBERTIES! May ye never forfeit it by a tame and infamous Submiflion to the Yoke of Slavery and lawlefs DESPOTISM. " Remember, O, my Friends, the LAWS, the RIGHTS, " The generous Plan of Power, delivered down "From Age to Age by your renown'd Forefathers; " So dearly bought, the Price of fo much Blood: " O, let it never perifh in your Hands, "But pioufly tranfmit it to your Children. "Do thou, great LIBERTY, infpire our Souls, "And make our Li'ves in thy Poefdion happy, " Or our Death GLORIOUS in thy juft Defence." (I) (I) Addifon- Cato, A& IV. Sc. 5. Auguft Term 5 Geo. s. 175 1765. CHARGE TO THE GRAND The Charge by the Chief Juitice given on the JURY. Adjournment. (1) aG ENTLEMEN of the Grand Jury: We, as the Superiour Court of the Province, are to carry the Laws into Execution, but in this we have Need of your Affiftance. Your Bufinefs, Gentlemen, more immediately refpeds the Crown Law. It is my Duty to inform you what Steps you muff take, and what Methods purfue. I have often, on thefe Occafions, gone into a diffin6t Detail of the feveral Branches of our Duty that more particularly fall under your Cognizance, and given fpecial Definitions of thofe Crimes, Offences and Mifdemeanours, concerning which the Grand Jury are to enquire: But now our Time is too far fpent to allow of this; and indeed there is the lefs Need, as our prefent Crimes arife not fo much from Ignorance, as other Sources. I fhall therefore only juft touch on fuch Definitions as I judge more efpecially neceffary. In general, Gentlemen, then, you are to enquire into all heinous Offences: —And thefe in general are thofe Crimes which hurt the Peace of the Community, and difturb the Order of Society. One of the moft renowned Men and greateft Sages of the Law (I) The adjourned fitting. 176 Auguft Term 5 Geo. 3. 1765. Law called himfelf the CurJos Morum, as well as CHARGE TO Curios Leguzm; and fuch, Gentlemen, are you; you THE GRAND are to fee that the Laws are kept inviolate, and the Manners of the People unpolluted. You are to enquire into all Treafons; and you are not to think there can be no Treafons at this Diftance from the Throne. Treafons may be committed here, as well as nearer the royal Perfon; and if; from our Diftance, we are exempted from thofe more overt A&s of affaulting the Perfon of the King, yet Treafon may be committed among us, by writing or fpeaking againit our Sovereign's Right to the Throne, confpiring with others to levy War, and a&ually levying War againft the King,* or the like. You are to infpe& all Felonies, Burglaries, Thefts, high-handed Affaults, Riots and other Difturbances: All Offences that more immediately refpet the Morals of the People you are to enquire of; fuch as the denying the Exiftence of a God, Blafphemy, or attributing to God what is inconfiftent with God, or denying what belongs, and is due to him, a Denial of the eftablifhed Religion, all Profanenefs, Lewdneffes, and thofe Crimes which a chafte Ear cannot bear the Recital of, - indeed, there is no Offence whatever but may come under your Cognizance. I *,u. Whether the Chief Juftice had not in Contemplation the following, or fome other fimilar Authorities:- If the Intention of riotous Affemblies is to redrefs Grievances of a publick Nature, and fuch Intention is executed, it is a le-vying War againft the King, and'reafon. Dalt. 322. 3 Init. 9. Kel. 70o, 76. H. P. C. ch. 17, ~ 25. H. P. C. ch. 65, ~ 6. Auguft Term 5 Geo. s. 177 I would efpecially mention one or two Crimes 1765. which demand your immediate Attention. Bur- CHARE TO glary, Gentlemen, by the Rules of the Common THE GRAND Law, is a forceable Entry into the Houfe of another JURY. in the Night-Time, with an Intent to commit fome Felony, whether fuch Intent be executed or not; and I would obferve, that there is no Need it Ihould be done fecretly; it may be as well done when a great Number are prefent, as when there are but few. Riots is another very high Offence; this indeed dbes not ftrike the Mind with fo much Abhorrence, as fome other Offences do, yet on the Difcouragement and Suppreffion of there, all Peace of Society depends. To prevent there, we muff all lend our whole Afliftance; for it is againft the natural Light of Reafon that fuch Offences ihould proceed with Impunity, and it greatly concerns every Individual to put a Stop to them. Such an Abhorrence has the Law, of Riots, that, if three or more affemble peaceably, and after, do fome riotous A6t, this is a riotous Affembly, notwithftanding they did not at firft affemble in a riotous Manner. The Law is thus fevere, becaufe fuch Affemblies, when not reftrained, generally refift all Oppofition, and tend to the Subverfion of all Government: There is no knowing where they'll end. I ihall not enlarge - indeed I may well be excufed, being fo much interefted myfelf. A facred Regard, Gentlemen, is to be had to your Oaths. You are to prefent no one through Malice, and leave no Man unprefented, through Fear, Favour or Affe&ion. Such a Situation are we in, at prefent, that'tis very difficult to divef 23 one's 178 Augurt Term 5 Geo. s. 1765. one's felf of all Connexions, and to preferve that CHARGE TO Firmnefs of Mind, on which depends the WellTHE GRAND being of us all. JURY. The Truft committed to you is very great and important. All Offences come under your Cognizance, and are to be prefented by you before they can be punilhed. Sometimes Informations are filed by the Attorney General, and in certain Cafes admitted, though we are very tender how thefe are indulged, as'tis a Hardfhip on the Subje&t; and I think there is no Cafe, in which a Man Ihall be tried for Life on an Information.* The Life of a Man fhall not be endangered, unlefs twelve Men of the Grand Jury fhall fay, he ihall be put on Trial, and twelve more of his Peers fhall all agree that he is guilty, before he Ihall lofe his Life. This is a Priviledge of which the Court is as tender as any of the Subje&ts, and therefore do not allow Informations, only in particular Cafes, and thofe very feldom. - It is of great Moment that you be very diligent in your Enquiry. One Thing more I would mention: You are obliged, each of you, not only to take Notice of fuch Offences as have been obferved to you by the Court, or that {hall be brought before you by the Attorney General, or others, but alfo of all thofe Crimes which come within your own Knowledge, or where you have fufficient Inducement to think Perfons have been guilty of Crimes, which have not been brought * -u. One may be conviaed of Felony on Indiament or Information by 5 Geo. I, ch. 4. Wood's Inft. 654. Augufft Term 5 Geo. 3. 179 brought forward by any one. In fuch Cafes, you 1765. ought to take Cognizance. CHARGE TO THE GRAND Further, Gentlemen, you will mind that Secrefy JURY. you are obliged by your Oaths to obferve. This is not obferved commonly fo much as it ought, but'tis abfolutely neceffary now. You may difcourfe among yourfelves, fend for particular Perfons, and examine them; and, whether what they tefltify is sufficient to find a Bill, or not, you are to keep all in Secrefy. The Danger of revealing what may come before you at this Time is very obvious;'twill not only prevent future Informations, but have a Tendency to countenance and increafe Crimes which it nearly concerns all of us to fupprefs. I ihall only add, that you muff ufe the ffri&eft Impartiality through your whole Enquiry, and I pray God to dire&t you in it. Pateihall verf. Apthorp & Wheelwright. PATESHALL eV. APTHORP. A CTION upon an Infimul Computa/Jent. It Rec. 1765. appeared that Wheelwright had made the Fol. 260. Settlement, as joint Partner with Apthorp, and, on the Account so flated, the Company were indebted In an Aflion of InJimul to the Plaintiff in a certain Sum, and that Wheel- Computafrent wright had given his tingle Note to balance the on an Ac. count acCompany's knowledged by one Part 18o Augurt Term 5 Geo. s. 1765. Company's Debt. The main Queftion was, whether PATESHALL this difcharged the Company.* cV. APTHORP. _ _- An incidental Queflion was debated, whether neragainItthe Apthorp ihould be admitted to give Evidence, that, Company, in this particular Tranfafl'on, there was no Privity it is competent for between him and Wheelwright. the other to fhow that the Tranfaction Mr. Auchmuty. One Partner can never be admitwas not in Partnerfhip. ted to prove his Ignorance of his Partner's TranfThe Ac- a&tions; for this would be to render all TranfaCtions ceptance of the Note in Trade with Partners precarious and uncertain, of one Partner for a and is direCtly againit all the Rules of Law. Company Debt, and balancing the Mr. Fitch. The Infimul Computajent is figned Company only by Wheelwright, and not by Apthorp, and therewith, is the fole Queftion is, if we may not prove Apthorp no Difcharge of the had Nothing to do with it. Company. Lynde, J., diientiente. Ch. ufiJ. Is there not a previous Queffion, whether it is in the Power of one Partner, thus to charge another? Mr. Fitch. We have an Authority to that Point. 1 Salk. 126, Pinkney vs. Hall. It is not in every Cafe that one Partner fhall be bound down by the other's A&t, fo as not to ihew he had no Concern in a certain Affair. Mr. *.u. If thefe Authorities would not have been pertinent: i2 Mod. 537, 86, 406. Cunningham on Bills of Exch. 95, 96, 5Io, x5I, I52. Vid. Noy, 140, Oldfield's Cafe; 5 Mod. 3x4; I Lutw. 466; 5 Co. 17; 4 Mod. 88; 2 Bac. Abr. 24; Str. 426; Burrow's Rep. I v. P, 9. Auguft Term 5 Geo., s. 18 Mr. Gridley. The Exception is this- that it is 1765. to no Purpofe to {hew we had Nothing to do PATESHALL in this Matter, becaufe Wheelwright has faid, we APTHORP. had. Can it be imagined, that one Perfon has a Power by his Notes, his Bills, his Bonds, at his Caprice to charge his Partner? If this is Law, an End of Partnerihips. The Authority we have produced is in Point. You fhall not charge ad Libitum, but you may charge in the Affairs of the Partnerfhip, and no further. Leap this Boundary - no End —no feeing to the End of the infinite Mifchiefs which will flow in upon us. Shall one Partner's barely ordering certain Affairs into the Books, charge the other, and eftop him from Proof of his having no Concern? It can never be. Mr. Auchmuty. Their Authority is not in Point, for it is founded upon the Cuftom of England. Mr. Gridley. No: the Common Law. Mr. Auchmuty. I take it to be only a particular Cuftom; but if on the Common Law, let us fee if the Inconveniences which will flow from their Do6trine, will not exceed any which may happen on admitting our Suppofition. If it is once known that a Man may thus flip his Neck out of the Collar, who will have Anything to do with Partners? But there is an Authority right under theirs', clearly with us. Mr. Gridley. There the Tranfa&tion was in Partnerfhip. Mr. 182 Auguft Term 5 Geo. 3. 1765. Mr. Auchmuty. To extend their Authority as far PATESHALL as is contended, would be inconvenient with a WitAV. nefs. Who, if there muff be an Inconvenience, is to fuffer?- One who relies on the Faith and Credit of the Copartners, or the Partners themfelves who are thus folemnly united? Shall Apthorp be allowed to prove himfelf clear, when his Partner has declared, under his Hand, that he is jointly concerned? Ch. zufi. Suppofe my Partner had charged me, by his Note of Hand - fhall not I be admitted to prove that I had Nothing to do in that particular Tranfaction? The Evidence was unanimoufly admitted, and the Chief Juftice faid, that Want of Clearnefs, or Ambiguity, ought not to be an Objeftion to Evidence, but the Jury ihould be left to judge. On the main Queftion, it was infifted by Mr. Auchmuty, that the Note given by Wheelwright was no Payment, and confequently no Difcharge of the Company. Words and Paper alone can never difcharge a Debt without any Payment. Hob. 68, Lovelace c4 ux. vs. Cocket. Mod. Cafes in Law and Equity, (1) 290, Springet vs. Chadwick. 1 Salk. 124, Clark vs. Mundal. A Contra&t remains in full Force till difcharged, and blank Paper will not difcharge it; they have given us no more. Nothing but a Satisfa&tion can difcharge; not even a Bond, by different Parties (fays Lord Hobart), fhall difcharge (I) 8 Mod. Auguft Term 6 Geo. s. 183 charge without Payment. And fhall this Note 1765. discharge without Payment? Never! and why PATESHALL "It is no Satisfation aftual and prefient, as it ought AP. to be." Hob. ub. fupra.* Mr. Gridley 4c Mr. Fitch offered fome Evidence to induce the Jury to think this was not a PartnerIhip Affair, and therefore Wheelwright could not make Apthorp chargeable. Upon the main Point, Mr. Gridley faid: Mr. Gridley. The grand Queffion is, whether Apthorp ftands indebted to Pateihall, according to the Settlement here produced. This is an Infimul Computaf/ent, a particular Mode of A6tion. You muff prove as you declare, or you muff fail, as in the Cafe of a Bond. This is an Agreement of the Parties, in which Patelhall has balanced the Account. The Agreement of the Parties muff be taken altogether. - No dividing - No, fays the Law- no Partition of what a Man fays. What does Wheelwright here fay? Why, that he and Apthorp owed. - Yes: but in the fame Breath he fays that he has paid Patefhall. There it ends. A Settlement is one undivided, indiffoluble Thing; and the Law fays, if you ground yourfelf upon it, you fhall take it altogether, or difcard it altogether. - But let us fee the Law. Their firft Authority is of a Bond; nothing to the Purpofe. But one Note may difcharge another; as *,U. If 2 L'd Raym'd, 928, &c., would not have been pertinent. 184 Auguft Term 5 Geo. $. 1765. as where the Note is of later Date. The Cuftom PATESHALL of the Place muff always be regarded; and it has V*. ever been here held, however it may have been in APTRP. England, that one Note would difcharge another. It is every Day's conflant Pra&ice, to fettle Accounts and give Notes in Difcharge. And I appeal to you, Gentlemen of the Country, what Confufion would overwhelm us, if all Settlements fhould be thus wiped away, and made of no Value. What is Law? What is the whole Common Law? It is the General Ufage. No Common Law found written, but handed down; and there is a Cufcomary Law; and you, Gentlemen, know what has been the uninterrupted, unvarying Cuftom of this Country. The Settlement is what it is; and you cannot vary from it; if you do, you make it what it is not. The Concefflon on one Side is, that Apthorp and Wheelwright are indebted; but the Conceflion on the other Side is, that it is paid by Wheelwright's Note. One Note may balance another, and furely then it may balance an Account. 6 Mod. 36. The Sum of what is faid is, that'tis a Settlement. You muff fettle it as it is fettled, or'tis your Settlement -not ours.'Tis like a Law, or a Willyou cannot alter or change it. You muff take it as you find it.'Tis as much a Conceffion in the Plaintiff, that the Note balanced the Account, as it was in Wheelwright, that the Balance was owing from the Company. Wheelwright faid, there was a Debt due. Patelhall faid, Wheelwright had paid it. Oliver, Augurt Term 5 Geo. s. 185 Oliver, YuJfice. There are two Points. As to 1765. the firif, it is pretty plain from the Evidence that PATESHALL Wheelwright and Apthorp were in Partnerfihip. AT. The only Queftion then is, if this Note was a Payment of the Company's Debt. I can't but think, as the Law ftands, the Note was no Difcharge of the Company. Yufi/t'e Cu/hing. I agree with my Brother Oliver in the firft Point, but as to the chief Point, the Authorities produced don't feem to come up to the prefent Queftion. Equity feems in Favour of the Plaintiff; and I don't know that the Law is againft him.?uftice Lynde. There is Evidence under Wheelwright's own Hand, that this Matter was in Company; but there is a greater Difficulty on the other Point. The Plaintiff acknowledges, by relying on this Settlement, that he received the Note, in full Satisfa&ion. A new Agreement is entered into; for he difcharges the Company and takes Wheelwright for his Security. One can't very well account for the Cafe in Hobart. It is quite extraordinary, that a Man fhould give a new Bond, and not take up the old. When Securities are changed, it feems to me that the old muff be discharged. Ch. yuJZice. The firft Queftion I take to be, Partnerfhip, or not. If one Partner receives Money, and carries it to the Company Account, clear Evidence that the Money was received in Partnerfhip. 24 The i86 AuguRt Term 5 Geo. s. 1765. The fecond Quefltion is, whether the Note given PATESHALL by Wheelwright difcharged the Company. Had V.- the Note been from Wheelwright and Apthorp, I APTHORP ould have had more Doubt. The Plaintiff here gives Credit for Note of Wheelwright's. Now, whether the Contra&t with the Company can be fuppofed to continue, after Wheelwright had taken the Company's Debt upon himfelf, and Pateihall had received the Note as a Balance of the Company Account, I doubt.* The.Yury found for the Plaintiff. APTHORP Afterwards, a Writ of Review being brought, PATESHALL. the Caufe was again argued, before the Chief JufRec. I766. tice, Juftice Lynde and Juflice Ruffell. Fol. 9. yuftice Ru/iJell was full with the original Plaintiff. Lynde, J7gztice continued itrongly of his former Opinion; and was itrenuoufly in Favour of the Plaintiff in Review. The Doubts of the Chief yuftile were, on this Tryal, removed, and he faid that, from the Authorities, it was very clear, that the Note was no Difcharge of the Company.t (2) The * Vid. Cun. L. Dilt'y Tit. Acceptance. + -,u. if there Authorities would not have been pertinent to the Point in Queftion: 3 Cro. 85, 86. 2 Cro. 650. i Mod. Rep. 221, 225, 3 Lev. 55. I Brown. 47. (2) The oppofite doarine has long been eftablifhed, both in this country and England. See Story on Partn. ~ I55 and note. Arnold v, Camp, It Johns. 409. French v. Price, 24 Pick. 23. Augufi Term 5 Geo. S. 187 The Jury was of the fame Opinion with the Jury 1765. upon the laft Tryal.'V. Judgment being entered, Mr. Gridley moved for an Appeal Home, which, not being oppofed, was granted. Dunn verf. Scollay. (1) Cafe of HofJage R4 Ranfom. A UTHORITIES in Favour of the Plaintiff DUNN were, Molloy (old Edit.) 205, ~ 10, 212, SCoV.AY ~ 14, 213, ~ 14; Molloy (new Edit. 1744) 358, R 66 Rec. 1766. 237-8, Fol. IO. (i) This aftion was firif brought in the Court of Vice Admiralty, to which Court a prohibition was iffued and confirmed, on argument, by the Superior Court. See ante, p. 74. The plaintiff then brought his action in the Court of Common Pleas, and recovered judgment for ~700; from which judgment the defendants appealed to this Court. From the various papers on file, it appears that the cafe was as follows: The Brigantine Peggy, belonging to John Scollay of Bofton, configned to Wm. Sitwell, London, was, on the 26th Otober, I756, taken at fea by the French privateer Entreprenante, then returning from trading in negroes on the coaft of Guinea. The captain of the Peggy drew a ranfom bill on the confignee, and fent Dunn, the firft mate, with the French captain as a hoftage. The Peggy proceeded on her voyage, but again fell into the hands of the enemy, and was taken into Bourdeaux, where the captain died in prifon. Dunn in the meanwhile had been committed to the prifon of Bouffay at Nantz, where he remained in a fick and deftitute condition. Sitwell claimed that the underwriters fhould pay the ranfom money for his discharge, but, as they refufed, he wrote i88 Auguft Term 5 Geo. s. 1765. 237-8, 244-5; 2 Ld. Raymond, 931; Ld. Holt's DUNN Opinion relied on; Sea Laws, 128.'V. SCOLLAY. In Favour of the Defendant were, 2 Chancery Cafes, 239; 1 Salk. 35; 3 Bacon, 592, 595- (2) wrote to Dunn, that there was "no Way to compell them without Law, and that would be attended with great Uncertainty, as this, they fay, is a Cafe has not been try'd "- and alfo that he was initrudted by Scollay to fettle without regard to the ranfom bill. He did, however, allow Dunn Is. per day for his fupport in prifon. In a letter from Scollay to Sitwell, after the former had heard of the firit capture and ranfom, he claimed that, as he had given the captain no orders to ranfom the veffel, if taken, the money mufft be paid either by the infurers or the captain; but, as the latter might not be able to do fo, if the fhip were loftll, he direEted Sitwell to infure for Dunn's benefit the amount of the ranfom money on the veffel and cargo, offering to be refponfible himfelf for the premium. Before this letter was received, it is probable that news arrived of the fecond capture. Dunn remained in prifon fix years, and his final liberation is thus defcribed in a letter from Sitwell: "Jno. Dunn, yt was Freeman's Mate, has at length obtained his' Difcharge. His Friends compounded ye Affair for about 200oo, and "have fent about a Subfcription to raife ye Money. - I thought the " Affair would have ended here, but his Friends are of Opinion yt ye Owners are liable to make good all Damages, & have advifed " him to go over & endeavour to recover it. They have taken ye Opin-' ion of fome of ye beft Counfel here, weh are in his Favour. - How " your Courts may determine this Affair, if it fhould come to Tryal, I " know not." From the authorities cited, it would feem probable that the cafe turned upon the queftion of the mafter's power to bind the owner by a contra& of ranfom, without fpecial orders to that effeA; and, that the ruling of the Court was againif the plaintiff, feems probable from the verdid, which was for the appellant, reverfion of the former judgment and coifs. (2) This lift of authorities was at firft fuppofed to refer to the former cafe, and was accordingly printed in a note to page 83. Augurt Term 5 Geo. s. 189 1765. NoRWOOD Norwood verf. Fairfervice. V. FAIRSERVICE. XNORWOOD brought his Aftion againft Fair- Rec. 1765. fervice on an Indenture, for that Fairfervice Fol. 238. covenanted to pay ~13., 6., 8. per ZQarter for Rent Whether an of a Sand-Bank, and had not paid, &c. Defendant alleged Alterpleads, Non dims/it. The Plaintiff produces in Evi- Daton inaa dence, to fupport his Demand, one Part of' the made before or after its Indenture figned by the Defendant, wherein the Execution, is Demife is acknowledged, and Payment of the a OQueftion of Fad for the above Sum per Quarter is covenanted. Jury. In Debt for Rent Mr. Auchmuty, for the Defendant, offered to give upon an indenture, the in Evidence to defeat the Demand, the other Part Defendant may, under of the Indenture, figned by Norwood, wherein he the Plea of demifes as aforefaid, for the fame Sum per Year. Non dimifit, give in Evidence the Mr. Fitch, for Plaintif, then fuggefted a Fraud of theInPdenin the Defendant, from whence this Difference arofe, ture which referves a difand prayed Judgment, whether this Indenture pro- ferent Rent. duced by Defendant ihould go in Evidence to the Jury. Mr. Auchmuty. I take it, the Gentleman is too early in his Objeftion; for Fraud or no Fraud {hall be try'd by the Jury, and not by the Court. It is a plain Matter of Fad, of which the Jury are the fole Judges. Befides, of what Advantage will it be for the Court to determine this Matter? The Jury, after all, will determine whether this Variance was made before, or fince the Execution of this Deed; and will give what Credit they pleafe to it; fo 19o Augurt Term 5 Geo. 3. 1765. fo that for this Court to pafs their Judgment will NORWOOD avail Nothing. Neither do I think the Court FAIV. have any Right to determine this Matter; for'twill FAIRSERVICE. be abridging the Priviledges of the Subje&t, to settle a Point which wholly lies with the Jury to determine. In Anfwer to which, it was urged by Mefrs. Gridley 4 Fitch, that it had always been the Cuftom of this Court to determine in fuch Cafes. To which the Court agreed; and Yufzice Lynde said that he knew a fimilar Cafe of one Lanfon's, in Middlefex: But the Chief Juftice anfwered, that he had always doubted in thofe Cafes, but whenever they arofe, the Court always affirmed the conftant Pradtice, and fo he was filent.'Twas then further urged by the Plaintiffs Council, that this Pra&ice was well founded, and the Reafon of it was this, that Nothing fhould go to a Jury which would only tend to deceive and inveigle them; and that therefore when a Piece of Evidence was offered, on the Face of which Fraud appeared, the Court reje&ted the Evidence, as'twould only tend to miflead. And, as to what Mr. Auchmuty had laid, that the Court's Opinion would be of no Effet,'twas anfwered, that, if the Court, upon Infpe&ion, were of Opinion that the Indenture had been fraudulently altered, it was then not Norwood's Deed therefore no Evidence. For Courts will never admit that to go in as Evidence, which, prima Facie, they judge a Fraud; and the Jury can't judge of that which is not admitted to go to them. Duft. Auguft Term 5 Geo. 3. 191 YufZ. Oliver. This properly belongs to the Jury. 1765.' I am for admitting it to go in. NORWOOD,V. FAIRSERVICE. YufJ. CuJhing. The Jury is fole Judge of this; they muft give what Credit they pleafe. yuftice Lynde. As the Praftice of this Court has always been otherwife, I am for viewing it. Ch. yufJzce. I know the Cuftom has been otherwife, but, for my Part, I think'tis Time it was altered —am for admitting it. (I) Another Objeftion was then made on Behalf of the Plaintiff, againft this Counterpart of the Indenture being Evidence: For that the Indenture declared on was the Defendant's Deed -had been produced, and, by being admitted, the Defendant was eftopped to fay the contrary; that, if the Counterpart produced by the Defendant fhould be admitted, it would prove Nothing againfit his own Deed. Mr. Auchmuty. It has been faid, we have admitted the Indenture produced was our Deed. So far from admitting Anything, we have denied their whole Declaration; for we have pleaded, Non dimjit. We could not poffibly have been farther from admitting this Deed than by pleading as we have done.* Befides, our Part and theirs make but one Infirument; * Sed vid. 4 Bac. Abr. 84. (I) See Ely v. Ely, 6 Gray, 442; x Smith's Lead. Cas. (Hare & Wallace's notes) 96i, 2. 192 Auguft Term 5 Geo. s. 1765. Inftrument; for in all the Books'tis, Hac Indentura. NORWOOD They have declared on a certain Indenture, made rV. between the Plaintiff and Defendant, which is not FAIRSERVICE. FAIRSERVICE. complete without our Part, for they have produced only one Part, and the other lays with us to produce. Mr. Gridley. We have declared, that, by one Part thereof, figned by the Defendant, he, in Confideration that we had demifed, &c., he covenanted, &c. He has pleaded, Non dimijit. To prove our Allegation, we have produced his Deed; and he is eftopped to fay the contrary, and offer in Evidence an Inftrument that he fays was figned by us. - What can it prove' That we did not demife. That is the Iffue. And here is his Deed in which he acknowledges that we did demife, and that he covenanted as we have declared.'Tis abfurd to offer this Paper to defeat his own Deed. It can't be done. Oliver, 7ufl. I think it can't be admitted. Cu/zing, 7ufl. He is eftopped, I think. Lynde, Yufl. I am very far from being fo clear in it. N. B. No Authorities were produced, and the Council on each Side acknowledged the Points were unexpe&tedly ftarted. The Chief 7ufJice, who had been abfent the whole Argument of this laft Obje6tion, came into Court foon Augurt Term 5 Geo. s. 193 foon after this laft Determination; upon which Mr. 1765. Auchmuty moved for his Opinion: But Mr. Gridley NORWOOD obje&ted, his Honour not having heard the Argu- FAIRSRVICE. ment, and the Ch. Juftilce faid, he the rather declined giving his Opinion, as there was but 4 Judges prefent; and two being againft admitting it, his Opinion would avail Nothing. But, on the State of the Cafe by his Brethren, he feemed inclined to admit the Counterpart of the Indenture to go in as Evidence. Mr. Auchmuty then ordered a Review to be minuted, and faid, if he was wrong now, he never was right in his Life. At the next Trial, which I did not hear, the FAIRSERVICE Court admitted the Counterpart of the Indenture NORWOD. to go in, as Mr. Auchmuty informed me. (2) Rec. 1766. Fol. 7. Pond verf. Medway. (1) (About an Highway.) POND'V. RULED, on Argument, unanimoufly by all the MEDWAY. 5 Judges, — That, on a Certiorari, no Evi- Rec. 1765. dence fhould be admitted, but what came up in Fol. 232. the On the Return of a Certiorari no (2) The firif judgment was reverfed on the review. Evidence is (I) In the MS. this cafe is entitled Wirentham 85 Medway, The admiffiors the petitioners were " John Pond of Wrentham and others," Record. 194 Augurt Term 5 Geo. 3. 1765. the Cafe:(2) And the Council was not admitted POND to mention any Fads, but what appeared from the ME. Record. MEDWAY. The Reafon affigned by the Court was, that it would be Injuftice to the Sefflions to judge on Matters which from the Record returned, did not appear to have been before them. Watts verf. Hafey. WATTS W ATTS fued Hafey upon a Mortgage, and V. Hafey was defaulted at the lower Court, HASEY. but appealed. Judgment was entered up in the Rec. x765. RFol. 244 Inferiour Court, agreeable to the Province Law, In an ap- 10 Wm. 3, (1) referving two Months. pealed A&ion upon a Mort- Mr. Kent now brought a Complaint, praying gage,Judgment for the that, as the two Months had already been allowed, Mortgagee is Execution might iffue in twenty-four Hours after conditional, refervingtwo Judgment. He urged, that in the Province Law Months, according to the Words were, " in all Cafes brought for Tryal in Prov. St. [o the Superiour Court," &c. Now, he faid, this W. 3, although the A6tion was not brought for Tryal; for it was defaulted ias the faulted in the Court below, and therefore could not Inferiour be try'd now. Befides, if Execution did not iffue Court, and two Months till have elapfed fince the Judgment ap- (2) S. P. Rutland v. Worcefter, 20 Pick. 78. Per Curiam, " When pealed from. the record is before the Court upon the return of the writ, the Court will look only at the record." See io Met. 2I9. (I) Anc, Chart. 324. Auguft Term 5 Geo. s. 195 till the Expiration of two Months, the Stamp-A&t 1765. would take Place, and then Execution could not WATTS be had at all. Moreover, as the Equity of the Law HAy. had been fatisfy'd, he prayed that Cufcom might not bar him, which had prevailed, becaufe never before aiked to be altered, and never before a like Reafon for granting fuch a Requeft. The yuJlices, Oliver, Rufell, Cu/hing 4 Lynde faid, the Ufage had been uninterrupted, and the Conftru&tion of the Law thereby eftablifhed; therefore they would make no Innovation. Ch. yuflice. All Cafes brought to this Court are certainly brought for Tryal, let them come up how they will. Nolumus mutare Leges Anglie. Tyler verf. Richards, Adminifirator. INDEBITATUS ASSUMPSIT, for Boarding TYLER and Schooling Inteftate's Son. Proof that the RICHARDS. Inteftate promifed to pay honourably. Rec, 1765. Fol. 243. Mr. Auchmuty. This Action will not lye; they Indebitatus 4/fumpfit for ought to have brought a 2)uantum Meruit. Law of Boarding and Evid. 190. Schooling Defendant's Son, is not MeJfrs. S. Q2gincy,4 Adams. It has always been fppofrted by the 196 Augurt Term 5 Geo. s. 1765. the Cuflom of this Court, to allow an Indebitatus TYLER A/fumpjit to lye, if the Services alledged were,I. proved to have been done. As every Man is fupCHARS. pofed to affume to pay the cuftomary Price. Af' Promife "to fumpfit is always brought for Work done by pay honourably."o Tradefmen, and is always allowed. The Price for Boarding and Schooling is as much fettled in the Country, as it is in the Town for a Yard of Cloth, or a Day's Work by a Carpenter. Mr. Au.chmluty. It is high Time fome Rule was fettled by this Court in Relation to there Adions; For if a yuantum Meruit is not neceffary here,'tis neceffary in no Cafe. The Pra&tice has always been varying, the Court Sometimes denying, and Sometimes allowing fuch Proof, to fupport there A&tions. But had Indebitatus Ajumpfit been brought for a Yard of Cloth, and the Evidence had been a Promife to pay honourably, I'm fure'twould have defeated the Aftion. My Lord Gilbert fays, " Courts muff go according to the Allegata et Probata." Now, what is alledged here? That my Client promifed to pay abfolutely fo much. What is the Proof'? That he promifed to pay honourably. If this Proof is admitted, there will be an End of any Diftinftion between Indebitatus.A4umpfit and a 4,antum m eruit. The whole Court, abfente Ru/fell, were unanimous that this Evidence would not fupport the Declaration; on which the Plaintiffs discontinued, paying Cofts.* * Sed vid. the caufe of Pyncheon vs. Brerwfter, poft. Augurt Term 5 Geo. 3. 197 1765. At the Clofe of this Term, the Chief Jutfice thus addreffed himfelf to the Bar. ENTLEMEN of the Bar: I cannot but with ADDRESS BY Pleafure obferve to you the Harmony which THE CHIEF JUSTICE. has fubfifled between all of you in our prefent Seffion, and that Unanimity and Order which has prevailed univerfally amongft us through this whole Term. I the rather obferve this, becaufe, in moft Parts of the Province there has been great Difturbances. I thought this Notice juftly due, and cannot but hope'twill ferve as a future Precedent to us all, and a good Example to the Community. N. B. Through this Term James Otis, Jr., Esq., was abfent at the CONGRESS, held in New York, relative to the Stamp-At, which was to take Place the firfi of November next. 198 December, 5 Geo. s. 1765. HE SUPERIOUR COURTS, in their feveral Circuits, having, for the Want of Stamp-Papers, done no Bufinefs, except barely opening the Court, and continuing all Matters over to the next Term, ever fince the StampAct was to have taken Place in the Colonies;The Town of Boiton, at a Meeting on December the 8th, 1765, voted, that the following Memorial be prefented to his Excellency the Governour, in Council. And that Jeremy Gridley, James Otis, Jr., and John Adams, Efqrs., be applied to as Council to appear in Behalf of the Town in Support of the faid Memorial. MEMORIAL PROVINCE OF THE OF THE TOWN MASSACHUSETTS 5 OF BOSTON. BAY. Town Rec. x765. Fol. 669. To his Excellency the Governour in Council. The Memorial of the Town of Bofton. Humbly fhews, - HAT your Memorialifcs, having a juft Senfe of the Value of the Britifh Conftitution of Government, under which they have enjoyed all the December, 5 Geo. 3. 199 the Bleffings of civil Life, cannot but be deeply 1765. affe&ed, when the Channels through which thefe MEMORIAL Bleffings are derived to us are obftru&ed; which, OF BosTON. at Prefent, is our unhappy Cafe. The Courts of Law within the Province, in which alone Juftice can be diftributed among the People, fo far as refpeEts Civil Matters, are to all Intents and Purpofes ihut up; for which your Memorialifis apprehend no juft and legal Reafon can be affigned. We have always underflood, that the Law is the great Rule of Right, the Security of our Lives and Property, and the Beft Birthright of Englilhmen. Under there Apprehenfions, we make our humble Application to your Excellency in Council, with whom the Executive Power within the Province is conifitutionally lodged, that you would be pleafed to give fuch Dire&ions, to the feveral Courts and their Officers, as that, under no Pretence whatever, we may be any longer deprived of this invaluable Bleffing. And your Memorialiffs pray that they may be heard upon this moft important Subjet by their Council learned in Law. And, as in Duty bound, they ever pray, &c. Atteft, W. C., Town Clerk. 200 December, 5 Geo. 3. 1765. MEMORIAL OF BOSTON. Council Chamber. Prefent: His Excellency Francis Bernard, Efqr., Governour, &c., in Council. R. ADAMS. Innumerable are the Calamities which flow from an Interruption of Juffice. Neceflity requires that the Doors of Juftice fhould ever be open to hear the Complaints of the Injured and Oppreffed. The Stamp-A&, I take it, is utterly void, and of no binding Force upon us; for it is againft our Rights as Men, and our Priviledges as Englifhmen. An A&t made in Defiance of the firft Principles of Juftice; an Adt which rips up the Foundation of the Britifh Conftitution, and makes void Maxims of 18oo Years ftanding. Parliaments may err; they are not infallible; they have been refuted to be Submitted to. An A&t making the King's Proclamation to be Law, the Executive Power adjudged absolutely void. The December, 5 Geo..2 201 The Stamp-A6t was made where we are in no 1765. Senfe reprefented, therefore no more binding upon MEMORIAL us, than an ACt which ihould oblige us to deftroy OF BOSTON. One Half of our Species. There are certain Principles fixed unalterably in Nature. Convention and Compad are the Requifites to make any Law obligatory. That the Subjed is not bound by A&ts, when he is not reprefented, is a found Maxim of the Law, and not peculiar to the Britifh Conifitution, but a Maxim of the antient Roman Law: "What concerns All fhall be judged of by All." The only Reafon of the Power of the Parliament in England is, becaufe they are eleted by the People, who, if their Liberties are infringed, have a Check at the next Eletion. Have Americans any fuch Check? Have they any Voice in Deputation? A Parliament of' Great Britain can have no more Right to tax the Colonies than a Parliament of Paris. This Act has never been received from Authority, therefore in a legal Senfe we know Nothing of it. The Neceffities of Bufinefs, the Cries of the People, call aloud for Juftice. It has become impoffible to execute this Adt, therefore, if it were binding, we are excufed by every Law, human or divine, from a Compliance with it. Wood's Inft. The King's Writs are ex deblt Jyufltid, and cannot be denied the Subjet. And in Magna 26 Charta, 202 December, 5 Geo. s. 1765. Charta, it is faid, we deny no Man Juffice, we MEMORIAL delay no Man Juftice. 2 Inmf. ch. 29, p. 56. (1) OF BO STON. Mr. Otis (opened with Tears). It is with great Grief that I appear before your Excellency and Honours on this Occafion. A wicked and unfeeling Minifter has caufed a People, the moft loyal and affeCtionate that ever King was bleffed with, to groan under the moft infupportable Oppreffion. But I think, Sir, that he now ifands upon the Brink of inevitable Deftru6tion; and truft that foon — very foon, he will feel the full Weight of his injured Sovereign's righteous Indignation. I have no doubt, Sir, but that the loyal and dutiful Reprefentations* of nine Provinces, the Cries and Supplications of a diftreffed People, the united Voice of all of His Majefty's moft loyal and affeftionate Britiff-American Subjects, will obtain all that ample Redrefs they have a Right to expeft; and that e'er long, they will fee their cruel and infidious Enemies, both at Home and abroad, put to Shame and Confufion. My * Alluding to the Tranfa&tions at the late Congrefs. (I) See John Adams's Diary, December 20, i765. " 1I grounded my argument on the invalidity of the Stamp-A&t, it not being in any fenfe our ac, having never contented to it. But left that foundation fhould not be fufficient, on the prefent neceflity to prevent a failure of juftice, and the prefent impoffibility of carrying that a& into execution. Mr. Otis reafoned with great learning and zeal on the judges oaths, &c. Mr. Gridley, on the great inconveniences that would enfue the interruption of juftice." 2 John Adams's Works, x58, 9. December, 5 Geo. 3. 203 My Brother Adams has entered fo largely into 1765. the Validity of the A&, that I fhall not enlarge on MEMORIAL that Head. Indeed, what has been obferved is OF BOSTON. fufficient to convince the moft illiterate Savage that the Parliament of England had no Regard to the very firft Principles of their own Liberties. Only the Preamble of that oppreflive AAt is enough to roufe the Blood of every generous Briton. -" We your Majefty's Subjefts, the Commons of Great Britain, &c., do Give and Grant" — What? Their own Property? No! The Treafure, the Heart's Blood of all your Majefty's dutiful and affedtionate Britifh-American SubjeCts. But the Time is far fpent - I will not tire your Patience. It was once a fundamental Maxim, that every Subje&t had the fame Right to his Life, Liberty, Property and the Law, that the King had to his Crown; and'tis yet, I venture to fay, as much as a Crown is worth, to deny the Subje&t his Law, which is his Birth-right.'Tis a firft Principle, " that Majefty fhould not only fhine in Arms, but be armed with the Laws." The Adminifration of Juflice is neceffary to the very Exiftence of Governments. Nothing can warrant the ftopping the Courfe of Juftice, but the impoffibility of holding Courts, by Reafon of War, Invafion, Rebellion or Infurreftions.* 1 Inft. 249, a & b. This was Law.at a Time when the whole Ifland of Great Britain was divided into an infinite Number of petty Baronies and Principalities; as Germany is, at this Day. Infurrections * Vid. Molloy de aJre Mar. p. 6, ~ 9' 204 December, 5 Geo. $. 1765. Infurre~tions then, and even Invafions, put the MEMORIAL whole Nation into fuch Confufion, that Juftice OF BOSTON. could not have her equal Courfe; efpecially as the Kings in antient Times frequently fat as Judges. But War has now become fo much of a Science, and gives fo little Difturbance to a Nation engaged, that no War, foreign or domeftic, is a sufficient Reafon for hutting up the Courts. But, if it were, we are not in fuch a State, but far otherwife; the whole People being willing and demanding the full Adminiftration of Government. Vid. Bracton, 240. The fhutting up of the Courts is an Abdication, a total Diffolution of Government. Pollexfen's Argument at the Revolution Conference, Rapin's Hiftory, 790. Jones, 773, 774. Whoever takes from the King his executive Power, takes from the King his Kinglhip. Vid. the Speeches of Holt, Somers, Nottingham and other Lords. Rapin, 790. Vid. Bradton, 107.'"The Laws which forbid a Man to purfue his Right one Way, ought to be underftood with this equitable Reftri&tion, that one finds fudges to whom he may apply. When there are no Courts of Law to appeal to, it is then we muff have Recourfe to the Law of Nature," &c.* Hugo Grotius, de Jure B. 4 P. Lib. 1, C. 3,~ 2. Lib. 2, C. 4,~9. C. 7, ~ 2, n. 2. C. 20, ~ 2, P. 4 & 5, with Mr. Barbey. rac's Notes. Code, Lib. 1, Tit. 9, De Mud. 4. Cal. I * Vid. Molloy De Jure Mar. ch. 2, ~ 5, December, 5 Geo. S. 205 I can't but obferve that cruel and unheard of 1765. Negle& of that Enemy to his King and Country, MEMORIAL the Author of this A&, that, when all Bufinefs, the oF BOSTON. very Life and Being of a commercial State, was to be carried on by the Ufe of Stamps, that wicked and execrable Minifter never paid the leaft Regard to the Miferies of this extenfive Continent, but suffered the Time for the taking Place of the A& to elapfe, Months before a fingle Stamp was received. Though this was a high Piece of Infidelity to the Intereft of his royal Mafter, yet it makes it evident that it could never be intended, that if Stamps were not to be had, it fhould put a Stop to all Juftice; which is ipfo Falfo a Diffolution of Society. It is a ftrange Kind of Law, which we hear advanced now-a-days, that, becaufe one unpopular A& can't be carried into Execution, that therefore there ihall be an End of all Law. We are not the firif People who have rifen to prevent the Execution of a Law; the very People of England themfelves rofe in Oppofition to the famous Jew-Bill, and got that immediately repealed. And Lawyers know that there are Limits, beyond which if Parliaments go, their Ads bind not. 4 Infl. 122. The King is always prefumed to be prefent in his Courts, holding out the Law to his Subjedts; and when he ihuts his Courts, he unkings himfelf in the moft effential Point. 18 E. 3, ch. 1. 1 H. 4. 20 E. 3, ch. 2. 4 H. 4, ch. 1. Vattel, p. 2o. And Magna Charta, and the other Statutes are full, "That they will not defer, delay or deny to any Man Juftice or Right." "That it Shall not be commanded 206 December, 5 Geo. s. 1765. commanded by the Great Seal, or in any other Way MEMORIAL to difturb or delay Common Right." The Judges OF BOSTON. of England are " not to counfel, or affient to any Thing which may turn to the Damage or Difherifon of the Crown." They are fworn not to deny to any Man Common Right, by the King's Letters, nor none other Man's, nor for none other Caufe. Is not the Diffolution of Society a Disherifon of' the Crown? The "Juftices are commanded, that they fhall do even Law and Execution of Right to all our Subjets, rich and poor, without having Regard to any Perfon, without letting to do Right for any Letters or Commandment which may come to them from Us, or from any other, or by any other Caufe." 4 Init. 70. (2) His Excellency the Governour. The Arguments made Ufe of, both by Mr. Adams and you, would be very pertinent to induce the Judges of the Superiour Court to think the A& of no Validity, and that therefore they ihould pay no Regard to it; but the Queftion with me is, whether that very Thing don't argue the Impropriety of our Intermeddling in a Matter which folely belongs to them to judge of in their Judicial Department. And can it be proper for us to command them to a&t in any particular Way, relative to a Matter which is to come before them in their Judicial Capacity? efpecially, as from fome of the very Authorities you have cited, it appears, that the Judges are to obey no Mandate, come it from whomfoever it will. Mr. (2) See Bofton Gazette, December 30, I765, January 6, I766. 2 John Adams's Works, I74. December, 5 Geo. S. 207 Mr. Otis. Thofe Mandates fpoken of in the 1765. Authorities, are fuch as are made to delay yufiice, MEMORIAL and command the Judges not to proceed. That oF BosToN. very Thing, I take it, lhews that Juflice is never to be fltopped, but that the Law ihall always have its own Courfe. And furely your Excellency mufft fee a great Difference between a Command in Delay of Juflice, and one made in its Furtherance. There is certainly a very wide Diflintion to be made, between faying, Juflice ihall flop, and a Command or Recommendation to the Judges, to proceed in the feveral Courts of Judicature, according to the Laws and Cufloms of the Country.* Mr. Gridley. The Queftion now before your Excellency and Honours, is of great Confequence, of very great'Weight. The Safety of the whole People, the Prefervation of all Government is in Iffue. All Laws are divided into public and private, criminal and civil. The Criminal Law is as free as ever; for the A&t excepts Criminal Matters. The Benignity of the Law fays, if the Intention of the Party cannot operate one Way, it fhall another.'Tis fo in all private Tranfa&ions: —How much more fo in Things of a publick Nature! Though the criminal Law is free, yet there is fuch an intimate Conneftion between this and private Law, that the one cannot fubfifl without the other. Deprive me of the one, and'tis worfe * -i. if Fofter's Crown Law, 269, might not have been argued upon by way of Analogy. 208 December, 5 Geo. s. 1765. worfe than if you deprived me of both. My MEMORIAL Property is invaded, but the Invader is no CrimiOF BOSTON. nal. Where then is my Remedy? He, who deprives me of my Remedy, deprives me of my Right. What fhall be done? To fhut up the Courts is a Renuntiation of Government. What! fhall I live in a Society, and yet have no Redrefs of my Wrongs' Shall I have no Remedy againft him who has broken his moft folemn Contraats and Engagements' Shall I bear the Infults of Infolence, and have no Recompence for my Damage and Sufferings as a private Individual? I have an Eftate, but I have no Security. - Purfue the Thought, and it is dreadfull. Hunger will break through a Stone Wall. Difputes, Animofities, Wrangles, Difaffeftions, Hatreds, Heart-burnings, Tumults, Confufions, —'tis eafy for the Imagination to trace the infinite Miferies which rufh in upon us like an Inundation; - no Need to purfue it further. What was the Law inftituted for? For the Proteftion of my Perfon and Eftate. Government is fubverted if the Law is not open.'Tis abfurd to fuppofe that Society can take away from me my Right of Self-prefervation as a Man, and not prote& my Property as a Citizen. The People muff return to a State of Nature. And I had much rather be a Barbarian of the Woods, than live in a State once under Government, but now reduced to Anarchy and Confufion. The Knowledge obtained in Society has only fitted them to execute their Perpetrations with more Dexterity, and rendered their Plots the more terrible. But December, 5 Geo. S. 209 But let me put the Cafe, that all the Stamp- 1765. Papers had been deftroyed by Tempeft, or fome MEMORIAL other Cafualty: The Courts in fuch a Cafe muff OF BOSTON. have proceeded. There is now as much an Impoffibility to ufe thofe Papers, as though they were all in the Bottom of the Ocean. There is not a Syllable in the AC which has the leaft Afpe&t, that Courts fhould ftop, if Stamps were not to be obtained. A Mul&t is the Puniffihment for Non-ufer, -- which fhows that if a Perfon will fubmit to that, the End of the A&t is complied with: But Impoflibility in fuch Cafe would affuredly excufe: That the Law never requires Impoffibilities is a Maxim of the Law. Neceffity demands Juftice fhould have its Courfe. It is no Laches, no Default of ours, that the A&t cannot be put in Force. The Innocent fhall never be involved in the fame Fate with the Guilty if it can be avoided. It is not in the Power of any one to obtain a Stamp-Paper. A Thing that is impoffible is as though it were not. He who is a Citizen flhall never be denied his Law.* (3) * tu. If Locke on Government, ch. 19, ~ 2I9, would not have been pertinent to the Queftion. lu. If the Authority from the Year-Book, xI H. 6, p. 63, would not have been pertinent in the preceding Debate. -" The Law is the greateft Inheritance the King has, for by the Law He Himfelf, and all his SubjeAs are governed; and if there was no Law, there would be no King, nor Inheritance. (3) The refult of there arguments and the aftion taken by the Council in the premifes will appear from the following record of a Town Meeting held on the 2Ift of December, I765. Town Records, 1765, Fol. 670: "3 o'clock P. M. Met according to Adjournment. 27 " Mr. 210 December, 5 Geo. 3. 1765. " Mr. Adams again Reported - That the Honourable the Council N _o t "had come into fome Refolves relative to the Memorial of the Town MEMORIAL "to His Excellency in Council, a Copy of which had been handed him OF BOSTON. "by the Deputy Secretary, which Refolves being read, it was Voted "that the fame be entreed upon the Town Records -and they are as "follows - vizt "' At a Council held at the Council "' Chamber in Bofton upon Sattur"'day the 2ist Day of Decemr. "' I765, "' The Board proceeded to the Confideration of the Memorial of the "' Town of Bofton, and came to the following Refolves, vizt. - "' That a Queftion in Law neceffarily arifes from faid Memorial, "'namely, Whether the Officers of the Courts of Law can be juftified in "'proceeding in their refpeEtive Offices with unftamp'd Papers, and it is "' thereupon - Refolved that it is the Bufinefs of the Courts of Law to I" determine Points of Law, nor can the Board with any Propriety diredt "'or advife the faid Courts in fuch Judgements or determinations, and "' in this particular point of Law under the prefent ftate of the Province "'the Board are defirous that the faid Courts ihould be free in their "'Judgments, without any apprehenfion of cenfure from the Board. It "' is therefore further "' Refolved, that the SubjeEt-Matter of this Memorial is not proper "' for the determination of this Board, nor is it in the power of the Board "' to afford relief in the way and manner pray'd for, but the Board rec"' ommend it to the Juftices of the Inferior Court of Common Pleas for "' the County of Suffolk to determine the aforefaid Point of Law as foon "'as may be, and to the other Courts within the Province to determine it "'at or before their refpe~tive Terms. "' A true Copy. Att. JNO. COTTON, D Secry.' "Upon a Motion made and feconded - the Queftion was put. "Vizt. - Whether the Town apprehend the above Refolves of Council "in confequence of their Memorial to His Excellency in Council to be "' fatisfa&ory - Paffed in the Negative unanimoufly." " Adjourned to Thurfday next io o'clock A.M. "Thurfday December 26th, 1765. Met according to Adjournt. "The Town being acquainted by feveral Gentlemen prefent, that "the Courts of Probate within this Province would be opened; that the "Sheriff of the County of Suffolk had ferved, and was ready to ferve all "Writts brought to him, and that the Court of Common Pleas for faid "County next in courfe to fit, would meet & proceed to Bufinefs; and "that Mr. Sheriff Greenleaff, and Mr. William Mollineux could give "the Town further fatisfaEtion relative to there particulars" It was therefore Voted, that Mr. Sheriff and Mr. Mollineux be "defired to inform the Town refpeEting there Matters - Mr. Sheriff accordingly January, 6 Geo. 3. 211 "accordingly declared that he had duly ferved all the Writts which had 1766. "been given him for Service to this Day - and Mr. Mollineux that "having difcourfed the Judges of the Inferior Court, he had no reafon MEMORIAL OF BOSTON. "to doubt but that the aforesaid Court would at their next Term pro" ceed to Bufinefs as ufual. " Upon a Motion made and feconded - Voted that when this Meet"ing be adjourned, it ihall be to Thurfday the i6th Day of January "next. " Thurfday the I6th of January I766. Met according to Adjourn"ment. " Whereas the Inferior Court of Common Pleas for the County,' together with the Court of Probate, is now open, and Bufinefs going " on as ufual - Voted unanimoufly that the Reprefentatives of the Town "be and hereby are Inftruted to ufe their utmoft endeavours with the " General Affembly at the prefent Seffion, that Meafures may be taken "that Juftice be alfo duly Adminiftred in all the Countys throughout "the Province, and that enquiry may be made into the Reafons why "the Courts of Juftice in the Province has been in any Meafure "obftruted. " It is further Voted unanimoufly that the Reprefentatives be alfo " Inftruted to ufe their Influence in the General Affiembly that proper "enquiry may be made into the behavior of any Perfon, or Perfons, "who by their mifconduEt have either contributed toward the Difficul"tys we labour under refpefting the Stamp At, or have bafely negleded "to ufe their upright and beft endeavors to relieve us from those Difficultys. " VOTED that the Thanks of the Town be, and hereby are given to "the Honourable James Otis, Efq., the Moderator of this Meeting, for "difpatching the Bufinefs thereof. " Then the Meeting was diffolved." Governor Bernard thus describes there occurrences in a letter to the Lords of Trade, dated January Is, 1766, for a copy of which with others we are indebted to the kindnefs of Hon. George Bancroft: Gov. Bernard to Lords of Trade, Yan'y IS, 1766. " They next began with the Courts of Juftice, & for that pur"pofe prefented a Memorial to the Governor and Council. This "Memorial was confidered in a full Council of I5; & the prayer of it, "that the Governor & Council would give orders that the Courts "fhould be opened, was unanimoufly rejeted. This refolution of the "Council was reported at a Town Meeting the fame day & unani"moufly voted unfatisfatory. Neverthelefs means were found that the "Courts of this County Ihould be opened; the Judges as I fuppofe, fubmitting 212 January, 6 Geo. 3. 1766. "mitting to the defpotifm of the people. It was then hoped that all __o/ "things would be quiet; but no fuch thing: it was then infifled in this MEMORIAL "Town they fhould not be fatisfied with their own Courts being opened, OF BOSTON. A "unlefs all the Courts of the Province, who tho' very much diffatisfied "with the Stamp At, would not proceed in open defiance of an Ae of "the Parliament, & a great part of the people were quite fatisfied with "waiting until the fuccefs of the lafd application to Parliament could be "known. But Bofton muft govern the whole Province, & the Delin"quency mufft be rendered univerfal." It will be remembered that Chief Jufiice Hutchinfon had been alfo Judge of Probate for the County of Suffolk. Ante, p. 98. Having refufed to open the Court or to allow any bufinefs to proceed without ltamps, he confidered himfelf compelled either to refign or quit the country, and chore the former alternative. 3 Hutch. Hill. Mafs. 142. On the 8th, the Houfe of Reprefentatives in reply to the Governor's addrefs at the clofe of the laf feffion, prefented a meffage to his Excellency which was publiflled in the Maffachufetts Gazette of the 23rd, and which contains the following language: " The Courts of Juitice muft be open - open immediately; and the " Law, the great Rule of Right in every County in the Province exe"cuted - The dfopping the Courfe of Juirice is a Grievance which this "Houfe muff enquire into — Jufice muff be fully adminiftred through "the Province, by which the fhocking Effedts which your Excellency "apprehended from the People's non-compliance with the Stamp AA' will be prevented." And on the 24th, the Houfe, probably in consequence of the votes of the Town, paffed the following refolve: " Refolved that the fhutting up of the Courts of Juftice in general "in this Province, particularly the Superiour Court, has a manifeft " Tendency to diffolve the Bonds of civil Society, is unjuftifiable upon " the Principles of Law and Reafon, dangerous to his Majefty's Crown "and Dignity, and a very great Grievance to the Subjet that re"quires immediate Redrefs; and that therefore the Judges and Judtices, "and all other publick Officers in this Province ought to proceed in the "Difcharge of their feveral Fun&ions as ufilal." This refolve was fent up for concurrence to the Council, where the proceedings are thus described by Governor Bernard. Gov, Bernard to Lords of Trade, March Io, 1766. " The Council after a fhort Debate ordered it to lye on the Ta"( ble; the Houfe fent up a Meffage to defire they would pafs on it. The Council January, 6 Geo. S. 213 "Council refumed the confideration of it, and it having been faid that 1766. "it did not appear that the Judges would not proceed in Bufinefs at the "ufuall Time, it was ordered that the Judges be defired to meet together, MEMORIAL "and after confideration to fignify to the Council whether they intended OF BOSTON. "to proceed in Bufinefs at the ufual Time. The Judges accordingly "met, and fignified to the Council by Letter that it was impoffible for "them to determine abfolutely what they fhould do at fo dillant a Time "(5 Weeks); but they were of Opinion that if the Circumftances of the "Province were the fame at the Time of opening the Court as they "were now, and the Lawyers fhould urge their proceeding, they ihould "find themfelves obliged to proceed. The Council voted this to be "fatisfa&ory and paffed upon the Refolve by non-concurring it. The " Houfe fent down for the Judges Letters, and voted that the Informa"tion was unfatisfa&ory, and fo the Matter ended. - In the firft Debate "upon the Refolve, the Lieutenant Governour bore a principal Part. " In the next Bofton Gazette came out a Letter figned Freeborn Arm"ftrong, containing virulent Abufe of the Lieutenant Governour, mif"representing what he faid in the Council, and arraigning him upon the "very Falfities of the Mifreprefentation. This was a Breach of Privi"ledge tending to overturn all Government by deftroying a main Pillar " of it- Freedom of Debate in Councils of State. Upon this Princi"ple the Council were earneftly urged by myfelf and fome of the moft "reputable of their own Body, to refent this in a Parliamentary Way. " But it could not be obtained, - it was faid that, if they committed the' Printers, they would be refcued by the Mob, - that if the Author was "discovered in Form, as he was known to be a Member of the Houfe ",(Mr. Otis) they fhould be involved in a Q(arrel with the Houfe; that "this was not a Time to refent Indignities. So they contented them"felves with vindicating the Lieutenant Governour's Chara&er by a "Publication of their own. Bofton Gazette, Jan'y 27 & Feb. 3." This reply was alfo publifhed in the Maffachufetts Gazette of January 3oth, as follows: "Province of "Maffachufetts Bay. 5 IN COUNCIL Tuefday the 28th Day of January 1766. "Sixteen Gentlemen of the Board being then prefent, who had been "likewife prefent on Friday the 24th Inifant: " A Paragraph in the Bofton Gazette of the 27th Inft. was read at "the Board, containing a Refolve of the Honourable Houfe of Repre"fentatives of the 24th Infiant, refpe&ing the fhutting up the Courts of "Juftice in this Province and afferting That' The Refolves was the fame "' Day fent up to the Hon. Board for their Concurrence when the "'Hon. Thomas Hutchinfon, Efq; Lieutenant Governor, and Chief Juftice 214 January, 6 Geo. s. 1766. "' Juftice of the Superiour Court, who, on this Occafion alfo fits as > t"' "'Prefident of the Council, a Place he has ufurped, after engroffing all MEMORIAL "' the Places of Honor and Profit in the Province moved to give it the OF BOSTON. "'go-by, faying it was Impertinent, and beneath the Notice of the Hon. "' Board, or to that Effe&.' " Whereupon a Debate was had at the Board upon the faid Para"graph; and the following Queitions were thereupon put, " Q. i. Whether any Gentlemen prefent at the Board on Friday "laft heard the Lieutenant Governor exprefs himfelf in the Manner "mentioned in the Bofton Gazette of Yefterday, viz. That the Refolve "of the Houfe was impertinent, and beneath the Notice of the Hon. "Board, or Words to that Effet? "It paffed unanimou/ly in the Negative. " 2. Whether the Words the Lieutenant Governor uttered in that "Debate carried any RefleEtion on the Honorable Houfe of Repre"fentatives? "It pafed unanimoufly in the Negati've. " 3. Whether his Honor the Lieutenant-Governor hath ufurped the ~' Place of Prefident of the Board? " Refo/lved, That when his Honor firft took the Place of Prefident "of the Board, it was determined by the Refolution of the Board at that' Time, after fearching the Books for Precedents in the like Cafes: " And it was declared by fome Gentlemen who were then prefent, that "the Motion was made, and the Queftion determined by the Board, the "Lieutenant-Governor himself being altogether filent on the Occafion. " THEforegoing is a true Copy, and publi/hed by Order of the Board. " 4tteft. A. OLIVER, Secr'y." March Term 6 Geo. s. 215 1766. March Term VI. Geo. 3. HE Chief Juftice, who was Lieutenant Gov- OPENING OF ernour of the Province, was not prefent THE COURT. through the whole of this ihort Term. The Charge was given the Grand Jury by Juftice Lynde, who touched upon Nothing but what related to Matters which were to come before them, as the Grand Inqueft for the County. But what and how the Bufinefs of this Term was tranfaded; together with the political Finefie of the Game that was played, muft be left to be reported by another Hand, at a future Day. (1) (I) See John Adams's account of this feffion given.in his " Diary," under the date of March I, I 7 66, 2 John Adams's Works, 8 9: " II. Tuefday. Went to Boffon. The Chief Juftice not there; a "piece of political fineffie to make the people believe he was under the "neceffity of going a journey this week, but would be here by the next'. was put about, while care was taken to fecure an agreement to an ad"journment for three or four weeks; fo that Hutchinfon is to trim and "fhift, and luff up, and bear away, and elude the blame of the miniftry "and the people. Cuihing fpoke out boldly and faid he was ready to go on; 216 March Term 6 Geo. 3. 1766. "on; he had no difficulty about going on. Lynde faid, we are here. ~ " Oliver faid, here am I in durefs, and, if I muff go on, I muff. Thus OPENING OF "popular compulfion, fear of violence of the Sons of Liberty, &c., was THE COURT., fuggeffed to be the only motive with him to go on." We give alfo Governor Bernard's account of the proceedings, contained in a poftfcript to his letter of March ioth, from which an extra& was printed on p. 2I2. Gou. Bernard to Lords of grade, March Io, 1766. "P. S. Mar. xI. I have an opportunity to add an account of what "has been done at the opening of the Superior Court, at the ufual time, " which was yefferday. It is ufual for the Lawyers in a body to wait on "the Judges on the firft day of the Term before they go into the Court.' At this meeting, the Chief Juftice not attending, one of the Judges, "Mr. Peter Oliver, faid that he attended the Court according to his "duty; that he underftood that it would be expe&ed, that he & his "Brethren ihould proceed in bufinefs in defiance of the late Adt of Par"liament; that fuch proceeding was contrary to his judgment & opin" ion; & that if he Submitted to it, it would be only for felf prefervation, " as he knew he was in the hands of the populace, & therefore he pre" vioufly protefted that all fuch a&s of his, if they fhould happen, would "be ats done under durefs. To which the other Judges affenting, it "was propofed to each of the Lawyers fingly, whether he defired that "the bufinefs fhould proceed, contrary to the Ad of Parliament: when " every one of them anfwered in the Negative; even Mr. Otis himfelf "who has for 4 months paff been labouring indefatigably to bring about " this particular mifchief. But they faid it would be proper to try a "caufe or two to quiet the people; accordingly one caufe, which had "been at iffue before the Stamp AA took place, was tryed and all other "civil bufinefs was poftponed to the middle of April, by which time "they expedt to know the determination of the parliament. So evident "is it that this fcheme, for obliging the Judges of the Superior Court to "proceed in defiance of the Stamp Ae, which has agitated the Gover"nor & the General Court at different times for 5 months pail, was not "calculated for the eafe or convenience of the people who wanted no "fuch expedient, but was contrived to oblige the Government to join in "an infult upon the Parliament, or elfe to remain expofed to the refent"ment of the people for not fo doing. F. B. "(Indorfed) "Recd. May i9th } I766. "Read May 2gth j The March Term 6 Geo. 3. 217 The adjournment was to the 29th of April, on which day the Court 1766. again met and again adjourned without proceeding to bufinefs. Adams's _ defcription of this meeting is as follows: OPENING OF THE COURT. "29. Tuefday. At Bofton. To this day the Superior Court was "adjourned. Hutchinfon, Lynde and Cufhing were prefent. Two of "the bar agreed to continue an aation. Hutchinfon leans over, and or"ders Winthrop to minute an agreement to continue. We will confider "of it, fays he. Another of the bar moved for a continuance, and no " oppofition. Hutchinfon orders the clerk to enter it, motion for a con" tinuance, &c. Then the Court went to playing off a farce, and try"ing to get a caufe for the jury, but none was then ready. Then "Hutchinfon propofed, -' What if we fhould adjourn to the firif Tuef" day in June?'.... Thus the Chief Juffice is now muftering up "fortitude enough to make public, to manifeft his defire to comply with "the Stamp At and to affift in carrying it into execution, in order to "lay claim to the protedtion of the Houfe of Commons, and to claim a "compensation for his damages.... I faid not one word for or againft "the adjournment; I faw the Court were determined before I came in, "and they had no right to expe& that I would fall in with that determi"nation; and I had no difpofition to foment an oppofition to it, becaufe "an oppofition made with any warmth might have ended in the demoli"tion of the earthly houfe of his Honor's tabernacle." 2 John Adams's Works, 193, 4. On the fixteenth of May, a copy of the repeal of the Stamp A& arrived in Bofton. 28 Auguft Term VI. Geo. 3. Charge to the Grand Jury by the Chief 1766. Juffice. CHARGE TO fENTLEMEN of the Grand Jury: When THE GRAND JURY. we opened the Court in this Place, this Time Twelvemonth, the Diforders through the Continent, in general, were very great. Here, it was fo great, that a Stop was put to the Courts of Juftice, and this Court was adjourned to a diftant Day, becaufe it was not fafe * to proceed. But, through the Favour of Divine Providence, we are now in a better State, and it may perhaps be prudent to fay Nothing *,u. de hoc, & vid. the Votes of the Town of Bofton, on the Day, to which the Chief Juftice referred. (i) (i) The following is a copy of the votes referred to, from the town records for I765, fol. 647: " At a legal Meeting of the Freeholders and other Inhabitants of "the Town of Bofton at Faneuil Hall, Auguft 27th, Anno Domini 1I765," The Hon'ble James Otis Efq. was chofen Moderator. The Auguft Term 6 Geo. s. 219 Nothing of what is paft. Diforders, arifing from 1766. what was efteemed a Violation of our Right, had CHARGE TO better be gone over in Silence; for it is difficult to THE GRAND JURY. draw the Line, where Duty ceafes, and Oppofition may begin. Yet, for Perfons under Pretence of Re6tifying publick Wrongs, to invade private Rights is highly criminal. This Town is the firft in the Province, and indeed generally takes the Lead through the Continent: I fhould therefore be culpable, did I not fay Something refpe6ting our future Condu&t. Our Grievances being removed, it will be belt for us to return to our ufual Order. A Time, perhaps, will never arrive in the Life of the longeft Liver of us, nor "The Town having an utter deteltation of the extraordinary & vio"lent proceedings of a number of Perfons unknown againft fome of the " Inhabitants of the fame the laft Night - Vote unanimoufly that the "Sele&men and Magiftrates of the Town be defired to ufe their utmoft "endeavors agreeable to Law to fupprefs the like diforders for the future, "and that the Freeholders and other Inhabitants will do everything in "their power to affifi them therein. " VOTED, That the Inhabitants of this Town will be ready on all " occafions to affift the Sele&tmen and Magiftrates in the fuppreffion of "all Diforders of a like nature that may happen, when called upon for "that purpofe. " VOTED, That the Thanks of the Town be, and hereby are given " to the Honble James Otis Efq. the Moderator of this Meeting, for dif"patching the Bufinefs thereof. " Then the Meeting was diffolved." The only mention of any further disturbance is by Hutchinfon himfelf, who fays that on the next evening an attempt was made " to colle& "the people together in order to further rapine; but a military watch havy"ing been ordered, and the Governor's Company of Cadets appearing in "arms, and Ihewing great fpirit, the mob was difperfed." 3 Hutch. Hift. Mafs. 127. 220 Auguft Term 6 Geo. s. 1766. nor of our Children's Children, when fuch an AtCHARGE TO tempt will again be made: And if not, why fhould THE GRAND we ftill continue thofe Broils and Animofities, which JURY. difturb our internal Peace and Tranquillity. Is it not better to go on, as formerly, with the Exercife of Government, than unneceffarily to provoke the Parliament of Great Britain to Adts, which otherwife might never be thought on. As the Behaviour of this Town has great Influence through the whole Province, and, as I obferved before, has its Weight through the whole Continent, this is the Reafon, Gentlemen, why I mention Things of fo general a Nature, and which do not fo immediately relate to you; but you, Gentlemen, being returned from the Body of the County, may, in Refpe&t to the Reftoration of Harmony and Order among us, be extenfively ufefull. I do not know how it happens, but Diforders are feldom confined to one Point. People who begin with one View, feldom end there. Every one muft have obferved, the Court I am fure have, through the Province, a general Difpofition to Diforder, Confufion and Riot, Breaches of the Peace, and what is commonly called Mobs. Laws have been thought rigorous, hardly to be borne, which heretofore were never thought fevere. The Minds of the People are difturbed, their Sentiments divided, but it is abfolutely neceffary for us to unite; and as our Intereft is the fame, fo our Wills fhould be in Concert with Great Britain. It AuguR Term 6 Geo. $. 221 It is an old Maxim of the Law, Gentlemen, that 1766. the Laws may Sometimes fleep, but they never die. CHARGE TO It lays a great Deal with you, Gentlemen, to revive THE GRAND thofe, which are abfolutely neceffary for the Safety of the Community and good Order of Government; and I hope that you will fet an Example to the Refi of the Province. The Bufinefs that immediately concerns you, Gentlemen, refpe&ts the Crown Law; And you are fenfible, Gentlemen, that there is a ifanding Grand Jury, which meet four Times a Year, and prefent all leffer Offences cognizable at the Sefflions. Capital Offences, being extremely dangerous to Society, will demand your higheft Attention. High Treafon is another Crime which may be committed here, but in few Initances. I will mention fome which I recolle&t. Levying War againft the King is High Treafon; as where People fet about redreffing public Wrongs; this, Gentlemen, the Law calls levying War againit the King; becaufe it is going in dire&t Oppofition to the King's Authority, who is the Redreffer of all Wrongs. Counterfeiting the King's Coin is High Treafon at Home, but we have not fettled that Point here. We have a particular Province-Law, which makes it a leffer Offence; how far this will operate upon the Law of England, we have never determined; tho' there is no Negative Claufe in our A&. (2) Another (2) Anc. Chart. 745. 222 Auguft Term 6 Geo. s. 1766. Another Inftance of High Treafon here, may be CHARGE TO committed by counterfeiting the King's Seal; but THE GRAND this has never yet happened. Thefe are all the JURY. Inftances of High Treafon here, which now occur to me. Homicide, Gentlemen, is another Offence which you are to take Notice of, and this, Gentlemen, may be done, either by ihooting, ftriking, poifoning, or any other Way, however fecret, by which the Life of a Man is deftroyed. Homicide is either voluntary or cafual: The former is Murder, the latter may be Manflaughter, Chancemedley, or otherwife, as the particular Cafe may happen. Burglary is another Offence which will come under your Examination, and is, in the Law, defined, breaking open in the Night-time, and entering into any Dwelling-houfe with a felonious Intention, whether fuch Intention be executed or not. There has been a Difficulty in the Minds of Some, as to the felonious Intention; As where a Man enters without a felonious Intention, and afterwards commits a Felony, whether fuch an Offence come under the Denomination of Burglary. Now I would obferve, that the only Rule of Law is, to judge of the Intention by the Aft; and, this Rule adhered to, there can be no Difficulty. Blafphemy, Gentlemen, is another Offence, and in the Law is a very high Crime, being of the moft dangerous Nature; for it tends to the Diffolution of all the Ties of Government, and faps the very Foundation of Society. I Augurt Term 6 Geo. 3. 223 I am defired to mention another Offence, which 1766. does not immediately relate to your Condut. CHARGE TO There has been of late, a great Number of Thefts THE GRAND and Robberies committed in the Day-time in JURY. many of the neighbouring Towns; particularly, I am informed, in Roxbury, Dorchefter, Brookline and Milton: And an Offence which is of very dangerous Tendency, has been frequent, that in Law is called Theft-bote; where the Perfon robbed has taken back the Goods ftolen, and received a Satiffa&tion in Order to a Concealment. Indeed I lhould give you this particularly in Charge, had I not great Reafon to think the Inftance I have a more immediate Reference to, was committed through pure Simplicity and Ignorance; but I hope this publick mentioning of it, will have the fame Effe&t, and prevent the like Evil for the Future. In a word, all high Crimes and Offences, all highhanded Riots, which any of you know, you are obliged by your Oaths to communicate to your Brethren, that they may judge of, and prefent them. You muft a&, through the whole, with Impartiality, without Prejudice in Favour of, or againit any One. You are bound by your Oaths to Secrefy, which Jurors do not always obferve, not confidering their Oath, and the Hurt they do the Community; and efpecially to Individuals, who, by their revealing Matters, which came before them, are rendered obnoxious to thofe whofe palt Offences have made them Criminals. Gentlemen: 224 Auguft Term 6 Geo. 3. 1766. Gentlemen: You, and we are all of us acCHARGE TO countable to the Supreme Governour of the THE GRAND Univerfe, for our Condut in our feveral DepartJURY. ments. PYNCHON Pynchon, Executor, verf. Brewfter.'U. BREWSTER. Rec. 1766. NDEBITATUS A/Jumpfit upon a long DocFol. 83- 1tor's Bill for Medicines, Travel into the CounIndebitatus try and Attendance. Afurmpfit lies for Phyficians' At- In this Cafe it was ftrongly urged by Mr. Adams tendance, Travel and for the Defendant, that this Adion lay not, but that Drugs. eta a antum Meruit fhould have been brought; and In IndebitatusAjlumpft he relyed much on the Cafe of Richards ~4 Tyler, the Plaintiff may recover tried laft Auguft Term, q. v. p. 195. a lefs Sum than that laid in the Decla- But the Chief Yufiice laid, that Boarding and ration. Schooling were uncertain as to Price, and a Qanturnm Meruit muff be brought; but that Travel for Phyficians, their Drugs and Attendance, had as fixed a Price as Goods fold by a Shopkeeper, and that it would be a great Hardihip upon Phyficians to oblige them to lay a Quantum Meruit. And the Chief Jufiice, who alone fummed up this Cafe to the Jury, faid that the Cuftom here had always been in fuch Cafes to lay an Indebitatus 4ffumpfit,* though in -u. and vid. 2 Vol. p. 9I3, Dr. Holden vs. Day. P,'. Where is the true Boundary Line between an Indebitatus A.fumppfit, and a,uyanturn Meruit, on this Side the Water? Augurt Term 6 Geo. 3. 225 in England it would not do; and that the 7ury 1766. mzght, upon an Indebitatpus Affumpft, if they thought it PYNCHON reafonable, leJen the Charges in the Account. This BREWTER. was folemnly affirmed by all the five Judges, in the Courfe of this Debate, to be Law here; though it was not, in Great Britain.* The Jury did, according as the Law was laid down to them, and ftruck off about ~7 from the Account, lowering the Charges, probably, to what they thought "reafonable." * The Refolution in this Cafe was denied to be Law by the whole Court, Ch. Juft. abfente, in the Cafe of Leteftu f Glower, Auguft Term, 1770. (I) (I) We find a report of the cafe of Glo'ver v. Le Teftue among John Adams's papers, as follows: " Glower vs. Le 7eeftue, Aug. I770. GLOVER " Indebitatus Afiumpjit for Vifits and Medicines. The Q.efition T U. LE TESTUE. "whether Indebitatus will lie, or iuantum meruit? - Ans. Indebitatus "will not, becaufe no ContraAt for a certain Price for the Vifits or Rec. 177r. "Druggs. 2 Infitructor Cler. I62,'if one fue upon a Promife to fatisfye Fol. II. "him for Work done, he muft fhew in his Declaration how much he de-' ferved for his Work.' So if one fue for a Thing fold, where no Price " was agreed upon, he muft aver, and ihew it to be worth fo much. = 2 Infitructor Cler. i5 i. Affumpfit for Wines fold and delivered - "Note in the Margin.' On this Count (Ind. Aft.,) the Plaintiff muff "prove the exprefs Price agreed on.'- Page 152. Note in the Margin. "' But on this Count (,uant. Mer.) the Delivery only is fufficient.' 1" I Salk 23, Hard's Cafe. Indebitatus Afumpfit will lie in no Cafe, "but where Debt lies, &c. But fee I Burrows, 374, Harris vs. Hunt"bach. 2 Burrows, Ioo6, Mofes vs. Macfarlan, page Ioo8 - Ld. Manf"field.' The firit Obje&ion is, yt an Ation of Debt would not lie here; "and no affumpfit will lie where an Aation of Debt may not be brought. "Some fayings at Nifi Prius reported by Note-Takers, who did not un"derfiand the Force of what was faid, are quoted in Support of that "Propofition. But there is no Foundation for it,' &c., An A&ion of " Affumpfit will lie in many Cafes where Debt lies, and in many where "it does not lie.' Slade's Cafe, 4 Co. 92. 29 " Fitzherb. 226 Auguft Term 6 Geo. 3. 1766. I Fitzherb. II9.' A Writ of Debt properly lieth where a Man __> " oweth another a certain Sum of Money by Obligation or by Bargain for GLOVER C"a Thing fold, or by Contra&, or upon a Loan made by ye Creditor to CV. T C ye Debtor,' &c. "LE TESTUE Mod. Ent. 299. There are two Sorts of Promifes, exprefs or " implied,- an exprefs Promife is where a Perfon promifes, yt he will "pay a Sum of Money, &c. " At the Bottom, 5,-' An implied Promife is fuch as is raifed by Im"plication of Law upon the Nature of the Cafe, as where a Man fells, and "delivers Goods to another, tho' he cannot prove an exprefs Promife to "pay for them; and where the Price is not of afcertained Value between "the Parties, ye Law implies that the Defendant promifed to pay for " fuch Goods, fo much as they were worth; So if a Man fets another to " Work, and no Price is agreed, nor any exprefs Promife to pay, the " Law implies that the Perfon who fet the Man to work contraated with "him and promifed to pay him fo much as he deferved.' "' The Court unanimouJly adjudged, that Indebitatus Alfump/it would "not lie upon the Account in this Cafe, neither for Vifits, Bleeding nor "Medicines, but allowed Plaintiff to file a new Declaration on.uantum "Meruit on Payment of Coftils. " A Tender may be pleaded to a fPuantum Meruit. 5 Bac. Abr. 27. " Str. 576, Yohnfon vs. LancaJter." A declaration on an implied promife " is faid to be in general affumpfit: which is either indebitatus affumpfit, wherein the plaintiff generally fiates that the defendant being indebted in a certain fpecific fum promifed to pay that fum, or upon a quantum meruit or quantum walebant." Lawes on Pleading in Affumpfit, 2. And it was formerly held that under the former count, only the exaA fum laid could be recovered, becaufe otherwife " the fame affumpfit was not found that the plaintiff did declare upon." Bagnal v. Sacheverell, Cro. Eliz. 292. But in 7'hompJon v. Spencer, 8 Geo. 3, it was held that the plaintiff might in fuch cafe recover what was juffly due. Id. (Sth ed.) in notis. It would appear therefore that the decifion in Pynchon v. Brewfier was in accordance with the law of England, when overruled, in 1770, though not when made in 1765. Auguft Term 6 Geo. 3. 227 1766. Box & al verf. Welch & al. Box v.o INDEBITATUS ASSUMPSIT on Account WELCH. annexed. The Plaintiff's Book and Oath were Rec: I767. Fol. I9o. offered as Evidence to the Jury, to which an Objehtion was made by Mr. Auchmuty - the Charge Pla ntin a ftanding " Dr. J. W. & J. W. Jr.," and not "J. Book of AcW. & Co." count, chargWV. & Co." ing two Defendants jointly, but Mr. Auchmuty. We never yet have extended not as Copartthe Rule of the Plaintiff's Oath to his Book fo far radifrble as this Cafe would carry it. The Oath of the together with his Oath, Party is allowed in any Cafe only from Neceffity. without previous EviYou mufll bring Proof of the joint Contra& and dence of the Sale to both the Defendants, and then your Oath joint Conand Book will be good Evidence of this Charge. inton, C. y., We admit the Plaintiff to his Oath, when the Ac- dientientetion is brought againft one, becaufe he may come in and defend himfelf. He can never prove a Negative, vizt, that he did not contra&t. In the Cafe of known Partnerfhips, poffibly, we may have gone fo far as to admit the Plaintiff to his Oath, becaufe here each ufually contraCts for the other, and the Contra&t of one for both Ihall bind both; but at this Rate it will be in the Power of any one to bind who he pleafes. Mr. Otis.'Tis agreed, if the Charge was againft one, the Plaintiff might be admitted to his Oath; Why not, when it is againff two? Either of them may defend himfelf as well now, as when charged fingle. Any Evidence that would discharge in one Cafe, will in the other; and it has ever been the Cuftom, 228 Auguft Term 6 Geo. s. 1766. Cuftom, as I conceive, in fuch Cafes to admit the Box Plaintiff to his Oath. WELCH. Ch. 7uflice. Suppofe, Mr. Otis, that you and I were charged together, - muff not fome Evidencei be given of the Contra& with both, before the Plaintiff can be admitted to his Oath? Mr. Auchmuty. And if your Honour and Mr. Otis can be bound in this Manner, why not me and twenty more' If this Rule is eftabliffied, fome of your fharp Folks, who flick at Nothing, will never lofe their Debts, —'tis only clapping in one or two fubftantial Men, and your Debt's fecure. Befides, if you admit his Oath, we can never prove a Negative. Mr. Otis. Prove a Negative! He may prove Anything in Difcharge, now, as well as when one is charged, and he pleads, he never promifed. As to the charging one, two or three, -you may charge three Million, and the Plaintiff's Oath and Book ihall go in, as Evidence to the Jury, who will judge of that and all Circumftances. The moft we have contended for in thefe Cafes, has been, when the Charge was againft A. B. & Co., we, I believe, may have gone fo far as to make the Plaintiff ihow the Company, before we admitted his Oath.* But this is not our Cafe; we don't pretend a Company. The Charge in our Books ftands againft J. W. & J. W., Jr. We fay they jointly bought thefe Goods, and that we delivered the Goods upon their joint Credit; and we offer our Oath and Book to fupport * Lure. Augur Term 6 Geo. S. 229 fupport our Charge, the only Evidence that ever 1766. has been, or can be expe&ted. Box oV. Four Judges againjJ the Chief yuftice, that the Plaintiff's Oath and Book ihould go as Evidence to the Jury, who would judge of all the Evidence with all the Circumftances. The PlaintiJf was fworn accordingly. Apthorp & al verf. Eyres. APTHORP'V. EYRES. W HEELWRIGHT, one of the Plaintiffs in Rec. I766. this A&ion, having died fince the Com- Fol. Ioo. mencement of it, a Motion was made, that a A DepofiMinute ihould be made of Wheelwright's Death, tion inperpetuam Rei becaufe, fhould fuch a Minute be omitted, it would Memoriam is be E~~~~~~~rror.~~~ TN (~ Xadmiffible to be Error. (1) fatisfy the Court of the Death of a Mr. Fitch. I have a Depofition in my Hand, Party to a taken in perpetuam Rei Memoriam, which I offer Suit, on a to the Court as Evidence of Mr. Wheelwright's minute the fame on Death. This is Evidence to fatisfy the Court, and Record, not a Jury. If your Honours are fatisfyed of the itnhoughfsth Fa&t, whether by Attendance on his Funeral, or fee- alive and ing his Corpfe, or otherwife, you will order the be produced. Minute to be made by your Clerk. Oliver 8 Ruell, y y difs. Mr. Gridley. When we produce Depofitions as Evidence to a Jury, we mufft proceed in a certain Manner (I) Tidd Prac. Io56, I o107. 230 Auguft Term 6 Geo. s. 1766. Manner in the Caption, according to the Province APTHORP Law. All the great Courts at Home conftantly EYRES. produce Affidavits to fuch Points. Lilly, 44. Your Honours are as well fatisfy'd as if the Depofition was taken according to the ftridteft Rules of the Province Law. Mr. Auchmuty. Affidavits are received at Home when properly taken, but the Courts never receive them, when improperly taken. Will your Honours receive a Depofition in perpetuam, &c., which were never received at Home, or anywhere elfe, while the Perfon was living, and might be produced to give his Teftimony viva Voce. What if your Honours were fatisfy'd of the Fat' — will your Honours make Minutes in your Records from your own Knowledge? Your Honours would then be Witneffes, and not Judges. Jufl. Oliver. They might have produced the Witnefs; I am therefore for not making the Minute, as there is no Evidence to the Court. yuft. Ru/ell. If they could not eafily have produced the Witnefs, I fhould have been for receiving this Evidence, but as they can eafily produce him, I think they ought. yuft. Cujhing. I think this is good Evidence to fatisfy a Court, and better than ever I knew in a like Cafe. yufZ. Lynde. I am for admitting this Evidence, for I am fatisfy'd of the Fadt. Ch. Auguft Term 6 Geo. 3. 231 Ch. yzflice. Certainly Courts are not tied up to 1766. fuch ftrift Rule in Admiffion of Evidence, as when APTHORP it is to go to Juries. I am very full, that the Court EV have fufficient Evidence from this Depofition to fatisfy them of Mr. Wheelwright's Death, and am for the Minute's being made. Which was done accordingly.* (2) * Vid. L'd Raymd I74, Faux vs. Barnes. (2) But see Cojin v. Abbot, 7 Mafs. 225, where it was held, that on the hearing of a petition for review, depofitions are inadmiffible, unlefs taken with the fame forms as if to be ufed in the trial of a caufe. March Term VII Geo. s. Charge to the Grand Jury by the Chief Juftice. ]767~ CHARGE TO BEFORE I fay Anything to the Grand Jury, it THE GRAND JURY. is highly proper that I fhould take Notice of the Death of One of the Judges of this Court. I have no Talent for it, and am an Enemy to traducing and vilifying the Chara6ters of Men, when alive, and flattering them when dead. Yet Juftice to Judge Ruffell obliges me to fay Something of his Death. Every one who knew him in private Life, muff acknowledge him a moft amiable Man. I fcarce ever knew his Equal. He might be truly chara&terized as a Lover of Mankind, and no higher Chara&er can, I think, be given of any One. Nothing more need be faid to recommend him, efpecially at this Time. The feveral Pofts of Honour which he bore, he fuftained March Term 7 Geo. 3. 233 fuftained with Dignity. As a Legiflator, I had an 1767Opportunity to obferve his Condu&, both as a CHARGE TO Member of the Council and Houfe of Reprefenta- THE GRAND tives: And I know that he ever engaged on that Side which had Truth and Juftice for its Support. As a Judge of the Admiralty, his Condu6t was moft unexceptionable: And I believe none of his Decrees, but met with univerfal Approbation, except at Times, when Party-fpirit and Animofities ran high, and made it a Thing impoffible, for any Judge, in any Department, to give Satisfadtion. His Condu&t in this Court - I appeal to the Gentlemen of the Bar — was fuch as pronounced him the Judge, and a Man of ftri&t Integrity. Although we all have fome Byafs, -'tis impoffible for human Nature to be without, -yet if he had any Byafs, it was ever in Favour of Virtue. Juftice has been done this worthy Chara&ter, already, in publick, in an unexceptionable and elegant Manner. (i) The belt Ufe that we can make, is to follow his Path and imitate his Virtues; efpecially, as we all muff fhortly follow him to give our Account to the Judge of us all. - Now, Gentlemen of the Grand Jury: You are fent here from your feveral Towns, upon Bufinefs of great Importance to your Country. I will not go fo largely and particularly into the Duty of Grand Juries in general, as many of you have been on Juries before, and moft of you have been converfant with the Duty of your Office. There (I) Maffachufetts Gazette, January x5th, x767, 30 234 March Term 7 Geo. s. 1767- There is one general Obfervation I would make; CHARGE TO that the End of Government is the Happinefs of THE GRAND every Individual, fo far as is confident with the JUR~Y. Good of the Whole. To attain this End is impoffible without Laws, and their due Execution.'Tis neceffary that Laws fhould be eftabliffihed, elfe Judges and Juries muff go according to their Reafon, that is, their Will; and this is in the ftrideft Senfe arbitrary. On this Reafon, I take to be grounded that well-known Maxim, that the Judge fhould never be the Legislator: Becaufe, then, the Will of the Judge would be the Law; and this tends direftly to a State of Slavery. The Rules and Orders of a State muff be known, and muff be certain, that People may know how to a&t; or elfe they are equally uncertain, as if the Law depended upon the arbitrary Opinion of Another. Let the Body of Laws be ever fo good,- if they are not executed,'tis worfe than a State of Nature, becaufe we guard ourfelves in a State of Nature, and therefore are more fecure than in a Society, where we depend on the Laws for our Proteftion, which are not put in Force. There has been a Failure of Law amongft us, which has been very detrimental. Doubts and Differences in Opinion have been, which has caufed a great Deal of Confufion.'Tis to be hoped we are returning again to good Order. I wifh the Laws to be put in due Execution for the publick Good, and am as much for the Liberties of the People, as any Man, So far as is confifjent with the Weij'afre of the Community. In March Term 7 Geo. S. 235 In this Country we have always been happy in 1767. a good Set of Laws. The principal Crown-Law of CHARGE TO this Province is grounded on our provincial Laws; THE GRAND where thefe fail, the Common Law of England is J the Rule. The Principle of' the Crown-Law is, effablilhing Puniffihment, not according to the Degree of moral Evil in the Offence, but according as the Crime affeEts the Peace of the Community. There is a Difference between Peace, as ufed in the Common Acceptation of the Word, and Peace as it is ufed in a Law-fenfe. Offences which are much greater in their Nature, are puniffihed in a much milder Manner, than Offences lefs heinous, which affe& the publick Peace more. I fuppofe there is no one whom Blafphemy does not itrike with greater Horrour, than the Crime of Treafon againic the Prince; yet the latter is juftly punifhed with Death, when the former is not, becaufe it does not tend fo immediately to deitroy the Happinefs of the State. Many other Things I might inftance in, but this is fufficient. The Principle that the Law goes upon, is, that the Supreme Being will avenge his own Wrongs. I don't know a Nation in the World, that makes that Diftin&ion between Murther and Manflaughter, which the Englifh do. It was not made in this Country before the Charter; for our Forefathers founded their Laws upon the Law of Mofes, which makes no fuch Diftinction. This may properly be called the Benignity of the Englifh Law. (The Chief Juffice then proceeded to charge the Grand 236 March Term 7 Geo. s. 1767. Grand Jury relative to thofe particular Crimes, CHARGE TO which it was probable would come before them, THE GRAND and then continued as follows:) JURY. I would now only add, Gentlemen, that you carefully obferve the Oath of God which is upon you: It contains many good Rules for your Condu&t, and lays you under the greateft Obligations to discharge your Duty with Fidelity. All Crimes you have Cognizance of, from the higheft to the loweft, though leffier Offences are commonly left to the Infpeftion of Juftices of the Peace, and the Sefflions. But, if they are negligent, it is your Duty to prefent all Offenders againft the publick Peace, in the Common Acceptation of that Word. I know that it is impoflible for Men in any Society to be all of the fame Mind. Doubts and Difagreements in Sentiment will arife; it is not only neceffary, but ufeful; for by this Means, the Good of the Community is often attained, the moft falutary Plans of Government adapted, and the whole Bufinefs of the publick Weal better executed. But, becaufe we do not think alike, becaufe we difagree in our feveral Opinions, let us not flander and traduce one another's Chara&ters. We might as well quarrell, and deftroy Men for their different Looks, or Complexions. But to reproach and vilify each other in publick Print, is a Crime of a much higher Nature, and it is more mifchievous frill, when it is pointed againfc all in Authority. - Shall March Term 7 Geo. 3. 237 Shall no one's Chara&er be fafe, becaufe he does 1767. not think as Mwe would choofe?. — For my Part, I CHARGE TO know no more dangerous Symptom in any State, THE GRAND than when its Rulers are flandered, and the Author- JURY. ity of thofe who govern, is defpifed and trampled upon. I am fure I never promoted any fuch Spirit among us; and heartily do I wifh, that I could help to reftore the Peace of'this Community. But I doubt whether there is any Room to hope, at this Time, any Good from my Recommendation. I have known the Time, when a Man could not more recommend himfelf than by promoting Peace, Harmony and good Order; And there have been Times, when a Man might obtain greater Applaufe in promoting the Contrary, and ftirring up Contentions, Divifions, Animofities and Fa&tions. But I know that it has been faid by our Great Lord and Saviour, that "Bleffed are the Peacemakers," and if I might obtain His Approbation, I am not anxious for any other Events. Bromfield verf. Lovejoy. BROMFIELD Lov EJOY. LEA in Abatement by Mr. Auchmuty, that the Rec. 1767. Defendant bore a Captain's Commiflion, and Fol. 190. fo a Gentleman by Office, and therefore, Yeoman, was not 238 March Term 7 Geo. 3. 1767. not his due Addition. Cited 2 Inft. 666, 668; 1 BROMFIELD Inft. 66 a. Iv. LOVEJoY. LOVEJOY. Mr. Otis. Lovejoy is certainly no Gentleman by A Captain Office; for no Commiflion from any Governour of Militia, commiffioned whatever, can make a Man Gentleman by Office. by the Governour, isa Lovejoy is then a Gentleman, if any Way, by Gentleman by Curtefy, or Reputation, and, Gentleman, would be Office, and if fued by the a good Addition, " but if he be named Yeoman, he Addition of Yeoman may cannot abate the Writ." Viner, Tit. Additions, C. abate the pl. 29, p. 85. "Yeoman or Gentleman are Additions ad Placitum, and ad Lzbitum, are no Part of the Name, but Additions ad Llbitum, as People pleafe to call them." Viner, Ibid. pl. 33, 34. The Court took a Diftin&tion between Gentleman by Curtefy, and Reputation, and Jeemed to be of Opinion, that, if a Man was Gentleman by Curtefy, Yeoman was not his due Addition; aliter if Gentleman by Reputation only. In the prefent Cafe they were of Opinion, that Lovejoy was a Gentleman, both by his Commiflion and by Curtefy. Therefore they ruled, that the Writ abate, though they faid it was a very great Hardfhip upon the Bar.* * Vid. 3 Bac. Abr. 6x8, where Brook, 44, is cited. Vid. 2 Ld. Raym'd, 849. March Term 7 Geo. s. 239 1767. CARPENTER Carpenter verf. Fairfervice. FAIRSERVICE. Rec. 1767. Prefent: Fol. 196. Whether a All the 4 Judges. Promiffory Note in which the A SSUMPSIT upon a Note of Hand, payable Words " in one Month" upon Demand. Thefe Words " o —ne appear tohave _-eMov&A" were thus dafhed out. been erafed is admiflible in Support of a Declaration Mr. Auchmuty obje&ed, that the Note thus erafed on a Note did not fupport the Declaration; therefore not Evi- payable on Demand, in dence to fupport it; and prayed Judgment whether Connexion with Eviit fhould go in. dence that the Alteration was made A Witnefs was fworn, who declared, he wrote after Executhe Note, and gave a Reafon why thofe Words tion- quare. were inferted, and faid they had, fince the figning of Fairfervice, been erafed. Mr. S. aZincy, to what Mr. Auchmuty had obje&ed, reply'd, that the Jury were Judges of this Matter, and would determine whether the Razure was before, or after figning. The Point was not much laboured on either Side: And yuflices Oliver 4' Lynde were of Opinion, that, as the Note did not fupport the Declaration, it Should not go in as Evidence. The Chief uJZIice 4 R7ufjice Cu/hing were full for the Cafe, with all its Circumftances to be left to the Jury. 240 March Term 7 Geo. 3. 1767. Jury. And the Chief JufJice faid, that furely the CARPENTER Court could not determine the Weight of the Evi-,v- dence of the Witnefs; but that the Jury are the fole Judges of the Credibility of this Witnefs, upon whofe Teftimony alone it refts, whether this Razure was before or after figning.* (1) The Court being divided, the Plaintiff difcontinued, paying Colts. * Vid. Norwood vs. Fairfertice, ante, p. i89. (X) The queftion as to the time when an alteration of a written inftrument was made, is for the jury. 6 Gray, 442. 20 Vermont, 20o5. I New Hampfhire, 395. Auguft Term VII Geo. 3. Thomas Hutchinfon, Efqr., Chief Juitice. Benjamin Lynde, John Cuihing, Efqrs., Juftices. Peter Oliver, Edmund Trowbridge,* Jonathan Sewall, Efqr., Solicitor General.t Prefent: The whole Court. The Charge of the Chief Juftice to the Grand 1767. Jury. CHARGE TO THE GRAND GENTLEMEN of the Grand Jury: When JURY. I had Occafion laft to fpeak from this Place to the Grand Jury, I made fome general Refledtions * The late Attorney General. This was the firft Time of his fitting as a Judge in the County of Suffolk. He was Succeeded in the Office of Attorney General by Jeremy Gridley, Efqr. + N. B. Mr. Sewall was the firit Officer of the Kind ever known in the Province. He was, prior to this Appointment, made Special Attor3I ney 242 Auguft Term 7 Geo. 3. 1767. Refleetions upon the Nature and End of Civil CHARGE TO Government. I then remarked, that it was effential THE GRAND to a Free People, that they fhould be governed by known and certain Laws.* From thence I took Occafion to obferve upon a well known Maxim of Government, that the Perfon of the Judge and the LegilJator ihould never be united in the fame Perfon. - I don't know how it happened, but this Obfervation of mine was foon after remarked upon in the Papers,t and a Suggeflion thrown out, that I had been, for a Number of Years paft, a&ing in direEt Oppofition to this Principle of mine; and, in Violation of my own Confcience, had continued a Pra&ice diametrically repugnant to my own Sentiments and Opinion. - This was a pretty Home Refleetion. I fhould not have mentioned this Matter now, but from a firm and hearty Regard to my Country, -to fhow People the great Impropriety of fuch Refleftions, and to let them know the Dangers ney General, but this being difagreeable to Mr. Gridley, and carrying Something of an Abfuirdity in the very Term, he was tranflated to his prefent novel Office of Solicitor. * Vid. ante, p 234. t Boflon Gazette, April 27, I767. (I) (I) This paper contains a long political article on the then approaching eleAion of Reprefentatives, figned " Freeborn American." The paffage alluded to is as follows: "It is a do&rine lately advanced by an executive J-ge in a public "affembly, and is manifelly agreeable to liberty and law, that a legi/lator "and judge in thefame perfon are incompatible zvith that freedom 8 in"dependence necejfary to an impartial adminfiration of government; "and yet this very J-ge for a long time was ele&ed a legiflator, and "ferved as fuch." Auguft Term 7 Geo. 3. 243 gers they are expofed to from countenancing fuch 1767. Refledtions, and the Punifhment thofe are obnox- CA ious to, who publifh Things of this Nature..THE GRAND JURY. To fuffer the Tranfa&tions and Opinions of the Executive Court to be illiberally animadverted upon is of the moft dangerous Tendency to the Community: - For, if the Authority of the Executive Courts is brought into Contempt, what Mifchiefs will not infeft Society! It is really amazing to me, how I could be mifunderflood, unlefs through Willfullnefs, in a Matter, in which, if I had been attended to, it was evident I leaned quite the other Way. - For, at that very Time, I mentioned, as the Reafon why the Judge and Legiflator fhould not be the fame Perfon, was becaufe the Will of the Judge would then be Law, and that in fuch a Cafe, the Law would be uncertain, depending upon the arbitrary Will of another. This I faid, to elucidate the main Obje&t I had in View, that the Laws of every State ought always to be fixed, certain and known; and that fuch Laws fhould ever be put in due Execution. - For, when the arbitrary Will of the Judge is the Law, the Laws will be perpetually fluCtuating and uncertain, fo that the Subje& can never know what Laws to obey, nor the Executive Officer what Laws to execute. - The whole Tenor, Scope and Connexion of what I faid, very plainly ihowed my Meaning. But, becaufe I advanced, that the Dire&ion, Opinion and Will of the Judge fhould never be the Law 244 Auguft Term 7 Geo. s. 1767. Law —could it be reafonably inferred that the CHARGE TO Judge fhould never participate in the Legiflative at THE GRAND all -could it juftly be concluded that I meant, that a Judge ihould never fhare at all in making the Laws? It was very obvious my Meaning was direEtly the reverfe. It is very extraordinary to find the fame Perfons contending for an unlimited Freedom of Thought and ACion, which they would confine wholly to themfelves? We find one Side hardly allowed to contradi&t what the other advances, and not permitted even to reafon, without being treated in the moft abufive Manner, and vilifyed beyond all Bounds. —Nothing can be more unjuft than this. Pretty high Notions of the Liberty of the Prefs, I am fenfible, have prevailed of late among us; but it is very dangerous to meddle with, and ftrike at this Court. The Liberty of the Prefs is doubtlefs a very great Bleffing; but this Liberty means no more than a Freedom for every Thing to pafs from the Prefs without a Licence. - That is, you fhall not be obliged to obtain a Licence from any Authority before the Emiffion of Things from the Prefs. Unlicenced Printing was never thought to mean a Liberty of reviling and calumniating all Ranks and Degrees of Men with Impunity, all Authority with Ignominy. - To carry this abfurd Notion of the Liberty of the Prefs to the Length fome would have it - to print every Thing that is Libellous and Slanderous Augurt Term 7 Geo. S. 245 Slanderous — is truly aftonifhing, and of the moft 1767. dangerous Tendency. CHARGE TO THE GRAND To publifh that a Man was a Bankrupt, a Vili JURY. lain or the like, would affuredly be liable to a civil A6tion, if not an Indi&ment. -- To ftrike a Man in the King's Court will fubje& the Offender to the Lofs of his Hand and Imprifonment for Life.And yet, {hall that fame Court tolerate the groffeft Abufe in the publick Prints, and let all Infults pafs with Impunity? - Shall a Man be allowed to publifih openly of an Executive Court, in Print, what he dares not charge a private Man with, in Converfation? I don't give the Abufe in this Matter in Charge to you, Gentlemen, becaufe I conceive that this Court have full Power to proceed in a much more Summary Way to execute Juftice on the Offenders. We often hear of very revere Stri&ures made upon the Condu&t of Minifters of State in Great Britain; but we never hear of fimilar Refledions upon the Judges of Wefiminfier Hall.- They would iffue a Procefs for Contempt of the Court, and commit the Printer instantly, if he did not expofe the Authors -and, if he did, very like, both Author and Publiffier.'Tis on the Dignity and Support of the Executive Courts that your own Liberty depends. Let the Refpe&t due to thefe Courts be loft, let their Dignity not be kept up, by a Support of Authority, and 246 Auguft Term 7 Geo. 3. 1767. and all Order and Government will foon be at End. CHARGE TO For what Order can there be in a Society where THE GRAND the Courts which are to carry the Laws into ExeJURY. cution are treated with a contemptuous Difrefpe&? - -If fuch an unlimited Liberty is indulged and carried on, we fhall foon approach near to that Licentioufnefs which is worfe than Tyranny. I would mention, in Order to fhow People the Hazard they run, in treating this Court abufively, and to caution all againft a like Condu& for the Future, that we are not obliged to have the Matter prefented in the firft Place by the Grand Jury, then to have it left to a Petit Jury to be decided, before the Offence can be punifhed; but this Court may proceed in a far more fummary Manner, to bring the Offender to Juftice.- This Court will ever take proper Care to fecure their Honour by keeping up their Authority. I have faid thus much, that a general Abhorrence of fuch grofs Abufe may take Place for the Future, and every Thing of the like Kind hereafter be univerfally difcountenanced among us. (Here I was called out of Court: - The Chief Juftice then, as I was informed, went on to hint, as rome thought, at what Major Hawley had publifhed in the Papers relative to the Berkfhire Affair. (2) When I returned, the Chief Juftice was paffing very high Encomiums upon the Judges of England, (2) See note at the end of the charge. Auguft Term 7 Geo. s. 247 land, and fpeaking upon thofe Judges who were 1767. guilty of Unfaithfullnefs, Bribery and Corruption. CHARGE TO He faid,-) THE GRAND JURY. They muff certainly be the modf abandonedly wicked of all Men. - They deferve the worif Punifhment, and I pray God they may always meet with it. - But I believe, whenever fuch Charaders have appeared, of which, to the Glory of the Englifh Nation, there have been very few Inftances, they have never been attacked in the publick Prints. (The Judge here charged the Jury about the criminal Affairs, which in this Court were numerous, and then concluded with faying, —) We frequently hear Talk of Tumults and Diforders -but few know the Danger they run, in engaging in fuch Diforders. For, if a Man is attacked, upon any Pretence whatever, in his own Houfe, whether it be to treat him contemptuoufly for the Diverfion and Sport of thofe who affault him, or for whatever other Caufe, if the Man who is thus befet kills any one or all of thofe who thus abufe him, he is only guilty of Manfilaughter, for which he {hall have his Clergy; whereas, if any one of the others fhould unfortunately happen to kill a Man, all thofe. who anyways affifted or abetted the Offenders, are every one of them guilty of Murder, and mulf fuffer the Pains of Death. Gentlemen of the Grand Jury: — You muff carefully attend to all the Obligations which 248 Auguft Term 7 Geo. 3. 1767. which you brought into Court with you, and, more CHARGE TO efpecially, to that additional Obligation you are TCH GRARN JHE GRAND now under, by the Oath of God which is upon you. You are to inquire into and prefent all heinous and dangerous Offences. You are not to fuffer yourfelves to be guided or in the leaft governed by Hatred, Envy or Malice, or Favour or Affection. Be careful to obferve your Oath, and keep the Fear of God before your Eyes —I cannot end with a better Caution. NOTE. The " Berkfhire Affair" alluded to on p. 246 was the trial of Seth Warren, indiAed with others for a riot and refcue of one Franklin, arrefied on civil procefs, while the Courts were clofed by the Stamp Adt. Major Hawley was counfel for the prisoner; and from his account of the affair, published in the " Bofton Evening Poft," July 6th and 23rd, 1767, we compile the following brief statement: One Morse, a deputy sheriff of Berkfhire, having arrefted a prifoner on a juftice's execution, he was refcued by the defendant and others, " the " faid Warren and others declaring to the faid Morfe that it would be in "vain for him to attempt to take any perfon from Lanefborough to "prifon for debt, fo long as prisoners when committed could not be al" lowed to have the liberty of the prifon yard upon any terms, but muff "'be kept in as close cufftody as felons, and until the Court fhould be "open, and people ihould be admitted, by fome courfe or procefs of "law, to recover their dues as formerly. And, to be explicit, it ap"peared in evidence that the plain fenfe of what thofe perfons at that "time declared to Morfe was, that they defired he would not attempt any "more to take anyperfon from Lanefborough to goal on writs purchased "or fued out before the firft of November for debt, fo long as they could "not have their lawful right, viz., the benefit and priviledges of the "King's writs for the recovery of their jufi dues of thofe who were in"debted to them; and that if he fhould attempt it, and fhould adtually "take, and arreft any perfon in Lanefborough for that purpofe, he might "depend on it, that they would be refcued - A noble refolution, worthy of Auguft Term 7 Geo. 3. 249 " of every Englifhman, and all who have the principles of a free gov- 1767. "ernment interwoven in the conftitution of their minds." -" This "refolution of the faid Warren and others then together was, foon after "the faid fixth of November, communicated to feveral others of the "inhabitants of Lanefborough, who, on confideration of the ffate of the "province & country, judged the refolution reasonable & proper, joined "therein, and agreed to abide by it." Afterwards," at a raifing in the " faid Lanefborough, when the greateft part of the men of that town " were affembled, it was propofed to a confiderable number of them, that "all the inhabitants ihould join together, and fiand by each other in pre"venting the officers from arrefting and imprifoning any one of the town "for debt, fo long as the then prefent flate of things, as to proceedings " in law, (hould continue - feveral of the company to whom the propo"fition was then made expreffed their approbation thereof- none of "them objedted to it. - In the evening, the company went to the tav"ern," where the fame officer, aided by a poffe, endeavored to execute a writ againft one Franklin, thenr prefent, -a fcuffle enfued, and the officer and poffe were driven off. " The evidence that there was at the' trial, of this previous confederacy, and that Warren with the other " perfons charged adted purfuant to fuch confederacy in the refcue of' Franklin, was what the attorney-general fpecially relied on in arguing " the case, to fhow it was a riot, and to confute my hypothesis of its be" ing but a fudden trefpafs and affray; and two of the Juftices, viz., " Judge Cufhing and Judge Oliver, in delivering the cafe to the jury, " fpecially obferved and infifted upon it, that it was plain from the evi"dence that the affault," &c., "was committed in confequence and " purfuance of the previous agreement and confederacy above mentioned." "The Chief Juftice did not give his opinion upon the circumftances in "the evidence which fhewed it to be in execution of a previous confed"eracy, but, for reafons beft known to himfelf, chofe to make a different "ftate of the cafe, which indeed was ingenious enough, but not alto" gether fo pertinent and proper, becaufe it was (as I humbly conceive) "_hort of the evidence. - It is to be obferved that the presentment " charged the defendants with a riot, and the Court fuppofed the only' doubt of the jury would be, whether the aforefaid fadts, as they appeared "in evidence, conftituted a riot; and therein the Court fuppofed it was "proper the jury ihould be determined by their opinion, and therefore "particularly informed the Jury it was clearly the opinion of the Court "that the faEts proved conflituted a riot, and that therefore the jury, in "their opinion, could have no difficulty in finding Warren guilty accord"ing to the presentment." The jury were charged with the cafe at night. The next morning, " either before they delivered their verdi&t, "or before fentence," the prifoner's counfel " did fuggelt to the Chief "Juftice that it was clear from Hawkins' Pleas of the Crown, ist Book, "Chapter 65, Sed. 6, which fedtion I turned to and he read, that, ac32 cording 25Q Auguft Term 7 Geo. 3. 1767.," cording to the evidence, the crime which the defendant had been guilty _ "' of, (if of any), was High Treafon; to which the Chief Juftice replied, " he was well apprized of what Hawkins faid, and that he knew, if an "affembly of men, combined for the purpofe, fhould by force oppofe the "execution of one fingle Rfatute, they would be guilty of High Treafon, "which moft certainly is in general true, found dodtrine and clear law. "3 Inif. 9-o - 5 Bacon's Abr. 117 — Hawk. P. C. ubifupra -The "fame in Burn's Juftice." Neverthelefs, the prifoner was convi&ed of a riot, and fined three pounds. In the article from which we quote, Major Hawley argues with great force that the prifoner was either guilty of High Treafon, or, owing to the ftate of nature to which the clofing the courts had reduced fociety, of no crime at all, -judged merely by the light of reafon."But " (he fays)" I think that the punishing him for a riot cannot be jufli" fled upon any principle or hypothefis; for it plainly appears, that his "condudt was either innocent and juftifiable, or that he was guilty of "the higheRt crime, viz., High 7'reafon: And if it appeared to the court "and the King's counfel, that his crime was High Treafon, which, I "think, muff have been the cafe on their. principles, would it not have "been more becoming the charaEter of the firm and intrepid judge, to " have advifed that he fhould have been difminiffed from the prefentment "of a riot, and charged anew, and brought to trial for his true offence, "than without any intimation of his Majefty's pleafure, to have pro" ceeded to conviEt him of a riot, and fine him in the fum of three "pounds." This article by Major Hawley was in reply to what he conceived to have been a misftatement of the fads, by a writer figning himfelf " Philanthrop," who habitually wrote in fupport of the government. See 3 Hutch. Hift. Mafs. i64, I75. Auguft Term 7 Geo. 3. 251 1767. Malcolm verf. Gleafon. MAICOLM GLEASON. A drew a negotiable Order upon B. B. ac- Rec. 1767. LI cepted the Order, and after Acceptance the Order was indorfed over. The Queftion was, The Acceptor of a if the Indorfee could fupport an Adtion againif B. negotiable (upon his Acceptance aforefaid upon the Prefent- Order is liable to a fubfement of the Order by the Payee) before perfonal quent Indor*fee, without Notice given B., of Indorfement. Notice of the Indorfement. Ruled, unanimoufly, by all the five Judges, on Argument, that the Adtion was well brought, and that Notice to B. of Indorfement was not neceffary; for B. was liable to Indorfee in the fame Manner that he was to Payee, on the Acceptance. GIBBS Gibbs verf. Gibbs. GIBBS. Rec. 1767. Fol. xI3. Prefent: O.eftions The whole Court. of Lauw on the Confirudtion of a Will HE Demandant counts as Heir in Tail under mnuf be railed by fpea Will. cial Verdi&, and not by an Objeaion to Mr. Auchmuty obje&ed to the Will going in as the Admiffion of the Will in Evidence to the Jury, becaufe the Will did not Evidence, fupport the Declaration, as it gave only an Eftate on the Ground that it does for Life to the Anceflor of the Demandant. not fupport the DeclaraT he tion. 252 Auguft Term 7 Geo. 3. 1767. The Court, after a fhort Argument, were unaniG, sS moufly of Opinion that the Exception was the firif rro of the Kind ever made; that, if allowed, would deftroy all Wills from being Evidence, as it would bring the real Point in (as they expreffed it) upon a Side Motion, and would be fubverfive of the hitherto uninterrupted Courfe of Pra&tice. The Exception being overruled, the Court faid, the Will lhould go in, as Evidence to the Jury, who, upon finding the fpecial Matter, would bring the Point of Law properly before the Court. HALL Hall verS. Miller. MILLER. Rec. I767 THE Plaintiff brought Affumpfit to pay on DeFol. II8. mand, upon Account annexed, (1) and gave Evidence in Evidence his Book, in which was a Memoranof a Saleupon dum of an Agreement made at the Day of Sale, a Credit will fupport a that Months Credit was given the DefendDecnlaration ant. The Time alledged in the Declaration, of the ife to pay on Defendant's being indebted, was, after a Lapfe of Demand, where the the Months Credit. Now, the Queftion was, Time of the whether this Evidence fupported the Declaration. Promife is laid after the Mr. Expiration of the Credit. (I) The fufficiency of the common form of declaration in affumpfit, upon account annexed, was queftioned in the cafe of Rider v. Robbins, 1 3 Mafs. 284, and it was there held to reft on immemorial pra&ice. See 2 Mafs. 398; alfo Dummer's Defence of the New England Charters, (ed. I745,) 20, where a description is given of the early praftice in the courts of law. -" If it be Matter of Account, the Account is annexed to the Writ, and Copies of both left with the Defendant." Auguft Term 7 Geo. S. 253 Mr. Auchmuty urged, that this Evidence proved a 1767different Contra& from that alledged by the Plain- HALL tiff; for he declares upon a Promife to pay upon De- MILER. mand, and brings in Evidence that the Contra& was not to pay on Demand, but that a long Credit was given: And, though the Promife is not alledged to be upon Demand, till after the Time of Credit was elapfed, yet, that can never alter the Nature of the original Agreement. There never was a Promife to pay upon Demand, if we believe the Plaintiff's own Book; and the Proof varying from the Allegation, the Plaintiff muft, in this A&ion, fail. But it was anfwered, and Refolved by the whole Court, (unanimoufly) that the Promijfe to pay on Demand being laid after the Time of Credit was elapSed, was well Supported by this Evidence; for, the Defendant having negle&ted Payment at the Time limited, after that Time pafJ, the Law raifes a Promife to pay on Demand, and the Plaintiff may then well declare fo. And the Court relied on Gilbert's Law of Evid. 191, where "one brought " Affumpfit for ~20, and gave in Evidence a Prom"ife that if two would furrender their Right, he " would pay them X20 apiece, and that they did "furrender their Right, this is good Evidence to "fupport the Declaration; for the Promife is laid "abfolutely in the Declaration, and the Promife in "Proof is upon Condition, yet, when that Condi"tion is performed, the Duty becomes abfolute, and "fo is good Proof upon this Declaration." 254 Auguft Term 7 Geo. 3. 1767. NOBLE sv. SMITH. Noble verf. Smith. Rec. I767Fol. 121. A partial 4zUncy )'. Otis Confideration g f. S for PlDe't. of a Promif- Y. adams ) R. Auchmuty fory Note cannot be fedwn, ion ofTHIS Cafe was very largely debated by the Damages, 1 Council on both Sides; and the Queflion in an Adion by the was, if Evidence might be given to the Jury, of a Promifee. partial Confideration of a Note of Hand, upon which the Plaintiff, Promifee in the Note, had brought his Aation. The Books produced by the Bar were, Trials per Pais, 408; Cunningh. Bills of Exch. 122, 141; 1 Salk. 25, Meredith 4 Short; 2 Ld. Raym'd. 1430, 1431; 1 Stran. 674; 2 Bac. 4; Gilbt. Rep. 154. 0uft. Trowbridge was for admitting the Evidence to go in, in Mitigation of Damages. Oliver, yuft. was againit the Admifflion. Cuih/ng, yufJ. of the fame Opinion. Lynde, yuJf. was of Judge Trowbridge's Opinion, for Admiffion. The Chief Yuftice acknowledged the Point was ol confiderable Importance, and not without its Diffi. culties on either Side. Many Mifchiefs and Incon. veniences, Augurt Term 7 Geo. 3. 255 veniences, he faid, might arife, upon the Refufal or 1767Admiffion of' fuch Evidence. On the one Hand, NOBLE a Note to a confiderable Amount may be obtained S. upon a very trifling Confideration: It feems hard that an Inquiring into the Confideration fhould be denied, and that Evidence fhould be refufed in Diminution of Damages. On the other Hand, People, upon a Settlement of Accounts, or Matters in Difpute, think themfelves quite fafe in taking a Note for the Sum due, and reafonably fuppofe all Neceflity of keeping the Evidence of the Confideration at an End; it would be big with Mifchief to oblige People to ftand always prepared to conteft Evidence that might be offered to the Sufficiency of the Confideration. This would be doubly iProng in Favour of an Indorfee. Upon the whole, as many more, and, I think, greater Inconveniences would naturally arife, if fuch Examinations into the Confideration of Notes were admitted. I am therefore againft it in this Cafe. (1) The Council for the Defendant, upon this Refolution of the Court, given Jeriatim, confeffed Judgment for the Sum fued for.* * Vid. Styles, 58, Bruer ~ Sowothwell, and I Vin. 332, bot., 332 top. A&ions (of Affum.) (Y). (I) The oppofite do~trine has long been eftabliihed. Parifh v. Stone, I4 Pick. 21o, Shauw, C...- " It feems very clear that want of confideration either total or partial may always be fliown by way of defence; and that it will bar the adion or reduce the damages, as it is found to be total or partial refpeadively." 256 Augufi Term 7 Geo. 3. 1767. CURTIS eV. NIGHTIN- Curtis verf. Nightingale. GALE. Rec. 1767. Fol. II7- NDEBITATUS ASSUMPSIT for Money had Affumpfit and received to the Plaintiff's Ufe. The Cafe ad Mand re- was, - Nightingale, for a good Confideration, fold a ceived will Tra& of Land to the Plaintiff, by Deed; and afternot lie to recover the wards, the Plaintiff's Deed being burnt before reConfideration cording, the faid Nightingale conveyed the fame Money paid for land Land to another Perfon. The Plaintiff now originallyeyeto brought this A&tion to recover back the Confidthe Plaintiff, eration Money. and fubfequently to a third Partyin Mr. Dana obje&ed, that this A&ion would not tiff's Deed lie, but that a fpecial A&ion of' the Cafe, upon the being deftroyed before Fraud, fhould have been brought. 1 Salk. 22. recording. Comb. 341. 2 Stran. 916. 1 Bac. 167. A Majority of the Court was of Opinion that this A&ion for Money had and received would not lie, and fo dire&ed the Jury, who found accordingly.* (1) N. B. * Vid. 2 Ld. Raym'd. i2I6, 1217. (I) It was formerly the rule, that what was a tort in its inception could not be made the fubjeEt of an implied affumpfit. But many exceptions to this rule have been eftabliflied. Where goods tortioufly obtained or held have been fold by the wrong doer, the owner may waive the tort, confirm the fale and maintain affumpfit for the price received. 2 Ld. Raym. i216 (cited by the reporter fupra). Jones v. Hoar, 5 Pick. 285. Whether in a cafe like the one above reported the plaintiff would not have an eledtion, either to confider the fale as refcinded, and recover his original consideration, or to treat the defendant as his agent in Augurt Term 7 Geo. S. 257 N. B. A fpecial A&tion on the Cafe was after- 1767. ward brought, and, on Demurrer to the Declaration, CURTIS the Superiour Court (March Term, Suffolk, 1768) NGHNgave Judgment in Favour of the Plaintiff, on the GALE. Authority of lo RBp. 92, b.* (2) Rec. 1768. Fol. 139. * Viner, Evid. (T. b. 22) pl. I, 3, & ye Note, & ye Authorities there cited. Ib. (T. b. 65) pl. 3. A Deed cafually deftroyed by Fire may be in the fecond conveyance, and recover the laft received purchafe-money proved by - qucre. On a fubfequent page of the MS., this cafe is again reported, Witneffes. and the adion is there ftated to have been brought " to recover back the Confideration Money, either of the Ift or 2d Deed." By the record, however, it appears that the afiion was brought for the original price paid by the plaintiff. (2) Doctor Leyfield's Cafe, where it is laid down that a deed cafually destroyed by fire may be "proved in evidence to the jury by witneffes, that afflidtion be not added to afflidion." The demurrer was evidently on the ground that the deed was not pleaded with a profert. Formerly, in cafe of a loft deed, relief could only be had in equity. Id. (ed. of x826) in notis. March Term VIII Geo. 3. 1768. The Charge given to the Grand Jury by the CHARGE TO Chief Jufitice was as follows. THE GRAND JURY. GENTLEMEN of the Grand Jury: At the Opening of the Court you are fenfible that the Path of your Duty ihould be pointed out to you; and, in Order that you may have an Apprehenfion of what is incumbent on you, I ihall endeavour to give you fome Idea of thofe Principles, on which the Law is founded. Our Anceftors, Gentlemen, when they came over to this Country, brought with them the Common Law of our Mother Country, (which is with great Propriety fo called,) and, although their firft Charter bound them down to make no Laws contrary to the Law of England, yet, from the Situation they were then in, and from their peculiar Circumftances, they March Term 8 Geo. 3. 259 they then apprehended they had a Right to adopt 1768. the Judicial Laws of Mofes which were given to CHARGE TO the Ifraelites of Old. They, at that Time, confid- THE GRAND ered, not how Crimes affe&ed the Peace and Harmony of Society, but, almoft always adapted their Punifhment to the real Guilt of the Criminal. Thus, they punifhed Adultery, with Death (1); Blafphemy, with Death (2); nay, they carried it fo far, that a refra&tory, disobedient Child, if he continued obftinate and incorrigible after Admonition and Reproof, was punifhed by whipping very feverely; and, if that Punifhment did not reclaim or work fome Reformation, he was put to Death. (3) I can't but regret that we have departed fo far from the Spirit of our Fathers, under the old Charter, as that a refraatory, difobedient Child has become fo common * among us as fcarce to be noticed. I could mention many other Crimes and Punifhments under the old Charter, all of which went on this fame Principle I before obferved. Upon a Judgment given againft the old Charter, the People could never obtain fo great a Boon, as they thought their old Charter: Since, you are fenfible, * -Ou. of the Juftice of this Remark. (I) Anc. Chart. 59. (2) This a& was paired in I646, and by its terms was expreffly extended to " pagan indians"-" albeit we compel them not to the "Chriftian faith - nevertheless, the blafpheming of the true God cannot "be excufed by any ignorance or infirmity of human nature, the Eter"nal Power and Godhead being known by the light of nature, and the "creation of the world." Anc. Chart. 6i. (3) Anc. Chart. 6o. 260 March Term 8 Geo. s. 1768. fible, they appointed all their Officers, made all CHARGETO their Laws, without any Controul from Home. At THE GRAND this Day, our Governour, Lieutenant Governour JURY. and Secretary are appointed from Great Britain, and our provincial Ads are all fubje& to a Negative from thence. We ftand, therefore, upon quite a different Footing from our Forefathers, and the Principle of our Laws is very variant from that which governed them under the old Charter. There were feveral Attempts made, fince our prefent Charter, to ena&t Laws upon Old-Charter Principles; but they all failed, and the Laws were difallowed in Great Britain. The Principle of Law which now governs us, is to punifh Crimes, only as they affe&t Society. From hence it is, we fee, many Offences in England are punifhed, often in no Ways proportioned to the real Heinoufnefs of the Crime:- Thus, to counterfeit a Shilling is a higher Crime than to kill one's Father. One is High Treafon — the other is only Felony. High Treafon, Gentlemen, is the higheft Offence our Law knows of, and is a Crime againfit the very End of Government, and tends to deftroy its very Being. Moft of the Offences which amount to High Treafon, we, here, by Reafon of our Diftance from the Perfon of our Sovereign, cannot commit; fome we may, which, before I clofe, I may have Occafion to mention. (Here the Chief Juftice was concife upon the Articles, Felony, Burglary, Forgery, Arfon, Sodomy and March Term 8 Geo. S. 261 and Theft; upon which lafi, he obferved, that our 1768. provincial Law had reduced the Penalty fo low, he CHARGE TO wifhed the Government would, fince the great In- THE GRAND creafe of that pernicious Crime, make fome further JRY. Provifion againft it.) Perjury, Gentlemen, is not, by the Law of England, or our Provincial Law, made capital, which has often excited my Wonder. There is no Crime I now think of, more pernicious to Society. Perjury, in a legal Senfe, is a falfe Swearing in a Court of Record, in a Point material to the Iffue. But that Man muff be abandoned to all Senfe of Religion, who can call his God to witnefs a Falfehood, even where, in a Law-Senfe, it might not amount to Perjury. The lighteft Punifhment fuch a Man muft expe&t to feel, is to be perpetually goaded with the Stings of his own Confcience. Surely, the Time or Place can be no Ways material in the Divine Mind, where a Man willfully fwears a Falfehood. He, who can deliberately call his Maker to witnefs to a Lie, muff live in Horror all his Days. I am forry we have fo much Reafon to think this Crime is fo frequently committed in our Cuftom-Houfe Oaths. There are a Multitude of other Crimes of the moft dangerous Tendency, which ftrike the Mind of the Generality, when we hear Rumours of them, with no great Horror-yet are plainly introductive of the utmoft Confufion into Society, deftroy its Harmony, produce Bloodfhed and Murder —in fhort, if allowed to increafe, they muft fap'the Foundation of all Government. Such are Riots, Routs 262 March Term 8 Geo. s. 1768. Routs and unlawful Affemblies. Yet, who would CHARGE TO live in a State where he was frequently alarmed THE GRAND with Reports of the Kind'? You, Gentlemen, who live in the Country, feldom hear of these Things, but we, who live in Town, fee, feel and hear of them often - that there is a going to be a Rumpus, as it is called -a cant Word for a Riot. This excites no great Horror in our Mind; but if we were told, that fuch a Man's Houfe was to be deftroyed — fuch a Man to be killed —it would fill us with great Dread of the Confequences. — Yet the plain natural Tendency of there Things is to this very End. An Infult, only, may, at firft, be defigned to a private Perfon; but, when once an Affembly is gathered, any one of that Company who has a private Pique againft any Individual, and has a Hand in the Lead, may eafily draw fuch a Multitude to commit Crimes which, at firft, they had not the leaft Intention to do; nay, would have fhuddered at, if mentioned. (Here the Chief Juftice went into the wellknown Law of Aggreffiors and Defenders in Riots and Affaults, and recommended to the Inhabitants of Bofton a watchful Eye over their Servants.) One other Offence, which tends much to diffurb the Peace and deftroy the Order of the Community, is that of Libelling.* This *' If the Severity of the Law, touching Libels, as it hath fometimes been laid down, be duly weighed, it mufl ftrike both Houfes of Parliament with Terror and Difmay. The Lords' Proteft, in November, 1763. P. 9. March Term 8 Geo. 3. 263 This Offence has increafed very much, of late, 1768. and threatens the Subverfion of all Rule among us. CHARGE TO There are People who make it their Bufinefs to THEGRAND furnilh the Prefs with the moft Scandalous and de- JURY. famatory Pieces. No Government,- in Europe, I am fure, - not one that is counted the moft free, would have tolerated thofe libellous Pieces which we have feen in the publick Prints, within this Twelve-month paft. Thefe Publications have often brought to my Mind a Story I have heard of one Wilkes, of whom you all have heard - and whom, I am forry to fay it, fome among us Ihow too great a Defire to imitate. That Perfon was once alked, while he was writing, how far a Man in an Englifh Government might go, in his Publications, and not come within the Laws of High Treafon. To which he anfwered, he was juft then trying how far he could go. Thefe Authors among us feem to be trying the fame dangerous Experiment. I will not pronounce thofe Authors guilty of High Treafon; but I will venture to fay, they come as near it as poffible, and not come within it. For thefe feven or eight Years, I have made it my conftant Praftice to read every Book upon the Crown-Law I could meet with; and I never yet read or heard, till of late, the Dodrine that fome particular Perfon muff be itruck at - that Names of particular Perfons were neceffary - that the initial or final Letters muff be inferted, in Order to make a Libel. This 264 March Term 8 Geo. 3. 1768. This Notion which has lately prevailed feems to CHARGE TO arife from a Miflake of fome of' our Books, where THE GRAND fome defamatory Pieces have been adjudged LiJURY. bels, becaufe the Authors had put down the initial or final Letters of the Names of certain Perfons. But, furely, it never follows from hence, that this is the only Way of making a Libel. The Rule of Law is, that the Perfon libelled muft be fufficiently marked out; for, if the Perfon is fo fully delineated, that he is well known without putting his Name, it rather adds to the Heinoufnefs of the Offence, as it fhows the deliberate Malice of the Author, and his wicked Endeavours to elude the Law. Neither is it neceffary to a Libel, that any Perfon at all be mentioned: As in a Libel againft the Government, wrote in Queen Ann's Time, which contained a Defence of Hereditary Right, and a Denial of the Right of Parliament to fix the Crown where it then was. (1) So there may be a Libel upon Religion, - as I remember, when I was quite young, to have heard of one Wooliton who wrote feveral Treatifes againft the Miracles of Our Saviour. (2) Thus, in publifhing of a very obfcene Book, as the Earl of Rochefter's Works. And one Curl, I think, was condemned to the Pillory for a Libel of the fame Sort. (3) The Duke of Wharton too, who wrote a Book called Ezeriph and Sophron, in which a Parallel was run between thofe two Chara&6ers, (i) Dr. Sache~verell's Cafe; I5 Howell's State Trials, r. (2) See 26 Howell's State Trials, 676. (3) io Howell's State Trials, I53. March Term 8 Geo. 3. 265 a&ers, making Sophron, by whom was meant the 1768. Pretender, a very wife Prince, and Ezeriph, by ccR TO whom was intended the King then on the Throne, THE GRAND a very weak and wicked Man. (4) In all thefe J Writings and many more I might name, no Names were mentioned nor ever fuppofed neceffary to make them Libels; but the Authors or Publifihers were committed, and punifhed in the fevereft Manner. And one Franklin, who wrote againft Minifters, was imprifoned and punifhed; though it was obje&ted, that there were Minifters of Religion, as well as State. (5) Nothing can be clearer, than that a Libel may as well be without a Name, as with one, and without any initial or final Letters. As painting a Sign, drawing a Man's Pi&ure with a Gallows near it, or any other Way fufficiently defcriptive of the Perfon intended. I remember that Lord Talbot, one of the greateft Judges that ever fat on the Englifh Bench, lays it down as the Rule of Libels, that, if, upon the Connexion and Comparing of the feveral Parts, and then taking the Whole together, the Perfon was plainly pointed out and eafily known to every Reader, it was fufficient to conftitute it a Libel. — It is enough if the Thing is obvious to a common Underftanding. I expe&t fome will cry out, our Liberties are endangered - the Liberty of the Prefs is ftruck at - but (4) I7 Howell's State Trials, 666, & note. (5) I7 Howell's State Trials, 626. 34 266 March Term 8 Geo. 3. 1768. but let fuch People confider, that, if we may write, CHARG ETO why not fpeak as freely of Men' Shall a Man THE GRAND print that, of the firif Ruler of a State, which he JURY. will not fpeak of any one Man in the Community? Shall our first Magiftrate be thus flandered with impunity in an infamous Paper?* - I believe I may fay thus much, without incurring the Imputation of prejudging. Formerly, no Man could print his Thoughts, ever fo modeffly and calmly, or with ever fo much Candour and Ingenuoufnefs, upon any Subje6t whatever, without a Licence. When this Reftraint was taken off, then was the true Liberty of the Prefs. Every Man who prints, prints at his Peril; as every Man who fpeaks, fpeaks at his Peril. It was in this Manner I treated this Subje&t at the laft Term, yet the Liberty of the Prefs, and the Danger of an Inprimatur was canted about, as if the Prefs was going under fome new and illegal Reftraint. No Gentleman of the Bar, I am fure, could have fo mifunderitood me. This Reftraint of the Prefs, in the Prevention of Libels, is the only Thing which will preferve your Liberty. To fuffer the licentious Abufe of Government is the moft likely Way to deftroy its Freedom. - But fhall a Printer be punifhed? - why, it is faid, it is his Living. - Shall a Highwayman be punifhed? To rob is his Living. Shall a Thief? - to iteal is his Living.t Whence * Fide the Supplement to the BOSTON GAZETTE, February 29, i768, Bofton Gazette, March 7, 1768, March 14, 1768. (6) t Vid. Kelyng, 23. (6) See'note at the end of this charge. March Term 8 Geo. 3. 267 Whence is it, that this Difference is made between 1768. him who robs me of my Reputation, and who CHARGE TO takes away my Property. The former is the worfi THE GRAND of the two. You, Gentlemen, may be at fome Lofs, what is Evidence of publishing a Libel. I will briefly mention what is undoubted Law in this Cafe. A Bookfeller having a libellous Book in his Shop to fell is full Evidence enough to you, Gentlemen, of the Publifher. To fend a Libel about by one's Servant to fell is Evidence alfo. Gentlemen, the general Rule of Law here takes Place, that who ever does a Thing by another, does it himfelf. A Libel may be as well againif a private Perfon, Gentlemen, as againit one in a publick Station; and the Difturbances Things of this Sort are likely to breed, is very obvious to every Man; but the Confequences are infinitely more mischievous when the Chief Ruler is openly attacked. - There is no End to thefe Things. But, it is faid, if we have a bad Ruler, there is no other Means of Redrefs. This is a Miftake. To be fure the C6hief Ruler of the Province is not to be brought into this Court to anfwer for any Mlfdemeanour: but we muft feek Relief from Great Britain. (7) 4a. If our Governour ads in an illegal Manner, we have a good King, and can eafily have him removed. 2a. Upon (7) For an article by Quincy on the liability of all officers to impeachment, and the caufes therefor, published in the " Bofton Gazette " of Jan. 4, I768, fee App. IV. 268 March Term 8 Geo. s. 1768. Upon a juft Complaint we may have a Governour CHARGE TO ordered to Weftminfter and there tryed and punTHE GRAND iffied. We have feen Inifances of this. But, I am JURY. fure, I do not believe our prefent Governour is deferving of fuch Treatment: I am myfelf fully convinced of his Uprightnefs and Integrity. Judge Fofter, who is one of the cleareft and moft accurate Writers I ever met with, upon the CrownLaw, lays it down, that no Subject, in Society, has a Right to avenge his own Wrongs, but muft feek his Redrefs in the Method the Laws of his Country allow. And if it fhould unfortunately happen, that any one Individual fhould be injured, or greatly wronged, by thofe appointed to rule over him, and the Laws of the Land afford him no Remedy, he ought patiently to bear his unhappy Lot; and it is incumbent on him to have Recourfe to that Maxim, that Vengeance belongeth only to the Mofi High.* Gentlemen of the Grand Jury: You are to remember the Oath of God which is upon you. You are fworn truly to prefent all fuch Matters and Things t* Qu. if his Honour (the Chief Juftice) don't refer to Foffer's Crown Law, 296, q.,v. And tu. if Judge Foffer's Words will bear the ConftruEtion (as here given) in its full Extent. (8) (8) The paffage referred to is as follows: " No man under the proteftion of the law is to be the avenger of his "own wrongs. If they are of fuch a nature for which the laws of fociety "will give him an adequate remedy, thither he ought to refort: but be "they of what nature foever, he ought to bear his lot with patience and "remember, Sbthat Vengeance belongeth only to the Moft High." March Term 8 Geo. s. 269 Things as fhall be given you in Charge.* —Go 1768. now and fee how you can get over your Oath: — CHARGE TO Go now and fee if you can avoid making a Pre- THE GRAND JURY. fentment of thofe heinous Offences with which you have now been charged. — In doing your Duty and in the Obfervance of your Oath, you may caufe a Clamour againft you; Reproach may be thrown on you; you may be vilified and flandered; - but remember your own Confciences. In the faithful Difcharge of your Duty, you will find, at leaft, the Approbation of a good Confcience. You ought not, by any Means, to regard the Cenfure you may meet with, from the Performance of your Duty as Grand Jurymen. Remember that you and I are to give an Account to our God at his awfull Tribunal, how we have discharged our refpetive Duties, and of our Obfervance of the feveral Oaths of God, with which each of us is laid under the greatelf Obligations. — I hope, Gentlemen, *.u. if the Words of the Oath will bear any fuch ConfiruAion; and fee the precedent Words of the Oath in the Law-Book. (9) (g) Prov. St. 4 W. & M. (ed. I759) 26, where the oath of the foreman and other grand jurors is thus: i; yOU as Foreman of this Inqueft for the Body of this County of S. You fhall diligently enquire and a true Prefentment make " of all fuch Matters and Things as {hall be given you in Charge; the "King and Queen's Majefties Counfel, your Fellows and your own, you "ihall keep fecret; you fhall prefent no Man for Envy, Hatred or "Malice; neither fhall you leave any Man unprefented for Love, Fear, "Favour or Affection, or Hope of Reward: But you Ihall prefent "Things truly as they come to your Knowledge according to the beft of "your Underftanding. So helpyou GOD." "( T HE fame Oath which your Foreman hath taken on his Part, you and every of you on your Behalf ihall well and truly "obferve and keep. So help you GOD." 270 March Term 8 Geo. s. 1768. tlemen, you will bear in Mind what I have now lfaid, and pray that we may all finally be acquitted at the Bar of God. N. B. The Grand Jury found no Bill for Libelling. At the Superiour Court held fhortly after, at Charleftown, the Chief Juflice, (as I was well informed,) in his Charge to the Grand Jury, gave a gentle Touch upon the Condu&t of this (Suffolk) Grand Jury, in not finding a Bill, after fuch a Home-Charge. u. of' fome Points of Law laid down in the preceeding Charge:- And vide Bollan on the Freedom of Speech and Writing upon Publick Affairs, p. 45, 46, 47, and onward. yide 2 Lord Raymond, 879. NOTE. The circumstances which gave rife to the alleged libel referred to by the Chief Juftice were as follows: Hutchinfon had been a member of the Council for fome years before he became Lieutenant Governor. After receiving this appointment, though no longer ele&ed to the Council, he continued to occupy a feat in that body, on the ground that the Lieutenant Governor poffeffed iuch a privilege ex officio. This claim was the occafion of a warm controverfy between the Houfe of Reprefentatives and the Governor, the former afferting that it afforded " a new and additional inftance of ambition and a luit of power " on the part of the Lieutenant Governor, which charge Hutchinfon declares to have been the work of Major Hawley, in revenge for imagined ill-treatment in Court. 3 Hutch. Hif. Mafs. I75 (ante, p. 249, 50). The Governor represented the affair to Lord Shelburne, then Secretary of State, and received a reply, approving of his condudt, cenfuring the Houfe in general, and feveral members in March Term 8 Geo. 3. 271 in particular. This excited much indignation in the Houfe, who there- 1768. upon charged the Governor with mifreprefenting the character of their members, and alfo prepared a letter to the Secretary of State, praying for an opportunity of vindicating themselves and their conflituents. It was at this time that the article in queftion appeared in the fupplement to the " Bofton Gazette " of February 29, 1768, referred to by the reporter, together with the two following papers, containing the proceedings of the Council and Houfe, and other communications relating to the affair. The file of Boflon newspapers for that year, from which we copy, is in the poffeffion of the Maffachufetts Hiftorical Society, and contains many pen and ink notes, references, &c., by the original owner and compiler, Harbottle Dorr, a Bofton merchant of the period. Thefe we have enclofed in brackets where they occur. From the fupplement to the " Bofton Gazette," Feb'y 29, 1768: [By Doctor lYarren.] "Meffieurs EDES & GILL, "Please to insert the following. AY it pleafe your 1, We have for a long time known your Enmity to this Province. We have had full Proof of your "Cruelty to a loyal People. No Age has perhaps furnifhed a more glar"ing Inftance of obfiinate Perfeverance in the Path of Malice, than is "now exhibited in your -. Could you have reaped any Ad"vantage from injuring this People, there would have been fome Excufe " for the manifold Abufes with which you have loaded them. But when "a diabolical Thirft for Mifchief is the alone Motive of your Condu&, "you muff not wonder if you are treated with open Diflike; for it is "impoffible, how much foever we endeavour it, to feel any Efteem for "a Man like you- Bad as the World may be, there is yet in every "Breaft Something which points out the good Man as an ObjeEt worthy "of Refpe&6, and masks the guileful treacherous Man-hater for Difguft "and Infamy." Nothing has ever been more intollerable than your Infolence upon a "late Occafion, when you had by your jefuitical Infinuations, induced a "worthy Minifter of State, to form a molt unfavorable Opinion of the "Province in general, and fome of the moft refpeEtable Inhabitants in "particular. You had the Effrontery to produce a Letter from his Lord" hip, as a Proof of your Succefs in calumniating us.- Surely you muff " fuppofe we have loft all Feeling,or you would not dare thus tauntingly to "difplay the Trophies of your Slanders, and, upbraidingly, to make us "fenfible of the inexpreffible Misfortunes which you have brought upon " us.- But I refrain, left a full Reprefentation of the Hardfhips fuffered' by this too long infulted People, fhould lead them to an unwarranta-;' ble Revenge. We never can treat good and patriotic Rulers with too " great 272 March Term 8 Geo. s. 1768. great Reverence - But it is certain that Men totally abandoned to _ "Wickednefs, can never merit our Regard, be their Stations ever fo high. "' Iffuch Men are by God appointed, "''he Devil may be the Lord's anointed.'" [By Dr. Warren.] A TRUE PATRIOT." [This woas fuppofed to be a great Libel on the Goovernor z he recommended it to the Houfe and Council to confider it. 7ihe Grand Jury'tWere inftructed tofind a Bill, but they did not.] Bancroft attributes the above article to Otis as " bearing the marks of his excited mind." VI. Bancroft's Hilt. U. S. x3I. From the " Bofton Gazette," March 7, 1768: " BOSTON, March 3, 1768. " Tuefday laft his Excellency the Governor was pleafed to fend the "following Meffage to the Honorable His Majefty's Council: " Gentlemen of the Council, i' HAVE been ufed to treat the Publications in the Bofton-Gazette with the Contempt they deferve, but when they are carried to a "length, which if unnoticed, muft endanger the very Being of Govern"ment, I cannot confiftently with the Regard to this Province which I " profefs and really have, excufe myfelf from taking Notice of a Publica"tion in the Bofton-Gazette of Yefterday, beginning at the top of the fec"ond Column of the fecond Page of the Supplement. I therefore con"fulted you in Council thereupon, and have received your unanimous "Advice that I flould lay the faid libellous Paper before your Board in " your legiflative Capacity, and likewife before the Houfe of Reprefent" atives. " In purfuance of which Advice, I have ordered the Secretary to com"municate to you the faid libellous Paper, that you may take the fame "together with all the Circumftances attending it, into your ferious Con"fideration, and do therein as the Majefty of the King, the Dignity of his "Government, the Honor of this General Court, and the true Intereft "of this Province, fhall require. C" FRA. BERNARD. "Council Chamber, March I, 1768." "In Anszwer to which, there being the full Number of the Councilprefent "excepting three Gentlemen, the Board unanimou/ly Voted the following "Addrefs to His Excellency. " To His Excellency FRANCIS BERNARD, Efq; Captain General and "Governor in Chief, in and over his Majefty's Province of the Mafia"chufetts-Bay in New-England, and Vice-Admiral of the fame. "The March Term 8 Geo. s. 273 1768. "The ADDRESS of His Majefly's Council of the Province aforefaid. "May it pleafe your Excellency, i T HE Board have taken into ferious Confideration your Excellency's Meffage of the firfit Inffant, with the Bofton-Gazette "communicated therewith. "The Article in faid Gazette, refer'd to by your Excellency, gave the " Board a real Concern, not only as it is mischievous in its Tendency, but "as it is a falfe, fcandalous and impudent Libel upon your Excellency. " Altho' the Author of it may endeavour to fcreen himfelf by the "Omiffion of a Name, yet as it refers particularly to a Tranfaftion fo "lately had in the General Court, there is the higheft Prefumption the " Intention of it could be no otherwife than to place your Excellency in "the moft odious Light. " Such an infolent and licentious Attack on the Chief Magifirate (the "King's Reprefentative in the Province) involves in it an Attack on "Government itfelf; as it is fubverfive of all Order and Decorum; and "manifeftly tends to deftroy the Subordination, that is absolutely neceffary "to good Government, and the Well-being of Society. It would have "been flagitious at any Time, but being perpetrated while the General " Court is fitting, and a Tranfaftion in the Court the alledged Occafion of " it, it becomes from thefe and other Circumftances, in the higheft degree "flagitious; and may jufily be deemed, not only an Infult on the General " Court; not only an Infult on the King's Authority, and the Dignity of " his Government, but as it concludes with the moft unwarrantable Pro" fanenefs, an Infult upon the King of Kings. " The Board therefore cannot but look upon the faid Libel with the "utmoft Abhorrence and Deteftation: and they are firmly persuaded " the Province in general view it in the fame light: The Threats there"fore implied in the faid Libel cannot be the Threats of the Province, "but of the Libeller. " The Board take this Opportunity, with one Voice to affure your Ex"cellency that, to the utmolt of their Power, they will always defend and "fupport the Honor and Dignity of the King's Governor; and will be "ever ready to do, in this Affair, as in every other, whatever the Majefty "of the King, the Honor of the General Court, and the true Intereft of "this Province, fhall require. " In COUNCIL, 3rd March, I768. "ORDERED UNANIMOUSLY, That the foregoing Addrefs be prefented "to His Excellency the Governor, and that Samuel Danforth, Benja" min Lincoln, William Brattle, Thomas Hubbard, and Harri/rn Gray, "Efqrs., be a Committee to wait on His Excellency therewith. "A. OLIVER, Secr'y. 35 274 March Term 8 Geo. 3. 1768. "His Excellency -was pleafed to return the follocwing Anfwer: " GENTLEMEN, Thank you moft heartily for this Addrefs, in which you exprefs fo full and unanimous a Senfe of your Duty to the King, and your "Refolution to fupport his Government in this Province. For myfelf, I " am fo fortified in a Confcioufnefs of my own Integrity, which has hith"erto defied the utmofft Malice to impeach it publickly, that I am not to "be moved by the impotent Attacks of an anonymous Libeller. I ihould'not have taken Notice of the Libel in queftion, if I had not apprehended "it pregnant with Danger to the Government. As you are of the fame "Opinion, I have only to affure you that I will at all Times moft readily "join with you in all proper Meafures to maintain the Authority of the " King, and promote the Welfare of the People, within the Province, "committed by His Majefty to my Charge. "FRA. BERNARD. "Council Chamber, "March 3, 1768. "His Excellency fent the like Meffage to the Houfe of Reprefentatives "as the preceding to the Council, mutatis mutandis; to'which the Houfe "made the following Anfower, "In the Houfe of Reprefentatives, March 3, I778.' ROR DERED, That Mr. Hancock, Mr. Otis, Col. Ward, Mr. Spooner, and Capt. Bradford, be a Committee to wait on his " Excellency the Governor, with the following Anfwer to his Meffage "of the iff Inifant. "' T. CUSHING, Spk'r. "May it pleafeyour Excellency,; I N Duty and great Refpet to his Majefty's Reprefentative and Governor of the Province, this Houfe have given all due Atten" tion to your Meffage of the firlt Inifant. You are pleafed to recom"mend to their ferious Confideration, a publication in the Bofton Gazette "of Monday laft as' being carried to a length, which if unnoticed, mufft "endanger the very Being of Government.' In this View, your Excel"lency, in the Notice you have taken of it, without doubt, acted'con"fiffently with the Regard to this Province, which you profefs.' " We are very forry that any Publication in the News Paper, or any "other Caufe, flould give your Excellency an Apprehenfion of Danger "to the Being or Dignity of His Majefty's Government here. But this " Houfe, after Examination into the Nature and Importance of the Pa"per referred to, cannot fee Reafon to admit of fuch Conclufion as your "Excellency has formed. No particular Perfon publick or private is " named March Term 8 Geo. 3. 275 "named in it: And as it doth not appear to the Houfe, that any thing 1768. "contained in it can affe&t'the Majefly of the King, the Dignity of the _ "Government, the Honour of the General Court or the true Intereft of "the Province,' they think they may be fully juftified in their Determi"nation to take no further Notice of it.* "The Liberty of the Prefs is a great Bulwark of the Liberty of the' People: It is therefore the incumbent Duty of thofe who are confli"tuted the Guardians of the People's Rights to defend and maintain it. "This Houfe, however, as one Branch of the Legiflature, in which Ca"pacity alone they have any Authority, are ready to discountenance an "Abufe of this Privilege, whenever there ihall be Occafion for it: Should "the proper Bounds of it be at any Time tranfgreffed, to the Prejudice "of Individuals or the Publick; it is their Opinion at prefent, that Pro"vifion is already made for the Punifhment of Offenders in the common "Courfe of the Law. This Provifion the Houfe apprehend, in the pref"ent State of Tranquility in the Province, is fufficient, without the " Interpofition of the General Affembly; which however, it is hoped, "will, at all Times, be both ready and willing, to fupport the executive'Power, in the due Adminiftration of Juffice, whenever any extraor"dinary Aid fhall become needful." *" g'he Di4vi/ion upon this,ueftion rwas 56 to I 8. nhe DiviJion in the Houfe upon this Mefage'was 39 to 30o." From the fame paper: " Metieurs EDES & GILL, "Pleafe to infert tbe follo.wing: " J/[Y firft performance, has by a frrange kind of compliment, v1 been by fome applied to his Excellency Governor Bernard. " It is not for me to account for the conftruflion put upon it. Every' man has a right to make his own remarks, and if he fatisfies himfelf, "he will not difpleafe me. I will however inform the Public, that I "have the moft facred regard to the characters of all good men, and "would fooner cut my hand from my body, than firike at the reputation "of an honeft member of the community: But there are circumstances, "in which not juflice alone, but humanity itfelf, obliges us to hold up the "villain to viewv, and expofe his guilt, to prevent his deftroying the "innocent. - Whoever he is whofe confcience tells him he is not the "monifer I have portraited, may reft affured I did not aim at him; but "the perfon who knows the black picture exhibited, to be his own, is "welcome to take it to himfelf. - The Imputation of difaffeAion to the "King and the Government, brought againit me by his Majefty's coun"cil, I fhall anfwer only by a quotation from the paper which they have "been pleafed to cenfure, where I fay,' We can never treat good and "patriotic rulers with too great reverence.' In which fentence I hope " the 276 March Term 8 Geo. 3. 1768. " the honorable Board will not fay I have omitted to declare my fenti_ "ments of the duty which every good fubje& owes to his prefent Majefly, "and all worthy Subordinate magiftrates. And I flatter myfelt, that the " entiments of the Board coincide with mine; if they do not, I mull " diffent from them. - Their charge of profanefs, I humbly apprehend, "was occafioned by their forcing a fenfe upon the two laft lines, totally "different from what I intended they fhould convey - My defign was to "compare wicked men, and efpecially wicked magifirates, to thofe ene" mies to mankind the devils, and to intimate that the devils themfelves " might boaft of divine authority to feduce and ruin mankind, with as "much reafon and juftice, as wicked rulers can pretend to derive from "God, or from his word, a right to opprefs, harrafs and enflave their "fellow-creatures. The beneficent Lord of the univerfe delights in " viewing the happiness of all men: And fo far as civil government is "of divine inftitution, it was calculated for the greateft good of the " whole community: And whenever it ceafes to be of general advan"tage, it ceafes to be of divine appointment; and the magiftrates in fuch "a community have no claim to that honor which the divine Legiflator "has affigned to magiftrates of his elefAion. I hope the honorable Board "will not condemn a man for expreffing his contempt for the odious doc"trines of divine hereditary right in princes, and of paffive obedience, "' which he thinks dilbonorary to almighty God, the common and impar" tial Father of the fpecies, and ruinous both to Kings and Subje&ts; "and which if adhered to, would dethrone his prefent Majefty, and de"firoy the Britifh nation. The honorable Board is humbly requested "to examine whether the above is not the moft natural and obvious "fenfe of the quoted lines: Certainly when I read them, I thought it " the only fenfe; and I fhall think myfelf very unhappy in my readers, "fhould they generally put that conifrudtion upon them which the hon" orable Board have been pleafed to adopt. "I {hall at all times write my Sentiments with freedom, and with de"cency too; the rules of which I am not altogether unacquainted with. "- While the Prefs is open, I fhall publifh whatever I think conducive "to general emolument; when it is fuppreffed, I fhall look upon my " country as loft, and with a fteady fortitude expeAt to feel the general "ihock I "A TRUE PATRIOT." "PRINTERS! "Insert the following! "A libel on a Lobfter. ", I Hope none will be offended; but I really prefer a Crab to a Lobfter.* " Libellus Famofus. "* See S Report. x25. March Term 8 Geo. 3. 277 1768. "A Libel on Crabs. "I T Care not a Farthing who is offended; I would not give one Lobfter for Ten Crabs.* " Famofus Libellus. "* See Wefiminfter Journal." From the " Bofton Gazette," March I4, 1768. "Mefileurs EDES & GILL, [Dr. Warren.] " Pleafe to infert the follo'wing: {'W~ITH Pleafure I hear the general Voice of this People in favor of freedom; and it gives me folid fatisfadion to find " all orders of unplaced independent men, firmly determined, as far as in " them lies, to fupport their own RIGHTS, and the Liberty of the " PRESS. The hon. houfe of Reprefentatives have fhewed themfelves " refolute in the caufe of juftice - The Grand Jurors have convinced us, " that no influence is able to overcome their attachment to their country, " and our free conftitution-they deferve honor- But this is one of "thofe cafes, in which by doing as they have done, they really merit "praife; yet the path was fo plain, that to have done otherwife, would "have rendered them indeed I " While this People know their true intereft, they will be able to dillin"guiih their friends from their enemies; and with uniform courage, will " defend from tyrannic violence, all thofe who generoufly offer themselves "volunteers in the caufe of truth and humanity. But if ever a miftaken " complaifance leads them to facrifice their privileges, or the well-mean" ing affertors of them, they will deferve bondage, and foon will find " themfelves in chains. " Every fociety of men have a clear right to refute any unjuft afper" fions upon their chara&ters; efpecially when they feel the ill effedts of " fuch afperfions: And though they may not purfue the flanderer from "motives of revenge, yet are obliged to endeavour to dete& him, that fo "he may be prevented from injuring them again. - This province has "been moit barbaroufly traduced; and now groans under the weight of "thofe misfortunes which have been thereby brought upon it; we have "dete&ed fome of the authors; we will zealoufly endeavour to deprive "them of the power of injuring us hereafter. -- We will ftrip the fer"pents of their itings, & confign to difgrace, all thofe guileful betrayers " of their country. - There is but one way for men to avoid being fet " up as objeats of general hate, which is, NOT TO DESERVE IT. " A TRUE PATRIOT." 278 March Term 8 Geo. s. 1768. " To the PRINTERS. [S. Adams.] "P T HERE is nothing fofretting and vexatious, nothing fo juftly 1 TERRIBLE to tyrants, and their tools and abettors, as a FREE "PRESS. The reafon is obvious; namely, Becaufe it is, as it has been "very juftly obferved, in a fpirited anfwer to a fpirited fpeech,' the "bulwark of the People's Liberties.' For this reafon it is ever watched "by thofe who are forming plans for the deftrudtion of the People's "Libelties, with an envious and malignant eye. If a villain is por"traited and held up to the public, rather than fail in the attempt to caft "an odium upon the prefs, they will even o.wn the character, and pro" nounce it a libel; for it is their abfurd do&rine, the more true, the " more libellous. It is not at all furprizing, thatyour prefs is hated, and "your paper branded with the name of' infamous,' by Jome men: "Thefe are the men who formed and puihed to the utmoft of their' power, the late detefted Stamp-Act: Thefe are the men who have been "forging chains and manacles; and when they could not, after the moft "impudent attempt, force them upon the people, have with intollerable "infolence endeavored to perfwade them that they had better put them on "themfelves: Butyour Prefs has founded the alarm; or to ufe the words "of a minion,' rung the alarm bell:' Your Prefs has fpoken to us the "words of truth: It has pointed to this people, their danger and their "remedy: It has fet before them Liberty and Slavery; and with the " moft perfwafive and pungent language, conjured them, in the name of "GOD, and the King, and for the fake of all posterity, to chufe Liberty " and refufe Chains: Go on, for you have been already profper'd. "The People have liftned with attention:.They have purfued fuch "meafures as in fpite of the flanderous tongues of their malicious enemies "muft and uwill be fuccefsful: While thefe meafures have been taking, "your Prefs has been inceffantly calling upon all to be quiet; and pa" tiently to wait for their political Salvation - No MOBBS - NO CON" FUSIONS - No TUMULTS - This has been the language of YOUR "' infamous' Paper - Let this be the language of ALL - Mre know "C WHO have abufed us -We owe them Contempt, and we will treat them "with it in full meafure: But let not the hair of their fcalps be touched: "The time is coming, when they lhall lick the duff and melt away. " POPULUS." The next week's " Gazette," publifhed March 2Ift, contains an account of the celebration of the anniverfary of the repeal of the Stamp A&t, (March I8th,) and among the toafts drank at a dinner of fifty gentlemen at the Britiih Coffee Houfe, appear the following: "5. tihe Bofton-Gazette and the worthy members of the HouJfe'Who " at Bofton, dated July ii, I766, and recorded in Book of Commiffions I764-I774, fol. 68, and of fimilar earlier commiffions. Temple had previoufly been Surveyor General of the Northern Difnria of America; Paxton, Surveyor of the Port of Bofton; and Robinfon, Colledtor of Newport. Vid. fupra, 421, 428, 437. Their commiffion is dated September 8, I767, recorded in Book of Commiffions I764-I774, fol. 83-92, published entire in the Bofton Evening Poft of September 26, 1768, and quoted, in part, in the Report of the Committee of Bofton in November I772, infra, 466. Hulton, Burch, and Paxton arrived in Bofton on the Sth of November I767. Temple and Robinfon were here before. Bofton Evening Poft, November 9, 1767. 3 Hutchinfon's Hilt. Mafs. I83. 1 768. In a "general letter," dated " Cuftom Houfe, Bofton, I Jany ~..~'x,-~..'s I768," and figned by all of them, they faid to their fubordinate officers: Their in- " You are to mention if you have received the AAt of the 7th of his ftruEtions and prefent Majefty ch. 46, the direEtions of which you are firitly to obferve, commiffions and particularly, if you are not already furnifh'd with Writs of Afliftto their fubtordinrates, ants, you are to apply by letter for fuch writs to the Juftice or Juftices of the Superior Court of your Province or Colony, who are empowered by faid a& to grant the fame." Salem Cuftom Houfe Record, 216. Their printed inftruEtions and commiffions to their inferiors varied from the forms of I764, (fupra, 433, note,) in expreffly mentioning Writs of Affiftants. The inftruAions were altered by ftriking out the words " under the Regulations prefcribed by Law," and inferting thefe: " Obferving that you are not to enter any Houfe, Shop, Cellar, or Warehoufe, but in the Day time, and taking with you a Writ of Affilftants, and a Conftable, Headborough, or other Civil Officer next inhabiting." Printed inftru6tions of February 28, 2769, to yobn Mascarene, Comptroller of Salem, in Mafs. Hift. Soc. Lib. In the fame library is an impreffion of the plate, engraved in London, for commiffions to their fubordinates, "By virtue whereof He hath power to enter into any Ship, Bottom, Boat or other Vessel, & also in the day time with a Writ of Affiftants granted by his Majeftys Superior or fupreme Court of yustice, and taking with him a Conftable, Headborough or other publick Officer next inhabiting, to enter into any Houfe, Shop, Cellar, Warehoufe, or'other place whatsoever, not only within the faid Port but within any other Port or place within our jurifdiaion, there to make diligent Search, and in cafe of refiftence, to break open any Door, Trunk, Cheft, Case, Pack, Trufs, or any other parcel, or package whatfoever," &c. This is also printed (though mifpun&tuated) in the Society's Proceedings of x859, p. 324. See also Salem Custom House Record, quoted in 2 Effex Inftitute Hift. Coll. 173. Removal One of the firft aats of the Commiffioners was to remove Folger, of Folger. Colle&or at Nantucket, (supra, 430,) for voting in the House of Reprefentatives for the refolves in favor of American manufa&ures. Bofton Writs of Affiftance. 451 Bofton Gazette of February 29, March 14, & April II, 1768. Hutch- 1768. infon's Letter of December, 1769, 26 Mafs. Archives, 417. (23) Fijher was ColleEtor at Salem and Marblehead, having been Fifher Colappointed by the Commiffioners of Cuftoms in London on the Ioth le&or at Salem. of January, I765. Book of Commiffions 1764-1774, fol. 45. Bernard to Fifher, April 20, 1765, in which the Governor cautions Fi/her againft " employing in your fervice one T7oovey whom you find in the office: When you know his Story, as an honeft Man, you will abhor him; as a prudent Man you will have no Communication with him." 4 Bernard Papers, 41. For the reafon of the Governor's feeling,'vid. fupra, 424, note. Fijher had previoufly been a naval officer, as appears by an earlier letter to him, in which the Governor alfo fays: " I am fully fatisfied of the right of the Naval Officers to feize & profecute for all breaches of the laws of trade equally with the Cuftom houfe Officers. I have therefore propofed to the chief Juftice, this morning, to grant you a i:anding Writ of Affiftance as he does to the Cuftom houfe Officers who apply for the fame. As this writ has never been, as yet, granted to Naval officers, he has defired to confider of it & confult with his Brethren. They meet again in a fortnight's time & then I will move the Matter again; but will not take out the writ without you defire." Ib. 38. Fi.her was fufpended by the Commiffioners of Cuftoms at Bofton on the 3oth of September 1768; but reftored on the 4th of Auguft 1769, by dire6tion of the Commiffioners of Cuftoms in London. Salem Cuftom Houfe Record, 247, 251, 301. Bofton Gazette, November 7, 1768, & Auguft 28, I769. (24) Mafcarene had been appointed by the Commiffioners of Cuf- Mafcarene toms in England Comptroller at Salem and Marblehead on the i5th Comptroller of Auguft 1764. Book of Commiffions 1764-1774, fol. 40. For the at Salem. form of his inftru6tions'vid. fupra, 450. The writs to Fijher and Mafcarene were probably in the fame form Form of as thofe previously iffued; for on the 24th of March 1768 Governor Writ of AfBernard, in fending to Lieutenant Governor Franklin of New Jerfey fiftance unforms of Writs of Affiftance, which he hoped would "remove the changed. Difficulties your chief Juftice lies under," faid: " It is not improbable but that, as there is now a Commiffion of Cuftoms in America, the Form of the Writ may be alterd fo as to be made more conformable to that ufed in England. But no Steps have been taken towards this as yet." 5 Bernard Papers, 26i. Hutchinfon, in a letter dated May 26, 1768, manifeftly written with Hutchina view of fetting the Commiffioners in the moft favorable light, at the fon's repreexpenfe of the Province, but marked in his letter-book "not fent," fentations wrote: " The Commiffioners of the Cuftoms will represent the in 1768. breaches of the Aats of Trade notorious enough, & yet they are not able to prevent or punifhl them. Writs of Affiftance are iffued whenever they have been applied for, but the Civil Officers are not regarded. The laws have loft their force, & upon the rifing of a Mob I should have 452 Appendix I. 1768. have no dependance upon any civil or military officer to fupprefs it; _z~o the only chance would be from private perfons of fpirit, who being alarmed with the fear of having their property deftroyed might perhaps combine together & make refiftance; but this is very uncertain at any time, and when a mob is raifed meerly to refcue feized goods, fuch a combination is not to be expe&ed." 26 Mafs. Archives, 306, 307. Englifh views In the Bofton Gazette of September 5, I768, under date of London, of the lawful June 20, i768, it is reported that " more than one very eminent Lawyer of Aofiftance. have publickly declared that a certain method of proceeding appears to them equally as unconfititutional as general warrants." But on the 20oth of Auguft 1768 the Attorney General of England gave the following opinion, which is here reprinted from a copy remaining upon the files of March term 1769 of the Superior Court of Judicature of the Colony of Rhode Ifland. I'C A S E. Opinion of "6 7th GEO. 3d, l Y this At of Parliament, after reciting Attorney " Ch. 46.'That by an A& of Parliament made in Grey upon " the I4th CHA. 2d, intitled an At for preventing Frauds and reguWrits of "s lating Abufes in His Majefty's Cuftoms, and feveral other Ats now AfflRance. "in Force, it is lawful for any Officer of His Majefly's Cuitoms, au"thorized by Writ of Affiftants under the Seal of His MajefIy's Court "of Exchequer, to take a Conftable, Headborough, or any other pub"lic Officer inhabiting near unto the Place, and in the Day Time, to "enter and go into any Houfe, Shop, Cellar, Warehoufe or Room, or "other Place, and in Cafe of Refiftance to break open Doors, Chefts, "Trunks and other Package, there to feize, and from thence to bring "any kinds of Goods or Merchandize whatfoever, prohibited or uncuf"tomed; and to put and fecure the fame in His Majefty's Storehoufe, "next to the Place where the Seizure shall be made. And further re-'" citing, That by an A& made in the 7th and 8th of WILLIAM the 3d, I' intitled an Adt for preventing Frauds and regulating Abufes in the "Plantation Trade, it was amongft other Things ena&ed, That the "Officers for colle&ing and managing His Majefty's Revenue, and in" fpe&ing the Plantation Trade in America, fhould have the fame Pow" ers and Authorities to enter Houfes or Warehoufes, to fearch for and " feize Goods prohibited to be imported or exported into, or out of, any "of the faid Plantations, or for which any Duties were payable, or "ought to have been paid, and that the like Afliftance ihould be given "to the faid Officers in the Execution of their Office, as by the faid re"cited A& of the 14th CHA. 2d, is provided for the Officers in England, " but no Authority being expreffly given by the faid A& of 7th and 8th " Of WILLIAM 3d, to any particular Court to grant fuch Writs of Affift"ants for the Officers of the Cuftoms in the faid Plantations, it was " doubted Writs of Affifiance. 453 "doubted whether fuch Officers could legally enter Houfes and other 1768. "Places on Land to fearch for and feize Goods in the Manner direded "by the faid Atds; to obviate which Doubts for the future, and in order "to carry the intention of the faid Adts into effedtual Execution. " It is enacted,' That after the 20oth of November, 1767, fuch Writs "'of Affiffants to authorize and empower the Officers of His Majef"'ty's Cuftoms to enter and go into any Houfe, Warehoufe, Shop, "' Cellar or other Place, in the Britijh Colonies or Plantations in "' America, to fearch for and feize prohibited or uncuftomed Goods in "'the Manner diredted by the faid recited Ats, fhall and may be "'granted by the Superior or Supreme Court of Juflice having Jurif"'didtion within fuch Colony or Plantation refpetively.' " IN PURSUANCE of this Adt of Parliament, the Officers of the "Cuftoms in America, have applied to the Judges of the Superior "Courts of Judicature in the refpeEtive Provinces, for Writs of Affift" ants, but moff of them have refuted to grant fuch Writs, Seemingly "for this Reafon, that no informations had been made to them of any "fpecial Occafion for fuch Writ, and that it will be unconftitutional to "lodge fuch Writ in the Hands of the Officer, as it will give him a "discretionary Power to adt under it in fuch Manner as he fhall think "neceffary. " But it muff be obferved, that if fuch a General Writ of Affiffants " is not granted to the Officer, the true Intent of the AEt may in almoft "every Cafe be evaded, for if he is obliged, every Time he knows, or "has received information of prohibited or uncuflomed Goods being "concealed, to apply to the Supreme Court of Judicature for a Writ of "Affiftants, fuch concealed Goods may be conveyed away before the " Writ can be obtained. Inquiry has been made into the Manner of "granting Writs of Affifants in England, and it appears that fuch "Writs are iffued out of the Court of Exchequer whenever the Com"miflioners of the Cuftoms apply for them. Every Officer of the Cuf"toms here, is armed with fuch a Writ, and whenever a new Officer is " appointed, the Commiffioners diret their Sollicitor to procure a Writ "of Affif(tants, which is iffued as a matter of Courfe by the Clerks of' the Exchequer without any Application to the Court. This Writ is " diredted to all Officers and Miniffers who have any Office, Power or "Authority from or under the JurifdiAion of the Lord High Admiral "of England, to all and every Vice Admirals, Juflices of the Peace, "Mayors, Sheriffs, Constables, Bailiffs, Headboroughs, and all other "the King's Officers, Minifters and Subjeds, commanding them to be "aiding, affifting and helping the Commiffioners of the Cuftoms and "their Deputies, Minifters, Servants, and other Officers in the Execu"tion of their Duty. " Q.ueft. Whether the Superior Courts of uftuice in the Britifh Col"onies or Plantations in America, ought not upon Application, to i/ue "Writs of fiitants in the fame Manner as is practfed in the Court of " Exchequer 454 Appendix I. 1768. " Exchequer in England, and'what fteps /hould be taken by Go~vern_ _ S/ " ment in Order to Enforce the Ifuing of thefe Writs for the Protection " of the Oficers of the Cuftoms abroad? "There can be no doubt, but that the Superior Courts of Jullice in " America are bound by the 7th GEO. 3d. to iffue fuch Writs of Affifl"ants, as the Court of Exchequer in England iffues in fimilar Cafes, "to the Officers of the Cuftoms. " As this Procefs was probably new to many of the Judges there, and "they feem to have had no Opportunity of informing themselves about "it, it is perhaps in fome meafure excufable, that they wished to have "time to confider of it, and to inquire into the Pradtice of the Court of "Exchequer and of other Colonies; and I think it can only be becaufe "the Subje&t was entirely mifunderitood, and the Pratice in England "unknown, that the Chief Juflice of!Pennsylvania, who is generally "well fpoken of, could imagine, that' He was not Warranted by Law' " to iffue a Writ commanded by the Legiflature; which Writ was "founded upon the Common Law, enforced by Aats of Parliament "and in daily ufe in England, and which from the general import of the " 7th WILL. 3d. ought to have been fet on foot from that time in Amer"ica, and which Statute the late AA only meant to Explain. And it "appears accordingly that in Bofiton where a very able Judge prefides "and fome Experience had been had upon the SubjeEt, no Difficulty was "made in granting it. " I think therefore it is advifable that the Form of the Writ iffued by "the Court of Exchequer in England, fhould be fent over to the feveral "Colonies in America, together with the Manner of applying for it "and of granting it, by which they will fee, that the Power of the Cuf"tom Houfe Officers is given by A& of Parliament and not by this "W rit, which does nothing more than facilitate the Execution of his "Power by making the Difobedience of the Writ a Contempt of the "Court; The Writ only requiring all Subje&s to permitthe exercife "of it and to Aid it. The Writ is a Notification of the Chara~ter of "the Bearer to the Conftable and others to whom he applies, and a " Security to the Subje&t againft others who might pretend to fuch Au"thority. No Body has it but a Cullom Houfe Officer armed with "fuch a Writ. The Writ is not granted upon a previous Information, "nor to any particular Perfon, nor on a fpecial Occafion. The incon"venience of that was experienced upon the A& of 2zth CHA. 2d, "C. I9. and the prefent Method of proceeding adopted in lieu of what "that Statute had prefcribed. " Wm DeGrey. "20th Augufl, 1768." - On the evening of Auguft 31, 1768, during a vifit of John Robinson to Newport, notice having been publicly pofted that he had " boafted among his brother Commiffioners that he could be well Supported in the Execution Writs of Affifance. 4S5 cution of his Office at Rhode-ljland, and be fully prote&ed from the 1768. leaft infult," a great mob collected about the tavern. "But after a very diligent Search, (not by Virtue of any Writ of Affiftance, but by Parody of Candle Light,) of the Houfe, Out-Houfes, Bales, Barrels, Meal Tubs, Writ of Trunks, Boxes, Packs and Packages, packed and unpacked, and in Affiftance. fhort of every Hole and Corner fufficient to conceal a Ram Cat, or a Commiffioner, they could find neither." Bofton Gazette of September 5, 1768. On the 20th of December 1768 the Commiffloners of the Cuftoms Change in in Bofton wrote to Chief Juftice Hutchinjon: " Having directed our form of Writ Sollicitor to prepare a form of a Writ of Affiffants, copies of which are of Affiflance. intended to be fent to the different ports in America, to be applied for in the refpe&ive Courts by our Officers, as occafions may require, We herewith enclofe the fame, and a copy of the Opinion of the Attorney General in England for your Honor's perufal, and fliould be glad to receive your opinion, whether the Form is fuch as you would choofe to iffue to our feveral Officers within the Province of Maffachufets Bay." The letter is figned by Burch, Hulton, and r7emple. 44 Mafs. Archives, 670. That the changes propofed were merely formal is evident from the Hutchinfollowing reply of Hutcbinfon: " I have received from your Board the fon's comCopy of a Writ of Affiftants framed by your Sollicitor upon which you ments defire my opinion. I have compared it with the Writ iflued from His thereon. Majefty's Court of Exchequer in England, and I do not find that the two Writs vary from each other any farther than the different circumfiances of Place make neceffary, only I obferve in the direEtion you have omitted the word Mayors. We have no Mayors in this Province at prefent, no more have we Headboroughs. I think the Writ fhould either be reftrained to fuch Officers only as are exifling in the Colony where it iffues, or elfe take in all that are named in the Writ which iffues at home. If itefhould be the latter that part which expreffes fucb Officers as have at that time no exiftence would be confidered as furplufage. I am for keeping to the very words of the Exchequer Writ as far as different circumstances of place will admit. I fhould be willing immediately to iffue Writs in the form propofed only I think it convenient my brethren fihould be firfi confulted. Our next Term will begin the 2d Tuefday in March. I imagine no inconvenience can arife by deferring the matter until that time, your Officers being already furnifhed with Writs as agreeable to the form propofed as the Circumftances of the Colonies before your Board was conftituted would admit, but if you think otherwise I will confult my brethren as foon as may be." 44 Mafs. Archives, 67 I. (25) Edward Winflow was Deputy Colle6tor at Plymouth, appointed Winflow by the Surveyor General on the 27th of March, 1765, and reappointed ColleEtor at by the Commiffioners of Cuftoms in 1768; and was alfo clerk of the Plymouth. courts and regifter of probate in Plymouth County. Book of Commiffions 456 Appendix I. 1768. millions 1764-1774, fol. 44. Bofton Evening Poft of June 6, 1768. _L~J Mein & Fleeming's Regifter for I769, 58, 6o. Sloop Lib- (26) The Sloop Liberty, Barnard Mafter, originally belonged to yohn erty feized at Hancock, and was feized at Bofton by the Commiffioners of the Cuftoms near funfet on the ioth of June, 1768, for landing Madeira Wines without paying the duties; and, at Comptroller Hallowvell's fuggeftion, was taken out from the wharf by armed boats from the Romney Man of War, and anchored under her guns; which occafioned a riot. For thofe proceedings, and the difcuffions about them, fee Letters of Bernard, Gage & Hood, (Bofton, 1769) 20-28, 85-io8; " A third extraordinary Budget" of Letters, &c. between Governor Bernard and the Miniftry, 2-8; 6 Bernard Papers, 311-326; Bernard to Hillfborough, December 12, 1768, 7 Ib. 115; Letters of Hutchinfon, &c. (Bofton, 1773) 3-9; John Powell to Colledtor Harrison, and Harrison to Powell, June 13, I768, 3 Chalmers MS. New England Papers, 2, in the poffeffion of Mr. Jared Sparks; W. Molineux to Harrison, June IS, 1768, lb. I; Affidavit of Richard Silvefter, lb. 12, 13; Jofhua Henshaw to William Henshaw, June IS, I768, a copy of which is in Mafs. Hift. Soc. Lib.; Proceedings in Council, 50 Mafs. Archives, 287-300, Copies of Council Rec. 1765-1774, fol. 333-342, & Bradford's State Papers, 156-i58; Bofton Gazette, June 20, Auguft 8, & October Io, 1768; Vindication of Town of Bofton, 9-15; Franklin's True State of Proceedings in Maffachusetts Bay, Almon's Prior Documents, 262, 263; I Gordon's Hift. U. S. 230-237; 3 Hutchinfon's Hift. Mafs. i88193, 488-49I; 6 Bancroft's Hift. U. S. I55-I62, 174; Richard Frothingham in 9 Atlantic Monthly, 708. The popular objeaion, that this feizure near funfet was unprecedented and unlawful, was founded, Hutchinfon fays, on a mifapprehenfion that the diredtion in a Writ of Affiftance, to enter houfes " in the day time only," applied to all feizures of veffels or goods. 3 Hutchinfon's Ilift. Mafs. i90, note. Adjudged The Commiffioners, in feizing the Liberty, adted upon the written forfeit by opinion of their Solicitor, David Lijle. Colledtor Harrison to John Court of Powell, June 13, 1768, 3 Chalmers New England Papers, 2. The Admiralty - floop was libelled in the Court of Vice Admiralty, and " adjudged forfeit for breach of the Adts of Trade," and an order of fale paffed on the 3xft of Auguft, and publilhed on the Sth of September, under which she was fold by audtion on the 6th of September, and was bought by the ColleEtor of the Port of Bofton, to be ufed as a cruiser for the protection of trade. Bofton Evening Poft of September 5 & 12, 1768. See Used as a also " Journal of the Times" of November 3, 1768, in Bofton Eve"guarda- ning Poft of January 9, 1769. In the fpring of 1769 she cruised as a cofta " — "guarda-cofta " on the shores of Conneticut and Rhode Ifland, and feized feveral veffels. Bofton Gazette of January 9, May I & I5, and Evening Poft of May 15, & June 19, 1769. Deftroyed On the I9th of July 1769 a mob at Newport, provoked by her feizat Newport. ures of veffels on unfounded fuspicions, and by the insolence of her crew, Writs of Affiflance. 457 crew, fcuttled and burned her. Affidavit of Captain Reid, 2 Trumbull 1768. Papers, 2i9, in Mafs. Hift. Soc. Lib. Letters of Commiffioners of _ Cuftoms in Boston, and of Colle&or and Comptroller of New London, to Governor of Connecticut, lb. 221, 223. Proclamations of Governor of Rhode Ifland and of Commiffioners of Cuftoms, and extra&s from Rhode Ifland Newspapers, 6 Rhode Ifland Col. Rec. 593596. Boston Gazette and Evening Post of July 24 & August 7, 1769. "Journal of the Times" in Boston Evening Post of December ii, I769. Boston Gazette of December i8, I769, and March 5, I770. I Cavendish Debates, 495, 496. 2 Arnold's Hift. R. 1. 297. The Rhode Ifland hiftorians, in the books juft cited, confider this the firft overt a&t of refiftance to the authority of Parliament. But in 1765 the execution of the Stamp A& had been rendered impoffible by compelling the refignation of all the stamp diftributors throughout the Continent. Supra, 442, 443. And if a fingle a& of violence is to be deemed of fuch importance, a veffel had been refcued from the custom houfe officers in Newport in 1764. Supra, 436. The identity of John Hancock's Sloop Liberty with the revenue veffel Miftaken destroyed at Newport feems to have escaped the notice of historians. fiory that fhe But the evidence of her forfeiture, fale, fubfequent ufe, and destruction, is perfectly conclusive, notwithstanding the vague statements of fome writers that Hancock's floop was restored after a long detention. See Almon's Prior Documents, 263, note; I Gordon's Hist. U. S. 240. The miftake probably arose from confounding the proceeding against the vessel with the information against her owner. IJt would seem that no defence to the libel in rem was attempted; for John Adams's " Admiralty Book" contains no note of it; although it does contain a full report of the proceeding in perjonam, which is fo like the account in the "Journal of the Times" in the Boston Evening Post of 1769 as to raife a fufpicion that fo much at least of that journal is by the fame hand. This cafe affords fuch curious examples of the Admiralty proceedings and of the conftitutional arguments of that period, as to excufe the insertion here of a full report. Adams's notes begin with the information and order for process, as follows: "Jonathan Sewal vs. John Hancock. ADVOCATE GENERAL "Prov. &c. Before the Honl. Robert Auchmuty Efqr rv. HANCOCK. g BE it remembered, that on the 29 day of O&ober in the Ninth Information. 1" Year of the Reign of his Majefty George the Third, Jona-'than Sewall Efqr Advocate General for the faid Lord the King, in his "proper Perfon comes and as well on behalf of the faid Lord the King, "as of the Governor of this Province, gives the faid Court to underftand 5 8 1"and 458 Appendix I. 1768. "c and be informed, that on the ninth day of May laft, a certain Sloop _ v' "called the Liberty, arrived at the Port of Bofton in said Province, from ADVOCATE "C the Iflands of Madeira, having on Board, one hundred and twenty feven GENERAL CC Pipes of Wine of the Growth of the Madeira's; of which faid Sloop, HANCOCK. "one Nathaniel Barnard was then Mafter, and that in the Night Time "of the fame day the faid Nathaniel Barnard with Intent to defraud the "faid Lord the King of his lawfull Cuftoms, did unlawfully and clan"deftinely unship and land on Shore in Bofton aforefaid one hundred of "the aforefaid Pipes of Wine of the Value of Thirty Pounds Sterling "Money of Great Britain, each Pipe, the Duties thereon not having "been firft paid, or fecured to be paid, agreeable to Law. And that "John Hancock of Bofton aforefaid Efqr was then and there'willfully "and unlawfully aiding and ajafting in unJhiping & landing the "fame one hundred Pipes of Wine, he the faid John Hancock, at the "fame time'well knozwving, that the Duties thereon'were not paid or "fecured and that the unshipping and landing the fame, as aforefaid, "was with Intent to defraud the faid Lord the King as aforefaid, and "contrary to Law; againft the Peace of the faid Lord the King and "the Form of the Statute in fuch Cafe made and provided, whereby "and by Force of the fame Statute, the faid John has forfeited Treble "the Value of the faid Goods, fo unshipped and landed as aforefaid, "amounting in the whole to the Sum of Nine Thoufand Pounds Ster"ling Money of Great Britain, to be divided, paid and applied in man-' ner following, that is to fay, after dedu&ing the Charges of Profe"cution, one Third Part thereof to be paid into the Hands of the " Colle&tor of his Majefty's Cuftoms for the faid Port of Bofton, for the "Ufe of his Majefty, his Heirs and Successors, one Third Part to the "Governor of faid Province, and the other Third Part to him that in"forms for the fame. " Whereupon as this is a matter properly within the Jurifdition of "this Hon! Court, the faid Advocate General prays the Advifement of "the faid Court in the Premifes, and that the faid John Hancock may "be attached and held to anfwer to this Information, and may by a "Decree of this honourable Court be adjudged to pay the aforefaid fum "of Nine Thoufand Pounds to be applied to the Ufes aforefaid. " JON SEWALL Adv? for the King." Warrant " O&. 29, 1768. Filed and allowed and ordered that the Regifter iffued. "of this Court or his Deputy iffue out a Warrant for the Marshall of "this Court or his Deputy to arreft the Body of the faid John Hancock "and him keep in fafe Cuftody fo that he have him at a Court of Vice "Admiralty to be holden at Bofton on the feventh day of November "next at Nine of Clock before noon and that he take Bail for Three "Thoufand Pounds Sterling Money of Great Britain. "ROBERT AUCHMUTY Judge &c." Hancock Writs of Aflifiance. 459 Hancock was arrefted on the night of November 2d, and gave the re- 1768. quired bail. " Journal of the Times " of November 3, 1768, in Boflon _ Evening Port of January 9, 1769. The Court adjourned from time to ADVOCATE time until January 2d, when " a number of witnefles were examined by GENERAL the court in a moft extraordinary and curious manner; Mr. Hancock's HANCOCK. neareft relations, and even his tradesmen, were fummoned as evidences; " and the Court afterwards fat repeatedly and examined other witneffes. Further " Journal of the Times" of December 5 & 14, 1768, January 2, 5, 7, proceedings. 23, 28, 30, February ii, I8, 21, 1769, in Botlon Evening Pofl of January 30, February 6, 20, 27, March I3, 20, 27, April Io, 17, 1769. Obfervations published by the Merchants of Bolfon in I769, 19, note. Argument The grounds of defence, as ftated in the notes of John Adams, were as of John Adfollows: ams. ifl. That even if Captain Marjhall had landed the wines before the I. Defendduties were paid, (of which there was evidence,) Mr. Hancock, if he ant did not " neither confented to this Frolick, nor knew of it," could not be held affift. to be "' affifting or otherwife concerned in the unfhipping or landing inwards," within St. 4 G. 3, c. IS, ~ 87, which Adams compared with St. 8 Anne, c. 7, ~ I7. 2d. That the St. of 4 G. 3 was to be conftrued with the utmoft 2. St. 4 G. ftrictnefs; becaufe it was " the moft pcenal of almoft any Law in the 3 to be conwhole Britifh PandeEt," forfeiting the whole flip and cargo for with- 11rued frinholding a fmall amount of duties. " But among the Groupe of Hardships which attend this Statute, the fir{l that ought always to be mentioned, and that ought never to be forgotten is " That it was made without our Confent. My Clyent Mr Han- Becaufe cock never confented to it. He never voted for it himfelf, and he never " made withvoted for any Man to make fuch a Law for him. In this RefpeEt out our contherefore the greateft Confolation of an Englishman, fuffering under lent. any Law, is torn from him, I mean the Refledion, that it is a Law of his own Making, a Law that he fees the Neceffity of for the Public. Indeed the Confent of the fubjeA to all Laws, is fo clearly neceffary that no Man has yet been found hardy enough to deny it. The Patrons of there Ads allow that Confent is neceffary, they only contend for a Confent by Conftrucdion, by Interpretation, a virtual Confent. But this is only deluding Men with Shadows inftead of Subftances. Conftrudtion, has made Treafon where the law has made none. Conftructions, in short and arbitrary Diftindtions, made in short only, for fo many by Words, fo many Cries to deceive a Mob have always been the Inftruments of arbitrary Power, the means of lulling and enfnaring Men into their own Servitude, for whenever we leave Principles and clear pofitive Laws, and wander after Conftrudtions, one Conftrudtion or Confequence is piled up upon another untill we get at an immenfe diftance from Fadt and Truth and Nature, loft in the wild Regions of Imagination and Poffibility, where arbitrary Power fitts upon her brazen Throne 460 Appendix I. 1769. Throne and governs with an iron Scepter. It is an Hardflip therefore, fcarcely to be endured that fuch a penal Statute, fhould be made to govADVOCATE ern a Man and his Property, without his atual Confent and only upon GENERAL fuch a wild Chimera as a virtual and confirudtive Confent. HANCOCK. "1 But there are greater Proofs of the Severity of this Statute, yet behind. The Legiflative Authority by which it was made is not only Becaufe no grievous, but the Executive Courts by which it is to be carried into trial by jury. EffeEt, is another. In the 4I.t ~ of this Act 4 G. 3, c. ir, we find that all the forfeitures and Penalties inflited by this or any other At of Parliament, relating to the Trade and Revenues of the faid British Colonies or Plantations in America, which fhall be incurred there, fllall and may be prosecuted, fued for, and recovered, in any Court of Record, or in any Court of Admiralty," &c. "Thus, there extraordinary Penalties and Forfeitures are to be heard and try'd,- how? Not by a Jury, not by the Law of the Land, but by the civil Law and a Single Judge. Unlike the ancient Barons who una Voce responderunt, Nolumus Leges Anglia mutari - The Barons of modern Times, have anfwered, that they are willing, that the Laws of England should be changed, at leaft with Regard to all America, in the molt tender Point, the moft fundamental Principle. And this Hardfhip is the more revere as we fee in the fame Page of the Statute and the very preceeding Section, ~ 40, That all Penalties and Forfeitures, herein before mentioned, which shall be incurred in Great Britain, shall be prosecuted, fued for and recovered in any of his Majefty's Courts of Record in Weftminfter or in the Court of Exchequer in Scotland refpedively. Here is the Contraft that flares us in the Face! The Parliament in one Claufe guarding the People of the Realm, and fecuring to them the benefit of a Tryal by the Law of the Land, and by the next Claufe, depriving all Americans of that Priviledge. What shall we fay to this Diftin&ion? Is there not in this Claufe, a Brand of Infamy, of Degradation, and Difgrace, fixed upon every American? Is he not degraded below the Rank of an Englishman? Is it not diretfly, a Repeal of Magna Charta, as far as America is concerned. It is not att all furprising that the Tryals of Forfeitures & Penalties are confined to the Courts of Record at Wefiminfter, in England - The Wonder only is that they are not confined to Courts of common Law here." He then refers to the attachment of Englishmen to c. 29 of Magna Charta; and to Lord Coke's commentary thereon in 2 Infi. Si, as "concluding with a Refietion, which if properly attended to might be fufficient even to make a Parliament tremble." This paragraph of the argument, fomewhat expanded, was inferted by Yohn Adams in the inftrudtions of the town of Bofton to their representatives in May I769, 3 John Adams's Works, 508, 509; and abridged in the "Journal of the Times" in the Bofton Evening Poft of July io, 1769. See alfo Letter of Houfe of Reprefentatives to Franklin, November 6, 1770, Maffachufetts Papers published by the Seventy-Six Society, 174. 3d. Adams Writs of Affiftance. 461 3d. Adams alfo faid: " We are here to be tryed by a Court of civil 1769. not of common Law, we are therefore to be tryed by the Rules of Evidence that we find in the civil Law, not by thofe that we find in the ADVOCATE common Law.-We are to be tryed, both FaEt and Law is to be tryed GENERAL by a fingle Judge, not by a Jury.-We therefore claim it as a Right HANCOCK. that Witnefies not Prefumptions nor Circumfiances are to be the Evidence." And he argued that by the rules of the civil law, in order to 3. Infufficonvit a perfon of any crime, there mufft be two witneffes, free from all ciency of the exception; that " if there were two or ten fuch Witneffes as Mezle, tefRimony. they would not amount to Proof fufficient for condemnation; " that the refpondents had "a right to examine the Witneffes whole paft life, and his CharaAer at large;" and to prove by other witneffes that (as it is ftated in the " Journal of the Times ") " he was afugative from his native country to a'void the punijhment due to a very heinous crime; " for which he cited the following authorities: " New Init. Civil Law, 315, 316. Dig. Lib. 22, Tit. 5, ~~ 3, I2. Codicis, Lib. 4, Tit. i9, ~ 25; Tit. 20, s. 9, ~ I, & note 32. Deut. i9, x5. Calv. Lex Teftis. Fortefcue de Laudibus Legum, c. 2I, p. 38. Wood Inft. 3o0. Domat, V. I, p. I3, Preliminary Book, Tit. i, ~ 2, IV. IS." " On the contrary," Adams argued, " if we are to be governed by the Rules of the common Law we ought to adopt it as a whole and fummon a Jury and be tryed by Magna Charta - Every Examination of Witneffes ought to be in open Court, in Prefence of the Parties, Face to Face - and there ought to be regular Adjournments from one Time to another. What other Hypothefis shall we affume? Shall we fay that we are to be governed by fome Rules of the common Law and fome Rules of the civil Law, that the Judge at his Difcretion shall choofe out of each Syftem fuch Rules as pleafe him, and difcard the reft, if fo, Mifera Jerwvitus est. Examinations of Witneffes upon Interrogatories, are only by the Civil Law. Interrogatories are unknown at common Law, and Englishmen & common Lawyers have an averfion to them if not an abhorrence of them. Shall we fuffer under the odious Rules of the civil Law, and receive no advantage from the beneficial Rules of it? This, inflead of favouring the Accufed, would be favouring the Accufer, which is againft the Maxims of both Laws." This point, which is alfo reported in the "' Journal of the Times," was argued on the 24th of February, and decided on the Ift of March. Bofton Evening Poft of April x7 & 24, 1769. It is followed in Adams's MS. by this " Interlocutory Decree," entitled " Advocate General uvs. John Hancock Efq." " The Subfiance of the Point before the Court, is, whether a Witnefs Interlocu"shall be examined to charge another Witnefs in the Caufe with a tory decree. "particular infamous Crime. " It is urged by the Advocates offering the firlt mentioned Witnefs, "firit, that this is a civil Law Court, and Secondly, by that Law fuch "Evidence is admiffible. To the laft Point feveral authorities were "cited, but the principal one from the Digeft 22. 3. 2. 3.;" To 462 Appendix I. 1769. " To which it was anfwered by the Advocates on the other Side that " this is not a civil Law Court in fuch Cafes as the prefent. And that ADVOCATE "the Authorities produced were not to be underftood in the Senfe conGENERAL " tended for by the Refpondent's Advocates. In Support of the lafi, HANCOCK. "the Notes under the aforefaid 3 Law in the Digeft were read and re"lyed on. It was alfo urged, that admitting the civil Law to be as "contended for, the Argument would prove too much, becaufe it would "exclude relations in certain Degrees, intimate Friends, Perfons under "the age of Fourteen &c. from tefftifying. " I take the Senfe of the Authority firif mentioned, to be no more " than a general defcription of what are good objeEtions againft perfons "being admitted to their Oaths as Witneffes without defcribing the "mode whereby fuch difqualifications are to be afcertained. If faid Au"thority is not fo conftrued, it certainly clashes with the notes, which "clearly relate not to the Admiffion of Witnefs, but the Credit or Rep"utation of their Evidence. The reafon why proof by record ought to "be exhibited againff a Witnefs, when charged with a Crime, appears "clear from the Queftion put in the Note, under D. 22, Tit. 3. -Qis " enim si fuzficiat accufalae, innocensfiet? Such a reading reconciles the "Text and comment in the Dig: to each other, and the former to "Reafon. I am therefore of Opinion the motion is not well fupported, "even by the Rules of the civil Law. In addition to which, when I "confider the procefs now in queftion, is founded on an A& of parlia"ment, originally intended to be guided by the Rules of the common "Law, that the Pradtice of the Court has ever been to hear and deter" mine fimilar cafes, according to thofe rules, the manifeft and great "inconveniences which mult accrue, by the admiffion of fuch evidence, " 1 am clearly of Opinion, the Queftion put is improper, and therefore " Decree the fame to be withdrawn. 1" ROBT AUCHMUTY Judge &c." Adams's Upon this decree, Adams makes the following obfervations, with comments which his report ends: thereon. 1" I. The Advocates for the Crown, did not argue that our Argument would exclude Relations, Friends, Perfons under I4, &c - But the Advocates for the Refpondent, infifted that all thofe Rules of the civil Law ought to be adopted, becaufe they were beneficial to the Subjed the Refpondent.-We had no difficulty at all in admitting the Confequence as far as it is here mentioned. So far from it that we delired it, becaufe Mr Hancock's Relations, Friends, and many Perfons under Age have been examined in this Cafe.-It is true M' Fitch did argue that our Principle would juflify the IntroduAion of Torture, and this he thought was proving too much, and this was well obferved by Mr Fitch and was the beft argument I have heard in the Cafe. " 2. The Judge has totally miutaken the' Senfe' of the Authority, for inftead of being a Defcription of Objedtions againft Perfons being admitted Writs of Affifiance. 463 admitted to their Oaths it is wholly confined to thofe who are already 1769. Sworn.-It is Teftium Fides examinanda eft, not Perfonarum Fides, and as a Witnefs in Englifh implies the Competency of the Perfon, fo 7reftis in Latin implies the Same and a Perfon cannot be Teftis, untill he is admitted, to tell what he knows, i. e. to give Evidence." This fuit was dropped on the 26th of March. " Journal of the End of this Times," in Bofton Evening Poft of May 22, I769. See alfo Ob- fuit. fervations published by the Merchants of Bofton in 1769, I9, note; Almon's Prior Documents, 263, note. The ftatement in Adams's autobiography (2 John Adams's Works, 216) that "this odious caufe was fufpended at laft only by the battle of Lexington " is manifeftly an exaggeration. It is not the only inftance of a miftake of date in his autobiography. Vid. ante, 409. About the fame time the grand jury found an indi&ment for perjury Mezle inat the trial of this cafe againft " one Jofeph Muzzele " or "Mayfel," diEted for (evidently the fame as Mezle, fupra, 46 I,) which could not be immediately perjury. tried, "as this fellow, to whom a poft has been given by the recommendation of the com-ffi-ners, on board the Sloop Liberty, late Mr. Hancock's, now a Guarda-Cofta, is upon a cruife in faid Sloop." *' Journal of the Times " of March 26 & 27, & April 22, in Bofton Evening Poft of May 22 & June 19, 1769. As this indi6tment does not appear on the records of the court, it was probably withdrawn by the Crown officers. Governor Bernard's fubfequent representations and conduEt afford a Governor fair example of his policy. Much feeling having been excited by the Bernard's manner of feizing the Liberty, (fupra, 456,) the Governor had the next mifreprefenveffel feized left in a place convenient for the refcue of the cargo; and, tations. when it was refcued according to his expedation, and reftored the next day, pretended that the reftoration was only made " upon pain of the difpleafure of the town." Letters of Bernard, Gage & Hood, 38-4I. Vindication of Bofton, 22. He wrote to Lord HillJfborough that " every feizure made or attempted to be made on Land in Bofton, for three Years paft, before there two Inftances, has been violently refcued or prevented;" and immediately afterwards, in his " Obfervations upon the Anfwer of the Council," faid, " That there has been no refcue lately is very True; & the reafon is that there has been no Seizure;" and was obliged to fall back upon Malcolm's cafe of two years before, supra, 447. Letters of Bernard, Gage & Hood, 39. I2 Bernard Papers, 293. Contraft with Governor Bernard's Statements the Refolves of the Houfe of Reprefentatives of June 29, 1769, Bradford's State Papers,'79; 6 Bancroft's Hift. U. S. 272; Richard Frothingham in 9 Atlantic Monthly, 708. The friends of America in the Houfe of Commons faw and expreffed the truth. Colonel Barre faid: "May not a little mob have been called a tumult, and a little infurretion a rebellion? In being riotous, the Colonies have mimicked the mother country." I Cavendish Debates, 44. And Governor Pownall faid: " Rebellion 464 Appendix I. 1769. " Rebellion is not in their hearts; independence is not in their heads." ___> Ib. 220. &'vid. Ib. 205, 393. Compare this faying of Governor Pozvnall with Hutchinfon's refle&ions in 1766 on Powanall's hints of the poffibility of a thought of independence, (fupra, 444,) and Camden's prophecy to Franklin eight years earlier. Q.incy's Life of.Quincy, 270. Rejoicings of It would be hard to find more bitternefs of party fpirit than is shown crown officers in a letter of December 3, 1769, from Andrevw Oliver, the Secretary of over infanity the Province, to Governor Bernard in London, written three months of Otis and after Commiffioner Robinfon's affault upon James Otis, and narrating deaths of Malcolm and as " curious anecdotes concerning M. Otis," the following: " Doct others. Gardner has not fcrupled declaring to one and another, that upon his applying to him to argue a caufe, he told him he could not do it, for his Lungs were gone, nor could he fufficiently collet himfelf, for he had ruined his Country; but that he had a6ted with a good intention, & fitretching forth his hand, curfed the day on which he was born. To another perfon from whom I had it he faid, He wondered what our parfons meant by thanking God for their exiftence; for his part he never did nor never would, or never could. He is become the Sport of the young Genten of the Bar, and he was greatly mortified on looking over the Entries this prefent term of the Supr Court, to find he had but 4 when the youngeft -9,incy had 9 & John Adams had 60. It is remarkable that there have been three untimely deaths among thofe concerned in running the Sloop Libertys Cargo, viz Capn Mar/hall the next day, Capn Barnard afterwards drownd at Sea, & Capn Malcolm fince, who I hear faid he catchd his death at that time. Should this other Perfon's Fate prove as is expected, we might be juftified in looking to the hand of Providence in the difpofal of thefe Events." 12 Bernard Papers, I63, I64. In a letter of O&ober 30, I769, another of the fame party (fuppofed by Chalmers to have been Auchmuty) expreffed fimilar Sentiments: " Otis by a kind providence of heaven is generally fuppofed to be delirious. It is beyond doubt he has given signal proofs of it in his late conduEt." 3 Chalmers New England Papers, 48. Daniel Daniel Malcolm was one of the moft active merchants on the popular Malcolm. fide, and was proportionably hated and abufed by the Crown officers. Supra, 413, 447-449. Letters of Bernard, Gage & Hood, I8, 5o. Hutchinfon in 25 Mafs. Archives, 262. Hillfborough to Bernard, July II, 1768, II Bernard Papers, 222. Bernard's Obfervations on the Anfwer of the Council, I2 Bernard Papers, 293, 294. Ante, 313. I Gordon's Hift. U. S. 2i9, 232, 234. 6 Bancroft's Hift. U. S. I39. His epitaph thus expreffes his character: " A true Son of Liberty, A Friend to the Publick, An Enemy to Oppreffion, And one of the foremoft in Oppofing the Revenue Adts on America." Bofton Evening Poft, November 20, 1769. " At the Superiour Court held at Charleftown, application was made by the Cuftom-Houfe Officers for a full fupply of Writs of Affiftance, which Writs of Affiftance. 465 which were accordingly granted." "Journal of the Times," under 1769. date of April 28, 1769, in Bofton Evening Poft of June 26, i769. _ April term i769 of the Superior Court of Judicature in Middlefex New Writs lafted from the irth to the i4th of April. Rec. 1769, fol. 4i-56. It of Affiftance iffued. may be conje&ured that thefe writs were in the amended form. Supra, 455. But Writs of Affiftance had now become fo much a matter of courfe, that no notice appears on the record, dockets, or files of court, of this iffue, except to Colle&or lWinjlow and Captain Reid, (fupra, 434,) who may have been the only perfons to whom they were now firft granted. On the 20oth of April 1769 the Commiffioners of the Cuftoms wrote from Bofton to the Officers of the Cuftoms of other ports in the Province, laying: "Gentlemen, Writs of Affiftants having been iffued by the Superior Court of this Province for the Officers of your Port, we direA you forthwith to apply for them to the Clerk of that Court, fo that you may be furnished with the fame, to be ufed as occafion may require." This letter was figned by the whole board. Salem Cuftom Houfe Record, 279. Hutchinfon's opinion of the part to be taken by the sheriff in the ex- 1770ecution of a Writ of Affiftance, is shown in his anfwer, dated February II, 1770, to an inquiry of William 7y3ng, Sheriff of Cumberland County, Hutchinfon's in which he fays: " It always appeared to me to be the more immediate opinion on businefs of the Officers of the Cuftoms to enter ships &c. and alfo to break iff in execuopen Cellars, Warehoufes & other places, to fearch for contraband & un. ting Writs cuftomed goods, but they are required in certain cafes to have a Writ of Affiftance. of Assiftants, which is direAed to all Officers and all His Majefty's fubjeds in general, who are requefted to permit the Officers of the Cuftoms to do their duty & to be aiding & assisting. I think every perfon may be juftified who shall prevent the Officers of the Cuftoms from being impeded in the difcharge of their duty, & that it is the efpecial businefs of the Civil Officers to whom the writ is dire6ed to fee that the Officers of the Cuftoms are proteEted & aided & assifted whenever they shall be obftruted in the difcharge of their duty, but in the particular cafe that you refer to I do not fee that you was obliged to furnish hands to unrigg the Veffel, but it is to be fuppofed there are inferior Officers or Servants of the Cuftoms to be employed in fuch Services. Had there been an attempt to refcue I think you would have done well in requiring aid to prevent &c. Notwithftanding the remarks you have feen in the newfpapers, this Writ of Assiftants, after a long argument, by the unanimous voice of the Judges of the Superior Court has been determined to be legal and conftitutional, & by a late A& of Parliament the Court is required to iffue it, & undoubtedly all who oppofe the due execution of it muft be considered as offenders." 26 Mafs. Archives, 439. See alfo Comptroller Savage to Hutchinfon, February 20, 1770, 25 lb. 355-360; 2 Willis's Hill. Portland, I32. The Commissioners of the Cuftoms, in a " general letter" of OEtober 2i, I771, inftruAed their officers: "You are alfo to acquaint us 59 whether 466 Appendix I. 1771. whether you have been furnished with Writs of Affiltants by the Supe_- nrior Court of this Province, agreeably to the form tranfmitted by our Inftruaions Solicitor, and if you have not, you are to affign the reafons why you by Commif- have not been able to obtain them." Salem Cuftom Houfe Record, sioners. 342. This letter was signed by Hulton, Burch, and Hallovwell, who was the fucceffor of John Temple. Temple's Temple had never had any fcruples about Writs of Afflftance. Suprevious con- pra, 4i6 & seq., 429, note, 437, 450, 464. But he did not agree with duA the Commiffioners in other meafures, and did not share their unpopularity. Bofton Gazette, February 6, I769. Letters of Bernard, Gage & Hood, I07. Bernard to Barrington, February 20, 1769, 7 Bernard Papers, 260. Hutchinfon in December, I769, 26 Mafs. Archives, 417. Proceedings of Town Meeting of Odtober 4, x769, 3 Chalmers's New England Papers, 37. I Gordon's Hift. U. S. 236. 3 Hutchinfon's Hift. Mafs. I93, 194. 6 Bancroft's Hift. U. S. 249. Adams and Hutchinson both tefltify to remple's intimacy with Otis. 7 John Adams's Works, 457. 3 Hutchinfon's Hift. Mafs. 293. It is therefore not improbable that Governor Bernard's diftruft of him was not wholly unfounded. Vid. supra, 423, 438; Bernard to Hillfborough, February 21, and to John Pownall, June 12, I769, 7 Bernard Papers, 141, 297. He was appointed and fubfe- in I77 I Surveyor General of the Cuftoms in England; was removed in quent hiftory. 1774 for his attachment to the American caufe; returned to America in 178 I; and, after the Revolutionary War, was appointed Conful General of Great Britain in the United States. Supra, 434, note 20. R. C. Winthrop's Addrefses, II2-115. John Adams to President of Congrefs, Auguft 16, 178I, 7 John Adams's Works, 457. Adams to Jay, April I3, x785, 8 Ib. 234. 1772. At a meeting of the inhabitants of Bofton in Faneuil Hall on the 2d _ ~ of November 1772, a committee of twenty-one was appointed " to ftate Committee the Rights of the Colonists, and of this Province in particular, as Men, as of Bofton on Chriftians, and as SubjeEts; to Communicate and Publish the fame to Rights of the feveral Towns in this Province, and to the World, as the Senfe of this Town, with the Infringements and Violations thereof that have been, or from Time to Time may be made," The three firft named on this Committee were James Otis, Samuel Adams, and yofeph Warren. JoJiah I-6incy was alfo a member. The report of this committee, which was accepted on the 2oth of November, is faid to have been written by Adams and Warren. Its formal prefentation was the laft public at of Otis. 6 Bancroft's Hift. U. S. 43I. One article in its " Lift of Infringements and Violations of Rights" is fo curioufly like Otis's argument upon the Writs of Affiftance in I76i, which had been the beginning of his public career, that with it this fketch of the hiftory of thofe Writs in Maffachufetts Bay, already too much extended, may fitly clofe. Their " Thefe Officers are by their Commissions invested with Powers altoReport. gether unconstitutional, and entirely destructive to that Security which we Writs of Affiflance. 467 we have a right to enjoy; and to the last degree dangerous, not only to 1772. our property, but to our lives: For the Commiffioners of his Majefty's Customs in America, or any three of them, are by their Commiffions impowered,'by writing under their hands and feals to conftitute and appoint inferior Officers in all and fingular the Port within the Limits of their Commiffions.' Each of there petty officers fo made is intrusted with Power more abfolute and arbitrary than ought to be lodged in the hands of any Man or Body of Men whatfoever; for in the Commiffion aforementioned, his Majefly gives and grants unto his faid Commiffioners, or any three of them,' and to all and every the Colle&ors, Deputy Colleitors, Minifters, Servants, and all other Officers ferving & attending in all and every the Ports & other Places within the Limits of their Commiffion, full Power and Authority from time to time, at their or any of their Wills and Pleafures, as well by Night as by Day, to enter and go on board any Ship, Boat, or other Veffel, riding, lying, or being within, or coming into, any Port, Harbour, Creek or Haven, within the limits of their Commission; and alfo in the day-time to go into any Houfe, Shop, Cellar, or any other Place, where any Goods, Wares or Merchandises lie concealed, or are fufpected to lie concealed, whereof the cuftoms and other duties, have not been, or shall not be, duly paid and truly fatisfied, anfwered or paid unto the Collectors, Deputy-Collectors, Minifters, Servants, and other officers refpectively, or otherwise agreed for; and the faid Houfe, Shop, Warehoufe, Cellar, and other Place to fearch and furvey, and all and every the Boxes, Trunks, Chefts and Packs then and there found to break open.' " Thus our Houfes, and even our Bed-Chambers, are expofed to be ransacked, our Boxes, Trunks and Chefts broke open, ravaged and plundered, by Wretches, whom no prudent Man would venture to employ even as Menial Servants; whenever they are pleafed to fay they Jufpect there are in the Houfe, Wares, &c. for which the Duties have not been paid. Flagrant inftances of the wanton exercife of this Power, have frequently happened in this and other feaport Towns. By this we are cut off from that domeftic fecurity which renders the Lives of the moft unhappy in fome meafure agreeable. Thefe Officers may under color of Law and the cloak of a general warrant, break through the facred Rights of the Domicil, ranfack Mens Houfes, destroy their Securities, carry off their Property, and with little Danger to themfelves commit the most horrid Murders." Report of the Committee, as published by Order of the Town, 15-I7. Compare Junius Americanus in Bofton Gazette of December 24, 1770, & January 28, 177I. 1774. Nothing later than this, tending to illuftrate the matter of Writs of o Affiftance, has come to the notice of the writer. The port of Bofton Bofton was clofed by the Bofton Port Bill on the Ist of June, x774. St. 13 G. Port Bill. 3, c. 45. 34 Mafs. Hift. Coll. I. On the 28th of July I775 the Council, eledted according to the Proy- 177 ince Charter, with the confent of the Houfe of Rcprefentatives affu4ed Change of the Government. 468 Appendix I. 1775- the government, upon the ground that the Governor and Lieutenant Governor "have abfented themfelves, and have refufed to govern the Province according to faid Charter." Journal H. R. 1775, p. 21. New Seal On the fame day a committee was appointed, of which James Otis of the Col- (of Barnltable) was chairman on the part of the Council, and Jofeph ony - HaoCley on the part of the Houfe, " to confider what is neceffary to be done relative to a Colony Seal; " and on the Sth of Augufi was direted "to fit forthwith," and reported that the Old Province Seal (which bore the Royal Arms) 1" be not taken up," but that " the eftablifhed form of a Seal for this Colony, for the future," fllould be an Indian holding a Tomahawk and Cap of Liberty, with the motto Petit fub libertate quietem. The idea of the Indian was doubtlefs derived from the ruder figure on the firft Seals of the Colony, brought over by Endicott in I629 and Winthrop in I630. I Mafs. Col. Rec. tit. & pp. 24, 55, 59, 73, 392, 396. The Council accepted the report of the com" Englifh mittee, fubftituting however for the Indian "an Englifh American, American" holding a fword in the Right Hand, and Magna Charta in the Left Cwith tMagna Hand, with the words' Magna Charta' imprinted on it." The Houfe Ensc petit of Reprefentatives concurred, with this fignificant amendment, that placidam fub "in the Device previous to the Word' Petit,' be inferted the Word libertate qui-'Ense,' and fubfequent to it, the Word'Placidam.'" I37 Mafs. etem - Archives, I4. 86 Ib. 340, 364. Journal H. R. 1775, pp. 20, 46, 47, 48. The fame image and motto, and the words " Iffued in Defence of 1776. American Liberty," were ftamped on the bills of credit iffued by the _<_ Colony until fome time after the Declaration of Independence, when Indepen- the letters " IND" took the place of "Magna Charta." Sts. of dence. 1775, cc. 2, 9; 1776, cc. i, i6, 26; Ads & Laws of the Colony of Maffachufetts Bay 1775-1776, pp. a, 71, 72, 75, 84, 99. Journal H. R. September I776, p. xo9. 1780. Maffachufetts, in I780, after framing a Conftitution of her own, (the Declaration of Rights prefixed to which repeated the chief articles of Conftitution. Magna Charta, and condemned general warrants,) replaced the image Image on on the feal by her ancient emblem, in a more heraldic form, and eftabfeal changed, lished the following as the Seal and Arms of the Commonwealth: fpretaining. " Sapphire, an Indian dreffed in his Shirt, Moggofins, belted, proper, in his right Hand a Bow Topaz, in his left an Arrow, its point towards the Bafe; of the fecond, on the Dexter fide of the Indian's head, a Star, Pearl, for one of the United States of America. CREST- On a Wreath a Dexter Arm cloathed & ruffled proper, grafping a Broad Sword, the Pummel & Hilt Topaz, with this Motto, Ense petit placidam fub libertate quietem." Council Rec. December 13, 1780, fol. 49. Thefe Arms, affumed in the midft of the Revolutionary War, years before the adoption of the Federal Conftitution, are ftill unchanged. And the motto, eftablifhed by the firft legiflature of the Revolution, recognizing that the quiet of liberty is to be fought, if need be, by the fword, remains the device, and governs the aation, of Maffachufetts to-day. Writs of Affiflance. 469 1761. D. John Adams's Report of the Firft Argument in February 1761. (1) RIDLEY. - The Conftables diftraining for Rates. Gridley. more inconfiftent with Eng. Rts. & liberties than Writts of affiftance. And Neceffity, authorizes both. Thatcher. I have fearched, in all the ancient Reper- Thacher. tories, of Precedents, in Fitzherberts Natura Brevium, and in the Regifter (Q: wt ye Reg. is) and have found no fuch Writt of affiftance as this Petition prays. — I have found two Writts of afs. in the Reg. but they are very difft, from ye Writt prayd for. - (2) In (i) This report, which has been once published in 2 John Adams's Works, 521-523, is by the courteous permission of Mr. Charles Francis Adams here reprinted as exactly as possible, with the original paragraphs, fpelling, and punAuation, from the MS. notes of John Adams, who was prefent at the argument, though he was not admitted as a barrifter until the x4th of November following. 2 John Adams's Works, I24 & note, I33. IO Ib. 245. Rec. 176i, fol. 239. The only other contemporaneous report is an enlargement of this. rid. infra, 477, note 39The elaborate narrative given more than half a century afterwards by Adams to Tudor, who printed an abitradt of it as the argument of Otis in this cafe, is rather a recollection of the Sentiments of the coloniars between I76i and 1766. Io John Adams's Works, 232-362, & note. Tudor's Life of Otis, 68-86. 4 Bancroft's Hift. U. S. 417, note. Ante, 409, 4I7. It would feem to have been written by Adams without even referring to his own notes; for it fubftitutes Raftall's Entries for Regiftrum Brevium; and afferts that no precedent could be found of a writ of affiftance to a cuftom houfe officer - in dire& oppofition to all the counfel in the cafe, as reported by himfelf in the text. Io John Adams's Works, 322, 342. He feems alfo to attribute to Otis his own argument feven years later in the cafe of iThe Liberty, ante, 460, 46r. so John Adams's Works, 348, 349(2) Reg. Brev. app. 46, 47; ante, 396 & note 4. 470 Appendix I. 1761. In a Book, intituled the Modern Pradtice of the Court we_ of Exchequer there is indeed one fuch Writt, and but one. (3) By ye A& of Pall any other private Perfon, may as well as a Cuftom Houfe Officer, take aa officer, a Sheriff, or Conftable, &c and go into any Shop, Store &c & feize: any Perfon authorized by fuch a Writt, under the Seal of the Court of Exchequer, may, not Cuftom Houfe Officers only. - Strange. (4) - Only a temporary thing. The morf material Queftion is, whether the PraEtice of the Exchequer, will warrant this Court in granting the fame. The Ad impowers all the officers of ye Revenue to enter and feife in the Plantations, as well as in England. 7. & 8 Wm 3, C. 22, ~ 6, gives the fame as 13. & 14. of C. gives in England. (5) The Ground of Mr Gridleys argt is this, that this Court has the Power of the Court of Exchequer. -But This Court has renounced the Chancery Jurifdidion, wh the Exchequer has in Cafes where either Party, is ye Kings Debtor. (6) - Q. into yt Cafe. (7) In (3) Copied in full ante, 398, note ro, qu. vid. (4) Probably Horne v. Boosey, 2 Stra. 952, in which, notwithftanding a condemnation of goods in the Exchequer, trover was maintained against "one not the proper officer" for feizing them, on the ground of his " being a tidefman, who could not enter a houfe without a writ of affiffance and a peace officer, the words of his warrant being fo reftrained." (5) Vid. Sts. 13 & 14 Car. 2, c. I, ~ 5; 7 & 8 W. 3, c. 22, ~ 6; quoted in full by Gridley arguendo, infra, 480, 48 1. (6) 3 B1. Com. 45. That jurifdi6tion was transferred to the High Court of Chancery by St. 5 Vi&. c. 5. (7) That cafe was again cited by 7hacher at the argument in November 176i, as " the Cafe of McNeal of Ireland & McNeal of BofRon," ante, 53. The only trace of it to be found in the clerk's office is the following entry on the records of February term, 1754, in Suffolk, which was held by Sewall, C. J., Saltonstall, Lynde, Cushing & Oliver, JJ. "McNEAL " Ann McNeal Widow and Mary McNeal Spinfter both of the Iv.,,"City of Dublin in the Kingdom of Ireland Debtors and Accountants BIIDEOAK.' DEOAK "to his Majefty Compl'" againif Sarah Brideoak of Bofton in the " County Writs of Affiftance. 471 In Eng. all Informations of uncuited (8) or prohibited Im- 1761. portations, are in ye Exchequer. -So yt ye Cuftom Houfe w officers are the officers of y' Court. - under the Eye, and Diretion of the Barons. The Writ of Affiftance is not returnable. -If fuch feifure were brot before your Honours, youd often find a wanton Exercife of their Power. At home, ye officers, feife at their Peril, even with Probable Caufe. - (g) Otis. This Writ is againfi the fundamental Principles Otis. of Law.- The Priviledge of Houfe. A Man, who is quiet, is as fecure in his Houfe, as a Prince in his Caifle notwithfianding all his Debts, & civil proceffes of any Kind. -But For flagrant Crimes, and in Cafes of great public Neceffity, the Priviledge may be incrohd (Io) on. - For Felonies an officer may break, upon Profcefs, and oath. - i. e. by a Special Warrant to fearch fuch an Houfe, i-fp- fworn to be fufpe&ted, and good Grounds of fufpicion appearing. Make oath corT Ld, Treae?, or Exchequer, in Engd or a Magiftrate " County of Suffolk in faid Province Spinifer commonly called Sarah Rec. 1754. "McNeal of faid Bofton Widow Defendant on a Bill in Equity filed Fol. Ixo.' in Court Decemr the 20th 1752 (and on file). This Bill hath been "continued from the Term of this Court for this County held at faid' Boston in November A D I752 by Adjournt from the third Tuefday "of Auguft preceeding by Confent of both Partys unto this Court & " now both Partys appear'd & the faid Bill is Difmist and the faid "Sarah Brideoak is allowed her Cofls Taxed at S " The compl"t moved that they might be allowed an appeal to ye "King in Council: Allow'd." (8) Uncuftomed. Compare enlarged report, infra, 482. (9) S. P. Shipley v. Redmain, before Lord Camden, cited in 4 Doug. 347. Per Lord Mansfield, Cooper v. Boot, 4 Doug. 348, & 3 Esp. R. 145(Io) This looks in the MS. like an indiftin& abridgment of " incroached." 472 Appendix I. 1761. Magiftrate here, and get a Special Warrant, for ye public ~ good, to infringe the Priviledge of Houfe. (I ) Gen' Warrant to fearch for Felonies. Hawk. Pleas Crown. (I2) — every petty officer from the higheft to ye loweft, and if fome of'em are e, a-eters uncoii others are uncomm. (I3) Gouvt Juftices ufed to iflue fuch perpetual Edits. (Q. with wt particular Reference?) (i4) But one Precedent, and yt in ye Reign of C. 2 when Star Chamber Powers, and all Powers but lawful & ufeful Powers were pufhed to Extremity. - (I5) The authority of this Modern Practice of the Court of Exchequer. -it has an Imprimatur.(I6) —But wt may not (IIxx) Vid. St. x2 Car. 2, c. I9, quoted ante, 397, note 5. (12) 2 Hawk. c. I3, ~ io - that such a warrant is illegal. (I3) The MS. is very obfcure here; but this feems to be the true reading, and to indicate that Adams, hefitating whether to put " commiffioned" or " uncommiffioned " firit, accidentally repeated the latter. This interpretation makes the paffage accord with the argument urged by Thacher, supra, 469, by Otis, infra, 475, and in the Bofton Gazette of February 4, I762, post, F. - that by the words of St. 13 & 14 Car. 2, " any perfon " might execute the writ. (I4) Probably Dalton's Juftice, 401,402. See 3 Hutchinfon's Hift. Mafs. 93; 2 Minot's Hift. Mafs. 94; 2 John Adams's Works, 524. Otis admitted that fpecial Writs of Afffltance, to fearch fpecified places, might be granted upon information on oath. lb. (i5) The one precedent of iffuing general warrants in the time of Charles 2 was by Chief Juftice Scroggs, for which he was afterwards impeached by the Houfe of Commons. Vid. 8 Howell's State Trials, I92, 193, 200; I9 lb. I07i, 1072. In the extended fketch of Otis's argument, the positions taken in this and the following paragraph are confuted thus: " Not more than one inftance can be found of it in all our law-books; and that was in the zenith of arbitrary power, viz. in the reign of Charles 2, when Star-Chamber powers were pushed to extremity by fome ignorant clerk of the Exchequer." 2 Minot's Hift. Mafs. 98. 2 John Adams's Works, 525. It is hard to underftand how fuch extraordinary powers could be wielded by a clerk of the Exchequer; and the book of that ignorant clerk was not published until the laft year of the reign of James 2; yet it is poffible that it was the precedent therein to which Otis referred. Kid. ante, 398, notes 7, 8. (16) Vid. infra, 476, & note 35. Writs of Affiflance. 473 not have? - It may be owing to fome ignorant Clerk of 1761. ye Exchequer. But all Precedents and this am'g ye Redf are under ye Control of ye Principles of Law. Ld. Talbot. better to obferve the known Principles of Law yn any one Precedent, tho in the Houfe of Lords. - (7) As (I7) The cafe here referred to is evidently Clare v. Clare, where Lord Talbot difregarded the decisions of Lord Cowzper in Higgins v. Dooler, 2 Vern. 600, and Sir Jofepbh yekyll in Stanley v. Leigh, (fince reported in 2 P. W. 686,) faying, " I think it much better to flick to the known general rules, than to follow any one particular precedent which may be founded on reafons unknown to us;" and, after citing a decifion of the Houfe of Lords in favor of his own conclufion, added, " Even had it not been in the Houfe of Lords, I fhould have thought myfelf bound to go according to the general and known rules of law." Cas. temp. Talb. 26, 27. But the authority of the two cafes doubted by Lord 7talbot has been fince fully eflablifhed. Williams's note, lb. 27. Cox's note to Higgins v. Dowler, I P. W. 98. It is frill a vexed queftion in England whether the Houfe of Lords can overrule or difregard a previous decifion of its own in another cafe; but it is well fettled that a final decifion of the Houfe of Lords is conclufive in the cafe in which it is made, and cannot be recalled or fet afide, even at the fame term, except for fraud, or by a fpecial Adt of Parliament. Bright v. Hutton, 3 H. L. Cas. 388, 392. Tommey v. White, 3 Ib. 69-7 1, & 4 lb. 334. WiilJon v. WVilJon, 5 Ib. 58, 63, 7I. h'bellufon v. RendleJham, 7 lb. 529, 530. Attorney General v. Dean & Canons of Windfor, 8 lb. 381, 391-393, 459. In the United States, the line between the legiflative and judicial departments is better defined. The Supreme Court of the United States does not hold itfelf bound by its own erroneous decifion in another cafe. Genefee Chief v. Fitzhugh, 12 How. 456. Louifville, Cincinnati & Charlefton Railroad v. Letfon, 2 Ib. 555. Ohio & Mifippi Railroad v. Wheeler, i Black, 296. And a rehearing may be granted at the fame term at which judgment has been entered. United States v. Knight, lb. 490. In fome of the Colonies the legiflature habitually exercised the power of granting reviews and new trials. St. I642, Mafs. Col. Laws (ed. I672) I52; Anc. Chart. 199. Draper v. Bicknell, ante, x66, note. Governor Hutchinfon's Speech to the General Court, April 8, I772, Bradford's State Papers, 314. Calder v. Bull, 3 Dall. 392, 393, 395, 398. And this praftice was continued in Maffachufetts and fome of the other States even after the adoption of written Conftitutions, eftablifhing diftin& departments of government. But it is now well fettled that the legiflature cannot 60 fet 474 Appendix I. 1761. As to Adts of Parliament. an A& againft the Conftitution'~~~"'~' is void: an A& againif natural Equity is void: and if an Adt of Parliament fhould be made, in the very Words of this Petition, (I8) it would be void. The Executive Courts (I9) muft pafs fuch A&s into difufe- 8. Rep. I I8. from Viner. (20o) - Reafon of ye Coiii Law to control an Ad of Parliament. - Iron ManufaAure. noble Lord's Propofal, yt we fhould fend our Horfes to Eng. to be fhod. — (2 I) If an officer will juftify under a Writ he muft return it. I2th Mod. 396. - perpetual Writ. (22) Stat. fet afide a judgment or grant a new trial in a particular cafe. Holden v. James, i Mafs. 396. Denny v. Mattoon, 2 Allen, 379. Levois v. Webb, 3 Greenl. 326. Durham v. Lewoifton, 4 Greenl. 140. Merrill v. Sherburne, I N. H. I99. Taylor v. Place, 4 R. I. 339People v. Supervifors of Nev Yrork, I6 N. Y. 432. De Chaftellux v. Fairchild, Is Penn. State R. iS. (I8) It would feem from this expreflion, as well as from the enlarged report of Gridley's argument, infra, 478, that Adams fuppofed a written petition to have been filed in this case. But it is more probable that the counfel referred to the form of petition which had been previoufly ufed; for there does not appear to have been any application in writing for the writ at this time, except the memorial of the Surveyor General in behalf of himfelf and all his officers. Ante, 413, 4I8, & note. (I9) The term " executive courts" was commonly applied to Courts of Juftice, as diftinguifled from the Legiflature or " General Court." Ante, 200, 245, 280, 307. Quincy's Life of Q(incy, 68. 2 John Adams's Works, 135, I55, I94, 234, 235. 3 Ib. 48I. 3 Hutchinfon's Hift. Mafs. 505. I Doug. Hist. N. A. 5I7, 520. (20) Bonham's cafe, 8 Rep. IIS. Vin. Ab. Statute, E. 6, pl. 15. Vid. poft, I. (2I) Perhaps in the debate in 1750 on St. 23 G. 3, c. 29, which prohibited the ereEtion or maintenance in the Colonies of any rolling or flitting mill, plating forge, or furnace for making fReel. See I Minot's Hift. Mafs. I70. John Adams, in a letter to Tudor of Auguft 2I, I8i8, makes Otis, in 176, quote, with this, the fimilar remark " that a hobnail fliould not be manufadured in America"-which was in fast a threat of Chatham's in 1766, in cafe the Americans should deny the power of Parliament over their trade. Io John Adams's Works, 350. 4 Bancroft's Hift. U. S. 4I7, note. 5 lb. 387. (22) " He, that has not shewed to the Court that he hath done his duty in what the procefs of the Court required him, shall not be juftifled Writs of Affiftance. 475 Stat. C. 2. We have all as good Rt to inform as Cuftom 1761. Houfe officers (23) - & every Man may have a general, \ irreturnable.s-Ait. Commiffion to break Houfes. - By 12. of C. on oath before Ld Treafurer, Barons of Exchequer, or Chief Magifirate to break with an officer. (24)- I4th C. to iffue a Warrant requiring fheriffs &c to affift the officers to fearch for Goods not entrd, or prohibitd.(25); 7 & 8th W. & M. gives Officers in Plantations fame Powers with officers in England.- (26) Continuance of Writts and Profceffes, (27) proves no more nor fo much as I grant a fpecial Writ of alf. on fpecial oath, for fpecl Purpofe. — Pew indorfd Warrant to Ware. - (28) Jufiice Walley fled by the procefs." Freeman v. Bluet, 12 Mod. 396. In that cafe, the precept dire6ted the officer to return it. Otis argued that the Writ of Affiftance, not being returnable, was perpetual. 2 Minot's Hift. Mafs. 95. 2 John Adams's Works, 524. (23) Comparefupra, 469, 472, & note 13. (24) St. 12 Car. 2, c. I9. (25) St. 3 & I4 Car. 2, c. I I, ~ 5. (26) St. 7 & 8 W. &I M. c. 22, ~ 6. (27) By St. I Anne, St. I,c. 8, ~ 5,relied on byGridley, infra, 48I. (28) In the fuller report of Otis's fpeech this illuftration is thus introduced: "This wanton exercife of this power is not a chimerical fuggeftion of a heated brain. I will mention fome fa&s. Mr. Pew had one of thefe writs, and when Mr. Ware fucceeded him, he endorfed the writ over to Mr. Ware: so that these Writs are negotiable from one officer to another; and fo your Honours have no opportunity of judging the perfons to whom this vaft power is delegated." 2 Minot's Hift. Mafs. 96, 97. 2 John Adams's Works, 524, 525. In April i86o, the fergeant-at-arms of the United States Senate indorfed over to another perfon a precept, addreffed to himfelf by name, to arreft a witnefs who had refufed to appear before a committee of the Senate; and the witnefs was arrefied by the deputy, but difcharged by Chief Juftice Shaw, with the concurrence of the other judges of the Supreme Judicial Court of Maflachufetts, upon the ground that the deputation was invalid. Sanborn v. Carlton, x5 Gray. In June x86o, the Committee on the Judiciary of the Senate, through Mr. Bayard of Delaware, their Chairman, made a report on this fubje&, controverting this decifion, and accompanied by a bill exprefily conferring on the fergeants-at-arms of the Senate and Houfe of Reprefentatives 476 Appendix I. 1761. ley fearc'd Houfe. (29) Law Prov. (30) Bill in Chan~~ cery.- this Court confined their Chancery Power to Revenue &c. (31) Gridley. By the 7. & 8 of WT C. 22. ~ 6th-This authority, of breaking and entering Ships, Warehoufes Cellars &c given to the Cuftom Houfe officers in England by the Statutes of the 12th and I4th of Charl. 2d, is extended to the Cuftom Houfe officers in ye Plantations: (32) -and by the Statute of the 6th of Anne, (33) is Writts of Affiftance are continued, in Company with all other legal Profceffes for 6 months after the Demife of the Crown. - Now what this Writ of affiftance is, we can know only by Books of Precedents. - And we have produced, in a Book intituld the modern Practice of the Court of Exchequer, a form of fuch a Writ of afliftance to the officers of the Cuftoms. (34) The Book has the Imprimatur of Wright C. J. of atives the power to ferve or execute by deputy the mandates, precepts, and warrants of their refpehtive houfes. But Congrefs did not pafs the bill. (29) " Another intfance is this: Mr. Jutlice Walley had called this fame Mr Ware before him by a conflable to anfwer for a breach of Sabbath-day acts, or that of profane fwearing. As foon as he had finished, Mr. Ware afked him if he had done. He replied, Yes. Well then, faid Mr. Ware, I will shew you a little of my power. I command you to permit me to fearch your houfe for uncuitomed goods; and went on to fearch his houfe from the garret to the cellar; and then ferved the conltable in the fame manner." Otis's argument, as reported in 2 Minot's Hift. Mafs. 97, and. John Adams's Works, 525. (30) Probably Prov. St. x W. 3, defining the jurifdiation of the Court, quoted by Gridley, infra, 479. (3I) Jidfupra, 470, & notes 6 & 7. (32) For there ftatutes,'vid. ante, 397, note 5; infra, 479, 480. (33) St. x Anne, St. i, c. 8, ~ 5, the context of which however is quite as confiltent with the fuppofition that only the ordinary writs of affiftance, iffuing out of chancery, were intended -" That no commiffion of affociation, writ of admittance, or fi non omnes, original writ, writ of niji prius, writ of affiftance, nor any commiffion, procefs, or proceedings whatfoever, in or iffuing out of any Court of equity," &c. &c. should be determined by the demife of the King. (34) Printed ante, 398, note io. Writs of Affiftance. 477 of the K.'s B. (35) wh is as great a fanAion as any Books 1761. of Precedents ever have. altho Books of Reports are ufually approved by all the Judges (36) -and I take Brown the author of this Book to have been a very good Colledor of Precedents. - I have two Volumes of Precedents of his Collection, (37) wh I look upon as good as any, except Coke & Raftal. And the Power given in this Writ is no greater Infringement of our Liberty than the Method of colleting Taxes in this Province. -(38) Every Body knows that the Subjedt has the Priviledge of Houfe only againft his fellow Subjets, not vs ye K. either in matters of Crime or fine. (39) (35) The value of the Imprimatur of Wright, C. 7. may be judged Character from thefe fadts: " He was fo poor a lawyer, that he could not give an of Chief Jufopinion on a written cafe, but ufed to bring fuch cafes, as came to tice Wright. him, to his friend Mr. North, and he wrote the opinion on a paper, and the lawyer copied it, and figned under the cafe as if it had been his own." 2 North's Lives, (ed. 1826) 94. At the inflance of Chief Juftice yeffreys, he was appointed by James 2 a Baron of the Exchequer, notwithstanding the remonftrances of Lord Keeper Guilford that he was " the moft unfit perfon in England to be made a judge," " a dunce, and no lawyer," and " of no truth nor honefty." lb. 96, 97. By the fame influence he was afterwards fucceffively advanced to be a Judge of the King's Bench, Chief Juftice of the Common Pleas, and Chief Juffice of England; and fignalized the laft appointment by ordering a capital execution to take place, according to the King's will, in a different county from the convidtion, which Chief Juftice Herbert, who was removed to make way for him, and another Judge who " had his quietus the night before," had juft decided could not be done. 3 Mod. 71, I24, I25. For Lord Camden's opinion of him, see l9 Howell's State Trials, 989, 99o, 991, 993(36) See Wallace's Reporters, (3d ed.) 34, & note. (37) Probably W. Brown's " Praxis Almce Curice Cancellarice," 2 vols., London, 1704. (38) Prov. Sts. 4 & xo G. 2, Anc. Chart. 47 1, 512. (39) These notes, the handwriting of which exhibits the hafte with which they were made, are followed by more diftinftly written "extradts from the A&s of Parl! " and " Prov. Law, Page I 14 " - being the fame provisions which are incorporated into the extended fketch of Gridley's 478 Appendix I. 1761. Gridley's argument, infra, 479, 480; and by the forms of petition and _ze o writ printed ante, 402 & note, 404. Extended A more extended fketch of this argument is contained in a manureport from fcript book entitled on the fly leaf " Ifrael Keith's Pleadings, Arguments, Extradts, &c.," in the poffeffion of John G. Ne~well, Efqr., of Pittsford in the State of Vermont, who has kindly furnished the writer with the following information: " From what I can learn, Ifrael Keith was born in Boston; educated at Cambridge, Mafs.; was for a short time in the practice of the law in Bofton; and in 1798 or near that time he moved to this place, where he lived and. died. He was 67 years of age. He died 5th June I8i9, as appears from the record upon his monument. Col. Keith was a gentleman of the old fchool; while living, furfained the reputation of ftridt integrity and corredt morals. It was faid of him, that becaufe he could not be at the head of his profeffion, he gave up the pradtice of the law, and left for the wildernefs of Vermont. At one time he was aid to General Wajhington during the American Revolution. I have underftood that while he was ftudying his profeffion, he took the notes of Mr. Otis's fpeech. It is in Col. Keith's handwriting, and the manufcript has been in my poffeffion iince I825, and before that time it was in poffeffion of his widow, Mrs. Caroline Keith. She died 23d May I834, and was buried in this town." It may be added that Ifrael Keith appears in the Harvard College Catalogue among the graduates of I77 i, and was admitted to pradtice as an attorney of the Superior Court of Judicature at March term 1780 in Suffolk, (Rec. 1780, fol. I55,) and is mentioned as an attorney of the Supreme Judicial Court in the Bofton Regifters from that time until 179I, but not afterwards. The book itfelf contains fufficient evidence that Mr. Keith was a careful fludent of law, and had accefs to fome of John Adams's materials. Besides other curious cafes, opinions and extradts, it contains Governor Pownall's meffage on Courts of Probate (poft, Appendix, II.); the cafe of Gloaver v. Le 7efiue, decided in 1770, (printed ante, 225, note, from Adams's original notes); " Lord C. J. Hale's advice for the ftudy of the Common Law " (being one long paragraph out of his preface to Rolle's Abridgment, reprinted I Collet. Jurid. 276, 277); " Lord C. J. Ree've's Advice to his nephew on the ftudy of the Law " (fince published by Mr. Hargrave from a lefs perfedt copy in x ColleEt. Jurid. 79); a letter from Dr. Dickins, Regius Profeffor of Law at Cambridge, to Mr. Gridley on the books neceffary to a knowledge of the Civil Law; and a letter from Mr. Gridley to Judge Lightfoot of the Admiralty Court in Rhode Ifland on the ftudy of the Admiralty Law. The four laft were recommended in I758 by Gridley to Adams, when a fludent at law. 2 John Adams's Works, 46. Mr. Keith's cannot be an original report of the argument upon the Writs of Afliftance; for he was only nine years old at the time of that argument. And the miftakes of " 2 W. 3" for " Ix W. 3," and " Chance Writs of Affifiance. 479 "Chance of Jurifdiction " for "Chancery Jurifdifion" (infra, 480, 1761. 48 I,) are not thofe of one who had heard the argument, though eafily made in copying. But there are many reafons for prefuming that it is a copy of a fketch made by John Adams, from which the fpeech of Otis, printed in 2 Minot's Hift. Mafs. 9I-99, and, with fome variations, in 2 John Adams's Works, 523-525, formed a part. Otis's argument is given, almoft word for word, as in Minot's Hiflory; and the arguments of Gridley and Thacher are evidently reported by the fame hand, and correfpond with the abftradts and quotations of parts of them by Minot, and in a remarkable degree with Adams's original notes. Adams, in his diary of the fpring of I761, quotes fome one as praising the flyle of his " abftra&t of the argument for and againft the Writs of Affiftance," and efpecially of Gridley's, in a way that could hardly have been applied to his firft rough notes, printed in the text. 2 John Adams's Works, 124, 125. And Adams himfelf many years after faid that the more extended notes printed by Minot were his own, except fome paffages which he pointed out. lb. 525-527. A comparifon of his report with thofe preferved by Minot and Keith tends to the conviction that in repudiating thofe paffages he was guided by his tafte rather than his notes or his memory. The form of writ and petition preferved by Adams correfpond with thofe quoted by Gridley, according to this report. Ante, 403, note 4; infra, 480. The antiquity and accuracy of the report copied by Mr. Keith are curioufly corroborated by the following order, entered at the end of the Docket of Auguft term I759 of the Superior Court of Judicature in Suffolk: " N. B. The Court determin'd that for the future the fpecial plead- Order of ings shall come on the fecond Tuefday in each term & continue from Court as to day to day till finish'd, & to allow the Bar the preceding Monday to Special Mat. prepare therefor." ters. In Mr. Keith's manufcript the introdu&ory flatements and the reports of the arguments of Gridley and Thacher (which have never been printed) are as follows: " Bofton Superior Court February 176I. "On the fecond Tuefday of the Court's sitting, appointed by the rule of the Court for argument of fpecial matters, came on the difpute on the petition of M. Cockle & others on the one side, and the Inhabitants of Bofton on the other, concerning Writs of Affiftance. Mr Gridley appeared for the former, M. Otis for the latter. M. 7hacher was joined with him at the desire of the Court. " M' Gridley. I appear on the behalf of M. Cockle & others, who Gridley's pray' that as they cannot fully exercife their Offices in fuch a manner argument. as his Majefty's Service and their Laws in fuch cafes require, unlefs your Honors who are vefted with the power of a Court of Exchequer for this 480 Appendix I. 1761. this Province will pleafe to grant them Writs of Aflifiance. They therefore pray that they & their Deputies may be aided in the Execution of their Offices by Writs of Afflftance under the Seal of this Court and in legal form, & according to the Ufage of his Majefty's Court of Exchequer in Great Britain.' " May it pleafe your Honors, it is certain it has been the pratice of the Court of Exchequer in England, and of this Court in this Province, to grant Writs of Affiftance to CufRom Houfe Officers. Such Writs are mentioned in feveral Ats of Parliament, in feveral Books of Reports; & in a Book called the Modern Pradtice of the Court of Exchequer, We have a Precedent, a form of a Writ, called a Writ of Affiftance for Custom houfe Officers, of which the following a few years past to Mr Paxton under the Seal of this Court, & tested by the late Chief Justice Sewall is a literal Tranflation." [Here follows the writ printed ante, 404.] "The first Queftion therefore for your Honors to determine is, whether this pra5tice of the Court of Exchequer in England (which it is certain, has taken place heretofore, how long or short a time foever it continued) is legal or illegal. And the fecond is, whether the pradtice of the Exchequer (admitting it to be legal) can warrant this Court in the fame pradice. " In anfwer to the firft, I cannot indeed find the Original of this Writ of Affistance. It may be of very antient, to which I am inclined, or it may be of modern date. This however is certain, that the Stat. of the x4t. Char. 2n.d has established this Writ almoft in the words of the St. 13 & I4 Writ itfelf.' And it shall be lawful to & for any perfon or perfons Car. 2, c. II, authorifed by IWrit of A.liftance under thefJal of his Majefty's Cgurt of ~ 5. Exchequer to take a Conftable, Headborough, or other public Officer, inhabiting near unto the place, & in the day time to enter & go into any houfe, Shop, Cellar, Warehoufe, room, or any other place, and in cafe of Refiftance, to break open doors, Chefts, Trunks & other Package, & there to feize any kind of Goods or Merchandize whatever prohibited, and to put the fame into his Majefty's Warehoufe in the Port where Seifure is made.' St. 12 Car. " By this a& & that of I2 Char. 2n9d all the powers in the Writ of Afa, c. I9, ~ x. fiftance mentioned are given, & it is expreffly faid, the perfons shall be authorized by Writs of Afilistance under the feal of the Exchequer. Now the Books in which we should expeEt to find ihefe Writs, & all that relates to them are Books of Precedents, & Reports in the Exchequer, which are extremely fcarce in this Country; we have one, & but one that treats of Exchequer matters, and that is called the' Modern pradice of the Court of Exchequer,' & in this Book we find one Writ of Affiftance, tranflated above. Books of Reports have commonly the Sandtion of all the Judges, but books of Precedents never have more than that of the Chief Juftice. Now this Book has the Imprimatur of Wright, who was Chief Juftice of the King's Bench, and Writs of Affifitance. 481 and it was wrote by Brown, whom I efteem the be8f Colle&or of Pre- 1761. cedents; I have Two Volumes of them by him, which I efteem the ~ belt except Raftall & Coke. But we have a further proof of the legality of thefe Writs, & of the fettled pradtice at home of allowing them; becaufe by the Stat. 6'h Anne which continues all Proceffes & Writs St. I Anne, after the Demife of the Crown, Writs of Aistance are continued among St. x, c. 8, ~ 5. the Reft. " It being clear therefore that the Court of Exchequer at home has a power by Law of granting thefe Writs, I think there can be but little doubt, whether this Court as a Court of Exchequer for this Province has this power. By the Statute of the 7th & 8th W. 3d, Stat. 7 & 8 it is enaded'that all the Officers for colleting and managing his W. 3,. 23, Majefty's Revenue, and inspecting the Plantation Trade in any of the 6. faid Plantations, fhall have the fame powers &c. as are provided for the Officers of the Revenue in England; alfo to enter Houfes, or Warehoufes, to fearch for and feize any fuch Goods, & that the like A4iftance thall be given to the faid Officers as is the Cuftom in England.' " Now what is the Affiftance which the Officers of the Revenue are to have here, which is like that they have in England? Writs of Affifiance under the Seal of his Majefty's Court of Exchequer at home will not run here. They muft therefore be under the Seal of this Court. For by the law of this Province 2 W. 3? Ch. 3' there ihall Prov. St.' be a Superior Court &c. over the whole Province &c. who fhall have I W. 3.' cognizance of all pleas &c. & generally of all other matters, as fully''& [amply] to all intents & purpofes as the Courts of King's Bench,'Common Pleas & Exchequer within his Majefty's Kingdom of Eng-'land have or ought to have.' " It is true the common privileges of Engliflmen are taken away in this Cafe, but even their privileges are not fo in cafes of Crime and fine.'Tis the neceffity of the Cafe and the benefit of the Revenue that juftifies this Writ. Is not the Revenue the fole fupport of Fleets & Armies abroad, & Minifters at home? without which the Nation could neither be preferved from the Invafions of her foes, nor the Tumults of her own Subjedts. Is not this I fay infinitely more important, than the imprifonment of Thieves, or even Murderers? yet in there Cafes'tis agreed Houfes may be broke open. " In fine the power now under consideration is the fame with that given by the Law of this Province to Treafurers towards ColleEtors, & to them towards the fubjedt. A ColleEtor may when he pleafes diftrain my goods and Chattels, and in want of them arreft my perfon, and throw me instantly into Goal. What! fhall my property be wrefted from me! - thall my Liberty be deftroyed by a Colle&or, for a debt, unadjudged, without the common Indulgence and Lenity of the Law? So it is eftablifihed, and the neceffity of having public taxes effedtually and fpeedily colledted is of infinitely greater moment to the whole, than the Liberty of any Individual." 6x " Thacher. 482 Appendix I. 1761.' Iacher. In obedience to the Order of this Court I have fearched _ _ v with a good deal of attention all the antient Reports of Precedents, Thacher's Fitz. N. Brev. & the Register, but have not found any fuch Writ as argument. this Petition prays. In the latter indeed I have found Two Writs which bear the Title of Brev. Affistentice, but thefe are only to give poffeffion of Houfes &c. in cafes of InjunEtions & Sequeftration in Chancery. By the A& of Parliament any private Perfon as well as Cuftom Houfe Officer may take a Sheriff or Conftable & go into any Shop &c. & feize &c. (here M: Thacher quoted an Authority from Strange which intended to Chew that Writs of Affiftance were only temporary things.) " The moft material queftion is whether the practice of the Exchequer is good ground for this Court. But this Court has upon a folemn Argument, which lafted a whole day, renounc'd the Chance of [Chancery] Jurifdi&ion which the Exchequer has in Cafes where either party is the King's Debtor. " In England all Informations of uncuftomed or prohibited Goods are in the Exchequer, fo that the Cuftom Houfe Officers are the Officers of that Court under the Eye & Diredtion of the Barons & fo accountable for any wanton exercife of power. " The Writ now prayed for is not returnable. If the Seizures were fo, before your Honors, and this Court lhould enquire into them you'd often find a wanton exercife of power. At home they feize at their peril, even with probable Caufe." Otis's The extended fketch of Otis's argument expreffes his legal pofitions argument. no better than Adams's original notes, reprinted in the text, and has been twice printed already, once in 2 Minot's Hift. Mafs. 91-99, and again, with little alteration, in 2 John Adams's Works, 523-525. Fid. fupra, 478, 479- It is therefore omitted here. The Keith MS. is evidently from a more perfe&t copy; but the variations are trifling. The moft important one is in the punctuation of the following paffage, which is thus in the Keith MS.: " I have taken more pains in this caufe than I ever will take again. Although my engaging in this & another popular Caufe has raifed much Refentment, yet I think I can fincerely declare that I cheerfully fubmit myfelf to every odious name for Confcience fake." In the works of Minot and Adams there is a comma after "again," and a period after "Refentment," followed by " But." "Another popular caufe" was doubtless the controverfy between the Province 48 Paxton, poft, Appendix, II. Cur. ad'v. The report in the Keith MS. concludes thus:" The Court fufevult. pended the abfolute determination of the matter." This accords with HutchinJon's accounts. Ante, 4I5, note. Writs of Affiftance. 483 1761. E. Otis's Quotations from Coke on Magna Carta, cap. xxix. i ]~['ULLUS liber homo capiatur, vel imprifonetur, v "1N aut diffeifietur de libero tenemento fuo, vel libertatibus, vel liberis confuetudinibus fuis, aut utlagetur, aut exuletur, aut aliquo modo deftruatur, nec fuper eum ibimus, nec fuper eum mittemus, nifi per legale judicium parium fuorum, vel per legem terrye. Nulli vendemus, nulli negabimus, aut differemus juftitiam, vel rectum." 2 Inft. 45. "This is a beneficial Law, and is contirued benignly," &c. p. 47. - "I [Per judicium parium fuorum.]" ", And it extendeth to the King's fuit in cafe of treafon or felony, or of mifprision of treafon or felony, or being acceffory to felony before, or after, and not to any other inferior offence. Alfo it extendeth to the trial itfelf, whereby he is to be conviAed: but a Nobleman is to be indiAed of treafon or felony, or of misprifion, or being acceffary to in cafe of felony, by an inqueft under the degree of nobility: the number of Noblemen that are to be, *i. e. Tr. triers are, I2 or more.*" p. 49. p " The ill fuccefs hereof," [The St. of II H. 7, c. 3, authorizing Juftices, "' (without any finding or prefentment by the verdiEt of twelve men) by their difcretions to hear and determine all offences and contempts,"] " and the fearful end of thefe two oppreffors," [Empfon and Dudley] "f ould deter others from committing the like, and should admonifh Parliaments, that infiead of this ordinary and precious trial _ Per legem terrce, they bring not in abfolute and partial trials by difcretion." p. 5 I. " If Treafon or Felony be done, and one hath juft caufe of fufpicion, this is a good caufe and warrant in Law for him to arreft any man, but he muft fhew in certainty the caufe of his fufpicion: and whether the fufpicion be juft or lawful, {hall be determined by the Juftices in an A&tion of falfe imprifonment brought by the party grieved, or upon a Habeas corpus, &c." p. 52. " If an affray be made to the breach of the King's peace, any man may by a Warrant in Law reftrain any of the offenders, to the end the 484 Appendix I. 1761. the King's peace may be kept, but after the affray ended, they cannot __oL~C~ be arrefied without an exprefs Warrant." p. 52.'~"2 "'( The like Writ" [of habeas corpus] " is to be granted out of the Chancery, either in the time of the Term (as in the King's Bench) or in the Vacation; for the Court of Chancery is oficina jufticice, and is ever open, and never adjourned, fo as the Subjedt being wrongfully imprifoned, may have jufftice for the liberty of his perfon as well in the Vacation time, as in the Term." p. 53. " Now it may be demanded, if a man be taken, or committed to prifon contra legem terre, againft the Law of the land, what remedy hath the party grieved? To this it is anfwered, Firft, that every A& of Parliament made againit any injury, mifchief, or grievance doth either exprefly, or impliedly give a remedy to the party wronged; or grieved: as in many of the Chapters of this great Charter appeareth; and therefore he may have an adtion grounded upon this great Charter." p. 55.'t~-~ " [Nulli negabimus, aut differemus, &c.]" "Thefe words have been excellently expounded by latter A&s of Parliament, that by no means common right, or Common Law should be disturbed or delayed, no, though it be commanded under the Great Seal, or Privy Seal, order, writ, letters, meffage, or commandment whatfoever, either from the King, or any other, and that the Juflices shall proceed, as if no fuch writs, -letters, order, meflage, or other commandment were come to them. yudicium redditum per defaltam affirmatur, non obftante breve Regis de prorogatione judicii." " That the Common Laws of the Realm should by no means be delayed, for the Law is the fureft fan&uary, that a man can take, and the firongeft fortrefs to prote& the weakeft of all; lex eft tutiafima caflis, and sub clypeo legis nemo decipitur: but the King may ftay his own suite, as a capias profine, for the King may refpit his fine and the like. " All Protedions that are not legal, which appear not in the Regifter, nor warranted by our books, are exprefly againft this branch, nulli differemus: As a Protedtion under the Great Seal granted to any man, direded to the Sheriffs, &c. and commanding them, that they fhall not arreft him, during a certain time at any other man's fuit, which hath words in it, per prerogati'vam noftram, quam nolumus eJe arguendam; yet fuch Protedions have been argued by the Judges, according to their oath and duty, and adjudged to be void." p. 56. " [Juftitiam vel redum.]" s" It is called Right, becaufe it is the beft birth-right the SubjeEt hath, for thereby his goods, lands, wife, children, his body, life, honor, and eftimation are protected from injury and wrong: major hcereditas venit unicuique noftrum a jure, & legibus, quam a parentibus." p. 56. NOTE. In the margin of games Otis's copy of Lord Coke's Second Inifitute, (6th ed. London i68I,) now owned by Mr. George FriJbie Hoar, Writs of Affiftance. 485 Hoar, of Worcefter, the mark 1W is frequently written, especially in 1761. the margin of the twenty-ninth chapter of Magna Charta, and the com- _ mentary thereon, as ihown above. Remembering alfo Otis's reference, as reported by iuincy, to" 29 M." (ante, 56,) it can hardly be doubted that the paffages thus indicated, or fome of them, were cited in the argument upon the Writs of Affillance, though fome of them were alfo referred to in the argument for opening the Courts in I765. Ante, 205207; 2 John Adams's Works, I58, I59, & notes. The reference in the margin to " Trial per Pares" is apparently in Otis's hand; and the words " this ordinary and precious trial Per legem terrae," and " A&ion of falfe imprifonment," are underfcored with ink. This paragraph about trial by jury was a favorite with the patriot lawyers of that time. Compare Adams, arguendo, in Ad'vocate General v. Hancock, ante, 460. There is alfo a mark in the margin of the paffage referred to in Thacher's argument, (ante, 53, 54,) "The Exchequer is an ancient Court of Record for the King's affairs, touching his rights and revenues of his Crown," &c. 2 Inft. 55 I. 486 Appendix I. 1761. F. Contemporaneous Notices in the Boiton Gazette. Monday, i BOSTON, November 23. Wednefday laf, a HearNovember 23. ing was had before the Hon. the Superior Court Report of second hear- C of Judicature then fitting in this County, upon a Petition ing and de- "c of the Officers of the Cuitoms for a Writ of Affiftance cision. <' As this was a Matter in which the Liberty of the People " was moft nearly interefted the whole Day and Evening " was fpent in the Argument. The Gentlemen in favour "of the Petition alledged, that fuch Writs by Law iffued " from the Court of Exchequer at home; and that by an " A of this Province, the Superior Court is vefted with " the whole Power and Jurifdidtion of the Exchequer; and " from thence it was inferr'd, that the Superior Court might " lawfully grant the Petition. " The Arguments on the other Side were enforced with "fuch Strength of Reafon, as did great Honour to the " Gentlemen concerned; and nothing could have induced " one to believe they were not conclufive, but the Judg"ment of the Court immediately given in Favour of the' Petition. (I) " It is probable that very urgent Neceffity for this Writ " was fet forth in the Petition, as fome private Hints had " been given that the King's Officers were fet at Defi"ance - An Affertion which no unbiafed man will believe " to be true, who is either acquainted with the Charader " of the Body of Merchants in this Town, or knows the "powerful influence under which the King's Officers are " protefled. "It is worth obferving, that the Power of the Exchequer " had (I) Q.uincy's Report, ante, 57, acc. Writs of Affiflance. 487 " had never been exercised by the Superior Court, for near 1761. " Sixty Years after the Ad of this Province inverting them } " with fuch Power had been in Force - The Writ, which "was the firft Inftance of their exercifing that Power now " granted, was never afked for, or if afked, was conflantly "deny'd for this long Courfe of Years, until Charles Pax"ton, Efq; whofe Regard for the Liberty and Property of " the Subjed, as well as the Revenue of the King, is well " known, (2) apply'd for it in I754- -It was granted by the " Court in 1756, (3) fub filentio, and continued till the De" mife of the late King - Upon this new Application, it is C" now revived, and no doubt will be of eminent ufe to the " prefent Generation at leaft; otherwise it is not to be pre"fumed the Court would have allowed it -it will never be " looked upon in an indifferent Light; and therefore if it " lives to Pofterity, it will afford to them one firiking Char" a&eriftic, at leaft of the prefent Times, according as they " fhall find the Effefts of it to be, when it may arrive to " more perfeft maturity, whether good or bad." The above report is the only notice in the Bofton Gazette during this year, of proceedings in court concerning the Writs of Affiftance. The italics are in the original. December 7. In the Gazette of December 7th 176I " A FAIR TRADER" fays: " WRIrTS OF ASSISTANCE are now eftablifhed and granted to the Officers of the Cuftoms, who were tho't by many Perfons, to have had full Power Dec. 2I. enough over us before." And on the 2Ift of December the leading article, which is not figned, fays: " Let us then all lend a helping hand to this good work - not only cuftom houfe (2) Kid. ante, 421, note; Pro'vince of Maffachufetts Bay v. Paxton, poft, Appendix II. Governor Bernard, on the x7th of May x764, wrote: " When I firft came to this Government, feizures were much more frequent than they have been for two or three years paft. They were all made by one officer only —Mr. Paxton, the Surveyor of the Port." 3 Bernard Papers, 216. (3) At Auguft term 1755, ante, 407. 488 Appendix I. 1761. houfe officers but others - let ALL apply for writs of affiftance -for it /hall be lawful for ANY PERSON having a writ of affijance from the exchequer - thefe are the words of the at - and there is an exchequer in this province, to all intents and purpofes -a court that can exercife as many of the powers of the exchequer as they pleafe." 1762. The firit article in the Gazette of January 4th I762 January 4- repeats with fuch clearnefs and power the very grounds taken by the counfel againit the writ, as almoft to compel the inference that it was from the pen of one of them; and at that time 7ames Otis was a frequent contributor, both in his own name, and anonymoufly. No further reafon is neceffary for printing the whole article. CC To the PRINTERS. Statement Q "INCE the advancement of fo great a lawyer as the againum thent Hn. Mr. H-TCH-NS —N to the firfl — f —s feat, (4) Writs. "it would be deem'd the higheft impertinence for any " one to exprefs the leaft furprize, that the Superior Court "of this province, fhould after Jolemn hearing, adjudge " themfelves authoriz'd to grant Juch a writ, as the WRIT " OF ASSISTANCE; or even to doubt, whether by law, " they have power fo to do: I hope however, I may fay " without offence, efpecially as I am inform'd that this " writ is not yet given out, (5) that I heartily wifh it never "may — " It feems neceffary to preface all our objedions againft "fuch a power being given to the cuftom-houfe officers, " with (4) Vid. ante, 410, 4II. And add, to the references there given, Hutchinfon to John Remington, March 27, I767, 26 Mafs. Archives, 272; Judge Trotwbridge, April 19, I775, quoted in Eliot's Biog. Ditd. 274, note. (5) It had alually been iffued to Paxton a month before, (ante, 4I8,) but had perhaps not yet been iufed. Writs of Affifiance. 489 "with a formal declaration againfi an illicit trade; for to 1762. " bear any fpirited teftimony againft their abufe of power, "and efpecially to offer fuch abufe as the ftrongeft reafon "why they ought not to be trufted with more, has been "reprefented by there very perfons and THEIR PATRONS, as " if we had combin'd to break thro' all the juft reftraints of " the laws of trade, and to force a free port. —I do there" fore from principle declare againft an illicit trade; I would " have it totally fuppreff'd, with this provifo only, that it "may have the fame fate in the other governments; other" wife all the world will judge it unequitable: it is becaufe "we only are feverely dealt with, that we complain of un" reasonable treatment; and the writ of affiftance, being a "further degree of feverity will give us ftill further reafon " to complain — " BUT it is not trade only that will be affeded by this "new feverity: every houfholder in this province, will " neceffarily become lefifecure than he was before this writ "had any exiftence among us; for by it, a cuJiom houfe " of cer or ANY OTHER PERSON has a power given him, with "the affijance of a peace officer, to ENTER FORCEABLY into a " DWELLING HOUSE, and rifle every part oJ it where he fjall' PLEASE to fufpel7 uncuflomed goods are lodgd! - Will any "man put fo great a value on his freehold, after fuch a " power commences as he did before? - every man in this "province, will be liable to be infulted, by a petty offcer, " and threatned to have his houfe ranfack'd, unlefs he will " comply with his unreafonable and impudent demands:'Will "any one then under fuch circumftance, ever again boaft " of britijh honor or britijh privilege? - I expel that "fome little leering tool of power will tell us, that the pub" lick is now amuf'd with mere chimeras of an overheated "brain; (6) but I defire that men of underifanding, and " morals, (6) The very expreffion ufed by Otis at the firft argument- " This wanton exercife of this power is not a chimerical fuggeftion of a heated brain," ante, 475, note 28. 62 490 Appendix 1. 1762. " morals, would only recolled an infrance of this fort;''~ " when a late comptroller of this port, by virtue of his "writ of ajqfance, FORCEABLY enter'd into and rummag'd " the houfe of a magit/rate of this town; and what render'd " the infolence intollerable, was, that he did not pretend a " fufpicion of contraband goods as a reafon for his conduct, " but it was only becaufe the honeft magiftrate had a day " before taken the liberty to execute a good and wholefome " law of this province againif the comptroller. - (7) " IT is granted that upon fome occafions, even a brittijh "freeholder's houfe may be forceably opened; but as this C" violence is upon a prefumption of his having forfeited his " fecurity, it ought never to be done, and it never is done, "' but in cafes of the moft urgent neceffity and importance; (8) C"and this neceffity and importance always is, and always " ought to be determin'd by adequate and proper judges:;" Shall fo tender a point as this is, be left to the difcretion C" of ANY perfon, to whomfoever this writ may be given! " fhall the jealoufies and mere imaginations of a cuftom "'houfe officer, as imperious perhaps as injudicious, be C" accounted a fufficient reafon for his breaking into a free" man's house! what if it fhall appear, after he has put a "family which has a right to the King's peace, to the "utmoft confufion and terror; what, if it fhould appear, " that there was no julf grounds of fufpicion; what repara" tion will he make? is it enough to fay, that damages may "be recover'd againfi him in the law? I hope indeed this " will always be the cafe; - but are we perpetually to be " expof'd to outrages of this kind, & to be told for our only " confolation, that we mulf be perpetually feeking to the " courts of law for redres? Is not this vexation itelf to " a man of a well difpofed mind? and befides, may we not " be infolently treated by our petty tyrants in Jome ways, for " which the law prefcribes no redrefs? and if this ihould be " the (7) Cafe of Walley 8; Ware, Otis, arguendo, ante, 476, note 29. (8) S. P. Otis, arguendo, ante, 47. Writs of Affiftance. 491 "the cafe, what man will hereafter think his rights and 1762. " privileges worth contending for, or even worth enjoying.,. " THE people of this province formerly upon a particular " occafion afferted the rights of englijhmen; and they did it "with a fober, manly fpirit: they were then in an infulting " manner afked' whether englifh rights were to follow "' them to the ends of the earth' (9) we are now told, "that the rights we contend for'do not belong to the "' Englifh'- thefe writs, it is faid,' are frequently iffued "' from the exchequer at home, and executed, and the' " people do not complain of it - and why fhould we de"' fire more freedom than they have in the mother counc"' try'-fuch is the palliating language of the great patrons:" of this writ -and who claims more liberty than belongs " to us as Britijh fubjeds? we defire no Securities but " fuch as are deriv'd to us from the britijh coniritution, " which is our glory - no laws but what are agreeable to "the true fpirit of the britijh laws, to which we always " have, and I hope always fhall yield a chearful obe" dience (IO) - there rights and fecurities, we have with "other britijh fubjeds glorioufly defended againit foreign " invafions, and I hope in God we fhall always have fpirit " enough to defend them againft all other invafions. - Is " there then any exprefis ad of parliament authorizing the " exchequer to iffue fuch writs? for if there is not plain " law for fuch a power, the praStice of one court againJt " law, or which is the fame thing, without law, can never " be deem'd a good precedent for another, allowing there is "no reafon to doubt, the one is legally veited with all the c" power and jurifdi~dion of the other: but if ALL this be C matter of uncertainty, ought it not then forever to be de" termin'd (9) By the Judges prefiding at the trial of John Wife and other inhabitants of Ipfwich, in x687, for denying the validity of a tax affefIed by Andros and his Council without an affembly. Felt's Hilt. Ipfwich, I24. Wafhburn's Jud. Hit. Mafs. io6. (Io) Compare the accounts of Bernard, Hutchinfon, and Chief Juffice Marbhall, ante, 430, 434-437, notes. 492 Appendix I. 1762. "termin'd in favor of common right and liberty? and would " not every wife man fo determine it? ( I ) " BUT admitting there is fuch a praftice at home, and "that it is not difputed, even at this time, when there "is fo warm a fenfe of liberty there; it may neverthelefs "be an Infringement upon the conftitution: and let it be "obferv'd, there may be at fome times a neceflity of con" ceeding to meafures there, which bear hard upon liberty; " which meafures ought not to be drawn into precedent " here, becaufe there is not, nor can be fuch neceflity for " them here; and to take fuch meafures, without any necef" fity at all, would be as violent an infradion on our liber" ties, as if there was no pretence at all to law or precedent.:" It is idle then, to tell us we ought to be content under " the fame reftrifdions which they are under at home, even " to the weakning of our bejt? Securities, when it is tolerated "then only thro' necefity, and there is no neceflity for it "here. -In England Something may be faid for granting " thefe writs, tho' I am far from faying that anything can c"juftify it. In England the revenue and the fupport of " government, in fome meafure, depend upon the cuftoms;:" but is this the cafe here? are any remittances made from:" the officers here? has the king's revenue, or the revenue "' of the province ever received the addition of a farthing, "from all the colledtions, and all the feizures that have " been made and forfeited, excepting what has been remit" ted by the late worthy collector Mr. B-r —ns? (2) - I "affert nothing: but if no benefit accrues to the publick, "either here or at home, from all the monies that are "' receiv'd for the ufe of the publick, Is not this PECULATION? " and (II) Compare Otis's arguments, in February-" Better to obferve the principles of law than any one precedent" (ante, 473) - and in November -" It is worthy confideration whether this writ was conftitutional even in England, and I think it plainly appears it was not," ante, 55. See alfo Thacher's argument, ante, 52. (I2) Compare Bernard's and Paxton's accounts of Barons, ante, 425, 426, note. Writs of Affiftance. 493 " and what reafon can there be, that a free people fhould be 1762. "expof'd to all the infult and abufe, to the rifque and even " the fatal consequences, which may arife from the execution "of a writ of afliflance, ONLY TO PUT FORTUNES INTO " PRIVATE POCKETS. " I defire it may be further confider'd, that the cuftom " houfe officers at home, are under certain checks and reJric" tions, which they cannot be under here; and therefore the "writ of affiftance ought to be look'd upon as a different " thing there, from what it is here. (13) In England the " exchequer has the power of controuling them in every " refpeft; and even of inffliing corporal puniZhment upon " themfor mal-condt&W, of which there have been infiances; "they are the proper officers of that court, and are ac" countable to it as often as it fhall call them to account, "and they do in fad account to it for money receiv'd, and " for their BEHAVIOR, once every week — fo that the people " there have a fhort and eafy method of redrefs, in cafe of " injury receiv'd from them: but is it fo here? Do the "officers of the cuftoms here account with the Superior "Court, or lodge monies received into the hands of that "court; or are they as officers under any fort of check " from it? - Will they concede to fuch powers in the Su"perior Court? or does this court, notwithftanding thefe " are powers belonging to'the exchequer - notwithitanding " it is faid to be vefted with ALL THE POWERS belonging to "the exchequer — and, further, notwithifanding this very " writ of afiftance is to be granted As a power belonging to:" the exchequer, will the Superior Court itfelf, affume the "power of calling thefe officers to account, and punifh "' them for mifbehavior? It would be a fmall confolation, " if we could have one initance: Have we not feen already, "ONE of thofe officers, and he an inferior one too, REFUSI ING to account to any power in the province, for monies "receiv'd by him by virtue of his offce, belonging to the " province, (13) Compare ThZacber's argument, ante, r6. 494 Appendix I. 1762. " province, and which we are affured by the JOINT DECLAC "RATION of the three branches of the legiflature is UNJUSTLY " as well as illegally detain'd by him? (4) Does not every " one then fee that a writ of afliftance in the hands of a " cuftom houfe officer here, is in reallity a greater power & " more to be dreaded, than it is in England? greater be" caufe UNCONTROUL'D — and can a community be fafe "C with an uncontroul'd power lodg'd in the hands of fuch "officers, fome of whom have given abundant proofs of the "danger there is in trufting them with ANY?" (I5) (14) Prorvince v. Paxton, pofit, appendix II. (i5) There is alfo a communication upon the extent of the duty of aflifling cuftom houfe officers in executing Writs of Affitlance, occupying a column in the Gazette of February 22d, Ir62. See alfo "' Journal of the Times" in Boflton Evening Poft of June 26, 1769. Writs of Affifiance. 495 G. Subfequent Aftion of the General Court. 1762. A T the next feffion of the General Court, on the 22d of February I762, the following bill was introduced and paffed to be engroffed in the Council: " An A& for the better enabling the Officers of his Propofed " Majefty's Cuftoms to carry the Ads of Trade into Ex"ecution. " Whereas it is the Defire of this Court, that the Of" ficers of his Majefty's Cuftoms in this Province may be "'affifted in the due Execution of their Office, for the "fecuring his Majefty's Dues, and for the preventing of " Fraud: " Be it enadled by the Governour, Council and Houfe " of Reprefentatives, That upon Application of any of the " Officers of his Majefty's Cuftoms in this Province, im" powred by Commiffion to feife upon Oath made to the C; Superiour Court of Judicature, Court of Affize, and Gen"- eral Goal Delivery, or to the Court of General Seffions of " the Peace, or to the Inferiour Court of Common Pleas, "or to either of the Juftices of faid Courts, or to any one " of his Majefty's Juftices of the Peace of the County, that " he has had Information of the Breach of any of the Ads "of Trade; and that he verily believes or knows fuch "Information to be true; it fhall be lawful in every fuch Cafe, for fuch Court or Juftice, to whom Application may " be made as aforefaid, upon reducing fuch Oath to Writ"ing, with the Name of the Perfon [Informing and the " place] informed againit, and not otherwife, to iffue a Writ "or Warrant of Affiftance, which Writ or Warrant of " Affiftance fhall be in the Form following and no other, <' Vizt "~ ifs. 496 Appendix I. 1762. c" fs. To the Sheriff and Coroner of the County "-C of and to their refpeftive deputies; and to the "'refpetive Conftables of the Town of in faid " County - Greeting. " Whereas A. B. of his Majefty's Cus" toms, hath this Day made Complaint on Oath, That " (fetting forth the Complaint and Oath with the name C"of the Perfon complained of) You and every of You " in his Majefty's Name, upon Sight thereof, are ftri&tly "' Commanded to be aiding and affifting to the faid A. B.' in the due Execution of his Office relating to the In-:"formation aforefaid. Hereof fail Not at your Peril, and " make Return of this Warrant and of your Doings there" on unto myfelf in feven Days from the Date hereof. " Dated at B. the Day of In the " Year of his Majefty's Reign: Anno Domini " And be it further enadted, That it fhall be lawful for " any Perfon or Perfons authorized by Writ or Warrant " of Affiftance, in matter and Form as aforefaid, and not " otherwife, in the Daytime to enter and go into any " Houfe, Shop, Cellar, Warehoufe, or other Place; and " in Cafe of Refiftance, to break open Doors, Chefts, "Trunks and other Packages, them to feize and from'"thence to bring any Kind of Goods or Merchandize " whatfoever prohibited and unaccuftomed there found and "them fecure. And all his Majefty's good Subje&s are " required to be aiding and affifting in the due Execution C" of faid Writ or Warrant of Affiftance, and all fuch fhall' hereby be defended and faved harmlefs." The bill was alfo paffed through all its ftages by the Houfe, with the amendment inclofed in brackets in the third paragraph, (fupra, 495,) and was returned to the Council on the 6th of March, and there paffed on the fame day. () After the bill had been fent up from the Houfe, the (I) 66 Mafs. Archives, i9I. Journal H. R. I76i-2, pp. 27I, 278, 292, 294. Writs of Affiftance. 497 the Governor fent a meffage to the Houfe that he had 1762. figned certain bills, of which this was not one; and the Houfe thereupon fent a meffage to the Council by 7ames Otis to inquire if they had paffed on this bill, and the Council returned a meffage to acquaint the Houfe that the Council had pafled it to be enadted.(2) At a Council held on the 6th of March I762, " His Ex- Opinion of cellency informed the Council that he had a Bill laid before the Judges. him for his content intituled an A&d for the better enabling the Officers of his Majefty's Cuftoms to carry the A~ds of Trade into Execution which appeared to him to be repugnant and contrary to the Laws of the Realm and particularly to the Adc of Parliament of the 7th and 8th of William the Third Chap: 22, in purfuance of which Ad the Judges of the Superior Court heretofore granted Writs of Affiitance to the Officers of the Cuftom Houfe, Wherefore he thought proper in Council to take the opinion of the Judges upon this Queflion, "Whether if this Bill fhould be enadted, The Superior Court as a Court of Exchequer could (confiftently with fuch Ad) grant a Writ of Affiftance in purfuance of the Adt of Parliament of the 7th and 8th of William the Third in the fame manner as if fuch Bill was not enadted. "I The Judges having the Queftion in Writing given to them retired into the Lobby, and foon after returning, unanimoufly declared their opinion, " That if this Bill ihould pafs into a Law the Superiour Court would be refirained from granting a Writ of Affiftance in the manner they have heretofore done and in the manner fuch Writs of Afliftance are granted by the Court of Exchequer in England."(3) On the 6th of March the Governor prorogued the Gen- Governor's eral disapproval. (2) 24 General Court Rec. 316, 317. (3) Council Rec. 1762, fol. I I. 63 498 Appendix I. 1762. eral Court, after making a speech to the two Houfes, in ~~ which he gave thefe reafons for refufing to fign this bill: " I have had a Bill laid before me, which I have not "Power to pafs to be enadted, I mean the Bill Intituled "' An A& for the better enabling the Officers of his Maj" efiy's Curtoms, to carry the Adts of Trade into Execution;' " which is so plainly repugnant and contrary to the laws " of England, and particularly to the Adt of Parliament of " the feventh and eighth of King William the Third, Chap"ter twenty-fecond, that if I could overlook, it is impoffi" ble it fhould efcape the Penetration of the Lords of Trade: " In such Cafe, if I was to tranfmit this Bill as paffed here, " it would have no other Effe& than to give a Proof of my "Ignorance of my Bufiness, and your Inattention to the " Conditions upon which we are intrufted with the Power " of Legiflation." (4) Hutchin- (4) Journal H. R. 176I-2, p. 299. The Chief Jutlice wrote the fon's account. fame day to Mr. Bollan, the agent of the Province in England: " This Vessel tarrying longer than expeaed gives opportunity of acquainting you that troublesome feffion of the General Court is at an end. The Governor for the fake of peace complied, I think, farther than he would otherwife inclined to have done with the oppofers of government & found by experience the truth of Sir R. Walpole's faying that one expedient makes neceffary a great many more and to-day they prefented him a bill refiraining the Superior Court from iffuing writs of affiftance except upon fpecial information to a Cuftom houfe officer oath being firil made, the informer mentioned & the perfon fuppofed to own the goods & the place where they were fufpedted to be concealed. You will not imagine it poffible for him to have figned fuch a bill and after requiring fuch of the Juflices of the Superior Court as were in town to give their opinion upon fome points he refufed it." 26 Mafs. Archives, 8. Bernard's On the I3th of April, the Governor wrote to the Lords of Trade as account. follows: "I flhall in this aquaint your Lordfbiips with my rejedting a Bill of a very popular conftru&ion & my reafons for & manner of doing it. The Bill, of which I here inclofe a Copy, was the lait Effort of the Confederacy againft the Cuftomhoufe & Laws of Trade. The intention of it was to take away from the Officers the writ of Affiftance granted in purfuance of the AAt of Will. 3; & fubflitute in the room of it another Writt which would have been wholly inefficacious. This was covered with all the Art which the thing was capable of: but I was too Writs of Affifiance. 499 too well acquainted with the Subjea to be deceived in it. I had not 1762. the leaft doubt, upon the firft reading of it, of rejecing the bill. Never- thelefs as it was very popular; & I knew that the negativing of it would occafion a clamour, I gave it a more folemn condemnation than it deserved; the manner of which will appear from the enclosed Copy of the A&t of Council. This anticipated all objections & reduced the popular cry to a murmur only, which foon ceafed, & I believe there is now a total end to this troublefome Altercation about the Cuftom houfe Officers." 2 Bernard Papers, 58. See alfo Bernard to John Pownall, April 25, and to Lord Barrington, May I, 1762, lb. I86, i88. 500 Appendix I. H. Writs of Affiftance in other Colonies. W rRITS OF ASSISTANCE do not appear to have been granted in any of the Colonies except Maffachufetts and New Hampfhire, until after the paffage of the St. of 7 G. 3, c. 46, and even then they were refufed almoft everywhere. (i) 1. New Ilampjhire. 1w762. _~"~.,' At May term 1762 in Rockingham County of the Supeasirew rior Court of Judicature of the Province of New HampHampshire. fhire. /hire. "Upon the motion of the Hon'ble John Temple, " Esqr, Surveyor General of his Majefty's Cuftoms, &c. " Defiring that Writs of Affiftants might Iffue from this " Court (to the Colle6tor of his Majefty's Cuftoms) for " that part of the port of Pifcataqua that is within this " Province - It is confidered that fuch a Writ iffue ac"cording to the faid motion when applyed for by the " faid Colle&or." (2) 2. Conne'ticut. (I) Hutchinfon to Jackfon, May I, 1765, 26 Mafs. Archives, r38. Opinion of Attorney General De Grey, Auguft 20, 1768, ante, 453Chief Jullice- Trumbull to W. S. Johnfon, June 14, 1769, infra, 503. John Adams to Calkoens, October 4, 1780, 7 John Adams's Works, 267. " We are well informed, that the officers of the cuftoms applied the laft year to the chief jutlice or bench of judges, in feveral of the colonies, for granting them writs of affiftance, but that thofe juftices from a tender regard to the conftitution, and the rights of American freeholders, did a&ually refufe a compliance with thofe demands." "Journal of the Times," of April 29, 1769, in Bofton Evening Poft, of June 26, 1769. (2) The writer is indebted to the kindnefs of the Honorable Samuel D. Bell, Writs of Affiftance. 501 2. Connelticut. 1768. No application to the Superior Court of Connefdicut for Conne&icut. Writs of Affiftance appears to have been made until after the paffage of the St. of 7 G. 3, c. 46, when in March I768 "' Upon the Petition of Duncan Stewart, Colledtor, and Thomas Moffat, Comptroller, of his Majefty's Cuftoms For the Port of New London, Efquires, requefting this Court to grant them Writs of Afliftance purfuant to the fpirit and true meaning of the A dt of Parliament therein referred to — And no information being made by faid Petitoners, or otherwife, of any fpecial occafion for faid Writ -This Court is of Opinion that it is needful to confider or the purport of faid A&s, and the manner and form of granting fuch Writs of Affiftance, according to the ufage of his Majefty's Court of Exchequer: Therefore this Court wil further confider and advife thereon." (4) " An D. B:ll, Chief Juftice of New Hampfhire, for a copy of this record, to whici his attention was firfi dire&ed by a notice dated " Province of New lIampflsire, July I5, 1762," and published in the Bofton Gazette of Jul3 26, I762. (4) 4tuart's Life of Trumbull, 79. This " court record," as Mr. Stuart calls it, " muft have been a private memorandum, or loofe file, which ht found perhaps among Gov. Trumbull's MSS., for it does not appear ou the records proper," as the writer has been informed by Mr. y. Hammond Trumbull, to whom he is indebted for the copy (infra, 504,) of tbe fubfequent motion, and other faEts relating to Writs of Affiftance n Connedticut. On the 3d of March 1768, Hutchinfon wrote to Jackfon: " The Commiffionrs fhewed me a letter from fome of their Officers in ConneAicut, wh by dire&ion had applied to the Superior Court for Writs of Affiftanceagreeable to the late A& of Parliament. The Officers fay they wererefufed & that the Chief Juftice gave as a reafon that the Court we of opinion fuch writs were unconititutional. The Officers are otlered to make a more formal application & to obtain the Anfwer of he Court in writing." 26 Mafs. Archives, 296. " It is faid the grad Penfioner, always ready with his Council, has advifed the C- m- -— rs to remonftrate Home againft the Civil Authority of Cone&icut, for declining to iffue Writs of Affiflance for a General Search of contraband Goods, in the bafe unconftitutional Manner 502 Appendix I. 1769. A fimilar application was made at April term I769 at " " Norwich, fupported by the opinion of Attorney General De Grey; Manner they have been granted in another Province. Perhaps the fame Advice may be given relative to the Chief J-ft-ce of Philadelphia, who we hear has alfo a&ed in a like worthy Manner upon a fingular Demand." Borton Gazette of Auguft I5, 1768. Immediately after the application in the text, Governor Pitkin wrole to William Samuel YohnJbn, then an agent of the Colony in England, afling him to " Tranfmit an Account Relative to Writs of Affiftants iffued under the Seal of his Majefty's Court of Exchequer: in what Manner application is made in order to obtain them, and whether general W;rrants are iffued &c &c." Pitkin to Johnfon, March II, I768, 2 Trunbull MSS. I69, in Mafs. HiPt. Soc. Lib. Johnfin replied: " I hive made all the enquiry I could, fince I received your Letter, concerring Writs of Affiftance to Cuftom Houfe Officers, but cannot yet perfiAly fatisfie myfelf with refpeE6 to them. It is furprifing how little Attertion Gentlemen here pay, & how flender Intelligence they can give out, relative to things not Immediately within their own departments It feem'd to be clearly the Opinion of feveral Lawyers, that I fpok, with upon the fubjeEt, that they were not Iffued but in particular Cafes, and upon Information on Oath, not in general Terms, nor to be male ufe of as general Warrants, at the Difcretion of the Officer, which a)peared to me to be the only legal and reafonable Method. But upon ipplication to the Clerks of the Excheqr for Copies of the ufua Writs Iffued here in Cafes of this Nature, they have furnifh'd us witl the enclofed, which you will fee are very general, and not groundedupon any particular Fact, or Information, & they add, that all the addtional Infiruction, befide what the Writs exprefs & dire&, is, that.he King's Officer, take unto him a Peace Officer, if he breaks open an' Houfe or place. I am not fatisfied however that this ought to be the Poceedure in Conned6icut; nevertheless I tho't it expedient to forward hefe Copies to you, as foon as I could, but shall continue to make father enquiry into this matter, and if anything material Occurs, it shal be immediately communicated to you." Johnfon to Pitkin, July 2, 5768, Johnfon's letters in fame Colleition, 97, 98. Roger Sherman also wrote to Yohnfon, informing him f the refufal to grant the writs. 6 Bancroft's Hift. U. S. 279. And YJrnfon replied on the 28th of September: " I can add nothing material o what, you will fee, I have faid to his Hon' the Govt upon the Subje6of the Writ applied for by the Cuftom Houfe Officers. It feems it iin Practice here, tho' how it can have exifted, fo long as it has, I amit a lofs to Determine. It is certainly of a dangerous Nature.'The Revenue Laws have Writs of Afliftance. 503 De Grey; (5) and renewed at May term at Hartford, in the 1769. following form: "Colony have all of them, I think, too much of the Arbitrary in them, & too lfrongly tend to Defpotifm. You juftly ObjeEt, that the officer might as well be Authorized by his Commiffion as by fuch a Writ, to which they Anfwer that he has fuch Authority, & that the ufe of the Writ, & the Attendance of the Civil Officer is only to preferve the Peace, which the Revenue Officer has not the Authority to Command, sho'd any diflurbance happen. The Intention of this Provifion is therefore, plainly to bring the Common Law in Aid of the Revenue Laws, & to give the latter, all that Countenance & Sanction, which may be derived from the former." Letters & Papers I761-I776, fol. 83, in Mafs. Hift. Soc. Lib. See alfo Johnfon to Trumbull, September 29, 1769, Stuart's Life of Trumbull, 8o. In May 1768, an attempt made in the legiflature of Conne6ticut to remove Trumbull, who was alfo Lieutenant Governor, from the office of Chief Juftice, on the ground of the importance of Separating the judiciary from the other branches of government, was defeated, " upon mature deliberation of the whole matter; the affair of general warrants lying in the fituation they are now in, and danger of difficulties from many quarters, jealoufies and uneafinefs of the people, and the like." Conne6ticut Courant, December I768. (5) Ante, 453, The writer of the " Journal of the Times," under date of April 29, I769, fays: " The C-1 —— r of the port of New-London in Conne&ticut, has lately applied a fecond time to the fuperiour court there for fuch writs; at the fame time laying a letter before them, which he had received from one of the crown lawyers in England in anfwer to one wrote upon the fubje&t, in which letter a great compliment was paid to the chief jufiice of the Maffachufetts, for the proof he had given of a right underifanding of the law, and of his zeal for his Majefty's fervice, by fo readily granting thofe writs, upon the application made by the cuftom-houfe officers; and his example was recommended as worthy of their imitation. The court did not however think proper to show a like complaifance, but chore to refer this requeft, to the confideration of their general affembly at the approaching fefflon." Bofton Evening Poft of June 26, 1769. "At April 1769 term laf at Norwich, Mr. Stewart," the Colleetor, as we learn from Chief Juftice Trumbull, " made further application to the Superior Court for fuch Writs; and produced Forms of fuch from the Board of Commiffioners as they judged proper for us to give, with the Cafe per Mr. De Grey. To which the Court replied, that they would be further advifed, and as the Seffions of the General Affembly was near, they fhould aik their advice and dire&ion. Accordingly the matter 504 Appendix I. 1769. " Colony of Connecticut' "Hartford County fs. May 23d, A.D. 1769. "To the Honourable Jonathan Trumbull Esqr Chief "Juftice: Robert Walker, Matthew Griswold, Eliphalet " Dyer, and Roger Sherman, Esquires, Affiftant Juftices of "his Majefty's Superior Court of Judicature within for " faid Colony: " May it pleafe your Horours. "At the requeft of David Lifle Efqr Solicitor of his "Majefty's American Cuftoms, fignified to me by letter of " the 9th initant, I am now to defire and move your Hon"ors that a final and judicial determination be had, con-' cerning the iffuing of Writs of Afliftants to the Officers " of his Majefty's Cuftoms within the faid Colony, in con"fequence of their motion heretofore made for that pur"pofe. I" THOMAS SEYMOUR, " Attorney for Our Lord the King, " within and for the County of Hartford." (6) 3. Rhode ter was fully laid before them. They appointed a Committee to confider the letters &c. laid before the Affembly. Within their province fell this matter, and they advifed that the Affembly take no notice of it; that it properly belonged to the Superior Court; that, as individuals, not as members of the Affembly, they advifed the Court not to grant fuch Warrants, which feemed to be the univerfal opinion." Trumbull to Johnfon, June I4, 1769, Stuart's Life of Trumbull, 80o, 8r. (6) 1" Since this," Chief Juftice Trumbull continues, " Mr. Seymour, as Attorney for the King, by dire&tion of the Board of Commiffioners, has made application to me for a Judicial Determination on the Matter. I have given him no anfwer, nor do I intend giving any till the Next Term, which now foon comes on. " I have taken care to find what the Courts in the other Colonies have done, and find no fuch Writs have been given by any of the Courts except in Maffachufetts and New Hampfhire, where they were given as foon as aiked for. I believe the Courts in all the other Colonies will be as well united, and as firm in this Matter, as in anything that has yet happened between us and Great Britain. "I have never yet feen any AEt of Parliament authorizing the Court of Writs of Affiftance. 505 3. Rhode Ifland. 1769. An examination of the records and dockets of the Probably Supreme Court of Judicature of the Colony of Rhode refufed in Ifland Rhode Ifland. of Exchequer in giving fuch Writs as they give, but conceive they have crept into ufe by the inattention of the people, and the bad praftices of defigning men. We are direted to give fuch writs as the Court of Exchequer are enabled by A& of Parliament to give, which are very different, as I conceive, from fuch Writs as they do give. Our Court will on all occafions of complaint grant fuch Warrants as may be neceffary for promoting his Majefty's fervice, and at the fame time confiftent with the liberty and privilege of the fubjedt, and made returnable to the court; but further than that we dare not go, and they muff not expe&t we thall." Trumbull to Johnfon, June [July?] 14, I769, ub. fup. Johnfon, in a letter dated " Weftminfter, Octor i6th, 1769," acknowledging the receipt of a letter from Trumbull of July x4th, wrote: "' The Intelligence, you have favour'd me with, of the Steps which have been taken relative to Writs of Affiftance, is very obliging, as well as ufeful to the purpofe you mention. It gives me pleafure to find that it is fo probable that the Courts of the other Colonies will be agreed with you in this important point. Union in this, as in everything elfe, is of the laft Importance. If an United Stand is made upon this occafion, I think it extremely probable that this capital Point will be carryed without much difficulty; & it will be a very great fatisfadtion, & not a little redound to their Honour, that the Supr Court of ConneEticut have taken the lead in a matter of fo much Confequence to the Liberty, the Property, and the Security, of the Subje&t. The Example of the Courts of the Maffachufetts Bay and N: Hampfhire ought not to Influence the Courts in the other Colonies. It is eafy to Account for their Conduft. But of them it is mofi Candid to fay that they were furprifed into this Injudicious Step, & to fuppofe that they wifh it were now Res Integra & to do again, that they might Unite with their Brethren throughout the Continent in making a neceffary & noble Stand againft fo dangerous an Encroachment upon the Rights of a free People." Johnfon's Letters, 2I7, 218. Although we have no record of the fubfequent a~6ion of the court, yet we can hardly fail to infer from the letters above quoted that the writs were ultimately refufed; efpecially when we remember that the Chief Juftice and two of his affociates, GrifJwold and Dyer, were among the aftif ants who had left the Council Chamber in I765 to avoid wit neffing the taking of the oath to execute the Stamp A& by Governor Fitch; Stuart's Life of Trumbull, 9, 92; and that a third, Roger Sherman, told Yohn Adams a few years later, that "he read Mr. Otis's 64 Rights 0o6 Appendix I. 1769. Ifland 1761-1769, which feem to be quite complete, dif"'~""~-' clofes no trace of Writs of Affifance; and the only papers upon the fubjed are among the files of March term I769, and confift of the opinion of Attorney General De Grey (printed ante, 452-454) and of a letter from the Solicitor of the Board of Cuftoms in Boffon to the Attorney General of Rhode Ifland, defiring him to move the Superior Court for Writs of Affiftance to the officers of the cuftoms there. (7) 4. New rork. Rights &c. in 1764, and thought that he conceded away the rights of America," and " thought the reverfe of the declaratory aA was true, namely, that the Parliament of Great Britain had authority to make laws for America in no cafe whatever." 2 John Adams's Works, 343. (7) This letter, which is in a different hand from the fignature, and feems to have been a circular prepared by order of the Commiffioners of Cufioms in BofRon to be tranfmitted to all the Colonies, (ante, 455; infra, SIo,) is as follows: "Sir "' I am directed by the Comiffioners of His Majeflys Cufloms to "tranfmit you the Form of a Writ of Afliffants to the Officers of the "Cuftoms, as iffued by the fuperior Court here; likewife blank Forms "of the Writ, and a copy of the Opinion of the Attorney General in "England in relation thereto; and I am to defire the Favour of you "to move the fuperior Court of your Province that Writs of Affiftants "may be iffued to the Officers undermentioned, and from time to time *' to fuch Officers as the Board may dire&t to apply for the fame, by " their Solicitor. I am, Sir, " Your mofd humble fervant " D. LIsLE, Solicitor to the American Customs "Bofton March I6th I769 "Charles Dudley Efqr ColleAor " John Nicholl Efq. Compt. "Nicholas Lechmere Efq5 Searcher. "Mr. Attorney General of Rhode Ifland." The following letter from the Chief Juftice of Rhode Ifland to Chief Juftice irumbull (2 Trumbull MSS. 222, in Mafs. Hiut. Soc. Lib.)fhows that the Writs were not granted immediately; and, taken in connection with the ftate of feeling in Rhode Ifland (ante 436, 437) and the want of any evidence of any aEtion of the Court upon the fubjeEt, makes it probable that none were ever iffued. " South Kingflon Aug. 7th 1769 "Sir "Judge Rufell did me the Honor to tranfmitt me your Letter to him "of Writs of Affiftance. 507 4. New York. 1768. " Thurfday the Twenty eighth day of April, J768. " Prefent "The Hon6ble Daniel Horfmanden Efq. Chief Juftice. "The Hon6ble David Jones Efquire fecond Juftice. "The Hon6ble William Smith Efquire third Juftice." " On the application of Andrew Elliot Efquire Colledtor Granted in " and Lambert Moore Efquire Comptroller of his Majefty's New York. " Cuftoms of the Port of New York, for Writts of Affift" ants to themfelves and the other Officers of the faid Cuf-:" toms, " of the x4th June laft refpecting Writs of Affiftants to the Cuftom "Houfe Officers. As I was then but juft nominated in the Court, had "not seen M. De Greys State of the Cafe, nor had any opportunity of "converting with any One of my Brethren; I did not return your " Honor an Anfwer. And indeed Sir I remain juft in the fame Situa"tion, without having had an Opportunity of Information in any One " Point; fo that it is impoffible for me to fay what will l:, be the " Determination of the Court, efpecially as there are feveral new Mem" bers with whom I never converfed on the Subjet. The Cafe hereto"fore in the year I767 was moved in our Court, who then put of the Determination, making the fame Excufe as you did in Connecticutt: "had it been then determined I am very fure it would have paffed in'the Negative. "Should it be found on Examination that the Writ ought to be "granted, I think there can't be much in the Objedtion that it may be "mifufed & the Offenders efcape with Impunity; to fuppofe a Court " authorized to grant a Writ, and not have Power to punifli the abufe "of it, to me appears a "'olecifm. "' Mr Trumbull who did me the Favor of yours from MR Rujell told " me that Col~ Dyer was bound on a Journey to the Weftward, & "that he intended to take the Opinion of the Judges there; As I think "with you' that Union of Sentiment & Prad}ice of the Court of each "Colony is needful on this Occafion' I beg the Favor of you to let me "know the Opinion of the Judges in the weftern Colonies, as well as "thofe of your Court. Our next Term will be at Newport the firfi "Monday in September. "I am with great Refpe&_ "Sir your moft hble & obedient Servant "J. A. HELME. "The Honble Jonathan Trumbull Esq" 508 Appendix I. 1768. "toms, agreeable to an At of Parliament made in the > ~ ~ "Seventh Year of his prefent Majefty's Reign: It is "ordered by the Court that Writts of Affiifants iflue to "the Officers of his Majefty's said Cuftoms Severally, ac" cording to the diredions of the faid A6d." (8) 5. New Jerfey. Probably not Even the St. of 7 G. 3, c. 46, did not remove the granted in difficulties in the way of granting Writs of Affiftance in New Jerfey. New Jerey; (9) and as the records of the court there, which are in quite a perfet ftate, contain no evidence of any writs having been iflued (Io), it feems likely that thofe difficulties were not overcome. One of the earlieft ftatutes of the State of New Jerfey, paffed during the Revolutionary War, fhows that the fubjed muft have attracted fome attention in that State. (I i) 6. Pennfylvania. (8) Minute Book 1766-69, fol. 453, in the office of the County Clerk in New York City. This is the only known evidence of the iffuing of Writs of Afiiftance in New York. It was after the paffage of St. 7 G. 3, and the particular form in which the writs were iffued does not appear. (9) Governor Bernard to Lieutenant Governor Franklin, March 24, I768, quoted ante, 45I. (lo) The writer is indebted for this information to the courtefy of Chancellor Green of New Jerfey, who has kindly examined the records. (xI) By St. of June 24, I782, c. 317,entitled " an A& for preventing an illicit Trade and Intercourfe between the SubjeEs of this State and the Enemy," ~ i8, it was enadted, " that it thall and maybe lawful for any judge of the Court of Common Pleas in any County of this State, and he is hereby authorized and required, upon Application to him made, and due and fatisfadtory Caufe of Sufpicion shewn, on Oath or Affirmation, which Oath or Affirmation lhall be taken in Writing and fubfcribed, as in cafe of ftolen Goods, that Goods, Wares, or Merchandize, liable to Seizure by Virtue of this Adt, are concealed or depofited in any Dwelling-house or other Building whatoever, within fuch County, to grant a Warrant, diredted to the Sheriff or any of the Coroners of fuch County, who are hereby refpedtively required to pay Obedience to fuch Warrant, and to make Search for, and to feize and fecure fuch Goods, Wares or Merchandize; and in cafe of Refufal to permit fuch Search, or if Oppofition be made thereto to break open Doors and Locks for Writs of Affiflance. 509 6. Pennfylvania. 1768. It would feem that in Pennfylvania Writs of Affiftance Probably were refuted, even after the palrage of the St. of 7 G. 3, refuted in c. 46. Chief Jufice Allen was at firft oppofed to iffuing Pennfylvania. them. (12) And fome examination of the files and records of the Court has not difclofed any figns of his having changed his opinion. 7. Maryland. Nothing has been discovered upon the fubjeds of Writs No evidence of Affiftance in this Province. But as early as I698 an in Maryland. application was made to the Governor and Council by an officer of the cuftoms for a " Warrant of Affiftance." (I3) 8. Virginia. for the Purpofe aforefaid. PROVIDED ALWAYS, That no fuch Search ihall be made before Sun-rifing, nor after Sun-fetting. AND PROVIDED ALSO, that no Perfon fhall be hereby authorized to enter any Houfe or other Building as aforefaid, other than the Sheriff or Coroner, and two refpeaable Freeholders not being the Informers, or interested in the Seizure, unlefs Oppofition be made by an armed Force." (I2) Boiton Gazette of Auguft 15, 768, quoted ante, 502, note. Opinion of Attorney General De Grey, ante, 454. He had been oppofed to the Stamp Act. 5 Bancroft's Hift. U. S. i82. (I3) The writer's firft knowledge of this was acquired from an " Index to the Calendar of Maryland State Papers, compiled under direction of John Henry Alexander, Esqr L.L. D.," Baltimore, I86i, p. 5. The record referred to in that calendar is as follows: "March 30, I698. It being prefented to his Excellency and this Board by David Kennedy Efquire his Majefty's ColleEtor of the Diftri& of Pocomoke that his Majefty's Service is much prejudiced for want of a Warrant of Aflfiftance to empower him to prefs Men and Horses for that whilft he is a Going to a Juftice of the Peace perhaps Ten or Twelve Miles from the Place where he has Occafion for Affiftance the Traders may take Liberty to run what Goods they pleafe in the Interim," &c. This petition was " referred to his Majefty's Lawyers to confult and make report what fort of Warrant flall be granted." But no report appears. Io Maryland Council Rec. fol. I7. The writer is indebted to the politeness of Mr. Alexander for a copy of this record, as well as for the information that no trace of Writs of Affiftance in later times has been found in Maryland. 510 Appendix I. 1769 8. Virginia. Speial writs In Virginia, after the paffage of St. 7, G. 3, c. 46, the Special writs granted in Supreme Court of Juftice refufed to grant general Writs of Virginia. Affiftance, but granted fpecial Writs. (14) 9. Other Colonies. Writs of The only evidence, attainable at prefent, of proceedings in Affiftance the other Colonies tends to {how that Writs of Affiflance relewhere. were not granted in any that afterwards became part of the United States. (15) (I4) This appears by the following correfpondence, preferved in the State Paper Office in London, for copies of which the writer is indebted to the kindnefs of Mr. Bancroft. On the x5th of May 1769 Yohn Randolph, Attorney General of Virginia, wrote to the Commiffioners of the Cuffoms at Boflon: " Upon receipt of your favor of 2Iff March, inclofing the form of a Writ of Afliftants, and the opinion of the Attorney General, shewing the legality of the fame, I immediately laid them before our Supreme Court of Juftice, which was then fitting; and moved that a fimilar Writ might be granted to thofe Officers of the Cuftoms, whofe Names you mentioned in your Letter. The Gentlemen of our Bar very ftrenuoufly oppofed the Motion, and infifted that the Writ fent was by no means conformable to the Adt of Parliament; that its diredtion was too general, and ought to be regulated by the 32d claufe of the I4 Car. II.; that the Adt gives no authority to enter houfes etc. in the night time; and that the Writ ought not to be a ftanding one, but granted from time to time, as the information of the Officer to the Supreme Court, on oath, may render neceffary. Thefe obfervations at length prevailed, and the Court direded me to prepare a Writ agreeable to the words of the At of Parliament, which was accordingly done and approved of, a copy of which I thought proper to tranfmit to you." Lord Botetourt, in a letter to the Earl of Hill/borough, dated " Williamiburg, May I6, 1769," inclofed a copy of the above letter, and added: " I was upon the Bench when he made the motion, and concurred with my Brethren in direting him to draw a Writ exadtly conformable to the Ads of Parliament which relate to that matter and are in force in this Colony; and it is with great pleafure I can affure your Lordihip that the Bench of Counfellors are always of opinion to make the Law the rule of their conduEt, however disagreeable the letter of it may be to them in their feveral capacities." (IS) " To the everlafting Honor of the great and worthy'Squire Grafpall, Writs of Affiftance. 511 Grafpall, that Man of Truth and yuftice, we are well informed that 1769. every Province in America, except Maffachufetts-Bay and Halifax, have refufed to grant General Warrants or Writs of Affillants to the Order of the Commiffioners; even the little Colonies of Georgia and the Florida's have abfolutely refufed it." BoRton Gazette of September I, 1769. This fquib is evidently aimed at Hutchinfon, in allufion to his granting Writs of Affiftance and his plurality of offices. Vid. ante, 418, 426, note io. If its flatements could be relied on as ftridcly accurate, they would feem to indicate that in New Hampfhire (JiApra, 502) the application had not been renewed fince the paifage of St. 7 G. 3, or, if renewed, that the writs had been granted in a modified form; and that in New York the Writs iflued " according to the dire&ions of the faid A&," (supra, 50o8,) were fpecial, as in Virginia, supra, 5Io, note. 512 Appendix I. I. Were the Writs of Afliftance legal? A REPORT of the controverfy upon the Writs of Affiftance would be incomplete without an examination of the legal corredtnefs of the decifion of Hutchinjon and his affociates. Such an examination naturally refolves itfelf into four queftions. ift. Did Ads of the Parliament of Great Britain bind, the Colonies? 2d. Were thofe Adts of Parliament, which provided for Writs of Affiftance, void for unconftitutionality? 3d. Did thofe Adts, properly conftrued, authorize the iffuing of general Writs of Affiftance? 4th. Had the Superior Court of Judicature of the Province the powers of the Englifh Court of Exchequer in this refpedt? I. The infeparablenefs of taxation and reprefentation, and the difrindtion between external and internal taxes, were familiar to the law of England before the difcovery of America. In the reign of Edward 3 Irifh nobles were Sometimes fummoned to the Englifh Parliament -" an excellent prefident to be followed," fays Lord Coke, "whenever any Adt of Parliament ihall be made in England concerning the ftate of Ireland."( i) In I44i Chief Juftice Forte/fcue held, that an adt of the Irifh Parliament, forfeiting offices in Ireland held by abfentees, vacated an office previoufly expreffly granted by the King to one or his deputy; and faid that an Englifh ftatute granting a tax would not bind the Irifh, unlefs approved by their Parliament. For this laft pofition the counfel for the lofing party suggefted the reafon (i) 4 Inlt. 350. Bro. Ab. Parliament, 84. Writs of Affiftance. 513 reafon, that they were not represented in Parliament. (2) Taxation and In I486 the fame dodrine and the fame reafon were laid reprefentation. down (2) Pilkington's cafe, 20 H. 6, 8. This was Icire facias to repeal Pilkington's letters patent of the King, granting an office in Ireland to A., which he cafe. had previoufly granted to John Pilkington to occupy by himfelf or his deputy. A. pleaded "that the faid land of Ireland is and always has been a land feparated and fevered from the Kingdom of England, and ruled and governed by the cufloms and laws of the fame land; and that the Lords of that fame land, who are the King's Council, have ufed from time to time in the abfence of the King to eleA a Juftice, who, fo eleded, fhall have power to pardon and punifh all felonies, treafons &c.,to afemble a Parliament 8;c. and by advice of their Lords and Commonalty to make ftatutes; and further how a Parliament was fummoned," at which it was ordained, that every one who held any office in Ireland fhould before a certain day occupy it by himfelf, or forfeit it; and that the plaintiff occupied the faid office by a deputy until that day, fo that the office became void, and was afterwards granted to the defendant by the faid letters patent, which he prayed might be made effectual. This plea was demurred to, but adjudged good. Sir John Fortefcue, C. J. K. B., after fhowing that "this prefcription was not in any of the perfons of Ireland, but in the King himfelf," under whom the defendant as well as the plaintiff claimed, added, " the land of Ireland is fevered from the Kingdom of England; for if a tenth or fifteenth be granted here, that Jhall not bind thofe of Ireland, even if the King jhall fend that fiatute into Ireland under his great feal, unlefis they vill in their Parliament approve it; but if they'will allow it, then it /hall be held there that they jhall be bound by it; and fo this prefcription is good; fo that the letters patents fliould be adjudged effe&ual." Upon the delivery of this opinion, Serjeant Portington, for the plaintiff, faid that it was very true " that a tenth granted in the Parliament here shall not bind thofe of Ireland, becaufe they have no commandment owith us by Writ to come to Parliament: but this is no proof that the land is fevered from England, for a tenth granted shall not bind thofe of Wales, or of the County Palatine of Chefrer, and yet they are not fevered from this Kingdom." The Chief Juftice's brother, Sir Henry Fortefcue, had previoufly been C. J. K. B. in Ireland; the plaintiff's counfel, Serjeants Yelhverton and Portington, were both foon after raifed to the bench; and Serjeant Markham, the defendant's counfel, fucceeded Chief Juftice Fortefcue as C. J. K. B. in England. 4 Fofs's Judges of England, 309, 3IO, 354, 379, 442, 462. It will be obferved that the Chief Juftice's ftatement as to the power of the English Parliament was merely obiter dictum; for the cafe only 65 concerned 514 Appendix I. External and down by all the Judges of England, limited however to internaltaxes. internal as oppofed to external legiflation. (3) Lord concerned the power of the Irish Parliament to legiflate where the English Parliament had not. The only other judge who appears to have faid anything was Ajfcoghe (a Judge of the Common Bench- Ib. 282), who feems to have relted his opinion upon the rule of pleading, that the plaintiff, having by demurrer admitted a prefcription, could not obje& to the validity of that prefcription; "for when he has not denied the prefcription, we muff underltand that fuch cuftom is in the land of Ireland, becaufe we shall not be ikilled to take cognizance here what is the law there, except only upon the allegation of the party." This treating the law of Ireland as a foreign law, to be pleaded and proved as a fa&, indicates an opinion that the two Iflands were governed by diflindt laws. See Palfrey v. Portfmouth, Saco & Portland Railroad, 4 Allen, 56, 57. Cafe of (3) Cafe of the Merchants of WIaterford, 2 Ric. 3, II, I2. Certain Waterford Merchants of Waterford in Ireland, who had shipped merchandife Merchants. there to be carried to Flanders, but whofe ihip had been driven by strefs of weather into Calais (then an Englifh port), and there informed againft by the Treafurer of Calais, and feized for a violation of St. s1 H. 6; c. 8, applied to the King in Council for reftitution, and fhowed a royal licenfe to carry merchandife from Ireland whitherfoever they would. 1" And upon that matter were two queflions: Ist. If corporate towns in Ireland and others dwelling in Ireland were bound by a flatute made in England; 2d. If the King could give a licenfe againft the flatute, and efpecially when it was now ordained by the ftatute that the informer should have one half and the King the other. And for the folution of there queftions all the Juflices were affembled in the Exchequer Chamber. " And there as to the firit queftion it was faid, that in the land of Ireland they have a Parliament of their own, and every kind of Court as in England, and by the fame Parliament they make laws and change laws, and they are not bound by a ftatute in England, becaufe they hate here no Knights in Parliament; but this is to be underftood of affecting their lands and things on land only, for their perfons are fubjects of the King, and as fObjects are bound as to doing anything outfide their land contrary to ftatute, like the inhabitants in Calais, Gascoigne, Guienne, &c. while they were fubjets." "And as to the fecond queftion, the King can well enough give a licence with a claufe of non-obftante," " fo far as it touches the King, but not fo far as it touches a party;" and that there was a difficulty in pardoning Writs of Affiftance. 515 Lord Cokce declared in the Houfe of Commons in I627 Coke. that "the lord may tax his villein high or low, but it is againfi the franchifes of the land, for freemen to be taxed, but by their confent in Parliament." (4) Lord Hale is faid Hale. to have been of opinion that "no adts here can bind the Irifh pardoning after an a~fion brought or feizure made, in which the informer had an intereft. It is evident that no final decree was then entered; for upon the death of Richard 3 and the acceffion of Henry 7 the petitioners renewed their bill; and after notice to the Treafurer of Calais, the cafe was reheard, and feems to have been difpofed of upon the ground previously indicated, that the informer had acquired an interefi which the King could not releafe. S. C. I H. 7, I. In the courfe of this fecond hearing "Hugfey, C. J. faid that the tfatutes made in England fhould bind thofe of Ireland. Which," the reporter adds, " was not much denied by the other Juflices, although fome of them were of a contrary opinion the laft term in his abfence. Then he faid they muft fee how the itatutes and their licence could be together," and proceeded to do fo. I H. 7, 2, 3. Hu.fey's flatement has Sometimes been underftood as an aflertion that all Englifh statutes bind Ireland, and fo the reporter may have underflood it; but " the flatutes " would feem rather to apply to the particular flatutes in queftion, which had been held at the previous hearing by a majority of the Judges, at leaft, to be binding on the Irifh. That Lord Coke did not confider the firft opinion as flaken by the laft is fiown by his repeatedly quoting it with approval. Cal-vin's cafe, 7 Rep. 22 b. Parliament in Ireland, 12 Rep. III. And fee Jenk. Cent. I64. In explanation of the opinion "as to the fecond queflion," it fhould be remembered that the power of the King to difpenfe with penal flatutes was recognized to fome extent by law, until the paffage of the Bill of Rights in I688. See Cafe of Non-obftante, 12 Rep. i8; Co. Lit. I20 a, & Hargrave's notes; St. I W. & M. St. 2, c. 2, ~ 12; 3 Hallam's Conlt. Hist. Eng. (7th ed.) 6o, Io4; Amos's notes to Fortescue de Laudibus, c. 9. (4) 2 Parl. Hist. 237. Lord Mansfield's itatement in the Houfe of Mansfield's Lords in 1766, that a doubt thrown out in the Houfe of Commons in mifftatement I621," whether Parliament had anything to do with America," " was of Coke. immediately anfwered, I believe, by Coke," is /hown, by refering to the Journals of the Houfe, to have been unwarranted, in fo far as he attempted to vouch in the authority of his greater predeceffor. 16 Parl. Hift. 176. I Commons Journals, 59I, 592. 516 Appendix I. Blackftone. Irifh in point of fubfidies." (5) Even Sir flWilliam BlackJfone, in the debate on the repeal of the Stamp Ad, is reported to have "declared,' Tory as he was, that Parliament had Camden. no right to impofe internal taxes." (6) And Lord Camden, in his firft fpeech in the Houfe of Lords, faid that the Ad of 1766, declaring the right of the Britifh Parliament to make laws to bind the American Colonies in all cafes whatfoever was " illegal, abfolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this Conftitution;" (7) and, nine years later, fpeaking "not only as a ftatesman, politician and philofopher, but as a common lawyer," told the houfe, " You have no right to tax America." (8) Power of Yet Coke agreed with the uniform current of Englifh Parliament. authority, in holding that an AA of Parliament bound Ireland or the Colonies, if expreffly named or neceffarily included therein. (9) And Camden, in the winter of 1767-8, faid (5) MS. on the Prerogative of the Crown, quoted by Lord Camden in the Houfe of Lords in the Debate on the Repeal of the Stamp At&. i6 Parl. Hist. i69, I70. (6) 2 Walpole's Memoirs of George 3, 279. (7) i6 Parl. Hist. i68, I69, I70, 177. 5 Bancroft's Hill. U. S. 403. This ipeech was reprinted from the Political Regifter of Odtober 3, I767, in the Bofton Gazette of January r8, I768, and was read a few days earlier in the Maffachufetts Houfe of Reprefentatives by Otis, who " triumphed upon it moit immoderately." Bernard to Jackfon, January I6, 1768, 6 Bernard Papers, 67. Quincy's re- (8) Quincy's Life of Quincy, 329. It was on this occafion that port of Cam.. Lord Camden " imagined, that a power refulting from a truft, arbitrarily den. exercifed, may be lawfully refilted; whether the power is lodged in a colleftive body, or fingle perfon; " and cited with approval the faying of Selden, that to refift tyranny was the cuftom of England, and the custom of England was the law of the land. lb. 330, 332. The notes then taken by Jofiah 2,uyincy, Jr. were in the opinion of Benjamin Franklin, who was alfo prefent, " by much the belt account preserved of that day's debate." lb. 492..,uincy's journal is alfo the earlieft evidence we have of Camden's prophecy to Franklin in I758 of American Independence, and was evidently copied by Gordon. lb. 269, 270. I Gordon's Hift. U. S. 136. (9) Orork's cafe, I And. 263. Earl of Derby's cafe, 2 And. ii6. Calbvin's Writs of Affiflance. 517 faid in the Houfe of Lords that " though he had been clearly of opinion that Parliament had no fuch right, yet fince it had been declared by Parliament, he did not think himfelf, or any man elfe, at liberty to call it in queftion." (Io) The reafon of this is to be found in that principle of the Englifh law, which attributes to Parliament the fupreme legiflative authority and the ultimate power of deciding what accords with the Conftitution. (II) In England, as has been truly faid by Lord Brougham, though it founds to American ears like a paradox, "things may be legal and yet unconftitutional." ( 2) Under the Colony Charter, Maffachufetts conftantly as- Maffachufetts ferted her right of exemption from Parliamentary taxation, Colony. upon the ground of not being reprefented in Parliament. (I3) And Cal'vin's cafe, 7 Rep. 17 b, 22 b. Parliament in Ireland, 12 Rep. iII. 4 Inft. 201. Procefs into Wales, Vaugh. 400. Crow v. Ramfey, 2 Ventr. 5. I Chalmers Opinions, I95, 197, 201. Campbell v. Hall, Cowp. 204. I B1. Com. IoI, xo6. Barrington on Sts. (5th ed.) i6o, i66, & notes. Stokes Law of the Colonies, 4, 28, 29. I Chit. Com. & Manuf. 638. Dwarris on Sts. (2d ed.) 527, 906. Clark's Colonial Law, Io, i. _!2yincy, who heard Lord Mansfield deliver his opinion in Campbell v. Hall, only fays in his journal, " He was perfpicuous and eloquent." Quincy's Life of Quincy, 252. (Io) William Samuel Johnfon from London to Roger Sherman, September 28, I768, Letters & Papers 176I-I776, fol. 83, in Mafs. Hiff. Soc. Lib. See alfo Camden to Grafton, September 4, I768, in Grafton's Autobiography, and 5 Campbell's Lives of the Chancellors, 280, 28I; Quincy's Life of OQ.incy, 329. (1I) 4 Inff. 36. Bac. Max. 19, 4 Bacon's Works, (ed. 1824) 63. I B1. Corn. 9, 89-9I, i60-162, x64. Woodeson's Elem. lect. 3, p. 48. Stockdale v. Hanfard, iI A. & E. Xo8, Io9, and 2 P. & D. Ixo, Io6. I Kent Corn. 448. (1 2) Wtenjleydale Peerage, 5 H. L. Cas. 979. (I3) In x64I the Government of the Colony declined to folicit Earlieft pofifavors from Parliament, "for this confideration, that if we fhould put tion of Mafourfelves under the protedion of the Parliament, we muft then be fub- fachufetts. jedt to all fuch laws as they should make, or at leaff fuch as they might impofe upon us; in which courfe, though they should intend our good, yet it might prove very prejudicial to us." 2 Winthrop's Hifl. N. E. 25. And fee Ib. 42, I82, i83. Edward linJlo'w, the agent fent to England 518 Appendix I. And upon this theory feveral ats were paffed by the General Court to carry into effedt the Ads of Trade and Navigation. (14) Province of Under the Province Charter the fubjedion to the auMafetts.achu- thority of Parliament feems to have been lefs difputed on grounds of legal right. The firft ftatute of the Province was " an aft fetting forth general priveledges," one of which was that no tax fhould be impofed or levied on perfons or eftates, " on any colour or pretence whatsoever, but by the a&d and confent of the Governour, Council and England in I646 to plead for the judicial and legislative rights of the Colony, argued that " if the Parliaments of England should impofe laws upon us, having no burgeffes in their Houfe of Commons, nor capable of a fummons by reafon of the vast distance of the ocean, being three thoufand miles from London, then wee should lose the libertie and freedome of English indeed." 3 Mafs. Col. Rec. 96, 97. Winslow's New England's Salamander Difcovered, 23 Mais. Hifl. Coll. I37, I38. In I66i the General Court declared, " Wee conceive any impofition prejudiciall to the country contrary to any juft lawe of ours, not repugnant to the lawes of England, to be an infringement of our right." 4 Mafs. Col. Rec. pt. ii. 25. AEts of (14) Mafs. Col. St. May, I663, 4 Mafs. Col. Rec. pt. ii. 86, 87. Trade. Letter of General Court to Royal Commiffioners, May II, I665, lb. 202. Col. St. O&ober, i677, 5 lb. I55. In I678 the General Court, in anfwer to the objedtions of the Lords of Trade and the Attorney and Solicitor General, wrote "' That for the Adts paffed in Parliament for incouraging trade and navigation, wee humbly conceive, according to the usuall fayings of the learned in the lawe, that the lawes of England are bounded within the fower feas, and doe not reach Amerrica; the fubjedts of his Majeflie here not being reprefented in Parliament; fo wee have not looked at ourfelves to be impeded in our trade by them, nor yett wee abated in our relative allegiance to his majeflie. However, fo foone as wee underifood his Majefties pleafure, that those A&s filould be obferved by his Majelties fubjedts of the Maffachufets, which could not be without invading the liberties and propperties of the fubjed, untill the Generall Court made provision therein by a law, which they did in O&ober i677," &c. lb. 200oo. And they committed the enforcement of the Adts of Trade to the Governor and Council; and ordered him to take the required oath to execute them, and the A&s " to be published in the market place in Bofton by beate of drum." lb. 236, 262, 337. Writs of Affiflance. 519 and Reprefentatives of the People, affembled in General Court." (5) But this ad was difallowed by the King, under the power reserved to him in the new Charter. (I6) Three years later Parliament expreffly extended the Adcs of Trade to the American Colonies, and declared all laws, by-laws, ufages or cuftoms, repugnant to thofe or any future ads which fhould relate to and mention the Colonies, to be illegal and void. ( 17) And the lawful authority of all Adts of Parliament, which concerned the Colonies and in terms applied to them, was acknowledged in the Provincial Courts of law, and expreffly admitted in the addreffes of the General Court of Maffachufetts Bay to the Governor in 1757 and I76I; and in matters of external commerce, at leaft, was not ferioufly difputed until after the paffage of the Stamp A&d. (i8) The oppofite pofition, if taken in the argument upon the Writs of Affiftance, would have been too firiking to have been omitted in the contemporary reports. Yet none of them contain anything which could bear that confiruction, except a single expreffion in Quincy's Report. (i 9) And (i5) Prov. St. 4 W. & M. (I692); Prov. Laws, (ed. i699), I; Anc. Chart. 214. (i6) 2 Hutchinfon's Hift. Mafs. 64, 65. (I7) St. 7 & 8 W. 3, c. 22, ~ 6. This adt was published here by the Governor. Copies of Council Rec. in Office of Secretary of Commonwealth, 1696, fol. 409. (I8) Ante, 200, 442-444. 3 Hutchinfon's Hill. Mafs. 65 & note, 92, i64, 463. 2 Marshall's Life of Washington, 74-79. Franklin's Examination before the Houfe of Commons in 1766, 4 Franklin's Works, I69, I70, i96; i6 Parl. Hifl. 170, 176. Hutchinfon in the fame year went fo far as to pretend that all Adts of Parliament, "except fuch as apparently were confined to the Realm," Nwere law here. Ante, 443, 444. On the other hand, the magiftrates of one county in Virginia held that the Stamp At was not binding there. 5 Bancroft's Ili it. U. S. 426, 427. And in South Carolina, with characteriftic originality, a grand jury, by diredtion of one of the judges. is faid to have prefented parliamentary jurisdiEtion as a nuifance. Chalmers, Letter to Lord Mansfield in 1780, a copy of which is in the poffeffion of Mr. Sparks. (I9) Ante, 5o. 520 Appendix I. And the elaborate argument printed in the Bofton Gazette (2o) immediately after the decifion, as well as the later publifhed writings of Otis and Thacher, (2I) affert in the moft explicit terms the rightful authority of Parliament to legiflate for the Colonies. (22) Were uncon- II. But Otis, while he recognized the jurisdiction of Parftitutional liament over the Colonies, denied that it was the final Ads of Parliament void? arbiter of the juftice and conftitutionality of its own ats; and relying upon words of the greateft Englifh lawyers, and putting out of fight the circumftances under which they (20) Ante, 488-494. (21) Vindication of Condua of Houfe of Reprefentatives (1762) I5, 20, 32. Rights of British Colonies (1764) 49, 60, 66, 93, I09. Bradford's Mafs. State Papers, 23-25. Remarks on Defence of Halifax Libel (I765) 22, 25. Sentiments of a British American (1765) 5. Confiderations in behalf of the Colonists (I765) 9, 36. Bernard to Shelburne, December 24, 1766, ante, 449; 6 Bancroft's Hift. U. S. 38, 39. Otis in I764 even went fo far as to fay, " There is no foundation for the diftindtion fome make in England between an internal and external tax on the Colonies." Rights of British Colonies, 63. Quincy's (22) It is not propofed to purfue the political hiltory of the quefftion. notes to Yet it may be mentioned as a curiosity, that in Ouincy's copy of Blackftone. the first volume of Blackflone's Commentaries (3d ed. Oxford 1768), in the poffeffion of his fon the Honorable Yo/iah b, uincy, are marginal notes in his handwriting, in which "Q u." is written opposite every affertion of the power of Parliament to legiflate for Ireland or the Colonies. I B1. Com. Io03-Io8. Againft Blackftone's statement that " the Statute 6 Geo. 3, c. 12, expreffly declares the power of Parliament to make ftatutes to bind the Colonies in all cafes whatfoever" (I B1. Com. o09) 2,uincy writes, " The American Colonies expreffly declared the contrary. (See the Journals of the feveral Affemblies on the Continent.) How is the controverfy to be decided? " In the Houfe of Lords in I766 Lord Mansfield had faid of the fame difpute, " It is only affertion againft affertion." 5 Bancroft's Hilt. U. S. 449. -O,uincy's question finds an anfwer in a note of Mr. Justice Coleridge to the fame page of Blackftone. " It is hardly neceffary to ftate that the American Colonies, who had united to the number of thirteen States, in their opposition to the mother country, Succeeded in eftablishing their independence, and were recognized as a feparate independent nation by a treaty of peace, executed on the 3d of September I783.") I Bl. Com. (I5th ed.) I09. Writs of Affiflance. 521 they were uttered, contended that the validity of ftatutes muff be judged by the Courts of Juftice; and thus foreIhadowed the principle of American Conftitutional Law, that it is the duty of the judiciary to declare unconftitutional ftatutes void. His main reliance was the well known ftatement of Lord Coke. Coke in Dr. Bonham's cafe - It appeareth in our books, that in many cafes the common law Will control Ats of Parliament and adjudge them to be utterly void; for where an AS& of Parliament is againft common right and reafon or repugnant or impoffible to be performed, the common law will control it and adjudge it to be void." (23) Otis feems alfo (23) 8 Rep. II8 a, quoted by Otis, ante, 474. Dr. Bonham's cafe, Bonham's (fo far as is material to exhibit this point,) was an aftion of falfe impris- cafe. onment, brought against the prefident and cenfors of the College of Phyficians in London, for committing the plaintiff to jail for practising medicine in London without their licenfe. The defendants juftified, on the ground that it was granted in their charter, and fince confirmed by A& of Parliament, that no one should praftice medicine in London without licenfe from them, under penalty of ioos. for each month, one half to the King, and one half to the College: and it was moreover granted that they should have the fupervifion of all phyficians practifing in London, and the punishment of them for malpractice, and the fcrutiny of all medicines: "fo that the punishment of the fame physicians fo delinquent in the premifes might be by fine and imprifonment, and other fuitable manner." Coke, C. J., Warburton 8; Daniel, JJ., gave judgment for the plaintiff upon two points: Ist. That the defendants had no power to commit the plaintiff for the caufe alleged. 2d. That if they had fuch power, they had not purfued it. II6 b, II7 a, I2I a. The 2d point need not be further noticed here. Of the first point " the caufe and reafon shortly was " that the claufe giving the power to fine and imprifon did not apply to thofe pratifing without licenfe, but only to thofe who were guilty of malpradtice. " And that was made manifeft by five reafons, which were called'vividce rationes, becaufe they had their vigor and life from the letters patent and the aft itfelf," " by conftruCtion, and conferring all the parts of them together." II7 a. " And all there reafons were proved by two grounds or maxims in law: I. Generalis claufula non porrigitur ad ea qucefpecialiterfunt comprehenfa." I 8 b. " 2. Verba pofteriora propter certudinem addita ad priora qua certitudine indigent funt referenda." I 19 a. The fourth of the reafons thus derived from the whole context, and 66 fupported 522 Appendix I. alfo to have had in mind the equally familiar dictum of Lord Hobart. Hobart — " Even an A&A of Parliament made againft natural fupported by legal maxims for reitraining the application of general words, was this: " The cenfors cannot be judges, ministers, and parties; judges to give fentence or judgment; ministers to make fummons; and parties to have the moiety of the forfeiture, quia aliquis non debet esfe judex in propria caufa, imo iniquum eft aliquem fuce rei efe judicemn; and one cannot be judge and attorney for any of the parties." " And it appears in our books, that in many cafes, the common law will control Adts of Parliament, and fometimes adjudge them to be utterly void: for when an Adt of Parliament is against common right and reafon, or repugnant, or impoflible to be performed, the common law will control it, and adjudge such Aft to be void." ix8 a. And see S. C. 2 Brownl. 265. Coke's de- When this paffage was made one of the points of attack against him, fence. Coke called the King's attention to the fadt (which had been omitted in the questions drawn up by his enemies, Lord Chancellor Elle/frere and Sir Francis Bacon) that the words of his report did " not import any new opinion, but only a relation of fuch authorities of law, as had been adjudged and refolved in ancient and former times, andwere cited in the argument of Bonham's cafe; " " and therefore the beginning is, It appeareth in our books, etc. And fo it may be explained, as it was truly intended." 6 Bacon's Works, (ed. I824) 400, 405, 407. One of the authorities thus referred to was the remark of Herle, C. 7., in 7'egor v. Vaughan, 8 E. 3, 30, that "fome statutes are made against law and right, which they that made them, perceiving, would not put them in execution." The others are either cafes in which a limited construction had been given to general words in order to avoid an absurdity; or inftances of rejedting repugnant or unfavorable provisions, as in other English and American cafes. Cafe of Alton Woods, 1 Rep. 47. Crom-well's cafe, 4 Rep. I3. Jenk. Cent. i96, pl. 4. Riddle v. WIhite, Gwillim's Tithe Cafes, 1387. United States v. Cantril, 4 Cranch, i67. Sulliwuan v. Robbins, 3 Gray, 476. Campbell's cafe, 2 Bland, 232. Cheezem v. State, 2 Ind. I49. Coke's later In a later cafe Coke is reported to have faid " that Fortefcue and ftatements. Littleton and all others agreed, that the law confists of three parts: First, Common Law: Secondly, Statute Law, which corrects, abridges, and explains the common law: The third, Custom, which takes away the common law: But the common law correds, allows, and difallows, both statute law and cuftom; for if there be repugnancy in statute, or unreafonablenefs in custom, the common law difallows and rejects it, as it appears by Dr. Bonham's cafe," &c. Ro'wles v. Mafon, 2 Brownl.'97, Writs of Affiflance. 523 ural equity, as to make a man judge in his own cafe, is void in itfelf: for jura nature funt immutabilia, and they are leges 197, 198. In his first Inftitute he repeats the same claffification, adding, 1" The common law hath no controler in any part of it, but the High Court of Parliament." Co. Lit. i15 b. Again he fays, in a paffage which feems to have been cited by Otis, (ante, 56) " the furest construction of a statute is by the rule and reafon of the common law." Co. Lit. 272 b. S. P. Harbert's Cafe, 3 Rep. I3 b. And in his fecond Inftitute, in commenting on the 12th chapter of Magna Charta, declaring that affizes should " not be taken except in their own counties," and on the apparently repugnant decifion that " if a man be difleifed of a commote or lordship marcher in Wales, holden of the King in capite," the affize should be taken in an adjoining county in England, he fays, "the reafon is notable, for the Lord Marcher, though he had jura regalia, yet could not he doe juftice in his owne cafe." " Hereby it appeareth (that I may obferve it once for all) that the beft expofitors of this and all other ftatutes are our bookes and ufe or experience." 2 Inft. 25. The fame rules of conftruftion have prevailed ever fince. A&s of Confirmed by Parliament are always to be construed according to the common law other Englifh and natural right, even if it should be neceffary for this purpofe to and adopt what would otherwife be a forced construdion. Fulmneifton v. Stewvard, Plow. 9og. Sheffield v. Ratcliffe, Hob. 346. lWilliams v. Pritchard, 4 T. R. 3. 7he King v. Inhabitants of Cumberland, 6 T. R. I94. Dwarris on Sts. (2d ed.) 484, 623. The rule has been thus expreffed by one of the most exa& of modern English judges: " The rule by which we are to be guided in construing Adts of Parliament is to look at the precife words, and to construe them in their ordinary fenfe, unlefs it would lead to any abfurdity or manifest injustice; and if it should, fo to vary and modify them as to avoid that which it certainly could not have been the intention of the legiflature filould be done." Parke, B., in Perry v. Skinner, 2 M. & W. 476. For an example of American opinion upon this subject, it is fufficient American to quote from Chief Justice Mar/hall the following " principles in the authorities. expofition of statutes: " " An A& of Congrefs ought never to be conftrued to violate the Law of Nations if any other poflible construdtion remains, and confequently can never be construed to violate neutral rights, or to affeA neutral commerce, further than is warranted by the Law of Nations as understood in this country." " Every part of the statute is to be confidered, and the intention of the legiflature to be extraEted from the whole; " and " where great inconvenience will refult from a particular construEtion, that construEtion is to be avoided, unlefs the meaning of the legiflature be plain, in which cafe it must be obeyed." 524 Appendix I. Holt. leges legum." (24) Lord Holt is reported to have faid, " What my Lord Coke fays in Dr. Bonham's cafe in his 8 obeyed." Murray v. 7'he Charming Betsey, 2 Cranch, xI8. United States v. Filher, lb. 386. ConftruEtion The fame dotrine has been applied to the construdtion of a written of Conftitu- conflitution. Chief Juffice Parfons, and his affociates (and afterwards tion. in turn fucceffors) Justices Servall and Parker, in an opinion given to the Maffachufetts Houfe of Reprefentatives in 1811, faid: " The natural import of the words of any legiflative a&, according to the common ufe of them, when applied to the fuibjeCt-matter of the adt, is to be considered as expreffing the intention of the legiflature; unless the intention, fo refulting from the ordinary import of the words, be repugnant to found, acknowledged principles of national policy. And if that intention be repugnant to fuch principles of national policy, then the import of the words ought to be enlarged or refirained, fo that it may comport with thofe principles; unlefs the intention of the legiflature be clearly and manifestly repugnant to them. For although it is not to be prefumed that a legiflature will violate principles of public policy, yet an intention of the legiflature, repugnant to thofe principles, clearly, manifestly and constitutionally expreffed, must have the force of law." Opinion of Juftices, 7 Mafs. 524, 525. Thus by weighing Coke's words, and comparing them with his own statements and later authorities, they are relieved from the mifconstruction, which has occafioned modern commentators either, like Chancellor Kent, to praife a boldnefs which Coke never affumed, or, like Lord Campbell, to fneer at what they would not take the trouble to understand. 1 Kent Corn. (6th ed.) 448. 2 Campbell's Lives of the Chancellors, 248, note. I Campbell's Lives of the Chief Justices, 290. Day v. (24) Day v. Savadge, Hob. 87. The difpute there was upon the Savadge. liability of a freeman of London to pay wharfage to the city, and the queftion was whether this ihould be tried by certificate of the mayor and aldermen according to the cuftoms of London (which had been confirmed by A& of Parliament) or by a jury. The very paragraph which contains the dictum quoted in the text shows that there was another fufficient reafon for ordering a trial by jury. That paragraph, which concludes the opinion, is thus: " By that that hath been faid it appears, that though in pleading it were confeffed that the cuftome of certificate of the customes of London is confirmed by Parliament, yet it made no change in this cafe, both becaufe it is none of the customes intended, and becaufe even an Adt of Parliament, made againft naturall equitie, as to make a man judge in his owne cafe, is void in it felfe, for Jura naturaefrunt immutabilia, and they are leges legum." Bracton, Writs of Affiftance. 525 8 Rep. is far from any extravagancy, for it is a very reafonable and true faying, That if an A&d of Parliament fhould ordain that the fame perfon ihould be party and judge, or what is the fame thing, judge in his own caufe, it would be a void ACt of Parliament." (25) The Bracton, with more accuracy, wrote, " Yura enim naturalia dicuntur Bra&on. immutabilia, quia non possunt ex toro abrogari vel auferri, poterit tamen eis derogari,vel detrahi in fpecie vel in parte." Lib. I, c. 5, ~ 8. (25) City of London v. Wood, I2 Mod. 687. Approved by Wilde, J., in Commonwealth v. Worcefter, 3 Pick. 472, and by Metcalf, J., in Williams v. Robinfon, 6 Cufh. 335, 336. Nemo debet effe judex in fua propria caufa has always been a funda- No man a mental maxim of the common law. Chancellor of Oxford's cafe, 8 H. judge in his 6, iS; Bro. Ab. Patent, IS. Lit. ~ 212. Co. Lit. 141 a. Derby's own caufe. cafe, I2 Rep. II4; 4 Inst. 213. 2 Rol. Ab. Judges, A. Hesketh v. Braddock, 3 Bur. I858. the 5P,ueen v. Ytuftices of Hertfordjhire, 6 Q. B. 753. Dimes v. Grand Junction Canal, 3 H. L. Cas. 759. Egerton v. Brownlow, 4 H. L. Cas. 240. Pearce v. Atwood, 13 Mafs. 340, 341. Common-wealth v. McLane, 4 Gray, 427. Hujh v. Sherman, 2 Allen, 597. la/hington Ins. Co. v. Price, Hopk. Ch. I. Peck v. Freeholders of Efex, Spencer, 475; I Zab. 657. Governor Winthrop, when accured before the General Court of Maffachufetts in i645 for adts done by him as a magiftrate, "coming in with the reft of the magiftrates, placed himfelf beneath within the bar and fo fat uncovered." 2 Winthrop's Hift. N. E. 224. And fo did Lord Holt upon the trial in 1693 of a fuit brought by the Crown to teft his right as C. J. K. B. to appoint the chief clerk for enrolling pleas in that court. Bridgman v. Holt, Show. P. C. I I I. Yet an interefted judge may ar if no other has jurifdidion of the matter. Anon. cited 8 H. 6, I9 b, and Bro. Ab. Judges, 6. Great Charte v. Kennington, 2 Stra. 1173; Bur. Set. Cas. 194. The -?ueen v. Great lWeftern Railway, 13 Q. B. 327. Ranger v. Great Wefltern Rail.way, 5 H. L. Cas. 88. Commonwealth v. Ryan, 5 Mafs. 92. Hill v. Wlells, 6 Pick. Io9. Common~wealth v. Emery, II Cush. 4II. In re Leefe, 2 Barb. Ch. 39. Or if he is exprefily authorized by ftatute. The King v. 7uftices of Effex, 5 M. & S. 5 I 3. Commonwealth v. Worcefter, 3 Pick. 472. Commonwealth v. Reed, I Gray, 474, 475. And an interefted judge may do formal ats neceffary to bring the cafe before the proper tribunal. 7'he King v. rarpole, 4 T. R. 7. Dimes v. Grand Junction Canal, 3 H. L. Cas. 787. Jeffries v. Se.wall, 2 John Adams's Works, 138, I39. RichardJbn v. Bofton, I Curt. C. C. 251. Buckingham v. Damvis, 9 Maryland, 329. HeydenfJldt v.'Towns, 27 Alab. 430. But if a judge caufes a fuit in which he is interefted to be brought 526 Appendix I. Other Englifh The law was laid down in the fame way, on the authority authorities of the above cafes, in Bacon's Abridgment, firft publifhed in I735; in Viner's Abridgment, publifhed I741-51, from which Otis quoted it; and in Comyn's Digeft, publifhed 1762-7, but written more than twenty years before. And there are older authorities to the fame effeCt. So that at the time of Otis's agreement his pofition appeared to be fupported by fome of the higheft authorities in the Englifh law. (26) The brought before him, his judgment therein will be void, although he is fole judge of the court. Mayor of Hereford's cafe, cited 7 Mod. I; 2 Ld. Raym. 766; & I Salk. 201, 396. Richardfon v. Welcome, 6 Cush. 332. Judge Rolle was of opinion that even content of parties would not give jurifdi6lion to an interefted judge, "becaufe it is againft natural reafon." Smith v. Hancock, Style, 138. But it is now well fettled that the objeEtion of interest may be waived, unlefs it is made by conftitution or ftatute an abfolute difqualification. Regina v. Cheltenham Commiffioners, I Q. B. 475. Kent v. Charleftolwn, 2 Gray, 281. Tolland v. County Commi.fioners, 13 Gray, 13. Sigourney v. Sibley, 21 Pick. Io6. Paddock v. VWells, 2 Barb. Ch. 335. Oakley v. Afpinwall, 3 Comft. 547. (26) Bac. Ab. Statutes, A. Vin. Ab. Statutes, E. 6, pl. 15; ante, 5i. Corn. Dig. Parliament, R. 27. Story's Mifcellaneous Writings, 125-133. Do&. & Stud. lib. I, CC. 2, 6. I Finch, c. 6. Noy's Max. I9. John Milton, in his Defence of the People of England, appealed to " that fundamental maxim in our law, by which nothing is to be counted a law, that is contrary to the law of God, or of reafon." 6 Milton's Profe Works, (ed. I85I) 204. Blackflone. Even Sir lWilliam Blackftone in his Commentaries, first published in t765, admitted " that the rule is generally laid down that ads of parliament contrary to reafon are void;" adding, however, " but if the parliament will pofitively enadt a thing to be done which is unreafonable, I know of no power that can control it." I B1. Corn. 9. And fo the law was ftated in the editions published during his life, the eighth and laft of which was published in I778. In the pofthumous editions his statement is thus modified: " I know of no vower in the ordinary forms of the Conftitution, that is vefted with authority to control it; " and the qualifying words appear in the corredions for the prefs made in his own handwriting in the margin of a copy of the eighth edition, now owned by Mr. Francis E. Parker of Bofton. Perhaps the American Revolution forced itfelf more diftinctly upon the notice of the learned commentator between 1778 and his death in I780. Oppofite the ftatements of the power of the Parliament in I B1. Corn. 49, 97, Writs of Affifiance. 527 The fame doatrine was repeatedly afferted by Otis, (27) American and was a favorite in the Colonies before the Revolu- authorities. tion. (28) There are later didta of many eminent judges to 97, i6i, i 89, -~vincy in his copy wrote " Qu," and references to Vattel's Law of Nations, Bk. I, c. 3, pp. I5-I9, and Furneaux's Letter to Black- Quincy's notes to ftone, 8I, 83. And at Blackftone's ftatement, " It muft be owned that nBlackone. Mr. Locke and other theoretical writers have held that' there remains ftill inherent in the People a fupreme power to remove or alter the legiflature, when they find the legiflative aft contrary to the truft repofed in them; for when fuch truft is abufed, it is thereby forfeited, and devolves to thofe who gave it.' But howzoeverjuft this conclufion may be in theory, we cannot adopt it, nor argue from it, under any difpenfation of government at prefent aftually exifting." - I B1. Com. 6, 162 - the words here printed in italics are underlined by _6_yincy, who adds in the margin, " 7iamen qucere whether a conclufion can be juft in theory, that will not bear adoption in praftice." This very paffage affords another inftance of Blackftone's careful revifion of his work. In the fixth and fubfequent editions the word " pradtically " is inferted before the word "adopt"; and for the words " argue from it" are fubftituted " take any legal fteps for carrying it into execution." (27) Jeffries v. Sew-7all, 2 John Adams's Works, 139. Rights of the Britiflh Colonies, 41, 6i, 62, 71, 72, 73, 109, I0. (28) In the controverfy of Maffachufetts with the other Confederated Colonies of New England in I653 upon the right of the Confederation Maffachuto make offenfive war, all parties agreed that any ads or orders mani- fetts. feftly unjuft or againft the law of God were not binding. Io Plym. Col. Rec. 215-223; 2 Hazard Hift. Coll. 270-283. In i688 " the men of Maffachufetts did much quote Lord Coke." Lambert MS. quoted in 2 Bancroft's Hift. U. S. 428. And in 1765, Hutchinfon, fpeaking of the oppofition to the Stamp Aft, said, " The prevailing reafon at this time is, that the ACt of Parliament is againft Magna Charta, and the natural Rights of Englishmen, and therefore, according to Lord Coke, null and void." " Summary of the Dilorders in the Massachusetts Province proceeding from an Apprehenfion that the Ad of Parliament called the Stamp Aft deprives the People of their natural Rights," 26 Mafs. Archives, i8o, I83. And fee Hutchinfon to Jackfon, September 12, 1765, quoted ante, 441; Arguments of Adams and Otis on the Memorial of Boston to the Governor and Council, ante, 200, 201, 205, 206; 2 John Adams's Works, I58, I59 note. Even the Judges appointed by the Royal Governor do not feem to have been prepared to deny this principle. John Cushing, one of the affociate Justices, in a letter to Chief Juftice Hutchinfon, dated " In a hurry, Feby. 7, 1766," upon the queftion whether the Courts fhould be opened without ftamps, wrote, 528 Appendix I. to the effeEt that a ftatute may be void as exceeding the jut1 limits of legiflative power; (29) but it is believed there is wrote, " Its true It is faid an Adt of Parliament againft natural Equity is void. It will be difputed whether this is fuch an Adt. It feems to me the main Qu.eftion here is whether an At which cannot be carried into execution fhould ftop the Courfe of Juftice, and that the Judges are more confined than with refpe& to an obfolete A&. If we admit evidence unftamped ex necefitate Q.if it can be faid we do wrong." 25 Mafs. Archives, 55. And in I776, after the Governor had left, and the Council and Houfe of Reprefentatives had affumed the government, John Adams, in anfwering a letter of congratulation upon his own appointment as Chief Justice of Maffachufetts, from William CuJhing, his fenior affociate, and who upon Adams's declination became Chief Justice in his stead, and afterwards a Justice of the Supreme Court of the United States, wrote, "You have my hearty concurrence in telling the jury the nullity of adts of parliament." 9 John Adams's Works, 390, 391, & note. Virginia. In a cafe before the General Court of Virginia in 1772, George Mason, as reported by Thomas Jefferson, argued that the provision of the statute of that Colony of i682, that " all Indians which shall hereafter be fold by our neighboring Indians, or any other trafiqueing with us as for flaves, are hereby adjudged, deemed and taken to be flaves," was " originally void, becaufe contrary to natural right and juftice," citing Coke and Hobart, ubi sup. The only authority cited on the other fide was I Bl. Com. 91. As the court held that the ad of i682 had been repealed by a fubfequent ftatute, it became unneceffary to decide the queftion. 2 Hening's Sts. at Large, 49I. Robin v. Hardaway, Jefferfon R. 114, II8, I23. And in the Debates on the adoption of the Conftitution of the United States, Patrick Henry faid that the Virginia Judges had opposed unconstitutional adts of the legislature; 4 Elliott's Deb. (2d ed.) 325. Et'vid. sup. 519, note. Modern (29) Ellsworth, in 3 Madifon Deb. I400; 5 Elliot's Debates, 462. cafes. Chase, J. in Calder v. Bull, 3 Dall. 388. Marshall, C. J. and Johnson, J. in Fletcher v. Peck, 6 Cranch, I35, 136, 143. Thompson, J. in Ogden v. Saunders, i2 Wheat. 304. Story, J. in Wilkinson v. Leland, 2 Pet. 657, 658. Ham v. M'Claws, I Bay, 95. 5 Dane Ab. 248. Parker, C. J. in Foster v. E.fex Bank, i6 Mafs. 270, 271, and Ross's case, 2 Pick. I69. RicharcldJn, C. J. in Opinion of Justices, 4 N. H. 566. Prentifs, J. in Lyman v. Mo.wer, 2 VeIm. 5I9. Redfield, C. J. in Hatch v. Vermont Central Railroad, 25 Verm. 66. Hofmer, C. J. in Goshen v. Stonington, 4 Conn. 225. Spencer, C. J. in Bradshazw v. Rogers, 20 Johns. io6. IWalworth, C. in Varick v. Smith, 5 Paige, i59, and Cochran v. Van Surlay, 20 Wend. 373. Bronson, C. J. in Taylor Writs of Affiflance. 529 is no initance, except one cafe in South Carolina (30), in which an ad of the legiflature has been fet afide by the courts, except for conflid with fome written conftitutional provifion. (3 ) The redudion of the fundamental principles of govern- Under a ment in the American States to the form of written con- written Confitutions, establiffihed by the people themfelves, and beyond ftitution the control of their representatives, neceffarily obliged the judicial department, in cafe of a conflidt between a conftitutional provifion and a legiflative ad, to obey the Conftitution as the fundamental law and difregard the ftatute. This duty was recognized, and unconftitutional ads fet afide, by courts of juftice, even before the adoption of the Conftitution of the United States. (32) Since the ratification of that Taylor v. Porter, 4 Hill, I44, 145. Jewett, J. in Pozwers v. Bergen, 2 Selden, 367. Bland, C. in Campbell's case, 2 Bland, 23I, 232. (30) In I792 the Superior Court of South Carolina held that an at South Caropaffed by the legislature of the Colony in I7I2, which took away the lina. freehold of one man and vefted it in another, was " againft common right, as well as againft Magna Charta," and "therefore ipfo facto void." Bo.wman v. Middleton, I Bay, 252. (3 I) It was faid by Chief Juftice Parfons, and repeated by Chief Jus- Power of tice Shaw, that " the legiflature may make all laws not repugnant to legiflature. the Conftitution." Stoughton v. Baker, 4 Mafs. 529. Commonwoealth v. Alger, 7 Cufh. IoI. And fee Opinion of Juftices, 7 Mafs. 525; Patterfon, J. in Vanhorne v. Dorrance, 3 Dall. 308; Iredell, J, in Calder v. Bull, 3 Dall. 398, 399; lfajhington, J. in Beach v. Woodhull, Pet. C. C. 6; Baldwin, J. in Bennett v. Boggs, Bald. 74; I Kent Com. 448; Verplanck, Senator, in Cochran v. Van Surlay, 20 Wend. 382; Bronfon, J. in People v. Fijher, 24 Wend. 220; Cozven, J. in Butler v. Palmer, I Hill N. Y. 329, 330; Gibfon, C. J. in Harqvey v. Thomas, io Watts, 66, 67; Rogers, J. in Commonwealth v. M'Clojkey, 2 Rawle, 374; Hufton, J. in Braddee v. Brownfield, 2 W. & S. 285. (32) The very few reports which have been preferved of the judicial Before U. S. decifions of that period afford two fuch examples. In 1786 the Judges Conftitution. of the Superior Court of the State of Rhode Island refufed to aEt under a ftatute of the General Affembly, which provided for the trial of an offence upon information before the Judges without a jury, contrary to the Constitution of the State as embodied in the Royal Charter of Charles 2. Tre'vett v. Weeden, reported by James M. Varnum, 67 Providence, 530 Appendix I. that Conifitution the power of the courts to declare unconflitutional ftatutes void has become too well fettled to require an accumulation of authorities. (33) But as the office of the judiciary is to decide particular cafes, and not to iffue general edidts, only fo much of a ftatute is to be declared void as is repugnant to the Conftitution and covers the cafe before the court, unlefs the constitutional and unconftitutional provisions are fo interwoven as to convince the court that the legiflature would not have paffed the one without the other. (34) III. The St. of 13 & 14 Car. 2, c. I I, ~ 5, declared that it fhould be lawful for any perfon "authorized by writ of aflfiftance under the feal of his Majefiy's Court of Exchequer" to take an officer and go into any houfe or ihop and feize and bring out uncuftomed goods. This ftatute, in which the name firft appeared as applied to this procefs, (35) did not define what it was, but affumed it to be already Providence, 1787; 2 Chandler's Crim. Trials, 279 & feq. And in 1787 the Judges of the Superior Court of North Carolina fet afide an aA of that State, which deprived a citizen of his property without trial by jury, in violation of the State Conftitution of I776. Den v. Singleton, Martin N. C. 49. (33) Federalift, No. 78. Fanhorne v. Dorrance, 2 Dall. 308. Cooper v. Telfair, 4 Dall. I9. Marbuty v. Madifon, I Cranch, 177-i80. I Wilfon'sWorks,461, 462. 3 Story on Conft. U. S. ~~ I570, i6o8. i Kent Comrn 449-454. (34) Bank of Hamilton v. Dudley, 2 Pet. 526. Commonswealth v. Knox, 6 Mafs. 77. Wellington, petitioner, i6 Pick. 95-97. Common-wealth v, Kimball, 24 Pick. 36I. Norris v. Bofton, 4 Met. 288. Fijher v. McGirr, I Gray, 2. Warren v. Mayor Al1dermen of Charlefto'wn, 2 Gray, 98, 99. Jones v. Robbins, 8 Gray, 338, 339. (35) The difcuffions on either fide of the ocean difclofed no earlier trace of it. And none was found when in 1785 Lord Mansfield poftponed the argument of a cafe for the purpofe of a fearch. Cooper v. Boot, 4 Doug. 347. It would feem that the writ of affiftance may have been framed in analogy to the warrants iffued under the a&t of the fame year, which provided that "for the better difcovering of printing in corners without licenfe, one or more meffengers of his Majeflies chamber, by warrant under Writs of Affiflance. 531 already known. The only procefs, mentioned in any earlier Pfatute or law book, to which the name could be referred, would feem to be the warrant mentioned in St. I2 Car. 2, c. Ig, (confirmed by St. 13 Car. 2, St. I, c. 7, and fubfequent ftatutes,) which could only iffue upon information on oath, and authorized the entry of a houfe for one month only after the offence, and by which, "if the information upon which any houfe is fearched fhould prove to be falfe," the informer was made liable in full cofts and damages to the party injured. (36) As general warrants were not authorized by the common law, (37) Otis argued that the writ of affiftance mentioned under his Majefties fign manual, or under the hand of one or more of his Majeflies principal Secretaries of State, or the Mafier and Wardens of the Company of Stationers, or any one of them, fhall have power and authority with a conitable to take unto them fuch affifiance as they ihall think needful, and at what time they fllall think fit, to fearch all houfes and thops where they thall know, or upon fome probable caufe fufpedt any books or papers to be printed," &c., and to feize any unlicenfed books, "together with the feveral offendors," and bring them before Jufftices of the Peace. St. 13 & 14 Car. 2, c. 33, ~ I5. That flatute expired in the fame reign in which it was framed, and fimilar warrants for the feizure of papers were held illegal in 1765. Entick v. Carrington, I9 Howell's State Trials, 1029, I070; 2 Wils. 292. (36) Thefe provifions of Sts. 12 Car. 2, c. I9, and 13 & 14 Car. 2, C. II, ~ 5, are copied ante, 397, note. (37) Impeachment of Lord C. J. Scroggs, 8 Howell's State Trials, 191, 193, 200. I Hale P. C. 580. 2 Hale P. C. rI3, II4, 150. 2 Hawk. c. 13, ~ Io, cited by Otis, ante, 53. Authorities cited infra, note 42. i5 Parl. Hilt. 1402; i6 Ib. 6-x5, 207-209. 4 B1. Com. 291. 2 Gabbett's Crim. Law, i56, i58. Lord Coke even doubted whether any fearch warrants for ftolen goods were legal; but his doubt was difregarded in pradice, and overruled by later authorities. 4 Inft. I76, I77. 2 Hale P. C. I13, 149. Entick v. Carrington, I9 Howell's State Trials, 1067; 2 Wils. 291. The AEt of I Jac. I, c. I9, "for the well garbling of fpices," provided that all fpices and drugs in London or the liberties thereof fhould be "fufficiently cleaned, fevered, garbled and divided, and afterwards fealed up by the garbler thereunto appointed," or his deputy, before fale. The meaning of "garble" in this ftatute feems to have been directly 532 Appendix I. tioned in St. I3 & 14 Car. 2, muft be fpecial, according to St. 12 Car. 2. This feems to have been confidered at the time of the argument and afterwards the moft important point; (38) and upon the ordinary rules of interpreting ftatutes in pari materia together, and according to the rule and reafon of the common law, the conclufion of Otis feems inevitable. If the writ of afffitance contemplated by the Sts. of Charles 2 was general to fearch all houfes and iffued without oath, it is a little remarkable that Lord Hale, neither in difcuffling general warrants, nor in fpeaking of thefe very ftatutes, gives any hint of fuch a departure from the principles of the common law. (39) It muft be admitted that in practice general writs of affiftance were commonly ufed in England. (40) But they do not feem to have been the fubjedt of judicial remark there before the argument in Maffachufetts, after which Lord Mansfield took every opportunity to aifert that general writs direAly oppofite to that in which it is now commonly ufed; for Lord Coke fays, " To garble, fignifieth in our legall underitanding to fever and divide the good and fufficient from the bad and infufficient." 4 Init. 264. The St. of I Jac. I, c. I9, ~ 3, authorized the faid garbler of fpices and his " deputy or deputies, affignee or affignees," at all times " in the daytime to enter into any fliops, warehoufes or cellars within the faid city or liberties thereof," and fearch for, feize and garble fpices and drugs "there ungarbled, which have been accuftomed to be garbled." And Coke says, " This had been implyed if it had not been expreffed " — which feems hardly confiftent in principle with his opinion about fearch warrants for itolen goods. (38) 3 Hutchinfon's Hift. Mafs. 94. Ante, 435, 438, 467, 471, 472, 475, 490, o50-5o05 notes, 5xo, SII. (39) 2 Hale P. C. ii6. Treatife concerning the Cuftoms, in Hargrave's Law Tradts, 2IO, 223, 224, 225. (40) Bre've a.fifien' pro Oficiar' Cuftum', temp. _7ac. 2, Brown's Exch. Praft. 358; ante, 398, note. Sir Robert Wlalpole and Sir Philip rorke in the Houfe of Commons in 1733, 8 Parl. Hilt. I280, I289. Gridley, arguendo, ante, 480. Opinion of Judges, ante, 497. Hutchinfon's Hiftory and Correfpondence, quoted ante, 414, 415 note, 455. Dickinfon's Farmer's Letters, (Bofton ed. 1768) 50, 5i. Opinion of De Grey, A. G., ante, 453. Johnfon's and Trumbull's Letters, ante, 502, 5o5, note. Writs of AffifRance. 533 writs of affiftance were expreffly authorized by fratute, (4I) which was certainly not the fadt. And the praftice was no more uniform nor better eftablifhed than that which was allowed (4I) In delivering his opinion upon the invalidity of general warrants, he is reported by Burrozw to have faid, " There are many cafes where particular Adts of Parliament have given authority to apprehend under general warrants, as in the cafe of writs of affiftance," &c. Money v. Leach, 3 Bur. 1766; I9 Howell's State Trials, o026, I027. Sir William Blackftone's report of the fame cafe fpeaks only of the form in ufe, omits all mention of the ftatute, and puts the fentence thus: "The words of the writs of affiftance in the cuftoms and excife are equally general; yet a probable fufpicion will juftify adting under them." I W. B1. 56i. The larf claufe of this fentence muff be mifreported; for it was well fettled law that a perfon fearching under a writ of affiftance and finding nothing was not juftified. Leglife v. Champante, 2 Stra. 8 9, evidently the authority intended by Otis, ante, 47 1. Shipley v. Redmain, before Lord Camden, quoted by Plomer, arguendo, in Cooper v. Boot, 4 Doug. 347. Bruce v. Razwlins, 3 Wils. 63. By Lord C. J. De Grey, in Boftock v. Saunders, 2 W. B1. 914; 3 Wils. 434. By Lord Mansfield, in Cooper v. Boot, 4 Doug. 343; 3 Esp. R. 138. In the Common Bench in I773, Lord C. J. De Grey, Gould, Blackftone, 8; Nares, JJ. held that the fame rule applied to an excife officer aAing under St. Io G. I, c. Io, ~ I3, which provided that if any officer fhould fufpect goods to be concealed with intent to defraud, " upon oath made to the Commiffioners of Excife, fetting forth the grounds of his fufpicion, it fhall be lawful for them to authorize the officer to enter the houfe by day or night, and if by night with a peace officer, and feize and carry away fuch goods." Bofitock v. Saunders, 2 W. B1. 9I2; 3 Wils. 434. An oppofite decifion was made in the King's Bench twelve years later by Lord Mansfield, Buller, Ajhurft, 8S Willes, JJ. Cooper v. Boot, 4 Doug. 339; 3 Esp. R. 135. Lord Mansfield, in delivering his opinion in the laft cafe, faid, " The cafe of the writ of afflftance is not applicable. There there is no warrant, and all is left to the difcretion of the officer; befides, which is very material, there is a pofitive claufe in the flatute of Charles 2, which makes the whole depend on the aAual finding of goods." " That however is a politic prevention to avoid abufe; but on this point we give no opinion." And he faid that to hold the officer liable if no goods were found " would be adding to the ftatute a claufe which the legiflature, with the ftatute of Charles 2 before their eyes, have purpofely avoided." 4 Doug. 348, 349; 3 Esp. R. I46. The opinion given by De Grey as Attorney 534 Appendix I. allowed no force, either by Lord Camden, or by Lord Mansfield and his affociates, in the matter of general warrants. (42) But Lord Camden, who led the way in that matter, had not yet been raifed to the Bench. It is hard to imagine that the fame Houfe of Commons which condemned general warrants in I766 (43) intended to authorize general writs of afliftance in I767. (44) Even after the paffage of the St. of 7 G. 3, fome of the American courts refufed to iffue anything but fpecial writs of affiftance; (45) and attempts were made to limit them by Attorney General in I768 was to the same effe&. Ante, 454. But the " pofitive clause," which Lord Mansfield thought fo " very material," was not in St. 13 & 14 Car. 2, c. ii, but in St. 12 Car. 2, c. 19, ~ 4; and there feems to be no good reafon for holding that fedtion to apply to writs of affifiance under 13 & I4 Car. 2, which would not alfo make applicable the other provifions of St. I2 Car. 2. Both flatutes were quoted as applicable to writs of affiffance by Gould, J. in Bruce v. Rawlins, 3 Wils. 63. Mr. Juilice Buller, according to the report in Douglas, faid, "In the Exchequer, officers are never permitted to be aiked what their information is "-or, as more fully reported by Efpinafe, " It has been refolved by a majority of all the Judges, that the officer is not obliged to declare the grounds of his fufpicion, left accidents fiould happen to him." 4 Doug. 343; 3 Efp. R. I38. The ufe of the word "refolved," inftead of " held " or " determined," the giving of the fame reafon as Hutchinfon in his account of the maitter (ante, 415 note), and the want of printed reports of any fuch adjudication, fuggeft the poffibility that upon receiving Hutchinfon's inquiries while the queftion was pending before him, an auricular opinion of the English Judges was obtained by the miniftry. (42) Wilkes v. Wood, Lofft, 8; I9 Howell's State Trials, I076, II67. Huckle v. Money, 2 Wils. 207; I9 Howell's State Trials, 1405. Money v. Leach, 3 Bur. I692, 1742, 1767; 19 Howell's State Trials, Ioo2, 1027; I W. B1. 56i, 562. Entick v. Carrington, I9 Howell's State Trials, io68, I071; 2 Wils. 292. r Cavendish Debates, I22-I24. Lord Denman, C. J. in Stockdale v. Hanfard, 9 A. & E. I55, and 2 P. & D. I45. (43) I6 Parl. Hilt. 207, 209. (44) St. 7 G. 3, c. 46, ante, 452. (45) In Conneticut, ante, 50I, 504, 505, notes: Rhode Ifland, ante, 506, Writs of Affiftance. 535 by ftatute. (46) But in England the' praftice of iffuing general writs of affiftance continued until 81I7, when a limit was impofed upon their ufe by an order of the Board of Cuftoms, providing that no writ of affiftance fhould in fiuture be delivered to any officer of the cuftoms, unlefs he fhould previoufly make oath before a magiftrate of his belief and grounds of belief that fmuggled goods were lodged in a certain houfe. (47) And thus the reafonablenefs of the pofition of the Colonies was finally vindicated in the mother country. In Maffachufetts, the General Court recognized and applied the principles of the common law on the fubjed of general warrants, even in time of war, not allowing general warrants to iffue even for the arreft of deserters in the Old French War, (48) or to fearch for the arms of difaffedted perfons at the beginning of the War of the Revolution. (49) Thofe principles were confirmed in I780 by the Declaration So6, note: Pennfylvania, ante, 454, 502, note: Virginia, ante, 5I0, note: Other Colonies, ante, 500, 5II, notes. Yohn Dickinfon, in the 9th of his Farmer's Letters, commenting on the St. of 7 G. 3, wrote, " I am well aware that writs of this kind may be granted at home, under the feal of the Court of Exchequer. But I know alfo, that the greateft afferters of the rights of Englifhmen have always ftrenuoufly contended that fuch a power was dangerous to free. dom, and exprefly contrary to the common law, which ever regarded a man's house as his caftle, or a place of perfeEt fecurity. If fuch power was in the lealt degree dangerous there, it mufft be utterly deftrufive to liberty here. For the people there have two Securities againft the undue exercife of this power by the Crown, which are wanting with us, if the late a& takes place," to wit, independent judges to try an adion againft the offenders, and redrefs in Parliament. Farmer's Letters, (Bofton ed. 1768,) 50, 5I. See alfo Bofton Gazette of September 5, 1768, quoted ante, 452. (46) In Maffachufetts in 1762, ante, 495. In New Jerfey in 1782, ante, 508, note. (47) I Chit. Com. & Manuf. 790, 79I. Wildman's General Orders of the Cuftoms, 358. (48) Prov. St. 31 & 32 G. 2, c. I, (1758) Mafs. Temp. Laws, pp. 355, 356(49) St. 1776, c. 7, A&s of Mafs. Colony 1775-I78o, p. 33. 536 Appendix I. tion of Rights, prefixed to the Conflitution of Maffachufetts, as follows: "' Every fubjed has a right to be fecure from all unreafonable fearches and feizures of his perfon, his houfes, his papers and all his poffeffions. All warrants therefore are contrary to this right, if the caufe or foundation of them be not previoufly Supported by oath or affirmation; and if the order in the warrant to a civil officer to make fearch in fufpeted places, or to arrefi one or more fufpe~ded perfons, or to feize their property, be not accompanied with a fpecial defignation of the perfons or objedts of fearch, arreft, or feizure; and no warrant ought to be iffued but in cafes, and with the formalities, prefcribed by the laws." And the fubftance of this article was incorporated into one of the earlieft amendments of the Conftitution of the United States. (50) IV. The only quefion remaining is, whether the Superior Court of Judicature of the Province had in this matter the powers of the Court of Exchequer in England. Upon this point Gridley's argument feems hard to meet. The A& of Parliament of 13 & I4 Car. 2, c. II, ~ 5, one of the Adts of Trade, empowered " any perfon authorized by writ of affiflance under the feal of his Majefty's Court of Exchequer," to enter with a peace officer houfes, &c. The General Court of the Colony afterwards provided for the ftrint obfervation of thofe adts. (51) And the Englifh St. of 7 & 8 W. 3, c. 22, ~ 6, provided "that the like affiftance fhall be given" to officers of the cuftoms in the American Colonies, " as by the faid " Adt of Car. 2 " is provided for the officers in England." By the Province Charter " the great and general court or affembly" (5o) Declaration of Rights, art. 14. U. S. Conftitution, amendment 4. And fee Sanford v. Nichols, i3 Mafs. 289; Commonwealth v. Dana, 2 Met. 334-336; Stone v. Dana, 5 Met. Iro, o02; Commonowealth v. Lottery Tickets, 5 Cufh. 370; Fi/her v. McGirr, I Gray, 29, 30; Robinfon v. Richardfon, 13 Gray, 456, 457; Grumon v. Raymond, I Conn. 43; Sailly v. Smith, Ix Johns. 503; U. S. St. 1799, c. II0o, 68, x U. S. Sts. at Large, 677, 678; 7 Dane Ab. 246. (5I) Mafs. Col. Sts. ante, Sx8, note I4; Anc. Chart. 721. I Hutchinfon's Hiflt. Mafs. 29o. Hutchinfon's Colle&ions, 521. Writs of Affiftance. 537 bly" was vefted with power "to eret and conititute judicatories or courts of record, or other courts," to try all crimes and civil adions; referving the probate jurifdiction to the Governor and Council, and the jurifdidion in admiralty to Judges to be commiflioned by the King. And under the power thus conferred, the General Court of the Province, by the firif Judiciary Ad which obtained the King's approval, eftablifhed a Superior Court of Judicature, and beftowed upon it all the jurifdifdion which "the Courts of King's Bench, Common Bench and Exchequer within his Majefty's Kingdom of England have or ought to have." (52) In fupport of the argument that the Superior Court had not the powers of the Court of Exchequer, much reliance was placed upon their refufal to entertain jurifdidion of a bill in equity.(53) But no Court of the Province could well have affumed, on any pretence, a general equity jurisdiidion, in the face of the opinions repeatedly expreffed by the Englifh Government upon that subjet. (54) Whether (52) Prov. St. xI W. 3 (I699), Anc. Chart. 33I. (53) McNeal v. Brideoak, ante, 53, 470. (54) In England, before Lord Bacon's impeachment and conviftion for corruption, (which, Lord Hale fays, " gave fuch a discredit and brand " to his decrees, " that they were eafily fet afide, and made way in the Parliament of 3 Car. for the like attempts againft decrees made by other Chancellors," and which was juft before the granting of the Charter to the Maffachufetts Company,) decrees in chancery were not revifed by the Houfe of Lords fitting judicially, but by legislative a6t of both Houfes of Parliament. Hale's Jurifdiation of the Houfe of Lords, 193-195; Nottingham MSS. quoted in Hargrave's Pref. cliii. note. Under the Maffachufetts Colony Charter the General Court exer- Chancery ju' cifed an extenfive chancery jurifdifEion, as appears by the following rifdition in examples: Redemption of land from mortgage, Hues v. Rogers, 4 Mafs. the MaffachuCol. Rec. pt. ii. 292. Charitable trust, Cafe of Roxbury Free School, 4 fetts Colony. Ib. pt. ii. 434, 435, 441, 455-458; 5 Ib. $, 6, 22. Specific performance by executor of teftator's contract, Shoare v. Bof'worth, 5 lb. 36. Sequeftration of lands, Patch v. Patch, 5 lb. 39. Mifiake, Ma'vericke v. Phillips, 4 Ib. pt. i. i87; Grofs v. Collecot, 5 lb. 150, 247, 273Fraud, Thatcber v. Thatcher, 5 Ib. 245, which was referred to the county 68 court, 538 Appendix I. Whether the authority of the Court of Exchequer in matters of revenue was a part of its jurifdidcion in equity does court, with power to compel a difcovery. In fome cafes, the want of remedy at law is affigned as the ground of jurifdi&ion in equity. Dedham v. Natick Indians, 4 lb. pt. ii. 49; Sears v. Ho-w, 5 lb. 379. A confiderable equity jurifdi6iion was conferred on the county courts. Sts. I67I,4 Ib. pt. ii. 488; i682, 5 Ib. 375; i685,5 Ib. 477; Anc. Chart. 52, 93, 94, I48. And fee Washburn's Jud. Hiflt. Mafs. 28, 34; Plym. Col. Laws of I672 and i685 (ed. I836) 260, 296. After the repeal of the Maffachufetts Colony Charter, the Prefident, or Governor, and Council exercifed fimilar jurifdiEtion. Hadley v. Hopkins Academy, I4 Pick. 264, 265. Washburn's Jud. Hift. Mafs. 98. Chancery ju- Immediately after the Province Charter, the General Court atrifdiAion in tempted to eftablith a Court of Chancery; but the at was disallowed the Province. by the King in Council. Prov. Sts. 4 & 5 W. & M. (I692-3) Anc. Chart. 222, 274. Rec. i699, fol. 256. 2 Hutchinfon's Hift. Mafs. 31. 4 Dane Ab. 5 I8. 6 lb. 405. Charles River Bridge v. Warren Bridge, 7 Pick. 368. In 1704 Attorney General Northey gave an opinion to Queen Anne that the Province Charter conferred no authority on the General Court to eftablish fuch a court. 2 Chalmers' Opinions, 182, I83. But Ryder and Strange, as Attorney and Solicitor General, in 1738 gave an opinion that the colonial affembly could eftablish a Court of Exchequer in South Carolina. 2 lb. 170. The condition of Chancery jurifdiEtion in the Province of Maffachufetts Bay is thus expreffed in "the opinion of a great lawyer in the Colonies," quoted by Governor Pouwnall, whofe term of office intervened between the decifion of McNeal v. Brideoak, ubi fupra, and the argument upon the Writs of Affiftance. " There is no Court of Chancery in the charter governments of New England, nor any court vefted with power to determine caufes in equity, fave only that the juftices of the inferior court and the juftices of the fuperior court refpectively have power to give relief on mortgages, bonds, and other penalties contained in deeds. In all other chancery and equitable matters, both the Crown and the fubject are without redrefs. This introduced a pratice of petitioning the legiflative courts for relief, and prompted thofe courts to interpofe their authority. Thefe petitions becoming numerous, in order to give the greater defpatch to fuch bufinefs, the legiflative courts tranfaEted fuch bufinefs by orders or refolves, without the folemnity of paffing adts for fuch purpofes; and have further extended this power by refolves and orders beyond what a Court of Chancery ever attempted to decree, even to the fufpending of public laws; which orders or refolves are not fent home for the royal affent." Adminiftration of the Colonies, (3d ed.) 81, 82. The jurifdition mentioned by Governor Pouwnall was conferred by Prov. Sts. Io W. Writs of Affiftance. 539 does not appear to have been determined when the cafe of the Writs of Affiftance came up. But the opinion feems to have fince prevailed in England, that the revenue jurifdidtion of that Court was ftridly a common law jurifdiEtion, although fome of its incidental proceedings might take the form of proceffes in equity. (55) And the writs of affiftance to officers of the cuftoms certainly feem to bear a clofer analogy to the common law writs of aid, which always iffued from the Exchequer, than to the writs of affiftance out of Chancery to take poffeffion of lands. (56) Yet it is evident that the exercife of the jurifdidtion of the Exchequer by the Superior Court was confidered by both parties W. 3; i2 Anne; 5 G. I; 8 G. 2; Anc. Chart. 325, 326, 40I, 402, 424, 50o. And fee 4 Dane Ab. 243; 6 lb. 398; 7 Ib. 56, 518; 2 Amer. Jurift, 36i, 362; Wafhburn's Jud. Hiff. Mafs. I58, I67. Governor Bernard, in his anfwer on the Sth of September I763, to the " Queries propofed by the Lords Commiflioners of Trade and Plantations," for a copy of which, taken from the MSS. in the King's Library, the writer is indebted to Mr. George Bancroft, fays: " It might have been made a queftion whether the Governor of this Province has not the power of Chancellor delivered to him with the Great Seal, as well as other Royal Governors; but it is impraUticable to fet up fuch a claim now, after a non-ufage of 70 years, and after feveral Governors have, in effe&, disclaimed it, by confenting to bills for establishing a Court of Chancery, which have been difallowed at home. A Court of Chancery is very much wanted here, many caufes of consequence frequently happening, in which no redrefs is to be had for want of a Court of Equity. I am inclined to think that if a complainant in a matter of equity arifing within this Province fllould file his bill in the Court of Chancery in England, fuggefting there was no Provincial Court in which he could be relieved, that the bill would be retained, in the fame manner as I fuppofe a'libel in the high Court of Admiralty would be admitted, if there was no inferior court of Admiralty in the Province, unlefs it was ufed only to enforce the neceffity of eftablishing a Provincial Court of Equity." (55) Eyre, C. B., in Cazwthorne v. Campbell, x Anil. 208. Lord Redef dale, in Wall v. Attorney General, I i Price, 696 Sfeq. Rogers v. Maule, 3 Y. & Col. Exch. 77, 79. Attorney General v. Holling, iS M. & W. 697; 8 Beav. 288, note. (56) Ante, 395, 396. 540 Appendix I. parties to be very doubtful. No inifance was fhown in which this Court had exercifed any of the powers of the Exchequer, which might not have been exercised by the King's Bench or Common Bench; and it certainly did not poffefs all the powers of that Court even in matters of revenue. (57) And this objedion feems to have been thought the only one worthy of notice in England. (58) A careful examination of the fubjet compels the conclufion that the decifion of Hutchinfon and his affociates has been too itrongly condemned as illegal: and that there was at leaft reafonable ground for holding, as matter of mere law, that the Britifh Parliament had power to bind the Colonies; that even a ftatute contrary to the Conftitution could not be declared void by the judicial Courts; that by the Englifh itatutes, as pradically conftrued by the Courts in England, Writs of Afliftance might be general in form; that the Superior Court of Judicature of the Province had the power of the Englifh Court of Exchequer; and that the Writs of Affiftance prayed for, though contrary to the fpirit of the Englifh Conftitution, could hardly be refufed by a Provincial Court, before general warrants had been condemned in England, and before the Revolution had a6ually begun in America. The remedy adopted by the Colonies was to throw off the yoke of Parliament; to confer on the judiciary the power to declare unconititutional ftatutes void; to declare general warrants unconflitutional in exprefs terms; and thus to put an end here to general Writs of Afiiftance. (57) Ante, 52, 471, 482, 486, 488, 493. (58) Opinion of De Grey, A. G., in 1768, ante, 452, 453. And fee Adams to Tudor, Auguft 6, I8I8, IO John Adams's Works, 342. Governor Pownall was too well acquainted with the Government and laws of the Province, to have fuggefted in 1766, "the creating in America, by A& of Parliament, Courts of Exchequer for the exprefs purpofes of the Crown's revenue," if it was clear that fuch a Court already exifted here. Adminiftration of the Colonies, (3d ed.) App. iii. 44. APPENDIX II. GRAY, Treafurer of the Province of Maffachufetts GRAY Bay, vs. PAXTON. (1) PAXTON. Rec. I76I, SSUMPSIT. "C Harrison Gray, of Bofton in the Coun- fol. 35ty of Suffolk, Treafurer and Receiver General of A refolve of the General the Province of the Maffachufetts Bay," fued "Charles Court, auPaxton thorizing" H. G., the Province Treaf(I) The cafe of the Writs of AffiRance, though the moft important, urer," to de(') The mand and fue was not the only one which excited the feeling of the people againft the for money officers of the cuftoms. There were alfo feveral fuits at common law, due to the growing out of forfeitures in the Court of Admiralty, to the beft known Province,does of which Paxton was a party. The ftatements of this difpute in fome not authorize him to fue hiftories are confufed and inaccurate by reafon of omitting to notice the therefor in his faEt that two a&ions were brought againft Paxton, the firR in the name own name. of the Treafurer, the fecond in the name of the Province. The controverfy arofe thus: The A& of Parliament of 6 G. 2, c. x3, impofed a duty on all foreign rum, molaffes, or fugar imported into the Colonies, to be recovered in any Court of Admiralty or Court of Record, " one third part thereof for the ufe of his Majefty, his heirs and fucceffors, to be applied for the fupport of the Government of the Colony or Plantation where the fame fhall be recovered," one third to the Governor, and the other to the informer. On the I7th of December 1760 a petition to fecure the rights of the Petition of Province in this refpea was prefented to the General Court, figned by Merchants to all the merchants who a few weeks later figned the remonftrance the General againft the Writs of Affiftance, (ante, 412,) except "Nat Wheelwright," "Jofeph Scott," "Jams Warden," "James Pitts," "John Winniett," and " Saml Gridley." A comparifon of the two petitions shows that "John Lowell" (ante, 4I3,) should have been printed "John Powell." The petition to the General Court alfo bears the names 542 Appendix II. 1761. Paxton of faid Bofton Efquire" "for that whereas the faid _z_ Charles at faid Bofton on the firif day of March Inifant was GRAY Indebted "V. PAXTON. Declaration. names of " John Amory" and " Benja Hallowell." 44 Mafs. Archives, 446. In the BoRon Gazette of September 4, I769, James Otis published a depofition, given (as he faid) by Paxton on the 28th of February 176x before Judge Rufell, testifying " that Benjamin Barons Esq: Colletor of his Majefly's Cuftoms for the port of Bofton, entered into a Confederacy with the following perfons, viz. Benjamin Halloweoll, fenior, who for fome years pafl hath publicly profeffed himfelf an enemy to the Court of Vice-Admiralty in this Province, and hath declared the fame to be a Nuifance, and ought to be laid afide, or words to that purpofe; and that 7ames Otis, junr Efq: who refigned his commiffion of Advocate General, and immediately thereafter appeared advocate for the meeting hereafter to be mentioned; and fundry other perfons who are fuppofed to have been concerned in carrying on an illicit trade." Hearing be- The Houfe of Reprefentatives on the g9th of December 1760 orfore Houfe dered that the "Petitioners are allowed to be heard upon the Floor by and Council. their Council," and " the Regifter of Vice Admiralty, and any other Person or Perfons belonging to that Court, who may be affeEted by the confequence of this application, may attend (if they fee caufe) at that time." A hearing was had accordingly, at which Otis appeared as counfel for the petitioners, and a committee appointed by the Houfe "to take the petition and all the papers in the cafe under confideration, and report what they judge proper for this court to aft thereon." To this committee the Council, after a hearing on the 26th, joined others. Journal H. R. 1760, pp. 107, I22, 238. 3 Hutchinfon's Hift. Mafs. 89. Report of The committee reported that in fix cafes of feizures of goods there Committee. had been paid "for procuring information, ~282. 6. 8; ".. charged as paid to lawyers more than legal fees,.S~6. I2;" for "condemnation dues at 5 per cent, ~79. 8. 3-; "' " receiving and paying, at 3 per cent, S47. II. I.;" and "marfhal's cuftody of the goods at 3s. per day befides florage, LIS. 3;" making the "amount of illegal charges ~484.. II;" that all thefe expenfes were charged upon the fhare of the Province, the effeEt of which was to leave it in one cafe "five fhillings and eight pence farthing," in another " thirty-eight fhillings and eight pence," and in the other four nothing whatever; and that the amount due to the Province as aforefaid (after dedulting ~8. I2. for lawfull fees of the Judge of Admiralty) was ~475. 9. II. Journal H. R. 176r, pp. 18o, I8I, 239-241. Copy of Report on file in Court of Common Pleas. The July Term 1 Geo. S. 543 Indebted to the faid Province in the fum of Three hundred 1761. & fifty feven pounds one fhilling and eight pence lawfull _ GRAY money IRv. PAXTON. The papers on file in the Court of Common Pleas fhow that Paxton was ading as marflal in January I756; and that the decrees in the five earlieft cafes were made in 1753, 1756, and 1759 by George Cradock as Deputy Judge, and in the fixth in 1760 by Chambers Ru2fell as Judge of the Court of Vice Admiralty. Kid. ante, 233, 426 & 427 notes; Washburn's Jud. Hilt. Mafs. I84. It was cuffomary for the Judges of that and other Courts of civil law in the Colonies to appoint Deputies. I Doug. Hilt. N. A. 484. Governor Pownall's Meffage, poft Appendix III. The Houfe of Reprefentatives, upon the recommendation of their Refolve of committee, on the I3th of January, 176I, " Refolved that Harrifon Gray, the General Efq. the Province Treafurer, be and hereby is impowered and direAed Court. to demand and receive the aforefaid fum of 475~ 9s. IId of the refpe&ive perfons from whom it fhall appear to be due; and in cafe of their refuting or negleEting payment for the fpace of one month after demand, to bring an adion or adions at common law for recovery of faid fum, to the ufe of his Majeffy, to be applied to the fupport of this Government as this Court fhall hereafter dire&." Journal H. R. I76I, p. I8I. Hutchinfon fays, " Oppofition however was made in Council; and it was plainly ihewn that no fuch adion could lie. The Superior Court having all the powers within the Province of the Court of King's Bench in England, might put a flop to the proceedings of the Court of Admiralty, whenever it took cognizance of a caufe not within its jurisdidtion, by a writ of prohibition; but in this cafe jurifdiction had been expremy given by an Ad of Parliament to the Court of Admiralty. The Province might have appeared by an attorney, and have taken exceptions to the decree, and, if the exceptions had not prevailed, might have brought an appeal to the High Court of Admiralty in England; but the opportunity was wilfully flipped, and there was now no remedy. It was faid, however, that the people were diffatisfied, and that it would not be believed that there was no remedy, unlefs there was a trial: and a majority of the Council concurred with the Houfe." 3 Hutchinfon's Hiff. Mafs. go. Upon the power of the Superior Court of Judicature to iffue a writ of prohibition to the Court of Vice-Admiralty, fee Dummer's Defence of the New England Charters (Boffon ed. x745) 26-29; Scollay v. Dunn, ante, 74. The Governor, in a meffage to the Houfe on the I6th of January, ob- A&ion of the je&ed " that this money is part of His Majeffy's Revenue, granted to Governor. him by A& of Parliament," and therefore mufft be fued for by his Attorney General, though, when recovered, to be received by the Treafurer; and that the propofed Refolve "would amount to altering an A& 544 Appendix II. 1761. money for fo much lawfull money before that time had & __> received by the faid Charles to & for the ufe of the ProvGRAY ince aforefaid, and the faid Charles being fo Indebted then'V. PAXTON. and there promifed the faid Province to pay the fame on demand yet the faid Charles tho' often requefted has not paid the fame fum but negle6ts it. To the damage of the faid Harrifon Gray in his faid capacity the fum of Three hundred and fixty Pounds." Writ dated March I8th 176I, and returnable at July term I761 of the Inferior Court of Common Pleas. (2) Plea in abate- And the faid Charles comes & defends &c. & prays Judgment. ment of the Writ aforefaid & that the fame may be abated. For Ist. The Plaintiff herein fues in an Indebitatus affumpfit, And yet has not in his Declaration Ihewed that the faid Charles was ever indebted to the Plaintiff or ever promifed him to pay him anything or broke any Promife, Contra6t or Agreement with or to the Plaintiff. 2ndly. According to the Plaintiff's own fhewing the money alledged to be received by the faid Charles was to the Ufe of the Province of the Maffachufetts Bay, & the Debt & Promife grounded thereon were to the faid Province, And the right of Ad& of Parliament," and therefore refufed his affent. The Houfe on the 27th replied, " We are far from apprehending that a refolve of this Court can alter an A& of Parliament. We are quite fenfible that if an Adt of this Court should obtain the royal fandtion, it cannot do it. Every Adt made by the General Court or Affembly of this Province is voidable; becaufe the fame may be difallowed by His Majefty: Every A& we make repugnant to an At of Parliament extending to the Plantations is (ipfo facto) null and void," and that they held the King's Prerogative as facred as the People's liberties; but that this money was the Province's, not the King's, and the form of the grant by Parliament was the fame as that ufed in Provincial Revenue Adts, which had been always approved by the King. The Governor, after another proteft, on the 31st of January finally approved the refolve. Even Hutcbinfon fays, " this objeEtion from the Governor was really of no weight." "But he hoped to prevent Mr. Otis from carrying on the fuit." Journal H. R. 176I, pp. 24I-247. 3 Hutchinfon's Hiut. Mass. go, 91. 2 Minot's Hilt. Mafs. 80-86. (2) Writ on file in Court of Common Pleas. Auguft Term 1 Geo. s. 545 of adlion accruing on the Breach of fuch Promife was to the 1761. faid Province & not to the Plaintiff according to his own _ Shewing. 3dly. The Plaintiff has not in his Declaration GRAY fhewed or alledged any Matter or Caufe Sufficient to intitle PAXTON. him to bring forward as he doth this Ation & maintain the fame. All there things the Defendant is ready to verify, Wherefore he prays Judgment that this Writ be abated & for cofts." (3) This plea was overruled by the Inferior Court. (4) The In Inferior defendant then pleaded the general iffue, which was joined Court plea in by the plaintiff(5) and Submitted to the jury, who returned overruled and a verdi& for the plaintiff of ~357. I. 8. and cofts, (6) upon verdict and judgment for which judgment was rendered. (7) The defendant appealed, plaintiff. and at Auguft term I76I of the Superior Court "the parties appeared and being fully heard upon the plea in abatement (8), it is confidered by the Court that the writ abate (3) Plea in abatement on back of writ. Rec. 176i, fol. 235. (4) Rec. I76r, fol. 235. (5) Pleadings indorfed on writ. (6) VerdiEt on file. (7) Rec. 176I, fol. 235. Governor Bernard in a letter to the Lords Governor of Trade of Auguft 6th 176i, fpeaks of this alion as'" being one of the Bernard's refirft fruits of Mr Barrons's confederacy, in which I had a principal share port of the of trouble, it being particularly defigned by fome of Mr Barrons's friends, to involve me in a difpute with the General Court, which however I prevented." " This caufe is determined againft Mr Paxton in the Inferior Court, & he has appealed againft that determination to the Superior Court. If judgement should be given againft Mr Paxton in this Court alfo, there two points will be fettled: x. That Money paid in pursuance of a decree of the Court of Admiralty having jurifdiEtion in the cafe, and unappealed from, may be recovered in a Court of Common Law by other perfons for other ufes, notwithftanding fuch decree. 2. That money given by Aft of Parliament to His Majefty for the ufe of the Province can be recovered by the Provincial Treafurer ex offcio, without the intervention of the King's Attorney or any perfon aeting by authority under His Majefty." 2 Bernard Papers, 46. As to Barons, vid. ante, 425 note, 492, and his Petition to the General Court, January i6, x762, in Bofton Evening Poll, June II, 1770. (8) In yohn Adams's Diary, immediately after his account of the 69 Writs 546 Appendix II. 1761. abate and that the judgment of the Inferior Court afore_z_ faid be reverfed (9) and that the faid Charles Paxton recover GRAY againit "V. PAXTON. In Superior Court writ Writs of Affiftance, are the following unfinished notes of the arguabated and ment, which are not published in his Works, and are now printed by judgment for permiffion of Mr. Charles Francis Adams: defendant. " Gray v. Paxton. Otis drew a writ,vs. Paxton for Money had & "recd to the ufe of the Province. Prat pleaded in abatement, Adams's re- " That, altho the fuit was brot in Grays name, altho Gray was Planport of the "tiff, yet no promife was alledged to have been made to Gray. The argument. Deft is alleged to be indebted to the Province, for money re'd to the "Provinces ufe, and to have promifed to pay it to the Province, yet' the Province is not Plaintiff. It is Gray v. Paxton, but it should have " been the Proevince of the Ma/Jachufetts Bay v. Paxton. The Treafu"rer and Receiver General has not a Right ex Oficio, to demand, fue "for and recover all Monies that are due to the Province. No more " than a Nobleman's fteward has to fue for and recover the demands "of the Nobleman: No more than the Cashier of the Bank of Eng" land has to fuie for and recover all Monies due to the Bank of Eng" land. A fteward may fue, but not in his own Name; he muft fue "in the Name of his Mafter. The Cafhier may fue, but not in his own "Name; he muft fue in the Name of the Govr & Company of ye Bank "of England. A corporate body is one Perfon in Law and may fue or Dorchester "be fued. And there is an Inftance, before the Court this term, in Proprietors roprietors "your own Dockett, of a fuit brot by a Town, the Towon of Dorchester vs. "A B &c. There is a fpecial Law of this Province, which impowers." The cafe here referred to is doubtlefs "the Proprietors of the common and undivided lands in Dorchefter, now in Stoughton, who fue by James Fofter, Richard Hall, and Jofeph Hewin a Committee for that purpofe," Cv. Joseph Man. Man Cv. Dorchefter Proprietors, Rec. 1761, fol. 232. The files of the Superior Court in that cafe have not been found. Thofe of the Inferior Court show that Thacher was counfel for the defendant and Prat for the plaintiff. The provincial ftatute alluded to is probably the aEt of iI W. 3 (I699), which authorizes every town treafurer "to demand and receive all debts, rents and dues belonging or owing to fuch town, or the poor thereof, and to fue for and recover the fame by due procefs in the law." Anc. Chart. 341. (g) The decifion that the ation should have been brought in the name of the Province, and not of Harrifon Gray, its Treafurer, was doubtlefs corre&. Bainbridge v. Downie, 6 Mafs. 258. Irifh v. lWebfter, 5 Greenl. 17 1. State v. Boies, 2 Fairf. 474. Hodgfon v. Dexter, I Cranch, 363. Dugan v. United States, 3 Wheat. I8o. Augurt Term t Geo. 3. 547 againif the faid Harrifon Gray, Treafurer and receiver as 1761. aforefaid corts taxed at ~4. 6. 9." (o) GRAY "V. PAXTON. "Excon iffuo (Io) Rec. 176I, fol. 235. On the 27th of Auguft 176I Governor ed 7th Dec. Bernard wrote to the Lords of Trade thus: " Gray agt Paxton. This I76I." caufe was determined without a jury, by a plea of abatement to the writ, which the Court determined in favor of the defendant. The point Governor upon which it turned was that the Treafurer could not fue for the Bernard's money ex oficio; and there was no order of the General Court to ena- report of the ble him. There has been an order made fince the bringing this writ; final decifion. and it is expedted that a new writ will be brought in purfuance of that order; and then will arife another queftion, whether an order of the General Court can enable a perfon not authorized by his office to fue for money given to the King by A& of Parliament. My reafons for the negative your Lordships will fee in the Votes of JanY I76I, pa. 246." 2 Bernard Papers, Si. This Statement is not quite accurate; for the refolve "made fince the bringing this writ," to wit on the s5th of April I76I, was fubfiantially in the fame terms as the refolve of January I 3th. Ante, 543 note. Poft, 548 note. On the 22d of July 176i, yohn Porwnall wrote to Governor Bernard, Exorbitant "The fees and charges of proceedings in Admiralty courts are become fees in Ad. fo shamefully exorbitant, as to be matter of notice to Government, and miralty. have been in one or two cafes pretty feverely cenfured by the Council." 9 Bernard Papers, 221. On the I7th of May I764, Governor Bernard wrote, it would feem Governor to Lord Egremont, " When I first came to this government, feizures Bernard's were much more frequent than they have been for two or three years falsehood. paft. They were all made by one officer only (Mr. Paxton the furveyor of the port) and wholly by means of private intelligencers, who were never difcovered. To encourage thefe, It has been ufual to allow the profecutor a fum of money, about ten or fifteen per cent. of the value of the feizure, to pay for private intelligence, upon no other voucher than his own oath that he had engaged to pay that fum to the intelligencer. This, with the confent of all parties, was inferted in the profecutor's bill of charges, and allowed by the Judge. There was no danger that this would be ufed to the King's detriment: for as the Governor paid as much as the King, it muff be fuppofed that he would take care that the fums allowed should be neither exorbitant nor unneceffary." 3 Bernard Papers, 216. This laff ftatement can hardly be called anything but a wilful falfehood; for it was the charging of all thefe expenfes on the share which belonged to the King for the ufe of the Province, which occafioned the fuit reported in the text. Ante, 547, note. 548 Appendix II. PROVINCE Pv. PROVINCE OF MASSACHUSETTS BAY VS. PAXTON. PAXTON. Rec. I762, fol. 303 and O N the 21ft of September, I76I, a new acdion was Judges and vJ brought in the name of "the Province of the Maffajurors are not difqualified by chufetts Bay in New England, which fues by Harrifon Gray their intereft of Bofton in the County of Suffolk Efq. Treafurer and as inhabitants Receiver General of the fame Province, who by an Order of the Province from fit- of the Great and General Court of faid Province held at ting in a civil faid Bofton on the twenty-fifth day of March A. D. 176 J, (I) a6dion brought by the Prov- is Specially impowered to fue on the behalf of faid Province to recov- ince," returnable at Odober term of the Inferior Court, in er money due to it. which the plaintiff declared in affumpfit " for that whereas The Gen- the faid Charles of faid Boflon on the firft day of September eral Court ma aCuthorize laft was Indebted to the faid Province in the fum of Three the Province hundred and fifty-feven pounds three ihillings and eight pence Treafurer to lawful money for fo much lawful money before that time fue in behalf of the Prov- had and received by the faid Charles to and for the ufe of ince for mon- the Province aforefaid, and the faid Charles being fo Iney granted by A& of Parli- debted then and there promifed the faid Province to pay ament to the the fame on demand, yet the faid Charles though often reKing for the fupport of the quefted has not paid the fame fum, but negle&ts it, to the Province. damage of the faid Province, as they fay by the faid Harrifon Money paid Gray who fues as aforefaid the fum of Three hundred and under a decree of the Court fixty pounds." (2) of Vice-Ad- "And the faid Charles by Benjamin Prat his Attorney miralty cannot be recov- comes and fays that this Honourable Court ought not to take ered back by ___________________________ cognizance an ation at common law. (I) This refolve was in fa& paffed on the Isth of April, 176I, and was precifely like that of January I3th, I76I, (ante, 543, note,) except in extending the authority to any fucceffor of the prefent Treafurer, and in not requiring any delay, after demand and refilsal, before bringing fuit. Journal H. R. 176i, p. 339. 23 General Court Rec. 732. (2) Rec. I762, fol. 303. Copy of Writ on file. January Term 2 Geo. s. 549 cognizance of this caufe, nor he in this Court be held to 1761. anfwer therein. For that all the Judges of this Honourable w Court and all the Jurors there Returned for the Trial of PROVINCE all Causes there to be tried by a Jury are Inhabitants PAXTON. within faid Province and diredcly Interefted in the Event of Plea to the this Suit. And this he is ready to verify, wherefore he Jurifdiction. prays Judgment whether this is a Court competent to hear and try this Caufe, and that he may not be held here to anfwer therein. (3) "Which plea if overruled the faid Charles referving to Plea to the himfelf the benefit thereof in any Courts to which this plaintiff's Caufe may be carried, and alfo referving to himfelf all Ex- right to fue. ceptions to the Plaintiff's Appearance defends &ca and prays Judgment of the Plaintiffs Writ aforesaid, becaufe he fays there is no Law, Letter of Attorney, or any other Ad or Thing fufficient in Law to warrant the plaintiff in fuing by the faid Harrifon Gray Efqr or to enable him here to appear and profecute the fame Adcion as he there did and in and by the Writ and Declaration aforefaid is fuppofed. And this the faid Charles is ready to verify, wherefore he prays Judgment that this Writ be abated and for Cofts. " Saving which if overruled and reserving the benefit General iffue. thereof and all Exceptions the faid Charles fays he never promifed the faid Province in manner and form as faid Province declares and thereof puts &c' " (4) The Court overruled the pleas in abatement, and contin- Trial,verdict, ued the cafe for trial to January term 1762, when I"the cafe and judgment after a full hearing was committed to the Jury who were for the plainfworn according to Law to try the fame, who Returned their Court. Verdic thereon upon Oath, that is to fay, they find for the Plaintiff the fum fued for." Judgment was rendered accordingly, (3) "Jurymen and Judges, belonging to this Province, fat in the cafe of Gray and Paxton, though interefled, for the neceflity." John Adams, in Diary of November 5, I762, 2 John Adams's Works, 138. Et'vid. ante, 53I, note, for fimilar cafes. (4) Pleas, and Copy of Record of Inferior Court, on file. 550 Appendix II. 1762. ingly, and the defendant appealed to the Superior Court, (5) s_ _ and on the 27th of January entered into a recognizance in PROVINCE the fum of Ten Pounds with Samuel Qjuincy and Pelham "V. PAXTON. Winfjow as fureties to prosecute his appeal with effed. (6) Paxton then presented a petition to the Governor and Paxton'speei- Council, representing "That your Petitioner was fued at the tion for the appointment laft Odober Court by faid Province, for three hundred Jf f Special fifty feven pounds three fhillings and eight pence, and Whereas faid adion is to be tried at the Superiour Court now holden at Boffon, and the pretended caufe of Adtion arofe on Matters Adjudged in the Court of Admiralty by His Honour Judge Ruffell; your Petitioner imagines that He cannot with propriety fet by means whereof there will be only four Judges and fo the Court may be equally divided which will be attended with very great inconvenience as there are feveral points of Laws of much Importance to be fettled in faid caufe, and which cannot be conclufively done without a Majority of the Court. Wherefore your Petitioner prays Your Excellency and Honors would appoint a fpecial Juftice to fit in faid caufe, in the place of His Honor Judge Ruffell, fo that there may be a full Court: and Whereas your Petitioner hath in faid Adtion pleaded to the JurifdiCtion of the Court, he prays he may not by this petition be underftood to give up faid plea, or any others; the right of which he expreffly begs leave to referve. And as in Duty bound &c. " (7) Timothy The Governor and Council accordingly iffued a CommisRuggles ap- fion to Timothy Ruggles, (8) reciting the firif feeion of the pointed a Spe- Province cial Juftice. (5) Copy of Record of Inferior Court, Verdi&t and Bill of Cofts, on file. (6) Recognizance on file. (7) 44 Mafs. Archives, 454. It was ufual to appoint fpecial juftices to fit in particular cafes. Washburn's Judicial Hill. Mafs. I55-I58. Adams's ac- (8) Yohn Adams relates that Ruggles, when Chief Juflice of the count of Worcefter Court of Common Pleas, in May, I76I, upon hearing of the Ruggles. eleAion of James Otis into the Houfe of Reprefentatives, faid: " Out of this eleEtion will arife a damned faAion, which will shake this Province to its foundation." Adams to Tudor, March 29, I8I7, Io John Adams's Works, 248. February Term 2 Geo. 3. 551 Province Adt of I William 3, which eftabliffihed the Supe- 1762. rior Court of Judicature, and proceeding thus: — (We therefore repofing efpecial Truft and Confidence PROVINCE in your Loyalty, Prudence and Ability have affigned confti- PAXTON. tuted and appointed and do by there Prefents affign constitute and appoint you the faid Timothy Ruggles to be a Juftice of our Superior Court of Judicature &ca for the tryal of a Caufe depending on an Appeal in the faid Court now holden at Boflon in and for the County of Suffolk between Charles Paxton Efq: Appellant and [the Province of the Maffachufetts Bay in New England, which fues by (9)] Harrifon Gray Efqr. Treafurer and Receiver General of the Province aforesaid Appellee, in the room of Chambers Rusfell Efqr one of the ftanding Juftices of our faid Court who declines to fit as Judge in the faid Caufe being interefted in the Event thereof. And we do hereby Authorize and impower You to have, ufe, exercife and execute all and singular the Powers, Authorities, and Jurifdidions to Juftices of our faid Court belonging or in any wife appertaining fo far as it relates to the faid Cafe; and with other our Juftices of the faid Court (or any of them fo as to make a Quorum of faid Court) to hear and determine faid Cafe and Matter, and to give Judgment therein and award Execution thereupon, and to do that which to Juftice therein appertains according to Law." (Io) At February term I762 of the Superior Court, both In Superior parties appeared, and the pleas in abatement (as on file) ourt, pleastement having been argued and overruled, The cafe after a full overruled. hearing was committed to a Jury fworn according to Law to try the fame, who returned their verdic therein upon oath, (9) The words in brackets are interlined both in the original commission and in the copy in the Book of Commiffions, I756-I767, fol. 262, in the office of the Secretary of the Commonwealth. (io) The original commiflion, dated February 23, 1762, is on file with the papers in the cafe, and bears a certificate of Hutchinfon as Lieutenant Governor that Ruggles qualified under it on the 25th of February. 552 Appendix II. 1762. oath, that is to fay, they find for the appellant reverfion of _- --' the former judgment and cofts. It's therefore Confidered PROVINCE by the Court that the former judgment be reverfed, and that PAXTON. the faid Charles Paxton recover againft the Province of the Verdict and Maffachufetts Bay who fued by Harrifon Gray Efq. Treafjudgment for urer thereof, Coits taxed at ~6.. o." (I I) defendant. Bernard's ac- (ii) Rec. 1762, fol. 203. Verdi& and bill of colts on file. On the count. ift of March, 1762, Governor Bernard wrote: The caufe of Mr. Gray agst. Paxton has been heard in the Superior Court when purfuant to the direition of all the Judges the jury found a verdidt for the defendant." 2 Bernard Papers, Si. S. P. February 27, I762, lb. I9. Hutchinson's Hutchinfon's report is more particular: "When the caufe came report. upon trial, it was very feebly Supported, by shewing that the charges ought not to have been allowed by the Court of Admiralty; and by reprefenting that Court as not congenial with the fpirit of the English Conftitution, for which reafon no indulgent conftruction ought to be allowed to their proceedings. The Court fummed up the caufe to the jury, fo as to shew that the action had not been Supported; and cautioned them againft departing from the rules of law, and confequently from their oaths, in compliance with popular prejudices; and, contrary to the prevailing expeAation, they found cofts for the defendant." He then refers to the acknowledgment, by the two houfes, of the authority of Acls of Parliament, (ante, 544, note,) and adds: " Juries were difpofed to receive the law from the Court, and could not eafily be induced to depart from their oaths." 3 Hutchinfon's Hifl. Mafs. 9I, 92. As to the jurors' oath, vaid. poft, note to Eraving v. Cradock. " Who is it that has always given his opinion in favor of prerogative Adams's and revenue, in every cafe in which they have been brought in queftion, comments. without one exception? Who is it that has endeavored to bias fimple juries, by an argument as warm and vehement as thofe of the bar, in a cafe where the Province was contending againft a cuftom-houfe officer? And what were the other means employed in that caufe againft the resolutions of the General Affembly?" John Adams's Diary, December 3o, 1765, 2 John Adams's Works, 170. But there can be no doubt that the Judges of the Superior Court rightly held the decree in Admiralty to be conclufive. Gelfton v. Hoyt, 3 Wheat. 3 I 8. Baxter v. Newv England Marine Ins. Co., 6 Mafs. 277. Whitney v. Walsh, I Cush. 29. July Term i Geo. s. 553 ERVING VS. CRADOCK. ERVING V. CRADOCK. RESPASS by John Erving againft George Cradock, Rec. 176I, fol. 230. 1 "for that the faid George on the twenty-fixth day of The owner of April laft, with force and arms at faid Bofton took the faid a ship and John's Brigantine called the Sarah, his Tackle, Apparrell, cargo, feized for breach of Gunns, Boat, and two barrels and an half of Gunpowder the revenue belonging to her, and his Cargoe on board her, viz, forty reels laws, and liof Cable Yarn, one bale of Canvas, eighty five bundles of Court of Russia Duck, four hundred and fifty nine bars of Steel, two Vice-Admirhampers of Stone ware, two cafes of Geneva, one bundle of poanded with Brushes, one cafe of painted Canvas, one box of China the Government officers, ware, one cafe of ifriped Holland, all of the value of one by leave of thoufand pounds Sterling, and carried them away, and de- thatCourt, by tained them untill the faid John made a fine by five hundred paying half the value of and fifty five pounds, four shillings, and four pence Sterling, the property; with the faid George for having the delivery of the faid Brig- and then fued the colle&or antine, Tackle, Apparrell, Gunns, Boat, and Cargoe, contrary in trefpafs for to the King's peace, and to the Damage of the faid John, as the feizure. The jury, he faith the Sum of a thoufand Pounds." Writ dated March gaift jury, 24th, I76I, and returnable at July term 176i of the Court exprefs inftru&tions of of Common Pleas. the Superior The defendant pleaded the general ifflue, the plaintiff Court, rejoined iffue (I) and obtained a verdi&t, (2) upon which the turned a vercourt of common pleas rendered judgment, and the defend- plaintiff; and ant appealed to the Superior Court, in which at Auguft the Court gave judgterm ment upon it. (I) Writ and plea on file in the Court of Common Pleas. (2) i" This is an a&ion brought by the hon'ble Yohn Eraoing, Esqr one Governor of the Council againft Mr Cradock, heretofore and now temporary Bernard's Colledtor of this Port. This cafe is this: Mr. Cradock about 6 atement months ago, as Colle&or, feized a Veffel of Mr. Erving's charged with contraband trade & libelled her in the Court of Admiralty. Mr 70 Er'ving 554 Appendix II. 1761. term I76I "the parties Appeared, and the Cafe, after a E~~'~- full hearing was committed to a Jury Sworn according to ERVING ERv. Law to try the Same, who returned their Verdi&t therein CRADOCK. upon Oath, that is to fay they find for the Appellee Seven hundred and forty pounds lawfull Money, damage and coft. It Erwving appeared perfonally in Court & prayed leave to compound, which being agreed to by the Governor & Collector as well as the King's Advocate, was allowed by the Court at one half of the value, which upon appraifement was afcertained at above 500oo fterling. This fum Mr: Erving paid into Court; & it was equally divided between the King, the Governor & the Collector. Mr Cradock remitted the King's share to the Commiffioners of the Cuftoms; the Governor received his third, & Mr Cradock his own. And now Mr Er'ving has brought his afAion againft Mr Cradock for damages accrued to him by means of this feizure; and in the Inferior Court has got a verdi&." Governor Bernard to Lords of Trade, Auguft 6, I76I, 2 Bernard Papers, 46, 47. Papers on This ftatement is fully Supported by the papers on file in this cafe file. in the Court of Common Pleas, which confift of the writ, pleadings, and officer's return; the clearance of the vetTel at Port Kirkwall in the Orkneys on the 3Ist of December, I759; two invoices of the cargo; Governor Pohwnall's certificate, dated December 20, 1759, of Cradock's having taken the oaths of office as Colle&or on the I8th of December; the depofitions of the mafter and one of the failors to their voyage from Amfterdam to the Orkneys and thence to Bofton, and the feizure of the veffel on the 26th of April, I760, by William Sheaffe, and the unloading of the cargo by orders of Cradock; copies of the information filed by Prat as Advocate General in the Court of Vice-Admiralty on the 3d of May, i760, and of the order thereon; a fiubpcena to Sheaffe to appear as a witnefs in the Inferior Court on the 23d of July, 1761; and a copy of the decree of that Court approving the compofition between the parties, by which Er'ving was to forfeit one half of the veffel and goods and to pay all the cofts, and the value of the half forfeited was to be paid to the King, the Governor and the informer, in equal thirds. Mailer's de- The mafter gave this account of the conversation between the parties pofition. to this a&tion after the arrival of the veffel: " My owner faid she should not be unloaded, for that she had not broke bulk or committed any breach of trade, and that if he did unload her he muft anfwer the confequence and ftand to all damadges. The Colle6tor then anfwered that there was Something of value hid clandeftinely on board, and that he was very poor and expected to get Two Thoufand pounds frerling for his share. My owner then told him that he would be very much difapointed, August Term I Geo. 3. 555 It is therefore confidered by the Court that the faid John 1761. Erving recover againft the faid George Cradock, the Sum ERVING of Seven hundred and forty pounds lawfull Money of the ERVING Province CRADOCK. apointed, for that the whole Veffell and Cargo would not amount to half that Sum." Governor Bernard, in his letter to the Lords of Trade of Auguft 6, Governor 176I, after ftating the cafes of Gray v. Paxton and Ercing v. Cradock, Bernard's let(as quoted ante, 545, 553, 554, notes,) and defcribing the three a&ions ters. brought by Barons in his own name to recover damages for his fufpenfion, (ante, 425, note,) added: "I ftate to your Lordships only the a6tions that are now brought. But it is generally undersiood that Mr. Ervings is only a leading aaion to a great many others; and that if he meets with fuccefs, every one that has had goods condemned, or been allowed to compound for them at their own requeft, will bring aAions againft the officer who feized them. Your Lordships will perceive that thefe aftions have an immediate tendency to deftroy the Court of Admiralty and with it the Cuftom houfe, which cannot fubsift without that Court. Indeed the intention is made no fecret of: In the two cafes above mentioned that were tried in the Inferior Court, the chief fubje& of the harangues of the council for the plaintiff (and fome of the Judges too) were on the expediency of difcouraging a Court immediately fubje&t to the King and independant of the Province and which determined property without a jury; and on a neceflity of putting a ftop to the practices of the Cuftom houfe officers, for that the people would no longer bear having their trade kept under reftriEtions, which their neighbours (meaning Rhode Ifland) were entirely free from. And one gentleman, who has had a considerable hand in promoting thefe difturbances, has been fo candid as to own to me, that it was their intention to work them up to fuch a pitch as should make it neceffary for the miniftry to interfere and procure them juftice (as they call it) in repealing or qualifying the Molaffes A6t, and in obliging the Neighbouring Provinces to obferve the fame reftraints which this is to be kept under. In regard to both thefe points, if they were follicited in another manner, there would be much to be faid in their behalf." 2 Bernard Papers, 48, 49. " The pretence for this a&ion is, that the feizure was illegal and a trefpafs, and that the payment of Mr. Erving was not voluntary, but extorted by violence and durefs. Upon this shadow of reafon, two of the Judges of the Inferior Court, Mr Watts and Mr.:Wells, direEted the jury to find a verdi6l for the plaintiff, and give him for damages every farthing he was out of pocket; and faid they muft put a flop to thefe proceedings of the Cuftom houfe officers; if they did not there would be tumults and bloodshed; for the people would bear with them no 556 Appendix II. 1761. Province (3) damage and cofts taxed at ~." The A _c~ defendant appealed to the King in Council; but on the ERVING 25th of March 1762, the plaintiff acknowledged on the V. CRADOCK. record that he had received of the defendant " full fatiffaAion of this Judgment." (4) no longer. The jury accordingly gave the plaintiff near ~6oo fterling damages." Bernard to Pownall, Auguft 28, I76I, lb. 9. Judges of Samuel Iffatts and Samuel flIelles, the Judges here mentioned, as well as the Inferior Yohn Er'ving, the plaintiff, were members of the committee of the GenCourt. eral Court on the petition of the merchants againif Paxton, and Judge Watts made the report. Ante, 542, note. Journal H. R. 7 6 I,p. 238. (3) One fourth lefs, or ~555, fterling. Prov. St. 23 G. 2, c. 5, Mafs. Perpet. Laws (ed. 1759) 340o; Anc. Chart. 779. Infra, note 4. Governor (4) Rec. I76I, fol. 230. The files of this cafe in the Superior Court Bernard's re- have not been found. But the letters of Governor Bernard contain a port of pro- full account of the proceedings fubfequent to the appeal from the judgceedings in Superior ment of the Inferior Court. Court. "Erving v. Cradock. This a6lion came before a jury in the Superior Court. Upon the fumming up the evidence the judges were all of opinion that tho' Mr Cradock might by means of fome irregularity in the feizing of the ship have been guilty of a trespafs (which however was neither proved nor admitted) yet it was wholly purged by the compofition confirmed by the Court of Admiralty, the decrees of which were of equal force with a judgement at common law. It was urged by the Chief Juftice that the Court of Admiralty was part of the Conftitution of the Province, it being expreffly provided for by the Charter. The whole Bench directed the jury, as ftrongly as they could, to find for the defendant. Neverthelefs they found for the plaintiff and gave upwards of ~55o fterling in damages, being all he faid he was out of pocket. This was no furprife to thofe that were acquainted with the violence with which there proceedings are carried on. It was remarkable that Mr. Erving, according to the Ufage of thefe Courts, fpoke a great deal for himfelf, when he had admitted everything neceffary to prove that he had incurred a forfeiture and declared he only acquiefced only in expeatation that a time should come when he should have his revenge; a word he ufed feveral times to exprefs the purpofe of his condu&. He declared after the verdi& that he should be fupported by the principal merchants of London againft any representations the Governor could make. Appeal to " Mr. Cradock will take care to enter an appeal to the King in due the King in time: as he will neverthelefs be fubje&t to execution, care will be Council. taken to prevent his being fent to gaol before orders come from England. They now begin to talk of bringing more aa6ions againfi Cuftom houfe officers who have made feizures and have had them condemned August Term I Geo. 3. 557 demned or compounded in Court for them. A Cuftom houfe officer 1761. has no chance with a jury, let his caufe be what it will. And it will _ depend upon the vigorous meafures that shall be taken at home for ERVING the defence of the officers, whether there be any Cuftom houfe here at V. all." Bernard to Lords of Trade, Auguft 2, 176I, 2 Bernard Papers, CRADOCK. SI, 52. To the fame effe&t is his letter of the next day to Governor Pozvnall, Ib. xo. On the 27th of February 1762 Governor Bernard wrote to Lord Releafe of Barrington, that he apprehended this caufe would "foon be ended by judgment. the plaintiffs difcharging his judgment to prevent his anfwering in appeal. So that the King's authority is now triumphant in every inftance." 2 Bernard Papers, 29. Attorney General 7Trozvbridge and Mr. Counfel in Auchmuty were retained by the Governor to profecute the appeal, and the cafe. were paid " out of the King's share " of feizures, upon an order of Governor Bernard and Surveyor General Lechmere of O&ober 19, 176I Bofton Gazette, June II, Auguft 27, and September 3, I86x. And after Erving had acknowledged fatisfaftion of his judgment, 7irowbridge, on the demand of 7Temple, Lechmere's succeffor,(ante, 428,note 17,) on the 4th of May 1762 refunded part of the fees. The circumftances of a cafe reported by Hutchin/on correfpond fo Hutchinfon's nearly with thofe of Erving v. Cradock, as to leave little doubt of its report of a being the fame. He fays, " The Court imagined their opinion upon what was a mere matter of law, would have the fame influence with the jury as formerly in a like cafe," evidently Province v. Paxton, ante, 552. " The Judges could have no doubt that the decree of the Court of Admiralty, where it had jurisdiation, could not be traverfed and annulled in a court of common law; but the jury notwithftanding gave their verdia for the plaintiff. As it was a perfonal aEtion, and the value more than 3001. fierling, an appeal clearly lies by charter to the King in Council. It was claimed, and granted." 3 Hutchinfon's Hift. Mafs. x16. The entry of 1766 in the margin of the page is of no weight to difprove the identity of the cafe; for on the fame page Hutchinfon Ftates the decree of the Court of Admiralty in the cafe of the Freemafon, which was in I763; and on the next page, as having occurred " juft after thefe," the admiflion by Cockle at Salem of veffels from Anguilla, which was in I764. Ante, 390, 423. The queftion whether Hutchinfon, in this place, is fpeaking of 176i or I766 is rendered interesting by the fa&t that he fpeaks of thefe cafes as having occurred "while the minds of the people of every rank and order, in all parts of the Province, were more or lefs difturbed with apprehenfions of taxes by authority of Parliament." Compare John Adams's Preface of I8 19 to Novanglus, 4 John Adams's Works, 6; 4 Bancroft's Hift. U. S. 370. The faA that judgment was thus rendered on a verdiA found against the exprefs inftrulions of the judges, in a civil adion of great moment to the Government, show how much deference was paid to the verdi&t of a jury in the Province of Maffachufetts Bay. And this cafe is not a folitary infiance. In 558 Appendix II. Goodfpeed zv. In 1763 in an antion of trover brought againft a military officer for Gay. recruiting a man who was claimed as a ilave, the plaintiff recovered a verdid, upon which judgment was rendered, "although," Governor Bernard wrote, " upon the tryal the Judges told the jury that there was no evidence againft the defendant, not the leaft pretence to charge him infuch an a&ion." Goodfpeed v. Gay, Rec. 1763, fol.47. Governor Bernard to General Amherft, May 14, 1763, 2 Bernard Papers, 305. This explanation deprives that cafe of any authority upon the queflion of maintaining trover for a negro. Vid. ante, 98-102, note. Otis,v. Rob- In 1770, in giving an account of the adion of yames Otis againft infon. John Robinfon, one of the Commiffioners of the Cuftoms, for affault and battery (Tudor's Life of Otis, 365, 503; Rec. 1772, fol. 109.) Hutchinjon, after mentioning the verdi&t of ~2000 for the plaintiff in the Inferior Court, and the defendant's appeal to the Superior Court, wrote, " I hope that a better jury will not give exorbitant damages. If they should, there will be no remedy but by an Appeal to the King in Council." 25 Mafs. Archives, 438. The Chief Juftice evidently meant here no remedy of any value; for the ftatutes of the Province clearly Reviews. allowed as of right a review in this as in other ordinary civil caufes, although they would not allow it of judgments upon informations for the forfeiture of goods. Prov. Sts. 13 W. 3; 24 G. 2; 30 G. 2; Anc. Chart. 368, 574, 6i i. The review of an a&ion at law was introduced here very early. In I639 it is fpoken of as already exifting. I Mafs. Col. Rec. 275. It was at firft called a "bill of review," and doubtlefs derived its origin from the analogous remedy in chancery. St. i642, 2 lb. xx. Sewall, Y., in Burrell v. Burrell, io Mafs. 222. Bacon's Ordinances of 1619, I Sand. Ord. Ch. 109og. Elliott v. Balcom, ix Gray, 286, and authorities cited. 6 Dane Ab. c. i89. Rev. Sts. c. 99. Gen. Sts. c. 146, ~~ 19-38. See alfo Plym. Col. Laws (ed. i672) 12; (ed. 1836) 254; Nantucket St. of i672, Hough's Nantucket Papers, 43; I New Trials. Doug. Hift. N. A. 518. New trials did not come into ufe in England until after the Settlement of the Maffachusetts Colony. Slade's cafe, Style, 138. Wood v. Gunston, Style, 466. Wheeler v. Honour, I Sid. 58. lhe 9,een v. Helston, Io Mod. 202. Witham v. Lervis, I Wils. 55. Bright v. Eynon, I Bur. 394, 395. And though recognized as poffible, they feem to have been very rarely ordered by the Courts of the Province. Angier v. Jackson, ante, 83, 85. Right of jury In the Colony of Maffachusetts, the right of the jury to determine in Maffachu- the law was never denied in criminal cafes; but was for forty years alfetts Colony. ternately recognized and difallowed in civil adtions. Lechmere's Plain Dealing (i641) 23 Mafs. Hift. Coll. 85. Body of Liberties, arts..29, 30, 31, 70, 76, 77, 28 Ib. 22I, 228, 229. Sts. I642, 2 Mafs. Col. Rec. 21; i657, 3 lb. 424, 425, & 4 lb. pt. i., 290, 29i. Mafs. Col. Laws, (ed. i660) 47, 48, 77, 78; (ed. i672) 86, 87, 152. Washburn's Jud. Hifl. Mafs. 45. By art. 3' of the Body of Liberties, the jury had " liberty to give a non Powers and Rights of Juries. 559 non-liquet; " and this power was Sometimes exercifed. Cleaves v. yoce- Non-liquet. lin (I641) 2 Winthrop's Hift. N. E. 257. Hall v. Louden (I649) and Boidon v. Pratt (i65o) in Middlefex County Court Rec. But this term, derived from the Roman law, and unknown to the law of England, (Bacon's Reading on the Statute of Ufes, 4 Bacon's Works, ed. 1824, p. I84,) occafioned so much doubt and confufion in pra&ice, that the provifion was repealed by the St. of x657, ub. sup., in which the right and duty of the jury to decide the cafe when they could were very ftrongly afferted. In the early times of the Maffachufetts Colony, if the Court and jury Verdils did not agree, the cafe was brought to the General Court. But this made conclupraEtice occafioned difficulties and difputes between the two houfes; five, fubje& and they, according to the cuftom of the time, confulted the elders, whofe to attaint. advice was " that the magiftrates may be, by exprefle law, direded to accept the juries verdidt and to grant judgment accordingly, unleffe they shall judge the juries verdi&t to be evidently contrary to law and evidence, in which cafe, that they may bee impowered by law to caufe the jurie to anfwer for their default in the fame court, before a jurie of twentyfour perfons chofen by the freemen, orotherwife to bee liable to bee ferved by the party aggrieved with a writ of attainder out of the fame court, or otherwife as this honoured court may fee more aptly and amply to provide. It being the great liberty of an English fubjed to be tryed by his peers, before whom he hath free and full libertie to plead law for his indempnitie and fafety." Hutchinfon's Coll. 436, 439. The General Court did not adopt this fiuggeftion in criminal cafes; but in May 1672 paffed an adt requiring all judges in civil cafes, after having " ufed all reafonable endeavours for clearing the cafe to the jury by declaring the law, and comparing the matter of fadt therewith," to accept and render judgment upon every verdidt, "unlefs upon corruption or error in the jury giving in their verdid contrary to law and evidence the party calf shall in open court attaint the jury," in which cafe a trial should be had by a jury of twenty-four, upon whofe verdit judgment should be rendered. Mafs. Col. St. I672, Mafs. Col. Laws (Suppl. to ed. i672) 17I, 172; 4 Mafs. Col. Rec. pt. ii., 508, 509; Anc. Chart. I47. Under this ftatute, if the judges did not approve of the verdi& of a petit jury, they fent them out again; but if the jury perfifted, the judges were obliged to record the verdi&. Greene v. Baker, Rec. I68o, fol. x I4. Attaints were brought fo often, that another flatute was paffed to check and regulate them, after which they became lefs frequent. Rec. x672- 83, paffim. St. I684, 5 Mafs. Col. Rec. 449; Anc. Chart. 147. The law of attaints in England in civil cafes was very like that of Maf- A ttaints in fachufetts. A verdict againft the inifructions of the Judges, if affirmed England. by the jury of attaint, was final. Lit. ~ 5I4. Co. Lit. 2I7 b, 294 b. Chevin & Paramour's cafe, Dyer, 20o a. 301, a, b. I Rol. Ab. i8o. Vin. Ab. Attaint, A. Com. Dig. Attaint, B. And, although the petit jury 560 Appendix II. jury could not be attainted for not confidering evidence ruled out by the Court, the authorities are not agreed upon the queftion whether following the inifructions of the Court would excufe them from an attaint. Heydon v. Ibgrave, Dyer, I29 b. 7hbe.queen v. Ingerfoll, Cro. Eliz. 308, 309. Needler v. Bidhop of JYinchefter, Hob. 227. Bufbhell's cafe, Vaugh. 145, 48, 50o, & T. Jon. 17. Chichefter v. Philips, T. Raym. 405. Groenvelt v. Bur'well, i Ld. Raym. 470. Bridgman v. Holt, Show. P. C. 123. According to the weight of authority, no attaint lay in a criminal cafe. Co. Lit. 294 b. Floyd & Barker's cafe, I 2 Rep. 23. Bufhell's case, Vaugh. 146, 3 T. Jon. I6. Lord Holt in Groenvelt v. Burzwell, I Ld. Raym. 469, & I2 Mod. 39I. i Hawk. c. 72, ~ 5. Bac. Ab. Juries, M. Trials per Pais, 274. I Chit. Crim. Law, 53o. Lord Mansfield, in 4 Doug. IIS. Lord Camden, in 17 Parl. Hilt. 731. Commonwealth v. Anthes, 5 Gray, 202, 291. 2 Hale P. C. 310, contra. Attaints ob- Attaints were apparently obfolete, both in England and in this counfolete. try, before the American Revolution. Gilb. C. P. 128. Bac. Ab. Juries, M. I. 3 Bl. Com. 389, 405. Barrington on Sts. ($th ed.) 74, 1o3. Hargrave's note to Co. Lit. I55 b. Witham v. Lewis, I Wils. 55. Eichorn v. Lemaitre, 2 Wils. 369. Bright v. Eynon, i Bur. 393. 2yj'ejn v. Clarke, 2 W. Bl. 942. Angier v. yackfon, ante, 85. Pownall's Adminiftration of the Colonies (3d ed.) Appendix, ~ 3, p. 44. 6 Dane Ab. 230, 244. Shauw, C. J., in Commonswealth v. Anthes, 5 Gray, I98, 202. Oaths of The prefcribed forms of oath, in the Colony and Province of Mafjurors in fachufetts, feem to have referred the jury to the eftablished law, rather Massachu- than to that laid down by the Court in the particular cafe. In the Mafsetts. fachulfetts Colony the ordinary oath of the petit jury required them to return a verdict "according to the evidence given you, and the laws of this jurifdiction." The grand jury's oath was fimilar. The " Oath of Life and Death" in Maffachufetts, and all the oaths of petit juries in the Plymouth Colony, were fimply "according to your evidence." 3 Mafs. Col. Rec. 48. Mafs. Col. Laws (ed. s66o) 86; (ed. i672) o07. Plyrn. Col. Laws (ed. I685) 73. By one of the earlieft acts of the Province thefe forms were fomewhat modified. The grand jurors' oath was put into fubftantially its prefent fhape, (ante, 268, note); one form was prefcribed for petit jurors in all criminal cafes, being the fame ufed in England (2 Hale P. C. 293) ending " according to your evidence;" and the " Jurors oath in civil caufes," in this form: " You fwear that in all caufes betwixt party and party that shall be committed unto you, you will give a true verdit therein according to law, and the evidence given you." Prov. Sts. 4 W. & M., p. 60. In fome objections forwarded to England againit the acts of this feffion, (for a copy of which from the State Paper Office in London, the writer is indebted to Mr. Henry T. Parker,) it was fuggefted " whether the words' according to law' in the juryman's oath be not to fpare, confounding the court and jury together." New England Board of Trade, 7 Original Papers, iS. Yet the act was confirmed by the King. Mass. Prov. Laws, (London ed. 1724) p. 28; (Boston ed. 1726,) p. 27. Powers and Rights of Juries. 56i It would have been ftrange, indeed, if the doubt suggested had been Opinions of allowed any force in England under a King who had appointed, as his Holt and higheft Judges in law and equity, Holt and Somers, of whom the firft in I697 declared from the bench that " in all cafes and in all adions the jury may give a general or fpecial verdict, as well in caufes criminal as civil, and the Court ought to receive it, if pertinent to the point in iffue, for if the jury doubt they may refer themfelves to the Court, but are not bound fo to do; " and in 1704 Submitted the criminality of an alleged libel to the jury; and the other had previoufly written, " The office and power of these juries is judicial; they only are the judges from whofe fentence the indi&ed are to expet life or death; upon their integrity and underfranding the lives of all that are brought into judgment do ultimately depend; from their verdi6t there lies no appeal; by finding guilty or not guilty, they do complicately refolve both law and faa. As it hath been the law, fo it hath always been the cuftom and pratice of thefe juries, upon all general iffues, pleaded in cafes civil as well as criminal, to judge both of the law and the fa&." 3 Salk. 373, pl. 6. 7iutchin's cafe, 14 Howell's State Trials, I 28, I129. Effay on Grand Juries, 9, 1o. It is hard to refift the temptation of paufing to weigh and compare Earlier Engthe earlier Statements and opinions of Glanville, Bracton, Fleta, Brit- lish authoriton, Fortescue, Littleton, Coke, Bacon, Milton, Sidney, Hale, Vaughan, ties. and the Judges who tried the Semen Bishops, with thofe of Chief Justice Bromley and Sir Nicholas Hare, Jufiice Clerk, Lord Commiffioner Keble and Juftice Yermyn, Juftice Berkeley, Lord Clarendon, Chief Juflice Hyde, Chief Jullice Kelyng and Juftice 7Iwisden, Sir John Howvel as Recorder of London, Chief Juftice Scroggs, Chief Juftice yeffreys, and Chief Juflice Herbert. But molt of them are familiarly known, and all are eafily acceffible. Glanville, lib. 2, cc. 7, 17, x8; lib. I3, cc. 7, I5. Bracton, lib. 4, c. I9; ~~ 3-6. Fleta, lib. 4, c. 9,~~ I-9. Britton (2d ed.), 130, 136, 2i9. Fortefcue de Laudibus, c. 26. Lit. ~ 368. 2 Inst. 426, 427. Hiftory of Henry VII., 9 Bacon's Works (ed. i824), 483; 5 Ib. 1 7. Defence of the People of England, 8 Milton's Works (Pick. ed ), i98, i99. Sidney's Difcourfes on Government, c. 3, ~ 26. 2 Hale's Hillt. Corn. Law (sth ed.), I41, 147, i55, i56; 2 Hale P. C. 3I2, 313. Bushell's cafe, Vaugh. 150, 153; 6 Howell's State Trials, Ixo6, 1017, 102 I. Cafe of the Seven Bishops, I2 Howell's State Trials, 426-430. 7ihrockmorton's cafe, i Howell's State Trials, 887. Udall's ca/i, lb. 1283, 1288. Lilburne's cafe,4 lb. I379-I38I, 40or. 2 Rufllworth's Hilt. Coll. 602, 603, 6II. Clarendon's Survey of Hobbes's Leviathan (2d ed.), 93, 126. Keach's cafe, 6 Howell's State Trials, 707. 7The King v. Wagstaffe, T. Raym. 138, & Hood's cafe, J. Kel. 50. Penn & Mead's cafe, 6 Howell's State Trials, 959-96X. Scroggs, arg. in Bushell's care, Freem. 3, & jud. in Harris's cafe, 7 Howell's State Trials, 930, & Carr's cafe, Ib. II28. Jeffrey,, arg. in Carr's cafe, Ib. IIIS, & jud. in Algernon Sidney's cafe, 9 lb. 889, b Barnardiston's cafe, Ib. 1349, 1352. Johnson's cafe, i I b. I349, 1 350. 7I No 562 Appendix II. Later English No other Englifh authorities upon this queflion" have been found in opinions. the reigns of King William II I. and Queen Anne. But. the opinions of later Englifh judges have generally been adverfe to the right' of the jury. Sir John Pratt in Galard's case, cited in 2 Cavendifh Debates, 362, 375. Lord Raymond, in Oneby's case, 17 Howell's State. Trials, 49,.2 Ld Raym. 1493, 1494, I Barnard. 17, & 2 Stra. 773; in Clark's case, I7 Howell's State Trials, 667 note, I Barnard. 305, 4 Doug. 166,'I67, & 21 Howell's State Trials, 1036; and in Francklin's case, Ib. 1o37, 4 Doug. 167, and i7 Howell's State Trials, 672. Lord Hardwicke, as Attorney General, lb. I669; in the Houfe of Commons, 8 Parl. Hift. I 29o; and as Chief Justice, the King v. Poole, Cas. temp. Hardw. 28. Chief Juftice Lee, in OQven's case, 4 Doug. I68, 21 Howell's State Trials, 1038, & i8 Ib. 1228. Chief Juftice Ryder, as Attorney Gen. eral, lb. I222; and as Chief Juftice, Rex v. Nutt, 4 Doug. i68, 2i Howell's State Trials, o038, and 20. Ib. 837 note. Sir Michael Fofter, Fofter's Crown Law, 255, 256. Mr. Juftice. Buller, at nisi prius, in the Dean of St. Asaph's case, 2I Howell's State Trials, 945-950. Sir William Blackfione, 3 B1. Com. 378; 4 lb. 36i. Serjeant Hatwkins, Lord Manf- 2 Hawk. c. 22, ~~ 21, 22. And, laft and moft important, Lord Manffield. field, as Solicitor General, in Owen's case, i8 Howell's State Trials, I223; and as Chief Juftice, in Shebbeare's case, 4 Doug. I69, & 2I Howell's State Trials, Io38; in Miller's case, 20 lb., 893, 895; in Woodfall's case, lb. 90o, 912, 9i8, 5 Bur. 2667, & Lofft, 778; and in the Dean of St. Asaph's case, best reported nom. the King v. Shipley, 4 Doug. 73, also in 2i Howell's State Trials, 956, and lefs fully 3 T. R. 428 note. If Erskine's great argument for the defendant in that cafe could be thought to have been influenced by the interefts of his client, fuch a view would add weight to Mr. Bearcroft's exprefs admiffion, in his argument for the Crown, of the right of the jury to take upon themfelves, if they pleafed, the decifion of every queftion of law involved in the general iffue, and to his refufal to adopt the fuggeftion of Lord Mansfield to fay " power " instead of " right." 4 Doug. 94 note. And Mr. Juftice Willes, who diffented from Lord Mansfield on this point, faid that Mr. Bearcroft expreffed " the Sentiments of the greater part of Weftminfler Hall." 4 Doug. 173, 175. It is worthy of remark that the earlier decisions of Lord Mansfield and his affociates were made without argument of this queftion. By Lord Mansfield, C. J. & Willes, J., 4 Doug. i69, I74; 2i Howell's State Trials., 1038, I039. And in Horne's Trial for a libel in faying that the Americans, " preferring death to flavery, were for that reafon only inhumanly murdered by the King's troops at or near Lexington and Concord in the Province of Maffachufetts on the g9th of April," 1775, Lord Mansfield himself Submitted to the jury the criminality of the alleged libel. 20 Howell's State Trials, 653, 759. See also Almon's case, Ib. 836, 838; Serjeant Glynn, ^lhurlovw, A. G., WVedderburn, S. G., Dunning & Burke, 2 Cavendifh Debates, 99-104, I25, I26, 145, 369, 373, 374. It Powers and Rights of Juries. 568 It is not propofed to do more than refer to well known authorities upon this fubjet. But there is one, (" undoubtedly the firit common Lord Camlawyerin England," as juincy jufily called him - Qincy's Life of den., QUincy, 329,) who should not be omitted in an invefftigation of American conmlitutional law from an ante-Revolutionary point of view, and who, upon a quelfion affefting the liberty'of the subjedc, outweighs all thofe.:cited in the laft paragraph, Lord Camden, whether as counfel for the defendant, as attorney general, or upon the bench,.uniformly maintained the dodtrine that the jury in criminal cafes. were judges of the-law as well as the fa&t. Owen's case, 18 Howell's State Trials, 1227. Hensey's case, x9 Ib. 1355, 1356. By Erskine, arguendo, 21 Ib. 928, Io02, & 4 Doug. I52. Pettingal on Juries, I22, cited 2z Howell's State Trials, 853. 2 Cavendifh Debates, I25, I42. By Lord Camden, 29 Parl. Hift. 1408. In the Houfe of Lords, in I77.o, upon. Lord Mansfield's leaving with the clerk the opinion in lVoodfall's: case, Lord Camden faid that he confidered it as a challenge diredted perfonally to himfelf, which he accepted; and declared himfelf ready to maintain that Lord Mansfield's doctrine was not the law of England; and put.to him queffions in writing, framed with a view to afcertain how far the opinion denied the right of the jury to decide the law in cafes of libel, which Lord Mansfield evaded anfwering. I6 Parl. Hist. I32I. 2 Cavendifli Debates, 352, note. 4 Walpole's Memoirs of George III., 216, 220, 221. Lord Chatham, as ufual, concurred with Lord Camden, and oppofed Lord Mansfield. I6 Parl. Hist. I305. Lord Camden retained the fame opinion to the end of his life. In his laft fpeech in the Houfe of Lords, in-the debates on Fox's Libel Bill in 1792, he declared that " the jury had an undoubted right to form their verdiE themfelves according to their confciences, applying the law to the faat; if it were otherwife, the firft principle of the law of England would be defeated and overthrown. If the twelve judges were to affert the contrary again and again, he would deny it utterly, becaufe every Englifhman was to be tried by his country; and who was his country but his twelve peers, fworn to condemn or acquit according to their confciences? If the opposite doctrine were to obtain, trial by jury would be a nominal trial, a mere form; for, in faEt, the Judge, and not the jury, would try the man. He would contend for the truth of this argument to the latest hour of his life manibus pedibusque.- With regard to the Judge stating to the jury what the law' was' upon each particular cafe, it was his undoubted duty fo to do; but having done fo, the jury were to take both law and faa into their confideration, and: to exercife their difcretion and difcharge their confciences." 29 Parl, Hist. 1536. See alfo, lb. 729, I408; and I Lord Brougham's Statesmen of. George III. 3d feries (ed. I853), 2i6, 217. In the Province of Maffachufetts, and for many years after the adop- Pradtice in tion of the State CGonftitution, trials by jury were held before the whole Province of bench, and the Judges expreffed their feveral opinions or doubts to the Mafiachujury; and on a review in the fame. Court before a new jury, each dif fetts fenting 564 Appendix II. fenting Judge reargued the cafe. Province v. Paxton, ante, 552 note. Ernving v. Cradock, supra, 555, 556, notes. Bromfield v. Little, ante, oS8. Pateshall v. Apthorp, ante, I85, I86. Richardson's case, 3 Hutchinfon's Hift. Mafs. 286. Trial of British Soldiers, (ed. 1770), I78, I97, 207; (ed. i824), 122, I36, 143. Common-wealth v. Boston, 2 Monthly Anthology, 99. Shao, C. J. in 9 Pick. 569, 570. Hutchinfon. Hutchinson nowhere appears to have afferted that the jury were bound to take the law from the Court. In theProqvince v. Paxton he fays that the Court-" cautioned the jury againft departing from the rules of law, and confequently from their oaths." Ante, 552, note. Their oaths, it will be remembered, referred them to the law, not to the initru6tions of the Judges. Supra, 560. The moft that is reported in other trials at which Hutchinson prefided is that the Judges "imagined," or " fuppofed it was proper," that the jury should be influenced by their opinion in matter of law. Supra, 557. Trial of Warren 48 others, ante, 249. In an aEtion brought to recover land claimed under a will, and tried before the whole Court in 1767, an objedion that the will gave the demandant no title, and therefore should not be admitted, was unanimoufly overruled, as 4" the firft of the kind ever made" and "fubverfive of the hitherto uninterrupted courfe of pradtice "; and " the Court faid, the will Ihould go in as evidence to the jury, who, upon finding the fpecial matter, would bring the point of law properly before the Court." Gibbs v. Gibbs, ante, 25x, 252. But the Court do not appear to have faid what could be done if the jury should insist on returning a general verdi&t for the tenant. Trowbridge. Soon after the appointment of Trowbridge, a learned crown lawyer, who had been Attorney General of the Province, and was better acquainted than the other Judges with the recent Englifh text books and decisions, the rulings of the Superior Court of Judicature tended to limit the right of the jury. In a civil ation for libel in 1767, Lynde, Cushing, Olizver and 7Trowhridge, JJ., refufed to allow John Adams to argue to the jury whether the words were adtionable or not. Cotton v. Nye, Rec. 1767, fol. 228; 2 John Adams's Works, 207. Among Judge 7Trowbridge's MSS. is a memorandum, in his own handwriting, indorsed " Jurors to take the law from the Court," containing references to 2 Hawk. c. 22, ~~ 21, 22, and Plow. II4, 231, 259, 496. And upon Trial of Brit- the trial of the British Soldiers in December, I770, he instrudted the ish Soldiers. jury accordingly, relying on Hawkins, Lord Raymond, and Foster. Trial of British Soldiers, (ed. 1770), i86; (ed. 1824), 127. Josiah -,yincy, Jr., in opening the defence, had taken the fame ground. lb. (ed. 177o), 69, 136, 143, 144; (ed. I824), 44, 45, 86, 92. But John Adams, affociated with -uincy, lefs carried away by zeal for his client, argued the law at length to the jury, and appealed, for the rules of law which muft govern the cafe, only to the authorities which he cited. Ib. (ed. 1770), I49, i55, I56, I6o; (ed. 1824), 96, I04, o05, I10; I Gordon's Hillt. U. S. 291, 296. The real danger there was that the jury would Powers and Rights of Juries. 565 would not be reftrained by any rules of law from conviefing the prifoners; and the counfel for the Crown did not difpute the principles of law upon which the defendants relied. Paine's Argument on the Trial of the Soldiers, (ed. I824), II8. 2 John Adams's Works, 236. And see Ib. 317. It is alfo to be remarked that thofe foldiers who were conviated againil the instruaions of the Judges were branded in the hand by order of the Court. Rec. 1770, fol. 55. Bofton Gazette of December I7, 1770. Among Judge Trowbridge's MSS., under the head of " New Tryals in Criminal Cafes," is this colleation of authorities: Rex v. Davis, i Show. 336. Regina v. Clarke, I Stra. io6. Rex v. Walthamstow & Wilts, I Stra. IoI. Dr. Salmon's case, r Stra. I04. Regina v. Bewvdley, I P. W. 212. Rex v. Marchant, 2 Keb. 403. Rex v. Hannis, 2 Keb. 765. Rex v. Bovwden, I Keb. 124. Regina v. Banks, 6 Mod. 245. Anon. 3 Salk. 362. Rex v. Simmons, I Wils. 329. Rex v. Smith, 2 Show. I65, & T. Jon. I63. Rex v. Read, I Lev. 9. Rex v. Jackson, I Lev. 124. To which Judge 7'rowobridge adds, " In the cafe of ye King agst Jackson it feems to be agreed by ye whole Crt that a new Tryal could not be had in a Capital Cafe." And the ftatements of Hutchinson and Bernard, concerning the Trial of the Soldiers and the previous convidtion of Richardson for murder in the fame year, show that when a jury conviEted againft the inftrutions of the Court, the only remedy was fuppofed to be to refpite the prifoner until a pardon could be obtained from the King. 3 Hutchinfon's Hilt. Mafs. 286, 287, 328. Hutchinfon to Gage, April 22, 1770, 25 Mafs. Archives, 387. Bernard to Hutchinfon, July 15, 1770, 8 Bernard Papers, Iog. Hutchinfon's Letters, November 26, December 3, 5 & 6, 1770, 27 Mafs. Archives, 58, 63, 64, 65, 67. Richardson's case, Rec. I772, fol. I. That John Adams did not consider the Case of the British Soldiers as John Adams. conclufive againft the rightof the jury to decide the law in favor of any man notwithftanding the instrudions of the Court, even in a civil aftion,' is clearly shown in his own notes of an argument made by him immediately afterwards. In an adtion to recover a balance of account, tried in the Inferior Court, Adams fays, " the jury found a verdidt for the fum fued for. Kent moved it should be rejected. I denied the power of the Court to rejedt it, and faid if he would move for a new tryal, that would not be without a precedent in the Superior Court, tho' it would be in an Inferior Court." MS. note by John Adams of Wright & Gill v. Mein, January term I771, in the poffeffion of Mr. Charles Francis Adams. Then follows this collection of authorities, apparently noted as they were found: St. Westm. 2, c. 30. Barrington on Sts. (2d. ed.) 74, 103, [sth ed. Ioo, 136]. Lord Mansfield in Baldrwin's case, Junius to Ld. M. [Letter of November 14, 1770]. 3 B1. Com. 378. 5 Bac. Ab. 285, 286, 292, 1" relating to general and fpecial verdit," [VerdiEt, C., D]. I Inst. 228 a. Lit. ~ 368. Ra'wlyns' case, 4 Rep. 53 b. Oneby's case, 2 Ld Raym. 1490, 1494. Foster, 255. I Trials per Pais 566 Appendix II. Pais, 283. Bright v. Eynon, I Bur. 393. Argent v. Darrell, Cas. temp. Holt, 702. A/h v. AJh, lb. 701. Gay v. Cross, Ib. 703. Bujhell's case, Vaugh. I47. [A.non.] I Salk. 405. [S. C. Wright v. Crump,] Farr. [7 Mod.] 2. Fitzjames v. Moys, I Sid. 133. Graves v. Short, Cro Eliz. 6I6. Cunningham Law Dict. Attaint, 3. Gilb. C. P. I28. I B1. Com. 63. Lord Camden's Q.uestions to Lord Mansfield in the Houfe of Lords, [ante, 563]. 4 B1. Com. 354, 43I. Baker's case, 5 Rep. Io4. At the end of all which Adams adds: "' Mem. Everything that is faid by the Court to the jury, is uniformly ftyled in our books a direEtion. So the Court give a charge to the grand jury to prefent a particular offence, &c. But the queftion is whether the jury are bound, in point of confcience or of law, to obferve that direEtion and find according to it? Are they fubjeEt to any penalty, or fine or imprifonment if they find contrary to that diredion? No man will fay that they are." In the Superior Court, on appeal, at February term I77 I, the plaintiff filed a new declaration, and obtained an increafed verdi&, upon which judgment was rendered, although the defendant moved for a new trial. Mein v. WVright, Rec. I77 I, fol. I0o, and papers on file. It is manifeft from the coincidence in date that the discussion in John Adams's Diary, from which the following extra& is taken, was part of his preparation for the argument of this cafe: " The oath of a juror, in England, is to determine caufes' 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 expreffed by the words of the oath here; and whenever a general verdidt is found, it affuredly determines both the fadt and the law. It was never yet difputed or doubted that a general verdi&, given under the diredtion of the Court in point of law, was a legal determination of the iffue. Therefore the jury have a power of deciding an iflue upon a general verdid. And if they have, is it not an abfurdity to fuppofe that the law would oblige them to find a verdidt according to the direction of the Court, again(t their own opinion, judgment and confcience? It has already been admitted to be moft advifable for the jury to find a fpecial verdi&, where they are in doubt of the law. But this is not often the cafe; a thoufand cafes occur in which the jury would have no doubt of the law, to one in which they should be at a lofs. The general rules of law and common regulations of fociety, under which ordinary tranfadtions arrange themfelves, are well enough known to ordinary jurors. The great principles of the Conflitution are intimately known; they are fenfibly felt by every Briton; it is fcarcely extravagant to fay they are drawn in and imbibed with the nurfe's milk and firft air. Now, should the melancholy cafe arife that the Judges should give their opinion to the jury againft one of thefe fundamental principles, is a juror obliged to give his verdidt generally, according to this diredtion, or even to find the fad fpecially, and fubmit the law to the Court? Every man, of any feeling Powers and Rights of Juries. 567 feeling or confcience, will anfwer, no. It is not only his right, but his duty, in that cafe, to find the verdi& according to his own beft underftanding, judgment, and confcience, though in dire& oppofition to the dirertion of the Court. A religious cafe might be put, of a diredion againift a divine law. The English law obliges no man to decide a caufe upon oath againft his own judgment, nor does it oblige any man to take any opinion upon trufi, or to pin his faith on the fleeve of any mere man." 2 John Adams's Works, 254, 255. This was when he was in the height of his pradtice at the bar, the first consfitutional lawyer of the Province, and only four years before he was appointed by the Revolutionary Government, upon the removal of 2Trobwridge and his colleagues, Chief Juftice of Maffachufetts. 3 lb. 23, note. By refigning that office without ever having taken his feat, he laid aside the opportunity of carrying out himfelf on the bench the principles which he had uniformly maintained at the bar. But thefe principles were fuppofed to be the law of Maffachufetts long Law of Mafafter the adoption of the State Conftitution. Even in civil cafes, the fachufetts in right of the jury to decide the law feems to have been recognized until civil cafes. since the beginning of the prefent century. Stickney v. Jtwood, (1784) 6 Dane Ab. 251. Sullivan on Land Titles (1 80), 343. Coffin v. Coffin, (i8o8) 4 Mafs. 25. St. I8o7, c: I40, ~ i5. But the power of the Court to grant new trials, which appears to have been in familiar ufe before the beginning of the regular feries of reports, has prevented the rendering of judgments on verdiats againft the directions of the Court in civil cafes. Bro.twn v. Swan, I Mafs. 202. Cogsawell v. Brown, I Mafs. 237. St. x804, c. Io5, ~ 6. Bryant v. Common-wealth Ins. Co. i3 Pick. 55o. Coffin v. Phenix Ins. Co. 15 Pick. 295. Cunningham v. Magoun, i8 Pick. iS. Miller v. Baker, 20 Pick. 289. And it has recently been determined that if the evidence introduced by the plaintiff in a civil a~tion " is fuch that the Court would fet aside any number of verdidts rendered upon it, toties quoties, then the caufe should be taken from the jury, by instruEting them to find a verdi&t for the defendant." Denny v. Williams, 5 Allen, 5. And fee Steinmetz v. Currey, I Dall. 234; Chandler v. Van Roeder, 24 How. 226, 227. In criminal cafes, the right of the jury to decide the law was repeat- In criminal edly recognized and affirmed, and never denied, in Maffachufetts, until cafes. 1846, since which it has been difallowed. 7Theophilus Parsons, in Mafs. Debates on U. S. Constitution in I788, (ed. i856) I94, 195; 2 Elliott's Debates, (2d ed.) 94. Pamphlet Trials of Bonwen (i8i6) St, 52, 56, and Phillips (i8I7) I7. Parker, C. J., Mr. Dutton, and Jackson, J. in Debates in Mafs. Convention of i820, ted. I853) 540-542. Common-'wealth v. Blanding, (I825) 3 Pick. 305. Pamphlet Trials (i828) of Lyman, 6o, and Child, go. Commonswealth v. Knapp, (I830) Io Pick. 496. Bryant v. Common'wealth Ins. Co. (1833) I3 Pick. 55o, 55x. Pamphlet Trial of Snelling, (1833) 75. Common'wealth v. Kneeland, (I835) 20o Pick. 208, 227; Review of, by Cofmopolite, 25. Common-oealth 568 Appendix II.'wealth v. Porter, (1846) IO Met. 263. Commonswealth v. Abbott, (1847) I3 Met. I23. St. I855, C. i52. Commonswealth v. Anthes, (1857) 5 Gray, I85. Commonwealth v. Martin, (1857) 5 Grav, 303, note. Commonwealth v. Lawrence, (1857) 9 Gray, 135. Common-'wealth v. Rock, (i857) io Gray, 5. In Maine, the law is eftablifhed in favor of the right of the jury in Maine. Vermont. criminal cafes. State v. Snotw, (1841) i8 Maine, 346. And in Vermont, State v. Williams, (i829) 2 Verm. 488, 489. State v. Croteau, (I849) 23 Verm. I4. State v. McDonnell, (I860) 32 Verm. 531. In New Hamp- New Hampshire, it once was, but has fince been decided otherwife. Pamphlet Trials of Farmer (I 8z I) 68, and Blaifdell (I 822) 54. Pierce Rhode If- v. State, (I843) 13 N. H. 536. So in Rhode Island, the earlieft laws land. recognized the right; but the modern decifions are adverfe to it. I R. I. Col. Rec. (I647) 203, 404. Dorr's T'rial, (I844) (Pitman's ed.) 121, ConneAicut. 122, 13I. State v. Smith, (i859) 6 R. 1. 34. In Conne&icut, the right of the jury to decide the law has been acknowledged fince the Revolution, even in civil cafes, and feems to be ftill in criminal cafes. Witter v. Brewfter, (1788) Kirby, 423. 2 Swift's Dig. (1823) 412. New York. In the Province of New York, the right was repeatedly afferted by counfel in criminal cafes, and not denied by the Court. Bayard's Trial, (1702) 14 Howell's State Trials, 502, 503, 505. Zenger's Trial, (i735) I7 lb. 706, 722, 723. See also Remarks on Zenger's Trial by " two eminent lawyers in one of our Colonies in America." lb. 726, 73'. The Supreme Court of the State of New York in 1804 was equally divided upon the queftion, Kent & Thompson, JJ. affirming the right, and Lerwis, C. J. & Livingston, J. denying it. People v. Cro~fwell, 3 Johns. Cas. 337. The queftion does not appear to have been since argued before the fame Court or the Court of Errors or Court of Appeals in that State. But the right of the jury was repeatedly affirmed in 1825 by!Yalrworth, J. (afterwards Chancellor). People v. rhayers, I Parker C. C. 598. People v. Fideto, Ib. 604. It has lately been denied by fome Judges of the local Supreme Courts. People v. Pine, (I848) 2 Barb. 568. People v. Finnegan, (I848) I Parker C. C. 152, I53. Carpenter v. People, ( 85o) 8 Barb. 6 I I. Safford v. People, New Jerfey. (I854) I Parker C. C. 480. In New Jerfey, the right was affirmed by early ilatutes. Weit New Jerfey Laws of I676, cc. I9, 22; i68i, cc. 6, 7, IO; (Leaming & Spicer's ed.) pp. 396, 397, 398, 428, 429. See alfo Dickinfon's Farmer's Letters, (Boston ed. 1768) 5I. Pennfylvania. In Pennfylvania, before the Revolution, the right of the jury to decide the law for themfelves appears, from the notes of Prefidents Shippen and Reed (I Dall. 30), to have been admitted, even in civil cafes. Albertson's lessee v. Robertson, (1764) I Dall. 9. Boehm v. Engle, (1767) lb. x6. Proprietary's lessee v. Ralston, (I773) Ib. I9. Anon. (I773) Ib. 20.' And in x784 M'Kean, C. J. began his charge in a civil cafe by telling the jury that as the counfel " have quoted many cafes, but have not appealed to the Court for their opinion on the different points of law, the jury muft take the whole together, and form their own judgment upon Powers and Rights of Juries. 569 upon the subjet." Wilcox v. Henry, lb. 7 I. This report had been revised by the Chief Jutice. Ib. pref. iii. The only American Judge between the Revolution and the year I 8oo, who is known to have denied the right of the jury to decide the law in a criminal cafe, was a Judge of a Court of Common Pleas in Pennfylvania. Addifon's Charges to Grand Juries, (I792) 53. Pennsylvania v. Bell, (x793) Addifon R. I6o, I6x. Pennsylvania v. M'Fall, (I794) lb. 257. He was afterwards impeached by the Houfe of Reprefentatives, and removed by the Senate, and difqualified to hold any judicial office in the State, for interfering with the rights of an affociate in charging the grand and petit juries. Addison's Trial, Lancaster, 1803. And the right of the jury in criminal cafes was then generally recognized in Pennfylvania, as is fhown by the teftimony of her moft eminent lawyers upon the trial of Judge Chafe in 1804. Teftimony of William Lewois and Edward'Tlghman, I Chafe's Trial, (Smith & Lloyd's ed.) 13I-I35, 148; lb. (Evans's ed.) 20, 21, 27. And it feems to be flill in that State. John Read, arguendo, in Han'way's Trial, (185 r). Guffy v. Common.wealth, (I853) 2 Grant, 68. In Virginia, the right of the jury in criminal cafes feems to be ad- Virginia. mitted, though the early authorities are fironger than the later ones. Mautry v. Collector of Hanoever, (1763) Wirt's Life of Patrick Henry, 27, 28. Statements of Hay and Nicholas, I Chase's Trial (Smith & Lloyd's ed.) I75, 176; lb. (Evans's ed.) 36, 92. Dance's case, (1817) 5 Munf. 363. Davenport v. Commonwealth, (I829) I Leigh, 596. Leigh, as amicus curiae, in Garth v. Common'wealth, (1831) 3 Leigh, 770, 7776 Amer. Jurist, (1831) 243. Doss v. Commonswealth, (1844) I Grattan, 559. Delaplane v. Crenshaw, (I86o) I5 Grattan, 482. Also in South CaroSouth Carolina. State v. Allen, (1822) I McCord, 529. And in lina. Tenneffee. Mitchell v. State, (1 833) 5 Yerger, 346, McGowan v. State, Tenneffee. (1836) 9 Yerger, 195. Nelson v. State, (I852) 2 Swan, 486, 487. But it is believed to have been denied in every other Southern State in which the queftion has arifen, except where, as in Georgia and Arkansas, it had been efiablished by exprefs enadtment. Conifitution of Georgia Georgia. of 1777, arts. 4I-43, Watk. Dig. 14. Georgia Penal Code of I833, div. 14, ~ I6, Prince's Dig. 66o. Holder v. State, (I848) 5 Georgia, 444, 445. Ricks v. State, (I855) i6 Georgia, 603-605. McPherson v. State, (1857) 22 Georgia, 484, 485. Rev. Sts. of Arkansas, c, 85, Arkansas. ~ 25. Patterson v. State, (I846) 2 Englifh, 6o. Sandford v. State, (850o) 6 Englifh, 331. It was early denied in Maryland. Judge Win- Maryland. chester and Luther Martin, (I804) I Chafe's Trial, (Smith & Lloyd's ed.) 297; 2 lb. I5o, ISI; Ib. (Evans's ed.) Io6*, 182, 183. And even after the Conititution of that State in I 85 had expreffly declared that " in trial of all criminal cafes the jury flall be judges of the law as well as the fa&," the Court of Appeals decided that the jury had no right to judge of the constitutionality of a ftatute. Franklin v. State, (I8S8) I2 Maryland, 246, 249. The right of the jury to decide the law is de72 nied 570 Appendix II. North Caro- nied in North Carolina. Statev. Peace, (I854) I Jones N. C. 251. In lina. Alabama. Pierson v. State, (1847) 12 Alab. 153, 154, and Batre v. Alabama. Alabama. State, (i85o) x8 lb. 123, 124, modifying the earlier opinion in State v. Mifliffippi. yones, (1843) 5 lb. 672-674. In Miffiffippi. Williams v. State, (x856) Kentucky. 32 Mifs. 389. In Kentucky. Montee v. Common'wealth, (1830o) 3 JJ. Marfh. 149, 50o- Commonwealth v. ran ruyl, (x858) i Met. Ky. Miffouri. S. In Miffouri. Hardy v. State, (1842) 7 Miffouri, 607. And in Texas. Texas. Nels v. State, (1847) 2 Tex. 282. It has alfo been denied in Ohio. Montgomery v. State, (1842) ii Ohio. Ohio, 427. Robbins v. State, (1857) 8 Ohio State R. x66, x67. In Indiana. Indiana, the right was firft denied, then affirmed, again denied, and finally eftablifhed by an amendment of the Conflitution. Totwnsend v. State, (iSzS) 2 Blackf. Ii. Armstrong v. State, (1836) 4 Blackf. 247- Carter v. State, (185i) 2 Ind. 619. Williams v. State, (x858) 1o Ind. 503. Power of the The authority of the Legiflature to confer this right upon the jury (if Legiflature. they did not have it before) was recognized by the whole Supreme Court of New York in People v. Croszwell, 3 Johns. Gas. 413; afferted by Jackson, De'wey and rhomas, JJ. of the Supreme Court of Maffachufetts, and denied by Sha-w, C. J., Metcalf, Bigelowo and Merrick, JJ., of the same Court. Debates in Mafs. Convention of 1820 (ed. 1853) 542. Commonwealth v. Anthes, s Gray, 222,236, 250, 251, 303~ There can be no better evidence of the recognition in the laft century of the right of the jury to decide the law, even in civil cafes, than the U.S. Supreme unanimous decifion of the Supreme Court of the United States, as deCourt. dared by Chief Juflice Jay in 1794 in a civil caufe of great importance, to which a State was a party, and which was therefore tried at the bar Georgia v. of the Supreme Court. Georgia v. Brailsford, 3 Dall. 4. The authenBrailsford. ticity of the report of that cafe is hardly open to queftion. It had probably been fubmitted to Chief Juftice Jay himfelf; for there is no reafon to doubt that Mr. Dallas kept up the praftice, which he had eftablished in his firft volume, of fubmitting each cafe, before printing, to " the examination of the prefiding judge of the Court in which it was determined." i Dall. pref. iii. And the report was quoted by Alexander Hamilton, within ten years after the decifion, in a criminal trial of great importance and intereft, and its accuracy not difputed. People v. Crofwell, 3 Johns. Cas. 347, 358. "Speeches at full length" in that cafe, published in New York in 1804, pp. 11, 49, 77. Cabot v. Another cafe, not ufulally referred to upon this fubject, which came Bingham. before the Supreme Court of the United States in 1795, prefents fo curious an analogy to the cafes of the Province v. Paxton, ante, 548, and Erving v. Cradock, supra, 553, as to be worthy of being here flated. In an action for money had and received, the defendant contended that he received the money as agent of the United States at Martinique, for the fale, purfuant to a decree in admiralty there, of a neutral veffel, captured and sent in to that ifland during the Revolutionary War, by an American privateer Powers and Rights of Juries. 571 privateer owned by the plaintiffs. The jury, under the inftru&ions of the Circuit Court, returned a verdiEt for the plaintiffs, and the defendant fued out a writ of error. Cabot v. Bingham, 7 Dane Ab. 655 & seq.; 3 Dall. I9; Printed Cafe of the Danifh Brig the Hope. Mr. Dane fays that the common law courts in Maffachufetts had previoufly been in the pradtice of trying the queftion of prize or no prize, when it arofe incidentally; contrary to the pradtice in England and in other States. 7 Dane Ab. 645, 646, 659, 660. In the Supreme Court of the United States, Iredell, J., in giving his opinion in favor of the jurifdidtion of the Court below, faid: " It will not be fufficient to remark that the Court might charge the jury to find for the defendant; becaufe, though the jury will generally refpect the fentiments of the Court on points of law, they are not bound to deliver a verdi& conformably to them." 3 Dall. 33. Neither of the Judges expreffed any doubt of this, but the Court was equally divided on the queftion of jurisdidtion. The extent of the rights and duties of juries in this respeEt has not fince come before the Supreme Court of the United States. But indi- Other opinvidual Judges of that Court, before and after the cafes juft cited, repeat- ions of U. S. edly affirmed the right of the jury to judge of the law in criminal cafes. Judges. Iredell & Wilson, JJ. in Henfield's Trial, (I793) Wharton's State Trials, 87, 88. 2 Wilfon's Works, 372. Chase, J. (x8oo) in Trial of Fries, 196; of Callender, Wharton's State Trials, 634, 709, 7I0, 713 & seq.; and on his own trial, (i804) (Smith & Lloyd's ed.) 34, 35, (Evans's ed.) Appendix, 44, 45. Marshall, C. J. in I Burr's'rial, (I807) 470; 2 Ib. 444, 445, 448. Du'vall, J. in Trial of Hodges, (I8I5). Baldwin, J. (I830) in United States v. Wilson & Porter, Bald. 99, Io8. See alfo 7'almadge, J. in Trial of Smith & Ogden, (i8o6) 236, 237; Cases under the Embargo Laws, 3 Bradford's Hist. Mafs. Io8, & Lyman's Trial, 41. And this right does not feem to have been denied by any Judge of the Supreme Court of the United States before I835, except upon questions of the conflitutionality of ftatutes, of which an exception was made by Patterson, J. in United States v. Lyon, (1798) Wharton's State Trials, 336, by Chase, J. in Callender's Trial, ub. sup. and by Baldtwin, J. in United States v. Shi've, Bald. 512 -a diftinction which can hardly be maintained. See Theophilus Parsons in Convention of 1788, ub. sup.; Shaw, C. J. in Commonswealth v. Anthes, 5 Gray, I88-192; Curtis, J. in United States v. Morris, I Curt. C. C. 59; ante, 529. But the more recent opinions of fome Judges of the Court deny the right of the jury to decide the law adverfely to the inftrudtions of the Judge in any cafe whatever. Story, J. in United States v. Battiste, (1835) 2 Sumner, 243; Curtis, J. in United States v. Morris, (I85I) I Curt. C. C. 4963; and fundry unreported cafes. It is worthy of notice how the history of this queftion after the Eng- Conclusion. lish Revolution of i688 repeated itfelf in America nearly a century later. The great conftitutional lawyers and judges of either Revolutionary period 572 Appendix II. period - Somers and Holt; Adams, yay, Wilson, Iredell, Chase, Marshall, Hamilton, Parsons and Kent with one voice maintained the right of the jury upon the general iffue to judge of the law as well as the fa&. But they had hardly paffed away, or fifty years elapsed fince either Revolution, when the courts of the new government began to afiert as much control over the confciences of the jury, as had been claimed by the moft arbitrary Judges of the Monarch whom that Revolution had overthrown. The analogy recalls the motto from Grotius, placed by Mr. Dallas upon the title-page of his reports: Atque eo magis necessaria est hac opera, quod et nostro seculo non desunt, et olim non defuerunt, qui hancjuris partem ita contemnerent, quasi nibil ejus prarter inane nomen existeret. APPENDIX III. Governor Pownall's Meffage to the Council upon 1760. the Jurifdi&ion of Judges of Probate. Governor's PROVINCE OF THE MAS- Meffage upon SACHUSETTS BAY. Judges of Probate. At a Court of Probate held by the Governor, with the Probate Rec. Lib. I. fol. I. Council or Afliiants at the Council Chamber in Bofton on the 9th day of February A. D. I760. His Excellency having been pleafed to lay before the Court fundry matters to be by them confidered, the fame were referred to a Committee and are as follows, viz.: GENTLEMEN, — By the Royal Charter granted to His Majefty's Province the Maffachufetts Bay, it is Eftablifhed and Ordained " That the Governor of faid Province or Territory for the Time being, with the Council or Assistants, may Do, Execute or Perform all that is neceffary for the Probate of Wills and Granting of Adminifirations for, touching or concerning any Interefts or Eftate which any Perfon or Perfons fhall have within our faid Province or Territory " -with Liberty to the Subjed of Appeal to His Majefty. The Governor with the Council or Aflifrants is thus Conftituted a Court of Jufiice of fuch Ample Jurifdi&ion and important Powers as feem not to have been hitherto fufficiently attended to; And to this Inattention it muft be Imputed that the Idea of the nature of the Court and the Laws 574 Appendix III. 1760. Laws of Praaice which it ought to adopt should fo long ~~ remain Vague and Indeterminate, And the Court itfelf still exifi without a Seal, Records and Rules or even the Common Formalities of a Judicial Court. In order to Eftablifh Thefe neceffary Points and form forne Regular Plan of Conduct it fhould be obferved That This Court and this Only is immediately Conftituted by Charter antecedent to all Provincial Law. The matter fubjedced to its Judgment is all Eftates and Interefrs in this Province fo far as they are connected with the Probate of Wills or the Granting Adminiftration. The Jurisdition Granted is the Execution of this Probate of Wills or Granting Adminifiration with all that is neceffary thereto. Thefe things under the old Charter were cognizable in the County Court; and in England, so far as concerned Perfonal Eftate, in the Spiritual Court only. As the bufinefs of this Court was never the Object of Common Law; And as its Proceedings for the moft Part are in matters Executory and cannot admit of Tryals and Proceffes according to the Methods of the Common Law, it cannot be a Common Law Court. As it is a Judiciary of Laymen and cannot execute its Decrees by Excommunication and Ecclefiaftical Cenfures it cannot be deemed a Spiritual or EcclefiaJlical Court. It therefore follows that it is A CIVIL LAW COURT. This Idea will not only point out to us what ought to be the Rules or Pradtice of this Court; but from this alone can its prefent method of administration be accounted for. No Common Law Court has a power of Subifitution; No Law of the Province eftablifhes the Court of the County Judges of Probates, Though many Laws recognize them as Conflituted. This power of Subifitution or Delegation is Incidental to every Civil Law Judge, and this Incidental Right is fpecially mentioned in the Charter by the words all that is neceffary thereto. The Wifdom therefore of our Predeceffors has from this Idea, understanding the Power they were Vested with by faid Judges of Probate. 575 faid Grant of a Civil Law Jurifdidtion, Delegated or Sub- 1760. stituted Judges of Probates in the feveral Counties who are thereby by Inferior Civil Law Courts for Distindt Peculiars, and fubfift by a Delegation of Power to Judge in the firit Inftance from whom lies an appeal to the Governor with the Council or Affiifants as the Superior Court of the Province for fuch matters. All Civil Law Courts in England (whether they be called Spiritual or merely Civil) are controulable by the King's Bench; but the State and Relation of thefe Delegates of the Supream Power in the Province exempt them from receiving Prohibitions and Mandamus from the Common Law Superior Court. An appeal to his Majefty in Council does, in this Cafe as in all others fpecifyed by the Charter, lye from their Decrees, and there alone the Grievance can be redreffed. But in the mean while in all fuch Cafes wherein an Inhibition or Mandamus would iffue in England there feems to be by the prefent indeterminate method of Pradrice of this Superior Civil Law Court, a defedt of Juftice. And yet the Proper and conftitutional Remedy does by Charter lye within their Jurifdition. The Provifion made by the Laws of this Province refpeAing Infolvents Estates and other matters which impower the Judge of Probate to Execute thefe matters - Thefe matters being the Subjed matter of Chancery and Appeal lying to the Governor with the Council or Affiftants - The Governor with the Council or Affiftants Ads in fuch Cafe as a Civil Law Court Remedial or a Court of Chancery. This Court Therefore being a Civil Law Court having Jurifdidion in thofe matters wherein the Spiritual or Ecclefiaftical Courts and the Court of Chancery in England exercife Jurifdidion, Tlhe Civil Law fo far as it hath been adopted or recognized as authority in either the Ecclefiaftical Courts or the Court of Chancery and fo far as it hath been eftablifhed by Law in England ought to be the Law and Rules of this Court, fo far as the Circumftances and 576 Appendix III. 1760. and Laws of this Province will admit of fuch Recep~~ 2 ~tion. The Civil Law is the Bafis of the Pradice of the Ecclefiaftical Courts in England, but they have admitted alfo of fome of the Papal and other Decretals, the Canons, &c: and have alfo incorporated therewith Ads of Parliament and Refolutions of Comon Law Courts by which they have been controuled. Their is the Rule of Pra~dice in that Court in England. And therefore fo far as this Superior Civil Law Court adts in matters wherein that Court exercises Jurifdifdion it may receive faid Rule as the rule of its Pradtice; Though the Civil Law alone fhould ftill be the Basis of its Pradice fo far as the Circumftances and Laws of the Province will admit. In the fame Manner where the Objets or Matters are matters cognizable by Chancery and come under the Jurifdi~dion of this Court; the Civil Law with fuch alterations and additions as has been made in that Cafe by the Common and Statute Law of England fhould, fo far forth as faid Law extends hither or is received as the Common Law of the Country, be the Bafis of the Rules and Pradtice of the Civil Law Court; as Chancery is itfelf in great meafure in its proceedings, Examination of Evidence, Hearings and Determinations, a Civil Law Court and regulated by the Forms and the Rules of fuch. This Point being precisely Determined, the Rules and Laws of thefe Courts are Fixed and Known, Things taken up by the Wifdom of the Courts and Eftablifhed by the Experience of Ages. There is one matter further which deferves very ferious Confideration as to this Court of Governor with the Council or Affiftants, the confidering of which in this Light will relieve it of very great difficulties and embaraffment -It is concerning a matter not subject to its Jurifdidion by Charter but fubjedted to it by a Law of this Province. By an A&d of this Province, Confirmed by their Majefty's William and Mary Augt 22, 1695, "all Controverfies concerning Marriage and Divorce are to be heard and Determ ined Judges of Probate. 577 termined in a Court of Civil Law, in which Courts Quef- 1760. tions of Divorce are Determinable fo far forth as Marriage by the Law 6f the Province is efteemed a Civil Contradt, fo far may it be Determined in faid Court. Divorce in the genuine and original Senfe of that Word was Diffolutio Vinculi Matrimonii. It fuppofed the Exiftence and real Validity of the Marriage, and from thence Determined the Contra& and abfolved the Parties from the Civil Covenant. In this Senfe of the Word the Civil Law Courts ufed to Divorce, and refcind this Kind of Contra& as they did others, either for Fraud and grofs Circumvention in entering into the Contrad or for Effential Contraventions Subfequent to it. When the See of Rome took this Power out of the hands of these Lay Courts, It gave to the Spiritual Court Power only to Judge whether the Marriage was originally Valid according to Canon Law, and if not, to pafs Sentence of Nullity, as void ab Initio: And alfo for certain Caufes (when the Perfon were adually under the Tyes of Matrimony) to order the Parties to live Separate, till both parties fhould agree to come together again as before, and improperly called thefe, which were Controverfies of Marriage, Sentences of Divorce, Whereas the real Power of Divorce a Vinculo the Pope referved in his own hands. And thus Matters continued to the Reformation, when Henry the 8th, Vindicating to himfelf the Legal Power of the Supremacy, The Power of the See of Rome being by a& of Parliament abolifhed in England, Henry referred this Power to Parliament, and there alone it rests in England. If the Law of this Province Veils this Power in the Governor and Council as a Civil Law Court in the Case of a Civil Contra&, and this Law be confirmed, The Cafe of Divorces in this Province are freed of all Difficulty. If not, The Doubt then remains whether this Power lies with the Legiflature of this Province or only with the Parliament of Great Brittain. I have faid in the Cafe of a Civil Contrad, becaufe a Doubt may arife whether if the Parties be Married by a Minifter ordained by a Bifhop 73 of 578 Appendix III. 1760. of the Church of England or Ireland, whether it be a Civil ~,'"' Contra& br not. The Committee having reported upon the matters aforefaid - The following Orders were made thereon vizt. Whereas in and by the Royal Charter granted to this Province by King William and Queen Mary it is eftablifhed and ordained that the Governor for the time being, with the Council or Affiftants, may do, execute or perform all that is neceffary for the Probate of Wills and granting of Adminiftrations for, touching or concerning any Interest or Eftate which any Perfon or Perfons fhall have within faid Province; and whereas the Laws of this Province have made provifion to Appeals from the Decrees and other Proceedings of the Judges of Probate, to the Governor and Council- To the end therefore that all proceedings had in confequence of any fiuch appeals and other matters tranfa6ted by the Governor with the Council or Affiftants as the Supreme Court of Probate, may be kept Seperate and apart from their Tranfadions relative to matters of any other Nature or kind. Ordered, that there be a Regifter appointed for this Court, to enter all Determinations and Proceedings therein (whether upon Appeals or otherwise) relating to Probate of Wills, granting Adminiftrations or Guardianfhips and Settlements of Eftates, in a Book to be provided for that purpofe only; who fhall give out attefted Copies of all fuch Determinations and Proceedings, as occafion may require, and ihall be Sworn for the faithful Difcharge of his Truft. Ordered likewife, that there be a Seal provided and appropriated to the ufe of this Court. Alfo Refolved, that the Supreme Court of Probate be ftatedly held twice in each year, for tranfaaing the Affairs cognizable therein — Vizt: on the Second Wednefday in the May Seflion of the General Court, and on the Second Wednefday of the Seffion of the fame Court, next following the firft day of November annually. Upon a Queftion being moved relating to Appeals from the Judges of Probate - Refolved Judges of Probate. 579 Refolved by this Court, that no Judges of Probate ought 1 760. to admit of Appeals, unlefs the same be claimed, Bond given, and Reafons of Appeal filed, in Time and manner as the Law diredts; and that upon the Appellants failing to comply with the Diredtions of the Law in any or either of thofe Particulars, fuch Judges ought to carry their refpective Orders and Decrees (from which fuch Appeal was or fhall be claimed) into execution. His Excellency having obferved that there ftill remained to be confidered thefe two Points namely (ist.) What Rules or orders are to be obferved by the Court in its Judicial Capacity, (2nd') In what method the exercife of its Jurifdidtion may be carried into Execution, - Said matters were referred to the Same Committee as before, to confider and report thereon. APPENDIX IV. - Quincy on the Impeachment of Public Officers.* Messieurs Edes & Gill, Please to insert the following.' f to differ ever hereafter -with an upstart Minister, is to be construed as a Crimen laesm Majestatis; if the Giant Prerogative is to be let loose, and stalk about, to create unusual Terrors, and inflict unpractised Punishments; if the fiercest Thunderbolts of Yupiter are to be launched by a lo'w Miscreant against the slightest Offence, and even against Innocence itself; if the favourite Motto of the North, the Nemo me impune lacessit, is to be adopted as the future rule of Go'vernment in our once happier Land, vwe may then boast as much as -we please of our invaluable Liberties, purchased'with the Blood of our heroic Ancestors; -but let us'watch them narrowly, lest, before wve are aware, they should depend upon too slight a Thread.' EADER! Make thine own Comment- Permit me alfo to make my own Application. If the preceding Quotation excite Sentiments in thy Mind, different from thofe Senfations which affedt my Breaft, I will not pluck out thine Eyes, or tear out thy Heart. My Creed will not condemn thee, neither will thy Faith obtain my Salvation. Theoretic Opinions are of but little Confequence to Mankind: It is the pradical Deportment which is of Importance to the Community. For let a Man's Thoughts in Religion and Politicks, be what they may, they are of inconfiderable Moment to his Fellow-men: but when once the Principles of a Man prompt Published in the Boston Gazette, Jan. 4, I768. Impeachment of Public Officers. 581 prompt him to proftitute his Office, or neglect the facred Duties of his Station, the State has an undoubted Right to demand the Infliction of due Puniffihment, and it is incumbent upon every Individual of Society to forward a rigourous Execution of Justice. And when it happens, that any one Man has obtained, by a general Amaffment of Power, fuch an unlimited Sway, in the State, as to be able, with Impunity, to condemn the Innocent as a 7udge, and destroy the Constitution as a Statesman, deplorable indeed is the Fate of that Nation. But there is Hope, that the Cafe is not defperate, unlefs this rapacious Grafper of Sovereignty, elated with a Plentitude of Power, has had the Effrontry to make an open Avowal of his Designs, and Hardinefs fufficient to proclaim his Refolution to fulfill their Accomplishment. When fuch is the Object, fuch the Determination, fuch the Boldnefs of only one single Tyrant, irremediable, indeed, in all human Probability, is the Malady of the Common-wealth. For when defpotic Views of this compledion are form'd and executed,'t is Demonstration, that the Minds of the People are funk in Submiflion; and should fome dauntlefs Champion of the Caufe of Freedom, providentially arife for their Defence, they would fly, like a timid Herd, and leave the virtuous Hero to be facrific'd as a Victim. Never indeed was there a Wolf of the State, who did not think the People were but Sheep:- Strange Infatuation of Mankind! They bow the Knee to the Image, they themselves have form'd, and tremble before the Bugbear of their own Creation.- Strip yon gorgeous Monarch of his Regalia, take from that defpotic Tyrant, the Powers with which a defpifed Rabble have invested him; — the one sinks, a weak, pufilanimous Mortal, the other hides, a wretched, contemptible and execrated Monster. It is almost incredible, that one, who had enjoy'd the Felicity of living under a British Government, should be endued with fo infatiable a " Lust of Power " as to wifh the Subversion of it's Constitution. —It is equally incredible, that any Man, who knew the characteristic Bravery of Freemen, fhould dare make the Attempt. - Quid non mortalia Pectora 582 Appendix IV. Pectora cogis Imperii sacra Fames? An exorbitant Thirst of Dominion, united with a desperate Mind, will do Wonders. Restlefs Ambition will be unwearied in the Race for the Prize of Power; an intrepid Spirit will, at all Hazards, win the Palm. With a Wifh to Command, and Ability to Execute, Conqueft is inevitable. — The Thirst of Rule renders the Plan of Empire obvious to the Afpirer; a Determination to accomplifh, facilitates the Progrefs of Attainment.- Happy for Americans, their wife and venerable Ancestors, conscious of the predominant Vices of Mankind, have been eminently careful in guarding every Avenue, where it was probable, the ambitious and intrepid Enemy would labour to enter, by Stratagem and Force, in order to destroy that noble Fabrick, the complicated Work of Heroes, Saints and Ages, the British Constitution. A short Attention to the following Extracts will abundantly convince every intelligent Mind, that, while the first Principles of our Constitution, the Fundamentals of all our Liberties, are adher'd to, no Subje&, however great and powerful, is beyond the Reach of a strid Examination into his Condu6t, or out of Danger of a Scourge for his Crimes. " A Peer-of the Realm may be Impeached in Parliament by Articles exhibited at the Suit of the King, by the Attorney General, as against the Earl of Bristol. Rush. 249. By Articles exhibited by another Peer. Rush. 254. So the Commons may by Parol, charge a Peer before the King and Lords. Seld. Jud. Parl. 24. (3 Vol. 2. p. I596. 1598, 9.) Or a Commoner. Vide Seld. 3 Vol. 2. p. 1598, 9. So before the Lords at a Conference. Seld. Jud. ParL 30, 31, 32. (3 Vol. 2. p. 1598, I599.) The Right of Impeachment by the Commons was allowed by the Lords, 20o June I7oI. In the Proceedings upon an Impeachment, by the Commons, a Member stands with others at the Bar of the Lords, there, in the Name of all the Commons of England, impeaches fuch an one, and acquaints the Houfe, that Impeachment of Public Officers. 583 that the Commons in due Time will exhibit Articles against him, and maintain them. Lords Journ. I. I5. Ap. I75I, 1701. Though the Commons impeach only for a particular Grievance, they may afterwards exhibit other Articles against him. Seld. Jud. Parl. 2I. (3 Vol. 2. p. I595.) And the Delivery of fuch Articles is not neceflary till the Party appears. Seld. Jud. Par]. 23. (3 Vol. 2. p. 1596.) If Articles are not exhibited against the Lords impeached, the Lords, by Meffage, remind the Commons of it. Lords Journ. 5 May I70I. 15 May 170I. 4 June I701. But the Commons are Judges of the proper Time for exhibiting them. 3I May I701. Yet the Lords claimed a Power to limit the Time. 4 June I70I. Articles of impeachment need not purfue the ftria Forms of Law. Seld. Jud. Parl. 22, 27. (3 Vol. 2. p. I595, 7.) Where an Impeachment is for a capital Offence, he fhall be committed to Cuftody. Seld. Jud. Parl. 97. (3 Vol. 2. p. I624.) Yet the Commitment will Sometimes be omitted, at the Difcretion of the Lords, Raym. 382. And when an Impeachment is for High Treafon, generally, without fpecial Matter, it is ufually omitted. It was omitted in the Cafe of Ld. Clarendon, though the Commons complained of it. Life of Clar. 251 & 302. After Anfwer by a Lord impeached, a Copy is made, and fent to the Commons. Lords Journ. 14. 24. After Anfwer, the Commons join Iffue by Replication. 23 May I70I. And may confider whether they will reply or not. Seld. Jud. Parl. I99. (3 Vol. 2. p. I628.) Causes for Impeachment. The Duke of Norfolk was Impeached for High Treafon. 28 H. 6. Art. I, 2, 3. Seld. Jud. Parl. 27. 3 Vol. 2. p. I597. For High Treafon in fubverting the fundamental Laws, and introducing arbitrary Power, Lord Finch, Sir Robert Berkley, 584 Appendix IV. Berkley, Lord Strafford. 2 Rush. 6o6. 3 Rush. 1365. (Vid. Rush. Pt. 3. Vol. I. I36.) Michael de la Pool was Impeached, Io R. 2. That he excited the King to adc against the Advice of Parliament. Seld. Jud. Parl. 25. (3 Vol. 2. p. I596.) The Spencers, that they gave bad Counfel to the King. 4 Inst. 54. Michael de la Pool was Impeached, that he, being Chancellor, acted contrary to his Duty. Seld. Jud. Parl. 26. (3 Vol. 2. p. 1596.) The Duke of Buckingham was Impeached for a Plurality of Offces. 2 Car. Rush. 306. The Earl of Oxfordfor exercising incompatible Offices. 8 May 1701. So Lord Halifax. 9 June I 70 1. The Spencers, Father and Son, were Impeached, for that they prevented the great Men of the Realm`from giving their Counfel to the King, except in their Prefence. 4 Inst. 53. That they put good Magiftrates out of Office, and advanced bad. 4 Inst. 53. Lord Finch was impeachedfor threatening the other fudges to fubfcribe to his Opinion. Art. 4. 5. 6. Vide Rush. Part. 3. Vol. I. I37. For delivering Opinions which he knew to be contrary to Law. Art. 7. Vid. Rush. Pt. 3. Vol. I. I37. Is the Sword of Juftice become pointlefss that the Wicked go unpunifh'd? Why is the Sabre of the Law sheathed, when the exhorbitant Crimes of the peerleJs Man demand the arm of the Executioner? - Woe unto the Land, when the Greatnefs of the Criminal shall difmay his Accufers, and his Authority shall make the righteous Man to tremble; when the enormous Power of Guilt fhall exalt itfelf above the Judgment-Seat, and bid Defiance to the Tribunal of Juftice! PRO LEGE. A TABLE OF THE PRINCIPAL MATTERS Contained in this Volume. might have been brought, is inadmissible. abatentent. Gardiner v. Purrington, 59. 2 Trover is a tranfitory afion. Ibid. 6i. OMISSION of " junior," when good caufe of 3 A&ion on the cafe for a refcue mufft be abatement. Zuill v. Bradley, 6. brought in the county where the refcue z Duplicity no objeEtion to plea in abate- took place. Poor v. Doble, 86. ment. Ibid. 4 A refolve of the General Court, author3 The want of power of a colle&tor to izing " H. G., the Province Treafurer," maintain an aation for taxes is not mat- to fue for money due to the Province, ter of abatement. Ruddock v. Gordon, does not authorize him to fue therefor in 58. his own name. Gray v. Paxton, 54I4 Plea in abatement to the declaration 547which does not point out a better decla- 5 An a6lion at common law will not lie ration cannot be fupported as a fpecial to recover money paid under a decree of demurrer. Lovell v. Doble, 88. the court of Vice Admiralty. Province 5 Miftake in addition of defendant's place v. Paxton, 548-552. of refidence will abate a writ of review. See Pleading, Practice, Abatement, Ballard v. McLean, I o6. Variance. 6 A captain of militia is a gentleman by commiffion, and if fued as "yeoman" may abate the writ. Bromfield v. Lovue- s of joy, 237. See Parliament. account Rnnmele. Form of declaration on, in Maffachufetts, acts of grabe. relts on immemorial ufage, 252, note. Invalidity of, afferted by Otis, 446; by Adams, 459. Letter of Bofton to townSctonr. agent in England on, 448. A&s of 7 Geo. III. to promote execution of, 449. In trover for trees, evidence of title to land Prohibitions upon iron manufaature, in another county in which the aation Chatham's threat, 474. 74 586 A Table of the Principal Matters.'wood v. Fairfervice, x 89. Carpenter moams, 3o!) n. v. Fairfervice, 239. Appearance as counfel, 117, 595, i98, 254, 319, 382. Appointed Chief Jus- lappeal. tice of Superior Court, 341. Law papers cited, x56, 225, 368. Report of No appeal lies from a prohibition to the firft argument, on writs of assiftance, Court of Vice Admiralty in a caufe in469, et eq. Comments on Hutchin- volving lefs than ~300. Scollay v. fon's pofition in Paxton's cafes, 552. Dunn, 74. Argument of, in Ad-vocate-General v. 2 Under the Colony Charter no appeals to Hancock, 459-46i. England allowed, 83. 3 Under Province Charter no appeal lies to the King in Council in a real aaion. ibamns,.%amuel. Dudley v. Dudley, 25. BaniZler v. Henderfon, I 9. Article in BofJon Gazette attributed to, 4 Under Prov. St. 13 W. III. c. 5, where 278. the appellant becomes nonfuit, the appellee muft file a complaint in order to nttMiraltt. obtain judgment. Little v. Holdin, 338. Proceifs in perfonam cannot be suftained by 5 Firft inftances of appeals to the General hoftage fent for ranfom of captured ship Congrefs of the United States of Ameragainit owners for refufing to pay the ica, 342. money for his liberation. Scollay v. Dunn, 74. 2 No appeal lies to the King in Council ppatice. from prohibition to the Court of Vice Admiralty, in a caufe involving lefsA guardian cannot releafe the mater from than ~300. Ibid. a covenant of payment to the ward. tn.3- Ibid.....Dunten v. Richards, 67. 3 Perjury may be committed in Admiralty Court, 310. 4 Records and files deftroyed and carried SROtrament ant Rbaf. away, 387.. Controverfies arifing out of proceedings Referees cannot control their report by and actions before the Admiralty Court parol evidence. 1i/wall v. Hall, 27. of the Province: cafes, Gray v. Paxton, 2 An award may settle a boundary line. Prowvince v. Paxton, and Erving v. Rogers v. Kenzwrick, 62. Cradock, 541, 548, 553. 6 Form of information in, 457, 458. l(sfs[tance, Wrift of. See IWrits of AIjlqance. Punifhed with death by Colony Law, 259. Rsszumpast. ~geuc~. See Indebitatus Alumpfit. See Principal and Agent. Ottacbment. Rltetratfon of instrunrents, Exemption of neceffary wearing apparel. Time of, a queftion of fa& for jury. Nor- Hanlon v. 7bayer, 99. A Table of the Principal Matters. 587 2 Proceeding by, in the Colony and Province, 99. 3texnatlb, JtEanrcs. 3 Eftate of a mortgagee liable to. Symes v. Hill, 318. Hooton v. Grout, 343. Argument upon the memorial of BoRton before, as Governor, 2oo. Letters to Lords of Trade, 2 11, 212. Alleged libel 2ttafnts. againif, and proceedings thereupon, 266, 270-278. Letter to Earl of Halifax In the province, 85, 559, 56o. See Jury. concerning the cafe of the brigantine Freemafon, 392. 2 Charged with corruption in revenue Sucbmutp, tobtert. laws, 424, 430o 431, 4373 His opinion of Otis, 442. Appearance as counfel, 20, 38, 45, 52, 6I, 4 His refufal to fign bill as to writs of assift76, 84, 88, 96, Ioo, tI8, II9, 80o, i89, ance, 498, 499. 195, 227, 230, 237, 239, 251, 253, 254, 5 His a&tion in, and itatements of the cafe. 299, 387. Appointed advocate-general, Province v. Paxton, 543, 547, 552, notes. 52. Argument on writs of assiftance, 6 Statement and letter about Cradock's 52, 56. cafe, 553-555, 55638t11 of 3ErI)ange. Batrttstets' jab[ta.. s. The acceptor of a negotiable order is liable MEMORANDUM concerning lawyers who to a subfequent indorfee without notice of the indorfement. Malcolm v. Gleaappeared in barrifters' habits, 35. fon, 251. Barons, 33enjamf n. Wsbov, Moms. 33aton, 3senIlsbop, ronsas. Colle~or at Bofton, removed on charges, Captain of H. M. S. Fortune, appointed by Paxton, of oppofing the iffuing of officer of cuftoms, and writ of affiftance writs of assiftance, 425. Gov. Bernard's iffibed to, 429. opinion of, 426. 2 Commended for vigilance and afivity as officer of cufRoms, 432. 3saton a"n ierme. sllacltstone's Q0mmentartes. Articles of apparel and ornament owned by the wife before marriage, except necef- Quincy's notes in his copy, denying ftatefary wearing apparel, are liable to attach- ments of, 520, 526, 527, note. ment for debts of the huiband. Hanlon v.'bhayer, 99. 3S1asptem2. 33tabltai0pouse. Punifhed with death by Colony Law, 259. Evidence of keeping. Rex v. Doaks, go. 3Son~b. "3Beltstfre.aftr." Affignment of bond fecured by mortgage of land does not carry the land as againft Refcue of prifoners on civil procefs while an attachment made before the affigncourts were clofed by Stamp Af, 246, ment of the mortgage is recorded. Symes 248. v. Hill, 3 8. 588 A Table of the Principal Matters. 3Bonam's C1ase. eampbell, 3Ioa. 521-525. His ftatement as to Coke's report of Bonham's cafe, 524, note. 33oot of 5ccount, Captatn Charging two defendants jointly, but not. as copartners, admiffible together with the In the Militia is a gentleman by commifplaintiff's suppletory oath, without pre- fion, and if defcribed as " yeoman" may vious evidence of the joint contra&. abate the writ. Bromfield v. Lovejoy, Box v. Welch, 227. 237. 2 Captains of fhips of war made officers of curtoms, 430-I. 3Bostom. Memorial of, concerning closing of courts ferttfotart, by the Stamp A&, x98. Proceedings in consequence of the anfwer of the On return of, no evidence admiffible dehors Council, 209. the record. Pond v. Medzay, 193. 2 Votes of, concerning Stamp At Riots, 2 18.; uancer fSlufsbfctfon 3 Committee on rights of colonifts, Nov. 2, I772. Their report, 466. In Maffachufetts. See Equity Jurisdiaion. 3Boston Gafette. Catarcter, Contemporaneous notices in, of proceed- Evidence of, on trial for keeping bawdyings upon writs of assiftance, 486. houfe, inadmiffible for profecution until defendant attempts to fupport it. Rex v. Doaks, go. 3Bostotr.Wassacre. Petition of jurors in trials of Captain Pres- efalont, oeter ton and the foldiers, 382. Letter from Oliver to Hutchinfon during trial of Appearance as counfel, Ioo. Prefton, 383. Cockle, 3anTes. 3BoutraI'. Adams' account of his application for writ of assiftance, 409. Certificate of SurMay be settled by award. Rogers v. Ken- veyor-General, and iffue of writ to, 422;,wrick, 62. lampoon upon, in BoJZon Gazette, 422; his appointment as colle6tor of Salem, &c., 423; his removal for corruption, 423; indignation of Gov. Bernard, 423; Felonious intent neceffary to conftitute, 222. Bernard charged with complicity with Cockle, 424. Coke, 10o0. Zam'ent, ~.o~, Otis' quotations from, on Magna Charta, UPON the power of Parliament,.5 x6. 483. A Table of the Principal Matters. 589 2 On the power of Parliament, 515, SI6. 9Counteefetttfg 3 Statement of, that ftatutes againft common right are to be adjudged void, 52I- Not high treafon by Province Law, 222. 525. Crabock, George. 0tolateral wlQarrants. Colle&or at Bofton, 406, 425, 426; furEffect of, in barring eftates tail. Baniter nifhed with writ of affiftance. Ibid. v. Henderfon, 119-I56. 2 Incongruous offices held by, 427. Ousltngq, 3JorDn. Refignation of office of Juitice of Superior See Cu/toms. Court, 330Court, 330. eCongrefss QCuslfng, Jfifant, Held in New York relative to the Stamp Appointed Juftice of Superior Court, 341. A&t, 197. 2 Of United States of America, firft appeals to, 342. C;ustonts. Commanders of fhips made officers of, 430. Qconstables Corruption of former officers, 430. Offices in cuftoms and courts held by Have no power to ferve executions, except fame perfons, 427. InftruEtions from thofe iffued by juftices of the peace. Englifh commiffioners to officers of Hall v. Richardfon, 329. cuftoms, 4332 General authority of, in fervice of civil 2 Refcue of goods seized at Newbury, 445. procefs, 329. 3 American Board of, appointed by St. 7 Geo. III., c. 41, their inftru&ions concerning writs of assiftance, 449, 450. eonstftutfon, Change the form of writs, 455. 4 Arbitrary powers of commiffioners and Statutes in confli&t with, how far void, officers of curtoms denounced in report 520-530. of Committee of Bofton on Rights of Colonifts, Nov. 2, I772, 466-7. Qonutenpt. An attempt to fnatch papers from oppofite 9amages, party in court. Thawing v. Dennie, 338. ASSESSMENT of, where different iffues are 2 Power of Superior Court to iffue procefs tried feparately. Flagg v. Hobart, 332. for contempt againit author or publifher of libel, 245iDana, 3afcrar. Corporatfon, Appearance as counfel, II, I 7, 119, 256, 382. Adminifitered oath of refignation Competency of members of, as witneffes. to fRamp mafter, 311I, 312. High words lfWrentham Propr's v. Metcalf, 36. with Sewall, 312. 590 A Table of the Principal Matters. the male heirs firft, and after to the Decfsfon, females. If either of my sons die withConcluCfveneifs of. See Precedents. out male iffue, his brother and his male iffue shall inherit the lands bequeathed. Held, that W. took a fee-fimple in the Beeb, M. farm. Dudley v. Dudley, I2. 2 To my fon S. and his heirs forever, proCafually deftroyed, may be proved by wit- vided that my faid fon Ihall maintain neffes, and need not be pleaded with a myfelf and his mother during our lives profert. Curtis v. Nightingale, 256. with sufficient and convenient mainten2 Effe&t of leaving a deed for record with ance. Alfo whereas it is expreffed that regifter of deeds in a different county. my fon {hall have this my living to him Hooton v. Grout, 343. and his forever, my will and meaning is, 3 Effe6t of open poffeflion under unrecord- and I do hereby appoint my grandfon R., ed deed. Anonymous, 370. fon of faid S., to be the next immediate 4 Affignment of mortgage not good againft heir unto this my living after his father, attachment till recorded. Symes v. Hill, to enjoy the fame to him and his heirs 318. forever. And, in cafe that said R. do die without heir, it fhall then fall to the 3Bte (Srep, PWt-lfam, next eldeft of my grandfons furviving, and fo in like cafe of mortality one from Attorney - General, opinion concerning another to the next eldeft of my grandwrits of assiftance, 452-454. fons furviving. Held, that S. took an eftate in fee-fimple. Elwoell v. Pierfon, 3 To my three fons, T., S., and J., to be equally divided among them in three equal fhares'or proportions after my debts, legacies, and funeral expenfes are Deposftfon paid; and if either of my fons die without heirs lawfully begotten in wedlock, Coming up from court below in cafe, may I will their ihare or proportion to the be read, though witnefs be in court. furviving fons or fon and their heirs forOlivcer v. Sale, 30. ever. Held, that the brothers took an 2 After bond to review and before fervice equal tenancy in common in fee in the of the writ, depofitions may be taken as real eftate, determinable on either dying in a pending caufe. Hallowell v. Dal- without iffue in the life of some other ton, 33. fon, and an executory devife over of fuch 3 Cannot be taken without notice to op- deceafed's hare to the furvivor or furpofite party. Daniels v. Bullard, 41. vivors. BaniJ/er v. Henderfon, i 19. 4 In perpetuam, &c., admiffible to fatisfy 4 Effect of charge in enlarging an eftate in the court of the death of party to a fuit, land. Dudley v. Dudley, I 2; El'well v. though deponent is alive and eafily to be Pierfon, 42. produced. Apthorp v. Eyres, 229. 5 Executory Devife, Eftate Tail with crofs remainders - collateral warranty. BaniJter v. Henderfon, II 9. To W. my new farm in R., from whence tdckenson, robtn, he shall annually fupply and bring home On writs of affiftance, in Farmer's Letters, to his mother firewood during her life. I alfo give him my farm at M. and ~E3oo toward building him an houfe. 3fobetent CtD, And my will is that my lands defcend after the manner of England forever to How punifhed by Colony law, 259. A Table of the Principal Matters. 591 fendant is not eftopped to give in evi3i~stress, dence under the plea of non dimiit the counterpart of the indenture, referving a Remedy by, for taxes. Ruddock v. Gor- different rent. Nortwood v. Fairfervaice, don, 58. x89. D(Wston of Court, Ebbence. Effe& of. Poor v. Dougharty, I; Carpen- A juftice cannot be admitted to prove fats ter v. Fairerzvice, 240. which came before him judicially, and of which he should have made a record. Poor v. Dougharty, I. Borr, patbottle, 2 In aaion for falfe imprisonment the mittimus on which plaintiff was arrefted Notes on file of newspapers colle~ted by, may go to the jury, though not as 27I. evidence of the fa6ts therein recited. Ibid. 3 To prove that money came to defendant's 3lobse, 30osept, hands, a letter from a third party fhowing that it was drawn for on him is inSurveyor at Salem and Marblehead, 428. competent evidence. Spurr v. Shippey, 28. 4 Proprietors of common and undivided lands are not competent witneffes where Efectment. the corporation is a party. Wrentham Propr's v. Metcalf, 36. DECLARATION bad for uncertainty in de- 5 A perfon upon whofe promife an officer fcription of premifes. RocheJter Propr's has releafed a defendant from arreft upon v. Hammond, 159. a writ, is not liable to the officer upon fuch promife, and, therefore, is a competent witnefs for him in an aEtion Equtp 3lurhtfbfctfon, brought for the infufficient fervice. Barnes v. Greenleaf, 41. Not exercifed by the Superior Court of 6 Evidence of character in criminal trial Judicature, 537-540. inadmiffible for prosecution until introduced by prifoner. Rex v. Doaks, go. 7 An adminiftrator is not a competent JEstates rgat. witnefs for the eftate unlefs it be infolvent. Alliftn v. Cockran, 94. By implication. See Dudley v. Dudley, 8 A witnefs is not incompetent by reafon 12. of conviction of petty larceny. Rex v. 2 Enlarged to fee by charge of mainten- Pourksdorff, 104 ance. Elwell v. Pzerfon, 42. 9 Entries in a plaintiff's books of account 3 Crofs remainder in tail. Banijler v. charging two defendants jointly, but not Henderfon, II9. as copartners, together with his fupple4 Not partable under the Province laws. tory oath, are admiffible without previous Baker v. Mattocks, 69. Contra opinion evidence of the joint contraS. Box v. of 7'rowbridge, 74; of Read and Prat, Welch, 227. 158-9. io A depofition in perpetuam, &c., is admiffible to fatisfy the court of the death of a party, in order to minuting the fame [lgtoppet. on record, though the witnefs be alive and eafily to be produced. Apthorp v. In debt for rent upon an indenture the de- Eyres, 229. 592 A Table of the Principal Matters. I I A witnefs fhall not be examined in the Court of Vice Admiralty to charge another witnefs with a particular infa- atnlmoutD, mous crime. Ad'vocate-General v. Hancock, 46. RIOT at, in 1776, 446.,Ercbequer, Court of. Colletor at Salem, writ of affiitance to, Authority of, in Equity, difclaimed by Su- Colleor at Salem, writ of affiftance to, perior Court. McNeal v. Brideoak, 54, 434w 451 470, note. 2 Powers of, how far poffeffed by Superior Iftcl), %altmuel, Court of Judicature of the Province, 536-540. Appearance of, as counfel, 70, 89, I80, 189, 229, 319. rrecutfon. fforteltures, Officer's duty to levy, on goods attached without fpecial dire6tions. Richmond v. In the Admiralty Court, the fuits, Gray Da~vis, 279. v. Paxton, and Proqvince v. Paxton, 2 Officer's power to fell on. Ibid, 279, 541-552. 2973 Levy of, on land, omiffion by officer to So0ger, einottg, return livery of feifin, a fatal defeEt. Symes'V. Hill, 319, 324. Officer of Cuftoms at Nantucket, 430. 4. Levy of, on land, omiffion by officer to 2 Removal of, 450. certify that the appraifers were " indifferent and difcreet men," not fatal. Fo'wle v. Wyman, 336. | orget'c Of public bills of credit, I 5..3Uecutors ant ntrminfstrators. Roster, 3le![faj, Executor de Jon tort not liable to attachment for debt of teftator. Gould v. Appointed juftice of Superior Court, 341. Ste'vens, 34. 2 Executors undertaking to carry out a perfonal truft of tefliator do not render an e the eftate liable for their negligence. Colletor at Bofton, 425. Gridley v. Balion, 65. 3 Adminiftrators are incompetent witneffes for their eftates, except where the eftate ifraut. is inolvent. Alli/on v. Cockran, 94. Selling free negro as flave. Oliver v. Sale, 30. syrecutfbe Courts, 2 Marks of, confidered in conveyance to fecure creditor. Symes v. Hill, 318. The term, 474. 3tecutovp 3ebtoe. Gaot,; See Devise. IN Bofton, bad condition of, x Ix. A Table of the Principal Matters. 593 atblfng Gunpobwet lot. Of fpices, a&t for, 53', note. See Pope Day. Gobn, Barrifters appearing in, 35. Bate, 3novger, 2 Quincy not admitted to, but neverthelefs COLLECTOR at Bofton, 428. praaifes in fuperior court, 317. EQanba 3$Urv. %ieatt0!oel, 33enjamfn, Conftruffion of oath, 269. InfiruEted by Comptroller at Bofton, 432. His comHutchinfon, C. J., not to judge of pro- million, 433. Sack of his houfe in priety, juftice or wholefomenefs of laws, ftamp-a&t riots, and property deftroyed, 306. Antiquity of the institution of, i69, 434. 312. Abufe of, malcondu& of fheriffs, 312. Jurors in the province not re- 90ancokt, 3olrn. turned by iheriff, but ~venires iffue to towns, 313. Infinuation that towns Cafe of floop Liberty, fued by advocatefend partial jurors, 3I3. Duties laid general. Proceedings in court of vicedown by the chief jufiice, 314. admiralty, 457-463~ 2 Grand jurors toafted for refufing to find bills for an alleged libel on Gov. Bernard, 278. ~wQatcD, Nat!~anfel, 3 Standing grand jurors for a year are exempted from ferving on petty juries. Comptroller of cuftoms at Bofton. Writ Reed's Case, 331. of affiftance iffued to, 406, 426, 427. k Irap eafs, Rlert,e afor 3Jo0epb. Imprifonment of, by fentry, for not anfwering hail, 3I2. The" Berkfhire Affair," 246, 248. iprtatea, 3eyreme, 4etnrt, tef, Sutftce Appearance as counfel, I7, 45, 49, 52, 6o, Of Rhode Ifland, letter of, to Chief Juflice 70, 76, 87, 88, 96, o10, II9, I62, I66, Trumbull as to writs of affiftance, 506. i8I, I90, i98, 229, 391, 469, 476, 479. 2 Appointed attorney-general, 241. 3 Firfit argument on writs of affiftance, 469, 476, 479. Second, 52, 56. 4 His argument that the fuperior court in mending, juice has no poffefs the powers of the court of ex- ower to, has ~chequer, 536,537.~power to iffue a capias. Rex v. Gay, chequer, 536, 537-9 91. wuoran. Robadrt, Rorat Cannot releafe mafter from covenants in His Statement that an a& of parliament ward's indenture of apprenticefhip. Dun- againft natural equity is void, 522-524, ten v. Richards, 67. and note. 75 594 A Table of the Principal Matters. 0Iot, lorla, 3luIcft Crate. Upon Coke's judgment in Bonham's cafe, 424, 425. Condu& of, upon trial to See CuJtoms. Writs of Afitance. tell his right to appoint clerk, 525 note. Xmtpeac)ment, pomfnte l3Ueplegfan4o, Liability of all officers to, 267-. Of Chief For negroes, 30, notes. Oliver v. Sale, Juftice Oliver, 340- Q~uincy's article 33. upon impeachment of public officers, 580-584. ~lwop~[frs, Governor of Rhode Ifland —his opinion Emportatton, concerning power of parliament over conerning, power of parliament over Landing not neceffary to conftitute, under St. IS, Car. 2, c. 7, ~ 6. 387. 0ostage, 3ntetRstage nbrtatus ossunspsft Sent for ranfom of captured flip, cannot I maintain admiralty procefs in perfonam Lies, as well as account, to recover intereft againft owners for refuting to pay the due from a fador to his principal. Newmoney for his liberation. Scollay v. man v. Homans, 5. Dunn, 74. 2 Does not lie for taxes, where ftatute remedy is by diftrefs. Ruddock v. Gordon, 58. [[utcitrson, ltontma, 3 Nor for boarding and schooling upon a promife to "pay honourably." jyler v. When appointed chief juftice, 52. Rea- Richards, I95. See -uantum Meruit. fons and manner of his appointment, Insimul Computafent. 410, 4I I. Judge of probate for Suffolk, 4 Nor for the price paid for land fubfe. 98. Refignation of that office, 212. quently conveyed to another. Curtis v. Deftru&ion of houfe of, in ftamp-a& Nightingale, 256. riots, i68, 4I6. Sitting as chief juf- 5 Nor on an adjufted account, where a tice after affuming adminiftration on note has been given for the balance. departure of Bernard, 3I6. Claim to Apthorp v. Shepard, 299. feat in council as lieutenant-governor, 6 Nor for money recovered by fuit which 27o. Charge of ufurping place of pref. defendant allowed to go by default. ident of council, 214. Dewing v. 7rain, 339. 2 Reported to have received a commiffion 7 But it lies for phyfician's attendance, as chief jufRice from Great Britain, 304. travel, and drugs. Pynchon v. Bre'Jwler, 3 Monopoly of incongruous offices, 426, 224. Contra, Lete/u v. Glover, 225, n. 427. See p. 242, et feq. 8 And the plaintiff may recover a lefs fum 4 On taxation without representation in than that laid in the declaration. Pyncolonies, 435. chon v. BrewrJler, ub. sup. 5 On abridging Englifh liberties; on thoughts of independence, 444-5. On repeal of ftamp a&, 445. 3nbnttture. 6 His report of the cafe of Prowvince v. Paxton, 55z note; of Cradock's cafe, Counterpart may be given in evidence 557. Opinion and a&tion of, as to writs under plea of non dimijit. Norwood v. of affiftance. See Writs of /4ftance. Fairfervice, I89. A Table of the Principal Matters. 595 2 Not disqualified by intereft as an inhab-3*nforntatton, itant of the province from fitting in a civil aaion brought by the province to Trial for life upon, I78. recover money due to it, 548. 3 Special, appointed to fit in Province v. Paxton, 550, 55I. 3lnfornserss, 4 Of probate, see Probate. Names of, to be kept fecret by grand jury, xI6. iiuultcfalt if ecaffon. 3rxnsfmut Qomnputassent Conclufivenefs of. See Precedents. Againit a firm on an account acknowledged by one partner. Patefhall v. 5ulrn. Apthorp, I79. 2 On an adjufted account. dptborp v. Perfons returned as jurors who have fuits Shepard, 298. pending in court, 3I3. z Juftices of feffions have no power to raife money from the county for extra*3nsotbent 35state. ordinary fervices of jurors in criminal trial. Petition of Jurors, 382. Report of commiffioners only legal evi- 3 Appointment of keepers of jury in trial dence of infolvency. Allifon v. Cockran, of Britifh foldiers. Ibid. 383. 94. 4 Jurors not disqualified by intereft as in2 Allowance of apparel, &c., to widow habitants of the province from fitting in where eftate is insolvent. Hanlon v. a civil a&tion brought by the province Thayer, Io2. to recover money due to it, 548. 5 Powers and rights of juries, in matter of law, 553-572)nterest. See Newo irial. Grand Jury. FaEtor liable for intereft on price of goods fold after reafonable time. Newman v. 3utfce of the Peace. Homans, 5. 2 New England intereft allowed on bond 2 New England intereft allowed on bond No power to grant warrant to break open given here for debt due abroad. Jones houfe to earch for cutomable goodsv. Belcher, 9. remedy by writ of affiftance, 439, 440. 3 No cuftom among merchants in the prov- e Ju/ices of BriZol. ince of charging intereft after a year on price of goods. Bromfield v. Little, U of 33rtstot. Krelano.Proceedings againf, i n c afee of loop Polly, )grelanb. Proceedings againft, in cafe of floop Polly, 438-9. Power of Englifh Parliament over, 513, 514. 3ubge. MS. copy of the report of Otis' argument INTERESTED a&s of, when void, 525, 526, on writs of affiftance, 478: Of Gridley's note. argument, 479: Of Thacher's, 482. 596 A Table of the Principal Matters. Bent, 3Senfantfn. iLfbe! of.%e4tfn. Appearance as counfel, 15, 50, 62, I04, Officer mutll certify, in levying execution 194. on bond. Symes v. Hill, 3I9, 324. 2 By turf and twig. Fowle v. Wyman, Btent, QIanceltor, 336. His ftatement as to Coke's boldnefs, 524, tLnlue, 3enfamfl. note. Refignation of office of judge of fuperior court, 330. Zlan!Ilort' ant tenant. LANDLORD'S liability for half taxes in abfence of contraat. Evidence of contrat. Jtuagna IDartta. YackJon v. Foye, 26. Derumple v. Clark, 38. OTIS' quotations from Coke upon, 483. Iecmneret, gJbomas, /fltalcolm, ntlanfeI. Surveyor-General, memorial in favor of writs of affiftance, 4I3. Application His forcible oppofition to writ of affifance. for, 406. Certificate for Paxton, 4i6. 447 2 His death, and rejoicing of crown officers thereat, 464. His character, 464. Legfaltibte ~elpartment, Line between, and judicial, 473. At1rl. Homicide by one befet by rioters in his houfe- benefit of clergy, 247. See Charge to grand jury concerning alleged Murder. libel on Gov. Bernard in Bojlon Gazette, 262-266. Anecdote of Wilkes, 263. Ftarrtage, Perfon libelled need not be named if otherwife pointed out, 264-5. Evidence Cohabitation and report of publication, 267. The alleged libel of, to efiablifh the legitimacy of de and fubfequent articles in the Gazette, mandant in a real aion. BaniJfer v. proceedings of legiflature, &c., 270-278. Henderfon, II9. Charges to grand jury concerning libels, 2 Certificate from minifter in another abandoned as u felefs, 309. province admiffible in proof of. Rex abandoned as ufelefs, 309. 3 Libel on superior court may be punifhed V. Mangent, i62. Summarily as contempt, 245. 5garsDalt, Qlifef 3tusotfce, ~L.bert~, loot, His account of the writs of affiftance, 435Seized by commiffioners of cuftoms, 456. 2 Upon the conftruftion of ftatutes, 523, Condemned in admiralty, ibid. Bought note. by the colledtor and ufed as a guardacof/a, ibid. Burned by a mob at New-!tascaaene, $3oDn. port, 456, 457. Proceedings in admiralty in perfonam againft owner of, Comptroller at Salem, 45I. Writ of 457-463. affitlance iffued to, 434. A Table of the Principal Matters. 597 Jf(ssa)cusetts. atouer. Seals of colony and fate, adoption and No diftinaion between murder and manfubfequent change, fignificant infertion laughter before province charter, 235. of" Enjfe" in motto, 468. 2 Rioters guilty of murder for the a&t of one, 2473 Of prifoner, by confining in unwholeturftfta. fome room, i I12. Transfer from alarm-lift to train-band lift may be by notification to attend mufter. Draper v. Bicknell, i64. Nabal Q{ers, 2 Captain in militia is a gentleman by commiffion. Bromfield v. Lovejoy, 237. BERNARD'S propofal to grant writs of affifance to, 45 I. fIaton. web Erfal His appeal to the maxim that nothing is to be counted a law that is contrary to the Granted, for verdiEt againft law and evilaw of God or of reafon, 526, note. dence, but not where there is evidence on both fides. Angier v. Yack/on, 84. 2 New trials and reviews granted by the tFznomer. legiflature, 473. 3 When new trials came into ufe in EngOmiffion of "junior" when good caufe of land, 558. Rarely ordered in the provabatement. Zuill v. Bradley, 6. ince, 558. Trowbridge's authorities for 2 Whether a nailor is a blackfmith. New Tryals in Criminal Cafes, 565. In Bloawer v. Campbell, 8. the fuperior but not in an inferior court; John Adams's flatement, 565. New trials familiar in Maffachufetts before the t0ortgage. beginning of the reports, 567. Modern doctrine, 567. Suing and entering upon, no bar to aEtion on bond. Minot v. Prout, 9. Nth Ytork, 2 The conditional judgment allowing two months will be entered in an appealed Conflitution of courts in, 303. aation on a mortgage, though more than two months have elapfed fince the judgment appealed from. Watts v. Hajey, I94. -att, 3 Affignment of bond fecured by mortgage does not carry the land as againft an EXTRAJUDICIAL, adminiftration of, by magattachment of a creditor before the affign- iftrate, 31 I. ment of the mortgage was recorded. Symes v. Hill, 3 I 8. f1itcer 4 The eftate of a mortgagee after condition broken is liable to attachment and exe- Discharging defendant from arreft on cution for his debts. Symes v. Hill, 3I8. promife of third party, can maintain no Hooton v. Grout, 343. a&ion on fuch promife, and fuch promifor is not interefted in a fuit againft the officer for the infufficient fervice. Barnes 3Xttlosiea, v. Greenleaf, 41. 2 Officer's duty on the writ of execution. Laws of, adopted by colony, 235, 259- Richmond v. Da'vis, 28o. 598 A Table of the Principal Matters. titber, itnrhej. afntre, eotert Ctreat. Refignation of itamp-mafterfhip, 3 I. APPEARANCE as counfel, 63, I6o, 383. Appointed judge of fuperior court, 34r. ~l[bert, eter, Appointed chief juflice, 330. Vake, 33aton, 2 Letter to Hutchinfon during trial of Capt. Prefton, 383. Upon the conftruaion of aEts of parliament, 523, note.!pert an QCltose. ~arltaament. See Praaice. Power of, over the colonies, 44I-445, 512-520. Power over Ireland, 513, Qtfzr, 3jamean, tbe ELBlue, 5.I14. Lord Camden upon, Si6. L6rd Coke upon, 5I6, 517. Parliamentary Not appointed junior judge; Hutchinfon Coke upon, Si6, 517. Parliamentary Not appointed junhor Judge; Hutch nfono jurisdidcion prefented as a nuifance by appointed chief juftice; the ation of the grand jury in So. Carolina, 519. governor and fubfequent courfe of the 2 Otis contended not the final judge of younger Otis, 410, 4II. the conftitutionality of its fiatutes, 520, 521. A&s of, againft common right and reafon, repugnant or impoffible, void. Ettls, 3gamttes, tIte ySou1rger. Bonham's cafe, 521-525. Language of Coke, Parke, B., Marfhall, C. J., and Appearance of, as counfel, 2, 14, 31, 52, Parfons, C. J., 52I-524. Judgment of 63, 71, 77, 89, 92, 96, 10o, 119, I6s, Lord Hobart in Day v. Savadge, 522164, I98, 227, 238, 254, 471. Will of, i His 27, from court 254, attenWil, 524, and note. Law laid down fame way 1 s9. aHuldisence NewmYorkctocattend i by Bacon's and Viner's Abridgments, and congrefs held in New York concerning Comyn's Digeft, 526. Repeatedly affertfiamp ad, I97. Article againft Hutch. ed by Otis, and favorite dodrine in the infon, 213. Libel attributed to, by Ban- colonies, 527, and note. Statute decroft, 27 2. colonies, 527, and note. Statute deroft~, 272c dared void as againft unwritten conftitu2 Moderator of town meetings, 2Ir, 2r9. tion in one inftanc 3 His public courfe not diCated by revenge confliting with written conftitution, the for Bernard's failure to appoint his father well-effablifhed dodrine of America, judge, 41I. 4 Hutchinfon and Bernard's letters con 529, 530. cerning, 442. Symptoms of infanity, 442. Parsons,!glle[ _ustfce, 5 Speech on repeal of famp a&d; Bernard's account thereof, 445. Upon the conifrucion of ftatutes, 524, note. 6 Infanity, and rejoicing of crown officers thereat, 464. 7 His firft argument againft writs of affift- Vartnersitp. ance, 471, 479, 482. His fecond argument, 52, 54. When one partner may fhow that an ac8 His quotations from Coke on Magna count acknowledged by the other was Charta, 483. not for a company debt. Patejhall v. 9 Afferted the authority of Parliament to Apthorp, 179. legiflate for the colonies, 520; but that 2 Effet of note given by one partner for a the courts fhould pafs upon the conftitu- firm debt. Ibid. Apthorp v. Shepard, tionality of ftatutes, 520, 527, and note. 298. A Table of the Principal Matters. 599 wauper. tIeaifng. A town can recover of an individual money Duplicity no objeaion to plea in abateadvanced for the neceffary fupport of his ment. Zuill v. Bradley, 6. wife and children. Browon v. Culnon, z Demurrer reaches back to firit fault. 66. Minot v. Prout, I i. 3 Negative pregnant, ib. 4 Whether the owner and hirer of a veffel 3a~tton, bZ}arIes. can join in an a&ion of trespafs for running away with the veffel, quere. Sayer Cafe of writs of affiftance, 50. v. 7Ihorp, 28. 2 His firft petition for writ of affiftance 5 Exceptions to the declaration (hould be in 1755, and order thereon, 402. Writ taken by fpecial demurrer, and not plea iffued to him in 176i, on furveyor-gen- in abatement. Lowell v. Doble, 88. eral's certificate, 4I6,4i8. His appoint- 6 Plea in abatement to the declaration ment as furveyor, 420, 42x. Marfhal which does not point out a better declaof court of vice-admiralty, 42I. Crier ration, cannot be Supported as a fpecial of fuperior court, 422. Houfe attacked demurrer. Ibid. in fiamp-a& riots, faved by a barrel of See Aetion. Practice. Abatement. punch, 422. Appointed commiffioner Variance. of cuffoms, 422. His letters to England, afking military force, 422. His 3 001 toop, portrait, 422. 3 Incongruous offices held by, 427. Rescue of, from officers of cuftoms - proceedings againft juftices of Briftol, 437-8. 3a;mrent.t lope al. Accepting the note of one partner to bal- Riots in Boston, 113 ance the firm account is not a payment discharging the firm. Patejhall v. Apthorp, I79. See Apthorp v. Shepard, 299, Vacttce. note. New indorfer to writ, when ordered. In~erlfuwit graham v. Cook, 4. 2 Depofition in petpetuam, &c. when adMay be in any court acknowledged by law, miffible to prove death of party to fuit. before referees, or in court of admiralty, Apthorp v. Eyres, 229. 30o. Frequency of, in cuftom-houfe 3 Different iffues in an action of flander, oaths, 26i. tried feparately. Flagg v. Hobart, 332. 4 Right to open and clofe, where feveral iffues are joined. Ibid. Vettp rartcenZ, 5 Queftions of law, on conftru&ion of will to be raifed by fpecial verdi&. Gibbs Conviction of, does not deftroy competency v. Gibbs, 25 1. Of witnefs. Rex v. Pourksdorff, o4. See Ac7ion. Pleading. Abatement. Variance. Pjrat, 35enlamtu, tttt, ~fi'lrfam, Opinion in cafe BaniJZer v. Cunningham, Inftru&tions to American governors to I56. prevent trade with the enemy, 407, 408. 2 Argument in Paxton's cafe, 546, note. 600 A Table of the Principal Matters. Buatt. Vromfssowv Note. See Prat. Payment by maker to promifee a good defence againft fubfequent indorfee. Ru27el v. Oakes, 48. Tuttle v. Willing~receeertt~, ton, 3352 Partial confideration cannot be fhewn in Better to obferve known principles than, redudion of damages, in ation upon. 473, 49I. In Houfe of Lords, how far Noble v. Smith, 254. obferved, 473. In United States, 473- 3 In declaration on a note by payee, the omiffion of the word "order" is immaterial. Whitney v. Whitney, I17. 4 Whether a promiffory note, in which the See BoJfon MIaJfacre. words " in one month " are croffed out, will fiupport a declaration describing the note as on demand, quxre. Carpenter rtncfPa1l an afgent. v. Fairfervrice, 239. Fa&or liable for intereft on price of goods after reafonable time. Newoman v.:roprletots of Common Uneftbi-eb 1L anbs Homans, 5. 2 And fuch intereft may be recovered in Not competent witnees where the corpo afumpfit as well as account. Ibid. ration is a party. Wrentham Propr's v. 3 A refolve of the general court authoriz- Metcalf, 36. ing " H. G. the Province Treafurer," to fue for money due to the province, does not authorize him to fue in his own tulantun t ~{etuft name. Gra~y v. Paxton, 541-547. MUST be laid to recover for board and fchooling upon a promife to " pay hon3~c0idon~er ourably." Tyler v. Richards, 196. 2 And for do&ors' vifits and medicines. May be removed from one gaol to another Le TeJlue v. Glowver, 225. on parol order. The King v. Grant, 326. Ocufnc,, 3losfaJ, 3fr. Appearance as counfel, 332, 370, 382; not Prize or no prize, tried by the common-law admitted to the gown, 317; MS. Notes courts in Maffachufetts, where queftion to Blackftone's Commentaries, 520, arofe incidentally, 571. 526, 527. kufncv, %anruel, aprofate. Appearance as counfel, 195, 239, 254. Governor Pownall's meffage upon matters Appointed folicitor-general, 300, 331. of, and aaion of the council thereon, Caufe of joining government party, 332. 573-579. rotbffttfot 3Raanson. To the admiralty, no appeal lies from, in HOSTAGE cannot maintain admiralty procaufe for lefs than ~300, under Province cefs in perfonam againft owners of fhip Charter. Scollay v. Dunn, 74. for refufing to ranfom him. Scollay v. 2 Power of fuperior court to iffue. Ibid. Dunn, 74. A Table of the Principal Matters. 6o0 4 Reviews and new trials granted by the 3heab, o~brn. legiflature, 473. 5 Writ of, allowed by the ftatutes of the Opinion in cafe Baniger v. Cunningham, province, in what cafes, 558. x56. See Ne'w l'rial. Yury. R3eab, WMlfam. 3obe )slaunb. Appointed juftice of fuperior court, 34I. Licenfes granted by governor to trade with enemy - Smuggling, Bernard accufed of 3fecorb. like pra&ice, 436. Bernard's complaints, refcue of fhip from officer of cuftoms at Providence, 436-7: of floop Polly in judicially before him, does not render Taunton River, 436-7 of floop Polly in him a competent witnefs thereto. Poor v. Dougbarty, I. 2 In certiorari no evidence admiffible debors. Pond v. Med'way, 193. Charges to grand jury concerning, 177, 261. 3Refeees. 26. 2 In oppofition to execution of writs of Authority to adminifteroath. Perjury may affiitance, 446-7. be committed before, 31o. See Stamp At Riots. Pope Day. 2 Cannot contradi&t their award. Wi/rall v. Hall, 27. Highway — penalty of death, xi S. Perfonal. See Hominc Replegiando. 3obtsnson, $3onr, ~escue. Commiffioner of cuftoms, mobbed at NewA&ion on the cafe for, cannot be brought port: parody on writ of affiftance, 454. in county where conspiracy to refcue, but not the refcue itfelf, took place. Poor v. Doble, 86. Refcue of fhip at Provi- R3opes, Xatbanfer, dence, and of floop Polly in Taunton River, 436-7. Appointed juftice of fuperior court, 330. 3RebfeW. 3Ruggles, otIotbS, After bond given to review, and before Appointed fpecial juftice of fuperior court fervice of writ, depofitions may be taken to fill vacancy for a fingle cafe, 550, as in pending cafe. Hallo'well v. Dal- 55x. ton, 33. 2 Writ of, abated for miftake in defend- 3tusseel, elDambers, ant's addition of place. Ballard v. McLean, Io6. Judge of vice-admiralty, 75. Notice of 3 Several reviews authorized by order of death of, by Chief Juftice Hutchinfon, general court. Draper v. Bickntll, 232. I66, n. 2 Incongruous offices held by, 427. 76 602 A Table of the Principal Matters. Zau. aSIde! AN implied warranty that goods are mer. In England, 94, note. chantable, unlefs fold by fample. Baker 2 In Maffachufetts. Oli'ver v. Sale, 30 v. FrobiJber, 4. and note. Allifon v. Cockran, 94. awgent, 3ataanfet 3easlee,.Iabeu. Appointed juftice of fuperior court, 341, Free negroes fold as. Oli'uer v. Sale, 30. 342. 2 Trover for. Allifon v. Cockran, 94. Leat Of Colony and State of Maffachufetts, 468. 541, 542, note. -earc1 Uarcants For fRolen goods, Lord Coke's doubt about, 531, note. Creation of office, 24I, 300, 33x. SebaUl, 3onatban. Song of Afberts. Appearance as counfel, 34, 327, 332, 337, Refignation of ftamp mailer, on meffage 340. Appointed folicitor-general, 241, from, 31I. 331. Attorney-general, 300, 331. Judge of admiralty at Halifax, 312. Difpute ~tamtp act. with Richard Dana, 3I2. Clofing of courts by, Memorial of Bofton, i98. Letters from Gov. Bernard to Setall, J.tezpIen, teJff %ttstfte. Lords of Trade, 211, 212, 216. Proceedings of town and legiflature in conTime of his death, 409. fequence of memorial, 209-217. 2 Hutchinfon's conne&ion with, effe& of, as described by John Adams, 442. eltafe, J11EWfanlT, 3 Report of- Otis's fpeech thereon, 445. ColleEtor at Bofton, writ of affiftance iffued to, 425..tamtup ct 31fots. ttppflng. Deftru&ion of the houfe of Chief Juftice Hutchinfon, I68. Power of mailer to bind owners by con- 2 Refcue of prisoners in Berkfhire while tra&t of ranfom. Scollay v. Dunn, 74, the courts were clofed, 246, 248. 187. %kfdlept W111ram, %i5tort, humfam Warrants in nature of writs of affiftance Regiftrar of admiralty; property and papers iffued by, 401. deftroyed in itamp a&t riots, I69. A Table of the Principal Matters. 603 Sullfban, amnes. emnplet, $obDn, Appointed jufrice of fuperior court, 341. Appointment as furveyor-general, 428. His aation in removing Cockle, and difficulties with Bernard, 423-4. Aupertfor lourt of.~u1bcature. His views on writs of affiftance and other meafures; did not fhare unpopularity Conifitution of, 2, 302. Juffices how ap. of commiffioners of cuftoms removed pointed and removed, 304. Tenure of for attachment to American caufe; office during pleafure, 302. Salaries appointed conful-general of Great Britgranted by the crown, 302. Report ain after revolutionary war, 466. that Hutchinfon held commiffion from England, 304. Alteration of terms in Suffolk in 1765, o09. Firif court held OPracbe, yentbrlbge. in new court-houfe in Suffolk, 306. Resignation of Lynde and Cuihing, promo- Appearance as counfel, 2, 7, Io, 30, 34, tion of Oliver, and appointment of Ropes 38, 43, 52, 7I, 77, 87, 92, o07, 389, and W. Cufhing, 330. Laft feffions under 469, 482. Firft argument on writs of provincial government, 340, 341. Re- affiftance, 469, 482; fecond, 52, 53. organization in Otober, I775; firft seffion afterward, change of place of holding in Suffolk, 341: in Middlefex, 342. plE)eft~ate. Appointment of Adams, Cufhing, Read, Paine, Sargent, Sullivan, Fofter and Offence of taking back goods ftolen, and Warren, 341-2. fatisfaation in order to concealment, 223. 2 Few files of, now remaining in Suffolk, 4I2. 3 Reduction of judges' falaries, 428. foobetv, ampsoon, 4 Whether poffeffing the powers of the court of exchequer in England, 536- Clerk to Cockle, —affidavit of, charging 540. Gridley's argument in the affirma- Gov. Bernard with corruption, 424. tive, 536. Argument in the negative, Bernard's fubfequent attempt to displace 537. No equity jurifdifion, 537-540. Toovey, 45. Power of, to iffue writ of prohibition to court of vice-admiralty, 543- gown May recover of an individual money advanced for neceffary fupport of his wife aycat0on and children. Bro'wn v. Culion, 66. AND reprefentation infeparable, antiquity of doetrine, 512. Diffin&ion between treasor. internal and external, 512-520. Otis denied the diftinction, 510, note. Levying war againft the king, what is, 176, 221. ga;es. rxeasurte of tet vrobfnce. Landlord's liability for half taxes under A refolve of the general court authorizing province tax ats. Jacklon v. Foye, 26. "- H. G. the Province Treafurer " to deDerumple v. Clark, 38. mand and fue for money due to the prova No aaion lies for, where the ftatute rem- ince, does not authorize him to fue thereedy is by diftrefs. Ruddock v. Gordon, for in his own name, 54I-547. The S8. general court may authorize the province 604 A Table of the Principal Matters. treafurer to fue in behalf of the province for money granted by a&t of parliament rtumbull, elfef 3htJtfce, to the king for the fupport of the province, 548-552. Of Connefticut, his refufal to iffue writs of affiftance, and letters by him, 5oxerespasz. 504. Joinder of owner and bailee in a&ion, for running away with veffel. Sayer v. Thorp, 28. Yarfance. 2 The owner of a fhip and cargo feized for' breach of the revenue laws, and libelled IN declaration on note by payee, the omifin the court of vice-admiralty, com- fion of" order" is immaterial. Wbitney pounded with the government officers v. Whitney, r17. by leave of that court, paying half the 2 Whether a promiffory note, in which the value of the property; and then fued the words " in one month " are croffed out, collet&or in trespafs for the feizure. The will fipport a declaration defcribing the jury, againfl the exprefs inftruEtions of note as on demand, quere. Carpenter the fuperior court, returned a verdi& for v. FairJer'vice, 239. the plaintiff, and the court gave judg- 3 Evidence of fale on credit will fupport a ment upon it, 553. declaration on a promife to pay on demand, laid after the expiration of the credit. Hall v. Miller, 252. Erespa1tss Suave tlausunt. 4 Indebitatus ajfumpft for a fum certain is not Supported by proof of a promife " to Defcription of clofe; omifllon of part of pay honourably."'ler v. Richards, abuttal immaterial. Fowole v. tWyman, 195. 336-7~ Erfral. ~ltaI!Jo, rancCs, Right to open and clofe, where feveral iffues are joined. Flagg v. Hobart, 332. COLLECTOR at Falmouth, writs of affiftance iffued to, 424. grober For a negro. Allion v. Cockran, 94, in aartant note. 2 For trees, evidence of title to land in Illegal, when juftification for officer. Rex another county when inadmiffible. Gar- V. Gay, 9g. diner v. Purrington, 59. 2 Attefted copy of warrant when admiffible. Whitney v. Ha'ven, 3343 Juffice need not aver himfelf to be fuch troWbbrtlge, t'bmuntl, r in the body of the warrant. Ibid. 4 General warrants. See Writs of AJiftAppearance as counfel, x6, 49, 84, i65. ance. Opinion as to partibility of eftates tail, 74. Firft fitting as judge in Suffolk, 24x. Law papers cited, 74, 383. utarrant2, 2 Opinion on power of juftices to iffue warrant to break houfes in fearch of cus- Implied warranty that goods are merchanttomable goods; writs of affiftance; jus- able, unlefs fold by fample. Baker v. tices of rifitol in cafe of floop Polly, Frobijher, 4. 439-40- See Collateral Warranty. A Table of the Principal Matters. 605 2 Writs of aid in exchequer, 395. Ad ~elarnrer,.3lanmes, di./ringendum willar.os, 395. Writs of afidance in chancery, 396. To feize Appointed juftice of fuperior court, 34 aff.nce in chancery, 397. To feize uncuftomed goods, 397. Englifh flatutes on, 397. Sheriffs patent, 398.!JwIarrent, 3ose0b. Original form of writ, 398. Same in reign of Viaoria, 399. Writs iffued in Alleged libel on Gov. Bernard fuppofed to Maffachufetts in reign of George II., be written by, 27!. Subfequent articles, 401. Warrants iffued by Gov. Shirley, 275, 277-'401. On Paxton's petition in I755, 402-404. On petitions of Lechmere and - f[rnex Waldo in 1758, 405. Of Nevin and Lechmere in 1759, 406. Of Cradock In the province, 43I. And lemons allowed and Walter in 1760, 406. Cockle's apto evade cuftoms as fhip-ftores, 431. plication, 409-41. In Maffachufetts in reign of George ITI., 412. Records Pga~fn1sroWD, E; lboreb aW. of court, 412. Petition of Bofton merchants for hearing, 412. Memorial of Colleftor of cuftoms and clerk of courts in furveyor-general in favor of writs, 4i3. Plymouth, 427, 455. Arguments, judgment and iffue of writ, 2 Deputy colle6lor at Plymouth, when ap- 4'4. Hutchinfon's account in his hispointed; when reappointed; alfo clerk tory, 414. In letters, 4X5. Bernard of courts and regifter of probate for attributes delirulion of Hutchinfon's Plymouth County, 455. houfe to his granting writs, 4i6. Inaccuracies of Adams and Tudor's accounts, 409, 417. Certificate of furUffntlrop, QGobernor. veyor-general for Paxton, 416. Writ iffued to Paxton, 418. Certificate to Condu& when accufed for a&s done as Cockle at Salem, and iffue of writ, 422. magiftrate, 525, note. Certificates for Waldo at Falmouth, and Sheafe at Bofton, 424. Writ iffued to Waldo, and riot in Falmouth thereon, 424. Certificate for Hatch, 426. Orig. See E'vidence. inal writ made out to Hatch now on file, 427. A&ion of general court authorizing fpecial writs, and prohibiting others, 427. trfEgt, Qbltef lusftfce of ngltlanu. Certificates for Hale at Bofton, and Doufe at Salem, 428. Writ iffued to furveyorCharater of, 477. general, 428. Certificate for Capt. Bifhop, order and iffue of writ, 429. CertifiWrft. cate for Folger at Nantucket and order, 430, 431 -2. For Hallowell, comptroller New indorfer when ordered. Ingraham v. at Bofton, 432-3. Memoranda of iffue Cook, 4- of writs to Folger, Hallowell, Fifher, 2 Style of, when changed, 34X~. Mafcarene, Winilow and Capt. Reid, 3 To be legal muft be returnable, 474- 434. Chief Juftice Marfhall's account 4 Indorfed from one officer to another for of writs of affiitance, 435. Refcue of fervice, 475. floop Polly, and complaint of furveyorgeneral, of not being furnifhed with writ Jrfts of assrstance. of affiftance,- proceedings of council thereon, 437. Proceedings againft jufThe fuperior court has power to iffue gen- tices of Brifiol for refifal to iffue wareral writs of affifance. Charles Paxton's rants to break houfes, - opinion of Cafe, $5x. Hutchinfon and Trowbridge, that the 606 A Table of the Principal Matters. remedy was by writs of affiflance, 439. from one perfon to another, for fervice, Complaint difmiffed, 44o. Hutchinfon's 474- Ifrael Keith's MS. copy of report letters to Jackfon in 1765,-officers of of Otis's argument, 478. Of Gridley's, cuftoms all furnished with writs of affift- 479. Of Thacher's, 482. Contempoance,- iffue of writs by Hutchinfon to raneous notices in the Bolton Gazette, Rhode Ifland officers, 440. Seizures - 486. A&t of the general court providing Refcues, - Falmouth riot, and Malcolm's for a writ of affiftance, 494. Opinion of forcible oppofition, 446, 447. Aats of the council upon the a6t paffed by the parliament of 7 George III., declaring general court, 496. Governor Bernard's courts of juftice in each province author- refufal to fign the bill, and fpeech, 497, ized to iffue writs of affiftance, 449. 498. Writs of affiftance in other coloAppointment of American board of cus- nies, 5oo-5 x. In New Hampfhire, 500. toms, - their inftruEtions to their fub- ConneEticut, 50o. Rhode Ifland, 505. ordinates concerning writs, 450. Form New York, 507. New Jerfey, 508. of writ unchanged, 45. Englifh views Pennfylvania,509. Maryland,509. Virof lawfulnefs of writs of affiftance, - ginia, 5Io. Legality of, 512-540. Fir2 opinion of Attorney-General De Grey, ftatute authorizing, 530. Otis's argument 452. Mob at Newport, parody on writ that thofe authorized by the a&t were of affiftance, 455. Change in form fpecial and not general, 53i, 532. Lord of writ, 455. Hutchinfon's comments, Mansfield's affertions, 532, 533. Officer 455. Obje&tion to feizure of floop Liber- acting under and finding nothing, not justy, founded on popular mifapprehenfion tified, 5 3 3, note. Statute of 7 George I I I., of dire&tions in writ of affiftance, 456. authorizing general writs, 534- Refufal New writs iffued in I769, circular from of American courts to iffue general writs, board of commiffioners direting officers 434. Attempt to limit general writs by of cuftoms to apply for the fame, 465. ftatute in the colonies, 534. General writs Hutchinfon's opinion on duty of fheriffs iffued in England until 1817, 535. In in executing writs, 465. Powers of Maffachufetts general warrants not alcuftom-officers under general warrants, lowed, even in the French war, nor in denounced in report of committee of the revolution, 534. General warrants Bofton on rights of colonifts, Nov. 2, prohibited by the declaration of rights of I772, 467. John Adams's report of firft Maffachufetts, and by 4th amendment of argument in 176i, 469. Not returnable Conftitution of the United States, 536. and therefore illegal, 474- Indorfed