Legal Papers of John Adams, volume 2
On motion to give property in evidence on non cul. ruled that in this case it must not be, ruled by 3 of the Justices. R
Mr. Adams then moved for a repleader. Objected that its grantable not of right but
J. Trow bridge
. The diff
Adams moved to ask the plaintiffs witnesses whether the plaintiff was not reputed a Slave and used as such by his master the defendant (in mitigation of Damages).
Proof was given that Taylor owned3 a bargain between Caesar and him for his freedom for £600 O
Note. J. Trowb
Said by Mr. Adams that Superior Court in J. Sewall's day determined from civil law authorities produced by Mr. Gridley and Pratt, that the children of a woman slave were the property of the master of the mother, and that negroes are in classe rerum and are Slaves in this Country.4
Wetmore Notes. Adams Papers, Microfilms, Reel No. 184. The date heading the document refers to the term from which the case was continued, because William Cushing and Nathaniel Ropes were not appointed to the Superior Court until 15 Jan. 1772. Whitmore, Mass. Civil List
70.
“Occasionally the Court would order a repleader, that is to say, that the pleadings should start afresh, for it might turn out that owing to some error which had been overlooked the fact on which issue had been joined did not dispose of the questions between the parties, so that the Court was after all not in a position to give judgment either way, no matter how that question of fact had been determined.” Sutton, Personal Actions
134.
That is, admitted.
defendant in a slave case, see No. 38.
Mem. examine civil Law, and Villenage, to see what Rules are to govern these Negro Causes.
Sergeant.
2
Tim. Fuller. Known Caesar between 20 and 30 years. I bought him, about 12 years old. A new Negro, right from Guinea, could not talk English. Tayler bound him, 3 Years. He came to me to buy him when Hircum owned him. I hired him of Tayler, a Month. He gave me Liberty to hire him, and I paid the Negro. Tayler said if he behaved well and got him his Money, he should be willing to let him have his Time. I said if he did not get the Money by such a Time3
Indian Woman rejected because Caesars Wife.4
Josh. Felt.
5 Tayler told me, that he sold him, because he behaved6
Trials Per Pais 538. Regula.7 But read the Cases that follow in Illustration of the Rule, which shew that the Rule takes Place where a Person meddled with the Property of another.8
Wilson 254.9 Court gave Leave to Defendant to withdraw the general Issue and Plead a Justification.
Court determined that the Master should not give in Evidence that Caesar was a slave.
Adams Papers, Microfilms, Reel No. 185. Apparently JA wrote the title of this minute and noted the continuance at the Salem Superior Court, Nov. 1771. But the notes seem to have been taken at the Ipswich Superior Court, June 1772.
Nathaniel Peaslee Sergeant was Caesar's attorney.
The MS breaks off here. The next paragraph is in a clearer hand, suggesting that JA took time off to sharpen or replace his quill.
“Husband and Wife cannot be admitted to be Witnesses for or against each other, for if they swear for the Benefit of each other, they are not to be believed, because their Interests are absolutely the same, and therefore they can gain no more Credit when they attest for each other, than when any Man attests for himself.” Gilbert, Evidence
135–136.
Josiah Phelps, according to the file. SF 132190.
Sentence left incomplete by JA.
“Regula. Upon the General Issue, if by the Evidence the Defendant acknowledge that he did the Wrong, and justify this, and gives the Matter that goes to discharge him of the Act by Justification, this Evidence is not good, but he ought to have pleaded it.” 2 Duncombe, Trials Per Pais
538.
“This Rule is demonstrated by those Cases, where, upon Not guilty in Trespass, the Defendant would say the Property was in a Stranger, and that by his Commandment, or as his Servant, he took the Goods.” 2 Duncombe, Trials Per Pais
538.
Taylor v. Joddrell, 1 Wils. K.B. 254, 95 Eng. Rep. 603 (1749): “Imprisonment: defendant pleaded the general issue inadvertently, and now moved to withdraw it, and for leave to plead a justification that he was master of a ship, that the plaintiff was making a mutiny therein, and so he imprisoned him. . . .
Per curiam: There are many instances of this having been done when the court can prevent the plaintiff from suffering any inconvenience by it, as by obliging the defendant to take short notice of trial, and that if there be a verdict for the plaintiff he shall have judgment as of the present term; therefore let the defendant be at liberty to plead a justification, and the general issue also, if he pleases, upon the terms mentioned.”