Samuel M. Quincy
Port Hudson, Louisiana, February 9, 1864
The Preface to the original printing of Quincy’s Reports, Boston, 1865, by the Riverside Press of O. H. Houghton and Company for Little, Brown and Company. The Preface was written during the Civil War “in which the country is still involved.” See Editor’s Foreword, infra.
ILLUSTRATION 6: Horace Gray Jr. (1828–1902), Justice, Supreme Judicial Court of Massachusetts (1864–1873), Chief Justice of Massachusetts (1873–1881), Justice, Supreme Court of the United States (1882–1902). Horace Gray was instrumental in preparing Quincy’s Reports. See Mark G. Sullivan, “Phantom References to Quincy’s Reports in the Massachusetts Supreme Judicial Court Reports,” Quincy Papers, vol. 5, Appendix 5, infra. Photograph c. 1884. Courtesy, Collection of the Supreme Court of the United States.
1. See Massachusetts Soldiers, Sailors, and Marines in the Civil War (Norwood, 1931), vol. 1, pp. 69–70, 105, vol. 2, pp. 289, 308.
2. See “General S. M. Quincy, Death of a Gallant Soldier and Fine Scholar,” Boston Daily Globe (1872–1922); March 25, 1887, p. 2; “The Last Roll-Call – Funeral Services Over the Remains of General Samuel M. Quincy,” Boston Daily Globe (1872–1922); March 28, 1887, p. 4; Samuel Arthur Bent, “Eulogy on Samuel Miller Quincy,” Proceedings of the Bostonian Society, May 24, 1887 (Boston), p. 3. (Hereafter, “Proceedings.”) My gratitude for these notes to Mark Sullivan, Research Librarian beyond compare!
3. Boston Daily Globe, supra, March 25, 1887, p. 2. See also Proceedings, supra, p. 25, which refers to Samuel Quincy’s “battle” against a “disease gnawing for years.”
4. It is significant that Samuel Quincy, like his fellow officer for the Second Massachusetts, Col. William Gould Shaw, sought the command of black troops. Id., p. 2. Massachusetts Soldiers, Sailors, and Marines in the Civil War, supra, vol. 2, pp. 289, 308. Samuel Quincy finally mustered out on November 30, 1866, with the rank Brevet Brigadier General, “for gallant and meritorious service.” Boston Daily Globe, supra, March 25, 1887, p. 2. Again, much thanks to Mark Sullivan. There was one supreme irony, noted by Samuel Arthur Bent in his eloquent eulogy of Samuel Quincy. In Bent’s words, “It is a strange illustration of tempora mutantur, that the man who was destined to command two regiments of United States colored troops in war to support the Constitution and the laws carried the flag as color-sergeant of the Cadets [Boston Corps of Cadets] during the three days that they were ordered out at the time of the capture and rendition of Anthony Burns in 1854.” Proceedings, supra, pp. 9–10. Bent noted it was “doubtless a disagreeable duty,” but that there “was a virtue in obedience to the Constitution and the laws” illustrated by the Civil War itself! Id., p. 10.
5. See Samuel M. Quincy’s “Preface,” Quincy’s Reports, supra, p. iii. His grandfather died shortly thereafter, on July 1, 1864, and did not see the publication of the Reports in 1865.
6. He may also have had important help, strangely unacknowledged, from the great Horace Gray (1828–1902), then Reporter to the Supreme Judicial Court and later to become Justice of the Supreme Judicial Court (1864–1873), then Chief Justice (1873–1882), and then a Justice of the Supreme Court of the United States (1882–1902). Gray also had access to the documents, and his role in the publication remains an intriguing mystery. See Mark A. Sullivan’s masterful “Phantom References to Quincy’s Reports in the Massachusetts Supreme Judicial Court Reports,” set out in Quincy Papers, vol. 5, Appendix 5, infra.
7. Hon. Hiller B. Zobel, “The Pompeii of Paper,” Boston Bar Journal (September 1978), p. 20.
8. Reports (Quincy Papers, vol. 5), infra, p. 173. (Note, August 27, 1765.) This was in the context of the Stamp Act riots of August 20, 1765.
9. See the excellent accounts of Hiller B. Zobel, The Boston Massacre (New York, 1970) and Neil L. York, “A Life Cut Short,” Quincy Papers, vol. 1, pp. 22–27.
10. Josiah Quincy, Memoir of the Life of Josiah Quincy, Junior, of Massachusetts 1744–1775 (2d ed., Boston, 1874), pp. 26–27. (Hereafter, “Memoir.”)
11. Quincy himself, at the outset of representing Captain Preston, made to his client “the most explicit declaration of my real opinion on the contests (as I expressed it to him) of the times, and that my heart and hand were indissolubly attached to the cause of my country.” Memoir, supra, p. 28.
12. Id., p. 27.
13. As my co-editor, Neil L. York, observed: “Instead of concluding, as the most detailed study of the massacre trials did, that ‘the radicals failed to consider the possibility of an acquittal,’ we should see that acquittal served their purposes even better than conviction . . . and they probably knew it.” Neil L. York, “A Life Cut Short,” Quincy Papers, vol. 1, p. 26. In all events, “[i]n his own mind, Josiah had taken the high road: he had put principle above politics.” Id., p. 27.
14. Reports (Quincy Papers, vol. 5), infra, p. 173. (Note, August 27, 1765.) See Daniel R. Coquillette, “Patriots in Defense of the ‘Enemy,’” Op-Ed, Boston Globe, January 18, 2007.
15. Martin Luther King, Jr., “Letter from Birmingham Jail,” Christian Century (June 12, 1963).
16. First published in an earlier version in 30 Suffolk Law Review (1996), 1. My thanks to the Donahue Lecture Series at Suffolk Law School and the fine student editors of the Suffolk University Law Review for assistance. As always, I also owe a great debt to my research assistants Brandon Bigelow, Kevin Cox, James Dimas, Thomas J. Murphy, Brian Sheppard, and Mark Walsh. Mark Walsh, in particular, was really a collaborator in the early stages of this project, and to him and to my esteemed co-editor, Neil York, I owe a special debt.
17. William W. Fisher III has brilliantly described the importance of at least the latter three schools of intellectual history to modern legal historians in his splendid “Texts and Contexts: The Application to Legal History of the Methodologies of Intellectual History,” 49 Stan. L. R. 1065, 1065–1072 (1997). Fisher observes:
While the Textualists typically concentrate on “great” or canonical texts (read noncanconically) and while the Contextualists typically seek to identify the common themes and assumptions in the writings of the members of a discursive community (and then interpret individual texts in light of those assumptions), the New Historicists typically focus on small events or anecdotes (often ones they have discovered serendipitously) that they believe are suggestive of the “behavioral codes, logics, and motive forces controlling a whole society. . . .”
Id., p. 1071 (quoting The New Historicism [H. Aram Veeser ed., 1989]). As will be seen, Quincy’s Reports provides grist for all these mills.
18. See generally Daniel R. Coquillette, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775,” in Law in Colonial Massachusetts 1630–1800, at 359 (Daniel R. Coquillette ed., Robert J. Brink, Catherine S. Menand, ass’t eds., 1984).
19. See Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay Between 1761 and 1772 (Boston: Little, Brown & Co., 1865) (hereafter, “Quincy’s Reports”). Quincy’s Reports were not published until 1865, when they appeared in an edition prepared by his great-grandson, Samuel M. Quincy. Id. Arguably, the earliest American law reports were either Ephraim Kirby’s Connecticut Reports or Francis Hopkinson’s Judgments in Admiralty in Pennsylvania, both published in 1789. Charles Warren argued for Kirby, and John W. Wallace for Hopkinson. See John William Wallace, The Reporters 571 n.2 (Boston: Soule and Bugbee, 1882) (touting Hopkinson as first author of American law reports); Charles Warren, A History of the American Bar 328 (1980) (describing Kirby as writer and publisher of first American law reports); see also Erwin C. Surrency, “Law Reports in the United States,” 25 Am. J. Legal Hist. 48, 53 (1981) (discussing unresolved debate surrounding identity of first author). Compare Alan V. Briceland, “Ephraim Kirby: Pioneer of American Law Reporting, 1789,” 16 Am. J. Legal Hist. 297, 297 (1972) (crediting Kirby with publishing first reports), with Wilfred J. Ritz, “The Francis Hopkinson Law Reports,” 74 L. Libr. J. 298, 299 (1981) (asserting Hopkinson wrote “first true American law report”).
An excellent new study of the Reports of the Supreme Court of the United States exists as well. See Morris L. Cohen & Sharon Hamby O’Connor, A Guide to the Early Reports of the Supreme Court of the United States 1–22 (1995) (discussing importance of and rationale for reporting). One might argue that Alexander Dallas’s Reports of Cases Ruled and Adjudged in the Several Courts of the United States and of Pennsylvania stands as the earliest report because, while it was published a year after both Kirby and Hopkinson’s Reports in 1790, it contains cases as old as 1754. See Anonymous, 1 U.S. (1 Dallas) 1 (1754) (limiting extension of statute of frauds and perjuries in province of Pennsylvania); Cohen & O’Connor, supra, at 11–22 (discussing Dallas and his contributions to reporting process); Francis R. Aumann, “American Law Reports: Yesterday and Today,” 4 Ohio St. L.J. 331, 339–40 (1938) (advocating Dallas as earliest reporter). On the other hand, if the date of printed publication is not the test, why not consider cases recorded in lawyer’s notebooks, like those of John Randolph, or Mr. Barradall and a Mr. Hopkins, which record decisions of the General Court of Virginia as early as 1730? See W. Hamilton Bryson, “Virginia Manuscript Law Reports,” 82 L. Libr. J. 305, 305 (1990) (including Randolph, Barradall and Hopkins as authors of earliest law reports); Surrency, supra, at 50 (discussing early notebooks of Randolph, Barradell, and Hopkins). For that matter, there are two early case collections noted by Samuel Quincy in his “Preface”: there is the 1809 publication of Harris & M. Henry’s so-called Maryland Reports, which contain collected cases back to 1658, and the “thin octavo” volume published in 1829 by Jefferson’s legatees, known as “Jefferson’s Reports,” but actually containing “reports of cases from 1730 to 1740, from manuscript Notes left by Sir John Randolph, Edward Barradall, and Mr. Hopkins, and also cases from 1768 to 1772 reported by Jefferson himself.” See Charles C. Soule, The Lawyer’s Reference Manual of Law Books and Citations (Boston, 1883), pp. 28–29, 60–61. Why Quincy’s Reports as the first?
My answer is simple. Josiah Quincy Jr. was the first American to deliberately and self-consciously prepare a set of law reports. These were not just case notes for a law notebook. As will be seen, Quincy kept a separate law notebook, his Law Commonplace. Josiah Quincy Jr., Law Commonplace (1763), microformed on Massachusetts Historical Society, vol. 56, reel 4 (Law Library Microfiche Consortium) (hereafter, “Quincy, Law Commonplace”). Quincy’s Law Commonplace is now published in this series as Quincy Papers, vol. 2. See also Surrency, supra, at 50 (recalling how law students and legal practitioners named their law notebooks “common place” books). Quincy titled the Reports manuscript, in his own bold hand, “Reports of Cases Solemnly adjudged in King’s Bench Court of Assize and General Goal Delivery,” microformed on Massachusetts Historical Society, vol. 56, reel 4 (Law Library Microfiche Consortium). Further, the Massachusetts courts have accepted Quincy’s Reports as true, authoritative law reports and have cited them regularly. See Stamper v. Stanwood, 339 Mass. 549, 553, 159 N.E.2d 865, 868 (1959) (citing Notes on Banister v. Henderson, in Quincy’s Reports, at 119 (1765)); see also Appendix V, Quincy Papers, vol. 5, infra, which lists twenty-three cases of the Supreme Judicial Court citing to Quincy’s Reports as authority, the most recent being O’Loin’s Inc. v. Treasurer of Worcester County, 362 Mass. 507, 515 (1972). Quincy’s Reports has also been cited by numerous other state and federal courts, including seven times by the Supreme Court of the United States, most recently in dissent by Justice O’Connor in Illinois v. Krull, 480 U.S. 340, 363 (1987). See id., Appendix V, supra. Incidentally, it is certain that Massachusetts was the first state to appoint an official reporter, Ephraim Williams (1760–1835), appointed in 1804. See Morris L. Cohen, Paul C. Seeman, “A Man Without Qualities: Ephraim Williams, First Reporter of the Supreme Judicial Court,” 9 Massachusetts Legal History (2003), 137.
20. Quincy, Law Commonplace, vol. 56, reel 4, published in this series as Quincy Papers, vol. 2.
21. Quincy’s [Political] Commonplace Book (1770–1774), vol. 59, reel 4, published in this series as Quincy Papers, vol. 1. The [Political] Commonplace Book has been carefully transcribed and edited by the leading authority on Quincy’s life, Neil L. York. I am delighted to have his collaboration on this project. Jane G. Downing and Natalia Fekula, research assistants of most uncommon intelligence and dedication, have transcribed the Law Commonplace. See generally Quincy, Law Commonplace (1763), vol. 56, reel 4, now published in this series as Quincy Papers, vol. 2. Michael Hayden did the same excellent job for the Southern Journal (1773), Quincy Papers, vol. 3. Mark Walsh patiently compared the published Quincy’s Reports against the manuscript at the Massachusetts Historical Society. Quincy, Reports, vols. 54–55, 57–58, reel 4. Finally, thanks are due to Peter Drummey, Librarian of the Massachusetts Historical Society, the most helpful custodian of the manuscript.
22. 15 Dictionary of American Biography 307 (Dumas Malone ed., 1946).
23. See 1 “The Massachusetts Bench and Bar: A Biographical Register of John Adams Contemporaries,” in Legal Papers of John Adams at xcv (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (hereafter, “Register of Bench and Bar”) (describing nicknames of Quincy’s family). Quincy’s son became Mayor of Boston (1823–1829) and President of Harvard (1829–1845)-hence Quincy Market in Boston, Quincy Street and Quincy House in Cambridge. His son “Josiah the President” published the earliest account of Quincy’s life. Josiah Quincy, Memoir of the Life of Josiah Quincy Jun. of Massachusetts (Boston: Cummings, Hilliard & Co., 1825). The biography is adulatory, but full of original source material and detail, particularly of Quincy’s trip to England. Id. at 216–348; see also 15 Dictionary of American Biography, supra, note 6, at 309 (discussing Quincy’s trip to England); 6 Lamb’s Biographical Dictionary of the United States, 385–86 (John Howard Brown ed., 1903) (hereafter, “Lamb’s”) (summarizing Quincy’s trip to England); L. Edward Purcell, Who Was Who in the American Revolution, 395–96 (1993) (discussing Quincy). In his papers, John Adams also included a substantial amount of information about Quincy. 1 Legal Papers of John Adams, supra, at 34–39, 51–53, 58–60, 63–75, 157–61, 263–64; 2 Legal Papers of John Adams, supra, at 66 n.11, 335–50, 402–04, 409–10; 3 Legal Papers of John Adams, supra, at 5–17, 20–22, 25–29, 35–42, 226–42. Other writers have included Quincy in their work on the American Revolution. See Pauline Maier, From Resistance to Revolution, 125, 134, 242–43, 250–55 (1972) (discussing Quincy’s contributions); Dennis A. O’Toole & Lisa W. Strick, “In the Minds and Hearts of the People,” Five American Patriots and the Road to Revolution, 59, 59–74 (1974) (providing overview of Quincy’s life); Peter Shaw, American Patriots and the Rituals of Revolution, 22–25, 153–74, 223–24 (1981) (recounting Quincy’s life); Hiller B. Zobel, The Boston Massacre, 219–24, 241–43, 259–60, 277–89 (1970) (discussing Quincy’s work). Perhaps the best account is Professor York’s introduction to his transcription of Quincy’s Commonplace Book, “A Life Cut Short,” Quincy Papers, vol. 1, pp. 15–46. I am very indebted to Professor York’s account throughout.
Josiah Quincy Jr. was painted by Gilbert Stuart (1755–1828). Stuart painted Quincy in 1825 “‘after studying family portraits and prints, and the result was considered a good likeness.’” See Descriptive List of Illustrations, in 3 Legal Papers of John Adams, supra, at viii (quoting 2 Lawrence Park, Gilbert Stuart 628 ). The Quincy family still owns the portrait, which now is held by the Boston Museum of Fine Arts. There is a reproduction in the Legal Papers of John Adams, supra, at illus. 9, facing p. 196, and in the Quincy Papers, vol. 1, frontispiece. See Daniel R. Coquillette, “A Note on the Gilbert Stuart Portrait of Josiah Quincy Junior,” id., pp. xxix–xxxvi. The portrait reveals that along with his struggle against tuberculosis, Quincy also had problems focusing one eye. It was yet another physical challenge overcome by the brilliant young lawyer.
24. See 15 Dictionary of American Biography, supra, note 6, at 307 (noting Quincy began his writings during his school years).
25. See Charles R. McKirdy, “Massachusetts Lawyers on the Eve of the American Revolution: The State of the Profession,” in Law in Colonial Massachusetts 1630–1800, supra, note 2, app. IV at 339, 342–43, 348–50 (listing biographical sketches of Adams, Cushing, Paine, and Quincy).
26. 15 Dictionary of American Biography, supra, note 6, at 307.
27. See Neil L. York, “A Life Cut Short,” Quincy Papers, vol. 1, pp. 44–45.
28. McKirdy, supra, note 2, app. IV at 350; see also 15 Dictionary of American Biography, supra, note 6, at 307 (discussing Quincy’s legal training); Richard Scott Eckert, “The Gentlemen of the Profession”: The Emergence of Lawyers in Massachusetts, 1630–1810, at 221–316 (1991) (providing overview of professional training and literature available during Quincy’s time).
29. See 6 Lamb’s, supra, note 7, at 386 (citing some of Quincy’s articles); see also Quincy, supra, note 7, at 156–58 (giving text of letter that appeared in Gazette).
30. 15 Dictionary of American Biography, supra, note 6, at p. 307. Quincy’s most important pamphlet, “Observations on the act of Parliament, commonly called ‘The Boston Port Bill,’ with Thoughts on Civil Society and Standing Armies,” was published in May 1774. Quincy, supra, note 7, at 150. Quincy openly admitted authoring this work. This forthrightness led to a veiled and anonymous threat on his life and his property. See id. at 150–56 (reprinting ominous letter). The chilling threat and Quincy’s brave reply in the Massachusetts Gazette are reproduced in his son’s book, Memoir of the Life of Josiah Quincy Jun. of Massachusetts. Id. at 150–58; see also 15 Dictionary of American Biography, supra, note 6, at 308 (citing periodical in which letter appeared).
31. See Morris L. Cohen, “Legal Literature in Colonial Massachusetts,” in Law in Colonial Massachusetts 1630–1800, supra, note 2, at 243, 243–72 (recounting types and scope of publications available during colonial times); Erwin C. Surrency, “The Beginnings of American Legal Literature,” 31 Am. J. Legal Hist. 207, 207–08, 210–11 (1987) (providing overview of Massachusetts publications).
32. Cohen, supra, note 15, at 253.
33. See Daniel R. Coquillette, Radical Lawmakers in Colonial Massachusetts: The “Countenance of Authoritie” and the Lawes and Libertyes, 67 New Eng. Q. 179, 194–201 (1994) (recounting evolution of Lawes and Libertyes).
34. Surrency, supra, note 3, at 49.
35. Sometimes these differences were due to the existence of colonial legislation, and sometimes simply reflected the court’s recognition of different customs in the colony, particularly as to the practice of merchants. See Notes on Bromfield v. Little, in Quincy’s Reports, at 108, 108–09 (1764) (discussing differences between custom of merchants in Massachusetts and at “Home”); Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 80–86 (1763) (noting justices’ disagreement over whether rule governing appeals controls).
36. See Memorandum, in Quincy’s Reports, at 35, 35 (1762) (setting out roll of “Barristers at Law”). Of course, there were many “lawyers” who were not “barristers.” See McKirdy, supra, note 2, app. IV at 339–58 (profiling Massachusetts lawyers of 1775). Ironically, the roll of barristers never included Quincy himself. See Quincy, supra, note 7, at 27 (discussing how the Superior Court denied Quincy “the honours of the gown”). His son claimed that the reasons for Quincy’s omission were political. Id. “The political course of Mr. Quincy having rendered him obnoxious to the Supreme Court of the province, he was omitted in the distribution of the honours of the gown, which was due his rank and standing at the bar.” Id. Nevertheless, Quincy appeared before the Superior Court of Judicature! This is his own account:
At the laft Sitting of the Superiour Court in Charleftown, I argued (for the firft Time in this Court) to the Jury, though not admitted to the Gown:-The Legality and Propriety of which fome have pretended to doubt; but as no Scruples of that Kind difturbed me, I proceeded (maugre any) at this Court to manage all my own Bufinefs (for the firft Time in this County,) though unfanctified and uninfpired by the Pomp and Magic of-the Long Robe.
Memoranda, in Quincy’s Reports, at 317, 317 (1769).
37. See Daniel R. Coquillette, Introduction, “The Legal Education of a Patriot: Josiah Quincy Jr.’s Law Commonplace, Quincy Papers, vol. 2. See also Hugh Amory, “Under the Exchange: The Unprofitable Business of Michael Perry, a Seventeenth-Century Boston Bookseller,” 103 Proc. Am. Antiquarian Soc’y 31, 31–50 (1993) (discussing plight of colonial bookseller). Erwin Surrency points out that the public underwrote the statute books; whereas law reports did not receive the same funding until more than a century later. Surrency, supra, note 3, at 49. He adds that the very small number of lawyers and the availability of manuscript notebooks, like Quincy’s Law Commonplace, left little demand for printed copies. Id. at 49–50, 54. In addition to the economics of the printing business, Surrency mentions two other factors that might have discouraged American law reports. See id. at 51–52 (commenting on reasons for reports). One was the lack of written opinions, and the belief of some early lawyers that the decisions of colonial courts did not warrant publication. Id. at 51. A second reason, not unrelated to the first, was the higher prestige of the English reports, which provided imported competition. Id. at 49, 54. In Jefferson’s words, colonial judges were chosen:
without any regard to legal knowledge, their decisions could never be quoted, either as adding to, or detracting from, the weight of those of the English courts, on the same points. Whereas, on our peculiar laws, their judgments, whether formed on correct principles of law, or not, were of conclusive authority.
Thomas Jefferson, Preface to Reports of Cases Determined in the General Court of Virginia 5 (Michie 1903) (1829); see also Surrency, supra, note 3, at 51–52 (discussing Jefferson preface).
The judges of Quincy’s Massachusetts Superior Court of Judicature, with a few exceptions like Edmund Trowbridge, Benjamin Lynde, and William Cushing, were not trained professionals. See McKirdy, supra, note 2, app. IV at 330, 332 (listing judges who were also lawyers); Surrency, supra, note 15, at 214 (suggesting colonial judges lacked legal training). Rather many of the judges were wealthy merchants and “gentlemen.” See McKirdy, supra, note 2, app. IV at 330, 332 (listing judges’ occupations). But the exchanges and questions of the judges recorded in Quincy’s Reports leave a clear impression of professional competence. On occasion, Quincy questioned individual arguments. See infra, note 28 (characterizing Quincy as critical of counsel’s arguments). Nevertheless, he recorded the judicial holdings with care and respect. Further, as will be discussed in Part IV infra, the decisions of the judges were represented as clearly authoritative in Massachusetts, even when inconsistent with English cases-at least as a practical matter. Surrency, supra, note 3, at 52; see also infra, notes 104–105 and accompanying text (summarizing that colonial judges did not strictly adhere to English precedent). Finally, in several instances, Quincy managed to obtain possession of manuscript opinions, such as the one by Judge Trowbridge in Hooton v. Grout, although this practice was clearly no more common in the Massachusetts of Quincy’s day than it was in England. Notes on Hooton v. Grout, in Quincy’s Reports, at 343, 343–69 (1772). In both locations, oral opinions from the bench were the practice. See Surrency, supra, note 3, at 55 (commenting that statutes modified oral practice by requiring written judicial opinions). Only in 1785 did Connecticut first require written opinions by statute. See id. (noting Connecticut’s statute viewed law as form of science thereby requiring written opinions).
Perhaps Quincy’s pride in the growing professionalism of the Massachusetts bar and bench and a growing sense of independence from English authority led him to begin his Reports. See id. at 54 (asserting that once America became independent lawyers labored to create American jurisprudence). This would be consistent with Surrency’s arguments for why such reports had not occurred before, and with some of Quincy’s later assertions of professionalism. See discussion infra, Part IV.D; infra, notes 52 and 130 (discussing growing need for and value of colonial reports).
38. See Quincy, Law Commonplace, supra, note 3 (evincing knowledge of English law). His Law Commonplace is filled with references to English reports including Coke’s Reports (1598–1615), Salkeld’s Reports (1689–1712), Modern Reports (1669–1732), Croke’s Reports (1582–1641), Strange’s Reports (1716–1749), and many more.
39. See generally Notes on Banister v. Henderson, in Quincy’s Reports, at 119, 119–48 (1765) (recording barbed exchange between lawyers). The old English Year Books, which contained similar information, were kept by law students for study purposes. See John P. Dawson, The Oracles of the Law 50–65 (1968) (describing reasons for the contents and the evolution of the Year books).
40. See Destruction of the House of the Chief Justice, in Quincy’s Reports, at 168, 170–71 (1765) (highlighting description of the Chief Justice after Boston mob destroyed his house).
41. See Appendix I, “Judicial Dissents,” Quincy Papers, vol. 5. See also notes on Noble v. Smith, in Quincy’s Reports, at 254, 254 (1767) (demonstrating lack of agreement among justices); Notes on Apthorp v. Eyres, in Quincy’s Reports, at 229, 230–31 (1766) (depicting justices’ dispute over admissibility of evidence); Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189, 191 (1765) (recording disagreement among justices as to whether justices or jury should decide case at bar); Notes on Banister v. Henderson, in Quincy’s Reports, at 119, 122–23 (1765) (describing dispute over how to prove valid marriage); Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 77–78 (1763) (transcribing justices’ dispute over admiralty law); Notes on Baker v. Mattocks, in Quincy’s Reports, at 69, 72–74 (1763) (depicting justices’ lack of consensus on freehold estate issue); Notes on Russel v. Oakes, in Quincy’s Reports, at 48, 49–50 (1763) (recording justices’ dispute over negotiability of instrument).
42. See Barbara Aronstein Black, “The Concept of a Supreme Court: Massachusetts Bay 1630–1686,” in The History of the Law in Massachusetts: The Supreme Judicial Court 1692–1992, at 43, 43–79 (Russell K. Osgood ed., 1992) (discussing origins of Supreme Judicial Court of Massachusetts). Quincy himself called his reports, “Reports of Cases Solemnly Adjudged in King’s Bench Court of Assize and Goal Delivery.” See Quincy Papers, supra, note 3 (noting handwritten title); see also Catherine S. Menand, “A ‘magistracy fit and necessary’: A Guide to the Massachusetts Court System,” in Law in Colonial Massachusetts 1630–1800, supra, note 2, at 541, 541–49 (describing creation of colonial court system and its hierarchical structure); Russell K. Osgood, “The Supreme Judicial Court, 1692–1992: An Overview,” in The History of the Law in Massachusetts: The Supreme Judicial Court 1692–1992, supra, at 9, 9–16 (depicting establishment of Superior Court of Judicature).
43. Black, supra, note 26, at 43–79.
44. The most poignant example of Quincy’s critical commentary is the annotation to the infamous Allison v. Cockran case. Notes on Allison v. Cockran, in Quincy’s Reports, at 94, 94 (1764). The case was about whether administrators were competent witnesses in matters “affecting the Eftate of their Inteftate,” but the cause of action was “Trover for a Negro.” Id. Quincy observed: “Qu. if this Action is well brought, for Trover lies not for a Negro. 2 Salk. 666. Ld. Raym. 1274, 146. Cafes in the Time of Holt, 495.” Id. at 94 n.*. Lord Holt had held that “(T)he common law takes no notice of negroes being different from other men. . . . (T)here is no such thing as a slave by the law of England.” Smith v. Gould, 2 Ld. Raym. 1274, 1275, 92 Eng. Rep. 338, 338 (K.B. 1706); see also Notes on Allison v. Cockran, in Quincy’s Reports, at 94, 96 n.1 (1764) (quoting and citing Smith v. Gould). Of course, this may have been a “correct” observation of the common law, but it was, shamefully, not the colonial law of Quincy’s Massachusetts. See Notes on Richmond v. Davis, in Quincy’s Reports, at 279, 298 (1768) (questioning presciently whether uninterrupted practice may change rule of law); infra, Section IV.C (discussing colonial law). Quincy also made many technical, and largely correct, criticisms of counsel’s arguments. See generally Notes on Banister v. Henderson, in Quincy’s Reports, at 119, 126 n.* (questioning counsel’s arguments).
45. See “Editor’s Foreword,” Quincy Papers, vol. 5. See also McKirdy, supra, note 9, app. IV at 339–58 (listing biographies of Quincy’s colleagues); Register of Bench and Bar, supra, note 7, at xcv–cxiv (summarizing fates of Quincy’s contemporaries).
46. See Surrency, supra, note 3, at 50–53 (providing historical overview of colonial notebooks); see also Aumann, supra, note 3, at 337–43 (discussing colonial reporters).
47. 1803 Mass. Acts 133.
48. See Ephraim Williams, Preface to the First Edition of Reports of Cases Argued and Determined in the Supreme Judicial Court of the Commonwealth of Massachusetts at iii–iv (3d ed., Boston: Little, Brown & Co., 1883) (1805); Surrency, supra, note 3, at 56 (discussing Massachusetts’ novel move in appointing court reporter to record Supreme Judicial Court decisions).
49. Because it is no longer subject to copyright, the 1865 edition has been copied and distributed by publishers who have simply reproduced the exact pages. Quincy’s Reports (Dennis & Co. 1948) (1865); Quincy’s Reports (Russell & Russell 1969) (1865).
50. See Appendix 5, “Citations to Quincy’s Reports by the Supreme Judicial Court of Massachusetts,” Quincy Papers, vol. 5, infra. See also Mark A. Sullivan’s masterful “Phantom References to Quincy’s Reports in the Massachusetts Supreme Judicial Court Reports,” included in Appendix 5, infra.
51. Participant, Meeting of the Committee on Court Administration and Case Management, Judicial Conference of the United States, (Dec. 4, 1995).
52. “No ice storms encapsulated any 18th century town; no embalming ash has brought the Revolutionary days to us intact. But we do possess pieces of that past life, preserved without change, and lying, like the wall paintings of Pompeii, beneath a layer of dust, awaiting excavation. We call them court records.” Hon. Hiller B. Zobel, “The Pompeii of Paper,” Boston Bar Journal (September 1978), p. 20. See also Robert J. Brink, “‘Immortality brought to Light’: An Overview of Massachusetts Colonial Court Records,” in Law in Colonial Massachusetts 1630– 1800, supra, note 2, at 471, 471–97 (discussing how colonial records reveal intrinsic historical details and personal sentiments of colonial life).
53. See Quincy, supra, note 7, 160–62 (recording heartbreaking letter to patriot Josiah Quincy Jr. from his dearly beloved loyalist brother Samuel); see also id. at 31–32 (articulating tension in colonial life).
54. 518 U.S. 415, 116 S. Ct. 2211 (1996).
55. See id. at 2216–17 (providing procedural history of case). The Court applied section 5501(c) of the New York Civil Practice, Law and Rules. Id. at 2215, 2218; see also N.Y. C.P.L.R. 5501(c) (McKinney 1995) (defining appellate court scope of review).
56. U.S. Const. amend VII; see also Gasperini, 518 U.S. 415, 116 S. Ct. at 2222– 2223 (discussing Seventh Amendment).
57. See David L. Shapiro & Daniel R. Coquillette, “The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill,” 85 Harv. L. Rev. 442, 448–55 (1971), cited with approval in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 333 (1979) (arguing 1791 as appropriate date for commencement of common law under Seventh Amendment). In Gasperini, 518 U.S. 415, 116 S. Ct. 2211, the majority opinion, by Justice Ginsburg, observes in a footnote that “If the meaning of the Seventh Amendment were fixed at 1791, our civil juries would remain, as they unquestionably were at common law, ‘twelve good men and true.’” Id. at 2224 n.20 This view was attacked by Justice Scalia, in dissent, joined by the Chief Justice and Justice Thomas. Justice Scalia called the “12 juror” analogy “desperate,” noting that there is “of course no comparison between the specificity of the command of the Reexamination Clause and the specificity of the command that there be a ‘jury.’”Id. at 2236 (Scalia, J., dissenting). He strongly criticized the “footnote abandonment of our traditional view of the Reexamination Clause,” and observed that “the court frankly abandons any pretense at faithfulness to the common law, suggesting that ‘the meaning’ of the Reexamination Clause was not ‘fixed at 1791,’ contrary to the view of all our prior discussions. . . .” Id. (citation omitted).
58. Notes on Angier v. Jackson, in Quincy’s Reports, at 84 (1763).
59. Id. at 84.
60. Id. Auchmuty, arguing to defend the verdict from a new trial, stated, “If ever any Cafe was excepted from new Trials, this is. . . . I confess I wish for a Power in the Court to set aside Verdicts, but not for an unlimited one. This Cafe was not against Evidence. . . . The Court is not to be Judge of the Law and Fact too absolutely; if it should be, it takes away all Verdicts but such as are agreeable to the Mind of the Court.” Id. at 84–85. Trowbridge, arguing for a new trial, replied, “It can never be supposed that a Verdict will be given against direct Evidence, without Shadow of Evidence to support it. . . . I hold, this Court always have Right to grant new Trials when they think Injustice like to be done.” Id. at 85. Trowbridge lost. Id.
61. Id. at 85.
62. Id. Quincy records that “Justices Oliver, Cushing, Russell & Lynde (were) against a new Trial, because the Court were not clear in the former Trial.” Id. There is no record of Chief Justice Thomas Hutchinson joining the opinions, and the listing of the judges implies a divided court. Id. The editor of the 1865 printed version, Samuel M. Quincy, observed that the Massachusetts law had now changed, citing Chief Justice Shaw in Miller v. Baker, 37 Mass. (20 Pick.) 285, 289 (1838):
For a long time it was conſidered that a new trial could only regularly be granted, where the verdict was without evidence or againſt the whole evidence. It has however been extended to caſes, where the verdict is clearly againſt the weight of evidence, although evidence was given on both ſides.
Notes on Angier v. Jackson, in Quincy’s Reports, at 84, 85 n.4 (quoting Chief Justice Shaw).
63. Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189 (1765).
64. Id. at 189. Jowitt’s Dictionary of English Law defines an “indenture” as “a deed made between two or more parties” written two times “on one piece of parchment or paper, and then . . . cut . . . in two in an indented or toothed line, so that each copy of the deed fitted the other and could thus be identified.” Jowitt’s Dictionary of English Law (John Burke ed., 2d ed. 1977), 960. Obviously, the two copies ought to match, exactly. In Norwood, they did not. One half of the document gave a sum as covenanted for one year, and the other, the same sum covenanted for a quarter of the year. Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189, 189 (1765).
65. Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189, 189 (1765). Quincy then reported, “’Twas then further urged by the Plaintiff’s Council (sic), that this Practice was well founded, and the Reason of it was this, that Nothing should 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 rejected the Evidence, as ‘would only tend to mislead.’” Id. at 190.
66. Id. at 189. Once again, Auchmuty defended the power of the jury, as he did in Angier v. Jackson. See Notes on Angier v. Jackson, in Quincy’s Reports, at 84, 84–85 (1763) (arguing that if courts decide verdicts only causes favorable to the justices will prevail); see also Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189, 189–90 (1765) (arguing for Jury, not Court, as decisionmaker).
67. Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189, 190 (1765).
68. Id. at 191. Justice Cushing agreed with Justice Oliver’s statement that the matter “properly belongs to the Jury.” Id. Justice Lynde objected that “(a)s the Practice of this Court has always been otherwise, I am for viewing it.” Id. Chief Justice Hutchinson observed that “I know the Custom has been otherwise, but, for my Part, I think ’tis Time it was altered-am for admitting it (to the Jury).” Id. Justice Russell, as was sometimes the case, was not sitting. See Address of the Chief Justice, in Quincy’s Reports, at 171, 171 (1765) (listing justices present and absence of Justice Russell). He resigned a year later, in 1766. See McKirdy, supra, note 9, app. IV at 329–32 (listing terms of colonial Superior Court Judges in Massachusetts). Of course, the Chief Justice’s willingness to change prior custom shows a need for law reports! Quincy recounts the Chief Justice’s admission in Court that he had been “silent” in other cases, although “he had always doubted” (the practice of keeping the evidence from this jury). Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189, 190 (1765).
In Answer to which, it was urged by Messrs. Gridley & Fitch, that it had always been the Custom of this Court to determine in such Cases. To which the Court agreed; and Justice Lynde said that he knew a similar Case of one Lanson’s, in Middlesex: But the Chief Juftice answered, that he had always doubted in those Cases, but whenever they arose, the Court always affirmed the constant Practice, and so he was silent.
69. Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189, 191 (1765).
70. Notes on Carpenter v. Fairservice, in Quincy’s Reports, at 239 (1767).
71. Id. at 239. This time Auchmuty was arguing against the jury power, objecting “that the Note thus erased did not support the Declaration; therefore not Evidence to support it.” Id. Samuel Quincy, Josiah’s brother, “reply’d, that the Jury were Judges of this Matter, and would determine whether the Razure [erasure] was before, or after signing.” Id.
72. Id. at 240.
73. Id. at 239. Justice Oliver clearly changed his position from that in Norwood. See Notes on Norwood v. Fairservice, in Quincy’s Reports, at 189, 191 (1765) (arguing evidence properly belonged with jury). Lynde remained consistent. Compare id. (asserting Court should decide case), with Notes on Carpenter v. Fairservice, in Quincy’s Reports, at 239, 239 (1767) (advocating that Court decides issue).
74. Notes on Carpenter v. Fairservice, in Quincy’s Reports, at 239, 239 (1767).
75. Id. at 240.
76. Id. at 240 n.*.
77. Id. at 240 n.1.
78. On June 24, 1996, the Supreme Court decided Gasperini., 518 U.S. 415, 116 S. Ct. 2211 (1996). The majority duly rejected the historical arguments of our amicus brief, and ignored Quincy’s Reports. See id. at 2222–24 (finding nothing in Seventh Amendment which precludes appellate review of trial judge’s decision to set aside jury verdicts); supra, text accompanying note 38 (discussing issues raised in Gasperini). The primary rationale of the Court was noted by Justice Stevens in a dissent which also rejected our historical arguments. “(T)he Framers of the Seventh Amendment evinced no interest in subscribing to every procedural nicety of the notoriously complicated English system. . . .” 116 S. Ct. at 2229 (Stevens, J., dissenting).
Our position was adopted by Justice Scalia, in an eloquent and learned dissent joined by the Chief Justice and Justice Thomas. Id. at 2231–36 (Scalia, J., dissenting). Justice Scalia observed, “(t)he weight of the historical record strongly supports the view of the common law taken in our early cases.” Id. at 2233. He continues, “(t)he Court, as is its wont of late, all but ignores the relevant history.” Id. at 2234. He concludes, “(a)las, those who drew the (Seventh) Amendment, and the citizens who approved it, did not envision an age in which the Constitution means whatever this Court thinks it ought to mean-or indeed, whatever the courts of appeals have recently thought it ought to mean.” Id. at 2240. As demonstrated, Quincy’s Reports strongly supports Justice Scalia, at least as to the historical record.
Historical records such as Quincy’s Reports are not just useful to strict “originalists” that just look to “determinate rules that can be mined for the purposes of constitutional interpretation.” See Bernadette Meyler’s excellent article, “Towards a Common Law Originalism,” 59 Stanford L. Rev. 551 (2006), at pp. 551, 600. Rather, Meyler’s “common law originalism” would treat “the strands of eighteenth-century common law not as providing determinate answer that fix the meaning of particular constitutional clauses but instead as supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively.” Id., p. 551. Much of both Quincy’s Law Commonplace, Quincy Papers, supra, vol. 2, and The Reports, infra, vols. 4 and 5, were written by Quincy himself in this spirit.
79. Notes on Dunn v. Scollay, in Quincy’s Reports, at 187 (1765); Notes on Scollay v. Dunn, in Quincy’s Reports, at 74 (1763).
80. Notes on Dunn v. Scollay, in Quincy’s Reports, at 187, 187 n. 1 (1765). Samuel Quincy’s note stated that the Peggy was “taken at sea by the French privateer Entreprenante, then returning from trading in negroes on the coast of Guinea.” Id., p. 187 n. 1. The antecedents are confusing. Was it the Peggy or the privateer who was the slaver? There is evidence that the Peggy was carrying coal. See Kevin Cox, “Scollay v. Dunn: the Conflict and Confluence of Colonial Admiralty and Common Law Jurisdiction in 1760’s Boston,” p. 1, an excellent, presently unpublished paper on file with the editor.
83. Id. Ransom notes were not uncommon in the latter half of the eighteenth century. See Christopher P. Rodgers, “Ransom Bills and Commercial Credit in English Law-an Early Excursus in Comparative Legal Science,” in The Growth of the Bank as Institution and the Development of Money-Business Law, 345, 349–51 (Vito Piergiovanni ed., 1993) (discussing ransom bills and English law).
84. Notes on Dunn v. Scollay, in Quincy’s Reports, at 187, 187 n. 1 (1765). Sitwell claimed that the underwriters should pay, “but, as they refused, he wrote to Dunn, that there was “no Way to compell them without Law, and that would be attended with great Uncertainty, as this, they say, in a Case has not been try’d’-and also that he was instructed by Scollay to settle without regard to the ransom bill.” Id. Sitwell was right that the matter was unsettled in English law. See infra, note 95 (discussing issue of hostages under English law).
85. Notes on Dunn v. Scollay, in Quincy’s Reports, at 187, 187 n. 1 (1765).
86. Id. at 188 n. 1.
87. Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 75 (1763).
88. See F. L. Wiswall Jr., The Development of Admiralty Jurisdiction and Practice Since 1800, at 9–10 (1970) (defining “hypothecation” as pledging of vessel).
89. See Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 77–78 (1763) (describing counsel’s argument on hypothecation and its applicability to hostages); see also Coquillette, supra, note 2, at 382–95 (noting John Adams’s vice admiralty expertise). There are also a few good sources on colonial vice admiralty jurisdiction. See generally David R. Owen & Michael C. Tolley, Courts of Admiralty in Colonial America (1995) (studying colonial courts of admiralty); Carl Ubbelohde, The Vice-Admiralty Courts and the American Revolution (1960) (discussing colonial vice admiralty courts); L. Kinvin Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” 6 Am. J. Legal Hist. 250 (1962) (outlining colonial vice admiralty system).
90. See John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in Colonial America: Essays in Politics and Social Development 540, 546–61 (Stanley N. Katz & John M. Murrin eds., 3d ed., 1983) (describing changes in provincial Massachusetts).
91. Morton J. Horwitz, The Transformation of American Law, 1780–1860 (1977).
92. Id. at 1–6.
93. Id. at 5.
94. Id. at 4.
95. Id. at 1.
96. See William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830, at ix–xvii (Univ. of Ga. Press, 1994) (1975) (outlining hypothesis).
97. See id. at 165–74 (focusing on new roles for judge and jury); see also Daniel R. Coquillette, Introduction: The “Countenance of Authoritie,” in Law in Colonial Massachusetts 1630–1800, supra, note 2, at liii–lvi (discussing effects of American Revolution on colonial legal system); William E. Nelson, “The Legal Restraint of Power in Pre-Revolutionary America: Massachusetts as a Case Study, 1760–1775,” 18 Am. J. Legal Hist. 1, 13–26, 32 (1974). (noting American courts’ divergence from English law).
98. Notes on Dunn v. Scollay, in Quincy’s Reports, at 187 (1765); Notes on Scollay v. Dunn, in Quincy’s Reports, at 74 (1763).
99. Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 76 (1763).
100. See Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 75, 77–78 (1763) (discussing prohibition issue); see also Jowitt’s Dictionary of English Law, supra, note, 48, at 1443 (reviewing admiralty issue).
101. Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 77–79 (1763).
102. Id. at 74–75, 77.
103. Id. at 76.
104. Id. at 76.
105. Id. at 77.
106. Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 78 (1763).
107. Id. at 78.
108. Id. at 78–79.
109. Id. at 79.
111. Notes on Scollay v. Dunn, in Quincy’s Reports, at 74, 80 (1763); see also id. at 80–82 (setting forth counsel’s argument). In fact, the hostage in English law usually had a right to proceed in the Admiralty in rem against the ship and cargo to obtain payment of his ransom. See id. at 79 n. 2 (observing state of English admiralty law at time of case). The first case of enforceability of ransom bills directly in the King’s Bench was exactly contemporaneous with Dunn v. Scollay in Ricord v. Bettenham, 3 Burr. 1734, 97 Eng. Rep 1071 (K.B. 1765). There Lord Mansfield, relying on civilian authorities such as Grotius and Pufendorf, entered judgment for the hostage. See Rodgers, supra, note 67, at 350–51 (commenting on Lord Mansfield’s Notebooks).
112. See Notes on Dunn v. Scollay, in Quincy’s Reports, at 187, 187 n. 1 (1765) (listing procedural history of case).
114. Id. at 187–88.
115. Notes on Bromfield v. Little, in Quincy’s Reports, at 108, 108 (1764).
116. Id. “Indebitatus assumpsit,” or “being indebted, he undertook,” was the standard form of action for an agreement not under a written, formal covenant. For a complete explanation of the form of action, originally based on a legal fiction to avoid proceeding in debt, see J. H. Baker, An Introduction to English Legal History (4th ed., London, 2002), pp. 341–45.
119. Id. at 108–09. The jury did not allow interest, and the Court let the verdict stand. Id. at 109.
120. See C.H.S. Fifoot, Lord Mansfield 82–157 (1936) (discussing Mansfield’s instrumentalism); see also Daniel R. Coquillette, The Civilian Writers of Doctors’ Commons, London 282–96 (1988) (outlining contributions of Lord Mansfield); Morton J. Horwitz, “The Historical Foundations of Modern Contract Law,” 87 Harv. L. Rev. 917, 928–31 (1974) (interpreting application of contract law in American and English courts); A.W.B. Simpson, “The Horwitz Thesis and the History of Contracts,” 46 U. Chi. L. Rev. 533, 565–68 (1979) (commenting on English and American court’s handling of contract law).
121. See generally Notes on Hooton v. Grout, in Quincy’s Reports, at 343 (1772); Notes on Apthorp v. Shepard, in Quincy’s Reports, at 298 (1768); Notes on Curtis v. Nightingale, in Quincy’s Reports, at 256 (1767); Notes on Noble v. Smith, in Quincy’s Reports, at 254 (1767); Notes on Pateshall v. Apthorp & Wheelwright, in Quincy’s Reports, at 179 (1765); Notes on Russel v. Oakes, in Quincy’s Reports, at 48 (1763); Notes on Derumple v. Clark, in Quincy’s Reports, at 38 (1763).
122. See Michael Olmet, Official Guide to Colonial Williamsburg (1995), which is lavishly illustrated.
123. Notes on Oliver v. Sale, in Quincy’s Reports, at 29 (1762).
125. Id. at 32.
126. 214 Mass. 223, 101 N.E. 131 (1913).
127. Id. at 226, 101 N.E. at 132. There is actually nothing in the case itself indicating that slaves had such a right. Samuel Quincy’s note, added in the 1865 edition, observes:
The right to marry was secured to them in 1705 by Prov. St. 4 Anne. Anc. Chart. 748. The subsequent records of Boston and other towns show that their banns were published like those of white persons. In 1745, a negro slave obtained from the Governor and Council a divorce for his wife’s adultery with a white man. Jethro Boston’s Case, 9 Mass. Archives, 248. In 1758, it was adjudged by the Superior Court of Judicature, that a child of a female slave, “never married according to any of the forms prescribed by the laws of this land,” by another slave, who “had kept her company with her master’s consent,” was not a bastard. Flora’s Case, Rec. 1758, fol. 296. And the wife of a slave was not allowed to testify against him. MS. note by John Adams of Coesar v. Taylor, in Essex, 1772, (Rec. 1772, fol. 91,) in the possession of Hon. Charles Francis Adams; which also shows that the defendant in an action of false imprisonment was not permitted under the general issue to prove that the plaintiff was his slave.
Notes on Oliver v. Sale, in Quincy’s Reports, at 29, 30 n. 2 (1762).
128. See note 64, supra. See also Notes on Dunn v. Scollay, in Quincy’s Reports, at 187, 187 n. 1 (1765).
129. Notes on Allison v. Cockran, in Quincy’s Reports, at 94 (1764).
130. Id. at 94. “Trover” had become, by the eighteenth century, the general common-law action for the recovery of goods, replacing the old action of “detinue.” J. H. Baker, An Introduction to English Legal History, 393–394 (4th ed. 2002). “‘(T)rover is merely a substitute of the old action of detinue . . . (it) is not now an action ex maleficio, though it is so in form; but it is founded on property.’” Id. (quoting Lord Mansfield in Hambly v. Trott, 1 Cowp. 371, 374, 48 Eng. Rep. 1136, 1137 [K.B. 1776]). The essence of trover is ownership of goods. See Jowitt’s Dictionary of English Law, supra, note 48, at 1810–11 (defining term).
131. Notes on Allison v. Cockran, in Quincy’s Reports, at 94, 94 n.* (1764).
132. Quincy, The London Journal, 1774–1775, Quincy Papers, vol. 1, at 248; Quincy, supra, note 7, at 290. This account comes from a “journal” kept by Quincy during his visit to England from 1774 to 1775. See id. at 216 (describing writings).
133. Id. at 248. Quincy’s companion, the “celebrated Col. Barré,” then dropped the subject. Id. at 288–90. “He smiled, and the discourse dropped.” Id. at 290. Quincy then noted that Barré had supported the hated Boston Port Bill. Id.
134. Quincy, supra, note 7, at 295 (discussing fate of America). Quincy wrote this to his wife on January 7, 1775:
The ministry, I am well satisfied, are quite undetermined as to the course they must take with regard to America. They will put off the final resolutions to the last moment. I know not, and, any further than mere humanity dictates, I care not, what part they take. If my own countrymen deserve to be free-they will be free. If, born free, they are contented to be slaves, e’en let them bear their burdens.
Id. at 293–297.
135. See Notes on Brown v. Culnon, in Quincy’s Reports, at 66, 66 (1763) (recording court’s verdict). Samuel Quincy duly notes that the town cannot recover for supplies “suitable to the wife’s condition in life, beyond her necessary support as a pauper.” Id. at 66 n. 1.
136. Notes on Hanlon v. Thayer, in Quincy’s Reports, at 99 (1764).
137. Id. at 99–100.
138. Id. at 100. Auchmuty, arguing for the wife, Hanlon, observed that “what was necessary for one Station in Life was not so for another, and said the Law never meant the Word ‘Necessary’ in its strictest sense.” Id. Gridley, for the Sheriff, Thayer, who had seized the clothes, observed:
Nothing is necessary in the Law but what is necessary to defend from the Inclemency of the Weather, or necessary to the Degree: But before they can talk highly of Degree they must pay their Debts. If any besides what is barely necessary is allowed for Comfort, it is not the Law, but Humanity. The Law here wisely uses the Word Necessary, for the Boundary of Necessity is determinate, but Conveniency not,-Conveniency! What is convenient? &c. (a little Rhetorick and concludes.) Mr. Gridley also said: If a Judge of Probate grant to the Wife of an Intestate whose Estate is insolvent, two Beds, where one only was necessary, the other immediately became liable to be attached, and he cited Hardistey & Barney, (Comber. 356,) where Holt says if the Party have two Gowns, Sheriff may take one.
Id. at 101 (footnote omitted).
Quincy drops a note here to Edward Coke, The First Part of the Institutes of the Lawes of England, 351(b) asking if it “would not have been good Authority?” Id. at 101 n.*. Coke distinguished between a wife’s “personal goods,” brought into a marriage, and other property, where there is an action for recovery. See 2 Sir Edward Coke, The First Part of the Institutes of the Lawes of England 218–20 (Garland Publ’g 1979) (1628) (discussing wives and feoffment). This remark is just one example of Quincy’s acute knowledge of English precedents.
139. Notes on Hanlon v. Thayer, in Quincy’s Reports, at 99, 103 (1764). “Justices Oliver & Cushing both said the Case was very hard upon the Wife, who brought all these Cloaths at Marriage, yet ‘as they are personal Property, they become the Husband’s on Marriage, and therefore liable.”’ Id. at 102.
The Chief Justice added, scolding the lawyers:
Ch. Just. I should 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 so great Consequence. I always took it to have been the Custom in such Cafes as this, for the Wife to have her Cloaths; in Cases that have come before me as Judge of Probate I never knew it denied to the Wife where the Estate was insolvent.
Id. at 102 (footnote omitted).
140. Notes on Dom. Rex v. Doaks, in Quincy’s Reports, at 90 (1763).
141. Id. at 90–91.
142. See Notes on Dom. Rex v. Pourksdorff, in Quincy’s Reports, at 104, 105 n. 3 (1764) (mentioning case of Margaret Knodle).
143. See Notes on Dom. Rex v. Mangent, in Quincy’s Reports, at 162, 163 (1765) (indicting for murder of bastard child); Notes on Banister v. Henderson, in Quincy’s Reports, at 119, 121 (1765) (claiming valid marriage existed).
144. Notes on Baker v. Mattocks, in Quincy’s Reports, at 69 (1763).
145. Notes on Dudley v. Dudley, in Quincy’s Reports, at 12 (1762); see Jane Austen, Pride and Prejudice 24 (Harcourt, Brace & World, 1962) (1813) (beginning narrative of sisters’ lives on passage of estate to male cousin). There is no opportunity here to adequately describe the important entail cases in Quincy’s Reports. See the excellent study by Kevin Cox, “Entail on the Eve of Revolution: Cases From the Reports of Josiah Quincy Jr.,” 2006, presently unpublished paper on file with the editor. There is no question, however, that the conflict over the will of Governor Dudley, fought out in Dudley v. Dudley, was one of the most important cases for the Boston Bar, both for the legal principle involved and the money at issue. See Notes on Dudley v. Dudley, in Quincy’s Reports, at 12, 12–13 (1762) (outlining issue). The ultimate issue was whether, by Province Law, estates entail are “partible,” i.e., capable of being divided equally to all heirs, male and female. Id. at 17–18. The Court decided against partibility in Baker v. Mattocks, but with the Chief Justice doubtful about the outcome. See Notes on Baker v. Mattocks, in Quincy’s Reports, at 69, 74 (1763) (expressing doubt regarding outcome and favoring English precedent). Where there was no express provision by will, Province Law had already abolished the English common law of primogeniture (i.e., all land to the eldest male, if one exists). Id. at 70 n. 2 (quoting 1692 Mass. Acts 4).
“Whereas estates in these plantations do consist chiefly of lands which have been subdued and brought to improvement by the industry and labour of the proprietors, with the assistance of their children, the younger children generally having been longest and most serviceable unto their parents in that behalf, who have not personal estate to give out unto them in portions, or otherwise to recompense their labour. Sect. I. Be it therefore enacted,” &c., “that every person lawfully feifed of any lands, tenements, or hereditaments within this province, in his own proper right in fee simple, shall have power to give, dispose, and devise as well by his last will and testament in writing as otherwise by any act executed in his life, all such lands, tenements, and hereditaments to or among his children or others as he shall think fit at his pleasure, and if no such disposition, gift, or devise be made,” then prescribing the rules of descent to all the children. Anc. Chart. 230. Id.; see also 1692 Mass. Acts 14 (outlining procedure for distribution of estates).
146. See Memorandum of 1762, included by Samuel Quincy in Quincy’s Reports, at 35 (listing lawyers on Suffolk docket). The most prominent lawyers appearing before the Superior Court in Quincy’s Reports were, in alphabetical order: John Adams (1735–1826), Robert Auchmuty (1723–1788), William Brattle (1706–1776), William Cushing (1732–1810), Francis Dana (1743–1811), Samuel Fitch (1724–1799), Benjamin Gridley (1732–circa 1800), his father Jeremiah Gridley (1701–1767), Major Joseph Hawley (1723–1788), James Otis Jr. (1725–1783), Josiah Quincy (1744–1775), his brother, Samuel Quincy (1734–1789), Jonathan Sewall (1729–1790), and Edmund Trowbridge (1709–1793). See id. (recording lawyers who appeared during court’s term); see also Register of Bench and Bar, supra, note 7, at xcv–cxiv (providing excellent concise biographies of practitioners). See also McKirdy’s excellent study, supra, note 9, Appendix IV at 339–58, “Brief Biographies of Lawyers Active in Boston at the Time of Quincy’s Reports,” Appendix 6, Quincy Papers, vol. 5.
Several of the fourteen, such as Adams, Auchmuty, Cushing, Dana, Fitch, Benjamin Gridley, and Edmund Trowbridge became judges, and Cushing went from the Superior Court to the new United States Supreme Court. Register of Bench and Bar, supra, note 7, at xcv–cxiv (providing biographic information). Some of these, indeed Quincy himself, were never admitted as full barristers, but appeared in court in any event. See id. at cvii (suggesting that Quincy’s political belief prevented him from becoming barrister though he practiced unhindered). But see Quincy, supra, note 7, at 352–53 (noting Quincy honored with title of “barrister” as inscribed on tombstone). Some admitted as barrister, never appear. See Memorandum, in Quincy’s Reports, at 35, 35 (1762) (listing all Suffolk barristers); see also McKirdy, supra, note 2, app. IV at 339–58 (providing biographical sketches of Massachusetts lawyers); Register of Bench and Bar, supra, note 7, at xcv–cxiv (providing excellent concise biographies of practitioners). Adams, Cushing, Dana, Hawley, Otis, and Josiah Quincy took the patriot side, while Auchmuty, Brattle, Fitch, Benjamin Gridley, Samuel Quincy, and Sewall were loyalists. See McKirdy, supra, note 2, app. IV at 339–58 (listing political affiliations). Trowbridge desperately tried to remain neutral, and Jeremiah Gridley died before the worst of the struggle. See id. app. IV at 355 (describing Trowbridge).
The most active judges, in order of appointment, were Benjamin Lynde Jr., Justice from 1746–1771 and Chief Justice from 1771–1772; John Cushing Jr., Justice from 1748–1771 (his son William Cushing above); Chambers Russell, Justice from 1752–1766; Peter Oliver, Justice from 1756–1772, Chief Justice from 1772–1775; Thomas Hutchinson, Chief Justice from 1760–1771 (referred to as simply “Chief Justice” throughout Quincy’s Reports); and Edmund Trowbridge, Justice from 1767–1775. Id. app. I at 329–32. Of the above, only William Cushing and Edmund Trowbridge, known as “The Oracle of the Common Law in New England,” could be considered “professional lawyers.” See “The Banquet of the Bar of Massachusetts on the 250th Anniversary of the Founding of the Supreme Judicial Court of Massachusetts,” in The Supreme Judicial Court of Massachusetts 1692–1942, at 1, 36 (1942) (showing painting of Trowbridge). John Cushing, Lynde, and Russell were landed gentlemen of the old school and Oliver and Hutchinson, wealthy merchants. McKirdy, supra, note 2, app. I at 330–332; see also Francis S. Drake, Dictionary of American Biography 470, 571, 671 (Boston, James R. Osgood & Co. Supp., 1872) (describing Hutchinson, Lynde, and Oliver). There are, of course, many useful secondary sources. See generally Bernard Bailyn, The Ordeal of Thomas Hutchinson (1974) (setting scene of troubled times leading up to Revolution); E. Alfred Jones, The Loyalists of Massachusetts (1930) (setting scene for Revolution).
147. McKirdy, supra, note 2, app. IV at 339, 342–45, 348–50.
148. See id. (listing political affiliations); see also Jones, supra, note 130, at xiii (listing other loyalists of time).
149. McKirdy, supra, note 2, app. IV at 344.
150. Id. app. IV at 339–40.
151. Id. app. IV at 343–44, 352–54.
152. Id. app. IV at 341–42.
153. Id. app. IV at 350–51.
154. McKirdy, supra, note 2, app. IV at 355.
155. See Register of Bench and Bar, supra, note 7, at ci (recounting his historical significance).
156. See Coquillette, supra, note 2, at 405–16 (describing Adams’s political viewpoint); see also John C. Miller, Origins of the American Revolution 425–28 (1943) (describing conditions in Great Britain and America). Adams did not view his objection to the activities of the Parliament as legally rebellious, but he certainly understood the risks. Adams observed that, if the colonialist cause was lost, patriots like himself would “’not only be slaves-but the most abject sort of slaves to the worst sort of masters!”’ Miller, supra, at 425. Compare id. (listing Adams’ “slavery” remarks), with supra, notes 114–17 and accompanying text (listing Quincy’s comments).
157. See Address of the Chief Justice, in Quincy’s Reports, at 171, 171–73 (1765) (recording Chief Justice’s remarks).
158. See Paxton’s Case of the Writ of Assistance, in Quincy’s Reports, at 51 (1761).
159. See Petition of the Jurors in the Trials of Captain Preston and the British Soldiers, in Quincy’s Reports, at 382, 382–86 (1771) (recording observations of trial).
160. Memoranda, in Quincy’s Reports, at 316, 316–17 (1769); Charge of the Chief Justice, in Quincy’s Reports, at 306, 306–15 (1769); Chief Justice’s Charge to the Grand Jury, in Quincy’s Reports, at 301, 301–05 (1768); Charge given to the Grand Jury by the Chief Justice, in Quincy’s Reports, at 258, 258–71 (1768); Charge of the Chief Justice to the Grand Jury, in Quincy’s Reports, at 241, 241–48 (1767); Charge to the Grand Jury by the Chief Justice, in Quincy’s Reports, at 232, 232–37 (1767); Charge to the Grand Jury by the Chief Justice, in Quincy’s Reports, at 218, 218–24 (1766); Charge by the Chief Justice given on the Adjournment, in Quincy’s Reports, at 175, 175–79 (1765); Charge to the Grand Jury by the Chief Justice, in Quincy’s Reports, at 110, 110–17 (1765).
161. Quincy Papers, vol. 1, supra, note 7, at 11 (introducing Quincy’s articles under pseudonym Hyperion).
162. See Register of Bench and Bar, supra, note 7, at ci (crediting Jeremiah Gridley with establishment of legal discussion group).
163. Coquillette, supra, note 2, at 395–97.
164. See Destruction of the House of the Chief Justice, in Quincy’s Reports, at 168, 168–71 (1765) (recounting chain of events); see also Address of the Chief Justice, in Quincy’s Reports, at 171, 171–74 (1765) (recording Chief Justice’s reaction to events).
165. Destruction of the House of the Chief Justice, in Quincy’s Reports, at 168, 170–71 (1765).
166. Address of the Chief Justice, in Quincy’s Reports, at 171, 171–72.
167. Id. at 173–74.
168. Memorial of the Town of Boston, in Quincy’s Reports, at 198, 198 (1765).
169. Id. at 198–209.
170. Id.; see infra, note 155 (discussing Bracton).
171. Memorial of the Town of Boston, in Quincy’s Reports, at 198, 202–04 (1765). The citation is to the great medieval treatise, Bracton, De Legibus et Consuetudinibus Angliae (circa 1235). This is a compelling appeal to the wellspring of English fundamental law, for Bracton was also invoked by the great English Chief Justice, Edward Coke, in personally confronting King James I in the case of the Prohibitions Del Roy. 12 Co. Rep. 63, 77 Eng. Rep. 1342 (K.B. 1608). Quincy’s Law Commonplace has many citations to Coke’s Reports. See supra, note 22 (listing some of Quincy’s English citations). Otis’s actual Bracton page citation, apparently to the “star pages” of the printed edition of 1569, does reference a discussion of the conditions of war and peace, but is otherwise inappropriate. The same is true of the 2nd edition in 1640. No other edition was available before 1878. See Sweet & Maxwell’s Legal Bibliogrphy (2nd ed., W. H. Maxwell, L. F. Maxwell, 1989), 51.
172. Petition of the Jurors in the Trials of Captain Preston and the British Soldiers, in Quincy’s Reports, at 382, 382 n. 1 (1771).
173. See Quincy, supra, note 7, at 34–35 (reprinting letter of Quincy Sr.). Quincy Senior wrote to his son as follows on March 22, 1770:
My dear Son,
I am under great affliction, at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals who are charged with the murder of their fellow-citizens. Good God! Is it possible? I will not believe it.
Just before I returned home from Boston, I knew, indeed, that on the day those criminals were committed to prison, a sergeant had inquired for you at your brother’s house,-but I had no apprehension that it was possible an application would be made to you to undertake their defence. Since then I have been told that you have actually engaged for Captain Preston;-and I have heard the severest reflections made upon the occasion, by men who had just before manifested the highest esteem for you, as one destined to be a saviour of your country.
I must own to you, it has filled the bosom of your aged and infirm parent with anxiety and distress, lest it should not only prove true, but destructive of your reputation and interest; and I repeat, I will not believe it, unless it be confirmed by your own mouth, or under your own hand.
Your anxious and distressed parent,
Quincy’s reply to his father of March 26, 1770, remains a classic of professionalism.
I have little leisure, and less inclination either to know, or to take notice, of those ignorant slanderers, who have dared to utter their “bitter reproaches” in your hearing against me, for having become an advocate for criminals charged with murder. But the sting of reproach when envenomed only by envy and falsehood, will never prove mortal. Before pouring their reproaches into the ear of the aged and infirm, if they had been friends, they would have surely spared a little reflection on the nature of an attorney’s oath, and duty;-some trifling scrutiny into the business and discharge of his office, and some small portion of patience in viewing my past and future conduct.
Let such be told, Sir, that these criminals, charged with murder, are not yet legally proved guilty, and therefore, however criminal, are entitled, by the laws of God and man, to all legal counsel and aid; that my duty as a man obliged me to undertake; that my duty as a lawyer strengthened the obligation; that from abundant caution, I at first declined being engaged; that after the best advice, and most mature deliberation had determined my judgment, I waited on Captain Preston, and told him that I would afford him my assistance; but, prior to this, in presence of two of his friends, I made the most explicit declaration to him, of my real opinion, on the contests (as I expressed it to him) of the times, and that my heart and hand were indissolubly attached to the cause of my country; and finally, that I refused all engagement, until advised and urged to undertake it, by an Adams, a Hancock, a Molineux, a Cushing, a Henshaw, a Pemberton, a Warren, a Cooper, and a Phillips. This and much more might be told with great truth, and I dare affirm, that you, and this whole people will one day rejoice, that I became an advocate for the aforesaid “criminals,” charged with the murder of our fellow-citizens.
Id. at 36–37.
174. See 3 Legal Papers of John Adams, supra, note 7, at 1–98; (providing detailed description of case and surrounding events); Petition of the Jurors in the Trials of Captain Preston and the British Soldiers, in Quincy’s Reports, at 382, 382–86 (1771).
175. 3 Legal Papers of John Adams, supra, note 7, at 6, 15–16.
176. See Coquillette, supra, note 2, at 376–82 (describing members and purpose of Sodalitas Club).
177. See generally Address by the Chief Justice, in Quincy’s Reports, at 197 (1765).
178. Id. at 197.
179. See Quincy, supra, note 7, at 158–60 (noting Quincy’s view on Revolution). Quincy’s letters relating to his voyage of September 28, 1774, and his “Journal” of his visit to England from 1774–1775 are of particular importance. See The London Journal: 1774–1775, Quincy Papers, vol. 1, pp. 219–269. In one letter, Quincy observed to John Dickinson, the eminent Philadelphian lawyer and future Framer of the Constitution:
Sobrius esto is our present motto. At the urgent solicitation of a great number of warm friends to my country and myself, I have agreed to relinquish business, and embark for London, and shall sail in eighteen days certainly. I am flattered by those who perhaps place too great confidence in me, that I may do some good the ensuing winter, at the court of Great Britain. Hence I have taken this unexpected resolution. My design is to be kept as long secret as possible,-I hope till I get to Europe. Should it transpire that I was going home, our public enemies here would be as indefatigable and persevering to my injury, as they have been to the cause in which I am engaged, heart and hand; perhaps more so, as personal pique would be added to public malevolence.
I would solicit, earnestly, intelligence from you, sir, while in London. I shall endeavour to procure the earliest information from all parts of the continent. As I propose dedicating myself wholly to the service of my country, I shall stand in need of the aid of every friend of America; and believe me, when I say, that I esteem none more capable of affording me that aid, than those who inhabit the fertile banks of the Delaware.
Quincy, Memoir, supra, note 7, at 173.
180. See id. at 217 (describing departure for England). In England, he soon realized the immensity of his task, but his patriotism was unshaken. Thus, Quincy wrote to his loyal wife, Abigail, on January 7, 1775:
Oh! my dear friend! my heart beats high in the cause of my country. Their safety, their honour, their all is at stake! I see America placed in that great “tide in the affairs of men, which, taken at the flood, leads on to fortune.” Oh! snatch the glorious opportunity. Oh! for a “warning voice,”-or our lives are bound in vassalage and misery.
The ministry, I am well satisfied, are quite undetermined as to the course they must take with regard to America. They will put off the final resolutions to the last moment. I know not, and, any further than mere humanity dictates, I care not, what part they take. If my own countrymen deserve to be free-they will be free. If, born free, they are contented to be slaves, e’en let them bear their burdens.
Id. at 295.
181. Id. at 348. Quincy died of his tuberculosis on the return voyage from England. Shaw, supra, note 7, at 155. He was in sight of Cape Ann and Gloucester Harbor, where his loyal wife, Abigail, was hurrying to meet him. See Neil L. York, “A Life Cut Short,” Quincy Papers, vol. 1, supra, at 43–44. See also Quincy, supra, note 7, at 346–50.
Quincy died carrying oral secrets about support among the “most stanch friendly to America.” He observed in his shipboard notes of April 21, 1775:
It appeared of high importance that the sentiments of such persons should be known in America. To commit their sentiments to writing, was neither practicable nor prudent at this time. To the bosom of a friend they could intrust what might be of great advantage to my country. To me that trust was committed, and I was, immediately upon my arrival, to assemble certain persons, to whom I was to communicate my trust, and had God spared my life, it seems it would have been of great service to my country.
Quincy, supra, note 7, at 347.
The date of Quincy’s death was April 26, 1775. On April 19, 1775, the fighting began at Lexington and Concord. Quincy’s son was three years old at his father’s death. He would become Mayor of Boston and President of Harvard, and would eventually carry his mother’s body and lay it, 23 years later, beside his father’s in the family tomb on March 25, 1798. See id. at 353 (listing location of Quincy’s and wife’s remains).
182. See “‘. . . In the Spirit of Public Service:’ A Blueprint for the Rekindling of Lawyer Professionalism,” Report of the American Bar Association Commission on Professionalism 1–16 (1986), reprinted in 112 F.R.D. 243 (1986). The problem is not going away. See William C. Kelly Jr., “Reflections on Lawyer Morale and Public Service in an Age of Diminishing Expectations,” The Law Firm and the Public Good (Robert A. Katzmann ed., 1995) 90–101 (recounting problems occurring in law firms); Darlene Ricker, “Greed, Ignorance and Overbilling,” A.B.A. J., Aug. 1994, at 62, 62–66 (discussing problems with profession); see also Rob Atkinson, “A Dissenter’s Commentary on the Professionalism Crusade,” 74 Tex. L. Rev. 259, 264–69, 343 (1995) (cautioning against over-simplifying solutions while simultaneously acknowledging that problem exists). My approach is set out in two publications. Daniel R. Coquillette, Lawyers and Fundamental Moral Responsibility 251–64 (1995); Daniel R. Coquillette, “Professionalism: The Deep Theory,” 72 N.C. L. Rev. 1271, 1271–77 (1994).