FIRST FLOWER-THE EARLIEST AMERICAN LAW REPORTS AND THE EXTRAORDINARY JOSIAH QUINCY JR. (1744–1775)16
Daniel R. Coquillette
I. THE INTENT
We can all debate for generations the conflicting priorities of legal history, but one fact remains: Whether you are a “structuralist,” a “contextualist,” a postmodern “textualist,” or a “new historicist,” you will always welcome improved access to original sources.17 In no area is this more important than in the history of our colonial legal systems, where a few major archives, such as The Adams Papers, have dominated most secondary writing.18
Thus, with invaluable assistance from my former research assistants, most particularly, Mark A. Walsh of the Massachusetts Bar, and my co-editor, Professor Neil L. York of Brigham Young University, I have set out to prepare a new edition of one of the most important original sources about colonial American law, Quincy’s Reports. Quincy’s Reports was prepared by Josiah Quincy Jr. (1744–1775), and covered cases in the Massachusetts Superior Court of Judicature between 1761 and 1772, albeit in very irregular chunks, and with some unrelated cases thrown in. It can be fairly described as the earliest of all American law reports.19
This new edition, prepared under the auspices of the Colonial Society of Massachusetts, is more than just a re-edited text. It is being published as the concluding part of a five-volume series, Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, Boston, 2005–2009. (Hereafter, “Quincy Papers”). Two other Quincy manuscripts, never before published, are included in this series. One is Quincy’s personal legal notebook, which he called his Law Commonplace.20 The other is a fascinating collection of political, literary and philosophical sayings, Quincy’s Political Commonplace Book.21 Finally, there is a new scholarly edition of Quincy’s Southern Journal of 1773, which was full of deeply personal observations about racism, sex, politics and impending war. These other manuscripts are now cross-referenced to Quincy’s Reports themselves.
Together, these documents put Quincy’s Reports into the context of Quincy’s life. They permit us to understand more fully the intellectual life and jurisprudence of this brilliant young lawyer, recorded at the outset of the American Revolution, and more about the tumultuous times in which he lived and, all too soon, died.
It is certainly not my intention to repeat here the full textual and legal analysis that accompanies the annotations in this new edition. Rather, I would like to step back for a moment to contemplate the overall significance of Quincy’s Reports, both as an historic document and as a legal authority of continuing importance. For this is a document that touches on political and juristic controversies that still command our attention, still define our hopes and fears, and still divide us. And, yes, I would like to talk a bit about the people behind these dry pages, the merchants and indentured servants, the bold sea captains and bankrupt speculators, the villains and cheats, the noble patriots and kindly philanthropists, the spies and swindlers, the whores and pimps, the exploited seamen and cruelly-used slaves who walked the streets just before the American Revolution. Let me begin with Josiah Quincy Jr., himself.
II. JOSIAH QUINCY JR. (1744–1775)
Josiah Quincy Jr. (Quincy) was born on February 23, 1744, the youngest son of a prosperous Boston merchant, also named Josiah.22 Josiah Jr.’s son would also be called Josiah and the three were thus nicknamed “Josiah the Colonel” (father), “Josiah the Patriot” (son), and “Josiah the President” or “Mayor” (grandson).23 Quincy grew up in a world of opportunity and privilege. He entered Harvard College in 1759. He was fifteen. When he graduated with a bachelor’s degree in 1763, at age eighteen, he was already hard at work on his legal studies and his Reports.24 Known for his sensitivity, intelligence, and extraordinary gifts as an orator, Quincy seemed like a natural leader in a time of great challenge and opportunity. Indeed, his close friends and schoolmates became signers of the Declaration of Independence (Robert Treat Paine), justices of the new United States Supreme Court (William Cushing) and even President of the United States (John Adams).25
But Quincy was cursed early in life with tuberculosis. Always sickly, he achieved everything he did in a few short years. On April 26, 1775, he died aboard a ship.26 He was returning from a desperate secret mission to England, to try to encourage a peace-even as the shots rang out at Lexington and Concord. He died in Gloucester harbor, in sight of his beloved America. His young wife Abigail hurried to the dock. She left behind their young son, the future President of Harvard, with parents in Norwich. Two weeks before, their new daughter, Abigail, had also died, not a year old. Her sorrow was inexpressible. She would survive her husband by twenty-three years. Quincy was just thirty-one.27
Quincy’s life would have been remarkable had he left no writing. To start, he was a brilliant practicing lawyer. His law teacher was Oxenbridge Thacher, one of the colonies’ leading jurists.28 Quincy qualified for the bar by 1765, and soon had important clients of his own.
But Quincy was also a prolific writer. His writings reveal the tortured, stressful times in which he lived, because they were divided into his public “professional” work, such as the Reports, and his secret writings for the Committee of Correspondence. By day, the young Quincy dutifully attended the royal courts, carefully recording the arguments and holdings of the royal justices. At night, he attended the secret meetings of the patriot rebels. Under names like “Hyperion,” “An Independent,” “the Mentor,” or simply “An Old Man,” Quincy’s articles appeared regularly in the Massachusetts Gazette.29 They bitterly attacked the Tory establishment.30
III. QUINCY’S REPORTS (1761–1772)
Despite the courage of Quincy’s patriotic writings, it is-perhaps ironically-his professional work which is, today, most important. Quincy was a blazing, brilliantly innovative young man, painfully aware of his fatal illness. In 1762, at only eighteen, he began a totally new departure in American legal writing. Massachusetts had established a university and a press by 1639, 122 years before, and had an independent legal system under both the First and Second Charters. But there were no “native” law reports before Quincy.
Of course, the Massachusetts press had long been used for legal publications, with law books exceeded in output only by books on theology.31 These law books included jury oaths, abridgments, and a regular series of printed Provincial Laws, the statutory output of the colonies. According to Morris Cohen, fifty-five separate issues of the Laws and Orders of the General Court appeared between 1661 and 1691, 146 issues appeared from 1692 to 1742, and 208 issues of the Acts and Laws from November 1742 to 1775.32 The Lawes and Libertyes of 1648 was the first codified system of law to appear in print in America, and one of the first such books to be compiled anywhere.33 But, despite the regular sittings of the Superior Court of Judicature from at least the Second Charter (1692) on, there were no law reports. Instead, very expensive English reports were imported.34 Why should this be? There was a clear judicial recognition, documented by Quincy himself, that the decisions of the Provincial courts were, and should be, sources of authority. These decisions also could be quite different from the royal common law of England.35 The judges themselves were aware of this fact. Yet about 123 years passed between 1639 and the first American law reports, almost the same time as between 1775 and the twentieth century. Why, then, no reports?
One likely explanation is the small size of the bar-only about a dozen regular practitioners and only twenty-six barristers total on the rolls in Massachusetts in 1762.36 Colonial printers needed guaranteed markets of a certain size or their business would not be successful, and, as Quincy’s own Law Commonplace demonstrated, English reports were readily available.37 But Josiah Quincy clearly envisioned a new era, and his Reports, covering the years 1761–1772, were clearly and self-consciously designed to be the beginning of something new.
This departure, in itself, would have been extraordinary. But Quincy’s Reports were no ordinary law reports, and these were no ordinary times. Like many of the English reports with which Quincy was familiar,38 his own reports covered more than just judicial decisions. Like the Year Books, Quincy’s Reports included arguments of counsel, and almost anything else that Quincy found of interest in the courtroom, including ad hominem insults and dress.39 When Chief Justice Hutchinson’s house was burned by the Boston mob, Quincy poignantly portrayed the Chief Justice in his borrowed clothes, appearing the next day to preside over the court, despite having lost everything he owned.40 If counsel were asked to submit written briefs, which happened occasionally, Quincy would try to include the briefs in the Reports. In the unusual case where there was a written judicial opinion, he would try to include that, too. Perhaps surprisingly, given the closed society of just a dozen lawyers and five judges, there were frequent dissents, over thirty-one, and there were often closely split votes among the judges. Quincy dutifully recorded these disputes, and the oral debate among the judges.41
Thus, Quincy’s Reports give a graphic and detailed view of the proceedings of the Superior Court of Judicature from 1762–1772. As a “colonial” version of an English high court, like the King’s Bench, the superior court had a trial jurisdiction for serious crime, a trial de novo jurisdiction, and a review jurisdiction, both in error and in a “reservation of judgment.”42 It heard cases from both the Inferior Court of Common Pleas (Civil) and the General Sessions of the Peace (Criminal). Quincy could, and did, observe all aspects of the colonial justice system.43 In addition, his personal intelligence resulted in insights into the cases that often escaped all the active participants. In 1762, Quincy was still a college boy of eighteen, but he already had an astonishing knowledge of the English treatises and leading cases. His marginal notes, politely correcting errors by the lawyers and the judges, are frequently brilliant, and very rarely wrong.44 Quincy also had his two personal notebooks, his Law Commonplace and his collection of political and philosophical “maxims,” the Political Commonplace Book, published in volumes 2 and 1, respectively, in this Quincy Papers series. Taken all together, these documents provide a remarkably complete look at the private legal reasoning and public persona of an eighteenth-century lawyer-quite important in itself, even if Quincy had not also been genuinely brilliant and a great patriotic leader.
Quincy’s early death and the immediate outbreak of serious fighting in the colonies put his vision of an American law report “on hold.” Although the Superior Court of Judicature was not officially abolished and technically survived the Revolution intact-Justice William Cushing never resigned and was reappointed-three of the five justices fled the country. More poignantly, six of the fourteen most active members of the bar also fled-including Josiah’s dearly beloved brother, Samuel Quincy.45
By the time the fighting was over, other lawyers had begun to share in Quincy’s vision, such as A. J. Dallas in Pennsylvania (whose reports included the first Supreme Court Reports) (1790–1807), Francis Hopkinson in the Philadelphia Admiralty Court (1789), Ephraim Kirby in Connecticut (1789), George Wythe in Virginia (1788) and, last but not least, Thomas Jefferson himself, whose Reports of Cases Determined in the General Court of Virginia were published in 1829.46 In Massachusetts itself nothing was done until 1803, when an “Act providing for the appointment of a Reporter of Decisions in the Supreme Judicial Court” was passed.47 Pursuant to this statute, Ephraim Williams was appointed Reporter and issued the first “official” Massachusetts reports, Williams Reports (1804–1805), forty years after Josiah Quincy’s first efforts.48
As to Quincy’s Reports themselves, they languished in manuscript until the Civil War, when Quincy’s great-grandson Samuel Quincy retrieved the original manuscripts and edited them for publication in 1865. They then appeared in print in an edition by Little, Brown and Company, the first, and last edition, until this new effort.49 Remarkably, Quincy’s Reports have been regularly cited by the Supreme Court of the United States, by the Supreme Judicial Court, and by other federal and state courts, as recently as a United States Supreme Court decision in 1987.50 See Illinois v. Krull, 480 U.S. 340, 363 (1987), Justice O’Connor in dissent.
IV. THE “POMPEII OF PAPER”-OR WILLIAMSBURG THIS WAS NOT
Visitors to “colonial” Williamsburg are asked to “step back” into the elegant world of colonial life as it was in the Virginian capital in 1765, just before the Revolution. “Servants” in costumes open the doors, and great attention is paid to details like parcel wrapping and wallpaper. The effect is delightful and escapist. Mulled colonial ale is accurately served in a tankard. All seems right with the world. As a participant in one recent legal conference in Williamsburg observed, “Here we are in a fake eighteenth-century city to worry about a real eighteenth-century legal system!”51
The real 1765 was very different, and the Massachusetts Court records, including Quincy’s Reports, are hard evidence of what life was actually like before the Revolution. As the Honorable Hiller B. Zobel so aptly put it, these records are a “Pompeii of Paper.”52 They capture colonial life in exquisite and candid detail, like bugs in amber. Here are the great and petty affairs of the time, “warts and all.” Here is the best and the worst of society. Prostitution and exploitation of women coexists with noble sentiments of courtesy and fairness. Exhortation of human dignity is found on pages next to the blatant trade in human beings. All in all, it is a bad time. Families are split by political tension, the mob runs free, and young men fear what the future may bring.53
I can only begin to demonstrate here the wealth of information in these Reports, and its importance. Let me give but a few examples, moving progressively-at least in my opinion-from the narrowest categories, cases relevant as authority for constitutional construction, to the most fundamental, cases that give insights into the nature of the rule of law.
A. Constitutional Construction: Controlling Juries
Certainly one function of Quincy’s Reports is its value in resolving continuing constitutional controversies. In 1994, I filed an amicus brief with other legal history scholars in the Supreme Court of the United States. This brief was also signed by Akhil Reed Amar, Arthur R. Miller, Arthur F. McEvoy, and Erwin Chermerinsky, among others. The case, Gasperini v. Center for Humanities, Inc.,54 was a request for certiorari to review a Second Circuit decision which substituted a de novo “weight-of-the-evidence” review for a large jury verdict, applying a New York statute.55 The issue was whether the decision violated the Reexamination Clause of the Seventh Amendment, which provides that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”56 The “rules of the common law” must, as a matter of historical context, be determined as of the date of the Seventh Amendment, i.e., 1791.57
But there are many difficulties in determining the rules of common law as of 1791. With few relevant cases in England, and, of course, almost none reported here, it has been an area of great speculation. With new efforts to limit large civil damages, this historical game is now being played intensely.
One of the few reliable sources is Quincy’s Reports. In three cases, the justices carefully deliberated the power of an appellate court to review a jury verdict, or to substitute its judgment for a jury verdict. In Angier v. Jackson,58 a motion was made for a new trial because “the Jury gave a Verdict for Damages in Favour of Jackſon, original Plaintiff, contrary to the Mind of the Court.”59 Trowbridge, counsel for the appellant, argued that “(w)hen the Jury give a Verdict againſt Evidence, the Court may grant a new Trial. That Jury are not abſolute Judges of Evidence and Damages, ſee Holt’s Rep. 701, 702, Aſh vs. Lady Aſh. Jurys are to try Cauſes with the Aſſiſtance of Judges.”60 The Court disagreed, holding that there can be no new trial even when it is “not clear” whether there is evidence to support a jury verdict.61 The Chief Justice, apparently in dissent, stated that “were it evidently againſt Law and Evidence, there the Court may grant a new Trial, but not where there is Evidence on both Sides.”62
The issue was discussed again in Norwood v. Fairservice.63 This was an action on an indenture, with a defense based on the defendant’s section of the indenture.64 This section of the indenture clearly had different terms from that in possession of the plaintiff. Samuel Fitch, attorney for the plaintiff, “ſuggeſted a Fraud in the Defendant,” and that the Court, not the jury, should view the document.65 Robert Auchmuty, for the defense, argued that this is a “plain Matter of Fact, of which the Jury are the ſole Judges.”66 He continued, “Neither do I think the Court have any Right to determine this Matter; for ’twill be abridging the Priviledges of the Subject, to settle a Point which wholly lies with the Jury to determine.”67 On another split vote, the justices held that they should not view the indenture itself, but it should go to the jury-both parts.68 Justice Cushing observed, “The Jury is ſole Judge of this; they muſt give what Credit they pleaſe.”69
The issue was raised again in Carpenter v. Fairservice.70 The words “in one Month” were erased in a Note of Hand “payable Upon Demand.” The issue was whether the words had been erased before, or after, the signing of the note.71 Chief Justice Hutchinson observed, “(S)urely the Court could not determine the Weight of the Evidence of the Witneſs; but that the Jury are the ſole Judges of the Credibility of this Witneſs, upon whoſe Teſtimony alone it reſts, whether this Razure was before or after ſigning.”72 But here, Justices Oliver and Lynde disagreed, arguing “that, as the Note did not ſupport the (plaintiff’s) Declaration, it ſhould not go in as Evidence.”73 Chief Justice Hutchinson and Justice Cushing argued that the whole matter should go to the jury.74 Justice Trowbridge was not sitting, the court was evenly divided, and the plaintiff lost his declaration.75 Quincy dropped one of his insightful notes here, referring the reader to the contrary holding in Norwood v. Fairservice, just discussed.76 He was right, of course. As his grandson, Samuel M. Quincy, aptly observed, “The queſtion as to the time when an alteration of a written inſtrument was made, is for the jury.”77 Could this case have been one of the those that convinced Quincy of the need for national law reports? Certainly Quincy’s Reports is still relevant today in resolving cases which involve constitutional right to jury trial, such as Gasperini v. Center for the Humanities, Inc.78
B. Colonial Jurisprudence: Herein of Hostages and “Reasonable Custom”
Another use of Quincy’s Reports is to test current academic theories about pre-Revolutionary American jurisprudence. Where did the colonists look for their law? How bound were they by English legal doctrines? Did they consciously make new law to solve the peculiar social and economic problems of a new land?
One instructive case is Dunn v. Scollay.79 The Scollays were wealthy Boston merchants. John Scollay owned the Brigantine Peggy, which was consigned to William Sitwell of London.80 Returning in the fall of 1756, the Peggy was taken at sea on October 26, 1756, by a French privateer, aptly named the Entreprenante.81 The Captain of the Peggy, Isaac Freeman, was a clever and persuasive man, and convinced the French to accept a ransom bill on Sitwell and return the ship, the ransom note clearly being more than the pirates could get in France for their prize, but less than the value of the voyage.82 Not being fools, the French took the first mate, one Dunn, as a hostage for payment.83
Once the ship was returned, however, neither Scollay nor Sitwell paid the bill.84 Dunn languished in prison at Nantes where “he remained in a ſick and deſti0tute condition.”85 (Sitwell, apparently, sent Dunn one shilling a day for his support in prison.)86 Neither Scollay nor Sitwell, of course, were privy to Freeman’s ransom contract, as a matter of strict contract law. Six years later, Dunn’s friends and family finally raised money for his ransom. On his return to Boston, Dunn promptly sued Scollay.87
It might, at first appearance, seem that both the strict letter of contract law and the economic interests of the Boston mercantile establishment would make this an easy case. Scollay’s act may have been blatantly immoral, but there was no legal basis to bind him to a contract he had never seen nor approved. Yet for many years the customary law of the sea, as applied in the Admiralty Courts, had held that the master of a vessel could bind the vessel itself, without the knowledge of the owner, where the question was urgent repair to a vessel.88 The reason was obvious: a valuable voyage might otherwise be cut short, and the profits lost. This doctrine, called “bottomry” or “hypothecation,” was well known to Quincy and the Boston lawyers.89 Was not Dunn’s case the same?
The willingness of early American courts to depart from black letter common law, particularly English law, and apply new doctrines based on the necessities of colonial trade or social policy has been a subject of hot debate among legal historians. John Murrin has argued that Massachusetts was experiencing “rapid and pervasive Anglicization” of its legal system, a process only cut off by the Revolution.90 Morton Horwitz takes a different view. In his prize-winning and original book, The Transformation of American Law, 1780–1860,91 he describes a period of stability right up to and through the Revolution.92 There was, to be sure, an “‘inevitable and rapid reception of the body of English common law,’” but only on the terms of the Americans and almost solely by local statute, not judicial activism.93 According to Horwitz, real legal change occurred only after the Revolution, with the breakdown of the eighteenth-century “conception of law” and the emergence of an “instrumental perspective on law.”94 Only then did the courts narrow the province of the jury and undertake “an innovative and transforming role.”95 William E. Nelson takes yet a third view. A pioneer in the use of unpublished court records-as opposed to exclusive reliance on statutes and reported decisions and treatises-Nelson has concentrated on Massachusetts. His central thesis emphasizes the roles of judges and juries in the trial of cases.96 Nelson argues, in contrast to Murrin, that the pre-Revolutionary period saw the increasing power of juries, both in fact-finding and law-finding, the de-emphasis of special pleading, a limited role for judges, and a strong sense of local indigenous justice.97
Cases like Dunn v. Scollay98 are direct tests of these academic theories. The case was originally brought by Dunn’s lawyers, Auchmuty and Gridley, in the Vice Admiralty Court, where they clearly hoped to use an extension of the Admiralty’s “hypothecation” doctrine to bind Scollay to an agreement he never joined. Their argument was that the case involved a prize “taken upon the High Seas,” and was thus within the traditional admiralty jurisdiction.99 Scollay’s lawyers sought a “prohibition,” an order “to restrain an inferior court with the limits of its jurisdiction,” to stop the admiralty proceeding.100 They argued that the relationship between Dunn and Scollay was just an issue of personal liability in contract, a simple common-law matter.101 The vessel was not involved, probably because the Scollays kept it carefully away.102
Auchmuty, for Dunn, appealed to both the fairness and the economic necessity of permitting masters to bind owners to contracts that save the voyage, “otherwife the Whole would be loft.”103
Maſters may make Contracts that bind the Owners. Molloy, B. 2, C. 1, S 10; Ch. 2, SS 14 & 16. Ib. B. 2, Ch. 2, S 2. Hardres, 183, Sparks vs. Stafford. In Salkeld the Caſe is not ſo well reported as the ſame in Mod. Rep. ’Tis unneceſſary to ſet forth Order to redeem; as the Maſter may juſtify throwing over Goods in Caſe of a Storm to ſave a greater Loſs, ſo may he redeem, as otherwiſe the Whole would be loſt. 2 Ld. Raym. 931, Tranter vs. Watſon. As for the Caſe of Johnſon vs. Shippin in Salkeld, that the Maſter by his Contracts cannot make the Owners liable, 6 Mod. 79 is the ſame Caſe, and not ſo reported, beſides there the Contract appeared to have been made at Land; as for the Veſſell’s being loſt, ’tis of no Avail-the Owners muſt be bound inſtantly or not at all; if the Maſter has a Right to bind the Owners by his Contract, they are bound, and the Contract cannot be reſcinded but by the Parties, and not depend upon ſuch a Contingency as the Arrival of the Veſſell.104
Thacher replied for Scollay that admiralty doctrine is limited to the security of the vessel, and cannot be the basis for personal contract liability for owners without any privity:
Whether the Owners muſt anſwer in their Perſons for the Act of the Maſter at Sea, of which they were utterly unknowing, is the Queſtion; I take it not the Owners perſonally, for the Thing itſelf is bound. Every Ranſom is a new Purchaſe, and if the Owners are liable in this Caſe, they would be liable if the Maſter had contracted with the Captors for another Ship, and ſent an Hoſtage as a Pawn.105
Gridley countered for Dunn:
There are ſome Things though tranſacted upon the High Sea are not of a Maritime Nature, are not within the Juriſdiction of the Court of Admiralty. Things of a Maritime Nature tranſacted at Sea are undoubtably within its Juriſdiction. So there are ſome Things of a Maritime Nature, though not tranſacted upon the High Seas, that are within the Juriſdiction of the Admiralty; ſuch are Wages of Seamen. There is Nothing that Owners are not liable for, which is neceſſary for the Support of the Voyage; it is no Argument that becauſe the Veſſell is liable, the Owners are not alſo; Veſſell, Maſter, and Owners are all liable for Wages. Viner, Tit. Hypoth. 329, bot.106
The Court was split. Justice Oliver held that the admiralty jurisdiction was good.107 Justice Lynde disagreed, arguing that, if the action “was on the Ship or Cargo,” it would have been proper for the Admiralty, “but as it is not, I cannot but be for the Prohibition ſtanding.”108 Chief Justice Hutchinson agreed:
Ranſom as far as it reſpects Maſter and Hoſtage maritime, ſo far as Owner and Maſter does not appear to be a Contract upon the High Seas. None of the Authorities maintain the Juriſdicition in this Caſe; and where it is doubtfull, I think ’tis a Rule that common Juriſdiction ought to be maintained, and that the Admiralty Juriſdiction ought to be made plain and clear, which I think is not the Caſe now.109
Hutchinson’s arguments apparently carried the day, and the prohibition was sustained.110 Moreover, the Court denied leave to appeal to the King and Council in England, despite fervent arguments by Auchmuty and Gridley that this was a “Caſe of Importance.”111
Undeterred, Dunn then brought a straight action at common law.112 Although he initially won a jury verdict of £700 in the Court of Common Pleas,113 this was apparently set aside by the Superior Court of Judicature, on strict application of common-law privity doctrine.114
What does this case say about the theories of Murrin, Horwitz, and Nelson? Certainly, the ultimate outcome was a strict application of English doctrine, at least as the judges understood it. On the other hand, it was a split decision, and the arguments of counsel were full of instrumentalist rationales that were carefully considered by the bench.
Other, less spectacular, cases demonstrated a willingness to adopt customary remedies into the “law,” particularly where this served an economic or social end. Such a case was Bromfield v. Little.115 The issue was simple. In a straight contract action (indebitatus assumpsit) for an account payable, was interest payable after a year on goods sold, because such completed sale would “raiſe an implied Contract to pay the ſame”?116 The plaintiff argued that although there was no specific agreement between the parties on this point, the “Cuſtom of Merchants (was) here to charge Intereſt after a Year.”117 The Justices permitted “Several Merchants” to be “ſworn on this Head, but they did not agree about the Time, neither whether they did or did not firſt inform the Debtor.”118 Then the following colloquy occurred, which focused solely on the very practical issue of whether this was an accepted and “reasonable custom”:
In Behalf of Defendant, ’twas ſaid, there was no ſuch Cuſtom here at all; yet if it could be ſaid there was a Cuſtom here to charge after Notice either at or after Sale, certainly not before Notice.
Juſt. Oliver. Whether this is a reaſonable Cuſtom muſt firſt be conſidered. I think it is. I think, too, it appears to be a Cuſtom.
Juſt. Cuſhing. This Caſe is very different from what it is at Home; ’tis there the univerſal Uſage, which makes it the Suppoſition of every Party at ſirſt; and, as a Perſon purchaſing Goods without any ſpecial Promiſe is ſuppoſed to promiſe the Payment of the Cuſtomary Price, ſo he is ſuppoſed to engage to pay the cuſtomary Allowance for Forbearance; but here, however reaſonable it may be, it is yet otherwiſe, nor is it implied in the Contract.
Ch. Juſtice. This Caſe is of much Importance to the Community. ’Tis agreeable to natural Equity that Intereſt ſhould be allowed; and I am glad it is growing into a Cuſtom; but the Rule is that both Parties ought at the Time of contracting to underſtand it ſo, and I doubt whether it is ſo general as that it can be ſuppoſed in this Caſe.119
Obviously, the Scollay and Bromfield cases do not, alone, confirm or vitiate the various theses of Murrin, Horwitz or Nelson. But the “tone” in the courtroom, captured so well by Quincy in his careful notation of both the arguments and the judicial exchanges, seems very adventurous. “Instrumentalist” judging was clearly not just a product of the Revolution in Massachusetts, any more than it was in Lord Mansfield’s court in London.120 Further, both counsel and the bench seem willing to use English precedents loosely, to achieve what they regard as fair. Quincy’s Reports contain dozens of Scollay and Bromfield-type cases.121 Any general thesis about American pre-Revolutionary jurisprudence needs to accommodate this evidence.
C. Law and Society: Of Jane Austen, Bawdy Houses, Slavery, Naked Wives and Entails
Today’s Williamsburg is full of costumed “attendants” play acting as the happy men, housewives, and servants of the pre-Revolutionary era.122 The “Pompeii of Paper” has a much tougher picture of Boston from 1761 to 1772. To begin, Quincy’s Reports graphically conveys the ugliness of Boston slavery. In Oliver v. Sale,123 Oliver sued Sale “for selling him two free Mulattos for Slaves,” producing several receipts of “Money for two Negro Boys fold & delivered.”124 There was no question that humans could be bought and sold, and to sell a free human as a slave was simply to fail to deliver on the bargain. As the Chief Justice observed:
Ch. Juſt. Is there not as palpable a Fraud, when a Man sells a Negro as a Slave whom he knows to be free, as when he ſells a Bag of Feathers and assures them to be Hops? That he knew them to be free they must prove, or do not support their Declaration.125
Ironically, Oliver v. Sale was later cited in Merrick v. Betts126 to establish the existence of a right of slaves to marry prior to the 1780 Constitution, referring to Samuel Quincy’s notes.127
There are other slave and indentured servant cases in Quincy’s Reports. We have already seen evidence of the slave trade in Dunn v. Scollay.128 In Allison v. Cockran,129 straight trover is brought “for a Negro,” exactly as if he were a bale of cotton.130 Quincy added a cryptic note, referring to some of the English cases and declaring that slavery could not exist in England. “Qu. if this Action is well brought, for Trover lies not for a Negro.”131 Later, Quincy would have a discussion with a potential Whig sympathizer in England, who observed how lucky it was that Quincy had come, since more than “two thirds of this Island at that time thought the Americans were all negros!”132 Quincy snapped back that he “did not in the least doubt it, for if I was to judge by the late acts of Parliament, I should suppose that a majority of the people of Great Britain still thought so, for I found that their representatives still treated them as such.”133 In that remark was both a clear acknowledgment of American racism, and the ultimate dilemma of fighting a Revolution for human freedom, while so many were to be left slaves.134
The situation for women was only marginally better. Husbands who abandoned their wives and children could be held liable to the Overseers of the Poor for support payments, even though they had not “agreed” to the support and there was no privity. Ironically, this is the kind of extension of contract doctrine, based on policy grounds despite lack of privity, that the Court declined to take for the abandoned first mate in the Scollay case!135
In the “naked wife” case, Hanlon v. Thayer,136 the issue was whether a woman with assets who marries a bankrupt husband loses all her belongings to his creditors, including her clothes.137 The conclusion was “yes” except for “neceffary wearing Apparell.”138 The Chief Justice observed:
(here Ch. Juft. makes an Apology 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-musft fhe go naked when that is wafhing? Upon the Whole I think it would be very hard upon the Wife, fhould fuch a Precendent as this take Place, that her Cloaths which fhe brought in Marriage muft go to difcharge the Hufband’s Debts. I fhould think it fafer to verge towards Conveniency than to ftrain the Word Neceffary.139
At least one form of entrepreneurship was recognized for women, running a “Bawdy House.” In Dom. Rex v. Doaks,140 Mistress Doaks was acquitted because proven “Acts of Lafcivioufnefs” were prior to her acquiring the alleged House, and no proof of character was permitted by the prosecution unless character was made an issue by the defense.141 Strikingly, Mistress Doaks was the only woman to appear in Quincy’s Reports alleged to have her own business, if we except Margaret Knodle, a convicted thief.142 Several cases had women desperately trying to prove marriage to avoid bastardy, or to avoid a charge of murder of a bastard child.143 Despite earlier progress toward “partibility” and women’s rights in property law, Jane Austen would have recognized the fierce battles over property and the importance of the male entail in Baker v. Mattocks144 and Dudley v. Dudley.145 It was not a pretty picture. Costumes aside, it was better to be white and male in either colonial Williamsburg or Boston.
D. Rule of Law: The Brethren
Quincy’s Reports gives a candid and forceful view of the social realities of Massachusetts in the 1760s. It also gives a particularly good view of one little society-fourteen active lawyers and six judges of the Boston legal world, whose arguments, exchanges and even jokes are carefully described.146 It was a very small bar, and the “players” knew each other intimately. But it was also very important. Its importance is usually described in terms of “winners” history-after all, this tiny group included a future President of the United States, John Adams; a future Justice of the new Supreme Court, William Cushing; a signer of the Declaration of Independence and future Attorney General and Justice of the Supreme Judicial Court, Robert Trent Paine; a future Chief Justice of Massachusetts, Francis Dana; and three great patriots who were struck down in their prime, James Otis Jr., Major Joseph Hawley, and Josiah Quincy Jr. himself.147
But this is only just “winners” history. Half of this tiny band, including some of its most talented members, were loyalists.148 Benjamin Gridley fought with Timothy Ruggles’ Loyalist Corps and went into exile.149 So did Robert Auchmuty, an able protagonist in many of the most important cases.150 So did Samuel Fitch and Jonathan Sewall, Josiah Quincy’s close friends.151 William Brattle also took to the Tory cause.152 So, most poignantly, did Josiah’s own brother, Samuel Quincy, who ended up as a barrister in Antigua.153 One, the skilled and knowledgeable Edmund Trowbridge, clung to neutrality, thus losing all chances for further advancement.154 Mercifully, the great “dean” of the Boston bar, Benjamin Gridley’s father and John Adams’s teacher, Jeremiah Gridley, died in 1767, before he had to see his sons and students go to war with each other.155
And the outcome could have been very different. As Adams fully recognized, it really was glory or the gallows for the patriots.156 Brattle, Gridley, and Auchmuty could have been the leaders of a powerful, reunited Province. As it turned out, it was the loyalists who lost everything.
Quincy’s Reports contains direct reports of some of the most traumatic events of the day, including the dramatic appearance of Chief Justice Hutchinson in borrowed clothes after his house had been destroyed by the mob the night before.157 Also of great importance was the second argument of Paxton’s Case, the famous “Writs of Assistance Case,”158 and accounts relating to the trial of Captain Preston and the British Soldiers, the famous “Boston Massacre Trial.”159 Many other political events and trials were noted by Quincy and he carefully recorded the Chief Justice’s annual charge to the Grand Jury, an excellent political barometer.160
But the ultimate political and professional lessons of Quincy’s Reports are very different from what one might expect. We know that Josiah Quincy Jr. was a lawyer by day, and a member of the secret Committee of Correspondence by night.161 We know that six of these lawyers would be expelled and rejected, and that seven would become famous “patriots” and/or great men in the new republic. But the lesson, graphically and carefully taught by those pages, is not the expected and obvious one of dissension, division, and hatred. Most surprisingly, it is one of solidarity and mutual professionalism, in the face of a crumbling political order. Patriots and loyalists alike adhered to their understanding of English legal rights, legal process, and legal professionalism, even in the face of intense political pressure. It is remarkable that the so-called “Sodalitas Club,” with both patriot and loyalist lawyers as members, was founded in 1767, and met for regular, collegial dinners.162 Or that the first bar association, the Suffolk Bar Association, was founded in 1770, with John Adams as secretary.163
There are many examples of this professionalism in Quincy’s Reports. Let me select just three: the reaction to the looting of the Chief Justice’s house in 1765, the Stamp Act arguments of 1765, and the Boston Massacre Trial of 1771. Perhaps the most dramatic event was the destruction of the Chief Justice’s house, on August 27, 1765, in response to the passage of the Stamp Act.164 Quincy’s political sympathies were clearly against the Stamp Act, but the entire bar united in condemning the lawlessness of the mob. Quincy’s description in the Reports leaves no question of his sincerity, and also his allegiance to legal process:
The Deſtruction was really amazing; for it was equal to the Fury of the Onſet; but what above all is to be lamented, is the Loſs of ſome of the most valuable Records of the Country, and other antient Papers; for, as his Honour was continuing his Hiſtory, the oldeſt and moſt important Writings and Records of the Province, which he had ſelected with great Care, Pains and Expenſe, were in his Poſſeſſion. This is a Loſs greatly to be deplored, as it is abſolutely irretrievable.
The Diſtreſs a Man muſt feel on ſuch an Occaſion can only be conceived by thoſe, who, the next Day, ſaw his Honour the Chief Juſtice come into Court, with a Look big with the greateſt Anxiety, cloathed in a Manner which would have excited Compaſſion from the hardeſt Heart, though his Dreſs had not been ſtrikingly contraſted by the other Judges and Bar, who appeared in their Robes.-Such a Man, in ſuch a Station, thus habited, with Tears ſtarting from his Eyes, and a Countenance which ſtrongly told the inward Anguiſh of his Soul,-what muſt an Audience have felt, whoſe Compaſſion had before been moved by what they knew he had ſuffered, when they heard him pronounce the following Words, in a Manner which the Agitations of his Mind dictated!165
For his part, the Chief Justice was careful to point out his personal opposition to the Stamp Act, and his awareness of what provoked the violence.
The Chief Juſtice, addreſſing the whole Court, ſaid,-
There not being a Quorum of the Court without me, I am obliged to appear. Some Apology is neceſſary for my Dreſs-indeed I had no other. Deſtitute of Everything-no other Shirt-no other Garment, but what I have on.-And not one in my whole Family in a better Situation than myſelf. The Diſtreſs of a whole Family around me, young and tender Infants hanging about me, are infinitely more inſupportable than what I feel for myſelf; though I am obliged to borrow Part of this Cloathing.
Senſible that I am innocent, that all the Charges againſt me are falſe, I cannot help feeling:-And, though I am not obliged to give an Anſwer to all the Queſtions that may be put me by every lawleſs Perſon-yet I call GOD to witneſs,-and I would not for a thouſand Worlds call my Maker to witneſs to a Falſehood,-I ſay, I call my Maker to witneſs, that I never, in New England or Old, in Great Britain or America, neither directly nor indirectly, was aiding, aſſiſting or ſupporting, or in the leaſt promoting or incouraging what is commonly called the Stamp Act; but, on the contrary, did all in my Power, and ſtrove 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 ſurrounding me, but the moſt piercing Diſtreſs.166
Quincy concluded his account with an uncharacteristic, but revealing, out-burst:
Who, that fees the Fury and Inſtability of the Populace, but would ſeek Protection under the Arm of Power? Who that beholds the Tyranny and Oppreſſion of arbitrary Power, but would loſe his Life in Defence of his Liberty? Who, that marks the riotous Tumult, Confuſion and Uproar of a democratic-the Slavery and Diſtreſs of a deſpotic State, the infinite Miſeries attendant on both, but would fly for Refuge from the mad Rage of the one, and oppreſſive Power of the other, to that beſt Aſyslum, that Glorious Medium, the BRITISH CONSTITUTION! Happy People! who enjoy this bleſſed Conſtitution. Happy! thrice happy People! if ye preſerve it inviolate. May ye never loſe it through a licentious Abuſe of your invaluable Rights and Blood-purchaſed Liberties! May ye never forfeit it by a tame and infamous Submiſſion to the Yoke of Slavery and lawleſs Despotism.167
Equally important was the genuine distress of the entire bar at the closing of the courts by the Stamp Act. Cynics could ascribe this to loss of legal business, but these fourteen lawyers would suffer far more for their beliefs. Both sides seemed genuinely convinced that it was the legal process that bound their society, and all civilized societies, together. Arguments about the Stamp Act are among the most important records in Quincy’s Reports. Particularly important were the arguments of Jeremiah Gridley, James Otis Jr. and John Adams, on behalf of the Town of Boston, to the Governor in Council.168 Jeremiah Gridley, it will be remembered, was no revolutionary, and his son Benjamin fought for the Tory side, whereas both Otis and Adams were known to be of the other side. Yet all three delivered a professional, and measured legal argument for their client, urging the opening of the courts.169 Equally significant, all three invoked British constitutional authority, citing Coke’s Reports, the Magna Carta, and even the great medieval source of the British Constitution, Bracton’s De Legibus.170 Particularly revealing was Otis’s great argument:
Mr. Otis (opened with Tears). It is with great Grief that I appear before your Excellency and Honours on this Occaſion. A wicked and unfeeling Miniſter has cauſed a People, the moſt loyal and affectionate that ever King was bleſſed with, to groan under the moſt inſupportable Oppreſſion. But I think, Sir, that he now ſtands upon the Brink of inevitable Deſtruction; and truſt that ſoon-very ſoon, he will feel the full Weight of his injured Sovereign’s righteous Indignation. I have no doubt, Sir, but that the loyal and dutiful Repreſentations of nine Provinces, the Cries and Supplications of a diſtreſſed People, the united Voice of all of his Majeſty’s moſt loyal and affectionate Britiſh-American Subjects, will obtain all that ample Redreſs they have a Right to expect; and that e’er long, they will ſee their cruel and inſidious Enemies, both at Home and abroad, put to Shame and Confuſion.
. . .
But the Time is far ſpent-I will not tire your Patience. It was once a fundamental Maxim, that every Subject had the ſame Right to his Life, Liberty, Property and the Law, that the King had to his Crown; and ’tis yet, I venture to ſay, as much as a Crown is worth, to deny the Subject his Law, which is his Birth-right. ’Tis a firſt Principle, “that Majeſty ſhould not only ſhine in Arms, but be armed with the Laws.” The Adminiſtration of Juſtice is neceſſary to the very Exiſtence of Governments. Nothing can warrant the ſtopping the Courſe of Juſtice, but the impoſſibility of holding Courts, by Reaſon of War, Invaſion, Rebellion or Inſurrections. 1 Inft. 249, a & b. This was Law at a Time when the whole Iſland of Great Britain was divided into an infinite Number of petty Baronies and Principalities; as Germany is, at this Day. Inſurrections then, and even Invaſions, put the whole Nation into ſuch Confuſion, that Juſtice could not have her equal Courſe; eſpecially as the Kings in antient Times frequently ſat as Judges. But War has now become ſo much of a Science, and gives ſo little Diſturbance to a Nation engaged, that no War, foreign or domeſtic, is a sufficient Reaſon for ſhutting up the Courts. But, if it were, we are not in ſuch a State, but far otherwiſe; the whole People being willing and demanding the full Adminiſtration of Government. Vid. Bracton, 240.171
This devotion to the rule of law and the legal process was also reflected in the extraordinary Trial of Captain Preston and the British Soldiers.172 Every school child knows that John Adams and Josiah Quincy Jr. undertook the defense of the British soldiers. It has even been suggested that this was a clever political maneuver, but contemporary records, including desperately worried letters from Quincy’s father, make it clear that the assignment was both dangerous and problematic.173
Less well known is the fact that the prosecution was handled by a stalwart loyalist, Josiah’s brother Samuel, and Robert Treat Paine, a patriot.174 Auchmuty, a loyalist, also assisted John Adams on the defense.175 The lesson from the Massacre trial was not about political manipulation, but about bar solidarity in the face of the the most divisive case of their generation. The self-conscious unity of the bar, their “Sodalitas,” is evident at every turn.176 And Quincy’s Reports contains much contemporary evidence of this unity.177 The Chief Justice, at the end of the tortured court session of 1765 in which his own house was destroyed, could still observe:
GENTLEMEN of the Bar: I cannot but with Pleaſure obſerve to you the Harmony which has ſubſiſted between all of you in our prefent Seſſion, and that Unanimity and Order which has prevailed univerſally amongſt us through this whole Term. I the rather obſerve this, becauſe, in moſt Parts of the Province there has been great Diſturbances. I thought this Notice juſtly due, and cannot but hope ’twill ſerve as a future Precedent to us all, and a good Example to the Community.178
ILLUSTRATION 8: Josiah Quincy Jr.’s Law Reports, Massachusetts Historical Society, P347, Reel 4, QP57, pp. 6–7. Title pages of Commencement of August Term, 1764. This would precede Quincy’s Reports, p. 94, Allison v. Cockran (Case 36, 1974). The facing quotations read as follows:
Quaeras de dubiis, Legem bene discere si vis:
Quaerere dat sapere quae sunt legitima vere.1
Here Littleton expresseth an excellent Means to
Attain to the Reason of the Law, (and Ratio est Anima
Legis.2 1 Inst 191.a) by enquiring of, and Conference
Had with Learned Men, of doubtfull Cases.
Inter cuncta, Leges, & percunctabere Doctos.3
Co: Lit: 264.a.
Quaere de dubiis, quia per Rationed pervenitur ad
Legitimam Rationem. For Ratio est Radius
Divini Luminis.4 And by Reasoning and debating of grave
Learned Men the Darkness of Ignorance is expelled,
And by the Light of Legal Reason the Right is discerned,
And thereupon Judgment given according to Law,
which is the Perfection of Reason. This is of
Littleton here called Legitima Ratio,5 whereunto No
Man can attain but by Long Study, often Conference,
Long Experience, & continual Observation.
Both quotations are almost exactly from “Coke on Littleton,” Edward Coke, The First Part of the Institutes of the Lawes of England, see Law Commonplace, supra, , n.2. I am most grateful, as always, to my excellent student and colleague, Elizabeth Papp Kamali, for the Latin translations as follows:
- 1. “Inquire into doubtful matters, if you wish to learn the law well. Inquiry gives understanding as to what is truly lawful.”
- 2. “Reason is the spirit of the law.”
- 3. “At all times, you will read, and you will inquire of the wise.” (Note that Coke has borrowed here from Horace, and the expected verb is percontabere.)
- 4. “Inquire into doubtful matters, because through reflection lawful reason is reached. For reason is the ray of divine light.”
- 5. “Lawful reason.”
Image courtesy of the Massachusetts Historical Society.
No wonder Josiah Quincy Jr. believed that, by appeal to the traditions of the English common law-that “blessed Constitution,” there still might be an alternative to violent revolution.179 No wonder that, on September 28, 1774, he secretly set sail for England, hoping that these principles, and his legal advocacy, could avert a bloody, fratricidal war.180 It was a belief for which he died.181
Today we live in the democracy envisaged by Quincy and his patriot colleagues. It is still served and protected by a powerful legal profession. But our profession is torn by doubt and lack of self-respect. Effective representation has come, for some lawyers, to mean, “scorched earth tactics,” disrespect for the judicial process, and disrespect for each other.182 Quincy’s Reports depicts a small band of lawyers struggling to keep alive a judicial system in the face of imminent civil violence and growing hatred. Patriots and loyalists alike, they saw themselves as sharing a great professional tradition and a devotion to the rule of law. It was a devotion that superceded their politics, their special interests, and even, in Josiah Quincy’s case, life itself.