INTRODUCTION
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.
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.
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.
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.
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.
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.
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.
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.
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.
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,
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.”
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.
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.
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.
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!”
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.”
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.,
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,
The issue was discussed again in Norwood v. Fairservice.
The issue was raised again in Carpenter v. Fairservice.
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.
Once the ship was returned, however, neither Scollay nor Sitwell paid the bill.
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.
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.
Cases like Dunn v. Scollay
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.”
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.
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.
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.
The Court was split. Justice Oliver held that the admiralty jurisdiction was good.
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.
Hutchinson’s arguments apparently carried the day, and the prohibition was sustained.
Undeterred, Dunn then brought a straight action at common law.
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.
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.
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.
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.
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.
Ironically, Oliver v. Sale was later cited in Merrick v. Betts
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.
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!
In the “naked wife” case, Hanlon v. Thayer,
(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.
At least one form of entrepreneurship was recognized for women, running a “Bawdy House.” In Dom. Rex v. Doaks,
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.
But this is only just “winners” history. Half of this tiny band, including some of its most talented members, were loyalists.
And the outcome could have been very different. As Adams fully recognized, it really was glory or the gallows for the patriots.
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.
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.
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.
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!
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,-
Gentlemen:
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.
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.
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.
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.
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.
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.
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.
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.
Ibid. 232.b.
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, [2], 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.
V. CONCLUSION
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.