[February 1763]
[from the Diary of John Adams]
Braintree Feby. 1st. 1763. Tuesday.1
Last Thurdsday afternoon, rode to Germantown, and there stayed at my friend Cs. till the last Night. Four Nights, and four days. Those 2 families well deserve the Character they hold of friendly, sensible, and Social.2 The Men, Women and Children, are all sensible and obliging.
Mem. The notable Anecdote of Coll. Josa. Quincy. The Hydrostatical Experiment. And the other of Mrs. Lincoln, equally curious and instructive. The Pinching, and the Sprinkling, &c.
Mem. The other Anecdote of Mr. Erving. He has prophesyed so long, and with so much Confidence that Canada would be restored to the French that, because he begins to see his Predictions will not be fullfilled, he is now straining his Invention for Reasons, why we ought not to hold it. He says, the Restoration of that Province can alone prevent our becoming luxurious, effeminate, inattentive to any Danger and so an easy Prey to an Invader. He was so soundly bantered, the other day in the Council Chamber, that he snatched his Hat and Cloak and went off, in a Passion.
Mem. The other of a Piece sent to Fleet to be printed, upon the Unfitness of Mr. Mauduit to represent this Province, at the british Court, both in Point of Age and Knowledge. He is as that Writer says 70 Years old, an honest Man but avaricious, a Woolen Draper, a mere Cit, so ignorant of Court and public Business, that he knew not where the public offices were, and that he told Mr. Bollan, that he was Agent for New England. He says that all the other Agents laugh at this Province, for employing him. And that all Persons on that Side of the Water are surprized at us. That the Considerations on the present German War, were written by a Person unknown, who hired or persuaded Mr. Mauduitt to father it.3
Ob[servation]. The Character of Aunt Nell,4 exemplified. Mrs. Eunice5 told us the Catastrophe of two of her Teeth, she broke them out at Table in Company, and to avoid exposing her self, swallowed them.
I spent an Evening at Mrs. Palmers. Mrs. E[uni]c[e] was very sociable, she had the lead all the Evening. Gave us History’s of her Journeys with her Brother, to Connecticutt, to Barnstable, Plymouth, Middleborough, Norton, &c. Descriptions of Seats and Roads, and Thicketts, Characters of Persons, of both sexes, and the hospitable offices of strangers, &c., and above all the Tittle, Tattle of the Town of Taunton, what Families Visit, and what not. The little female Miffs, and Bickerings. Dr. Mclnsters [McKinstrys], McWaters’s, Fales, &c. &c.
The Temper and Habits of stale Virginity, are growing upon her. She is talkative. Q[uery], whether envious, sullen and passionate? She is no slanderer. She is tender of Characters and gives Merit its due Praise. The History of her Loves is curious, but not uncommon.
[. . .] or Di. was a constant feast.6 Tender feeling, sensible, friendly. A friend. Not an imprudent, not an indelicate, not a disagreeable Word or Action. Prudent, modest, delicate, soft, sensible, obliging, active.
Where all was full, possessing and possest
no craving Void left Aching in the Breast.
Books, we read 5 Sermons in Dr. Shirlock [Sherlock], and several Chapters in the Inquiry into the origin of our Ideas of the Sublime and the beautiful.7 The Chapter upon Sympathy, they all disapprove. The Author says we have a real Pleasure, in the Distresses and Misfortunes of others. Mem. To write a Letter to Sewal or Quincy, or Lowell8 on the subject of that Chapter.
I employed however, too little of my Time in Reading and in Thinking. I might have spent much more. The Idea of M. de Vattell indeed, scowling and frowning, haunted me.
Q. Do we take Pleasure in the real Distresses of others? What is my Sensation, when I see Captn. Cunningham, laid up, with the Gout, and hear his plaintive Groans? What are the feelings of the Women, at Groanings? What is my feeling when I hear of an honest Mans loosing a ship at Sea? What when I hear [sentence unfinished]
1. First entry in “Paper book No. 9” (our D/JA/9), a stitched gathering of leaves containing a few entries in Feb. 1763, a draft of a newspaper article that could not have been written before late June 1763, and some undated entries. The entries are not in chronological order in the MS.
This booklet contains the only Diary entries surviving for the year 1763. Fragmentary lists of JA’s legal cases show that his practice was rapidly expanding, at least in the lower courts, and this year too he began to write with some frequency for the Boston newspapers. His surviving correspondence for 1763 is virtually all with Miss Abigail Smith of Weymouth.
2. The Cranches and Palmers. Mrs. Palmer was a sister of Richard Cranch.
3. In April 1762 the House voted to remove William Bollan, who had been Provincial agent in London since 1746 but was disliked by the Otises and others as a Churchman and a son-in-law of former Governor Shirley. He was replaced by Jasper Mauduit, a London woolen merchant and dissenter. Mauduit was dependent on his brother Israel, author of the tract mentioned in the text, for assistance, but their friends in Massachusetts failed to obtain a stipend for Israel as associate agent. The correspondence in Jasper Mauduit... 1762–1765 (, 74 [1918]) makes clear the sentiments and maneuvers of all parties in this petty but complex affair. See also 15 Aug. 1765, below.
4. Unidentified.
5. Mistress (Miss) Eunice Paine.
6. One would like to believe that this refers to Abigail Smith, sister of the recently married Mary (Smith) Cranch. In the letters they exchanged at this time both Abigail and JA used the fanciful name Diana for her. But the preceding initial, which may be “H,” cannot be explained.
7. A Philosophical Enquiry into the Origin of Our Ideas of the Sublime and Beautiful, by Edmund Burke, was published anonymously in London, 1757.
8. John Lowell, Harvard 1760, of Newburyport, trained or still training in the office of Oxenbridge Thacher for the bar; later a member of the Continental Congress and a federal judge.
Feb. 5th. 1763.
Memorabilia of this Week.
The Bar agreed upon these 4 Rules.
1st. That the Clerk call the Plain tiff, and if any Body answer, except the Plaintiff or some sworn Attorney, his Power be demanded, and no general Power in such Case be admitted.
2dly. That no Attorneys Fee be taxed for the future where the Declaration was not drawn by the Plaintiff himself, or some sworn Attorney.
3dly. That no attendance be taxed, unless the Party attend personally, or by some sworn Attorney.
4. That no Attorney be allowed to Practice here unless sworn in this Court1 or in the superiour Court.
Mr. Gridley read these Rules to the Court as unexceptionable Regulations, agreed upon by the Bar. Mr. Otis arose and said he had the Credit of the Motion, but he never had moved for any such Rules as these, for they were vs. the Province Law, vs. the Rights of Mankind, and he was amazed that so many wise Heads as that Bar was blessed with could think them practicable, and concluded that he was for one, entirely against them. And said that all schemes to suppress Petty fogger’s must rest on the Honor of the Bar. Foster Hutchinson asked why then was the Court troubled with the Motion? Judge Watts said if the Bar was not agreed the Court could do nothing. And at last they determined to consider till April.
Thus with a whiff of Otis’s pestilential Breath, was this whole system blown away.
But the Barr was in a great Rage!
Thatcher said to K[ent], A[uchmuty] and me, “whoever votes for him to be any Thing more than a Constable let him be Anathema maranatha. I pamphleteer for him again? No. Ile pamphleteer against him.
K[en]t damned him and said he had been abused by him personally, in such a manner as he never would forgive, unless he made him more satisfaction, than he imagined was in his Power.
Thatcher moved, that in the Cards to be sent to the Judges, the Expression should be “The Bar, exclusively of Mr. Otis, invites,” and Auchmuty, Kent, Gridley and I, as well as Thatcher voted for it.
Auchmuty and Fitch were equally warm. They talked about renouncing all Commerce or Connection with him. Gridley talked about treating him dryly and decently.
Auchmuty said, the two Principles of all this were Popularity, and Avarice.
He made the Motion at first to get some of these Under strappers into his service. He could not bear that Q[uincy] and Auch. should have Underworkers and he none. And he objected to the Rules, to save his Popularity, with the Constables, Justices Story and Ruddock &c. and Pettyfoggers of the Town, and with the Pettyfoggers that he uses as Tools and Mirmidons in the House.
Mr. G. said he went off to avoid a Quarell, for he could not bear it. Such Tergiversation, such Trimming, such Behaviour.
K. and Auch. said they had born with his Insolence thinking him honest, tho hot and rash and passionate, but now he appeared to act against his Conscience.
Take of the several Species of Malevolence, as Revenge, Malice, Envy, equal Quantities, of servility, fear, fury, Vanity, Prophaneness, and Ingratitude, equal Quantities, and infuse this Composition into the Brains of an ugly, surly, brutal Mortal and you have the Desideratum.
In Croatia. His Descent. Education, at school, Colledge, at the Bar. Historians relate that he was grossly slandered, by a story of a Bastard on a Negro, his Wrath at Plymouth, at Boston he Heads the Trade, brings Actions, fails, is chosen Representative, quarrells with Governor, Lieutenant [Governor], Council, House, Custom house officers, Gentlemen of the Army, the Bar, retails prosody, writes upon Money, Prov[ince] sloop.
Feby. 10th. 1763.
Belcher v. Hunt. This is an Action of Trover, for converting shingles to Hunts Use. The shingles were cutt upon Land which Jonathan White claims and has possessed for 20 Years.
There is a Question to be determined by the Court previously to the Tryal of his Action, vizt. whether a Title to Land can be given in Evidence, in the Tryal of these Actions of Trover.
Multa conceduntur per Obliquum quae non conceduntur de directo. 6. Rep. 47. Debitum et Contractus sunt nullius Loci. 2. Inst. 231.
Feby. 11th. 1763.
Probate of Mr. Edwards’s Will, Coram Governor and Council. John Edwards, one of the Heirs at Law of Samuel Edwards, appealed from the Decree of the Judge of Probate, 1st. because said Saml. at the Execution of said Writing and long after was not, nor for a long time before had been of a sound and disposing Mind and Memory, but was non Compos.
Quaere. What is an Insanity, in Law? that disqualifies to make testament? and whether Saml. Edwards was so insane. Woods Inst. Page 336. Those who have not a sound, perfect and disposing Memory, for it is not sufficient that the Testator hath a Memory. 6. Rep. 23. Lunaticks in their Lucid Intervals may.
Dissertation on the word “perfect.” A perfect Memory exists not—i.e. a Memory retentive of every Idea that ever was in the Mind. Nor is the Man who has the strongest Memory always the fittest to make a Will. For the observation is very common that Men of the strongest Memories have not always the soundest Judgments. The Memory of Xerxes or of Caesar is not necessary to make a Will.
2nd. of James.
Our Case. I promise to pay A or order. I have paid A. and now I must pay the order too.1
1. At this point in the MS appears the draft of JA’s essay, signed “U.,” which was printed in the Boston Gazette, 18 July 1763. The draft is printed below under that date, following the other entries in this booklet, all of which were undoubtedly written earlier than the essay even in its draft form.
Boston Feby. 1763.
This day learned that the Caucas Clubb meets at certain Times in the Garret of Tom Daws, the Adjutant of the Boston Regiment.1 He has a large House, and he has a moveable Partition in his Garrett, which he takes down and the whole Clubb meets in one Room. There they smoke tobacco till you cannot see from one End of the Garrett to the other. There they drink Phlip I suppose, and there they choose a Moderator, who puts Questions to the Vote regularly, and select Men, Assessors, Collectors, Wardens, Fire Wards, and Representatives are Regularly chosen before they are chosen in the Town. Uncle Fairfield,2 Story, Ruddock, Adams,3 Cooper, and a rudis indigestaque Moles of others are Members. They send Committees to wait on the Merchants Clubb and to propose, and join, in the Choice of Men and Measures. Captn. Cunningham4 says they have often solicited him to go to these Caucas, they have assured him Benefit in his Business, &c.5
Propr[ietor]s of Wrentham v. [Metcalf.]6
2 Levinz. Scroaggs [Scroggs] C.J. It ought not to be a general Rule, that Members of Corporations shall or shall not be a Witness. But where the Int[erest] is inconsiderable they may.
Thatcher. It is a Rule that the Heir apparent shall not tho a Rem[ainde]r man shall be admitted because the last has no present Interest. A Guardian shall not be a Witness in Cause for his Ward because he is Party to the suit.
Auch[muty]. Proprs. Worcester v. Gates, the Inhabitants of Worcester were Admitted on Argument.
1. Thomas Dawes, a bricklayer and militia officer, lived in Purchase Street, which ran eastwardly off Sumner close to the South End wharves (Thwing Cat.). This was therefore the South End “caucus”; see note 5, below.
2. Presumably a relative of Samuel Adams, whose mother was born Mary Fyfield—a name spelled in a great variety of ways. JA frequently used “Uncle” or “Aunt” for an older person vaguely related to himself.
3. This is the first mention in the Diary of Samuel Adams the politician, with whom JA was to be closely associated for a dozen or fifteen years to come despite sharp temperamental differences between the two men. JA and Sam Adams had the same great-grandfather, the 1st Joseph Adams of Braintree, son of Henry Adams the immigrant. Sam Adams’ grandfather was John, a younger brother of JA’s grandfather, the 2d Joseph of Braintree (, p. 58).
4. James Cunningham, glazier and militia officer; his wife was JA’s Aunt Elizabeth (Boylston) Cunningham (, 7 [1853]: 147, 149; scattered Cunningham papers in MHi).
5. The foregoing description, though only hearsay, is so vivid as to have become famous. According to William Gordon, writing before 1788, the Boston “caucuses” had been long established by 1763. “More than fifty years ago, Mr. Samuel Adams’s father, and twenty others, one or two from the north end of the town, where all the ship business is carried on, used to meet, make a caucus, and lay their plan for introducing certain persons into places of trust and power. When they had settled it, they separated, and used each their particular influence within his own circle” by distributing ballots for the candidates agreed upon, &c. (The History of the Rise, Progress, and Establishment of the Independence of the United States of America, London, 1788, 1:365, note). Thus Sam Adams in some measure inherited his influence in these local political associations, the equivalent of ward clubs today, and at the time this Diary entry was written he was beginning to use that influence to fan the sparks of protest against royal authority into what became organized rebellion. The best account of the Boston caucuses, which were soon to emerge as the Sons of Liberty, is in Esther , p. 119 ff.; see also John C. Miller, Sam Adams, Pioneer in Propaganda, Boston, 1936, passim. More detailed study of their membership and activities is still needed.
Elsewhere in the note cited above, William Gordon remarked that the terms caucus and caucusing were commonly used in Boston, “but my repeated applications to different gentlemen have not furnished me with a satisfactory account of [their] origin.” There is still no satisfactory account though numerous explanations have been proposed. John Pickering, who compiled the first collection of Americanisms, suggested that since the meetings Gordon described were held where “ship-business [was] carried on,” the word caucus “might be a corruption of Caulkers, the word meetings being understood,” and he found that this was a common opinion in Boston and Salem (A Vocabulary, or Collection of Words and Phrases ... Peculiar to the United States of America, Boston, 1816, p. 57). Whether correct or not, Pickering’s explanation is certainly more plausible than that preferred by the latest authority, the Dictionary of Americanisms, namely that caucus derives from medieval Latin caucus, after Greek kaukos, a drinking vessel.
The early spellings of the word render this learned explanation extremely doubtful. Before Gordon’s History no example spelled in the form that became standard in the 19th century has been found. Both the and the earlier Dictionary of American English cite the form “West-Corcus in Boston” from the Boston Evening Post, suppl., 19 Aug. 1745, but the former authority rather surprisingly considers it probably “without significance.” To the contrary, it would seem to be very significant, since a little later the caucus clubs were closely associated with districts of the town. The next recorded use is in a letter from Oxenbridge Thacher in Boston to Benjamin Prat in New York, without date but certainly written in 1762: “we daily see many of your predictions accomplished respecting the connections and discords of our politicians, corkusmen, plebeian tribunes, &ca., &ca.” (, 1st ser., 20 [1882–1883]:48). In the present double use by JA both spellings are clearly “Caucas” in the MS, though “corrected” by CFA in printing the Diary. Two other early examples are worth citing. In the satirical song on James Otis entitled “Jemmibullero,” published in the Boston Evening Post, 13 May 1765, this line appears: “And Jemmy’s in the CAUCAS, and Jemmy’s in the REPS.” In a letter to James Warren, 22 Dec. 1773, JA wrote: “Yesterday, the Governor called a Council at Cambridge. Eight Members met at Brattles. This no doubt was concerted last Saturday, at Neponsit Hill [Governor Hutchinson’s residence in Milton], where Brattle and Russell dined, by Way of Caucass I suppose” (MHi: Warren-Adams Coll.). In the only text of this letter by JA that has been published, the spelling is regularized to “caucus” (, 9:334).
6. Defendant’s name omitted in MS, but this case, an action of ejectment in Suffolk Superior Court, Feb. term, 1763, is reported more fully in , p. 36–37.
Feb.
This Action of Trover is an Innovation, one of the new and subtle Inventions in Derogation of the Common Law, that my Lord Coke has treated with so much righteous severity. It is in its Effects and Consequences subversive of all real Actions. It will destroy one of the strongest securities of our landed Property, the Rule that all real Titles1 shall be tryed in the County where the Land lies. That it may be employed as an Instrument of endless Vexation to the poor People who live in distant Counties, who has the Honor of being the first Inventor I know not, but I hope your Honors will crush it as the illegitimate Production of a wanton Hour.2
It is true that, an incidental Question about a local Matter, may [be] decided, in the Tryal of a transitory Action—and it is equally true that, [a] Question may be tryed incidentally, by a Court that has no direct and original Jurisdiction of that Question. Multa conceduntur, per obliquum quse non conceduntur de directo. But this is never suffered but in Cases of Necessity—where Justice cannot be done without it. And This Necessity seems to have been the sole Foundation of my Ld. Holts Opinion in the Case of Brown and Hedges. His Opinion was that an Incidental Question about the Title of Land should not bar the Plaintiff, because if it should, a Man might commit Wastes and Trespasses in Ireland, then take his flight to England and Escape Justice, for no Proscess from any Court in Ireland could run into England: Remedy must be sought in England or no where. But in these Cases there is no such Necessity. Actions may be brought in the County where the Lands lie, with the same Ease, and with much better Probability of fair and just Decision than out of them.
Dream of Mr. Pratt. He was seated on a Rock, in the Middle of the Sea, and reflecting on his Journey to N. York,3 leaving his family &c, when the Clouds began to rise from all Quarters of the Horison, and soon thickened and blackened over his Head. The Thunders began to roar And the Lightnings to flash. At last, the Clouds opened and a glorious Luminary, in the shape of an Angel, made its Appearance and addressed Mr. Prat in these Lines
Why mourns the Bard? Apollo bids thee rise,
renounce the Dust, and Claim [thy] native skies.
Minutes of Dr. Marshes Testimony.
I was sent for. Mr. Edwards knew me, asked after my Health, and called me by my Name.
Afterward he gave me, by Word of Mouth the Minute of his Will. He said he intended to give his Wife, the Improvement of his whole Estate during Life. The Thought it seems came into his Mind of giving her the Improvement during her Widowhood, or while she remained his Widow and bore his Name, but that Thought he had Memory and Judgment enough to disapprove, and ordered it be given her for Life.
And after his Wifes Decease, he ordered his Estate to be divided equally between his own and his Wifes nearest Relatives.
And when he was asked, who he intended to make his Executors, he replyed you two, looking to his Brother Edwards and his Wifes Brother Smith who were then present.
The Degrees of Insanity, are infinite from the wildest symptoms of fury, when nothing but Chains can withold the Patient from doing Violence to himself or others, down to some fits of Passion, or some irrational Pangs of Affection. There is perhaps, in every human Mind, in some appearance or another, some Spice or Degree of Madness. The Hero that murders millions to sate his Revenge or Ambition, may surely by the soundest Understanding be denominated a Madman. Yet Alexander, or Charles of Sweeden had no doubt, a sufficient soundness of Mind to dispose of an Estate by Will. Nor can a perfect Memory be demanded. A perfect Memory cannot be believed to exist. Even Xerxes and Caesar, who remembered every face and Name in their Armies, had not perfect Memories.
Swift v. Vose.
Hobarts Reports, 134. Weaver * and Ward. Skirmishing. No Justification only Excuse, unless Utterly without fault or Negligence.
1. Strange, 596. Underwood v. Hewson. Defendant was uncocking a Gun, and the Plaintiff was standing to see it, it went off and wounded him, and at the Tryal it was held might maintain Trespass.
Thatcher.—
* Lords of Council’s order to skirmish.
Tilt Turnament. Masters of Defence &c.
Mem. Case of Ideot, Lunatick &c. answerable in Trespass tho not criminal.
Affectation runs thro the whole Man. His Air, his Gate, his Tone, his Gestures, his Pronunciation. There is no Steadiness of Eye or Feature.
Fitch’s Countenance is not Steady. He has a look of Jealousy, and of Diffidence. He has a look of Conceit, affectation, Suspicion, and Diffidence. His swell. His Puff. Gridley has a stedy and fixed face. His face is expressive. When he smiles, his whole face is lighted up. His Lips do not shew a smile when his Brows are frounding, and his Eye complaining. The Brow, the Eye, the Lips and the Voice all alike affected together.
Trowbridge. Oh says Mr. G. They object and say a ——. The officer he informs—why In that Case—redendo singula singulis.—Well—now—
To all young gent[lemen] between [10] and [20]—4
Many of the great sages, Phylosophers and statesmen, ancient and modern, have thought that the most effectual Exertion of their Talent Indulgence of the Benevolence for Mankind was by contriving and recommending to youth, Plans of Education and study, to train them early to right Habits of Thinking and of Acting, both for their own private Happiness as well as for the Tranquility, Wealth, Grandeur and Glory of their Country. I who have as much Benevolence, as any Sage, whatever, and Talents enough to advize my own young Countrymen, beg leave to advize them, (lest any one should suffer for want of such Advice tho I must own it is generally well understood that they by all Means, avoid every Appearance of Regard to any of those Properties, formerly respected under the Name of Wit, Humour, sense, Learning, Temperance, Justice, Industry,5
The Cyropedia of Xenophon, and the Treatises of Milton and Lock upon Education, tho they might, (Longitude and Latitude considered) be well enough, are yet manifestly useless, at this Time and in this Place. There is it must be confessed, a natural faculty in the human mind (whether it sprang from the Protoplast or any other source I leave to Metaphysitians), that distinguishes between true and false, fair and foul, Virtue and Vice &c—Now the great Aim of the abovementioned Writers on Education was to cultivate this faculty into the most delicate and exquisite Discernment: But believe me, This faculty is become in the Revolution of human Things not only useless, but destructive: believe me, the young man who is silly and obstinate enough to see and to say he sees, one spark of Parts or Virtues in Bluster and his followers e.g. shall with all the Benefactors to a man, be pronounced both a fool and a Knave: shall be opposed and abused on all occasions: e. contra if he sees, and says he sees, one fault, folly, Rashness, Indiscretion, Vice &c. in the same Persons or their Conduct, they and theirs will pronounce the same heavy sentence upon him. It is exactly so with the other side—if you have not a thourough Contempt for the Head and Detestation of the Heart of Bluster and all his followers, you are at once a seditious fellow, have no sense or Probity at all.6
So that the 1st Principle in Prov[incial] Education is to extinguish, stiffle, this most useless, troublesome, pernicious faculty, called the moral sense, [and] cultivate a total and absolute Indifference to Virtue and to Vice: In spight of natural Aversions press to your Bosom, with unbounded Confidence and Affection, the man who is of your side, after you have chosen any side, tho he may be prostitute and abandoned, destitute of every natural or moral Excellence.
Edwards’s Will.
Godolphins orphans Legacy. Part 1. C. 8. Page 23.7
2. Such as are Mad Persons can make no Testament during the time of their Insanity of Mind, no not so much as ad Pios Usus. Nay the Testament made at such a Time shall not be good, tho afterward the Party recover his former Understanding; howbeit, if such Lunatick Persons have any Lucida Intervalla, or Intermissions then during the Time of such Freedom from the Lunacy they may make their Testaments betwixt the fitts. And here note, that every Person is presumed to be of perfect Mind and Memory, untill the Contrary be proved. So that he that objecteth Insanity of Mind, must prove the same, for which [quotation breaks off thus in MS]
C. 21.
Same Page 65. But regularly by the Laws and Customs of England, two Witnesses, without Exception, are requisite for the due Proof of a Testament and two are sufficient.
Swinbourne 77th. Page 78. Unless the Testator were besides himself but for a short Time and in some Peculiar Actions and not continually for a long space as for a Month or More, &c.
78. It is a hard and difficult Point to prove a Man not to have the Use or Understanding of Reason. And therefore, it is not sufficient for the Witnesses to depose that the Testator was mad or besides his Wits: unless they render a sufficient Reason to prove this their Deposition as that they did see him do such Things or heard him speak such Words as a Man having Reason would not have done or spoken.
78. lower down. If some Witnesses do depose that the Testator was of perfect Mind and Memory and others depose the Contrary, their Testimony is to be preferred which depose that he was of sound Memory, as well for that their Testimony tendeth to the favour And Validity of the Testament, as for that the same is more agreable to the Disposition of Nature, for every man is a Creature reasonable.
79. But if in the Testament there be Mixture of Wisdom and Folly it is to be presumed that the same was made during the Testators Frensy, insomuch that if there be but one Word sounding to Folly, it is presumed that the Testator was not of sound Mind.
Godolphin. Page 24. For it is a very tender and difficult Point to prove a Man not to have the Use of his Reason and Understanding; therefore it is not sufficient for the Witnesses to depose that the Person was mad, unless they render upon Knowledge a sufficient Reason therefor. Neither is one Witness sufficient to prove a Man mad, nor two in Case the one depose of the Testators Madness at one Time and the other of his Madness at another.
But in Contrary Depositions, those Witnesses are to be preferred, which depose that the Testator was of sound Memory: And if he Used to have Intervals of Reason and it be not certainly known, whether the Testament were made in or out of his fits of Lunacy; if no Argument of frenzy or folly can be collected by the Testament, it shall be presumed to be made during the Intermissions of the Lunacy, and so adjudged to be good.
One foolish Word may frustrate the Validity of the whole.
But if a Man who is of good and perfect Memory maketh his Will, and afterwards by the Visitation of God, he becomes of Unsound Memory (as every Man is for the most Part, before his death) this Act of God shall not be a Revocation.
Dr. Groenvelt v. Dr. Burrell &c. Ld. Ray[mond] 252.
The Judge will not permit him to have a Copy of the Record if there was probable Cause of the Indictment.
There must be Evidence of express Rancour and Malice, for Innocence is not sufficient where it contains scandal or the Party has been imprisoned.
To be of sound and perfect Memory, is to have a reasonable Memory and Understanding to dispose of his Estate with Reason. 25.8
The Testators mind is the Testaments chief Essential.
Regularly, the Law will presume every man to be of sound Mind and Memory, and will cast the Onus Probandi on him who asserts the Contrary; which is but consonant to the Presumption of Nature itself.
1. MS: “Tiller”—a curious inadvertence.
2. The foregoing notes, like those in the following paragraph, evidently relate to the case of Gardiner v. Purrington, in Suffolk Superior Court, Feb. term, 1763; see , p. 59–62. The single other case that has been dated among the further detached legal notes below, that of Swift v. Vose, was settled in the same session of the same court (Superior Court of Judicature, Minute Book 79). These circumstances would seem to warrant dating this whole series of legal notes as Feb.–March 1763.
3. Benjamin Prat was appointed chief justice of New York in March 1761; JA describes in his Autobiography how the members of the bar “waited on” Prat to Dedham when he left for his new post.
4. Fragmentary draft of an essay intended for publication; no printing has been found. The figures in the salutation are illegible and have been guessed at; they are possibly “20” and “30.” The first sentence, though much rewritten, is still defective.
5. Sentence breaks off thus in the MS, and a short interval of space follows, but the ensuing paragraphs appear to belong to the same draft.
6. The dash has been inserted in this sentence to clarify it.
7. JA’s own copies of the works cited here and below in connection with the Edwards will case are among bis books in the Boston Public Library: John Godolphin, The Orphan’s Legacy: or, A Testamentary Abridgement...., 4th edn., London, 1701; Henry Swinburne, A Treatise of Testaments and Last Wills, 5th edn., London, 1728.
8. Here and in the following paragraphs JA is again quoting from Godolphin’s Orphan’s Legacy.