9. Monday. Read in Gilbert's Tenures. I must and will make that book familiar to me. 10. Tuesday. Read in Gilbert. I read him slowly, but I gain ideas and knowledge as I go along, which I do not always when I read. 11. Wednesday. Rode to Boston; conversed with Ned Quincy and Samuel, Peter Chardon, &c. By the way, Peter Chardon is a promising youth; he aspires and will reach to a considerable height; he has a sense of the dignity and importance of his profession, that of the law; he has a just contempt of the idle, incurious, pleasure-hunting young fellows of the town, who pretend to study law; he scorns the character, and he aims at a nobler; he talks of exulting in an unlimited field of natural, civil, and common law; talks of nerving, sharpening the mind by the study of law and mathematics; quotes Locke's Conduct of the Understanding; and transcribes points of law into a common-place book, on Locke's model. This fellow's thoughts are not employed on songs and girls, nor his time on flutes, fiddles, concerts, and card tables: he will make something. 12. Thursday. Examined the laws of this Province concerning roads, cattle, fences, &c., &c. Read in Gilbert. This small volume will take me a fortnight; but I will be master of it. 13. Friday. Read Gilbert. Went in the evening to Colonel Quincy's; heard a trial before him as a justice, between Jos. Field and Luke Lambert. The case was this: Lambert's horse broke into Field's inclosure and lay there some time, damage feasant.2 When Lambert found that his horse was 1 Edmund Quincy, the eldest of the three sons of Josiah Quincy, senior, died before the Revolution. Samuel Quincy, the second son, was afterwards Solicitor General of the Province under the Crown. He took the side of Government in the Revolution, left the country, and died in the island of Antigua, in 1789. Some interesting letters to and from this gentleman are to be found at the close of the supplement to Curwen's Journal, edited by Mr. Ward. Of the name of Chardon, one of the Huguenot families, whose transfer, under the edict of Nantes, proved as great a gain to America as it was a loss to France, no trace remains. The person named in the text was the last male of his family, and did not live long enough to verify the prediction. He went to the island of Barbadoes, where he died in 1766. 2 The report of this, apparently the first case in which the writer became interested, though devoid of interest in itself, is retained on account of the light it throws upon his early formed habits of analytical investigation; and, because connected with the amusing incident of the defective writ, subsequently related. During many following years, not only reports of cases, but also the draughts of his own arguments are embodied in the Diary. there, he entered the inclosure; and, although Field calls to him and forbids it, waved his hat, and screamed at the horse, and drove him away, without tendering Field his damages. This was a rescous of the horse out of Field's hands; for, although Lambert had a right to enter and take out his horse, tendering the damages, yet, as the words of the law are, "That whoever shall rescous any creature, &c., out of the hands of any person about to drive them to pound, whereby the party injured shall be liable to lose his damages, and the law be eluded, shall forfeit, &c.;" and as Field was actually about to drive them to pound, and Lambert offered him no damages, this was completely a rescous. Field, after the rescous, went to Colonel Quincy, made complaint against Lambert, and requested and obtained a warrant. The warrant was directed to the constable, who brought the offender before the justice, attended with the complainant and the witnesses ordered to be summoned. Quincy,1 for defendant, took exception on the warrant, to the jurisdiction of the justice; because the sum originally sued for, consisting of the forfeiture of forty shillings to the poor, and the parties' damages estimated at nine pence, which was forty shillings nine pence, was a greater sum than the justice can take cognizance of; and, because the words of this act of the province are, that this forty shillings to the poor and these damages to the party injured shall be recovered by action, &c., in any of his Majesty's courts of record;—now, as the court of a single justice is not one of his Majesty's courts of record, the forfeiture and damages prayed for in this complaint cannot be recovered in this court. The justice adjourned his court till eight o'clock, Monday morning, in order to inform himself—1. Whether the court of a single justice of the peace was one of his majesty's courts of record? 2. Whether a single justice can take cognizance of any matter in which the sum originally prosecuted for is more than forty shillings? If, upon examination, the Colonel shall find that a single justice has no authority to hear and determine such a rescous, at the adjournment the proceedings will be quashed, and the complainant must begin de novo; but if he finds that a single 1 Samuel Quincy. justice has authority to determine the matter, he will proceed to judgment. The questions that arise in my mind, on this case, are these. 1. What is the true idea and definition of a court of record? What courts in England, and what in this province, are courts of record, and what are not? Wood, Jacobs, &c. 2. Whether a justice has authority, by warrant, to hear and determine of any offence, the penalty of which, or the forfeiture of which, to the king, the poor, the informer, &c., is more than forty shillings? 3. Whether a court is denominated a court of record from its keeping records of its proceedings? Whether every court is a court of record whose president is a judge of record? For it seems plain in Dalton, that a justice of the peace is a judge of record. 4. On supposition the warrant should be quashed, who should pay the costs of the original warrant, of the defendant's attendance, and of witnesses' oaths and attendance? The complainant, who was mistaken, through ignorance, in going to the justice for a remedy, or the justice, who was mistaken in the same manner in acting upon the complaint beyond his authority? 5. What are the steps of prosecuting by information? Is not a motion made in court, that the information may be amended or filed? Are informations ever filed but by attorney-general? When the penalty, sued for by the information, is half to the king, or half to the poor, and the other half to the informer, is the defendant committed till he discharges the penalty, or is an execution ever issued? 6. It is said, courts of record alone have power to impose a fine or imprison. Quære, which? 7. A rescous is a breach of law, and a breach of the peace; and remedy for it may be by action of trespass, which is always contra pacem. 8. Are not justices' warrants confined to criminal matters? May a warrant be issued for a trespass quare clausum fregit? It may for a trespass of assault and battery. Justices may punish by fine, imprisonment, stripes, &c. The Colonel inquired what punishment he could inflict on a constable for disobedience to his warrant, for not making return of his doings? He found a case ruled in King's Bench, that a consta ble is a subordinate officer to a justice of the peace, and is indictable at common law for neglect of duty. The malfeasance or nonfeasance of officers, are crimes and offences that may be inquired of, indicted, or presented by the grand jury at common law. Field took Lambert's horses damage feasant in his close once before, and impounded them, and gave him verbal notice that his horses were in pound; but neglected to give either Lambert or the pound-keeper an account of the damages the horses had done him. Lambert went to the pound-keeper and demanded his horses, tendering the pound-keeper's fees, and the poundkeeper delivered them up. Now, quære, whether Field is enjoined by any law of the province to get his damages appraised, and to lodge an account of them with the pound-keeper? 2. Whether, as he neglected this, the pound-keeper cannot justify his resigning of them to the owner? 3. If Field had lodged an estimation of his damages with the pound-keeper, and the pound-keeper had nevertheless resigned the creatures up without taking the damages, would not an action lay against him, as an action lies against a prison-keeper, for a voluntary escape? and, quære, what action would be proper? I want a form of an action of escape now. 4. It cannot be called an indirect way of delivering his creatures out of pound, to pay or tender the pound-keeper his fees, and demand and receive his cattle of him when he has unlocked or opened the pound gate and turned the creatures out. So that it will not admit a query whether Lambert is liable to an action for receiving his horses of the pound-keeper. It is plain, I think, he is not. 16. Monday. Read a few pages in Gilbert. I proceed very slowly. 17. Tuesday. Read in Gilbert, went to Monatiquot1 to see the raising of the new meeting house; no observations worth noting. I have not spirits and presence of mind to seek out scenes of observation and to watch critically the air, countenances, actions, and speeches of old men and young men, of 1 That part of the town which has retained the name of Braintree. It constituted what was then called the middle precinct. The south precinct was afterwards set off as a town with the name of Randolph. The north precinct became the town of Quincy. old women and young girls, of physicians and priests, of old maids and bachelors. I should chatter with a girl, and watch her behavior, her answers to questions, the workings of vanity and other passions in her breast. But objects before me do not suggest proper questions to ask and proper observations to make; so dull and confused at present is my mind. Saw lawyer Thacher's father at Mr. Niles's. He said, "old Colonel Thacher of Barnstable was an excellent man; he was a very holy man; I used to love to hear him pray; he was a counsellor and a deacon. I have heard him say that of all his titles that of a deacon he thought the most honorable." Quære — Is he a new light? Old age has commonly a sense of the importance and dignity of religion. I dare say he is not well pleased with his son's professing the law; he had rather have him a deacon. 18. Wednesday. Went to Boston. Bob Paine. "I have ruined myself by a too eager pursuit of wisdom. I have now neither health enough for an active life nor knowledge enough for a sedentary one." Quincy. "We shall never make your great fellows." Paine. "If I attempt a composition, my thoughts are slow and dull." Paine is discouraged, and Quincy has not courage enough3 to harbor a thought of acquiring a great character. In short, none of them have a foundation that will support them. Peter Chardon seems to me in the directest road to superiority. has lost its bloom, and his eye its vivacity and fire; his eye is weak, his countenance pale, and his attention unsteady; and, what is worse, he suffers this decline of health to retard and Paine's face 1 Oxenbridge Thacher the elder, father of Oxenbridge the lawyer, often mentioned in this Diary. He lived at Milton, and died in 1772, at the age of ninety-three. Eliot's Biographical Dictionary. 2 Robert Treat Paine. His father was for some time pastor of a church in Weymouth, the town adjoining Braintree. Eunice Paine, his sister, became an inmate of the hospitable dwelling of General Palmer, at Germantown. Hence his intimate acquaintance in Braintree. Notwithstanding this tone of despondency, the native energy of Paine's character ultimately opened to him a distinguished career in Massachusetts. A tolerably full account of him is found in Sanderson's Biography of the Signers of the Declaration of Independence. 3 This prediction was fully verified twenty years afterwards. |