November 5th. 1762.
The Cause of Jeffries Town Treasurer of Boston and Sewal and Edwards and several others being suits for the Penalties arising by the Law of the Province for building and covering those Building[s] not with slate nor Tile but with shingles.1
Mr. Gridley made a Motion that those Actions should be dismissed because the Judges were all Interested in the Event of them. Two of the Judges vizt. Wells and Foster Hutchinson, being Inhabitants of Boston, and the other two vizt. Eliakim Hutchinson and Watts, having real Estates in that Town, to the Poor of which those Penalties are appropriated. After a long Wrangle, as usual when Trowbridge is in a Case, the Court determined to continue the Action, that Application might be made to the Governor and Council for Special Judges. Wells and Foster declining to set, and Watts too.
The Case of a Witness was mentioned in the Argument. A Witness cannot depose, when he is interested. A Juryman may be challenged who is interested. But Persons belonging to Corporations, are allowed for the Necessity to testify, in Cases where those Corporations are interested. And Jurymen and Judges belonging to this Province sat in the Case of Gray and Paxton, tho interested, for the Necessity.
This Motion Mr. G. said could not be reduced to a Written Plea. He could not plead to the Jurisdiction of the Court. The Court of Common Pleas had undoubted Jurisdiction of the Cause but the Judges could not set because interested. Their Honours were not the Court of Common Pleas but the Justices of the Court of Common Pleas. The Court of Common Pleas was a Body Politic, an invisible system, a frame in the Mind, a fiction of the Law. The President and Fellows of H[arvard] Colledge are not H.C.
The Case in Strange was produced, in which Ld. Raymond went off the Bench, the Parish of Abbots Langley in which his Lordship lived being interested. An order of 2 Justices for the Removal of a Pauper, confined by the Sessions was carried to B.R.2 by Certiorari.
Authorities from Hobarts and Cokes Rep[orts] were produced, to shew the Tenderness of the Law for this Maxim that a Man shall not be Judge in his own Cause, and that an Act of Parliament vs. natural Equity as that a Man should be judge in his own Cause would be void.
Mem. After the Court had given Judgment Mr. Gridley moved for a Minute of the Reasons of the Judgment. Wells said the Court was not accountable to the Bar for their Reasons. But Otis said the Courts at Home never refused their Reasons for any Judgment when the Bar requested them. Because if the Bar are left ignorant of the Reasons the Court go upon, they will not know how to advise and direct their Clients. And after some Debate, the Clerk was ordered to minute the Reason for the Continuance, which was that three of the Judges apprehended themselves interested and so not a Court competent to try the Cause.
G. contended that if the Court should continue the Causes, they could not refuse setting on the Tryal, because, an Imparlance was a Judicial Act, and so an Assumption of Jurisdiction. F[oster] H[utchinson] said that Dismissing the Actions would be a Judicial Act, as much as Continuing.
Novr. 30th. 1762.
Last Thurdsday Night, at Cranch’s Wedding, Dr. Tufts, in the Room where the Gentlemen were, said We used to have on these Occasions, some good Matrimonial stories, to raise our spirits.1 The story of B. Bicknal’s Wife is a very clever one. She said, when she was married she was very anxious, she feared, she trembled, she could not go to Bed. But she recollected she had put her Hand to the Plow and could not look back, so she mustered up her Spirits, committed her soul to G[od] and her Body to B. Bicknal and into Bed she leaped—and in the Morning she was amazed, she could not think for her Life what it was that had scared her so.
P.2 told a story of Elisha Marsh No. 2. when he was first married.
Q[uere]. The Humanity, The Utility, the Policy, the Piety of the sanguinary Laws against Robbery and Stealing.