Adams’ Minutes of the Trial and Notes for His Argument1
Middlesex Inferior Court, Charlestown, March 1768
Pierce vs. Wright.
Action of slander. Not directly charging Perjury.
Things contrary to Truth and contrary to his holy Profession. Dishonorary to God, and Religion. I mean to charge him with Perjury.3
Buck. Charge in Writing. Mr. Morrill said the Charge was Perjury. Gave a Jogg. Let it go. I meant it so, and am able to prove it with several Aggravations. Ch[urc]h could not finish the Matter. Church did not refuse.4 Have done nothing. I took it he spoke to Mr. Merrill.
Captn. Walker. Wright said Charge must be read. If I understand Grammar you have charged Pierce with Perjury. I meant it so, and can prove it with several Aggravations.
Benja. Jaquith. Deposition. Vide.5
Joseph Lewis. Do you mean to charge him with Perjury or false swearing, or any thing of that sort. Answer, Yes, and I told them so yesterday.
Moses Baron. Idem. Dont know but what Boin [Bowen] feed them.6 They did take a false oath.
Revd. Mr. Morrill. Delivered Copy to Pierce. Wright had been according to Gospell Rule.
Rich and Tucker. Satisfaction in a Christian Way.7
Sewall. Identicall Words unnecessary.
Words of same import as those in the Declaration. Same Reason, as Declaration on a Promise.
Q. Whether there is any such Thing as slandering a Man in the Church. Absurd Doctrine. Dangerous. The Worst Men may ruin the Characters of the best. And establishing Slander by a Law. Wreak Malice and Vengeance. Without are slanderers Lyars and Backbiters, not within. Should have been heard in the Church. What Right had the Church to try Perjury. Platform. All goes upon the supposition that the Charge is true, Q. about Writs, Petitions.
Sewall. Definition of Libells. Bacon. Written Scandal, held in greatest Detestation.8
Eg[o].9 The Question that is made is Whether there is any such Thing as slander in the Church?
Platform, Page 12, §2. Church Power is in the People.10
Page 24, §3. This Government is a mixed one.11
Page 25, §5. The Prerogative or Priviledge of the Church, in Choosing officers, in Admission of Members. Case of offence, any Brother hath Power to convince and admonish, and to take one or two, and to tell the Church. Admonition or Excommunication.12
Page 27, §9. It belongs to Elders to receive Accusations brought to the Church and to prepare them for the Churches Hearing, and to pronounce sentence with the Consent of the Church.13
Page 39. Of Excommunication and other Censures.14
Page 40, §3. Offence public, of an heinous and criminal Nature.15
Page 42, §8. Toleration of Profane and scandalous Livers, a great sin.16
In order to determine the Question, let us consider and enquire what a Church is? A Church is a voluntary society of Christians.17 Voluntary, because no Man is compellable to join with the Church. A society, a Body politick, framed for certain Ends. What are those Ends? Why their mutual Advancement in Knowledge, and their Growth in Piety and Virtue. Their Connexion is therefore spiritual, merely. No Concern with the Lives, Liberties, Estates or Reputations, of the Members any further than these have Relation to another, a future state. J[esus] Christ is the great Head and Law giver of his Church. And Kings, Princes Parliaments and Judicatories, have no Concern with them as Church Members. One End of Church society, and Government is mutual Watch and Jealousy over each other, mutual Advice, Admonitions Censures, and that all evil Examples may be suppressed. And the only Punishment they have in their Power is Admonition or Excission. Thus the fundamental Principle of Ecclesiastical Polity is that as every Member is a Volunteer, if he will not submit to their Rules he shall be cut off. Come into our Company if you are qualified and will continue to be qualified i.e. continue in the Faith and order of the Gospell, but We will have the Right to examine your Qualifications before we admit you, and We will also hold the Right of observing your Life and Conversation, and if that should become sinfull and scandalous, we will expell you, and if you are not willing to submit to this, dont join Us. The Candidate agrees to this, and takes the Covenant.
But when the Church assembles to admit and receive him, I say that every Church Member has a Right to object to him. And to give his Reasons. Now suppose a vicious Man should <
assert> propound his Desires to come into full Communion. Would not the Church Members have a Right to go to the Minister and object, and to tell the Minister his objections. When the Church assemble would he not have a Right to tell the Church, that at such a Time he heard him tell a Lie, at such a Time he saw him drunk. At such a Time he heard him swear, and perjure himself. According to Mr. Sewall he would be liable to an Action of slander, if he did. If he is liable to an Action will not this forever cutt off the Priviledge of Church Members to object to the Admission of new ones. It is the same after Admission. Every Member may complain again[st] every other. But says the Gentleman it will put it in the Power of the worst Men, to wreak their Malice and Revenge on the best? To this I answer, is it common for the worst Men to be Church Members! By no Means. Church Members are generally much more virtuous, and benevolent than others. It is not to be supposed that Churches will admit such malicious and revengefull Men to their fellowship. But if such an Instance should happen, that a wicked, malicious Man should deceive the Church, and be admitted, and should bring a [malicious?] and false accusation against his Brother, He must do it publickly. He cant propagate his malicious Whispers in secresy. It must come before the Church, and be examined, and the Complainant must prove his accusation, and if he cannot, but appears to have done it from a factious malicious Spirit, he will himself fall under the Censure of the Church. The accused will be honourably acquitted, and the Accuser will be censured. And is not a Church a Competent Judge? Is not the Vote of a Church, concerning a fact, as good, after Examining Proofs as the Verdict of a Jury? Juries try Perjuries, Forgeries, Murders, Treasons, Blasphemies, and why should not the Churches try the same?
Every Writing that contains a false Charge and Accusation vs. a Person is not a Libell. Writs and Declarations, Petitions to the General Court. Libel in the Spiritual Court.18
1. In JA’s hand. Adams Papers, Microfilms, Reel No. 185. The MS is undated, but appears in a leaflet with other cases from the court and term to which it has been assigned. The dating is supported by JA’s docket entry which shows that he was retained by Wright for the Inferior Court trial and by the fact that the minutes record no argument by James Putnam, who was of counsel with Sewall in the Superior Court. See note 7 above. “Wright v. P[ierce],” the title of the companion action in the Superior Court (note 7 above) is written very faintly in JA’s hand at the top of the first page, partly superimposed on “Pierce v. Wright,” the title printed here. This suggests the possibility that JA may have used the minute for reference in the Superior Court trial.
2. Jonathan Sewall, counsel for Pierce.
4. Presumably a reference to a decision of the church on 27 June 1768 to postpone consideration of Wright’s charges “Till it be settled by the Court or between themselves.” SF 147706. In a much earlier Massachusetts case church and civil court arrived at contrary decisions that could not be reconciled. See Mansfield v. Hathorne and Longley v. Hathorne (Essex Co. Ct. 1663), cited in note 15 above.
5. See deposition of Benjamin Jaquith, sworn in the Inferior Court, Charlestown, 16 March 1768: “Benjamin Jaquith of lawful Age testifies and says that being in the Meeting House in Wilmington some time in October last, after the publick Services were ended, Samuel Wright exhibited a Complaint against Deacon Thomas Peirce, and that after said Complaint was read, the Revd. Mr. Merrill said, if it meant any Thing it was Perjury, the above said Samuel stood up and said let it go, so I meant to have it so and can prove it with several Aggravations.” SF 147706.
6. Thus in MS. The word is probably “fee’d,” i.e. paid a fee to. Bowen was one of the litigants out of whose dispute the problem arose. See text at notes 2, 3, above.
7. This is a reference to a communication from Pierce to Wright, dated 21 Oct. 1767, and witnessed by Thomas Rich and William Tucker:
“To Mr. Samuel Wright a Member of the Church of Christ in Wilmington, as you have laid a Sad Complaint against me the Subscriber, before this Church of which I also am a Member, and have charged me with a high Crime, as I apprehend without Foundation, upon which I am greatly dissatisfyed with you, I think I have a Right to Christian Satisfaction, and desire you would give it me before next Saturday night, otherwise you may expect I shall Seek after it in a Legal Way.” SF 147706.
“[A libel] is termed libellus famosus seu infamatoria scriptura, and from its pernicious Tendency has been held a public Offense at the Common Law; for Men not being able to bear having their Errors exposed to public View, were found by Experience to revenge themselves on those who made Sport with their Reputations; from whence arose Duels and Breaches of the Peace; and hence written Scandal has been held in the greatest Detestation, and has received the utmost Discouragement in the Courts of Justice.”
9. That is, the Latin “I,” signifying that what follows is JA’s own argument.
10. This and the citations following through note 16 below are references to the Cambridge Platform of 1648. See note 9 above. The edition of the Platform cited by JA has not been found. Quotations in this and the following notes are from Williston Walker’s reproduction (N.Y., 1893) of the first edition, Cambridge, 1649. The passage here referred to is apparently ch. 5, §2: “
Ordinary Church powr, is either the power of office, that is such as is proper to the eldership: or, power of priviledge, such as belongs unto the brotherhood. The latter is in the brethren formally, and immediately from Christ, that is, so as it may according to order be acted or exercised immediately by themselves: the former, is not in them formally or immediately, and therfore cannot be acted or exercised immediately by them, but is said to be in them, in that they design the persons into office, who only are to act, or to exercise this power.” Walker, Creeds and Platforms 210.
11. Cambridge Platform, ch. 10, §3:
“This Government of the church, is a mixt Government (and so hath been acknowledged long before the term of Independency was heard of). In respect of Christ, the head and King of the church, and the Soveraigne power residing in him, and exercised by him, it is a Monarchy. In respect of the body, or Brotherhood of the church, and powr from Christ graunted unto them, it resembles a Democracy, In respect of the Presbytery and powr comitted to them, it is an Aristocracy.” Walker, Creeds and Platforms 217–218.
12. Cambridge Platform, ch. 10, §5:
“The power graunted by Christ unto the body of the church and Brotherhood, is a prerogative or priviledge which the church doth exercise: I, In Choosing their own officers, whether Elders or Deacons. II, In admission of their own members and therfore, there is great reason they should have power to Remove any from their fellowship again. Hence in case of offence any one brother hath power to convince and Admonish an offending brother; and in case of not hearing him, to take one or two more to sett on the Admonition, and in case of not hearing them, to proceed to tell the church; and as his offence may require the whole church hath powr to proceed to the publick Censure of him, whether by Admonition or Excommunication; and upon his repentance to restore him again unto his former communion.” Walker, Creeds and Platforms 218.
13. Cambridge Platform, ch. 10, §9:
“It belongs also unto the Elders . . . to receive the accusations brought to the Church, and to prepare them for the churches hearing. In handling of offences and other matters before the Church they have power to declare and publish the Counsell and will of God touching the same, and to pronounce sentence with the consent of the Church.” Walker, Creeds and Platforms 219.
15. Cambridge Platform, ch. 14, §3:
“But if the offence be more publick at first, and of a more heinous and criminall nature, to wit, such as are condemned by the light of nature; then the church without such graduall proceeding, is to cast out the offender, from their holy communion, for the further mortifying of his sinn and the healing of his soule, in the day of the Lord Jesus.” Walker, Creeds and Platforms 227–228.
16. Cambridge Platform, ch. 14, §8: “The suffring of prophane or scandalous livers to continue in fellowship, and partake in the sacraments, is doubtless a great sinn in those that have power in their hands to redress it; and doe it not.” Walker, Creeds and Platforms 229.
18. This paragraph seems to be based on 4 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 499–500, a section which sets out various cases holding that no action lies for defamatory words contained in pleadings or other proceedings in court or in petitions to Parliament. The section includes this abstract of Westover v. Dabbinet, 1 Rolle, Abridgment description begins H. Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley, London, 1668. description ends 33:
“A. libels [i.e. commences an action] in the Spiritual Court against B for Defamation, and produces C. as a Witness. Hereupon B. makes an Allegation in Writing, as the Course of that Court is, that C. who was perjured in a Cause between E. and F. at the Assizes at G. ought not to be received as a Witness. Although this Allegation is false, yet, as the Court had Jurisdiction in the original Matter, C shall not have an Action against B. for, if he might, it would prevent the Detection of bad Witnesses.”