Novr. 1760. Monday.
Dana says the Administrator ought not to regard the Disgrace or Trouble or Expence of a Commission of Insolvency, but if it is in the least degree suspicious, that the Estate will not prove sufficient, he must represent it so, at his first Appointment i.e. every Day, that he takes to enquire into the Value of the Estate, and the Number of Debts, is at the Risque of the Creditors, and if any one Creditor brings his Action he must maintain it, at the Expence of the others. For says he, as no Time is limitted an Administrator may wait a whole Year, before he represents the Estate insolvent, and live upon the Estate all that time, to the Injury of the Creditors. Nay he may neglect it two Years, or 10 Years, till he has wasted, spent, or alienated the whole Estate.
I say, it is reasonable that a Time should be allowed the Administrator to enquire, to make a Computation of the Effects, and to enquire into the No. and Quantity of the Debts, that he may be able to judge, whether the Estate is insolvent or not. For a Commission of Insolvency is an Evil, always to be avoided, if Possible. It is always considered as a Disgrace to a family. It is always a great Expence to the Estate. It always provokes the Curses of the Creditors, and puts them to the Trouble in attending the Commissioners to prove their Debts. And it is not only reasonable, that a Time of Enquiry should be allowed, but it is Law. And the Executor or Administrator appointed to any Insolvent Estate, before Payment to any be made, except as aforesaid, shall represent the Condition and Circumstances thereof unto the Judge of Probate. Here is plainly a time allowed him, and there is no Limitation of that time. It is only said the Representation must be made before any Payment is made. And here is an Exception, which clearly gives the Administrator, some time; the Exception is of Debts due to the Crown, of sickness and funeral Charges. These the Administrator, after his Appointment may pay, before he is obliged to represent it insolvent, and he could not pay these any more than any other Debts unless some time was allowed him.
Mr. Danas Objections are in my humble opinion of little Weight. He says, that if the Administrator is not obliged to represent immediately, he may delay it, till she and her family have consumed, or by fraud conveyed away the Estate. But your Honours know that Apprisers are appointed, always directly after the Administrator is appointed, who are to make an Inventory and then the Administrator charges herself with all the Articles in the Inventory, and gives Bonds to be accountable for them at the apprized Value, at the Years End. So that if the Estate is wasted the Administrators Bond may be put in suit. Besides, admitting here is a Defect in the Law, in this Respect, Admitting a new Law is expedient, to limit the Time of [representation], such a Law has no Existence, nor can Mr. Dana avail himself of a Law that has no Being, however expedient it may be, especially when the Representation is made within a reasonable Time, as this was. The Representation was made in 9 months, which was a short space of Time considering the Circumstances of this affair. Brackett was struck out of Life suddenly, left a very distressed family, and a very perplexed and embarrassed Estate, so that it was impossible for the Widow to recover from her surprize, and make any Inquiry so as to satisfy herself whether the Estate was sufficient or not, sooner than she did. And I presume the Reason why the Law has not confined the Administrator to such Estates to narrow limits, is, because Persons, that die so much in Debt, commonly leave Widows and Children behind them, who have been used to decent and reputable living, and will therefore, if some reasonable time is not allowed them to keep together, recover their surprize and look about them, will be driven to absolute Despair. And to this Purpose and that the Estate may not be burdened with Costs, the Law has provided, that no Proscess shall be allowed, while any such Estate is depending as aforesaid, which Words extend as well to the Time, the Estate is depending under the Examination and Enquiry of the Administrator as to that between the Representation of Insolvency and the settling of the Average. And it is quite reasonable that this Action in Particular, should be barred, because it was entered, out of the meer Humour and Obstinacy of the Plantiff. Tho it was commenced before the Representation it was entered afterwards, whereas if he had been a reasonable Man, instead of entering and driving this Action, as he has done, he should have dropd it without Entry.
Nov. 5th. 1760.
I presume upon the common sense of the World that no offence will be taken at the Freedom of the following Sentiments while the utmost Deference for Authority and Decency of Language is preserved, as Persons of obscure Birth, and Station, and narrow Fortunes have no other Way, but thro the Press to communicate their Tho’ts abroad, either to the high or the low.
The Vacancy, in the highest seat of Justice in the Province occasioned by the Death of J[udge] Sewal, naturally stirrs the Minds of all, who know the Importance of a wise, steady and loyal Administration of Justice, to enquire for a fit Person to fill that Place.2 Such Persons know, that the Rules of the common Law are extreamly numerous, that Acts of Parliament are numerous, some taken from, or at least in spirit, from the Civil Law, others from the Cannon and feudal Law. Such Persons know that the Histories of Cases and Resolutions of Judges have [been] preserved from a very great Antiquity, and they know also, that every possible Case being thus preserved in Writing, and settled in a Precedent, leaves nothing, or but little to the arbitrary Will or uninformed Reason of Prince or Judge.
And it will be easy, for any Man to conclude what opportunities, Industry, and Genius employd from early Youth, will be necessary to gain a Knowledge, from all these sources, sufficient to decide the Lives, Liberties and fortunes of Mankind, with safety to the Peoples Liberties, as well as the Kings Prerogative, that happy Union, in which the Excellence of british Government consists, and which has often been preserved by the deep Discernment and noble spirit of english Judges.
It will be easy for any Man to conclude that a Man whose Youth and Spirits and Strength, have been spent, in Husbandry Merchandize, Politicks, nay in science or Literature will never master so immense and involved a science: for it may be taken for a never failing Maxim, that Youth is the only Time for lay[ing] the Foundation of a great Improvement in any science or Profession and that an Application in advanced Years, after the Mind is crowded, the Attention divided, or dissipated, and the Memory in part lost will make but a tolerable Artist at best.
1. This draft of a communication to a newspaper is obviously incomplete and does not appear to have been published.
2. Chief Justice Stephen Sewall died on 10 Sept. 1760, and a bitter contention ensued over the succession to his post. According to a retrospective account by Edmund Trowbridge, the two candidates who made themselves most conspicuous by their own efforts were William Brattle and the elder James Otis. When, on 13 Nov., Lt. Gov. Thomas Hutchinson was named, the two disappointed candidates were so “very angry with him and every one else they knew or suspected had not favoured their Respective Claims,” that much of the subsequent political squabbling in Massachusetts was a result of their irritation (Trowbridge to William Bollan, 15 July 1762, MHS, Colls. description begins Massachusetts Historical Society, Collections and Proceedings. description ends , 74 :66). Neither Brattle nor Otis nor Hutchinson had had regular legal training, and so it would appear that JA is arguing against the appointment of any one of the three. If he had completed his article, we would doubtless know whom he was for.
Novr. 14th. 1760.1
Another Year is now gone and upon Recollection, I find I have executed none of my Plans of study. I cannot Satisfy my self that I am much more knowing either from Books, or Men, from this Chamber, or the World, than I was at least a Year ago, when I wrote the foregoing Letter to Sewal.2 Most of my Time has been spent in Rambling and Dissipation. Riding, and Walking, Smoking Pipes and Spending Evenings, consume a vast Proportion of my Time, and the Cares and Anxieties of Business, damp my Ardor and scatter my attention. But I must stay more at home—and commit more to Writing. A Pen is certainly an excellent Instrument, to fix a Mans Attention and to inflame his Ambition. I am therefore beginning a new literary Year, with the 26th. of my life.3
1. This and the following two entries, all of them bearing the same date, are inserted here from D/JA/4, the journal of studies that JA projected in Oct. 1759 (see entries there) but proceeded to neglect for over a year.
3. An approximation. JA’s 26th birthday fell on 19 Oct. 1760 according to the Old Style calendar; on 30 Oct. according to the New Style.
1760. Novr. 14th. Friday.
I am just entered on the 26th Year of my Life, and on the fifth Year of my studies in Law, and I think it is high Time for a Reformation both in the Man, and the Lawyer. 25 Years of the Animal Life is a great Proportion to be spent, to so little Purpose, and four Years, the Space that we spend at Colledge is a great deal of Time to spend for no more Knowledge in the science and no more Employment in the Practice of Law. Let me keep an exact Journal therefore of the Authors I read, in this Paper.1
This day I am beginning my Ld. Hales History of the Common Law, a Book borrowed of Mr. Otis, and read once already, Analysis and all, with great Satisfaction. I wish I had Mr. Blackstones Analysis, that I might compare, and see what Improvements he has made upon Hale’s.
But what principally pleased me, in the first Reading of Hales History, was his Dissertation upon Descents, and upon Tryals by a Jury.
Hales Analysis, as Mr. Gridley tells me, is an Improvement of one, first planned and sketched by Noy, an Attorney General in the Reign of Charles 1st. And Mr. Blackstone’s is an Improvement upon Hales.2
1. That is, this paper booklet or gathering of leaves.
2. For copies of works by Chief Justice Sir Matthew Hale and Sir William Blackstone still among JA’s books at the Boston Public Library, see Catalogue of JA’s Library description begins Catalogue of the John Adams Library in the Public Library of the City of Boston, Boston, 1917. description ends , p. 113, 28.
1760. Novr. 14. Friday.
The Title is “The History of the Common Law of England.” The Frontispiece, I cannot comprehend. It is this.
Ἰσχυρον ὁ ΝÓΜΟΣ έσὶν ἄρχοντὰ1His great Distribution of the Laws of England is into Leges scriptae and Leges non scriptae. The first are Acts of Parliament which are originally reduced to writing before they are enacted, or receive any binding Power, every such Law being in the first Instance, formally drawn up in Writing, and made as it were a Tripartite Indenture, between the King, the Lords and Commons.
The Leges non scriptae, altho there may be some Monument or Memorial of them in Writing (as there is of all of them) yet all of them have not their original in Writing, but have obtained their Force by immemorial Usage or Custom.
1. Transcribed by JA from the titlepage of Sir Matthew Hale’s The History and Analysis of the Common Law of England, London, 1713. JA could make no sense of it because it is garbled Greek for which the printer may have been responsible. CFA subjoined the following note on the passage: “Stephanus quotes the following as a proverb,—
Ἰσχυρὸν ὁ νόμος έστ𐎯ν, ἤν ἄρχοντ᾽ ἔχῃ. which he translates,—The law is powerful if it have an executor” (JA, Works description begins The Works of John Adams, Second President of the United States: with a Life of the Author, ed. Charles Francis Adams, Boston, 1850–1856; 10 vols. description ends , 2:101). The Stephani, or Estiennes, were 16th-century printers and lexicographers; see Catalogue of JA’s Library description begins Catalogue of the John Adams Library in the Public Library of the City of Boston, Boston, 1917. description ends , p. 86. Hale’s titlepage motto is evidently a distorted version of this “proverb.”
1760. Novr. 15th. Sat.
Spent last Evening at Coll. Quincys, with Coll. Lincoln. Several Instances were mentioned, when the Independency and Superiority of the Law in general over particular Departments of officers, civil and military, has been asserted and maintained, by the Judges, at Home. Ld. Cokes Resolution in the Case of —— in oposition to the opinion, and even to the orders, and passionate Threatnings of the King. Ld. Holts refusal to give the House of Lords his Reasons, for his Judgment in the Case of —— in an extra judicial Manner, i.e. without being legally and constitutionally called before them by a Rit  of Error, Certiorari, or false Judgment. And C[hief] J[ustice] Wills’s resolute spirited assertion of the Rits  of common Law in opposition to the Court Martial against the Intercession of powerful Friends, and even of the Ministry if not the K[ing] himself.1
1760. Novr. 19th.
Parson Smith says the Art of Printing like most other Arts, and Instruments, was discovered by Accident. Somebody, at an idle Hour, had whitled his Name, cut his Name out in the Bark of a Tree. And when his Name was fairly cut out, he cut it off [and] put it into his Hankerchief. The Bark was fresh, and full of Sap, and the Sap colored his Hankerchief, i.e. printed his Name upon it. And from observing that he tooke the Hint.
Dined at Badcocks, with McKenzie. He pretends to Mechanicks, and Manufactures. He owns the snuff Mill, and he is about setting up some Machine to hull our Barley. One Welsh dined with us, who he said was the best, most ingenious Tradesman, that ever was in this Country. McKenzie and Welsh were very full of the Machinery, in Europe, the Fire Engines, the Water Works, the silk Machines, the Wind Mills, in Holland &c. McKenzie says there are 27, 000 Wheels, and 90, 000 Movements in the silk Machine. You may see 10,000 Wind Mills going at once in Holland. Thus he tells Wondrous Things, like other Travellers.—I suspect he would be unable to describe the fire Engine or the Water Works. Had I been Master of my self I should have examined him, artfully, but I could not recollect any one Particular of the fire Engine, but the Receiver, and that he says is no Part of the Engine. But he talks about a Center Cylinder.
This conceited Scotchman has been a Rambler I believe. He set up Merchandize in New London. He married a Cunningham, sister to Otis’s Wife.—These restless Projectors, in Mechanicks, Husbandry, Merchandize, Manufactures, seldom succeed here. No Manufactury has succeeded here, as yet. And I believe Franklins Reasoning is good, and the Causes he mentions will hinder the growth of Manufactures here in America, for a great While yet to come.2
1. Apparently a second entry for 19 Nov., but the preceding entry should perhaps have been dated a day earlier.
2. The reference is to Franklin’s “Observations concerning the Increase of Mankind, Peopling of Countries, Etc.,” written in 1751 and first published four years later in Boston. Franklin reasoned that since land was so plentiful in America, labor would long be costly. “The Danger therefore of these Colonies interfering with their Mother Country in Trades that depend on Labour, Manufactures, &c., is too remote to require the attention of Great-Britain” (Writings, ed. Smyth description begins The Writings of Benjamin Franklin, ed. Albert Henry Smyth, New York and London, 1905–1907; 10 vols. description ends , 3:65–66.)
1760. Novr. 21st. Friday.
This day has been spent to little Purpose. I must confine my Body, or I never shall confine my Tho’ts. Running to Drs., cutting Wood, blowing fires, cutting Tobacco, waste my Time, scatter my Thoughts, and divert my Ambition. A Train of Thought, is hard to procure. Trifles light as Air, break the Chain, interrupt the series.
1760. Novr. 21st. Friday.1
Finished the History of the Common Law, the second Time. The Dissertation on hereditary Descents, and that on Tryals by Juries, are really, very excellent Performances, and well worth repeated, attentive Reading.
1. This, the second entry so dated, is from D/JA/4, JA’s fragmentary record of studies.
Pater was in a very sociable Mood this Evening. He told 3 or 4 merry stories of old Horn. Old Horn, a little crooked old Lawyer in my fathers Youth, who made a Business of Jest and Banter, attacked an old Squaw one Day upon the Neck. The old Squaw made answer, “You poor smitten Boy, you with your Knife in your Tail and your Loaf on your Back, did your Mother born you so?”
A Man, whom he assaulted at another Time, with his Jests, asked him “Did you come straight from Boston?” And upon being answered yes, replied you have been miserably warped by the Way then.
A Market Girl whom he overtook upon the Neck, and asked to let him jigg her? answered by asking what is that? What good will that do? He replied it will make you fat! Pray be so good then says the Girl as to Gigg my Mare. She’s miserably lean.
1. Presumably written 22, 23, or 24 Nov. 1760.
Novr. 25th. 1760.
Rode to the Iron Works Landing to see a Vessell launched. And after Launching went to smoke a Pipe, at Ben. Thayers, where the Rabble filled the House. Every Room, kitchen, Chamber was crowded with People.1 Negroes with a fiddle. Young fellows and Girls dancing in the Chamber as if they would kick the floor thro. Zab Hayward, not finding admittance to the Chamber, gathered a Circle round him in the lower Room. There He began to shew his Tricks and Postures, and Activity. He has had the Reputation, for at least fifteen Years, of the best Dancer in the World in these Towns. Several attempted, but none could equal him, in nimbleness of heels. But he has no Conception of the Grace, the Air nor the Regularity of dancing. His Air is absurd and wild, desultory, and irregular, as his Countenance is low and ignoble. In short the Air of his Countenance, the Motions of his Body, Hands, and Head, are extreamly silly, and affected and mean.
When he first began, his Behaviour and Speeches were softly silly, but as his Blood grew warm by motion and Liquor, he grew droll. He caught a Girl and danced a Gigg with her, and then led her to one side of the Ring and said, “Stand there, I call for you by and by.” This was spoke comically enough, and raised a loud laugh. He caught another Girl, with light Hair, and a Patch on her Chin, and held her by the Hand while he sung a song, describing her as he said. This tickled the Girls Vanity, for the song which he applied to her described a very fine Girl indeed.
One of his witty droll sayings he thought, was this. I am a clever fellow, or else the Devil is in me. That is a Clever Girl or else the Devil is in her. Wm. Swan is such another Funmaking animal of diverting Tricks.
Hayward took one Girl by the Hand, and made a Speech to her.
“I must confess I am an old Man, and as father Smith says hardly capable of doing my Duty.” This raised a broad Laugh too.
Thus, in dancing, singing songs, drinking flip, running after one Girl, and married Woman and another, and making these affected, humorous Speeches, he spent the whole Afternoon.—And Zab and I were foolish enough to spend the whole afternoon in gazing and listening.
Gurney danced, but was modest and said nothing. E. Turner danced not, but bawled aloud.—God dam it, and dam it, and the Devil, &c.—And swore he’d go to Captn. Thayers, and be merry and get as drunk as the Devil. He insisted upon it, drunk he would get. And indeed, not 2 pence better than drunk he was.
Fiddling and dancing, in a Chamber full of young fellows and Girls, a wild Rable of both sexes, and all Ages, in the lower Room, singing dancing, fiddling, drinking flip and Toddy, and drams.—This is the Riot and Revelling of Taverns And of Thayers frolicks.
1. The “Iron Works Landing” and Benjamin Thayer’s tavern, on the Monatiquot River where it flows into Fore River Bay, may be seen at the foot of JA’s sketch map of taverns in Braintree and Weymouth, reproduced in this volume. This entire entry was omitted by CFA in editing JA’s Diary.
1760. Novr. 26th. Wednesday.1
Ten days are now elapsed, since I began Hale the 2d time, and all the Law I have read, for 10 days, is that Book once thro. I read Woods Institute thro the first Time with Mr. Put. in twice that time i.e. in 3 Weeks, and kept a school every day. My present Inattention to Law is intolerable and ruinous.
1760. Novr. 26th Wednesday.
Night before Thanksgiving.—I have read a Multitude of Law Books—mastered but few. Wood. Coke. 2 Vols. Lillies Ab[ridgmen]t. 2 Vols. Salk[eld’s] Rep[orts]. Swinburne. Hawkins Pleas of the Crown. Fortescue. Fitzgibbons. Ten Volumes in folio I read, at Worcester, quite thro—besides Octavos and Lesser Volumes, and many others of all sizes that I consulted occasionally, without Reading in Course as Dictionaries, Reporters, Entries, and Abridgments, &c.
I cannot give so good an Account of the Improvement of my two last Years, spent in Braintree. However I have read no small Number of Volumes, upon the Law, the last 2 Years. Justinians Institutes I have read, thro, in Latin with Vinnius’s perpetual Notes, Van Muydens Tractatio Institutionum Justiniani, I read thro, and translated, mostly into English, from the same Language. Woods Institute of the Civil Law, I read thro. These on the civil Law; on the Law of England I read Cowells Institute of the Laws of England, in Imitation of Justinian, Dr. and student, Finch’s Discourse of Law, Hales History, and some Reporters, Cases in Chancery, Andrews &c. besides occasional searches for Business. Also a general Treatise of naval Trade and Commerce, as founded on the Laws and Statutes. All this series of Reading, has left but faint Impressions, and [a] very Imperfect system of Law in my Head.
I must form a serious Resolution of beginning and pursuing quite thro, the Plans of my Lords Hale, and Reeve. Woods Inst[itutes] of common Law I never read but once, and my Ld. Coke’s Com[mentary] on Lit[tleton] I never read but once. These two Authors I must get, and read, over and over again. And I will get em too, and break thro, as Mr. Gridly expressed it, all obstructions.
Besides, I am but a Novice in natural Law and civil Law. There are multitudes of excellent Authors, on natural Law, that I have never read, indeed I never read any Part of the best authors, Puffendorf and Grotius. In the Civil Law, there are Hoppius, and Vinnius, Commentators on Justinian, Domat, &c. besides Institutes of Cannon and feudal Law, that I have to read.
Much may be done in two Years, I have found already. And let it be my Care, that at the End of the next two Years I be better able to shew that no Time has been lost than I ever have been yet.
Let me practice the Rule of Pythagoras.
Μηδ᾽ ὕπνον μαλακοῖσίν έπ᾽ ὄμμασι προσδέξασθαι
πρίν τῶν ἡμερινῶν ἔργων τρὶς ἕκαστον επελθεῖν
πη παρεβην; τί δ᾽ερεξα; τι μοι δεον οὐκ ετελεσθη;1
Thus let me, every night before I go to bed, write down in this Book, what Book of Law, I have read.
1. Quoted from the “Golden Verses of Pythagoras,” a collection of maxims actually written by disciples of Pythagoras. Professor Johannes A. Gaertner of Lafayette College has kindly furnished the following translation: “Let not sleep be admitted to tiring eyes before going over each of the daily tasks thrice. What have I omitted? What have I achieved? What has not been finished that was my duty?” Years later JA read through the “Golden Verses” in a French translation and wrote a rather bemused marginal commentary on them which has been published by Zoltán Haraszti in More Books, 1:106–110 (April 1926). Of the first sentence in the present passage he remarked: “Wise but very difficult.” Still later, JQA prefixed a verse translation of this passage to his Diary for 1819; see his Memoirs description begins Memoirs of John Quincy Adams, Comprising Portions of His Diary from 1795 to 1848, ed. Charles Francis Adams, Philadelphia, 1874–1877; 12 vols. description ends , 4:203.
1760 Novr. 28th. Friday.
I have not read one Word of Law, this Day. But several Points, and Queries have been suggested to me, by the Consultors.—In whom is the Fee, and Freehold of our burying Yard? What Right has any Man to erect a Monument, or sink a Tomb there, without the Consent of the Proprietors? In England, the Church Yards are the Places of Burial, and the Parson is seised in fee, of them as of the Ground whereon the Church stands. But our Burying Yards, as well as the Ground, on which our Temples stand, are not vested in our incumbent Ministers, but in the Precinct or Parish, (the Corporation socalled) where they lie, according to the late Resolution in the Dedham Case.
The Property of our Meeting House, is in the Precinct, i.e. the dissenting Part of it,—And I think the Precinct, by its Committee sold the Pews to particular Persons, and perhaps, the Persons who have erected Tombs, might previously ask And obtain the Priviledge of the Precinct.
1760. Novr. 29th. Saturday.
Read no Law.—An exclusive Property is certainly claimed and enjoyed, by private Persons, in Tombs and Monuments, as well as in Pews. Inhabitants of other Towns, have usually asked Leave of the Select Men, to bury their dead in our burying Place. But I should think the Precinct Assessors, or Parish Committee, had rather the Inspection of our burying Yard. My Father never knew License given nor asked of Town, nor Precinct to sink a Tomb, nor to [raise a] Monument.
Suppose my Father, Wife, Child, friend died, and I order the sexton, or on his Refusal my own servant to open any Tomb in our burying Yard, and without further Ceremony deposit the Corps there, can the pretended Proprietor have any Action, or Remedy against me? The Course of the Descent of these Tombs and Pews, when undisposed by Will, is a matter of uncertainty too. Do they descend to the Heirs, as Inheritances in Houses and Lands, or do they go to the Executor or Administrator, as personal Estate?
There is an Anecdote in the Spectator, of De Wit, the famous dutch Politician. Somebody asked him how he could rid his Hands of that endless Multiplicity and Variety of Business that passed thro them, without Confusion? He answered, “by doing one Thing at once.” When he began Any Thing, he applied his whole Attention to it, till he had finished it.—This Rule should be observed in Law. If any Point is to be examined, every Book should be consulted and every Light should be considered, before you proceed to any other Business or study. If any Book is to be read, no other Book should be taken up to divert or interrupt your Attention till that Book is finished.
Order, Method, Regularity in Business or Study have excellent Effects both in saving of Time and in bettering and improving Performance. Business done, in order, is done sooner, and better.
Novr. 30th. Sunday.
Read no Law. Read Bolinbroke.