Wetmore’s Minutes of the Argument1
Essex Superior Court, Ipswich, June 1772
Essex Novemr. 1771.
On motion to give property in evidence on non cul. ruled that in this case it must not be, ruled by 3 of the Justices. R[opes] and Cushing gave no Opinion having heard no argument.
Mr. Adams then moved for a repleader. Objected that its grantable not of right but [favor?] and its error when granted or refused wrongfully. Its grantable in cases where the right of the suit cant be determined by the issue.2 Also objected that this is after verdict below.
J. Trow[bridge]. The diff[iculty?] is that the defendant by repleader deprives the plaintiff of the advantage. Hut[chinson]and Trow[bridge] against it because the plaintiff may lose an advantage. Cushing inclining to replead. J. Ropes says nothing. J. Oliver against a repleader.
Adams moved to ask the plaintiffs witnesses whether the plaintiff was not reputed a Slave and used as such by his master the defendant (in mitigation of Damages).
Proof was given that Taylor owned3 a bargain between Caesar and him for his freedom for £600 O[ld] T[enor] and that part of it had been paid.
Note. J. Trowb[ridge] said in this case that the pleadings allowed the plaintiff to be a person and one able to sue. He is therefore not property which is a thing and a thing can’t maintain an action. By English laws a person must be free, else no murder to kill him.
Said by Mr. Adams that Superior Court in J. Sewall’s day determined from civil law authorities produced by Mr. Gridley and Pratt, that the children of a woman slave were the property of the master of the mother, and that negroes are in classe rerum and are Slaves in this Country.4
1. Wetmore Notes. Adams Papers, Microfilms, Reel No. 184. The date heading the document refers to the term from which the case was continued, because William Cushing and Nathaniel Ropes were not appointed to the Superior Court until 15 Jan. 1772. Whitmore, Mass. Civil List description begins William H. Whitmore, comp., The Massachusetts Civil List for the Colonial and Provincial Periods, 1630–1774, Albany, 1870. description ends 70.
2. “Occasionally the Court would order a repleader, that is to say, that the pleadings should start afresh, for it might turn out that owing to some error which had been overlooked the fact on which issue had been joined did not dispose of the questions between the parties, so that the Court was after all not in a position to give judgment either way, no matter how that question of fact had been determined.” Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 134.
3. That is, admitted.