by Nathan Allen
Fletcher’s background is hazy, but in 1749 he seemed to be a typical, respected Boston merchant. At the time of the inauspicious garrulity, Fletcher was in England attempting to collect a debt, but upon his return to Boston the following summer he found that Vassall’s garrulity had seriously injured his reputation and credit. All colonial merchants operated within the tenuous credit structure of demanding quick payment from customers and delivering slow payment to suppliers, and suggesting that a particular merchant was an unusually slow payer could destroy that merchant’s ability to function. And as Fletcher later summarized, “Credit is undone in Whispers,” and this was unquestionably accurate of the small New England merchant community where even the soundest men were in precarious positions caused by low liquidity. Vassall was not satisfied with whispers, and he frequently repeated his dinner party garrulity, describing Fletcher as “a very great Villain, a Rogue, a Scoundrell, a Bankrupt, not worth a Groat” and asserted that Fletcher was “not able to pay his Debts.” Vassall repeated again that Fletcher was a “great cheat, a shuffling rascal,” and that he had “Bottom’d a Ship for more than she was worth, and cast her away on Purpose to cheat the Bottomers.” Coming from a wealthy and eminent merchant, this was warning enough to scare away any potential supplier, but Vassall’s most serious charge was that Fletcher had “bought an old Ship that had been condemned, purely to send his Brother in it to be cast away, in order to get his Brother’s Interest and Estate.” Vassall’s charges soon reached Fletcher’s suppliers in Amsterdam, and anxious creditors began to demand payment up front or more security and to restrict sales to Fletcher. He decided to bring suit against the garrulous Vassall and chose as his attorney his close friend Goff – Edmund Trowbridge – who drafted a brilliant seven page declaration on an action of trespass on the case for defamation against Vassall. The writ was issued on October 5, 1751. After describing Vassall’s numerous statements against his client and a general declaration of the resulting injury, Trowbridge asked for damages in the stunning sum of £8000. If Vassall had bothered to consult a lawyer in advance of his bouts of garrulity, he would have learned that merchants had special protection under the common law because of their unique vulnerability to slander and that to accuse a merchant of bankruptcy or dishonesty was actionable per se and required no proof that either was true. Trowbridge delivered the writ to Sheriff Pollard of Suffolk County who, in accordance with the plaintiff’s wishes, arrested Vassall and jailed him until he could arrange bail. Trowbridge’s declaration proved his reputation as Gridley’s equal, and Vassall sought Gridley to represent him, but apparently Gridley was still “on his Passage” and unavailable.
In lieu of Gridley, Vassall retained Gridley’s virtuoso apprentice, Jemmy Otis. Just before the January 1752 term, Otis filed his defense, which reflected nervous desperation and emulated the standard English model, first attacking the jurisdiction of the court, then the plaintiff’s declaration, and finally the merits. In his “Plea to the Jurisdiction of the Court,” Jemmy argued that the court was an inferior one and thus had no jurisdiction since the declaration failed to allege that the “garrulity” in question had occurred within the court’s limited area of jurisdiction. Otis then added a three part plea for abatement predicated upon alleged defects in the writ and declaration. He argued that the writ was invalid on the technicality that it was directed to the Sheriff and not the “Sheriff or Marshall” as prescribed by statute. Further, he added that the declaration was invalid because it failed to be “endorsed with the Sirname of William Fletcher or with the Sirname of his attorney.” Finally, Jemmy asserted that the declaration was faulty because the plaintiff had not stipulated “in what Language the said pretended Slanderous words, or any of them, were spoken.” Notwithstanding all other issues, Jemmy pled “not Guilty in Manner and Form as the Plaintiff declares, and thereof puts himself upon the Country.” This array of pleas was prescribed by the theory that once a party pled to the merits he waived the issues of jurisdiction and formal pleading defects. Though Fletcher’s failure to endorse his writ with his surname was a solid technical point that could have resulted in abatement if the court had been sympathetic, it was a very minor technicality that was unlikely to persuade any judge, and yet it illustrates well the concept that when one has no great defense, one counters with every conceivable defense.
An advocate is bound to seek advantage in every possible defect, and the Massachusetts courts had dismissed cases for similarly minor technicalities; but the court ignored Otis’s objections most likely due to the gravity of the charge. Despite rescuing the case from technicalities, the court let it slip into the limbo of Massachusetts appellate procedure when it sent the case to the jury even though Fletcher produced no witnesses and no evidence. The jury very properly found for the defendant. This seemingly obtuse behavior by the plaintiff’s attorney was a common legal tactic: now he could appeal to the Superior Court with minimum cost and effort while concealing the true nature of his case from his opponent. The appeal was docketed for February 1752 in the Superior Court, and by this time Jeremy Gridley was available to insert yet another technical plea: the plaintiff had failed to endorse the writ joining in the general issue proposed by the defendant. This formality was ignored more often than it was used, but Gridley and Otis had to assault the merits of Fletcher’s case in every conceivable approach. But again the defendant’s objection was ignored and again the case went to the jury with no evidence being introduced by the plaintiff.
As before, the jury brought in a verdict for the defendant. Now the wily Trowbridge secured from Justice Saltonstall a writ of review ordering, in effect, a new trial. Technically, a writ of review initiated a new case because it required a new summons to the defendant. Vassall had moved to Cambridge, so the duty to summon and arrest the defendant fell to Sheriff Richard Foster of Middlesex County, and just as Sheriff Pollard did, Foster arrested Vassall and jailed the big talker until he produced bail. The review case would have been heard at the August term of the Superior Court, but the pervasiveness of smallpox in Boston delayed the trial until November. Meanwhile, Fletcher engaged in the dubious act of writing to Justice Cushing on May 1, 1752 about gathering depositions and requested the judges’s assistance in securing none other than Colonel Otis as a witness. According to Fletcher, Colonel Otis had been among the many who had demanded additional security or prepayment on behalf of Fletcher’s creditors, and could thus testify to the adverse effects of Vassall’s garrulity. That Fletcher would compose such a letter to a judge sitting on his case or that Cushing would entertain such a suggestion was of questionable propriety, and Cushing then declined to sit on the case. But the Colonel did make an appearance – not as witness but as co-counsel for the plaintiff.
On Thursday, December 7, the trial began in the Town House Court Room before the four remaining justices; Fletcher painted the picture:
The Case was open’d by Col. Otis of Barnstable in a very concise, genteel and intelligible Manner to the approbation of the whole Audience; and the Witnesses were produced by Mr. Fletcher in the manner following, all being critically cross examined by Mr. Vassall.
What followed was an extraordinary effort to bury the defense under such a volume of testimony that Otis and Gridley would find it impossible to fight back coherently and effectively. Now Trowbridge’s strategy became clear: in forfeiting his case in the Inferior Court and in the first trial in the Superior Court, Fletcher’s counsel had concealed his case until the last possible moment. Since the governing statute permitted only a single review at each level, Otis and Gridley could only respond to each bit of evidence on the spot. The plaintiff paraded what seemed like all of Boston through the courtroom, calling thirty-six witnesses ranging from such influential figures as Doctor Mayhew, Edmund Quincy, and Charles Apthorp, down to carpenters, sailmakers, and ship-joiners.
Within a few hours, the parade had attracted such a crowd of the curious that the Court was adjourned to Faneuil Hall, and the trial became public entert
ainment. The evidence showed decisively that Vassall had indeed comprehensively assassinated Fletcher’s character – at his little “clubb” dinners, in “John Billings shop,” where Vassall and his associates oft congregated during the day, and all across town. Additionally, letters from New Hampshire, New York, and English merchants were employed to establish Fletcher’s reputation as a merchant and the damage that resulted from Vassall’s slander. “On Friday morning young Mr. Otis began to speak for the Defendant,” but he had nearly nothing but innuendo to offer. He called merchant Thomas Cushing to “fish out something” but failed. He called the reluctant register of deeds and extracted the fact that Fletcher had concealed some assets and liabilities through unregistered deeds and mortgages. He called the plaintiff’s brother, Thomas Fletcher, to demonstrate that Fletcher’s net worth was only about £530, and sought to question Thomas Fletcher about a seizure of the plaintiff’s goods by the customs officers, but the Colonel arose and bellowed forth an objection that an evenly divided court upheld.
According to Fletcher, Jemmy Otis insisted throughout the trial that “there was not one Word in the Writ that was actionable in this Country” and concluded his defense “with some indecent reflections upon the Plaintiff, which was no Service to him or his Client.” Re-examination of some of the witnesses commenced on Saturday, and on Monday each party was given the occasion to speak on his own behalf. Vassall read a ten page justification of his garrulity that desperately focused on currency depreciation on £10 worth of lottery tickets, Fletcher’s handling of an escrow transaction which may or may not have been mismanaged, and other minutiae of doubtful relevance. The case, finally accompanied with evidence, was sent to the jury, which returned with the verdict for the plaintiff for £2000.
This verdict of what was essentially the third trial was just the beginning. Vassall was without further recourse in the colonial courts, but his counsel quickly filed for “an appeal to the King in Council,” to which Fletcher replied with a similar motion. Both motions were granted. The province charter specifically provided for this procedure in personal actions involving more than £300 on the conditions that the appeal was prompt, the judgment was enforced, and bond was posted by the appellee to provide for the repayment of the judgment in case of reversal.
So Vassall paid Fletcher the £2000 judgment, and Fletcher posted a bond for £6000 in case the judgment was reversed. Vassall then collected attested copies of the Clerk’s records and sailed for London to supervise his appeal. Vassall was doubtless a bitter man; Fletcher was hardly the model of virtue depicted at trial, and Trowbridge had indeed perverted the writ of review statute to his advantage. Perhaps persuaded by Vassall, Otis now brought a series of actions against sheriffs Pollard and Foster who, likely at Trowbridge’s directions, had each arrested Vassall and held him in jail until he could post special bail. Plaintiff’s lawyers routinely used writ of capias, which required the sheriff to arrest the defendant until bail was posted, but this harsh and arbitrary process had been regularly mitigated in practice by the use of fictional bondsmen, the omnipresent John Doe and Richard Roe, and the defendant merely signed a bail bond and was released. This practice was known as common bail. Trowbridge had, however, insisted on special bail, thus resulting in Vassall’s temporary imprisonments. Otis now sued the hapless sheriffs for false imprisonment on the technically correct grounds that special bail was improper in defamation cases without an order from the court. Otis’s co-counsel Gridley “utterly refused to be concerned” with these cases, almost certainly realizing that damages would be minimal and that the sheriffs – even if they had been aware of the legal technicalities – would hardly have dared to contest Edmund Trowbridge, the attorney general of the Province. The sheriffs employed attorney Ben Prat; Otis’s argument was technically sound, and Prat’s defense argued that the sheriffs were merely following orders, but Prat won both the Inferior Court and on appeal to the Superior Court. It was evident that the town’s sympathies lay with Fletcher.
Meanwhile Vassall was proceeding with his appeal in London by retaining a London solicitor to draft a “Petition and Appeal” to file with the clerk of the Privy Council. The Council referred the case to the “Lords of the Committee” for hearing, and Fletcher v. Vassall, now known as Vassall v. Fletcher, was docketed to be heard “in the Council Chamber at the Cockpit, Whitehall, on Tuesday the Twenty-second Day of January, 1754, at Six o’Clock in the Evening.” Vassall hired William Murray, then solicitor general of England and later to be better known as Lord Mansfield, chief justice of the Court of King’s Bench and one of the giant figures in the history of English law. Murray was assisted by Alexander Forrester, another regular of the councilor bar. Fletcher responded with similarly impressive council; he hired Charles Yorke, counsel for the East India Company who later followed in Murray’s footsteps as solicitor general. Counsel then prepared the “Appellant’s Case” and the “Respondent’s Case” respectively, and after a recitation of the facts of the case, the argument appeared in a section entitled “Reasons,” which were disputations of the contested points. The “Appellant’s Case” included all of Otis and Gridley’s technical objections augmented by three additional assertions: the damages were excessive considering Fletcher’s modest assets, the statute of limitations had expired, and Fletcher’s failure to present evidence until the review of the case in the Superior Court had deprived Vassall of any effective means of defense.
The hearing took place before nine members of the “Lord’s Committee” and is of particular interest because of Charles Yorke’s notes, which provide a window into how the best legal minds of England viewed the best legal minds of Massachusetts. Yorke viewed Otis’s plea to the jurisdiction of the Inferior Court and his pleas in abatement as frivolous, which they were. Yorke’s comments on the laws regarding slander indicate how far the English judges had gone in liberalization since Coke and Rolle, on whom Otis had relied as authorities; importantly, these comments demonstrate that the English were entirely and systematically disregarding older law in favor of newer law, whereas Otis was far more elastic when he applied the law and could – and typically did – absorb and marshal law in a far broader context than did his peers in London. For the solicitors, law was a neatly organized linear progression; for Jemmy Otis, it was a messy confection of suggestion and theory that posed challenges more than instructions. The foremost concern that emerged during the London hearing focused on the correctness of reaching a decision on the merits of Fletcher’s case in the face of what a majority of the Lords considered as a rank perversion of both justice and the intent of the Massachusetts writ of review statute. In the end, the majority view prevailed, and at a meeting of the full Privy Council on January 31, 1754, the King approved an Order in Council reversing the judgment of the Superior Court, ordering payment to Vassall of the full £2000 plus costs and interest but did not rule on the merits of the case, granting leave to Fletcher to again bring suit without regard to the statute of limitations or the earlier judgments.
At the May 1754 term of the Superior Court, Jemmy Otis submitted a motion that Vassall’s bond on Fletcher’s appeal be returned and that a writ of execution be issued. Now the Superior Court suddenly grew concerned with technicalities such as the possibility of using an execution on a judgment it had not made. The motion was continued for advisement, and in August an impatient Otis once again moved for execution, but the court again continued the motion, suggesting that it did not feel it could rule without a full bench; since Justice Cushing still refused to sit on the case, a special justice would need to be appointed. In the meantime, Trowbridge’s surprise attack strategy was rendered illegal by a statute passed in April that prohibited writs of review for cases that had been lost in both the Inferior Court and Superior Court; it was the second time an Otis case resulted in statutory changes.