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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0003-0002-0014

Author: Adams, John
Date: 1774-07

Adams' Minutes of the Review1

Cumberland Superior Court, Falmouth, July 1774

King vs. Stewart—Review
Scurlogging.2
3 Stewarts defaulted. 3 Andrews appear. By the Sullivans.3
Bradbury.4
Silas Burbank. About 10 days before the Affair, I was informed that a Number of Persons from 2 Roads, were about making an Onset on Mr. Kings House. Stewarts and Andrews's were joined in it. I was coming down by Amos Andross's House. He asked me if there were not a Number about making Sir Richard a Visit. He said he should { 129 } go, and thought he deservd a good Whipping and to have his Ears cutt of, because he had treated him ill and others. This was the Afternoon before the Affair happened. He said K[ing] had kill'd these Creatures &c. and he deserved to be checked and corrected. He advised me to go, thought it was proper for me to go, and others. He has wrongd me and is endeavouring to wrong you and he will ruin us all if not humbled. It will be for our good and for his. There was one Person there, I believe to whom he gave a strong Encouragement to go. I know there was one. He said twice he would absolutely go. Afterwards he said he did not go, because he was taken with a bad Belly Ach. He said he was as good a Friend and or Well wisher or both, as any that was there.
Some nights before the Church Meeting A. Andross told me the Belly Ach was relentment of Mind that he had encouraged so bad a Thing. About the same Time, the day before saw Jona, Andross senr. Said he believd he should not go, but believ'd his son would. It would be the best Way for Somebody to go, and whip him with small sticks, as he was weak and frail in Body. Jona. mentioned a great many bad Things that K. had done—killing Creatures, and would drive the poor People away, if not checked. A Person that he advised and encouraged to go, did go. Something was mentiond about the Stamp Act, this was Amos, that King was a favourer of it.
Jona. Andrews Jnr. was in the Affair. I first saw the Party in the Road near my House near a mile and an half. Jona. Jnr. was in the Company, near and at Kings House. He went from near my House with the Company to K's House, in the night. He said he did not know whether his father would come. Dont know that I saw him in K's House, but saw him after the Affair was over with the Company at the Meeting House.
Several Windows were broke.
The Person I mention, I am inclin'd to think, would not have gone if he had not been encouraged by Men of Estates and Character.
Neither Amos nor Jona. advised to breaking the Windows, stealing Papers breaking Desks, to cut down the House or burn the Barn. It was proposd that night to go and take him out of his House, and whip him.
I know there was a Number of Papers destroyed. Bonds, Notes, Deeds, a great Number burnt in his House upon the Hearth and others thrown out of Doors. Many torn to Pieces, Bills of Parcells &c. dont know the Names, Dates, nor Sums. Jona. Jnr. was present and saw many of em burnt.
{ 130 }
Jona. Wingate. 8 or 10 days before, at Hodgdons shop, Amos Andross came in and talk'd about the Riots in the Prov[ince] and said he thought it would be a very good Thing to make Mr. King a visit and to mob him and that he ought to be mobbed. A few days after, I saw him by his House, and he said he thought it would be a very good Thing, and said he would go. After the Riot, he told me he should have been there but for the Belly Ach. He spoke very encouraging, and said it was a good Thing. When I was going by his House, he said he would have me go and see Mr. Stewart and take his Advice about it. I did and Stewart advised to it.
I knew of a Person that he advised, who was in the Mobb.
I call'd at Jona. Andross's. Cant tell who begun. He reckoned it would be a good Thing to make Mr. King a Visit.
Windows were broke, and Papers destroyd. Papers were burnt. Near 20 People at the House. After 9 O Clock.
John Newbegin. Saw K's House next Day. It was very much damnified. Jona. Andross Jnr. was There and he told me he was in the House. I never heard of it till the Night before. I was asked, by one Person the Night before to go.
One Note vs. D. Millikin was destroyd and several vs. the Stewarts and deeds and all the Papers there were destroyed.
Heard Amos say he was prevented from going by the belly Ach. He said he never would be behindhand in Advancing Mony, to screen it. And he has advanced Money. He really appeard to me to be very glad.
Jona. appeared to be well pleased with the Notion, and Jona. Junior was there. Did not hear Jona. say any Thing about it beforehand. He afterwards laugh'd and was merry about it.
A Year or two after I heard Jona. say, that it was a bad Thing.
The House, Windows, Desk, Wainscot, Walls, Pewter damagd. About a Year after Amos said he could take a few Bundles of flax and a Coal of fire and put under his Warehouse, and put a stop. Have heard Amos laugh about the Ladder that they could not get it together. 2 Men and one want willing, it was difficult.
Benja. Carl. The Talk was that about 70 men were to go and talk with him and tell him that he had said he would fill Falmouth Goal with Debtors next C[our]t. 20 or 30 did assemble. 6 went into the Windows. A desperate Outcry in the House. Heard Mr. K. cry to his servant.
I saw a Peck of Papers or more. I said it is a Pity to destroy these Papers. They said they had got what they wanted. I said are not you { 131 } a Parcell of ungratefull Writches. Burbank came to me. Cant tell who burnt the Papers. Burnt at Burbanks House.
Such a Noise in the House as I never heard in my House.5 Jona. Andross Jnr. was one of the Company. Thumping, Yelling, Hooping —I thought K. was in the Extremity of Death.
3 Stewarts there.
Jona. Junr. proposed the whole Parish should go to the Justices, and let him take whom he pleased. There was some Meeting for that, at old Mr. Stewarts.
Nat. Jose. Met Amos Andross, and we got discoursing about the Mob which had been at K's. I said I was glad ont. Amos said if we had thought so We should have invited you to have gone [with] us. K. had my Note and I hoped mine was destroyed.
Nath. Carl. At Amos's Mill, he said to me, how easy a Thing it would be for a youngster that lived as near as I, to put a Coal of Fire to his Buildings. This after the Riot but before the Barn was burnt. He did not seem to me to be in earnest.
Paul Tompson. Heard Jona. say the best Way for K to find who had mobb'd him is to go to his Books and see who he has wrong'd. He has wrongd me out of 300£. He mentiond Graffam, but did not understand him to quote Graffam.
Lem. Millikin. K. sent to my Fathers just after the Mobb, and desird sum of Us to come. A large Quantity of Papers burnt to Ashes. K. answered they have undone me [then?] Mrs. K. was then fainted away, could but just keep Life in her. She lay in.
Windows of House and Store dashd all to Pieces. An Hatchet thrown into a Chamber Window and lying on the Flooer. His Desks broke to Pieces, his Wainscoat, Plaistering &c. broke to Pieces.
Rob. 1st. I knew was the Windows coming in. Master called to me, and went back into his Chamber. I attempted to go, but the People were there, and I could not go. I went to my Gun, and she was not loaded. I said I would stop some of them. I met Master coming down to get something for Mistress. She was faint. He bid me go and get his Gun. I went and went up Chamber and found the Maid holding Mistress who was faint. Plate, Earthen Ware, Chairs, Desks, broke, Papers burnt. Stair Case hacked, Wainscot Wall hacked. 7 or 8 Windows. They broke into the shop. Window broke open.
Mistress said Lord of Mercy where shall I go?
John Porry. Some days after the Mob at Mr. Andross's Jona.'s. Saw Mill, he said he was not in it, but if there was ever another he would { 132 } be in it. For it was justifiable in the sight of God and Man. The Common Law could not take hold of a Mob. If he6 man was injured and could not get his Remedy at common law, he might take it himself.
John Augur Millikin. April at Millikins Tavern 10 o Clock at Night. Saw the Barn burnt. Ladder was to Pieces. Amos Andrews at the other End. The Ladder would fly to Pieces 10 times—as if by Witchcraft.
Somebody ripd the Boards off at the End, and let the Air in.
Jona. said he believd the D———1 was in the People.
Abraham Tyler Junr. Cost about £80 to repair what has been done. £10 L.M. to repair the Wainscoat, and staircase.
Daniel Moulton. Saw the House and Furniture.
Schedule of Notes, Bonds, &c. annexed to the Writ.
Hawk. P.C. 315. No Accessories in Trespass. §16. Hire, Command, Council or Conspiracy. Approbation unless they countermand and retract their Encouragement.7
King vs. Stewart et al. Defence
James Sullivan, for Amos Andrews.
Abhors Mobs.
Wingates Deposition. Taking K. out of Bed and Whipping him or cutting his Ears is not cutting his Ears.
Law of Evid. 254.8 All must be Principals. None guilty but he who Acts in it.
Hawk. 311. § 4.9 Woods Inst. 407.10 4. Bac. 179, top.11 Foster 372, 369. 70.12 372. §1.2. 3.13 Hawk. 310.14
{ 133 }
Omnis Ratohabitio retrotrahitur, and Mandato precedenti antecedenti aequiparatur.15
No Intention to break House or burn Papers, in Amos.
{ 134 }
The Ladder. The axes, and Presence when the Colt hung up.
Depositions to be treated with more care, because taken when Amos not present.16
The whole 12 Jurors must agree.17
Damages. A melancholly Tragedy. Pewter, China, &c.
Papers.
Fright. Pain of Mind for 1/4 of an Hour.
Prov[ince] in an Uproar, on Account of Stampd Papers.
Shall Amos and family be beggared, and reduced to Distress for Life.
John. Sullivan. J. Hale said it was difficult to distinguish between Crime and Person.18
No Damages to make Reparation to the Public.
The Thought of killing sovereign is Treason.
Ever and Never in Gilbert.19
{ 135 }
Hawk. 311.20
The Evidence comes from Persons who were original Defendants. Burbank was Captain General.—Answer. The Andrewss were King and Ministry and Privy Council.21
Page 316. Read§22d22
Defendants Witnesses.
D[eaco]n Millikin. Heard Wingate threaten to mob Millikin23 6 Months before it was done. If I could perswade any Body to join me, I would mob him immediately.
Ben Durgan. Neither of the Defendants there when the Colt hung up. In the Night I saw nor heard any thing of them. Dark overcast night. Jona. was at home when the House was torn down.
John Gookin. King told me, as I understood him, he lost nothing of any Value. His Books, Bonds and Notes were all safe. Waste Papers destroyed. If they had put their Hands round they would have ruined him. Principal Part of the Papers they took were waste Papers and Memorandums. Dont remember his saying about the desk in the House. All in Confusion.
James Boothbay. Had a Note there not destroyd, King Joked.
Jotham Libby. Paid his Note.
Mr. Graffam. The best Notes were in the draw which they never touched.
Dr. Southgate. Saw Dr. Southgate. Gookin told me that they { 136 } destroyed a valuable Number of Papers and sustained a very great Loss, and he should have been ruined, if they had not missed a valuable File of capital Notes.
John Sullivan. What is the meaning of Mobbing. There was not one Thing done that Jona. advised to. Dont urge that mobs being in other Places, is any Justification.
There is Evidence that Jonathan Junr. was with the rest.
Under c[ommon] l[aw] a Person wants understanding, to make him guilty of a Crime.
3 Bac.24
The Stewarts have confessed themselves guilty, by their Default.25
People was divided about the Destruction of the Tea.
Jona. has pd. a sixth Part of £200 which should be returned to him Exemplary Damages, not known to the Legislators.26
1. Damage to the House. 2. Furniture. 3. Papers. 4. Credit in Trade. 5. To his Character. 6. Indignity. 7. Children. 8. Wife. 9. The Terror, Cruelty and Horror of that dismal Scene. 10. Consider what the Crime was and what King might have done. He might have killed em all and been justified.27
Damages.
1. To the House.
2. To the Furniture.
3. The Papers.
4. To his Credit in Trade.
5. To his Reputation and Character in generall. Such popular Hurricanes always scatter Dust upon a Man. They make the World suspect very often where there is no just Cause or Ground for Jealousy. The Maxim with many is that where there is so much Smoke there is always some fire, and under the Influence of this Opinion they take up a Prejudice vs. a Man with[out] exam[in]ing into the Truth. These popular Commotions always set ill humours afloat. They put { 137 } licentious Tongues and Pens in Motion, as they did particularly in this Case. These Andross's hired a Paper to be printed even in a Newspaper and to be scatterd also in Hand Bills, to asperse and blacken his Character. Every Man has Enemies. Every Enemy takes Advantage of such a season, and becomes industrious to propagate Reports true or false, to the Injury of a Man's Character. Besides every one of the Persons who is concerned in such an Outrage has a Number of Friends, who are at once alarmed, and become anxious least the Perpetrators should be discoverd and punished, and least the World should condemn the Action as unjust. These therefore instantly join the Cry, and say in all Companies the most bitter, cruel, and often false and deceitfull Things they can think of. In short I know of nothing that happens in society which is such a Nursery of Scandal, and Calumny, of obloqui and Defamation as a Mob. Besides it is such a Gratification to the Envy and Revenge, of the most sordid, base and groveling among the Vulgar, that it gives them a Triumph and they always become insolent, impudent, and abusive to such a Man—swallow down greedily all the Lyes and dirty Tales that are told and propagate them far and wide.
Apply this to Mr. King and to those Rioters.
6. The Indignity offered to the Plaintiff. The Insult and Affront.
An Englishmans dwelling House is his Castle. The Law has erected a Fortification round it—and as every Man is Party to the Law, i.e. the Law is a Covenant of every Member of society with every other Member, therefore every Member of Society has entered into a solemn Covenant with every other that he shall enjoy in his own dwelling House as compleat a security, safety and Peace and Tranquility as if it was surrounded with Walls of Brass, with Ramparts and Palisadoes and defended with a Garrison and Artillery.—This covenant has been broken in a most outragious manner. We are all bound then to make good to the Plaintiff his Damages.
Every English[man] values himself exceedingly, he takes a Pride and he glories justly in that strong Protection, that sweet Security, that delightfull Tranquillity which the Laws have thus secured to him in his own House, especially in the Night. Now to deprive a Man of this Protection, this quiet and Security in the dead of Night, when himself and Family confiding in it are asleep, is treat[ing] him not like an Englishman not like a Freeman but like a Slave—like a miserable Turk, or Tartar. Is not this a base Affront? No Man who has a Soul, who has the Spirit of a Man in him can ever after during his whole Life, ever forget such an Indignity, tho he may forgive it. He can never { 138 } think of it without Pain of Mind, without Impatience, Anger, Resentment, Shame and Grief.
7. The Damages and Danger to his Children.
5 young Children, all suddenly awakend, by the Dashing of Glass, the Yells, and Noises. Sudden Terror it seems is dangerous to Children. We had the last Week at York Instances. A Gun—a rap.28 This Danger arises from the Constitution of all Animals. A Colt once thoroughly affrightened never gets over it. A sudden fright destroys the natural Tone and Vigour of the Nerves and turns the Animal Spirits into such Channells that they never can be brought back.
There is a natural Courage in Children, which once abated, and Habits of Fear fixed in their Minds, they never can be cured. Instances are common. Fill a Childs head with stories of Ghosts, Apparitions and Hobgoblins, and You fix such Habits of fear upon them, that all the force of their Reason shall never be able to make them walk in the dark without fear.
8. The Danger, the real Damage and actual Cruelty, to his amiable Wife. She was at that Time far gone in her Pregnancy. She run 1000 Chances of her Life, and still greater Risques of the fruit of her Body. What had the innocent Babe in her Womb done to this abandon'd Mob, that its Existence should be put at Hazard, by their Fury, Malice, Madness and Revenge.
9. The Cruelty the Terror, the Horror of the whole dismal scene. It would be affectation to attempt to exaggerate, it is almost impossible to exagerate, the distresses of this innocent Family, at that Time. The Excellency of a Tryal by Jury is that they are the Partys Peers, his equalls—men of like Passions, feelings, Imaginations and Understandings with him. If your Passions are not affected upon this Occa• { 139 } sion, you will [not] be the Plaintiffs Peers. It is right and fit, it is reasonable and just that you should feel as he did, that you should put yourself in his Place, and be moved with his Passions.29
Be pleased then to imagine yourselves each one for himself—in bed with his pregnant Wife, in the dead of Midnight, five Children also asleep, and all the servants. 3 Children in the same Chamber, two above. The Doors and Windows all barrd, bolted and locked—all asleep, suspecting nothing, harbouring no Malice, Envy or Revenge in your own Bosoms nor dreaming of any in your Neighbours. In the Darkness, the stillness the silence of Midnight.
All of a sudden, in an Instant, in a twinkling of an Eye, an armed Banditti of Felons, Thieves, Robbers, and Burglars, rush upon the House. Like Savages from the Wilderness, or like Legions from the Blackness of Darkness, they yell and Houl, they dash in all the Windows and enter. Enterd they Roar, they stamp, they Yell, they houl, they cutt break tear and burn all before them.
Do you see a tender and affectionate Husband, an amiable deserving Wife near her Time, 3 young Children, all in one Chamber, awakened all at once, ignorant what was the Cause, terrifyd, inquisitive to know it. The Husband attempting to run down stairs, his Wife, laying hold of his Arm, to stay him and sinking fainting dying away in his Arms. The Children crying and clinging round their Parents—father will they kill me—father save me! The other Children and servants in other Parts of the House, joining in the Cries of Distress.
What sum of Money Mr. Foreman would tempt you, to be Mr. King, and to let your Wife undergo what Mrs. King underwent, and your Children what theirs did for one Night?
I freely confess that the whole sum sued for would be no temptation to me, if there was no other Damage than this.30
But how can the Impression of it be erased out of his Mind and hers and the Childrens. It will lessen and frequently interrupt his Happiness as long as he lives, it will be a continual Sourse of Grief to him.
10. Such an Event establishes and perpetuates Rancour, Animosities and Hatreds among Families. One of these Children will never recollect <the> see one of the Family of Stewart and Andrews without Pain of Mind. Is it not a damage to a Man to have Quarells entailed { 140 } upon him and his Family, forever, with all his Neighbours and their Families.
11. It's of great Importance to the Community that sufficient that exemplary Damages should be given in such Cases. King might have kill'd em all.31 If a Man has Humanity enough, to refrain, he ought to be fully compensated.
12. It would be a stain of this excellent and noble Tryal by Jury, if it should not afford Justice in such Cases. There are Levellers, but they disgrace Jurys.
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185.
2. Apparently a heading, but the meaning is uncertain; probably mobbing or rioting.
3. As to the default, see notes 3, 35 1 , above. The Andrews' counsel were John and James Sullivan, New Hampshire and Maine lawyers respectively. See JA to AA , 29 June 1774, 1 Adams Family Correspondence 113.
4. Theophilus Bradbury, JA 's co-counsel, opening the case for King.
5. Perhaps an inadvertence for “life.”
6. Inadvertence for “a.”
7. 2 Hawkins, Pleas of the Crown 315: “It seems to be agreed that those who by Hire, Command, Counsel, or Conspiracy; and it seems to be generally holden, that those who by shewing an express Liking, Approbation or Assent to another's felonious Design of Committing a Felony, abet and encourage him to commit it, but are so far absent when he actually commits it, that he could not be encouraged by the Hopes of any immediate Help or Assistance from them, are all of them accessories before the Fact, both to the Felony intended, and to all other Felonies which shall happen in and by the Execution of it, if they do not expressly retract and countermand their encouragement, before it is actually committed.”
8. Gilbert, Evidence 254: “In Trespass all the Defendants must be Principals, for no Man can by commanding a Trespass, give any Man Authority to do it, Therefore no Man is guilty but that he acts in it, and any other Person is not guilty at all.”
9. 2 Hawkins, Pleas of the Crown 311: “Sect. 4. It seems agreed, That who so ever agrees to a Trespass on Lands or Goods done to his Use, thereby becomes a Principal in it. But that no one can become a Principal in a Trespass on the Person of a Man by any such Agreement. Also it seems agreed, that no one shall be adjudged a Principal in any common Trespass, or inferior Crime of the like Nature, for barely receiving, comforting and concealing the Offender, though he know him to have been guilty, and that there is a Warrant out against him, which by Reason of such Concealment, cannot be executed. And if he cannot be punished as a Principal, it is certain that he cannot be punished as an Accessary; because in such Offences, all who are punished as Partakers of the Guilt of him who did the Fact, must be punished as Principals in it, or not at all.”
10. See Wood, Institute of the Laws of England 397 (London, 9th edn., 1763): “In Petit Larcenies, Trespasses Vi et armis, there are no Accessories. For as in the highest Offense there is no Accessory, so it is in the lowest Offenses, or in all Offenses under Felony, as in Riots, Routs, forcible Entries, and other Trespasses vi et Armis. Here all are Principals as before observed. He that Receiveth a Trespasser on Lands and Goods, after the Trespass is Committed, is no Trespasser, unless the Trespass was done to his Use and Benefit, and He agreeth to it afterwards; for then his subsequent Agreement amounteth to a Commandment, and makes him a Principal. Yet if the Trespass was on the Person of any one, such After-Agreement will not make Him a Trespasser.” Id. at 407, contains references to statutory measures concerning accessories.
11. Probably 5 Bacon, Abridgment 179: “All who are Parties to a Trespass with Force are liable to this Action; for there can be no Accessory in such Trespass.”
12. Foster, Crown Cases 372: “Did the Principal Commit the Felony He standeth Charged with under the Influence of the flagitious Advice, and was the Event in the ordinary Course of Things a probable Consequence of that Felony? or did He, following the Suggestions of his own wicked Heart, Wilfully and Knowingly commit a Felony of Another Kind or upon a Different Subject?”
13. Foster, Crown Cases 369–370: “Much hath been said by Writers who have gone before Me, upon Cases where a Person supposed to commit a Felony at the Instigation of Another hath gone beyond the Terms of such Instigation, or hath in the Execution varied from them. If the Principal totally and substantially varieth, if being solicited to commit a Felony of One kind He wilfully and knowingly committeth a Felony of Another, He will stand single in that Offence, and the Person soliciting will not be involved in his Guilt. For on his part it was no more than a fruitless ineffectual Temptation. The Fact cannot with any Propriety be said to have been Committed under the Influence of that Temptation.
“But if the Principal in Substance complieth with the Temptation, varying only in Circumstance of Time or Place, or in the Manner of Execution, in these Cases the Person solliciting to the Offence will, if Absent, be an Accessary Before the Fact, if Present a Principal. For the Substantial, the Criminal part of the Temptation, be it Advice, Command, or Hire, is complied with. A. Commandeth B. to Murder C. by Poison, B. doth it by a Sword, or other Weapon, or by any other Means. A. is Accessary to this Murder. For the Murder of C. was the Object principally in his Contemplation, and that is Effected.
“So where the Principal goeth beyond the Terms of the Solicitation, if in the Event the Felony committed was a probable Consequence of what was Ordered or Advised, the Person giving such Orders or Advice will be an Accessary to that Felony. A. upon some Affront given by B. ordereth his Servant to way-lay Him and give Him a sound Beating; the Servant doth so, and B. dieth of this Beating. A. is Accessary to this Murder.
A. adviseth B. to Rob C., He doth Rob him, and in so doing, either upon Resistance made, or to conceal the Fact, or upon any other Motive operating at the Time of the Robbery, Killeth him. A. is Accessary to this Murder.
“Or A. soliciteth B. to Burn the House of C., He doth it; and the Flames taking hold of the House of D. that likewise is Burnt. A. is Accessary to the Burning of this Latter House.
“These Cases are all governed by One and the Same Principle. The Advice, Solicitation, or Orders in Substance were pursued, and were extremely flagitious on the Part of A. The Events, though possibly falling out beyond his original Intention, were in the ordinary Course of Things the probable Consequences of what B. did under the Influence, and at the Instigation of A. And therefore in the Justice of the Law He is answerable for them.”
14. 2 Hawkins, Pleas of the Crown 310–311: “It seems to have been always an uncontroverted Maxim, that there can be no Accessaries in High Treason, or Trespass. Also it seems to have been always agreed, That whatsoever will make a Man an Accessary before in Felony, will make him a Principal in High Treason and Trespass; as Battery, Riot, Rout, Forcible Entry, and even in Forgery and Petit Larceny. And therefore, where-ever a Man commands another to commit a Trespass, who afterwards commits it in Pursuance of such Command, he seems by necessary Consequence to be as guilty of it, as if he had done it himself; from whence it follows, that being in Judgment of Law a Principal Offender, he may be tried and found Guilty, before any Trial of the Person who actually did the Fact.”
15. Presumably, “Omnis ratihabitio retrotrahitur et mandato priori aequiparatur,” i.e., “Every ratification relates back and is equivalent to a prior authority.” Black, Law Dictionary . If the point is that Amos' subsequent approval of the riot which he had encouraged constituted participation, the maxim would appear to have been a note by JA of a possible rebuttal argument to Sullivan's preceding citation of authority.
16. Note that depositions were admissible, even though taken out of the presence of the opposing party, if he had been notified or lived more than twenty miles away. Act of 12 Dec. 1695, c.15, §1, A&R 225.
17. “The Jury must be kept together without Meat, Drink, Fire or Candle, till they are agreed. ... If there be eleven agreed, and but one dissenting, who says he will rather die in Prison, yet the Verdict shall not be taken by eleven. ...” 3 Bacon, Abridgment 269.
18. Presumably Sullivan refers to Hale, Pleas of the Crown . The reference has not been identified.
19. Probably Gilbert, Evidence 255: “and in Trespass, the Intent to trespass was ever reckoned a Trespass, and therefore there are no Accessories.” JA 's minute suggests that Sullivan was arguing that the word “ever” should be “never.” See quotation at note 45 8 above. But in Gilbert, Evidence 255 (2d edn., 1760), the passage is reprinted without change.
20. See note 46 9 above.
21. This phrase is apparently a rejoinder noted down by JA for use in rebuttal.
22. 2 Hawkins, Pleas of the Crown 316–317: “But it is observable, That Plowden, in his Report of Saunder's Case, which seems to be the chief Foundation of what is said by others concerning these Points, in putting the Case of a Command to burn the House of A. which shall not make the Commander an Accessary to the burning the house of B. unless it were caused by burning that of A. states in this Manner, If I command a Man to burn the House of such an one, which he well knows, and he burn the House of another, there I shall not be Accessary, because it is another distinct Thing, to which I did not give Assent, &c. By which it seems to be implied, That it is a necessary Ingredient in such a Case to make B. no Accessary, that he knew the House which he was commanded to burn; for if he did not know it, but mistook another for it, and intending only to burn the House which he was commanded to burn, happen by such Mistake to burn the other, it may probably be argued, That the Commander ought to be esteemed an Accessary to such Burning, because it was the direct and immediate Effect of an Act wholly influenced by his Command, and intended to have pursued it.”
23. An apparent inadvertence. See Dr. Southgate's testimony below for a similar error.
24. 3 Bacon, Abridgment . The exact citation has not been identified.
25. Sullivan was reminding the jury that even if it brought in a verdict for the Andrewses King could still mulct the Stewarts in damages.
26. “Exemplary damages,” or “smart money,” are damages over and above the plaintiff's actual loss, in circumstances aggravated by the defendant's malice. Black, Law Dictionary .
27. These are notes for JA 's closing address to the jury, which follows and may have been written during a recess in the trial or possibly afterwards in the heat of fresh recollection.
28. See JA to AA , York, 1 July 1774, 1 Adams Family Correspondence 118:
“In a Tryal of a Cause here to Day, some Facts were mentioned, which are worth writing to you. It was sworn, by Dr. Lyman [Isaac Lyman, Yale 1747; see 12 Sibley-Shipton, Harvard Graduates 182], Elder Bradbury and others, that there had been a Number of Instances in this Town of fatal Accidents, happening from sudden Noises striking the Ears of Babes and young Children. A Gun was fired near one Child, as likely as any; the Child fell immediately into fits, which impaired his Reason, and is still living an Ideot. Another Child was sitting on a Chamber floor. A Man rapped suddenly and violently on the Boards which made the floor under the Child [tremble?]. The Child was so startled, and frightened, that it fell into fits, which never were cured.
“This may suggest a Caution to keep Children from sudden Frights and surprizes.”
The case referred to is probably Moulton v. Swett, SCJ Rec. 1773–1774, fol. 219; Min. Bk. 99, SCJ York, June 1774, N–6; SF 137483. Moulton was a constable who had taken Swett's gun away from him after Swett had wrongfully discharged it. Swett sued, but lost in the Superior Court. Unfortunately the file does not list the Superior Court witnesses.
29. It would be questionable today for a lawyer so to address a jury. See Callaghan v. A. Lague Express, 298 F. 2d 349 (2d Cir. 1962). JA may have based the next three paragraphs on King's own account, p. 119 above.
30. In this and the preceding paragraph JA seems to exceed the bounds of permissible argument. See note 66 29 above.
31. Compare with the argument in Rex v. Richardson, No. 59.