Browsing: Legal Papers of John Adams, Volume 2

1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. Docketed by JA: “Ansell Nickerson's Case. Evidence, Confession, Judication,” the three issues with which these notes deal. Intervals of space indicate space breaks in the MS. JA's outline of his own argument is appended to these notes in the MS, but it is here printed separately (Doc. III), so that the arguments can be presented in the order in which they were presumably given. See note 1 87 below.

2. The passage appears in Wood, Institute of the Laws of England 671 (London, 9th edn., 1763). JA seems to have cited the wrong page inadvertently. This is the only edition in which there are more than 663 pages, 1 Sweet and Maxwell, Legal Bibliography 38. Quotation marks have been supplied.

3. 12 Viner, Abridgment 95, tit. Evidence, plea A. b. 23, no. 3. Quotation marks supplied. For King v. Pain, see note 8 33 below. The “note” in the text appears in the margin in Viner; it is a quotation, with very minor discrepancies, from Buncombe, Tryals per Pais 209 (London, 3d edn., 1700). The same passage appears at p. 363 in Volume 2 of the 1766 edition of the latter work, cited below by JA, note 7 32 .

4. 12 Viner, Abridgment 96, tit. Evidence, plea A. b. 23, no. 4. Quotation marks supplied. The passage reads in full, “Confession is the worst sort of Evidence that is, if there be no Proof of a Transaction or Dealing, or at least a Probability of Dealing, between them as in the Principal Case there was, the one being a Sailor, the other a Master of a Ship. Per Holt. 7 Mod. 42. Mich, 1 Ann. B.R. Anon.”

5. 12 Viner, Abridgment 96, tit. Evidence, plea A. b. 23, no. 6. Quotation marks supplied. JA has omitted the citation: “St. Tr. 1 Vol. 169. 780.—2 Vol. 575.”

6. 12 Bacon, Abridgment 313, tit. Evidence, L. Quotation marks supplied. JA has omitted the preceding paragraph, which states that the defendant's confession, whether taken according to law by a justice of the peace or magistrate, “or spoken in private Discourse,” may be used against him. Both this passage and the sentence quoted in the text appear in substantially similar form in 2 Hawkins, Pleas of the Crown 429, which is cited in the margin in Bacon. See notes 9 34 , 4 90 , below.

7. 2 Duncombe, Trials per Pais 427 (8th edn., 1766). The passage contains several more or less accurate quotations from 12 Viner, Abridgment 95–96, including those cited in notes 3 28 and 4 29 above.

8. Rex v. Paine, 5 Mod. 163, 165, 167, 87 Eng. Rep. 584, 585, 586 (K.B. 1695). Quotation marks supplied. See note 3 28 above. In an information for publishing a criminal libel the defendant had confessed that he had written the libel at another's dictation and then had delivered it to one Brereton by mistake. There was also the evidence of the defendant's servant that the libel had been repeated in a room in the presence of a Dr. Hoyle after the defendant had brought in a writing. The jury gave a special verdict raising the question of the defendant's guilt as composer of the libel, but finding him not guilty of publication. The passage quoted from p. 165 is apparently part of the argument of counsel to the jury that that portion of the confession which indicated delivery by mistake must also be taken into account and read to show that there was no publication. The passage from p. 167 is part of the opinion of the court, conceding that if the confession were the only evidence on the question of publication, the defendant was not guilty. The court went on to state, however, that the servant's testimony was also evidence of publication, if it could be established that the paper brought into the room was the libel. The court adjourned without giving judgment.

9. 2 Hawkins, Pleas of the Crown 429, §5. Quotation marks supplied. The passage is cited by Bacon, note 6 31 above.

10. 2 Hale, Pleas of the Crown 290. Quotation marks supplied.

11. That is, 4 Blackstone, Commentaries *352: “Fourthly, all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” Blackstone then recites the passage quoted from Hale, note 10 35 above.

12. That is, Justinian, Digest, bk. 29, tit. 5, law I, §24, cited by Hale, note 10 35 above, a passage construing a senatorial decree which inflicted torture upon slaves of a master who met a violent death. Quotation marks have been supplied. See 6 Scott, Civil Law 320: “Unless it is established that a man has been killed, his slaves ought not to be tortured.”

13. 2 Domat, Civil Law 667, a passage stating the general rule that a confession is to be taken as proof of the fact confessed unless the contrary be established affirmatively. “And this Rule has only one Exception in Accusations of Capital Crimes, where it is not enough that the Party who is accused confesses a Crime which is not proved; but other Proofs are necessary for putting him to Death besides his own Confession, which might be an Effect of Melancholy or Despair, or proceed from some other Cause than the Force of Truth.”

14. Wood, New Institute of the Civil Law 310. Quotation marks supplied. Compare No. 46, note 42 119 .

15. Justinian, Codex, bk. 4, tit. 19, §25. Quotation marks supplied. See No. 46, notes 47–48 124–125 .

16. Maranta, Speculum Aureum, pars IV, Distinctio I, §77. Quoted, No. 56, note 18 118 .

17. Gail, Practicarum Observationum 503, quoted in No. 56, note 16 116 , from which the passage here was probably extracted. Quotation marks have been supplied.

18. Gail, Practicarum Observationum 509. See No. 56, note 17 117 .

19. Presumably a reference to Gregor Kolb, Examen Juris Canonici, juxta V. libros decretalium (Vienna, 1728), a work which JA owned. See Catalogue of JA's Library 136.

20. Maranta, Speculum Aureum 313. “114” is presumably an inadvertence for p. 314. See text preceding note 4 90 below. In JA's copy at the Boston Public Library two passages on these pages are marked. The first states that, even though the defendant's confession contains matter favorable to himself, this must be proved, as in a confession that he killed in self-defense. The second adds the important qualification that on the basis of such a confession the defendant cannot be condemned to death, as for a homicide, but must be given the lesser penalty of banishment.

21. Johannes Calvinus, Lexicon Juridicum Juris Caesarei Simul, et Canonici, tits., Confiteri, Capitulum (Geneva, 1622). It has not been possible to determine exactly the passages under these heads to which JA referred. The title “Capitulum” seems to contain nothing relevant. Under “Confiteri” there are several general statements concerning confessions which JA may have intended. The citation is omitted in the notes from which he argued (Doc. III).

22. Apparently a reference to Institutiones Juris Canonici 118 (Basel, ed. J. P. Lancelottus, 1695), bound with separate paging as part of Corpus Juris Canonici (Basel, ed. J. P. Lancelottus, 1696). At the cited page appears bk. 3, tit. 14, “De Probationibus,” a title beginning with several sections concerning proof by confession of the parties.

23. Wood, New Institute of the Civil Law 316, §2, set out in No. 46, notes 29–30 106–107 .

24. Justinian, Digest, bk. 22, tit. 5, §12, set out in No. 46, at note 31 108 .

25. Justinian, Codex, bk. 4, tit. 20, §9, §1, set out in No. 46, at note 32 109 .

26. Reg. v. Quelch et als., 8 State Trials 205, 213 (Boston, Ct. of Adm., 1704). Quelch and his crew had taken over a privateer when the master died, and had preyed on friendly shipping in the South Atlantic. The cited page contains a series of objections to the evidence by Quelch's counsel. JA's use of the passage in his argument (Doc. III) indicates that he here referred to an argument that the civil-law rules for accrediting witnesses should apply. This contention, like all the others made for Quelch, was rejected by the court. Quelch and several of his accomplices were ultimately condemned and executed on 30 June 1704.

27. Rex v. Bonnet, 6 State Trials 156 (S.C. Vice Adm., 1718). See No. 56, at note 16 54 .

28. See 28 Hen. 8, c. 15 (1536), set out in No. 56, at notes 2–5 40–43 ; 11 & 12 Will. 3, c. 7 (1700), set out, id., at notes 2–5 44–49 (see also note 2 57 below); 4 Geo. 1, c. 11, §7 (1717), set out, id., at notes 14–15 52–53 .

29. See Foster, Crown Cases 288–289, indicating that there is no crime of manslaughter in Admiralty, set out in No. 56, at notes 42–43 142–143 .

30. See Barrington, Observations upon the Statutes 54, stating that there is no crime of manslaughter under the civil law, set out in No. 56, at note 40 140 .