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Browsing: Legal Papers of John Adams, Volume 3


Docno: ADMS-05-03-02-0001-0004-0020

Author: Paine, Robert Treat
Date: 1770-12-05

Paine's Minutes of Cushing's and Lynde's Charges to the Jury1

5 December 1770

Judge Cushing. The longest Tryal I have ever known. The Party in K[ing] S[treet] had a right to [beat].
Judge Lynde. 8 Prisoners. No Body can wonder that on their account we have spend a great Deal of Time. HP [482],2 If it be not known who kill'd. This Rule will Shorten your Business.3
2. Presumably 1 Hale, Pleas of the Crown 482, which deals with the law of self-defense, but not with the rule Judge Lynde lays down, i.e. that if the killings cannot be traced to individual prisoners, all must be acquitted.
“It appeared from the evidence, that seven guns only were discharged, and the witnesses could ascertain two only of the prisoners who fired; though they swore that the whole firing was from the eight. The court was clear in their opinion to the jury, that they were all excusable, firing in defence of their own lives against the violent assaults of the people; but the jury were made to believe all those who fired guilty of manslaughter, thinking that they should have forborne firing longer than they did; but finally found only the two who were ascertained, guilty, and acquitted the rest. For if they had found the whole, one who was innocent must have been declared guilty.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 236.
{ 310 }
3. Compare the briefness of Paine's notes with the comment of the editor of the Wemms Trial inserted immediately after the charge of Oliver, J., Wemms Trial 207:
“Each of the other Justices also summed up the evidence to the Jury very particularly, and gave their opinions of the construction of law upon the evidence; but as they differed in no material point, from the two Justices, (who according to the custom of the Court) spoke first, they thought it unnecessary to make public what was severally delivered by them.” Apparently the judges spoke in reverse order of seniority.