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Browsing: Legal Papers of John Adams, Volume 3


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Docno: ADMS-05-03-02-0001-0003-0010

Author: Adams, John
Date: 1770-10-29

Adams' Minutes of Paine's Authorities1

29 October 1770

Paines Autho[rities].
Foster 278. Plea of self Defense. Nailors Case.2
290.3 291. §2. Slight provocation and ——. Instances in Illustration.4
295. A uses provoking Language. &c.5
298.6
Ld. Ray. 1489. Oneby's Case.7
1 Hawk. 73 page. §25.8 Foster 296. §4.9
Har [Thus in MS.]
1. H.H.P.C. 485. 486.10 Cokes Case Cro. Car. 538.11
1. Adams Massacre Minutes, MHi MS 1. See Descriptive List of Sources and Documents.
2. Foster, Crown Cases 278, discusses Reg. v. Nailor (unreported) (Old Bailey 1704): Drunken son fights with father; second son floors inebriate, who stabs second son to death. Held (after conference, by all the judges of England): Manslaughter. “For there did not appear to be any Inevitable Necessity so as to Excuse the Killing in this Manner,” because “The Deceased did not appear to aim at the Prisoner's Life, but rather to Chastise Him for his Misbehaviour and Insolence towards his Father.”
3. Foster, Crown Cases 290: “Words of Reproach, how grievous soever, are not a Provocation sufficient to free the Party Killing from the Guilt of Murder. Nor indecent provoking Actions or Gestures expressive of Contempt or Reproach, without an Assault upon the Person.”
4. Foster, Crown Cases 291: “And it ought to be remembered, that in all other Cases of Homicide upon slight Provocation, if it may be reasonably collected from the Weapon made use of, or from any other Circumstance, that the Party intended to kill, or to do some great bodily Harm, such Homicide will be Murder.” The author then sets out “a few Instances,” which Paine presumably alluded to.
5. Foster, Crown Cases 295. See note 11 97 above.
6. Foster, Crown Cases 298, discusses exceptions to the Statute of Stabbing. See note 5 6 above.
7. Rex v. Oneby, 2 Ld. Raym. 1485, 92 Eng. Rep. 465 (K.B. 1727).
8. 1 Hawkins, Pleas of the Crown 73, §25: “[I]n all these Cases, there ought to be a Distinction between an Assault in the Highway and an Assault in a Town; for in the first Case it is said, That the Person assaulted may justify killing the other without giving back at all: But that in the second Case, he ought to retreat as faras he can without apparently hazarding his Life, in respect of the Probability of getting Assistance.”
9. Foster, Crown Cases 296: In every “Case of Homicide upon Provocation how great soever it be, if there is sufficient Time for Passion to subside, and for Reason to interpose, such Homicide will be Murder.”
10. 1 Hale, Pleas of the Crown 485–486, discusses the law of self-defense.
11. See note 9 144 above.
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