A website from the Massachusetts Historical Society; founded 1791.
close

Browsing: Legal Papers of John Adams, Volume 1


Search for a response to this letter.

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

King v. Stewart

DocGroupNo:

1773–1774

Docno: ADMS-05-01-02-0003-0002-0001

Editorial Note

This case, an early instance of patriotic violence which disturbed Adams deeply, arose on the night of 19 March 1766 at Scarborough in the District of Maine, when a mob broke into the home and store of Richard King. The rioters terrorized King's pregnant wife and five children (including the future Federalist politician Rufus King), destroyed his windows and furniture, and burned a deskful of papers. The court files and related papers on this and other suits involving King suggest three roots for the townspeople's animus. First, many of them were his customers and owed him money; second, they had suspected that he was a prospective Stamp Act officer; third, they resented his claim that the parish, of which he had been treasurer, owed him money for disbursements.1
Despite threats of death if he sought legal redress, King pressed indictments against the mob members and petitioned the General Court for pecuniary relief (Document I). Meanwhile, in the spring of 1767, the mob had burned another house of his and a barn whose alleged size (72 by 32 feet) suggests King's financial position.
Unsuccessful in his efforts to obtain either vengeance or recompense, in March 1773 King finally commenced a civil action at Falmouth Inferior Court (now Portland) against John Stewart and nine others whom he numbered among his tormentors.2 The subsequent course of the litigation may be traced in King's remonstrance to the Superior Court (Document II) and in the writ of review (Document III) which the defendants obtained after a Superior Court jury at the June 1773 term had awarded King £200 damages for his losses in March 1766. The first Superior Court trial is of interest from the evidentiary standpoint, because testimony { 107 } of parties as to whom the action had been dismissed was allowed, as was handwriting evidence both for and against John Stewart.
Adams first appeared in the case as counsel for King at the trial in review, where King's cross-appeal seeking an increase in the damages previously awarded was also tried. Three of the remaining six defendants had defaulted, perhaps pursuant to an offer of settlement made by King (Document XI).
Adams' minutes (Document XIII) are unusual, because they contain not only a summary of the evidence but what appears to be a complete text of his address to the jury. That he considered this case unusual is strongly suggested by a letter to his wife, written at Falmouth on 7 July 1774 (Document XIV), which echoes the vivid phrases of his address. The two are virtually contemporaneous expressions of his distaste for indiscriminate mob action, apparently high on the eve of the Revolution after nearly a decade of participation in the affairs of the patriotic movement.
Despite Adams' rousing argument, the jury saw fit to increase King's recovery by only £60 10s. Moreover, it reversed the former judgment as to defendant Jonathan Andrews, awarding him £40 10s. to be remitted by King. The verdicts thus left the remaining defendants liable in a total of £260 10s., much less than the ad damnum of £2000 which King had alleged in his writ. Even this relatively modest judgment was not soon to be satisfied, however. As late as 1784 King's widow was still trying to realize upon it.3
1. As to King, see JA's comments and the editorial note on this case in 1 Adams Family Correspondence131–134. See also the files of King v. Stewart in SF 139590, 139642, 139645. For King's successful litigation with the Parish, see SCJ Rec. 1768, fols. 219–220; SF 139251, 139254. The undated minutes of a Grand Jury hearing, probably dating from 1766, also suggest that the Stewarts suspected King's servant of killing a horse of theirs. NHi: Rufus King MSS.
2. See Doc. III. The reasons for King's delay of seven years in bringing this action are not clear. He may have feared the vengeance with which he was threatened, or perhaps he felt that legislative redress was likely to prove more fruitful than an action at law against defendants of doubtful solvency. In any event, King escaped the bar of the statute of limitations by virtue of the Act of 20 Nov. 1770, c. 9, §2, 5 A&R 109, 110, which, extending the period of limitations for trespass to goods from three to six years, provided that such actions might be brought “within six years from the first day of December [1770], or within six years next after the cause of such actions or suits, and not after.” The same statute would have barred King's action if it had sounded in assault and battery, since such actions had to be brought “within one year, next after the first day of December aforesaid, or within four years next after the cause of such actions or suits, and not after.”
3. See the judgments in SCJ Rec. 1773, fol. 92; id. 1774, fols. 229–231. The actual damages enumerated in the declaration for the night of 19 March 1766 total £1425 3s. 1 1/2d., of which all but £27 was in notes and other obligations destroyed by the mob. The verdict may reflect the fact that King had been able to collect some of the debts represented by the lost papers. He was the successful party in numerous actions appearing in the Superior Court Minute Books for Cumberland and Lincoln counties for the years 1766 through 1774. See also note 122 below. The execution which issued to King after his first victory in 1773 was returned unsatisfied, and no execution in his favor issued after the decision in review in 1774. Execution against King issued in favor of Jonathan Andrews in Nov. 1774, but it was returned unsatisfied in May 1775, King having died earlier in the year. SF 119636, 109174. In 1784, King's widow prevailed in two actions of debt on the judgments recovered by her husband in July 1774. See SJC Rec. 1784, fols. 201–202; SF 139893, 139894. The files contain two executions returned in Nov. 1784 partially satisfied in the amounts of £36 8s. 10d. and £17 9s. 2d. SF 119637, 119638. In June 1790 she recovered upon a note for £50 given to her husband in Aug. 1773 by John, Joseph, Samuel, and Timothy Stewart, SJC Rec. 1790, fol. 140; SF 140140. This note, rather than Doc. XI, may have been the basis of the Stewarts' default in July 1774. See notes 351, 403, below.
{ 108 }

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

Author: King, Richard
Date: 1768-01-04

King's Petition to the General Court1

4 January 1768

Province of the Massachusetts Bay To His Excellency the Governor The Hon[orab]le His Majestys Council and the Honle. House of Reprisentitives in General Court Assembled
Humbly Shews Richard King of Scarborough in the County of Cumberland in Said Province Gentleman That in the Night of the 19th of March AD 1766. a Number of Persons in Disguise with axes Clubbs &c. Broak the windows of the Dwelling House and WairHouse of Your Petitioner, and Entered both Distroyed the kitchen furniture &c. and marred the winscot of the Dwelling House Burnt and Distroyed Robb'd and Carried of from the Dwelling House and WairHouse Great Quantitys of Your Petitioners Papers and writings of Great value among which the Number of Bonds and notes of Hand for money Due which have already Com to Your Petitioners knowlidge togather with the Lawfull Intrest Due on the Same to the Time of the Riot Amount to the Sum of £1104/15/3 lawfull money of said Province Exclusive of other writings of Great value. That in the morning of the second Day after the Riot a writing was found put up at your Petitioners Gate in the name of Sons of Liberty Threatening Your Petitioner and Every other Person in the County that Should be Instrumental of any worrant or Summons to be Served on aney Person on account of the Riot he or they might Depend upon haveing their Houses and Barns Burnt and Consumed and themselves Cut in pices and burnt to Ashes. That in a Short time after another Threatening letter was lodged at the Door of one John Fitts who was a Tenant to Your Petitioner, therein warning him to Depart from that House within twelve Days or he might Expect to be Distroyd for they were Determined to Distroy King and all he had.2 That Eight Days after the Riot upon Complaint a Warrant was Issued by Several Justices of { 109 } the County Against such Persons as were Suspected, and Summonses for Such as were Supposed Capable to Prove the Fact. But with little Effect two only of the Persons Suspected Suffering them selves to be taken the others as also the Principal witnesses Either keeping their Doors Shut against the officers Going back into the woods or Going armed avoided being taken or summoned, that while the Justices that were assembled on this Occasion were waiting for the officers to Execute the warrants &c. a Number of the Riotous Party actualy Assembled in order as was Said to Rescue aney Person that might be apprehend, That in May following the House Improved by Fitts above mentioned was Set on fire and had Nigh like to have ben Consumed with the Household Goods therin which so Allaramed him that he soon Quit the Same which House was Soon after almost distroyed by tairing Down the Chimney &c. That Your Petitioner perciveing the Injuerys he had sustained by the Riot appeared to be pointed more at his papers then aney other Part of his Intrest and that maney Persons appeared Determined to take advantage of the Distruction of his Securities for the Discharge of their Debts &c. That sum from whome your Petitioner had Purchised Lands began to threaten a reEntery, upon finding their Deeds were not on Record, alledging for their Justification that your Petitioner had obtained Deeds, Bonds, and Notes by taking the Advantage of People. Wherefore your Petitioner by an Instrument in writing under his hand appointed the Two first Justices in the County togather with a Gentleman of the Law Arbitrators in General between my Selfe and all Persons (if aney there were) who will appear before Said arbitraters within three months and alledge their having Suffered or being lyable to Suffer by means of aney Deed of Sale Deed of mortgage or Bill of Sale Bond note of hand or other Obligation whatsoever, with Three months more to prove the Same was by Your Petitioner fraudelintly Obtained as they alledge.
And if upon a full hearing of the matter aney such fraudes Should appear on the Part of your Petitioner Said Arbitraters were therin Desired to Certifie the same in writing under their Hands which Certificate if refering to a Deed of sale Deed of Mortgage or Bill of Sale Should Intitle the Party to recover the whole Consideration over again or if it referred to aney Bond Note of hand or other obligation whatsoever to be Sufficiant in aney of His Majesty's Courts of record to Barr aney action that might Ever after be brought upon Such obligation respectively, therin also Subjecting himSelfe to pay all Cost and Charge arising by Such Dispuet wherin he Should be found in the wrong which Submission Your Petitioner notified at length in two { 110 } [of] the most frequented Taverns in said Town of Scarborough, But no Person Ever appeared, nor Applied for aney redress, That while the officers were Indeviouring to Summon the witnesses to attend the Sup[erio]r Court in this County June 1766. Seven windows in a Dwelling House belonging to Your Petitioner were broak and Distroyed. That in the month of Augt. following Your Petitioner Suffered the Loss of an Ax Stole out of his Pasture Suposed to have ben Taken by Sum of the riotous Party who Imploied them selves back in the woods to be out of the way of an Officer. That in the Night of the 4th March last the Dwelling House last mentioned (which had ben lately refitted) was attacked the Boards and Clapboards Tore off the Sealing beat in, and the Posts and Studds Cutt off and the House rendered Irepairable. That in the night of the fourteenth of May last being a few Days after the apprehending and Imprissoning one Silas Burbank upon an Inditement for the Riot,3 a Barn belonging to Your Petitioner of more then seventy foot Long and thirty wide Covered and fixed in the best manner togather with a Shedd of Eighty foot Long was burnt and Consumed with sum Hay and most of your Petitioners Utensils for Husbandry. And Two of your Petitioners best Calves Killd and Carried off at the same Time. That your Petitioner has ben at Great Trouble and Expence in Indeviouring to bring those Rioters to Justice that altho a Number were Indited at the Supr. Court in this County June 1766 and warrants against them Given to proper officers and those officers afterwards actualy in Company with Sum of those the warrants were against Yet the same have not ben Executed upon aney Except Burbank above named and not on him till he Grew so Bold as to use the Goalkeepers House as a Tavern, the reason assigned by the officers for not Executing the warrants when both togather were in Companey with Sum that were Indited, was, that they Did not think it safe and were actualy afraid to Execute the same. That During this time the Rioters Party have ben Sending off to Machias and other Places Such as might have ben made use of as Witnesses against them and Greatly Intimidating others So that the obtaining witnesses against them (all Circumstances Considered) must be attended with Great Difficulty if not Impossibility to your Petitioner. That for a Privat man to bring a Great number of Persons to Justice for such Dissorders as first origenated under a Notion of Publick Utility Committed in a Time of General Dissorder and Confusion { 111 } while others who were alike Guilty were Exempt from Punishment by act of Government4 is a Burthen too Great and attended with too much Hazerd to be Effected by an Individual at this Time. That as it is Evident the Injuryes Your Petitioner has sustained is by a Detachment of the Spirit of Dissorder above mentioned the other Sufforers by which have ben Since Compensated. Your Petitioner thinks it an unhappiness and Misfortune peculer to him Selfe to be obliged Either to Sell [Sett?]down by his Losses or Go through Such an ardous [ . . . ][undertaking] to Repair them as appear more likely to render his Losses Double Such an undertaking as Even Government it Selfe has though[t] fit to Decline and Yet to be Taxed to the Compensation of others. That Notwithstanding your Petitioner has taken all possible pains to obtain the renewal of the obligations he Lost by the Riot by offering long Credit and Easey Payment, Yet the amount of the Sum that is neither paid nor renewed nor Can be Confided in to be paid renewed, or in aney wise made Good by the respective Debtors is £463/3/51/2 Exclusive of the Intrest on the same Since the Riot. A List whereof togather with the other articals of Loss Sustained by your Petitioner as above is herewith presented to Your Excellency and Honours.
Which Losses and Damages togather with the Exposed Scituation of Your Petitioner Your Petitioner Humbly Supplicats Your Ex[cel]le[nc]y and Honours to take under Your wise and Just Consideration, and that Your Excellency and Honours would be pleased to Compensate and make Good to Your Petitioner the Injureys he has Sustained from the Hands of those Riotus Persons as also that your Excellency and Honours would be pleased to Direct in Such wise with respect to any further Process against them, that the Intrest of your Petitioner may be Secured from any further Distruction at their Hands. All which Your Petitioner Humbly Submitts and Prays.
[signed] Richd. King
1. FC, in an unidentified hand, signed by King. NHi:Rufus King MSS. The chaotic punctuation of the MS has been left undisturbed. A petition from King was presented to the General Court on 20 Jan. 1768 and referred to a committee. No record of action on it has been found. Mass., House Jour., 1767–1768, 2d sess. The list King mentioned in the penultimate paragraph below has not been found. It probably resembled the “schedule” annexed to his writ, discussed in note 122 below.
2. The anonymous message addressed to King by the Scarborough “Suns of liburty” is printed as Doc. X below. That to Fitts was as follows: “Fits this Is to Give you notice that Wee are all ditirmand If you dont move off and Leave the Place We Will Sarve You as We dide king Cause we are ditirmand to destory him and all he hass. And Wee Give you 12 days to go of in and if you ant gone in that time you may Expect to be destroyed. Samuel oos.” NHi:Rufus King MSS.
3. Burbank was undoubtedly released when the indictment was not pressed. His subsequent incarceration in 1773 was on a body attachment in King's action of trespass. See note 262 below.
4. The reference is apparently to An Act for Granting Compensation to the Sufferers, and of Free and General Pardon, Indemnity and Oblivion to the Offenders in the Late Times, 6 Dec. 1766, 4 A&R 903. This Act, which was later disallowed by the Privy Council, compensated royal officials injured in Boston's Stamp Actriot in Aug. 1765, and extended amnesty for events through 1 May 1766. It contained a clause providing that it should be a good defense to any indictment for rioting and the like. Despite the disallowance, payments to the “sufferers” were made under the Act, and it probably was effective in other respects as well. See 4 A&R 931–945. The Act probably would not have protected King's tormentors, since it was not effective to pardon rioting, “wherein any burglaries, arsons, or thefts were committed against the properties of persons not compensated” by it. But it cannot have made the job of bringing the offenders to justice any easier. For JA's report of popular reaction to the idea of indemnification, see 1 JA, Diary and Autobiography323–326.
{ 112 }

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

Author: King, Richard
Date: 1771-07-02

King's Remonstrance1

Richd. Kings Remonstrance to the Superr. Ct. July. 1771

To The Honle. His Majesty's Justices of the Supr. Court of Judicature Court of Assize &c. Now Holden in the Countys of Cumberland and for the County of Cumberland and Lincolen
Richard King of Scarborough in the County of Cumberland Humbly remonstrates that by a riot in the night of the 19 of March AD 1766 His Dwilling House and waireHouse were broken up and a great number of his Notes and Bonds for money due and other papers of value were burnt or Carried off by the Rioters, Exclusive of other Damages, that altho' thredened by letter and otherwise that if he was the Cause of any warrants or Summonses being served on any Person or Persons on that acco[un]t he might depend upon it, his Cattle should be killed, his House, and Barns Burnt, and himsilfe Cut to pieces and burnt to ashes. That notwithstanding their many threats and Menaces Your Remonstrant persued the measuers directed by the then attorney General, upon which fourteen Persons were Indicted at the Supr. Court 1766. preparitory to the Supr. Court in 1767. Wittness were summoned and sum persons Indicted were taken, but by reason of a failour of Juriours from said lower County no new Indictments Could be found, nor the olde ones brot On Tryall. Your Remonstrant made the utmost Efforts again preparitory to the Supr. Court 1768. and Caused witnesses to be summoned who if they had appeard and Deposed the Truth must have proved those Guilty who were under Indictment and then before the Court, and ben the means of procuring new Indictments of those that Distroyed his farmHouse and burnt his Barn &c. The Honle. Court ordered a Warrant, and an officer was sent after them, who made return he could not find neither of them. So nothing further was don at that Court nor since til now, in this length of time sum persons have disclosed matters that did not appear before, and other Circumstances which Gave Incouragement to your Remonstrant to make a new attempt. Accordingly on Satterday last Your remonstrant having precured a new warrant for the Persons Indicted, percured Timothy Stuart, one of the Principel actors among them that were Indicted to be apprehended by one Abraham Lavit one of the Counstables of Scarborough. But the officer not being { 113 } sufficiantly on his Guard, suffered the said Timothy to make his Escape on his way to the Goal.2 The Loss sustained by Distruction of your remonstrants security for money Due (Exclusive of what has bin since in any wise paid or renewed) togather with the Intrest amounts to £743.0.10 Exclusive of all other matters, which upon the whole must Exceed £1000. LMy. [lawful money] Exclusive of the Great Pain to him Selfe, wife and Children, Trouble and Expence in Endiveouring to bring the Parpitrators to Justice and to hire mento Guard his House3 against their outrage agreeable to their threats while he was so Doing. Wherefore Your Remonstrant Humbly Supplicates Your Honours to take his Case under Consideration, and that Your Honours would be pleased to Take such Imediate measuers as may Tend to reduce his Distroyers to reason and open the way for his redress.

[salute] All which is Humbly Submitted by Your Honours Most Obedient, and most Humble Servant

[signed] Richd. King
1. FC, apparently in King's hand and signed by him. The docketing note on verso is printed here as a caption to the document. NHi:Rufus King MSS. It has not been determined whether this “Remonstrance” was ever submitted to the court. No action upon it appears in the Minute Books.
2. Documentation for this account is in the Suffolk Files. See the indictment, dated June 1766, in SF 87727. Although John Stewart's plea of Not Guilty, dated June term 1766, is on the verso of this document, the Minute Books of the Superior Court show that none of the offenders was ever actually tried. Min. Bks. 76, 87, 92, 99, SCJ Cumberland and Lincoln. Most of the warrants which King describes, including that for Timothy Stewart, with a return reporting his escape, are in SF 87726, 88530, 89145, 90305.
3. In a letter to King dated 18 May 1767, Col. Samuel Waldo, apparently commander of the Falmouth militia, regretfully informed him that if he wanted a military guard it would have to come from Scarborough, but suggested that if he was leery of entrusting his fortunes to his fellow townspeople, he might hire his own guards and ask the General Court to reimburse him. NHi:Rufus King MSS.

Docno: ADMS-05-01-02-0003-0002-0004

Author: Adams, John
Date: 1774-06

Writ of Review—Stewart et al. v. King1

Cumberland Superior Court, Falmouth, June 1774

To the Sheriff of our county of Cumberland his under-Sheriff or Deputy, Greeting.
We command You that You summon Richard King of Scarborough in our County of Cumberland Esqr. (if he may be found in your precinct) to appear before our Justices of our Superior Court of Judicature Court of Assize and general Goal delivery to be holden at Falmouth within said county of Cumberland and for the countys of Cumberland and Lincoln on the tuesday next after the fourth Tuesday of June next, then and there in our said court to answer unto { 114 } John Stewart Yeoman Jonathan Andrews Blacksmith, Amos Andrews Yeoman Timothy Stewart Yeoman, Samuel Stewart Yeoman, and Jonathan Andrews junr. Blacksmith all of said Scarborough In a plea of Review of a plea of Trespass commenced and prosecuted at an inferior court of common pleas held at said Falmouth on the last Tuesday of March seventeen hundred and seventy three by the said Richard against the said John Jonathan, Amos, Timothy, Samuel and Jonathan Andrews junr. and also against Jonathan Wingate Silas Burbank and Benjamin Carl in the words following, to wit, In a plea of Trespass for that the said John, Jonathan Andrews Amos Jonathan Wingate, Silas Timothy Samuel Jonathan Andrews junr. and Benjamin Carl at Scarborough aforesd. on the nineteenth day of March, AD 1766, in the nighttime with force and Arms broke and entered the said Richards house in said Scarborough wherein he and his family then dwelt and then and there with force as aforesaid broke and destroy'd seven of his glass windows of the value of seven pounds and cut and defaced the wainscott stair case within the said house of the value of six pounds bruised and ruin'd three dozen pewter plates and dishes of the plaintiffs of the value of four pounds ten shillings broke and destroy'd the plaintiffs stone earthen and brassware Kitchen chairs table and other household Utensils and furniture there found of the value of six pounds broke open and destroy'd the said Richard's desk in his said house of the value of four pounds, broke and entered the said Richard's shop near his said house, took and carried away from said house and shop and burnt and destroy'd divers deeds, notes of hand bonds and other papers of the said Richards a schedule whereof is to the writ annexed of the value of thirteen hundred ninety eight pounds three shillings and a penny half penny2 and put the said Richard and his family into great fear and distress and danger of their lives and for that3 the said John Jonathan Andrews Amos Jonathan Wingate Silas Timothy and Samuel Jonathan Andrews jnr. { 115 } and Benjamin Carl afterwards on the second day of March, AD 1767, at said Scarborough with force and arms cut down ruin'd and destroy'd another house of the said Richard in said Scarborough of the value of fifty pounds and afterwards upon the fourteenth day of May, AD 1767, at 3d. Scarborough, the said John, Jonathan Andrews Amos Jonathan Wingate, Silas, Timothy, Samuel Jonathan Andrews junr. and Benjamin Carl with force as aforesd. burnt and destroy'd the said Richards barn there seventy two feet in length and thirty two feet in width of the value of eighty five pounds and his shed adjoining the same barn of the value of fifteen pounds one load of English hay being in said barn of the value of fifty shillings two bushells of his Flax seed of the value of twelve shillings his hay Cart of the value of twenty four shillings twelve rods of his barnyard fence there of the value of four pounds, and took and carried away two sleds of the value of twenty four shillings each six ox yoaks of the value of thirty six shillings six hay forks of the value of twenty shillings four scythes of the value of twenty four shillings four sickles of the value of six shillings and ten rakes of the value of twelve shillings all the property of the 3d. Richard and divers other of his utensils of husbandry there found of the value of forty shillings and also took carried away and kill'd two of his calves there found of the value of thirty six shillings, and other enormities and wrongs did there at the several times aforesaid to the 3d. Richard against our peace and to the damages of the said Richard as he says the sum of two thousand pounds, at which 3d. inferiour Court Judgment was rendred that the 3d. John Stewart Jonathan Andrews Amos Andrews Jonathan Wingate, Silas Burbank, Timothy Stewart Samuel Stewart, Jonathan Andrews junr. and Benjamin Carl recover against the said Richard King cost of Suit;4 from which Judgment the 3d. Richard appealed to the 3d. Superiour Court of Judicature &c. held at said Falmouth on the Tuesday next after the fourth Tuesday of June last, when and where the 3d. Richard moved the Court that he might be allow'd to strike the names of Silas Burbank Jonathan Wingate and Benjamin Carle, out of the original writ, and it was granted;5 and their names was struck out accordingly, and the 3d. Silas Jonathan and Benjamin in the same court acknowledged themselves satisfied as to their costs { 116 } and Judgment of the same Court was rendred that the said Richard King recover against the said John Stewart, Jonathan Andrews Amos Andrews, Timothy Stewart Samuel Stewart and Jonathan Andrews junr. the sum of two hundred pounds lawfull money damage and costs taxed at twenty two pounds twelve shillings and a penny; which same Judgment the said plaintiffs in this writ of Review say is wrong and erroneous and that thereby they are damnified the Sum of two hundred and fifty pounds wherefore for reversing the same Judgment and recovering back from the said Richard King the 3d. Sum of two hundred pounds and the same cost and for recovering Judgment against him for cost of Courts they the plaintiffs in Review bring this Suit....6
And the said Richard King comes and defends &c.7 and Saith that the Said last mentioned Judgment is in nothing erroneous, Saving that it ought to have been for Two Thousand Pounds8 and thereof puts himself on the Country.
[signed] John Adams
[signed] And the said Plaintiffs in Review likewise.9James SullivanJohn Sullivan } their attorneys
1. SF 139642. In the hand of Nathaniel Hatch. Caption (“Province of the Massachusetts Bay.... George the third,” &c.) omitted.
2. The “schedule” lists fifty-four notes of hand, three bonds, eight deeds, five copies of executions and records of pending cases, one lease, and “many other papers which I cannot now ascertain but suffer for the want of in Defending myself against the Suits of many persons,” the whole totaling the amount alleged. The schedule also indicated, however, that of this sum £510 1s. 3 1/2d. in notes and bonds had been “paid or Secured to me by Several Debtors.” SF 139590.
3. In the margin of King's writ of review appears a notation that King's motion to strike the second and third counts of his declaration was granted with the defendants' consent. SF 139645. Thus the incidents of 2 March and 14 May 1767 were not in controversy on the trial in review, probably because King's proof was insufficient; on the first trial in the Superior Court in June 1773, the jury had found the defendants “not guilty” of the trespasses alleged in the second and third counts. Min. Bk. 99, SCJ Cumberland and Lincoln, June 1773, N–1.
4. Judgment in the Inferior Court was rendered on the verdict of a jury after pleas of the general issue by the several defendants. SF 139590.
5. As to this maneuver, designed to make these men competent as witnesses for King, see Doc. IV. The lists of witnesses in the files show that Wingate and Burbank gave depositions and testimony for King in June 1773. SF 139590. All three testified in June 1774. See Doc. XIII.
6. King's writ of review was substantially identical with this one, except in the relief sought, which was the recovery of an additional £1800, the remainder of the original ad damnum of £2000. SF 139645. (The teste and return of service are omitted.)
7. For the language used here, see p. 43, note 3822 above.
8. This assertion, perhaps analogous to a counterclaim, might well have been objectionable under ordinary pleading rules. It is obvious, however, that these rules were not observed closely in the rather special situation of the writ of review, which had no English equivalent, and formally raised only the single broad issue whether anything in the prior phases of the action had been erroneous. Since as a practical matter both this action against King and King's action seeking an increase of the judgment would be tried together, a pleading with such an exceptive clause avoided any inconsistency of position. A similar form was employed by the defendants in pleading to King's writ. SF 139645.
9. Both plea and joinder are in JA's hand, although the Sullivans signed the latter.

Docno: ADMS-05-01-02-0003-0002-0005

Author: Cushing, William
Date: 1773-06

Cushing's Report of the Argument1

Cumberland Superior Court, Falmouth, June 1773

Richard King v. Jno. Stewart & al
This was an action of trespass—and on motion of Mr. Bradbury attorney to plaintiff after issue joined—plaintiff was allowed by the Court to strike out the names of several of the Defendants in order that they might be witnesses for plaintiff—on payment of costs—1 { 117 } Wils. 89, Trials per pais 386, Str. 420, were cited.2 On the trial of the issue the plaintiff offered to prove, by comparison of hands that an anonymous letter which had been found posted on the plaintiff's door was written by Defendant—This kind of evidence was objected to by Sullivan for Defendants—but allowed by the Court as good in civil actions.
Oliver, CJ, Hutchinson, Ropes and Cushing, Justices
Vide Evans' translation of Pothier on obligation Append. 2d vol. No. XVI sec. 6c.3 8 Ves. 438 Egleton v. Kingston.4
1. Cushing Reports, fol. 4.
2. It was necessary for King to dismiss his action against those defendants whom he wished to have testify for him, not merely to dispose them favorably toward him, but in order to make them competent as witnesses. At common law, parties to an action could not testify. The authorities cited in the text were as follows:
Noke & Chiswell v. Ingham, 1 Wils. K.B. 89, 90, 95 Eng. Rep. 508, 509 (K.B. 1745): “Lee Ch. Justice: It is agreed on all hands, that in trespass against several, the plaintiff may enter a nolle prosequi [an abandonment of further prosecution] as to one, and that will not discharge the other.”
2 Duncomb, Trials Per Pais 386 (8th edn., 1766): “Trespass against several; after issue joined on motion, one of the defendants name was struck out, that he might be a witness for the plaintiff. 2 [i.e. 1] Siderf. 441 and the like done as to a person named in the simul cum [“together with,” i.e. the phrase linking defendants known and unknown], 1 Mod. 11.”
Bayly v. Raby et al., 1 Str. 420, 93 Eng. Rep. 608 (K.B. 1721): Motion to consolidate four separate declarations in trespass against four separate defendants denied, despite affidavit that the trespass, if any, was committed by all jointly. “The plaintiff may have the benefit of the other's evidence in his action against either, but this will be to deprive him of that.”
3. M. Pothier, A Treatise on the Law of Obligations or Contracts, 2:182–186 (London, transl. W. D. Evans, 1806). An essay by the translator on the English law of handwriting evidence. “[T]he practice of the law seems to be clearly settled, that the casual knowledge or belief of a person, who has once seen the witness write, and speaks from the effect of that incident upon his memory, in respect to the character of the writing, is admissible, and a sufficient foundation for reading the disputed paper; but that a direct comparison with the greatest possible number of authentic papers, indicating the similarity to the most obvious inspection, and confirmed by the most critical scrutiny, is wholly inadmissible.” Id. at 185. This and the citation in note 4note 23 below were obviously added, by someone unknown, at a date much later than 1773.
4. Eagleton & Coventry v. Kingston, 8 Ves. Jr. 438, 474, 32 Eng. Rep. 425, 438 (Ch. 1803), per Lord Eldon, C: “[T]ill very lately, I never heard of evidence in Westminster Hall of comparison of hand-writing by those, who had never seen the party write; though such evidence had been frequently received in the Ecclesiastical Court.”

Docno: ADMS-05-01-02-0003-0002-0006

Author: King, Richard
Recipient: Burbank, Silas
Date: 1773-05-31

King to Silas Burbank1

[addrLine] Mr. Burbank

[salute] Sir

I receved Yours of the 17th. Current, and a Second that appears { 118 } to have ben wrote Since. In your first You point out the Horrows of a Goal, and Compair Your present state of Confinement, To that which Succeeds a wicked life in this world unregreted, and unrepented of, with a verry Just Exception. If taken in a spiritul Sense that You are a Prisoner of Hope, Your Pathatic Complaint of being deprived of the Company of an agreeable wife, and the parental Duty You owe to your Innocent Children, is Sufficiant to move a Heart much less Serceptive of Humain Misery then mine. You Conclude with observing, the Time has ben, when our affections mutualy flowed in kindness towards Each other, But that now there is as remarkable a Coldness.
Now Sir as You have opened this Channel of Communication between us, I will Treat the Subject with that unreservedness of mind that I should be glad to have from You. If I shall herein Charge you wrongfully in any Part, I will (when that shall appear) not only aske Your Pardon, but Publickly Confess my Error.
You Justly observe, the Time has ben when there was a mutual flow of Affection between us. I Can only add, that on my part it was Sinceer. Let us now Enquire how the Change Came, and who was first in the Offence, was it not anough on Your part to make use of the law. To Palm The Cabinet wair on me, which our privat Confidence in Each other Should have obliged You to have look'd upon as Sent at Your own Risque.
But having Comminced your Action against me at Oct. Court 1765 in order to make up your own loss, out of the owner that had also lost the Vessell that Carried it: How then Could you think of Joyning in a Plan, and Find [Fiend] like Exerting Your Selfe in adding final Distruction to the remaining Interest of your Confessed old Friend. You now Complain of the Dismel Gloom of a Goal, wherein you are Surrounded, with Massy Barrs of Iron, and thereby deprived of the Peacefull and InExpressable Philicity of Family Connections. This Misfortune You point to me, as tho I was mercyless and Cruell, void of Natural Affection, and delighting in misery. As almighty God has made all men of one Blood, and Given them the Same perseptions of Pain and Pleasure, Love and hatered, life and Death Com back with me to the 18 of March 1766. Here view Your Selfe without the least Cause of affrunt; Engaging others on that and on the Succeding Day to meet at Your House on the night of the 19th. keeping that blackest part of the Designe a Secret from all Such who's humanity you sur• { 119 } spected would Shudder at so Dark a Sceene, Till you had Got them mett at your own House with you and other whoes minds were Proof against all Virtue. Behold Your Selfe using fair Speaches, and threats by Turns, to hold Those that discovered an unwillingness to Joyne in So Horrid an act of Ingratitude, and unjustness. But behold Still the most Horrid Part Consealed in the brest of you and a Select few, that were at the Bottom. In fine behold your Selfe now at the Head of a Banddity of Thieves and Robbers, under the Cover of night, determined to Carry Terror, and Turpitude unprevouked Destruction and Enrich Your selves out of the Spoiles of the Greatest Benefactor in Trade that Ever Dealt in the Place. To Robb and Plunder him of the verry means with which he was to discharge the Debt which he owed for what they and others had Eat, Drunk, wore, bought, and built with and this Too at a Time whin his late Loss would have Excited Pitty from one Enemy Towards another.
Here let the Sceene Change to the House of him whoes doors were allwais open, whoes open Heart had dealt out (tho' Greatly to his loss) as freely to the Necessities of the Poor, as to the Abilities of the Rich. Here behold a General Benifactor Sleeping in Perfect Security, not dreaming of Envy or Mallice, his bosom Frind upon his arm who's months with her at that Time Called for Tender usage, his Young Brood lodged around him. In this state awoaked out of sleep by the dashing in of his windows, behold him in Great amaze opening the Chamber door, Calling aloud to know the matter, his wife holding him by the arme, no humain voice in answer, Except a servant informing that his life was threatened In case he attempted his masters Relief. Here behold a murcyless hand Thorw a hatchet into the windo whence the voice of distress was heard which dashing the Glass about the Naked Bodys Scarce Miss'd their heads. Behold the Tenderer Sexes in untimly Time for flight, faultering, Sinking, Dieing, and the distress'd Husband Conveying her back to her Bead to Die there but being doubly armed with life, Each by Turn recaught the Electrical Fire. Open also your Ears to the Tender Cryes of his Childeren Crying, Father woant they kill me, Father Save me.
View this and much more also, not as an Ammaginary, but as a real Act, and Your selfe as a Principal actor in this, Original Tragedy. Then passby all that past between. Even Your threats uttered to myface Til we Com to the Night of the 14th. May 1767. Here Stop and view the Flaims. Consider well the Spirit that set them on Fire recolect the out Guards Planted there, and near my own Dwilling House also at the Same Time; hear and See a frish the Destress of a mother. { 120 } Espessuuly upon hering her outcries Eccoed by one find [fiend] to another in the Neighbouring bushes. Here again the Cries of helples Children, Intreeting their pairents to flee as Expecting Every momentto be Surounded in flaims, but flee wheather. Devowerers had Surrounded us, and were Yelling like finds of H—ll for their prey. Two fatted Calves did not appear to Suffize them. Take a Back Sight upon the whole. Look up to God, as looking upon us lay Your hand on Your brest, and Say Your Innocent of any part of the foregoing Charges, or that King has Treated you unjustly. In Your Second letter, you Say “You think the poor Deceased Captive Creaturs have little Sense of what is Past, and that for all that is past, to the Day Instent, the portions remaining to all are Equall.” I Chuse to leeve it to the Proper Profession to Instruct how Solomon and other Sacred writers are to be understood but without Intrudeing; I think this much may be Clearly asserted that vice only can make us Miserable in this life, that he that allowedly lives and Delights therein Can never be happy so long as his mind is So desposed and that on the Contrary the Virtous and well meaning Can never be Miserable. For the Truth of this we need only look into our Selves, and Enquire, whether vice Ever gave us True Pleasure, or Virtue Pain. The Same that we Sow, that shall we reap, and the Lord of the Harvest will Gather us accordingly.
1. FC, apparently in King's hand. Docketed in same and another hand. NHi:Rufus King MSS. This and the following documents indicate something of the mechanics by which Burbank's testimony was obtained.

Docno: ADMS-05-01-02-0003-0002-0007

Author: Burbank, Silas
Date: 1773-06-28

Burbank's Release1

28 June 1773

Whereas Richard King Esq. hath released me from Gaol where I have been sometime confined by having my body attached by a writ of Trespass in which the said Richard is Plaintiff, and John Stewart myself and others defendants2 at my request in consideration there• { 121 } of and of five shillings paid me by said Richard I do hereby release unto the said Richard all cause of action whatsoever I have or may have against the said Richard on account of having my body attached and imprisoned as aforesaid.
[signed] In witness whereof I have hereunto set my hand and Seal this twenty eighth day of June in the eleventh Year of his Majesty's Reign, An. Dom. 1773.
Test.
Theo. Parsons
[signed] Silas Burbank
1. In an unidentified hand; docketed by King: “Burbank's Release to Richd. King, Esq.”; signed by Burbank. NHi:Rufus King MSS. This document represents a release by Burbank of any rights against King for false imprisonment.
2. Burbank was taken and committed in accordance with King's writ on 12 March 1773. SF 139590. Although judgment in his favor was handed down atthe Inferior Court, March term 1773, the attachment apparently remained in force pending the appeal. By statute, execution on the Inferior Court judgment was stayed. The process in that court seems to have served also to compel appearance in the Superior Court, the defendant's protection being the bond which the appellant had to post. The statutory provision that no person imprisoned on mesne process was to remain in jail more than 30 days after the rising of the court to which the process was returnable unless his body had been taken in execution was thus apparently suspended by the stay of execution on appeal. See Act of 12 June 1701, §§8, 9, 11, 1 A&R 465–466.

Docno: ADMS-05-01-02-0003-0002-0008

Author: Burbank, Silas
Date: 1773-06-28

Deposition of Silas Burbank1

28 June 1773

I Silas Burbanks of lawful age testify and say, that in the spring of the Year 1766, a few days before the riot at Mr. Richard Kings dwelling house, I was at the house of Mr. John Stewart, and he was talking to me about said King; he asked me if he was not a bad man, and had not done as much hurt to the people here, as Bute had done to the people at home; and afterwards, the day before the riot at Mr. Kings house, I was again at said Stewart's house, when he talked with me about King, and told me he was a bad man; had done a great deal of hurt, had treated him very unrighteously; and that he had killed his Mare; that they were going to give him a rally; and the Mischief Mr. Stewart proposed should be done to Mr. King was, either to destroy him, or destroy his papers, or whip him, but I am not certain which of them, but am certain it was one of them: Stewart said it was a good thing, and would do King good, and make him a better man; he also encouraged me to go, told me I had better, and used arguments to persuade me to go. I then asked him if he was a going, but am not certain, whether he said he should go or not, but I very well remember he said, if he did not go, his sons should—He said it was the best thing that could be done, and urged me by all means to go; he also told me that King was a favourer of the Stamp Act. I have seen Stewart several times since the Riot, and when we were conversing about it, he always desired me to keep it a secret, and once told me, he would spend his life and fortune before anybody should be hurt by it.
I further testify and say, that the day before the Riot at Mr. King's house, I was talking with Amos Andrews near his house, when An• { 122 } drews asked me, if I had heard what they were going to do. I asked him what? He answered we are going to pay King a visit and take him down; don't you intend to go? You have a dispute with him, and you see how he<uses>trys to cheat you, and may judge by that, how he uses every body and dont you intend to show some resentment? He is a bad man, and will ruin us all, if he goes on at this rate; if something or other is not done with him, if he is not humbled, it is not worth while for any of us to live here; and he is hard hearted to the widow and orphan. I asked him who was going? He answered he was going, and all their people up their road; that every body almost was going; and that Stewart's family was going. I asked him if he should certainly go; he said he should certainly go, and gave me his word and promise over and over again, that he would go, for he said it must be done. I asked him what he proposed to do to King if he went. He answered, we propose to take him out and cut his ears off. I told him, that would not do, for it was monstrous; he then said we will take him out and whip him; He also talked with me about the Stamp Act, and said that King was a favourer of it, and had the Stamp papers in his house; and that it was probable if that Act took place, he would be Stamp Master for Scarborough. This argument, with a vast many others, he used to persuade me to join them, and be one of them, for says he, we have already agreed upon it. He also urged me very much to go with them; said it was the best thing that could be done and it was no Sin. After the riot, he told me he was very sorry he was not there, for he was prevented by a bad belly ach, but was a well wisher to it, and would be as faithful as if he had been there; and always since the Riot, he has been very urgent with me to keep the affair secret. I further say, the Evening Mr. King's farm house was cut down which was some time after the riot at Kings dwelling house when some persons were hanging up a dead colt before it, it was proposed to cut the house down, whilst Andrews was present, when somebody asked him if he would lend his axes; he said his axes were dull, but they might have them, and they lay on the hill before his door. I was also at Andrews's a day or two after the farm house was cut down, and asked him if he heard them, he said yes; I asked him if he was up, no replied he, I and my wife went to bed, and I will tell you something comical; we had a Molatto, who was a bed upstairs, and when they were cutting the house down, the Noise waked him, and he called to me to know what the noise was. What noise says I. A great noise, answers he, don't you hear it. O says I, a parcel of people are cutting down Brother Elijah Sellea's house. What, says he, that poor lame { 123 } man's house, I will get up and help him. No don't stir for your life says I, they will come and cut down our house, I expect, so don't stir for your life, for you will be killed.
I further testify and say, that the evening before said riot at Mr. Kings house, I was at Jonathan Andrews's shop. He asked me if I had heard what they were going to do with King. I asked him what? He said they were going to have a frolic with him, that it was a very good thing for King was a bad man, and he mentioned several bad things, that he said King had done; that it was absolutely necessary something should be done with him, he was grown so arbitrary and bad. He objected against hurting Mr. King's Interest, but proposed their taking him out and whipping him; and he encouraged the thing very much. I asked him if he was going: he said he did not know, but he believed his son would. Since the riot, he has been very urgent with me to keep the affair secret. I further testify and say, that Joseph Stewart, Timothy Stewart, Samuel Stewart, and Jonathan Andrews junr. were present aiding and assisting at the riot at Mr. Kings dwelling house.
[signed] Silas Burbanks
[Verification omitted.]
The Deponent adds, It was in the night when I saw the person whom I supposed to be Amos Andrews, but I cannot say it was he otherwise then as I judged it to be him from the voice and appearance of the person and his Dress.
[signed] Att. Sam Winthrop Cler.2
Sullivan expressly allows that the Witnesses swear that Amos Andrews encouraged them to mob King, which includes every supposable species of Trespass.3
1. 28 June 1773, SF 139645. Signed by the deponent.
2. The preceding paragraph was added in court at the trial.
3. This was apparently a stipulation between counsel designed to avoid a time-consuming semantic battle. It appears in an unidentified hand on a separate scrap of paper which was apparently at one time attached to the deposition. SF 139645.

Docno: ADMS-05-01-02-0003-0002-0009

Author: Newbegin, John
Date: 1773-01-19
Date: 1774-07-09

Deposition of John Newbegin1

19 January 1773

I John Newbegin of Lawful Age testify and say that the Evening of the 18th Day of March 1766 Silas Burbanks spake to me and told me a number of People were to meet at his House next Evening and { 124 } were going to take a walk, that he had wanted to see me a good while and ask'd me if I would come. I promised I would and accordingly I did; Timothy Stuart, Samuel Stuart, Jonathan Andrews Jnr. with several others met there the Evening of the 19th of said Month and the said Silas was present, it was then proposed by some of the Company to go down to Mr. Richard Kings to punish his Body (because they said he had been a bad Man, destroy'd the poor and taken away Peoples Estates) which was agreed to by the above named Persons and about nine oClock, (I judge it was) they set out I went with them as far as the Road against his House but did not go out of the Road. The Reason I did not was because I found by their talk they were going to carry Matters further than I expected, but the said Silas Burbank, and Timothy Stuart, Samuel Stuart Jonathan Andrews Jur. with others go into the House and Shop as they told me afterwards and were all active in breaking open the House and Shop and doing the Mischief that was done, we all return'd to said Burbanks and staid there an Hour or more; there I saw several of the said Richard Kings Notes of Hand which the said Silas either read or delivered to some of the Company to read and then they were thrown into the Fire and burnt up, one by one as they were read. Among others I remember a Note against Nathl. Milliken two or three Notes against some of the Stuarts either the Father or Sons or both all payable to said Richard, and there were among other Papers said Burbanks and some of the others shewed which were brought from Mr. Kings—Burbanks said they broke open Mr. Kings Desk to get his Papers and some or other of the Company mentioned destroying the Pewter and hacking the Walls of the House. The breaking the Windows I heard; they made a very great Noise breaking in and doing the mischief, but said but little. Further I say that we waited some time before we went to Mr. Kings for John Stuart the Father of the above named Stuarts, Amos Andrews and Jonathan Andrews, some of the Company saying they had promissed to come, and Amos Andrews afterwards told me he designed to, and should, have been there but he was not well. I have heard the said John Stuart, Amos Andrews, and Jonathan Andrews often say since that they were very glad the Thing was done, and let what would come they would bear their part of the Cost that might arise, and from frequent conversation with them, I <understood> clearly perceived they were knowing and advising to the said Riot before it was committed. And I know they three did contribute Money to get Burbanks out of Gaol at York where he was comitted for an Offence in rescuing some Oxen from Benja. Hooper an Officer, and the Reason they paid { 125 } for him was for fear he should turn Kings Evidence2 if he could not get out any other Way. The said John Stuart, Amos Andrews and Jonathan Andrews always appeared as much concern'd about being discover'd as the others.
[signed] John Newbegin
[Verification omitted.]
And the said Newbegin being asked if he saw Amos Andrews pay any money to get Burbank out of Gaol, answers that he did not, but that he went to Amos Andrews and asked him to pay it, and said Amos say'd he had not the money then but he would get it and pay it shortly.—and some time afterwards said Andrews told him he had paid it.
[signed] Att. Sam Winthrop Cler.
1. 19 Jan. 1773, SF 139645. Signed by the deponent. Note that this deposition and the one that follows were also “Sworn in Court” at the action of review in July 1774, indicating that the deponent took the stand and reaffirmed the substance of his testimony.
2. Presumably this refers to the Crown and not to the plaintiff.

Docno: ADMS-05-01-02-0003-0002-0010

Author: Wingate, Jonathan
Date: 1773-06-16

Deposition of Jonathan Wingate1

16 June 1773

I Jonathan Wingate of lawful age testify and say that about eight or ten days before Mr. Richard Kings house and shop were broken open in March 1766 I was in a Shoemaker's shop belonging to one Hodgdon not thirty rods from my own house when Amos Andrews came into said shop and soon of his own motion began to discourse about the mobbing and riots that had lately happened in several parts of the province and then said the Mr. Richard King was reported to be a very bad man, took all advantages of people, was a near neighbour to him and he had found him very troublesome and he thought it would be a good scheme to mob him, and that it would do him good that such a thing had been talked of for some time in their road and he would join in it and he asked me if I would too; some days after this I was going by his door upon my private business. Seeing him standing at his door I stopped and we renewed the discourse on the same subject; which of us then began it I don't remember; but he then said it was a very good thing to pay Mr. King a visit and to mob him; that he might be made a better man by it, and said he would go, and again asked me if I would go too; he also desired me to speak to Mr. John Stewart to ask his advice about it as I was then to go by his house about my business I accordingly went into Mr. Stewart's house and coming out of it I met him coming in I then related to him what had { 126 } passed between Mr. Andrews and me about Mobbing Mr. King as aforesaid; and that Mr. Andrews had desired me to talk with him about it; and I then asked him whether he thought it was best to do it; to which he replied with earnestness yes by all means; which I think he repeated. In my way home from Mr. Amos Andrews to Mr. Stewarts I called at Jonathan Andrews' Shop with whom I conversed on the same subject but do not remember which of us began the conversation; he said it would be a good thing to pay Mr. King a visit and that he might be made a better man by it. I have frequently conversed with the above three persons about the riot at Mr. King's house, since, and they have frequently expressed their approbation of and satisfaction in what had been done; and said Stewart and Amos Andrews declared they would stand by it and every one would be a fool that would not and from conversation with said Jonathan I have no doubt but he was of the same mind. Said Stewart and Amos Andrews have to my Knowledge used their endeavours by persuasions to prevent any persons from being witnesses for Mr. King and making discovery of any persons concerned and declared that nothing would be too bad for any one that should. And Amos Andrews told me he was to be and should have been present himself at the Riot, but was prevented by the Colic or the Belly Ach.
[signed] Jona. Wingate
[Verification omitted.]
[signed] Att. Sam Winthrop Cler.
1. 16 June 1773. SF 139645. Signed by the deponent.

Docno: ADMS-05-01-02-0003-0002-0011

Author: Stewart, John
Recipient: King, Richard
Date: 1766-04

Threatening Letter Sent to King1

ca. April 1766

In Considiration whar of a number of the Suns of liburty have Shun a mordrit resment [i.e. resentment] for the repeted abus which they have reseved for many yers past Do herby hartily Signyfy to the Said Riched. King that in Cas the Said riched or any Other parson Within the Couty should us greet or menthen or be insterimental of any Warants or Summen's to be Sarvd on any Pasen or Pasens he ma Depend onit that he not onley will have houses and barnes burnt and Consumed but him Self Cut in Peses and burnt To Ashes we also think it best for him to Submit to Provadences, and behave beter for the futer and think him Self wel yoused.2
1. The original, on which the handwriting test was conducted, is in SF 139590, marked in another hand: “Produced by Mr. King.” For the dating, see Doc. II.
2. Stewart apparently introduced evidence to discredit this document, because SF 139590 contains a sample of his handwriting marked, in another hand, “Produced by Mr. Stuart.”
{ [facing 126] } { [facing 127] }
{ 127 }

Docno: ADMS-05-01-02-0003-0002-0012

Author: King, Richard
Date: 1774-05-27

King's Offer of Settlement1

27 May 1774

Richard King To those Imediately Consirned in his action of review against them Depending &c. and any others that the matter of that action may Consern
I am Sensable that when a man has Entered the field in order to do him Selfe Justice against those from whom he has receved an Injury then To offer Terms to his adversary is often Constered a weakness of mind, or want of abillity, notwithstand[ing] its being hild fourth in the highest authority as a Duty. But well knowing that you must be Sensable that the Witnesses produced on the former Tryall are produced again (if no other) and that their Evidence alone would have ben Sufficiant in point of Proof, Even had not a duty of the [highest?] Authority Indused Two of you to make a Confession (partial as it was) Sufficiant for my purpous.—Matters standing thus I think it Safe Honourable and frindly to acquaint you that I now stand ready to accept of a much less Sum then the damages and Charges I have sustained amounts to rather then put my Selfe to further Cost to Effect the future [ . . . ] of [ . . . ] and that upon proper Security Given for such Sum as may be agreed on. Time also shall be given upon simple Intrest for the payment thereof; If I have no answer within Seven days I shall Take it for granted you Treat this as a waist paper, and hold my Selfe at liberty to do the Same. Yours,
[signed] Richd. King
1. FC, in King's hand and signed by him. NHi:Rufus King MSS. Perhaps in response to this appeal, the three Stewarts defaulted. Min. Bk. 99, SCJ Cumberland and Lincoln, June 1774, N–4, N–6. See the beginning of Doc. XIII below. See also note 3 above.

Docno: ADMS-05-01-02-0003-0002-0013

Author: Sayward, Jonathan
Date: 1774-06-29

Deposition of Jonathan Sayward1

29 June 1774

Jonathan Sayward of York in Said County of York, Esqr. Testifys and Says that He very well knew Josiah Beal who <lately> some years Since was an Inhabitant of the Town of York, but now if liveing re• { 128 } sides in some part of Novaskhotia Government as the Deponent Supposes That he was in poor circumstances with respect to Substance when he left York, which is 8 or 10 year ago, and He has never heard that He said Beal has since his remove from York mended his Worldly circumstances.
[signed] Jonathan Sayward
Querys put by Mr. King,
Do you Know that Josiah Beal has now any Estate Real or personal in the Town of York?
Answer. The deponent says He does not Know that He Has, any, or that He has not.
Have you heard that said Beal has a grant of two Thousand acres of land in Novascotia Government?2
Answer The Deponent has no remembrance that he has ever heard of such a Grant of land to said Beal.
[Verification omitted.]
1. York, 29 June 1774, SF 139645. In a clerk's hand, signed by Sayward. Presumably “Deacon” Jonathan Sayward, a loyalist sympathizer, who retained his power in the community after the Revolution. See 1 Adams Family Correspondence111 note. Sayward had earlier refused an offer of preferment for fear of the Sons of Liberty; see Sayward to Thomas Hutchinson, 22 Aug. 1769, 26 Mass. Arch. 328.
2. King seems to have been trying to bring out that Beal had been bribed by the defendants to leave the Province. Beal was probably one of the rioters; his note of hand for £139/12/1 had been among those destroyed. SF 139590.

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, 351, 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 458 above. But in Gilbert, Evidence 255 (2d edn., 1760), the passage is reprinted without change.
20. See note 469 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 6629 above.
31. Compare with the argument in Rex v. Richardson, No. 59.

Docno: ADMS-05-01-02-0003-0002-0015

Author: Adams, John
Recipient: Adams, Abigail
Date: 1774-07-07

John Adams to Abigail Adams1

Falmouth, 7 July 1774

I am engaged in a famous Cause: The Cause of King, of Scarborough vs. a Mob, that broke into his House, and rifled his Papers, and terrifyed him, his Wife, Children and Servants in the Night. The Terror, and Distress, the Distraction and Horror of this Family cannot be described by Words or painted upon Canvass. It is enough to move a Statue, to melt an Heart of Stone, to read the Story. A Mind susceptible of the Feelings of Humanity, an Heart which can be touch'd with Sensibi[li]ty for human Misery and Wretchedness, must reluct, must burn with Resentment and Indignation, at such outragious Injuries. These private Mobs, I do and will detest. If Popular Commotions can be justifyed, in Opposition to Attacks upon the Constitution, it can be only when Fundamentals are invaded, nor then unless for absolute Necessity and with great Caution. But these Tarrings and Featherings, these breaking open Houses by rude and insolent Rabbles, in Resentment for private Wrongs or in pursuance of private Prejudices and Passions, must be discountenanced, cannot be even excused upon any Principle which can be entertained by a good Citizen—a worthy Member of Society.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/