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

Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0008-0002-0006

Author: Adams, John
Date: 1769-06

Adams' Minutes of the Trial1

Special Court of Admiralty, Boston, June 1769

Mr. Fitch.
About the Time of the Blow—the 2d Pistol was fired.
Commission from Commissioners.
Instructions.
Witnesses.
Peter Bowen. I have seen all the Prisoners on Board the Brigg Pit Packet on the 22d. April last. In the Fore Peek. I knew Lt. Henry Gibson Panton, lately deceased. He was Lt. of the Rose Man of War. He was on Board the Brigg Pit Packet when I saw those Men.
Mr. Panton went on Board, and I with him. We enquird for the Master, who proved to be the Person we spoke to. Master, Mr. Panton and I went down in the Cabin. When below Mr. Panton enquired from where the Brig came? Master made answer from Calais [Cadiz?] bound to Marblehead. Mr. Panton then asked him for his Bills of Lading, clearance, and other Papers. Master answerd he had no Papers except a Bill of Health which he produced. Next Mr. Panton asked how many Men he had on Board? Master answerd 6 before the Mast besides himself and Mate. He then asked for his Log Book? Master produced it. Mr. Panton desired the Hatchways and scuttles2might be opend, and he would send his People down to search for uncustomd Goods or to that Purpose. Master said it should be done. Mr. Panton and I went upon Deck leaving the Master in the Cabin. Mr. Panton desired the Mate to send all his Hands aft. At the same time orderd the Roses People to go below to search. The Mate said he would send what Hands there was aft. Mr. Panton said he must send 'em all. Mate said he could not send 'em all aft but he would go and call them. Mate went forward. Mr. Panton orderd me to go with him. Mate called the People, but none of them answerd, of which the Mate went aft and informed Mr. Panton.3Mr. Panton said We must search for them. Lights were got. Mr. Panton orderd me with 2 of the Boats Crew to search in the main hold for the Men. We searched. We found nor heard none. I came out of the main Hold and went forward. Gibson, one of the Boats Crew said to me theres a Scuttle, pointing to one be• { 294 } fore him. We orderd him and Churchill another of the Boats Crew, to unlay. Churchill taking up the Scuttle, called out “Here they are,” and desired the Men he saw to come up. Briggs People swore they would not, meaning those in the fore Peek, and that the first Man that dared to approach em, they would cut his Limbs off. Which of em said this I cant tell. They all spoke to that Purpose—at the same Time shewing a Hatched [Hatchet,] Harpoon, a Musquet and a Fish Gigg. I then said, the Lt. wanted to see them and desired em the Prisoners to come upon deck. They swore they would not. I informed Mr. Panton of what happend. Mr. Panton, hearing it, went forward. I went with him. Mr. Panton mildly desird the Briggs People the Prisoners to come out— which they refused to do, swearing they would die in the Hold before they would suffer themselves to be impressed. Mr. Panton then said he wanted to search the Hold, and asked them to let him come down where they were. They repeated to him what they had threatened to me and shew him their Weapons. Mr. Panton desired a 2d. Time that they would come out, adding if they persisted in refusing he must oblige them. One and all of them said to Mr. Panton if he brought any Arms against them, he should be their Mark and they would put his Lamp out first. Mr. Panton ordered the Roses Boat to be manned and sent Mr. Stanhope aboard the Rose for Assistance, which I did. I returned to Mr. Panton, and found him talking with the Prisoners, endeavoring to perswade them to come out, explaining the folly of being obstinate. The Prisoners said several Times in my hearing, if there were 50 men armd they would not be taken, and told Mr. Panton if he had any Regard for his own Life, he would let them pass. He said it was his Duty and he could not do it. They said they knew he was Lt. and knew his orders, and desird them again to let them pass, swearing and repeating their Threats against him particularly. Mr. Panton had a Candle in his Hand, the Place being very dark, which he gave to one of the Prisoners. Desird they would let him see what sort of a Place they were in. One of em took the Candle and lighted it about where they stood. Mr. Panton said He could not see what sort of a Place it was, and wanted to go down. They said he should not go down, and if he attempted it they would shoot him, and Pierce Fenning presented the Musquet and said it was loaded with sluggs and primed. Then returned the Candle. Mr. Panton Aye! will you shoot me? In a joking, chearfull Manner, added, I will take a Pinch of Snuff first, and ordered me to go and see if the Boat was come back. I informd him the Boat was just returnd. Mr. Peacock, Mr. Stanhope, Forbes the Master at Arms, and the Boats Crew. They all came below. { 295 } Mr. Panton asked the Prisoners if they would surrender. They said they would not. Mr. Panton orderd Mr. Peacock and the Boats Crew to go below in the main hold, and open the Bulkhed where the Prisoners were. As soon as the Crew began to work upon the Bulk head, the Prisoners all of em at different Times said they would shoot the first Man that made a Hole. One of em, which I cant say, advised the others to shoot the Lt. first and divide themselves, 2 to defend the Scuttle and one the Bulk head. One of those at the Scuttle presented a Musquet, the other a Fish gig. One from within called out fire. Mr. Panton and I having our swords drawn, I with my sword struck the Musquet out of its Direction at Mr. Panton. Mr. Panton came over towards me and orderd the Scuttle to be laid down, which Woodgate one of the Boats Crew did and stood upon it, to prevent their Doing any Mischief that Way. Mr. Panton and I went below to see what Mr. Peacock and the Crew had done there. The Master att Arms had made an opening with an Iron Crow in the Bulkhead, and having made a small one, one from within presented a Musquet thro it, at him, <threatening> to the Master at Arms, threatning to shoot him. When we went below the Roses People had seperated themselves, at each End of the Bulk head. Mr. Panton went to the starboard side, where Mr. Peacock, and some of the Crew were. I went to the Larbord side where Forbes, Silley and Sinclair were. The Man who presented his Musquet at Forbes, went over to the other side, upon which Forbes took up his Crow and broke off a large Plank, and then gave the Iron Crow to Sinclair and took up his <gun> Pistol. One within presented a Musquet at Sinclair, which he snapped 3 times, the others calling out to fire damning the Peice for not going off. Silley got hold of the Musquet, but by himself could not keep it—those within drawing it from him. Then Silley went to Mr. Pantons side. Almost immediately after I heard the Report of a Pistol which Silley at that time said was fired by him, without Ball at the Man who threatned the Lt. so hard, who the Man was I cant tell, being on the other side. Mr. Panton, all this time, frequently begging of them to surrender or he must clear his Way to them. Some of them again said they would shoot Mr. Panton first. And Forbes the Master at Arms <afterwards> next, before they would be taken. Upon Hearing the Report of a 2d Pistoll I turned about and saw Mr. Panton had been wounded in the Throat. I did not see the Harpoon. I saw the shape of the Harpoon upon the Throat—and [he] had fird a Pistol as I then thot, at the receiving of that Wound. Mr. Peacock was with him, and Ransford one of the Boats Crew endeavouring to stop the Effusion of Blood with their Hankerchiefs. Then went on deck. With Help of 2 { 296 } Men of the Boats Crew, I carried Mr. Panton to the Briggs Cabbin, where he expird in less than 2 <Minutes> Hours. I believe the Wound I saw was the Occasion of his Death.
Qu. by <Mr. Fitch> Mr. Trail.4 Did Mr. Panton declare he wanted to search for uncustomd Goods, when the Candle was handed down.— He did not at that Time.
Q. by me. Do you know what orders Mr. Panton had before he left the Rose, and by whom given.—No.
Q. Did Mr. Panton ask the Master if he had any favour5 for any of his Crew and if he had he would not take him.—No.
Q. Did you hear Mr. Panton say he did not intend to have taken more than 2, but as they had hid he would take all 4.—He did not tell the Master so, but he told the Prisoners so while the Boat was gone aboard the Rose.
Q. Did Mr. Panton perswade the Men to go on board the Man of War.—He told em they should have good Usage if they would go.
Q. Did he say, after the Candle was moved about did [he] not say he was satisfyd there was no uncustomd Goods there. No.
Q. What arms had Mr. Panton and his Party, when they went first on board.—No Body but Mr. Panton had any when they first went on board, and he only a sword.
Q. What Arms were brot on bord the Brigg by the Boat, when she came the 2d. time?—Cutlasses, Pistolls and Musquets—how many I cant say.
Q. Any of Mr. Pantons Party used any threatning Expressions to the Prisoners, and what. They said if they hurt any of em with their Weapons they would fire upon them. This was before the first Pistol.
Q. Any of Mr. Pantons Party presented their Pistolls at the Prisoners, or made any Rushes at them with their swords or Hangers before the fatal Blow was given.—They kept their Pistals in their Hands, but the Men had no swords, and none made any Pushes.
Q. Had all the Boats Crew Pistols.—I cant say that. The Lt, 2 Midshipmen, the first Time, there were more than the Boats Crew [the] second Time. Boats Crew 7. 2 Midshipmen. 4 more might come the 2d. Time. <About> 10 the first Time.
Q. Were all the Persons from the Man of War below.—Not all the Time I believe. They were about the ship.
Q. Did not the Prisoners often say they did not want to hurt him or { 297 } his Men, they only wanted their own Liberty'?—Yes. I dont know that I heard 'em more than once.
Q. Whether they beggd and pleaded that the Lt. would let 'em alone.—Yes.
Q. When the Prisoners said they would die before they would be pressed, did the Lt. tell 'em he did not want to impress 'em, but only wanted to look for uncustomed Goods.—No.
Q. Did the Lt. ever tell em he did not want to impress them?—No never in my Hearing.
Q. Was the Opening in the Bulkhead such, that the Lt. might see into the Forepeak, whether there was uncustomed Goods there or not.—I dont know.
Q. Did you hear the Prisoners say to Lt. Panton they had nothing against his searching if he would let them alone.—No.
Q. Did they take the Candle in order to shew him there was none goods.6
Q. Whether the Prisoners took the Candle from the Lt. and moved it about, that he might see there was no Goods there?—Lt. desird them to take it that he might see what sort of Place they were in.
Q. Lt. said he could not see and wanted to come down.
Q. by Mr. Fitch, whether the Hold was not so full of Cargo that they could not stand upright.—In the main hold we were obligd to set down on the Salt. I was never in the forepeak.
Q. by <Mr. Auch> Judge Auchmuty. How long between the two Pistols.—I cant tell it might be a Quarter of Hour more or less. I cant tell.
Q. by Gov. Bernard. Do you know which Prisoner gave the Wound? —No.7
{ 298 }
Mr. Henry Stanhope. Midshipman cozn. [cousin] of E[arl of] Chesterfield.8
{ 299 }
Mr. Panton was Lt. of the Rose Man of War. Knows the Prisoners, saw em 22d. April last on board the Pit Packett. I went on Board the Brigg, with Mr. Panton. The Mate threw a Rope to the Boat. Lt. enquird for Master who was the Person he spoke to. We went down into the Cabin with him. Panton, Bowen and I. When below, Lt. demanded of the Master the Bills of Lading and Clearance. He informd he had none but Bills of Health. Mr. Panton then asked for his Log Book which he produced. He then asked how many Hands he had on Board. He anserd 6 before the Mast, besides himself and Mate. Lt. went upon Deck, the Master came up a little after. Lt. told the Master he must let his Men search for prohibited Goods, which the Master readily comply'd with replying “very well.” Lt. sent Mr. Bowen with two of the Boats Crew to search the Hold.9 Mr. Bowen came up and related what had happend. Lt. orderd me to stay upon deck and look after the Roses Boat. Presently Mr. Bowen came up and told me it was Mr. Pantons orders, that I should go on board for assistance. I went with 4 of the Boats Crew, and acquainted the Captn. with what had happend. Returnd with Mr. Peacock, and Forbes the Master at Arms and others I cant recollect who, with Arms, Cutlasses, Pistolls, and Musketts. On my Return I know but little of what happd after. When Mr. Bowen came up, he said there were Men aboard who swore the first Man approached them, they would kill.
{ 300 }
Q. by me. Was the Lts. order to Mr. Bowen and 2 of the Boats Crew to search the Hold for Men or for prohibited Goods.—I cant say. He told em to search the Hold for what Purpose I know not.
Q. by Mr. Fitch. Was the orders to search presently after he told the Master he must search for Goods.—In a short time after, but the orders were given on deck. What was said to the Master was in the Cabin.10
Mr. William Peacock.
Mr. Panton was Lt. of the Rose. I knew all the Prisoners aboard the Pitt Packet 22 last April. At my first Arrival on board the Brigg, I enquird of the Mate where Mr. Panton was. He said down in the fore hatchway. I went down directly followd by the Boats Crew. I enquird the Cause of the Disturbance. He told me that [despite] all the Arguments he could make use of, the Briggs People, 4 in Number, were down the fore Peak, and said they were resolved to die, sooner than be pressed on Board a Man of War. Mr. Panton then orderd me down the Main hold, with the Boats Crew, to force down a bulk head, which Parted the main from the forehold.
I went down directly, and orderd the People to break down the bulk head, which they began. The Brigs People the Prisoners from within threatned to kill the first Person they saw. Upon a Holes being made by our People in the Bulkhead, they presented a Piece thro that hole and snapped it 3 different times. The People in the mean time breaking the Bulk head down. So that in a little time I could discern 4 Persons differently armed, with Gun, fish Gig, Ax and Harpoon, still struggling to hurt our People as much as lay in their Power. Mr. Panton then came down, and orderd the People to desist from breaking the Bulkhead down, till he had spoke to those within, the Prisoners. He represented to em the folly of persisting vs. a superiour Number, acquainting em with the Impossibility of their Escape and promising { 301 } them good Usage if they would come out voluntarily. They told him they would not, and that they knew him to be a Lt., that the Men acted by his orders, and that the first Man that offerd to touch the Bulkhead they would do for him (meaning Mr. Panton). One of our Men, then hearing this threat, <snapped> fired a Pistol at the Man who told Mr. Panton so, loaden with Powder only, which must be true, as it only scorchd his Upper Lip and made it bleed, in order to intimidate him as the Man declard. James Silley the Man. The Man Corbit said to Mr. Panton, see what one of your Men has done pointing to his Lip. Lt. made answer, it was not done by his Order, when <you> He meaning Corbit, came on board the Rose he would shew him the Man that did it. In order as I suppose to get satisfaction. Lt. then askd them if they would come out and promisd them good Usage again. They said they would not, and that the first Person that offerd to approach them they would kill him. Michael Corbit was the chief Speaker, and said this in Particular. What he said the rest generally joind in, and assented to Lt. then gave new orders, to break down the Bulk head, which our People did as well as they could being interrupted by the Prisoners. Immediately after, Mr. Panton gave orders to stop a second time, and askd them if they would come out again. They said No. Lt. then askd one of 'em, to lend him his Ax that he might beat the Bulk head down the sooner, in a Joking manner. He within [answered] he'd lend it to scalp him. Lt. then orderd [us] to break down the Bulkhead. Which we were just going about, when Corbit the Prisoner at the Bar, struck at Mr. Panton with his Harpoon. Mr. Panton immediately said after the stroke, Peacock “the Rascall has stabbed me, thro the Jugular Vein.” I immediately fired my Pistol at the Person who wounded him, who was Corbit. I saw his Blood spout out amazingly before I fired my Pistol.
Q. by the Govr. In what Posture was Mr. Panton?—He was sitting on the salt opposite to Corbit and was not any Ways attempting to force an Entry.
Q. by Commodore Hood.11 I distinguishd Corbett, by the Blood on his Face.
When Silley fired the Pistol, Lt. took the Pistol from him and gave orders that no one should fire, without his orders.
Q. by Lt. Govr. Did the Prisoners discover that they heard these orders.—I did not see any Difference in their Behaviour. I cant tell whether they heard. There was a Noise, I was quite close to him.
{ 302 }
Q. by J[udge] Auch[muty]. How long between the 2 Pist[ols]—1/2 an hour I am sure it was.
Q. by Gov. B[ernard]. Did Mr. Panton ever give orders that his Men should fire at the Prisoners?—No sir. Never.
Q. by me. What Number of Men and what Arms.—A. 8 came with me and Mr. Stanhope. We brought 2 Musquetts, 4 Pistolls, and 4 Cutlaces.
Q. by me. What Threats were used by any of the Lts. Party, to the Prisoners?—The firing of the Pistol, and damning one another, but no other Threats that I heard. Mr. Panton might say they had better come out by [fair?] Means.
Q. Did you draw up your first Deposition Yourself?
Q. by J[udge] Auch[muty]. Have you any Doubt upon your Mind but that he intended to impress the People, or not?—No sir.
Q. by Lt. Govr. Whether the other 2 Men were impressd.—They were carried on board the Rose, but immediately dischargd.
Q. Did you hear the Prisoners say to Lt. they did not want to hurt him or his Men?—I heard Corbit say to Mr. Panton see here what is done? What Right has your Men to do this.
Q. Did you hear the Prisoners or any of 'em say to Lt. or any of his Party, I can fly from you no further, I must defend myself.—They said they were resolved to defend themselves.
Q. Did any of the Prisoners say they were no Deserters, and Lt. could have no orders to impress them in time of Peace.—No. Not as I heard.12
{ 303 }
Forbes Master at Arms.
I knew Lt. Panton very well. I know all the Prisoners very well, saw 'em first on Board the Pitt Packet belonging to Marblehead.
I was called and orderd to go aboard the Brigg to Mr. Pantons Assistance, which I did. I walked forward to the starboard side of the forecastle. I heard one of the Briggs Crew, call out from below, “come on you Dogs, here we are.” I took off my Coat and threw it upon the forecastle, then went down below, one of the Boats Crew with me with a Light to shew me the Bulkhead, which I saw by the Light. I laid my Hand upon it. I said there was nothing to be done [without] an Iron Crow. I went up the main Hatchway to look [for] one. I met the Lt. He askd me where I was going. I told him I was going to look for an Iron Crow. I turnd aft and found one, and carried it down to break open the Bulkhead by Mr. Pantons orders. Lt. at the same time told me, they were well stowed forward. I gave 2 Strokes at the Bulk head with the Crow. One of the Crew, which the rest calld Corbit, by his Voice I judge, said that was all they wanted. 5 or 6 Blows made a Hole in the Bulk head so as We could see them and they us. Lt. crawld along forward. As soon as the Prisoners see him, they in general threatned him with death. And one of em whom the rest calld Corbit said Mr. Lt. I will kill you first. And you may be sure of death if you dont go about your Business. And at the same Time presented a Musquet at Mr. Panton. Others of the Prisoners within presentd fish Gig, Harpoon and Ax at the Lt., without the least Abuse from that Gent. the Lt. I seeing em present their Weapons, towards the Lt., I was afraid they would kill him. I call'd out to 'em, and desird em not to point their Weapons to kill so good a Gentleman as what that was for he { 304 } meant them no harm. And if you do not leave off pointing your Weapons at him I will fire among you, which by a Rally I made upon them I drew them to my side and I frequently presented my Pistoll to 'em <to>[as] it is proper a Man should preserve his own Life. One of the Prisoners, the rest called Ryan, was in the Larbord Wing with a fish Gig in his Hand. He hove it at me. The length of his Arms, not doing the Ex[ecutio]n they would have him, Corbit cryd out kill the Buger, and accused him of Cowardice for not doing it. Corbit ran to the Larboard side where he Ryan was and catchd the staff in his Hand. And he took hold of the staff and the Grain came off.13 Upon Corbits return to the other side, he took a Musquet from another, and snapped it at one of the Boats Crew 3 times, then went to his own Quarter again. The Opening I made was so big that the wounded Man came out. It was all down to a Piece of a Plank, which Corbit made several Attempts to pull down, swearing at the same time he wanted room to kill the Lt. One of the Boats Crew with me, made 2 or 3 attempts to hall this Plank down. But a Musquet being presented at him by one of the Prisoners he catched hold of it, but not being able to keep his Grip, he flew over, to the side where the Lt. and the rest of the Gentlemen were, took up a Pistal. Corbit seeing that dard him to fire. He told him he would if he did not put his face back from the Bulk head. Fire if you dare, I will kill the first of ye. Then I heard the Pistall go off. Silly who fird it, came over to my side. Lt. call'd out, but cant say what he said. He seemd to speak hot. Silly came over to my side, with a loaded Pistall in his Hand, I know there was priming in it, there[fore] I conclude was loaded. The Prisoners after this were very hot, pushing their Weapons at Us. I called out to the Lt. and said I must be obliged to fire to save my own Life. He called me by my Name, and forbid me to fire more than once, or else I'd have shot every Man of them. At the same time, the Lt. demanded Silleys Pistal from him, Lt. thinking Silly as hot as I was. Blew out the priming and gave it to one of the Boats Crew. The next thing I observd, 2 or 3 Minutes after, was Corbit darting out a Harpoon thro the Bulk head, where the Lt. used to sit [i.e. had been sitting]. I did not see the Lt. at that Time. In a Moment as quick as possible, I heard a Pistall go off. I dont know who fird it. The Pistall was followd by a groaning in the Hold among the Prisoners. Corbit said he was shot thro the shoulder, and lost the Use of one of his Arms. Ryan said the same afterwards. I advised em to come out and get our Doctor that they might not bleed to death. Corbit said he would not. That he would die there, and bleed to death. I { 305 } advised Ryan to come out, and helped him out, with a Pistal in my Hand, cockd and [primed?], they with their Weapons [threatening] to kill me if it [i.e. I] came in. They admitted me to come to the Bulkhead. One of the Boats Crew came down and said that Mr. Panton was dead. The first I heard or thot of it. I said to Corbit you are the Rascall that has killd the Gentleman and youl be hangd for it. He said he would kill me next for he believed I was an officer of Marines. I told him let me be what I would, I would have the satisfaction of putting him in Irons by and by both Leggs, which I had and if there had been 25 I would have put 'em all in. Ay says he you are Master at Arms, if I had known that I would have killd you long ago.
Q. by Govr. Was the <hold> Hole where the Lt. was wide eno for the Lt. to get thro.—I cant think it was. The largest Breach was at the larbord side. A Man might have got his Head thro. I saw Corbit make a Push with the Harpoon, but could not see that Lt. by Reason of a Trunk.
Q. by Prisoner Corbet. How could you see when there was no Light, the scuttles being down.—There was no Light among 'em, but we had Lights and the Planks were all clear where we were. The Light shone full upon them.
Q. by Mr. Otis. Had Lt. a sword or Pistal at the Time he fell?—To my Knowledge I never saw any Weapon in his Hand but a snuff Box.
Q. Do you remember Corbits requesting intreating the Lt. to go about your Business, and stand off?—They said go about your Business and stand off. Their constant Cry was, if we would not go about our Business they would kill.
Q. <Do you> Did Corbit and the rest frequently say, he did not desire to hurt him if he would go about his Business.—Not to my Knowledge.
Q. Did you consider yourself as searching for Goods, or as one of a Press Gang?—When the Lt. said they were well stowd forward, I thought there were goods. I am not to be a judge of my officers Business. I imagine it was for seizing Smugglers as well as any thing else. I am not a judge whether Lt. would have pressed them. The latter End they behavd so rough and turbulent that the Lt. I believe would take some of 'em on board the Rose.
Q. Did you hear Lt. say he would press em?—I did not that I remember.
Q. Did you frequently hear the Prisoners declare they would die before they would be impressed on board a Man of War.—I heard Corbit say, he would not go on board a Man of War. At the time when he said he was wounded, he said he would die, before he would go aboard a { 306 } Man of War. They said that all they had in the World was there and they were defending it.
Q. Did you hear em say they were in defence of their Liberty.— They might say so, I cant say I heard it. There was many Words said that I dont remember.
Q. Was you in the forepeak?—I never was there.
Q. Do you know of any uncustomable Goods that were found in this forepeak by any of this Party, or any other Part of the Vessell.—Not that ever were found to my Knowledge.
Q. Did Corbit express great Grief and Concern when he was assurd that the Lt. was killed?—No.
Q. by the Govr. B. Was it after Corbit knew of Lts. death that he said he would kill you.—Yes.
Q. by Govr. Do you believe the Prisoners heard the Lt., forbid Silly and me14 to fire.—I do.
Q. by Govr. Did you hear Corbet complain of the first Pistall, and the Answer?—Yes. The Ball missed Corbit if there was one in it. Corbit said to Lt., see what your Men have done. Well says the Lt., come out, and you shall have what Satisfaction you please.
Q. by Mr. Otis. Are you sure there was but one Pistol dischargd before the Lt. fell.—But one.15
{ 307 }
Q. by Prisoner to Mr. Bowen. Did the Lt. draw his sword and thrust it down several Times into the Place where the Prisoners were?–No.
Q. by Otis to Bowen. Did you consider yourself with Mr. Panton as searching for Goods, or as a press Gang?—Ans. as searching for Goods. First I searchd for Men and then for goods.
Q. Whether any of the Party searchd the forepeak for Goods after the Men were out?—I dont know that they did. Peacock and Stanhope no. We went on board the Rose before the Men were out.
Q. to Bowen, Peacock, and Stanhope. Did you hear em frequently say they did not want to hurt em if they'd leave em.—Bowen did. The other 2 did not.
Q. Mr. Bowen. I believe at different Times I might hear em all say, that [they] would kill &c. Corbit said he would put his Lamp out first. And the others might say to the same Purpose. I believe some of the others did. It was not always said with the same Voice. I cant tell which took the Candle from the Lt. I am certain Corbit said he would shoot with Gun loaden with sluggs and primed, and they all joind in it. Pierce Fenning presented the Musquet, but who the fish Gig or who cryd fire I cant say. I saw no body have the Musquet but him. The same Man presented it at Sinclair, and snapped it 3 times. Corbit said he knew him to be a Lt. Cant say that any other did. There was a Noise.
Q. by Mr. Fitch. Whether Mr. Panton had found a Pistol or any Arms while in the Hold—main hold?—He came down unarmed without his sword. He took the Pistall from Silley [some?] time after, as mentioned before. Silly had loaded it, <for> the or it [may] have been another for the Lt. blew the priming out, and gave it to one of the Crew. He had Time to go from side to side between, for Mr. Panton called him to him.
{ 308 }
Bowen see him take the Pistal from Silley, <and blow the prim> but did not see him blow the priming out. Stanhope saw him with a sword at the scuttle, but not in the Hold, I did not see him.
Wm. Petty-grew. Physician. I saw the Body before it was buried. Soon after the Vessell came up to the Wharf. He came by his Death I suppose by the Wound he received in his Neck. About 3 Inches long, and of a triangular Figure, cut the Carotid Artery and Jugular Vein. I suppose 3 Inches in depth. There are two Jugular Veins on each side of the Neck.
Q. by me. Are the Artery and vein 3 Inches deep?—I suppose it must have penetrated 3 Inches, for the natural Elasticity of the Artery and vein would have given Way.
Robert Brice. Surgeons Mate. Knew the Lt. I saw him about 1/2 Hour before he died. His death I apprehend occasioned by a try-angular Wound in the left side of his Neck. It must have been the immediate occasion of his Neck [i.e. death]. The 2 Jugulars on the left side and the Carotid Artery were cutt thro. The Wound went down in an oblique Direction. There is an external and internal Jugular Vein. One could have known the Wound by the Instrument that gave it.
There must have been force used in drawing it back, as the surface of the Wound was lacerated.
James Silley. A private Marine. I went on board the Brigg, in the Boat—the 2d Boat. I was one that rowed. I went immediately down in the Hold with Mr. Peacock and the Master at Arms. Mr. Panton orderd Us to open the <Hold> Bulkhead.
Q. by Govr. Bernard. Did you fire a Pistall?—Yes I fired a Pistall. The Prisoners orderd us upon our Peril not to approach the appartment. If We did they'd kill Us. They'd be the death of the 1st Man that should attempt to break in there. The Pistall I fired, was loaded with Powder only. It was given to me, I dont know by whom, for a Pistall only with Powder. I did not load it and dont know. He dont know by whom it was given to me but believe it was the Master at Arms. I fired it at the Time when I was taking hold of the Musquet that was presented thro the Bulkhead. I dont know that I presented at one any more than another. I had no Reason for firing it, but in Confusion, with no Intention at all. I catched at the Musquet and fird at the same time with the other Hand.
{ 309 }
Q. How near was the Mouth of your Pistoll to Corbetts face?—I dont know. It must be very nigh him, I believe, by the Explosion.
Corbit said this is not good Usage.
Mr. Panton said he would shew him the Man when he came on bord. Then a Cartridge was given me by Sinclair and I loaded the Pistall again. The Musquet was pointed thro the Bulkhead again. I seized it and kept it in my Hand for above 2 Minutes. But the Prisoners got it from me, 2 of em. I soon went over to the Larboard side where the Master at Arms were. The Lt. demanded me to give him the Pistol. Accordingly I did. I then assisted the Master at Arms in breaking down more of the Bulkhead with Pretence of getting in. The Prisoners then desired us to keep off upon their Peril for they would not be pressed. I remember Corbit very well. The others said keep clear Gentlemen at your peril for We will not be pressed. Corbit then said <Mr.> you Lt. stand clear if you dont I'le be the death of you. The Lt. made answer you may depend upon it if you kill any one you'l be hanged for it. They Corbit then often attempted shoving thro with the Harpoon, the whole of em desiring Us to stand clear. Soon upon it I heard another Pistall go off and the Cry of a Man. Looking about I saw the People all going out of the Hold and no one there but I and the Master at Arms. Sometime after Gibson came out and said the Lt. was dead. The Prisoners said it was no such thing.
Q. Mr. Panton said he gave no orders to fire.
Q. by Pris[oner]. Did We not tell em We wanted nothing but our Liberty, and not to hurt any of their People?—I heard some of them say they wanted nothing but their Liberty and would hurt nobody if they did not hurt them.
Q. Whether some of the Boats Crew did not say, if We did not come out they would blow our Brains out or shoot us.—I believe there was Words of the Kind passed of both sides. A great deal of that.
Q. Did not I give the Prisoner, a Piece of Bread and say that I wanted not to hurt him or any Man.16—Yes.
Q. by me. The Lt. said he had a Deputation to search and would search there. That [ . . . ].17 The Prisoners said there was no prohibited Goods there.
Q. Did the Lt. or any of his Party search in any Part of the main Hold for prohibited Goods.—I did not see em.
{ 310 }
Q. Did you apprehend your Business was to search for prohibited Goods or to impress Men.—I understood that I came on Board in order to [help] Mr. Panton to search for prohibited Goods or to impress Men as he gave orders.
John Bembridge.
Mr. Fitch's Application of the Evidence.
Of the Utmost Importance to society that Murder should be punished.
Shall only state the Evidence summarily.
Mr. Panton an Officer of the Customs, duly authorized to make Searches and Seizures. The Commissioners here authorized by Act of Parliament, to issue commissions. This Commission issued to the officers of the Navy.18
As a Custom House Officer he had Authority to go on board any Vessell to search. He went on board, and demanded Papers and Leave to search. The Master readily consented.
Masters explicit consent to search a material Circumstance.
He found the Men, and insisted that they should come out and said he wanted to search that Place for prohibited Goods.
No threatnings on the Part of Mr. Panton. On the contrary he spoke in the mildest and most persuasive manner.
No arms when he went down the hold. Threatning Language from Prisoners. A Pistoll. Mr. Pantons Disapprobation. The Pistoll 1/2 hour before the fatal accident.
Corbit one of the Persons that threw the Harpoon that killed the Lt. They were all active, stimulating one another, and all equally concerned, tho Corbit gave the mortal blow.
Lt. was in the lawfull Discharge of his Duty, and the explicit consent of the Master for this Purpose. Any opposition to him therefore was illegal. The opposition being illegal he was not obliged to give back. No threatnings on the Part of Mr. Panton, by which the Prisoners could apprehend Danger to their Lives—tho they had apprehensions of being impressed.
The Pistolls not fired by him, but vs. his express orders.
The last Pistol after the Wound was given, Peacock saw the Blood.
{ 311 }
Lt. Governor says he did not see the Blood, till after he fird. The Register has taken it otherwise.19
The Threatnings of Prisoners levelled at Mr. Panton himself. We will put your Lamp out first. This shews Malice vs. himself in particular. Why should they single out this Person any more than others.
If any Person is singled out, it is Malice, tho in an Affray.
I will consider the apprehensions the Prisoners were under and the Effect of this upon the Evidence. They were under Apprehension of being impressed. But Mr. Panton did not say he would impress 'em. Ans. Mr. Bowen said, the Lt. told Prisoners he would take em all.20
How far this can excuse? Justify I apprehend it cannot.
I am considering, how far the Prisoners Apprehensions could affect the Crime. I think it could not affect the Crime att all, as he was acting under a legal Authority to search for Goods.
What Effect the Firing the 1st Pistol, can have upon the Crime? I apprehend it can have very little weight, as it was done without order, and the Lt. expressly disapproved it.
Lt. unarmed, in such a Position and attitude that he could not be in a Condition of Offence.
Q. Whether these Circumstances can soften the Crime down from Murder to Manslaughter, or whether they are not Proof of Malice forethought.
Law. A Question whether the Court are to proceed by the civil Laws or by the Rules of the Common Law. I apprehend the Crime is the same by both Laws. The same essential Distinctions in both. The voluntarily taking away Life, Dolo malo, with Malice forethought. Manslaughter is not by Name in the civil Law, but the civil Law makes the same Allowances to the Infirmities of human Nature.
Discretionary in civil Law, what Punishment to give to sudden Killing. By 27. H. 8. and 11. & 12. W. 3. compard, taking em together I apprehend no safer Rule can be proceeded by than to proceed by the common Law and this has been the Practice.
I shall confine myself to the Rules of common Law.
[2] H.H.P.C. 16. 17. Q. Whether the statute does not restore Clergy.21 The offender is to have his Clergy. Lt. Governor said some { 312 } Cases that would be Manslaughter at common Law would be punishd with death by civil Law.
1. H.H.P.C. 455. 457. Implied Malice. Kills without Provocation.22
A Bailiff, Constable or Watchman. No lawful Warrant. Capias Distringas.23 9. Co. 68.24 Same Book 458. A Bailiff Jurus and Conus. Pew said stand off. Bailiff laid hold. Pew killd. Murder.25 A similarity in these Cases. If Lt. had a Right to enter any Part of the Vessell, he is equally under Protection of Law as any other officer, and opposing him is at the opposers Peril.
458. Bailiff, Cook. Cook bid him depart. It was Manslaughter in defence of his House no felony.26 Tho Lt. might pursue his Authority in an illegal Manner, yet it would be manslaughter. No greater Effect than that, it must be left to the Court whether so great. Should the { 313 } Court think, that am[ount]s to Manslaughter, I see no reason vs. punishing by the civil Law.
Our Witnesses.
Thomas Power. Master of the Brigg.
<. . . Panton said to me The Man of War.>
Q. Did the Man of War hail you before the Lt. came on board.— The Rose fired 2 Guns and hailed us by a Trumpet and order[ed] us to lie to after which Lt. Panton came on board. He enquired for the Master. I told him I was Master of the Vessell. Then he asked me for my Clearance. I told him I had none. He replyed you must certainly have some Papers. I told him I had no other Clearance but a Bill of Health and a Bill of Lading as it was a foreign Port, from whence I came, and we took no Clearance therefrom. He asked me for the Bill of Health which I produced. He then asked me for a List of my Men. I produced him my shipping Book. He asked me, if I would walk down into the Cabin. When he came down He asked me where my People were. I told him I did not know. Then he called for Pen and Ink, and for the Logg Book, and took down the Peoples Names, and he then ordered some of his Party to go and seek for my People, <then he> and turn em up from below. Then he asked me to open my Lazaretto27 scuttle for em. I told him I would. After he had taken my Peoples Names, he asked me if I had any particular Person, that I wanted a favour done him, let him know his Name, he would put a Mark against it and when he came upon deck, he would not take him. I told him I had one Man that was married, and I tho't it was very hard to take him. He said by no means he would not take <any> no married Man, for he had orders to take None that was married.28He asked me if I had any more Hands aboard, but what was in the List. I answered no. Then he desird me again to tell him if I had any more, for if he found more aboard it should be worse for me. While he and I were talking, some of his Men came and told him, that they found out the Men, that they were hid in the forepeak, and would not come out. Then he left me in the Cabin, and went upon deck, and I never saw no more of him, till he was brought up, by some of his Men out of the Hold.
{ 314 }
Q. What Condition was he then in?—He was wounded in the Neck on the left side. I perceived an Effusion of Blood. He might live an Hour or an Hour and half. Speechless when he came up.
Q. Was you present when orders were given for the Boat to go on Board the Rose for more Men and arms? Declare all you know.—I was upon Deck when orders came up, to send the Cutter on Board and bring the Cutter, properly manned and armed. When the Cutter returned the Roses Men jumped in, upon the Briggs Deck. Some with their Pistolls cocked and some with their Cutlasses drawn. Some of 'em enquird, particularly the Master at Arms, enquired where the Dogs were, and said they would soon have 'em out” ? They then went down between decks to the Lt. All of them, but one Man, left to take Care of the Boat. In a little time afterwards, one of their Men came up upon deck to me, said he was sent by the Lt., (Charles Rainsford now present in Court) for some Tools, to cutt the Bulk head thro, and if I refused sending them, that he the Lt., would confine me. I told him I had none. If they could find any, about the Vessell, they may make Use of them.
Q. by Mr. Otis. Did Lt. Panton demand a search of your Vessell as a Custom House officer?—No.
Q. Did he demand a search for the Men?—He did not demand a search for them of me, but orderd his People to go and search for them.
Q. For what Purpose did he search. Declare all you know.—I imagined it was to impress em. He said his orders were to take but 2 but as they had hid, he would take the whole four.
Q. Did he say any thing to you about his being a Customs House Officer, or his Having a Right to search for Goods from first to last.— No sir.
Q. Did you ever hear him give orders to any of his People to search the Vessell for prohibited or uncustomd Goods.—No.
Q. What did the Prisoner Corbit say, when he first saw the dead Body of the deceased in the Cabin door?—When he came to the Cabin Door and saw the Lt. dead he shed Tears, turned about to the Marine and said to him, you Rascall, you are the Instigation of this Gentlemans death, and said you are the Person that fird at me.
Q. by the Govr. Did Lt. behave civilly or uncivilly, to your observation?—He behaved civilly to me.
Q. by me. What Country men were your two foremast Men who were not in the forepeak?
Q. Were they Inhabitants of Marblehead, and had they families.— { 315 } One had a family in Marblehead, the other was an Inhabitant there.
Q. Were them 2 Men both pressed and carried aboard the Man of War afterwards the same day.—Yes. They were taken away. They were returned before night. I was not requird to settle their Wages, which I take to be the common Practice.
Q. Did one of those 2 Men, deliver you the Key of his Chest and desire you to deliver his Chest to his Wife at Marblehead before he went on Board the Rose?—Yes.
Q. by Com[modo]r[e]. When the Lt. desird you to unlay the Lazaretto scuttle, did he give any Reason for the Request.—No.
Q. by Mr. Trail. Did he ask you what Goods you had aboard?—Yes. I told him Salt.
Q. Did the Lt. say he should take no Americans?—Yes.29
Hugh Hill Mate of the Pitt Packett.
On the 22d April we met a ship standing out of the Bay. (<as to the firing before, confirms the> Bet. 6. and 7 o clock they fired the Gun, and soon after, fird another. We bore down Under the Lee. They hailed Us, told us to bring too, and with our Head the same Way that they were, untill they would send there Boat aboard. Their Boat came on Board, with the Lt., 2 Midshipmen, and seven Men. The Lt. asked for the Master of the Vessell, who was then present. He asked him for his Papers. He told him he was from a foreign Port, he had only a Bill of Health, in Case of being put into another Port, and his Bill of Lading. Lt. asked him for his shipping Book, and asked him to go down into the Cabin with him. They remaind in the Cabin 7 or 8 Minutes, and the Lt. came upon deck again, with the shipping Book in his Hand, asked me if I was Mate of the Vessell. I told him I was. He told me to call our Men to answer to their Names. I <told> called to em to come { 316 } aft and answer to their Names. The 2 that were upon deck came aft. The Lt. looking upon the Men, seeing no more come but them 2, looked steadfast upon me, and said Go sirrah and turn your People up, or I shall take you. I said sir you may use your Pleasure. At that Instant he took up his Sword from our Companion30 where he had laid it, <and went forward> drew the sword, and left the Scabbard and belt and went forward, and went down into the Forecastle, where the Prisoners were. He said My Lads, you had better come up. I shall take but 2 of you. You shall have an equall Chance. They replyed they would not. I heard a Number of Voices. Cant say they all spoke. They told him, they would not be impressed, that they would defend themselves, and they told him to keep off from them, they did not want to hurt him, nor any of His People. He called to Mr. Stanhope, one of the Midshipmen, to take 4 Hands in the Cutter, and go on board for more Men and Arms, and to have the Cutter properly armed. He then replyed to the Prisoners, that he had often known as stought31 fellows as you32 but by God I will have you all. He was down below the Upper deck, I was on the Upper deck, the scuttle open, between us, I leaning with my Head over the scuttle. I then went aft. Soon afterwards, he sent up to know if the lower deck Hat[ch]ways was open? I told him that came up, that all the Hatches and Scuttles in the Vessell were open, excepting that where the Boat stood. Soon after, he sent for Lights. I orderd the Cook to light Candles for him. Soon after they got the Light the 2d. Boat came aboard, with a Number of Men Armd. The Master at Arms, and Mr. Peacock, came out of the Boat first. The Master at Arms, <swearing,> saying “damn the Rascalls where are they? I'le have them out Immediately.” The Master at Arms went down forward, Mr. Peacock following, who orderd his Men to follow him. They went down. Soon after there came a Man up, asked for the Master, told him he wanted the Tools belonging to the Vessell, if he did not deliver em the Lt. would confine him. He told him, he did not know where they were, if they could find 'em they might take 'em. They found an Adz, and a Crow Bar, and went down into the Hold again with the Tools. In a short space of Time, I heard a Pistol go off. About 7 or 8 Minutes after, one of the People who came from below, told me that one of our Men was wounded. In 8 or 10 Minutes after, I heard a 2d. Pistall go off, and in 4 or 5 Minutes after, Mr. Peacock came up and hailed the Rose, and told em for Gods sake to send the { 317 } Dr. on board the Lt was wounded. They bro't the Lt. to the forescuttle, and I lent a hand to carry him down into the Cabin. The Dr. came to him. After the Dr. had been with the Lt., He came out of the Cabin, some of the People, asked him to dress the wounded Man, (meaning John Ryan). He answerd let the Rascall bleed and be damn'd. He ought to have a Brace of Balls drove thro his Head. The Man remaining in his Gore, till he was carried on board the Man of War. After they had placed sentries over Corbit James Silley a Marine, told Mr. Newcomb and me, that he fired a Pistol in Corbits face, thinking to make him retreat. Some of the People then after the Lt. was dead made mention that the Lt. was a Customhouse Officer. Our Master asked me if I had seen his shipping Book. I told him No. I went and asked the Midshipmen if they had seen the shipping Book. They told me No. They said they would search the Lts. Pocketts for it. They went down into the Cabbin and took his Papers all out of his Pocketts in my Presence. The shipping Book was not in his Pockett. When the Master of the Rose came on board to search, <he brought a Deputation> The Monday following, viz. the 24th., He brought a Deputation <to search> as a Custom House officer and shew it to Captn. Power. Captn. Power said He need not read it. The Vessell was all open he might search. There was no Parchment in his Lts. Pocketts, when his Papers were taken out. I examind all his Papers particularly, to find the shipping Book.—The Commission being shown him [i.e. Hill] he says it was not there.
Q. Did Lt. Panton deceased from the time of his coming on board the Pit Packett to the Time he fell, make any Demand on Captn. Power, in your hearing, or of any other belonging to the Pit Packett, to suffer him to search the Vessell as a Custom House Officer for uncustomed Goods?—No.
Q. Did the Lt. with his Party, from the Time of his coming on board the Pit packett to the time he fell, conduct him and themselves, in all Respects, merely as a press Gang?—Yes. I understood it so, and had very good Reason, when he told me, he would take me on board the Man of War, if I would not turn the men up!
Q. How long was the Lt. on board the Brigg, before he fell.—It might be 2 Hours, as near as I can judge.
Q. What Part of those 2 Hours was taken up in the forceable Attack upon the forepeak, where the Prisoners had retreated?—The whole Time, excepting what was spent with the Captn. and him, in the Cabbin and on deck, which might be 10 minutes in the whole.
Q. With What Weapons was this Attack made, and what Methods { 318 } used by the Lt. and his Party to break into the forepeak. Declare all you know.33
Answer. Crow, Adz, Pistolls and Cutlaces, I suppose, that were carried down.
Q. What was said by the Officers, or People of the Man of War, to the two of your Men, when they were orderd into the Boat, <after the Lts. fall,> in order to be carried aboard the Rose.—I dont know I want upon deck.
Q. What did the Officer find on the 24th.—He found our stores, some Bottles of Wine, and some loose Lemons, 5 or 600, in a Barrell, nothing else. He seized the Vessell, put the Broad Ar[row] on the Mast.34
Q. by Corbet. What did Corbit say when he first came up and saw the Lt., and what did he say and how behave?—Thro my Perswasion he came up. I told him it would be much better for him. He asked me if I would advise him for [what?]. I thought was best for him. I told him I would not give him advice to his Prejudice. He came up and went into the Cabin, seeing the Corps, Tears came from his eyes, He turnd round and saw the Soldier that fird the Pistol upon him. Said you are the Rascall that is the occasion of this Gentleman loosing his Life. He said in the forepeak he did not believe the Lt. was dead.35
{ 319 }
John Roney. Mariner on Board the Brigg.
The Cutter came aboard and Lt. and two Midshipmen, and 7 Men. Lt. enquird for the Master. Lt. went below with the Master. He came up with the shipping Book in his Hand, and told the Mate to call the People. The Mate said there was 2 forward and call[ed] 'em accordingly. Lt., looking upon the shipping Book calls Michael Corbet, then he calls John Roney. I answerd to my Name. One of the Roses People came and told the Lt. the Men were down in the Fore peak. Lt. went forward, immediately. Took his sword drawn along with him. Lt. <told> asked the Prisoners to come up. The Prisoners answerd they would not. Lt. made Answer He would have them up. They said they did not want to hurt him or his People they wanted nothing but their Liberty.
Some Time after the Lt. bid one, go aboard the Boat and fetch more Men, and bring the Boat armed and the Master at Arms.
When the Cutter returnd again I hove her a Rope. They had a great many Arms and there was Mr. Peacock and the Master at Arms. The Master at Arms, <hove off> took a Pistall in one hand cockd as I thought and a Cutlass in the other. He jumped aboard the Brigg and says, “By Jesus I'le have these Dogs out.” Immediately speaking again “where is these Bugers.” He went down the forecastle with his Pistoll and Cutlace, I did not hear any more of him for about 30 Minutes. First Thing I heard was the Report of a Pistoll. Mr. Stanhope, standing centry over the Forecastle scuttle, told me, one of our People was wounded. About 5 or 6 minutes afterwards I heard another Pistal go off. About 4 or 5 minutes afterwards I heard the Lt. had got a deadly wound.36
{ 320 }
James McGlocklin. Cook on board the Brigg.
I was down in the steerage, and the Lt. desird me to get him a Light. I did. Desird me to shew him the Way twixt Decks forward. I shewd him the Way and car[rie]d the Light in my Hand. Lt. asked the Prisoners if they would come up. They replyd they would not. He said it would be better for 'em. If they would not he would make them. They said they would not, they were Freemen born free, and would not go aboard a Man of War. He said He would have em. For Men he came for and Men he would have. Lt. said if they would come up he would not hurt any of them. They said say37would not, they would stand in their own Defence they did not want to hurt no Body.
I went aft into the steerage again untill the Boat came on Board 2d. time with more Men and more Arms. Lt. called for another Light. I got it, and carried it forward to him. Heard him say that he had seen as stout Men as them come out very easy before now. They replyed to him they were none of them sort of Men. He said to them I'm the Man that will bring you out. Then I went aft. Lt. calld after me to shew him the Hatchways, which I did. Then the Master at Arms came directly with his Cutlace and Pistoll, and askd me for a Crow bar. I told him I did not know where to find one. He <takes> lookd and found a Crow bar. Then says he where's these Buggers, I'le have them out. Lt. and He and the rest of their People went down in the Hold and I went away into the steerage. Presently after I heard a Pistoll go off. One of the Men of Wars men came up and told me one of our People was wounded. Soon after, 4 or 5 Minutes I believe, I heard another Pistoll go off. Presently I see the Wounded Man, John Ryan come out crawling over the Water Casks. Askd me to help him. Beggd of me to get him Water he was faint, &c. Soon after I heard the Lt. was killed.
Q. Did you ever hear Lt. or any of his Party demand leave to search for Goods or say any Thing about it.—No.
Q. Did they behave merely as a press Gang?—Yes, and I never suspected they had any other Design. I saw Lt. have his sword.38
{ 321 }
Edward Wilks. A private Marine on board the Rose.
Q. Did you place the Sentries over Corbit, on board the Brigg after the Lt. was killd?—Yes.
Q. How did he behave and what Conversation had you with him about the unhappy Accident.—The Centrys were planted and I went down to see if every Thing was quiet. I found Disturbances on both sides. I beggd of the Prisoners at the Barr, Ryan excepted to behave in a better manner, for the Lt. was kil'd. They made me answer, that they could not believe it. For they did not mean any Harm to any one without it was them that came armed against them, and further told me, that if I would lay down my Arms, they would lay down theirs, and I might be welcome to eat or drink with them. I made em answer, that I did not choose any Thing of the sort. Corbit desird me, to go to Mr. Hill the Mate, and ask him, as to send em something to stop the Wound, for he was shot. Accordingly I went up. He went down.
Charles Raynsford. A Seaman, on board the Rose. Came [in] the first Boat, with the Lt., and was down in the Briggs Hold with him. In going down the Hold, <I heard Mr. the Master at> Mr. Peacock was the Head officer, and the Master at Arms. There was orders given to break open the Bulk head. The Prisoners said the first Man that made a Hole they would be the death of him. Presently after a Hole was made. The Prisoners never hurt any of em that made it, tho the Hole was large eno, to have hurt em with their Weapons. Some time after, the Lt. came down, when he came down I did not really see him. The Lt. took my Pistall from me. Mr. Peacock was close by. I made answer I cant stand here with a naked Cutlace only. With that I drew back. Lt. orderd somebody, to go upon deck and fetch an Ax. I went up to the Captain, Power and I asked him for an Ax. I saw the first Pistal that { 322 } was fird run close to his face and fird. Corbit said Gentlemen you have wounded me. Corbit askd the Lt. by what Authority he fird at him.
Q. Did you hear Mr. Panton say he wanted to search for uncustomd Goods?—No. I did not.
Capt. Robert Calef. 30th of April, Mr. Bowen came to my House. I said to him an unhappy Accident happd on board the Brigg. How did it happen?—I was as nigh the Man that kill'd the Lt. as the Lt. was when he was killed. I askd him how the affair was. He told me the Man had given him all the fair Warning imaginable and it was Lts. own fault, and they had talked together, the Lt. and Prisoners, while the Boat was gone for.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 184.
2. In margin: “Mem. Motion by Advocate General that he might have a written Account prepared before.” A scuttle is a small opening in the deck with a moveable lid. See OED.
3. In margin: “Note.”
4. Robert Trail or Traill (d. 1785), Comptroller of the Customs at Portsmouth, later to be proscribed as a loyalist. Jones, Loyalists of Mass. 278–279; 2 Sabine, Loyalists 361.
5. BA's reading. MS (apparently): “favr.”
6. Thus in MS.
7. JA's supplementary notes (see text at note 25 above and note 3395 below):
“Mr. Bowen, Midshipman. Was with Mr. Panton, when he went on Board the Brigg. The Mate threw out a wharp [i.e. a line] for the Boat. Panton enquired for the Master and went down to the Cabin with him as did Mr. Bowen and Mr. Stanhope, another Midshipman. Panton enquired where the Brig came from. Master said from Cadiz loaden with Salt, for Marblehead. Mr. Panton demanded his Bill of Lading, Clearance and other Papers. Master replyed he had no Bill of Lading or Clearance, only a Bill of Health which was all the Papers he had, and produced it, having it in his Hand ready. Mr. Panton next enquired how many Men he had on Board? Master answered 6 before the Mast, besides himself and Mate. Mr. Panton asked for his Log Book; and said He would order the Roses People to go down into the Hold, to search for unaccustomed Goods, or to that Purpose; and desired the Hatchways and Scuttles to be opened, which the Master said should be done. Mr. Panton, Mr. Bowen and Mr. Stanhope, went upon Deck leaving the Master in the Cabin and there desired the Mate to send all his Hands aft, at the same Time ordered the Roses Boats Crew to go down below and search. The Mate said he would send what Hands there was aft. Panton made answer, he must send them all. Mate said he could not send them all aft, but he would go and call them: Mate went, and Mr. Panton ordered Mr. Bowen to go with him. The Mate called the People, but none answered. Mate went aft and informed Mr. Panton. Mr. Panton then said We must search for them. Lights were got. Mr. Panton ordered Mr. Bowen with two of the Boats Crew, to go into the Hold and search for the Men, but found nor heard none. Mr. Bowen came out of the main hold and went forward. Gibson, one of the Boats Crew said to Mr. Bowen There is a Scuttle, pointing to one before him, which Mr. Bowen ordered him and Churchill, another of the Boats Crew, to take up. Churchill taking up the Scuttle, called out, “here they are!” and desired the Men he saw to come up; they, the Brigs People, swore bitterly, that the first man, who dared to approach them, they would cutt his Limbs off, at the same Time shewing a Hatchet, a Harpoon, a Musquet and fish Gig. Mr. Bowen then said his Lieutenant wanted to see them, and desired they would come upon Deck. They swore they would not. Mr. Bowen informed Mr. Panton of what had happened. Mr. Panton, hearing it, went forward himself with Mr. Bowen and mildly desired the People to come up, which they refused to do, swearing they would die in the Hold, before they would suffer themselves to be impressed. Mr. Panton then said he wanted to search the Hold, and asked them to let him come down where they were for that Purpose, They repeated to him, what they had threatned to Mr. Bowen, and shewed Mr. Panton their Weapons. Mr. Panton desired them a second Time, to come out, adding, if they persisted in refusing he must oblige them. One and all of them said to Mr. Panton, if he brought any Arms against them, he should be their Mark, and they would put his Lamp out first. Mr. Panton ordered Mr. Bowen to man the Roses Boat, and send Mr. Stanhope on Board for assistance. Mr. Bowen returned to Mr. Panton and found him talking to the People endeavouring to perswade 'em to come out, explaining the Folly of being obstinate. They said several Times in Mr. Bowens Hearing, if there was 50 men armed, they would not be taken, and told Mr. Panton, if he had any Regard for his own Life, he would let 'em pass. He answerd it was his Duty, and he could not do it. They said they knew he was a Lt. and his orders, and desired him again to let them pass, swearing and repeating their Threats against him particularly. Mr. Panton had a Candle in his Hand (the Place being very dark) which he gave to one of them, desiring they would let him see, thro the scuttle, what Sort of a Place it was they were in. One of 'em, took the Candle, and lighted it about the Place where they stood, Mr. Panton said he could not see it and wanted to go down; They said he should not go down, and if he attempted it, they would that Moment shoot him; presenting their Musquet, which they said was loaded with Sluggs, and primed. Then they returned the Candle. Mr. Panton said, Aye? will you shoot me? And in a joking manner added I will take a Pinch of snuff first; and ordered Mr. Bowen to go and see if the Boat was returned. The Boat was just then come back with Mr. Peacock a Midshipman, Mr. Stanhope, Forbes the Master at arms, and Boats Crew. They all went below. Soon after, Mr. Panton orderd Mr. Peacock and Boats Crew to open the Bulkhead of the Place, where the Briggs People were. As soon as the Boats Crew began to work upon the Bulkhead, the Briggs People said they would shoot the first Man that made a Hole. One of them advised the others to shoot the Lt. first and divide themselves. 2 to defend the scuttle and 2 the Bulkhead. One of those at the scuttle, presented a Musquet, another a Fish gig and one from within called out fire. Mr. Panton and Mr. Bowen having their Swords drawn, Mr. Bowen with his, struck the Musquet downwards, out of its Direction at Mr. Panton, Mr. Panton then went towards Mr. Bowen and ordered the Scuttle to be put down, which Woodgate (one of the Boats Crew) did and stood upon it, to prevent their Doing Mischief that Way, or coming out. Then Mr. Panton and Bowen left the scuttle and went to the Bulkhead to see what Mr. Peacock and the Boats Crew had done there. The Master at arms had begun to make an opening, with a Crow, and having made a small one, one from within presented a Musquet thro it, threatning to shoot him. When Mr. Panton and Mr. Bowen went to the Bulk head, the Roses Men were seperated at each End of it. Mr. Panton went to the starboard side, where Mr. Peacock was, with some of the Boats Crew; Mr. Bowen to the Larboard side, where Forbes, Silley and Sinclair were. The Man who presented the Musquet at Forbes, removed to the other Side upon which Forbes with the Crow broke off a Piece of Plank, then gave the Crow to Sinclair and took up his Pistol; again one within presented a Musquet at Sinclair which he snapt, 3 times; all the others calling out to Fire, damning the Musquet for not going off. Silley got hold of the Musquet, but by himself could not keep it, those within, drawing it from him: Then Silley went to Mr. Pantons side and almost immediately Mr. Bowen heard the Report of a Pistal, which Silley says was fired by him, without Ball at the Man, that threatned the Lt. so hard, and had several Times snapt his Musquet at him; in order to frighten them and make them submit. Mr. Panton during all this Time, frequently begged of them to surrender or he must clear his Way to come to them. But all of 'em said they would shoot Mr. Panton first and Forbes after before they would be taken.
“Upon hearing the Report of a Second Pistol, Mr. Bowen turned about, and saw Mr. Panton had been wounded in the Throat with a Harpoon, and a Pistol had been fired at the Person who did it, and Mr. Peacock endeavouring to stop the Effusion of Blood with his Hankerchief. P[anton] expired in less than 2 Hours.”
8. In margin: “[Learnt?] it perfectly before I came into Court.” Philip Dormer Stanhope (1694–1773), fourth Earl of Chesterfield, and author of the famous Letters, was Midshipman Stanhope's cousin.
9. In margin: “Q. for what.”
10. JA's supplementary notes:
“Mr. Stanhope, Midshipman, says he went on board with Mr. Panton, that the Mate threw a Rope to the Boat. Panton went down to the Cabbin, Bowen and Stanhope followed. Panton demanded Bills of Lading and Clearance. Master answerd he had only Bills of Health, which Mr. Panton desired to see. Mr. Panton then [asked] for his Log Book, which he produced. Mr. Panton enquired how many Men there were on board. Master said 6 besides himself and Mate. Mr. Panton then said he must open his Fore and After Peak, and let his Men search for prohibited Goods, or to that Purpose. Master answerd very well. They went upon deck and the Master came up after. Mr. Panton then ordered Mr. Bowen and 2 of the Boats Crew to go down into the Hold, and Mr. Stanhope upon deck to look after the Roses Boat. Mr. Bowen came upon the Quarter Deck and acquainted Mr. Panton, that there were Men below, who swore, the first Man who came near 'em was a dead Man. Soon after he was sent on board the Rose for Assistance, and knows but little more.”
11. Here, as on some other occasions in JA's minutes, the answer appears without a question.
12. JA's supplementary notes:
“Mr. Peacock, Midshipman, says, at his Arrival on board the Brigg he enquired at the Mate, where Mr. Panton was who informed him, he was down the Fore hatchway; Mr. Peacock went down immediately followed by the Boats Crew, and asked Mr. Panton what was the Reason of the Disturbance, who told him, the People were so obstinate, that all the arguments he could make Use of, were to no Effect, that they had told him they were resolved to die, sooner than be pressed on board a Man of War. Mr. Panton then ordered Mr. Peacock down the main Hold to force down a Bulkhead, which parted the main Hold from the fore hold where the men were. He went down and ordered the Boats Crew to knock down the Bulkhead as fast as possible. When they began the Briggs People within threatned immediate Death, to the first Person they saw, and presented a Gun thro one of the Holes, which they snapp'd 3 Times. By this Time, the Bulkhead was so much down as to give an imperfect Light of the Place. We could observe there were 4 men in it, differently armed, with a fish Gig, Harpoon, Musquet, and ax, still threatning to kill whoever durst approach them. Mr. Panton then came down, and orderd the Men to withhold from breaking the Bulkhead till he had spoke to them within. He then represented to them the folly of persisting, against such a superiour Number, the Impossibility of their Escape, promising them good Usage, if they would <surrender> voluntarily come out. But they were deaf to all he said, told him, they knew him to be a Lt. and the Men acted by his orders: that the first Man they saw offer to break the Bulkhead, they would do for him <meaning Mr. Panton->. One of our Men then fired a Pistol at the Man who told Mr. Panton so, loaden with Powder only, as the Man afterwards declared (who fird), in order to intimidate them, which must be true as it had no other Effect, than scorching the face of the Person fired at. Upon which the Man whose face was scorched asked Mr. Panton why his Men fired at him, and desird him to look what was done. Mr. Panton then replyed it was not done by his order, and that he would shew him the Man, when he came on board (meaning as Mr. Peacock understood) he should get Satisfaction and immediately took the Pistol from the Man, and gave strict orders no one should fire without his Directions. Mr. Panton then desired the Men to proceed with knocking down the Bulkhead, which they did as well as possible, being interrupted by those within, who kept presenting their Piece, and striving to hurt our Men with their other Weapons. Mr. Panton gave orders to stop, and asked those within, whether they would come out, they answerd they would not; Mr. Panton then asked one of them, if he would lend him his ax, to knock down the Bulkhead a little faster? who answerd he'd lend it to scalp him. Mr. Panton then gave orders to knock down the Bulk head directly, which we were going about, when one of those within made a Lunge at Mr. Panton with a Harpoon and Mr. Peacock immediately fired his Pistol. He stood in his former Position, for a few seconds, and then said, Peacock, the Rascal has stabbed me in the Jugular Vein. Mr. Peacock ran, and bound his Neck with his Hankerchief. He died in less than 2 Hours.”
13. Grains are prongs of a fish gig. OED.
14. Thus clearly in MS, although BA reads “em.”
15. “JA's supplementary notes:
“John Forbes, Master at Arms. Says, he heard the People after he came on Board, <say> call out from below, 'come on Ye Dogs, Here we are.' Forbes threw off his Coat, and went down the Main Hatchway to the Bulkhead of the Forehold, where the Briggs People were. One of the Boats Crew followed him with a Light by the Help of which, he saw the Bulkhead, and said it could not be broke down without an Iron Crow. Went on deck and found one; at which Time he saw Mr. Panton who ordered him to go down and force open the Bulkhead. He accordingly went, and began to work on the starboard side; the first or 2d. stroke he gave, the People within called out, 'Come on Ye Dogs, thats all we want,' to which Forbes answerd he expected to get 4 or 5 dollars, for the Vessell yet. With 5 or 6 Blows he made an opening in the Bulkhead, so as to see the People within. Mr. Panton then came down from the scuttle; Forbes continued to knock down the Bulk head towards the Larboard Side; The Briggs People all the Time threatning to murder the Lt., when one of them called Corbit by the others, saw the Lt., thro the opening that was made, said 'Mr. Lt. I will kill you first and you may be certain of Death, if you do not go about your Business,' at the same Time presenting a Musquet at Mr. Panton, others with a Fish Gig, Harpoon and Ax, swearing and repeating Corbetts Threats without Intermission, Mr. Panton all the Time gave them not the least Provocation or abuse, on the Contrary, very fair Words, Forbes desird 'em to point their Weapons at him, and not hurt a Gentleman who meant them no harm, and told them if they continued to point their Weapons at Mr. Panton, he would fire at em, then they made several Pushes at Forbes, and one called Ryan, striking a Fish Gig at Forbes and not throwing it out far eno to do Execution, the others within called him a Coward and struggling to take the Fish Gigg from him, the Grain dropped from the Pole. The Person called Corbet then took up a Musquet and snapt it 3 Times at Sinclair, one of the Boats Crew, and afterwards at Forbes damning it for not going off. Forbes by this Time had cleared away the Bulk head, as far as the Larboard Wing, except a Piece of Plank about Midships which Corbet tryed to pul down himself, saying he wanted Room to kill the Lt. Mr. Panton, hearing that, said Aye my Lads? Silley who was on the Larboard side with Forbes, made several Attempts to bring down the Board. One of them within pointed a Musquet at him, which he got hold of. But not being able to keep his Hold, went to the starboard side, where Panton was, and took up a Pistall, which the Person called Corbett, seeing in his Hand dared him to fire. Silley made answer if he did not go back from the opening he would fire at <Cor> him. Corbet then said, 'Fire if you dare: I will not go back, I will kill the first of you.' Immediately after Forbes heard a Pistol go off, and a Person call to the Lt. and those from within, push their Weapons so hard at them that Forbes called out to Mr. Panton he must be obliged to fire, to save his Life; which Mr. Panton strictly forbid him to do upon his Peril, and took a Pistoll from Silley and blew the priming out; then Forbes saw the Person called Corbet dart a Harpoon at Mr. Panton and immediately after a Pistol go off, followed by a groaning in the Hold.”
16. The word “Prisoner” is an apparent inadvertence. See testimony of the Marine, Wilks, text following note 38100 below, which indicates that it was the prisoners who made the offer of food.
17. The MS apparently reads “alls,” which makes no sense. BA's text reads “also.” Presumably, the following sentence is an answer by the witness, but even this is uncertain.
18. Panton's commission has not been found. As to the powers of naval officers generally, see No. 51, note 1. The Act of Parliament referred to is 7 & 8 Will. 3, c. 22, §6 (1696).
19. These two sentences are apparently a colloquy between Hutchinson and Fitch over Peacock's testimony, Fitch referring to the testimony taken by the Register of the Court of Vice Admiralty. See text at note 17 above. For Peacock's testimony, see text following note 1072 above.
20. Apparently JA's comment. See text following note 567 above; see also note 2991 below.
21. 2 Hale, Pleas of the Crown 16–17, discusses 28 Hen. 8, c. 15 (1536): “The offender excluded from clergy; but quaere, whether the statute of I Edw. 6 c. 12 (1547) does not restore it even in this case.” The statute Hale mentions, “An Act for the Repeal of Certain Statutes Concerning Treasons and Felonies,” abolished clergy for certain offenses (not including killing on the high seas) and in the same section (§10) specifically allowed clergy “in all other cases of felony other than such as are before mentioned.”
22. 1 Hale, Pleas of the Crown 455:
“Concerning Murder by Malice Implied Presumptive, or Malice in Law. “When one voluntarily kills another without any provocation, it is murder, for the law presumes it to be malicious.” Id. at 457: “The second kind of malice implied is, when a minister of justice, as a bailiff, constable, or watchman, etc. is kild in the execution of his office, in such a case it is murder. If the sheriff's bailiff comes to execute a process, but hath not a lawful warrant . . . if such bailiff be kild, it is but manslaughter, and not murder.”
23. Capias is a writ ordering the sheriff to take the body of the defendant; a distringas orders the sheriff to take goods of the defendant to compel his appearance. Black, Law Dictionary. “[I]f a process issuing out of a court of record to a sergeant at mace, sheriff, or other minister, be erroneous, as if a Capias issue, when a Distringas should issue, yet the killing of such a minister in the execution of that process is murder.” 1 Hale, Pleas of the Crown 457.
24. Mackalley's Case, 9 Co. Rep. 65b, 68a, 77 Eng. Rep. 828, 833–834 (1612). This supports the point in note 2385 above.
25. 1 Hale, Pleas of the Crown 458:
“A bailiff jurus & conus had a warrant to arrest Pew upon a Capias, and came to arrest him, not using any words of arrest, Pew said, Stand off, I know you well enough, come at your peril, the bailiff takes hold of him, Pew thrusts him through; it was ruled murder, tho he used no words of arrest, nor shewed his warrant, for possibly he had not time.” Rex v. Pew, Cro. Car. 183, 79 Eng. Rep. 760 (K.B. 1631).
26. 1 Hale, Pleas of the Crown 458:
“A bailiff having a warrant to arrest Cook upon a Capias ad satisfaciendum came to Cook's house, and gave him notice, Cook menaceth to shoot him if he depart not, yet the bailiff departs not, but breaks open the window to make the arrest, Cook shoots him, and kills him; it was ruled, 1. That it is not murder, because he cannot break the house, otherwise it had been, if it had been upon a Habere facias possessionem. 2. But it was manslaughter, because he knew him to be a bailiff. But 3. Had he not known him to be a bailiff, or one that came upon that business, it had been no felony, because done in defense of his house.” Rex v. Cook, Cro. Car. 537, W. Jones 429, 79 Eng. Rep. 1063, 82 Eng. Rep. 225 (K.B. 1639).
A Habere facias possessionem is a writ directing the sheriff to put the plaintiff in possession of a given piece of realty. Black, Law Dictionary.
27. A place parted off at the fore part of the 'tween decks in some merchantmen, for storing provisions and stores. OED.
28. “The two men belonging to the brig not mentioned in the above account [i.e. the men not in the forepeak], were Americans, they remained on deck the whole time the Rose's people were on board her; the Commodore, out of his great goodness, having given orders, that no American or person married in America, should be pressed.” Boston Chronicle, 1 May 1769, p. 139, col. 2.
29. JA's supplementary notes:
“Thos. Power, Master. 22nd. April. 4 leagues from Cape Ann. The Rose fired 2 Guns, and bro't us to. Lt. and two Midshipmen came on board, in the Cutter. Asked me for my Papers and my Clearance. I said I had none, coming from a foreign Port, except a Bill of Health and a Bill of Lading. Then he asked for a List of my Men. I brought up my Shipping Book and shewed him. He then desired I would go down in the Cabbin with him. I did. He there took an Account of the Peoples Names, and asked where they were? I answerd I know not. He then asked me to order my People to open the Lazaretto. I told him it should be done. While he and I were talking together he ordered his People to go and search and get my Men. He then asked me if I had any particular favour for any Man. He would not take him, but he would set a Mark against his Name. He then said He would have taken only 2, but as they had hid themselves, he would take them all four. Then a Midshipman or Man came down, and told him, he had found the People out and that they had hid, in the forepeak and would not come out for them. Then the Lt. went upon Dick, and I saw him no more alive.”
30. That is, the wooden hood placed over the entrance or staircase to the master's cabin. OED.
31. BA reads this as “tough.”
32. Apparently written over “they.”
33. At this point in the MS are stitched in the eight leaves of rough notes in JA's hand, headed “Witnesses for the Prisoners. Thos. Power, Master. Hugh Hill Mate, John Ronay and James McGloclkin Mariners, on board the Pitt Packett.” The second part of the notes is headed “Witnesses against the Prisoners.” In the present arrangement the text of these notes has been divided up and each witness' remarks appended as footnotes to the full record of his testimony. See note 25 above.
34. The “broad arrow” (↑) was, in this connection, the sign that a vessel had been seized for violation of the Customs Acts. See note 8 above. The letter of the Commissioners of Customs ordering the Pitt Packet admitted to entry at Marblehead listed her cargo, including three small kegs, two cases, one-quarter barrel, and twenty-seven bottles of wine; sixteen bottles of champagne; three kegs of gin; and three-quarters of a barrel of “lemmons.” Commissioners to Salem Customs Officers, 27 April 1769, Salem Custom House Record Book, 1763–1772, fols. 280–281, MSaE.
35. JA's supplementary notes:
“Hugh Hill Mate. Like the Masters [testimony or, more likely, deposition] till—I heard the Commander of the Rose, order Captn. Power to heave too, and lay his Head as theirs was, which he did. Then like the Master untill He went down into the Cabin, with the Master. In 5 minutes he came upon deck, and asked me, if I was Mate? I told him I was. He told me to call the People to answer to their Names. 2, who were upon deck came aft. He asked me where the rest of the People were? I told him, I did not know. He then told me to go, and turn the People up from below, or he would take me. Use your Pleasure. Then his People came and told him, the Briggs People was down in the Forecastle in the Peak. He then went down into the Forecastle, and said to the Men in the Peak, my Lads, you had better come up. They <said> told him no, and to stand off, and that they did not want to hurt him or his Men. He told them, that he had seen as stought Fellows as they, and by God he would have them out, and called his Midshipman, to take 4 Hands in the Boat, and go on board the ship for more Men and Arms, and to bring the Cutter, properly armed. They came on board, and they called for Lights, which were given them. Lt. sent a Midshipman up and demanded Tools, to break down the Bulk Head, and if they did not deliver Tools he would confine the Master. Master said he had no Tools, if they could find any, they might take them. They found an Adz and a Crow bar. In a short Space of Time after, I heard a Pistall go off, and our People told me, one of our People was wounded. In 6 minutes after, I heard another Pistal go off. Immediately after they said the Lt. was dead. Midshipman hailed the ship, and called for the Dr., who came &c. and was asked to dress the wounded Man. He said let the Dog die and be damned. One of their Marines said, he fired a Pistol in Corbetts face by order of the Lt., thinking to make him retreat, which he would not.”
36. JA's supplementary notes:
“John Ronay, Mariner. As the Master. After the Lt. came up from the Cabin, I saw him have the Shipping Book in his Hand, and he asked the Mate, where the People were? Mate replyed, 2 of 'em were forward, and looking over the Shipping Book. Lt. called for Michael Corbit, and then for John Ronay. I answerd to my Name. A Man of Wars man came up and said, one of our People had drove a pair of Grains thro his Trowsers. Upon that the Lt. went forward, and talked to em, and said 'My Lads come up,' and they said they would not come up from where they were. He said then he would force them up. They replyed they did not want to hurt, or any of his Men. Then he orderd a Man to hail the ship, and a midshipman did hail and I got him the Trumpet to hail her. Lt. told one of the Midshipmen to go on board and fetch Men and Arms, and the Master of arms, who came, and jumped over the Ruff trees and swore by his Saviour, the he would have 'em up, asking where are the Dogs? One of their People made answer they are down here in the forepeak. He went down in the forecastle scuttle into the Hold, and in about 20 minutes I heard a Pistal go off. A Midshipman told me one of our People was wounded. About 5 minutes after, I heard another Pistall go off and about 6 minutes afterwards I heard the Lt. was killed.”
37. “they” ?
38. JA's supplementary notes:
“James McGlocklin. Lt. ordered me to give him a Light, which I did, and to go forward with it to the Forecastle. The Lt. was there, talking to the People in the forepeak. He told them to come out, for it would be better for them. They said they would not. He said he would have 'em out. They told him to stand off, for they did not want to hurt him, or his Men. Then I went aft. Heard Lt. order a Man to hail the ship and to take the Cutter, and go on board to get more Men and Arms. Upon the Mens coming on board he ordered me to get another Light and go down into the Hold, and showed him the main Hatchway. The Master of Arms asked me to look for a Crow bar, to break down the Bulk head, where the People were. He looked himself and found one, by the Water cask, and carried it down in the Hold. After that I went into the Steerage, and sat there some time and heard a Pistoll fired. Presently after that a Man of Wars man came up and told me, that one of our People, was wounded. Soon after that I heard another Pistoll and saw Jno. Ryan coming in the Steerage, and helped him over the Water Casks. Then he asked for Water and Cloths, and said he was faint. A few minutes after that, a Report came up that the Lt. was dead, &c.”

Docno: ADMS-05-02-02-0008-0002-0007

Author: Adams, John
Date: 1769-06

Adams' Argument and Report1

Special Court of Admiralty, Boston, June 1769

But, the first Question that is to be made, according to my Opinion, is, whether Impresses in any Cases, are legal? For if Impresses are always illegal, and Lt. Panton acted as an Impress Officer, Michael Corbitt and his Associates had a Right to resist him, and if they could not otherwise preserve their Liberty, to take away his Life. His Blood must lye at his own Door, and they be held guiltless. Nay I think that Impresses may be allowed to be legal, and yet Corbit might have a Right to resist. To be more particular, when I say Impresses may be legal, I mean that the Lieutenant or other officer who Impresses, may not be liable to any Action of false Imprisonment at the suit of the Party, or to any Indictment at the suit of the Crown, for an Assault, or Riot. The Custom may be admitted to extend so far, and yet it will not follow, that the Seaman has not a Right to resist, and keep himself out of the officers Power, if he can. And whatever may be said of the Antiquity of the Custom, &c. it is very remarkable, that no statute has ever been made to establish or even to approve it, and no single Judgment of any Court of Law can be found in favour of it.2 It is { 323 } found in the Commissions of the Admiralty, and in Warrants from the Admiralty, but no where else.
However the General Question concerning the Legality of Impresses may be determined I humbly conceive it clear, that in America, they are illegal. And that by a particular statute. I mean 6. Ann, c. 37, §9.3 “No Mariner, or other Person who shall serve on Board, or be retained to serve on Board any Privateer, or trading Ship or Vessell, that shall be imployed in any Part of America, nor any Mariner or other Person, being on Shore in any Part thereof, shall be liable to be impressed or taken away, or shall be impressed or taken away, by any officer or officers, of or belonging to any of her Majestys Ships of War, impowered by the Lord high Admiral, or any other Person whatsoever, unless such Mariner shall have deserted &c.4 upon Pain that any officer or officers so impressing or taking away or causing to be impressed or taken away, any Mariner or other Person, contrary to the Tenor and true Meaning of this Act, shall forfeit to the Master, or owner or owners, of any such Ship or Vessell, twenty Pounds, for every Man he or they shall so impress or take, to be recovered with full Costs of Suit, in any Court within any Part of her Majestys Dominions.”
This Statute is clear, and decisive, and if it is now in Force, it places the Illegality of all Impresses in America, beyond Controversy. No Mariner on board any trading Vessell, in any Part of America, shall be liable to be impressed, or shall be impressed, by any officer, impowered by the Ld. Admiral, or any other Person. If therefore this Statute is now in Force, all that Lt. Panton did on board the Vessell was tortious and illegal, he was a Trespasser from the Beginning, a Trespasser, in coming on board, and in every Act that he did, untill { 324 } he received the mortal, fatal Wound. He was a Trespasser in going down below, but especially in firing a Pistall among the Men in the Forepeak. It is said that the Lt. with his own Hand discharged this Pistall directly att Michael Corbitt but the Ball missed him and wounded the Man who was next him in the Arm. This therefore was a direct Commencement of Hostilities, it was an open Act of Pyracy, and Corbit and his associates had a Right and it was their Duty to defend themselves. It was a direct Attempt upon their Lives. And surely these unhappy Persons had a Right to defend their Lives. No Custom House officer, no Impress officer has a Right to attempt Life. But it seems that a second Pistall was discharged and wounded Corbit in his Cheek, with Powder before the fatal Blow was struck. What could Corbit expect? Should he stand still and be shot? Or should he have surrendered, to a Pyrate? Should he have surrendered to the Impress?
But it has been made a Question whether this Statute of 6. of Ann is now in Force? It has been reported as the Opinion of Sir Dudley Rider, and Sir John Strange, that this Statute expired with the War of Queen Ann.5 These are venerable Names, but their Opinions are Opinions only of private Men. And there has been no judicial Decision to this Purpose, in any Court of Law, and I trust never will. Their Opinions were expressed so very concisely, that there is great Room to question whether they were given upon the whole Act, or only on some particular Clause in it. Supposing these Opinions to extend to the whole Act, I have taken Pains, to discover what Reasons can be produced in Support of them. And I confess I can think of none. There is not the least Colour, for such an Opinion. On the Contrary, there is every Argument, for supposing the Act perpetual.
1. It is a good Rule, to consider the Title of an Act, in order to ascertain its Construction and operation in all Respects. The Title of this is “An Act for the Encouragement of the Trade to America.” Encouragement of the Trade to America, is [the] professed Object, End and Design of this Law. Is this Trade, only valuable in Time of War? If the Trade to America existed and was carried on only in Time of War, { 325 } the Act made for the Encouragement of it must expire when the Trade expired, at the End of the War. But the Trade did not expire with the War, but continued after it, and therefore, the Encouragement given it, by this Act, continued and survived too. This is of equal Importance in Peace as in War, and there is stronger Reason why it should be incouraged by exempting Seamen from Impresses, in Peace than in War, because there is not the same Necessity for impressing seamen in Peace, as there is in War.
2. The Preamble furnishes another Argument to prove the Act perpetual. “For Advancement of the Trade of her Majestys Kingdom of Great Britain, to and in the several Parts of America.”6 This is one End of this Law. Is not this End as beneficial and Important in Peace as in War? Has there been a Year, a Day, an Hour since 1707 when this Act was made when the Trade of Great Britain, to and in the several Parts of America, was of less Consequence to the Nation, than it was at that Time? Surely the Advancement of the British American Trade, is a perpetual object. It is no temporary object or Expedient, it has lasted these 60 Years, and I hope will last 1000 longer.
3. For the Encrease of Shipping and of Seamen, for the Purposes mentioned before in the Preamble, is another End of this Law. Now shipping and seamen are usefull and necessary to a commercial Nation, in Times of Peace as well as War.
4. Some Clauses in this statute are in their Nature temporary, and limited to the Duration of the War. §2. 3. 4. 5. 6. 7. 8. &c.7 Others are expressly limited to the Continuance of War as §14. “during the Continuance of the present War”8 and §19. during the Continuance thereof9 and §21.10 But §9. and §2o,11 are not by the Nature of them limited to War. They are not expressly and in Terms limited to Years, or to War.
5. If it is not now in force why is it bound up in the statute Book? And why was not the whole Act limited to Years, or to War.
{ 326 }
If it is once established as a Fact that Lt. Panton acted in the Character of an impress officer, not in that of an officer of the Customs; and if it is also established as Law that no officer has a legal Right to impress a seaman; our next Enquiry must be what the Rules of the civil Law are, relative to Homicide in Cases of Self Defence. Self Preservation is first Law of Nature. Self Love is the strongest Principle in our Breasts, and Self Preservation <the most important Duty,> not only our unalienable Right but our clearest Duty, by the Law of Nature. This Right and Duty, are both confirmed by the municipal Laws of every civilized Society.
2. Domat. 638. §6. “He who is attacked by Robbers, or by other Persons, that are armed in such a manner, as to put him in Danger of his Life, in Case he does not defend himself, may kill the Robber or the aggressor, without any fear, of being punished as a Murderer.”12
Woods Inst. civ. Law. 270. “Necessary Homicide is when one for the Defence of his own Life kills the Aggressor. This may be done without expecting the first Blow, for that may make him incapable to defend himself att all. But this ought not to exceed the Bounds of self defence.13 The manner of self Defence, directs that you should not kill, if you can by any means escape,” &c.14
Cod. Lib. 9. Tit. 16. 2. “De eo, qui salutem suam defendit. “Is qui aggressorem vel quemcunque alium, in dubio vitae discrimine constitutus occiderit, nullam ob id factum, calumniam metuere debet. “3. Si quis Percussorem, ad se venientem gladio repulerit, non ut homicida tenetur: quia defensor proprise solutis in nullo peccasse videtur. “4. Si, (ut allegas) latrocinantem peremisti: dubium non est, cum qui inferendae caeedis voluntate prascesserat jure caesum videri. “Liceat 46 cuilibet aggressorem, nocturnum in Agris, vel obsidentem vias, atque insidiantem praetereuntibus, impune occidere, etiamsi miles sit: melius numque est bis occurrere, et mederi, quam injuria accepta vindictam perquirere.”
“Note 46. Homicida non est, qui aggressorem, in vitae discrimine constitutus, interficit nec primum ictum, quis expectare debet, quia irreparabilis esse potest.”15
{ 327 }
Gail. Page 503. Poena homicidii corporalis, nunquam habet locum, nisi in Homicidio voluntario, quando homicidium, ex proposito, destinata voluntate, et quidem dolo malo commissum est. Debet enim verus et expressus intervenire dolus, &c. Et hoc usque adeo verum est, ut etiam lata culpa, non aequiparetur dolo, &c. Dolus non praesumitur regulariter, &c. Quapropter dolum allegans, eum probare debet, &c. Natura enim bona est, a suis Principiis. Ex hac principali Regula, quod videlicit Poena ordinaria, in Homicidio requirat dolum, multa singularia, et quotidie usu venientia inferri possunt. Et primo, quod Homicidium, cum moderamine inculpate tutelar commissum non sit punibile puta, si quis provocatus se cum moderamine inculpate tutaelae defendat, et aggressorem occidat: talis enim Homicida non puniri, sed plene absolvi debet, idque triplici ratione confirmatur. Primo quod Defensio sit Juris naturalis, et omni Jure permissa. Deinde quod Aggressor, sive provocans, non ab alio, sed a seipso occidi videatur. Et per consequens, quod provocatus non censeatur esse in Dolo. Tertio, quia occidens ad sui defensionem, non committit maleficium, cum vim vi repellere liceat, et ubi non est Delictum, ibi Pcena abesse debet.
Et regulariter ex communi opinione, Aggressus, praesumitur omnia facere ad sui defensionem, non autem ad Vindictam Necessitas, Doli Praesumptionem excludit, &c. &c. Ratio, quia necessaria Defensio, omni Jure, etiam divino permissa et sine peccato est. Defensio autem moderata, sive cum moderamine inculpatae tutelar dicitur, quando quis non potuit aliter se ab offensione tueri &c.
Praesumitur autem in Discrimine Vitae quis constitutus, eo ipso, quod ab alio, armata manu, et Gladio evaginato aggreditur, terror ille armorum aliquem in Vitae Discrimen adducit, &c.
Sed quid si provocatus modum inculpatae tutelae excedat, et Aggressorem in fuga occidat, an Poena ordinaria legis Corneliae &c. plectendus sit? Minime, sed extra ordinem, Judicis arbitrio, ratione excessus puniri debet, &c. Ratio, quia ut paulo ante dictum, in provocato non { 328 } praesumitur Dolus, et animus occidendi, aut Vindictae studium, sed potius Defensionis Necessitas. Nee etiam fugere tenetur, si fuga ei Periculum Vitae adferret. Provocatus enim tanquam intense dolore commotus, non est in plenitudine Intellectus: metus improvisus, instantis Periculi tollit Rectum ludicium, et consilium deliberandi, et ideo dicunt DD. quod provocatus non habeat Stateram in manu, ut possit dare ictus, et Vulnera ad Mensuram &c. Puniendus igitur provocatus pro isto excessu, non ut dolosus, quia provocatio praecedens a dolo excusat, sed ut culpabilis, &c.
Adeo autem defensio favorabilis est, ut etiam tertius, puta, Amicus, provocati, si intercedendo, aggressorem occidat, excusetur a Poena ordinaria.16
{ 329 }
Page 509. Sexto infertur, quod Homicidium Calore Iracundiae perpetratum, non puniatur Poena ordinaria, quod est intelligendum de Iracundia lacessita, quando quis ab alio verbis injuriosis, ad Iram provocatur, nam eo casu ita excusat Poena ordinaria &c. quo pertinet, quod supra dictum est, hominem intense dolore permotum, non esse in Plenitudine Intellectus, &c.17
Maranta Page 49. Pars. 4 Dist[inctio] 1. 77. Hoc patet, quia Homi• { 330 } cidium commissum per culpam, dicitur crimen extraordinariam, et punitur poena arbitraria, &c. Ubi si maritus occidit uxorem deprehensam in Adulterio, non punitur poena mortis, sed alia poena corporali mitiori; et ratio est, quia tale Homicidium dicitur culposum, et non dolosum, ex quo difficile fuit temperare justum dolorem cum ergo ex proedictis appareat, quod homicidium culpa commissum puniatur poena arbitraria et extraordinaria; sequitur de necessitate quod non potest Judex imponere Poenam mortis, quae est poena ordinaria; &c.18 Sed vid. Ld. Ray. 149619 and Barringtons Observations on the Statutes page 54, bottom, Note.20
So much for the Distinction between Homicide with Deliberation and without Deliberation, according to the civil Law, which [is] analogous to that of the common Law between Murder and Manslaughter.21 But, the Case of these Prisoners does not require this Distinction. I am not contending for the Sentence of Manslaughter, against my Clients. I think they are intituled to an honourable Acquittal. They have committed no Crime whatever, but they have behaved with all that Prudence And Moderation, and at the same Time with that Fortitude and Firmness that the Law requires and approves.
Mr. Panton and his Associates and Attendants, had no Authority for what they did. They were Trespassers, and Rioters. The Evidence must be carefully recapitulated, their Arms, Swords, Pistals, &c. their Threats and Menaces. Pantons orders for more Men, his orders to { 331 } break down the bulk Head. Their Execution of these orders, their fetching the Adz and the Crow, but above all their Discharge of a Pistal, right in the face of Corbit, which tho loaded only with Powder, wounded him so badly in his Lip, these Circumstances are abundantly sufficient to shew who was the first Aggressor, and to shew that the Lives of the present Prisoners were in danger. What could Corbit think? when a Pistol had been presented at his Mouth and discharged, loaded he knew not with what. It had wounded him, he knew not how badly. <He had reason to suppose> He saw a desperate Gang of armed Sailors, before him, other Pistals, cocked and presented at him, and his Companions, their Heads and Breasts, drawn swords in the Hands of some, continual Threats to blow their Brains out, could he expect any Thing but Death? In these Circumstances what could he do? but defend himself, as he did? In these Circumstances what was his Duty? He had an undoubted Right, not merely to make a push at Lt. Panton, but to have darted an Harpoon, a dagger thro the Heart of every Man in the whole Gang.
If Mr. Panton came as a Custom house Officer, and it may be true that he came in Part, to search the Ship for uncustomed Goods, he had a fair Opportunity to do it. He <ordered> asked and was told, that the Hatchways were open. He ordered the Lazaretto open and it was done, and after this instead of searching for uncustomed Goods he proceeds directly to search for Seamen.
The Killing of Lt. Panton was justifiable Homicide. Homicide se defendendo.
1. Hawkins 71. §[14], middle. “The Killing of dangerous Rioters, by any private Persons, who cannot otherwise suppress them, or defend themselves from them, inasmuch as every private Person seems to be authorised by the Law to arm himself for the Purposes aforesaid.”22
Same page §21. “A Woman [who] kills one who attempts to ravish her, may be justified.”23
Page 72. §23, towards the End, “It seems that a Private Person, and a fortiori an officer of Justice, who happens unavoidably to kill another in endeavouring to defend himself from, or suppress dangerous Rioters, may justify the fact, inasmuch as he only does his Duty in Aid of the public Justice.”24
§24. “I can see no Reason why a Person, who without Provocation is assaulted by another in any Place whatever, in such manner as { 332 } plainly shews an Intent to murder him, as by discharging a Pistall or pushing at him with a drawn sword, may not justify killing such an Assailant.”25
Page 75. §14. “Not only he who on an assault retreats to a Wall, or some such Streight beyond which he can go no further, before he kills the other, is judged by the Law to act upon unavoidable Necessity: But also he who being assaulted in such a manner and such a Place, that he cannot go back without manifestly ind[ang]ering his Life, kills the other without retreating at all.”26
Keyling. Page 128. Bottom. “It is not reasonable for any Man that is dangerously assaulted, and when he perceives his Life in danger from his Adversary, but to have Liberty for the Security of his own Life, to pursue him that maliciously assaulted him; for he that hath manifested that he hath Malice against another is not fit to be trusted with a dangerous Weapon in his Hand.”27
Keyling. Page. 136. Top. Buckners Case. Imprisoned injuriously without Proscess of Law, &c.28
Page 136. 3. Bottom, “sdly. If a Man perceives another by force to be injuriously treated, pressed and restrained of his Liberty, tho the Person abused, doth not complain,29 &c. and others out of Compassion shall come to his Rescue, and kill any of those that shall so restrain him, [that is] Manslaughter.”30
Keyling. 59. Hopkin Huggetts Case, who killed a Man in attempting to Rescue a Seaman impressed without Warrant.31
2. Ld. Raym. Queen vs. Tooley & als. The Case of the reforming Constables. Holt. 485.32
{ 333 }
Holt. 484. Maugridges Case.33
Foster. 312. 316. Vid. Foster 292 the smart &c. for Manslaughter. Also 296.34
A Question has been started by Sir Francis Bernard, whether, (as there is no Distinction between Murder and Manslaughter, in the civil Law,) the Court can allow Clergy, if they find the Prisoners guilty of Manslaughter? i.e. whether the Court can do any Thing but pass sentence of Death and Respite Execution, and recommend them to Mercy? He said he had formerly attended at the Admiralty sessions in England, and had heard it said by the Court, that Clergy was expressly taken away by these statutes from Manslaughter, and the Court could not grant it.
But see a Paragraph in Foster to the Contrary. 288.35
In this Case, I shall not make a Question whether Corbit and others are guilty of Murder, or of Manslaughter. I am clear they are guilty of Neither. All that they did was justifiable Self Defence, or to use the Expressions of most Writers upon Crown Law, it was justifiable and necessary Homicide, se defendendo. This will be fully shewn, by a particular Examination of the Law, and of the Evidence.
But it may not be amiss to consider, the observation of Sir Francis, in order to remove the Clouds from his Brain, 1. It is total Ignorance to say there is no Distinction between Murder and Manslaughter, in the civil Law, as appears abundantly, already.†36 2. I say that Clergy is not expressly taken away by the statutes, from Manslaughter. By the 28. H. 8. all Felonies are to be tryed according to the Common Course of the Laws of this Land. What is the common Course of the Laws of the Land, relative to Manslaughter, which is a Felony? It has its Clergy. It is true the Word Manslaughter is once mentioned in the statute of H. 8. Every Indictment found, &c. of Treasons, Felonies Robberies, Murthers, Manslaughters, or such other offences, &c. then such, order, &c. Judgment and Execution, shall be had, as { 334 } against such offences upon Land.37 What is the Judgment vs. Manslaughter upon Land? They have their Clergy. §3. For Treasons, Robberies, Felonies, Murthers, and Confederacies done at sea, the offenders shall not have Clergy. Here Manslaughter is dropped. So that Clergy is not taken from Manslaughter by this Act.
By 11. and 12. W. 3. Piracies, Felonies and Robberies, are mentioned, but Manslaughter is not. The Word is not in the whole statute. It was needfull to mention it in that of H. 8. because the Tryal was to be by the Law of the Land, and it clearly has its Clergy. But by this statute the Tryal, and Judgment and Sentence were to be all by the civil Law, where the Offence that is called Manslaughter by the common Law, is never punished with death. But it is observable that Clergy is not taken away by this statute from any Crime.
By 4. G. c. 11, §. 7. any Pirate Felon or Robber, within the 11. and 12. W. may be tryd in the manner and Form of 28. H. 8. and shall be excluded Clergy.38 We see that whenever the Tryal is to be by a Jury and the common Law, Clergy is excluded, from such Crimes as were not intituled to it upon Land, and the Reason was because it is a known Rule of Law, that when the Legislature creates any new felony, it shall be intituled to Clergy if not expressly taken away. Doubts might arise, whether making Crimes at sea Felonies, was not creating new felonies, and so they would be intituled to Clergy. To avoid this the Clause was inserted.
† Sed vid. Ld. Ray. 1496.39 And especially Barringtons Observations on the Statutes page 54, bottom. Note.40
Barrington. 54. “By the Law of Scotland there is no such Thing as Man Slaughter, nor by the civil Law; and therefore a criminal indicted for Murder, under the Statute of Henry the Eighth, where the Judges proceed by the Rules of the civil Law, must either be found guilty of the Murder or acquitted.”
Ld. Ray. 1496. “From these Cases it appears, that though the Law of England is so far peculiarly favourable (I use the Word peculiarly, because I know no other Law, that makes such a Distinction between Murder and Manslaughter) as to permit the Excess of Anger and { 335 } Passion (which a Man ought to keep under and govern) in some Instances to extenuate the greatest of private Injuries, as the taking away a Mans Life is; Yet in these Cases, it must be such a Passion, as for the Time deprives him of his reasoning Faculties;”41
Foster 288.42 If taking general Verdicts of acquittall in plain Cases of Death per Infortunium, &c. “deserveth the Name of a Deviation, it is far short of what is constantly practised at an Admiralty sessions, under 28. H. 8 with Regard to offences not ousted of Clergy by particular Statutes,43 which had they been committed at Land, would have been intitled to Clergy. In these Cases the Jury is constantly directed to acquit the Prisoner; because the Marine Law doth not allow of Clergy in any Case, and therefore in an Indictment for Murder on the high seas, if the fact cometh out upon Evidence to be no more than Manslaughter, supposing it to have been committed at Land, the Prisoner is constantly acquitted.”
Observations on Statute 422. Note (z). “I have before observed, that by the civil Law, as well as the Law of Scotland, there is no such offence as what is with us termed Manslaughter: The Scotts, therefore might have apprehended, that if not convicted of Murder they should have been acquitted.”44
1. In JA's hand, in his Admiralty Book, Adams Papers, Microfilms, Reel No. 184, continuing Doc. II. Printed in 2 JA, Works 528–534. It is impossible to say accurately how much of this document is JA's notes for actual trial use and how much is his subsequent embryonic report. See text at note 24 above. See also note 1250 above.
2. This contention is subject to qualification: “It is quite certain that the Crown had the power to impress mariners for the navy. The statutes of the Long Parliament which provided for their impressment practically assume this. There is no recital in them that impressment is contrary to the liberty of the subject; and . . . they would have contained such a recital, if Parliament had thought the practice illegal.” 4 Holdsworth, History of English Law 329. “[T]he compulsion of men to go beyond or upon the sea, or otherwise imprisoning them, or compelling men to take prest money, or otherwise imprison them hath been, I Confess, a practice long in use.” 1 Hale, Pleas of the Crown 678. And, for a thorough contemporary review of the law, see Rex v. Broadfoot, Foster, Crown Cases 154 (Recorder's Court, Bristol 1743). Mr. Recorder (later Mr. Justice) Foster admitted that he knew “of no Statute now in force, which directly and in express Terms impowereth the Crown to press Mariners into the Service. And admitting that the Prerogative is grounded on immemorial Usage, I know of no Necessity for any such Statute.” Id. at 168. Authority to impress was usually conveyed by Admiralty warrant issued pursuant to Orders in Council. Id. at 154–155. No warrant in the name of Panton, or Captain Caldwell of the Rose has been found. Since the Crown did not urge the warrant as a basis for Panton's actions, there may have been none.
3. “An act for the encouragement of the trade to America” (1707). The emphasis is JA's. Quotation marks supplied.
4. JA omits: “from such ship of war belonging to her Majesty at any time after the fourteenth day of February, one thousand seven hundred and seven.”
5. Dudley Ryder (1691–1756) was attorney general of England, 1737–1754; John Strange (1691–1754) was solicitor general, 1737–1742. DNB. In 1740, they signed a joint opinion: “We have perused the several clauses in the American Act, and by comparing the several clauses together, it seems to us, that the Act is not now in force, but expired at the end of the war.” Chalmers, Opinions 232. See also Clark, “The Impressment of Seamen in the American Colonies,” in Essays in Colonial History Presented to Charles McLean Andrews 198, 212 (New Haven, 1931). In 1716, Sir Edward Northey, the attorney general, had given an identical opinion. Chalmers, Opinions 232.
6. JA omits: “for the further encouragement of her Majesty's ships, and private ships of war, the annoying and diminishing the wealth and power of her Majesty's enemies in those parts, and for the encrease of shipping and of seamen for these and other services.”
7. These sections concern prize procedure.
8. §14 concerns privateers.
9. § 19 relaxes “during the continuance of this present war, and no longer,” the requirement of the Navigation Act, 12 Charles 2, c. 18, §1 (1660), that privateers and trading ships must have a British master and a crew three-fourths British.
10. §21 relaxes “during the continuance of the present war” the requirement of the Navigation Act, 12 Car. 2, c. 18, §1 (1660), that all British ships be British-built.
11. §20 concerns naturalization of foreign seamen serving in British ships.
12. 2 Domat, Civil Law 638. Quotation marks supplied in this and following citations by JA.
13. JA omits: “Now those bounds may be observ'd with respect to the manner, the time and the cause.”
14. Wood, New Institute of the Civil Law 270. JA omits: “for you are bound to fly if it may be without danger. Neither is such flight ignominious even in a Soldier.”
15. Justinian, Codex, bk. 9, tit. 16, “§2. Of those who defend their own safety. He who, when in danger of his life, kills his aggressor or anyone else, should have no fear of prosecution on this account. “§3. When anyone kills another who attacks him with a sword, he should not be considered a homicide, for the reason that the defender of his own life is not held to have committed an offense. “§4. If (as you state) you have killed a robber, there is no doubt that it will be decided that you have lawfully killed him who had the intention of depriving you of life.” See 15 Scott, Civil Law 29–30.
The editors have translated the material following “Liceat” as follows:
“It is lawful (46) to kill with impunity one who attacks by night in the fields, or blockades the highways, and lies in ambush for passersby, even if he be a soldier. For indeed it is doubly better to attack, than for an injury suffered to be healed, and to seek vengeance.
“Note 46. He is not a murderer who, in peril of his life, kills an attacker, nor ought anyone to wait for the first blow, because it might be irreparable.”
16. Andreas Gail, Practicarum observationum tam ad processum judiciarum praesertim imperialis camerae quam causarum decisiones pertinentium 503–506 (Cologne, 1721). The editors' translation follows; passages omitted by JA, except omitted citations, appear in brackets:
Corporal punishment of homicide never takes place except in the case of voluntary homicide, when the homicide is perpetrated by design, deliberately, and also with malicious intent. A genuine and express evil intent ought to appear [in such a case, for the punishment of the Lex Corneliae on murder to apply]. And this is always true—to such an extent that even gross fault is not equated to evil intent. [And this is the first extension of this original rule. Secondly, it is extended so that it may apply to statutes imposing capital punishment for homicide, which statutes receive an interpretation at common law. Therefore, they are to be understood to concern homicide committed with evil intent. Hence it is considered the rule in offenses requiring evil intent, that in the absence of evil intent an offense is not committed, at least for purposes of corporal or ordinary punishment.] Evil intent, [moreover,] is not regularly presumed. Therefore he who alleges evil intent ought to prove it [since one is clearly presumed to be lacking in evil intent until the contrary be proved]. For nature lacks evil intent from its origins, [and as its origins are, so its later development is presumed to be. Moreover, evil intent is proved by various circumstances—by place, time, type of weapons, violence itself. And evil intent is regularly presumed from an illegal act—when someone does an illicit thing by that fact alone he is judged to be of evil intent.] From this first rule, that plainly an ordinary penalty in homicide demands evil intent, many unique things which are becoming matters of practice can be inferred. And the first of these is that homicide which has been committed with the excuse of guiltless self-defense is not punishable: for consider the case where a person is provoked and defends himself with the excuse of guiltless self-defense and kills the aggressor—such a murderer ought not to be punished but fully absolved, and this is confirmed on three grounds: First, because defense belongs to natural law and is permitted by every legal system, [which we share with dumb animals.] Secondly, because if the aggressor is the provoker, he is considered slain by his own hand and not by another [and consequently the provoked party is not judged to be of evil intent]; thirdly, because the person killing does not perpetrate an evil deed in defense of himself, since it is lawful to meet force with force, and where there is no offense, then there should be no punishment.
And the rule of common opinion is that a person who has been attacked is presumed to do everything in his own defense and not for revenge: necessity rules out the presumption of evil intent. The reason is that necessary defense is allowed by all law—even the divine—and is without sin. Moreover, defense is considered reasonable if with the excuse of guiltless self-defense, when a person could not defend himself from mishap in any way other [than in the manner by which he defends himself, as, for example, if, having been placed in peril of his life, he defends himself in the best way that he can, the one who challenged him is not slain unjustly]. Moreover, someone is presumed to have been placed in a position of peril when he is attacked by another man who has arms in hand and his sword unsheathed by this very fact, that fear of weapons puts anyone in such a position.
[Therefore, in order to obtain absolution or withdrawal of the accusation of the homicide committed, the person provoked ought to plead clearly the two most important items, namely the provocation and the necessary defense, and prove them by way of purgation and innocence.]
But what if once provoked he goes beyond the manner of guiltless self-defense and slays the attacker who is in flight? Would he then have to be punished by the ordinary punishment of the Lex Corneliae [concerning murderers]? Certainly not— rather, he who has exceeded reason ought to be punished by the decision of a judge in a manner other than that laid down by the law. The reason is that, as stated a while ago, evil intent and the intent to kill are not presumed to exist in the person provoked, nor is an eagerness for revenge presumed, but rather the need for defense. Nor is he even bound to flee, if flight would bring him in danger of his life: for a person provoked, just as one moved by intense vexation, does not have complete possession of his faculty of understanding: unexpected dread of impending danger removes correct judgment and prudent deliberation: and therefore the commentators say that the man provoked does not have scales in his hand to measure blows and wounds.
[Wherefore it is relevant, that when it is a matter of excusing wrongs, a principle —and not a conclusion—is sought.] Therefore the provoked person ought to be punished for that excess, not as a person of evil intent (since the previous provocation excuses him from evil intent) but as one guilty through fault [(since he exceeded the reasonable limits of guiltless self-defense)].
Moreover, defense is likewise favored, as even where a third party, for example, a friend to the provoked man, is excused from the usual punishment if he intercedes and slays the attacker.
17. Gail, Practicarum observationum 509. The editors' translation follows; passages omitted by JA, except omitted citations, appear in brackets:
Sixthly, it is inferred that homicide committed in the heat of anger is not to be punished in the ordinary way because inquiry must be made as to wrath which has been provoked, when someone is provoked to anger by another man because of damaging language: for in that case he is thus excused from the ordinary punishment. [And it is necessary to investigate what was the nature of this proneness to anger which has deprived the wrongdoer of reason: for angry men are wholly upset in the mind and lack the use of reason and know not how to speak and cannot use their senses, and have so much trouble speaking that they are consequently presumed to lack evil intent, and the will to inflict harm arises from an excessive proneness to anger, which an armed wrath, so to speak, feeds.] Wherefore it is relevant, as stated above, that a man who has been spurred by intense vexation is not in full possession of his understanding. [Further, it is most difficult to control righteous vexation of the mind.]
18. Robertus Maranta, Praxis, sive de ordine judiciorum . . . vulgo speculum aureum et lumen advocatorum 51 (Cologne, 1614). The editors' translation follows; passages omitted by JA, except omitted citations, appear in brackets:
This is evident, because homicide perpetrated by fault is said to be an offense which the law does not cover and is punished with discretionary penalties. Whenever a married man slays the wife he has caught in an act of adultery, he is not given the death penalty but another milder corporal punishment; and this is because this sort of homicide is said to have been committed through fault, but not with evil intent, since it occurred in a situation in which it was difficult to control righteous indignation. [For in his guilty frame of mind there was an element missing due to the justification, and so he is punished more mildly than the man with a guilty frame of mind.] Therefore, since it appears from the aforesaid that a homicide perpetrated through fault is to be punished by a penalty that is discretionary and out of the ordinary course, it necessarily follows that a judge cannot impose the death penalty, which is the ordinary punishment [for in his discretionary judgments a judge can never impose a punishment like an ordinary punishment for a similar wrong].
19. Rex v. Oneby, 2 Ld. Raym. 1485, 1496, 92 Eng. Rep. 465, 472 (K.B. 1727). Held: Killing after aroused passions have had reasonable time to cool is murder.
20. See text at note 40140 below.
21. JA made this point at somewhat greater length, citing the authorities in notes 15–20115–120 above, in a footnote to the published version of his argument in the trial of the British soldiers. See No. 64, note 41218. He also used this argument again before a Special Court of Admiralty in Rex v. Nickerson, No. 57.
27. Reg. v. Mawgridge, Kelyng 119, 128, 84 Eng. Rep. 1107, 1111 (Q.B. 1706).
28. The Protector v. Buckner, Style 467, 82 Eng. Rep. 867 (U.B. 1655), cited in Reg. v. Mawgridge, Kelyng 136, 84 Eng. Rep. at 1114. Held: Stabbing upon provocation of false imprisonment is not within the Statute of Stabbings, I Jac. 1, c. 8 (1603), and hence the prisoner is entitled to clergy.
29. JA omits: “or call for Aid or Assistance.”
30. Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1706).
31. Rex v. Hugget, Kelyng 59, 84 Eng. Rep. 1082 (Newgate Gaol Delivery 1666). Held: Killing while attempting to rescue man impressed without a warrant is manslaughter.
32. Reg. v. Tooley et al., 2 Ld. Raym. 1296, 92 Eng. Rep. 349; sub nom. The Case of the Reforming Constables, Holt K.B. 485, 90 Eng. Rep. 1167 (Q.B. 1709). Constable arrests a woman without a warrant; prisoners attempt to rescue her; constable calls deceased to aid him; one of the prisoners kills deceased. Held: Manslaughter, because constable was not acting within his authority, and the prisoners had sufficient provocation to attack him. “[I]f one be imprisoned upon an unlawful authority it is a sufficient provocation to all people out of compassion; much more where it is done under a colour of justice, and where the liberty of the subject is invaded it is a provocation to all the subjects of England.” 2 Ld. Raym. at 1301, 92 Eng. Rep. at 352; see also Holt K.B. at 489, 90 Eng. Rep. at 1169.
33. Reg. v. Mawgridge, Holt K.B. 484, 90 Eng. Rep. 1167 (Q.B. 1706).
34. Foster, Crown Cases, discusses, at 312 and 315–316, Reg. v. Tooley, note 32132 above; at 292, Reg. v. Stedman (unreported) (Old Bailey 1704), in which one who killed a woman after she struck his face with an iron patten was held guilty of manslaughter only, because of the “smart” of his wound; at 296, Reg. v. Mawgridge, note 27127 above. At this point in the MS appears the narrative set out in text following note 150 above.
35. Foster, Crown Cases 288–289; JA sets out the text at note 42142 below.
36. See text at notes 15–21115–121 above. The dagger appears in the MS, and refers to the text at notes 39–44139–144 below.
37. An accurate condensation of 28 Hen. 8, c. 15, §2 (1536).
38. 4 Geo. 1, c. 11, §7 (1717). See text at notes 14–1552–53 above.
39. Rex v. Oneby, note 19119 above.
40. Barrington, Observations upon the Statutes 54 note (k). The text appears in JA's next paragraph. JA used this and the passage from Lord Raymond in a footnote to the published text of his argument in the trial of the British soldiers. See No. 64, note 41218. Quotation marks have been supplied here and below.
41. See note 19119 above.
42. Foster, Crown Cases 288–289. JA has paraphrased Foster's opening: “I therefore think those Judges who have taken general Verdicts of Acquittal in plain Cases of Death per Infortunium . . . have not been to Blame. They have, to say the worst, deviated from antient Practice in Favour of Innocence.”
43. Foster cites, among other examples, 11 & 12 Will. 3, c. 7 (1700) and 4 Geo. 1, c. 11 (1717).
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/