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Browsing: Legal Papers of John Adams, Volume 2

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

Author: Adams, John
Date: 1773-07

Adams' Notes of Authorities1

Special Court of Admiralty, Boston, July 1773

Ansell Nickersons Case.
Woods. Inst. 675, middle. “The Confession of the Defendant to private Persons, or to a Magistrate, out of Court, is allowed to be given in Evidence against the Party confessing; but this Confession cannot { 341 } be made use of against any other. But where a Man's Confession is made use of against him, it ought to be taken alltogether, and with that part which makes for him as well as with that which makes against him.”2
Vin. Tit. Evidence, page 95. A. b. 23. “3. In an Information for publishing a Libel, the Defendants own Confession was given in Evidence against him, but per Holt C.J. if there was no other Evidence against him but his own Confession, the whole must be taken, and not so much of it as would serve to convict him. 5. Mod. 167. King v. Pain. Hill. 7. W. 3.” Note. “So if to prove a Debt it be sworn that Defendant confessed it, but withal said at the same Time, that he had paid it, this Confession shall be valid as to the Payment, as well as to his having owed it. Per Hale Ch. J. and so is the common Practice. Try. per Pais 209.”3
Vin. Tit. Evid. p. 96. Top. “4. Confession is the Worst Sort of Evidence.” i. e. &c.4 “6. The Examination of the Prisoner himself (if not on oath) may be read as Evidence against him; but the Examination of others (though not on oath) ought not to be read if they can be produced, viva voce.”5
2. Bac. Abr. 313 “Of the Parties Confession. “But wherever a Mans Confession is made use of against him, it must be taken alltogether and not by Parcells.” 2. Hawk. 4296
{ 342 }
2. Try. Pr. Pais 427. Same as Viner.7
5. Mod. Rex vs. Paine. 165. “If Confession shall be taken as Evidence to convict him it is but justice and Reason, and so allowed in the Civil Law, that his whole Confession shall be Evidence as well for as against him.” Page 167, middle, “if there was no other Evidence against him but his own Confession, the whole must be taken <together>, and not so much of it as would serve to convict him.”8
2. Hawk. P.C. 429. “§5. It seems an established Rule, that wherever a Mans Confession is made use of against him, it must all be taken together and not by Parcells.”9
2. Hale. H.P.C. 290. “Never convict of Murder or Manslaughter unless the Fact be proved to be done or at least the Body found dead.”10
4 Black. 352. Fourthly.11
Dig. Lib. 29. Tit. 5. §24. “Nisi constet aliquem esse occisum, non habui de familia quaestionem.”12
2 Domat. 667.13
{ 343 }
Civil Law.
Woods Inst. 310 “In Criminal Cases, the Proofs ought to be as clear as the sun at Noon day.”14
Cod. Lib. 4. Tit 19. §25. De Judiciis criminalibus. “Sciant cuncti accusatores eam se rem deferre in publicam notionem debere, quaemunita sit idoneis Testibus, vel instructa apertissimis documentis, vel indiciis, ad probationem indubitatis, et luce clarioribus expedita.” Vid. notes also.15
Maranta. page 49. pars 4. dist. 1. 77.16
Gail. Page 503. “debet venis et expressus intervenire Dolus,” &c. “Lata culpa, non aequiparatur dolo.” &c. “Dolus non praesumitur,” &c. “Quapropter dolum allegans, eum probare debet.”17
Page 509.18
Examen Juris canonici 335. 343. Quid est confessio et quid operatior extra judicialis Confession in criminalibus.19
Maranta. Sp. Aur. 313. 114. especially.20 See Calvins Lexicon Tit. confiteri. Capitulum.21
2. Cor. Jur. Can. 118 page of the Inst. De probationibus.22
{ 344 }
Number of Witnesses.
New Institute of the civil Law page 316. 2.23 Dig. Lib. 22. Tit. 5 §12.24
Cod. Lib. 4. Tit. 20. §9. §1. and Notes.25
St. Tryals. V. 8. page 213. Tryal of Captn. John Quelch and others, at Boston.26
St. Tryals. V. 6. 156. Tryal of Major Stede Bonnett at So. Carolina, and 33 others.27
Statutes. 28. H. 8, c. 15. “For Pirates.” 11. & 12. W. 3, c. 7. for the more effectual Supression of Piracy. 4 G, c. 11. For the further preventing of Robbery &c. and for declaring the Law upon some Points relating to Pirates. §7.28
Foster 288.29 Barrington 54, bottom, Note.30
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185. Docketed by JA: “Ansell Nickerson's Case. Evidence, Confession, Judication,” the three issues with which these notes deal. Intervals of space indicate space breaks in the MS. JA's outline of his own argument is appended to these notes in the MS, but it is here printed separately (Doc. III), so that the arguments can be presented in the order in which they were presumably given. See note 187 below.
2. The passage appears in Wood, Institute of the Laws of England 671 (London, 9th edn., 1763). JA seems to have cited the wrong page inadvertently. This is the only edition in which there are more than 663 pages, 1 Sweet and Maxwell, Legal Bibliography 38. Quotation marks have been supplied.
3. 12 Viner, Abridgment 95, tit. Evidence, plea A. b. 23, no. 3. Quotation marks supplied. For King v. Pain, see note 833 below. The “note” in the text appears in the margin in Viner; it is a quotation, with very minor discrepancies, from Buncombe, Tryals per Pais 209 (London, 3d edn., 1700). The same passage appears at p. 363 in Volume 2 of the 1766 edition of the latter work, cited below by JA, note 732.
4. 12 Viner, Abridgment 96, tit. Evidence, plea A. b. 23, no. 4. Quotation marks supplied. The passage reads in full, “Confession is the worst sort of Evidence that is, if there be no Proof of a Transaction or Dealing, or at least a Probability of Dealing, between them as in the Principal Case there was, the one being a Sailor, the other a Master of a Ship. Per Holt. 7 Mod. 42. Mich, 1 Ann. B.R. Anon.”
5. 12 Viner, Abridgment 96, tit. Evidence, plea A. b. 23, no. 6. Quotation marks supplied. JA has omitted the citation: “St. Tr. 1 Vol. 169. 780.—2 Vol. 575.”
6. 12 Bacon, Abridgment 313, tit. Evidence, L. Quotation marks supplied. JA has omitted the preceding paragraph, which states that the defendant's confession, whether taken according to law by a justice of the peace or magistrate, “or spoken in private Discourse,” may be used against him. Both this passage and the sentence quoted in the text appear in substantially similar form in 2 Hawkins, Pleas of the Crown 429, which is cited in the margin in Bacon. See notes 934, 490, below.
7. 2 Duncombe, Trials per Pais 427 (8th edn., 1766). The passage contains several more or less accurate quotations from 12 Viner, Abridgment 95–96, including those cited in notes 328 and 429 above.
8. Rex v. Paine, 5 Mod. 163, 165, 167, 87 Eng. Rep. 584, 585, 586 (K.B. 1695). Quotation marks supplied. See note 328 above. In an information for publishing a criminal libel the defendant had confessed that he had written the libel at another's dictation and then had delivered it to one Brereton by mistake. There was also the evidence of the defendant's servant that the libel had been repeated in a room in the presence of a Dr. Hoyle after the defendant had brought in a writing. The jury gave a special verdict raising the question of the defendant's guilt as composer of the libel, but finding him not guilty of publication. The passage quoted from p. 165 is apparently part of the argument of counsel to the jury that that portion of the confession which indicated delivery by mistake must also be taken into account and read to show that there was no publication. The passage from p. 167 is part of the opinion of the court, conceding that if the confession were the only evidence on the question of publication, the defendant was not guilty. The court went on to state, however, that the servant's testimony was also evidence of publication, if it could be established that the paper brought into the room was the libel. The court adjourned without giving judgment.
9. 2 Hawkins, Pleas of the Crown 429, §5. Quotation marks supplied. The passage is cited by Bacon, note 631 above.
10. 2 Hale, Pleas of the Crown 290. Quotation marks supplied.
11. That is, 4 Blackstone, Commentaries *352: “Fourthly, all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” Blackstone then recites the passage quoted from Hale, note 1035 above.
12. That is, Justinian, Digest, bk. 29, tit. 5, law I, §24, cited by Hale, note 1035 above, a passage construing a senatorial decree which inflicted torture upon slaves of a master who met a violent death. Quotation marks have been supplied. See 6 Scott, Civil Law 320: “Unless it is established that a man has been killed, his slaves ought not to be tortured.”
13. 2 Domat, Civil Law 667, a passage stating the general rule that a confession is to be taken as proof of the fact confessed unless the contrary be established affirmatively. “And this Rule has only one Exception in Accusations of Capital Crimes, where it is not enough that the Party who is accused confesses a Crime which is not proved; but other Proofs are necessary for putting him to Death besides his own Confession, which might be an Effect of Melancholy or Despair, or proceed from some other Cause than the Force of Truth.”
14. Wood, New Institute of the Civil Law 310. Quotation marks supplied. Compare No. 46, note 42119.
15. Justinian, Codex, bk. 4, tit. 19, §25. Quotation marks supplied. See No. 46, notes 47–48124–125.
16. Maranta, Speculum Aureum, pars IV, Distinctio I, §77. Quoted, No. 56, note 18118.
17. Gail, Practicarum Observationum 503, quoted in No. 56, note 16116, from which the passage here was probably extracted. Quotation marks have been supplied.
18. Gail, Practicarum Observationum 509. See No. 56, note 17117.
19. Presumably a reference to Gregor Kolb, Examen Juris Canonici, juxta V. libros decretalium (Vienna, 1728), a work which JA owned. See Catalogue of JA's Library 136.
20. Maranta, Speculum Aureum 313. “114” is presumably an inadvertence for p. 314. See text preceding note 490 below. In JA's copy at the Boston Public Library two passages on these pages are marked. The first states that, even though the defendant's confession contains matter favorable to himself, this must be proved, as in a confession that he killed in self-defense. The second adds the important qualification that on the basis of such a confession the defendant cannot be condemned to death, as for a homicide, but must be given the lesser penalty of banishment.
21. Johannes Calvinus, Lexicon Juridicum Juris Caesarei Simul, et Canonici, tits., Confiteri, Capitulum (Geneva, 1622). It has not been possible to determine exactly the passages under these heads to which JA referred. The title “Capitulum” seems to contain nothing relevant. Under “Confiteri” there are several general statements concerning confessions which JA may have intended. The citation is omitted in the notes from which he argued (Doc. III).
22. Apparently a reference to Institutiones Juris Canonici 118 (Basel, ed. J. P. Lancelottus, 1695), bound with separate paging as part of Corpus Juris Canonici (Basel, ed. J. P. Lancelottus, 1696). At the cited page appears bk. 3, tit. 14, “De Probationibus,” a title beginning with several sections concerning proof by confession of the parties.
23. Wood, New Institute of the Civil Law 316, §2, set out in No. 46, notes 29–30106–107.
24. Justinian, Digest, bk. 22, tit. 5, §12, set out in No. 46, at note 31108.
25. Justinian, Codex, bk. 4, tit. 20, §9, §1, set out in No. 46, at note 32109.
26. Reg. v. Quelch et als., 8 State Trials 205, 213 (Boston, Ct. of Adm., 1704). Quelch and his crew had taken over a privateer when the master died, and had preyed on friendly shipping in the South Atlantic. The cited page contains a series of objections to the evidence by Quelch's counsel. JA's use of the passage in his argument (Doc. III) indicates that he here referred to an argument that the civil-law rules for accrediting witnesses should apply. This contention, like all the others made for Quelch, was rejected by the court. Quelch and several of his accomplices were ultimately condemned and executed on 30 June 1704.
27. Rex v. Bonnet, 6 State Trials 156 (S.C. Vice Adm., 1718). See No. 56, at note 1654.
28. See 28 Hen. 8, c. 15 (1536), set out in No. 56, at notes 2–540–43; 11 & 12 Will. 3, c. 7 (1700), set out, id., at notes 2–544–49 (see also note 257 below); 4 Geo. 1, c. 11, §7 (1717), set out, id., at notes 14–1552–53.
29. See Foster, Crown Cases 288–289, indicating that there is no crime of manslaughter in Admiralty, set out in No. 56, at notes 42–43142–143.
30. See Barrington, Observations upon the Statutes 54, stating that there is no crime of manslaughter under the civil law, set out in No. 56, at note 40140.
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