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 1 87 below.

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.

12 Viner, Abridgment 95, tit. Evidence, plea A. b. 23, no. 3. Quotation marks supplied. For King v. Pain, see note 8 33 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 7 32 .

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.”

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.”

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 9 34 , 4 90 , below.

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 3 28 and 4 29 above.

Rex v. Paine, 5 Mod. 163, 165, 167, 87 Eng. Rep. 584, 585, 586 (K.B. 1695). Quotation marks supplied. See note 3 28 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.

2 Hawkins, Pleas of the Crown 429, §5. Quotation marks supplied. The passage is cited by Bacon, note 6 31 above.

2 Hale, Pleas of the Crown 290. Quotation marks supplied.

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 10 35 above.

That is, Justinian, Digest, bk. 29, tit. 5, law I, §24, cited by Hale, note 10 35 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.”

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.”

Wood, New Institute of the Civil Law 310. Quotation marks supplied. Compare No. 46, note 42 119 .

Justinian, Codex, bk. 4, tit. 19, §25. Quotation marks supplied. See No. 46, notes 47–48 124–125 .

Maranta, Speculum Aureum, pars IV, Distinctio I, §77. Quoted, No. 56, note 18 118 .

Gail, Practicarum Observationum 503, quoted in No. 56, note 16 116 , from which the passage here was probably extracted. Quotation marks have been supplied.

Gail, Practicarum Observationum 509. See No. 56, note 17 117 .

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.

Maranta, Speculum Aureum 313. “114” is presumably an inadvertence for p. 314. See text preceding note 4 90 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.

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).

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.

Wood, New Institute of the Civil Law 316, §2, set out in No. 46, notes 29–30 106–107 .

Justinian, Digest, bk. 22, tit. 5, §12, set out in No. 46, at note 31 108 .

Justinian, Codex, bk. 4, tit. 20, §9, §1, set out in No. 46, at note 32 109 .

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.

Rex v. Bonnet, 6 State Trials 156 (S.C. Vice Adm., 1718). See No. 56, at note 16 54 .

See 28 Hen. 8, c. 15 (1536), set out in No. 56, at notes 2–5 40–43 ; 11 & 12 Will. 3, c. 7 (1700), set out, id., at notes 2–5 44–49 (see also note 2 57 below); 4 Geo. 1, c. 11, §7 (1717), set out, id., at notes 14–15 52–53 .

See Foster, Crown Cases 288–289, indicating that there is no crime of manslaughter in Admiralty, set out in No. 56, at notes 42–43 142–143 .

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 40 140 .

In JA's hand. Adams Papers, Microfilms, Reel No. 185. The notes have been dated from a contemporary newspaper account. See text at notes 17, 18, above.

11 & 12 Will. 3, c. 7, §9 (1700):

“And be it further enacted, That if any commander or master of any ship, or any seaman or mariner, shall, in any place where the admiral hath jurisdiction, betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his or their ship or ships, or any barge, boat, ordnance, ammunition, goods, or merchandizes, or yield them up voluntarily to any pirate, or shall bring any seducing messages from any pirate, enemy, or rebel, or consult, combine, or confederate with, or attempt or endeavour to corrupt any commander, master, officer, or mariner, to yield up or run away with any ship, goods, or merchandizes, or turn pirate, or go over to pirates, or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defense of his ship and goods committed to his trust, or that shall confine his master, or make, or endeavour to make a revolt in the ship, shall be adjudged, deemed, and taken to be a pirate, felon, and robber, and being convicted thereof, according to the directions of this act, shall have and suffer pains of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas ought to have and suffer.”

25 Edw. 3, stat. 5, c. 2 (1350), defined petit treason as “When a servant slayeth his master, or a wife her husband, or when a man secular or religious slayeth his prelate, to whom he oweth faith and obedience.” Fitch may here have been quoting or paraphrasing 1 Hawkins, Pleas of the Crown 98, c. 37, Of Piracy, §2: “It is said that before 25 Ed. 3. this Offense [Piracy] was punished at Common Law as Petit Treason, if committed by a Subject, and as Felony, if committed by a Foreigner: However it seems agreed, that after that Statute by which all Treason is confined to the Particulars therein set down, it was cognizable only by the Civil Law.” Compare 4 Blackstone, Commentaries *71.

1 Domat, Civil Law 413, bk. 3, tit. 6, Of Proofs, and Presumptions, and of an Oath: “We call that a Proof which convinces the Mind of a Truth.”

1 Domat, Civil Law 414:

“But if it [the identity of the murderer of one killed alone on the highway at night] is discovered, it will be only by Proofs that may be drawn from circumstances which shall happen to be linked together with this Crime, and which will depend on Events that have happened by accident, such as the casual rencounter of some Witnesses, and such signs and tokens as there may happen to be, conjectures, and presumptions.”

1 Domat, Civil Law 415:

“It may be gathered from these Remarks, that there are two sorts of Presumptions: Some of which are drawn by a necessary consequence from a Principle that is certain; and when these sorts of Presumptions are so strong, that one may gather from them the certainty of the Fact that is to be proved, without leaving any room for doubt, we give them the name of Proofs, because they have the same effect, and do establish the truth of the Fact which was in dispute. The other Presumptions are all those which form only Conjectures, without certainty; whether it be that they are drawn only from an uncertain Foundation, or that the consequence which is drawn from a certain Truth is not very sure.

“It is because of the difference between these two sorts of Presumptions, that the Laws have appointed some of them to have the force of Proofs, and have not left the Judges at liberty to consider them only as bare Conjectures, because in effect these sorts of Presumptions are such, that one sees in them a necessary connexion between the truth of the Fact that is to be proved, and the certainty of the Facts from whence it follows.”

1 Domat, Civil Law 430, bk. 3, tit. 6, Of Presumptions, §4: “Presumptions are of two kinds, some of them are so strong, that they amount to a certainty, and are held as Proofs, even in Criminal Matters. And others are only conjectures which leave some doubt.”

2 Domat, Civil Law 666, presumably a reference to a passage on the cited page describing the four ways of proving facts in court: “The Confession of the Party, the Testimony of Persons who know the Fact, the Evidence which arises from Deeds and Writings, and the Knowledge of certain Facts, which are linked in such a Manner with that whereof we search the Truth, that one may gather the said Truth from the Connection there is between the Fact in question and those of which the Truth is proved.” Immediately following in the text is the passage cited by JA, note 13 38 above, and cited by him in argument, text following note 4 90 below.

Wood, New Institute of the Civil Law 302 (London, 4th edn., 1730): “Proof is either (plena) a full proof, as by two Witnesses or a publick Instrument; or (semiplena) an half proof, as one Witness or a private Writing; so that two half proofs being joined together (though of a different nature) make one full proof.” Note that the edition cited here and in note 10 65 below by Fitch is that of 1730. JA's citations to this work in this case and elsewhere are to the first edition of 1704.

Wood, New Institute of the Civil Law 305 (London, 4th edn., 1730):

“But all Confessions are not to be esteemed a discovery of the Truth, if there are no other corroborating Circumstances. For sometimes Fear or a weariness of Life, or some other Reason hath induced Men to make Confessions of those Things which they were never guilty of. . . . But when the Confession is regular, and admitted by the other Party, he ought to admit the whole as it is qualified, and when it is extended to other matters which are done at the same time; unless there is a presumption against that part. As when one confesses that he kill'd Titius in his own defense; the killing shall stand by it self as confessed, and the qualification must be proved, because the Law presumes design, and throws the proof upon the Criminal.”

This is apparently a reference to the language of Wood, New Institute of the Civil Law 305–306, which follows the passage quoted in note 10 65 above:

“But if the Sentences are distinct, where there is no presumption, the qualification afterwards comes too late, and infers that the Acts are done at different Times.” Then follows an example in which “The Libel charges that you receive 100 l. of me. You answer, That you did receive 100 l. of me which I ow'd to you, and no other Sum; this is but one Sentence, and cannot be divided; for with one Breath I do as it were absolutely deny the Charge. But where the Sentences are divided, there the Confession shall be divided, and part accepted and part rejected. As if you had answer'd, That you did borrow the 100 l. but that you have since repaid it: Or that I have promised not to demand it 'till seven years were past. The latter part of this answer must be proved, else you will be condemned.”

Thus in MS, but quite possibly an inadvertence for “sailed.”

That is, nine months between the date of the incident in Nov. 1772 and the time of the hearing in Aug. 1773.

Probably JA's reminder to himself that Nickerson's signal of distress was not consistent with a criminal intent.

Probably a reference to an example given in 1 Domat, Civil Law 415, following the passage quoted, note 6 61 above, which recounts Henri II's edict of 1556 that if a woman was brought to childbed without witnesses and there was no subsequent christening or public burial, there should be a presumption that she had murdered the child.

That is, “Manor” ? The reading and allusion are unclear. This may be a reference to a presumption as to the title to chattels remaining on the land at the time of conveyance.

Probably a witness, but not identified.

Probably a reference to Capt. Joseph Doane, who found the schooner (note 2 above), although the title, “Coll.” suggests Col. Elisha Doane, one of JA's wealthy clients. See Nos. 52, 58.

Wood, New Institute of the Civil Law 276 (London, 4th edn., 1730): “Homicide with Deliberation is when one kills another upon a premeditated design, and in cold Blood. If the design cannot be proved directly, it may be learnt from circumstances, as when there was Enmity between the Parties, providing Arms, lying in wait, &c.”

Hawkins, Pleas of the Crown . The page reference cannot be determined from the context.

See the materials quoted in JA's notes, notes 3–5 28–30 above.

Justinian, Digest, bk. 42, tit. 2, De Confessis. A series of eight laws, most of which deal with the confession of civil obligations, stating the general proposition that confession of a debt is the equivalent of a judgment for that amount. Quincy may have been drawing an analogy to the provisions that this rule does not apply where the amount of the debt or the nature of property in question is uncertain. Id., L. 6, L. 8.

Justinian, Codex, bk. 7, tit. 59, De Confessis, §1: “Confessis in jure pro judicatis haberi placet. Quare sine causa desideras recedi a confessione tua, cum et solvere cogeris.” See 14 Scott, Civil Law 202: “It has been decided that confessions made in court have the effect of judgments, therefore you have no right to revoke your confession, as you will be compelled to make payment.” A better translation of the first clause might be: “confessions in law have the effect of judgments.”

1 Domat, Civil Law 430:

“Presumptions are consequences drawn from a fact that is known, to serve for the discovery of the truth of a fact that is uncertain, and which one seeks to prove. . . . Thus in a Criminal Affair, if a Man has been killed, and it is not known by whom, and if it be discovered that he had a little while before a quarrel with another person, who had threatened to kill him, one draws from this known fact of the quarrel and threatning, a Presumption that he who had thus threatned him, may have been the Author of the Murder.”

2 Domat, Civil Law 668:

“There is likewise a fourth Kind of Proofs which are called Presumptions, that is to say, Consequences which are drawn from certain Facts that are known and proved, whereby to guess at or infer the Certainty of the Fact in dispute, and of which the said known Facts are Marks and Signs; and these sorts of Proofs are called Presumptions, because they do not demonstrate the Fact it self which is to be proved, but prove the Truth of other Fact, the knowledge whereof discovers, points out, and gives room to conjecture and presume the Fact in question, because of the natural and necessary Connection between the Facts that are known, and those which we want to know the Truth of.”

That is, 2 Domat, Civil Law 670. The precise passage intended cannot be determined from context.

2 Domat, Civil Law 618, a passage stating that the three bases for differentiating between crimes are (1) the degree of heinousness; (2) the motive, whether premeditation, passion, or imprudence; and (3) the circumstances in which the crime is committed.

Probably a reference to Francis Bacon, Works, 1:251 (London, 1750), a section of the eighth book of his De Augmentis Scientiarum, entitled “De exemplis et usu eorum,” which deals with “examples, from which justice is to be derived when the law is deficient,” that is, examples of human experience not common enough to have been reduced to custom or law. See 5 Bacon, Works 92–94 (London, transl. and ed. Spedding, Ellis, Heath, 1877).

2 Hale, Pleas of the Crown 289. Presumably the reference is to this passage: “In some cases presumptive evidences go far to prove a person guilty, tho there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished, than one innocent person should die.” Hale then gives the example of a man executed for theft of a horse, only to have the true thief later confess that he had given the innocent victim the horse to walk just before his apprehension. There follows on p. 290 the passage quoted by JA, note 10 35 above, and cited by him in argument, text following note 4 90 below.

Presumably John Ayliffe, Parergon Juris Canonici Anglicani 447, 448 (London, 2d edn., 1734), a long passage on the sufficiency of proof, containing such statements as, “In the Business of Proof, a Judge ought first to have a great Regard to the Probability thereof” (p. 447), and, “As in all Criminal Causes Evidence or Notoriety of Fact is full Proof, so likewise in such Causes all manner of Proofs ought to be clearer than the Light of the Sun at Noon-day.” (p. 448). That this work was available in Boston appears from the Harvard Law School's copy, which bears the signatures of Jeremy Gridley, Samuel Sewall, and Christopher Gore. For another use of Ayliffe by JA, see p. 104 above.

Presumably either Wood, New Institute of the Civil Law , or Wood, Institute of the Laws of England .