Legal Papers of John Adams, volume 2

Paine’s Minutes of the Proceedings on the Motion for a New Trial<a xmlns="" href="#LJA02d089n1" class="note" id="LJA02d089n1a">1</a>: Suffolk Superior Court, Boston, September 1770 Paine, Robert Treat


Paine’s Minutes of the Proceedings on the Motion for a New Trial: Suffolk Superior Court, Boston, September 1770 Paine, Robert Treat
Paine's Minutes of the Proceedings on the Motion for a New Trial1
Suffolk Superior Court, Boston, September 1770
SC. Augt. Term 1770
Rex v. Richardson

Motion for new Trial.

Deming. Foreman.2 Mr. Lothrop was satisfied as to Fact, but not Law. Mr. Clap not so fully satisfied as to Law. I told him the Court knew the Law. We all agreed about 1/2 an hour before we came in on Richardson.

Lothrop. I did not fall in so soon as some, for I thought the time might be as well spent in Argument. Jury in General thought if the verdict was not agreeable to Law the Court would not receive it. It was a motive with me.3

I heard some Body say as we passed up stairs Damn him don't bring it in Manslaughter.

Clap. At first going out I was not so clear as afterwards, for the 427Reason offered, such as its being in the Day.4 Something was said that the Court would not receive it if not right, but it did not weigh with me.

Withington. The Rabble as we were going out said hang the Dog hang him. 5

Stoddard. I heard no such thing.

Leveret. A great hiddalo. But I heard northing.

John Smith. As I passed and turn'd the Stairs down the Stairs some said hang him no Manslaughter, but no Body minded it.

Elisha Gardner. I heard a tumultuous noise, no Manslaughter but Murder, it appeared with no Connections to the Jury.

Jona. Ellis. I heard some Body cry out damn him hang him Murder no Manslaughter. It seemed down stairs. Not mentioned in the Jury Room.

Jos. Hawes. As the Jury were going out I heard some Body say hang him a dog, but from whom I dont know. There was some such talk that if the Court did not like the Verdict they would not receive it.

Ephm. Pratt. There was a noise but I heard no Words.

Ebe. Adams. I heard a Noise below but heard no Body speak so as to be understood. Something like hang him. I did not take it to be directed to the Jury.

Mr. Usher. Keeper of the Jury. Many People below till 12 or 1 oClock. I heard no Cry of hang 'em &c.


Cro. 778. Wats & Braine. Jury sent out again, 2 dissenting on Examination.6

State Tri. 417. Vol. X. Ashley v. Simons the Jew; Jury mistook their Verdict.

5 Bac. 243. SC.7


Cr. El. 189. A Witness examined again by Jury.8

Trial pr. Pais. A paper delivered to the Jury by Stranger. 224.9

225. A Breviate delivered.10

222. If the Party says to the Jury 'my Case is Clear' it is new Evidence.11

Styles 383. The delivering a Breviate to the Jury before Tryal, mistryal: Tayler v. Webb.12

1 Vent. 124. Duke Richmond v. Wise. If any of Party say I hope youll find for Plaintiff tis mistryal. 13

Vin. Tryal 452. §25. One said to a Jury he'd take care what for it was better for the Bishop than Duke.14


11 Mod. 118. Lady Herbert vs. Shaw. A Letter wrote to Jury to attend, to consider the Plaintiff was a poor man, mistrial.15

Burr. 390. Bright vs. Eynon.16

Foster 266. A Breviate delivered to a Juryman.17

T. Jones 163. Rex v. Smith. Verdicts vs. Evidence.18

3 Keeble 525. New Tryal, SC.19

Str. 104,20 968,21 1102.22

1 L. Ray. 62, 63.23


2 HPC.24

5 Bac. 292. Ld. Vaghn Law denied.25

2 Ld. R. 1494 Onebys Case.26

12 Mod. 336. If Judge in his Conscience is satisfied the Cause deserves a new Tryal.27


CL: 228. Jury may give general verdict.28

4 Black. 354. Same vid.29

2 Hale 310. Same.30

Str. 1142.31

3 Black. 375.32

Fos. 255.33


In Paine's hand. Paine Law Notes. See note 50 166 above.


 [T]he Jurors were inquired of the Foundation of their Verdict. The Foreman, with a sullen Pride of Revenge, replied, 'that he was not obliged to give any Reasons of his Conduct.'” Oliver, Origin and Progress 86–87. The jurors, all of whom testified, were Jonathan Deming (foreman), Thomas Lothrop, Seth Clap, Philip Withington, Jeremy Stoddard, Israel Everet, John Smith, Elisha Gardner, Jonathan Ellis, Joseph Hawes, Ephraim Pratt, and Ebenezer Adams. Min. Bk. 91, SCJ Suffolk, Aug. 1770.


“One of the Jurors declared, that he thought him innocent, and had persisted all Night in that Opinion, against the united Sentiment of the other eleven; but in the Morning, after a tedious whole Nights Fatigue, his Bretheren overperswaded him to unite with them, by urging this Argument upon him, vizt. 'that the Court had delivered their Opinion, in Law, that the Prisoner was innocent, and that his Life would be saved; therefore, that it was not worth while to stand out any longer.' These Arguments alone, he said, prevailed with him to join with the others in their Verdict.”Oliver, Origin and Progress 87.


“One of them said, 'that he should have acquitted the Prisoner, had the killing happened in the Night instead of the Day.'” Oliver Origin and Progress 87.


“Some of them acknowledged, that, as they past thro' the Mob, from the Court to their Apartment, they were called upon to bring the Prisoner in guilty.” Oliver, Origin and Progress 87.


Wats v. Brains, Cro. Eliz. 778–779, 78 Eng. Rep. 1009 (Q.B. 1601): On an appeal of murder, “notwithstanding the Evidence was pregnant against the defendant,” eight, and then ten of the jurors voted “not guilty.” The two others proposed that the jury bring in a “not guilty” verdict on condition that if the court “disliked thereof,” the verdict would be changed to “guilty.” When, however, the foreman pronounced “not guilty” the court, “much misliking thereof, being contrary to their direction,” polled the jury, discovered the scheme, sent the jury out again, received a verdict of guilty, and fined or reprimanded all the jurors.


Rex v. Simonds, 5 Bacon, Abridgment 243–244 (Unreported, K.B. 1752):

“The Defendant was indicted for having put some Ducats into the Pocket of the Prosecutor with an Intent to charge him with Felony. The Jury found the Defendant guilty generally: But upon a Motion for a new Trial Affidavits of all the Jurors were produced, in which they swore that they only intended to find him guilty of the Fact of having put the Ducats into the Prosecutor's Pocket but not of the Intent; and Foster, J. before whom the Indictment was tried reported that his Direction to the Jury was, that in Case they did not think the Defendant guilty of the Intent as well as of the Fact of having put the Ducats into the Prosecutor's Pocket they ought to acquit him. A new Trial was granted; and by Lee Ch. J. we do not grant a new Trial in this Case on the Account of any after Thought of the Jurors, for the doing of this might be a very bad Precedent; but because the Verdict was contrary to the Direction of the Judge in a Matter of Law. By Denison J. if the Verdict had been as the Jury intended it, that the Defendant was guilty of the Fact but not of the Intent there must have been a Venire facias de Novo for it would have been an incompleat Verdict.”

The case was also reported in 10 State Trials 411, sub nom. Ashley v. Simons the Jew. (Ashley was the prosecutor.) The report sets out interesting background information, the indictment, the affidavits of the individual jurors, the judge's additional charge, and the outcome of the second trial (12 July 1752—acquitted).


Probably Metcalfe v. Deane, Cro. Eliz. 189, 78 Eng. Rep. 445 (Q.B. 1590): The jury, having withdrawn, reexamined one of the defendant's witnesses, and then returned a defendant's verdict. Held: verdict not good, venire facias de novo issued.


Duncombe, Trials per Pais 224, reports Taylor v. Webb [Style 383, 82 Eng. Rep. 797 (K.B. 1653)]: verdict set aside because jury received writings “after Evidence,” notwithstanding affidavit by foreman that the jury made no use of the writings in reaching the verdict.


Duncombe, Trials per Pais 225, refers to YB 11 Hen. 4, 18: delivery of brief of evidence to jury, even though it contained no more than was proved in court, avoids the verdict.


Duncombe, Trials per Pais 222: “If one of the Parties say to the Jury after they are gone from the Bar, You are weak Men, it is as clear of my Side as the Nose in a Man's Face; this is new Evidence, for his Affirmation may very much perswade the Jury and therefore shall quash the Verdict.” This can refer only to the litigant's forensic skill, and not to the introduction of new evidence, for a party was incompetent to testify.


See note 9 182 above.


The Duke of Richmond v. Wise, I Ventris 124, 125, 86 Eng. Rep. 86, (K.B. 1672):

“[I]f any of the Parties, their Attorneys or Sollicitors speak any thing to the Jury, before they are agreed relating to the Cause, (viz.) That it is a clear Cause, or I hope You will find for such an one, or the like, and they find accordingly, it shall avoid the Verdict; but if words of Salutation, or the like pass between them, (as was endeavoured to be proved in this Case) they shall not.”


21 Viner, Abridgment 452–453, tit. Trial, §25: Court being held out of doors in a trial between the Bishop of L. and the Earl of Kent, a “Tempest of Thunder and Lightning” drove one of the jurors into a house, “where diverse said to him that he take Care what he did, for the Matter was better for the Earl of Kent than for the Bishop; and pray'd him to drink with them, and so he did.” After verdict for the Bishop the case was argued in the Exchequer Chamber, where “the best Opinion was that Fine [of the Juror, for drinking]shall be made, and the Verdict good, and not void.”


Lady Herbert v. Shaw, 11 Mod. 118, 88 Eng. Rep. 937 (Q.B. 1707): Plaintiff's father, the Duke of Leeds, wrote to each juror requesting his appearance at the trial, saying: “Which I shall take as a great Obligation, particularly from your self, and shall be glad of an Occasion to shew how much I am, Sir, your Humble Servant.” On defendant's motion for new trial, held, motion denied: defendant had notice of the letter long before trial and should have raised the issue sooner. Powell, J. referred to an unidentified case in the Common Pleas “where a Stranger writ to a Juryman to consider that the Plaintiff was a poor Man; for which a new Trial was granted.”


Bright, Executor v. Eynon, 1 Burr. 390, 397, 97 Eng. Rep. 365, 369 (K.B. 1757): New trial granted where jury drew the “wrong conclusion from facts admitted on both sides.”


Foster, Crown Cases 266, reports a case in which a coroner's jury found that a man run over by a wagon had been killed by the wheel only, and not the horses and cart too. Held: neither the higher court nor the coroner “can oblige the Jury to conclude otherwise than They have done.” The page contains no mention of the breviate; see, however, text at notes 9, 10, 12 182, 183, 185 , above; Paine, therefore, may possibly be recording two separate references.


Rex v. Smith, T. Jones 163, 84 Eng. Rep. 1197 (K.B. 1682): new trial awarded where, on information for perjury, “an obstinate Jury against the Direction of the Judge, found the Defendant guilty.” Dolbin, J., cited precedents where verdicts against the evidence were set aside.


Rex v. Cornelius, 3 Keble 525, 84 Eng. Rep. 858 (K.B. 1676): conviction of perjury for swearing that S. “was at a conventicle, who was not; but it appearing the defendant never made any such oath, and that the foreman was owner of the barn [where the conventicle was held], and challenged, and yet sworn on the jury; which per Curiam is a great challenge to the favor; and a new trial was awarded.”


Rex v. Bennett, 1 Str. 101, 105, 93 Eng. Rep. 412, 414 (K.B. 1718): Information in nature of quo warranto; after verdict for defendant against evidence, held (after consulting all the other judges), equal division, therefore no new trial.


Rex v. Gibson, 2 Str. 968, 93 Eng. Rep. 972 (K.B. 1734): Defendant must be in court to move for new trial.


Rex v. Armstrong, 2 Str. 1102, 93 Eng. Rep. 1059 (K.B. 1739): After judgment signed, defendant may not move for new trial.


Smith v. Frampton, 1 Ld. Raym. 62, 63, 91 Eng. Rep. 938 (K.B. 1695): Action for negligent keeping of fire resulting in plaintiff's house being burnt; verdict for defendant; motion for new trial for verdict's being against evidence. Held: “This being a case of hardship, and the jurors being judges of the fact, no new trial should be granted, although Holt chief justice, before whom it was tried, was dissatisfied with the verdict.”


This may be 2 Hawkins, Pleas of the Crown 442:

“However it is settled, That the Court cannot set aside a Verdict which acquits a Defendant of a Prosecution properly criminal, as it seems that they may a Verdict that convicts him for having been given contrary to Evidence, and the Directions of the Judge, or any Verdict whatever for a Mistrial.”

The minute may also refer to a page in 2 Hale, Pleas of the Crown , although that was generally cited as “HHPC.”


5 Bacon, Abridgment 292:

“It is indeed said in one Book [citing Bushel's Case, Vaughan 135, 147, 124 Eng. Rep. 1006, 1012 (C.P. 1670)], that the Jurors are not obliged to ground their Verdict upon the Evidence given in Court; for that this may be grounded upon their own personal Knowledge. But no Authority is cited in Support of this Doctrine, and the contrary Opinion to be the better one. . . . It may moreover be very fairly inferred, from the constant Practice of granting a new Trial because a Verdict is contrary to Evidence, that the Jury ought to ground their Verdict intirely upon the Evidence given in Court; for if they have a Power to ground it upon any other Evidence, how unreasonable would it be for the Judge before whom the Cause was tried, who must always be a Stranger to what did not appear in Court, to report that the Verdict is contrary to Evidence, or for the Court to set it aside as being so.”


Rex v. Oneby, 2 Ld. Raym. 1485, 1494, 92 Eng. Rep. 465, 471 (K.B. 1727): “And the jury may, if they think proper, give a general verdict, either that the prisoner is guilty of murder or of manslaughter.”


Anon., 12 Mod. 336, 88 Eng. Rep. 1362 (K.B. 1699), per Holt, C.J.: “In granting a new Trial we ought not altogether to rely on the Certificate of the Judge who tried the Cause, but upon the Reason of the Thing; and sometimes I would grant a new Trial against the Certificate of a Judge, if in my Judgment and Conscience the Matter deserves a Re-examination.”


1 Coke, Institutes *228b: “Although the Jurie, if they will take upon them (as Littleton here saith) the knowledge of the Law, may give a general verdict, yet it is dangerous for them so to do.”


4 Blackstone, Commentaries *354. For text, see note 56 172 above.


2 Hale, Pleas of the Crown 310. For text, see note 57 173 above.


Ashley v. Ashley, 2 Str. 1142, 93 Eng. Rep. 1088 (K.B. 1741). For holding, see note 53 169 above.


3 Blackstone, Commentaries *375, mentions “the grounds, upon which such new trials are every day awarded, viz. that the verdict was given without, or contrary to, evidence.”


Foster, Crown Cases 255. For text, see note 9 125 above. Also:

“In every Case where the Point turneth upon the Question, Whether the Homicide was committed Wilfully and Malitiously, or under Circumstances Justifying, Excusing, or Alleviating; the Matter of Fact, viz. whether the Facts alledged by Way of Justification, Excuse, or Alleviation are True, is the proper and only Province of the Jury. But whether upon a Supposition of the Truth of Facts such Homicide be Justified, Excused, or Alleviated, must be submitted to the Judgment of the Court.”