Legal Papers of John Adams, volume 3

Anonymous Summary of Defense Evidence

Paine's Minutes of Adams' Argument

Adams’ Notes of Authorities for His Argument for the Defense<a xmlns="" href="#LJA03d008n1" class="note" id="LJA03d008n1a">1</a>: October 1770 JA


Adams’ Notes of Authorities for His Argument for the Defense: October 1770 Adams, John
Adams' Notes of Authorities for His Argument for the Defense1
October 1770
Captn. Prestons Case.

2. H.H.P.C. 290. Tutius Semper est errare in acquietando, quam in puniendo ex Parte misericordiae, quam ex Parte Justitiae.2

305. Tutius erratur ex Parte mitiori.3

1. H.H.P.C. 509. The best Rule is in Dubiis, rather to incline to acquittal than Conviction.4


300. quod dubitas, ne feceris, especially in Cases of Life.5

2. H.H.P.C. 289. 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 5 guilty Persons should escape unpunished, than one innocent Person should die.6

Fortescue De Lawdibus 59. Indeed one would rather much rather, that twenty guilty Persons, Should escape the Punishment of Death, than that one innocent Person Should be condemned and suffer capitally.7

Law, no Passion can disturb. Tis void of Desire and Fear, Lust and Anger. Tis Mens Sine affectu, written Reason, retaining Some Measure of divine Perfection. It does not enjoin that which pleases a weak, frail Man, but without any Regard to Persons, commands that which is good, and punishes evil in all whether rich or poor, high or low. Tis deaf, inexorable, inflexible.8


1. Hawk. c. 31. §36.9 Keyling 135. Rules 1.10

Foster 295. §3.11 Foster 316.12 Foster 296.13


12 Rep. 87.14


1. Hawk. c. 62. §1.15

Jointly guilty.

1. H.H.P.C. 437.16 1. H.H.P.C. 440. Top.17

1. H.H.P.C. 444. 3.18 1. H.H.P.C. 445. bottom.19

1. H.H.P.C. 439. Ld. Dacre.20 1. H.H.P.C. 440.21

Drayton Bassett.22 1. Hawk. c. 65. §2. 1 Hawk. c. 65. §3 and at the end of the §.23


Self Defence, the primary Canon of the Law of Nature24

Foster 273.25 Keiling 128. 129.26 Foster 274.27 1. Hawk. 71. §14.28 1 Hawk, page 72. §23. towards the End.29 1. Hawk, page 72. §24.30 1. Hawk. page 75 §14.31 Keyling Page 128. bottom.32 4. Black. 185.33

85 A Private Person may aid another.

Keyling page 136. Top. Buckners Case—imprisoned injuriously without Proscess of Law.34

Keyling Page 136. 3. bottom, if a Man perceives another by Force to be injuriously treated, pressed, and restrained of his Liberty, &c.35

Keyling 59. Hopkin Huggets Case, who kill'd a Man in attempting to rescue a Seaman, impressed without Warrant.36

2. Ld. Ray. Queen vs Tooley et als.—reforming Constables. Holt. 485.37 Holt 484.38

An innocent Person kill'd.

Foster 261. §3.39 26240 1. H.H.P.C. 442.41

1. Hawk. 84.42 1. Hale 484.43 4 Black. 27. if a Man intending to 86kill a Thief or Housebreaker, in his own House, by Mistake kills one of his own Family, this is no criminal action.44


Adams Massacre Minutes. MHi MS 1. See Descriptive List of Sources and Documents.


2 Hale, Pleas of the Crown 290: “It is always safer to err in acquitting rather than punishing, on the side of mercy than on the side of justice.” Black, Law Dictionary .


2 Hale, Pleas of the Crown 305: “It is safer to err on the side of leniency.”


1 Hale, Pleas of the Crown 509.


1 Hale, Pleas of the Crown 300: “What you doubt of, do not do.” Black, Law Dictionary .


2 Hale, Pleas of the Crown 289.


Fortescue, De Laudibus Legum Anglix 59.


Algernon Sidney, Discourses Concerning Government 288 (London, 2d edn., 1704).


1 Hawkins, Pleas of the Crown 82–83: “Neither can he be thought guilty of a greater Crime who . . . happens to kill another in a Contention for the Wall; or in the Defence of his Person from an unlawful Arrest. . . . But it is certain, That it can amount to no more than Manslaughter.”


Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114 (Q.B. 1707):

“Having . . . shewn what is not a provocation sufficient to alleviate the act of killing, so as to reduce it to be but a bare homicide, I will now secondly give some particular Rules, such as are supported by Authority and general consent, and shew what are always allowed to be sufficient provocations. First, If one Man upon angry words shall make an Assault upon another, either by pulling him by the Nose, or filliping upon the Fore-head, and he that is so assaulted shall draw his Sword, and immediately run the other through, that is but Manslaughter; for the Peace is broken by the Person killed, and with an indignity to him that received the Assault. Besides, he that was so affronted might reasonably apprehend, that he that treated him in that manner might have some further design upon him.”


Foster, Crown Cases 295: “The Rule laid down in the first Section [that words, however provocative, do not justify killing] will not hold in Cases where from Words or Actions of Reproach or Contempt, or indeed upon any other sudden Provocation, the Parties come to Blows, no undue Advantage being sought or taken on either Side.”


Foster, Crown Cases 316: “[W]e all know that Words of Reproach, how grating and offensive soever, are in the Eye of the Law no Provocation in the Case of voluntary Homicide.”


Foster, Crown Cases 296: “And in the tumult of the Passions, in which meer Instinct Self-Preservation, hath no inconsiderable Share, the Voice of Reason is not heard. And therefore the Law in Condescension to the Infirmities of Flesh and Blood hath extenuated the Offence.”


Anon. 12 Co. Rep. 87, 77 Eng. Rep. 1364 (K.B. 1612): A and B quarrel; C, B's friend, strikes and kills A. “[T]his was held Manslaughter, for this, that it happened upon a sudden Motion in Revenge of his Friend.”


1 Hawkins, Pleas of the Crown 133–134:

“[A]n Assault is an Attempt, or Offer, with Force and Violence, to do a corporal Hurt to another; as by striking at him with, or without, a Weapon; or presenting a Gun at him, at such a Distance to which the Gun will carry, or pointing a Pitchfork at him, standing within the Reach of it; or by holding up one's Fist at him, or by any other such like Act done in an angry threatening Manner.”


1 Hale, Pleas of the Crown 437, discusses accessories-by-presence in murder.


1 Hale, Pleas of the Crown 440: “If divers come with one assent to do mischief, (male faire) as to kill, rob or beat, and one doth it, they are all principals in the felony.”


1 Hale, pleas of the Crown 444:

“3. Again, altho if many come upon an unlawful design, and one of the company kill one of the adverse party in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of an adverse party without any particular abetment of the rest to this fact of homicide, they are not all guilty, that are of the company, but only those, that gave the stroke, or actually abeted him to do it.”


1 Hale, Pleas of the Crown 445: “But in the case of a riotous assembly to rob, or steal deer, or do any unlawful act of violence, there the offense of one is the offense of all the company.”


1 Hale, Pleas of the Crown 439: “The lord Dacre and divers others came to steal deer in the park of one Pelham, Rayden one of the company kild the keeper in the park, the lord Dacre and the rest of the company being in other parts of the park, it was ruled, that it was murder in them all, and they died for it.”


1 Hale, Pleas of the Crown 440: “If many be present, and one only gives the stroke, whereof the party dies, they are all principal, if they came for that purpose.”


1 Hale, Pleas of the Crown 440–441, discusses the case of the fracas at Drayton Basset.


1 Hawkins, Pleas of the Crown 156–157:

“[W]here-ever more than three Persons use Force and Violence, in the Execution of any Design whatever wherein the Law does not allow the Use of such Force, all who are concerned therein are Rioters: But in some Cases wherein the Law authorizes Force, it is not only lawful, but also commendable to make use of it; as for a Sheriff or Constable, or perhaps even for a private Person, to assemble a competent Number of People in order with Force to suppress Rebels, or Enemies, or Rioters, and afterwards with such Force actually to suppress them. . . . As to . . . How far the Intention with which such Persons assemble together must be unlawful; it seems agreed, That if a Number of Persons being met together at a Fair, or Market, or Churchale, or any other lawful and innocent Occasion, happen on a sudden Quarrel to fall together by the Ears, they are not guilty of a Riot, but of a sudden Affray only, of which none are guilty but those who actually engage in it. . . . [A]lso it seems to be certain, That if a Person seeing others actually engaged in a Riot, do join himself unto them and assist them therein, he is as much a Rioter as if he had at first assembled with them for the same Purpose, inasmuch as he has no Pretence that he came innocently into the Company, but appears to have joined himself unto them with an Intention to second them in the Execution of their unlawful Enterprize.”


Compare 3 Blackstone, Commentaries *4: “Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.” See also Foster, Crown Cases 273, quoted in note 25 111 below.


Foster, Crown Cases 273:

“In the Case of Justifiable Self-Defense the injured Party may repel Force with Force in Defence of his Person, Habitation, or Property, against one who manifestly intendeth and endeavoureth with Violence or Surprize to commit a known Felony upon either. In these Cases He is not obliged to retreat, but may pursue his Adversary 'till He findeth himself out of Danger, and if in a Conflict between them He happeneth to Kill, such Killing is Justifiable. The Right of Self-Defence in these Cases is founded in the Law of Nature, and is not nor can be superseded by any Law of Society.”


Reg. v. Mawgridge, Kelyng 119, 128–129, 84 Eng. Rep. 1107, mi (Q.B. 1707): “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 he trusted with a dangerous Weapon in his Hand.”


Foster, Crown Cases 274:

“Where a known Felony is attempted upon the Person, be it to Rob or Murder, here the Party assaulted may repel Force with Force, and even his Servant then attendant on Him, or any Other Person present may interpose for preventing Mischief; and if Death ensueth, the Party so interposing will be Justified. In this Case Nature and Social duty cooperate.”


1 Hawkins, Pleas of the Crown 71:

“If those who are engaged in a Riot . . . stand in their Defence, and continue the Force in Opposition to the Command of a Justice of Peace, &c. or resist such Justice endeavouring to arrest them, the Killing of them may be justified; and so perhaps may 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 authorized by the Law to arm himself for the Purposes aforesaid.”


1 Hawkins, Pleas of the Crown 72: “[I]t seems that a private Person, and a fortiori, an Officer of Justice, who happens unavoidably to kill another in en-deavouring to defend himself from, or suppress dangerous Rioters, may justify the Fact, inasmuch as he only does his Duty in Aid of the publick Justice.”


1 Hawkins, Pleas of the Crown 72: “And I can see no Reason why a Person, who without Provocation is assaulted by another in any Place whatsoever, in such a Manner as plainly shews an Intent to murder him, as by discharging a Pistol, or pushing at him with a drawn Sword, &c. may not justify killing such an Assailant.”


1 Hawkins, Pleas of the Crown 75:

“And not only he who on an Assault retreats to a Wall or some such Streight, beyond which he can go no farther, 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 indangering his Life, kills the other without retreating at all.”


See note 26 112 above.


4 Blackstone, Commentaries *185:

“The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment; or as far as the fierceness of the assault will permit him: for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm; and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice, as well as of the municipal law.”


Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1707), cites Protector v. Buckner, Style 467, 82 Eng. Rep. 867 (U.B. 1655).


Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1707): “Thirdly, If a Man perceives another by force to be injuriously treated, pressed, and restrained of his Liberty, though the Person abused doth not complain, or call for Aid or Assistance; and others out of Compassion shall come to his Rescue, and shall kill any of those that shall so restrain him, that is Manslaughter.”


Rex v. Hugget, Kelyng 59, 62, 84 Eng. Rep. 1082, 1083 (Newgate Gaol Delivery 1660): Held: Murder, but “it being in Case of Life, we did not think it prudent to give him judgment of Death, but admitted him to his Clergy.”


Reg. v. Tooley, 2 Ld. Raym. 1296, 92 Eng. Rep. 349, Holt 485, 90 Eng. Rep. 1167, sub nom. The Case of the Reforming Constables (Q.B. 1710). Held: Those who in a fray kill a constable's aid, the constable having taken a prisoner without warrant, are guilty of manslaughter only.


Reg. v. Mawgridge, Holt 484, 90 Eng. Rep. 1167 (Q.B. 1707). See note 35 121 above.


Foster, Crown Cases 261: “If an Action unlawful in itself be done Deliberately and with Intention of Mischief or great Bodily Harm to Particulars, or of Mischief indiscriminately, fall it where it May, and Death ensue Against or Beside the Original Intention of the Party, it will be Murder.”


Foster, Crown Cases 262: “[I]f the Blow intended against A and lighting on B arose from a sudden Transport of Passion which in Case A had Died by it would have reduced the Offence to Manslaughter, the Fact will admit of the same Alleviation if B should happen to Fall by it.”


1 Hale, Pleas of the Crown 442, discusses the guilt of those who kill by mistake.


1 Hawkins, Pleas of the Crown 84, discusses the guilt of those who kill by mistake.


1 Hale, Pleas of the Crown 484, considers “what the offense is, if a man kill another in the necessary saving of the life of a man assaulted by the party slain.”


4 Blackstone, Commentaries *27.