Legal Papers of John Adams, volume 2
On 28 November 1772 Adams wrote in his diary, “The Conversation of the Town and Country has been about the strange Occurrence of last Week, a Piracy said to have been committed on a Vessell bound to Cape Cod, 3 Men killed, a Boy missing, and only one Man escaped to tell the News—a misterious, inexplicable Affair!”1 The later trial of Ansell Nickerson, the “one Man escaped,” for the alleged murder, with Adams and Josiah Quincy Jr. as defense counsel, was only to deepen the mystery.
336Nickerson had sailed on 14 November from Boston for Chatham as passenger aboard a small fishing schooner under the command of his cousin Thomas Nickerson. In the crew were Sparrow Nickerson, brother to Thomas; their brother-in-law, Elisha Newcomb; and William Kent, a boy of thirteen. About ten o'clock in the morning of Sunday the 15th, Captain Joseph Doane Jr., of Chatham, having sailed from that harbor, sighted the schooner between Chatham and Nantucket, flying a signal of distress. On boarding her, Doane found only Nickerson, “who appeared to be in a great Fright,” but who was able to report that about two o'clock that morning those aboard the fishing vessel had seen “a Topsail Schooner, who brought them to, and sent a Boat on board, and after questioning them returned again—Soon after four Boats with armed Men came back from the Schooner.”2
Nickerson, “fearing he should be Impressed, got over the Stern and held with his hands by the Taffarill,3 with his Feet on the Moulding, under the Cabin Windows. That whilst he was thus hanging over the Stern he judges by what he heard that the Master, with his own Brother, and a Brother-in-Law, named Newcomb, were murdered and thrown overboard, and a Boy named Kent, carried away alive, as they said, in order to make Punch for them—That he heard a Talk of burning the Vessel, but it was finally agreed to leave her to drive out to Sea with her Sails standing. That after perpetrating this inhuman Deed they plundered the Vessel of a considerable Quantity of Cash,4 knocked out the head of a Barrel of Rum, and after wasting the greatest Part of it, went off with the money and other Booty; tho' they left behind a Quarter of fresh Beef & a number of small Stores.—That when they left the Vessel, he came upon Deck, he found none of the Crew, but saw the Marks of blood, and supposes they were murdered.”5
Doane apparently brought the schooner into Chatham, and then sent his account of the episode to Edward Bacon, a justice of the peace in Barnstable. Bacon forwarded Doane's report to Governor Thomas Hutchinson in Boston, and went himself to Chatham on the 16th, where, with another justice, he formally examined Nickerson, who had returned from some unexplained wanderings (Document II). Bacon then dismissed him with the consent of the father of the two deceased Nickersons. In the meanwhile, the Lively man-of-war was sent out from Boston to search for the supposed pirate.6 On the 19th Bacon's examination reached Hutchinson, who, finding “Every part of the passenger's [Nickerson's] account . . . incredible,”7 consulted with “such of the Commissioners for the trial of Piracies, &c. as were in Town,”8 and issued a warrant for Nickerson's apprehension. This order reached Barnstable by express at midnight on the 20th. There Nickerson was in jail, the local justices having had second thoughts about his story. He had been taken into custody again, re-examined, and committed, “in order to receive Directions from the Governor.” Finally, on the 22d, Nickerson was brought under guard to the Province House at Boston, where Hutchinson, Admiral John Montagu, Lieutenant Governor Andrew Oliver, and Secretary Thomas Flucker, all Commissioners for the Trial of Piracy, examined him from seven until eleven in the evening, and ordered him held for trial.9
The Lively returned after a fruitless search,10 and a Special Court of Admiralty for the Trial of Piracies was thereupon convened. There were some, according to Hutchinson's later account, who “were ready enough to charge the piracy and murder to a king's schooner, then expected from Rhode Island,” and the Sons of Liberty “professed to make no doubt of its being a man of war schooner; and the governor was charged in the publick prints with too critical and severe an examination of the prisoner, whose innocence, it was said, would appear.” The old cry that an Admiralty trial deprived the accused of his right to a jury was also raised,11 but the Commissioners were not deterred. On 16 December, at a sitting of the Special Court, “an Information was filed and exhibited by Ezekiel Price appointed Register of the said Court, against Ansell Nickerson, a Prisoner in his Majesty's Goal, for the murder of Thomas Nickerson, jun., on the High 338Seas on the 14th of November last.” Nickerson pleaded Not Guilty, and, upon motion for time to prepare his defense, he was remanded to jail, and the court adjourned until 2 June 1773.12
When the day set for trial arrived, the court did not convene, according to one account, because “some matters of greater importance,” presumably the investigation of the burning of the Gaspee, “employ at present the time of several members.”13 Nickerson was again examined, however, on the basis of new evidence which was said to militate against him.14 Finally, in the middle of July trial was set for the 28th of that month.15
According to Adams' later recollection, “I was of counsel for Nickerson, but was not engaged till the trial came on, when he requested the court to appoint me.” This arrangement seems to have been made sometime after 28 July 1773,16 when the proceedings actually began. A contemporary account relates that witnesses on both sides were examined from that day until the evening of Friday the 30th. The court then adjourned until Tuesday, 3 August, when Samuel Fitch, Advocate General, after examining several additional witnesses for the Crown, made his opening argument (Document II).17 Fitch first argued that Nickerson was properly before the Special Court, though charged with murder, since that offense, as well as taking the vessel, constituted piracy. Then, after citing authorities on the nature of circumstantial and presumptive proof, he launched into an extensive review of the evidence. The burden of his argument was that the inherent improbabilities of Nickerson's account were a strong indication of its untruth; that the facts would as well support the Crown's version of the affair; and that the accused had had ample time to bring ashore unobserved the money, theft of which was supposed to have been the motive of his acts.
On the afternoon of 3 August, Adams and Josiah Quincy Jr., began their 339argument, which was to last through the next day.18 Quincy apparently opened, probably with a review of the evidence. All that has survived, however, are Adams' fragmentary notes of authorities cited by Quincy, which indicate that the latter concentrated heavily on the quantum of proof needed for conviction where the evidence was wholly circumstantial except for the accused's own statements (Document II). Adams first briefly discussed the information, then made an argument drawn from his experience in Rex v. Corbet, No. 56, that since the court sat in Admiralty it should apply the civil-law doctrine that the crime of manslaughter was not punishable by death. He then launched his main attack on Nickerson's several examinations before various officials, treating them as confessions, in which the favorable as well as the unfavorable must be admitted, and attacking their admissibility generally. Next he proceeded to set out authorities, familiar to him both from Corbet and Sewall v. Hancock,No. 46, requiring that proof be certain and consistent in criminal cases. He closed with observations upon Fitch's treatment of the evidence (Documents I, III).
On Thursday afternoon, 5 August, Fitch “closed the cause,” and the Court, after telling the prisoner that if he had more to say in his defense he could say it the next day, adjourned until the morning of the 6th. When the Court reconvened, Nickerson “express'd his Wishes that certain Witnesses (who he apprehended would testify in his Favor) had been present; and concluded with saying that, 'if I lose my Life, I am innocent of the Crime laid to my Charge.'” The court room was then cleared, and the Court undertook to consider the evidence. After two and a half hours the prisoner was called in, and “the President [Hutchinson], after a solemn Pause, told the Prisoner, 'The Court have considered of your Offence, and they do not think that the Evidence offered to them is sufficient to support the Charge alledged against you in the Information—and therefore adjudge you
not guilty.'” On motion by Nickerson's counsel, the Advocate General not objecting, he was discharged. “The Prisoner being informed of it, respectfully bowed to the Court, and said, 'I thank the honorable Court —and GOD—for my deliverance!'” As a contemporary newspaper put it, “Thus ended a Trial, for the most surprizing Event, which has happened in this, and perhaps any other Age of the World.”19
Later accounts by Hutchinson and Adams differ as to the reasons for the acquittal. The newspapers had reported that, the court being divided four and four on the question, “An Acquittal of the Prisoner followed of Course.”20 Hutchinson, who made no bones about his certainty that Nick-340erson was guilty, confirmed the report of the court's division, but said that the crucial issue was a procedural one. The statute, 11 & 12 Will. 3, c. 7 (1700), under which the court was constituted, gave jurisdiction in piracies and other “felonies,” excluding murder, according to the opinion of the Crown law officers in England. The information charged Nickerson with piracy only, but alleged the murder to support it. Four of the Court held that to convict of piracy would be to convict of murder, and thus to exceed their jurisdiction.21 Adams' notes show that Fitch argued this point (Document II), and suggest that Adams briefly replied (Document III). Adams did not, however, in his subsequent recollections see this as the critical question. He admitted that he did not know the basis of the acquittal, but guessed that the court was moved by lack of direct evidence, and consequent doubt of Nickerson's guilt, a doubt which he shared himself.22 Either version of the acquittal is supported by the language of the court's decision.
Nickerson himself, who, according to Adams, thereafter “lived many years, and behaved well,”23 did not seem to be overly grateful to his counsel. His comments before and after his discharge at the trial, already quoted, suggest a certain lack of appreciation for their efforts, and a tendency to credit his release to other agencies. Adams later reported that “He had nothing to give me, but his promissory Note, for a very moderate Fee. But I have heard nothing from him, nor received any Thing for his note, which has been lost with many other Notes and Accounts to a large Amount, in the distraction of the times and my Absence from my Business.”24 This note, dated 30 July 1773, for £6 13s. 4d. has been found, too late to enforce payment, and still remains, unreceipted, in the files of the Adams Papers.25
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3. See also, Massachusetts Spy, 19 Nov. 1772, p. 3, col. 3; 3 Hutchinson, Massachusetts Bay, ed. Mayo, 300. The latter adds the details, presumably from Hutchinson's personal knowledge of the case, that the Nickerson schooner was first boarded “by a large boat, rowed with twelve oars, which came from an armed schooner lying to at a distance.” Doane also figures in Doane v. Gage, No. 43, and appears briefly in the epic of the Lusanna, No. 58. Fitch's account of the evidence (Doc. II) suggests that Nickerson testified that his purpose in going on the voyage was “to get his Cloaths.”
That is, the taffrail, the upper part of a ship's stern, sometimes a railing there. The spelling in the text is a corruption of the 18th-century usage, “tafferel” which is derived from the Dutch taferell, a panel.
OED
. JA, in a later account, referred to this as “some thing, the technical term for which, in naval architecture, I have forgotten.” JA to David Sewall, 29 Jan. 1811, 9 JA, Works
627, 628.
Hutchinson described this as “the money which the crew had received at Boston, for the earnings of their vessel the year preceding,” assigning robbery as the motive. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 301–302. According to one contemporary account, the vessel was returning home after discharging its catch from a fishing voyage at Boston. Massachusetts Spy, 19 Nov. 1772, p. 3, col. 3. Compare JA's comment that “A sum of money of no great amount had been shipped on board by one of the other men, which was not found.” JA to David Sewall, note 3 above.
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3.
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3. See also, 3 Hutchinson, Massachusetts Bay, ed. Mayo, 300–301; Rowe, Letters and Diary
236.
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3.
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3; Rowe, Letters and Diary
236.
In the Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3, the Lively was reported as having returned “yesterday.” Rowe, Letters and Diary
236, reports her return “from a Cruize into Nantasket Roads,” with “No further account of any Pirate,” on 28 November. The discrepancy may be accounted for by the possibility that the vessel made more than one “Cruize.”
3 Hutchinson, Massachusetts Bay, ed. Mayo, 300, 302. Hutchinson was attacked in the Massachusetts Spy, 17 Dec. 1772, p. 2, cols. 1–2, for his aversion to “fair trials by jury.” Nickerson's arraignment (note 12 below) was reported in the same issue, at p. 3, col. 2.
Boston Evening-Post, 21 Dec. 1772, p. 2, col. 3. According to Rowe, the court at this session consisted of “The Governour, Lieut Govr, The Secretary of the Province, The Admirall The Judge of Admiralty, Mr. Fisher the Collector of Salem, Mr. Waldo, The Collector of Falmouth Casco Bay.” Rowe, Letters and Diary
237. Hutchinson's version is that “the counsel for the prisoner moving for further time, and urging that intelligence might probably be obtained of a pirate schooner having been in the bay, and it appearing that a large armed schooner sailed from Boston, bound to the coast of Guinea, at the same time with the fishing vessel, the court thought proper to adjourn the trial for six months.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 301.
Massachusetts Spy, 3 June 1773, p. 2, col. 4. As to the Gaspee, see p. 104, note 24, above.
Massachusetts Gazette, 17 June 1773, p. 3, col. 2; Massachusetts Spy, 17 June 1773, p. 3, col. 2. It was later reported that Nickerson had been examined “on the report of money being found, suspected to be hidden by him.” Boston Gazette, 5 July 1773, p. 3, col. 1.
Massachusetts Gazette, 15 July 1773, p. 3, col. 1.
JA to David Sewall, 29 Jan. 1811, 9 JA, Works
627, 628; compare 3 JA, Diary and Autobiography
297: “He requested my Assistance and it was given.” The note which Nickerson gave Adams for his fees was dated 30 July 1773. See text at note 25 below.
Boston Gazette, 9 Aug. 1773, p. 1, col. 2.
Boston Gazette, 9 Aug. 1773, p. I, col. 2.
The foregoing paragraph is drawn from the account in Boston Gazette, 9 Aug. 1773, p. 1, cols. 2–3. A broadside published after the trial related certain further “circumstances” purportedly establishing Nickerson's innocence. Worthington C. Ford, comp., Broadsides, Ballads &c. Printed in Massachusetts, 1639–1800, 75 MHS, Colls.
, No. 1678 (1922). The enduring appeal of Nickerson's adventures is attested by Albert Smelco's play, “The Ansell Nickerson Story,” performed at Chatham, Mass., in Aug. 1962. Boston Globe, 3 Aug. 1962, p. 8.
Boston Gazette, 9 Aug. 1773, p. 1, col. 3.
3 Hutchinson, Massachusetts Bay, ed. Mayo, 301. For the opinion of the Advocate, Attorney, and Solicitor General, 5 Nov. 1761, upon which Hutchinson apparently relied, see Chalmers, Opinions
525–527.
JA to David Sewall, 29 Jan. 1811, 9 JA, Works
627, 628; see also 3 JA, Diary and Autobiography
297: “I know not to this day what Judgement to form of his Guilt or Innocence.”
JA to David Sewall, 29 Jan. 1811, 9 JA, Works
627, 628.
Adams Papers, Microfilms, Reel No. 344.
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 341be 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
3422. 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
343Woods 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
344Number 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
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
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 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
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
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
Rex v. Paine, 5 Mod. 163, 165, 167, 87 Eng. Rep. 584, 585, 586 (K.B. 1695). Quotation marks supplied. See note
2 Hawkins, Pleas of the Crown
429, §5. Quotation marks supplied. The passage is cited by Bacon, note
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
That is, Justinian, Digest, bk. 29, tit. 5, law I, §24, cited by Hale, note 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
Justinian, Codex, bk. 4, tit. 19, §25. Quotation marks supplied. See No. 46, notes
Maranta, Speculum Aureum, pars IV, Distinctio I, §77. Quoted, No. 56, note
Gail, Practicarum Observationum 503, quoted in No. 56, note
Gail, Practicarum Observationum 509. See No. 56, note
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
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
Justinian, Digest, bk. 22, tit. 5, §12, set out in No. 46, at note
Justinian, Codex, bk. 4, tit. 20, §9, §1, set out in No. 46, at note
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
See 28 Hen. 8, c. 15 (1536), set out in No. 56, at notes id., at notes id., at notes
See Foster, Crown Cases
288–289, indicating that there is no crime of manslaughter in Admiralty, set out in No. 56, at notes
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