Legal Papers of John Adams, volume 3

Paine’s Minutes of Adams’ Argument<a xmlns="http://www.tei-c.org/ns/1.0" href="#LJA03d009n1" class="note" id="LJA03d009n1a">1</a>: 27 October 1770 Paine, Robert Treat Paine’s Minutes of Adams’ Argument: 27 October 1770 Paine, Robert Treat

Paine's Minutes of Adams' Argument1

27 October 1770

Adams. It is certain a great bitterness between Soldiers and Inhabitants.

No Evidence applys to Soldiers in Goal nor to Capt. Preston.

It was Prestons duty on the message to him to go and take all the Care he could of his men and protect them.

~~The Ev~~

He had Account of the assault.

Had the Centry been a private Citizen and Capt. a Citizen it was his duty to go to assist.

He ordered Corporal and Soldiers to go.

A Sargeant's Command.

Captains never take command of less than 40 unless on Special Occasion.

They call'd the Centry bloody Back, must allude to the severe whippings. Also Lobster.

Opposed to the Evidence of Yankee, Boogerers

Wm. Wyat is one who thinks Capt. Preston ordered to fire.

Surtot. Behind Soldiers, 1st Gun fired on left.

Robert Goddard. You observed he is not capable of making Observation: you know, Scarce ordinary Understanding.

Prisoner knows the use of Language too well to Say murder 'em.

He says Capt. was behind the Soldiers.

Danl. Calf. Nearly right with regard to Captain's Scituation, Sensible, hard to Account for mistake.

It must be this Capt. said fire by no means when People spoke to him.

Morton. Shows there was a mistake made about Commanding Officer.

Had a Surtot on not Red.

Marching Guard to Fortification.

Fosdick. Never saw em prime and load. Therefore not Cool.

Sherriff Greenleaf. 2 After Bells ringing said no fire here. Some killed. I went to Lt. Governor's. He was gone to Town House. I went to Guard House Prisoner said he did not Command the Party he said that it was a Corporals Command, that he did not order the firing. Lt. Gov. sent for Capt. and Bassett. Prisoner said he should have delivered himself up if he had known of a Warrant.

Peter Cunningham. He is warm temper and brisk Spirits, natural for such a Witness to Suppose Capt. gave Orders.

His distance.

Man is a Social Creature. His Passion and Imagination Contagious.

The Circumstances had a tendency to move all the Passions.

Have had a tendency to produce Gloom and Melancholly in all our minds.

May account for the variation in the Testimony of honest Men.

NB. this is applicable to agravated account of Assaults.3

The Publication of Evidence, an accidental misfortune to Prisoner.

Some Evidence for Prisoner.

Jos. Edwards. Says a Man with Musket ordered to prime and load.

John Frost. Said Fire fire. It might be said by 3 Sorts of people.

Benja. Leigh. The 1st. assault was by people from Dock Square.

Prisoner's Answer. If I can avoid it.

Lt. Govr. 4 After I had got to King Street I was push'd by a vast throng of people to the place where Troops stood. My intention was to make enquiry into the Cause. I was crouded on Bayonets. Cry, the Govr. I said where is that Officer, why did you fire without order from a Civil Magistrate? I did not know the officer that came out of the Ranks. I cant recollect the Answer, it was imperfect and thought he did not like the question.

Knox. Said he stopt Prisoner Going down, and therefore, they primed and Loaded before he got down, compared with Cunningham and Edwards.

Burdick. The Soldiers had reason to think they came to kill 'em.

Preston said perhaps you may, too Cool for a man who had ordered to fire.5

NB. It was his Trade.

Robt. Fullerton.

Richd. Palmes. An Inhabitant of Town, therefore not prejudiced in favor of Soldiers. The most material Witness in the Case. T. Bliss said to Prisoner why dont they fire, God damn you fire. Prisoner knew Gun loaded with Ball.

Self preservation would have made Capt. alter his place at firing.

He had time to order to recover. Surprise. Might think it only Powder, no man fell.

Palmes and Bliss. Both Say Prisoner was before Soldiers.

Wyat. His Account of Stepping before and saying why did you fire, must show him to be diabolically malicious.

Math. Murray. Preston before 'em. Saw the woman talking to soldier.

Andrew. People thought they were in Riot by Crying Murray and Riot act.

What Occasion'd he the Lad to put himself into that posture before Bayonet.

Saw the Officer with 2 persons in front of Soldiers.

Stout Man Struck at officer, 2 persons still talking to Prisoner.

No Body else remembers this.

Cornwall. NB. he said Prisoner not talking with any Body.

Whitehouse. Went up to Guard House. NB. Centry cant go.

Lt. Govr. Had Prisoner been conscious of Rashness, he would have gone off, Evidence of Innocence.

Paine Massacre Notes. See Descriptive List of Sources and Documents.

What follows may be Paine's minute of Sheriff Stephen Greenleaf's testimony, although it appears in the MS directly in the middle of Paine's minute of JA's argument. More significant, it does not appear in either Summary of Evidence, Docs. IV and VI.

This comment (like others which follow) is apparently Paine's.

This is almost certainly Paine's minute of Hutchinson's original testimony. Its position in the MS is inexplicable.

Compare text at note 17 27 above, which suggests that one of the soldiers, rather than Preston, made this remark.

Paine’s Minutes of Auchmuty’s Argument for the Defense<a xmlns="http://www.tei-c.org/ns/1.0" href="#LJA03d010n1" class="note" id="LJA03d010n1a">1</a>: 27 October 1770 Paine, Robert Treat Paine’s Minutes of Auchmuty’s Argument for the Defense: 27 October 1770 Paine, Robert Treat

Paine's Minutes of Auchmuty's Argument for the Defense1

27 October 1770

Auchmuty.

Something horrid in agitation by the Bells ringing.

I have but little Charity for those that can only see on one side.

Palmes Evidence may be opposed to all the Crown Evidence.

Positive Evidence always outweighs negative.

Persons Surrounded by threatening People may in Certain Cases defend themselves.

1 H. p. 71, ch. 28, §14. Killing dangerous Rioters is Lawful.2

§23. In endeavouring to defend himself and in suppressing dangerous Rioters.3

Ch. 29, §13 Hom, se defen.4

§165

They were on their duty, and in extremity.

Foster p. 292. Steadman's Case.6

Key. 135. bottom. If one man in angry words.7

1 H.H.C. 485. 6. Harcot's Case.8

Cr. Char. 538. Coke Case.9

Paine Massacre Notes. See Descriptive List of Sources and Documents. JA's much less complete minutes follow (MHi: MS I):

“Mr. Auchmuty's Authorities.

“1. Hawk. c. 28. §14. page 71. §23. §21.

“1. Hawk. c. 29. §13. Homicide se defendendo.

“Foster 292. Stedmans Case.”

1 Hawkins, pleas of the Crown 71, c. 28, §14.

See note 29 115 above.

1 Hawkins, Pleas of the Crown 74–75, c. 29, §13:

“Homicide se defendendo . . . seems to be where one, who has no other possible Means of preserving his Life from one who combats with him on a sudden Quarrel, or of defending his Person from one who attempts to beat him, (especially if such Attempt be made upon him in his own House,) kills the Person by whom he is reduced to such an inevitable Necessity.”

1 Hawkins, pleas of the Crown 75, c. 29, §16: “[A]n Officer who kills one that resists him in the Execution of his Office, and even a private Person, that kills one who feloniously assaults him in the Highway, may justify the Fact without ever giving back at all.”

Foster, Crown Cases 292, reports Rex v. Stedman (Old Bailey 1704), which holds that a soldier struck by a woman in the face with an iron patten so that the blood ran, was guilty of no more than manslaughter for subsequently killing her. “The Smart of the Man's Wound, and the Effusion of Blood might possibly keep his Indignation boiling to the Moment of the Fact.”

Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114 (Q.B. 1707). For the full quotation, see note 10 96 above.

1 Hale, Pleas of the Crown 485–486, discusses Harcourt's Case, holding that one who from within a house kills another who is attempting to enter, is guilty of manslaughter (and not entitled to plead self-defence) because his life was not endangered by those on the outside.

Rex v. Cook, Cro. Car. 537, 538, 79 Eng. Rep. 1063 (K.B. 1639): Killing a bailiff who, in attempting to serve process, broke a window and door “was not Murder, but Manslaughter only; For although he killed a Bayliff, yet he killed him not in duly executing Process.”