Adams Papers

Adams’ Notes for His Argument: Special Court of Admiralty, Boston, 4–5 August 1773

Adams’ Notes for His Argument1

Special Court of Admiralty, Boston, 4–5 August 1773


By what Rule is Prisoner to be tryed? Answer by the civil Law.

Statute 28. H. 8, c. 15. 11. & 12. W. 3, c. 7. 4. G, c. 11, §. 7. then

Foster 288. Barrington 54, bottom Note—notwithstanding St. Tr. V. 8, page 213.

It has been customary to look into both Laws, here, as it seems they do in London, at the Admiralty sessions.3

But the Principal Rule of Law upon which our defence is grounded is common to both Laws, that the Confession shall be taken alltogether.

Woods Inst. 676. Vin. Evid. page 95 A. b. 23. 3. 5. Mod. 165. 2. Hawk. 429.

Examen Juris Canonici. 335. Maranta Sp. Aur. 313. 314 especially.

2. Corp. Juris canonici 118 of the Institute de probationibus. This is no more than an extrajudicial Confession. Phillip & Mary.4

We must therefore throw all his Confessions and Examinations into the fire, and consider the Case without them.

But then by what Rules? Wood Inst. 310. Cod. Lib. 4. Tit. 19. §. 25. Maranta page 49. pars 4, dist. 1 77 Gail 503. 2. H.H.P.C. 290. 4. Blackst. 352. Dig. Lib. 29. Tit. 5. §. 24. “Nisi constet aliquem esse occisum, non habui [Familia] quaestionem.” 2. Domat 667.

Then consider Mr. Fitches Observations upon the Evidence—his Improbabilities, Incredibilities, Absurdities, Inconsistencies &c.

1In JA’s hand, following, after an interval of space, his notes of authorities, printed as Doc. I. See note 1 above. Only authorities not cited by JA in Doc. I have been annotated in Doc. III. The notes have been dated from a contemporary newspaper account. See text at notes 18, 19, above.

2That is, the information or libel containing the articles of the charge against Nickerson. No copy of this document has been found.

3That is, into both the common law, and the civil law, which was traditionally used in Admiralty. Compare No. 56. In the English practice, the jury and other features of the common law were made applicable by statute, but certain civil-law rules, such as the lack of the death penalty for manslaughter, applied. See No. 56, Doc. VI; p. 275, notes 2, 3, above. The argument seems to be JA’s means of getting around the decision of the Boston Special Court of Admiralty in Quelch’s Case (1704), that common-law rules controlled the admissibility of evidence. See note 51 above. For his difficulties with the same problem in the Vice Admiralty Court, see No. 46.

4Presumably a reference to the statutes 1 & 2 Phil. & Mary, c. 13 (1554), and 2 & 3 Phil. & Mary, c. 10 (1555), which provided that justices of the peace should examine persons accused of manslaughter or felony, either when admitting them to bail or upon commitment, and should certify the examination to the next court of general gaol delivery. According to 2 Hawkins, Pleas of the Crown description begins William Hawkins, A Treatise of the Pleas of the Crown, 4th edn., London, 1762; 2 vols. description ends 429 (cited by JA to another point, note 9 above), confessions taken on such occasions could be given in evidence, as could those “taken by the Common Law upon an Examination before a Secretary of State, or other Magistrates for Treason, or other Crimes, not within those Statutes, or in Discourse with private Persons.” Compare note 6 above. JA’s point seems to be that Nickerson’s examinations before Edward Bacon and the Admiralty Commissioners (text at notes 6–9 above) met none of these requirements.

Index Entries