Adams’ Minutes of the Argument1
Special Court of Admiralty, Boston, 3–4 August 1773
Fitch. Not charged with Murder. But as the Killing constitutes Pyracy.
11. & 12. W, c. 7, §9.2
Petit Treason at common Law. 25. Ed. 3. defined Treason.3 Confining the Master, and taking Vessel into Possession and robbing him is Pyracy.
Evidence presumptive. No Witnesses who saw the Transaction.
2. Sorts of Presumptions, 1. Proofs. 2. Only conjectures without Certainty. A necessary Connection.6
430. §4. Presumptions of 2 Kinds. Conjectures leave doubt.7
2. Domat. 666.8
Wood civil Law. page 302. Proof—plena, 2 Witnesses. 2 half proofs make one whole one.9
305. 6. Confession, not conclusive alone. Ought to admit the whole. —See this by all Means.—Defence must be proved.10
Appeal to the human Mind that it is impossible to divide his Confession.11
The 4 Persons were on board and said12 with Prisoner. Neg[atu]r.
All 4 kill’d.
Prisoner’s own Account. Blood spilt, where they came up.
All 4 Missing 9 Mo.13 No Account of them.
What supposition can be made, consistent with common sense.
Prisoner found alone on board. All staind with blood, the decks reeking with blood.
In Possession of Vessell, and evry Thing, disposing as he thought proper.—Mem. signal of distress.14
Woman delivered alone.15
Goods taken with the Maner.16
His Account improbable, incredible. Therefore makes vs. him not for him. Improba[bi]lities.
His Design in going only to get his Cloaths. Cost him much to come back by Land.
No Wind he says.
No Ax. Crowl17 says there was. They were to [. . .][boards?].
Does not know the Boys Name.
None of the other Vessells saw this Schooner.
None heard the Gun but him.
Incredibility that there should have been a Pirate Vessell. Boats could not board.
He said the Box was gone, tho he said he had not been down the Hold.
Rum on the Boards therefore not carried off.
Fresh Meat, Butter, Cyder, Roots, &c. not taken.
The Pirates must have trod in the blood, and left the Marks in Cabin, hold &c.
Where was the Prisoner for fear of Impress. Hanging on the Stern.
Is it possible he should have hung there a Minute.
Why did not they discover him, when on the deck and when they came under the Stern.
The Paint clean, not bruised nor broke.
Manner of getting in incredible, impossible.
Account of Coll. Doane different.18
If the Prisoner guilty would not every appearance have been as they were.
Liquor, Cyder and Rum in the Pail, and the [Cantien?] he gave, shews they were made drunk and then butch[ere]d.
Conduct after he came ashore—wandering God knows where. No Account can be given of him. An opportunity to bring <
it> ashore, the Money.
Confident he should be discharged.
Went a little Way, felt poorly, when he came back. The Witnesses say he could not go on board the Vessell then, but he might go where the Money was hid.
All Night absent going to his Grandfathers. He pretended he was lost.
Went to the Hay Yard to the End of the Stack, to get hay for his Horse.
7 Months after, an handkerchief found.
Otis Lorings Account—dont tell me, where[.]
J. Quincy. Altogether presumptive.
Wood civ. Law 276.19
Viner. Ev. p. 95.21
Dig. 42. Tit. 2.22
Cod. 7. Tit. 59.23
1. Domat. 430. Thus in a criminal Action, &c.24
2. Domat. 668. 9. Consequences from certain facts, known and proved. The natural and necessary Connection between the facts proved, and those inferred.25
2. Domat. 618.27
1. Ld. Bacon. 251.28
Hawk.> Hale P.C. 289.29
Ayliff 447. 8.30
1. In JA’s hand. Adams Papers, Microfilms, Reel No. 185. The notes have been dated from a contemporary newspaper account. See text at notes 17, 18, above.
2. 11 & 12 Will. 3, c. 7, §9 (1700):
“And be it further enacted, That if any commander or master of any ship, or any seaman or mariner, shall, in any place where the admiral hath jurisdiction, betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his or their ship or ships, or any barge, boat, ordnance, ammunition, goods, or merchandizes, or yield them up voluntarily to any pirate, or shall bring any seducing messages from any pirate, enemy, or rebel, or consult, combine, or confederate with, or attempt or endeavour to corrupt any commander, master, officer, or mariner, to yield up or run away with any ship, goods, or merchandizes, or turn pirate, or go over to pirates, or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defense of his ship and goods committed to his trust, or that shall confine his master, or make, or endeavour to make a revolt in the ship, shall be adjudged, deemed, and taken to be a pirate, felon, and robber, and being convicted thereof, according to the directions of this act, shall have and suffer pains of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas ought to have and suffer.”
3. 25 Edw. 3, stat. 5, c. 2 (1350), defined petit treason as “When a servant slayeth his master, or a wife her husband, or when a man secular or religious slayeth his prelate, to whom he oweth faith and obedience.” Fitch may here have been quoting or paraphrasing 1 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 98, c. 37, Of Piracy, §2: “It is said that before 25 Ed. 3. this Offense [Piracy] was punished at Common Law as Petit Treason, if committed by a Subject, and as Felony, if committed by a Foreigner: However it seems agreed, that after that Statute by which all Treason is confined to the Particulars therein set down, it was cognizable only by the Civil Law.” Compare 4 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *71.
4. 1 Domat, Civil Law description begins Jean Domat, The Civil Law in its Natural Order: Together with the Publick Law, transl. William Strahan, London, 1722; 2 vols. description ends 413, bk. 3, tit. 6, Of Proofs, and Presumptions, and of an Oath: “We call that a Proof which convinces the Mind of a Truth.”
“But if it [the identity of the murderer of one killed alone on the highway at night] is discovered, it will be only by Proofs that may be drawn from circumstances which shall happen to be linked together with this Crime, and which will depend on Events that have happened by accident, such as the casual rencounter of some Witnesses, and such signs and tokens as there may happen to be, conjectures, and presumptions.”
“It may be gathered from these Remarks, that there are two sorts of Presumptions: Some of which are drawn by a necessary consequence from a Principle that is certain; and when these sorts of Presumptions are so strong, that one may gather from them the certainty of the Fact that is to be proved, without leaving any room for doubt, we give them the name of Proofs, because they have the same effect, and do establish the truth of the Fact which was in dispute. The other Presumptions are all those which form only Conjectures, without certainty; whether it be that they are drawn only from an uncertain Foundation, or that the consequence which is drawn from a certain Truth is not very sure.
“It is because of the difference between these two sorts of Presumptions, that the Laws have appointed some of them to have the force of Proofs, and have not left the Judges at liberty to consider them only as bare Conjectures, because in effect these sorts of Presumptions are such, that one sees in them a necessary connexion between the truth of the Fact that is to be proved, and the certainty of the Facts from whence it follows.”
7. 1 Domat, Civil Law description begins Jean Domat, The Civil Law in its Natural Order: Together with the Publick Law, transl. William Strahan, London, 1722; 2 vols. description ends 430, bk. 3, tit. 6, Of Presumptions, §4: “Presumptions are of two kinds, some of them are so strong, that they amount to a certainty, and are held as Proofs, even in Criminal Matters. And others are only conjectures which leave some doubt.”
8. 2 Domat, Civil Law description begins Jean Domat, The Civil Law in its Natural Order: Together with the Publick Law, transl. William Strahan, London, 1722; 2 vols. description ends 666, presumably a reference to a passage on the cited page describing the four ways of proving facts in court: “The Confession of the Party, the Testimony of Persons who know the Fact, the Evidence which arises from Deeds and Writings, and the Knowledge of certain Facts, which are linked in such a Manner with that whereof we search the Truth, that one may gather the said Truth from the Connection there is between the Fact in question and those of which the Truth is proved.” Immediately following in the text is the passage cited by JA, note 13 above, and cited by him in argument, text following note 4 below.
9. Wood, New Institute of the Civil Law description begins Thomas Wood, New Institute of the Imperial or Civil Law, with notes, 3d edn., London, 1721. description ends 302 (London, 4th edn., 1730): “Proof is either (plena) a full proof, as by two Witnesses or a publick Instrument; or (semiplena) an half proof, as one Witness or a private Writing; so that two half proofs being joined together (though of a different nature) make one full proof.” Note that the edition cited here and in note 10 below by Fitch is that of 1730. JA’s citations to this work in this case and elsewhere are to the first edition of 1704.
“But all Confessions are not to be esteemed a discovery of the Truth, if there are no other corroborating Circumstances. For sometimes Fear or a weariness of Life, or some other Reason hath induced Men to make Confessions of those Things which they were never guilty of. . . . But when the Confession is regular, and admitted by the other Party, he ought to admit the whole as it is qualified, and when it is extended to other matters which are done at the same time; unless there is a presumption against that part. As when one confesses that he kill’d Titius in his own defense; the killing shall stand by it self as confessed, and the qualification must be proved, because the Law presumes design, and throws the proof upon the Criminal.”
11. This is apparently a reference to the language of Wood, New Institute of the Civil Law description begins Thomas Wood, New Institute of the Imperial or Civil Law, with notes, 3d edn., London, 1721. description ends 305–306, which follows the passage quoted in note 10 above:
“But if the Sentences are distinct, where there is no presumption, the qualification afterwards comes too late, and infers that the Acts are done at different Times.” Then follows an example in which “The Libel charges that you receive 100 l. of me. You answer, That you did receive 100 l. of me which I ow’d to you, and no other Sum; this is but one Sentence, and cannot be divided; for with one Breath I do as it were absolutely deny the Charge. But where the Sentences are divided, there the Confession shall be divided, and part accepted and part rejected. As if you had answer’d, That you did borrow the 100 l. but that you have since repaid it: Or that I have promised not to demand it ’till seven years were past. The latter part of this answer must be proved, else you will be condemned.”
12. Thus in MS, but quite possibly an inadvertence for “sailed.”
13. That is, nine months between the date of the incident in Nov. 1772 and the time of the hearing in Aug. 1773.
14. Probably JA’s reminder to himself that Nickerson’s signal of distress was not consistent with a criminal intent.
15. Probably a reference to an example given in 1 Domat, Civil Law description begins Jean Domat, The Civil Law in its Natural Order: Together with the Publick Law, transl. William Strahan, London, 1722; 2 vols. description ends 415, following the passage quoted, note 6 above, which recounts Henri II’s edict of 1556 that if a woman was brought to childbed without witnesses and there was no subsequent christening or public burial, there should be a presumption that she had murdered the child.
16. That is, “Manor” ? The reading and allusion are unclear. This may be a reference to a presumption as to the title to chattels remaining on the land at the time of conveyance.
17. Probably a witness, but not identified.
19. Wood, New Institute of the Civil Law description begins Thomas Wood, New Institute of the Imperial or Civil Law, with notes, 3d edn., London, 1721. description ends 276 (London, 4th edn., 1730): “Homicide with Deliberation is when one kills another upon a premeditated design, and in cold Blood. If the design cannot be proved directly, it may be learnt from circumstances, as when there was Enmity between the Parties, providing Arms, lying in wait, &c.”
20. 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 . The page reference cannot be determined from the context.
22. Justinian, Digest, bk. 42, tit. 2, De Confessis. A series of eight laws, most of which deal with the confession of civil obligations, stating the general proposition that confession of a debt is the equivalent of a judgment for that amount. Quincy may have been drawing an analogy to the provisions that this rule does not apply where the amount of the debt or the nature of property in question is uncertain. Id., L. 6, L. 8.
23. Justinian, Codex, bk. 7, tit. 59, De Confessis, §1: “Confessis in jure pro judicatis haberi placet. Quare sine causa desideras recedi a confessione tua, cum et solvere cogeris.” See 14 Scott, Civil Law description begins S. P. Scott, transl., The Civil Law, Cincinnati, 1932; 17 vols. description ends 202: “It has been decided that confessions made in court have the effect of judgments, therefore you have no right to revoke your confession, as you will be compelled to make payment.” A better translation of the first clause might be: “confessions in law have the effect of judgments.”
“Presumptions are consequences drawn from a fact that is known, to serve for the discovery of the truth of a fact that is uncertain, and which one seeks to prove. . . . Thus in a Criminal Affair, if a Man has been killed, and it is not known by whom, and if it be discovered that he had a little while before a quarrel with another person, who had threatened to kill him, one draws from this known fact of the quarrel and threatning, a Presumption that he who had thus threatned him, may have been the Author of the Murder.”
“There is likewise a fourth Kind of Proofs which are called Presumptions, that is to say, Consequences which are drawn from certain Facts that are known and proved, whereby to guess at or infer the Certainty of the Fact in dispute, and of which the said known Facts are Marks and Signs; and these sorts of Proofs are called Presumptions, because they do not demonstrate the Fact it self which is to be proved, but prove the Truth of other Fact, the knowledge whereof discovers, points out, and gives room to conjecture and presume the Fact in question, because of the natural and necessary Connection between the Facts that are known, and those which we want to know the Truth of.”
26. That is, 2 Domat, Civil Law description begins Jean Domat, The Civil Law in its Natural Order: Together with the Publick Law, transl. William Strahan, London, 1722; 2 vols. description ends 670. The precise passage intended cannot be determined from context.
27. 2 Domat, Civil Law description begins Jean Domat, The Civil Law in its Natural Order: Together with the Publick Law, transl. William Strahan, London, 1722; 2 vols. description ends 618, a passage stating that the three bases for differentiating between crimes are (1) the degree of heinousness; (2) the motive, whether premeditation, passion, or imprudence; and (3) the circumstances in which the crime is committed.
28. Probably a reference to Francis Bacon, Works, 1:251 (London, 1750), a section of the eighth book of his De Augmentis Scientiarum, entitled “De exemplis et usu eorum,” which deals with “examples, from which justice is to be derived when the law is deficient,” that is, examples of human experience not common enough to have been reduced to custom or law. See 5 Bacon, Works 92–94 (London, transl. and ed. Spedding, Ellis, Heath, 1877).
29. 2 Hale, Pleas of the Crown description begins Matthew Hale, Historia Placitorum Coronse: The History of the Pleas of the Crown, London, 1736; 2 vols. description ends 289. Presumably the reference is to this passage: “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 five guilty persons should escape unpunished, than one innocent person should die.” Hale then gives the example of a man executed for theft of a horse, only to have the true thief later confess that he had given the innocent victim the horse to walk just before his apprehension. There follows on p. 290 the passage quoted by JA, note 10 above, and cited by him in argument, text following note 4 below.
30. Presumably John Ayliffe, Parergon Juris Canonici Anglicani 447, 448 (London, 2d edn., 1734), a long passage on the sufficiency of proof, containing such statements as, “In the Business of Proof, a Judge ought first to have a great Regard to the Probability thereof” (p. 447), and, “As in all Criminal Causes Evidence or Notoriety of Fact is full Proof, so likewise in such Causes all manner of Proofs ought to be clearer than the Light of the Sun at Noon-day.” (p. 448). That this work was available in Boston appears from the Harvard Law School’s copy, which bears the signatures of Jeremy Gridley, Samuel Sewall, and Christopher Gore. For another use of Ayliffe by JA, see p. 104 above.
31. Presumably either Wood, New Institute of the Civil Law description begins Thomas Wood, New Institute of the Imperial or Civil Law, with notes, 3d edn., London, 1721. description ends , or Wood, Institute of the Laws of England description begins Thomas Wood, An Institute of the Laws of England; or, the Laws of England according to Common Use, London, 1720; 4 vols. description ends .