Paine’s Minutes of Auchmuty’s Argument for the Defense1
27 October 1770
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
They were on their duty, and in extremity.
Foster p. 292. Steadman’s Case.6
Key. 135. bott[om]. If one man in angry words.7
1 H.H.C. 485. 6. Harcot’s Case.8
Cr. Char. 538. Coke Case.9
1. 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.”
“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.”
5. 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 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.”
6. Foster, Crown Cases description begins Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases. To Which are Added Discourses upon a few Branches of the Crown Law, Oxford, 1762. description ends 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.”
7. Reg. v. Mawgridge, Kelyng description begins John Kelyng, Report of divers Cases in Pleas of the Crown, with Directions for Justices of the Peace, 2d edn., London, 1739. description ends 119, 135, 84 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 1107, 1114 (Q.B. 1707). For the full quotation, see note 10 above.
8. 1 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 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.
9. Rex v. Cook, Cro. Car. description begins George Croke, Reports of Cases in King’s Bench and Common Bench, Part 3, Charles, London, 1657. description ends 537, 538, 79 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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.”