York 14th. February 1811
I have been much gratified by your Communication of Jany 29th. ult.— When I requested the Information, I did not, I think, mention the occurrence, which gave rise in my mind to the Application, I will therefore mention it.— Two person stand Indicted in the District Court of Maine, for piratically runing away with a Vessell & cargo— One (the Master) as Principal: the other (the Mate) as Accessory before the fact, by being present Advising aiding & assisting therein.— The Accessory only is yet apprehended; And upon his arraiment in Decemr. last prayed the Opinion of the Court, Whether He ought by law to answer to the Charge until the Principal (Who had not been Apprehended) should be tried: And was heard thereon by his Councell— I determined, from the Authoritys of Hawking, Hale, Foster & Malloy, that his Objection was substantial, and He ought not (unless by his free concent) to compelled to answer until the Person charged as Principal, in the Offence had answered: And continued the Cause, to the end the Principal might be apprehended.—In the Consideration of the Case mention was made of all trials for Piracy or felony on the high Seas, that had Occurred in Massa. since my recollection of Which this of Nicholson was the last, prior to the American Revolution—one at Cambridge, under the Ordinance of Congress, before the S. J. Court and one, under the Act of Congress of 1790. in the district Court of Maine none of Which had afforded any precident, respecting the Question. But it must remaine, as to the distinction of Principal & Accessory—as it was by the Civil Law. That the Mode of trial; by Grand & Petit Jurors, had not done away, or altered this distinction. And that the Act of Congress by which alone the Courts of the U. S. under their present Organization, had Authority to try & punish the Offence, seemed to hold up the distinction of Principal and Accessory.—I do not at present see, how the Admiralty Courts, before the Revolution, could call in, a Jury to determine the Fact of Piracy, or felony on the high Seas.— And Courts of that kind in the Brittish Plantations, I suppoze are in the like predicament at the present time.—In your mentioning our surviving Classmates Baily is omitted I do not Recollect, to have heard of his Death— He removed during the revolutionary War, to some part of Nova Scotia and While Docr Parker of Boston was liveing, he had frequent commun. from him—I am really glad to find your recollection so perfect—Docr. Hemmengway, has once and again mentioned to me, that We three Were born in the same Month—Octr. 1735. I have had thro’ divine goodness, a large portion of Health, But my faculties I really find decaying I now and then amuse myself with calculating an Eclipse, (this I suppose will make you Smile) the Solar one of Sepr. 17th. of the Current Year I have found the general Element of— But for want of some Instruments to Projet it, for our Lat & Long. I have not ascertained it’s particular appearan
But I will not be further tedious, in detaining your attention fro matters of more consequence / Your assd. friend & / Hume Sert.
MHi: Adams Papers.