Adams’ Notes of Authorities For the Preliminary Argument: 24 October 1770

Adams’ Notes of Authorities For the Preliminary Argument1

24 October 1770

By the Stat[ute] of Wm. Prisoner intituled to a Copy of the Indictment 5 days and of the Panel 2 days before the Tryal.2 And extended by Equity or by Favour, to Cases of Felony, tho the statute relates only to Treason. Vid. Foster and Hawkins.3

Foster 228. 229.4

Foster 299. §2. bottom, different Indictments to the same Jury.5 272.6

1. Adams Massacre Minutes, MHiMS 1. See Descriptive List of Sources and Documents.

2. An Act for Regulating of Trials in Cases of Treason and Misprision of Treason, 7 Will. 3, c. 3 (1695). “[I]t was enacted, in 1695, that persons indicted for high treason or misprision of treason should have a copy of the indictment five (afterwards extended to ten) days before trial [and of the jury panel two days before trial], and be allowed to have counsel and witnesses upon oath; and that the treason should be proved by two witnesses, either both to one overt act, or each to one of two overt acts of the same kind of treason. In 1708 [7 Anne, c. 21, §11 (1708): An Act for Improving the Union of the Two Kingdoms] the prisoner was also allowed to have a list of the witnesses and of the jury ten days before his trial. In 1702 [1 Anne, St. 2, c. 9, §3 (1702)] it was enacted that in cases of treason and felony the prisoner’s witnesses should be sworn, as well as the witnesses for the Crown.” 1 Stephen, History of Criminal Law description begins J. Fitzjames Stephen, History of the Criminal Law of England, London, 1883; 3 vols. description ends 416–417.

3. The precise citations to 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 , and 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 , have not been located.

4. 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 228–229 discusses the prisoner’s right to a copy of the indictment and the jury panel.

5. 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 299:

“A Prisoner whose Case may be brought within the Letter of the Act [2 Jac. 1, c. 8 (1604): An Act to Take Away the Benefit of Clergy for Some Kind of Manslaughter—the so-called “Statute of Stabbing”] commonly is Arraigned upon two Indictments, one at Common-Law for Murder, the other upon the Statute. And if it cometh out in Evidence that the Fact was either Justifiable or amounted barely to Manslaughter at Common-Law, it hath been rarely known that such Person hath been convicted of Manslaughter.”

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 272:

“And even in the Case of a sudden Affray where no Felony is committed or Wound given, if a Person interposing to part the Combatants, giving Notice to them of his friendly Intention, should be Assaulted by them or either of them, and in the Struggle should happen to Kill, this, I take it, will be Justifiable Homicide, And on the other Hand, if the Party so interposing, giving such Notice, should be Killed by either of the Combatants, it will be Murder in the Person so Killing. For it is the Duty of every Man to interpose in such Cases for preserving the Publick Peace and preventing Mischief.”

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Source Project: Adams Papers
Title: Adams’ Notes of Authorities For the Preliminary Argument: 24 October 1770
Author: Adams, John
Date: 24 October 1770

Reference

Cite as: “Adams’ Notes of Authorities For the Preliminary Argument: 24 October 1770,” Founders Online, National Archives, https://founders.archives.gov/documents/Adams/05-03-02-0001-0003-0002. [Original source: The Adams Papers, Legal Papers of John Adams, vol. 3, Cases 63 and 64: The Boston Massacre Trials, ed. L. Kinvin Wroth and Hiller B. Zobel. Cambridge, MA: Harvard University Press, 1965, p. 48.]