In Robert Treat Paine's hand. Paine Law Notes. As usual in Paine's legal MSS, the handwriting is hasty, careless, and often cryptic, the punctuation chaotic, and the meaning, therefore, sometimes obscure. Some editorial regularization has had to be imposed to make the notes intelligible; doubtless some misreadings remain.

That is, “Perjury, Perjury.”

Either the witness saw the boys throw at the window, or saw Richardson and Wilmot through the window.

Dr. Thomas Young (1731–1777), one of the patriot leaders. See Edes, “Memoir of Dr. Thomas Young,” 11 Col. Soc. Mass., Pubns. 2 (1910).

William Blackstone, Analysis of the Laws of England 119 (Dublin, 5th edn., 1766):

“Manslaughter is the unlawful Killing of another; without Malice, express or implied. This is Felony, but within Clergy; except in the Case of Stabbing.” “Murder is when a Person of sound Memory and Discretion, unlawfully killeth any reasonable Creature, in Being, and under the King's Peace; with Malice aforethought, either express or implied. This is Felony, without Clergy; punished with speedy Death, and Hanging in Chains, or Dissection.”

Hale, Pleas of the Crown (Summary) 31: “But if the act be unlawful, then death ensuing, Manslaughter or Murder.” Id. at 32: “So that an unlawful act, without an ill intent, Manslaughter; with an ill intent, Murder.”

Hale, Pleas of the Crown (Summary) 44: “Malice implied in the manner of doing. . . . If a Man do an act that apparently must introduce harm, and Death ensue. . . . But note, that if it were with an intention to do harm, then Murder; if without such intention, Manslaughter.”

Hale, Pleas of the Crown (Summary) 45: “For an Intention of Evil, though not against a particular Person, makes a Malice.”

Foster, Crown Cases 255: “In every Charge of Murder, the Fact of Killing being first proved, all the Circumstances of Accident, Necessity, or Infirmity are to be satisfactorily proved by the Prisoner, unless they arise out of the Evidence produced against Him: for the Law presumeth the Fact to have been founded in Malice, until the Contrary appeareth.”

Foster, Crown Cases 291: “And it ought to be remembered, that in all other Cases of Homicide upon slight Provocation, if it may be reasonably collected from the Weapon made use of, or from any other Circumstance, that the Party intended to Kill, or to do some great bodily Harm, such Homicide will be Murder.”

1 Hale, Pleas of the Crown 451: “Malice in fact is a deliberate intention of doing some corporal harm to the person of another. . . . Malice in fact is a deliberate intention of doing any bodily harm to another, whereunto by law he is not authorized.”

Rex v. Oneby, 2 Ld. Raym. 1485, 1489, 92 Eng. Rep. 465, 468 (K.B. 1727): “Malice express, is a design formed of taking away another man's life, or of doing some mischief to another, in the execution of which design death ensues.”

That is, she remained until the window lead and frame were destroyed. The Knox referred to is Thomas Knox. See indictment, SF 102009, where he is listed as a witness.

Paine apparently used “@” to denote counterarguments or answers to points made by his opponents.

Numbers 35:14–33:

“Ye shall give three cities on this side Jordan, and three cities shall ye give in the land of Canaan, which shall be cities of refuge. These six cities shall be a refuge both for the children of Israel, and for the stranger, and for the sojourner among them: that every one that killeth any person unawares may flee thither. . . . Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses: but one witness shall not testify against any person to cause him to die. Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death. And ye shall take no satisfaction for him that is fled to the city of his refuge, that he should come again to dwell in the land, until the death of the priest. So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.”

See also note 5 121 above.

1 Hale, Pleas of the Crown 449: “Murder and manslaughter differ not in the kind or nature of the offense, but only in the degree, the former being the killing of a man of malice prepense, the latter upon a sudden provocation and falling out.”

Foster, Crown Cases 273: “In the Case of Justifiable Self-Defence the injured Party may repel Force with Force in Defence of his Person, Habitation, or Property, against one who manifestly intendeth and endeavoureth with Violence or Surprize to commit a known Felony upon either.” At 277, Foster discusses the difference between manslaughter and excusable self-defense.

Ford's Case, Kelyng 51, 84 Eng. Rep. 1078 (K.B. temp. Hyde, C.J.): killing a man while defending one's right to possession of a room in a tavern held justifiable.

Lord Morley's Case, Kelyng 60–61, 84 Eng. Rep. 1082 (K.B. temp. Kelyng, C. J.): “[W]e held that such a provocation as must take off the killing of a man from Murder to be but Manslaughter, must be some open Violence, or actual striving with, or striking one another.”

Reg. v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352 (Q.B. 1710): “[W]here the liberty of the subject is invaded, it is a provocation to all the subjects of England.”

Foster, Crown Cases 312: “The Doctrine advanced in the Case of The Queen against Tooly and Others hath, I conceive, carried the Law in favour of Private Persons Officiously interposing farther than sound Reason founded in the Principles of true Policy will warrant.”

Probably 3 Coke, Institutes *51: “Malice prepensed is, when one compasseth to kill, wound, or beat another, and doth it sedato animo.”

Probably 3 Coke, Institutes *57: “Homicide is called chancemedley or chancemelle, for that it is done by chance (without premeditation) upon a sudden brawle, shuffling, or contention.” Id. at *55: “There is no difference between murder, and manslaughter; but that the one is upon malice forethought, and the other upon a sudden occasion: and therefore is called chancemedley.”

Rex v. Royley, Cro. Jac. 296, 79 Eng. Rep. 254, 12 Co. Rep. 87, 77 Eng. Rep. 1364 (K.B. 1612). See note 20 106 above.

Foster, Crown Cases 295: “[T]he Accident happened by a single Stroke with a Cudgel not likely to destroy and . . . Death did not immediately ensue. . . . I observe that Lord Raymond layeth great Stress on this Circumstance, that the Stroke was with a Cudgel not likely to Kill.” Id. at 293 is a discussion of Rex v. Reason & Tranter, 1 Str. 499, 93 Eng. Rep. 659 (K.B. 1722). See note 21 107 above.

1 Hale, Pleas of the Crown 445. See note 5 91 above.

1 Hale, Pleas of the Crown 485, treats “what the offence is in killing him, that takes the goods, or doth injury to the house or possession of another.” See also note 14 100 above.

1 Hale, Pleas of the Crown 486: “If a man come to take my goods as a trespasser, I may justify the beating of him in defence of my goods, as hath been said, but if I kill him, it is manslaughter. But if a man come to rob me, or take my goods as a felon, and in my resistance of his attempt I kill him, it is me defendendo at least, and in some cases not so much.”

Semayne v. Gresham, 5 Co. Rep. 91, 77 Eng. Rep. 194 (K.B. 1605). See note 6 92 above.

Bowles v. Bury, 11 Co. Rep. 79, 84, 77 Eng. Rep. 1252, 1260 (K.B. 1605). The reference appears to be an inadvertence for 11 Co. Rep. at 82, 77 Eng. Rep. at 1258. See note 7 93 above.

Hale, Pleas of the Crown (Summary) 40: “If one come to enter into my House, claiming Title, and I kill him, Manslaughter. If A. enter wrongfully into the House of B. riotously and forcibly, B. and others endeavour to fire the house, A kills, Manslaughter.” See also note 11 97 above.

Apparently 1 Hawkins, Pleas of the Crown 72, which discusses justifiable homicide.

Rex v. Cook, Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1639). See text at note 12 98 above.

The two preceding sentences were inserted in the MS in a very small hand, not Paine's. They refer to the court's ruling that the killing was not excusable, but “manslaughter, because he seeing and knowing him, shot at him voluntarily, and slew him.” Cro. Car. at 539, 79 Eng. Rep. at 1064. As to the contention that if it were not for the fact of the house-breaking, the killing, being voluntary, would be murder, compare 1 Hale, Pleas of the Crown 485. See text at note 14 100 above.

Reg. v. Mawgridge, Kelyng 119, 84 Eng. Rep. 1107 (Q.B. 1707). See note 16 102 above. The reference appears to be an inadvertence for Kelyng 135, 84 Eng. Rep. 1114.

1 Hale, Pleas of the Crown 458. See note 13 99 above.

Foster, Crown Cases 298–299. See note 19 105 above.

1 Hale, Pleas of the Crown 442. See note 26 112 above.

Foster, Crown Cases 261. See note 25 111 above.

Rex v. Reason & Tranter, 1 Str. 499, 93 Eng. Rep. 659 (K.B. 1722), discussed in Foster, Crown Cases 292. See note 21 107 above.

1 Hawkins, Pleas of the Crown 81, §27:

“And it hath been adjudged, That even upon a sudden Quarrel, if a Man be so far provoked by any bare Words or Gestures of another, as to make a push at him with a Sword, or to strike at him with any other such Weapon as manifestly endangers his Life, before the other's Sword is drawn, and thereupon a Fight ensue, and he who made such Assault kill the other, he is guilty of Murder; because that by assaulting the other in such an outrageous Manner, without giving him an Opportunity to defend himself, he shewed that he intended not to fight with him, but to kill him, which violent Revenge is no more excused by such a slight Provocation, than if there had been none at all.”

1 Hawkins, Pleas of the Crown 83, §39:

“Also it seems, That he, who upon a sudden Provocation executeth his Revenge in such a cruel Manner, as shews a cruel and deliberate Intent to do Mischief, is guilty of Murder, if Death ensue; as where the Keeper of a Park, finding a Boy stealing Wood, tied him to a Horse's Tail and beat him, whereupon the Horse ran away and killed him.”

Foster, Crown Cases 350, 355, treats the law of accomplices and abettors.

Foster, Crown Cases 351–352, discusses Rex v. Plummer, Kelyng 109, 84 Eng. Rep. 1103 (K.B. 1701), in which the court held that the shooting of A by B, where both were members of the same gang attempting over the physical opposition of a Crown officer to export English wool contrary to law, was not murder in C (another gang member), it not having been found that the shot was discharged against the officer.

Foster, Crown Cases 353–354:

“A general Resolution against All Opposers, whether such Resolution appeareth upon Evidence to have been Actually and Explicitly entered into by the Confederates, or may be reasonably collected from their Number, Arms, or Behaviour at or before the Scene of Action, such Resolutions so proved have always been considered as strong Ingredients in Cases of this kind. And in Cases of Homicide committed in consequence of them, every Person present in the Sense of the Law when the Homicide hath been Committed, hath been involved in the Guilt of Him that gave the mortal Blow.”

1 Hawkins, Pleas of the Crown 193: “[S]ince the plain Meaning of such Scandal as is expressed by Signs or Pictures, is as obvious to common Sense, and as easily understood by every common Capacity, and altogether as provoking, as that which is expressed by Writing or Printing, why should it not be equally criminal?” This citation indicates that the defense argued that the criminal nature of the sign or “show” at Lillie's rendered the whole affair unlawful and that Richardson had been justified in attempting to destroy it.

1 Hale, Pleas of the Crown 441, setting out Mansell and Herbert's Case, Dyer 128, 73 Eng. Rep. 279 (1556–1557), concerning an attempt by a “great multitude of men” to take goods out of a house. A woman who came out of the house unarmed was struck and killed by a rock thrown by one of the multitude at another. Held: Murder (according to the headnote—the report itself is less clear).

1 Hale, Pleas of the Crown 439–440, a discussion of accessories to felony.

The MS page on which the immediately preceding citations appear is left three quarters blank. On the next page is set out (with some alterations) Isabella's speech from Shakespeare, Measure for Measure, Act II, scene 2, commencing “Could great men thunder.” On the page after that, upside down, appears the material on new trials ending Doc. II. The rest of that MS page is blank, and the following page commences with “SC. Augt. 1770.” (See Doc. III.) What role, if any, Shakespeare's lines played in the proceedings, the editors cannot presently say.

5 Bacon, Abridgment 244, concerning new trials, which cites the cases in the two footnotes next following. For a discussion of Bacon's authorities, see No. 12, text at notes 50–55.

Smith dem. Dormer v. Parkhurst et al., 2 Str. 1105, 1106, 93 Eng. Rep. 1061 (K.B. 1739): “[T]he point upon which the new trial in this case was denied was, because they said the evidence was doubtful, and in such a case a verdict at bar ought to stand,” even though the finding had been against the weight of the evidence.

Ashley v. Ashley, 2 Str. 1142, 93 Eng. Rep. 1088 (K.B. 1741):

“The Judge who tried this cause (which was upon a promisory note for £5000 which the defendant insisted was forged) certified that the weight of the evidence was with the plaintiff, and he thought the jury would find for the plaintiff; but they found for the defendant. Et per curiam, As there was evidence on the part of the defendant, the jury are the proper judges which scale preponderates. It cannot be said to be a verdict against evidence, and therefore we will grant no new Trial.”

Rex v. Huggins, 2 Str. 882, 887, 93 Eng. Rep. 915, 918 (K.B. 1731), reported somewhat more fully, 2 Ld. Raym. 1574, 92 Eng. Rep. 518. This was an indictment against the warden of the Fleet Prison for the murder of a prisoner by a servant of the deputy warden, who had confined the deceased “six weeks without fire, chamber-pot or close-stool, the walls being damp and unwholesome, and the room built over the common shore.” The jury found specially: that the servant had kept the deceased as alleged, whereof he had died; that Huggins knew the condition of the room at least fifteen days before the deceased's death, having seen him there and then having turned away. But Huggins' guilt or innocence they left to the court. Held: No finding of Huggins' consent to the deputy's acts, the circumstances of Huggins' presence

“were they ever so strong an evidence of consent, they will not be sufficient for us to ground a judgment upon: we are to determine upon facts, and not on evidence of facts. . . . It would be the most dangerous thing in the world, if we should once give into the doctrine of inferring facts from evidence; which is the proper business of a jury, and not of the court.”

See notes 20 193 , 21 194 , below, and 52 168 above.

4 Blackstone, Commentaries *354–355:

“But an open verdict may be either general, guilty, or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. That is where they doubt the matter of law, and therefore chuse to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if they think proper so to hazard a breach of their oaths. . . . Yet in many instances, where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of king's bench. . . . But there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first.”

2 Hale, Pleas of the Crown 309–310:

“But what if a jury give a verdict against all reason, convicting or acquitting a person indicted against all evidence, what shall be done? I say, if the jury will convict a man against or without evidence, and against the direction or opinion of the court, the court hath this salve[,] to reprieve the person convict before judgment, and to acquaint the king, and certify for his pardon.”