Category Archives: Legal

Item of the Day: A Copy of the Deposition of Francis Branson (1680)

A copy of the Deposition of Francis Branson.

Found In: Letters from the English Kings and Queens Charles II, James II, William and Mary, Anne, George II, &c. To the governors of the Colony of Connecticut, together with the Answers  thereto, from 1635 to 1749; and Other Original, Ancient, Literary and Curious Documents, Compiled from Files and Records in the Office of the Secretary of the State of Connecticut. By R. R. Hinman, A. M. Secretary of the State of Connecticut. Hartford: John D. Eldredge, Printer, 1836. [pp. 119-120]

 

Francis Branson, commander of the ship Anne and Hester, aged 30 years or thereabouts, in the behalf of his Majestie testifieth, that William Kelso, Chirurgeon, and John Bowland, mate of the said ship, being aboard, in the great cabbin at sea, the 16th day of April last, 1680, amongst other discourses that then passed between them, the said William Kelso in hearing of this Deponent, did declare in the great cabbin, that he was the Chirurgeon Generall, in the late rebellion in Scottland, and that after the Duke of Monmouth had been there and qualified them, Kelso cutt of his hair and wore a Perriwigg, and made his escape into the north of Ireland, and from thence transported himself to Dublin, and was there some small time, and from thence he made his excape to Bristol, and there he stayed a while, and after went up to London. He then at the same time did declare, that he knew those persons that murdered the Arch Bishop of St. Andrews, and that they had made their escape disguised, and could not be found; that there were sixe of them that sett upon him, when he was in his coach, going over a plain 3 miles from a village, that they hauled him out of his coach and told him that he had betrayed them, and therefore nothing should satisfie them but his blood. His Daughter being in the coach with him, opened her bosome, and desired them to spare her father and kill her, but they fell upon him with pistols, first pistolling him, and then hewed him in pieces with their swores ; all which words were spoken by the said Kelso, when we wee coming from England, being then bound for the Isle of May.

Sworn to in Court, the 4th January, 1680, in Boston, New England. That this is a true coppie taken and compared with the original, 4th January 1680.

Attest,

EDWARD RAWSON, Secr’y.

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Filed under 1680's, Crime and punishment, England, Great Britain, Ireland, Legal, New England, Posted by Caroline Fuchs, Trials

Item of the Day: Laws for Pequot Indians (1675) [i.e. 1676]

Laws for Pequot Indians.

Found In: Letters from the English Kings and Queens Charles II, James II, William and Mary, Anne, George II, &c. To the governors of the Colony of Connecticut, together with the Answers  thereto, from 1635 to 1749; and Other Original, Ancient, Literary and Curious Documents, Compiled from Files and Records in the Office of the Secretary of the State of Connecticut. By R. R. Hinman, A. M. Secretary of the State of Connecticut. Hartford: John D. Eldredge, Printer, 1836. [pp. 93-96]

 

[The following has been transcribed as it appears in the above text. No changes or corrections have been made to the spelling of the words in the document.] 

 

Laws of the said Indians to observe.

  1. That whosoever shall oppose or speake against the onely liveing and true God, the creator and ruler of all things, shall be brought to some English Court to be punished as the nature of the offence may require.
  2. That whosoever shall powaw or use witch-craft or any worship to the Devill, or any falls God, shall be so convicted and punished.
  3. That whosoever shall profane the holy Sabbath day by servill work or play, such as chopping or fetching home of wood, fishing, fowling, hunting, &c, shall pay as a fine tenn shillings, halfe to the cheife officers, and the other halfe to the constable and informer, or be sharply whipt for ever such offence.
  4. Whosoever shall committ murder or manslaughter, shall be brought to Hartford goale, and be tryed by the Government according to the English Law, which punisheth by death.
  5. Whosoever shall committ adultery by lying with another mans wife, or to have or keep her from her husband, shall be imprisoned and tryed and punished with a fyne of fortyy shillings for every offence, and so in the case of the adultresse; the sayd fine to be distributed as before.
  6. Whoseover shall steale, shall restore double to his neighbours for what he hath taken, when convict before their officer and councill, and pay the constable two shillins sixpence for his paynes about executing the law.
  7. Whosoever shall appeare, and prove to be drunk amongst them, shall pay tenn shillings or be whipt as the officers shall see meete, and the fine divided as before in the law about Sabbath breaking; in like manner shall it be done to such Indians as doe bring the liquors or strong drinke amongst them.
  8. It is ordered that a ready and comely attendance be given to heare the word of God preached by Mr. Fitch, or any other minister sent amongst them. The cheife officers and constables are to gather the people as they may, and if they be refractory and refuse, or doe misbehave themselves undecently, such shall be punished with a fine of five shillings, or be corporally punished as the officers shall see most meet.
  9. If the officers shall neglect in any of the premises to doe their duty, they shall receive double punishment, when convict thereof in any of our English Courts.
  10. But whosoever shall either affront the principall officer, or refue to assist the constable in the due execution of his office, shall pay for each affront so given, ten shillings, and for such refusall to assist the constable, five shillings.

Mr. Thomas Stanton Sen’r, and Lieutenant James Avery, were appoynted and desired to give them advice and help in all cases of difficulty, for the well management of their trust and affayres, to whome they are in all such cases to repayre.

WM. LEET, Dept Governor,

SAMUEL WILLYS, Assist.

JOHN TALCOTT, Assist.

JOHN ALLYN, Assist.

JAMES RICHARDS, Assist.

Dated in Hartford, May 31, 1675.

To Hermon Garrata to cause to be published to the people of his plantation, and the rest under his Government.

The tenn articles were faythfully published to Robin Harmaysun, Monohor, the Naragansett Sunk Squaw and her councill being present, at a great concourse amongst the Pequitts, the forepart which respects Robins own interest was served and desired Robin not to be published as yet.

pr. JOHN STANTON.

Capt. Avery, and Lieutenant Minor being present as witnesseth their hands.

JAMES AVERY

THO. MINOR.

The 24th January, 1675. [i.e. 1676]

 

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Filed under 1670'S, American Indians, Colonial America, Connecticut, Crime and punishment, Legal, New England, Posted by Caroline Fuchs, Religion

Item of the Day: Trevett against Weeden (1787)

Full Title:

The Case, Trevett against Weeden: On Information and Complaint, for refusing Paper Bills in Payment for Butcher’s Meat, in Market, at Par with Specie.  Tried Before the Honourable Superior Court, in the County of Newport, September Term, 1786.  Also, The Case of the Judges of Said Court, Before the Honourable General Assembly, at Providence, October Session, 1786, on Citation, for diminishing said Complaint.  Wherein the Rights of the People to Trial by Jury, &c. are stated and maintained, and the Legislative, Judiciary and Executive Powers of Government examined and defined.  By James M. Varnum, Esq; Major-General of the State of Rhode Island, &c. Counsellor at Law, and Member of Congress for said State.  Providence:  Printed by John Carter, 1787. 

Upon the last Monday of September, in the eleventh year of the Idependence of the United States, in the city of Newport, and State of Rhode Island, &c. was heard, before the Superior Court of Judicature, Court of Assize, and General Gaol-Delivery, a certain information, John Trevett against John Weeden, for refusing to receive the paper bills of this State, in payment for meat sold in market, equivalent to silver and gold: And upon the day following the Court delivered the unanimous opinion of the Judges, that the information was not cognizable before them.

That this important decision may be fully comprehended, it will be necessary to recur to the acts of the General Assembly, which superinduced the trial.–At the last May session, an act was made for emitting the sum of one hundred thousand pounds, lawful money, in bills, upon land security, which should pass in all kinds of business, and payments of former contracts, upon par with silver and gold, estimating an ounce of coined silver at six shillings and eightpence.  Another act was passed in the June following, subjecting every person who should refuse the bills in payment for articles offered for sale, or should make a distinction in value between them and silver and gold, or should in any manner attempt to depreciate them, to a penalty of one hundred pounds, lawful money; one moiety to the State, and the other moiety to the informer; to be recovered before either of the Courts of General Sessions of the Peace, or the Superior Court of Judicature, &c.

Experience soon evinced the inadequacy of this measure to the objects of the Administration: And at a session of the General Assembly, specially convened by his Excellency the Governor, upon the third Monday of the following August, another act was passed, in addition to and amendment of that last mentioned, wherein it is provided, that the fine of one hundred pounds be varied; and that for the future the fine should not be less than six, nor exceed thirty pounds, for the first offence: The mode of prosecution and trial was also changed, agreeably to the following clauses, “that the complainant shall apply to either of the Judges of the Superior Court of Judicature, &c. within this State, or to either of the Judges of the Inferior Court of Common Pleas within the county where such offence shall be committed, and lodge his certain information, which shall be issued by the Judge in the following form,” &c.  It is then provided, that the person complained of come before a Court to be specially convened by the Judge, in three days; “that the said Court, when so convened, shall proceed to the trial of said offender, and they are hereby authorized so to do, without any jury, by a majority of the Judges present, according to the laws of the land, and to make adjudication and determination, and that three members be sufficient to constitute a Court, and that the judgment of the Court, if against the offender so complained of, be forthwith complied with, or that he stand committed to the county gaol, where the said Court may be sitting, till sentence be performed, and that the said judgment of said Court shall be final and conclusive, and from which there shall be no appeal; and in said process no essoin, protection, privilege or injunction, shall be in anywise prayed, granted or allowed.”   

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Filed under 1780's, Constitutional Debate, Crime and punishment, Early Republic, Eighteenth century, Government, Legal, Posted by Matthew Williams

Item of the Day: John Adam’s Defence of the Constitutions of Government of the United States of America (1794)

Full Title: A Defence of the Constitutions of Government of the United States of America, Against the Attack of M. Turgot in his Letter to Dr. Price, Dated the Twenty-Second Day of March, 1778. By John Adams . . . In Three Volumes, Vol. I. A New Edition. London: Printed for John Stockdale, Piccadilly, 1794.

PREFACE.

THE arts and sciences in general, during the three or four last centuries, have had a regular course of progressive improvement. The inventions in mechanic arts, the discoveries in natural philosophy, navigation, and commerce, and the advancement of civilization and humanity, have occasioned changes in the condition of the world, and have the human character, which would have astonished the most refined nations of antiquity. A continuation of similar exertions is every day rendering Europe more and more like one community, or single family. Even in the theory and practice of government, in all the simple monarchies, considerable improvements have been made. The checks and balances of republican governments have been in some degree adopted by the courts of princes. By the erection of various tribunals to register laws and exercise the judicial power–by indulging the petitions and remonstrances of subjects, until by habit they are regarded as rights–a controul [sic] has been established over ministers of state and the royal councils, which approaches, in some degree, to the spirit of republics. Property is generally secure, and personal liberty seldom invaded. The press has great influence, even where it is not expressly tolerated; and the public opinion must be respected by a minister, or his place becomes insecure. Commerce begins to thrive, and if religious toleration were established, and personal liberty a little more protected, by giving an absolute right to demand a public trial in a certain reasonable time–and the states invested with a few more privileges, or rather restored to some that have been taken away–these governments would be brought to as great a degree of perfection, they would approach as near to the character of governments of laws and not of men, as their nature will probably admit of. In so general a refinement, or more properly reformatin of manners and improvement in knowledge, is it not unaccountable that the knowledge of the principles and construciton of free governments, in which the happiness of life, and even the further progress of improvement in education and society, in knowledge and virtue, are so deeply interested, should have remained at a full stand for two or three thousand years? —According to a story in Herodotus, the nature of monarchy, aristocracy, and democracy, and the advances and inconveniencies of each, were as well understood at the time of the neighing of the horse of Darius as they are at this hour. A variety of mixtures of these simple species were conceived and attmepted, with different success, by the Greeks and Romans. Representations, instead of collections, of the people–a total separation of the executive from the legislative power, and of the judicial from both–and a balance in the legislature by three independent equal branches–are perhaps the three only discoveries in the constitution of a free government, since the institution of Lycurgus. Even these have been so unfortunate, that they have never spread: the first has been given up by all the nations, excepting one, who had once adopted it; and the other two, reduced to practice, if not invented, by the English nation, have never been imitated by any other except their own descendants in America. While it would be rash to say, that nothing further can be done to bring a free government, in all its parts, still nearer to perfection–the represenations of the people are most obviously susceptible of improvement. The end to be aimed at, in the formation of a representative assembly, seems to be the sense of the people, the public voice: the perfection of the portrait consists in its likeness. Numbers, or property, or both, should be the rule; and the proportions of electors and members an affair of calculation. The duration should not be so long that the deputy should have time to forget the opinions of his constituents. Corruption in elections is the great enemy of freedom. Among the prvisions to prevent it, more frequent elections, and a more general privilege of voting, are not all that might be devised. Dividing the districts, diminishing the distance of travel, and confining the choice to residents, would be great advances towards the annihilation of corruption . . .

 

(See also posting from March 22, 2007)

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Filed under 1790's, Adams, Constitution, Early Republic, Government, Legal, Posted by Caroline Fuchs

Item of the Day: Proceedings on the Trial against John Stockdale (1790)

Full Title: The Whole Proceedings on the Trial of an Information Exhibited Ex Officio, by the King’s Attorney General, against John Stockdale; for a Libel on the House of Commons, Tried in the Court of King’s-Bench Westminster, on Wednesday, the Ninth of December, 1789, before the Right Hon. Lloyed Lord Kenyon, Chief Justice of England. Tanken in Short Hand by Joseph Gurney. To which is subjoined, An Argument in Support of the Rights of Juries. London: Printed for John Stockdale, opposite Burlington-House, Piccadilly, M,DCC,XC.

 

PREFACE.

The Pamphlet which gave rise to the following Trial, was written by the Reverend Mr. Logan, some time one of the ministers of Leith, near Edinburgh; — “A gentleman formed to be the ornament and instructor of the age in which he lived: All his writings are distinguished by the segacity of their reasonings, the brilliancy of their imaginations, and the depth of their philosophical principles. Though cut off in the flower of his age, while the prosecution against his publisher was depending, he left behind himseveral respectable productions, and particularly Elements of Lectures upon the Philosophy of Ancient History; which, though imperfect, and unfinished, will afford to the discerning, sufficient reason to regret that his talents did not remain to be matured by age, and expanded by the fostering breath of public applause.”

Such is the character, given of Mr. Logan in the last New Annual Register; but as his Review of the Charges against Mr. Hastings has made so much noise in the world, it may not be uninteresting to state by what means, he became so intimately acquainted, with the politics of India.

For some time previous to his decease, Mr. Logan was the principal author of that part of the English Review, which gives the general state of foreign and domestic politics. The enquiries in the House of Commons, which led to the impeachment of Mr. Hastings, formed very naturally the most material part of that Review for a considerable time; and his Strictures upon the arguments, and the decision on the Benares and the Begum charges, are written with great force and elegance; and contain reflections infinitely more pointed, than any of those which Mr. Fox objected to in his pamphlet.

Having qualified himself by the information that he had acquired, from intense application, to give the world what he conceived to be a fair and impartial account of the administration of Mr. Hastings, he sat down voluntarily, without a wish or prospect of personal advantage, to examine those articles which had been presented to the House of Commons by the Managers, then a Committee of Secresy, and which now form the articles before the Lords. When he had compleated his pamphlet, he submitted it in manuscript to the perusal of a gentleman, who is intimately connected with Mr. Hastings. That gentleman was certainly very ill qualified to advise him, as a lawyer; it never having entered into his imagination, that after the torrent of abuse that had been poured out upon Mr. Hastings, for years, any thing said in reply could be deemed libellous, and therefore he merely examined whether Mr. Logan was correct in his statement of facts, and communicated to him every particular relative to the last thirteen articles. Not satisfied with this communication, Mr. Logan examined the votes and the speeches, as printed and circulated throughout Great Britain. After an accurate investigation, he thought himself justified in inserting in his pamphlet, what a member had said in the House, that the Commons had voted thirteen out of twenty articles, without reading them.

The booksellar to whom Mr. Logan originally presented him pahmphet, offered a sum for it, which he conceived so inadequate to its importance, that he carried it to Mr. Stockdale, to whom he gave it; taking for himself a few copies only, which were sent in his name to men of the first eminence in letters, both in London and Edinburgh.

After it had been some time in circulation, and read with great avidity, it was publicly complained of by Mr. Fox. That gentleman quoted what he conceived to be the libellous passages. The following day he moved an address to his Majesty, to direct his Attorney General to prosecute the authors and publishers, and the motion was carried nemine contradicente; but owing to the sickness of the principal witness, the trial was deferred for nearly two years. This prosecution which has been attended with a very heavy expence to Mr. Stockdale, and has been nearly two years depending, hath excited universal attention.

The acknowledged accuraacy of Mr. Gurney, is too well known to require any particular praise on this occasion; but it never was more remarkable than in the present instance; yet the eloquent and excellent speech of Mr. Erskine, will appear to great disadvantage to those who had the good fortune to hear it, so much, even the best speeches depend upon the power of delivery. It was spoke in as croweded a Court, as ever appeared in the King’s-Bench. The exertions of that gentleman in support of his clients are too well known, to acquire new force from any thing that can be said of him here; but on no occasion, and at no period, did he display those wonderful abilities that he possesses in a higher degree, and Mr. Erskine will be quoted as the steady friend, and supporter of the Constitutional Rights of the people of Great-Britain, as long as the sacred flame of Liberty shall animate the breast of an Englishman.

The result of this Trial proves how dangerous to public liberty it would be, were any body of men, parties and judges in their own cause. No good subject will call into question unnecessarily, any of the privileges claimed by the House of Commons; but if in the instance before us, the House, consulting former prededents, had taken upon itself to state the crime, and to pronounce judgment, a British subject might have been seized and imprisoned some months, probably to the ruin of himself and his family, without the possibility of reparation. It may therefore with the greatest truth be observed, that the exertions of Mr. Erskine, and by the decision of this prosecution, the Freedom of the Press, and the Liberty of the Subject, are fully secured.

January 13th, 1790.

 

 

 

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Filed under 1790's, England, Legal, Liberty, Posted by Caroline Fuchs, Press, Printing, Trials

Item of the Day: Beccaria’s Crimes and Punishments (1788)

Full Title:

An Essay on Crimes and Punishments The Marquis Beccaria of Milan. With a Commentary by M. de Voltaire. A New Edition Corrected.

Written by Cesare Beccaria. Printed in Edinburgh by James Donaldson, 1788.

Chap. VIII.

Of the Division of Crimes.

We have proved, then, that crimes are to be estimated by the injury done to society. This is one of those palpable truths, which, though evident to the meanest capacity, yet, by a combination of circumstances, are only known to a few thinking men in every nation, and in every age. But opinions, worthy of the despotism of Asia, and passions armed with power and authority, have, generally by insensible and sometimes violent impressions on the timid credulity of men, effaced those simple ideas which perhaps constituted the first philosophy of infant society. Happily the philosophy of the present enlightened age seems again to conduct us to the same principles, and with that degree of certainty which is obtained by a rational examination and repeated experience.

A scrupulous adherence to order would require, that we should now examine and distinguish the different species of crimes, and the modes of punishment; but they are so variable in their nature, from the different circumstances of ages and countries, that the detail will be tiresome and endless. It will be sufficient for my purpose to point out the more general principles, and the most common and dangerous errors, in order to undeceive, as well those who, from a mistaken zeal for liberty, would introduce anarchy and confusion, as those who pretend to reduce society in general to the regularity of a convent.

Some crimes are immediately destructive of society, or its representative; others attack the private security of the life, property, or honour of individuals; and a third class consists of such actions as are contrary to the laws which relate to the general good of the community.

The first, which are of the highest degree, as they are most destructive to society, are called crimes of Leze-majesty*. Tyranny and ignorance, which have confounded the clearest terms and ideas, have given this appellation to crimes of a different nature, and consequently have established the same punishment for each; and on this occasion, as on a thousand others, men have been sacrificed victims to a word. Every crime, even of the most private nature, injures society; but every crime does not threaten its immediate destruction. Moral, as well as physical actions, have their sphere of activity differently circumscribed, like all the movements of nature, by time and space; it is therefore a sophistical interpretation, the common philosophy of slaves, that would confound the limits of things established by eternal truth.

To these succeed crimes which are destructive to the security of individuals. This security being the principle end of all society, and to which every citizen hath an undoubted right, it becomes indispensibly necessary, that to these crimes the greatest of punishments should be assigned.

The opinion, that every member of society has a right to do anything that is not contrary to the laws, without fearing any other inconveniencies than those which are the natural consequences of the action itself, is a political dogma, which should be defended by the laws, inculcated by the magistrates, and believed by the people; a sacred dogma, without which there can be no lawful society; a just recompence for our sacrifice of that universal liberty of action, common to all sensible beings, and only limited by our natural powers. By this principle, our minds become free, active, and vigorous; by this alone we are inspired with that virtue which knows no fear, so different from that pliant prudence, worthy of those only who can bear a precarious existence.

Attempts, therefore, against the life and liberty of a citizen, are crimes of the highest nature. Under this head we comprehend not only assassinations and robberies committed by the populace, but by grandees and magistrates; whose example acts with more force, and at a greater distance, destroying the ideas of justice and duty among the subjects, and substituting that of the right of the strongest, equally dangerous to those who exercise it, and to those who suffer. 

* High-treason.  

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Filed under 1780's, Legal, Liberty, Political Commentary, Posted by Matthew Williams

Item of the Day: The New Vade Mecum; or, Young Clerk’s Magazine (1794)

Full Title: The New Vade Mecum; or, Young Clerk’s Magazine; Digested and improved to correspond with the Laws of the State of New-York in particular, and the United States in general: Containing A variety of the most useful Precedents, adapted to almost every Transaction in Life; such as Articles of Agreement, Awards, Bonds, Conditions, Recognitzances, Letters and Warrants of Attorney, Covenants, Releases, Indentures, Charter-Parties, Copartnerships, Bargains, and Sales, Gifts, Grants, Exchanges, Leases, Mortgages, Assingments [sic], Deseassances, Surrenders, Uses, Trusts, Converyances by Lease and Release, Feoffments, Jointures, Marriage Settlements, Wills and Codicils, Levying of Fines, &c. &c. &c.  To which is added A Collection of Forms of Writs, &c. most common in Use in the Supreme Court of the State of New-York. The First Edition. Entered According to Law. Lansingburgh: Printed by Silvester Tiffany, for, and sold by. Tho’s Spencer, at this Book-Store, in Albany. MDCCXCIV [1794].

Of Wills or Testaments.

A WILL, according to its common acceptation, is the declaration of a person’s mind or intent, in relation to what he would have done after his death. The common law calls that a will, whereby lands or tenements are divised; but when it concerns only chattels, viz. moveables, or what is not inheritable, it is called a testament; where lands are given by will, it is termed a devise; and where goods and chattels, commonly termed a personal estate, are bequeathed, it is called a legacy.  . . .

Devises of lands, &c. must be in writing, signed by the devisor or person giving, generally called the Testator, or some other person by his express direction, in the presence of three credible witnesses. If a personal estate of above the value of thirty pounds be bequeathed by word of mouth, which the law calls a nuncupative will, it must likewise be done in the presence of three witnesses.  . . .

 

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Filed under 1790's, Legal, New York, Posted by Caroline Fuchs