07 of 56 · Massachusetts Bay
PAINE
A Prosecutor's Guide
28 lessons. 4 chapters. In his own words.
He prosecuted the massacre's soldiers' opponents in politics and the law with the same appetite for a record.
Robert Treat Paine · 1731–1814 · Attorney general · scientist
01
Build the Record
1 of 4
Note the weather. Then note the country.
“Fine day. Wind S.W. Independent States of America declared.”
July 4, from a man who prosecuted soldiers and later a rebellion. No thunder in the entry. The record is not a hymn. It is what a court can use. Write the day as it was. History will add the brass. Your job is the fact.
The brief is a country in miniature.
“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”
John Adams, opposing counsel at the Boston Massacre trials · 1770
He stood the other table. Adams won most of the soldiers. Paine still had to build a record the town could live with. Prosecution is not vengeance. It is a file that will still make sense when the street has gone home.
Accept the town's case. Do not become the town's mood.
“By a Vote of the Town you'l Observe they are to Pay the Expence of Prosecution, of Consequence you will be by them amply Satisfyed.”
William Molineux to Robert Treat Paine · 1770
Boston hired him to prosecute Preston and the soldiers. Paid counsel still owes the evidence, not the mob. A record bought by a town is in danger of becoming a script. Take the fee. Keep the oath.
A life in dockets is a life that can be audited.
“We mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
The Declaration of Independence · 1776
He kept diaries, waste books, letters, a paper trail that still fills volumes. Honor, for a lawyer, is a file you can open later. If it cannot be audited, it was a performance. Build the record as if a hostile clerk is coming. One is.
Write the day as it was. History will add the brass.
“Fine day. Wind S.W. Independent States of America declared.”
July 4, from a man who prosecuted soldiers and later a rebellion. No thunder in the entry. The record is not a hymn. It is what a court can use. Note the weather. Then note the country. Your job is the fact. Brass is other men's hobby.
Prosecution is not vengeance. It is a file that will still make sense when the street has gone home.
“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”
John Adams, opposing counsel at the Boston Massacre trials · 1770
He stood the other table. Adams won most of the soldiers. Paine still had to build a record the town could live with. The brief is a country in miniature. Build it as if a hostile clerk is coming. One is.
Hearts full, hands full. That is the whole brief for a new country.
“It is our comfortable reflection, that if by struggling we can avoid the servile subjection which Britain demanded, we remain a free and happy people; but if, through the frowns of Providence, we sink in the struggle, we do but remain the wretched people we should have been without this declaration. Our hearts are full, our hands are full; may God, in whom we trust, support us.”
Letter to Joseph Palmer · 1776
July 6. He does the arithmetic of a wager: win and you are free; lose and you are what you already were. That is not thunder. That is a docket. Take the case. Fill the hands. The heart will have to keep up.
02
The Experiment
2 of 4
Keep a second ledger for the sky.
“Fine day. Wind S.W.”
He recorded wind on Independence Day because that is what a man who watches nature does. The same habit later sat him among the founders of the American Academy of Arts and Sciences. A republic that cannot measure the world will superstitiously govern it. Keep instruments.
Charter a place for experiment.
“The end of the institution, academy, and fund, is to promote and encourage the knowledge of the antiquities of America, and of the natural history of the country.”
Charter of the American Academy of Arts and Sciences, Paine a founder · 1780
War is not an excuse to stop learning the ground you just claimed. He helped charter a house for that. Independence without inquiry is a flag on an unread map. Endow the experiment.
The law is a kind of natural history.
“The judicial power ought to be distinct from both the legislative and executive, and independent upon both.”
Massachusetts Constitution of 1780, on whose frame Paine sat · 1780
He helped draft a state constitution while collecting facts like a naturalist. Courts are where a people experiments on itself under rules. Separate the powers or the experiment is rigged. Then record the result.
Do not let passion cancel the instrument.
“They cannot alter the state of facts and evidence.”
John Adams at the Boston Massacre trials, the record Paine also had to meet · 1770
Prosecution and astronomy share a religion: the thing is what it is. He lived in that church. A scientist who fudges and a prosecutor who fudges are the same sinner. Calibrate. Then speak.
A republic that cannot measure the world will superstitiously govern it.
“Fine day. Wind S.W.”
He recorded wind on Independence Day because that is what a man who watches nature does. The same habit later sat him among the founders of the American Academy of Arts and Sciences. Keep a second ledger for the sky. Keep instruments. Superstition is what you get when the ledger is empty.
War is not an excuse to stop learning the ground you just claimed.
“The end of the institution, academy, and fund, is to promote and encourage the knowledge of the antiquities of America, and of the natural history of the country.”
Charter of the American Academy of Arts and Sciences, Paine a founder · 1780
He helped charter a house for that. Independence without inquiry is a flag on an unread map. Endow the experiment. Charter a place. Then use it. A founder who will not fund a laboratory has claimed a country he does not intend to know.
He took more pleasure in algebra than in a frolic. Keep that religion.
“I have heard him say that he took more Pleasure in solving a Problem in Algebra than in a Frolick.”
John Adams, diary on Robert Treat Paine · 1759
Adams meant it as a stab. Take it as a method. The law is a kind of natural history. So is algebra. A man who would rather solve than frolic will still be there when the frolic has spent itself. Calibrate. Then speak. Passion does not get to cancel the instrument.
03
The State's Case
3 of 4
Be the first attorney general as if the state were a client.
“It is of more importance to community, that innocence should be protected, than it is, that guilt should be punished.”
John Adams, Boston Massacre trials — the standard Paine's office still had to meet · 1770
Massachusetts made him its first attorney general. The client is not the governor's temper. The client is the people, including the ones you would rather not defend. Hold the office as a trust, not a banner.
Treason trials are how a republic shows its nerves.
“We mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
The Declaration of Independence · 1776
After Shays' Rebellion he prosecuted the treason cases. A state that cannot try its own insurgents is a rumor. A state that only hangs them is a panic. The office sits between. Use it.
Sit the court after you have been the advocate.
“The Judges therefore should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness and attention.”
John Adams, Thoughts on Government — the bench Paine later occupied · 1776
Attorney general, then associate justice of the Supreme Judicial Court. The state's case, then the state's calm. Sequence matters. Men who skip the first job arrive at the second still arguing. Coolness is the promotion.
The Olive Branch and the indictment can come from one career.
“We mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
The Declaration of Independence · 1776
He signed the Olive Branch Petition in 1775 and the Declaration in 1776. Hope, then the case. A prosecutor who never offered the lesser paper is a hammer. Try the peace. When it fails, file.
The client is not the governor's temper. The client is the people.
“It is of more importance to community, that innocence should be protected, than it is, that guilt should be punished.”
John Adams, Boston Massacre trials — the standard Paine's office still had to meet · 1770
Massachusetts made him its first attorney general. Hold the office as a trust, not a banner. Including the ones you would rather not defend. Be the first attorney general as if the state were a client. Clients get the file, not the mood.
A state that cannot try its own insurgents is a rumor. A state that only hangs them is a panic.
“We mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
The Declaration of Independence · 1776
After Shays' Rebellion he prosecuted the treason trials. The office sits between rumor and panic. Use it. Treason trials are how a republic shows its nerves. Show them without becoming a scaffold with a seal.
Manufacture the means of defense before you manufacture another government.
“I wish the Inhabitants of the United States were more intent upon providing and manufacturing the Means of defense, than making Governments without providing for the means of their support.”
He chaired ordnance. Powder, muskets, artillery: the brief that keeps a constitution from being a wish. Governments without support are stationery. Make the powder. Then the state's case has a country to represent.
04
A Sharp Pen
4 of 4
A sour temper is still a tool if the file is clean.
“Mr. Robert Treat Paine was a man of learning, and of a very good heart, but his mind was not so large as his heart. He was a man of a sour, jealous, and irritable temper.”
John Adams, Autobiography · 1802
Adams would know. They had been on opposite sides of a famous table. Sharp is not the same as false. If the record holds, the temper is weather. If the record is the temper, you are a nuisance with Latin.
Object. Then live with being called the objection maker.
“We were pretty free with our Vituperations on both Sides, and the Inhabitants appeared to feel the Justice of them.”
John Adams on an early clash with Paine · 1760
He made a life of the no. Congress needs one. A room of yes is a stamp. Pay the social bill. Do not pay it by becoming merely sour. The objection has to be about the thing, not about your rank in the room.
Keep the diary even on the days you are hard to love.
“Fine day. Wind S.W. Independent States of America declared.”
The same man who could wound a colleague could write a sentence with no blood in it. That split is the job. Temper for the argument. Ice for the record. If both run hot, you will burn the file you needed.
A sharp pen is a public service until it is a hobby.
“I glory in publicly avowing my eternal enmity to tyranny.”
John Hancock, a style Paine did not copy · 1774
He did not orate like Hancock. He needled. Needling built a prosecution and a constitution and a stack of enemies. Stop when the point is made. A man who only writes edges eventually cuts only himself. Retire the blade to the bench.
Sharp is not the same as false. If the record holds, the temper is weather.
“Mr. Robert Treat Paine was a man of learning, and of a very good heart, but his mind was not so large as his heart. He was a man of a sour, jealous, and irritable temper.”
John Adams, Autobiography · 1802
Adams would know. They had been on opposite sides of a famous table. If the record is the temper, you are a nuisance with Latin. A sour temper is still a tool if the file is clean. Keep the file cleaner than the mood.
His aim in company is to be admired, not beloved. Spend that. Then stop.
“His Aim in Company is to be admired, not to be beloved.”
John Adams, diary on Robert Treat Paine · 1759
Adams wrote it with resentment and a little envy. Fine. A prosecutor who needs to be loved will plea the room. Object. Then live with being called the objection maker. Admiration is a tool. Beloved is a hobby. Do not confuse them.
Temper for the argument. Ice for the record.
“Fine day. Wind S.W. Independent States of America declared.”
The same man who could wound a colleague could write a sentence with no blood in it. That split is the job. If both run hot, you will burn the file you needed. Keep the diary even on the days you are hard to love. Ice is a public service.