Adams’ Minutes of Trowbridge’s and Oliver’s Charges to the Jury: 29 October 1770
Adams’ Minutes of Trowbridge’s and Oliver’s Charges to the Jury1
29 October 1770
Judge Trowbridge.
1. H.H.P.C. 442.2 8 Soldiers. 7 Guns fired. 5 Persons killed. Q[uery] whether it must not be proved which Soldier killed which of the deceased.
J. Trow[bridge].
Foster 256. 257. Province of Judge and Jury.3
2. Ld. Ray. Onebys Case.4 If you believe &c. &c.
I hope and believe there was not such occasion to send the Troops here as was pretended. But the Question is whether the K[ing] has not Authority.
Stat. C 2. 12. C. 2d.5 Command of all Forces by Sea and Land, is and ever was in his Majesty. It is the K’s duty to watch when any Invasion is intended. And this Authority extends to all the Dominions as well as Realms. Not to be kept up, a standing Army without express order of Parliament. Mutiny Act annual.
Next Q. whether the commanding officer of the Troops here appointed a Sentry at the Custom house. Next whether the Centinel was assaulted and insulted. No concerted Plan on Either side, but bickerings, &c. and any little Spark would in kindle a great fire—and 5 lives sacrificed to a Squabble between the Sentry and Piemont’s Barbers Boy.6 A sawcy Speech in the Boy. The Sentry no Right to strike him. The Credit of the Witnesses is entirely with you. Next whether assistance was call’d for by the Centinel. Garrick, Crookshanks, Langford and Lee, say he did. Hill, Jackson, and Davis say the Guard were call’d. If you find that he went to protect the Sentry, it is plain in my Mind, it was a lawful assembly. If they were not assaulted, as soon as they turned their Arms against the Inhabitants, they were an unlawfull assembly. Witnesses say they were assaulted are &c. [Thus in MS.] By whom? were they assaulted? By Boys only or by Men? Next Q. whether the People assembled round the sentry or Party, were a lawfull Assembly. If unlawfull, all present, aiding, abeting or incouraging were principals. Any Act done by one, is chargeable upon all.
Judge Trowbridge. Next whether the firing could be justified, by any Thing that was done by any one of this unlawfull Assembly. An assault lifting up a Hand in Anger, throwing a Bottle a material Difference b[e]t[ween] Justifiable or excusable, and extenuate it to Manslaughter. Next, whether Prisoner was aiding and abetting this Firing, 1st whether he orderd to load, or to fire. Next whether he had a Right to order them to load. Cunningham says orderd ’em to load, the same Man that led the Party down. Wyat says so too. It seems to be agreed on all Hands the Corporal led the Party down. Edw[ar]ds contrary. Knox and Archibald say the Corporal that led em down, And orderd them to prime and load. If it remains only doubtful in your Minds whether he did order the loading or not, you cant charge him with doing it. If he did it, whether he had a Right. If the People were gathering, and insulting and assaulting him and his Party he might put himself in the best Posture of Defence. Next Q. whether he gave the orders to Fire? Settle the Place where the Man was who gave the orders, and the Place where C[aptain] P[reston] was. Was he before or behind his Men. Before say Bliss, Palmes &c. Murray, Prince, Waddel, Whitehouse and many others. Behind, Wyat, Godard, Fosdick and Lee. Wyat was behind. Palmes says he had his Hand upon his shoulder. Was the order to fire before the first Gun or after. Before, Wyat, [. . .]7<Palmes,> Langford &c. After, Cox, Bliss, Cornwall, these say they heard the Captn. say “dont fire.” Next whether C[aptain] P[reston] acknowledged that he did order them to fire—Pierce, Belknap, and Mason.
Cities of Refuge were appointed for those who killed a Man [unaware?] for he hated him not aforetime and a Man might kill a Thief who attempted to break his House in the Night. Whoso sheddeth Mans Blood, by Man shall his Blood be shed, is a general Rule, many Exceptions to it.8
Cooks Case. Cro. An Officer had a Ca. Sa. He lay in wait in the stable. In the Morning he tryd to get into the Windows and Door, and the Man takes his Gun, and shoots the officer, thro the Body.9
Keiling. Mawgridges Case. Where one Man catches another by the Nose and fillips him in the forhead, it is only Manslaughter. Mawgridges Case, adjudged and reported by Holt.10
I shall take it for granted that these snow Balls, Sticks, Oyster shells [and] Blows struck on the Guns and aimed at them. If you are Satisfyed that the sentinel was insulted and assaulted, and that C[aptain] P[reston] and his Party went to assist them, it was doubtless excusable Homicide, if not justifiable. Self Defense a Law of Nature, what every one of us have a Right to, and may stand in need of.11
J. Oliver. There has been a great deal done to prejudice the People against the Prisoner a copper Plate Print, in which this Court has been insulted and call’d a venal Court, if this Prisoner was not condemned.12 I my self was last Term insulted for giving my opinion in a Point of Law.13 15 of the Prisoner’s Witnesses mention the snow Balls, Ice, Clubbs, &c.
Q. Whether the Sentry was obliged to retreat from his Post. My opinion is, that the Party, attacked in that violent manner they were not obliged to retreat at all.
1. Adams Massacre Minutes MHiMS 1. See Descriptive List of Sources and Documents.
2. See note 41 above. The position of this paragraph in the MS suggests that Trowbridge may have made these remarks during an earlier phase of the trial.
3. 256:
“In Cases of Doubt and real Difficulty it is commonly recommended to the Jury to state Facts and Circumstances in a special Verdict. But where the Law is Clear, the Jury, under the Direction of the Court in Point of Law, Matters of Fact being still left to their Determination, May, and if They are well advised always Will find a general Verdict conformable to such Direction.” Id. at 257: “The Malus Animus, which is to be collected from all Circumstances, and of which, as I before said, the Court and Not the Jury is to judge, is what bringeth the Offence within the Denomination of Wilful Malicious Murder, whatever might be the immediate Motive to it.”
4. See note 7 above.
5. Probably 13 Car. 2, c. 6 (1661),
“An act declaring the sole right of the militia to be in the King, and for the present ordering and disposing the same.” “[W]ithin all his Majesty’s realms and dominions, the sole supream government, command and disposition of the militia and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was the undoubted right of his Majesty, and his royal predecessors.”
6. One John “Paymount” was a “wigmaker . . . and Inhabitant of Boston.” See Deposition of Private John Timmons, 29th Regiment, 28 July 1770, 12 128, 129, MHi. The “Boy” was Edward Gerrish, the Crown’s opening witness.
7. Illegible name. MS apparently reads “Bardet,” perhaps for “Burdick.”
9. See note 9 above. A “ca. sa.” or “capias ad satisfaciendum” was a writ of execution, commanding the sheriff to take the defendant and hold him until satisfaction of the damages. See .
11. Here there is an interval of space in JA’s MS. Paine Massacre Notes contain the following minutes of Trowbridge’s charge:
“Judge Trwobridge. If they were lawfully assembled each one is only answerable for him. If unlawful then each is answerable for whole.
“If the apparent End be lawful and no other appears it must be presumed it was lawful.
“Foster 256. The Courts determine the Law. Ld Ray. 1490.
“Your Oath is the same here as in England.
“King’s troops were sent here, whether with or without Occasion is not the Q[uestion]. I hope and believe there was no such Occasion as was pretended.
“Oliver [Cromwell] ruled the King had no Right to [send?] Troops any where. But in the Restoration, an Act was made declarative of Common Law that the King had Right. And it is necessary this should be so.
“Nation so fearful of Standing Army, that they cant be kept up without Yearly Acts of Parliament. The mutiny Acts are made, and provide for pay and Support of Troops in the Colonys.
“You’ll enquire if any Centry appointed there.
“I am sorry to say the lives were lost by the sauciness of Barbers Boy. The Centry had no business to strike him.
“Party not obliged to retreat.”
12. The Paul Revere engraving of “The Bloody Massacre Perpetrated in King Street,” long on propaganda but short on accuracy, carries at its base some doggerel which concludes: “Should venal C——ts the scandal of the Land / Snatch the relentless Villain from her Hand / Keen Execrations on this Plate inscrib’d / Shall reach a Judge that never can be brib’d.” Clarence S. Brigham, Paul Revere’s Engravings Plate 14 (Worcester, 1954).