Editorial Note
Editorial Note
The riot of 5 March 1770, to which Samuel Adams and history have affixed the inaccurate title of “the Boston Massacre,” climaxed a season of partisanship, violence, and general testing of the legal process, many incidents of which found their way into John Adams’ legal practice and papers.1 It is not necessary to attempt to unravel the cloak of legend which covered the occurrence in King Street from its very inception; the materials here presented in one place for the first time will enable the individual to reach his own conclusions. The editors cannot assist the process further than by stating here what they believe to be those few facts constituting the only uncontroverted evidence in the matter:
British troops had been garrisoned in Boston since 1768; thereafter friction between inhabitants and soldiers had increased steadily; this friction generated heat and even occasional sparks of violence; in the evening of 5 March 1770, the lone sentry before the Custom House on King Street became embroiled with a group of people as he stood his post; he called for help; in response, six soldiers, a corporal, and Captain Thomas Preston marched down to the Custom House from the Main Guard; the tumult continued; the soldiers fired, their bullets striking a number of persons, of whom three died instantly, one shortly thereafter, and a fifth in a few days.
[p. 2]Any other “facts” emerge only from the documents, and are accordingly subject to whatever tests (legal or historical) the reader may choose to apply. In the face of the mass of testimony, however, it is difficult to avoid concluding that the soldiers were in fear, if not of their lives, at least of their physical safety, and that in the circumstances this fear justified the bloodshed.
Because of the length and the complex interrelationship of the documentation for the trials growing out of the incident, the editorial treatment varies from that given to other cases in this edition. The material has been arranged in five parts: (1) An editorial introduction; (2) A “Descriptive List of Sources and Documents,” by the editor in chief, describing in some detail for the reader’s guidance the sources, manuscript and printed, and which lists the numerous documents; (3) Rex v. Preston, No. 63, Documents I–XIV, with footnotes running in a single sequence throughout; (4) Rex v. Wemms, No. 64, Documents I–XXII, with footnotes running in a single sequence throughout; (5) An alphabetical list, with explanations in modern terms so far as possible, of the numerous streets, buildings, and other landmarks mentioned in the testimony and arguments.
The “Massacre” became interesting from a legal standpoint only after the dead, dying, and wounded had been removed, the eight soldiers had been handed over to the civil authorities, and Captain Preston had voluntarily surrendered to the sheriff.2 From the moment of the shooting, almost everyone, including Acting Governor Thomas Hutchinson and even General Thomas Gage, when the news reached him in New York, agreed that Preston, not having acted pursuant to orders received from a civilian authority, could justify his presence and his actions only by evidence of an actual attack; and the same applied to the soldiers.3 But, establishing proof of the danger Preston and his men faced meant nothing less than, in effect, prosecuting the entire town of Boston for assault with intent to kill. [p. 3] This would be a difficult burden of proof under ideal circumstances. The Massacre’s timing, only eleven days after the so-called martyrdom of the little Seider boy (Rex v. Richardson, No. 59), rendered the defense impossible; the popular feeling was one not of self-criticism, but of blood-thirstiness and revenge.
It was clear that Preston and the men could not hope for a fair trial until the town’s passions had been greatly reduced. Nonetheless, Sam Adams and his associates strove mightily to bring the hearings on at once. Although ostensibly trying not to disseminate in Boston the assorted depositions taken by the Town immediately after the shootings, lest such publication “may be supposed by the unhappy Persons now in custody for tryal as tending to give an undue Byass to the minds of the Jury who are to try the same,”4 they were perfectly willing to march into court and press the judges physically as well as morally. In Hutchinson’s words: “When the court had determined to put off the trials to the first Week in June, a committee, viz., S. Adams, W. Cooper, Dr. Warren, and divers others, came from Mr. Jones’s where they had dined that day and a vast concourse of people after them, into the superiour court, and harangued the judges, until they altered their determination, and resolved to go on with the business. This they assured me was contrary to their inclination, but they were under duress, and afraid to offend the town, who keep alive a town-meeting by short adjournments to observe how the business of the court goes on. . . . Sewall tells me he never will appear at any other court in that town, after the present, as Attorney General, and the whole court say they do not sit there with freedom.”5
[p. 4]During the rest of March, and into April, the pressure on the court to commence the trial immediately continued. At the same time, Hutchinson was taking “every measure that was likely to succeed to keep off the Trial,” with the enthusiastic support of General Gage, commander-in-chief of all the British troops in North America—an energetic strategist from his New York headquarters. Hutchinson and Sam Adams continued alternately to besiege the court, with Hutchinson enough ahead by mid-April to be able to tell Gage: “I have assurance from the Court that they will continue the Trial of Captain Preston and the Soldiers until the last week in May, and I doubt not they intend it. Great pains is taking to intimidate the Judges and compel them to bring it on sooner.”6 The price of this postponement had been the ordering of the immediate trial of the hapless and helpless Richardson. That affair came on for hearing on 20 April, and after the verdict on 21 April, the court adjourned to 29 May.7
Meanwhile, the Grand Jury had indicted Preston and the eight soldiers in five separate indictments for the several murders of Crispus Attucks, Patrick Carr, Samuel Maverick, Samuel Gray, and James Caldwell, and had for good measure indicted four Customs employees, accused of firing out of a second-floor window of the Custom House.8 The Custom House seems to have been an object of the post-riot fury, if not of the mob itself. An anonymous narrative in the Bernard Papers sets out this account:
“A Committee of fifteen was appointed by the Town, two days after the affair in King Street, to attend Two Justices of the peace, and take depositions relative to that affair. The whole drift of this committee was to draw in the Custom house as being concerned with the Soldiers, and at last they found a proper subject for this purpose.
“A little French boy Servant to Manwarring, the tide Surveyor, declared that he at the Desire of his Master, and several other Gentlemen, who [p. 5] were that Night in the board room, fired three guns from one of the windows, and that a Number more, were fired by other people. Manwarring was Immediately summoned before them, but on his proving by the Evidence of Mr. Munro that both he and the Boy were at Home that Evening, he was acquitted, and the boy retracting every word he had said was committed to Jail.
“Next day on the boys declaring that both Manwarring and Munro were that Night at the Custom House, both were summon’d before the Justices and Munro’s Affidavit set aside, he being now a party. But a third person who happened to be that Evening in Company with them, appear’d and Confirmed, what Munro had the day before advanced, and they were dismissed and the boy remanded back to prison.
“The Grand Jury had the people who were in the Custom House Vizt. Green’s son and Daughter, and Thomas and Molly two Servants before them, once and sometimes twice a day for several days, but they continued uniform in one Story Vizt. that there was no other person in the House that Night but themselves that at the time the Soldiers fired, they were in the Room, where the supposed firing was, and were certain there was no such thing. Every Method was made use of by threatening, to make them fix it on some person but to no effect. Notwithstanding Monro and Manwarring proving a perfect Alibi they were this day (27th March) committed to jail, as was also Green’s son and Thomas the manservant. The Grand Jury having found bills against them, as seven people positively swore to guns being fired that Night out of the Custom House Windows.”9
Hutchinson reported the same thing to Gage on 1 April, noting that Munro was only “said to be an acquaintance of Manwaring.” “All four have lain near a week in Gaol. Upon a petition to be admitted to Bail the Court are to determine upon it tomorrow and I suppose cannot refuse it.”10 And, as Peter Oliver reported, “upon their demanding Bail, the Judges of the supreme Court, upon Examination, found so little Cause of Commitment that they granted Bail.”11 All the indictments were handed down between 13 March (the day court opened) and 27 March (the day the civilians were committed); but there is no evidence of the actual date or dates. Sometime before, the exact day being as obscure as the circumstances, [p. 6] Preston, certainly, and the soldiers probably, had engaged John Adams and Josiah Quincy, with Preston also retaining Robert Auchmuty.
We lack, unfortunately, any Adams diary entries between 26 February and 19 June 1770; our sole insight into the circumstances of his retainer comes from the account in the Autobiography written more than three decades later: “The next Morning [i.e. 6 March] I think it was, sitting in my Office, near the Steps of the Town house Stairs, Mr. Forrest came in, who was then called the Irish Infant.12 I had some Acquaintance with him. With tears streaming from his Eyes, he said I am come with a very solemn Message from a very unfortunate Man, Captain Preston in Prison. He wishes for Council, and can get none. I have waited on Mr. [Josiah] Quincy, who says he will engage if you will give him your Assistance: without it possitively he will not. Even Mr. Auchmuty declines unless you will engage. . . . I had no hesitation in answering that Council ought to be the very last thing that an accused Person should want in a free Country. That the Bar ought in my opinion to be independent and impartial at all Times And in every Circumstance. And that Persons whose Lives were at Stake ought to have the Council they preferred: But he must be sensible this would be as important a Cause as ever was tryed in any Court or Country of the World: and that every Lawyer must hold himself responsible not only to his Country, but to the highest and most infallible of all Trybunals for the Part he should Act. He must therefore expect from me no Art or Address, No Sophistry or Prevarication in such a Cause; nor any thing more than Fact, Evidence and Law would justify. Captain Preston he said requested and desired no more: and that he had such an Opinion, from all he had heard from all Parties of me, that he could chearfully trust his Life with me, upon those Principles. And said Forrest, as God almighty is my Judge I believe him an innocent Man. I replied, That must be ascertained by his Tryal, and if he thinks he cannot have a fair Tryal of that Issue without my Assistance, without hesitation he shall have it.”13
Of Josiah Quincy’s engagement, we have a more contemporary if not more accurate account. On 22 March, Quincy’s father wrote him from Braintree:
“My Dear Son, I am under great affliction at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals who are charged with the murder of their fellow-citizens. Good God! Is it possible? I will not believe it.
“Just before I returned home from Boston, I knew, indeed, that on the day those criminals were committed to prison, a sergeant had inquired for you at your brother’s house; but I had no apprehension that it was possible an application would be made to you to undertake their defence. Since then I have been told that you have actually engaged for Captain Preston; and [p. 7] I have heard the severest reflections made upon the occasion, by men who had just before manifested the highest esteem for you, as one destined to be a savior of your country.
“I must own to you, it has filled the bosom of your aged and infirm parent with anxiety and distress, lest it should not only prove true, but destructive of your reputation and interest; and I repeat, I will not believe it, unless it be confirmed by your own mouth, or under your own hand.
“Your anxious and distressed parent, Josiah Quincy.”
To this, on 26 March, Quincy replied in part:
“I have little leisure, and less inclination, either to know or to take notice of those ignorant slanderers who have dared to utter their ’bitter reproaches’ in your hearing against me, for having become an advocate for criminals charged with murder. . . . Before pouring their reproaches into the ear of the aged and infirm, if they had been friends, they would have surely spared a little reflection on the nature of an attorney’s oath and duty; some trifling scrutiny into the business and discharge of his office, and some small portion of patience in viewing my past and future conduct.
“Let such be told, Sir that these criminals, charged with murder, are not yet legally proved guilty, and therefore, however criminal, are entitled, by the laws of God and man, to all legal counsel and aid; that my duty as a man obliged me to undertake; that my duty as a lawyer strengthened the obligation; that from abundant caution, I at first declined being engaged; that after the best advice and most mature deliberation had determined my judgment, I waited on Captain Preston, and told him that I would afford him my assistance; but prior to this, in presence of two of his friends, I made the most explicit declaration to him of my real opinion on the contests (as I expressed it to him) of the times, and that my heart and hand were indissolubly attached to the cause of my country and finally that I refused all engagement, until advised and urged to undertake it, by an Adams, a Hancock, a Molineux, a Cushing, a Henshaw, a Pemberton, a Warren, a Cooper, and a Phillips. This and much more might be told with greath truth; and I dare affirm that you and this whole people will one day REJOICE that I became an advocate for the aforesaid ’criminals’ charged with the murder of our fellow-citizens.”14
But the military men were not the only parties to have difficulty obtaining counsel. Attorney General Jonathan Sewall, after drawing up the indictments, seems to have left Boston quasi-permanently. At first this assisted the effort to postpone the trial, because, with the Crown’s chief law officer absent, the court could restrict itself to civil matters.15 But with [p. 8] the pressure for action which culminated in Richardson’s arraignment, it became necessary to appoint a substitute for Sewall, and the court apparently chose Josiah Quincy’s elder brother, Samuel. Meanwhile, on 13 March, the Town, probably afraid that the tory leanings of the prosecutors might soften the prosecution, resolved that “the Selectmen be desired to employ one or more Council to offer to the Kings Attorney as Assistance to him in the tryal of the Murtherers now committed; and in case the Kings Attorney should refuse such Assistance, and the Relatives of those Persons who were murthered should apply for it, that then the Town will bear the Expence that may accrue thereby.” Accordingly, Robert Treat Paine entered the case as a kind of special prosecutor.16
[p. 9]As the hunt for counsel proceeded, equally vigorous efforts were being made to obtain evidence. Preston seems to have been generally well liked and well thought of, even by the radicals. A forty-year-old Irishman with fifteen years of commissioned service behind him,17 he was considered by Lieutenant Colonel Maurice Carr, his commanding officer, “as Cool and destinct an Officer as any of His rank in the Service,” and by various others as bearing an “aimiable” or “good” character, and as being a “benevolent, humane man,” “a sober, honest man.”18 With an eye, perhaps, to ingratiating himself further with his friends and possibly even winning over a few enemies, Preston had caused the publication of the following “card”:
“Boston-Goal, Monday, 12th March, 1770. Messieurs Edes & Gill, Permit me thro’ the Channel of your paper, to return my Thanks in the most publick Manner to the Inhabitants in general of this Town, who throwing aside all Party and Prejudice, have with the utmost Humanity and Freedom stept forth Advocates for Truth in Defence of my injured Innocence, in the late unhappy Affair that happened on Monday Night last: And to assure them, that I shall ever have the highest Sense of the Justice they have done me, which will ever be gratefully remembered, by
“Their most obliged and most obedient humble Servant, Thomas Preston.”19
Reading this in New York, Gage, with a prescience not always evident in his dealings with Americans, foresaw only ill. “I can’t be a proper Judge at this Distance,” he wrote to Dalrymple, lieutenant colonel of the Fourteenth Regiment, the senior officer present, “but I wish he may not have been too premature in that Measure; And if illegal Proceedings are hereafter [p. 10] made use of against him, they will Justify themselves by his own Words.”20 Meanwhile, steps needed to be taken to assure that witnesses would be available to establish a full defense. “You will,” Gage wrote Dalrymple, “of Course detain all Officers or Men who may be wanted as Evidences at the ensuing Tryals of Captain Preston and the Soldiers.”21 From a fairly early stage, it seems clear that Gage, at least, regarded the trials as an opportunity to broadcast to the world the riotousness of the Bostonians; the idea of a transcript of the testimony may even have originated with him. “I would here mention,” he wrote to Dalrymple, “that it is absolutely Necessary every thing relating to the unhappy affair of the 5th of March, should appear as full as it is possible upon Captain Preston’s Tryal. Not only what happened on the said Night, should be circumstantialy made to appear, but also every Insult and Attack made upon the Troops, previous thereto, with the Pains taken by the Military to prevent Quarrells between the Soldiers and inhabitants. The Treatment the Troops have met with at different times from the Magistrates, and the Encouragement the Magistrates have given the Mob to commit Riots and insult the Troops, should likewise be proved and introduced if it is possible. If such things cannot be introduced at the Tryal, Affidavits should however be procured of these several Circumstances, and printed with the Tryal, which ought to be taken down for the purpose. All these together, if its found Adviseable after the Tryal, might be Published in one Pamphlet. Every Military Man will certainly contribute towards the Expence of such Proceeding, for it concerns every Body. But what I say, about introducing every Circumstance that the Court will permit at the Tryal, is absolutely necessary, for the Sake of Captain Preston and the Soldiers. And for Reasons, which I am not now permitted to give you. . . . Pray think seriously of all I have said, and put all hands to work.”22
Actually, the evidence-gathering had commenced a week after the riot, and the early fruits thereof had been carried to England, probably by John Robinson, the Customs commissioner who had scrimmaged with James Otis in a tavern near the Massacre site the September before.23 “I have sent to England States of the affairs here, as well as of Captain Preston’s case,” Dalrymple wrote Gage. “You will pardon my doing so by any other channel than yours, when you consider that the first impression is always the strongest in such cases, an opportunity offered and I presumed to use it.”24
[p. 11]The Town, too, had been active in collecting prospective evidence. At the meeting of 12 March, James Bowdoin, Joseph Warren, and Samuel Pemberton were voted a committee to obtain “a particular Account of all proceedings relative to the Massacre in King Street on Monday Night last, that a full and Just representation may be made thereof.”25 The result was the famous Short Narrative of the Horrid Massacre in Boston, which, with its weighty appendix of 95 depositions, told the Town’s side of the story.26 (But only about one-third of the deponents testified at any of the ensuing trials.)
With counsel retained and evidence prepared, only the trials themselves remained. During the month following Richardson’s trial (21 April), the struggle continued between the radicals seeking to hurry on the hearings and the loyalists hoping to postpone them. “Party zeal has entirely got the better of reason, and I believe it may be added justice, procrastination is our only course, as things are now situated,” wrote Dalrymple in May; and Hutchinson earlier had suggested that the judges’ salaries were being delayed to prevent the continuance.27 According to Peter Oliver’s later account, “The Judges . . . refused to bring the Trial on; the Bar also advised to an Adjournment, as they theirselves, as well as the Court, had been fatigued with the business of the Term in this County, and the Country Terms were approaching in quick Succession.28 The Faction, upon hearing the Design of the Court, were very restive. The Leaders of the Faction met at the House of Mr. [John] Temple, a Commissioner of the Customs with £500 per year Salary; and from thence a Party came into the Court, and insolently insisted on an immediate Trial of Captain Preston and his Soldiers. Two of the Heads of this Faction . . . appeared in the Front, John Hancock and Samuel Adams.”29
“People complain of the delay of justice,” Andrew Eliot wrote a little later. “Perhaps it was best to delay the trial at the first. The minds of men [p. 12] were too much inflamed to have given him a common chance. But they are as calm now as they are like to be at all, and if judges have power to delay trials as long as they please, it certainly is in their power to say whether there shall be any trial at all.”30
Finally Hutchinson won. “I have given constant attention to the case of Captain Preston and the Soldiers and by taking the advantage of a number of accidental occurrences have procured without any Tumult a continuance of the Trial to the next Term, which begins the last Tuesday in August, before which time I hope for some express orders from the Ministry. I never could be reconciled to the Trial’s being brought on this Term, but the Temper of the people was such that it was necessary to keep them in expectation of it until they were somewhat cooled and could be diverted by some other Subject for their attention. The Court took the opportunity of the time for the Election of Councellors, when the minds of the people had been much engaged in a jovial celebration of the Festival at Boston in opposition to me for carrying the General Court to Cambridge, and adjourned without day.”31
During the summer two rumors circulated briskly through Boston, one alarming the prerogative side, the other the radicals. The first of these, fanned by newspaper publication of Preston’s “Case,” was simply that the mob planned to tear Preston (and probably the soldiers as well) from the jail and lynch them. Although, as Hutchinson pointed out, “where Captain Prestons fears have come to the knowledge of the Liberty People they have generally remarked that what ever danger there may be after Trial it would be the heighth of madness to think of any such thing before,” the fear persisted. Hutchinson wrote to Sheriff Stephen Greenleaf recommending that he take the keys from the jail keeper at night, “that the Keeper himself if they should be demanded may not have it in his power to deliver them.”32 The crusty tory Scot, James Murray, a justice of the peace, [p. 13] offered to stand by at the old barracks with two hundred troops whenever Dalrymple wanted him, in order to be available should the mob rise.33 What Murray expected to be able to accomplish with this detachment, and how he expected to bring the troops (who had been removed to Castle Island shortly after the riot) into Boston without provoking another “Massacre,” is not clear. At any rate, Dalrymple politely declined, pointing out that (as the events of 5 March had emphasized) the troops could come only if “called on by the Civil power.” He did, however, tell the Sheriff that all the forces at the Castle were available “in case of need.”34
The second of the rumors in a way fed the first. This was the report that, even if found guilty, Preston and the soldiers would be pardoned.35 The mob leaders reacted by recalling the fate of Captain John Porteous, who commanded the guard at the execution of the smuggler Andrew Wilson at Edinburgh in 1736. Because the guard fired into the crowd, killing eight or nine people, Porteous had been tried, convicted, and sentenced to death. He was reprieved, but a mob took him from prison and lynched him.36
The second rumor was substantially true. Hutchinson’s instructions were not to effect a pardon, but only to respite, or reprieve, the men if convicted, until a regular pardon could be obtained.37 The radicals apparently received word from English friends in July of the true state of the matter, along with advice “that this would be a very likely measure to do the Town service and to remove the Imputation of thirsting after the Blood of the Troops.”38 Preston understandably took the darker view, reasoning that [p. 14] the only effect of the news would be to “quiet the Conscience of the Jury, who therefore may the sooner find me guilty as they are told nothing bad will happen.” And indeed, this same sort of jury psychology had convicted Richardson. Gage responded to Preston’s fears by telling Dalrymple to confirm to him “that he is respited by the King in Case of Condemnation, and the Soldiers should be told the same, that they may not thro’ Fear, and Hopes of Protection be cajoled by the People to perjure themselves, or make Declarations contrary to Truth and Fact.”39
Hutchinson was also having trouble with the judges. On 28 August 1770 he wrote Bernard: “I have persuaded Judge Lynde who came twice to me with his resignation in his pocket to hold his place a little longer. Timid as he is I think Goffe is more so, the only difference is, little matters as well as great frighten Lynde, Goffe appears valiant until the danger or apprehensions of it, rise to considerable height, after that he is more terrified than the other. Judge Oliver appears to be very firm, tho threatened in yesterdays paper, and I hope Cushing will be so likewise. The prospect certainly is much better than with any new Judges I could have appointed who would be accepted.”40
By September, Dalrymple was able to report that Preston’s standing had improved so considerably, that the captain was petitioning the court to bring him to trial because “the alteration in mens minds towards him is extreamly visible, a degree of coolness has succeeded to the late warmth, and there are many reasons to hope an impartiality on trial of which lately there was not a ray of expectation.”41 The change can best be appreciated by realizing that, although in March an anonymous correspondent to the Boston Gazette had written of Preston, “no Person can be satisfied of his injured innocence, until he be acquitted of the high Charge laid against him in a due Course of Law,”42 by 3 September Preston felt so sure of his chances that he pressed the court for a prompt hearing.43
Hutchinson seems to have played a part in Preston’s eagerness for a trial. “I wished to have Captain Preston’s Trial come on,” the Lieutenant Governor wrote Gage in a letter marked “Secret,” “and I proposed, if the Jury should give in their Verdict Guilty, that his Counsel should move in Arrest of Judgment and that the Court should continue the Motion until the next Term. In the mean time, I would have transmitted a state of the Evidence to My Lord Hillsborough and there would have been time to obtain a pardon which might be sent to you by the first packet in the most secret [p. 15] manner and he be enabled to plead it upon his appearance in Court and be immediately discharged. This would have been the most likely way to keep the people quiet, whereas if there should be a Sentence against him and a respit, or if a new Trial should be ordered, in either case there might be danger of violence.”44
Hutchinson’s careful plan (in which, incidentally, Preston’s counsel would by the nature of things seem to have shared) miscarried on 8 September 1770 when “the Court suddenly put over part of their business to the latter part of October,” and proceeded on circuit. This meant that the difficulties of transatlantic travel in winter might delay the arrival of the pardon beyond the opening of the March 1771 term, when Preston would come up for sentencing.45 The day before the adjournment, however, “Captain Preston and 8 soldiers and 4 others [were] arraigned,” that is, brought into court and asked to respond to the indictments. Each pleaded “Not Guilty,” and “for trial put himself upon God and the Country.”46
Although Auchmuty, Adams, and Quincy had early been retained on behalf of Preston, the military men were troubled by the attorneys’ lack of fire. Even the loyalist Auchmuty was something less than enthusiastic about his client’s case. “I am afraid poor Preston has but little chance,” Hutchinson wrote in March. “Mr. Auch[muty] who is his counsel tells me the evidence is very strong to prove that the firing upon the Inhabitants was by his order and he doubts whether the Assault could be an excuse for it.”47 “It is to be hoped,” Gage had written Dalrymple, “that Captain Preston and the Soldiers will have the best Advice to be procured. If there is any doubt either of the abilities or good Intentions of their Council; [p. 16] Lawyers should be procured from some of the other Provinces.” Dalrymple had replied: “The best lawyers to be obtained here are engaged for Captain Preston, and I hope they will do their duty, but when I consider the spirit prevalent here, as well as the unfavourable ideas universally held to the prejudice of the kings servants, I cannot hope that their exertions will be proportionate to the goodness of the cause. Lawyers from other provinces would probably do better for their Client, not being residents here they might exert their abilities without apprehension of future enjuries; but where are any to be had; Mr. Auchmuty the Judge of the admirality is engaged to appear, but I am much mistaken if he will not disappoint Captain Preston, when the Crown Lawyers fall off, the opinion of the others may be easily collected.”48
Gage, like many another out-of-town client, could not resist pointing out the simplicity of the case. “I imagine the Prisoners chief Defence lyes in proving that the People were in search of them, which indicates premeditated Mischief, that they were grossly insulted and attacked without Provocation, and to support the Degree of Violence in the Attack to have been such, as to endanger their Lives. Whether the Captain gave Orders to fire or not, seems a Circumstance something Stronger in his particular favour, and nothing more. These are the opinions of many, and I should imagine not difficult for the Lawyers, to make these particulars appear plain to the Court, as well as to cross Question the opposite Evidence, in a proper Manner.”49
A problem even more basic to the defense than the zeal of counsel was a conflict of interest which became more acute as the time for trial approached. The difficulty was this: If Preston should fail in his primary defense, that is, that the killings were justifiable, then he would probably have to argue that the men fired against or without his orders. The men, on the other hand, would argue that it was indeed Preston who gave the order to fire, and that they had merely obeyed his command.
[p. 17]Were the officer to be tried in the same proceedings with the men, the resultant mutual finger-pointing might well convince the jury to find all the defendants guilty. Perhaps in part to avoid this difficulty, the decision was taken at some time to sever the trials. That eased the immediate danger of a mass conviction, but it did not change the professional problem faced by Josiah Quincy and Adams (who was to argue in both trials). Engaged as they were for all the defendants, Quincy and Adams ran a substantial risk that their efforts in Preston’s trial might seriously embarrass the defense of the men. No direct evidence that either lawyer considered the problem has been found, but it is inconceivable that they were not aware of it. On 24 October 1770, the day Preston’s trial opened, three of the soldiers petitioned “the Honourable Judges of the Superior Court,” raising the point squarely.50
There is a suggestion that the decision to sever was not taken until the cases were actually called. “After repeated delays,” William Palfrey wrote John Wilkes, “the Trial”—note the singular—“of Captain Preston and the Soldiers concern’d in the Massacre of the 5th of March was fix’d for the 23d inst. but the day has now elapsed and the Judges have not appear’d, what reason they may have for thus deferring the trial from time to time I know not.”51
At long last, at 8 a.m. on Wednesday, 24 October 1770, Preston’s trial began. The first item was impaneling the jury. As Rex v. Preston, Documents II and III, indicate, there was a brief, preliminary skirmish on various technicalities, the most important being whether the prisoner should have received a list of the jury panel before the trial, and the number of challenges to which he was entitled. Palfrey’s account to John Wilkes of the actual impaneling, while, like most of the contemporary accounts, perhaps not wholly objective, serves as a convenient introduction to this part of the proceedings.52 “By a Law of this Province, the Jurors are return’d by the Selectmen, after the choice has been made by the Town.53
[p. 18]The Method of Chusing them is the most fair and impartial that the wit of man could possibly devise.54 The freeholders names are roll’d in a Box in the same manner that Lotteries are usually drawn, and the first who are drawn out are return’d.55 In this manner the Jurors on Captain Preston’s trial were chosen and return’d. But when any are challeng’d the Sheriff has a right to return Talesmen. Captain Preston on his trial challeng’d twenty-two of the Pannel,56 a number of his friends and most intimate acquaintances stood ready and were accordingly return’d by the Sheriff,57 among whom was a person that had been first drawn out by Lot by the Town and was excus’d because he alledged he was so much prejudic’d in Captain Preston’s favour, that he could not return an impartial verdict, yet this very person intimately connected with Captain Preston was return’d as a Talesman by the Sheriff.” Two of the talesmen, Palfrey continued, “were persons who from the time of Captain Preston’s confinement had interested themselves in his behalf, and had been extremely busy in procuring evidence in his favour. One of these Mr. Phillip Dumaresq had repeatedly declared in presence of divers witnesses that he believed Captain Preston to be as innocent as the Child unborn, and that if he happened to be upon the Jury he would never convict him if he sat to all eternity. . . . The management to pack the Jury was evident to every impartial spectator. . . . Mr. Dumaresq, who I mentoned before, was drawn . . . by the Town, and when he was notified of it by the Constable he went immediately to the Town meeting and desired to be excused as he was an [p. 19] intimate acquaintance of Captain Preston’s and therefore consider’d himself as an improper person to serve upon the Jury, he was accordingly excused.”58
Palfrey’s characterization of the jury as packed is not exaggerated. Of the twelve jurors, five, including Dumaresq, Gilbert Deblois, William Hill, Joseph Barrick, and William Wait Wallis, were later loyalist exiles.59 The available evidence indicates that these men were supporters of the King well before the trial. Hill, for example, was a baker who supplied the Fourteenth Regiment its bread; he stood surety for the soldiers accused during the Riley Riot of 1769.60 Barrick boasted of his open avowal of support.61 Deblois’ case is even more interesting, as Preston pointed out in the 1780’s in his testimony to the Board of Commissioners appointed to examine the losses sustained by the American loyalists:
“The testimony of Thomas Preston, late a Captain in His Majesty’s 29th Regiment of Foot. Sheweth that he knew Gilbert Deblois Merchant in Boston, that he kept a large Store house filld with all sorts of European goods, and carried on as extensive a trade as most Merchants there, and that he was particularly connected with the Officers, to whom he was remarkably friendly and obliging.
“That when said Preston was thrown into Jail there, for what was call’d the bloody massacre, said Deblois got him several valuable evidences, and gave him the character of many of the persons returnd for Jurors, by which means he was enabled to set aside most of those return’d by the Town, who were men of violent principles, and pick out some of the moderate ones sent up from the Country. That on a deficiency of Jurors said Deblois attended, and got himself put on the Pannel, where during the tryal which lasted a week, he was confin’d in the Jail along with the other Jurors, to the great neglect of his business. That by his strict attention and close examination he detected some of the Evidences of perjury; And also that by his personal influence on the rest of the Jurors he was a great means of said Prestons being acquitted.”62
[p. 20]With the jury impaneled and the witnesses summonsed,63 the evidence could begin. No transcript of Preston’s trial has survived, Palfrey reporting that “Mr. Justice Murray . . . attended constantly at the trial and employ’d a Scotch underling of Mein the Bookseller’s to take down in Short hand all the Witnesses said in favor of Capt. Preston, and the arguments of the Council in his behalf, without noticing anything that was offer’d on the other side the question.”64
Adams’ recollection was that Preston’s trial “was taken down, and transmitted to England by a Scottish or English Stenographer, without any known authority but his own. The British government have never permitted it to see the light, and probably never will.”65 Preston does not clear the confusion. “You desire to have the judges charges publishd in the news papers,” he wrote Gage afterward. “I am sorry to inform you that mine was not taken down, the court was so crouded, and but one man to be got that writes short hand, that he had neither room, nor strength to execute it, being waried with taking the evidences, however he has taken that of the mens which is more material, and I have left directions to get both printed, in which the Lieutenant Governor, the Judges and Lawyers will assist, and Mr. Auchmuty has mine now in hand to correct.”66 Some [p. 21] one apparently did minute the judges’ charges, because a large part of them appeared in the Annual Register for 1770 and they are printed in Rex v. Preston, as Document XIV. The rest of Preston’s trial has been presented here from three main sources: Adams’ and Paine’s minutes, and a summary of the testimony, now in the Public Record Office, London,67 which may further explain Palfrey’s, Adams’, and Preston’s references to a shorthand report.
Except for the preliminary question concerning the jury panel, which appears to have been resolved without much problem, the trial raised no legal issues which had not been thoroughly covered in the Corbet and Richardson cases (Nos. 56 and 59), both of which also concerned problems of homicide in self-defense. The atmosphere of the courtroom seems likewise to have been orderly. “The Court was fill’d with Officers of the Army, Navy, and Customs,” Palfrey wrote, “and Captain Preston appear’d perfectly unconcern’d as if conscious that the event would not prove prejudicial to him. . . . During the whole trial the greatest order and decorum was observed by the Spectators, and as soon as it was over they all departed very quietly.”68 Dalrymple agreed: “I must do the people the justice to say that the trial has been conducted as yet with the greatest decency and decorum.”69
The trial was a long one, “the only instance I ever knew of a Capital Trial in a Court of Common Law in this Province where the Court has adjourned before the Trial was finished,” Hutchinson said. “I should have opposed and probably prevented it if I could have sat with any propriety but the other Judges think they may justify it ex necessitate rei.”70 This justification was recorded in a stipulation minuted by the Clerk: “The Court being unable to go through the Trial in One Day, the Kings Attorney and the prisoner consent that the Court shall adjourn over night during the Trial; the Jury being kept together by two keepers; one chosen by the Kings Attorney and the other by the prisoner or his Councill; besides the officer appointed by the Court.”71
[p. 22]In the absence of a transcript, it is hard to say exactly how the lawyers divided the work. Existing documents suggest that Samuel Quincy opened for the Crown and handled the evidence, while Adams did the same for Preston; Auchmuty and Paine closed for the prisoner and Crown respectively. This division is supported by the usual practice, in which the junior counsel for the Crown opened the case and examined the witnesses, with the senior man closing the argument. Josiah Quincy, although apparently active in the pre-trial preparations, did not participate in the trial itself.72 The entries in Judge Lynde’s diary indicate that of the five trial days which the case required, the lawyers’ arguments and the judges’ seriatim charges took up over two.73
“The Counsel for the Crown or rather the town were but poor and managd poorly,” Preston said later. “My Counsel on the contrary were men of parts, and exerted themselves with great spirit and cleverness, particularly Judge Auchmuty.”74 Judge Oliver agreed. “I know you think.” he wrote to Hutchinson on Saturday evening, 27 October, “you would have finished the Cause in half the Time and I know it would not have taken half a Day at the Old Bailey; but we must conform to the Times. We have not finished yet. Mr. Paine has now to close for the Crown, and he was so unfit, that to avoid as much as possible all popular Censure we indulged him till Monday morn; for Mr. Auchmuty did not finish till 1/2 past 4 o’clock. . . . Hard upon the Jury, you say, it is so, but we have allowed them the Liberty of the Court House tomorrow with their Keepers.”75
Finally, at 5 p.m. on Monday, 29 October, the case went to the jury. Court was immediately adjourned until the next day at 8 a.m. The jury, a later report had it, agreed within three hours after retiring, and the next morning brought in its verdict, not guilty.76
[p. 23]The verdict was hardly unexpected. Even before the case went to the jury, Peter Oliver thought the evidence indicated acquittal. “I have,” he wrote Hutchinson, “a Quarto Volume of Evidence which I have pretty minutely taken . . . . and it turns out to the Dishonour of the Inhabitants, and appears quite plain to me that he must be acquitted; that the Person who gave the Orders to fire was not the Captain, and indeed if it had been he, it at present appears justifiable.”77
Even Palfrey, who considered the trial “in effect nothing but a mere farce,” because of the pro-Preston jurors, conceded that it had to be “confessed that the confusion of that unhappy night was so great that the Witnesses both for the Crown and the prisoner differed materially in some parts of their testimony, and even in my own mind there still remains a doubt whether Capt. Preston gave the orders to fire, as the two Witnesses who swore to that point, declared also that Capt. Preston had on a Surtout Coat, which he proved was not the case.”78
Though he was a free man, Preston’s troubles had not ended. “They have endeavourd to lodge an Appeal against me, in behalf of one of the relations of the deceasd, but it won’t lie, as there are not any near enough of kin now surviving.”79 The word “appeal” here connotes not a review of the trial, but an ancient procedure whereby the near kin of a murder victim could prosecute a quasi-personal action against the purported offender. This mode of vengeance had almost died out by 1770; the last case of appeal of felony arose in England in 1819, quickly to be followed by an act of Parliament abolishing it.80 It is worth realizing (as apparently whoever suggested prosecuting an appeal against Preston did not) that the accused in an appeal of felony could insist on trial by battle. This feature precipitated the demise of the procedure in 1819. Curiously, for some unexplained reason, at the time of the Intolerable Acts, passed in 1774 as a consequence of the Boston Tea Party, the English government decided “to improve the administration of justice in Massachusetts by means of a bill which inter alia abolished battle on appeals of murder. This proposal roused opposition in England from those who affected to regard trial by battle as a great pillar of the constitution, and in the end it was withdrawn on the more liberal grounds that parliament ought not to restrain the liberties of the colonies.”81 Preston also found himself threatened with “endless lawsuits” for damages alleged to have resulted from the various [p. 24] woundings. To escape these, he was obliged to go to Castle William, where he helped to direct the soldiers’ defense.82
The soldiers’ trial was originally scheduled for 20 November 1770, the date to which the Suffolk Court had been adjourned following the conclusion of Preston’s trial.83 But, despite Gage’s hope that the Preston jury would try the soldiers, “from a defect of Jurors the Trial of the Soldiers has been postponed and is fixed for” 27 November.84
The radicals apparently felt that lack of trial preparation had hurt the prosecution in the Preston trial, for Town Clerk William Cooper wrote Paine early in November that he was “directed by the Select men to acquaint you that they depend upon your coming to Town as soon as possible that you may in conjunction with Mr. [Samuel] Quincy prepare for the tryal of the Soldiers, and that they make no doubt of your exerting yourself to the utmost that a fair and impartial inquisition may be made for blood. A person is appointed to attend Mr. Quincy and yourself in the collecting of Evidences.”85
The defense, too, was taking extra precautions. “My great concern,” Hutchinson told Gage, “is to obtain an unbiased Jury and for that purpose, principally, I advised Captain Preston to engage one of the Bar, over and above the Council to conduct the Cause in Court, in the character of an Attorney who should make a very diligent inquiry into the characters and principles of all who are returned which he has done and it may be to good purpose, but after all it will be extremely difficult to keep a Jury to the Rules of Law.”86 That attorney was almost certainly Sampson Salter Blowers, who was associated in the defense, but who did not, so far as the shows, appear in court.
The jury problem was serious. A strong feeling prevailed that blood required blood, regardless of guilt. One of the prospective jurors at the soldiers’ trial was reported to have said “he believed Captain Preston was innocent, but innocent blood had been shed and somebody ought to be hanged for it.”87 There was also, apparently, a feeling “that the Verdict of the Jury in Favor of Captain Preston, arose from a Doubt whether he [p. 25] gave Orders to Fire: And that the soldiers who are to be tryed this Week expect to obtain a Verdict in their Favour, by bringing full Evidence that in firing they obey’d the Orders of the Captain.”88 Jurors with these considerations in mind could be dangerous. It may be significant that the jury as ultimately chosen contained not a single Bostonian.89
The events of the trial may be followed in Rex v. Wemms, although the underlying transcript may, as will be discussed later, contain numerous inaccuracies, stenographic and editorial.90 To a lay audience familiar with television attorneys, and even to professionals acquainted with the actualities of modern trials, the proceedings seem pretty tame. Unfortunately, the demarcation between direct and cross-examination is not indicated (whether deliberately or not cannot be told), and it is a commentary on the nature of 18th-century trial tactics that, without this guide, we cannot really know which lawyer has the witness at any given time. Everything, too, seems so terse, except the lawyers’ openings and closings, and the judges’ charges. Many witnesses, apparently, took the stand, were asked what they knew of the events on the night in question, testified fully, and sat down.91 Throughout the , there is not even the sign of an objection to a question, or a motion to strike an answer.
And as for the slashing cross-examination, the confronting with prior inconsistent statements under oath, which one would have thought the very life of a case like this, these are almost wholly absent. There is little transcript evidence to support the familiar story, related by William Gordon, that Josiah Quincy pressed his cross-examination so far that Adams had to tell him to desist:
“While carrying on, Mr. Quincy pushes the examination and cross-examination of the witnesses to such an extent, that Mr. Adams, in order to check it, is obliged to tell him, that if he will not desist, he shall decline [p. 26] having anything further to do in the cause. The captain and his friends are alarmed, and consult about engaging another counsellor; but Mr. Adams has no intention of abandoning his client. He is sensible that there is sufficient evidence to obtain a favorable verdict from an impartial jury; and only feels for the honor of the town, which he apprehends will suffer yet more, if the witnesses are examined too closely and particularly, and by that mean[s] more truth be drawn from them than what has an immediate connection with the soldiers firing, by or without the orders of the captain.”92
In Adams’ personal copy of Gordon’s book (now in the Boston Public Library), he wrote a rebutting marginal note: “Adams’ Motive is not here perceived. His Clients lives were hazarded by Quincy’s too youthful ardour.”
While the trial was still going on there was “a Report in Town . . . that one of the Council is not so faithful as he ought to be.” But Hutchinson, who passed the rumor to Gage, immediately noted his hope that “there is nothing more in it than a difference in opinion from some others of the necessity of entring into the examination of the Conduct of the Towns people previous to the Action itself, he being a Representative of the Town and a great Partisan wishes to blacken the people as little as may be consistent with his Duty to his Clients.”93
Like Gordon’s, Hutchinson’s version suggests that the problem arose at Preston’s trial, as well as the men’s. However, he too indicates that it was Josiah Quincy with whom Adams disagreed. Because Quincy does not seem to have participated in the actual trial of Preston’s case, it is possible that the incident took place only at the trial of the men. Here is what Hutchinson says about Preston’s trial:
“They [i.e. counsel] were faithful to their client unless the refusal of one to suffer evidence to be produced to shew that the expulsion of the Troops from the Town of Boston was a plan concerted among the inhabitants, can be urged to the contrary. Mr. Adams one of the counsel declined being further concerned if any further evidence of that sort was insisted upon probably having no doubt that the other evidence without it was sufficient for the acquittal of his client; while Mr. Quincy the other counsel was willing it should be produced.”94
And this is Hutchinson’s comment on the soldiers’ trial:
“The employing counsel who were warmly engaged in popular measures caused some of the evidence to be kept back which would otherwise have been produced for the prisoners. The counsel for the crown insisted upon producing evidence to prove the menaces of the soldiers preceding the action, and the counsel for the prisoners consented to it, provided they might have the like liberty with respect to the inhabitants. After the evidence had been given on the part of the crown, and divers witnesses [p. 27] had been examined to shew the premeditated plan of the inhabitants to drive out the soldiers, one of the counsel, Mr. John Adams, for the prisoners then declined proceeding any further, and declared that he would leave the cause, if such witnesses must be produced as served only to set the town in a bad light. A stop therefore was put to any further examination of such witnesses, by which means many facts were not brought to light which the friends to government thought would have been of service in the cause, though it must be presumed the counsel did not think them necessary, for it was allowed, that they acted with great fidelity to their clients, when it was evident, that a verdict in their favour, must be of general disservice to the popular cause, in which counsel had been, and afterwards continued to be, warmly engaged.”95
Hutchinson’s account is probably more accurate than Adams’. The real significance of the incident is the potential conflict it reveals, a conflict which faces any lawyer defending an accused whose defense depends (or may depend) on pressuring, or even harming, the basic interests of his community or his country. The dilemma faced by an Adams wondering how vigorously to prosecute the Boston mob in order to justify the homicide committed by his clients is the same issue confronting the appointed attorney for, let us say, a foreign spy apprehended perhaps by counterintelligence methods whose effectiveness and value to national security wholly ignore the suspect’s constitutional rights.
In the Massacre trials, Adams resolved this conflict pragmatically: he won acquittals. At this distance, we cannot determine whether, as Hutchinson suggested, Adams allowed only the minimum of evidence necessary for acquittal, suppressing all the rest; or whether, as Adams himself put it, he acted merely to suppress evidence which would have actively harmed the defense’s chances.
It is for questions like this one, and the somewhat more obvious lesson in control of vengeance, that the Massacre trials remain principally important today. But the points of interest to a lawyer likewise abound; we can here only suggest some of them. It is apparent from the transcript, for example, that the witnesses were not sequestrated, but remained in open court during the taking of other testimony; that witnesses were called out of order (Crown witnesses were called in the middle of the defense’s case); that rebuttal witnesses were called immediately, to refute specific segments of testimony; that counsel stood approximately three feet from the witness, and the witness stood six feet from the bench; that when addressing the jury, counsel not only argued law but read directly from law books; and that to save time, counsel entered a kind of “cumulative testimony” agreement.
At the same time, one must remember that no understanding can be any better than the record on which it is based. Adams’ opinion of the transcript was thoroughly adverse. “Upon reading [the manuscript] over,” he wrote years later, “I found so much inaccuracy, and so many errors, that I [p. 28] scratched out every thing, but the legal authorities, and the testimonies of the witnesses. Mr. Quincy and Mr. Paine, were consulted, and the results of their deliberations appear in the printed trial.”96
We have, of course, no way to gauge Adams’ own accuracy, and it is common knowledge, at least today, that the attorney’s recollection frequently does not square with the record. It must be remembered, however, that the stenographer was not a trained, experienced court reporter, and that he was neither appointed by the court nor sworn to take down the testimony faithfully.
This was a long trial, five days being devoted to impaneling and taking testimony, and two and a half days required for argument and charges. Adams’ closing began on the afternoon of 3 December, with the memorable quotation from the then recent work of the Marquis of Beccaria (Document XVI). A long time later, Adams’ son was to write that he had “often heard, from individuals, who had been present among the crowd of spectators at the trial, the electrical effect produced upon the immense and excited auditory, by the first sentence with which he opened his defense.”97
In his Autobiography, Adams described his tactics in a way that is somewhat misleading if the transcript is accurate. He said he told the court and jury “that as I was no Authority, I would propose to them no Law from my own memory: but would read to them, all I had to say of that Nature, from Books, which the Court knew and the Council on the other Side must acknowledge to be indisputable Authorities. This Rule was carefully observed but the Authorities were so clear and full that no question of Law was made. . . . It appeared to me, that the greatest Service [p. 29] which could be rendered to the People of the Town, was to lay before them, the Law as it stood, that the[y] might be fully apprized of the Dangers of various kinds, which must arise from intemperate heats and irregular commotions.”98
This makes it sound as though Adams was “pounding the law.”99 That this was not so, an examination of Adams’ argument as reported will show. It is a clever casting of fact into a legal matrix, with a clear indication to the jurors of a way to bring in an acquittal and still retain quiet consciences, that is, by ascribing the extraordinary provocation to outside agitators, “a motley rabble of saucy boys, negroes and molattoes, Irish teagues, and out landish Jack tarrs.”
It was noon on 4 December when Adams finished, and 10 the next morning before a “much fatigued and unwell” Paine concluded for the Crown. The judges took until 1:30 p.m. to charge the jury, and by 4 p.m. the jury was back, having acquitted all but Kilroy and Montgomery, they being convicted of manslaughter only.100
Now there remained the tidying up. The day after the verdicts, Preston, along with James Murray and Lieutenant Alexander Ross of the Fourteenth Regiment, another veteran of the Massachusetts legal system, left for England aboard H.M.S. Glasgow.101 Kilroy and Montgomery stayed in jail, and on the evening of 11 December Judges Lynde and Trowbridge met at Hutchinson’s. “He urged continuing,” is Lynde’s cryptic diary note, meaning probably continuing the case of the civilians, although it is possible that the subject of the continuance was the sentencing of Kilroy and Montgomery.102 Whatever the meaning, the next day “began Manwaring and Munroe’s trial, finished by noon.”103 Actually, the trial involved two other defendants, the jury acquitting all four “without going from their seats.”104 Summaries of the evidence in this trial were printed as an Appendix to the . No indication there appears that Adams had any connection with the case. Samuel Quincy seems to have been unassisted when he “conducted the cause on the part of the Crown,” and no defense counsel at all is listed. In fact, when the Crown closed its evidence, the prisoners themselves desired that certain witnesses “might be sworn and examined, which was done accordingly.”105
[p. 30]On 14 December, Kilroy and Montgomery were brought back into court. If customary form was followed, they were asked by the court if they knew any reason why sentence of death should not be passed on them, for [p. 31] manslaughter was a capital offense. They thereupon “prayed clergy,” that is, benefit of clergy, were branded on the thumb to ensure that the plea would not be repeated, and were discharged. If we can trust a listener’s account of Adams’ recollection fifty-two years after the event, he “never pitied any men more than the two soldiers who were sentenced to be branded in the hand for manslaughter. They were noble, fine-looking men; protested they had done nothing contrary to their duty as soldiers; and, when the sheriff approached to perform his office, they burst into tears.”106 The regiment having long since departed for its new stations in New Jersey, Dalrymple made plans to ship the men on a “passage for to Amboy, indeed I do not chuse to trust them any other way.” Earlier he had written to Gage: “A bad disposition appearing in the Soldiers who were confined I shall send them round by Sea, we have but too much reason to suspect their ententions to desert they are not at all to be depended upon.”107
[p. 32]Meanwhile, the various expenses of the defense were paid (in the first instance) by Dalrymple, who sent his account on to Gage. Adams’ share in the counsel fees is unknown, but the document offers insight into the essentials of successful criminal defense.108 Adams’ fee was apparently set in the understanding that Preston was paying his own way. In April 1771 Adams seems to have learned otherwise, for he wrote to Isaac Smith Jr: “If Preston is to be reimbursed his Expences, I wish his Expences, at least to his Council, had been greater.”109 The final monetary question concerned the juries. The Superior Court recommended to the Suffolk Court of General Sessions of the Peace that “a reasonable Allowance” be made to the jurors to compensate them for their lost time by making an allowance for wages and expenses. At the April 1771 Sessions, the matter came on for disposition, the hearing being held on 15 May 1771. After a day’s argument, in which Adams participated, the Sessions decided that, in the absence of statutory authority, it could not make such a grant.110
The memories of the riot and the trials died hard. Not everyone agreed [p. 33] with Adams that his defense of Preston and the soldiers was “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best pieces of Service I ever rendered my Country.” Not everyone felt that “Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.” And many actively disagreed with Adams’ feeling that “As the Evidence was, the Verdict of the Jury was exactly right.”111 In fact, as late as 3 January 1774, when a mob was about to rough up an obnoxious loyalist named John Malcom, and “Several Gentlemen endeavoured to divert the populace from their intention, alledging that he was open to the laws of the land which would undoubtedly award a reasonable satisfaction to the parties he had abused; they answered . . . that in case they let him go they might expect a like satisfaction as they had received in the cases of Richardson and the soldiers, and the other friends of government.”112
Adams, however, never wavered in his feeling that he had done the right thing in many ways when he undertook the defenses. “I begin to suspect,” he wrote in 1787, “that some Gentlemen who had more Zeal than Knowledge in the year 1770 will soon discover that I had good Policy, as well as sound Law on my side, when I ventured to lay open before our People the Laws against Riots, Routs, and unlawful assemblies. Mobs will never do—to govern States or command armies. I was as sensible of it in 70 as I am in 87. To talk of Liberty in such a state of things—!”113
But the recognition Adams hoped for was slow to develop. “To this hour,” he said in 1815, “my conduct in it is remembered, and is alleged against me to prove I am an enemy to my country, and always have been. It was one of those cases, of which I could give you the history of many, in which my head or my heart, or perhaps a conspiracy of both, compelled me to differ in opinion from all my friends, to set at defiance all their advice, their remonstrances, their raillery, their ridicule, their censures, and their sarcasms, without acquiring one symptom of pity from my enemies.”114 [p. 34] Preston himself, according to Adams’ memory, never expressed any gratitude. “His object was to leave Boston as soon as possible. He immediately disappeared, and I never saw him again, except once, when I passed him walking in the street in London.”115
The ultimate comment on Adams’ part in these unusual trials came, appropriately enough, from his own heart in December 1772. Samuel Adams and Samuel Pemberton came to him as a subcommittee of the standing Town Committee, asking him to give the annual Massacre Day anniversary address the next March. Adams declined, and they pressed him for reasons. Finally, he gave them this lawyerlike and personally typical reply:
“I told them that so many irresistable Syllogisms rushed into my Mind, and concluded decisively against it, that I did not know which to mention first. But I thought the Reason that had hitherto actuated the Town, was enough—vizt. the Part I took in the Tryal of the Soldiers. Tho the Subject of the Oration, was quite compatible with the Verdict of the Jury, in that Case, and indeed, even with the absolute Innocence of the Soldiers yet I found the World in general were not capable or not willing to make the Distinction, And therefore, by making an Oration upon this Occasion, I should only expose myself to the Lash of ignorant and malicious Tongues on both Sides of the Question. Besides that I was too old to make Declamations.”116
BY L. H. BUTTERFIELD
Documenting the two principal trials growing out of the Boston Massacre has required an elaborate piecing together of scattered and often defective sources. This operation has been a good deal like that of an archeological team reconstructing a temple from a tumbled mass of architectural members, some missing, many mutilated, and most of them strewn over a wide area. Taken all together, however, the materials for telling the story of the legal aftermath of the events of 5 March 1770 are impressive in quantity and form a fairly continuous record of a dramatic episode in legal history. The purpose of the present note is to describe these materials, tell where they are, and show how they have been fitted together.
Manuscript Sources
The chief manuscript sources are as follows:
(1) John Adams’ own notes (hereafter “Adams Massacre Minutes”) taken during the course of the trials.
[p. 35](2) Robert Treat Paine’s notes (hereafter “Paine Massacre Notes”), a part of the Paine Papers in the Massachusetts Historical Society.
Both the Adams and the Paine Massacre Notes, being complex, are described more fully below and equated with the sequence of numbered documents that constitute the record of the Preston and Wemms trials in the present edition.
(3) An extended summary of the evidence presented by both the prosecution and the defense in Preston’s trial, evidently prepared for Lieutenant Governor Thomas Hutchinson. “I am endeavouring,” Hutchinson wrote Hillsborough immediately after the trial, “to procure the minutes which were taken at the Trial of the whole proceedings in Order to transmit them to Your Lordship, but it is very lengthy and will take some days to transcribe.” The transcription, in the hand of one of Hutchinson’s clerks, went to Hillsborough three weeks later.117 This document is now in the Colonial Office records in the Public Record Office, London, and provided the material for Rex v. Preston, Documents IV and VI; a photostat is in DLC: British Reproductions.
(4) A group of Suffolk County Superior Court papers relating to both trials, now in the Mellen Chamberlain Collection in the Boston Public Library. Among other things these include four of the five original indictments and arraignments that must once have existed, one for the murder of each of those killed or mortally wounded in the evening of 5 March 1770. Only one is printed here (Rex v. Preston, Document I); the indictment for the murder of Crispus Attucks. It has been chosen for printing because, for reasons not known, it is the only one that names all the persons accused—Captain Preston, the eight soldiers, and the four civilians who were accused of firing from the Custom House windows.
(5) Samuel Quincy’s Massacre Minutes, consisting of notes on the testimony of certain Crown and defense witnesses in the trial of the soldiers. This is an eight-page manuscript, unsigned, undated, unpaged, and hitherto apparently unpublished. It has long been attributed to Samuel’s brother Josiah, one of the defense counsel, because it was received and shelved with other Josiah Quincy Papers in the Massachusetts Historical Society; but the hand is that of Samuel, who was of counsel for the Crown. The manuscript is a fragment, written in the careful hand of a lawyer who was seemingly preparing a digest of testimony outside the courtroom. It begins with John Danbrook’s testimony for the prosecution and continues part way through that of Nicholas Ferriter, thus summarizing all or part of the evidence given by eight Crown witnesses. There is then a gap, and the second half of the notes abstracts the last part of Archibald Wilson’s testimony and that of nine more defense witnesses, at least in part. The notes break off in the middle of a sentence in James Thompson’s testimony. All of the surviving text is printed below, but in the form of footnotes supplementing John Adams’ minutes on the same witnesses’ [p. 36] testimony in the soldiers’ trial. (See footnotes on Rex v. Wemms, Documents IV, X, and XII.)
(6) Thomas Hutchinson’s Letterbooks in the Massachusetts Archives, specifically volumes 25–27, containing the acting governor’s retained copies of letters in 1770–1771 to governmental and military authorities in England and America on the Massacre itself, the problem of obtaining orderly trials (and, if necessary, pardons) for the accused, the calculated deferment and the actual progress of the trials, and their immediate sequels. Typescripts of these letters are in the Massachusetts Historical Society.
(7) The notes purportedly taken during the soldiers’ trial and the deliberations of the jury by a member of the jury, Deacon Edward Pierce of Dorchester, printed below as a footnote to Rex v. Wemms, Document XIX.118
Other manuscript materials have been drawn on incidentally but are cited at the places where they are quoted and need not be described here.
Printed Sources
(1) By far the most important single printed source for the legal actions growing out of the Boston Massacre is The Trial of William Wemms[and others], . . . for the Murder of Crispus Attucks[and others], . . . before the Hon. Benjamin Lynde[and others], . . . Taken in Short-Hand by John Hodgson, Boston: J. Fleeming, 1770 (Evans 11683), a 217-page small octavo volume, the titlepage of which is reproduced in the present volume. For brevity this is designated as in the present edition. It was reprinted with a variant title in Boston in 1807 and again in 1824 (both times without its important “Appendix” p. 211–217 on the third or civilians’ trial, Rex v. Manwarring et al.), and last by Frederick Kidder in his History of the Boston Massacre, March 5, 1770; Consisting of the Narrative of the Town, and Trial of the Soldiers: and a Historical Introduction, Containing Unpublished Documents of John Adams, and Explanatory Notes (Albany, 1870), p. 123–285. Kidder actually took his text not from the original 1770 printing, but from the 1807 reprint, so that he too omitted the Manwarring trial.
The is printed virtually in full below and forms the greater part of the documentation for Rex v. Wemms. It is set out, however, in segments (for the precise arrangement of these see the list below); and those parts which supplement John Adams’ own minutes of witnesses’ testimony (always printed as text when extant) are footnotes (Rex v. Wemms, Documents II, IV, VI, X, and XII) so that the reader may have before him for ready comparison both the Adams minutes and the equivalent transcript. Although this treatment has sometimes caused outrageously long footnotes, the alternatives (printing the as a separate document, or printing the footnotes at the end of the respective documents) would have created more problems for the analytical reader than [p. 37] they would have solved. The adjournments recorded in the are given document numbers in the present arrangement only when they interrupt documents drawn from other sources.119
Since the circumstances of the compilation of the bear on its authority as an historical source, they ought to be recorded here. In later years John Adams insisted that a shorthand transcript of Preston’s trial had been prepared “and sent to England but was never printed here”; and was in fact suppressed by the British authorities.120 Although the existence of a version of Paine’s argument for the Crown (Rex v. Preston, Document XI, below) shows that some attempt was made to reconstruct a record of that trial, nothing like a transcript has ever been found. Both sides seemed concerned to avoid such negligence in the soldiers’ trial. On the day the trial ended, 5 December, Hutchinson wrote Hillsborough that “A correct account of the whole Trial is preparing for the press.”121 During the next several weeks strenuous efforts were made to perfect the record. On the 16th Samuel Quincy, in Boston, added a postscript to a letter to Paine in Taunton:
“Mr. Fleming [John Fleeming] the Printer has undertaken to publish the Trial, and will have authentic Copies of the argument from the Council, and the Direction of the Court to compleat the Whole. He has therefore desired me to apply to you for the State of your argument, which he will not be ready to insert this 14’night or 3 Weeks, you will therefore have Time Enough if you will oblige him in This Respect.”122
This particular deficiency in the was explained in a further letter to Paine from Sampson Salter Blowers, Boston, 30 December:
“Saml. Quincy tells me he wrote you some time since by his Brother, requesting you to furnish Mr. Fleeming with your Argument on the Trial of the Soldiers, but has received no Answer at all from you.
“The Trial is now in the Press, and We all shall be extremely sorry, it should appear so very deffective as it must do, unless your Argument is inserted. The person appointed to take the Trial in Short hand, was so much fatigued, that he was obliged to omit writing what you said in closing that Cause, so that unless you will prepare it yourself from your Minutes the Trial must be published, without it. If you have not time to prepare the whole at large, I entreat you to send such analysis of it, as you can conveniently collect from your minutes and I will take Care any apology, you desire, shall be printed with the Trial. Both Messrs. A[dams] and J. Quincy have omited their Observations on the Evidence, s[o tha]t your Argument will not appear singular without them.
“As a State of the Trial will certainly be published both Court and Bar are solicitous, it should appear in such manner as to bring no disrepute on [p. 38] the Country, its therefore expected, that if your Love of Fame will not, your patriotism will be, a sufficient inducement for you to take some pains, the publication may appear as compleat as possible.”123
This was followed by a message from Justice Peter Oliver at Middleboro on 3 January 1771, telling Paine that “the Press will not stand still for Want of your Pleadings.” The Governor, Oliver went on, had added his voice: “he thinks it would be a Disadvantage to you to omit it. Mr. Fleming has wrote to you and waits.”124 Replying apparently to Blowers’ letter, Paine wrote from Taunton on the 7th:
“It was a peculiar disadvantage to me that my poor Effort were not taken down from my Mouth, which would have saved me much trouble in Collecting it. I had thrown up all thoughts of any such thing till I received a line from Judge Oliver just before I received yours. If timely notice had been given me it would have been prepared before now, but unluckily the Call came on me when I was very sick and encumbered with other Concerns, but I have attended to it and drawn a rough Draught but I am totally at loss how they have Modelled the other Arguments and of what length they are. I would feign have mine in the same Modell; if therefore it be not too late (which I hope it is) I shall come to Boston forthwith. I propose to set out to Day or to Morrow Morning at farthest; you’ll therefore p[lease] to consult the Printer on the Subject. [MS torn] a day or two will make no Odds. I hope [to be] ready by that time.”125
For whatever reason, or reasons, Paine’s argument was not put in shape for publication. His “rough Draught” (which is very rough indeed) is set out below as Rex v. Wemms, Document XVII.
The Trial came off the press in mid-January, for on or about the 19th Hutchinson told sundry British correspondents that copies were being shipped to them and could be picked up at the New England Coffee House.126 John Adams’ opinion of the volume, at least according to his later recollection, was low.127
Other printed sources for the Massacre trials include:
(2) Randolph G. on the Boston Massacre (Worcester, 1938), originally published in 47 259 (1938), and cited here as , with citations to the later pagination; the conversion factor to the original publication is plus 256. Apart from Adams’ brief but suggestive introduction, this is a selection of correspondence and other papers bearing on the Massacre and the trials drawn from the Gage Papers in the William L. Clements Library at Ann Arbor. The materials printed from the Gage Papers do indeed throw more “new light” on these events than anything else put on record in the 20th century, and the present editors have drawn on them extensively.
(3) The third and final volume of Thomas Hutchinson’s History of the [p. 39] Colony and Province of Massachusetts-Bay, written in the late 1770’s but not published until 1828. This contains the acting governor’s narrative and views of the events of 1770, in the Mayo edition (Cambridge, 1936) at p. 194–201, 203, 235–237, supplementing his contemporaneous correspondence. The History is in turn supplemented by Mrs. Mayo’s edition of “Additions to Thomas Hutchinson’s History of Massachusetts Bay,”128 printed from a portion of Hutchinson’s manuscript then newly brought to light and containing matter that Hutchinson himself had determined not to print. The editors have made extensive use of this material in preparing the editorial note.
(4) An anonymous “Account of the Trial of Captain Preston . . .” in the Annual Register for 1770, which consists almost entirely of a summary of the four judges’ charges to the jury and is set out below as Rex v. Preston, Document XIV.
(5) Chief Justice Benjamin Lynde Jr.’s Diary as printed in The Diaries of Benjamin Lynde and of Benjamin Lynde, Jr., with an Appendix (Boston, 1880). The brief entries in the younger Lynde’s interleaved almanacs have been helpful in establishing the chronology of the legal proceedings. In the appendix (p. 228–230) appears “A Portion of the Charge delivered by Judge Lynde at the Trial of the Soldiers,” reprinted below as Rex v. Wemms, Document XXI. (The MS—with minor variations—is in the Oliver Papers, Massachusetts Historical Society.
(6) John Adams’ published writings. Apart from his working papers on the trials, elsewhere described as they survive, Adams recorded next to nothing about the Massacre and the trials contemporaneously. Adams’ principal retrospective account is a vivid but not wholly accurate account in his Autobiography.129 This is supplemented by two letters130 which helped fix the standard 19th-century conception of the Massacre.
(7) Josiah Quincy’s Josiah Quincy, Jr., contains the remarkable correspondence of March 1770 between Josiah the lawyer and his father, Colonel Josiah, on the son’s engaging to defend Preston and the soldiers. These are printed in the editorial note above.
Other printed sources, including newspapers, the Boston Town Records, and a number of documentary articles in the publications of learned societies, have been drawn on incidentally, but they are cited at the appropriate places and need not be specified here.
Each of the two principal manuscript sources, Adams’ Massacre Minutes and Paine’s Massacre Notes, requires a fuller description than has yet been furnished, so that the reader can follow the articulation of their several parts and their relationship to the other documents in the cases of Rex v. Preston and Rex v. Wemms.
[p. 40]Adams’ Massacre Minutes
These must once have constituted a very substantial assemblage of working papers connected with the two cases, compiled in the form typical of Adams’ legal manuscripts, that is, in pocket-size paper booklets, without covers, stitched with thread through their folds. How many such booklets on the Massacre trials there originally were, and how many pages of notes, cannot now be conjectured, since what survives is a collection of fragments from which the threads that held the leaves together have almost entirely disappeared. Surviving are no fewer than forty-one pages containing writing and a number of blanks, all the pages being approximately 6 1/4” x 3 3/4” in size. Close study suggests that they fall into six or seven more or less discrete units or fragments of from one to ten pages. For convenience of description, however, they may be considered as four groups, hereafter designated as MHiMSS 1 and 2, MBMS, and MHiMS 3.
All three of the MHiMSS are in the John Davis Collection in the Massachusetts Historical Society and have had the same history from the point when we know anything about them. They were presumably among the contents of “a trunk containing a large collection of manuscripts formerly belonging to Hon. Judge Davis, and more recently to Isaac P. Davis, Esq.,” presented to the Society in June 1856.131John Davis (1761–1847), Harvard 1781, had been a Plymouth and Boston lawyer, federal judge (thanks to one of John Adams’ “midnight appointments”), an enthusiastic antiquarian, and, from 1818 to 1835, president of the Massachusetts Historical Society.132 Davis’ extensive correspondence with John and John Quincy Adams does not reveal how he obtained these substantial portions of John Adams’ autograph notes, and Charles Francis Adams perhaps never knew of their existence; certainly he made no use of them in editing his grandfather’s Works. From 1856 to 1913 they reposed without disturbance, so far as can now be told, on the shelves of the Historical Society. In the latter year the Society received some additional Davis papers, and it was at this time, no doubt, that Worthington C. Ford studied the earlier material and recorded on the envelope containing the Massacre Minutes: “Some of the missing pages from these notes are in the Boston Public Library and are printed in Frederick (Albany, 1870), pages 10–18.” (Concerning these, the MBMS, see farther on in the present account.) It is inexplicable why Ford, who had a sharp eye for significant historical sources and was editor of the Society’s publications, did not put this interesting though fragmentary discovery into print. Nor has it, apparently, been printed until now.
MHiMS 1, consisting of eight pages, in Adams’ hand, bears his caption, “Captn. Prestons Case,” at the head of the first page. (This page is reproduced in facsimile as an illustration in 1 , facing p. 289.) The matter found in these pages, though characteristically [p. 41] jumbled in its order, provides the texts of Rex v. Preston, Documents II, VII, X, and XII, below, and also a note on “Mr. Auchmutys Authorities” (Document IX, note 1). Whether there were once more notes by Adams on the Preston case is not known, but, considering his working habits, it is hard to believe that there were not.
MHiMS 2 is a ten-page autograph fragment in the same collection. A leaf is missing at the front, for the first five surviving pages were numbered by Adams from 3 through 7; the remaining five pages are unnumbered but are continuous with the numbered ones. These are all notes on the testimony of Crown witnesses in the soldiers’ trial, beginning with the last part of Dodge’s testimony and ending part way through Burdick’s. The missing first leaf no doubt contained notes on the testimony of the only two Crown witnesses who preceded Dodge. MHiMS 2 provides the texts both of Rex v. Wemms, Document II, and the first part of Document IV, these two documents being interrupted merely by an adjournment (Document III).
MBMS must be described next because its first seven pages continue without a break the text of MHiMS 2. This manuscript, running to thirteen pages in Adams’ hand, together with seven blank pages, has the call number G.38.24 in the manuscript collections of the Boston Public Library. If Adams numbered any of these pages, his numbers have worn away, and the leaves have parted into discrete pages, now silked, that have been given arbitrary (and erroneous) numbers. In 1913, doubtless when he came on Adams’ Massacre Minutes in the Davis Collection at the Massachusetts Historical Society, Worthington Ford inquired about the provenance of the fragmentary Massacre Minutes in the Boston Public Library. Horace G. Wadlin, the librarian, replied on 14 July 1913 that he had been “unable to trace the source from which the library received the Adams Manuscript. . . . The record . . . is not complete on that point. It was probably bought, with other material, at some auction sale, between 1870 and 1889. It was catalogued here in 1889, but had been in the library for some undetermined time before that.”133 The earlier of these dates was mentioned by Wadlin because Frederick Kidder had in 1870 printed, for the first time, these notes, which he stated had “been in the possession of the compiler for many years.”134 He did not print them in their correct order because, on account of the gaps in them and the parting of the leaves, he conjectured a hopelessly wrong order; and his transcription of the text is extremely inaccurate. Some thirty years later Worthington Ford himself, then on the staff of the Library, re-edited the notes for the short-lived publication Historical Manuscripts in the Public Library in the City of Boston, No. 2 (1902): 13–20. Ford’s text is far more accurate in respect to spelling, especially of the many personal names, and it includes matter canceled in the MS; but Ford did not improve the order of the fragments because he did not yet know of the Adams Massacre [p. 42] Minutes in the Historical Society, which are integral with those in the Boston Public Library.
MBMS contains the final segment of Rex v. Wemms, Document IV (Adams’ minutes of Crown testimony, from the later portion of Burdick’s through that of Marshall), as printed below; also the whole of Document VI (Adams’ further minutes of Crown testimony, from “Crosbey” [i.e. Croswell] through Mrs. Gardiner, followed without break by Adams’ minutes of Samuel Quincy’s opening argument for the Crown); and also the whole of Document VIII (Adams’ partial minutes of Josiah Quincy’s opening argument in defense of the soldiers). A gap that then appears in MSMB is at least partly filled by MHiMS 3, to be described next below. But there is a further fragment or two in MSMB. A four-page unit supplies the text of Rex v. Wemms, Document XIV (Adams’ digest of evidence for his own argument, arranged under sundry headings like “Evidence of Commotions that Evening”), which may well be incomplete as it now stands. A single line that looks like a further subdivision of his notes for his argument—“Assault upon the Sentry”—heads a final detached page that is otherwise blank and has been attached to Document XIV because there seems no better place to put it. A comparison of Document XIV with Adams’ argument as recorded by the reporter and printed in the (Document XVI) shows great discrepancies between both the order and the substance of the material in Adams’ notes and in the finished result.
MHiMS 3, last in this series of disjecta membra, is the third and final unit of Adams’ Massacre Minutes in the John Davis Collection at the Massachusetts Historical Society. It is a ten-page set of notes in Adams’ autograph headed “Pris[one]rs Witnesses” and paged by Adams from 21 through 30, though he skipped p. 27. It contains Adams’ notes on the testimony of the first twenty defense witnesses, i.e. from Crawford part way through Keaton, where it breaks off in the middle of a sentence. Since Josiah Quincy introduced 31 more witnesses for the defense, these notes were undoubtedly once much more extensive. In fact, Adams referred in his Digest of Evidence, Rex v. Wemms, Document XIV, to pages of his trial minutes numbered as high as 37. Those that survive have been printed below as Rex v. Wemms, Documents X and XII, being interrupted only by an adjournment (Document XI).
Paine’s Massacre Notes
Robert Treat Paine preserved far more voluminous notes on the two leading Massacre trials than any of the other counsel who participated, but they have been made available for study and use only recently, as part of the great collection of Paine Papers given by descendants of the lawyer to the Massachusetts Historical Society. Charles Cushing Paine, Paine’s grandson, arranged the papers in the 19th century and segregated all the notes and drafts on the Massacre trials, binding up the assemblage in a small volume with stiff paper covers. This he numbered “45,” and on the front flyleaf wrote: “Law notes & other papers of R.T.P. at the Trial of [p. 43] the Soldiers & of Capt. Preston, for the affair of March 5, 1770.” The contents, extending to more than two hundred pages, are in disorder, some of them running from back to front and upside down in the volume as bound; and nearly all of the material is in Paine’s cramped and hurried courtroom hand, abounding in contractions and in words in which the letters are not fully formed. There are also a few letters and other papers relating to the trials loosely laid in at the front and back of the volume.
The Paine Massacre Notes have furnished the texts, printed below, of the following documents in the case of Rex v. Preston: III, V, VIII, IX, XI, and XIII, the specific titles of which will be seen in the list of Preston documents, just below. The editors have drawn on materials from the Paine Massacre Notes, sometimes quite copiously, to annotate Rex v. Preston, Documents IV, VI, and XII, especially where Paine’s notes furnish information supplementary to or markedly variant from the anonymous summary of the testimony sent to England by Hutchinson. It should be emphasized, however, that the editors have not attempted to include here everything found in the Paine Massacre Notes. As bound, the volume opens with extensive minutes of the testimony in the soldiers’ trial, very little of which has been printed here from Paine because the transcript published as the is so much fuller. On the other hand, his notes are the source of Rex v. Wemms, Document XVII and of footnotes on Wemms Documents XIII and XV (see the list below). Rex v. Wemms, Document XVII, is the sole item from his Massacre Notes that has heretofore been printed even in part. This is a draft of his argument for the Crown, which, as his correspondence in December 1770—January 1771, already quoted, shows, he unsuccessfully struggled to put into form for the printer after the trials were over. In 1822 Alden Bradford, a Boston antiquarian, was commissioned to write the life of Paine to be included in John Sanderson’s multivolume Biography of the Signers to the Declaration of Independence. Bradford persuaded some member of the Paine family to give him access to Paine’s papers, and the first part of this “rough Draught” (as Paine had called it) was printed in an appendix to the second volume of Sanderson’s compilation,135 followed by this comment: “The rest of the papers, which have been preserved, relating to this trial, are so torn and the notes therein are so imperfect, that it is impossible to determine the concluding remarks of Mr. Paine.” The editors have tried to do so, however, in Rex v. Wemms, Document XVII. The same initial part of Paine’s argument, no doubt from Sanderson, was inserted in place in the 1824 reprint of the , p. 117–122.
1. Rex v. Corbet, No. 56. Longman v. Mein; Wright & Gill v. Mein, No. 12. Rex v. Ross, No. 60. Rex v. Richardson, No. 59. Folger v. The Cornelia, No. 45. Sewall v. Hancock, No. 46. Dowse v. 33 Hogsheads of Molasses, No. 47. Sheaffe v. The Triton, No. 48. Dowse v. 19 Casks of Molasses, No. 49. Butler v. The Union,50. King v. Stewart, No. 2. See also Robinson v. Otis, SCJ Rec. 1772, fol. 109; Min. Bk. 95, SCJ Suffolk, Aug. 1772, C–40; SF 102135; 2 47–48. Pierpont and Davis v. Cutler, SF 152615, 152686; Min, Bk. 90, SCJ Worcester, Sept. 1771, C–9; Min. Bk. 97, SCJ Worcester, Sept. 1772, C–5; SCJ Rec. 1771, fol. 140; SCJ Rec. 1772, fols. 124–125; 2 8–9. Gailer v. Trevett, vol. 1:41 above. Richards v. Doble, vol. 1:39 above.
2. According to Justice of the Peace John Tudor, he and Justice Richard Dana issued a warrant for Preston’s arrest, on which Preston was “taken up,” brought before them at 2 a.m. on 6 March, and examined for an hour. “We sent him to Goal soon after 3, having Evidence sufficient, to committ him, on his ordering the soldiers to fire.” The soldiers were not committed until the forenoon of 6 March. Deacon Tudor’s Diary 31–32 (Boston, ed. William Tudor, 1896). Preston said there were three justices and that on
“hearing of this procedure I instantly went to the Sheriff and surrender’d myself. . . . On the examination before the Justices, two witnesses swore, that I gave the men orders to fire, the one testified he was within two feet of me, the other, that I swore at the men for not firing at the first word. Others swore they heard me use the word ’fire,’ but whether do or do not fire, they could not say; others that they heard the word fire, but could not say if it came from me.” Case of Captain Thomas Preston of the 29th Regiment, PRO, C.O. 5:759, fol. 252. DLC: British Reproductions.
3. “How came you to fire without Orders from a Civil Magistrate?” Hutchinson asked Preston immediately afterwards, page 81 below. “If it shall Appear that the Soldiers have fired Wantonly without legal orders for so doing, the Laws must no doubt have their due course.” Gage to Hutchinson, 12 March 1770, 28.
4. 5 Boston Town Records 243 (26 March 1770); 18 20. The depositions are most conveniently available in “The Committee, the Justices, and most of the witnesses,” wrote Hutchinson later,
“were well wishers to the American cause. The professed design of taking the depositions, was to prevent ill impressions against the town. The depositions were not generally in a form of words prepared by the deponents, but, when they had declared their knowledge of facts, the form and words of the depositions were settled by the Committee or Justices—There was no cross examination and no body present to ask any questions to elucidate any parts of the depositions—no scrutiny was made into the credit, and characters of the deponents.” 18–19.
5. Hutchinson to ——, 25 March 1770, John Almon, Remembrancer for 1775 181 (London, 1775). 194 dates this event as 14 March 1770, the day after the March term opened. Min. Bk. 91, SCJ Suffolk, March 1770. The anonymous author of the report in the Bernard Papers dates it later:
“[March] 22d. Two of the Judges being sick, the court came to a Determination to adjourn to the 2d Tuesday of June but before they had gone thro’ all the necessary form a Committee consisting of A[dam]s, M[olineu]x, Wa[rre]n, H[ancoc]k and others waited upon them in court, and in a very pathetic Speech, made by Mr. A[dam]s, Represented the necessity of proceeding to the trial of the Criminals this Term, particularly those concerned in the late bloody Massacre. In short the plain design of this speech was, that Gentlemen, you must comply with our demand and the court only adjourned for a few days.” 3 Bernard Papers 73, MH.
“to draw up a Memorial to the Lieutenant Governor and Council praying that special Justices may be appointed for the Superior Court now sitting in the room of those who may be necessarily prevented by sickness from attending their duty; that so the Tryals of the many Criminals now committed may not be postponed.” 18 15.
6. Hutchinson to Gage, 1 April 1770, 42; Gage to Hutchinson, 9 April 1770, 46; Hutchinson to Gage, 13 April 1770, 47.
8. The indictment relating to Attucks (which is the only one naming the civilians) has been set out as Rex v. Preston, Doc. I. The original, as well as the indictments relating to Carr, Gray, and Caldwell, is in MB: Chamberlain Collection. In all the indictments, each soldier is called “Labourer.” Other documents in the Suffolk Files indicate that this was the normal addition for rank-and-file in the law courts; officers carried the addition “Esq.” or “Gentleman.”
10. Hutchinson to Gage, 1 April 1770, 42.
11. 91. The four were apparently not admitted to bail until 7 April, however. See the recognizances (in the principal amounts of £ 400) of Green and Munro, apparently in the hand of Josiah Quincy, and signed by Judges Cushing and Oliver, 7 April 1770, MB:Chamberlain Coll. This tends to confirm a report that only three judges passed on the question of bail, Cushing and Oliver voting in favor, Lynde against. Boston Gazette, 9 April 1770, p. 3, col. 1. noted on 7 April 1770: “About Bailment of Manwaring and Munroe, all forenoon,” without mentioning Green or Greenwood. 195. This is not conclusive because for 12 Dec. 1770, when all four civilians were tried, his entry reads: “Began Manwaring and Munroe’s trial.” 201. Green and Greenwood, not being “gentlemen,” may have fallen beneath Lynde’s notice. Greenwood’s recognizance is in MHi: Wayside Inn Coll.
12. James Forrest, a native of Ireland and a prosperous Boston merchant, owned one of the buildings where the 29th Regiment was barracked. 58; 752; 136–137.
14. 26–28. Quincy’s spirit and sense of professional duty did not equal his professional reputation, at least in Hutchinson’s eyes. “A young lawyer, a coxcomb,” he called him. Hutchinson to ——, 22 May 1770, 26 Mass. Arch. 489. “Young Quincy who goes by the name of Wilkes Quincy . . . bids fair for a successor to Otis and it is much if he does not run mad also.” Hutchinson to Bernard, 22 May 1770, 26 Mass. Arch. 491. The “Adams” who appealed to Quincy was presumably Samuel.
15. “Attorney Gen[era]l to Ipswich Court, so we on the civil actions all the week.” 194 (27 March 1770). “The People of the Province are at a loss to know what is become of the person reputed the King’s Attorney, he not having been visible at the Superior Court now sitting in Boston for a considerable time past.” Boston Gazette, 2 April 1770, p. 2, col. 2.
16. For the Town’s resolve, see 18 14. However, even before the Town had voted, steps had been taken to obtain Paine as a prosecutor. “Yesterday in the Forenoon,” William Molineux wrote to Paine on 9 March,
“the Select Men met in Order to Consider what was Necessary to be done Relative to proper Council to be Appointed to Appear in behalf of the Relatives of the Deceased, the first was Murder’d by Richardson and Afterwards others per Capt. Preston and his Soldiers &c.
“By a Vote of the Town You’l Observe they are to Pay the Expence of Prossecution, of Consequence You will be by them Amply Satisfyed. It is the Opinion of the Select Men, and also those that are Suppos’d to be better Acquainted in Law Matters, that it will not be in Character for the Town to Appear against the Criminals, but the Relatives of the Deceased, by whome and in whose Name You are the Gentleman pitched Upon in their behalf, and against the said Richardson and the Capt. and Soldiers. The Bearer Mr. Edwards now goes Express to desire You will be in Town the 17th Inst. to which day our Court is Adjourn’d and Presume Richardson’s Case will be the first that will come on, the Capt. and Soldiers will follow. The Evidences will be properly Arranged and Ready against You come, but in Order for Your Government (tho’ none are allow’d to be given out but under peculiar Circumstances) and to prepare Yourself for the Tryal have sent by the Bearer a Printed Narrative of the Massacre with about 80 Affidavits by Reading of which You will Enter into the Spirit of the thing and be fully Possess’d of Substance and facts, it may not be amis here to Observe that some how their has been great Deficiency in preparing Council in Time, Our Common Enemy’s (You know who they are) have Availd themselves of our Neglect, and have Engag’d most or all the Lawyers in Town, however I’m glad it falls to Your Lott to have an Opportunity of making an Eclat in so Popular a Cause, I am for my own Part Convinced of Your Readiness at all Times to Espouse your Countrys Cause, or that of Individuals, Who have Suffered by the hands of Execrable V[illain]s and Professed Murders. You will Please to give me a Line by the Bearer, the day you may be Expected in Town if Agreeable, In the Interim Remain.” Paine Papers.
17. See 72.
18. Carr to Gage, 7 March 1770, 19, 20. Andrew Oliver Jr. to Benjamin Lynde, 6 March 1770, printed in 226, 228; 198; Andrew Eliot to Thomas Hollis, 28 June 1770, 4 (4th ser.) 449, 451 (1858); William Palfrey to John Wilkes, 6 (1st ser.) 480 (1862–1863). Of the characters and personalities of the soldiers, we know little. Returns on warnings to vagrants in the Suffolk Files indicate that two of them were married, with wives living in Boston:
“1770 May 4. Elisabeth Hartick a Soldiers Wife Lodges att mr Hiklans in Kings Street he is one of the 29 Rajment Now in Goal in Boston to be tryed for the murder of the people in Kings Street the Last March Warned in his Majestys Name to Depart this town of Boston in 14 days.” SF 89545.
“1770 May 18 Edward [thus in MS; his name was Hugh] Montgomerry a Soldier of the 29 Ragment he is Now Under Confinment in Our Goal for the murder of Our people the Last March his Wifes is named Isabela their Childrens Names are Mary Ester and William thy Live Now in a house of Royall tillers Esqrs in fore Street att the North End Warned in his Majestys Name to Depart this town of Boston in 14 Days.” SF 89546.
19. Boston Gazette, 12 March 1770, p. 3, col. 1.
21. Gage to Dalrymple, 28 April 1770, 49. See Dalrymple to Gage, 5 May 1770, 52: “All who can be of use in the ensuing trial shall be detained.”
22. Gage to Dalrymple, 17 June 1770, 54–55.
23. See Matthews, “Capt Thomas Preston and the Boston Massacre,” 7 2, 4 (1905). As to Otis and Robinson, see sources cited in note 1 above.
24. Dalrymple to Gage, 19 March 1770, 32, 33. “Captain Preston’s case” is a critical narrative entitled “Case of Capt. Thomas Preston of the 29th Regiment” not in Preston’s hand, but signed by him. PRO, C.O. 5:759, fols. 247–253; it is printed from the Massachusetts Gazette Extraordinary, 21 June 1770, in 7 6–10 (1905). When the “Case” returned to Boston in June after having been printed in England, the Bostonian reaction was violently anti-Preston. In the journalistic fulminating, the Captain’s earlier “card” was, as Gage had predicted, turned to his detriment. The documents are printed in 7 11–21 (1905). This time, Preston had the sense to remain silent. See Gage to Preston, 12 Aug. 1770, 69.
25. 18 13. JA, Josiah Quincy, and Thomas Cushing were at the same meeting voted a committee to “write immediately” to various friends of the radicals in England, “acknowledging our obligation for past favors, acquainting them with the Circumstances and Facts relative to the late horred Massacre, and asking the continuance of their good services in behalf of this Town and Province.” Id. at 10.
26. For an excellent bibliographical survey of the various editions see Nos. 75a–75i. See note 4 above.
27. Dalrymple to Gage, 5 May 1770, 52; Hutchinson to Bernard, 12 April 1770, 26 Mass. Arch. 466.
28. That is, the sittings in Essex, York, and Cumberland counties, held in June and July. See Act of 26 April 1770, c. 17, 5 44.
30. Andrew Eliot to Thomas Hollis, 28 June 1770, 4 (4th ser.) 449, 451 (1858).
31. Hutchinson to Gage, 1 June 1770, 53–54. “Election kept at Cambridge. This day an Ox was Roasted whole on the Common—a Great many People attended and a Large Company dined at Fanewil Hall.” 203. See also 196. According to Min. Bk. 91: “April 20th [i.e. 21st] The Court is adjourned to Tuesday the 29th of May next at 10 o’Clock a.m. Tuesday May 29th. The Court is further adjourned by writ under the hands and seals of two of the Justices of the Court to Thursday next May 31st at 10 o’Clock A.M.” Paine noted on 29 May: “Supr. Court adjourned to this day. Adjourned to [. . .] by Proclamation Judge Oliver having hurt himself on his Journey so as not to Come and Judge Trowbridge being sick.” Paine Diary. See also 20. On 31 May, the court met according to the adjournment and then adjourned without day. Min. Bk. 91. Hutchinson “was pressed to appoint a special Judge, but . . . utterly refused.” Hutchinson to Israel Mauduit, Dec. 1770, 27 Mass. Arch. 68, 69. Between 21 April and 29 May the court sat at Barnstable and Plymouth. See Act of 12 Feb. 1765, c. 17, 4 734; Act of 26 April 1770, c. 17, 5 44.
32. Hutchinson to Gage, 23 June 1770, 57; Hutchinson to Greenleaf, 22 June 1770, 26 Mass. Arch. 511. At one point, Hutchinson even considered declaring Castle William, the island fort in Boston Harbor, a prison, in order to justify Preston’s transfer there. Hutchinson to Bernard, 20 Sept. 1770, 27 Mass. Arch. 4, 5.
33. Murray to Dalrymple, 27 July 1770, 68; Murray to Dalrymple, 27 Aug. 1770, Letters of James Murray, Loyalist 166–167 (ed. Tiffany and Lesley, Boston, 1901).
34. Dalrymple to Gage, 26 Aug. 1770, 72.
35. “It is said, if he is convicted, he will be pardoned. This will give great uneasiness.” Andrew Eliot to Thomas Hollis, 28 June 1770, 4 (4th ser.) 449, 451–452 (1858).
36. Anonymous to Preston, 20 July 1770, 62; Preston to Gage, 6 Aug. 1770, 65. For Porteous, see .
37. Hutchinson to Gage, 22 June 1770, 56. See, however, Hutchinson to Gage, 12 Sept. 1770, 75, which uses the word “pardon.” See also Hutchinson’s comment:
“The prejudication, . . . in the prayers and sermons of too many of the Clergy is not to be justified. Previous to the trials, the Lieut. Governor had received Instructions to reprieve any, who might be convicted, until the King’s pleasure could be known, and to transmit a state of the facts, as they appeared upon evidence at the trial. This seemed to be sufficient to have saved them from an immediate execution of the sentence.” 31.
38. Hutchinson to Gage, 29 July 1770, 63. See also 34. There is some evidence that the English advice was even stronger than the quotation in the text indicates, and that letters had come to the Town Committee from Alderman Trecothick and former Governor Pownall urging that in case of conviction, the Town itself apply to Hutchinson for a respite. Hutchinson to Hillsborough, 30 Oct. 1770, 26 Mass. Arch. 46.
40. Hutchinson to Bernard, 28 Aug. 1770, 26 Mass. Arch. 540, 541. “I writing my resignation” is Lynde’s diary entry for 10 Aug. 1770. 198. See also Hutchinson to Bernard, 4 Aug. 1770, 26 Mass. Arch. 530, 531.
41. Dalrymple to Gage, 3 Sept. 1770, 74. The petition has not been found. Dalrymple’s letter continues: “There are also some private reasons for his impatience which you will hear of from another channel as I imagine.” For the “reasons,” see note 44 below.
42. “Boston Gazette, 19 March 1770, p. 2, col. 3.
43. Dalrymple to Gage, 3 Sept. 1770, 74.
44. Hutchinson to Gage, 12 Sept. 1770, 75.
“Captain Preston’s reasons were the following, his Lawyers thought it best to bring on his trial because if a verdict was found for him the matter was ended, if the verdict went against him an arrest of Judgment founded on some refinements of the law was to be moved, to which the Court would have agreed. The argument was to have been postponed to the term in March, in the mean time the proceedings would have been reported, and a foundation for a Pardon laid before judgement could be pronounced, the Pardon would have had sufficient time to arrive before March.” Dalrymple to Gage, 24 Sept. 1770, 77–78.
45. Hutchinson to Gage, 12 Sept. 1770, 75; 198 (7 Sept. 1770): “Court adjourned to October.” An account of the court’s itinerary and activities over the next six weeks can be gleaned from 198–199. The court sat at Worcester, Springfield, and Taunton in Sept. and October. Act of 26 April 1770, c. 17, 5 44.
46. 198. See also Boston Evening-Post, 10 Sept. 1770, p. 3, col. 2. The indictment against Preston, all the soldiers, and all the civilians for the killing of Crispus Attucks, and the arraignments thereon are printed as Rex v. Preston, Doc. I. See note 8 above. The reference to “God and the Country” (i.e. “neighborhood”) invoked the right to trial by jury. It might be noted that the indicates that the soldiers were arraigned at the beginning of their trial. See Rex v. Wemms, Doc. I, text at note 2. This seem inaccurate. Paine’s diary entry for 7 Sept. is: “Capt. Thos. Preston and seven Soldiers were arraigned for the murder on March 5th.” (Eight soldiers were arraigned.)
47. Hutchinson to Bernard, 30 March 1770, 26 Mass. Arch. 467.
48. Gage to Dalrymple, 5 Aug. 1770, 63, 64. Dalrymple to Gage, 12 Aug. 1770, 66, 67. The unconventional punctuation obscures the sense of its last few phrases. But a possible meaning is: Auchmuty will probably do less than his best; if this is true of a loyalist, it is even more true of the other lawyers. Auchmuty in a memorial to the Crown years later told of his participation in “the dangerous trial of Capt. Preston, and two under Officers of the customs, all charged with murder.” 14. Presumably, this refers to the civilians’ trial; compare text at note 105 below; it might, however, refer to Rex v. Richardson, No. 59. JA, whatever his attitude, was devoting at least part of his time to preparing for the trials. See 1 352, which indicates that as early as 28 June 1770 he had read and noted the passage from which he was to use with great effect at the beginning of his argument in Rex v. Wemms.
49. Gage to Dalrymple, 19 Aug. 1770, 71. “I am sorry,” Gage added,
“you doubt Mr. Auchmuty’s zeal or good Intentions towards his Client, and should hope he would exert himself in the Cause of Truth with uncommon Zeal, and without Fears or Apprehensions. If you find it Necessary you should encourage him, for very particular Reports are expected to be made of every Circumstance of the Tryal.” 71–72.
50.
“May it please Your Honours we poor Distressed Prisoners Beg that ye Would be so good as to lett us have our Trial at the same time with our Captain, for we did our Captains Orders and if we don’t Obay is Command we should have been Confine’d and shott for not doing of it. We Humbly pray Your Honours that you would take it into your serious consideration and grant us that favour for we only desire to Open the truth before our Captains face for it is very hard he being a Gentelman should have more chance for to save his life then we poor men that is Oblidged to Obay his command. We hope that Your Honours will grant this our petition, and we shall all be in duty Bound ever to pray for Your honours. Dated Boston Goal, October the 24th 1770. Hugh White, James Hartigan, Mathew (his X mark) Killroy.” MB: Chamberlain Coll.
51. William Palfrey to John Wilkes, [?] Oct. 1770, in Elsey, “John Wilkes and William Palfrey,” 34 411, 418, 422 (1943). On 23 Oct., Lynde noted: “To Boston; Court at 3.” 199. The late hour of the convening may have accounted for the one-day adjournment.
52. William Palfrey to John Wilkes, Oct. 1770, Elsey, “John Wilkes and William Palfrey,” 34 411, 423–425 (1943).
53. The jury law, “An Act for the Better Regulating the Choice of Petit Jurors,” 29 March 1760, 4 318, renewed 20 March 1767, 4 920, had expired 1 July 1770. The procedure, simply stated, was that from a list made up by the selectmen, each town drew, at a town meeting, so many names “as there are jurors required by the venire, who shall be the persons that shall be returned to serve as jurors: saving, that if any whose names are so drawn are sick, or otherwise unable to serve at that time, in the judgment of the town, their names shall be returned into the box, and others drawn in their stead.” 4 318. The town meeting of 24 Aug. 1770 had chosen the eighteen men who formed the Boston contribution to the Suffolk County venire, or jury panel. 18 35–36. The Jury Law was revived 15 Nov. 1770, c. 5, 5 86.
54. “The Jury law being expired, the nomination of Jurors is now more in the hands of people than ever before.” Dalrymple to Gage, 26 Aug. 1770, 72, 73.
55.
“This Mode seems equitable, and it was unexceptionably practised, untill the late Times of Confusion: but now, a new Form of Government had been instituted in this Province. They thought it necessary that new Modes of Law should coincide with them. Accordingly, the Select Men of Boston would draw out of the Lottery Box; and if any popular Cause was to be before the Court, and that drawn Juror was not like to serve their Cause, they would make some Excuse for the absent Man, either that he was sick and would not be well, or he was going [on] a Journey or Voyage; and so return his Name into the Box, and draw untill they drew him who was for their Purpose.” 85.
56. Compare the memorandum printed in Rex v. Preston, Doc. III, note 2, which suggests that he challenged fifteen, with Dalrymple to Gage, 25 Oct. 1770, 80, 81, which indicates that he challenged seventeen.
57. When the number of challenges was sufficiently high to exhaust the list of veniremen without completing a jury, the sheriff would call bystanders, or talesmen, one by one, subject to challenge, until the jury was complete. The practice is still observed today. The sheriff of Suffolk County was Stephen Greenleaf (1704–1795), a loyalist, 1 499.
58. The Town Meeting record indicates merely that Dumaresq was chosen one of the eighteen petit jurors and was “excused.” 18 36.
59. See 25, 116, 123, 164; 2 592.
60. See 164; No. 60; AA to JA, 14 April 1776, 1 378, 380 mentions “Hill the Baker” as having been captured aboard a British vessel taken by the privateer John Manley. This was presumably the Elisabeth. See No. 58, note 43.
61. 25.
62. PRO, A.O. 13/44:159. See 116. A further suggestion that the loyalist tendencies of Barrick, Deblois, Dumaresq, Hill, and Wallis predated the trial is the list of jurors set out in Rex v. Preston, note 9. If, as seems likely, the order of names there corresponds to the order of qualification, then those five, being the last names, may very well have been the “friends and most intimate aquaintances” of Preston to which Palfrey referred. They were certainly talesmen, for their names do not appear on the venire selected by the Town Meeting. 18 36. Ironically, the jury statute, note 53 above, required the court on motion to ask every juror, including talesmen, “whether he doth expect to gain or loose by the issue of the cause then depending; whether he is in any way related to either party; or hath directly or indirectly given his opinion, or is sensible of any prejudice, in the cause.”
63. The Chamberlain Collection, MB, contains a capias in an unidentified hand, dated 20 Oct. 1770, requiring Edward Hill, Benjamin Davis, Henry Knox, Joseph Edwards, Benjamin Leigh, John Frost, James Waddell, “Andrew a Negro of Oliver Wendell, Jack a Negro of Dr. Lloyd,” and Theodore Bliss, to appear in court 23 Oct. “to give such Evidence as ye know on Our [i.e. the Crown’s] behalf; on an indictment against Thomas Preston for Murder.” Actually, all except Knox and Bliss testified for the defendant. Another defense witness, Richard Palmes, had as far back as 31 July been put under recognizance to appear. See Boston Gazette, 25 March 1771, p. 2, cols. 1–2. The circumstances of Palmes’ subpoena are mysterious. “In July last,” he was to write in March 1771,
“I had engaged to go a voyage to Newfoundland; had part of my goods on board, intending to sail sometime in August, and on the 31st of July I was stopt and put under recognizance to appear at October court on Preston’s trial. In said term I applied to Samuel Quincy, Esq. then acting King’s attorney, to call me as soon as he could, that I might be released from the recognizance which had so long and detrimentally held me: and was by him informed I was not ’a witness for the Crown’ in that trial, but for the prisoner. Thus was I detained by Capt. Preston’s desire, made to the King’s attorney, and by him directed to the High Sheriff, who when he summoned me, threatned to imprison me in case I refused to enter into recognizance to appear at the trial.” Boston Gazette, 25 March 1771, p. 2, col. 2.
64. William Palfrey to John Wilkes, [?] Oct. 1770, Elsey, “John Wilkes and William Palfrey,” 34 411, 418, 425–426 (1943). On Mein, see Nos. 5 and 12.
65. JA to Jedidiah Morse, 5 Jan. 1816, LbC, Adams Papers, printed in 10 201.
66. Preston to Gage, 6 Dec. 1770, 94, 95. This may refer only to the charges in each case. A clear suggestion that someone did take stenographic notes of the trial comes in the later attempt by witness Richard Palmes to establish that his testimony was not favorable to Preston. See Rex v. Preston, note 12, and note 96 below.
67. See Description of Sources and Documents below.
68. William Palfrey to John Wilkes, 23–30 Oct. 1770, Elsey, “John Wilkes and William Palfrey,” 34 411, 418, 423, 426 (1943).
69. Dalrymple to Gage, 25 Oct. 1770, 80, 81; see also Hutchinson to Hillsborough, 30 Oct. 1770, 27 Mass. Arch. 46.
70. Hutchinson to Gage, 28 Oct. 1770, 81. Hutchinson was still technically the chief justice, although he had not sat since assuming the duties of acting governor. “There had been no instance of the Court’s adjourning during a capital trial,” Hutchinson wrote later,
“but one of the Judges [probably Trowbridge], being in an infirm state of health, prevailed with the rest to agree to it in this case, and having broke through the rule, they might as well make several adjournments as one only, by which means there was more time for examining the great number of witnesses which were produced. The Jury, however, were not suffered to separate, but were obliged to eat and drink and every night to sleep, in a room together, under sworn keepers.” 32.
71. Min. Bk. 91, SCJ Suffolk, Aug. 1770.
72. The insignificance of Quincy’s role suggests that JA’s memory of the interview with Forrest (text at notes 12, 13, above) may be seriously inaccurate.
73. 199–200 (24 Oct. 1770): “Began at 8 Captain Preston’s tryal for murder; sat till 5; Jury kept together all night.” (25 Oct. 1770): “Trial still continued; began on criminal evidence.” (26 Oct. 1770): “Rest Preston’s evidence; Adams finishing.” (27 Oct. 1770): “Auchmuty all day, and adjourned to Monday.” (29 Oct. 1770): “Paine for King finished, and the Court about 4 hours.”
74. “Preston to Gage, 31 Oct. 1770, 82–83. Compare Dalrymple’s earlier doubts of Auchmuty’s talents, note 48 above. On the effectiveness of Auchmuty’s argument, see , Appendix 511 (4th edn., 1864).
75. Peter Oliver to Hutchinson, 27 Oct. 1770, 25 Mass. Arch. 414, printed in 383–384.
76. Boston Gazette, 5 Nov. 1770, p. 2, col. 3; see also Hutchinson to Gage, 28 Oct. 1770, 81, 82. A bill (by Joseph Otis, the jail and courthouse keeper) for the jurors’ and keepers’ expenses “for Bed and Board While Sitting as Jurors on the Case of Captain Thomas Preston” is in the office of the Chief Justice, Municipal Court of the City of Boston (photocopy, Adams Papers Editorial Files). It indicates that, although the keepers ate (and drank) with the jurors, they did not stay overnight with them. The total bill was £17 13s. 9d. lawful money; but the Court of General Sessions of the Peace for Suffolk County only allowed £16 13s. Id. (£1 8d. being deducted “for sundrys over charged”), and even that not until the Oct. term, 1773. This document is an interesting, and somewhat better preserved, companion piece to the bill for the jury’s food and bedding in the next trial, Rex v. Wemms, printed by John Noble in 5 59–60 (1902).
77. Peter Oliver to Hutchinson, 27 Oct. 1770, 25 Mass. Arch. 414, printed in 383–384. Unfortunately Oliver’s minutes have never been found. There is an eight-page booklet in a hand unlike the Judge’s outlining some of the evidence. MHi:Misc. MSS. Most of it pertains only to the soldiers’ trial, and none of it has seemed worth printing here.
78. William Palfrey to John Wilkes, [?] Oct. 1770, Elsey, “John Wilkes and William Palfrey,” 34 411, 418, 424–425 (1941).
79. Preston to Gage, 31 Oct. 1770, 82, 83.
80. Ashford v. Thornton, 1 405, 106 149 (K.B. 1819).
81. 117–118.
82. Preston to Gage, 31 Oct. 1770, 82, 83; Dalrymple to Gage, 1 Nov. 1770, 84. The idea of civil actions had apparently predated the trial. See 91–92.
83. Hutchinson to Gage, 12 Nov. 1770, 88; 200 (20 Nov. 1770): “Adjournment of our Court; new Venires for great trials.”
84. Gage to Hutchinson, 12 Nov. 1770, 88, 89. “The Trial of the Soldiers was assigned for this day, but there being a deficiency of jurors new Venires are issued to the several Towns which will cause a delay of some days.” Hutchinson to Hillsborough, 20 Nov. 1770, 27 Mass. Arch. 54, 55; Hutchinson to Gage, 26 Nov. 1770, 92.
85. Cooper to Paine, 10 Nov. 1770, 23 70. On at least one occasion, Samuel Adams furnished Paine with written comments on the evidence, as well as hints on argument points and trial tactics. S. Adams to Paine, n.d., MHi: Paine Papers.
86. Hutchinson to Gage, 26 Nov. 1770, 92.
88. Boston Gazette, 26 Nov. 1770, p. 3, col. 2. “I do not believe,” Hutchinson had written Major General Mackay, “Preston intended his men should fire. I do not know that he is not to be justified in ordering his men to charge [i.e. load], but they are in general such bad fellows in that Regiment, that it seems impossible to restrain them from firing upon an insult or provocation given them.” Hutchinson to Mackay, 27 July 1770, 26 Mass. Arch. 525.
89. As to the composition of the jury, see Rex v. Wemms, Doc. I. The foreman and at least one other member took notes of the proceedings. Juror Edward Pierce’s notes are set out in Rex v. Wemms, note 4. MHi: Miscellaneous Photostats. The practice is generally forbidden today. See v. Standard Oil Co. et al., 316 F.2d 884, 896–897 (7th Cir. 1963).
90. See Description of Sources and Documents, text at notes 121–127 below and text at note 96. One of the attorneys took rough notes, which have not yet been discovered. “The minutes of the evidence though inaccurately taken by a young lawyer, I will cover that your Lordship may have the first knowledge of them. A correct account of the whole Trial is preparing for the press.” Hutchinson to Hillsborough, 5 Dec. 1770, 27 Mass. Arch. 64–65.
91. In the Chamberlain Collection, MB, there is a summons in Josiah Quincy’s hand, dated 29 Nov. 1770, to Benjamin Davis Jr, James Thompson, and Samuel Chadwell, to appear in court “forthwith” to testify on defendants’ behalf. The constable’s return indicates that service was made 29 Nov., but Chadwell appears never to have testified at all, and the others not until 30 November.
92. 1 291.
93. Hutchinson to Gage, 3 Dec. 1770, 92–93. JA had been elected Boston representative to the General Court on 6 June 1770. 18 33.
94. 31–32.
95. 32–33.
96. JA to Jedidiah Morse, 5 Jan. 1816, LbC, Adams Papers, printed in 10 201. More specific criticism came from witness Richard Palmes, writing in March 1771:
“To judge of the accuracy of Mr. Hodgson in the account of the trial, said to be taken by him, and published by permission of the Court, let the reader compare with his, my minutes of Mr. Bliss’s conversation with Capt. Preston, where I find Preston returning some answer to Bliss, which Mr. Hodgson entirely leaves out, making Bliss rejoin ’God damn ye fire,’ without any immediate provocation. Again, Mr. Hodgson makes me represent Montgomery as sallied back by a piece of ice, or perhaps he stept back: Whereas I never had a tho’t of said piece of ice or frozen snow sallying him back, but declared only, I tho’t he stept back. But to put the matter out of all doubt, Mr. Hodgson goes over the question again, and makes me declare, I was certain, that Montgomery was struck, and sallied back before he fired; Whereas I am certain I never mentioned the word sallied on that examination, nor gave other answer than the above.
“Mr. Hodgson confounds my remembrance in such manner, that I could not determine the difference between a piece of ice and a club, for what purpose this fetch, judge impartial reader!” Boston Gazette, 25 March 1771, p. 2, col. 2.
Palmes’ testimony is set out in Rex v. Wemms, note 19. See also Rex v. Preston, note 62. How the witness came to possess a variant transcript of his own testimony is a question; his motive in publishing it is another mystery, partly illuminated by his comment that “the Sentiments of People seems various concerning the Testimony I gave, relating to the Concern of Capt. Preston, and the Soldiers, in the horrid Massacre of the 5th of March, 1770.” Boston Gazette, 25 March 1771, p. 2, col. 1.
97. JQA in National Portrait Gallery 11, article “John Adams,” quoted by CFA, 2 238 note.
99. See 564. The expression comes from a country lawyer’s legendary advice to his lawyer son: “If the facts are against you, pound the law; if the law’s against you, pound the facts; if both are against you, pound the table.”
100. Paine Diary; Paine Law Notes.
102. 201.
103. 201. Samuel Quincy offered in the absence of Attorney General Sewall “by reason of Ill health,” “to conduct the Trial . . . in Furtherance of the Business of the Court.” S. Quincy to Paine, 16 Dec. 1770, MHi: Paine Papers.
104. Boston Gazette, 17 Dec. 1770, p. 3, col. 1. As to the other defendants, see text and notes 9–10 above.
105. 211, 214. Defense without attorney was the English practice in many cases. See No. 59, note 40. On the possibility of Auchmuty’s participation for the civilians, see note 48 above. Dickerson, “The Commissioners of Customs and the ’Boston Massacre,’” 27 307 (1954) tries to show that this trial, and the conviction for perjury of the French boy, Charles Bourgatte, the Crown’s star witness, represent miscarriages of justice, and that the customs officers were deeply implicated. Dickerson’s theory is that the “five effective shots fired by the soldiers” could not possibly “kill five different persons and wound six others, especially when the fatal bullets were mostly found in the bodies of the victims, and hence could not have passed through them to wound others.” To prove that guns were fired from the Custom House, he points to five depositions of witnesses who saw flashes from the second floor of the Custom House, as well as the ballistic evidence: a bullet in Edward Payne’s doorpost (across the street from the Custom House); two bullets in Crispus Attacks, extracted by Dr. Benjamin Church, who testified—in deposition only, not at the trial—that the wounds were caused by a gun firing from “some elevation”; and a bullet in Samuel Maverick, extracted by Dr. Richard Hyrons, who testified at the trial (see Rex v. Wemms, note 5):
“It seems strange by the direction of the ball, how he could be killed by the firing at the Custom-House; it wounded a portion of the liver, stomach and intestines, and lodged betwixt the lower ribs where I cut it out.” Dickerson does not print Bourgatte’s testimony that only three shots were fired from the Custom House, and that he fired two of them “pointed up the street and in the air” (he also testified, incidentally, that he fired two different guns). 212–213.
At the trial only three witnesses testified on the firing. One was Bourgatte. Of the others, Gillam Bass testified only that, although at the time the soldiers fired “two or three flashes seemed four or five feet higher than the rest,” he “saw no firing from the Custom house, nor any person in the balcony or at the windows. I did not look there.” The third witness, Samuel Drowne, testified explicitly to firing from the second floor of the Custom House; but to prop his credibility the prosecution had to call Timothy White, who, while verifying Drowne’s veracity and understanding, admitted that “Some people” thought Drowne “foolish,” i.e. dull-witted. 211–214.
As to the bullet in Maverick, that is explained by the next phrase in Dr. Hyrons’ testimony, which Dickerson omitted: “The ball must have struck some wall or something else, before it struck him.” Finally, Dickerson neglected the testimony of the witness Danbrook, who said that he saw one bullet fell Attacks and another victim. Rex v. Wemms, text and note 8.
Dickerson concludes:
“In the Richardson-Preston affairs, six persons had been killed and seven wounded. For these crimes Richardson, Preston, seven [an error for eight] soldiers, Edward Manwaring, Charles Bourgatte [actually never indicted for murder], John Munro, and two other employees of the Customs Commissioners had been indicted for murder. Only Richardson was convicted. The same forces that had freed the others pressed for and secured a pardon direct from the King for him. Only Charles Bourgatte was punished—and he for testifying to what went on in the Custom House the night of March 5. Testifying against a customs officer apparently was considered a more serious offense than killing people on the streets of Boston. Sewall and the judges had done a skillful job in enabling the accused participants to escape punishment.” 27 325.
This conclusion, even in the light of the Preston jury’s composition, casts a distorted light on judicial procedure in Massachusetts in 1770. Those accused were acquitted, and Richardson was pardoned, not because of any “skillful job” by sinister “forces,” but because on the law and the evidence any other result would have been wrong. Bourgatte was convicted because, on the evidence that came from the Manwaring trial itself, he had committed manifest perjury. Many people, however, shared the feeling that he should not be punished. “This Day the French Boy and a Charcoal Fellow stood in the Pillory. The French Boy was to have been whipt but the Populous hindered the Sheriff doing his duty.” 213, entry of 28 March 1771. But the full punishment (25 stripes) was executed two days later. Boston Gazette, 1 April 1771, p. 3, col. 2.
106. JA in conversation in 1822, quoted in 29 note. “Benefit of clergy,” an outgrowth of the conflict between the royal and ecclesiastical jurisdictions in medieval England, at first provided that no clergyman would be punished by a secular court but would, upon proving his status, be turned over to the ecclesiastical courts for disposition. As the usual badge of a clergyman was the ability to read, in time anyone who could read could claim clergy, the test imposed being the ability to read Psalm 51, verse 1, the “neck verse.” The statute of 5 Anne, c. 7 (1707) abolished even this test. “Benefit of clergy” survived until 1827, 7 & 8 Geo. 4, c. 28. 439–441; Radcliffe and Cross, The English Legal System 73 (London, 3d edn., 1954). The branding of Kilroy and Montgomery was reported in the Boston Gazette, 17 Dec. 1770, p. 3, col. 1.
“Application was made to the Lieutenant-governor to remit the punishing of burning in the hand especially with respect to one of them, Montgomery who had been knocked down with a club, and provoked to fire, as appeared in the course of the evidence. But it would have had a tendency to irritate the people, and, being of little consequence to the prisoners, it was thought most advisable not to interpose. This Montgomery afterwards acknowledged to one of his counsel that he was the man who gave the word fire which was supposed by some of the witnesses to come from the Captain; that being knocked down and rising again, in the agony from the blow he said Damn you, fire and immediately he fired himself and the rest followed him.” 33; see also 3 , 236.
107. Dalrymple to Gage, 17 Dec. 1770, 97; Dalrymple to Gage, 10 Dec. 1770, 96.
108. The account is set out below:
Sums expended in the defence of Capt: Thos: Preston, Corpl: Willm: Wemyss, & 7 Private men of the 29th: Regiment, on acct: of a prosecution carry’d on against them by the people of Boston, for a Riot on the 5th March 1770.
| To a retaining fee to C: Prestons Lawyers | £10 | 10 | |||
| To Do: to the mens Do: | 10 | 10 | |||
| To a fee for pleading at the tryal to C: Prestons Lawyers | 63 | ||||
| To Do: to the Mens Do: | 42 | ||||
| To an Attorney to assist at their tryal | 10 | 10 | |||
| To an Attorney for taking some affidavits | 3 | 12 | |||
| To certain people employed to enquire about town and collect Affidavits and Evidences | 25 | 10 | |||
| To Summons’s and serving them on 93 Evidences | 13 | 19 | |||
| To Evidences for the time they waited in Court before examin:n | 5 | 19 | |||
| To Joalers fees | 15 | ||||
| To Turnkeys fees and Civility money | 21 | ||||
| To a Clerk at several times | 15 | 7 | 6 | ||
| To small presents to particular people in Boston | 21 | ||||
| To postage of Letters | 2 | 5 | |||
| £260 | 2 | 6 | |||
| To extra: | expences in coming express from Portsmouth to London with Governour Hutchinsons and Comodore Gamblers dispatchs to Government | 4 | 4 | 6 | |
| £264 | 7 | ||||
Enclosure in Dalrymple to Gage, 17 Dec. 1770. 97–98. JA, on the other hand, said years later that his total fee for both cases was 19 guineas. 3 293.
109. JA to Isaac Smith Jr, 11 April 1771, 1 , 75. The King himself bore the cost of at least Preston’s defense. See Hillsborough to Gage, 3 Oct. 1770, 78–79; Hillsborough to Barrington, 18 Jan. 1771, 12 145, MHi.
111. 2 79 (5 March 1773). JA is supposed to have said in 1822: “At the present day, it is impossible to realize the excitement of the populace, and the abuse heaped upon Mr. Quincy and myself for our defence of the British captain and his soldiers: we heard our names execrated in the most opprobrious terms whenever we appeared in the streets of Boston.” 29 note.
112. Massachusetts Spy, 27 Jan. 1774, quoted in Hersey, “Tar and Feathers: The Adventures of Captain John Malcom,” 34 429, 444 (1943).
113. JA to Benjamin Hichborn, 27 Jan. 1787, LbC, Adams Papers, printed in 9 550, 551. At a fairly early date, JA began to look upon the riot as a key incident in the independence movement. See JA to James Burgh, 28 Dec. 1774, 9 352 also printed in 2, ; JA to Mathew Robinson, 2 March 1786, LbC Adams Papers, printed in 8 383, 384; JA to J. Morse, 5 Jan. 1816, LbC Adams Papers, printed in 10 201, 203.
114. JA to James Lloyd, 24 April 1815, MH: Lloyd Papers, LbC, printed in 10 162. Later in the same letter he noted that “I was subjected to almost as bitter exprobrations for creating Washington commander-in-chief, as I had been, five years before, for saving Preston and his soldiers from an unrighteous judgment and execution.” Id. at 166.
115. 29 note. When he submitted his testimonial for Deblois (text at note 62 above), Preston was living at “Merrion St. Dublin.” PRO, A.O. 13/44. JA was in London at various times in 1783–1784, and served as United States Minister there from 1785 to 1788. Chronology, 4 264–266.
116. 2 73, 74 (29 Dec. 1772).
117. Hutchinson to Hillsborough, 30 Oct. 1770, 26 Mass. Arch. 46; Hutchinson to Hillshorough, 20 Nov. 1770, 27 Mass. Arch. 54, 55. See also Henry Young Brown to Hutchinson, 28 Nov. 1770, 25 Mass. Arch. 453, 454, which suggests that “minutes of the Tryal” were circulating in mid-November.
118. See 61 212 (1927–1928).
119. In transcribing the text of the , the editors have silently incorporated all corrections furnished in the “Errata” appended to the 1770 edition.
121. Hutchinson to Hillsborough 5 Dec. 1770, 27 Mass. Arch. 65.
122. S. Quincy to Paine, 16 Dec. 1770, MHi: Paine Papers.
123. Blowers to Paine 30 Dec. 1770, Paine Massacre Notes (loose letter laid in).
124. Oliver to Paine, 3 Jan. 1771, Paine Massacre Notes (loose letter laid in).
125. Paine to Blowers, 7 Jan. 1771, Paine Massacre Notes (loose draft laid in).
126. Memorandum of letters sent about 19 Jan., 27 Mass. Arch. 96.
128. 59 11 (1949).
130. JA to Jedidiah Morse, 1 and 5 Jan. 1816, LbC, Adams Papers, printed in 10 201, 204.
131. 3 (1st ser.) 96 (1855–1858).
132. ; 10 , (3d ser.) 186–203 (1849).
133. Letter in Adams Papers Editorial Files.
134. 10–18.
135. (Phila., 1822) 243–249.