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
“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).
Thus, even if we accept Bourgatte's testimony, we still have only six bullets (the five from the soldiers, plus one from the “Custom House gun” not fired by Bourgatte—twelve bullets, if the weapons were double-loaded) to do all the damage. Even the most incriminating of the outside witnesses (Dickerson prints all their depositions) saw only three flashes from the Custom House. The bullet in Mr. Payne's door does nothing for Dickerson's case either; it very well might have ricocheted, as another bullet, to be mentioned in a moment, did; more important, with regard to the Payne bullet, four men, including Mr. Payne himself, testified at the civilians' trial that they stood opposite the Custom House during the firing, and saw no gunfire of any sort from either the balcony or the windows.
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.
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
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.” Rowe, Letters and Diary
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.