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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0010-0002-0001

Editorial Note

Friction between the Boston garrison troops and the populace produced considerable heat even before the so-called Massacre of 5 March 1770. The present case grew out of one of the more notable episodes, a scuffle in the Boston market on 13 July 1769 between Private John Riley of the Fourteenth Regiment and Jonathan Winship, a Cambridge victualer.
Mystery surrounds the precise origin of die fight, although a deposition by Corporal Samuel Heale of the Fourteenth Regiment (taken almost a year later, and for purposes other than use in court) states that Riley attempted to rescue a boy who was being beaten by a man in the market. According to Heale, first the man, and then Winship started fights with Riley.1
In any event, Winship, the loser, swore out a complaint before Justice of the Peace Edmund Quincy, who promptly issued a warrant on the strength of which Boston constable Peter Barbour brought Riley before the justice. The complaint was read, Riley pleaded guilty, and Quincy, after hearing other testimony, fined him five shillings and costs of eight shillings threepence, sentence being suspended for one day on the undertaking of John Phillips, Riley's sergeant, to be responsible for payment or to see Riley forthcoming on 14 July.2 Riley duly appeared the next day, accompanied by Sergeant Phillips, Corporal Alexander Findley, and Private Jonathan Stevenson, all of the Fourteenth Regiment.3 Because Riley was unable or unwilling to pay his fine, Justice Quincy drew up a mittimus, an order directing Barbour to commit Riley to jail.
Now the stories differ. Barbour testified later that Riley balked and that someone sent for Lieutenant Alexander Ross of the Fourteenth Regiment. On Ross' arrival, and in his presence, a group of soldiers took Riley out of { 432 } the constable's custody4 and hustled him away. Ross, in his later deposition, gave a conflicting version. According to him, Captain Charles Fordyce, Riley's commanding officer, had asked him to intervene with Justice Quincy, whom Ross knew, in order to “compound” or settle (“fix” is a term with more accurate Massachusetts connotations) Riley's case. When Ross arrived at Quincy's, he found the justice making out the mittimus. After a vain attempt to persuade Quincy to lessen the sentence, Ross began (he said) to leave. When Riley tried to follow, Ross “told him in a very peremptory manner by no means to do so.” Riley persisted, was seized by the constable and others, and fought his way free, “notwithstanding my calling to him several times and as long as I could be heard for [i.e. over] the Crowd not to do so.” Ross then pushed through the mob and ordered the soldiers to their barracks.5
The incident created a furor; William Palfrey even reported it to John Wilkes.6 And the day after the riot, the House of Representatives, having heard Barbour and Jeremiah Belknap (who had tried to help Barbour retake Riley), appointed “a Committee to make further Enquiry into the Circumstances . . . and report to the House a State of the Facts,” the same to be then transmitted to Denys de Berdt, Provincial Agent in London, presumably for propaganda purposes.7 The depositions which were taken on 24 July 1769 and printed as part of the “Journal of the Times” are the best known account of the fracas.8
A week after the rescue (the technical term for the unlawful taking of a prisoner out of the custody of an officer) Ross, Sergeant Phillips, Corporal Findley, Corporals William Dundass, Thomas Thornley, and John Arnold, and Privates John Lane and Francis Jackson were called before Boston Justices of the Peace Richard Dana, John Hill, and John Ruddock. After a tongue lashing from Dana, Phillips and Ross were discharged, and the others bound over for the grand jury.9
At the November 1769 adjournment of the August 1769 sitting of the Suffolk Superior Court, Findley, Dundass, Thornley, Arnold, and Jackson were indicted, as was Ross, for assaulting Barbour, for rescuing Riley, for assaulting some of the townspeople who attempted to aid Barbour, and for breach of the peace.10
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The trial took place, apparently, in the middle of December 1769. Internal evidence in the Adams Trial Minutes, below, indicates that Robert Auchmuty was Ross' counsel; Adams' role is uncertain. He may have been participating for the Crown, although his full minutes of the prosecution evidence suggest that he may have been acting for the defense.11
As reported by Adams, the case against the soldiers seems strong, although that against Ross is not so clear-cut. The central issue seems to have been whether or not Ross had participated in the rescue, either directly, by encouraging Riley and the others, or indirectly, by failing to restrain them. On that, the testimony seems uncertain, much of the confusion apparently stemming from the words “go” and “don't go.” Did Ross, when he said “go,” mean “make good your escape,” or did he mean “go to jail”? From the testimony as Adams recorded it, one cannot tell.
The jury did not doubt: it found all the defendants but Dundass guilty, whereupon the court fined each soldier £7 and ordered him to post bond for good behavior.12 Ross' “Lawyer Pleaded an Arrest of Judgment, and was in hopes of bringing on a Fresh Tryal; the former was granted, but I was Bound over for my Appearance.”13 But the court did not sit again until mid-March 1770. By then the “winter of discontent” had bubbled into blood. With Richardson, Captain Preston, the soldiers, and the customs employees on their hands, the judges had neither encouragement nor inclination to invoke the unusual remedy of a new trial for a British officer convicted of interfering with the judicial process. Ross' motion was denied, and he was fined £20 and costs.14
1. Deposition of Samuel Heale, 25 Aug. 1770, 12 Gay Transcripts 51, MHi. This deposition, like others referred to below, was taken as part of what was apparently an effort to collect as much evidence as possible of the antimilitary bias of the Bostonians, and to counter the propaganda effect of the Massacre. See generally the editorial note to Nos. 63 and 64. The ex parte nature of the depositions and the attendant lack of cross-examination seriously reduce their evidentiary value.
2. SF 101575. The recognizance describes Phillips as being of “Capt. Fordice's Company 29th Regt.” SF 89147. Charles Fordyce was, however, a captain in the 14th Regiment. Army List 1769 68. See also deposition of Charles Fordyce, 25 Aug. 1770, 12 Gay Transcripts 45–47, MHi, and deposition of John Phillips, 25 Aug. 1770, id. at 48–50.
3. Deposition of Jonathan Stevenson, 25 Aug. 1770, 12 Gay Transcripts 53–54, MHi.
4. See generally, Adams' Trial Minutes, below. Ross (1742–1827) was to have a distinguished military career, serving as an aide-de-camp to General Lord Cornwallis, representing him in the Yorktown surrender negotiations. He became a general in 1812. DNB ; Charles Ross, Correspondence of Charles, First Marquis Cornwallis 76 note (London, 1859).
5. Deposition of Alexander Ross, 25 Aug. 1770, 12 Gay Transcripts 40–42, MHi.
6. Palfrey to Wilkes, 26 July 1769, printed in Ford, “John Wilkes and Boston,” 47 MHS, Procs. 190, 205–206 (1913–1914).
7. Mass., House Jour. 1769, 83 (session of 15 July 1769).
9. Deposition of Alexander Ross, 25 Aug. 1770, 12 Gay Transcripts 40, 42, MHi. See also deposition of Charles Fordyce, 25 Aug. 1770, id. at 45–47.
10. Ross says the grand jury brought in its true bill in September. Deposition of Alexander Ross, 25 Aug. 1770, 12 Gay Transcripts 40, 43, MHi. But the indictment, SF 101575, is dated 21 Nov. 1769. It was drafted and signed by Attorney General Jonathan Sewall; the foreman of the grand jury was Thomas Brattle, who later on became, briefly, a loyalist. Jones, Loyalists of Mass. 53. On all the recognizances, one of the sureties was William Hill, a baker who had offered his free services to the garrison (and in fact served as the 14th Regiment's baker), id. at 164. The next year he sat as one of Captain Preston's jurors. See editorial note to Nos. 63 and 64, text at note 60.
11. The summons for the witnesses was dated 19 Dec. 1769, but Ross' post-trial recognizance was dated 21 Dec. 1769. SF 101575. In a discussion of mobs some years later, JA referred to this case. “Is not an Assault upon a civil officer, and a Rescue of a Prisoner from lawfull Authority, made by Soldiers with Swords or Bayonets, as bad as if made [by] Tradesmen with Staves?” JA to AA , 6 July 1774, 1 Adams Family Correspondence 126–127.
12. SCJ Rec. 1769, fol. 253.
13. Deposition of Alexander Ross, 25 Aug. 1770, 12 Gay Transcripts 40, 43, MHi.
14. SCJ Rec. 1770, fol. 22.
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