A website from the Massachusetts Historical Society; founded 1791.
close

Browsing: Legal Papers of John Adams, Volume 2


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

Rex v. Ross

DocGroupNo:

1769–1770

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
{ 433 }
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.

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

Author: Adams, John
Date: 1769-12

Adams' Minutes of the Trial1

Suffolk Superior Court, Boston, December 1769

Indictment vs. Lt. Ross and Soldiers
Peter Barber. I had a Warrant from Justice Quincy. Justice fined Riley 5s. I saw 15 or 20 Men all with their drawn swords.
{ 434 }
Lt. Ross came in. Mr. Quincy went on with the Mittimus. Riley said he would not pay nor go to Goal. The Word was go. He attempted to go. I took him by the Collar. He struck me with a broad sword. A whispering and a Messenger sent for Mr. Ross who came. Lt. Ross said Go. And he went. I did not hear such Words as do not go.
Corpl. Finley was there at the Door not in the Room. I saw their broad swords drawn. Arnold and Thornly were there. Cant say I saw these Persons swords drawn.
Jeremiah Belknap. 14 July between 2 and 3 passing thro Dock Square. Saw about a 12 soldiers, I think all with their broad swords. And I heard em say d—n him well wait for him. At the Justices Door. I heard em say d—n him. They shant carry him to Goal at the Justices <the Serjeants Name is> Door. And I swear by G—d he shan't go to Goal. Ross was then in the Justices. Justice said Sir take care of your Men to Ross. He answerd I can do nothing. Riley said I'le go. Barber said you shant go. I seizd Riley, and out at the Door we went, half a dozen broad swords, upon us, and I had 3 fingers cutt.
I did not hear Ross say go or not go. I thought Ross connived, because he held the Door open while Riley passed him.
Dr. Jno. Loring. I saw a Number of Soldiers round Winships Cart, insulting him. <Justice> went.
I heard one of the Soldiers <go> say to another, go fetch Lt. Ross. Ross came. I heard em sware, Riley should not go to Goal. And if the Inhabitants, insulted em they would take their own Satisfaction. I went and told Ross. He said He could not help it.
I cant swear to any one Person. There were about 15 or 20.
Ross gave no orders or Reproof to the Soldiers.
Thos. <Ross> Foster. 1/2 Way between Perrys and Quincys. A Cart. I saw a Number of Soldiers there with their Swords in their Hands. Not drawn. They swore by G[od] Riley should not go to Goal.
Finly said G[od] d—n your blood, and I think I saw him draw his sword. One Grenadier carried the Prisoner off. The Inhabitants Soldiers said seize the Prisoner if you dare. Jackson I saw there, and Thornley. It is clear in my Mind that I saw em, and clear that I saw Finly with a sword in his Hand, and saw his Hand on it attempting to draw it.
R.
Wm. Mills. Saw the Soldiers at the Door. They said he should not go to Goal. A Dozen with swords. Saw a Number with their swords drawn. Arnold. Thornly. They had Bayonetts. They were in the Company with the Soldiers who said he should not go to Goal.
{ 435 }
All in a Bunch, and many said he should not go.
Abraham Hunt. They would be damnd if the Prisoner should go to Goal. Q[uincy] told Ross there was like to be a Rescue. Ross said he could do nothing with em. Rily said he would not pay. I went out and heard the Threats a 2d time. Ross said a 2d Time he could do nothing with em. I saw Ross go towards the Door, and then Riley attempted it too. Barber was knockd down. Q[uincy] told Ross a 3d time to disperse the Men. After the Prisoner was rescued, Ross told the serjeant to take the Men to the Barracks which he did immediately. Ross was in sight of the Blows when struck. Ross was at the Door or in the alley, when Barber was struck, near e[nough] to see. Some of the Grenadiers went off with Riley. Some stayd. Jackson and Finley I knew.
Saml. Downes. Ross said What can I do? I cant help it. Ross said he would go. Riley said he'd go too. Ross said dont go.
Mr. Wm. Greenleaf. In my Chamber I heard an unusual Screaming. Soldiers with their Cutlaces flourishing, to keep off the Inhabitants. And afterwards <had> came down 2 Pair of stairs and went out in the street and then heard Ross say go to your Barraks.
Stephen Greenleaf Jnr. Soldiers insulting the Butcher, and challenging. Those Soldiers drew towards the Door cursing and swearing that Rily should not go to Goal. The Soldiers opend to right and left and Rily went threw. And he saying take me now if you dare. Afterwards Ross came out and said you Rascalls to your Barracks directly. Knew Finley.
Jno. Hicks. I heard 'em at the Door say Mr. Ross will be hear in a Minute. Riley said, if you go, I'le <go> follow and defend myself. Ross said dont go, or stay. Then Riley said again I'le go, and Ross made no Answer. I think I saw Jackson. Saw two soldiers sticking2 the Pavements &c.
Mr. Auchmuty. Mr. Ross's Inactivity, no Proof that he was guilty of a Riot. Nor Proof that he aided, incouraged, and abetted.
1. In JA's hand. Adams Papers, Microfilms, Reel No. 185.
2. Or “striking”? The meaning of this phrase is not clear, but it conveys the idea of the soldiers' making threatening gestures with their weapons.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/