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Browsing: Legal Papers of John Adams, Volume 3


Docno: ADMS-05-03-02-0001-0003

Rex v. Preston

DocGroupNo:

Suffolk Superior Court, Boston

Docno: ADMS-05-03-02-0001-0003-0001

Author: Sewall, Jonathan
Author: Taylor, William
Author: Winthrop, Samuel
DateRange: 1770-03-07 - 1770-09-07

Indictment and Arraignment of Preston, The Soldiers, and The Civilians1

March, 7 September, 1770

Suffolk Ss. At his Majesty's Superiour Court of Judicature Court of Assize and General Goal delivery, begun and held at Boston, within and for the County of Suffolk, on the second Tuesday of March in the Tenth year of the Reign of George the third by the Grace of God of Great Britain, France and Ireland, King, defender of the Faith &c.
The Jurors for the said Lord the King upon oath present, that Thomas Preston Esq. William Wemms Labourer, James Hartegan Labourer, William McCauley Labourer, Hugh White Labourer, Mathew Killroy Labourer, William Warren Labourer, John Carroll Labourer and Hugh Montgomery Labourer, all now resident in Boston, in the County of Suffolk, <not> and <having the Fear of God before their eyes,> Hammon Green Boat-Builder, Thomas Greenwood Labourer, Edward Manwaring Esquire and John Munroe Gentleman, all of Boston aforesaid, not having the Fear of God before their eyes, but being moved and seduced by the Instigation of the devil and their own wicked Hearts, did on the fifth day of this instant March, at Boston aforesaid, within the County aforesaid, with force and arms feloniously, wilfully and of their malice aforethought assault one Crispus Attucks, then and there being in the peace of God and of the said Lord the King, and that the said William Warren, a certain hand gun of the value of twenty shillings, which he the said William Warren then and there held in both his hands charged with Gun-powder and two leaden Bullets, then and there feloniously, wilfully and of his malice aforethought, did shoot off and discharge at and against the said Crispus Attucks, and that the said William Warren, with the leaden Bullets as aforesaid out of the said hand Gun then and there by force of the said Gun-powder so Shot off and discharged as aforesaid, did then and there feloniously, wilfully and of his malice aforethought, Strike, penetrate and wound the said Crispus Attucks in and upon the right Breast a { 47 } little below the <left> right pap of him the said Crispus, and in and upon the left Breast, a little below the left pap of him the said Crispus, thereby giving to him the said Crispus, with one of the bullets, aforesaid, So shot off and discharged as aforesaid, in and upon the right Breast a little below the right pap of him the said Crispus, one mortal wound of the depth of six inches and of the width of one inch, and also thereby giving to him the said Crispus, with the other Bullet aforesaid So shot off and discharged, by the said William Warren as aforesaid, in and upon the left Breast a little below the left pap of him the said Crispus one other mortal wound of the depth of six inches and of the width of one inch, of which said mortal wounds the said Crispus Attucks then and there instantly died; and that the aforesaid Thomas Preston, William Wemms, James Hartegan, William McCauley, Hugh White, Mathew Killroy, John Carroll, Hugh Montgomery, Hammon Green, Thomas Greenwood, Edward Manwaring and John Munroe, then and there feloniously, wilfully, and of their malice aforethought, were present, aiding helping, abetting, comforting, assisting, and maintaining the said William Warren to do and commit the Felony and murder aforesaid, And so the Jurors aforesaid upon their said oath do say that the said Thomas Preston, William Wimms, James Hartegan, William McCauley, Hugh White, Mathew Killroy, William Warren John Carroll, Hugh Montgomery, Hammond Green, Thomas Greenwood, Edward Manwaring, and John Munroe, then and there in manner and form aforesaid feloniously, wilfully and of their malice aforethought did kill and murder the said Crispus Attucks, against the peace of the said Lord the King, his Crown and Dignity.
[signed] Jon. Sewall Atty. pro Do. Rege
[signed] This is a true Bill. Wm. Taylor Foreman
And now the said Thomas Preston Hammond Green Thomas Greenwood, Edward Manwarring and John Munroe, are brought and set to the Bar and arraigned, and upon their arraignment severally plead not guilty, and for Trial put themselves upon God and the Country
[signed] Att. Saml. Winthrop Cler.
To this Indictment the said William Wimms, James Hartegan, William McCauley, Hugh White, Mathew Killeroy, William Warren, John Carrol, Hugh Montgomary, being also brought and set to the bar and arraigned, severally plead not guilty, and for trial put themselves upon God and the country.
[signed] Att. Sam. Winthrop Cler.
1. MB: Chamberlain Coll. See Descriptive List of Sources and Documents. Why, in the original, the names of Hartegan and Killroy were underlined is not clear.
{ 48 }

Docno: ADMS-05-03-02-0001-0003-0002

Author: Adams, John
Date: 1770-10-24

Adams' Notes of Authorities For the Preliminary Argument1

24 October 1770

By the Stat[ute] of Wm. Prisoner intituled to a Copy of the Indictment 5 days and of the Panel 2 days before the Tryal.2 And extended by Equity or by Favour, to Cases of Felony, tho the statute relates only to Treason. Vid. Foster and Hawkins.3
Foster 228. 229.4
Foster 299. §2. bottom, different Indictments to the same Jury.5 272.6
1. Adams Massacre Minutes, MHiMS 1. See Descriptive List of Sources and Documents.
2. An Act for Regulating of Trials in Cases of Treason and Misprision of Treason, 7 Will. 3, c. 3 (1695). “[I]t was enacted, in 1695, that persons indicted for high treason or misprision of treason should have a copy of the indictment five (afterwards extended to ten) days before trial [and of the jury panel two days before trial], and be allowed to have counsel and witnesses upon oath; and that the treason should be proved by two witnesses, either both to one overt act, or each to one of two overt acts of the same kind of treason. In 1708 [7 Anne, c. 21, §11 (1708): An Act for Improving the Union of the Two Kingdoms] the prisoner was also allowed to have a list of the witnesses and of the jury ten days before his trial. In 1702 [1 Anne, St. 2, c. 9, §3 (1702)] it was enacted that in cases of treason and felony the prisoner's witnesses should be sworn, as well as the witnesses for the Crown.” 1 Stephen, History of Criminal Law 416–417.
3. The precise citations to Foster, Crown Cases, and Hawkins, Pleas of the Crown, have not been located.
4. Foster, Crown Cases 228–229 discusses the prisoner's right to a copy of the indictment and the jury panel.
5. Foster, Crown Cases 299:
“A Prisoner whose Case may be brought within the Letter of the Act [2 Jac. 1, c. 8 (1604): An Act to Take Away the Benefit of Clergy for Some Kind of Manslaughter—the so-called “Statute of Stabbing”] commonly is Arraigned upon two Indictments, one at Common-Law for Murder, the other upon the Statute. And if it cometh out in Evidence that the Fact was either Justifiable or amounted barely to Manslaughter at Common-Law, it hath been rarely known that such Person hath been convicted of Manslaughter.”
6. Foster, Crown Cases 272:
“And even in the Case of a sudden Affray where no Felony is committed or Wound given, if a Person interposing to part the Combatants, giving Notice to them of his friendly Intention, should be Assaulted by them or either of them, and in the Struggle should happen to Kill, this, I take it, will be Justifiable Homicide, And on the other Hand, if the Party so interposing, giving such Notice, should be Killed by either of the Combatants, it will be Murder in the Person so Killing. For it is the Duty of every Man to interpose in such Cases for preserving the Publick Peace and preventing Mischief.”
{ 49 }

Docno: ADMS-05-03-02-0001-0003-0003

Author: Paine, Robert Treat
Date: 1770-10-24

Paine's Minutes of the Preliminary Argument1

24 October 1770

Q[uestion] of the <Jury> Prisoner having a Right by Statute of W. to a Copy of the Panel.
Court divided on the question whether the Prisoner not [ . . . ] a list of Jury be a Cause of Chall[enge]. To two of em viz. Jona. Day and Edmund Billings Council on both sides agreed they should not be sworn and no Exception taken.2
Q[uestion] of putting several Homicides into one Indictment.
Q[uestion] of the Rights of the Crown to Challenge.
Object[ion] to previous threats.
@ Trial per Pais 585.3
2.
“Capt. Preston in his Trial challenged peremptorily nineteen Jurors viz. 15 of the Country's Jury, and four talis men; he also challenged two other of the Country's Jurors but by agreement of the Council for the Crown they were not considered as peremptory Challenges by reason that said Preston had not the names of the said two Jurors before he was brot to Trial. N.B. several Talis men were return'd by the Sherif who were excused by the Court for reasons by them offer'd viz. Henry Bromfield Esqr. he having a Commission for the peace, and William Boardman, he having been on the Jury of Inquest and [] Procter he declaring himself under Biass.” Document found in Min. Bk. 91, SCJ Suffolk, Aug. 1770 (adjournment to 23 Oct. 1770), facing entry of Preston's indictment; now in box marked “Loose Papers Found in Minute Books,” printed in Noble, “Papers Relating to Boston Massacre,” 5 Col. Soc. Mass., Pubns. 58, 67 (1902).
The jury, as finally impaneled, was: William Frobisher (foreman), Joseph Trescot, Neal McIntire, Thomas Mayo, Josiah Sprague, Joseph Guild, Jonathan Parker, Gilbert Deblois, Phillip Dumaresque, William Hill, William Wait Wallis, and James Barrick. Min. Bk. 91, SCJ Suffolk, Aug. 1770.
There was no statute governing jury challenges. “An Act Setting Forth General Priviledges,” 13 Oct. 1692, 1 A&R 40, had guaranteed the accused “his reasonable challenges”; but the Privy Council disallowed the Act, 22 Aug. 1695. In England, the accused in any case but treason could challenge twenty jurors peremptorily. See 1 Stephen, History of Criminal Law 302.
Hutchinson's note on this phase of the trial is instructive:
“In general, in criminal trials, the Courts, in Massachusetts bay, had observed the rules of the Common Law. In trials for treason, a peremptory challenge of 35, and, in murder, of 20, had always been allowed, and a challenge of any number besides, for cause. The Juries were regulated by the Province Law, and the practice of the Courts had been, to order about 30 persons, sometimes a few more, to be returned to serve the whole term, and out of these two Juries were formed at the beginning of the Court, and the super numeraries were dismissed. In a case of treason, of which none ever hapned in my memory, a greater number than the whole might be challenged, and in murder, all but four in which cases, ordinarily, a new Venire must have gone to the Towns in the County, as the Court thought proper; but this has not often been urged, and generally, talesmen had been called by the Sheriff.” C. B. Mayo, ed., “Additions to Hutchinson's History” 32.
3. Duncombe, Trials Per Pais 585, treats of returns. The significance is not readily apparent. Page 85, however, discusses the tales, the bystanders added to the panel to supply a deficiency. See Black, Law Dictionary. Paine uses the sign @ here as elsewhere to indicate a refuting argument.
{ 50 }

Docno: ADMS-05-03-02-0001-0003-0004

Author: UNKNOWN
DateRange: 1770-10-24 - 1770-10-25

Anonymous Summary of Crown Evidence1

24–25 October 1770

The King vs Preston On an Indictment for Murder.
Witnesses for the King
Wednesday 24th. Octo. 1770.
Edward Gerrish.
I heard a noise about 8 Clock and went down to Royal Exchange lane. Saw some Persons with Sticks coming up Quaker lane. I said Capt. Goldsmith owed my fellow Prentice. He said he was a Gentleman and would pay every body. I said there was none in the <Army> Regiment.2 He asked for me. I went to him, was not ashamed of my face. He struck me. A Sergeant chased me into Davis's shop and struck into the Shop. The Sentinel left his Post and Struck me. I cried. My fellow Prentice and a young man came up to the Sentinel and called him Bloody back. He called to the Main Guard. A party came without Guns but with naked Swords and about 1/4 of an hour after Capt. Preston came with his Guard. About 20 or 30 People came up Royal Exchange lane. The first Party chased every body they saw. There was not a dozen people when the Sentinel called the Guard.3
Colo. Marshall. About 5 minutes after 9 I left Colo. Jackson, came up Royal exchange lane. All was still. I went home heard the cry of Murder. A great noise. Saw none but the Sentinel. At my door saw a body rushing with naked Swords from the Guard crying Damn them { 51 } where are they, let them come, by Jesus. A like body soon after came up Quaker lane crying fire. I went in heard the Bells Ring and the cry of fire became general. The People kept gathering. I saw no uneasiness with the Centinel. A Party then came down from the Guard I thought to relieve him. I heard one Gun. Thought it was to alarm the Barracks. A little space after another, and then several. I stood within 30 feet of the Centinel and must have seen any disturbance. The first party came partly down Pudding lane and partly round the Town house. The second party crossed the Street and went towards Royal exchange. At the firing none within 12 or 15 feet except on the Wings. It strikes me fully the Soldiers cried fire before the Bells rang. I am not certain. Between the firing the first and second Gun there was time enough for an Officer to step forward and to give the word Recover if he was so minded.4
Thomas Hubbard. About 9 o'Clock I passed by the Centinel. All was quiet, no body round him.5
Ebenezer Hinkley. Just after 9, may be 1/4, heard the cry of fire. When I turned Bowes's Corner, saw the Party going to the Centinel. Heard some body out of the Guard Window cry fire at 'em, Damn 'em, fire at 'em. The party drew up and presented their Bayonets and one started forward, kept pushing his Bayonet at the People to stab 'em. They drew back but came up again on his retiring. I saw a stick, a few pieces of Snow or Snow balls thrown. The stick hit the Soldier and he thereupon fired. Capt. Preston was one of this Party. Ordered them to charge their Bayonets breast high and so remained a few minutes before the stick struck him and then fired immediately. The People before firing said damn 'em they durst not fire, dont be afraid. The People were then before 'em. I dont know that Preston came with them. The 2d Gun about 1/2 minute after the 1st. The 3d about as long after the 2d. The rest immediately one after another. The Snow { 52 } was thrown at the other Men and not at Montgomery. The Captain stood between the People and the Soldiers, I did not see him behind them at all.6
Peter Cunningham. Upon the cry of fire and Bells ringing went into King Street, heard the Capt. say Turn out the Guard. Saw the Centinel standing on the steps of the Custom house, pushing his Bayonet at the People who were about 30 or 40. Captain came and ordered the Men to prime and load. He came before 'em about 4 or 5 minutes after and put up their Guns with his Arm. They then fired and were priming and loading again. I am pretty positive the Capt. bid 'em Prime and load. I stood about 4 feet off him. Heard no Order given to fire. The Person who gave Orders to Prime and load stood with his back to me, I did not see his face only when he put up their Guns. I stood about 10 or 11 feet from the Soldiers the Captain about the midway between.7
Cruikshanks. As the Clock struck 9 I saw two Boys abusing the Centinel. They said you Centinel, damned rascally Scoundrel Lobster Son of a Bitch and desired him to turn out. He told them it was his ground and he would maintain it and would run any through who molested or attempted to drive him off. There was about a dozen standing at a little distance. They took no part. He called out Guard several times and 7 or 8 Soldiers with Swords Bayonets and one with a large Tongs in his hand came. I saw the two Boys going to the Men who stood near the Centinel. They returned with a new Edition of { 53 } fresh Oaths, threw Snow Balls at him and he then called Guard several times as before.8
Wyat. I heard the Bell, coming up Cornhill, saw the People running several ways. The largest part went down to the North of the Town house. I went the South side, saw an Officer leading out 8 or 10 Men. Somebody met the officer and said, Capt. Preston for Gods sake mind what you are about and take care of your Men. He went down to the Centinel, drew up his Men, bid them face about, Prime and load. I saw about 100 People in the Street huzzaing, crying fire, damn you fire. In about 10 Minutes I heard the Officer say fire. The Soldiers took no notice. His back was to me. I heard the same voice say fire. The Soldiers did not fire. The Officer then stamped and said Damn your bloods fire be the consequence what it will. Immediately the first Gun was fired. I have no doubt the Officer was the same person the Man spoke to when coming down with the Guard. His back was to me when the last Order was given. I was then about 5 or 6 yards off and within 2 yards at the first. He stood in the rear when the Guns were fired. Just before I heard a Stick, which I took to be upon a Gun. I did not see it. The officer had to the best of my knowledge a cloth coloured Surtout9 on. After the firing the Captain stepd forward before the Men and struck up their Guns. One was loading again and he damn'd 'em for firing and severely repremanded 'em. I did not mean the Capt. had the Surtout but the Man who spoke to him when coming with the Guard.10
{ 54 }
John Cole.11 I saw the officer after the firing and spoke to the Soldiers and told 'em it was a Cowardly action to kill men at the end of their Bayonets. They were pushing at the People who seemd to be trying to come into the Street. The Captain came up and stamped and said Damn their bloods fire again and let 'em take the consequence. I was within four feet of him. He had no Surtout but a red Coat with a Rose on his shoulder.12 The people were quarrelling at the head of Royal Exchange lane. The Soldiers pushing and striking with their Guns. I saw the People's Arms moving but no Sticks.13
Thursday [25 October 1770]
Theodore Bliss. At home I heard the Bells for fire. Went out. Came to the Town House. The People told me there was going to be a Rumpus with the Soldiers. Went to the Custom house. Saw Capt. Preston there with the Soldiers. Asked him if they were loaded. He said yes. If with Ball. He said nothing. I saw the People throw Snow Balls at the Soldiers and saw a Stick about 3 feet long strike a Soldier upon the right. He sallied and then fired. A little time a second. Then the other fast after one another. One or two Snow balls hit the Soldier, the stick struck, before firing. I know not whether he sallied on account of the Stick or step'd back to make ready. I did not hear any Order given by the Capt. to fire. I stood so near him I think I must have heard him if he had given an order to fire before the first firing. I never knew Capt. Preston before. I can't say whether he had a Surtout on, he was dressed in red. I now know him to be the Man I took to be { 55 } the Officer. The Man that fired first stood next to the Exchange lane. I saw none of the People press upon the Soldiers before the first Gun fired. I did after. I aimed a blow at him myself but did not strike him. I am sure the Captain stood before the Men when the first Gun was fired. I had no apprehension the Capt. did give order to fire when the first Gun was fired. I thought, after the first Gun, the Capt. did order the Men to fire but do not certainly know. I heard the word fire several times but know not whether it came from the Captain, the Soldiers or People. Two of the People struck at the Soldiers after the first Gun. I don't know that they hit 'em. There were about 100 People in the Street. The muzzle of the Guns were behind him. After the first Gun the Captain went quite to the left and I to the right.14
Henry Knox.15 I came up Cornhill. Was told the Soldiers had been fighting with the Inhabitants. Came to the Centinel. Saw him loading his piece. The Boys were damning him and dared him to fire. He snap'd his Gun, as I then thought, but am now inclined to think he did not, seeing no fire in his Pan. There were about 20 or 30 People. One boy swore he would knock him down for snapping his Gun. I saw the Captain coming down with his party. I took Preston by the Coat, told him for Gods sake take care of your Men for if they fire your life must be answerable. In some agitation he replied I am sensible of it. A Corporal was leading them. The Captain stopd with me and the Party proceeded to the Centinel the People crying stand by. The Soldiers with their Bayonets charged pushing through the People in order to make way—make way damn your Bloods. The Captain then left me and went to the Party. I heard the Centinel say damn their bloods if they { 56 } touch me I will fire. In about 3 minutes after this the party came up. I did not see any thing thrown at the Centinel. I stood at the foot of the Town house when the Guns were fired. I heard the People cry damn your bloods fire on. To the best of my recollection the Corporal had a Surtout on. I had none.16
Benjamin Burdick. When I came into King Street about 9 o'Clock I saw the Soldiers round the Centinel. I asked one if he was loaded and he said yes. I asked him if he would fire, he said yes by the Eternal God and pushd his Bayonet at me. After the firing the Captain came before the Soldiers and put up their Guns with his arm and said stop firing, dont fire no more or dont fire again. I heard the word fire and took it and am certain that it came from behind the Soldiers. I saw a man passing busily behind who I took to be an Officer. The firing was a little time after. I saw some persons fall. Before the firing I saw a stick thrown at the Soldiers. The word fire I took to be a word of Command. I had in my hand a highland broad Sword which I brought from home. Upon my coming out I was told it was a wrangle between the Soldiers and people, upon that I went back and got my Sword. I never used to go out with a weapon. I had not my Sword drawn till after the Soldier pushed his Bayonet at me. I should have cut his head off if he had stepd out of his Rank to attack me again. At the first firing the People were chiefly in Royal Exchange lane, there being about 50 in the Street. After the firing I went up to the Soldiers and told them I wanted to see some faces that I might swear to them another day. The Centinel in a melancholy tone said perhaps Sir you may.17
{ 57 }
Fullerton. I came into King Street and saw about 8 Soldiers coming down with an officer. Before this the Centinel was on the Custom house steps and loaded his Gun. I heard some body say fire and there-upon two Guns went off near together, the Soldiers being drawn up round the Sentry Box. The officer was sometimes behind and sometimes between the Soldiers. The Soldiers when they first came struck the People with their Guns in order to clear the way. I heard no Order to load.18
Daniel Calef. I was present at the firing. I heard one of the Guns rattle. I turned about and lookd and heard the officer who stood on the right in a line with the Soldiers give the word fire twice. I lookd the Officer in the face when he gave the word and saw his mouth. He had on a red Coat, yellow Jacket and Silver laced hat, no trimming on his Coat.19 The Prisoner is the Officer I mean. I saw his face plain, the moon shone in it. I am sure of the man though I have not seen him since before yesterday when he came into Court with others. I knew him instantly. I ran upon the word fire being given about 30 feet off. The officer had no Surtout on.20
Robert Goddard. About 9 oClock heard the Bell ring. Ran into King Street. I saw 8 or 9 men coming down pushing their Bayonets damning. The Soldiers came up to the Centinel and the Officer told them to place themselves and they formd a half moon. The Captain told the Boys to go home least there should be murder done. They were throwing Snow balls. Did not go off but threw more Snow balls. The Capt. was behind the Soldiers. The Captain told them to fire. One Gun went { 58 } off. A Sailor or Townsman struck the Captain. He thereupon said damn your bloods fire think I'll be treated in this manner. This Man that struck the Captain came from among the People who were seven feet off and were round on one wing. I saw no person speak to him. I was so near I should have seen it. After the Capt. said Damn your bloods fire they all fired one after another about 7 or 8 in all, and then the officer bid Prime and load again. He stood behind all the time. Mr. Lee went up to the officer and called the officer by name Capt. Preston. I saw him coming down from the Guard behind the Party. I went to Gaol the next day being sworn for the Grand Jury to see the Captain. Then said pointing to him21 that's the person who gave the word to fire. He said if you swear that you will ruin me everlastingly. I was so near the officer when he gave the word fire that I could touch him. His face was towards me. He stood in the middle behind the Men. I looked him in the face. He then stood within the circle. When he told 'em to fire he turnd about to me. I lookd him in the face.22
Obadiah Whiston. A little after 9 I heard the bells Ring—I thought for fire. Met an Engine and help'd drag it along but soon heard the Soldiers were fighting with the Inhabitants. I went down King Street. Heard the Captain call the Guard and say damn your blood why dont you turn out. They came out a Corporal leading them to the Centinel. The officer followed after them. I thought it unusual for an officer to go with the party and followed them and heard the firing but heard no orders nor saw any thing that passed, but afterwards saw several persons dead.23
Diman Morton. Between 9 and 10 I heard in my house the cry of { 59 } fire but soon understood there was no fire but the Soldiers were fighting with the Inhabitants. I went to King Street. Saw the Centinel over the Gutter, his Bayonet breast high. He retired to the steps—loaded. The Boys dared him to fire. Soon after a Party came down, drew up. The Captain ordered them to load. I went across the Street. Heard one Gun and soon after the other Guns. The Captain when he ordered them to load stood in the front before the Soldiers so that the Guns reached beyond him. The Captain had a Surtout on. I knew him well. The Surtout was not red. I think cloth colour. I stood on the opposite corner of Exchange lane when I heard the Captain order the Men to load. I came by my knowledge of the Captain partly by seeing him lead the Fortification Guard.24
Nathaniel Fosdick. Hearing the Bells ring, for fire I supposed I went out and came down by the Main Guard. Saw some Soldiers fixing their Bayonets on. Passed on. Went down to the Centinel. Perceived something pass me behind. Turned round and saw the Soldiers coming down. They bid me stand out of the way and damnd my blood. I told them I should not for any man. The party drew up round the Centinel, faced about and charged their Bayonets. I saw an Officer and said if there was any disturbance between the Soldiers and the People there was the Officer present who could settle it soon. I heard no Orders given to load, but in about two minutes after the Captain step'd across the Gutter. Spoke to two Men—I don't know who—then went back behind his men. Between the 4th. and 5th. men on the right. I then heard the word fire and the first Gun went off. In about 2 minutes the second and then several others. The Captain had a Sword in his hand. Was dressd in his Regimentals. Had no Surtout on. I saw nothing thrown nor any blows given at all. The first man on the right who fired after attempting to push the People slipped down and drop'd his Gun out of his hand. The Person who stepd in between the 4th and 5th Men I look upon it gave the orders to fire. His back was to me. I shall always think it was him. The Officer had a Wig on. I was in such a situation that I am as well satisfied there were no blows given as that the word fire was spoken.25
{ 60 }
Austin.26 I saw one Maccaulley a Grenadier Prime and load. Turnd about. Heard the firing. Saw Maccaulley loading again. Before I turnd 3 Guns were fired and the Molatto was killed. I heard no Orders to Prime and load nor the word given, fire. Mccaulley before any firing struck at me with his Bayonet.27
Langsford. I was talking with the Centinel before the Guard came. Advised him not to fire. Told him they were only boys. He levelled his piece at 'em—took it up again—attempted to go into the Custom house—could not. Called to the Guard who came down. Somebody said place yourselves. Sometime after I heard the word fire given and one Gun was fired on the left and soon after a second on the left. A third on the right if I remember right. I dont know who gave the word fire. There was about 1/2 minute between the first and second Gun.28
Archbald. I know Matthew Killroy was of the party. I see him go down with 'em. He has since told me he fired only Powder. The party was led down by a Non Commission Officer, who I took to be a Corporal with his arms advanced as usual.29
{ 61 }
Isaac Pierce. The Lieut. Governor asked Capt. Preston didn't you know you had no power to fire upon the Inhabitants or any number of People collected together unless you had a Civil Officer to give order. The Captain replied I was obliged to, to save my Centry. You must know it Sir said the Lieut. Governor.30
Joseph Belknap. The Lieut. Governor said to Preston Don't you know you can do nothing without a Magistrate. He answered I did it to save my Men.31
Jonathan Mason. The Lieut. Governor said you are sensible Sir you had no right to fire without a Civil Magistrate or to that effect. Capt. Preston's answer implied that his Men were insulted and abused. I cannot recollect the words.32
1. In an unidentified hand. PRO, C.O. 5:759, p. 711–720. See Descriptive List of Sources and Documents.
2. The correction is in another hand.
3. Paine Massacre Notes:
Ed. Garrick. I left Work 8 o Clock and went down R[oyal] E[xchange] Lane Saw Men with Sticks. I came back with Broders. I then went Round the Town House, I went to the Custom House. Irving came in, we went out, I stood at Ex[change] Corner, I said to 3 men that Capt. Goldsmith was mean and[owed] my Prentice. Centinel said he was a Gentleman. I said none in that Regiment. I said I was not ashamed to shew my face. He struck me with his Gun under my Ear, I cry'd, *Soldiers came up and chase me and Ward with Naked Sword no Guns and Struck it into the Shutter, I went to Murrays Barracks. People gave 3 Cheers. Some had Sticks. Went into King Street Saw the Soldiers go from Guard House to Custom House. I went home.
“*Centinel call'd Main Guard come down, I saw no Snow Balls. Not 12 people in the street when this quarrel began.
“* Soldiers that came from Main Guard chased every Body they Saw Called them Yankees.”
(The asterisks are Paine's, probably for emphasis.)
4. Paine Massacre Notes:
Col. Marshal. Spent Evning at Col. Jacksons. 5 past 9, all quiet as midnight. Centinel in peace went home heard cry of Murder, great noise, listned saw no person in Street but Centinel, Saw a Body of Soldiers march from Main Guard with Cutlasses, and Bayonets crying damn 'em where are they, let 'em come. No person in the Street. I went in. Another Body out of Quaker Lane of Soldiers crying damn 'em where are they, Fire Fire, by Jesus &c. I went in. Bells ringing People collected, Boys came out and cryd Fire, I saw nothing to give the Centinel any uneasiness. I stood within 30 feet of him. I Saw the Party come down from Main Guard. I took it to be the relieving Party. I heard the first Gun, <after> then a 2d. Time enough for an Officer to bid 'em Recover. Near a 100 collected before firing. I saw nothing done to disturb 'em. The Party march'd off with as much leisure as they came down.
“Question by Prisoner. Were they Bayonets or Cutlasses? did you.”
5. Paine Massacre Notes: “Thos. Hubbard. I pass'd the Street by the Custom House. Past 9 o Clock. Centinel all quiet.”
6. Paine Massacre Notes:
Ebenezer Hinkley. Just after 9 o Clock heard the Cry of Fire. I saw the Party come out of the Guard House. A Capt. Cry'd out of the Window fire upon 'em damn 'em. I followed em down before Cus[tom] House door. Capt. Preston was out and commanded 'em. They drew up and charged their Bayonets. Montgomery pushed at the people advancing. In 2 or 3 minutes a Boy threw a small Stick over hand and hit Montgomery on Breast. <Then I heard the word fire in 1/4 minute he fired.> I saw some peices of Snow as big as an Egg thrown. 3 or 4 thrown at the same time of pushing on the other End of the file, before 1st Gun fired. The body of People about a Rod off. People said Damn 'em they durst not fire dont be afraid. No threats, people thin before 'em. I was a Rod from Capt. Preston. Did not hear him give Order to fire, 1/2 minute from 1st Gun to 2d. same to 3d. The others quicker. I saw no people stricking the Guns or Bayonets nor pelting 'em. I saw Preston between people and Soldiers. I did not see him when 1st firing, 1st I saw him he was before the Soldiers.”
7. Paine Massacre Notes:
Peter Cunningham. On Cry of fire, I went down Kingstreet and saw Capt. Preston stand by Main Guard and cry turn out <Main> the Guard I went down and saw Centinel pushing at the Boys, 30 or 40 at that time. The party drew up. In a few minutes Pris[oner] said prime and load. I was in 4 foot of him. He stood before them. They push'd as before. The prisoner put the Guns in an upright posture. Then he was out of sight. Then they fired. The Person who gave order for <firing> priming and load was dress'd in Red, and Sash, no Arms. I was within 5 feet of him. The Soldiers all had Caps. I knew Capt. Preston by Sight very well.”
8. Paine Massacre Notes:
Alexr. Crookshanks. After 9, hearing a noise by Custom House I stop'd 2 Boys quarrelling with Centinel. 12 or 14 men before Centry Box. Boys Swore at Centinel and threw Snow Balls, no body else [did?] any thing. He call'd out Guards. Some Soldiers came down, with Sticks tongs. They struck me. After I had told him I was going home, one said you had better go home for there'll be the Devil to pay in Bloodshed. They were armed with Swords Sticks and tongs. The bells began to ring as I got near old South.
“Centinel said he would maintain his Ground, and would run them thro if they molested.”
9. A surtout was an overcoat; “cloth-colour . . . has been conjectured to be drab or self-colour.” OED.
10. Paine Massacre Notes:
Wm. Wyat. I heard the Bell ring as I thought for fire. I ask'd where it was. By Cornhill people [ . . . ]. I went to Town House. Some hallowing, and crying where are they. I went [south] of T[own] H[ouse] and see an Officer by door. 8 or 10 Soldiers came out Prisoner walk'd at the left with a Stick. Some body took him by Arm and said for G[od's] Sake Capt. <take care> mind what you are about and keep the Soldiers in Order. They drew up. He bid 'em face about and then load. The Officer in Rear, and said divide and keep your Self Clear. They turn'd round and I thought I was in danger and I spoke to em that I was not going to molest 'em.
“100 People, Shouting, they called fire, I then heard some Body say fire and took it to be Prisoner. Some Body called him Capt. Preston. No notice toke of it, then again. Then [the] Prisoner behind Soldiers I think he had a Cloath Coulored Surtot on. Stampt and said damn your blood fire let the consequence be what it will. They fired and people scattered. The last man on left wing started, and he primed again and fired after the People. But few people in King Street when Party went down. 10 minutes from order to load to Order to fire. No abuse offered but Shouting huzzaing.
“I saw no body speak to Prisoner while there.
“After firing one of Soldiers said yes dead enough if he [ . . . ]again I'll be damn'd.
“I thought I heard a Stroke as on a Gun with a Stick, just before firing.
“1st Gun by 2d man on left wing.
“After firing Capt. Preston knockd up Guns and reprimanded em for firing. It was the same Person who gave Orders to fire.”
11. An apparent copyist's error for “Cox.”
12. Battalion officers of the 29th Regiment wore a single epaulette, on the right shoulder. Everard, History of the 29th Regiment 58–59.
13. Paine Massacre Notes:
John Cox. I heard Bells ring as for fire when I got to Mr. Kents the Guns went of[f]. I went down and saw 3 dead. I said to Party it was a Cowardly trick to kill men within Reach of Bayonets, and had nothing in their hands. The People who seemed to stop this evening in [the] street were quarrelling with Soldiers and officer in about a minute said damn your Bloods fire again let the Consequence be what it will, and the Prisoner is the officer. No firing followed. I said dont kill us who are carrying of[f] the Dead. I was within 4 or 5 feet of the Soldiers.
“No body before Soldiers just those who were carrying away the Dead.
“I heard no Threats.”
14. Paine Massacre Notes:
Theodore Bliss. I was in house when bells rung for fire. I went out, got to T[own] House and saw em at Custom house and saw Capt. Preston. I asked him if they were loaded he said yes. I asked if with Ball he made no Answer. They would not fire without any Orders. Snow Balls came at Soldier and hit him near the Head. A Stick thrown three feet long 1 inch thick and hit him. Stagger'd the Soldier, then he fired then I heard the Word fire but I cant say from whom. Capt. Preston [faced?] then from me. A young man ask'd him. The Gren[adier] in the right fired first.
“I did not See any Body aim a blow at Prisoner.
No body closd in till after first Gun. I did not hear Prisoner give order to fire till after first Gun. He was in the front of the men when first Gun fired. After first Gun fired, I rather think Prisoner did not say fire for I was so near him. I aimed at Grena[dier] who first fired. No blows on other Soldiers till 3 or 4 Guns fired.
“I saw Prisoner talk with no body but My Brother, nor any Body Strike him on the Arm.
“Bell rung 1/4 hour before 1st firing.
“Prisoner was length of Gun before Soldiers.
“After 1st firing Prisoner went to left.”
15. Washington's future chief of artillery and secretary of war was at this time a bookseller in Cornhill, Boston. DAB.
16. Paine Massacre Notes:
Henry Knox. I saw Centry loading at Custom house door. I saw some Boys about 20 very imprudent damning him and daring him to fire. I told him if he fired he would dye. They said he snapt. 30 or 40 Boys and people. I saw nothing thrown.
“I saw a Number soldiers coming from main Guard, Arms Sholdiers [thus in MS]. I took em to be Grenadiers, 1/2 way from T[own] H[ouse] to C[ustom] H[ouse] a Corporal at head. I took Prisoner by Coat and desired him to take Care of Soldiers for if they fired he died. Said he was sensible of it. I heard Soldiers damning Swaring crying make way.
“I did not hear Centry Cry for Guard but said damn their Bloods if they touch me I will fire.
“I took Prisoner to have Command of Party. Soldiers drove thro' people pushing Boys. No abuse offered. Centry Scared but in no Danger. I was at Bottom of Town House, and heard the words among the People fire damn your Blood fire.
“Corporal, I think had Surtot on. I had none.”
17. Paine Massacre Notes:
Benja. Burdick. I saw a Number Soldiers stand at Custom House, I ask'd a Soldier are you loaded. I asked another do you intend to fire he said yes by Eter[nal] God and push'd at me. I turn'd to a tall Man. The Word fire and tall Man fell. Called Dr. Gardiner.
“They presented again Officer put the Guns up and said Stop firing.
“I was stop'd by a Soldier from coming up. I said I wanted to see a face I should sware to, Prisoner said in a Melancholly tone perhaps you may. When I ask'd 2d Soldier I saw an Officer behind. Word fire came from behind, as a Word of Command. No Officer before 'em. Dress'd in Regimentals.
“Firing began at Corner.
“At this time but few Boys before the Soldiers chiefly drove into the Alley I had a Highland Broad Sword in my hand which I drew when the Soldier push'd at me. About 50 people running as near Stones House as could to get into the Alley.
“Thought I saw Something thrown over the heads.”
18. Paine Massacre Notes:
Robt. Fullerton. I ran down, people gave 3 Cheers at Murrays Barracks. I saw Soldiers coming down, and begin to strike round. People came into middle of Street, not above 50. I heard fire then fire again, I was about 12 ft. from Soldiers opposite Custom House. People chiefly by Stones. Few People before em. They said they durst not fire.”
19. Waistcoats of officers in the 29th Regiment were plain, without embroidery or lace; hats were laced with silver. Everard, History of the 29th Regiment 59.
20. Paine Massacre Notes:
Danl. Calf. I heard ring for fire. I ran into King Street. I heard the Guns Rattle. Officer gave Order to fire, and then again. I look'd the officer up in face and saw his mouth go. Officer stood to right, Red Coat, plain yellow Westcoat laced Hat. I know Prisoner to be the man.
“I did not see T. Bliss talking there, nor Samuel Bliss, I only run up and did not mind. Some People at his Right Hand. I ran when he gave the word of Command. I saw no Snow Balls nor Sticks thrown. Officer faced the Street.”
21. That is, the witness had identified Preston during the grand jury proceedings in March.
22. Paine Massacre Notes:
Robt. Goddard. I was at home 9 Clock Bells rang for fire. I went into K[ing] Street. Some Body said a man was stabb'd. Soldiers came down, pushing damning. Officer told em to place themselves in half moon. He spoke to Boys about 50 go home. They threw Snow Balls. Officer said fire.
“Some Body struck Capt. on left Arm, he said damn your blood fire. They fired again. He ordered them to load.
“Going home Soldiers from Greens Barracks damn'd me to stand out of Way or they would run me through.
“Officer stood with a Sword drawn.
“No Guns went off till word given. [Space] between first Gun and 2d. Then 8 or 9.
“I saw no Body talking with Prisoner.
“If any Body had been talking to Prisoner I should have seen. I could almost touch him. Pitted with Small Pox <I did not see him> Capt. behind the Soldiers.
“I heard Some Body call the officer Capt. Preston.
“I saw no loading after they got down before firing.”
23. Paine Massacre Notes:
Obadiah Whiston. Heard Bells ring as for fire. I went to K[ing] S[treet]. People gathered, Boy crying. I came to Main Guard, Officer said Damn you why dont you turn out. I followed em, I was behind Crowd in Goal.
“I heard fire a few minutes before the firing.”
24. Paine Massacre Notes:
Dimon Morton. Cry of fire. A few Boys before Centinal, he loaded, Boys said fire, fire and be damn'd.
“Party with an officer, drawn up. Officer gave Word to load. I see the motion to load, I drew off. Officer when he ordered 'em to load stood before 'em. I thought saw some thing thrown, I knew officer Capt. Preston. A Surtot on, I knew his face and Voice, by marching the Guard. Did <not> hear the Word fire, 20 feet off.
I'm sure the Prisoner is the man that gave orders to load. Ive seen him in Com[mon].”
25. Paine Massacre Notes:
Nathl. Fosdick. Bells ring for fire. I went down K[ing] S[treet] saw Soldiers come out of G[uard] H[ouse] fixing Bayonets. I went 30 yds. from Centry. Some thing pushed me. I saw they were Soldiers. They said damn your Blood Stand out of our Way. I see Officer. I did not know his Name. They went to Centry Box. I desired there might be no disturbance for the officer of Day would settle it.
“I saw people talking with Officer, and he then went between Soldiers. I heard the Word fire I think it was the officer. I ask'd the Officer why he let the Soldiers fire but had no answer. They fired. I recieved two pushes with Bayonet which pricked me.
“No Opposition in their coming down.
“When the word fire was given he stept in between 4 and 5 man from right and faced about and stept back.
“I heard no orders for loading and I was so near I must have heard it.
“I was about 8 ft. from Officer.
“I Saw no Snow Balls. Calling fire.
“Nor any Body put hand on Capt.
“Officer in Reg[imental] Dress, no Surtot, Sword in his hand. I stood to their right.
“First man that fired went to push and his feet slipt.
“I saw no Stick Strike the Soldier that fired first. I am satisfyed no Blows as much as that I saw Officer from my Scituation.”
26. Jonathan Williams Austin (1751–1779), who had been clerking for JA since 31 July 1769.
27. Paine Massacre Notes:
Austin. I know McCauley one of the Indicted. I saw him there, prime and load, but not fire. I stept out and they fired. I turn'd round and he was loading again. He struck at me with a Bayonet.
“I heard no Order to load. I confined my self to one Object.
“1st Grenadier was facing Whipping Post.”
28. Paine Massacre Notes:
Edd. Gambleton Langford. I know two of the Party. I told the Centinel not to fire for it was only a parcel of rude Boys. He called out Guard. No assault shouts jeering. Party came down. Some body asked if loaded. Form yourselves, word given fire.
“I saw no Snow Balls nor Sticks thrown. 1/2 minute between 1 and 2 Gun.”
29. Paine Massacre Notes: “Francis Archibald junr. I know Math. Kilroy was there, he told me since he fired nothing but powder.
“No Snow Balls, nor Sticks thrown.”
30. Paine Massacre Notes:
Isaac Peirce. I heard Lt. Governours Voice who spoke to the people. He went to Soldiers, front Rank Bayonets fixed. I called to Capt. Preston and said there was the Comander in Chief. He asked Prisoner if he did not know he could not fire without Civil Officer. He said I was obliged to, to save my Centery. I said then you have murdered 3 or 4 men to Save your Centry.
“I was near Lt. Gov. Capt. opposite to him. Mr. Belnap there.”
31. Paine Massacre Notes: “Jos. Belknap. I came up with Lt. Gov. Soldiers drawn up, Guns pointed, Bayonets fixed. Lt. Gov. said dont you know you could do nothing without a Civil Magistrate. Preston answered I did it to save my men.”
32. Paine Massacre Notes: “Jona. Mason. Standing at E[ast] end of Town [House] with L[ieutenant] G[overnor]. He said you are sensible you had no right to fire without Civil officer. Preston said he was insulted or something like that.”

Docno: ADMS-05-03-02-0001-0003-0005

Author: Paine, Robert Treat
Date: 1770-10-25

Paine's Minutes of Samuel Quincy's Argument for The Crown1

25 October 1770

Mr. Quincy.
3 Inst. 472
4 Black 195. Definition of Murder3
1 Haw. p. 80. §18. What killing of Malice prepense.4
1 H.H. 4515
{ 62 }
F. 261 §36
3 Inst. 627
Key. 127. “He [that] doth a cruel act voluntarily doth it of Malice prepense.”8
2. 3 Coke, Institutes *47, discusses murder, and is paraphrased in the footnote next following.
3. 4 Blackstone, Commentaries *195: “Murder is . . . 'when a person, of sound memory and discretion, unlawfully killeth any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.”
4. 1 Hawkins, Pleas of the Crown 80, c. 31, §18:
“[A]ny formed Design of doing Mischief may be called Malice; and therefore . . . not such killing only as proceeds from premeditated Hatred or Revenge against the Person killed, but also in many other Cases, such as is accompanied with those Circumstances that shew the Heart to be perversly wicked, is adjudged to be of Malice prepense, and consequently Murder.”
5. 1 Hale, Pleas of the Crown 451, discusses malice.
6. Foster, Crown Cases 261, §3, distinguishes murder, manslaughter, and accidental death.
7. 3 Coke, Institutes *62: “Malice prepensed. That is, voluntary and of set purpose, though it be done upon a sudden occasion: for if it be voluntary, the law implieth malice.”
8. Reg. v. Mawgridge, Kelyng 119, 127, 84 Eng. Rep. 1107, 1111 (Q.B. 1707). Quotation marks supplied.

Docno: ADMS-05-03-02-0001-0003-0006

Author: UNKNOWN
DateRange: 1770-10-25 - 1770-10-27

Anonymous Summary of Defense Evidence1

25–27 October 1770

Witnesses for the Prisoner2
William Jackson. On the 5 of March I went to Capt. Preston's lodging. Heard the bell. Ran out. Came down to my shop. Met a man who told me the People and Soldiers were fighting at my corner and he hoped in God would see it out. I returnd to Capt. Preston and told him. A Corporal and private came to Preston's lodgings and told him the Town's People were abusing them. Capt. Preston took his Sword and went with them.3
Edward Hill. A little after 9 I heard the Bells. Came down as far as the Town House. Asked where the fire was. Was told there was none but the Soldiers were killing the Towns People. Some of them said they would take the Centinel off his Post at the Custom house. Capt. Preston went to the Guard house. Took off a Guard. The People came from the Barracks. Some were for going to the Main Guard. Others said no don't disturb them, we will take the Centinel at the Custom house off his Post. I went and told this to a Centinel at the Main Guard. They sent an Officer and Party to the Captain who came down { 63 } with Mr. Basset.4 I was going down towards the Post Office and heard one or two Guns fired. I turnd back. When I got to Jacksons Corner heard two more. Went down towards the Centinel. Saw one Gun fired and the bullet struck on the Stone Wall. After all the firing Captain Preston put up the Gun of a Soldier who was going to fire and said fire no more you have done mischief enough.5
Benjamin Davis. I came into King Street. Saw people about in knots. Some at the bottom of the Town House, some at Jackson's corner. Heard a noise down the Street and saw about 20 or 30 people round the Centinel who stood on the Custom House steps, they crying fire, damn you fire. I saw the Centinels Gun sometimes level and sometimes up. When his Gun was up they closed in, when down retreated. When I was up by the Guard two young men Inhabitants came up. One said you must send a party to the Centinel for I heard some of the People say they would kill him. In about 1/2 a minute somebody within said, out Guard and about seven came out and marched down Street and posted themselves round the Centry Box. There were then about 100 People near the Custom house about the Party. I stood about 6 minutes after this, hearing great noise and huzzaing but could distinguish no words, being up at Price's Office. When I was near the Barracks a young Gentleman came to me and asked me to go help be at the Soldiers. I stood at Price's office during all the firing. I never saw the Captain till all was over. There was about six seconds between the first and second firing. I saw about 9 Soldiers running up Silsbys Alley into the Street. I went into the Street but did not see them there.6
{ 64 }
Friday [26 October 1770.]
Joseph Edwards. I heard the Bells. Came down King street. Saw some Boys about the Centinel abusing him. Advised them to go off. They told me they would. They were calling for others and gave three cheers. There were about 12 or 15 who abused the Centinel. Presently the Guard came and I heard the word prime and load given. I took it the Grenadier on the left hand gave the word. He was dressed in red and had a Gun in his hand for I saw him prime. I stood below the steps on the flat stones and he stood below me. There was a large number of People in the Streets and were gathering.7
John Frost. I heard the Bells and came out. The People in Cornhill said the Soldiers and People were fighting and they had drove the Soldiers into the Barracks. They huzza'd up the Street. I went up and saw two boys and some men about the Centinel. One of the Boys said to the Centinel this is the dog that knockd me down. The body of the People were about two yards off looking at the 2 boys and the Centinel who went to the steps and loaded and struck his Gun against the door, as I took it, to get in. He did not touch the latch. The people in general seem'd to cry damn him he dare not fire. I did not hear the Centinel call for help but saw the Guard come and a man who I took to be the Captain. He had a thing or Plate upon his breast—a Sash on—a Sword in his hand—and Regimentals.8 He stood in the rank three Soldiers on his right. I did not see the Party till drawn up.9
{ 65 }
Benjamin Lee. I heard the Bells ring. Ran out. Came to Dock-square. The People about 30, told me the Soldiers and Inhabitants were fighting. We all ran up into King street and there I saw the two Barbers boys. One of 'em said thats the dog that knock'd me down. Thereupon the People generally cried kill him, kill him, knock him down. Some of them had walking Sticks but not Clubs as Mobs have. There were about 60 People about the Centinel. He ran to the steps and knock'd at the door. After he found he could not get in he Primed and loaded and rested his Gun on his hip. They press'd on. He bad them stand off. They said Damn him he durst not fire. The Centinel then called turn out main Guard. They came and posted themselves about him. I saw Capt. Preston as soon as the Soldiers were ranged. A man went and asked him if he was going to fire. No Sir upon my honor if I can any way avoid it. I knew the Captain by sight and name. He stood to the left of the whole rather behind with his back towards the long Wharfe.10 He had his Regimentals, a hat on, his breast plate and Sash round his body and Sword in his hand. I saw no Snow balls. I went away as soon as the Man spoke to the Captain.11
Richard Palmes. Being at the Coffee House after 9 heard the Bells. Went up King Street. Saw the Centinel walking quietly. Went up by the Town House. People told me the Soldiers at Murrays barracks were abusing the People. I went there saw a number of Officers at the Gate with Guns and People before them about 20 or 30. I ask'd the Officer why they suffered the Men to be out after eight oClock. Do you mean to teach me my duty. No but to remind of it. One of the Officers said the Soldiers are gone into the Barracks, let the People go home. Mr. Lamb said home, home. They went off. I came through the alley with Mr. Hickling. I saw Mr. Pool Spear. I walked with him to the Pump. Somebody there said there was a Rumpus in King Street. I went down. { 66 } When I had got there I saw Capt. Preston at the head of 7 or 8 Soldiers at the Custom house drawn up, their Guns breast high and Bayonets fixed. Found Theodore Bliss talking with the Captain. I heard him say why don't you fire or words to that effect. The Captain answered I know not what and Bliss said God damn you why don't you fire. I was close behind Bliss. They were both in the front. Then I step'd immediately between them and put my left hand in a familiar manner on the Captains right shoulder to speak to him. Mr. John Hickling then looking over my shoulder I said to Preston are your Soldiers Guns loaded. He answered with powder and ball. Sir I hope you dont intend the Soldiers shall fire on the Inhabitants. He said by no means. The instant he spoke I saw something resembling Snow or Ice strike the Grenadier on the Captains right hand being the only one then at his right. He instantly stepd one foot back and fired the first Gun. I had then my hand on the Captains shoulder. After the Gun went off I heard the word fire. The Captain and I stood in front about half between the breech and muzzle of the Guns. I dont know who gave the word fire. I was then looking on the Soldier who fired. The word was given loud. The Captain might have given the word and I not distinguish it. After the word fire in about 6 or 7 seconds the Grenadier on the Captains left fired and then the others one after another. The Captain stood still till the second Gun was fired. After that I turned and saw the Grenadier who fired first attempting to prick me by the side of the Captain with his Bayonet. I had a large Stick in my hand. I struck over hand and hit him in his left arm. Knocked his hand from his Gun. The Bayonet struck the Snow and jarr'd the breech out of his hand. I had not before struck at any body. Upon that I turnd, thinking the other would do the same and struck at any body at first and hit Preston. In striking him my foot slip'd and my blow fell short and hit him, as he afterwards told me, on the arm. When I heard the word fire the Captains back was to the Soldiers and face to me. Before I recovered the Soldier who fired the first Gun was attempting again to push me through. I tossed my Stick in his face. He fell back and I jump'd towards the lane. He push'd at me there and fell down. I turn'd to catch his Gun. Another Soldier push'd at me and I ran off. Returnd soon and saw the dead carrying off and the party was gone. The Gun which went off first had scorched the nap of my Surtout at the elbow. I did not hear the Captain speak after he answered me. Was there but about 3/4 of a minute in the whole. There was time enough between the first and second Gun for the Captain to have spoke to his Men. He stood leaning on the dagger in the scabbard. At the time of the firing { 67 } there was between 50 and 80 People at some distance not crowding upon the Soldiers and thin before them.12
{ 68 }
Theodore Bliss called again. I related an account of the affair to John Coffin.13
{ [facing 68] } { [facing 69] } { 69 }
Matthew Murray. Heard the Bells and ran out and heard what was in King street. I went in and got the handle of a Broom. Went to King Street. Saw no Soldiers. Went to Murrays Barracks. The Soldiers were gone. They bid me go home. Went into King Street, heard the Barbers boy say this is the man struck me with the breech of his Gun. The Centinel went to the steps and loaded. They dared him to fire. The Guard came down. I saw 'em load. Somebody spoke to the Captain and told him he had best withdraw none of the People would interrupt him. I stood next to the Grenadier. Saw a stick or piece of Ice strike him upon his right side. On which he instantly fired and I went off. I heard no order given. I stood within two yards of the Captain. He was in the front talking with a Person, I dont know who. I was looking at the Captain when the Gun was fired. The Soldier stood on the Captains right. I saw two or three Snow balls thrown at the Soldiers before the Gun was fired, but none after for I went off immediately. The Captain had a Sword in his hand. I know not whether he had a Surtout on but believe he had. I know Capt. Preston by sight. The Prisoner is the Man. A Woman crowded by and spoke to the second { 70 } Soldier on the right. I think if the Captain had given orders anything loud I should have heard.14
Andrew a Negro Servant. Hearing the bells ring came out. I met one of my acquaintance at the bottom of School Street holding his Arm. He said the Soldiers had begun to fight and were killing every body. One had struck him with a Cutlass and almost cut his arm off. He advised me not to go. I told him a good club was as good as a Cutlass and he had better go and see if he could not cut too. Went to the Main Guard. Saw two Centinels much enraged with the People who were crying who buys Lobsters. I stood two or three minutes, saw the People, about 20, some with sticks run down by Jacksons corner. We went on towards the whipping Post. Some threw Snow balls at the People round the Custom house. They returnd none. Some boys who stood near the middle of the street said they have got his Gun away and now we will have him. I then heard them give 3 cheers round the Custom house. Then run up to the Town house to see if the Main Guard would not turn out. I went to the corner and 7 or 8 Men came out. Were in a line with an Officer before 'em, with a Sword in his hand, a laced hat on, and a red Coat, and I remember Silver on his Shoulder. They then filed and went to the Custom house. The Men seemed to be in great rage. The Officer was either on the Northerly side of 'em or else before 'em. I was behind them. I did not see the Officer after he passed the corner of the Town house. I stood at Peck's corner. The Soldiers had got down. The People gave 3 cheers. The Boys at Pecks corner kept pelting snow balls over that way. I jumped off a Post on which I stood. Went over. Crowded through. Heard the people halloo here comes Murray with the Riot Act.15 They turned about and pelted { 71 } somebody who ran thro' Pudding lane. I ran to Phillips's corner. I went from thence to try to get to the Custom house and get through the People. When I was at the head of Royal Exchange I heard the Grenadier who stood next the corner say damn your blood stand off, or back. The People without were crowding in to see those within forcing themselves from the Grenadier who was pushing his Bayonet at 'em. A young fellow said Damn you, you bloody back Lobster are you going to stab me. He said by God will 1. A number said come away, let 'em alone, you have nothing to do with 'em. Turning round to see who there was I saw the Officer and two Men were talking with him. Some jumping upon their backs to hear what was said. I heard somebody I took to be the Officer say stand off and something I could not understand. I then heard somebody say Damn him he is going to fire and then they all began to shout, gave three cheers, clapd hands and said Damn them they dare not fire and began to pelt Snow balls at the Soldiers. I saw Snow balls thrown and saw the Soldiers dodging and pushing their Bayonets. I saw several Snow balls hit them. I was crowding to get as near to the Officer as I could. A Person who stood near behind me with trowsers on as the Grenadier pushed at him in his station struck the Gun aside with a long stick. The Grenadier told 'em to draw back. If he had stepd from his Station he might have killed me. I was just out of his reach. Some that stood round me endeavoured to go back. Some people came from Jacksons corner Damn 'em, knock over we are not afraid of 'em. A stout man forced his way through came up between me and the Grenadier. He had a stick in his hand. I saw him strike at the Officer. Persons were talking with him. I saw him dodge and try to fend off the blow with his arm. He then began to strike on the Grenadiers Gun who stood about a yard and a half from the Officer on the right. I saw the Grenadier attempt to stick him with his Bayonet. He put it aside with his left hand, step'd in and gave a lick upon the Grenadiers neck or Shoulder with his Club. It was a cord Wood stick not very long. As he struck I turnd about, looked at the Officer. There was a bustle. The stout man had still hold of the Bayonet. After the Molatto was killed I took him to be the man. While { 72 } I was looking at the Captain the People crowded me on between the Soldiers, upon the Mans having the advantage of the Grenadier, crying kill 'em, kill 'em, knock 'em over. Thereupon the Grenadier step'd back relieved himself and began to pay on the people with his Gun to beat them back. They rush'd back very quick making a great noise or screeching huzzaing and bid the Soldiers fire damn you, you dare not fire. I jump'd back and heard a voise cry fire and immediately the first Gun fired. It seemd to come from the left wing from the second or third man on the left. The Officer was standing before me with his face towards the People. I am certain the voice came from beyond him. The Officer stood before the Soldiers at a sort of a corner. I turned round and saw a Grenadier who stood on the Captain's right swing his Gun and fire. I took it to be Killeroy. I look'd a little to the right and saw a Man drop. The Molatto was killed by the first Gun by the Grenadier on the Captains Right. I was so frightened, after, I did not know where I was. The first place I found myself in was Dehone's entry.16
{ 73 }
Mr. Wendall Master of the Black was Sworn and examined to his Character for the satisfaction of the Court tho' no exception had been taken to it. He has lived with me ten years. His character for truth, integrity and understanding is good.17
Andrew the Black re-examined. The time from my seeing the Guard planted at the Custom house to the 2d gun did not exceed 5 or 6 minutes.18
John Coffin. Theodore Bliss a few days after the affair told me he was in the Street and at the time of the Soldiers firing he spoke to the Captain and asked him if his men were going to fire. The Capt. said no by no means.19
Theodore Bliss again. I do not now remember those words but I gave Coffin an account.20
Jack Negro Servant to Doctr. Lloyd. Hearing the Bells ring I ran { 74 } out and went down to a great many Men by the Custom house. A Snow ball hit me on the head. I went to Stone's door. Heard a gun and saw one man dead.21
Daniel Cornwall. Hearing the Bells ring I ran to King street. Saw a lad who told me a damnd Rascal of a Soldier had struck a Man with a Cutlass. I said where is the damnd villain gone. They gave three Cheers and went to Murrays Barracks. They were not there. Some the People had sticks. I went into a number round the Custom house. Some of them flinging Snow balls and Oyster Shells at the Centinel. Some were for killing him. Some for taking the Sentry Box and burning it. Some for throwing over board. Standing in the middle of the Street saw the Soldiers by the Sentry box. Capt. Preston before 'em. Saw a young man talking with him. I went within two yards of him. He seemed much concerned, but I could not hear any thing. Presently heard a stick come against a Gun—immediately—about 1/4 of a minute a Gun went off. I know not who fired it. Capt. Preston was within 2 yards of me—before the Men—nearest to the right—facing the Street. I was looking at him. Did not hear any order. He faced me. I think I should have heard him. I directly heard a voice say Damn you why do you fire. Dont fire. I thought it was the Captains then. I now believe it but dont know. I then ran away.22
William Sawyer of Bolton a Country Town. Hearing the Bells ring for fire I ran towards the Town house. Came to the Guard. Saw some Soldiers fixing their Bayonets. Saw people down Street. Went. The Soldiers came and faced about. The people closed upon them. They { 75 } stood dallying. I was first on the left Wing but crowded to the right at Excha[nge] lane. The Soldiers were pushing to keep the people off. They came as close as they could. The people kept huzzaing. Damn 'em. Daring 'em to fire. Threw Snow balls. I think they hit 'em. As soon as the Snow balls were thrown and a club a Soldier fired. I heard the Club strike upon the Gun and the corner man next the lane said fire and immediately fired. This was the first Gun. As soon as he had fired he said Damn you fire. I am so sure that I thought it was he spoke. The next Gun fired and so they fired through pretty quick. I ran off as soon as they had fired. Heard a clattering on the pavements and saw a Soldier down. I was in a fright and cant say. I was looking on the man that first fired. I do believe it was the man on the right who had a Gun and am satisfied of it. Others might have said the same but I did not hear them. The people were crying fire. I dont believe the Soldiers did.23
Jane Whitehouse. I live nigh the Centinel. Heard a noise. Went out. Ask'd the Centinel whats the matter. He didn't know. Some people came and said there's the Centinel, the bloody back Rascall, let's go kill him. They kept gathering throwing Snow balls, Oyster Shells and chunks of Wood at the Centinel. Beat him from out of his Box to the steps. A space after saw a party coming from the Main Guard, an Officer which proved to be Capt. Preston with them. He desired his Men to halt and the Centinel to recover his Arm, fall into his Rank and march up to the Main Guard. The Centinel fell in and the men wanted to move forward to the Guard house but could not for the Riot. The people called out fire, damn you why dont you fire, you cant kill us. I steppd to the Party. Heard a Gentleman ask the Capt. if he was going to order his men to fire. He said no Sir by no means, by no means. A Man—the Centinel—then pushed me back. I step'd back to { 76 } the corner. He bid me go away for I should be killed. A Man came behind the Soldiers walkd backwards and forwards, encouraging them to fire. The Captain stood on the left about three yards. The man touched one of the Soldiers upon the back and said fire, by God I'll stand by you. He was dressed in dark coloured Cloaths. I don't remember he had a Surtout or any lace about him. He did not look like an Officer. The man fired directly on the word and clap on the Shoulder. I am positive the man was not the Captain. My attention was fixed on him, for the people said there's the Officer damn him lets kill him. I am sure he gave no orders. I saw the People throw at them. I saw one man take a chunk of wood from under his Coat, throw at a Soldier and knocked him. He fell on his face. His firelock out of his hand. Near the little run of water by the Sentry box. He was the right hand Soldier. This was before any firing. The man recovered himself and took up his firelock. The chunk was thrown a few minutes before the man clap'd the Soldier on the back. The second gun went off about a minute after the first. I didn't hear any body say fire between the first and second Gun.24
It being said that Jane Whitehouse thought there was no obligation from Oaths administred by holding up the hand she was Sworn upon the Bible.25
{ 77 }
Newton Prince a Negro a Member of the South Church. Heard the Bell ring. Ran out. Came to the Chapple. Was told there was no fire but something better, there was going to be a fight. Some had buckets and bags and some Clubs. I went to the west end of the Town House where were a number of people. I saw some Soldiers coming out of the Guard house with their Guns and running down one after another to the Custom house. Some of the people said let's attack the Main guard, or the Centinel who is gone to King street. Some said for Gods sake don't lets touch the main Guard. I went down. Saw the Soldiers planted by the Custom house two deep. The People were calling them Lobsters, daring 'em to fire saying damn you why don't you fire. I saw Capt. Preston out from behind the Soldiers. In the front at the right. He spoke to some people. The Capt. stood between the Soldiers and the Gutter about two yards from the Gutter. I saw two or three strike with sticks on the Guns. I was going off to the west of the Soldiers and heard the Guns fire and saw the dead carried off. Soon after the Guard Drums beat to arms. The People whilst striking on the Guns cried fire, damn you fire. I heard no Orders given to fire, only the people in general cried fire.26
James Woodall was Sworn on the Bible. I came into King Street, saw a great number of People there and a party of Soldiers and an Officer at the Main guard and followed them to the Custom house. The Sentry box was in the Gutter and the Centinel fell in with the Soldiers. They were drawn up. I saw one Soldier knock'd down. His Gun fell from him. I saw a great many sticks and pieces of sticks and Ice thrown at the Soldiers. The Soldier who was knock'd down took up his Gun and fired directly. Soon after the first Gun I saw a Gentleman behind the Soldiers in velvet or blue or black plush trimd with gold. He put his { 78 } hand towards their backs. Whether he touched them I know not and said by God I'll stand by you whilst I have a drop of blood and then said fire and two went off and then the rest to 7 or 8. I stood between Capt. Preston and the Lane. The Captain, after, seemed shocked and looked upon the Soldiers. I am very certain he did not give the word fire. I did not hear the word but once till after all the firing. They said 'twas only Powder and bid them fire. I saw one Person speak to the Captain when the first gun was fired. The people at the time of firing were about 4 yards distant. The Soldiers were in a single rank. The Gentleman behind had a Wigg.27
Joseph Helyer. Hearing the bell ring I repaired to the middle Town. Passed up Cornhill. The Street was still. Went down to the Custom house. Saw some people about the Centinel who was on the steps. Heard some young voices say fire if you dare. Some people came along and told the Boys not to molest the Centinel. I went up King street near the foot of the Town house. Met 8 or 10 Soldiers coming down. I observed a Commission officer with them. I heard a Person say to the Officer you need not or you won't fire upon them, you have nothing to do but to keep them off. The Soldiers went to the Custom house. As soon as they got there I heard a confused noise and went down and found them in a rank intire. Whether 1/2 moon or strait I know not, with their Bayonets charged. Just after I passed the last Man on the left a gun was fired on the right. In about 20 seconds a second. In about 10 seconds a third. The last man but one fired on the left last. I heard no orders. It appeared to me the Soldiers who fired acted pure nature. I mean they acted and fired by themselves because of their being disciplined and fired without orders. I saw no contest between the Soldiers and Inhabitants that could justify their firing and when I saw the men lying in the Street I could not believe they were dead. After the firing the Captain said dont fire upon the Inhabitants. When { 79 } I went to the Custom house there were but about 30. At least about 100 or 60. The Sentry box was not in the Gutter.28
Captain James Gifford.29 About 10 OClock went to the Main Guard and found Capt. Preston. He told me he had sent a Party to Protect the Centinel. That the Mob attacked them so furiously that they fired upon them.
The Prisoner asked did you ever know an Officer order Men to fire with their Bayonets charged: answer no.30
Thomas Handaside Peck.31 I was at home when the Guns were fired. I heard 'em distinct. I went up to the main guard and addressed my• { 80 } self to the Captain and said to him What have you done? He said, Sir it was none of my doings, the Soldiers fired of their own accord, I was in the Street and might have been shot. His character is good as a Gentleman and Soldier. I think it exceeds any of the Corps.32
Harrison Gray junr. About 1/4 after 9 went into the Street and saw about 60 Persons round the Centinel insulting him. I advised 'em to let him alone and told 'em if he had offended 'em that was not the place to resent it. They continued noisy and said damn him let him fire he has but one Gun. I told 'em he was so near the Guard he could have a party presently. They continued very noisy and I went in to Mr. Paine's.33
John Gillespie. About 7 o'Clock, in the forestreet, towards the South end met a number of Inhabitants coming down with Sticks and Clubs. After, was told the Bell rang for fire, but was told by Mr. Freeman there was no fire but the People were fighting somewhere with the Soldiers. Some people said by God lets go to their assistance. Came to the Guard House. Saw a great many People there. Went home and heard the Guns fired.34
Saturday [27 October 1770]
Lieutenant Governor. I suppose I need not mention any thing which preceded my coming into King Street.35 I was pressed by the people { 81 } almost upon the Bayonets. The People cried the Governor. I called for the Officer. He came from between the Ranks. I did not know him by Moon light. I had heard no circumstances. I inquired with some emotion, How came you to fire without Orders from a Civil Magistrate? I am not certain of every word. I cannot recollect his answer. It now appears to me that it was imperfect. As if he had more to say. I remember by what he said or his actions I thought he was offended at being questioned. Before I could have his full answer the people cried to the Town house, to the Town house. A Gentleman by me (Mr. Belknap) was extremely civil. I thought he press'd my going into the Town house from a concern for my safety. I was carried by the crowd into the Council Chamber. After some hours Capt. Preston was brought there to be examined. I heard him deny giving Orders. I am very sure it did not occur to me that he had said anything in answer to my question in the Street which would not consist with this denial. My intention in going up was to enquire into the affair. I have no particular intimacy with Capt. Preston. His general character is extremely good. Had I wanted an Officer to guard against a precipitate action I should have pitched upon him as soon as any in the Regiment.36
The Evidence was ended.
1. In an unidentified hand. PRO, C.O. 5:759, p. 720–736. See Descriptive List of Sources and Documents.
2. At the corresponding point in the Paine Massacre Notes, preceding Paine's minutes of the defense evidence, appears the single word “Adams,” suggesting that it was JA himself who opened for the prisoner, and perhaps even examined the witnesses.
3. Paine Massacre Notes:
Wm. Jackson. I went to house after Store Shut up. I went to my mothers where Capt. Pres[ton] lodged. Fire Cry'd. I run, left Prisoner. Inhabitants of Town told me they were fighting. I wish'd to God they might see it out. Corporal with 5 or 6 Soldiers came and told Prisoner the Town People were abusing the Centry. Prisoner put on his Sword and went out.”
4. James Basset, lieutenant in the 29th Regiment, who was officer of the guard on 5 March 1770, was 20 years old. Everard, History of the 29th Regiment 63, 72. See Rex v. Wemms, text at note 4107.
5. Paine Massacre Notes:
Edwd. Hill. I was in a house by Mr. Deblois, 3 or 4 Soldiers of 29 Regiment. Fire cry'd, I run out. They said no fire but Soldiers killing Town's People. South Side of Town House. I told Guard Some said they would go and take Centry off Posts. They Sent a Corporal and men for Lt. Basset.
“The Party of Inhabitants said they would go and attack main Guard. Some said better not. Better take Centry of[f] his Posts. This Parry was coming from Murrays Barracks. Capt. Preston was engaged with Some Body when the first Bullet was fired. <Some Body> Soldier Attempted to fire at a Boy. Prisoner took him by the Arm and bid him not fire, no more Guns fired.
“I was going to Post office heard Guns fired and turnd about heard two more Guns then I went down.”
6. Paine Massacre Notes:
Benja Davis. 10 m[inutes] after nine coming from No. people Engaged by Jus[tice] Quincy. [Thus in MS.] I could not see if Soldiers or Towns people, Some body clap'd me on sholder and asked me if I would go and help fight the Soldiers. I said no, he bid me note the Clock, he was down to Conduit and Cry'd fire. Presently the Bells rung. Then 7 or 8 Soldiers run thro Alley by Elliots with Something in hands. I went into King Street. No disturbance, people in Knots 5 or 6 together, at Jacksons Corner. Hear huzzaing in King Street, Went by Price. Saw 20 or 30 by Cus[tom] H[ouse] and huzzaing. People hallowed to him fire, you dare not fire. A young officer walking before G[uard] H[ouse]. 2 young men came without Hatts, and said to the Guard they [must] send Relief to the Centry for he heard some say they would murder him. Soon I heard Some Body from within Say out Guards. There came out I think 7. I saw no Officer. They marchd down to Centry Box and people closing near them, I think near 100. 6 or 7 min. before firing 1st Gun. Various Sorts of Noises.
“6 [seconds] between 1st Gun and 2d. 4 [seconds] between 2 and 3d then the rest fired quick.”
7. Paine Massacre Notes:
Jos. Edwards. Heard bells ring, cry of fire, got to Brick Meeting house, they said affray was over. I went below King street. Saw 4 or 5. They grew to 12 Boys insulting Centry. They promised me to go away. I thought they were going till Party came from M[ain] G[uard]. I thought that stopt. Order to prime and load. I see 'em prime and load. I went away. I did not see Capt. Preston.
“I thought the Order to load came from Man on left hand. He had a Red Coat on dress'd in Regimentals, had a Muskett. I see him prime and load. Had Tare [i.e. tear] on Arm. I Stood to E[ast] of Steps, Officer below me. I saw no Body I took to be a Capt.”
8. The officers of the 29th wore silver gorgets and crimson silk sashes. Everard, History of the 29th Regiment 59.
9. Paine Massacre Notes:
John Frost. Bells ringing for fire. Said they had drove Soldiers into Barracks. About 50 in Dock Square. Huzza for King Street. Barbers boy said of Centry this is the Son of Bitch that struck me. Centry went on the Steps and loaded his Gun, I took it he wanted to get in. They said damn you fire. Party came down. Capt. with them had Sash and Gorget and Sword in his hand. I went away. Heard Guns go off. The Capt. 3d man from Right. I did not hear Word to prime and load.”
10. That is, facing west, toward the Town House.
11. Paine Massacre Notes:
Benja. Leigh. Bells ring for fire. Came to Dock Square, said Inhabitants fighting, they huzzad for King street. Barber Boy said there the Son of Bitch that Struck me. People cry'd kill him, kill him knock him down. 30 in Dock Square, about 50 or 60 before Centry at this time. No clubs, but some had Walking Sticks. Centry Struck C[ustom] H[ouse] door with but of Gun. Then loaded, and charg'd Bayonet, and called out turn out Main Guard. Peo[ple] cry'd fire fire damn you durst not fire. Then they fell off a little. The Party came down. I saw Capt. Preston after Soldiers ranged. A man went up to Capt. and said are you going to fire. He said no Sir on my Honor if I can avoid it. I did not hear desire People to stand of[f] nor people hallow. Capt. Preston stood at left of whole, rather behind 'em. He had Reg[imental] Sash, Sword in hand, hat. I then went away, saw no Snow Balls.”
12. Paine Massacre Notes:
Richard Palmes. At Coffee House. Bells rang as for fire. I pass'd by Centry. No Body with him. Said Soldiers were abusing Towns People. I passd by J[ustice] Quin[cy's] thro' Alley. I Saw 3–4 Soldiers at Gate with Guns at Gate of Barracks. 2 Officers. I asked Officers I was Surprised they let 'em be out at that time. They answerd do you mean to teach us our duty. I said no but only to remind 'em of it. Officer said you see Soldiers gone into Barracks why dont you go home. James Lamb and I said [let us?] go home and they went off, 20 or 30, crying home home. I came thro Little Alley, I went thro Alley back with Mr. Hickling. I ask'd if he was going home, I saw Mr. Pool Spear, I went as far as T[own] Pump. Some Body said there was a Noise in King Street, I turn'd to go into K[ing] S[treet]. He said better not, afraid Something would happen. I went to make peace. I went saw Capt. Preston at head of 7. 8. Soldiers by C[ustom] H[ouse] drawn up Bayonet breast high. I found T. Bliss talking with Prisoner. T. Bliss ask'd him why dont you fire. Prisoner made some answer, T. Bliss said G[od]damn you why dont you fire. Then I stept between Prisoner and T. Bliss in front of Soldiers. I put my left Hand on Pris[oner's] Right Sholdier in a familiar manner to Speak to him. J. Hickling was looking over my Sholder, I askd Prisoner are your Soldiers Guns loaded. He said yes with Powder and Ball, I said I hope you dont intend Soldiers shall fire on Inhabitants. His Answer was by no means. That Instant I saw a peice of Snow or Ice not large Strike the Gun of Gren[adier] Montgomery at Prisoner's right Hand, who was only Soldier on his Right Hand. As soon as that he stept one foot back and fired. I then had my hand on Capt. Preston's Sholdier. After this firing I heard the Word fire. (At firing 1st Gun Prisoner stood half way between Breach and Muzzle of the Gun fired.) Who gave the word fire I dont know, whether from before behind or one side of me. On firing the 1st Gun I took my hand of[f], I did not think who gave the Word fire. It was Spoke Loud. Gun going of[f] frightd me and scorched my Surtot on Shoulder and Prisoner might have given the Word I not have heard it. After Word fire in 6 or 7 [seconds]. The next Grenadier to Prisoner's left fired and then it went through the Party. Prisoner stood still till the 2d and 3d Guns fired after 2d Gun fired I saw 1st Gren[adier] trying to prick me. Prisoner then by me with his hand on head of Sword not drawn. I struck him with a Stick on left Arm and dropt it and his Gun fell. I had not before that Struck at any Person. Then I turnd. I struck at 1st I could hit which was Capt. Preston. Guns then all fired. His face turn'd down Street towards Soldiers. My right foot slipt, and my Blow fell short. When I first heard word fire Prisoner's <face> Back to Soldiers and face towards me. Before I recovered, the 1st Gren[adier] recovered and was making at me to push. I threw my Stick in his face which made him jump back and I jump'd toward lane, and he push'd at me again and fell. Prisoner said nothing since his answer to me. On firing People run. I had on a Cloath Colored Surtot.
“1/2 a minute <from> I was there.
“60 or 70 people at time of firing. No disturbance. I saw no Stick.”
In March 1771, Palmes published his own version of his testimony, Boston Gazette, 25 March 1771, p. 2, col. 1:
Court. Please to relate to the Court what you know concerning the 5th of March.
A. Between the hours of nine and ten o'clock, &c. as per Narrative, p. 38. No. 53. [This refers to Palmes' deposition, which the editors have set out at the end of this note.]
Q. Did you hear Mr. Bliss say any thing to Captain Preston? A. I did.
Q. Inform the Court what he said to him.
A. He said to Capt. Preston, 'Why don't you fire?' Capt. Preston made him some answer, but what it was, I cannot say. Then Mr. Bliss returned, God damn you, why don't you fire? Upon this, I stept in between him and Capt. Preston, as related above [that is, in the deposition].
Q. At the time the soldiers fired, did you see a number of things thrown at them?
A. I saw nothing thrown, or touch them, excepting that which struck Montgomery. [Here the printers of the Gazette added the following note: 'Mr. Palmes and Mr. John Hickling both say, that the Piece of ice or frozen snow, which struck Montgomery fell perpendicular—probably from the roof of the Custom-House.']
Q. Did you situate yourself before Capt. Preston, in order that you might be out of danger, in case they fired?
A. I did not apprehend myself in any danger.
Q. Did you hear Captain Preston give the word Fire?
A. I have told your Honors, that after the first gun was fired, I heard the word, fire, but who gave it, I know not.
Q. Do you think it was possible Capt. Preston should give the word fire, and you not be certain he gave it? A. I think it was.”
Palmes' deposition, reprinted from A Short Narrative of the Horrid Massacre in Boston (Boston, 1770), where it appears at pages 38–40 of the Depositions, is as follows:
“(No. 53)
“I Richard Palmes of Boston, of lawful age, testify and say, that between the hours of nine and ten o'clock of the 5th instant, I heard one of the bells ring, which I supposed was occasioned by fire, and enquiring where the fire was, was answered that the soldiers were abusing the inhabitants; I asked where, was first answered at Murray's barracks, I went there and spoke to some officers that were standing at the door, I told them I was surprized they suffered the soldiers to go out of the barrack after eight o'clock; I was answered by one of the officers pray do you mean to teach us our duty; I answered I did not, only to remind them of it; one of them said you see that the soldiers are all in their barracks, and why do not you go to your homes; Mr. James Lamb and I said, Gentlemen let us go home, and were answered by some, home, home; accordingly I asked Mr. William Hickling if he was going home, he said he was, I walked with him as far as the post-office, upon my stopping to talk with two or three people, Mr. Hickling left me; I then saw Mr. Pool Spear going towards the town-house, he asked me if I was going home, I told him I was; I asked him where he was going that way, he said he was going to his brother David's. But when I got to the town-pump, we were told there was a rumpus at the custom-house door; Mr. Spear said to me you had better not go, I told him I would go and try to make peace; I immediately went there and saw Capt. Preston at the head of six or eight soldiers in a circular form, with guns breast high and bayonets fixed; the said Captain stood almost to the end of their guns. I went immediately to Capt. Preston (as soon as Mr. Bliss had left him) and asked him if their guns were loaded, his answer was they are loaded with powder and ball; I then said to him I hope you do not intend they shall fire upon the inhabitants; his reply was, by no means. When I was asking him these questions my left hand was on his right shoulder; Mr. John Hickling had that instant taken his hand off my shoulder, and stept to my left, then instantly I saw a piece of snow or ice fall among the soldiers, on which the soldier at the officer's right hand stept back and discharged his gun, at the space of some seconds the soldier at his left fired next, and the others one after the other. After the first gun was fired, I heard the word Fire, but who said it I know not; after the first gun was fired the said officer had full time to forbid the other soldiers not to fire, but I did not hear him speak to them at all; then turning myself to the left I saw one man dead, distant about six feet; I having a stick in my hand made a stroke at the soldier who fired, and struck the gun out of his hand. I then made a stroke at the officer, my right foot slipt, that brought me on my knee, the blow falling short, he says I hit his arm; when I was recovering myself from the fall I saw the soldier that fired the first gun endeavoring to push me through with his bayonet, on which I threw my stick at his head, the soldier starting back, gave me opportunity to jump from him into exchange-lane, or I must been inevitably run thro' my body. I looked back and saw three persons laying on the ground, and perceiving a soldier stepping round the corner as I thought to shoot me, I ran down Exchange lane, and so up the next into King-street, and followed Mr. Gridley with several other persons with the body of Capt. Morton's apprentice up to the prison house, and saw he had a ball shot through his breast; at my return I found that the officer and soldiers were gone to the main guard. To my best observation there were not seventy people in King street at the time of their firing, and them very scattering, but in a few minutes after the firing there were upwards of a thousand; finding the soldiers were gone I went up to the main-guard and saw there the soldiers were formed into three divisions, the front division in the posture of platoon firing, and I expected they would fire. Hearing that his Honor the Lieutenant Governor was going to the Council-chamber, I went there, his Honor looking out of the door desired the people to hear him speak; he desired them to go home and he would enquire into the affair in the morning, and that the law should take its course, and said, I will live and die by the law. A gentleman desired his Honor to order the soldiers to their barracks, he answered it was not in his power, and that he had no command over the troops and that it lay with Col. Dalrymple and not with him, but that he would send for him, which after some time he did; upon that a gentleman desired his Honor to look out of the window facing the main-guard, to see the position the soldiers were in, ready to fire on the inhabitants, which he did after a good deal of perswasion, and called for Col. Carr and desired him to order the troops to their barracks in the same order they were in; accordingly they were ordered to shoulder their guns, and were marched off by some officers, and further saith not.
[signed] RICH. PALMES.
[signed] “Suffolk, ss. Boston, March 17. 1770. Richard Palmes, above named, after due examination, made oath to the truth of the above affidavit, taken to perpetuate the remembrance of the thing.“Before Ri. Dana, Just. of Peace and of the Quorum. John Hill. Just. Peace.”
14. Paine Massacre Notes:
Mathew Murray. Bells ring. I went out and ran and got handle of Broom. They said Soldiers by Murrays Barracks. Barbers Boy said Soldiers knoct me down with but of Gun. I saw Centry on C[ustom] H[ouse] door landing. People said fire damn you fire, the[y] were at little distance.
“I went R[oyal] E[xchange] alley Prisoner and Party came down. I see 'em load.
“I see a man come to Capt. Preston and said he had best withdraw his Men for no Body was going to do any hurt. I stood 2 or 3 minutes, by Gren[adier]. A Stick or piece of Ice came from Stones and struck Gren[adier]. in Side and im[me]diately, he fired, and I went off. I heard no body bid him fire. 2 yd. of Prisoner nearer the Soldier, looking towards Capt. Preston who Stood talking with Man when Gun went off. He was in front. 2 or 3 Snow Balls before firing thrown at Soldiers. Prisoner had Sword in hand, I dont know if drawn. I dont know if Surtot. or Regimental, I think Surtot. I knew him by Sight before. I saw him in fore noon When going on Guard. Many People, great talking. Did not hear fire. Seem'd in Anger.
“A Woman crowded in by me and talked by the Soldier on right hand.
“If Prisoner had given Order. load I should have heard it.”
15. James Murray (1713–1781), the owner of Murray's Barracks, was also a justice of the peace. Whitmore, Mass. Civil List 131. The Riot Act was copied from the English original, 1 Geo. 1, Stat. 2, c. 5 (1714). “It makes it felony for twelve rioters to continue together for an hour after the reading of a proclamation by a magistrate ordering them to disperse. It then requires the magistrates to seize and apprehend all persons so continuing together, and it provides that if any of them happen to be killed, maimed or hurt in dispersing, seizing, or apprehending them, the magistrates and those who act under their orders shall be held guiltless.” F. W. Maitland, The Constitutional History of England 489 (Cambridge, 1908). See Act of 14 Feb. 1751, 3 A&R 544–546. If Murray, or some other authorized person, had succeeded in “reading the Riot Act” early enough, the actions of Captain Preston and the soldiers would have been much easier to justify.
16. Paine Massacre Notes:
Andrew Servant to Oliver Wendell. Cry of fire. Bells rang. I met one of my Acq[uaintance] bottom of School House Lane. Told me Soldiers were fighting and killing every Body. that one had struck him on Arm with Cutlass and most cut it off. and I had better not go down. I said a good Club was as good as a Cutlass, and he had better get one and go back and see if he could not cut too. He turnd back and went with me and see 2 Centrys at M[ain]G[uard]. Some Boys throwing Snow Balls at them who seemed enraged. Swearing at People. A few people talking with them and some laughing at them and Calling them Lobsters. My Acq[uaintance] said they were trying to get them out of Murry Barracks.
“People from that way turnd down K[ing] S[treet] in haste. Heard 3 cheers in K[ing] S[treet]. We went down by Whipping Post. Some by us threw Snow Balls and Cinders of Seacoal at people. Some returned by C[ustom] H[ouse]. Most of 'em had Sticks, a small Huddle round Centry Box.
“Boys hallowed they had got his Gun away and now they'd have him. I heard 3 cheers round C[ustom] H[ouse]. I went by M[ain] G[uard] to T[own] H[ouse] Steps to see if M[ain] G[uard] would turn out. I see 7 or 8 men turn out and officer with a lace Hat and Sword in hand Red Coat Silver on Shoulder.
“Officer said something to 'em and they march'd. He lead them he did not go behind em. They seem'd in great Rage.
“I stood by Pecks Corner Party got down and planted themselves. People by C[ustom] H[ouse]gave 3 cheers. Boys by Pecks Corner kept pelting Snow Ball. that way. I jump'd of[f] Post and run over to see what Soldiers were about. As I got a glimpse of Soldiers I heard people hallow here comes Murray and the Riot Act. They turn'd about and began to pelt a Man that run thro P[udding]Lane. I <try'd to> get again to Soldiers in front. I got to R[oyal] E[xchange] lane and heard a Gren[adier] next Corner say damn ye stand back. They that were before were trying to get back. A person went to crowd between me and the Bayonet and Gren[adier] made a push at him. The Lad said damn ye blood back'd Lobster are ye going to Stab me. Gren[adier] said By G[od]will 1. Turning round I saw the Officer. Two talking with him, and others jumping on their Backs to hear what was saying. Some Body that I took to be the officer said Stand off. Some Body said come away let the Guard alone. Some Body said in great hurry damn him he is going to fire. They began to shout and 3 cheers and cry damn him he durst not fire, fire and be dam'd, and began to throw Snow Balls and things at Soldiers, I saw the Soldiers dodging their Heads as they were pushing. I saw Several hit their Hatts. I was crowding to get as near officer as I could. People struck Guns with Sticks, and hit Grenadier's Fingers. A person stood near behind me with a long stick and Trowsers Struck at Gren[adier's]Gun who was pushing as I thought endeavoring to kill the person and [ . . . ] to be turning off. Then saw Some people coming from Jacksons who huzzad and said dam em they durst not fire. We ant afraid of them. Knock em over. One of em pretty short man. He push'd his way thro people and came between me and Grenadier close to officer. He had Stick in his hand which he <swing> strike at officer people still talking the officer. Officer dodged and try'd to fend off to[i.e. the?]blow with his Arm. Then he began to thump on Gren[adier']s. Gun who was next [to]officer about 1 1/2 yd. off. I saw the Gren[adier] attempt to stick him, after he struck on his Gun. He started and put by Bayonets and struck the Gren[adier] on head with <Club> Stick. A Small Cord wood Stick. Just then I turnd to look tother Way to look at Off[icer]. There seemed a bustle. The Man kept hold of Bayonet. I took it to be the Molatto man. There seem'd to be a rush behind me. Crowding me as they rush'd in. The Genral cry was by me kill em kill em knock em over. On this the Gren[adier] stept back and relieved himself from him that had hold of his Bayonet, and began Lay on with his Gun. People then give a jump back very quick and made great noise, or Schre[ech]ing, and some huzzaing and saying fire dam him durst not fire. I heard a Voice distinguished from rest Say fire, and that instant a Gun went of[f]. Came from before me. I took it to be a man 2 or 3 below me from left. Officers back then before me. Voice came from below <soldier> Capt. I did not think it to be him. I took it to be a Soldier. Officer made a Corner. On Gun going off Gren[adier] I think Kilroy who stood on Capt. left Swung his Gun and it went off. I looked round and saw the Molatto fall, 1st Gun was down lower and sounded like a Pistol.
“5 or 6 [seconds] from my 1st glimpse to 2d Gun.
“Next I rem[embe]r I was in Dehon Entry.”
17. Paine Massacre Notes: “Oliver Wendell. Andrew my Servant, his Character is good for Truth Integrity and understanding. Can Read and write.”
19. Paine Massacre Notes: “John Coffin. T. Bliss at my home a few days after the firing. He did not think Capt. gave order to fire. Preston said no by no means. They could not fire without my leave.”
21. Paine Massacre Notes:
Jack Servant of Dr. Lloyd. 19 yrs. in Country all time with Dr. Lloyd. Cant read.
“Heard Bells ring, met Andrew, I got to Whip[ping] Post, Saw men and Soldiers by C[ustom] H[ouse]. I went among. Snow Ball hit me. I went to Stones Door. I heard voice fire. I stood back by Barbers Shop. Presently fired. I see a man drop.”
22. Paine Massacre Notes:
Danl. Cornwall. Bells ring. I run to T[own] H[ouse]. Man said a Rascal of Soldier had Cut a Boy on Arm. I ask'd where is the damn'd Rascall gone. Heard 3 cheers, and then run to alley by Murrays Barracks. Then 3 cheers. I went to T[own] H[ouse] and heard 3 cheers by C[ustom] H[ouse] and one advising em to go off. I believe they would if Soldiers had not <gone off> come down. I saw 'em throw Snow Balls and Oyster shells at Centry by C[ustom] H[ouse] door. Some for killing him, taking him burning Centry Box, but did neither. I stood in middle of K[ing] S[treet]. I saw Soldiers by Centry Box and Capt. Preston stood before 2 soldiers. I was in Crowd and did not see them down. I saw a young Man talking with Capt. Preston. I could not see Capt. say any Thing. He seem'd concern'd. Presently I heard a Stick or Something hard come against one of Soldiers Guns. Immediately I heard Gun go off but from what Soldier I could not tell. Not 1/2 [minute]. I think I was then within 2 yds. of Capt. He was before them. I don't think he was then talking with any Body. I was looking at him, I think I should have heard him if he had given word to fire. I heard a voice Say damn you why do you fire dont fire. I think it was Capt. Preston. I stood at head of R[oyal] E[xchange] Lane.”
23. Paine Massacre Notes:
Wm. Sawyer. Of Bolton. Bells rung. I went to T[own] H[ouse]. Cry of fire kept up. Soldiers before G[uard] H[ouse] fixing Bay[onets]. I passed by and see people by C[ustom] H[ouse]. Sold[iers] chall[enged] people to move out of Way. They faced about. People closed. I got to head of R[oyal] E[xchange] Lane. They stood pushing to keep of[f] Inhabitants. They came as close on them as they could. Inhab[itants] chall[enged] crying fire, huzza. Snow Balls. I think they hit Soldiers. A club hit one of their Guns and they fired. The Corner man I think said fire and fired. As soon as he fired he said again damn you fire. I was [10?] feet off. I think it was not the man whose Gun was struck with a Club. In 6 [seconds] next Gun fired and so thro. I was in a fright. When 1st Gun fired I cant say I was looking on Soldier who fired 1st.
I think it was he, it look'd reasonable for he was the 1st who fired. I did not see Capt. What other witnesses [say] do not make me doubt. I was on a line with 'em.”
The following testimony appears only in the Paine Massacre Notes:
Joseph Williams. I know nothing about firing.”
24. Paine Massacre Notes:
Jane Whitehouse. I living near head of R[oyal] E[xchange] Lane. I ask'd Centry what noise was. People coming from T[own] H[ouse] said there is the Centry there is the bloody hacked Son of a Bitch let us go kill him. They keep coming along throw Oyster Shells chunks of Wood and Snow Balls at Centry, and beat him from Box to C[ustom] H[ouse] Steps. Then I saw a Party coming down from M[ain] G[uard]. I did not hear him call and an Officer with them which proved to be Capt. Preston. He bid em halt. He bid his Centry recover his Arms—fall in and march up to G[uard]H[ouse]. The Soldiers offered to move forward but could not for the Riot for they called out damn you Sons of Bitches fire you cant kill us all. I stept a little advancing and heard a Gentleman ask Capt. if he was going to fire, he said no Sir by no means by no means. Then Centry push'd me back and bid me go home or I should he killed. I stopt at end of C[ustom] H[ouse] where Centry put me. A man walked between C[ustom]H[ouse]and Soldiers and encouraged the Men to fire. Capt. Preston was to left of Soldiers when he said by no means, near in a line about 3 yd. from Lane. The man that encouraged the men to fire clap'd one Man on back and said fire by God I'll stand by you. Dressed in dark coulored Cloaths. Did not look like an Officer. Upon that the man fired directly, it was not Capt. Preston, he did not give word to fire. I was in 1 1/2 yd. of him. I must have heard if he gave orders to fire, for my attention was on him by People saying Their is their Officer dam Son of Bitch let us go kill him. I see one Man take a Stick from under Coat and throw at a Soldier and knock'd him down, a thick Chunk of Wood, he fell across the Gutter and his firelock fell out of his hand, the right hand Soldier, before Gun were fired. Between first Gun and 2d did not hear word fire nor see any Body speak with Capt.
25. A statute specified, as to “Tryals in Civil Causes,” that “no person serving as a justice, juror, witness or otherwise, shall be required to use any other ceremony in takeing of their respective oaths than lifting up the hand, as has been accustomed.” Act of 12 June 1702, I A&R 464, 465. Apparently the same rule applied in criminal causes.
26. Paine Massacre Notes:
Newtown Prince. From [ . . . ] in W[est] I[ndies]. Ch[urc]h member, free Negro.
“I heard Bells ring, people said something better than fire. I got as far as T[own] H[ouse]. Number of People by W[est] Door of T[own] H[ouse]. I see Soldiers come out of G[uard] H[ouse] and run down to C[ustom] H[ouse] Bay[onets] fixed. Co. [Company?] by T[own] H[ouse] said let us tack [attack?] M[ain] Guard or Centry down to C[ustom] H[ouse]. Others said no dont let us, let us Attack the Centry gone down into K[ing Street].
“They went down K[ing] S[treet]. I went after em. Soldiers round C[ustom] H[ouse] 2 deep. Number in front of Soldiers calling 'em Lobsters, dam you why dont you fire. Capt. Preston came out of Rear and stood in front. I knew him and that he was Capt. of Guard this day. I see him talk with some people, some had Clubbs, and struck the Guns with sticks. Capt. Preston was to the Right 1 1/2 yds. from Corner. I thought the Guns would go off accidentally. I stepd out of the way and then Guns went off. I heard no Body give word to fire only general Cry of Fire.
27. Paine Massacre Notes:
James Waddel. Sworn on Bible. People said it was fire. I followed down to K[ing] S[treet]. Standing at M[ain] G[uard] door I saw party of Soldiers. The[y] went to Centry who fell in with them. They drawed up in a Circle. First thing I saw was a Soldier knock'd down and his Gun flew out of his hand. They threw Sticks and every thing else thrown at Soldiers. When knocked down he gets his firelock up and fires directly. I saw a person like a Gentleman walking behind the Soldiers, dress'd in blue or black Velvet or plush mounted, trimmed with Gold or Silver Lace. Bag wigg on. He offered his hand on a Soldiers back and said he would stand by them while he had a drop of Blood in his Body and said Fire. The first Gun went off before and immediately after his so speaking they fired. I was between Capt. Preston and End of a lane 2 yds. from him. I am certain and sure Capt. Preston did not give the word fire. He looked shock'd and lifted up his hand on their firing. A person speaking with Capt. at firing of 1st Gun. People 12 or 14 yds. from Capt. Preston at 1st firing. Capt. Preston at End of[their?]left.”
28. Paine Massacre Notes:
Joseph Helyer. Bells rang. People at Conduit. People said a fight, dangerous to pass up. Street was still, people at Custom House, Soldier on C[ustom] H[ouse] Steps in threatning posture, heard Voice from Small people fire if you dare. People of more years told Boys not to molest Centry. It seem'd to Subside. I was about going off for I went to prevent mischief: a Gentleman came up R[oyal] E[xchange] lane, was opposed by a Soldier, the point of Bayonet touch'd his Hat. I think it was Hurd the Engraver. [Nathaniel Hurd (1730–1777); subject of a Copley portrait. DAB.] About 1/2 way between C[ustom] H[ouse] and T[own] H[ouse] I met 8 Soldiers coming down. I saw a Com[missio]n[ed] off[icer] with 'em. Heard Some Body addressing the off[icer] in this Manner you wont fire upon them you have nothing to do but to keep em off. No answer. I thought at 1st sight it was one of the Men of C[ustom] H[ouse] and that he had been to call em. They went to Centry Box, confused Noise. I went to C[ustom] H[ouse] found Soldiers drawn up charged Bayonets. As I pass'd the last man on left a Gun was fired on the right about 20 [seconds] another 10 [seconds] another 3 [seconds] or 4 [seconds], 3 or 4 Gun 20 [seconds] more another, last Gun fired on an Angle. No Body before him he seem'd to fire at People on other Side of the Way. No Orders given to fire. The Soldiers seem'd to act pure Nature i.e. no Body coming towards 'em; I thought no order because they fired Scattering. I saw no Contest that could Occasion such an Action. After they were dead I could hardly believe it, because there was a Commiss[ioned] Officer. I heard noise like locking firelocks. Capt. stept before them and said dont fire on Inhabitants. I was nearly connected with one that was killed vizt. Maverick. Firing began at Right, last Gun, last man but one on left. No Crowding nor any thing that could occasion it. Confusion of Tempers. Watch Box just above Gutter, about Corner. People Covered Soldiers, but clear in the front.”
Following this in the Paine Massacre Notes appears the notation: “Sargt. Jos. [Keys]. Not sworn.” The Sergeant's regiment is not known.
29. 14th Regiment. Army List 1770 68. Gifford (1740?–1813) was later to become a noted Unitarian writer; his son was Admiral James Gifford (1768–1853). DNB.
30. Paine Massacre Notes:
Jas. Gifford. A short Conversation with Prisoner after the affair. At G[uard] H[ouse] I found Prisoner who said Centry attack'd by Mob. He carried down a party. Had rec[eive]d a blow on his Arm, that they had fired. He gave 'em no Orders and they must take the Consequence.
“I have known him 3 yrs. mild Temper'd, prudent, discreet. Officers never give Order to fire from charged Bayonet. They would all have fired together, or most of them.”
31. The “leading fur exporter of the province,” and grandfather of Thomas Handasyd Perkins, who became “the first of Boston merchants, both in fortune and in public spirit.” S. E. Morison, The Maritime History of Massachusetts 49 (Boston, 1921). T. H. Perkins remembered viewing the bodies of the men killed in King Street. See T. G. Cary, Memoir of Thomas Handasyd Perkins 7 (Boston, 1856).
32. Paine Massacre Notes: “Thos. H. Peck. Lt. Gov[ernor] in Coun[cil] Cham[ber]. Capt. Preston said to me it was none of my doings the Soldiers fired without my Orders. I might have been shot as well as the Men, his Cha[racter] good as a Gentleman and a Soldier.”
33. Paine Massacre Notes: “Har. Gray junr. I saw Centry Surrounded, noise and confusion. I think I saw a Snow Ball. The[y] hallowed let em fire he has but one Gun. I went to Paynes.” “Payne” was Edward Paine, “a Merchant of the Town” who was shortly thereafter “shot in his arm and the bone splintered as he stood at his door,” across King Street from the Custom House. Hutchinson to Gage, 6 March 1770, Adams, New Light 14.
34. Paine Massacre Notes:
John Gallispe. Going up to S[outh] End. I saw people coming down with Swords and Sticks 7 oClock.
“We were told Bell rung for fire. Landlord said it was not.
“I went down. 100 people just above Guard.”
The following testimony appears only in the Paine Massacre Notes:
Capt.[  Brabazon]OHara[14th Regiment.]Army List 1770[68]. Comm[andin]g Officer appoints the place of Centry. One placed at C[ustom] H[ouse]. Officer of day cant move the Centry from place. Centry placed at C[ustom] H[ouse] for its safety.”
35.
“[J]ust before ten o'clock, the bells of the town were rung as is usual in case of fire, but I soon found there was another cause and one upon another came running to my house to inform me that, unless I went out immediately, the whole Town would be in arms and the most bloody scene would follow that had ever been known in America. I went immediately abroad, and met vast crowds of People running for their arms and prevailed on them to turn back and follow me to King street, promising them justice should be done.” Hutchinson to Gage, 6 March 1770, Adams, New Light 14.
See also 3 Hutchinson, Massachusetts Bay, ed. Mayo, 194–196; C. B. Mayo, ed., “Additions to Hutchinson's History” 18.
36. See text at note 4134 below.

Docno: ADMS-05-03-02-0001-0003-0007

Author: Adams, John
Date: 1770-10

Adams' Notes of Authorities for His Argument for the Defense1

October 1770

Captn. Prestons Case.
2. H.H.P.C. 290. Tutius Semper est errare in acquietando, quam in puniendo ex Parte misericordiae, quam ex Parte Justitiae.2
305. Tutius erratur ex Parte mitiori.3
1. H.H.P.C. 509. The best Rule is in Dubiis, rather to incline to acquittal than Conviction.4
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300. quod dubitas, ne feceris, especially in Cases of Life.5
2. H.H.P.C. 289. In some Cases presumptive Evidences go far to prove a Person guilty, tho there be no express Proof of the Fact to be committed by him, but then it must be very warily pressed, for it is better 5 guilty Persons should escape unpunished, than one innocent Person should die.6
Fortescue De Lawdibus 59. Indeed one would rather much rather, that twenty guilty Persons, Should escape the Punishment of Death, than that one innocent Person Should be condemned and suffer capitally.7
Law, no Passion can disturb. Tis void of Desire and Fear, Lust and Anger. Tis Mens Sine affectu, written Reason, retaining Some Measure of divine Perfection. It does not enjoin that which pleases a weak, frail Man, but without any Regard to Persons, commands that which is good, and punishes evil in all whether rich or poor, high or low. Tis deaf, inexorable, inflexible.8
Provocation.
1. Hawk. c. 31. §36.9 Keyling 135. Rules 1.10
Foster 295. §3.11 Foster 316.12 Foster 296.13
{ 83 }
12 Rep. 87.14
Assault.
1. Hawk. c. 62. §1.15
Jointly guilty.
1. H.H.P.C. 437.16 1. H.H.P.C. 440. Top.17
1. H.H.P.C. 444. 3.18 1. H.H.P.C. 445. bottom.19
1. H.H.P.C. 439. Ld. Dacre.20 1. H.H.P.C. 440.21
Drayton Bassett.22 1. Hawk. c. 65. §2. 1 Hawk. c. 65. §3 and at the end of the §.23
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Self Defence, the primary Canon of the Law of Nature24
Foster 273.25 Keiling 128. 129.26 Foster 274.27 1. Hawk. 71. §[14].28 1 Hawk, page 72. §23. towards the End.29 1. Hawk, page 72. §24.30 1. Hawk. page 75 §14.31 Keyling Page 128. bottom.32 4. Black. 185.33
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A Private Person may aid another.
Keyling page 136. Top. Buckners Case—imprisoned injuriously without Proscess of Law.34
Keyling Page 136. 3. bottom, if a Man perceives another by Force to be injuriously treated, pressed, and restrained of his Liberty, &c.35
Keyling 59. Hopkin Huggets Case, who kill'd a Man in attempting to rescue a Seaman, impressed without Warrant.36
2. Ld. Ray. Queen vs Tooley et als.—reforming Constables. Holt. 485.37 Holt 484.38
An innocent Person kill'd.
Foster 261. §3.39 26240 1. H.H.P.C. 442.41
1. Hawk. 84.42 1. Hale 484.43 4 Black. 27. if a Man intending to { 86 } kill a Thief or Housebreaker, in his own House, by Mistake kills one of his own Family, this is no criminal action.44
1. Adams Massacre Minutes. MHiMS 1. See Descriptive List of Sources and Documents.
2. 2 Hale, Pleas of the Crown 290: “It is always safer to err in acquitting rather than punishing, on the side of mercy than on the side of justice.” Black, Law Dictionary.
3. 2 Hale, Pleas of the Crown 305: “It is safer to err on the side of leniency.”
5. 1 Hale, Pleas of the Crown 300: “What you doubt of, do not do.” Black, Law Dictionary.
8. Algernon Sidney, Discourses Concerning Government 288 (London, 2d edn., 1704).
9. 1 Hawkins, Pleas of the Crown 82–83: “Neither can he be thought guilty of a greater Crime who . . . happens to kill another in a Contention for the Wall; or in the Defence of his Person from an unlawful Arrest. . . . But it is certain, That it can amount to no more than Manslaughter.”
10. Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114 (Q.B. 1707):
“Having . . . shewn what is not a provocation sufficient to alleviate the act of killing, so as to reduce it to be but a bare homicide, I will now secondly give some particular Rules, such as are supported by Authority and general consent, and shew what are always allowed to be sufficient provocations. First, If one Man upon angry words shall make an Assault upon another, either by pulling him by the Nose, or filliping upon the Fore-head, and he that is so assaulted shall draw his Sword, and immediately run the other through, that is but Manslaughter; for the Peace is broken by the Person killed, and with an indignity to him that received the Assault. Besides, he that was so affronted might reasonably apprehend, that he that treated him in that manner might have some further design upon him.”
11. Foster, Crown Cases 295: “The Rule laid down in the first Section [that words, however provocative, do not justify killing] will not hold in Cases where from Words or Actions of Reproach or Contempt, or indeed upon any other sudden Provocation, the Parties come to Blows, no undue Advantage being sought or taken on either Side.”
12. Foster, Crown Cases 316: “[W]e all know that Words of Reproach, how grating and offensive soever, are in the Eye of the Law no Provocation in the Case of voluntary Homicide.”
13. Foster, Crown Cases 296: “And in the tumult of the Passions, in which meer Instinct Self-Preservation, hath no inconsiderable Share, the Voice of Reason is not heard. And therefore the Law in Condescension to the Infirmities of Flesh and Blood hath extenuated the Offence.”
14. Anon. 12 Co. Rep. 87, 77 Eng. Rep. 1364 (K.B. 1612): A and B quarrel; C, B's friend, strikes and kills A. “[T]his was held Manslaughter, for this, that it happened upon a sudden Motion in Revenge of his Friend.”
15. 1 Hawkins, Pleas of the Crown 133–134:
“[A]n Assault is an Attempt, or Offer, with Force and Violence, to do a corporal Hurt to another; as by striking at him with, or without, a Weapon; or presenting a Gun at him, at such a Distance to which the Gun will carry, or pointing a Pitchfork at him, standing within the Reach of it; or by holding up one's Fist at him, or by any other such like Act done in an angry threatening Manner.”
16. 1 Hale, Pleas of the Crown 437, discusses accessories-by-presence in murder.
17. 1 Hale, Pleas of the Crown 440: “If divers come with one assent to do mischief, (male faire) as to kill, rob or beat, and one doth it, they are all principals in the felony.”
18. 1 Hale, pleas of the Crown 444:
“3. Again, altho if many come upon an unlawful design, and one of the company kill one of the adverse party in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of an adverse party without any particular abetment of the rest to this fact of homicide, they are not all guilty, that are of the company, but only those, that gave the stroke, or actually abeted him to do it.”
19. 1 Hale, Pleas of the Crown 445: “But in the case of a riotous assembly to rob, or steal deer, or do any unlawful act of violence, there the offense of one is the offense of all the company.”
20. 1 Hale, Pleas of the Crown 439: “The lord Dacre and divers others came to steal deer in the park of one Pelham, Rayden one of the company kild the keeper in the park, the lord Dacre and the rest of the company being in other parts of the park, it was ruled, that it was murder in them all, and they died for it.”
21. 1 Hale, Pleas of the Crown 440: “If many be present, and one only gives the stroke, whereof the party dies, they are all principal, if they came for that purpose.”
22. 1 Hale, Pleas of the Crown 440–441, discusses the case of the fracas at Drayton Basset.
23. 1 Hawkins, Pleas of the Crown 156–157:
“[W]here-ever more than three Persons use Force and Violence, in the Execution of any Design whatever wherein the Law does not allow the Use of such Force, all who are concerned therein are Rioters: But in some Cases wherein the Law authorizes Force, it is not only lawful, but also commendable to make use of it; as for a Sheriff or Constable, or perhaps even for a private Person, to assemble a competent Number of People in order with Force to suppress Rebels, or Enemies, or Rioters, and afterwards with such Force actually to suppress them. . . . As to . . . How far the Intention with which such Persons assemble together must be unlawful; it seems agreed, That if a Number of Persons being met together at a Fair, or Market, or Churchale, or any other lawful and innocent Occasion, happen on a sudden Quarrel to fall together by the Ears, they are not guilty of a Riot, but of a sudden Affray only, of which none are guilty but those who actually engage in it. . . . [A]lso it seems to be certain, That if a Person seeing others actually engaged in a Riot, do join himself unto them and assist them therein, he is as much a Rioter as if he had at first assembled with them for the same Purpose, inasmuch as he has no Pretence that he came innocently into the Company, but appears to have joined himself unto them with an Intention to second them in the Execution of their unlawful Enterprize.”
24. Compare 3 Blackstone, Commentaries *4: “Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.” See also Foster, Crown Cases 273, quoted in note 25111 below.
25. Foster, Crown Cases 273:
“In the Case of Justifiable Self-Defense the injured Party may repel Force with Force in Defence of his Person, Habitation, or Property, against one who manifestly intendeth and endeavoureth with Violence or Surprize to commit a known Felony upon either. In these Cases He is not obliged to retreat, but may pursue his Adversary 'till He findeth himself out of Danger, and if in a Conflict between them He happeneth to Kill, such Killing is Justifiable. The Right of Self-Defence in these Cases is founded in the Law of Nature, and is not nor can be superseded by any Law of Society.”
26. Reg. v. Mawgridge, Kelyng 119, 128–129, 84 Eng. Rep. 1107, mi (Q.B. 1707): “It is not reasonable for any Man that is dangerously assaulted, and when he perceives his Life in danger from his Adversary, but to have Liberty for the security of his own Life, to pursue him that maliciously assaulted him; for he that hath manifested that he hath Malice against another is not fit to he trusted with a dangerous Weapon in his Hand.”
27. Foster, Crown Cases 274:
“Where a known Felony is attempted upon the Person, be it to Rob or Murder, here the Party assaulted may repel Force with Force, and even his Servant then attendant on Him, or any Other Person present may interpose for preventing Mischief; and if Death ensueth, the Party so interposing will be Justified. In this Case Nature and Social duty cooperate.”
28. 1 Hawkins, Pleas of the Crown 71:
“If those who are engaged in a Riot . . . stand in their Defence, and continue the Force in Opposition to the Command of a Justice of Peace, &c. or resist such Justice endeavouring to arrest them, the Killing of them may be justified; and so perhaps may the killing of dangerous Rioters by any private Persons, who cannot otherwise suppress them, or defend themselves from them, inasmuch as every private Person seems to be authorized by the Law to arm himself for the Purposes aforesaid.”
29. 1 Hawkins, Pleas of the Crown 72: “[I]t seems that a private Person, and a fortiori, an Officer of Justice, who happens unavoidably to kill another in en-deavouring to defend himself from, or suppress dangerous Rioters, may justify the Fact, inasmuch as he only does his Duty in Aid of the publick Justice.”
30. 1 Hawkins, Pleas of the Crown 72: “And I can see no Reason why a Person, who without Provocation is assaulted by another in any Place whatsoever, in such a Manner as plainly shews an Intent to murder him, as by discharging a Pistol, or pushing at him with a drawn Sword, &c. may not justify killing such an Assailant.”
31. 1 Hawkins, Pleas of the Crown 75:
“And not only he who on an Assault retreats to a Wall or some such Streight, beyond which he can go no farther, before he kills the other, is judged by the Law to act upon unavoidable Necessity: But also he who being assaulted in such a Manner, and such a Place, that he cannot go back without manifestly indangering his Life, kills the other without retreating at all.”
32. See note 26112 above.
33. 4 Blackstone, Commentaries *185:
“The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment; or as far as the fierceness of the assault will permit him: for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm; and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice, as well as of the municipal law.”
34. Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1707), cites Protector v. Buckner, Style 467, 82 Eng. Rep. 867 (U.B. 1655).
35. Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1707): “Thirdly, If a Man perceives another by force to be injuriously treated, pressed, and restrained of his Liberty, though the Person abused doth not complain, or call for Aid or Assistance; and others out of Compassion shall come to his Rescue, and shall kill any of those that shall so restrain him, that is Manslaughter.”
36. Rex v. Hugget, Kelyng 59, 62, 84 Eng. Rep. 1082, 1083 (Newgate Gaol Delivery 1660): Held: Murder, but “it being in Case of Life, we did not think it prudent to give him judgment of Death, but admitted him to his Clergy.”
37. Reg. v. Tooley, 2 Ld. Raym. 1296, 92 Eng. Rep. 349, Holt 485, 90 Eng. Rep. 1167, sub nom. The Case of the Reforming Constables (Q.B. 1710). Held: Those who in a fray kill a constable's aid, the constable having taken a prisoner without warrant, are guilty of manslaughter only.
38. Reg. v. Mawgridge, Holt 484, 90 Eng. Rep. 1167 (Q.B. 1707). See note 35121 above.
39. Foster, Crown Cases 261: “If an Action unlawful in itself be done Deliberately and with Intention of Mischief or great Bodily Harm to Particulars, or of Mischief indiscriminately, fall it where it May, and Death ensue Against or Beside the Original Intention of the Party, it will be Murder.”
40. Foster, Crown Cases 262: “[I]f the Blow intended against A and lighting on B arose from a sudden Transport of Passion which in Case A had Died by it would have reduced the Offence to Manslaughter, the Fact will admit of the same Alleviation if B should happen to Fall by it.”
41. 1 Hale, Pleas of the Crown 442, discusses the guilt of those who kill by mistake.
42. 1 Hawkins, Pleas of the Crown 84, discusses the guilt of those who kill by mistake.
43. 1 Hale, Pleas of the Crown 484, considers “what the offense is, if a man kill another in the necessary saving of the life of a man assaulted by the party slain.”

Docno: ADMS-05-03-02-0001-0003-0008

Author: Paine, Robert Treat
Date: 1770-10-27

Paine's Minutes of Adams' Argument1

27 October 1770

Adams. It is certain a great bitterness between Soldiers and Inhabitants.
No Evidence applys to Soldiers in Goal nor to Capt. Preston.
It was Prestons duty on the message to him to go and take all the Care he could of his men and protect them.
<The Ev>
He had Account of the assault.
Had the Centry been a private Citizen and Capt. a Citizen it was his duty to go to assist.
He order[ed] Corporal and Soldiers to go.
A Sarg[ean]t's Command.
Capt[ain]s never take command of less than 40 unless on Special Occasion.
They call'd the Centry bloody Back, must allude to the severe whippings. Also Lobster.
Opposed to the Evidence of Yankee, [Boogerers?]
Wm. Wyat is one who thinks Capt. Preston ordered to fire.
[Surtot?]. Behind Soldiers, 1st Gun fired on left.
Robert Goddard. You observed he is not capable of making Obs[ervation]: you know, Scarce ordinary Understanding.
Prisoner knows the use of Language too well to Say murder 'em.
He says Capt. was behind the Soldiers.
Danl. Calf. Nearly right with regard to Capt[ain's] Scituation, Sensible, hard to Account for mistake.
It must be this Capt. said fire by no means when People spoke to him.
Morton. Shows there was a mistake made about Com[mandin]g Officer.
Had a Surtot on not Red.
Marching Guard to Fortification.
Fosdick. Never saw em prime and load. Therefore not Cool.
{ 87 }
Sherriff Greenleaf.2 After Bells ringing said no fire here. Some killed. I went to Lt. G[overnor's]. He was gone to T[own] H[ouse]. I went to G[uard] H[ouse] Prisoner said he did not Command the Party he said that it was a Corporals Command, that he did not order the firing. Lt. Gov. sent for Capt. and Bassett. Prisoner said he should have delivered himself up if he had known of a Warrant.
Peter Cunningham. He is warm temper and brisk Spirits, natural for such a Witness to Suppose Capt. gave Orders.
His distance.
Man is a Social Creature. His Passion and Ima[gi]nation Contagious.
The Circum[stances] had a tendency to move all the Passions.
Have had a tendency to produce Gloom and Melancholly in all our minds.
May account for the variation in the Testimony of honest Men.
NB. this is applicable to agravated account of Assaults.3
The Publication of Evidence, an [accidental] misfortune to Prisoner.
Some Evidence for Prisoner.
Jos. Edwards. Says a Man with Musket ordered to prime and load.
John Frost. Said Fire fire. It might be said by 3 Sorts of people.
Benja. Leigh. The 1st. assault was by people from Dock Square.
Pris[oner's] Answer. If I can avoid it.
Lt. Govr.4 After I had got to K[ing] S[treet] I was push'd by a vast throng of people to the place where Troops stood. My intention was to make enquiry into the Cause. I was crouded on Bayonets. Cry, the Govr. I said where [is] that Officer, why did you fire without order from a Civil Magistrate? I did not know the officer that came out of the Ranks. I cant recollect the Answer, it was imperfect and thought he did not like the question.
Knox. Said he stopt Prisoner Going down, and therefore, they primed and Loaded before he got down, comp[are]d with C[unningham?] and Edwards.
Burdick. The Soldiers had reason to think they came to kill 'em.
{ 88 }
Preston said perhaps you may, too Cool for a man who had ordered to fire.5
NB. It was his Trade.
Robt. Fullerton.
Richd. Palmes. An Inh[abitan]t of Town, therefore not prejudiced in favor of Soldiers. The most material Witness in the Case. T. Bliss said to Prisoner why dont they fire, G[od] damn you fire. Prisoner knew Gun loaded with Ball.
Self preservation would have made Capt. alter his place at firing.
He had time to order to recover. Surprise. Might think it only Powder, no man fell.
Palmes and Bliss. Both Say Prisoner was before Soldiers.
Wyat. His Account of Stepping before and saying why did you fire, must show him to be diabolically malicious.
Math. Murray. Preston before 'em. Saw the woman talking to soldier.
Andrew. People thought they were in Riot by Crying Murray and Riot act.
What Occasion'd he the Lad to put himself into that posture before Bayonet.
Saw the Officer with 2 persons in front of Soldiers.
Stout Man Struck at officer, 2 persons still talking to Prisoner.
No Body else remembers this.
Cornwall. NB. he said Prisoner not talking with any Body.
Whitehouse. Went up to G[uard] H[ouse]. NB. Centry cant go.
Lt. Govr. Had Prisoner been conscious of Rashness, he would have gone off, Evidence of Innocence.
2. What follows may be Paine's minute of Sheriff Stephen Greenleaf's testimony, although it appears in the MS directly in the middle of Paine's minute of JA's argument. More significant, it does not appear in either Summary of Evidence, Docs. IV and VI.
3. This comment (like others which follow) is apparently Paine's.
4. This is almost certainly Paine's minute of Hutchinson's original testimony. Its position in the MS is inexplicable.
5. Compare text at note 1727 above, which suggests that one of the soldiers, rather than Preston, made this remark.

Docno: ADMS-05-03-02-0001-0003-0009

Author: Paine, Robert Treat
Date: 1770-10-27

Paine's Minutes of Auchmuty's Argument for the Defense1

27 October 1770

Auchmuty.
Something horrid in agitation by the Bells ringing.
I have but little Charity for those that can only see on one side.
{ 89 }
Palmes Evidence may be opposed to all the Crown Evidence.
Positive Evidence always outweighs negative.
Persons Surrounded by threatening People may in Certain Cases defend themselves.
1 H. p. 71, ch. 28, §14. Killing dangerous Rioters is Lawful.2
§23. In endeavouring to defend himself and in suppressing dangerous Rioters.3
Ch. 29, §13 Hom, se defen.4
§165
They were on their duty, and in extremity.
Foster p. 292. Steadman's Case.6
Key. 135. bott[om]. If one man in angry words.7
1 H.H.C. 485. 6. Harcot's Case.8
Cr. Char. 538. Coke Case.9
1. Paine Massacre Notes. See Descriptive List of Sources and Documents. JA's much less complete minutes follow (MHi: MS I):
“Mr. Auchmuty's Authorities.
“1. Hawk. c. 28. §14. page 71. §23. §21.
“1. Hawk. c. 29. §13. Homicide se defendendo.
“Foster 292. Stedmans Case.”
2. 1 Hawkins, pleas of the Crown 71, c. 28, §14.
3. See note 29115 above.
4. 1 Hawkins, Pleas of the Crown 74–75, c. 29, §13:
“Homicide se defendendo . . . seems to be where one, who has no other possible Means of preserving his Life from one who combats with him on a sudden Quarrel, or of defending his Person from one who attempts to beat him, (especially if such Attempt be made upon him in his own House,) kills the Person by whom he is reduced to such an inevitable Necessity.”
5. 1 Hawkins, pleas of the Crown 75, c. 29, §16: “[A]n Officer who kills one that resists him in the Execution of his Office, and even a private Person, that kills one who feloniously assaults him in the Highway, may justify the Fact without ever giving back at all.”
6. Foster, Crown Cases 292, reports Rex v. Stedman (Old Bailey 1704), which holds that a soldier struck by a woman in the face with an iron patten so that the blood ran, was guilty of no more than manslaughter for subsequently killing her. “The Smart of the Man's Wound, and the Effusion of Blood might possibly keep his Indignation boiling to the Moment of the Fact.”
7. Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114 (Q.B. 1707). For the full quotation, see note 1096 above.
8. 1 Hale, Pleas of the Crown 485–486, discusses Harcourt's Case, holding that one who from within a house kills another who is attempting to enter, is guilty of manslaughter (and not entitled to plead self-defence) because his life was not endangered by those on the outside.
9. Rex v. Cook, Cro. Car. 537, 538, 79 Eng. Rep. 1063 (K.B. 1639): Killing a bailiff who, in attempting to serve process, broke a window and door “was not Murder, but Manslaughter only; For although he killed a Bayliff, yet he killed him not in duly executing Process.”
{ 90 }

Docno: ADMS-05-03-02-0001-0003-0010

Author: Adams, John
Date: 1770-10-29

Adams' Minutes of Paine's Authorities1

29 October 1770

Paines Autho[rities].
Foster 278. Plea of self Defense. Nailors Case.2
290.3 291. §2. Slight provocation and ——. Instances in Illustration.4
295. A uses provoking Language. &c.5
298.6
Ld. Ray. 1489. Oneby's Case.7
1 Hawk. 73 page. §25.8 Foster 296. §4.9
Har [Thus in MS.]
1. H.H.P.C. 485. 486.10 Cokes Case Cro. Car. 538.11
1. Adams Massacre Minutes, MHiMS 1. See Descriptive List of Sources and Documents.
2. Foster, Crown Cases 278, discusses Reg. v. Nailor (unreported) (Old Bailey 1704): Drunken son fights with father; second son floors inebriate, who stabs second son to death. Held (after conference, by all the judges of England): Manslaughter. “For there did not appear to be any Inevitable Necessity so as to Excuse the Killing in this Manner,” because “The Deceased did not appear to aim at the Prisoner's Life, but rather to Chastise Him for his Misbehaviour and Insolence towards his Father.”
3. Foster, Crown Cases 290: “Words of Reproach, how grievous soever, are not a Provocation sufficient to free the Party Killing from the Guilt of Murder. Nor indecent provoking Actions or Gestures expressive of Contempt or Reproach, without an Assault upon the Person.”
4. Foster, Crown Cases 291: “And it ought to be remembered, that in all other Cases of Homicide upon slight Provocation, if it may be reasonably collected from the Weapon made use of, or from any other Circumstance, that the Party intended to kill, or to do some great bodily Harm, such Homicide will be Murder.” The author then sets out “a few Instances,” which Paine presumably alluded to.
5. Foster, Crown Cases 295. See note 1197 above.
6. Foster, Crown Cases 298, discusses exceptions to the Statute of Stabbing. See note 56 above.
7. Rex v. Oneby, 2 Ld. Raym. 1485, 92 Eng. Rep. 465 (K.B. 1727).
8. 1 Hawkins, Pleas of the Crown 73, §25: “[I]n all these Cases, there ought to be a Distinction between an Assault in the Highway and an Assault in a Town; for in the first Case it is said, That the Person assaulted may justify killing the other without giving back at all: But that in the second Case, he ought to retreat as faras he can without apparently hazarding his Life, in respect of the Probability of getting Assistance.”
9. Foster, Crown Cases 296: In every “Case of Homicide upon Provocation how great soever it be, if there is sufficient Time for Passion to subside, and for Reason to interpose, such Homicide will be Murder.”
10. 1 Hale, Pleas of the Crown 485–486, discusses the law of self-defense.
11. See note 9144 above.
{ 91 }

Docno: ADMS-05-03-02-0001-0003-0011

Author: UNKNOWN
Date: 1770-10-29

Anonymous Minutes of Paine's Argument for the Crown1

29 October 1770

Mr. Pain, for the Crown.
It remains for me to close this Cause on the part of the Crown. It's importance Gentlemen is not confined to the small Circle of a few Individuals, but concerns the very foundation of Civil Goverment. In their Defence, every Source of Eloquence and Art has been exhausted; which I don't mention as a fault in them, but to guard you against mistaking, the Flowers of Rhetoric for Reason and Argument. This Prosecution is founded on one of the most essential Laws of Nature: Murder is such a Daring Violation of the first Laws of Society that if suffered with impunity, will not only annihilate every blessing we derive from Social Compacts, but, cause them to be reconed among the greatest Misfortunes that attend Mankind. Your enquiry Gentlemen in this important Affair will be directed to these two points—did the Prisoner give Orders to fire, in consequence of which ensued the Death of any, or all the Persons named in the Indictments? If so, has he offered any thing to reduce this Crime to a lower Species of homicide than Murder? The Evidence from it's Nature, must be complicated and their Wit[nesse]s as well as ours, vary in their Accounts but from the whole taken together, you are to collect the facts. Great pains have been taken to convince you that we are mistaken in the Man, that the Prisoner never gave Orders to fire, and if he did, the Necessity he was [ . . . ] to, must justify it: but a little enquiry into the State of the Evidence will rectify all these Mistakes. From the Deposition of Colonel Marshal and others it appears, that there was a Number of Soldiers patroling the Streets, brandishing their Weapons of Death and threatning the innocent Inhabitants, with Bloodshed and Slaughter: Is it strange then that the People were alarmed, that their Fears and even Indignation were excited, at this clamorous and hostile appearance of the Soldiers? The Inhab[itan]ts undoubtedly had as good a Right to appear in behalf of their injured Fellow Citizens, as Capt. P[reston] to espouse the Quarrel of his Centinel: but here's the Michief, neither had a right to interfere: was the Centinel abused? There were peace Officers at hand, to protect him; and miserable is the Situation of that People, whose ultima Ratio Legum,2 is Guns and Bayo• { 92 } nets! For what did we quit our native Savage State; but by combining the power of Numbers, to restrain the Lawless Ravages of Individuals and establish personal Security on it's surest Basis? That the P[risoner]at the Bar, wantonly assuming the powers of Government, has exercised a worse than savage Cruelty, in Butchering <a Number of> his Fellow Subjects; you have the Testimony of Numbers: some sware to the Identity of his Person, the words he uttered, the Station he was placed in; and some to the Motion of his Lips, that accompanied his Orders to fire: but to invalidate all this positive proof, they have produced several Witnesses to testify that the Prisoner stood in the front, when some of ours place him in the Rear, and that if Capt. P. gave any orders to fire they did not hear them: a little Attention to Mr. Fosdick's Deposition will cure all this Difficulty: he sais, “at the same time the P[risoner] gave orders to fire, he retired into the Rear”: now his thus being both in front and Rear, within a few seconds, this apparent Variance is easily reconciled. Mr. Palmes (their principal Witness) is a Gentleman who I can by no means suppose wou'd be guilty of a known Falshood; but he is certainly mistaken, either in the Person or Situation of the Prisoner; unless you can discredit the Testimony of Many <Persons> (whose Veracity is equally unimpeachable) that have sworn directly to the contrary. I acknowledge there is some little Confusion in the Evidence which must certainly operate as much to their Disadvantage, as ours, And at least destroy the Supposition of a preconcerted plan to convict the Prisoner—but some of their Witnesses, in a very extraordinary fit of fancy, have given such romantic Accounts, that Persons of less extravagance than themselves, can <give but little> hardly Credit them. Andrews Testimony is very curious, he tells you he saw a stout Fellow run down the Street, make his way thro' the People and rush upon the Soldiers; a fact, which, unless all the other Witnesses were Stone-blind, or deprived of their Senses, never had existence but in his own brain: but his Imagination once set on fire, did not stop here; for upon seeing one Person shot dead, Andrew must think himself dead too, and for some time lost all Consciousness even of his own Existence: These unaccountable flights of Fancy may be ornamental in a Poet (It was suggested in favour of Andrew's Understanding, that he had wrote poetry), but, will never establish the Credibility of an Historian.
Now Gentlemen the fact being once proved, it is the prisoner's part to justify or excuse it, for all killing is, prima facie, Murder. They have attempted to prove, that the People were not only the aggressors, but attacked the Soldiers with so much Violence, that an immediate Danger { 93 } of their own Lives, obliged them to fire upon the Assailants, as they are pleased to call them. Now this violent Attack, turns out to be nothing more, than a few Snow-Balls, thrown by a parcel of Boys; the most of them at a considerable distance, and as likely to hit the Inhab[itan]ts as the Soldiers (<all this is but> which is a common Case in the Streets of Boston at that Season of the Year, when a Number of People are collected in a Body), and one Stick, that struck a Grenadier, but was not thrown with sufficient force to wound, or even sally him; whence then this Outrage, fury and abuse, so much talk'd of? The Inhabitants collected, Many of them from the best of Motives, to make peace; and some out of mere Curiosity, and what was the Situation of Affairs when the Soldiers begun the fire? In addition to the Testimony of many others, you may collect it from the Conduct of Mr. Palms, a Witness on whom they principally build their Defence. Wou'd he place himself before a party of Soldiers, and risque his Life at the Muzzels of their Guns, when he thought them under a Necessity of firing to defend their Life? 'Tis absurd to suppose it; and it is impossible you should ever seriously believe, that their Situation could either justify or excuse their <firing> Conduct. I would contend, as much as any Man, for the tenderness and Benignity of the Law; but, if upon such triffling and imaginary provocation, Men may o'erleap the Barriers of Society, and carry havock and Desolation among their defenceless, Fellow Subjects; we had better resign an unmeaning title to protection in Society and range the Mountains uncontrol'd. Upon the whole Gentlemen the facts are with you, and I doubt not, you will find such a Verdict as the Laws of God, of Nature and your own Conscience will ever approve.
2. The “last argument of the law.”

Docno: ADMS-05-03-02-0001-0003-0012

Author: Adams, John
Date: 1770-10-29

Adams' Minutes of Trowbridge's and Oliver's Charges to the Jury1

29 October 1770

Judge Trowbridge.
1. H.H.P.C. 442.2 8 Soldiers. 7 Guns fired. 5 Persons killed. Q[uery] whether it must not be proved which Soldier killed which of the deceased.
{ 94 }
J. Trow[bridge].
Foster 256. 257. Province of Judge and Jury.3
2. Ld. Ray. Onebys Case.4 If you believe &c. &c.
I hope and believe there was not such occasion to send the Troops here as was pretended. But the Question is whether the K[ing] has not Authority.
Stat. C 2. 12. C. 2d.5 Command of all Forces by Sea and Land, is and ever was in his Majesty. It is the K's duty to watch when any Invasion is intended. And this Authority extends to all the Dominions as well as Realms. Not to be kept up, a standing Army without express order of Parliament. Mutiny Act annual.
Next Q. whether the commanding officer of the Troops here appointed a Sentry at the Custom house. Next whether the Centinel was assaulted and insulted. No concerted Plan on Either side, but bickerings, &c. and any little Spark would in kindle a great fire—and 5 lives sacrificed to a Squabble between the Sentry and Piemont's Barbers Boy.6 A sawcy Speech in the Boy. The Sentry no Right to strike him. The Credit of the Witnesses is entirely with you. Next whether assistance was call'd for by the Centinel. Garrick, Crookshanks, Langford and Lee, say he did. Hill, Jackson, and Davis say the Guard were call'd. If you find that he went to protect the Sentry, it is plain in my Mind, it was a lawful assembly. If they were not assaulted, as soon as they turned their Arms against the Inhabitants, they were an unlawfull assembly. Witnesses say they were assaulted are &c. [Thus in MS.] By whom? were they assaulted? By Boys only or by Men? Next Q. whether the People assembled round the sentry or Party, were a lawfull { 95 } Assembly. If unlawfull, all present, aiding, abeting or incouraging were principals. Any Act done by one, is chargeable upon all.
Judge Trowbridge. Next whether the firing could be justified, by any Thing that was done by any one of this unlawfull Assembly. An assault lifting up a Hand in Anger, throwing a Bottle a material Difference b[e]t[ween] Justifiable or excusable, and extenuate it to Manslaughter. Next, whether Prisoner was aiding and abetting this Firing, 1st whether he orderd to load, or to fire. Next whether he had a Right to order them to load. Cunningham says orderd 'em to load, the same Man that led the Party down. Wyat says so too. It seems to be agreed on all Hands the Corporal led the Party down. Edw[ar]ds contrary. Knox and Archibald say the Corporal that led em down, And orderd them to prime and load. If it remains only doubtful in your Minds whether he did order the loading or not, you cant charge him with doing it. If he did it, whether he had a Right. If the People were gathering, and insulting and assaulting him and his Party he might put himself in the best Posture of Defence. Next Q. whether he gave the orders to Fire? Settle the Place where the Man was who gave the orders, and the Place where C[aptain] P[reston] was. Was he before or behind his Men. Before say Bliss, Palmes &c. Murray, Prince, Waddel, Whitehouse and many others. Behind, Wyat, Godard, Fosdick and Lee. Wyat was behind. Palmes says he had his Hand upon his shoulder. Was the order to fire before the first Gun or after. Before, Wyat, [ . . . ]7<Palmes,> Langford &c. After, Cox, Bliss, Cornwall, these say they heard the Captn. say “dont fire.” Next whether C[aptain] P[reston] acknowledged that he did order them to fire—Pierce, Belknap, and Mason.
Cities of Refuge were appointed for those who killed a Man [unaware?] for he hated him not aforetime and a Man might kill a Thief who attempted to break his House in the Night. Whoso sheddeth Mans Blood, by Man shall his Blood be shed, is a general Rule, many Exceptions to it.8
Cooks Case. [] Cro. [] An Officer had a Ca. Sa. He lay in wait in the stable. In the Morning he tryd to get into the Windows and Door, and the Man takes his Gun, and shoots the officer, thro the Body.9
Keiling. Mawgridges Case. Where one Man catches another by the { 96 } Nose and fillips him in the forhead, it is only Manslaughter. Mawgridges Case, adjudged and reported by Holt.10
I shall take it for granted that these snow Balls, Sticks, Oyster shells [and] Blows struck on the Guns and aimed at them. If you are Satisfyed that the sentinel was insulted and assaulted, and that C[aptain] P[reston] and his Party went to assist them, it was doubtless excusable Homicide, if not justifiable. Self Defense a Law of Nature, what every one of us have a Right to, and may stand in need of.11
J. Oliver. There has been a great deal done to prejudice the People against the Prisoner a copper Plate Print, in which this Court has been insulted and call'd a venal Court, if this Prisoner was not condemned.12 I my self was last Term insulted for giving my opinion in a Point of Law.13 15 of the Prisoner's Witnesses mention the snow Balls, Ice, Clubbs, &c.
Q. Whether the Sentry was obliged to retreat from his Post. My opinion is, that the Party, attacked in that violent manner they were not obliged to retreat at all.
1. Adams Massacre Minutes MHiMS 1. See Descriptive List of Sources and Documents.
2. See note 41127 above. The position of this paragraph in the MS suggests that Trowbridge may have made these remarks during an earlier phase of the trial.
3. Foster, Crown Cases 256:
“In Cases of Doubt and real Difficulty it is commonly recommended to the Jury to state Facts and Circumstances in a special Verdict. But where the Law is Clear, the Jury, under the Direction of the Court in Point of Law, Matters of Fact being still left to their Determination, May, and if They are well advised always Will find a general Verdict conformable to such Direction.” Id. at 257: “The Malus Animus, which is to be collected from all Circumstances, and of which, as I before said, the Court and Not the Jury is to judge, is what bringeth the Offence within the Denomination of Wilful Malicious Murder, whatever might be the immediate Motive to it.”
4. See note 7151 above.
5. Probably 13 Car. 2, c. 6 (1661),
“An act declaring the sole right of the militia to be in the King, and for the present ordering and disposing the same.” “[W]ithin all his Majesty's realms and dominions, the sole supream government, command and disposition of the militia and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was the undoubted right of his Majesty, and his royal predecessors.”
6. One John “Paymount” was a “wigmaker . . . and Inhabitant of Boston.” See Deposition of Private John Timmons, 29th Regiment, 28 July 1770, 12 Gay Transcripts 128, 129, MHi. The “Boy” was Edward Gerrish, the Crown's opening witness.
7. Illegible name. MS apparently reads “Bardet,” perhaps for “Burdick.”
8. See No. 59, note 15131.
9. See note 9144 above. A “ca. sa.” or “capias ad satisfaciendum” was a writ of execution, commanding the sheriff to take the defendant and hold him until satisfaction of the damages. See Black, Law Dictionary.
10. Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114, Holt 484, 90 Eng. Rep. 1167 (Q.B. 1707). See note 1096 above.
11. Here there is an interval of space in JA's MS. Paine Massacre Notes contain the following minutes of Trowbridge's charge:
Judge Trwobridge. If they were lawfully assembled each one is only answerable for him. If unlawful then each is answerable for whole.
“If the apparent End be lawful and no other appears it must be presumed it was lawful.
“Foster 256. The Courts determine the Law. Ld Ray. 1490.
“Your Oath is the same here as in England.
“King's troops were sent here, whether with or without Occasion is not the Q[uestion]. I hope and believe there was no such Occasion as was pretended.
“Oliver [Cromwell] ruled the King had no Right to [send?] Troops any where. But in the Restoration, an Act was made declarative of Common Law that the King had Right. And it is necessary this should be so.
“Nation so fearful of Standing Army, that they cant be kept up without Yearly Acts of Parliament. The mutiny Acts are made, and provide for pay and Support of Troops in the Colonys.
“You'll enquire if any Centry appointed there.
“I am sorry to say the lives were lost by the sauciness of Barbers Boy. The Centry had no business to strike him.
“Party not obliged to retreat.”
12. The Paul Revere engraving of “The Bloody Massacre Perpetrated in King Street,” long on propaganda but short on accuracy, carries at its base some doggerel which concludes: “Should venal C——ts the scandal of the Land / Snatch the relentless Villain from her Hand / Keen Execrations on this Plate inscrib'd / Shall reach a Judge that never can be brib'd.” Clarence S. Brigham, Paul Revere's Engravings Plate 14 (Worcester, 1954).
13. See No. 59, text at note 48.
{ 97 }

Docno: ADMS-05-03-02-0001-0003-0013

Author: Paine, Robert Treat
Date: 1770-10-29

Paine's Minutes of Cushing's and Lynde's charges to the Jury1

29 October 1770

J. Cushing. It is odd the Town should think of doing Justice by a Mob.
The principal Q[uestion] whether the Prisoner gave Order.
J. Lynde. Principal Q[uestion] whether Prisoner gave Order. I fear people come in too hostile a Manner.

Docno: ADMS-05-03-02-0001-0003-0014

Author: UNKNOWN
Date: 1770-10

Charges to The Jury as Printed In the Annual Register1

About Monday noon the judges began their charge. Judge Trowbridge, who spoke first, entered largely into the contradictory accounts given by the witnesses, and declared, that it did not appear to him that the prisoner gave orders to fire; but if the Jury should think otherwise, and find it proved that he did give such orders, the question then would naturally be, What crime is he guilty of? They surely could not call it murder—Here he explained the crime of murder in a very distinct manner, and gave it as his opinion, that by law the prisoner was not guilty of murder; observing, that the King had a right to send his troops here; that the Commanding Officer of these troops had a right to place a Centinel at the Custom-house: that the Centinel placed there on the night of the 5th of March was in the King's peace; that he durst not quit his post; that if he was insulted or attacked, the Captain of the Guard had a right to protect him; that the prisoner and his party, who came there for that purpose, were in the King's peace; that while they were at the custom-house, for the purpose of protecting the centinel, it was plainly proved that he had been assaulted by a great number of people; that the people assembled there were not in the King's peace, but were by law considered as a riotous mob, as they attacked the prisoner and his party with pieces of ice, sticks, and clubs; and that even one of the witnesses against him, confessed he was armed with a Highland broadsword; that the rioters had knocked down one of the soldiers of the party, laid hold of several of their muskets, and { 98 } that, before the soldiers fired, the cry was, Knock them down! Kill them! Kill them! That all this was sworn to by the witnesses, and if the Jury believed them, the prisoner could not be found guilty of murder. He then proceeded to explain what the law considered as man-slaughter, and concluded with saying, that if he was guilty of any offence, it could only be excusable homicide; that this was only founded on the supposition of the prisoner's having given orders to fire, for if this was not proved, they must acquit him.
Judge Oliver, who spoke next, began with representing, in a very nervous and pathetic manner, the insults and outrages which he, and the Court through him, had received on a former occasion (meaning the trial of Richardson) for giving his opinion in a point of law; that, notwithstanding, he was resolved to do his duty to his God, his King, and his country; that he despised both insults and threats, and that he would not forego a moment's peace of conscience for the applause of millions. He agreed in sentiment with the former Judge, that the prisoner was not guilty.
Judge Cushing spoke next, and agreed entirely with the other two, with regard to the prisoner's case.
Judge Lynde concluded. He spoke a considerable time, and was of the same opinion with the other Judges. Towards the close of his speech he said, “Happy I am to find, that, after such strict examination, the conduct of the prisoner appears in so fair a light; yet I feel myself, at the same time, deeply affected, that this affair turns out so much to the disgrace of every person concerned against him, and so much to the shame of the town in general.”
1. Annual Register for 1770 218–219. See Descriptive List of Sources and Documents.
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/