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Browsing: Legal Papers of John Adams, Volume 3

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
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.

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

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.

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

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.

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

DateRange: 1770-09-07 - 1770-11-27

Arraignment, Impaneling, Crown's Opening and Evidence1

7 September, 27 November 1770

On Saturday [i.e. Tuesday], the 27th November, 1770, the Court being met, the prisoners were brought into Court and set to the bar, when the Court proceeded thus. . . .
Clerk. How sayest thou, William Wemms, art thou guilty of the felony and murder whereof thou standest indicted, or not guilty?
{ 99 }
William Wemms. Not guilty.
Clerk. How wilt thou be tried?
William Wemms. By God and my country.
Clerk. God send thee a good deliverance. . . .2
The Jury were then called over and appeared.
Clerk. You the prisoners at the bar, these good men, which were last called and do now appear, are those who are to pass between our sovereign Lord the King and you, upon the trial of your several lives; if therefore you will challenge them, or any of them, you must challenge them as they are called to be sworn, before they are sworn, and you shall be heard.
The prisoners being asked whether they would agree in their challenges, consented that William Wemms should make challenges for them all.3
Samuel Williams,   Roxbury,   challenged for cause.  
Joseph Curtis,   ditto,   challenged for cause.  
Nathaniel Davis,   ditto,   sworn.  
Joseph Mayo,   ditto,   sworn.  
Abraham Wheeler,   Dorchester,   sworn.  
Edward Pierce,   ditto,   sworn.  
William Glover,   ditto,   challenged peremtorily.  
Isaiah Thayer,   Braintree,   sworn.  
Samuel Bass, jun.   ditto,   challenged peremtorily.  
James Faxen,   ditto,   challenged peremtorily.  
{ 100 }
Benjamin Fisher,   Dedham,   sworn.  
John Morse,   ditto,   challenged peremtorily.  
James White,   Medway,   challenged peremtorily.  
Nehemiah Davis,   Brookline,   challenged peremtorily.  
Samuel Davenport,   Milton,   sworn.  
Joseph Houghton,   Milton,   sworn.  
James Richardson,   Medfield,   challenged peremtorily.  
John Billings,   Stoughton,   challenged peremtorily.  
Joseph Richards,   ditto,   challenged for cause.  
Consider Atherton,   ditto,   sworn.  
Abner Turner,   Walpole,   challenged peremtorily.  
John Brown,   Boston,   challenged for cause.  
Joseph Barrell,   ditto,   challenged for cause.  
Silas Aitkins,   ditto,   challenged for cause.  
Harbottle Dorr,   ditto,   challenged for cause.  
The Clerk having gone thro' the pannel, and there being a deficiency of Jurors, the Sheriff, by order of the court, returned the following talesmen.
Samuel Sheppard,     challenged peremtorily.  
John Goldsbury,     challenged for cause.  
Samuel Peck,     challenged for cause.  
William Gouge,     challenged for cause.  
Joseph Turrel,     challenged for cause.  
Jacob Cushing, jun.   Hingham,   sworn.  
Josiah Lane,   ditto,   sworn.  
Jonathan Burr,   ditto,   sworn.  
N.B. The three last being illegally returned, as Jurors, were rejected by the Court, and returned by the Sheriff as talesmen.
Clerk. Cryer count these.4
Joseph Mayo, Forem.   }   Roxbury.   Samuel Davenport,   }   Milton.  
Nathaniel Davis,   Joseph Houghton,  
Abraham Wheeler,   }   Dorchester.   Consider Atherton,     Stoughton.  
Edward Pierce,   Jacob Cushing, jun.   }   Hingham.  
Isaiah Thayer,     Braintree.   Josiah Lane,  
Benjamin Fisher,     Dedham.   Jonathan Burr,  
{ [facing 100] } { [facing 101] } { 101 }
Cryer. Gentlemen are ye all sworn.5
Clerk. Prisoners hold up your hands. Gentlemen of the Jury look upon the prisoners, and hearken to the charge. (The Clerk then read the several indictments against them as before set forth.) Upon each and every of these several indictments, the prisoners at the bar have been arraigned, and upon their arraignment have pleaded not guilty, and for trial have put themselves upon God and their country, which country you are; your charge therefore is, to enquire whether they or either of them be guilty of the felony and murder whereof they stand indicted, or not guilty. If they or either of them are guilty, you are to say so; if they or either of them are not guilty, you are to say so and no more. Good men and true, stand together and hearken to your evidence.
Council for the Crown.
Robert Treat Paine, Esq;
Samuel Quincy, Esq;
Council for the Prisoners.
John Adams, Esq;
and Mr. Sampson Salter
Mr. Josiah Quincy,
Samuel Quincy, Esq: addressing himself to the Court and Jury, opened the cause nearly in the following words:
May it please your Honours, and you Gentlemen of the Jury.
The prisoners at the bar, are that party of soldiers belonging to his Majesty's 29th regiment, who in the evening of the 5th of March last, were induced from some cause or other to fire on the inhabitants of this town, in King-street.
They are charged in five distinct indictments, with the wilful premeditated murder of five different persons mentioned in the respective bills; to each of these indictments, they have severally pleaded, not guilty; and by that plea have thrown upon the crown the burthen of proving the fact alledged against them: It is my province therefore to give you evidence in support of this charge, and yours, gentlemen of the jury, to determine whether they are guilty, or not.
The cause is solemn and important; no less than whether eight of your fellow subjects shall live or die! A cause grounded on the most { 102 } melancholy event that has yet taken place on the continent of America, and perhaps of the greatest expectation of any that has yet come before a tribunal of civil justice, in this part of the British dominions.
I am aware how difficult, in cases of this sort, it ever is, and more especially so in these times, and in this trial, to preserve the mind perfectly indifferent; but I remember, we are bound, not only by the natural obligations towards God and man, but also by an oath, to examine into the evidence of fact without partiality or prejudice; I need not therefore caution you of your duty in this respect: It is upon that evidence and the law resulting from it, you gentlemen are, in the language of your oath, to give a verdict; and I will venture, before hand, to pronounce that verdict righteous, if it is founded in these principles as the rule of your judgment.
It has become my duty, it shall therefore be my endeavor, to acquit myself in the course of this trial with decency and candour; reflecting that however interesting the question may be, the object of our enquiry is simply that of truth, and that this enquiry is to be conducted by the wisdom of the laws and constitution.
In support of this accusation against the prisoners at the bar, it is incumbent on the crown, to ascertain the following things; viz. The identity of the persons charged; the fact of killing; and the circumstances attending and aggravating that fact.
To this end, I shall immediately produce to you such evidence, from the testimony of credible witnesses, as may be sufficient to sustain the several indictments, and when I have gone through the examination, make such remarks upon it, as may be most concise and pertinent to the present issue.
The following witnesses were then sworn and examined in their order.
Jonathan Williams Austin, clerk to John Adams, Esq; sworn.
Q. Do you know either of the prisoners at the bar?
A. I do.
Q. Which of them?
A. McCauley. I knew the man before, but did not know his name; I was afterwards told it was McCauley. On the evening of the 5th of March last, I heard the bells ring, and went into King-street.
Q. How many people do you imagine might be there when you got into King-street.
A. There might be twenty or thirty I believe. I saw the Sentry at the Custom House door swinging his gun and bayonet; there were a { 103 } parcel of men and boys round him. I desired them to come away, and not molest the Sentry; Some of them came off and went to the middle of the street; I then left them and went up towards the Main-Guard. Immediately a party came down, I walked by the side of them till I came to the Sentry box at the Custom House. McCauley then got to the right of the Sentry-box; he was then loading his piece.
Q. How near was you to McCauley at that time?
A. I was about four feet off: McCauley said “Damn you, stand off,” and pushed his bayonet at me: I did so: Immediately I heard the report of a gun.
Q. How near did McCauley stand to the corner?
A. He came round the Sentry-box, and stood close to it on the right.
Q. When the party came down, were there many people there?
A. I cannot really say, I think about fifty or sixty.
Q. What did they say to the people as they came down?
A. I did not hear them say any thing.
Q. Did you hear any orders given?
A. I did not, either to load or fire.
Q. Did you hear the Sentry cry out for help to the Main-Guard?
A. No; I was not there half a minute.
Q. Whereabouts did you stand?
A. I stood inside the gutter, close by the box.
Q. Whereabouts did the Sentry box stand?
A. Three or four feet from the corner of the Custom-House.
Q. How many guns did you hear?
A. Five or six, I cannot swear to any particular number.
Q. Did you look round after you heard the guns fired? []A. Yes.
Q. Did you see McCauley then? []A. Yes.
Q. Was he loading again?
A. I think he was; it so lies in my mind; (I cannot absolutely swear it.)
Q. Do you know whether any soldiers stood on the right of McCauley?
A. I took so particular notice of McCauley, that I minded no other object.
Ebenezer Bridgham, Merchant, sworn.
Q. Do you know any of the prisoners at the bar?
A. I particularly saw that tall man, (pointing to Warren, one of the prisoners.) Next day after the firing in K. street, I saw more of them whom I cannot particularly swear to now.
{ 104 }
Q. Did you see the soldiers before the justices on examination?
A. Yes.
Q. Did you then observe you had seen any of them the night before in King street?
A. I was well persuaded next day in my own mind, that I saw that tall one; but a few days after, I saw another man belonging to the same regiment, so very like him, that I doubt whither I am not mistaken with regard to him.
Q. Were there any other of the party you knew? []A. I am well satisfied I saw the Corporal7 there.
Q. Did you see White there? []A. I do not remember.
Q. What was the situation of the Corporal?
A. He was the corner man at the left of the party.
Q. Did you see either of the persons, you think you know, discharge their guns?
A. Yes; the man I take to be the tall man, discharged his piece as it was upon a level.
Q. Did you see the Corporal discharge his gun? []A. I did not.
Q. Where did you stand? []A. I was behind them in the circle.
Q. What part of the circle did the tall man stand in?
A. He stood next but one to the Corporal. The tall man whoever he was, was the man I saw discharge his piece.
Q. Was any thing thrown at the soldiers?
A. Yes, there were many things thrown, what they were I cannot say.
Q. How did the Soldiers stand?
A. They stood with their pieces before them to defend themselves; and as soon as they had placed themselves, a party, about twelve in number, with sticks in their hands, who stood in the middle of the street, gave three cheers, and immediately surrounded the soldiers, and struck upon their guns with their sticks, and passed along the front of the soldiers, towards Royal-exchange-lane, striking the soldiers guns as they passed; numbers were continually coming down the street.
Q. Did you see any person take hold of any of the guns or bayonets of any of the party? []A. I do not remember I did.
Q. Did you hear any particular words from this party of twelve?
A. I heard no particular words, there was such a noise I could not distinguish any words.
Q. Did they load their guns before the people surrounded them, or after? []A. They were loading at the time.
{ 105 }
Q. How near did they go to the soldiers?
A. Very near them, almost close to their guns.
Q. Were the people who struck the guns, there at the firing?
A. I cannot say whether they had gone away or not.
Q. Did you apprehend the soldiers in danger, from any thing you saw? []A. I did not, indeed.
Q. Where did you stand at the firing?
A. I kept my place. At the time of the firing of the first gun, I heard a clattering noise on the right like one gun striking against another, and immediately the first gun was fired from the right.
Q. At the time of firing that gun was any assault made on the person that fired? []A. I did not see the person that fired.
Q.. You said, you saw several blows struck upon the guns, I should like you would make it more plain.
A. I saw the people near me on the left, strike the soldiers guns, daring them to fire, and called them cowardly rascals, for bringing arms against naked men; bid them lay aside their guns, and they were their men.
Q. Did you see any person fall? []A. Yes, I saw Gray fall.
Q. Where was that? []A. He fell in the middle of the street.
Q. Was the place where he fell nearly opposite to the tall man you talk of?
A. No; the gun that killed him, must have been nearer to the center. When the soldiers on the left fired, there were fewer people in the street.
Q. Did you see a molatto among those persons who surrounded the soldiers? []A. I did not observe.
Q. Did they seem to be sailors or town's men?
A. They were dressed some of them in the habits of sailors.
Q. Did you hear any bell ring? []A. Yes.
Q. What bell?
A. I believe all the bells in town were ringing, I heard the Old South first.
Q. Did the clattering or blows on the guns to the right, immediately before the first gun went off, appear very violent?
A. Yes, very violent.
Q. Where was the second gun fired from?
A. I took it to be the person next to him who fired the first, or very near him.
Q. Betwixt the first and second gun, did you see any assault given to the soldiers? []A. No.
{ 106 }
Q. When the firing came along to the left, were there many people in the street? []A. There were very few people then in the street.
Q. What place did those few stand in? []A. Right over the way.
Q. Was you looking at the person who fired the last gun?
A. Yes, I saw him aim at a lad that was running down the middle of the street, and kept the motion of his gun after him a considerable time, and then fired.
Q. Did the lad fall?
A. He did not, I kept my eye on him a considerable time.
Q. This soldier was towards the left you say, was he quite to the left? []A. Not quite, but towards it.
Q. Was the lad among the party that struck at the soldiers?
A. He was passing the street, I cannot say where he came from.
Q. After the firing of the first gun did the people disperse?
A. They drew away down Royal exchange-lane, but others were coming continually down the street; but when the first person was killed, they seemed all to draw off.
Q. Did the people that came down the street, endeavour to join the party that was striking the soldiers, or did they come because of the ringing of the bells?
A. I believe they came because the bells were ringing, for they came from all parts of the town, and did not appear to me to join in the assault.
Q. How many guns were fired? []A. I believe seven.
Q. How many soldiers were of the party?
A. I did not count them, but I believe twelve.
James Dodge, sworn.
Q. Do you know either of the prisoners?
A. Yes, I know Warren, and saw him with the party in King-street on the evening of the 5th of March last.
Q. Do you know any of the rest?
A. I know them all by sight, but that is the only person I can swear to.
Q. The night of the firing, did you see the Corporal there?
A. Not so as to know him; but Warren I can swear to.
Q. Did you see him discharge his piece?
A. No; I went away when the first gun fired.
Q. Where did the person stand, who fired the first gun?
A. He stood towards the left of the party.
Q. Whereabout did you stand yourself?
{ 107 }
A. Opposite the soldiers, by Mr. Warden's shop the barber.
Q. Did you see any body fall?
A. I saw none fall. I went off when the first gun was fired, and came back again and heard there were three men killed.
Q. Do you mean the first gun was fired from your left, or from the left of the party?
A. From the left of the party; there were two stood to the left of Warren.
Q. What appeared to be the conduct of the soldiers before the firing?
A. When I got there, they were swinging there guns backward and forward, and several among the people, said, fire, damn you fire; but I think it was Capt. Preston that gave the word to fire.
Q. How many people were there?
A. I took them to be about fifty.
Q. What had they in their hands?
A. They had nothing in their hands.
Q. Did you see any ice or snow-balls thrown at the soldiers?
A. I saw several snow balls and pieces of ice thrown, and heard a rattling against the barrels of their guns, whether it was sticks, or what, I do not know.
Q. Where did the snow-balls seem to come from?
A. From the people right before the party.
Q. Did the snow balls seem to be thrown in anger?
A. I do not know; I saw the soldiers pushing at the people before any snow balls were thrown.
Q. Were the people pressing on?
A. They were very near, within reach of their bayonets.
Q. Did you see any oyster-shells thrown? []A. No.
Q. Was the snow trodden down, or melted away by the Custom-House?[]A. No, the street was all covered like a cake.
1. Wemms Trial 5–15. For the indictment, see Rex v. Preston, Doc. I.
2. The pleas of the other defendants, being identical, Wemms Trial 6–7, are omitted. The arraignment actually took place 7 September. Lynde, Diary 198.
“Kilroy and Hartigan remanded, on account of the absence of Joseph Brown a Witness against them. Court agreed that the Province Law respecting Challenges should take place, and that the Prisoners may challenge with Cause and have the Jurors examined [on said] Law. Afterwards before the Cause opened, it appearing there was no probability of said Jos. Brown returning into the Province Kilroy and Hartigan were set at the Bar again and agreed to the Challenges made by the other Prisoners and consented to the Jury sworn, who were sworn over again.” Paine Massacre Notes.
The statute referred to is probably “An Act for the Better Regulating the Choice of Petit Jurors,” 29 March 1760, 4 A&R 318, 319, directing the justices of the courts
“upon motion from either party in any cause . . . to put any juror to answer upon oath (whether returned as afore said or as talisman) whether he . . . hath directly or indirectly given his opinion, or is sensible of any prejudice, in the cause. And if it shall then appear to said court that such juror does not stand indifferent in said cause, he shall be set a side from the trial of that cause, and another appointed in his stead.” Extended 20 March 1767, id. at 920, and 15 Nov. 1770, 5 A&R 86.
As to peremptory challenges, Blackstone says that the statute 22 Hen. 8, c. 14 (1530), limits them to twenty in felony trials. 4 Blackstone, Commentaries *348. No Province statute has been found.
4. “[W]hen a jury are all sworn, the officer bids the crier number them, for which the word in law-french is 'countez;' but we now hear it pronounced in very good English, 'count these.'” 4 Blackstone, Commentaries *334 note.
5. The petit jurors' oath: “You shall well and truly try and true deliverance make between our sovereign lord . . . the king . . ., and the prisoners at the bar, whom you shall have in charge according to the evidence. So help you God.” “An Act for the Establishing of Forms of Oaths,” 25 Nov. 1692, 1 A&R 78, 79.
6. Josiah Quincy, like Blowers, was not a barrister, each man having been admitted only as an attorney in the Superior Court of Judicature in Aug. 1768. Min. Bk. 79. Blowers was called as a barrister in Sept. 1772, ibid., but Quincy deliberately never took “the Long Robe.” Quincy, Reports 317.
7. Wemms.

Docno: ADMS-05-03-02-0001-0004-0002

Author: Adams, John
Date: 1770-11-27

Adams' Minutes of Crown Evidence1

27 November 1770

[James Dodge . . .]seemed to come from close before them, i.e. [ . . . ]I took it, the snow was flung on Purpose. I took [it, the?] soldiers { 108 } pushed, to keep the Inhabitants off. Saw no Oyster Shells thrown, and believe there were none. A Cake of Ice covered the Pavement there, and cov[ere]d up all the shells.
Samuel Clark. Saw White, before the Affray. He stood Sentry. He spoke to me, and asked me how we all did? I said pretty well. No body at all with the sentinel then.2
Edward Gambett Langford. Met 20 or 25 Boys and young Men, by the Centry Box. They said the sentry had knocked a Boy down. White is the Centry. I spoke to him, and bid him not be afraid. Saw Kilroy there that night. The Boys were swearing and cursing at him, but I saw no thing thrown. Centry got up to the Door and tryed to open it, but could not and then, he call'd out, what he Said I dont know. He levelld his Piece, but I told him not to be afraid. Then he took his Gun down. The young Shavers there said he had knocked a Boy down. At the Party, S. Gray came to me, took me by the shoulder and said what is here to pay? I said I dont know but I believe Something or other would come of it, by and by. S. Gray was just by me, when the 1st Gun went off. I stood so near that they might have reached me, and they did. A Bayonet went thro my Cloaths. I heard the Word Fire, twice, once G–d d—n you fire. About 40 or 50 People in the Streets, but others coming from Quaker Lane and Royal Exchange Lane. I had a Stick. I tho't 7 or 8 Soldiers. Dont know who fired the 1st Gun. I stood about ½ Way between the Centry Box and R[oyal] Exchange Lane. I saw Kilroy fire, and Saml. Gray fell and struck my left foot. I knew him before, very well, and know it was he. [ . . . ] there was 2 or 3 at Kilroys right. With red [coa]ts, but cant say whether armed or not. I said God d—n you, dont fire, or damn you dont, and he fired at once. Gray stood still by me. Kilroys Gun went off and S. Gray fell, and I heard no Gun by his at that time. Gray spoke to nobody but me, that I heard. He had no Weapen, was naked. Threw no snow Ball, or any Thing. Grays Hands were in his Bosom. I was looking Kilroy right in the Face. I heard the Ratling of Guns, but saw nothing flung. I took it Kilroys { 109 } Gun kill'd Gray. Did not see that Kilroy aimed at Gray any more than me. He designed to kill both of us I suppose.3
{ 110 }
Francis Archibald Jnr. I Saw Kilroy, that Night, go from the main { 111 } Guard to the Centry. I took it there were 6 besides the Corporal, in the Party. Dont recollect any other. Wa4
1. Adams Massacre Minutes, MHiMS 2. This MS, as it survives, begins with the minute of the last part of James Dodge's testimony. See Description of Sources and Documents.
Samuel Clark, Sworn.
Q. Did you see any of the prisoners in King-street on the 5th March?
A. Yes, before the affray happened.
Q. Which of them was it?
A. It was White. He was standing Sentry at the Custom-house: he spoke to me, and asked me how we all did at home. I immediately went home. Soon after I heard the bells ring, and went into King-street. When I came there, the soldiers were drawn up by the Main Guard.
Q. Was you there at the time of the firing?
A. I was not.
Q. When you spoke to the Sentry, was there any body with him?
A. No, he was walking backwards and forwards by himself.
3. Wemms Trial 16–19:
Edward G. Langford, Sworn.
I am one of the Town Watch.
Q. Was you in King-street that evening the 5th March?
A. Yes. The bells began to ring, and the people cryed fire: I run with the rest, and went into King-street; I asked where the fire was; I was told there was no fire, but that the soldiers at Murray's barracks had got out, and had been fighting with the inhabitants, but that they had drove them back again. I went to the barracks, and found the affair was over there. I came back, and just as I got to the Town pump, I saw twenty or five and twenty boys going into King-street. I went into King-street myself, and saw several boys and young men about the Sentry box at the Custom-house. I asked them what was the matter. They said the Sentry had knocked down a boy. They crowded in over the gutter; I told them to let the Sentry alone. He went up the steps of the Custom-house, and knocked at the door, but could not get in. I told him not to be afraid, they were only boys, and would not hurt him.
Q. Do you know the Sentry?
A. Yes.
Q. Is he among the prisoners?
A. Yes, that's he. (Pointing to White.)
Q. Do you know any of the rest?
A. Yes, that man. (Pointing to Killroy). The boys were swearing and speaking bad words, but they threw nothing.
Q. Were they pressing on him?
A. They were as far as the gutter, and he went up the steps and called out, but what he said I do not remember.
Q. Did he call loud?
A. Yes, pretty loud.
Q. To whom did he call?
A. I do not know; when he went up the steps he levelled his piece with his bayonet fixed. As I was talking with the Sentry, and telling him not to be afraid, the soldiers came down, and when they came, I drew back from the Sentry towards Royal-exchange lane, and there I stood. I did not see them load, but somebody said, are you loaded; and Samuel Gray, who was shot that night, came and struck me on the shoulder, and said, Langford, what's here to pay.
Q. What said you to Gray then?
A. I said I did not know what was to pay, but I believed something would come of it by and bye. He made no reply. Immediately a gun went off. I was within reach of their guns and bayonets; one of them thrust at me with his bayonet, and run it through my jacket and great coat.
Q. Where was you then?
A. Within three or four feet of the gutter, on the outside.
Q. Who asked, are you loaded?
A. I do not know whether it was the soldiers or inhabitants.
Q. Did you hear the word given to load?
A. I heard the question asked, whether they were loaded? but I heard no orders to load. Somebody then said, are you all ready: I then heard the word given to fire, twice distinctly.
Q. How many people were there before the soldiers at that time?
A. About forty or fifty, but there were numbers in the lane.
Q. Were they nigh the soldiers?
A. They were not in the inside of the gutter.
Q. Had any of the inhabitants sticks or clubs?
A. I do not know. I had one myself, because I was going to the watch, for I belong to the watch.
Q. How many soldiers were there?
A. I did not count the number of them, about seven or eight I think.
Q. Who was it fired the first gun?
A. I do not know.
Q. Where about did he stand that fired?
A. He stood on my right, as I stood facing them: I stood about half way betwixt the box and Royal-exchange lane. I looked this man (pointing to Killroy) in the face, and bid him not fire; but he immediately fired, and Samuel Gray fell at my feet. Killroy thrust his bayonet immediately through my coat and jacket; I ran towards the watch-house, and stood there.
Q. Where did Killroy stand?
A. He stood on the right of the party.
Q. Was he the right hand man?
A. I cannot tell: I believe there were two or three on his right, but I do not know.
Q. You spoke to him you say before he fired, what did you say to him?
A. I said either damn you, or God damn you do not fire, and immediately he fired.
Q. What in particular made you say do not fire?
A. Hearing the other guns go off.
Q. How many guns went off before he fired?
A. Two: but I saw nobody fall. Gray fell close to me. I was standing leaning on my stick.
Q. Did Gray say any thing to Killroy before he fired?
A. He spoke to nobody but me.
Q. Did he throw any snow balls?
A. No, nor he had no weapon in his hand; he was as naked as I am now.
Q. Did you see any thing thrown?
A. No, I saw nothing at all thrown of any kind.
Q. Was you talking with Gray at the time the gun went off?
A. I did not speak with him at that instant, but I had been talking with him several minutes before that.
Q. Was you so near Gray, that if he had thrown any thing you must have seen it?
A. Yes, his hands were in his bosom, and, immediately after Killroy's firing, he fell.
Q. Did you hear any other gun at that time?
A. None, till I had got near to the watch-house.
Q. How near were the people standing to the soldiers, at the time that gun shot Gray?
A. They were standing near the gutter.
Q. Did you see any thing hit the soldiers?
A. No, I saw nothing thrown. I heard the rattling of their guns, and took it to be one gun against another. This rattling was at the time Killroy fired, and at my right, I had a fair view of them; I saw nobody strike a blow nor offer a blow.
Q. Have you any doubt in your own mind, that it was that gun of Killroy's that killed Gray?
A. No manner of doubt; it must have been it, for there was no other gun discharged at that time.
Q. Did you know the Indian that was killed?
A. No.
Q. Did you see any body press on the soldiers with a large cord wood stick?
A. No.
Q. After Gray fell, did he (Killroy) thrust at him with his bayonet?
A. No, it was at me he pushed.
Q. Did Gray say any thing to Killroy, or Killroy to him?
A. No, not to my knowledge, and I stood close by him.
Q. Did you perceive Killroy take aim at Gray?
A. I did not: he was as liable to kill me as him.
4. MS breaks off thus.
Wemms Trial 19–20:
Francis Archibald, Clerk to Mr. Price, sworn.
Q. Did you see any of the prisoners in King-street, that evening of the 5th March?
A. Yes, I saw Killroy go down with the party towards the Sentry.
Q. How many of them?
A. I took them to be six, besides the Corporal.
Q. Did you see any of the rest there that you knew?
A. No.
Q. Did you see any of them fire?
A. No, I was not near them; I went to Stone's door.
Q. Did you see any snow balls or sticks thrown?
A. No.
Q. Was you looking at the party and the people by them before the firing?
A. Yes. There was a noise amongst them; I was not near enough to hear what was said, but I saw nothing thrown.
Q. Where was you when the party came down?
A. Near the middle of the street.
Q. Did you observe the party to divide themselves?
A. No; the corporal walked in front of them, as he always does at a relief.
Q. Do you know who rung the bell at the Brick meeting house?
A. No.
Q. Did you see any body get in at the windows of the Brick meeting house.
A. No. In Cornhill somebody said ring the bell, but who it was I do not know.
Q. Which bell rung first?
A. The Old Brick, I believe.
Q. Did you see what passed betwixt the soldiers and others at the barracks?
A. About ten minutes after nine, I saw a soldier, and a mean looking fellow with him, with a cutlass in his hand; they came up to me: somebody said, put up your cutlass, it is not right to carry it at this time of night. He said, damn you ye Yankie bougers, what's your business: he came up to another that was with me, and struck him. We beat him back, when seven or eight soldiers came out of the barracks, with tongs and other weapons; one aimed a blow at a young fellow, John Hicks, who knocked the soldier down. As he attempted to rise, I struck him down again, and broke his wrist, as I heard afterwards. I went to King-Street, and when the guns were all fired, I saw several persons dead.

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

DateRange: 1770-11-27 - 1770-11-28


27–28 November 1770

N.B. The Court being unable to go through this trial in one day, the King's Attorney and the prisoners consented to the Court's adjourning over night during the Trial, the Jury being kept together in the mean time, by proper officers, appointed and sworn by the Court for that purpose.
FIVE o'clock p.m. the Court adjourned to next morning, Wednesday[28 November]. NINE o'clock.
Wednesday, NINE o'clock, the Court met according to adjournment, and proceeded.

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

Author: Adams, John
Date: 1770-11-28

Adams' Minutes of Crown Evidence, Continued1

28 November 1770

James Brewer. To the best of my Remembrance I saw Kilroy. I came up r[oyal] exchange Lane, and saw the Sentry with his Bayonett breast high, and a Number of Boys 20 or more round him. He was on the steps of the C[ustom] H[ouse]. I spoke to the Sentry, and said to him, no Body would hurt him. The Boys were talking together, but doing nothing. I saw the Party come down. I spoke to C[aptain] P[reston] and said to him every Body was about dispersing. He said He hoped they were, and presently left me, and went in among them. Kit. Monk was there. I turnd round to speak to Kit Monk, and they fired and K. faltered. Kilroy struck me upon the Arm with his Bayonet as they came round before they were formed. The Firing began upon the Right, I thought it the Man quite upon the right. Kilroy struck at me. Saw no Blows, nothing thrown. Monk had a Catstick2in his Hand. Heard no Names called, no Threats, no shouts, no Cheers, till the firing. Saw the Molatto Man, but did not see him strike. Saw Dr. Young3at the Bottom of r[oyal] Exchange Lane with a sword in his Hand. He said the Soldiers had been making a Rumpus, but were gone to their Barracks. I said it was best for Us to go home and Dr. Young said so too.4
{ 113 } { 114 }
Saml. Emmons. I dont know any of the Prisoners. Nor anything.5
James Bailey. Saw Carrol and Montgomery, and White there the sentry. I was standing with the sentry upon the Custom House Steps, when the Party came down. I saw 20 or 30 Boys, Lads about 14 or 15 years of Age, about him. I asked the sentry what was the Matter? The Boys were heaving Pieces of Ice at him large and hard enough to hurt a Man, as big as your fist. He said he did not know what was the Matter but he was afraid, if the Boys did not disperse, there would be some• { 115 } thing by and by. I dont know whether any Ice hit him. Did not hear him knock at the door or call for assistance. When the Party came down, Carrol came and put his Bayonet up to my Breast, and the sentry told him not to hurt me. I went and stood leaning over the Post, between the Corner and the Post. Montgomery fired the first Gun. He was the next Man to me close to me, at the right. Cant Say whether the 1st. Gun killed or hurt any one. I Stoopd down to look under the Smoke and the others went off. ½ a Minute between 1st. and 2d. Gun. Montgomery was knockd down and his Musquet fell out of his Hand by a Clubb or stick of Wood by one of the Inhabitants and as soon as he got up he fired his Gun, I think Carrol fired next. The Clubb was not thrown but I saw him struck with it. He fell down himself and the Gun fell out of his Hand. The Person that struck was a tall, stout man. There was 50 or 60 People near. Montgomery fired, about where the Molatto fell. It was pointing towards the Place where we saw Attucks lie. It was not the Mollato that struck Montgomery. But the Blow was very violent. I heard 3 Cheers given two Minutes before the Firing. Carrol stood the 3 d. from the right. The People were shouting. Saw the Mollatto at the Head of 25 or 30 sailors with Clubbs some of em. Molatto had a large Cord wood stick. It was 7 or 8 Minutes before the firing that I saw them in Cornhill. They held their Sticks up huzzaing and whistling. I Saw a Number of Soldiers at Murrays Barracks and officers driving of em in. The Man that struck Montgomery down stood at the right of the right Hand Grenadier. The Blow was before the firing. Was at the Rope walks fryday or Saturday before. The soldiers had large Clubbs. Carroll was there.6
{ 116 }
Richard Palmes. I know Montgomery, and saw him there. Heard Bells ring, after 9. In Kings Street saw the sentry, at the Custom House. Went to Murrays Barracks, and saw 7 or 8 soldiers with their Guns &c. { 117 } Spoke to the officers &c. Saw Hickling, and Spear. I said I'd go and try to make Peace. Found C[aptain] P[reston] and 7 or 8 Soldiers. Went up to C. P. and saw Bliss, who said why dont you fire God d—n you fire. I askd him &c.
{ 118 }
I saw a Piece of Ice or Snow strike Montgomerys Gun. It struck the Grenadier, and made a Noise. He fell back whether he stepped back or sallied back I cant tell, and fired his Gun. Then I heard the Word fire. In 6 or 8 seconds, the soldier next to Captn. Prestin, fired. 7 or 8 Guns I believe were fired in the whole. Montgomery pushed at me. I struck, &c. Another was coming at me with his Bayonett and I ran.
I am sure Montgomery was not knocked down before he fired. He did not fall. Did not see any Blow given or any Thing sent but the Blow I gave myself and the Piece of Ice which hit Montgomery. Montgomery could not have been knockd down and I not have seen it before the firing, for he stood close to Captn. Preston. I struck Montgomery and knockd him down just as the last Gun was fired.7
{ 119 }
John Danbrook. Knows the 2 farthest Men, Hartigan and Carrol. Saw em there. I saw Montgomery there and saw him fire. Saw no Blow given or stick or any thing thrown at him. Montgomery stood at the { 120 } right of C.P. I saw a little stick fly over their Heads, but did not perceive that it hit. A Piece of a rattan or some such thing. I saw two fall as he fired, before I heard any other Gun. One fell just vs. my left Elbow, and the other about 3 foot from me about 10 or 15 foot from the Soldier. In a range with me, one was the Molatto. I believe it was with the first Gun that they were. They were 5 foot a sunder. It was not a Minute, after the Molatto fell that the other Man fell. I cant say, I heard another Gun, before I Saw the 2d Man down. I did not hear Attucks say any Thing. He stood leaning over a long Stick he had. I came through Dock Square. About 20 or 30 Persons, dressd in Sailers Cloaths. They cryd We'l go up this Way by the Town House. The Bells rung at this Time. Most of em had Clubbs. I did not see them in K's Street that I know of. I heard no Noise, no hazzaing, and Saw nothing thrown. I Saw the 20 or 30 first by the dock Square Pump. { 121 } The Clubbs were Cordwood sticks broke up as thick as one's Wrist.8
{ 122 }
Jed. Bass. I came up r[oyal] Exchange Lane, and saw Montgomery. Saw him push his Bayonet at a Man, I drew back about 5 foot and saw his Gun go off. He was the right Hand Man. Saw a stick [knocked?] to knock up his Gun, by whom I cant say. It knocked the Gun up 5 or 6 Inches. I think I saw him fall down after he fired, but am sure he did not before. I was placed so that I must have seen it. His Gun fell out of his Hand. What occasiond it dont know. The People were round him 7 or 8 foot off. I was 5 or 6 foot within the Lane. 6 Guns fired I think. I could not see all the Soldiers where I stood. I could see but 2 soldiers. I came thro r[oyal] exchange Lane. Saw a Number there. They were talking there of going Home. I heard 2 Cheers before the firing. The People in D[ock] Square were dressed some in Sailors Habits, some in Surtouts &c. Some had sticks. They said there was no fire, but that the soldiers had been out.9
{ 123 }
Thos, Wilkinson. Knew Montgomery. He lived close by me. No other. ¼ after 9 heard Dr. Coopers Bell ring. Saw the Engine. Ran to Mr. Bagnalls. Many People coming, with Baggs and Bucketts. I saw a Number of soldiers 10 or 12 by Boylstones alley, with swords and Bayonetts, pressing up towards the People. I went back and stopped at the Main guard. The soldiers appeard to me to be challenging the People, but I did not Stop one Minute to see any Stroke. The People at the Chamber Windows cryd for G—d Sake dont go there, if you love { 124 } your Life. When I went to the head of the main Guard, you could not see Man nor Boy nor Child in Kings Street. Dr. Chanceys Bell began to ring. I was not low enough down to see the sentry at the Custom House. In a very short Time I saw 40 or 50 People in Kings street. C. P. came down, to the Guard, and cryd d—n you turn out. They did. He went down with them at their right, 8 of them, I think, 2 files. I went with them as far as Mr. Waldoe's shop. I thought they were going to relieve Guard. C. P. stood at the right of em. In 4 minutes I heard the Word given fire, d—n your Bloods fire. They fired, regularly one after the other, like the Clock striking. I saw the flash of every Gun seperately. Firing began at the right, but dont remember seeing Montgomery after I got down there. The Circle coverd ½ r[oyal] exchange Lane. 7 Guns fired. One flashed. I was 2 yards from 'em. I stood there all the Time they were there, saw no Ice nor Snow Balls thrown. The People did not press on. I would have departed if I had seen any Pressing, or snow Balls or Blows. 2 or 3 Huzzas, before the Party marched down but none after. Not 12 minutes from the Parties going down, firing, and all.10
{ 125 } { 126 }
Josiah Simpson. Curious.11 Knows Warren, and Hartigan and White and Wemms and saw 'em there. At Faneuil Hall, I Saw a Number of Gentlemen. Asked what was the matter. They answerd me that 2 young Men had been abused by the Soldiers, and that the Soldiers were returned to the Barracks. The Bells ringing I ran up r[oyal] exchange Lane. At the Head of the Lane, no Person there but a Soldier, the sentry. The People coming up cryd heres <a> the soldier and huzza'd. The soldier at those Words immediately [repaired?] from the W. Corner of C. H. to the Door. Gave 3 loud and remarkable Strokes with the brass Knocker. 4 or 5. or 6 People or such a matter as that. Somebody came to the door and spoke to him. He turnd and loaded his Gun, and knockd it loud on the Stone Steps. I Saw the Soldiers with an officer coming. They Said nothing to the Sentry. Nor threw any Thing. The officer cryed Shoulder. 7 Soldiers. I take it. He C. P. orderd em to handle Arms, Ease Arms, Support Arms, and prime and load, and I am as certain of it, as I am of my own Existence. He stood behind the soldiers within the Circle next the C. H. C. P. behind em when they came down. The Soldiers on a run. I went up to the officer and said for G. Sake dont fire on these People. He was behind the soldiers then. I was before em at the Edge of the Gutter. I went then to the People and said for G–d Sake Gentlemen dont trouble these Men they are on duty. They said they would not, nor would be drove off by them. I then withdrew to the other Side of the Way and saw a Man a going to throw a Clubb. I begd him not to and he did not. I was then just by Wardells [Warden's] shop. I saw then one Clubb thrown in to the soldiers, I heard the Word present, I stoopd down and a little Time ensued, and then I heard d—n you fire. I believe the { 127 } Clubb hit one of the Soldiers Guns. I heard it strike. The Person that threw it stood about 10 foot from me, 10 Yards from the Soldiers. 2 Guns first. 3 Guns more were discharged, which killed Attucks and Gray, then 2 more which killed Caldwell who stood near me. The other Gun struck about 5 Inches over my back. I saw Attucks and Gray fall and heard them too. 3 or 4 seconds between the 2 and the 3 Guns. The last Gun wounded Patterson in the Arm, his Blood Sprinkled on my Waiscoat. 8 Guns I judged. The Stick was thrown 1 or 2 seconds before the 1st Gun. The Stick was a Cordwood Stick, a White birch. An inch thick. I heard Murder cryd between the 2 and the 3 Guns. By the Voice, I thought it was Maverick. The People made considerable Noise but no huzzaing, no bloody back.12
{ 128 }
Nathl. Fosdick. Did not know any of em that night. I was pushed behind by a Bayonet. They d—d my Blood and bid me stand out of the Way. I said I would not. They parted 3 went of one side of me and 6 of the other. I heard the Word fire, and the right Hand Man fired. { 129 } I then run in towards them and they pushed me with their Bayonetts and wounded me in the Breast shewing the scar.13 I had a Small Stick in my hand as big as my finger. Two different Bayonetts run into my Arm, I can shew the scar now. The Bayonet that struck me in the Breast, I put it aside, and the Gun went under my Arm, I never Struck, only as I put away the Gun. There had been no Blows struck that I saw and I could see the most of the soldiers. I knew nothing of the Cause of their firing. I Saw the Grenadier fall after he had fired.14
{ 130 }
Saml. Hemmenway. Sheriffs Coachman. Knows Kilroy. About a Week or fortnight before, I heard Kilroy Say at Mr. Apthorps that he never would miss an opportunity of firing upon the Inhabitants. He had wanted Such an Opportunity ever since he had been in the Country. He repeated the Words several Times. Mrs. Buker Mr. Apthorps House keeper was there and nobody else but the Negro Boy. I told him, he was a very great fool for saying so. He said he never would miss an opportunity.15
{ 131 }
Joseph Hilyer. Knows none. At the North [End] heard the Bells at the Mill bridge,16 heard it was a Rumpus between the Soldiers and Inhabitants. At the Conduit, Saw People who said I could not go up Cornhill, without Danger of Life, and they seemed to me to be there from fear to go not from a Design to do Mischief. I went up Kings Street. Saw the sentry and 20 or 30 People. Boys at Diversion, not so many as often seen there. He levell'd his Gun and waved it, in a Way that had a Tendency to exasperate a People. The People after the Party passed thro them came out to the Middle of the Street.
The People collected at the Head of r[oyal] exchange Lane. The soldiers with charged Bayonets at their Hips, as I passed the last Man upon the left, the Gun was fired on the right. The last Man upon the left but one, fired the last Gun at a Boy that ran down the middle of the street, but did not hit the Boy. I saw no Molestation, nothing that could produce any firing, and could not believe they had shot any Body. A little Boy, at Mr. Hicklings told me People were kill'd. I went { 132 } up to see, and I heard a Cocking of one Gun, and it ran thro the whole. An officer stepped forward and said dont fire upon the Inhabitants. They cocked without any orders. The soldier at the left did fire. Moon and snow made it light as day. The Head of the Lane was stopped up, by People.17
{ 133 }
Nick. Ferriter. I have seen Killroy and Warren at the Ropewalks in the Affray, the Fryday before. Never heard them threaten. They had Clubbs and Cutlaces.
Fryday [2 March] Mr. John Gray askd me to go to his Walk to make some Ropes. A soldier came down cursing and damning and Swearing, he would have satisfaction. By God he would have Satisfaction of me. He struck me. I <tript> knockd up his Heels and his Cloaths opend and discoverd a naked Cutlass under his Coat. He went away and brought about a Dozen more, Warren with them and another. We went up with Clubbs and they made Blows at our People and we at them and drove them away, and after that the whole Barracks came and Kilroy and Warren was with them and we had a Battle with them, and drove 'em off.
That night, 5 March, I heard the Bells ring, and in Quaker Lane I met Saml. Gray, and S. Gray said he would go home if there was no fire. He had no stick and was as calm as a Clock.18
{ 134 }
Benja. Burdick. I went up to one that I take to be the bald man but cant swear to any. I askd him if he intended to fire. Yes by the eternal God. I had a Cutlass or high Land broad sword in my Hand. Soldiers after the affray of the Ropewalks, came about my House, and I beat one of em off. They dogged a young Man that lived with me, and had been active in the Ropewalks. At first I had a Stick, and my Wife, told me to take this the Broadsword. I struck at the soldier19who pushed at me, and had I struck 2 or 3 Inches further, I should have { 135 } left a March that I could have sworn to. This was before the firing. I struck the Cock of the Gun. The Man I struck was the 4th. Man from the Corner, about the Middle. I saw but one Thing thrown that was a short stick, about 2 or 3 foot long. I heard a rattling. I took it they knocked their Guns together. They were continually pushing at People, and it was pretty slippery. I went afterwards to take up the dead, and they began to present and cock their Guns. The officer came before and knocked up the Guns, and said dont fire any more. Cant ascertain the Number of Guns, believe 5 or 6. I saw no Blows struck by others, for I had not time, to see before I drew my own sword.20
{ 136 }
Robert Williams. In Dock Square, it was said there had been an affray. Some went to the north, some one Way, some another. I went to K[ing] Street. People there. Some huzzaing, whistling, some leaning over their sticks. Somebody said dont press upon the Guard. I repeated the Words. The People seemed to be pressing as I was to get among the thickest of them. I heard a flash of a Gun. It made a Noise like a Pistal, a small Report. Another Gun went off, at the right a Man fell. The 3d Gun was fired. I saw the flash and heard the Report on my Knees. The People were running away, and the Guns seemed to move after the People. I saw People jumping upon the Backs of others trying to get in as I had been. Saw <no> some snow Balls, no sticks. I cautiond them not to press, upon the Soldiers least they should press the People upon the Points of the Bayonetts. They were within two foot. I was not there above a Minute. Saw no Blows.21
{ 137 }
Bartholomew Kneeland. I lived at Mrs. Toreys by the Town Pump. About a ¼ after 9 the Bells ringing, I went to the Door and saw a Number of soldiers. One came up to me, d—n you what do you do there. He put his Bayonet at my Breast and put it there sometime.22
{ 138 }
Mr. Thayer. A terrible swearing. Cutlaces and Clubbs were going. 7 soldiers came from the Town House without any Coats. Like wild Creatures. Damn them where are they cutt them to Pieces, a little after 9. I cant say who they were. The People below cryed fire. Soon before. I took it for a signal for the soldiers to come to help the others. The Cry of fire was by Justice Quincys.23
Mr. Nathl. Appleton. A little after 9. It was said at my Door the soldiers and Inhabitants were fighting. A Party of Soldiers came down from the Southward, 10 or 12, short Cloths on-white arms. I stood. I saw the Course of the Soldiers began to bend towards Us, and when they got about half a rod off they lifted up their Weapons. I retreated. They rushed on with uplifted Weapons and I thought myself in danger, if I did not retreat.24
{ 139 }
John Appleton.25 About 9 o clock, I was sent of an Errand, in K[ing] street, I was going home. At Jenkins ally about 20 soldiers. One came to me with his Cutlass. I cryd soldier Spare my Life. No damn you. We'l kill you all, and struck me upon the shoulder. I dodged or he would have Struck me on the Head.26
Coll. Thos. Marshall. No Body at Dock Square, no Body in Kings street at 9. K. Street never clearer. I some time after heard a distant Cry of Murder. A Party from the Main Guard came out, and damn em where are they? By Jesus let em come. I went in and came out again, and another Party came out of Quaker Lane. I saw their Arms glitter, and heard much such Expressions as before.27
1. Adams Massacre Minutes, MHiMS 2, continued (see note 18 above), followed without break in substance by Adams Massacre Minutes, MBMS (see note 141 below). See Descriptive List of Sources and Documents.
2. Catstick: a stick or bat used in tip-cat, a game in which a short piece of wood tapering at both ends is struck or “tipped” at one end with a stick so as to spring up, and then knocked to a distance by the same player. OED.
3. Dr. Thomas Young (1731–1777), a radical leader. See Edes, “Memoir of Dr. Thomas Young,” II Col. Soc. Mass., Pubns. 2–54 (1910).
4. Wemms Trial 20–24:
James Brewer, Block-maker, sworn.
Q. Please to look upon the prisoners, do you know any of them?
A. I think I remember this man (pointing to Killroy).
Q. Was you in King-street the fifth of March last?
A. Yes, in the evening.
Q. Please to inform the Court and Jury what you saw there?
A. I came up Royal-exchange-lane, and as I got to the head of it, I saw the Sentry on the steps of the Custom-house, with his bayonet breast high, with a number of boys round him: I called to him, and said, I did not think any body was going to do him harm. I saw Capt. Preston and some soldiers come down.
Q. Which of the prisoners was the Sentry?
A. I cannot tell, I was not so nigh him as to know his face.
Q. How many boys were there round him? [] A. I think about twenty.
Q. How old were these boys?
A. About fourteen or fifteen years old, perhaps some of them older, I saw no men there except one, who came up Royal-exchange lane with me, thinking it was fire. He went back again.
Q. What did you take to be the reason that the Sentry charged his bayonet?
A. I could not tell what the reason was; there was no body troubling him. I was at the corner of Royal exchange lane, and a young man went up to the Sentry and spoke to him; what he said I do not know.
Q. Was you there in the time of the firing?
A. Yes, I went towards the Sentry-box, where I saw Capt. Preston. I said to him, Sir, I hope you are not going to fire, for everybody is going to their own homes. He said I hope they are. I saw no more of him. He immediately went in amongst the soldiers.
Q. What number of soldiers were there?
A. I think seven or eight, I did not count them.
Q. Did Capt. Preston lead or follow them down?
A. I think he was upon the right of them. As they came down they had their guns charged breast high. I saw Christopher Monk, who was wounded that night, I turned to speak to him, and directly they fired, and he seemed to faulter. I said are you wounded, he said yes. I replied, I do not think it, for I then apprehended they fired only powder.
Q. Was it the first gun that you thought wounded Monk?
A. No.
Q. Did you see any of these prisoners there?
A. I think I saw Killroy, and that he was the man who struck me with his bayonet, when they came down, before they formed.
Q. Did any body near you do any violence to him? []A. No, I saw none.
Q. Had you seen Monk that evening before? []A. No, nor the day before.
Q. How near were you to the soldiers when they fired?
A. I was about ten or fifteen feet from them, I stood in the street just above Royal-exchange-lane, about six or seven feet from the gutter.
Q. Could you see the whole party?
A. Yes, they stood in a circle, or half moon.
Q. Did you take notice of the distance betwixt the first and second gun?
A. No.
Q. Was your back to them, when the first gun was fired?
A. No, my face was to them.
Q. Where did the firing begin?
A. Towards the corner of Royal-exchange lane, I think it was the man quite on the right.
Q. Did you know him? []A. No.
Q. Did the man that struck you do it on purpose, or accidentally, do you think?
A. I think he did it on purpose, I apprehended it so; I was standing by the gutter, and he was before me.
Q. Said he any thing to you?
A. No, nor I to him: he came to form, and I was closer than I wished I was, and he struck me.
Q. How came you to speak to the Sentry, and tell him not to be afraid?
A. Because he was swinging his gun in that manner.
Q. Did you come up Royal exchange-lane?
A. Yes. I saw Doctor Young there, and several others coming up to know where the fire was; Doctor Young said it was not fire, but that the soldiers had made a rumpus, but were gone to their barracks again. Then said I let every man go to his own home.
Q. Did you see any thing thrown at the soldiers? []A. No.
Q. Did you hear any body call them names? []A. No.
Q. Did you hear any threatning speeches?
A. No; except that the people cryed fire! fire!–the word fire, was in every body's mouth.
Q. Just before the firing, when Killroy struck you, was there any thing thrown at the soldiers then? []A. I saw nothing.
Q. Was there a number of people betwixt you and the soldiers?
A. Not many.
Q. Did you see Palmes talking with Capt. Preston?
A. No; I saw the molatto fellow there, and saw him fall.
Q. Did you see a party of people like sailors, coming down from Jackson's corner, with sticks? []A. No, I saw none.
Q. Where did you first see the molatto?
A. He was just before me by the gutter.
Q. Did you see any people coming from Quaker-lane with sticks?
A. I saw several inhabitants coming through that lane, but I saw no slicks.
Q. Were there any coming up Royal Exchange lane?
A. Yes, numbers, but I saw no sticks.
Q. When you first saw the molatto, did you hear him say any thing to the soldiers, or strike at them? []A. No.
Q. Had he a stick or club?
A. I did not take notice.
Q. Did you hear any huzzas or cheers as they are called?
A. I heard a clamour of the people, but I heard no cheers.
Q. Did you hear them call the soldiers any names?
A. No.
Q. Did you hear any body say, kill them, damn them knock them over?
A. No.
Q. Did you hear the whistling about the streets at that time?
A. No.
Q. Did you see any person strike with a club at the soldiers or any of them?
A. No.
Q. Did you see them attempt to strike their guns?
A. No.
Q. Did you hear the rattling of the guns as though a stick had struck upon them?
A. No. I heard the people around call fire.
Q. Did you take that to be the cry of fire, or bidding the soldiers fire?
A. I cannot tell now what I thought then.
Q. How many guns did you hear fired?
A. I think seven.
Q. Did the word fire proceed from the people or from the soldiers?
A. From the people.
Q. Was there a greater noise than usual, when the bells rang for fire?
A. I did not think there was so much. When I saw Dr. Young, he had a sword in his hand. When I came to King-street it was as quiet as I ever saw it in my life.
Q. Was the sword naked or not?
A. I cannot remember.
Q. What sort of a sword was it?
A. I do not remember.
Q. What did Young say to you?
A. He said it was the best way for every body to go home.
Q. Did any body huzza for King street?
A. No. I said, every man home, and the word went round.
Q. Did not Dr. Young say the soldiers were beat to their barracks?
A. No; He said they had made a rumpus, and were gone to their barracks.
Q. Do you know if Dr. Young went into King-street?
A. I cannot tell, I left him in the lane.
5. This witness' testimony does not appear in the Wemms Trial, nor in Paine Massacre Notes, although the latter contains Emmons' name, crossed out.
6. Wemms Trial 24–28:
James Bailey, sailor, sworn.
Q. Did you see any of the prisoners in King-street on the evening of the 5th of March last? []A. Yes.
Q. Which of them?
A. Carrol and Montgomery, and White who was the Sentry there.
Q. Did you see any of the rest?
A. No, I do not remember to have seen any of the rest.
Q. Was you there before the party came down? []A. Yes.
Q. In what part of the street?
A. I was standing along with the Sentry, on the Custom-house steps; I saw a number of boys round the Sentry.
Q. What number?
A. Twenty or thirty.
Q. Were they all boys?
A. Yes, none older than seventeen or eighteen years old.
Q. Did any thing pass between you and the Sentry?
A. Yes, When I first went up to him, I said, what is the matter? He said he did not know. The boys were throwing pieces of ice at him, and after I went to him, they threw no more; I stood with him five or six minutes.
Q. Did you see the pieces of ice thrown?
A. Yes.
Q. What sort of pieces, were they small or were they big enough to hurt a man?
A. Yes, hard and large enough to hurt any man; as big as ones fist.
Q. Did he complain any thing about it?
A. He said very little to me, only that he was afraid, if the boys did not disperse, there would be something very soon, he did not mention what.
Q. Did he tell them to disperse? []A. No, he did not say a word to them.
Q. Did you see any of the pieces of ice hit him?
A. There was nothing thrown after I went to him; if any thing was thrown, it was before.
Q. How came you to go to him?
A. I went up to him because I knew him, and to see what was the matter.
Q. Did you hear him knock at the door? []A. No.
Q. Did he call for any assistance? []A. I did not hear him.
Q. Was you there at the time of firing; please to recollect the circumstances?
A. When the soldiers came down, Carrol came up to me and clapt his bayonet to my breast, and White said do not hurt him.
Q. Was that before the soldiers had formed?
A. Yes; immediately on their first coming down. I stood betwixt the corner of the Custom house and the post there, with my arm a top of the post.
Q. Did you hear the first gun fired?
A. Yes.
Q. From what quarter?
A. From the right.
Q. Do you know the man that fired that gun.
A. It was Montgomery, he was the very next person to me, close to me. When White told him not to hurt me, he took his hand and pushed me right behind him.
Q. Did that first shot kill or wound any person?
A. I do not know.
Q. What space of time was it betwixt the first and second gun?
A. Half a minute, or less.
Q. Did you see any ice or snow thrown betwixt the first and second gun?
A. No.
Q. Did you hear any thing said?
A. There was a noise among the inhabitants, but I cannot say what they said.
Q. Did you see any thing thrown before the firing?
A. Yes; Montgomery was knocked down with a stick, and his gun flew out of his hand, and when he recovered himself he discharged his gun.
Q. Do you know where he stood at that time?
A. He was the very corner man, on the right, close to me.
Q. Who stood next him?
A. I do not know, but the man that stood the third from the right was Carrol, and I believe he was the next that fired.
Q. Did you observe any body strike Montgomery, or was a club thrown?
A. The stroke came from a stick or club that was in somebody's hand, and the blow struck his gun and his arm.
Q. Was he knocked down, or did the gun only fly out of his hand?
A. He fell I am sure.
Q. What with the blow on his arm?
A. His gun flew out of his hand, and as he stooped to take it up he fell himself; the blow struck his arm and might hit his body, for any thing I know.
Q. Did you see the person that struck him; was he a tall man?
A. He was a stout man.
Q. Was any number of people standing near the man that struck his gun?
A. Yes, a whole crowd, fifty or sixty.
Q. When he took up his gun and fired, which way did he present?
A. Towards Stone's tavern, I imagine he presented towards the Molatto.
Q. How far distant was he from Montgomery when he fell?
A. About fifteen feet.
Q. Did you see any of the rest of the persons fall?
A. No. When Montgomery fired, I stooped down, and when the smoke was gone, I saw three lying dead.
Q. Was the blow Montgomery received, upon the oath you have taken, violent?
A. Yes, very violent.
Q. When you came to the Custom-house, and saw the boys throwing ice, where did they stand?
A. In the middle of King-street.
Q. Were they thrown as hard, as they could throw them?
A. I believe they threw them as hard as they could.
Q. Was there at that time a good deal of ice in K street?
A. Yes, considerable broken ice.
Q. Before the firing, after the party came down, did you see any snow-balls, sticks, or ice, thrown at the party? []A. No.
Q. Did you hear any thing said to the party?
A. I heard nothing in particular said to them. I heard the cry of fire.
Q. Did you hear any threats?
A. No, none at all.
Q. Do you remember your examination before the Justices?
A. Yes. [This refers, apparently, to the commitment examination, and not to a deposition taken later. Bailey's is not one of the ninety-six depositions appended to the Narrative.]
Q. Do you remember your saying they were throwing sticks and cakes of ice, in the mob way?
A. No, not at the soldiers.
Q. Did you hear any cheers?
A. Yes, I heard two or three cheers.
Q. What time?
A. About two minutes before they fired.
Q. Did you hear anything said to this purpose, knock them over! kill them! kill them?
A. No, I did not.
Q. What did the people seem to be doing?
A. They stood front of them, and were shouting; but I saw no violence done, but to that one man.
Q. What did the people do immediately on the firing of the first gun?
A. I could not see because of the smoak.
Q. Did Montgomery say any thing upon the firing of his gun?
A. Not a word: nor any of the soldiers.
Q. Did you see a number of persons coming up Royal-exchange-lane, with sticks?
A. No, I saw a number going up Cornhill, and the Molatto fellow headed them.
Q. Was this before the guard came down or after?
A. It was before the guard came down.
Q. How many might there be of that party?
A. Betwixt twenty and thirty: they appeared to be sailors; some had sticks, some had none. The Molatto fellow, had a large cord-wood stick.
Q. Did they come down King-street afterwards?
A. I did not see them come down. I did not see the Molatto afterwards, till I saw him dead.
Q. Which way was the Molatto with his party going, when you saw them?
A. Right towards the Town-pump.
Q. Which way did you go into King-street?
A. I went up Royal-exchange-lane.
Q. How long before the firing, was it, you saw them in Cornhill?
A. Six, seven, or eight minutes, I believe.
Q. Were the bells ringing then? []A. Yes.
Q. What did the party with the Molatto do or say?
A. They were huzzaing, whistling and carrying their sticks upright over their heads.
Q. What number of sticks, do you suppose might be in the whole?
A. Seven or eight I suppose; some of them whistling, some huzzaing and making a noise.
Q. Did you know their design?
A. I did not: when they went up Cornhill, I went up Royal-exchange-lane.
Q. Did you see any soldiers about that time in the street?
A. Yes, I saw a number at Murray's barracks, and some officers driving them in.
7. Wemms Trial 28–30:
Richard Palmes, Merchant, sworn.
Q. Do you know any of the prisoners?
A. I know Montgomery, I saw him in King-street with the party on the evening of the 5th of March last. I was with some gentlemen in company, I heard the bells ring after 9 o'clock; I went into King-street, and I saw the Sentry at the Custom-house door as usual, and no body with him; when I came to the Town-house, I was told the soldiers were abusing the inhabitants; I asked where, and was told at Murray's barracks. I went down there, and saw four or five soldiers, with their guns and bayonets; I told the officer who stood by, I was surprised they suffered the soldiers to be out at that time of night; an officer said, do you pretend to teach us our duty Sir, I said no, only to remind you of it: You see, says he, the soldiers are in their barracks, why do not you go home. I saw Mr. Hickling, he was my neighbour, he said he was going home, we came up as far as the post office, where he left me; then I saw Mr. Spear, he said he was going to his brother David's; when I got to the Town pump, I heard a noise, and was told there was a rumpus at the Custom house; I said, I will go down and make peace, he said, you had better not go. I left Mr. Spear, and went down, and saw Capt. Preston at the head of seven or eight soldiers, with their guns, and bayonets fixed; I went to Capt. Preston, and saw Mr. Theodore Bliss talking with him, who said to Capt. Preston, “Why do you not fire,” “God damn you fire.” I stept betwixt them and asked Capt. Preston if the soldiers were loaded, he said yes, with powder and ball: I said, I hope Sir you are not going to fire upon the inhabitants, he said by no means: That instant I saw a piece of ice strike Montgomery's gun, whether it sallied him back, or he stept one foot back, I do not know, but he recovered himself, and fired immediately. I thought he stept back and fired, he was the next man to Capt. Preston, the only soldier that was betwixt the Captain and the Custom house. When he fired, I heard the word fire, who gave it I do not know. Six or eight seconds after that, another soldier on the Captain's right fired, and then the rest one after the other, pretty quick; there was an interval of two or three seconds, between the last gun but one, and the last.
Q. How many guns were fired?
A. I do not know certain, seven or eight I believe, I did not count them. Before the last gun was fired, Montgomery made a push at me with his bayonet, I had a stick in my hand, as I generally walk with one, I struck him, and hit his left arm, and knocked his gun down; before he recovered I aimed another stroke at the nearest to me, and hit Capt. Preston, I then turned and saw Montgomery pushing at me again, and would have pushed me through, but I threw my stick in his face, and the third time he ran after me to push at me again, but fell down, and I had an opportunity to run down Royal-exchange-lane.
Q. Did you take notice of the situation of the soldiers?
A. I saw the form they were in, they were formed in a half circle.
Q. Which way did Montgomery front? []A. He fronted the watch house.
Q. Did you stand in a range with the watch house and the corner of the Custom-house?
A. Yes.
Q. Are you certain that Montgomery was struck and sallied back before he fired?
A. Yes.
Q. Do you know whether it was with a piece of ice or a club?
A. No.
Q. Do you know whether it hit his body, or his gun, or both?
A. It struck both, I suppose.
Q. Did you see any other violence offered, except that which struck Montgomery, and the blows you aimed and gave?
A. No, no other.
Q. Are you sure Montgomery did not fall, just before he discharged his gun?
A. Yes.
Q. Upon the firing the first gun, did the people seem to retire?
A. Yes, they all began to run, and when the rest were firing they were a running.
Q. Did you see any of the deceased fall?
A. No, I did not, but afterwards I saw Gray and Attucks lying.
Q. Did you see all the rest of the soldiers discharge their pieces?
A. I saw the smoke, and it appeared to me at that time they all fired.
Q. When the last gun was fired, where were the people?
A. They were running promiscuously about every where.
Court. Call James Bailey again.
Q. Have you heard Mr. Palmes' testimony?
A. Yes.
Q. Are you satisfied, notwithstanding what Mr. Palmes says, that Montgomery was knocked down by a blow given him, immediately before he fired?
A. Yes, I am.
Q. Did you see any of the prisoners at the Rope walks in the affray there, a few days before the 5th March?
A. Yes, I saw Carrol one of the prisoners, there with other soldiers in that affray.
In March 1771, Palmes published his own version of his testimony, Boston Gazette, 25 March 1771, p. 2, col. 1–2:
Court. Do you know any one of the prisoners at the bar?
A. I know Montgomery: I saw him with the party in King-street the 5th of March.
Q. Please to relate what you saw of him.
A. I then repeated the same as I did at the trial of Captain Preston.
Q. In what manner were the soldiers situated?
A. They were in a circular form.
Q. Which Way did Montgomery front?
A. He fronted the Watch-House.
Q. Did you stand in a range with the Watch-House, and corner of the custom-house?
A. In a range from Montgomery's left, with the Watch-house.
Q. Are you sure Montgomery was struck and sallied back before he fired?
A. I tho't he stept back when it hit him.
Q. Do you know whether it was a piece of ice, or a club?
A. It was something resembling ice.
Q. Do you know whether it hit his body, or his gun, or both?
A. I think it struck both.
Q. Did you see any other violence offered, except to Montgomery, and the blows that you gave?
A. I saw no other.
Q. Are you sure Montgomery did not fall just before he fired?
A. Yes, I am sure of it.
Q. Upon firing the first gun, did the people seem to retire?
A. Yes, they appeared to me to run, promiscuously, from the first gun's being fired to the last.
Q. Did you see any of the deceased fall?
A. I did not; my back was towards them; at that time I ran into royal-exchange lane; and as I turned, I saw Gray and Attucks lying on the snow.
Q. Did you see all the rest of the soldiers discharge their pieces?
A. I saw the smoke, and at that time it appeared to me they all fired.
Court. Call James Bailey.
Bailey's testimony is exactly as set out in the Wemms Trial except that Palmes or the Gazette printers omitted the final question and answer. Palmes added this comment: “I imagine this evidence was bro't to invalidate my declaration in court; but I assure the world upon the oath I then took, that Montgomery did not fall until he attempted to run his bayonet thro' my body; which was about the time the last gun went off.”
8. Wemms Trial 30–32:
John Danbrooke, sworn.
Q. Do you know any of the prisoners?
A. Yes, the two furthest men, Hartegan and Carrol.
Q. Did you see them in King-street the 5th of March?
A. Yes.
Q. What time did you come into King-street?
A. About a quarter after nine, after the party were come down.
Q. Were these two men of the party?
A. Yes.
Q. Was you there at the time of the firing?
A. Yes.
Q. Did you see any of the party discharge their muskets?
A. Yes, Montgomery.
Q. Did you know him before?
A. No.
Q. Did you see any body strike him with a stick, or a stick thrown at him?
A. No.
Q. Whereabouts did you stand?
A. About ten or twelve feet from Capt. Preston, I saw a little stick fly over their heads, but I did not perceive it struck any of them.
Q. How large was it?
A. I took it to be a piece of a rattan.
Q. Did you see any thing at all hit the soldiers?
A. No, I did not.
Q. Was you looking at Montgomery when he discharged his piece?
A. Yes.
Q. Did you see any body fall upon his firing?
A. Yes, I saw two fall, one fell at my elbow, another about three feet from me. I did not hear the sound of another gun, before they both fell.
Q. Were they standing before Montgomery?
A. Yes, about twelve or fifteen feet from him, and about five feet apart, one was the Molatto, the other I did not know.
Q. Do you think one gun killed both these men?
A. Yes, for I heard no other gun when they fell.
Q. Are you certain the other person was killed?
A. Yes.
Q. Did you hear any other gun before that man fell?
A. No.
Q. Did the Molatto say any thing before the gun went off?
A. I heard him say nothing. The Molatto was leaning over a long stick he had, resting his breast upon it.
Q. Was you in Dock square before the firing?
A. Yes.
Q. How many people did you see there?
A. I saw about twenty or thirty gathered up by the Town pump in the market, some with clubs; they went up Cornhill, most of them drest in sailors cloaths.
Q. Did you then know where they were going?
A. They said let us go up to the Town-house. The bells were ringing at that time.
Q. Had they in general clubs?
A. The biggest part of them had clubs.
Q. Did you see any of them afterwards in King-street?
A. No, not that I knew.
Q. Did you see a tall man at the head of them?
A. No, I took notice of none in particular.
Q. Did you hear a huzzaing before the firing, or see any thing thrown except that stick you mentioned?
A. No.
Q. Had these persons when they were in Dock square, any clubs?
A. About half of them had sticks; there were between twenty and thirty of them.
Q. Did they hold them up over their heads?
A. Some did, and some did not.
Q. Did you see any body with a sword, at the bottom of Royal-exchange-lane?
A. No, I did not.
Q. Did you see any soldiers there, about that time?
A. No.
Q. What do you mean by clubs?
A. They were cord wood sticks broken up.
Q. Did any of them appear to be large?
A. They were about as thick as one's wrist.
Samuel Quincy Massacre Minutes, MHi:
Jno. Danbrook. Saw Hartigan, Montgomery and Carroll there, of the party. About ¼ past 9 when he came down. Stood about 10 or 12 feet from Montgomery. Saw no stick strike him. A little one flew over there heads took to be a little piece of Rattan. Looking at Montgomery when he fired, upon his firing 2 Men fell did not hear the second gun, one Attacks, one fell near to his left hand and another about 3 foot from him. He stooped to see if the Mollatto was dead. Then turned round and saw the other man fall, about a minute between the 1st and 2d gun. Knew neither of Them, nothing past before the firing that he saw but the boys making a [Noise]: Attacks leaning on his Stick.
9. Wemms Trial 32–34:
Jedediah Bass, sworn.
I came up Royal-exchange-lane, and the first I saw was Montgomery, I saw him pushing his bayonet.
Q. Did you know Montgomery then?
A. Yes: I drew back about five feet, and I saw his gun go off.
Q. Where did Montgomery stand?
A. At the corner of Royal-exchange-lane, the right hand man of the party.
Q. Who did he push at?
A. I cannot tell.
Q. How long after that before his gun went off?
A. About a minute.
Q. Had any thing happened betwixt that and the firing?
A. I saw a stick knock up his gun.
Q. Do you know who it was knocked it up?
A. No.
Q. How near did you stand to him?
A. About five feet off, within Royal-exchange-lane.
Q. Did that stick knock up his gun before he fired?
A. Yes.
Q. Did he bring it down before he fired?
A. He brought it down to the place where it was before; and then he fired.
Q. Was you looking at him all the time before he fired?
A. Yes.
Q. Are you certain, he did not fall before he fired?
A. Yes.
Q. Are you sure, if he had fallen, you must have seen him?
A. Yes, from my situation I think I must have seen him.
Q. What sort of a stick was it his gun was knocked up with?
A. It looked like a walking stick.
Q. Did you see him fall after he fired?
A. Yes.
Q. What occasioned his fall? []A. I cannot tell.
Q. Did you see any body strike him, or at him?
A. No.
Q. Did his gun fall out of his hand?
A. I think it did.
Q. Are you sure that was before, or after his firing?
A. After his firing.
Q. How near were the people to him at the time of his firing?
A. Seven or eight feet off.
Q. Did you see any other of the prisoners there that night?
A. Not to my knowledge.
Q. Did you stay till all the guns were fired?
A. Yes.
Q. How many were fired?
A. Six, I think, but I did not count them.
Q. At the place where you stood, could you see all the soldiers?
A. No, only two, they stood in a circular form.
Q. After the first gun was fired, did not the people begin to run down the lane? []A. Yes.
Q. Did you hear any words spoke by the party of soldiers or any of them?
A. No.
Q. How long did you continue there?
A. About five minutes, not longer: untill all the guns were fired.
Q. Did you come from Dock square up to King-street?
A. Yes.
Q. Did you see any people there?
A. I saw about twenty.
Q. What were they doing?
A. They were talking about going home.
Q. Were the bells ringing?
A. Yes.
Q. Did they mention any thing why the bells were ringing?
A. They said first it was fire, and then that the soldiers were out.
Q. Did you hear any cheers given in King street?
A. I think I did before they fired.
Q. How many?
A. Two I think.
Q. Who gave them?
A. The town's people.
Q. How long before the firing?
A. About two minutes before the firing.
Q. How were the people drest in Dock square?
A. Some in sailors cloths, some in surtouts.
Q. Had they sticks?
A. Some had, some had not.
Q. Did you hear them mention their going to the Town-house?
A. No.
Samuel Quincy Massacre Minutes, MHi:
Jed. Bass. Coming up R. Ex. Lane when he got into K.S. he saw Montgomery who pushed his Bayonet at a Man. He drew back about 5 feet and in a Minute he fired. A walking Stick knocked up his Gun, he bro't it to a level and then fired. Is certain that Montgomery did not fall before he fired, must have seen him if it had been so. He fell after he fired. The people about 7 or 8 feet from the party. 6 Guns he thinks fired but did not count 'em. The People began to run down the Lane after the first Gun. The People in Dock Square said, lets go home there's no fire the Soldiers have been fighting &c. Some had Sticks and some none. Some one Way and some another. Heard 3 Chears about 2 Minutes before the firing began.
10. Wemms Trial 34–37:
Thomas Wilkinson, sworn.
Q. Do you know either of the prisoners?
A. Yes, I know Montgomery, he used to live close by my house; I know none of the rest. I was at home the whole evening, the Old-south bell rung for nine as usual; about a quarter after, I heard Mr. Cooper's bell ring, I went out and I saw the Old south Engine haulled out. I ran down as far as the town-pump, there seemed to be a considerable body of people, and some with buckets. The people out of the chamber windows, said, do not go down there, you will be killed. I saw ten or twelve soldiers with naked cutlasses by Boylston's alley. I saw them with their cutlasses and bayonets drawing up towards the people. I went back and stopped at the Main-Guard.
Q. Were there a number of the town's people there at that time?
A. Yes, and many with buckets in their hands.
Q. Were they contending with any body?
A. No they were standing in the street.
Q. What were the soldiers doing?
A. They were brandishing their swords and sallying up to the people, but I did not tarry there one minute.
Q. What number of people were there?
A. Thirty or forty.
Q. Had the persons the soldiers came up to, any thing in their hands?
A. No they had nothing but buckets. I took it they were brandishing their swords at the people, but I saw them strike no body. I went to the Main Guard, I saw the Sentries before the Guard house, walking as usual. I staid on purpose to see some body come back from Boylston's alley, to know if any were wounded. People were coming down from the South-end, crying where is the fire? Where is the fire? I said there is no fire, but the soldiers fighting. At that time, in King street, I do not think you could see a man, child, or boy passing. I stood there at the Main-Guard about four minutes. The Old Brick bell began to ring, and the people seemed to come along fast, with buckets and bags.
Q. Did Mr. Cooper's bell ring before? A. Yes, a good while.
Q. Could you see the Sentry at the Custom-House where you stood?
A. No, I staid there about five minutes, and in a very short time I looked down king-street, and saw thirty or forty people in King-street; Capt. Preston came down to the Main-Guard, as it were from behind the Brick meeting, and said turn out, damn your bloods, turn out: A party of soldiers turned out, Montgomery was amongst them; I was going to Montgomery, to ask what they were going to do? They drew up in two files, I think there were eight men, Capt. Preston drew his sword, and marched down with them, and I went down as far as Mr. Waldo's shop with them, I thought they were going to relieve guard. After that, I went up by the Main-guard again, having left the soldiers on their march down from Waldo's shop, and passed round the Town House, came down the north side of it, and went down King-Street, and got within two yards of the right of them; I saw Capt. Preston standing at the right of the circle, I staid there about four minutes, when I heard the word given, fire! There was none fired then. Then I heard damn your bloods, fire! Instantly one gun went off, I saw the flash of every gun as they went off, one after another, like the clock striking.
Q. Where did the firing begin?
A. It began at the right.
Q. Did you see Montgomery after he got down there?
A. No.
Q. Where did you stand when the guns were fired?
A. I stood about two yards to the right, in Royal-exchange-lane, and towards the back of the soldiers; I am positive the firing began at the right and went on to the left. I counted the guns.
Q. How many were fired?
A. Seven fired, and one flashed.
Q. Was there a longer distance betwixt the first and second gun, than betwixt the rest? A. No more than the rest, I think.
Q. Did you see any man fall?
A. I did not. There was a large opening at the centre, but on the right and left wings the croud was close and thick.
Q. Could you see all the soldiers?
A. No, I could not, there were many people between me and the soldiers.
Q. Did you see the person who held the gun that flashed?
A. Yes, but I did not know him.
Q. Whereabouts was he standing?
A. I believe, by the flash, he was the third or fourth man from the right.
Q. Did you see any thing thrown at any of them before the firing?
A. No, I stood all the time they were there, and saw nothing thrown at all.
Q. Did you see any body knocked down?
A. No.
Q. You saw no ice nor snow balls?
A. No, I did not.
Q. Did the people round you seem to be pressing on so as to injure the soldiers?
A. No; had I seen any thing thrown, I would have gone away.
Q. Did you see any blows given by any body, before or after the firing?
A. No. I did not.
Q. Do you know Mr. Palmes?
A. No, I saw a man talking with the officer?
Q. Do you know Mr. Bliss?
A. No.
Q. Did you hear any huzzaing?
A. Yes, before the party marched down, there were two or three huzzas, but afterwards none at all.
Q. How many people do you imagine were there?
A. Sixty or seventy.
Q. From the time they went from the Main-Guard, till the firing, how long was it? A. It was not more than ten or twelve minutes.
Samuel Quincy Massacre Minutes, MHi:
Thos. Wilkinson. Knows Mont[gomery] lives next to him, had often been to get fire &c. Bells rang for 9 as usual. Afterwards Mr. Cooper's. Put on his Surtout and went out to see where the fire was. Got as far as the Town pump by Bagnal's. The people cried out don't go there you'l be kill'd. Saw the Soldiers with drawn Cutlasses at Boylstone's Alley, sallying out brandishing their Swords, saw none of the people contending with 'em. About 30 or 40 coming thick with Buckets &c. Appeared to him as if the Soldiers were challenging the people. Went to the Main-guard, stood there to <see> hear if any Body had been wounded. At that Time no body in K.S. Old brick-bell began to ring. Dr. Cooper's rung some time before. Stood there 5 Minutes or so Capt. Prest. came and said damn you turn out. A party of 8 came. Prest. drew his Sword and marched on the Right of 'em; about 30 or 40 people in the Street. Went as far as Waldo's Shop and went up to the Main-guard but did not stop, went round the North of the Town-house. The party formed in a Circle at the C.H. Stood about 4 minutes heard the Word fire. They did not fire, then heard the Word repeated, upon which the Guns went off like the striking of the Clock. Fire began at the Right. 2 yds. from 'em. Saw the Flash of Each Gun, 7 went off, one flushed. He not scared, imagining it was only powder. Thinks it was the 3d or 4th Man from the Right that flushed. Saw no Blows given nor Snow-balls, Ice, nor Oyster Shells thrown, nor pressing in of the people, had he, he should have retir'd. Heard 2 or 3 Chears before the party went down, but none afterwards. (NB. This he says very emphatically!)
11. Inserted in the MS above the line, this word may possibly be a comment by JA rather than part of Simpson's testimony.
12. Wemms Trial 37–40:
Josiah Simpson, Joiner, sworn.
Q. Do you know either of the prisoners?
A. Yes, White.
Q. Do you know either of the rest?
A. Yes Wemms.
Q. Do you know any other?
A. Yes, Warren and Hartegan, I saw them there that night under arms. On Monday evening 5th of March, I was at work near Hancock's wharff, hearing a bell ring it caused me to leave the shop to make inquiry what the matter was; I heard the soldiers had rose on the inhabitants, and I got as far as Fanuiel Hall. I saw several gentlemen, I asked them what the matter was, they answered me, that, two young men had been abused by the soldiers, but that they had returned to their barracks. The bells still ringing made me proceed up Royal-exchange-lane with a number of other persons: I out run them and came to the head of the lane, there being no person there but a soldier who was the Sentry, the other Inhabitants coming up, they cryed out there is a soldier and huzza'd. The soldier immediately repaired to the Custom house door, he was at the west corner of the house before; there, with a large brass knocker, gave three loud and remarkable strokes.
Q. What number of persons were there came up immediately after you?
A. Five or six. Somebody came to the door and opened it, and spoke to the Sentry, and then shut the door again.
Q. What was said to him?
A. I did not hear. The soldier then turned about and loaded his gun, and knocked it twice very loud on the steps; then he went to the west corner of the house where he had been before, the people gathered round him; I went with him, and I cast my eye up King-street, and saw an officer and seven men, they came to the west corner of the Custom-house.
Q. Was any thing done to molest them then?
A. No, nothing at all. The officer then cryed shoulder.
Q. Do you know who that officer was?
A. I have seen him in the Court.
Q. How many soldiers were with him?
A. Seven.
Q. How did they stand then?
A. They stood in a circle. The officer then said, handle your arms, ease your arms, secure your arms, support your arms, ease your arms, prime and load.
Q. Are you certain he said all that?
A. I am as certain, as I am of my own existence.
Q. Where did Capt. Preston stand then?
A. He stood a little behind the soldiers towards the Custom-house. There were about fifteen or twenty inhabitants in the street, when the party came down.
Q. Were the soldiers formed before they loaded?
A. They were not really formed: they were in a kind of a circle, after they had loaded they formed more into a circle than they were before.
Q. Did you know Capt. Preston before that?
A. I did not.
Q. Was you there when the guns fired?
A. I went up to the officer, and said for God's sake do not fire on these people: he made me no answer at all.
Q. Where was he then?
A. He was standing behind the soldiers.
Q. Was you behind the soldiers?
A. No, a little before them, at the edge of the gutter.
Q. Did you see any person with him?
A. No, none at all. I pushed through betwixt two of the men, and spoke to him that way, he had on a red coat, and laced hat. I saw no more of him. I went to some of the inhabitants, and said, do not trouble these men, they are on duty. Some said we will neither trouble them, nor be drove off by them.
Q. Did you hear any orders given for firing?
A. I heard damn you fire: it seemed to me as it came from the Sentry-box where I left the Captain. I was then by Vernon the barber's shop; I had passed across the street. I saw a man going to throw a club, I begged of him not to do it, for I said if he did, the soldiers would certainly fire: he said, he would not, and did not. I then saw a white club thrown at some distance from me towards the soldier's; immediately I heard the word present, I stooped down, a little space of time ensued, I heard damn you fire: two guns were discharged then as I judged.
Q. Did that club hit any body?
A. I believe it hit one of the soldiers guns, I heard it strike.
Q. Was that before the firing, or after?
A. Before the firing.
Q. How near to the soldiers was the person that threw the club?
A. About ten yards off. Three or four more guns were then discharged, which killed Attucks and Gray, I heard and saw them fall; then two more were discharged, one of them killed Mr. Caldwell, who was about ten feet distance from me, the other struck about five inches over my back.
Q. What space of time was there betwixt the second gun and the third?
A. I took it to be about two or three seconds. Another gun was then fired, which wounded Mr. Patterson in the arm.
Q. How long after the club was thrown, was it, before the first gun was fired?
A. Not above one or two seconds.
Q. What sort of a stick was it that was thrown?
A. I took it to be a white birch cord-wood stick, an inch thick.
Q. What sort of a man, for heighth, was he that threw it?
A. He might be about five feet and an half.
Q. How do you know what number of guns were fired together?
A. I judged by the report: I saw the flashes.
Q. Did you see any of the persons that were killed, that evening before they were killed?
A. No.
Q. Upon the oath you have taken, did that man throw the stick with considerable violence, or not?
A. He threw it considerable hard, he threw it over hand.
Q. Were any people standing betwixt the soldiers and the man that threw that stick?
A. Yes, some, but not many.
Q. Did the people make a great deal of noise and huzzaing?
A. Yes, considerable.
Q. Did you hear them say to the soldiers, bloody backs, come on you bloody backs?
A. No. I heard no such thing, but when the two first guns were discharged, some one cryed murder, and by the voice I think it was Maverick. These guns killed nobody, unless Maverick was then shot.
Samuel Quincy Massacre Minutes, MHi:
Josiah Simpson. Knows White and Wemmes, Warren and Hartigan all there. On that Evening at worked at Mr. Hancock's Wharff, saw a Number of Gentlemen at Fanuiel Hall. They said 2 young Men had been abused by the Soldiers but they had retired to their Barracks. The Bells still ringing I went up R. Ex. L. and out run those who were with Me. Nobody in the Street but the Sentry; Some said here's a Soldier, about 5 or 6 people. The Sentry at once repaired to the C[ustom] H[ouse] steps, there with the Brass knocker at the Door. Somebody opened the Door and spoke to the Sentry, but he did not hear what was said. The Door was shut and the S[entry] immediately loaded his Gun, knocking it hard on the Steps. The party came down. No Disturbance, or molestation of the S. between the S. loading and the party's coming down, neither by Words nor Blows. The officer when They got down said Shoulder. 7 Soldiers. Capt. Prest. gave several Words of Command. Handle, Arms; Ease, Arms. Secure, Arms; prime and Load &c. Is as certain of this as of his own Existance. Went up to Capt. Prest. said for God's Sake don't fire upon These people. Prest. behind the Soldiers when he spoke to him thro' Wemmes and another, upon receiving no answer he turning to the people said for God's Sake don't trouble these Soldiers they are upon Duty. They said we won't be drove off by Them. He then retreated to Warden's Shop, see a man going to thro' a Club, desired him not to, and he did not. Then he saw a Club about 10 Yds. from them thrown among the Soldiers, believes it hit one of the Soldiers Guns, hearing it strike. Immediately heard the Word present. Then heard 2 guns fired, killed Nobody that he saw. Then 3 which killed Attucks and Gray. Then 2 one of which kill'd Caldwell, one Ball about 5 Inches over his <Head> Back; about 3 Seconds between the 2 first and the 3. Then another Gun which wounded Patterson in the Arm. A white Cordwood Stick that was flung. The people made a Noise, but no huzzing, did not hear the Cry of Bloody-backs, &c.
13. Apparently the witness here displayed the scar.
14. Wemms Trial 40–41:
Nathaniel Fosdick, Hatter, sworn.
Q. Did you see any of the prisoners the 5th March?
A. Not so as to know them again. That evening, at the cry of fire, I came out of my house, and saw the people running down town, and I followed them; when I got by the Town-house, I saw some going down King-street, I went down also: At the Guard house, I saw a number of the soldiers running; I asked where was the fire, no body answered me. I went down to the middle of King-street, and while I stood there, was pushed from behind me with a bayonet. I turned round and saw a party of soldiers coming down, I asked one the reason of his pushing at me? he damn'd my blood, and bid me stand out of their way, I said I would not, I was doing no harm to any man, and would not stand aside for any one, they passed me some on one side, some on the other. Then came to the Sentry-box, faced round and formed a circle. I spoke to some of the inhabitants to speak to Preston, to know what the matter was; some body spoke to him, but what was said, I do not know. I saw Preston fall in betwixt the fourth and fifth man, the word was given fire! immediately the right hand man fired; after that I pushed in towards them, and they run a bayonet at me and wounded me in my arm.
Q. Who was it struck you?
A. The second man, the first gun was then fired, the second was not; the guns went off pretty quick.
Q. Was it the same soldier that struck you, pushed you in the arm?
A. No. I was pushed twice in the arm by two different bayonets; I knocked off one of them with my stick, with the other I was wounded in my breast, the wound an inch long, through a double breasted jacket.
Q. Was no blows given before the guns were fired?
A. No, not where I stood, and I saw two thirds of the soldiers.
Q. What was the occasion of your rushing in upon them after the first gun was fired?
A. All my end was to know who they were.
Q. Did you wonder what was the occasion of their firing?
A. Yes, I did not know what their intention was.
Q. Did you see any insults offered the soldiers?
A. No, none at all, I saw the right hand grenadier fall.
Q. Was it before or after he had fired?
A. It was after. He fell on his backside.
Q. Did you see any of the people that were killed?
A. Yes, I saw the Molatto, and crossed to Quaker lane and there stepped over two more.
Q. Where did the Molatto man lay?
A. By the gutter on the south side of it.
Q. Did you see any of them before they were killed?
A. Not as I know of.
Q. What do you think was the occasion of the grenadier's falling?
A. It was occasioned by his pushing at somebody that went in at Royal exchange-lane.
Samuel Quincy Massacre Minutes, MHi:
Nat. Fosdick. Pushing behind him with Bayonets, damn your Bloods stand out of the Way. After the first Gun was fired the Second man as he thinks, push'd his Bayonet at and wounded him in the Breast. Two different men before This pierced him in the arm to the Bone. He rushed in upon 'em after the first gun in Order to know who they were. Did not know what the occasion of their coming down. The right hand Grenadier fell after firing, occasioned by his pushing at a person who went down R. Ex. L.
15. Wemms Trial 41–42:
Samuel Hemmingway, sworn.
Q. Do you know any of the prisoners?
A. Yes, several, there is Killroy I know particularly well.
Q Did you ever hear Killroy make use of any threatning expressions, against the inhabitants of this town?
A. Yes, one evening I heard him say, he never would miss an opportunity, when he had one, to fire on the inhabitants, and that he had wanted to have an opportunity ever since he landed.
Q. How long was that before the 5th March?
A. A week or fortnight, I cannot say which.
Q. Did you ever hear any of the rest threaten any thing?
A. No.
Q. Who was present when this conversation passed?
A. Mrs. Bouker, Mr. Apthorp's house-keeper.
Q. Was any body else present?
A. Only the Negroe boy.
Q. What gave occasion for this?
A. He and I were talking about the town's people and the soldiers.
Q. Did he say it with any resentment?
A. No otherways than he would not miss an opportunity.
Q. Do you remember what conversation immediately preceded that?
A. No.
Q. Was he in anger?
A. No.
Q. Was Killroy in liquor or not?
A. No.
Q. Had there any angry words passed betwixt him and you at that time?
A. No, none at all.
Q. Was it in jocular talk?
A. I do not know. I said he was a fool for talking so.—he said he did not care.
Q. Had Killroy said that evening, that he had been at the rope-walks?
A. No, he said nothing about the rope-walks.
Q. Was this conversation before or after the affray at the rope-walks?
A. I cannot say.
Samuel Quincy Massacre Minutes, MHi:
Saml. Hemenvay. Knows Kilroy well, was with him at Mr. John Apthorp's about a week before heard him say, he would never miss an Oppo[rtunity] when he had One to fire upon the Inhabitants of the Town, he had wanted it ever since he came in to the Town. K[ilroy] not in Liquor at that Time. Not in Anger. I told him <I> He was a great Fool for his pains, He <I> said I don't Care, I don't miss an Oppo[rtunity] for all that.
16. That is, the witness was at the Mill Bridge when he heard the bells.
17. Wemms Trial 42–44:
Joseph Hiller, sworn.
Q. Do you know any of the prisoners?
A. I do not.
Q. Was you in King-street at the time of the firing on the evening of the 5th March?
A. Yes.
Q. What did you observe?
A. I came there about fifteen minutes before the soldiers came, I staid there till they came down, and remained there till the firing was over.
Q. Narrate what happened in relation to the Sentry.
A. I was at the North-end of the town when the bells rung, when I came to the middle of the town, I was told there was no fire; but a rumpus betwixt the soldiers and the inhabitants. I passed on, the bells still kept ringing, I came to Dock square, and was informed much to the same purpose; there were some persons there, who told me it was dangerous to go up; they seemed to be like people that were afraid to pass, because of the danger, others were going up; I went up, when I got past the ally, the street was very clear of people, I hardly saw any body. I came to the Town house, and saw a few lads, but no great number, I have often seen more collected for their diversion.
Q. How many people were there?
A. From twenty to thirty. I saw the Sentry upon the steps of the Custom house door, but I heard him say nothing, but he had his gun waving as if it was to defend himself, or to exasperate the people. I thought to speak to him, but I thought he might insult me, and therefore I declined; I went in order to go away, and met the party coming down; that made me stop, because when they got to the Custom house, there was a noise something like what they call cheers, and the people went more to the middle of the street; after the soldiers had passed through them, I went down again, as I passed before them, there was very few people there, I passed without the people, and inclined more to the Custom house, the greatest part of the soldiers were full to my view, the people that were there, were collected in a body at the end of Royal exchange lane, they did not go so high as Mr. Stone's house.
Q. Where did you stand?
A. I was walking right before them. They had their guns rested on their hips; when I passed the last man on the left, the first gun was fired from the right; as I judged, the time might be twenty seconds before the first gun was fired from the time they formed, in a short space there was another, and then very soon another, and then there was a short space of time again, before the last guns were fired. A little boy run along and cryed, fire! fire! fire! as people generally do when there is fire, a soldier pointed his gun to him and fired, but did not hit him, he was the last but one on the left.
Q. Did the people appear to be passing off after the first gun?
A. I did not mind the first gun, I thought it was only powder to scare them; but when the next was fired, they were a scattering. After the firing ceased, a little boy came and told us some persons were killed. I saw them lye in the street, but I did not imagine it was any body killed, but that they had been scared and run away, and left their great coat's behind them: I saw nothing like an attack that could produce any such consequences: I went to look at the Malatto man, and heard a noise like the cocking of firelocks, but an officer passed before them, and said, do not fire on the inhabitants. The street was in a manner clear, it was as hush as at twelve o'clock at night, the noise of the cocking seemed to come from the right, and passed on to the left.
Q. How many guns were fired?
A. Six was the least, and one missed fire.
Q. Did the last man on the left fire, or not?
A. He did not fire, his gun seemed to miss fire, and he brought it down in a priming posture, and a man like an officer stepped up to him and spoke to him.
Q. Did you see them load betwixt the firing and this noise you speak of, like the cocking of firelocks?
A. I did not see them load, for I did not leave my station.
Q. How many soldiers were there?
A. Six or eight.
Q. Did you see any blows given, or any thing thrown?
A. No, and I was there the whole time.
Q. Did you see Palmes there, or Bliss?
A. No.
Q. Did you see any body strike the soldiers guns?
A. No.
Q. Did you hear any huzzaing, when the soldiers came down?
A. There seemed to be a huzza, but when I went down and passed them they were very still, only talking together, but I heard nothing they said: the shouting was first when they went down, and it was not two minutes till they fired.
Samuel Quincy Massacre Minutes, MHi:
Joseph Heyler. There about 15 Minutes before the party came down. Upon the Bells run up from the North End, was told it was not worth while to go, twas not worth while to go, twas no fire, but the Soldiers assaulting the Inhabitants. A Number of people by the pump in Dock Square, who seemed afraid to go up. However he went up. Saw the S[entry] with charged Bayonet about 20 or 30 Boys about him. Seen often many more there on such a bright Night. The People after the party came down seemed to collect into a Body into R. Ex. L. As he past the last man, heard a Gun from the Right, about 20 seconds after the first before the 2d Gun fired. About the same Space between the last and last but One. A little Boy run across the Street crying fire, the last Man but One followed with his Gun as the Boy ran. Nothing past to induce him to apprehend Danger, no molestation, had the Soldiers pointed at him he should not have tho't himself in Danger, as there was Nothing that he observed to lead to it. Thinks there were 6 Guns fired. Saw no Snow-Balls, Ice or any Things thrown, if there had been any Thing of This Sort extradinary he must have seen it it being bright Starlight. When the Soldiers came down a sort of Shouting, This but a short Time before The first Gun.
18. Wemms Trial 44–45:
Nicholas Ferreter, Rope-maker, sworn.
Q. Do you know any of the prisoners?
A. Yes, I know Warren and Killroy.
Q. Did you ever see them at the rope-walks?
A. Yes, they were both at the rope-walks.
Q. How long was that before the 5th of March?
A. On the Friday before.
Q. Did you ever hear them make use of any expressions of mischief towards the inhabitants?
A. No. On Friday Mr. John Gray told me to go to his rope-walk to make some cables; I went and worked till about twelve, and then I saw a soldier coming down the outside rope-walk, swearing, and saying he would have satisfaction. Before this there was one of our hands while I was coiling a cable, said to a soldier do you want work, yes, says the soldier I do faith; well said he to the soldier, go clean my little-house, he damned us and made a blow at, and struck me, when I knocked up his heels, his coat flew open and out dropt a naked cutlass, which I took up and carried off with me. He went away, and came back with a dozen soldiers with him: the people that were attacked called to us for help. When they called to us, we came up; then we had several knocks amongst us, at last they went off. They all got armed with clubs, and in the afternoon they were coming again, but Mr. John Gray stopped them.
Q. When they came the second time, was Killroy with them?
A. Yes.
Q. What did they do the second time?
A. We had a battle, and they went to their barracks. On the 5th of March I went to Quaker Lane, and met Samuel Gray; I said where are you going, he said to the fire. I went into King-street, and saw nobody there, the Sentry was walking as usual. We agreed to go home. I went towards home, and stopped at the bottom of Long-lane, and while I was talking there, I heard guns go off. I went to King-street, and was told several were killed, I then went home. Samuel Gray, when I saw him that night, was quite calm, and had no stick.
Samuel Quincy Massacre Minutes, MHi:
Nicholas Ferriter. Knows Kilroy and Warren. 'Saw em at the Rope Walks the Friday before. They all had Cutlasses and Clubs. Mr. Jno. Gray ask'd him to go to his Rope Walks and make a Cable. Saw a soldier come out Side the Rope Walks. Who said damn your Bloods I'll have some Satisfaction. Dar'd him out and I went out and he struck me and I trip'd up his Heels, a naked Cutlass was discovered under his Coat. Then he went away, and bro't about a Doz. Warren among them. They had a Battle and drove 'em off. Then in about ¾ of an Hour came about 30 and had another Battle.
When the Bells rang went to know where the fire was, met Sam. Gray, ask'd him where he was going, he said to the Fire. They went into K.S.
19. At this point MHiMS 2 of the Adams Massacre Minutes ends (at the foot of p. 10 of the original). The remainder of Doc. IV is from Adams Massacre Minutes MBMS. There is no break in substance between these two now separated MSS. See Descriptive List of Sources and Documents.
20. Wemms Trial 45–47:
Benjamin Burdick, Barber, sworn.
Q. Did you see any of these prisoners in King street the night of the 5th of March?
A. Not that I can swear to as they are dressed. I can recollect something of their faces, but cannot swear to them. When I came to King-street, I went immediately up to one of the soldiers, which I take to be that man who is bald on the head, (pointing to Montgomery). I asked him if any of the soldiers were loaded, he said yes. I asked him if they were going to fire, he said yes, by the eternal God, and pushed at me with his bayonet, which I put by with what was in my hand.
Q. What was it?
A. A Highland broad sword.
Q. What occasion had you to carry it.
A. A young man that boarded with me, and was at the Rope-Walks, told me several of them had a spite at him, and that he believed he was in danger. I had seen two soldiers about my house, I saw one of them hearkening at the window, I saw him again near the house, and asked him what he was after; he said he was pumping ship: Was it not you, says I, that was hearkening at my window last night? what if it was, he said, I told him to march off, and he damned me, and I beat him till he had enough of it, and he then went off. The reason of carrying the sword, was, they spyed the young man in the lane, and dogg'd him, for he had been very active in the affray at the Rope-walks, and they said they would some time or other have satisfaction, and I looked upon myself to be liable to be insulted likewise. When alarmed by the cry of fire, and I had got below the house, my wife called after me, and said it is not fire, it is an affray in King-street, if you are going take this, so I took it, and run down, and I asked the soldier what I just now told you. I knocked the bayonet with what I had in my hand, another pushed at me, I struck his gun; my face was now towards the soldiers. I heard the first gun go off, and then the second gun went off. As I was looking to see if any body was killed, I saw the tall man standing in a line with me. I saw him fall.
Q. Whereabouts was you when you hit the gun?
A. Nigh the gutter, about the middle of the party.
Q. How long had the bells been ringing before you came from home?
A. I thought it was 9 o'clock, and did not think any thing else, till somebody cryed fire.
Q. Did you strike before the firing?
A. Yes.
Q. Did you strike as hard as you could?
A. Yes, and hit the lock of his gun, and if I had struck a little lower, I should have left a mark that I could have swore to.
Q. Was the sword in your hand drawn?
A. I drew it when the soldier pushed at me, and struck at him as I have mentioned.
Q. Which gun went off first?
A. I took it to be the right hand man.
Q. Where did that soldier you struck at stand?
A. I believe the fourth or fifth man from the corner of Exchange-lane.
Q. How many soldiers were there?
A. I did not count them, it appeared to me there were six or eight.
Q. The man that said he would fire by the eternal God, where did he stand?
A. He was about the middle.
Q. Was you there when the first gun was fired?
A. Yes.
Q. What was the immediate occasion of that?
A. I do not know, I had only walked over from Quaker-lane till I came to the soldiers, that was all the time I had.
Q. Did you see any thing extraordinary, to induce them to fire that gun?
A. Nothing, but a short stick was thrown, which seemed to go clear over all their heads. I heard a clattering of their guns, but what was the occasion of it I do not know.
Q. Might not their iron ramrods occasion it?
A. No, I suppose they knocked one gun against another in taking their places. When the Molatto man was dead, I went up, and met Dr. Gardner and Mr. Brindley. I asked them to come and see the Molatto, and as we stooped to take up the man, the soldiers presented their arms again, as if they had been going to fire, Capt. Preston came, pushed up their guns, and said stop firing, do not fire. I went to them to see if I could know their faces again; Capt. Preston looked out betwixt two of them, and spoke to me, which took off my attention from them.
Q. From where was that stick thrown?
A. From Royal-exchange-lane, and it flew over their head almost as high as the sign.
Q. What did you take to be the occasion of the soldiers answer to you?
A. I do not know, without he was affronted at my asking the question of him.
Q. Did you see any body strike the soldiers before you struck with the sword?
A. No, I had not time.
Q. What distance of time was there betwixt the first and second gun?
A. A very short space, I cannot say exactly.
21. Wemms Trial 47–49:
Robert Williams, sworn.
Coming from Corn-hill I went down to Dock-square, I saw a number of people together; I heard there had been an affray by Murray's Barrack. Somebody said you had better all go home; some went to the North end, some up Royal-exchange-lane, I came up to Corn-hill: when I got to the Town-pump, I heard the Main-Guard had drawn a party off and gone to the Custom-house, I run down the north side of the Town-house, and saw a number of people, twenty or thirty, collected. I tryed to press into the midst of them to know what they were about; I could not get in; I therefore stepped over the gutter, and saw the soldiers seven or eight of them, by the Sentry box. Some of the people were leaning on their sticks, some standing with their hands in their bosoms, and some were whistling. Numbers were crouding to get in as I was. I had my eye on the right hand man. Somebody said, do not press on the soldiers, I repeated the same words, do not press on the soldiers: when I said that, I saw something like a flash at my left, and heard the report of a gun, and the people opened from right to left; but I could not see where the gun was fired from; it made a noise like a pistol, and I imagined it was nothing but powder. As the people crouded to the lane, it took the view of the right hand soldiers from me, but I had a view of the left. I heard another gun go off, and saw a man fall.
Q. Where was the man when he fell?
A. He was about a foot over the south side of the gutter.
Q. Was he nearer to the right than to the left of the soldier?
A. They fired in a triangular manner.
Q. How near did they stand together.
A. The width of a man asunder. I dropped on my knees, and saw the third gun go off, and then I saw a man who seemed to come upon his heel, and wind round a little and then fall on his back. The people were moving off, and the guns seemed to move as the people run. The fourth gun went off quickly after.
Q. Was the second gun fired from the first right hand man?
A. The flash seemed to come from the second man from the right.
Q. Did the huzzaing encrease, and a general pressing in upon the first gun being fired?
A. No.
Q. Was there many sticks?
A. I saw but a few.
Q. Was there any sticks thrown?
A. No. I saw two or three snow balls, which seemed to come from a distance.
Q. Did the people stand close in with the soldiers bayonets?
A. No, they appeared to be two feet from the bayonets.
Q. Did you hear a noise like striking on the barrels of the guns.
A. I did not.
Q. Did you hear a cry of the people, kill them, knock them over?
A. No, I was not there above a minute, I saw no blows given by any body; just before the firing there was a huzzaing and whistling.
Bartholomew Kneeland, Merchant, sworn.
Q. Where did you live the 5th March?
A. At my sister's Mrs. Torrey's, by the Town pump. I heard the bells ring after nine, and went to the front door, I was followed by my sister and two others of the family; I stood there about five minutes, and saw a number of soldiers, about ten or a dozen, come towards the pump, they seemed to make a noise, one of them got nearly opposite to me, and hollowed, damn you, what do you do there? I made him no answer, he came up to me and pointed his naked bayonet at my breast, and held it there some time, and told me to get in, I told him to go along; he went towards the Post-office.
Q. Do you know what regiment he belonged to?
A. To the Twenty-ninth.
Q. Did he bid you get in when he asked you what you did there?
A. Yes. In a little while I heard a volley of small arms, which I took to be in King-street.
23. Wemms Trial 49–50:
Nathaniel Thayer, Sealer of Wood, sworn.
On the evening of the 5th March I heard a very great noise, my wife said you had better go to the door and see what the matter is; I went, and saw about twenty people I believe, coming through Boylston's alley, there was a terrible swearing, and they had clubs and swords and one thing and another; there came seven soldiers from the Main-Guard without any coats on, driving along, swearing, cursing and damning like wild creatures, saying where are they? Cut them to pieces, slay them all. They came up to my door, I shut my door and went in, they went round the back lane to King-street:–this was after nine, before any guns were fired.
Q. Do you know if any of these prisoners were there?
A. No, I cannot fix on any man.
Q. Had they any of them pouches on?
A. I cannot say for the pouches; but they had no coats. Those people below at the alley, cried fire! which I took to be a watch-word.
Q. Were those you saw before, soldiers or town's people?
A. They came from the Barracks, and they were both soldiers and town's people.
Q. How long were they there?
A. Not two minutes, they went down towards the Market, and came up to King-street by the back-lane.
24. Wemms Trial 50–51:
Nathaniel Appleton, Merchant, sworn.
On the evening of the 5th March, a little after nine, I was sitting in my house, I heard a considerable noise in the street, I listened a little, and found it continued, I went to the door, I found the chief of the noise was at the bottom of the street, I enquired the reason, I was told the soldiers and inhabitants were fighting; I waited at the door a minute or two, people were running down in two's and three's at a time, at length the noise subsided, and seemed to be down by Dock-square; I heard the bells ring and heard the cry of fire, I asked where it was? I was answered there was none, but the inhabitants and soldiers fighting. Deacon Marsh came out, and there came a party of soldiers from the southward, ten or twelve I think, they had short cloths I think, I saw some white slieves amongst them with bayonets in their hands, but I apprehended no danger from them; I stood on the step of the door, they appeared to be pushing right down the street, when they got a few rods from the door, their course began to bend towards us, still I apprehended nothing but that they were coming to walk on the side of the way, then they lifted up their weapons, and I began to apprehend danger, they said something, I do not know what it was, but I went in as fast as I could, and shut the door immediately. They were within half a foot of it, had it been open a second longer they would have had the command of the door, but I was too quick for them and bolted my door, went up chamber, looked out of my window, and saw people flying here and there like pidgeons, and the soldiers running about like mad men in a fury, till they got to the bottom of the street.
25. “12 years old.” Paine Massacre Notes.
John Appleton, a young Lad son to Nathaniel Appleton, sworn.
About nine I was sent on an errand into King street, I had my little brother with me, I heard a noise, I run out of the shop where I was, to see what was the matter, I went into the middle of the street, and saw some talking to the Sentry, I thought they were going to quarrel and came away. Coming by Jenkins's alley my little brother with me, there came out about twenty soldiers with cutlasses in their hands, my brother fell and they run past him, and were going to kill me, I said soldiers spare my life, one of them said no damn you, we will kill you all; he lifted his cutlass and struck at my head, but I dodged and got the blow on my shoulder.
Q. Was the cutlass drawn?
A. I believe it was not, for it ratled on my shoulder as if it had been sheathed.
27. Wemms Trial 51–52:
Lieut. Col. Thomas Marshall, Taylor, sworn.
I was at Col. Jackson's a few minutes after nine of the 5th of March. When I came out into Dock square, the square was entirely quiet. I saw no persons in the whole square. I came up Royal-exchange lane, I saw nobody there. I saw the Sentry at the head of it in peace and quietness, nobody troubling him: I never saw King street more quiet in my life. I went into my house, where was a kinsman of mine; I asked him how he did, and while I was speaking the young man in the shop knocked for me, I went into the shop, and in a half a minute, I heard the cry of murder once or twice, there is mischief said I, at a distance, so there is said he; I opened the front door to see, I saw nobody. I heard a sad noise, which seemed to come from Rowe's barracks. I stopped a little space, and the first I saw enter King-street, was a party from the Main Guard, ten or twelve came rushing out violently, I saw their arms glitter by the moon light, hallowing damn them where are they, by Jesus let them come. Some of them turned into Pudding-lane, and some went by the Town-house steps; I went in and told my family to keep themselves easy, for there was no disturbance near the house. I went to the door again, and saw a party about the head of Quaker-lane, and they used much the same expressions as the aforesaid party, and hallowed fire. They passed over the way, and the shade of the moon light hindered me to see if they went down Royal-exchange-lane or went up towards the Town-house. Something strikes my mind, I am not positive now, but I think it was that night, there were a few boys round the Sentry. I went and said, boys you have no business with the Sentry, go off, and they went off. I have often seen boys with the Sentry, and heard words often. The bells were then ringing, and the people began to collect as they do at the cry of fire, and I began to think it was fire. I had a mind to get my staff and go out, but I had a reluctance, because I had been warned not to go out that night: but while the people were collecting, I came to the door, and saw them gathering thick from all quarters, forty, fifty or sixty. When the party came down, I thought it was no more than I had seen every day, I thought they had come to relieve the Sentry, they seemed to be in a posture of defence, and came through the people. I saw no opposition. When they came up, they passed out of the moon light into the dark, so that I could not see them, but I wondered to find them tarry so long. I heard a gun go off, I thought it was an accident, but in a little time another gun went off, and a third and fourth, pretty quick, and then the fifth. There seemed to be a small stop in their firing, I than [i.e. then] had no concern, but before the smoke was well away, I saw the people dead on the ground. I saw no opposition when they were drawn up, the people were not near them; what opposition might be at the lane I could not perceive, because the box covered that from my view.
Q. Are you certain that the soldiers came from the Main-Guard?
A. Yes, I am certain of it.
Q. You say the party that fired, come from the Main-Guard, but the first
party of ten or twelve, did they come out from the Main-Guard?
A. Yes.
Q. How were they dressed?
A. I could not see their dress, but I saw their arms glitter.

Docno: ADMS-05-03-02-0001-0004-0005

DateRange: 1770-11-28 - 1770-11-29


28–29 November 1770

SIX o'clock, p.m. the Court adjourned to Thursday morning[29 November]Nine o'clock.
Thursday NINE o'clock the Court met according to adjournment, and proceeded.
1. Wemms Trial 52–53.

Docno: ADMS-05-03-02-0001-0004-0006

Author: Adams, John
Date: 1770-11-29

Adams' Minutes of Crown Evidence, Concluded, and of Samuel Quincy's Argument for the Crown1

29 November 1770

Jos. Crosbey.2Kilroys Bayonett appeared to be covered with Blood 5 or 6 Inches, next day.3
{ 141 }
James Carter. The next Morning I observed Kilroys Bayonett to be bloody. I am Satisfyed it was blood. I was near to it, as to Mr. Paine.4
Jona. Cary. 4 of my Sons, Maverick and another Lad were at supper in my Kitchen, when the Bells rang and I told em there was fire. They said theyd eat a few mouth fulls more and go.5
Jno. Hill Esqr. Was struck at at the Ropewalks.6
Mrs. Gardiner7
{ 142 }
Mr. S. Quincy.8 It is my Province to apply the Evidence. It is complex and in some Places perhaps difficult.
2 Things I must prove, the Identity, and the Fact. Goes over all the Names and mentions the Witnesses who swore to each of them. Could wish that the fatigues of yesterdy and the Circumstances of my family would have allowd me to have arranged the Evidence more particular, to have extracted the most material Parts of it.
Considers J. W. Austins Testimony. Then Eb. Bridgham's.
The last Man aim'd at a running Lad. Did not apprehend any Danger.
Dodge. Clark. Langford. As par[ti]cular as any Witness on the Part of the Crown. Boys were damning the sentry, told him the Boys would not hurt him. Gray came up. What's here? I dont know, but Something will come of it, by and by. Gray with his Hands folded. He leaning on his Stick. He Spoke to Kilroy. D—n you you ant a going to fire. Kilroy presents at Gray, and shoots him dead upon the Spot, and then pushes at Langford with his Bayonet. Here is Evidence of an Heart desperate, wicked, bent deliberately bent upon Mischief. Compared with the Testimony of Hemenway. This is Malice. A Distinction between Malice and Hatred. Keyling 126.9 2 Inst. 6210 Mawgridges Case. Envy, Hatred and Malice. He that doth a cruel Act voluntarily doth it of Malice p[rep]ensed, tho upon a sudden Occasion.
Ferriter testifies that K[ilroy] was at the Ropewalks, and that Gray was there too, and both active in the Affray there. These Circumstances must remove all doubt of the fact and of the Species of Crime.
Archibald, J. Brewer. Saw no Abuse, more than was common. Met Dr. Young with a sword. Dr. said every Man to his own House. Perhaps some use may be made of this Circumstance. There was a general Alarm. Every Body had a Right, and it was very prudent, to arm themselves for their defence.
Bailey. Thinks Mont[gomery] kill'd Attucks. That Montgomery fired is clear from this Witness.
Mr. Palmes. Saw Montgomery. Stepd back, did not fall. Montgomery slippd in pushing 3d time at him and fell. In probability he kill'd Attucks, and continued the same mischivous Spirit in pushing.
Danbrook. Saw a Piece of Rattan. Saw M. fire. Two Persons fell. { 143 } Attucks at the left Hand of this Witness and leaning on his Stick.
J. Bass. Thos. Wilkinson. The People in the Window cautioning those In the Street, not to go there. Soldiers challenging the People. Not apprehensive of danger. Well placed to observe. They must be believed if any Witnesses. Striking of the Clock. 7 went off, one flashed. Saw no pressing, nothing thrown. 2 or 3 cheers, before, none after the Party came down.
J. Simpson. Curious. Handle, Ease, support, &c. Arms. There is something like these in the Words of Command. C[aptain] P[reston] behind the Soldiers. 8 Guns.
N. Fosdick. Pressing behind him with Bayonetts, in his back. Thrusts, and pushes in the Breast and Arm.
S. Hemenway. Kilroy not in Anger nor in Liquor.
[H]elyer. People in D[ock] S[quare]afraid to go up. 20 seconds between 1 and 2d Gun. A little Boy, running and crying fire, the last Gun was pointed at him and fired.
Ferriter. 3 Attacks at the Ropewalks. Kilroy and Warren in the last Battle at the Ropewalks.
Burdick. Spoke to the bald Man, he thinks. Yes by the e[ternal] God. Intention to fire. Mem. vid. Test.11
Williams. The Guns followed the People as they ran.
Quincy.12 No doubt with me, that K[ilroy] did it sedato Animo. The Person he killed was in Peace. No Insult offerd to K.
Marshall. The Street entirely Still. Fewer People there than usual. He had been warned not to go out that Evening. Moon, to the North. Saw a Party come out of the main Guard door. D—n em where are they? By Jesus let em come. Boisterous Language. The Party came from Quaker Lane, and cryd fire. Very probable the Word fire was a Watch Word. Any one next the Meeting House, steps in, at a Cry of fire, and sets the Bell a ringing.
Mr. Thayer. Heard a Cry of Fire, and supposed it a Watch Word.
Bart. Kneeland. One pointed his Bayonet at his Breast.
Mr. Appleton, and little Master [John Appleton]. His Story and the Manner of his telling of it, must have struck deep into your Mind. Struck by a Soldier, tenderly askd him Soldier, Spare my Life. No damn you we'l kill you all. Brother Adams's Social Creature.13 Here is food enough for the social Appetite.
{ 144 }
Immaterial who gives the mortal Blow, where there are a Number of Persons together. All present, aiding, abetting, [are?] guilty. No Man shall be an Avenger of his own Cause unless from absolute Necessity.
J. Trowbridge. You ought to produce all your Evidence now.
1. Adams Massacre Minutes, MBMS, continued without break from the end of Doc. IV above. See notes 113 and 1931 above, and Descriptive List of Sources and Documents.
2. Thus in MS. An apparent inadvertence for “Crosswell.”
Joseph Crosswell, Taylor, sworn.
Next morning after the 5th of March, in King-street, before the soldiers were apprehended, I saw Killroy, I have known him by sight almost ever since he hath been here, I saw his bayonet bloody, the blood was dryed on five or six inches from the point.
Q. How near were you to the bayonet?
A. About the same distance I am from the Judges, viz, six feet.
Q. Was it shouldered?
A. I forget the posture.
Q. Are you sure it was blood.
A. It appeared to be covered from the point five or six inches, it appeared to me to be blood, and I thought then, it was blood dryed on.
James Carter, Writing-school-master, sworn.
The next morning I observed the same with Mr. Crosswell, I do not know his name, but that's the man, (pointing to Killroy) his gun was rested on his right arm.
Q. Did it appear to you to be covered from the point with blood?
A. Yes, I am positive it was blood.
Q. How nigh was you to him?
A. As nigh as I am to you, Sir, viz. three feet off.
It is not clear whether at this point Paine had taken over the examination of the witnesses. Possibly the witness here was merely pointing at Paine. “James Carter. Next morning I saw Kilroy Bayonet bloody. I called several to look at it. 3 feet.” Paine Massacre Notes.
Jonathan Cary, Kegg-maker, sworn.
Q. Did you know young Maverick, who was killed by the firing in King-street, on the 5th of March?
A. Yes, very well.
Q. Did you see him that night?
A. He was at my house that night at supper with some young lads, and when the bells rung, as we all thought for fire, he run out in order to go to it.
6. Wemms Trial 53–54:
John Hill, Esq; sworn.
Q. Did you see any thing of the affray at the Rope-walks?
A. I saw a party of the soldiers near the Rope-walks with clubs, ordered them to disperse, commanded the peace, told them I was in commission for the peace, they paid no regard to me or my orders, but cut an old man who was coming by, before my face, and some of them struck at me but did not hit me.
Q. Were any of the prisoners among them?
A. I do not know that they were.
“Mary Gardner. Overruled.” Paine Massacre Notes. The Wemms Trial is silent.
8. Here Samuel Quincy's argument for the Crown begins. It is given in fuller form in Doc. VII below.
9. Reg. v. Mawgridge, Kelyng 119, 126–127, 84 Eng. Rep. 1107, 1110–1111 (Q.B. 1707). The quotations are set out in Doc. VII below.
10. 2 Coke, Institutes 62. The quotation is set out in Doc. VII below.
11. The last three words indicate that JA's recollection of the witness' testimony differs from Quincy's.
12. An interval of space precedes this name in the MS, as if JA had omitted some of Samuel Quincy's argument; or perhaps the proceedings had been interrupted.
13. This refers to JA's argument in Rex v. Preston, text between notes 2 and 3132 and 133.

Docno: ADMS-05-03-02-0001-0004-0007

Author: Quincy, Samuel
Date: 1770-11-29

Samuel Quincy's Argument for the Crown1

29 November 1770

May it please your Honours, and you Gentlemen of the Jury.
Having gone through the evidence on the part of the crown, it is my province to support the charge against the prisoners. The examination hath been lengthy, and from the nature of the transaction complex, and in some part difficult; I shall apply it as distinctly as I am able, without endeavouring to misrepresent or aggravate any thing to the prejudice of the prisoners on the one hand, or on the other to neglect any thing that justice to the deceased sufferers, the laws of my country, or the preservation of the peace of society demand.
There are two things necessary to prove which I mentioned in the first opening of this cause, namely, the identity of the prisoners, that is, that they were that party of men who on the 5th of March last were in King street, and that they committed the facts mentioned in the indictments, and farther gentlemen, the circumstances attending and aggravating the commission of those facts.
As to the first point, to prove the identity of the prisoners, all of them have been sworn to, and most of them by more than one witness.
To KILLROY gentlemen, you have Langford, Archibald and Brewer, who swear positively; and farther you have the evidence of Ferriter and Hemmingway. The one, of Killroy's being in the affray at the rope-walks, and the other to his uttering a number of malicious and threatning expressions in regard to the inhabitants of the town of Boston.
To WHITE gentlemen, you have four more, Simpson, Langford, Bailey and Clark.
To MONTGOMERY, you have Bailey, Palmes, Bass, Danbrook and Wilkinson.
To HARTEGAN, you have Danbrook and Simpson.
To WEMMS, you have Simpson and Bridgham.
To CARROL, Bailey and Danbrook.
{ 145 }
To WARREN, Bridgham, Dodge and Simpson. Bridgham indeed expressed some doubt, and gave his reasons for it, which may be worthy notice hereafter.
To MC CAULEY, you have Mr. Austin.
And that Warren was at the Rope-walks, you have also the testimony of Mr. Ferriter.
All these witnesses as I have mentioned them to you, have testified on oath to the several prisoners, that they were that evening in King street, and of the party; the next thing to be enquired into gentlemen is as to the facts. In order to ascertain these it will be necessary to have recourse to the testimony of the witnesses. I could have wished I had been able, after the fatigue of yesterday, to have ranged the evidence in the order of time as the facts took place; but not being able to do this, I must take them up as the witnesses were examined. I will however endeavour to state the facts in the best arrangement I can.
The first witness Mr. Austin, says, that he was in King-street that evening, near the Sentry-box which was placed at the Custom-house; that about a quarter after nine he saw the party coming from the Main guard; when they got down to the Sentry Box, they wheeled to the left and formed themselves round it; and in coming round McCauley pushed at him with his bayonet, damned him, and bid him to stand off, this was the first instance of their conduct. Mr. Austin was not particular who fired, his back being towards the soldiers when that happened. He says there were five or six guns fired; and he saw McCauley after the firing. These are the most material circumstances of his testimony.
The next witness is Bridgham, who says he was in King-street also; and the next morning when he went to the goal to view the prisoners, he apprehended he had seen Warren in King street the evening before, but afterwards he saw a person that looked very like him belonging to the same regiment, which occasioned him to doubt whether he was the man or not; my remark upon this, is, it was probable that the first impressions made on his mind were the strongest, and therefore you cannot well doubt he was right in judging that Warren was in fact the person he saw the evening before; he saw also Wemms the corporal stationed on the left of the party betwixt him and the tall man; the Corporal was on the left entire, if so gentlemen, Warren must have been the third man from the left in that situation; there were a number of people he says round the party huzzaing, some having sticks; his face was the other way when the first gun went off, he heard a noise like the clashing of guns, he saw Gray fall, and says the person that killed { 146 } him, must have been near the center of the party; when the left man fired there were but few in the street, they divided and were passing off; the last man that fired, he says leveled his piece, following a lad that was running down the street before he fired; he also mentions a number of people coming down from the north side of the Town-house, collected as he supposed by the bells, and not disposed to commit any injury whatsoever; he did not apprehend himself, or the soldiers in any danger from any thing he observed; he says about seven guns were fired, and there were about twelve people at that time before the party. These are the most material circumstances in his evidence.
Dodge says, he saw Warren, but cannot swear to any of the rest, the man who fired first he thinks stood towards the left, about two from the corner, however he was over at Vernon's shop across the street, and perhaps not able to make so good observations as some others; he saw about fifty people in the street, but he saw nothing in their hands; he saw a number of snow balls thrown, but none as he observed with violence or in anger; he saw the people near the party of soldiers, and they pushing at them with their bayonets; he does not imagine there was any thing besides snow balls thrown.
Clark the next witness saw White the Sentinel at his station just before nine o'clock, that he spoke to him, but saw no one at that time near or molesting him.
Mr. Langford comes next, and this witness is perhaps as particular as any one witness on the part of the Crown; it appears by the relation of his evidence that he came down about nine o'clock as a watchman, in order to go to the Watch-house next adjoining the Town-house; when he came down, he was told the people and soldiers were fighting at Murray's Barracks; upon this, he took his course that way, but the matter being over by the time he got there, he returned to King-street: there were a number of boys round the Sentinel, to whom he spoke and told him he need not fear, the boys would not hurt him; soon after this the Sentinel without saying any thing to the people went up the Custom-house steps and knocked at the door; a person within opened it and said something, but what, the witness did not hear; upon that the Sentinel turned round, and pointed his piece at the people opposite to him. Langford spoke again, and told him there was no danger, the boys would not hurt him, and he shouldered. The witness continued talking with the Sentry till the party came down, and then he went into the street. About this time Gray, one of the unhappy sufferers, came and clapped Langford on the shoulder, say• { 147 } ing what's here to pay? Langford replies, I do not know, but something I believe will come of it by and by; his stand was half way as he said betwixt the Sentry-box and Royal-exchange-lane; the box being on the right corner of the lane, and he opposite the center of the lane; the witness and Gray were standing together talking familiarly, Langford leaning on his stick, and Gray standing with his hands folded in his bosom, without a stick in his hand, neither saying or doing anything to the soldiers. You cannot but recollect Gentlemen, that this witness was expressly and repeatedly asked, if Gray had a stick or said any thing to the soldiers? he as often answered no. Langford spoke to Killroy, and after two guns were discharged, seeing him present his piece, said to him, damn you are you going to fire? Presently upon this Killroy levelled his piece, and firing directly at Gray, killed him dead on the spot! The ball passed through his head, and he fell on Langford's left foot; upon which, not satisfied with having murdered one of his fellow creatures in that cruel and inhuman manner, he pushed with his bayonet, and pierced Langford through his great coat and jacket; here Gentlemen, if any there can be, is evidence, and I think compleat evidence of a heart desperately wicked, and bent upon mischief, the true characteristic of a wilful malicious murderer.
It could not be thought, at the distance the witness and Gray were standing from him, without offering any violence, but Killroy the prisoner saw them distinctly, and aimed to destroy them; if you compare this testimony with Mr. Hemmingway's, who swears to Killroy's uttering expressions importing, that he would miss no opportunity of firing on the inhabitants, he had wished for it ever since he landed, you certainly Gentlemen can have no doubt in your minds but that he had that intention at heart, and took this opportunity to execute it.
The crime of murder, Gentlemen, it will be agreed by all, necessarily involves in it the malice of the heart, and that malice is to be collected from the circumstances attending the action; but it is not necessary to constitute malice, that it should be harboured long in the breast; a distinction is made in the books betwixt malice and hatred, and a good distinction it is; I have it in my hand and will read it;
Kelynge 126, and 127. Mawgridge's Case. “Some have been led into mistake by not well considering what the passion of malice is; they have construed it to be a rancour of mind lodged in the person killing, for some considerable time before the commission of the fact, which is a mistake arising from their not well distinguishing between hatred and malice,” And a little after, “Malice is a design formed of { 148 } doing mischief to another; cum quis data opera male agit, he that designs and useth the means to do ill is malicious. 2 [Coke] Inst. 42. He that doth a cruel act voluntarily, doth it of malice propensed. 3 [Coke] Inst. 62.”
Though Gentlemen, it happens on a sudden occasion as this was, if the act is in it's nature wanton and cruel, the law will presume it to be malicious, unless that presumption is taken off by contrary evidence.
Ferriter, who testified to the same person, tells you, he was remarkably active at the Rope walks amongst the rest of the soldiers; taking therefore all the circumstances of this testimony together, it must remove every sort of difficulty in your minds as to the purpose Killroy had at that time; it seems apparent that there were strong marks of malice in his heart; the person you can have no doubt of, the fact you can have no doubt of, nor can you I think doubt of the species of crime.
The next witness, who also testifies to Killroy's going down, and being of the party, swears that he was about twenty feet from the party when the first gun was fired; that he also had been, previous to this, at Murray's barracks, when the affray happened there, and tells you the behaviour of the soldiers in that scene.
Brewer, another witness also swears to Killroy. He saw the Sentinel on the Custom-house steps; at that time there were about twenty people, boys chiefly about fourteen, and some younger, round about him, but they made no great show; he saw the Captain come down with the party, the Sentinel at this time had his gun breast high; that while the witness was speaking to Monk, (a young lad who was wounded) he lost sight of Preston and the guns went off: Monk complained of being shot, but Brewer apprehended it was nothing but powder, and that he was more frightened than hurt; the firing began at the right and extended to the corner man on the left. Killroy attacked this witness in the same manner McCauley did Austin, by pushing at him with his bayonet; a number were collected by the ringing of the bells, but he heard nothing particular in regard to abusive language; he saw no snow balls thrown, and when the soldiers came down, he heard some of the people crying fire, and that was the general cry; some crying fire because the bells rung, some, no doubt fire, to the soldiers, daring them to it; but of this no great [word omitted] can be made in the present case. There were seven guns he says fired, he was certain as to the number, having counted them himself. He says further, he met Dr. Young in Dock• { 149 } square and that he had a sword; the witness said, let every man go to his own home, and the Doctor replied, that is the best way, the soldiers are gone to their barracks: perhaps something will be attempted to be made of this circumstance, and therefore I shall make an observation upon it. If you attend to the testimony of several of the witnesses, there were that evening in the streets at all parts of the town, a number of soldiers; they sallied out from Murray's barracks and everywhere with clubs, cutlasses, and other weapons of death; this occasioned a general alarm; every man therefore had a right, and very prudent it was to endeavour to defend himself if attacked; this accounts for the reason of Dr. Young or any one inhabitant of the town having a sword that evening; the Doctor surely could not be supposed to have any intention of mischief, because the same witness tells you his cry was, the soldiers were gone to their barracks, and go every man to his own home.
Mr. Bailey the next witness, testifies as to the identity of some of the party, that there were Montgomery, Carrol and White there; that he placed himself at the post by the Custom-House, and stood there all the time; that there were about twenty boys, some fourteen years old, and some under that; he was near the Sentinel when the party came down; Carrol pointed at his breast with his bayonet, and White said do not hurt him; that Montgomery discharged his piece first; he thinks it was about half a minute before the second gun went off; the grenadier's gun he says was struck out of his hand by some person near him, and that he recovered it, and then fired; that Carrol was the next but one to him: he imagines Gentlemen, that Montgomery killed Attucks; Attucks was about fifteen feet from him over the gutter: He continued in his station at the corner from the time of the party's coming down till all was over; he did not apprehend himself or the soldiers in danger, from clubs, sticks, snow balls, or any thing else; he saw the person that struck Montgomery as he supposed, at the corner of Royal exchange-lane; he was asked if Attucks was the person, he answered no. From this witness you ascertain, Gentlemen, that Montgomery fired first, and that he was on the right wing of the party.
The next witness is Mr. Palmes, he saw the Sentry, and nobody near him: He had come from Murray's barracks, and hearing a disturbance in King-street, he was told he had better not go down, he said I will, and try to make peace; he also saw Montgomery there; the stick that struck Montgomery was thrown as he apprehended; Montgomery stept back and then fired; he thinks he heard seven or eight { 150 } guns, but did not count them, and it was seven or eight seconds between the first and second gun; as the last gun went off, Montgomery pushed at him with his bayonet, and he struck him with his cane, and struck the gun down; the bayonet stuck in the snow, and the gun fell out of his hand; Mr. Palmes at this time slipt and fell, but quickly recovered himself; Montgomery attempted again to push him with his bayonet, and he threw his cane at him and ran; not satisfied with this, Montgomery attempted to push him a third time, and in that attempt he slipt and fell, and thereby gave Palmes an opportunity to get out of his way, or else he says he had been run through the body; from the testimony of this witness, you have further proof that Montgomery was the person who fired first; that after firing, he continued to discover marks of malice and malevolence, by pushing with his bayonet, and endeavouring to destroy not only Mr. Palmes, but all around him.
Next comes Mr. Danbrook, he saw there Hartegan, Montgomery, and Carrol. Here is another witness to three of the party; it was about a quarter after nine when he came up; he stood about ten or twelve feet from Montgomery; he saw no stick strike him, but a little stick he says flew over their heads, which he took to be a piece of a rattan; he was looking on Montgomery when he fired; this is another evidence as to the fact of firing, upon which, the witness thinks, two men fell: if that was the case, there was execution indeed; by the discharge of one gun two persons killed on the spot! He did not hear the second gun, but supposes, that by one of the guns Attucks fell, he stooped to see if the Molatto was dead, then turned round and saw another man fall; Attucks at that time was near him, at his left, leaning on his stick; that circumstance I would have you keep in your minds Gentlemen, that you may remember it when you have the whole evidence together.
Jedediah Bass is the next witness, he came up Royal-exchange lane; when he got into King street, he saw Montgomery there: here Gentlemen is another witness as to the identity of one of the prisoners, and the witness saw him push his bayonet at a man that stood near him; he drew back into the lane, and in a minute Montgomery fired: the number of guns he took to be six, but did not count them: the people began on the firing of the first gun to run, some one way and some another. As he came up Dock-square, the people were saying let us go home, there is no fire, the soldiers are gone to their barracks.
After this witness comes Mr. Wilkinson, who gave a very regular account; he tells you he was at his own house when the bells rung { 151 } for nine as usual; a little while after that he heard Dr. Cooper's bell, on which apprehending it was for fire, he put on his surtout, and went out; he came towards the Town-House, went past it as far as the town-pump, and the people from the windows were cautioning those in the street not to go down, for they would be killed; the night was so bright that he was able where he was to see down the street as far as Boylston's alley, and there he saw a number of soldiers sallying out, brandishing their swords, and contending with the people; there were about thirty or forty round them with buckets and bags, thinking as he supposed that the bells rung for fire; after this he went to the Guard-house, intending to wait there, to learn if any mischief had been done at the barracks; he presently saw Capt. Preston come down, as he imagined from behind the Old-Brick meeting-house, and call to the guard, and ordered them to turn out; then he saw the party come out, and saw the Captain draw his sword and march down with them; at that time there were about thirty or forty people in King street; he went a little lower, and turned back again round the north side of the Town-house, and placed himself at the Royal-exchange-tavern; and the party was formed when he got there: he tells you he was not at all apprehensive of danger, consequently he was capable of making observations, and placed himself in such a situation as to do it; the party formed in a circle, and he stood about four or five minutes before he heard the word given to fire: that he heard it twice: on the first command they did not fire; it was repeated, and then the guns went off one after another, like the striking of a clock, he was about two yards from them and thinks the firing began at the right. This corresponds with the testimony of several witnesses. He saw the flash of each gun seven went off, and one flashed. There Gentlemen you have evidence of all the party's firing save one: the witness was asked if he saw snow balls, ice, oyster shells, or any thing else thrown by the people, to which he answered No; he said if he had, he should have thought himself in danger, and have retreated; he heard two or three cheers before the party came down, but none afterwards. Now, Gentlemen, if you recollect that circumstance, and the manner of his relating it, you will remember he expressed himself very emphatically: from this testimony you have further express evidence of the fact of firing, that it came from the right, and from thence followed on to the left: he did not see the persons who were killed, therefore there is nothing in his evidence relating to that.
From the next witness, Mr. Simpson, you have proof of White, Wemms, Warren, and Hartegan, four of the prisoners, that they were { 152 } all of the party that evening; and after relating a number of minute circumstances, he swears to the discharge of eight guns, which if you give credit to his testimony, will prove to you that the whole party fired; from him you have also further evidence of the killing Attucks, Gray and Caldwell.
Mr. Fosdick, deposes that upon his going down King-street, the first salutation he had, was the pressing of soldiers behind him with the points of their bayonets, crying out, damn your blood stand out of the way! this Gentlemen, was the conduct of the party as they came down along. From Mr. Fosdick also you have evidence of their manoeuvers both before and after they formed; when the first gun was fired, the second man from the right pushed his bayonet at him, and wounded him in the breast, you saw Gentlemen the mark in Court: before this two different men pierced him in the arm and elbow quite to the bone; here Gentlemen were three thrusts given to a person innocently passing down upon the cry of fire! he knew not as he swears to you, what was the occasion of the party's coming down. The right hand Grenadier fell after he had fired, occasioned by pushing at a person who went down Royal-exchange-lane, this probably was Mr. Palmes, in whose evidence if you remember, you have this circumstance related, that on his pushing at him the third time, Montgomery's foot slipped, which gave him an opportunity to escape down the lane.
Hemmingway, the next witness, swears, that being in company with Killroy, he heard him say he never would miss an opportunity to fire on the people of the town, for he had wanted it ever since he landed; that Killroy was not then in liquor nor appeared to be in anger; he told him he was a fool, for saying so, he said I do not care, I will not miss an opportunity for all that; these expressions Gentlemen speak for themselves, they are of such a nature as you cannot but draw from them the temper of the man's heart who spoke them, which you will consider at your leisure.
Mr. Hillier, came from the North end, was told there was no fire, but the soldiers were insulting the inhabitants; a number of people in Dock square seemed afraid to go up to King-street, another circumstance which accounts for the appearance of the inhabitants, at that time in Dock-square; the witness went up to King-street, saw the Sentry with his bayonet charged breast high, about twenty or thirty boys about him; he had often seen many more in that street in such a night as that was; it was bright moon light; the people on the party's coming down seemed to collect in a body in Royal-exchange-lane; as { 153 } he passed the last man, he heard a gun from the right, thinks it was about twenty seconds before the second gun fired; he observed a little boy running a cross the street crying fire, and the left hand man followed the boy with his gun; there was nothing passed he observed to induce them to apprehend any danger; he says, had even the soldiers pointed at me, I should not have thought myself in danger; he thinks there were six guns fired; he saw no snow balls thrown, if there had been, he must have seen them. When the soldiers came down, there was a sort of shouting, and a short time after, the first gun fired. I need not dwell longer on this testimony for you must remember it yourselves.
Nicholas Ferriter was next sworn, who knew Killroy and Warren; he swears to their being at the Rope-walks before this affair happened; he relates the circumstances of three several attacks in the Rope-walks; the first was a single person who challenged him out to fight; a squable ensued, and the soldier took to his heels; he soon collected a dozen more, came again, and had a farther battle, in which the soldiers were again worsted; they then collected a large number, to the amount of thirty, and in about three-quarters of an hour they came back, and went at it again; in this last squabble the soldiers were a third time worsted. From this affair perhaps may be dated a good deal of the proceedings of the Monday-evening; you have heard from the witnesses that the soldiers of that regiment remembered the grudge, and discovered a malicious disposition; were frequently seen in parties, and when single, with arms, attacking the people passing the streets. Killroy one of the prisoners, and Warren, are expressly sworn to, that they were in this affray; Gray and Ferriter went into King-street, Gray had no stick; Ferriter left Gray in King-street; it appears he did not go down with a disposition to commit any assault at all.
Burdick is the next witness, he says when he came down to King-street he spoke to a soldier, he thinks it was Montgomery, he asked him if he was loaded and intended to fire; yes, by the eternal God! was the answer he received. The intention of that soldier, whoever he was, you clearly discover; the witness thinks it was Montgomery; he says further, a soldier pushed at him with his bayonet, and he struck his gun; he saw nothing flung but a small stick, which hit nobody; as he was stooping to take up the dead, they cocked their guns and presented at him again; thus you see the same disposition continued, they were aiming to push at every body round about them; and after they had killed these persons, they were not satisfied with that, but attempted to push those that were taking them away.
Mr. Williams who was next sworn, hath nothing material in his { 154 } testimony, but that of the guns following the people as they ran after the first gun was fired; that seven guns were fired, that he saw no sticks or snow balls fall near them, that all the snow balls he did see seemed to be light, and not hard.
It has been asked from the bench,2 Whether there may not be voluntary manslaughter? I readily grant there may; it has also been observed, that homicide which includes murder, must be committed with coolness and deliberation, I allow it, and my application of this rule, is, that it comes within the evidence you have of the particular facts related by the witnesses with regard to Killroy; there is no manner of doubt with me, but the fact was done in the manner which the law calls sedato animo; he was doing a deliberate action, with a cool and calm mind; it appears, if you believe Langford, he was not molested; it appears the person he killed, and at whom he aimed, and the person whose cloths he pierced with his bayonet, were standing peaceably, one leaning on a stick, and the other with his arms folded.
After the witnesses we have gone through, a number of gentlemen were examined, most of whom lived in Cornhill, who have testifyed to the conduct of the soldiers, that evening the affair happened.
I will not take them in order, for I apprehend, by recuring to Colonel Marshall first, the rest will come in more naturally; he says, he came from Colonel Jackson's in Dock-square, about a quarter after nine o'clock; that the street was quite still, no body passing thro' Dock-square; he came up to his own house next the Custom house, he passed the Sentinel, and there was no body near him; King-street was quite still, fewer people passing than he had usually seen on such a fine night; he went into his own house, and soon after heard a distant cry of murder, what part of the street it came from he did not know: He, gentlemen, you will remember, intimated also this circumstance, that he had been warned not to go out that evening; this gave him an apprehension there was some mischief to be betwixt the soldiers and the inhabitants; he mentioned it to the person in the shop, and went out; looking towards the Guard-house, he saw a number of soldiers issue from thence in an undress, with naked swords, cutlasses, &c. crying out “Damn them where are they? By Jesus let 'em come.” As to the situation of the Moon, whether she was north or south, which has been much altercated, I cannot see it will make much one way or the other, it is sufficient that Colonel Marshall, whose credibility and capacity will not be disputed, has sworn that from his door he observed a party { 155 } of soldiers come down in undress, armed with cutlasses and other weapons, the cutlasses he swears he particularly saw glittering in the Moon light; the expressions he said he plainly heard, while they were brandishing their swords; when this party passed off, he saw a second party come up Quaker-lane, armed in the same manner, and making use of the same kind of language, and that party he said cried fire; in his testimony on the trial of Captain Preston, he said the bells rung on that cry; he expressed some doubt of this yesterday, but it was certainly just about that time; the use I would make of this is, to compare it with what the other witnesses say of the conduct of the soldiers in Cornhill; as Mr. Thayer expresses it, it is probable the word fire was a watch-word; it appears to me, that if we can believe the evidence, they had a design of attacking and slaughtering the inhabitants that night, and they could have devised no better method to draw out the inhabitants unarmed, than to cry fire!
Mr. Thayer, was sitting at his fire, in Corn-hill, near Boylston's alley, he heard a great noise, and went to the door, he saw seven soldiers in an undress coming down like wild creatures, with cutlasses in their hands, crying damn them, where are they? upon this he heard a cry of fire, and supposed it to be a watch-word.
Mr. Kneeland, who lives by the town-pump, came out and stood at his door; saw a number of soldiers pass by him armed; one of them came up to him and said, damn you what do you do here? and pointed his bayonet to his breast, telling him to go in.
Mr. Appleton who lived opposite, tells you he was standing by his neighbour Mr. Marsh, they were both at the door; a number of soldiers came running down, armed with cutlasses, in an undress, and they seemed to come out of their way, (observing them at the door) with uplifted weapons, intending as it appeared, to strike them: but they fortunately got into their doors.
Then gentlemen, comes the son of Mr. Appleton, the young master who was sworn, yesterday, whose story, with his manner of telling it, must strike deep into your minds; I am sure it did in mine; a child of his age, with a younger brother sent of an errand a few steps, and on returning home, struck at by a party of soldiers, nay ruffians, with cutlasses, he innocently crying, soldiers spare my life! No damn you we will kill you all, or words to that purpose, attended with a blow, was the answer the little victim received! what can indicate malice if this does not? cruelty almost equal to that of a Pharoh or Herod. I remember at the last tryal, my brother Adams made this observation, that “Man is a social creature, that his feelings, his passions, his { 156 } imaginations are contagious.” I am sure if in any instance it is so, here was food enough for such passions, such imaginations to feed upon.
But Gentlemen, as it does not immediately relate to the prisoners, all the use I mean to make of it is, to show you that from the conduct and appearance of the soldiery, in different parts of the town, the inhabitants had reason to be apprehensive they were in danger of their lives; children and parents, husbands and wives, masters and servants, had reason to tremble one for another. This apprehension, together with the ringing of the bells, collected numbers of people in different quarters, as is commonly the case when there is any appearance of fire; and the center of the town, when there is a doubt where fire is, becomes naturally the place of rendezvouz: this accounts for the number of people that were there, and for some having sticks and canes. I mention this only to take off the force of any evidence or pretence that may be made, that there was an intention of the people to assault, or as it has been expressed, swallow up the soldiers.
I have now gone through the evidence on the part of the Crown, in support of the charge against the prisoners, I shall make a very few observations, and leave it with the prisoners and their Council to make their defence, and Mr. Paine who is on the side of the Crown with me, to close the cause.
I think Gentlemen upon the whole evidence, you can, in the first place, have no doubt but that all the prisoners at the bar were of that party of soldiers, headed by Capt. Preston, who went down to the Custom-House, on the 5th March, the evening mentioned in the indictments; that the five persons named in those indictments were killed by some or other of that party, but who they were that killed those several persons, may not be precisely ascertained, except in the case of Killroy, against whom I think you have certain evidence.
It is a rule of law Gentlemen, when the fact of killing is once proved, every circumstance alleviating, excusing, or justifying, in order to extenuate the crime must be proved by the prisoners, for the law presumes the fact malicious, untill the contrary appears in evidence.
There is another rule I shall mention also, and that is, that it is imaterial, where there are a number of persons concerned, who gave the mortal blow, all that are present, are in the eye of the law, principals. This is a rule settled by the Judges of England upon solid argument. The question therefore then will be, what species of homicide this is? and the decision of that question must be deferred, untill the defence comes out by the evidence on the other side.
{ 157 }
The laws of society, Gentlemen, lay a restraint on the passions of men, that no man shall be the avenger of his own cause, unless through absolute necessity, the law giving a remedy for every wrong: If a man might at any time execute his own revenge, there would be an end of law.
A person cannot justify killing, if he can by any means make his escape; he should endeavour to take himself out of the way, before he kills the person attacking him.
Here one of the Court judging it improper for the Council in opening the cause to anticipate the defence, and this being determined by the whole Bench, Mr. Quincy then closed, with saying:
I was about to make some farther remarks, but it is thought by the Honourable Court improper to anticipate what may be urged on the other side. I shall therefore rest the case as it is, and doubt not but on the evidence as it now stands, the facts, as far as we have gone, against the prisoners at the bar, are fully proved, and until something turns up to remove from your minds, the force of that evidence, you must pronounce them GUILTY.
1. Wemms Trial 54–68.
2. Neither Wemms Trial nor notes suggest when or where; there may possibly have been an unreported side-bar conference at the bench.

Docno: ADMS-05-03-02-0001-0004-0008

Author: Adams, John
Date: 1770-11-29

Adams' Minutes of Josiah Quincy's Opening for the Defense1

29 November 1770

Josa. Quincy. 3 main Divisions, under the last there will be many Sub divisions. 1st. whether any killd. 2. Who killed 'em? Wherever a Doubt the Bias is in favour of the Prisoner. 3d. last and main Division, is what are the facts they all edge to justify, excuse, or all eviate. Under this many minute divisions. Need not remind you of the importance to the Prisoners, nor to the Community. Important that the Dignity of Justice, [ . . . ] to the Country and that same Rules should prevail. A Prejudice prevails that the Life of a Soldier is less valuable than that of a subject.
The Criminal Law extends itself to every Individual of the Community. It views Man possessed of Affections and Passions. The Law attends to Man kind as we find em surrounded with all their Infirmities and all their Passions. Whatever will justify an Inhabitant in firing upon an Inhabitant, will justify a soldier. And a Soldier need not have { 158 } a civil Magistrate any more than an Inhabitant. A general Opinion, almost universal, thro this Continent, that their Rights and Liberties were invaded. Believed that the soldiers came here to inforce those Acts. Mankind Act from Feelings more than Reasoning. The Object of Resentment was out of Reach, and it fell upon the Instrument. The People thought the Soldiers the Instruments of fastening the shackles that had been forged. The soldier felt himself touched in the Point of Honour, and in the Pride of Virtue, when he saw and felt these Marks of Disrespect.
You are not sitting here as statesmen or Politicians. You have nothing to do with the Injuries your Country, has sustained. The Town is not concerned.
This Cause has awakened the Attention of this whole Continent if not all Europe. You ought to be carefull to give a Verdict, which will bear the Examination of Times, when the Pulses which now beat shall beat no more. Do nothing which shall hereafter bite like a Serpent and Sting like an Adder. All the Colours of the Canvas, the Pictures the Publications. Every Thing that could possibly stimulate, and inflame. An high Water slack. The Passions, so high that the[y] can go no higher.
The Fact of Killing has not been proved with Regard to some of em, and others are left in doubt.
[Person?] producing a Witness is never to discredit him. A Person swearing a Positive is to be believd, ceteris paribus,2 rather than one swearing a Negative. Persons upon Guard have a particular Habit. Therefore probably, C[olonel] Marshall, mistaken. In that Temper of [Mind], that frame of Disposition, which prevailed thro the whole Continent. These Persons were upon their Duty, and their Lives in Danger if they movd from their stations.
1. Adams Massacre Minutes, MBMS. See Descriptive List of Sources and Documents.
2. Other things being equal.

Docno: ADMS-05-03-02-0001-0004-0009

Author: Quincy, Josiah Jr.
Date: 1770-11-29

Josiah Quincy's Opening for the Defense1

29 November 1770

May it please your Honours, and you Gentlemen of the Jury.
The prisoners at the bar stand indicted for the murder of five of his Majesty's leige subjects, as set forth in the several indictments, which have been read to you: the persons slain, those indictments set forth, { 159 } as “being in the peace of God and our Lord, the King,” at the time of the mortal wounds given.
To these indictments, the prisoners have severally pleaded Not Guilty: and for their trial have put themselves on God and their country; which country you are. And by their pleas, thus severally pleaded, they are to stand or fall, by the evidence, which shall respectively apply to them.
By their plea of Not Guilty, they throw the burden of proof, as to the fact of killing, upon the Crown; but, upon which being proved, the matters, they allege to justify, excuse, or extenuate, must be adduced by them, and supported by legal evidence. The truth of the facts, they may thus alledge, is your sole and undoubted province to determine; but upon a supposition, that those facts shall appear to your satisfaction, in the manner we alledge, the grand question then to be determined, will be, whether, such matters so proved, do in law extenuate, excuse, or justify. The decision of this question, belongs to another department; namely, the Court. This is law so well known and acknowledged, that I shall not now detain you by a recital of authorities, but only refer to Judge Foster's Crown Law, where this point is treated with precision, and fixed beyond controversy. It may not be amiss, however, to assure you, that as certain as the cognizance of facts is within your jurisdiction, as certain does the law, resulting from these facts, in cases of the present kind, seem to reside solely in the Court: unless cases where juries, under the direction of the Court, give general verdicts, may be denominated exceptions.
I take it, that, in the cause now before us, it will not be contested, that five persons were unfortunately killed, at the time the indictments charge; and this case will naturally enough divide itself, into three main divisions of enquiry.
I. Whether any homicide was committed?
II. By whom was it committed?
III. Is there any thing appearing in evidence, which will justify, excuse, or extenuate such homicide, by reducing it to that species of offence, called manslaughter?
Before we enter upon these enquiries, permit me, Gentlemen, to remind you of the importance of this trial, as it relates to the prisoners. It is for their lives! If we consider the number of persons now on trial, joined with many other circumstances which might be mentioned, it is by far the most important, this country ever saw.
Remember the ties you are under to the prisoners and even to your selves: The eyes of all are upon you. Patience in hearing this cause is { 160 } an essential requisite; candor and caution are no less essential. It is tedious and painful to attend so lengthy a trial; but remember the time which has been taken up by the Crown, in the opening. By every bond of humanity and justice, we claim an equal indulgence: nay, it is of high importance to your country, that nothing should appear on this trial to impeach our justice, or stain our humanity.
And here, let me remind you of a notion, which has certainly been too prevalent, and guard you against it's baneful influence. An opinion has been entertained by many among us, that the life of a soldier, was of very little value: of much less value, than others of the community. The law Gentlemen, knows no such distinction; the life of a soldier is viewed by the equal eye of the law, as estimable, as the life of any other citizen.
I cannot any other way account, for what I mention, but by supposing, that the indigence and poverty of a soldier, the toils of his life, the severity of discipline to which he is exposed, the precarious tenure by which he is generally thought to hold his life, in the summary decisions of a court martial, have conspired to propagate a sentiment of this kind; but a little attention to the human heart, will dissipate this notion.
The soldier takes his choice, like all others, of his course of life: he has an equal right, with you or me, so to do. It is best we should not all think alike. Habit makes all things agreeable. What at first was irksome, soon becomes pleasing. But does experience teach, that misery begets in general an hatred of life. By no means; we all reluct at death; we long for one short space more—we grasp, with anxious solicitude, even after a wretched existence. GOD and Nature has implanted this love of life. Expel therefore from your breasts, an opinion so unwarrantable by any law, human or divine; let not any thing so injurious to the prisoners, who value life as much as you; let not any thing so repugnant to all justice have an influence in this trial. The reputation of the country depends much on your conduct, Gentlemen, and, may I not add, Justice calls aloud for candour in hearing, and impartiality in deciding this cause, which has, perhaps, too much engrossed our affections—and, I speak for one, too much excited our passions.
The law, by which the prisoners are to be tried, is a law of mercy— a law applying to us all—a law, judge Blackstone will tell us “founded in principles, that are permanent, uniform and universal, always conformable to the feelings of humanity and the indelible rights of mankind.” Sec 4, 13. Cap. 3.2
{ 161 }
How ought we all, who are to bear a part in this day, to aim at a strick adherence to the principles of this law—how ought we all to aim at utterly eradicating every undue biass of the judgment—a bias subversive of all justice and humanity.
Another opinion equally foreign to truth and law has been adopted by many.
It has been thought, that no possible case could happen, in which a soldier could fire, without the aid of a civil magistrate. This is a great mistake—a very unhappy mistake indeed!—one, I am afraid, that had it's influence, on the fatal night, which we all lament. The law, as to the present point, puts the citizen and soldier under equal restraint. What will justify and mitigate the action of the one, will do the same to the other. Let us bear this invariably in mind, in examining the evidence. But before we proceed to this examination, let us take a transient view of some occurences, preceding and subsequent to the melancholy fifth of March.
About some five or six years ago, it is well known, certain measures were adopted by the British parliament, which gave a general alarm to this continent. Measures were alternately taken, in Great Britain, that awakened jealosy, resentment, fortitude and vigilance. Affairs continued long fluctuating. A sentiment universal prevailed, that our dearest rights were invaded. It is not our business here to enquire touching these delicate points. These are concernments, which however interesting or important in themselves, we must keep far away from us, when in a Court of law. It poisons justice, when politics tinctures it's current.
I need not inform you, how the tide rose, as we were advancing towards the present times. The general attention became more and more roused—people became more alike in opinion and practice. A vast majority thought all that was dear was at stake—sentiments of liberty, property, ignominious bondage, all conspire to encrease the ferment. At this period, the troops land. Let us here pause, and view the citizen and soldier.
The causes of grievance being thus spread far and wide, the inhabitants viewed the soldiery as called in, foreign from their prime institution, to enforce obedience to acts, which were, in general, deemed subversive of natural, as well as constitutional freedom. With regard to the universal prevalence of ideas of this kind, it does not fall within our present plan, to give you direct, positive evidence. It would be too foreign to the present issue, though pertinent enough, when considered as a clue to springs and motives of action, and as an addi• { 162 } tional aid to form a just judgement in our present enquiry. You Gentlemen who come from the body of the county, are presumed to know these facts, if they are true; nay their notoriety must be such, provided I am not mistaken in my conjecture, that the justice of my observation on this matter, must be certainly confirmed by your own experience. I presume not in this, or any other matter of fact, to prescribe to you; if these sentiments are wrong, they ought to have no influence; if right, they ought certainly to have their due weight.
I say, Gentlemen, and appeal to you for the truth of what I say, that many on this continent viewed their chains as already forged, they saw fetters as prepared, they beheld the soldiers as fastening, and riveting for ages, the shackles of their bondage. With the justness of these apprehensions, you and I have nothing to do in this place. Disquisitions of this sort, are for the Senate, and the Chamber of Council— they are for statesmen and politicians who take a latitude in thoughts and actions; but we, Gentlemen, are confined in our excursions, by the rigid rules of law. Upon the real, actual existence of these apprehensions, in the community, we may judge—they are facts falling properly within our cognizance—and hitherto may we go, but no further. It is my duty, and I ought to impress it on your minds, and you, Gentlemen, ought to retain the impression. You are to determine on the facts coming to your knowledge; You are to think, judge, and act, as Jurymen, and not as Statesmen.
Matters being thus circumstanced, what might be expected. No room was left for cordiality and friendship. Discontent was seated on almost every brow. Instead of that hospitality, that the soldier thought himself intitled to, scorn, contempt and silent murmurs were his reception. Almost every countenance lowered with a discontented gloom, and scarce an eye, but flashed indignant fire.
Turn and contemplate the camp. Do you find a more favourable appearance?
The soldier had his feelings, his sentiments, and his characteristick passions also. The constitution of our government has provided a stimulus for his affections. The pride of conscious virtue, the sense of valour, the point of honour.
The law had taught him to think favourably of himself. Had taught him to consider himself,3 as peculiarly appointed for the safeguard and defence of his country. He had heard, that he put not off the citizen, when he entered the camp; but because he was a citizen, and wished to continue so, he made himself for a while a soldier.
{ 163 }
How stinging was it to be stigmatized, as the instrument of tyranny and oppression? how exasperating to be viewed, as aiding to enthrall his country? He felt his heart glow with an ardour, which he took for a love of liberty and his country, and had formed to himself no design fatal to it's privileges. He recollected no doubt, that he had heretofore exposed himself for it's service. He had bared his bosom in the defence of his native soil, and as yet felt the smart of wounds received in conflict for his King and Country. Could that spirit, which had braved the shafts of foreign battle, brook the keener wounds of civil contest? The arrows which now pierced him, pierced as deep, and rankled more, than those of former times. Is it rational to imagine much harmony could long subsist?
We must take human nature as we find it, and not vainly imagine, that all things are to become new, at such a crisis.
There are an order of men in every commonwealth who never reason, but always act from feelings. That their rights and liberties were filched away one after another, they had often been told. They had been taught, by those whom they believed, that the ax was now laid to the root of the tree, and one more stroke compleated it's fall. It was in vain to expect to silence or subdue these emotions by reasons, soothings, or dangers. A belief, that nothing could be worse, than the calamities which seemed inevitable, had extended itself on all sides, and arguments drawn from such sources had little influence. Each day gave rise to new occurrences which encreased animosities. Heart-burnings, heats and bickerings became more and more extensive. Reciprocal insults sowered the temper, mutual injuries imbittered the passions.
Can we wonder, that when every thing tended to some important action, the period so soon arrived? Will not our wonder be encreased, to find the crisis no sooner taking place, when so many circumstances united to hasten it's approach? To use an allusion somewhat homely, may we not wonder, that the acid and the alcali, did not sooner ferment?
A thought here imperceptibly forces itself on our minds, and we are led to be astonished, that persons so discordant in opinion, so opposite in views, attachments and connections, should be stationed together. But here, Gentlemen, we must stop. If we pursue this enquiry, at this time, and in this place, we shall be in danger of doing great injustice. We shall get beyond our limits. The right of quartering troops in this province must be discussed at a different tribunal. The constitutional legality, the propriety, the expediency of their appointment are ques• { 164 } tions of state, not to be determined, nor even agitated by us, in this Court. It is enough for us, if the law takes notice of them when thus stationed; if it warrants their continuance; if it protects them in their quarters. They were sent there by that authority, which our laws know; they were quartered here, as I take it, agreeable to an act of the British Parliament; they were ordered here, by your Sovereign, and mine. I expect hereafter, to be more particular on this head.
Let me here take a method very common, with another order of men. Let me remind you of what is not your duty.
Gentlemen, great pains have been taken by different men, with very different views, to involve the character, the conduct and reputation of the town of Boston, in the present issue. Boston and it's inhabitants have no more to do with this cause, than you or any other members of the community. You are, therefore, by no means to blend two things, so essentially different, as the guilt or innocence of this town and the prisoners, together. The inhabitants of Boston, by no rules of law, justice or common sense, can be supposed answerable for the unjustifiable conduct of a few individuals hastily assembled in the streets. Every populous city, in like circumstances, would be liable to similar commotions, if not worse. No rational or honest man, will form any worse opinion of this metropolis, for the transactions of that melancholy night. Who can, who will, unnecessarily interest themselves, to justify the rude behaviour of a mixt and ungovernable multitude? May I not appeal to you, and all who have heard this trial, thus far, that things already wear a different aspect from what we have been, heretofore, taught to expect? Had any one told you some weeks ago, that the evidence on the Crown side, would have appeared in it's present light, would you have believed it? Can any one think it his duty, to espouse the part acted, by those assembled in King-street?—I think not; but lest my opinion should not have any weight, let me remind you of an author, whom, I trust, and wish in the hands of all of you. One whom I trust you will credit. I am sure you ought to love and revere him. I wish his sentiments were ingraven in indelible characters on your hearts. You will not suspect him of being unfriendly to liberty; if this cause and it's event must, at all hazards, be held as interwoven with a matter so foreign to it. I allude to the third Letter of the FARMER of Pennsylvania to his countrymen.
“The cause of liberty, says that great and good writer, is a cause of too much dignity, to be sullied by turbulence and tumult. It ought to be maintained in a manner suitable to her nature. Those who engage in it, should breathe a sedate, yet fervent spirit, animating them to ac•
{ [facing 164] } { [facing 165] } { 165 }
tions of prudence, justice, modesty, bravery, humanity, and magnanimity.”4
What has there transpired on this trial, favouring of any of these virtues? Was it justice or humanity to attack, insult, ridicule and abuse a single Sentinel on his post? Was it either modest, brave or magnanimous to rush upon the points of fixed bayonets; and trifle, vapour, and provoke at the very mouths of loaded muskets. It may be brutal rage, or wanton rashness, but not surely any true magnanimity.
“I hope, says the same eminent writer, my dear countrymen, that you will in every colony be upon your guard against those, who AT ANY TIME endeavour to stir you up, under pretences of patriotism, to any measures DISRESPECTFUL to your Sovereign and our mother country.”5 By this it should seem, as though the Farmer never expected any period would arrive, when such measures would be warrantable. Now what more disrespectful to our parent country, than to treat with contempt a body of men stationed most certainly by the consent of her supreme legislative, the parliament of Britain? What more disrespectful of our common sovereign, than to assume the sword of justice, and become the avengers of either public or private wrongs? Tho' the soldiers, who appeared in the earlier part of the evening, in Cornhill, acted like barbarians and savages, they had now retired, and were now confined in their barracks: what tho' an impertinent boy had received unjustifiable correction from the Sentinel; the boy, and the persons in Cornhill, must have recourse only to the law for their redress. Courts of law are stiled “vindices injuriarum,” the avengers of injuries, and none others are to assume this prerogative. The law erects itself as the supreme, dernier resort, in all complaints of wrongs; and nothing could more essentially sap our most important interests, than any countenance to such dangerous encroachments on the domains of municipal justice.
But finally, to finish with the justly celebrated Farmer, “Hot, rash, disorderly proceedings, injure the reputation of a people as to wisdom, valour, and virtue, without procuring the least benefit.”6 Thus have you the sense of this great authority with us. And let me ask all those, who have thought the cause of their country connected with the agents of the assembly in King Street, whether the proceedings of that unhappy night, were hot, rash, or disorderly? If they were, have they not, in the opinion of this great friend of liberty, injured our reputa• { 166 } tion, as to wisdom, valour, and virtue; and that too, without procuring the least benefit? Who then would sacrifice his judgment and his integrity, to vindicate such proceedings?
To what purposes the soldiers were sent; whether it was a step warranted by sound policy or not, we shall not enquire; we are to consider the troops, not as the instruments for wresting our rights, but as fellow citizens, who being to be tried by a law, extending to every individual, claim a part in it's benefits—it's privileges—it's mercy. We must steel ourselves against passions, which contaminate the fountain of justice. We ought to recollect, that our present decisions will be scann'd, perhaps thro' all Europe. We must not forget, that we ourselves will have a reflective hour—an hour, in which we shall view things through a different medium—when the pulse will no longer beat with the tumults of the day—when the conscious pang of having betrayed truth, justice, and integrity, shall bite like a serpent and sting like an adder.
Consider, Gentlemen, the danger which you, and all of us are in, of being led away by our affections and attachments. We have seen the blood of our fellow men flowing in the streets. We have been told that this blood was wrongfully shed. That is now the point in issue. But let it be borne deep upon our minds, that the prisoners are to be condemned by the evidence here in Court produced against them, and by nothing else. Matters heard or seen abroad, are to have no weight: in general they undermine the pillars of justice and truth. It has been our misfortune, that a system of evidence has appeared in the world against us. It is not our business to blame any one for this. It is our misfortune, I say. It should be remembered, that we were not present to cross examine: and the danger which results from having this publication in the hands of those who are to pass upon our lives, ought to be guarded against. We say we are innocent, by our plea, and are not to be denounced guilty upon a new species of evidence, unknown in the English system of criminal law.
But as though a series of ex parte evidence was not enough, all the colours of the canvass have been touched in order to freshen the wounds, and by a transport of imagination, we are made present at the scene of action. The prints exhibited in our houses have added wings to fancy; and in the fervour of our zeal, reason is in hazard of being lost. For as was elegantly expressed, by a learned Gentleman7 at the late trial, “The passions of man, nay his very imaginations are contagious.” The pomp of funeral, the horrors of death have been so { 167 } delineated, as to give a spring to our ideas, and inspire a glow in-compatible with sound, deliberative judgment. In this situation, every passion has alternately been predominant. They have each in it's turn, subsided, in degree, and have sometimes given place to despondence, grief and sorrow. How careful should we be, that we do not mistake the impressions of gloom and melancholy, for the dictates of reason and truth. How careful, lest borne away by a torrent of passion, we make shipwreck of conscience.
Perhaps, you may be told, Gentlemen, as I remember it was said, at the late trial, that passions were like the flux and reflux of the sea the highest tides always producing the lowest ebbs. But let it be noticed, that the tide, in our political ocean, has yet never turned; certainly the current has never set towards the opposite quarter. However similies may illustrate, they never go for proof. Though I believe, that it will be found, that if the tide of resentment has not risen of late, it has been because, it had reached the summit. In the same mode of phraseology, if so homely an expression may be used; perhaps, as the seamen say, it has been high-water slack—but I am satisfied the current has not as yet altered it's course, in favour of the prisoners at the bar.
Many things yet exist sufficient to keep alive the glow of indignation. I have aimed at securing you against the catching flame. I have endeavoured to discharge my duty, in this respect:—What success will follow those endeavours, depends on you, Gentlemen. If being told of your danger will not produce caution, nothing will. If you are determined in opinion, it is in vain to say more, but if you are zealous enquirers after truth; if you are willing to hear with impartiality—to examine and judge for yourselves—enough has been said to apprize you of those avenues, at which the enemies of truth and justice are most likely to enter—and most easily to beset you.
Gentlemen of the Jury,
I shall now, for argument's sake only, take it for granted, that the fact of killing, had been proved upon all the prisoners: you are sensible this is not really true; for as to this point, there are several of the prisoners upon whom this fact is not fixed. But as I shall hereafter take occasion to consider the distinct case of each prisoner, as he is affected by the evidence, I at present chuse to avoid confusion, and apply myself to the full strength of the crown; and, upon a supposition, that all the prisoners were answerable for the act of any one, see how the prisoners are chargeable, by the evidence already offered, with the crime of Murder: or rather endeavour to point out to you those { 168 } facts, appearing by the evidence on the crown side, which will amount, in law, to a justification, an excuse, or, at least, an extenuation of their offence. For we say, that give the evidence for the king it's full scope and force, and our offence is reduced, at least, to Manslaughter: in which case, we claim the privilege of that law, by the sentence of which, if guilty, we must suffer the pains of death: a privilege we can never again claim—a privilege, that by no means implies exemption from all punishment: the offender becomes liable to imprisonment, for a year—incurs a forfeiture of all goods and chattels; and, till he receives the judgment of law, is to all intents a felon—subject to all the disabilities and other incidents of a felon. Without taking up time, in attending and discussing points, no way pertinent to the present issue; without a tedious recapitulation of circumstances, with which, I take it, we have no more concern, than either of you, Gentlemen; I say passing over all these matters as foreign to this trial; let us state evidence appearing even from the crown witnesses.
These witnesses, (whose testimony I shall not consider in the order they were produced) inform you, that in the former part of the evening a number of soldiers rushed from some of the lanes near the Guard-house, or as Col. Marshall supposes, from the Guard-house itself. But some circumstances he relates, as to their dress, may render it doubtful, whether he is right in this point. Soldiers on guard have a peculiar regimental habiliment, which they never dare put off; and if I am rightly instructed, no soldiers, but those on duty, are suffered to be at the Guard-house at those hours. However thus much is certain, that being dressed in short jackets or working coats, proves them not to be of that particular party who had mounted guard at this time,
The cry was “where are they—damn them where are they!” They brandish their weapons, and proceed to Corn-hill. What those weapons were the witnesses say differently. But it should be mentioned as we go along, that the soldiers of the twenty-ninth, are never allowed to wear swords or cutlasses.8
As these soldiers pass down Corn-hill, they assault, abuse and attack people. The soldiers in their turn are beaten. One has his wrist broke—and the general cry soon after was—“they are beaten—they are drove into the barracks!”
Some part of this conduct may hereafter be accounted for, and other parts of it may stand in a very different light. But we are ready to { 169 } admit, that their behaviour was altogether unjustifiable—for we don't look upon ourselves as any way concerned in their conduct. Conduct which, if some of the witnesses are not mistaken, seems more like that of madmen and barbarians, than like reasonable creatures. If they acted like savages or ruffians, what is that to us? This evidence, therefore not applying to this case, we are injured if it has any influence to our prejudice. Being foreign to the issue, we humbly conceive it ought never to have been introduced; or being introduced, it ought to be rejected, in our determining the guilt or innocence of the prisoners.
Mr. Josiah Quincy then proceeded to a minute detail of the crown evidence, pointing out, as he went along, those circumstances that favoured the prisoners; and commenting chiefly on those facts, which served to refute or invalidate the positions of the Council for the Crown; by showing an assault and attack upon the Sentry. He then reviewed those parts of the evidence, which had a tendency either to prove insult, abuse, or assault and battery of the party: he pointed out the various quarters, from which all these, but especially the assault and battery proceeded; and from the facts, time and circumstances testified, inferred the attack to have been on various sides at the same instant. From the noises, violence and rattling of the guns he drew other consequences useful to his cause. From the inattention of some, and the forgetfulness of others; from the tumult, fright, confusion and passions in the scene, he made such deductions as might account for the contrariety and seeming incompatibility of the evidence.
He next very particularly stated the Evidence for the prisoners, as he had been instructed it would turn out on examination; and as he opened his evidence, he carefully remarked its conformity to, and connection with, many parts of that already exhibited by the Council for the King. He then called the witnesses, who swore as follow.
1. Wemms Trial 68–80. At several places in Docs. IX, XV, and XVI, the editor of the Wemms Trial summarized portions of the respective lawyers' jury addresses. The present editors have printed these without any typographical differentiation, but have spaced them off from the body of the text.
3. Note by Quincy: “1 Blackstone, Commentaries *407.”
4. John Dickinson, Letters from a Farmer in Pennsylvania 17 (Englewood Cliffs, N.J., ed. McDonald, 1962).
5. Dickinson, Letters from a Farmer in Pennsylvania 17.
6. Dickinson, Letters from a Farmer in Pennsylvania 17.
7. That is, JA. See note 1353 above.
8. Although the officers of the regiment traditionally wore swords even at mess, it appears that after 1768 among the enlisted men only the sergeants carried them. Everard, History of the 29th Regiment 59, 221. But see id. at 61, where a picture shows a grenadier, vintage 1769, wearing a sword.

Docno: ADMS-05-03-02-0001-0004-0010

Author: Adams, John
Date: 1770-11-29

Adams' Minutes of Defense Evidence1

29 November 1770

Prisoners Witnesses
James Crawford. At dark that night, I went home and was not out till next morning. I met Numbers of People that night as I went home, going down with sticks in their Hands. At Calefs Corner, saw a Num• { 170 } ber above 12 with sticks in their Hands. Heard no Declarations. In Quaker Lane I met many more than common, going towards K's Street. I was going to Bulls Wharfe where I live and met them. They were very great Sticks, not common Canes, for walking with, pretty large Cudgells. All along I met them continually, and in Greens Lane particularly.2
Archibald Gould. Coming over Swing Bridge at 8 O Clock the People were walking from all Quarters with sticks, that I was afraid to go home. I went threw Greens Lane, and met many People, the Streets in such Commotion as I hardly ever saw in my Life. Uncommon Sticks, such as a Man would pull out of an Hedge. I was just by Hancocks Warehouse3 when the Bells begun to ring.4
Archibald Wilson. I spent the Evening in Dock Square. A certain Gentleman between 8 and 9 came in and asked why we sat there when there was so much disturbance between Inhab[itants] and soldiers. We went to Gerrishes Vendue,5 Hunters now, and sat in the Balcony. I looked out at the Vendue Window. A good many People assembled in dock Square. A Number came from the North End and made several attempts at Murrays barracks, 30 or 40 of 'em came back suddenly. What Resistance they met with I cant tell. It was very light. They had Staves a good many, Some had not. I imagined there might be 200 People that came from the N[orth] E[nd] and went up 3 several Ways, { 171 } some up Cornhill some up r[oyal] exchange Lane and some up Crooked Lane. As a new Parcell came up from N[orth] E[nd] they made attempt at the Guard at Murrays Barracks and gatherd in a Cloud[crowd?]about 30 or 40. Then made 2 or 3 Cheers for the main Guard. I went out to go up the Lane and the Guns went off. I turnd about and went home. I do remember the Bells ringing, but the Time I dont remember. But before I went up r[oyal] exchange Lane, a good many cryed for the main Guard. I heard Voices, Fire. I said it was uncommon to go to a Fire with Bludgeons. Somebody said they were uncommon Bells. Mr. Mitchelson came up and told us, there was disturbance.6
William Hunter. Mr. Mitchelson came and said there was Disturb• { 172 } ance between Inhabitants and soldiers. We went into the Balcony, and saw great Numbers coming up from the N[orth] E[nd] and in several Parties made attempts at the Lane that leads to Murrays Barracks. There was a tall Gentleman in a red Cloak. He stood in the middle of em, and they were whist7 for some time and presently they huzzayd for the main Guard. They went up r[oyal] exchange Lane. And I saw no more about it. The Gentleman had a white Wigg on. They collected round him. He stood in the Center and talkd a few Minutes.8
David Mitchelson. I came up Stairs and told the 2 Witnesses that were examind before me. I was coming Home from fore street. As I was turning into Union Street, I heard a Noise, about the Post office, and went up as far as the bottom of r. exchange Lane. I heard it was a Squabble with the soldiers. The Party engagd with the Soldiers were routed, and came down that Way. I ran into Mr. Hunters House. We went into the Balcony. I Saw a pretty large Number of People, assembled. It was proposed by several to call out Fire. Fire was called several Times, and after a While the Bells set a ringing. Many People came, some came with Bucketts, ma[n]y with Sticks. Several attempts were made at the Lane to Murrays Barracks. They came back, as if driven. They assembled in several little Knotts, about several little Leaders. They cryd they would go up the main Guard. The Effect im• { 173 } mediately followd. Part went up by Cornhill, part up r. exchange Lane, part up crooked Lane. I could not observe who was leader up Cornhill. They huzzad for the Main Guard after the Proposal of it. The Bells were ringing. The largest Party went round Cornhill. I should suppose the greatest Number at any one time in <King Street> D[ock] S[quare] was 200.9
{ 174 }
John Short. There was a Number of People in D[ock] Square, and I was told that a Soldier had hurt an oyster Man. After the firing there was a Proposal of taking the Arms10 out of the Hall.11
Benja. Davis. At D[ock] S[quare] I heard a Noise in Cornhill. I found there was a Quarrell. I went and stoppd at Silsbeys Alley. There I saw a Number Soldiers and Inhabitants, fighting with Clubbs as I thought by the Sound. <A Man> 3 or 4 came and cryd, where are any Cordwood sticks or Clubbs, and cryd Fire Fire Fire. One of em left his Cloak with me. The 1st Bell I heard was the brick Meeting Bell. I Saw a general Running down the Street 8 or 9 or 10 soldiers, that ran into Kings street, with something in their Hands. I went into K[ing] S[treet]. The Engine was out.12 Several Knotts of People were collected. I went to the S[outh] S[ide] of the T[own] H[ouse]. A huzzaing in K[ing] S[treet]. I went by the South side of the Town House and stood by Prices office. The sentinel on the C[ustom] H[ouse] steps, and { 175 } People and Boys round him crying fire &c. He put his Piece down as if he was going to fire. 2 young Men without Hatts came to the main Guard, and said you must send Help to the sentry for I heard em say they would kill the sentinel. By and by out guard. About 7 came out their guns not shoulderd and walked right across the street to the Box. A great Noise. There I stood till the Guns were all fired. 5, 6, or 7 Guns.13
{ 176 }
Shubael Hewes. I spent the Evening near the Dock. The Master of the [House?] came in and said a cry of fire. I belonged to the Town House Engine.14 I was the first out of the House. I came by the Markett —saw a Number coming from the North. I stoppd at C[olonel] Jacksons Corner. A Man told me, no fire, but a Dispute between the soldiers at Murrays barracks. A Number of Lads came along, and tryd to pull out and break the Leggs of the Stalls. They came from the Northward some and some from Hubbards Corner. 6 or 7, I cant say exactly.15
James Selkrig. At Hunters. Mr. Mitchelson came in. 4 or 5 or 6 unsuccessfull attacks upon the Barracks. As a new Party came they made a fresh Attack. I saw nothing, but that they went up the ally and came back suddenly. A Gentleman with red Cloak and large white Wigg. He made a Speech to them. 4 or 5 minutes. They went and knockd with their Sticks and said they would do for the Soldiers. Not less than [about?] 2 or 300. It was not the 1st Time I've seen an affair of this { 177 } sort. I'le go to my Family. Ile do for the soldiers, was Spoke by Number at Simpsons store.16
Archibald Bowman. At Hunters. Fire, Fire, from different Quarters. The Parties that went up the allys came down in a furious manner as if they were chased. A Gentleman with a red Cloak and white Wigg. They stood thick round the Gentleman some time and after, huzzad for the main Guard, and went up in different Ways. A great Number of People. Dont remember, their [striking?] Simpsons Store or, saying that'd do for the soldiers.17
{ 178 }
Wm. Dixon. At Hunters. A Party came running down the Ally as if they met with opposition there.18
Jno. Gillespie. At 7 O Clock I went up to the South End, and met I suppose 40 or 50 People with white sticks, in Parties of 4 or 5, at Mr. Silvesters. I met Mr. Flemming's Man. He said it was only fighting with the soldiers.19
{ 179 }
Thomas Knight. I stood at my own Door at the sign of the 3 Kings in Cornhill. About 8 or 10 passed with sticks Clubbs and one said Dn their Bloods let us go and attack the main Guard and attack the main Guard first. The Bell still ringing. One of em made a stand and said Ile go back and get my Gun or let Us go back and get our Guns. I went in and told my Wife not to be surprized if she heard any firing for I thought from what I had heard at the Door, there would be bloodshed —and soon heard Guns. 5, 6 or 7, in 12 or 14 seconds.20
John Cookson. At the Green Dragon. A Man said if the Bells were ringing it was he apprehended an Affray with the Soldiers. The story of the Pistol or Hearsay.21
{ 180 }
William Strong. At Marstons. We heard Fire 3 or 4 times. Going out saw several People going too and fro. Somebody said a soldier had kill'd a Boy. Went to the North Corner of the Town House. H[ear]d a huzzaing near the Post office. Saw several Persons coming about 90, many with sticks. They stopped at the Custom House. I [found] the People encroaching upon the Sentry. He retird to the Steps. They [encroachd] upon him there. He then loaded his Gun, and presented it, and said keep off or Ile fire upon you. They cryd fire d—n you why dont you fire. One Man had the But End of a Bat in his Hand, and said dam it I've a great Mind to throw it at him. I said you'd better not. Presently a Cry that the Centinel was disarmed. About 90 Persons about the sentry, before the Party came down. A great Noise, and Clamour, a few snow Balls and some things thrown, by those in front.22
1. Adams Massacre Minutes, MHiMS 3, first part. See Descriptive List of Sources and Documents.
2. Wemms Trial 80–81:
James Crawford, Truckman, sworn.
Q. Did you observe on the evening of the 5th of March last, any of the inhabitants armed, or any commotions in the streets before the firing?
A. On the night of the 5th of March last, a little after dark, as I went home, I met uncommon numbers of people with sticks; at Calef's corner there were more than a dozen inhabitants. I met some also in Quaker-lane, and by Mr. Dalton's, going towards King-street. I looked upon it to be more than what was common. Their sticks looked not to be common walking canes, but pretty large cudgels.
3. It is not clear which of Hancock's warehouses this is.
Archibald Gooll, Merchant, sworn.
Q. Did you observe any such commotions at that time?
A. Going over the Swing bridge, the evening of the 5th of March, I saw people running from all corners, with sticks and instruments in their hands; I being a stranger was afraid to go home; when I came to Faneuil hall I met with a young man, he said he would conduct me home: as I came to Green's lane, I met great numbers, twenty or thirty together, and the streets were as full of commotion as I ever saw in my life.
Q. What sort of sticks were they that they had?
A. Uncommon sticks, like what are pulled out of hedges.
Q. What part of the town was you in when you first noticed these commotions?
A. I was crossing the Swing bridge. This was before any bells rang.
5. An auction house.
6. Wemms Trial 81–82:
Archibald Wilson, Merchant, sworn.
Give the Court and Jury an account of the transactions in Dock-square, on the evening of the 5th March last.
A. On that evening I was in company with some gentlemen in Mr. William Hunter's house near Dock square, a certain gentleman came in, and asked how we came to be sitting there, so contented, when there was such trouble betwixt the soldiers and inhabitants; this was betwixt 8 and 9 o'clock. Some of the company went and looked out of the window at the foot of Exchange lane; I came into the Vendue-room and went to the balcony, there were so many in it I was afraid it would fall down; I withdrew from thence and looked out of the window; I saw a great number of people assembled there before the bells rung; I saw a number of people come from the north end; they made two or three sundry attacks up that lane where the barracks which are called Murray's, or Smith's barracks were.
Q. How were they armed that came from the North-end?
A. They had sticks or staves, I do not know what they are called.
Q. Was it a Moon-light night?
A. I do not remember seeing the Moon, but it was very light.
Q. What number of persons did you see in Dock square?
A. I cannot say, I judge there might be about two hundred in all; they left the square and went three different ways, some up the main street, some up Royal-exchange-lane, and some up the other lane; they gave two or three cheers for the main guard; about the space of five or six minutes after the cheers I withdrew from that house, and went up Royal-exchange-lane; and when I was about the middle of the lane the guns went off. I turned, and came down the lane, and went home.
Q. Did you hear the bells ring?
A. I heard the bells ring, but what time it was I do not know.
Q. Was it before you went up the lane? []A. Yes.
Q. Did numbers cry for the main guard, or but one or two?
A. Numbers did. They also cryed fire. I said it was very odd to come to put out a fire with sticks and bludgeons.”
Samuel Quincy Massacre Minutes, MHi (the first part of Wilson's testimony is missing):
not see they rushed back 30 or 40 at a Time. A great many had staves. About 200 people went up the Three Streets from Dock Square. When they were gathered opposite Walley's and had made 3 or 4 vain Attempts to get to M[urray's] B[arracks] Gave 2 or 3 Chears for Main Guard. About the Middle of R. Ex. L. he heard the Guns go off. Bells rung before he went up R. Ex. L. Young people cried fire. Some of the Company said, it was very uncommon to come to a fire with Sticks and Bludgeons.
7. “Silent, quiet, still, hushed.” OED.
8. Wemms Trial 82–83:
William Hunter, Vendue-master, sworn.
I was in my own house, and Mr. Wilson, the former witness, with me; we heard a noise, and Mr. Mitchelson came in and told us there was a disturbance amongst the inhabitants and soldiers; I went to the Vendue balcony, and saw great numbers coming up from the North-end, with large sticks in their hands, most of them I saw went in parcels up to the barracks, and then came down in numbers. This they did several times, as they gathered from the North end.
Q. Were the bells ringing?
A. I do not remember; a gentleman came up with a red cloak, they gathered round him, and he stood in the middle of them, and they were all very quiet; he spoke to them a little while, and then he went off, and they took off their hats, and gave three cheers for the Main-guard; they went up Royal-exchange-lane as fast as they could, I went after them, and some of the company at my house went up the lane also.
Q. Was the man who spoke to these people a tall or short man?
A. Pretty tall.
Q. How was he dressed?
A. He had a white wig and red cloak, and instantly after his talking a few minutes to them, they made huzzas for the main guard.
Samuel Quincy Massacre Minutes, MHi:
Will. Hunter. At the same Place; saw a Number coming up from the North End with a sort of large Sticks. Attempted 2 or 3 Times to get up Dr. Cooper's Lane. A tall Gentleman with a Red Cloak on in the Middle of 'em. He spoke and they were all still. Then 3 Chears for Main Guard. They went up R. Ex. L. I went home.
9. Wemms Trial 83–84:
David Mitchelson, Seal-engraver sworn.
I am the person that came up stairs and told the witness examined before me, that there was a disturbance in the street. The whole I have to say is this. Coming home that evening from a friends house in Fore-street, I called at a house in Union street. Turning the corner of Fore-street, I heard a noise which drew my attention immediately, it seemed to come from the Post-Office, or thereabouts: Immediately I went to see what the matter was. At the bottom of Royal-exchange lane, I asked a man that was at a distance what the matter was? He said it was a squabble betwixt the inhabitants and soldiers; I then stood at the bottom of the lane, I had not stood long there, till I was obliged to go away, the party, engaged with the soldiers, having been routed as I thought, came rushing down towards where I stood. I went into Mr. Hunter's, found some gentlemen there; I told them they were very quiet indeed, considering there was such a number of people in the street. We went into the balcony and stood there, to see the transactions below; and the only thing material I can recollect, that passed, was this: I saw a pretty large number of people assembled together, drawn together, I apprehended, by the noise of them that were first engaged with the soldiers. It was proposed by several of them, to call out fire! Fire was called several times, and then the bells were set a ringing. This drew a great concourse of people, not knowing but it was fire. The greatest part had sticks of various sorts; they made several attempts to get up a lane leading to Murray's barracks, but I suppose meeting with opposition there, they came down as if they had been pursued. After making several such attempts, they assembled in various little knots, with various leaders, I suppose every party had a leader. I heard them propose, let us go up and attack the Main-Guard.
Q. Recollect the words as near as you can.
A. I cannot recollect the precise words, but they were to that very effect. Some of them went up Royal-exchange-lane, part of them through the other lane (called Boylston's-alley,) and part up Cornhill.
Q. Who led the party that went up Cornhill?
A. I cannot tell, it was not light enough, and the confusion together, I could not tell which was leader, or which was follower.
Q. Did the bells ring then? []A. Yes.
Q. What bells? []A. I do not know what bells they were.
Q. Did you notice if the largest party went up Cornhill?
A. Yes, they did. After they went from that place of the street which I could see from the balcony, the street was then particularly clear of them, except the people coming from Union-street and the other streets. Anxiety to know what might happen in King-street, led me to take my hat and go to see: When I was about half way up the lane, the guns were fired, and I saw the flashes of some of them. I then turned and came down.
Q. How many people do you imagine were assembled in Dock-square, when the greatest number was together? []A. I imagine two hundred.
Q. Did you see a man with a red cloak and white wig?
A. Yes, he made a considerable figure there.
Q. Was he in the attitude of speaking, and they of attention? []A. Yes.
Q. Could you hear what he said to them?
A. No, but after he had harrangued them about three minutes, they huzza'd for the Main-Guard.
Samuel Quincy Massacre Minutes, MHi:
Davd. Michaelson. Heard a Noise towards the Post-Office. Was told it was a Squabble between Soldiers and Inhabitants. The party engaged happened to be routed, took down towards Royal Ex. Lane where I stood. I then ran into Hunter's Balcony. From thence saw a pretty large Number of people, drawn together as I imagined by the Noise. The greater part had Weapons. Some Buckets. Some cried fire. Assembled in various little Lots, with various Leaders. Cried out let's attack the Main-guard huzza'd, and executed that proposal. The Bells rang. The largest party went round Cornhill. I went thro' Ex. Lane, and about the middle heard the Guns, and I went home. The greatest Number of people in the Square 200. Saw the Gentleman in a Red Cloak.
10. That is, the Town's muskets, which were normally kept in Faneuil Hall.
11. Wemms Trial 84–85:
John Short, Merchant, sworn.
Give the Court and Jury an account of any commotions you saw that evening.
A. The evening of the 5th March, after the nine o'clock bell had rung, I heard the bells ring again, I supposed for fire, the people in the neighbourhood asked where it was? I said, I would go see; I went up as far as Faneuil-Hall, and to Mr. Jackson's shop, there were a number of people in Cornhill at the time; I immediately came down again, and went on board an oyster-boat, staid there about a quarter of an hour, and heard the guns go off.
Q. Did you see any body at the Market, take out the feet and break the stalls?
A. No I did not.
Q. Did you see any collection of people there?
A. Yes, I asked what was the matter? I was told, a soldier had hurt an oysterman.
Q. Did you see a number of people with any body at their head?
A. I did not.
Samuel Quincy Massacre Minutes, MHi:
John Short. After the 9 o'Clock Bell rang, the Bells rung for fire. Went out. Heard in Dock-Square a Soldier had hurt an Oyster-man.
12. One of the Town's fire engines was ordinarily kept under the Town House. Thwing, Crooked and Narrow Streets 18.
13. Wemms Trial 85–86:
Benjamin Davis, Merchant, sworn.
Give the Court and Jury an account of what you saw that evening.
A. The evening of the 5th of March, I spent at the North-end; a little after nine I left the house to go home, I live in Green's lane, and my nearest way lay through Dock square; I heard a number of people and great noises. I soon found it was a quarrel, I stopped at the corner of Jenkins's-lane some time; I saw the people collected close to Boylston's alley, I learned, that it was the town's people and soldiers a quarreling, I plainly heard that the sound was like people fighting with clubs. Two young men came up to me, and said, will you go and help us to fight the soldiers? I said no, I do not intend to, one of them had a cloak, and threw it off into my arms, and then said, if you will not go, hold my cloak, and went away with the other, enquiring where were any clubs or cordwood sticks, they hollowed fire! fire! And that collected a few people, about one dozen or so, presently the little knots of people passed up the passage way by the pump, and there was a general run down the street as far as they could run, I went into Mrs. Elliot's gate, and I saw seven, eight or ten soldiers run up the alley that leads from her house to King-street, they had something in their hands, whether it was clubs or other weapons, I cannot tell; whether the bells had begun to ring before that I cannot say, it was the Brick-meeting bell I first heard; I staid in Mrs. Elliot's till the bells were done ringing, I left the cloak with her.
Q. Which way were these nine or ten soldiers going?
A. They came down from the alley by the barracks, and run up Jenkins's alley by Mrs. Elliot's house, I passed through this alley and went into King-street, and saw some with buckets, the engine was in King-street, but nobody with it; I went up by the north side of the Town house and saw several knots of people collected, some at Jackson's corner, some by the Town House, and all round in little knots, I went from one knot to another, to see if I could learn what the matter was, I walked to the south side of the Town-House, and the next thing I heard, was huzzaing in King-street, and then these little knots that were collected, answered the huzza, and went down towords King-street, I went by the south side of the Town-House and stopped at Mr. Price's office and had an opportunity of seeing what passed on the other side of the way. Col. Marshal I think, must be mistaken in what he says relative to the shade of the moon's being on the north-side, for I remember well, I went to the south-side of the Town-House, on purpose that I might be in the shade and see more clearly what was doing on the opposite side of the way. I saw the Sentinel standing with his back to the Custom house door, and a number of people round him, boys and men.
Q. Was the Sentry in the shade?
A. No, I saw him very plain standing on the Custom-house steps, I heard a considerable noise, the boys were laughing and saying fire! and why do you not fire? I saw the Sentinel bring his piece upon a level as if to fire, and the people gave back, and he put it up again. I found the numbers were encreasing, and, while I was standing there, two men without hats on, came up to the Main Guard, and said, you must send assistance directly, or the Sentry will be murdered, the officer I observed was quite a young officer, and there were a number of soldiers standing with their watch coats on, whether they or any soldiers went into the Main-Guard I cannot say, I heard very soon the word given, “Guard,” and bid take off their watch coats; there came out about seven, I think their guns were not shouldered, but they had them in their right hands, walked across the street, and took their stand near the Sentry-box, but whether in a half-moon or circle I cannot tell, the people crouded round them, I heard a great deal of confused noise, a general confusion of noises, and there I stood till the guns were fired.
Q. Did these men one of which gave you the cloak, go towards the Market?
A. Yes.
Q. Did you hear a noise like the breaking of the stalls? []A. No.
Samuel Quincy Massacre Minutes, MHi:
Benjn. Davis. (as before.) [The reference is probably to Davis' testimony in Rex v. Preston.]
14. That is, a member of the volunteer company manning the fire engine.
Shubal Hughes, Tallow-chandler, sworn.
Give the Court and Jury an account of what you saw in the streets, on the 5th of March last.
A. That night I spent the evening with an acquaintance near the Town-dock, sitting in the room, the master of the house came into the room, and said, fire was cried, and the bells a ringing: as I belonged to the engine, I was the first out of the door, with my surtout and stick, when I came out, I saw a man running to where the Porters stand, I thought I should meet our engine coming down the lane on Corn-hill, and when I came round by the Market, I saw a cross the Market a number of people coming from the northward; I thought the fire was out, and that it had been at the North end. I stopt by Col. Jackson's a considerable time, at last somebody came along; I asked where is the fire, they said there is no fire but a dispute betwixt the inhabitants and soldiers by Murray's barracks. I went up a little farther and saw nothing; I moved down again and stopped where I had been before; the street was middling full, as generally when fire is cryed: at last I saw a number of young people get foul of the stalls in the Market, pulling out the legs of them, I do not remember whether I said any thing to them or not: I stayed there a while, I saw no disturbance, nor heard no great noise; the man who was with me said, we have no business with the soldiers nor with their disputes, and we returned to the place we came from, and staid there till the guns were fired.
Q. Where did they come from that got foul of the stalls?
A. Some from the northward, and some by Hubbard's warehouse.
Q. How many were of them? []A. Six or seven.
Samuel Quincy Massacre Minutes, MHi:
Shubael Hewes. Spent the Evening near the Town Dock. The Master House come in and said there was a cry of Fire. Went out. At the Market place a Number of people came from the North-end. Enquired where the Fire was. Heard there was a Dispute near Just[ice] Q[uinc]y's. Saw a Number of young Lads attempt to get the Legs out of the Stalls but said Nothing to them. May be 6 or 7 of them.
16. Wemms Trial 87–88:
James Selkrig, Merchant, sworn.
Q. Was you at Mr. Hunter's house, the 5th of March last?
A. I was that evening there in company with some gentlemen, and to the best of my remembrance betwixt eight and nine o'clock, some of the company said there is some noise in the street; Mr. Hunter said it is an alley that there is noise enough in very often. A gentleman soon after came in and said there is something bad in the street, you had as good go and see what it is, three of the company went to the balcony, I went to the window fronting the street. I saw considerable numbers of people coming from the North-end, all armed, or the greatest part of them, in the same manner, with white sticks. They made attacks on the barracks, and were always drove hack; always as a new fresh party came from the north part of the town, they made a new attack, there were about five or six different attacks made. In the middle of the street I saw a large man, with a red cloak and white wigg, they gathered round him, and he spoke two or three minutes, and they gave some different cheers for the Main-guard, and I think for the Neck; they said they would do for the soldiers; when they turned round that corner where the stone store is, they beat the stone with their weapons, and said they would do for the soldiers. Some went up Royal exchange lane, some went up Jenkins's lane, and some by the Post-office.
Q. How many people do you think there might be in the whole?
A. Betwixt two and three hundred.
Q. Were the bells a ringing?
A. I cannot tell, I saw them all go away, I came down and found the gentlemen gone, I went into the alley and heard the first gun fired, I then went home, and know no more of it.
Q. Was that expression, we will do for the soldiers, uttered by a number or by a few?
A. By a great number, and they struct their weapons against Simpson's stone store, as they said it.
17. Wemms Trial 88–89:
Archibald Bowman, Auctioner, sworn.
Q. Was you at Mr. William Hunter's on the evening of the 5th of March last?
A. Yes. That evening I was at his vendue-room, at the foot of the Royal-exchange-lane, I heard some noise; I cannot say who came up; but a little after dark there came up two gentlemen, who said there was a disturbance in the street. I immediately went to the front window, some of the company into the balcony, where I afterwards went, I saw numbers of people hallowing fire, fire, in different quarters. Numbers enquiring where the fire was; they gathered in a large body; some went up by way of the Post-office, some went up the lane by the pump, and some came down forcibly as if chased: they whistled through their fingers and cried fire: Among the rest I observed a Gentleman with a red cloack and white wigg, the croud gathered round him, they staid a little while with him, and then drew off and huzzaed for the Main-Guard, they then dispersed, some went up Royal-exchange-lane, some went up Jenkin's alley, and some went up Cornhill, I saw no more of them.
Q. How many people were there when they were talking with the gentleman?
A. I cannot say how many there were, there was a great number.
Q. Where did they stand?
A. They stood opposite Mr. Lewis Deblois shop.
Q. Did you see them strike with their sticks at Mr. Simpsons store? []A. No.
Q. Did you hear them say they would do for the soldiers? []A. No.
William Dixon, sworn.
Q. Was you of the company at Mr. Hunter's?
A. Yes, I was there that evening; a gentleman came in and said there was a disturbance in the street, I went down to the lower room, and went to the balcony, and saw people going up that alley where the barracks are.
Q. Did you hear the last witness examined, do you confirm all he mentioned?
A. No, not all of it, the people went up to the alley, and ran down quick as if they had met with opposition, they stood about the pump, they encreased from the North-end to pretty large numbers; they gathered together in a croud opposite to where I stood, and huzzaed for the Main-guard.
Q. Are you certain they huzzaed for the Main-guard?
A. I am certain of it, I went with one or two more into the lane, intending for King-street, when we heard the guns, I turned and went home.
19. Wemms Trial 89–90:
John Gillespie, Merchant, sworn.
Q. Did you know of any disturbance or commotion that evening?
A. On the evening of the 5th of March I went from my own house in Queen-street, about seven o'clock, to spend the evening with some company at Mr. Sylvester's at the South-end; in my way I met not less than fifty people, with white sticks in their hands, in small parcels, and the company all observed they met with numbers of people, and said they were apprehensive of the consequences. Somebody came in and said there was fire, Mr. Fleeming said he would send his man to see where the fire was, and desired us not to be uneasy, for he had heard it was only to gather people to fight the soldiers, or to this effect: I was uneasy however, and came away to go home. I met a good many people with sticks, and bags, and some other things. I met Mr. Fleeming's man coming back, and he said it was no fire, but the soldiers and inhabitants fighting: I saw two engines, and the people putting their buckets and bags in people's houses. I enquired where the fire was; I got the same answer, no fire, but the soldiers and inhabitants fighting. I heard some say come let us go back, others said no by God we will go and help them. I saw Mr. Knight standing at his own door, I stopt but very little time, left him and came to the head of King-street. I heard somebody say damn them why do not they break the glass. I imagine somebody had got into the Guard house, and that they wanted to break the glass to get them out. I went home, and in about ten minutes, I heard the guns go off.
Q. Was it soldiers or inhabitants that wanted to break the glass?
A. It was the inhabitants.
20. Wemms Trial 90–91:
Thomas Knight, Merchant, sworn.
On the 5th of March I came up King-street soon after the bells had rung for nine. I came by the Main-Guard, saw the Sentinel as usual, and saw no disturbance; I went home, took up the news-paper, and read about half of an hour; by and bye I heard the bells ring, which I took for fire. I run to the door, when I came there, the people were passing pretty thick, some with buckets, some with bags, and numbers with sticks and clubs; they said there was no fire, but some disturbance with the soldiers and inhabitants; I returned into the room sometime, but feeling uneasy, I went to the door again, and saw several companies of people pass, six or eight in a company; one company consisting of eight or ten, had white sticks or clubs in their hands; one of them hallowed out, damn their bloods lets go and attack the Main guard, and knock them to hell first. There was one in the same company made a stop, and either said I will go back and get my gun, or let us go back and get our guns, I cannot tell which.
Q. Was this before the firing?
A. Yes, this stopt my curiosity from going to King-street. I thought it was best to stay in the house. I shut the door and went in; I told my wife if she heard any firing not to be afraid, for I was apprehensive there would be blood shed from what I had heard. I tarried about two or three minutes in the room; I felt very uneasy, and walked to the door again, and being there about a minute or two, I heard one gun fired, in about two seconds I heard another, and so on till five, six or seven were discharged. It was all in about twelve or fourteen seconds at the fartherst.
21. It is not clear whether JA is here merely characterizing the testimony or noting its exclusion. See Cookson's testimony below.
John Cookson, Trader, sworn.
Q. Was you at the Green Dragon, on the evening of the 5th of March, in company with some gentlemen there? [] A. Yes.
Q. What observation was made on the ringing of the bells, by any of the company? []A. Some one in the room said it was not fire, but a rumpus.
Q. Did any particular person of that company there, say it is no fire but a rumpus with the soldiers, and I am prepared for them, and immediately take a pistol or pair of pistols out of his pocket?
A. Some one observed there was a rumpus, but I saw no pistol.
22. Wemms Trial 91–92:
William Strong, Clerk in the Custom-House, sworn.
Q. Was you in King-street on the evening of the 5th of March last?
A. On the evening of the 5th of March I was at Mr. Marstons, several of us were standing by the fire: we heard the cry of fire, some said we will go out and see where the fire is. I went and I saw several people running to and fro, I asked what the matter was, they said a soldier had killed a boy. I was answered in that manner by another; some people said we will go back again and get our sticks: I did not see any number of people, but a few running up to King-street, one of them struck the ground with his stick and shivered it. I then went into King-street and was coming away again, when I heard a huzza and a number of feet behind me, and I stood to let them pass; there might be about ninety; they run up King-street huzzaing. I walked after them, when they came opposite the Custom house, they stopped, and some said that is the fellow that used the inhabitants ill; another contradicted them and said it was not him; upon that the people encroached on the Sentinel; I was in the midst of the people, and he retreated back and they went forward, at last I saw him go on the steps of the Custom house, and they went closer, and he set his back to the door and loaded. I heard the ball go down distinctly.
Q. How many people were there then? [] A. About ninety or more.
Q. Were they boys?
A. The generality of them were young men. He presented his gun, and said keep of[f] or I will fire upon you: the reply was, fire, God damn you fire, fire and be damn'd. I went about fifteen yards below, there was a man standing by me, he had the butt end of a bat in his hand, and said he would throw it at the Sentinel; I said do not, for he will fire at whatever place it comes from. Whether he threw it or not I do not know, for I left him and went to Mr. Sherwin's door. I was saying it was imprudent to attack a Sentinel on his post, somebody said he was disarmed; I thought so too, for I saw the glittering of arms; I walked to the Custom house steps, curiosity led me to see if they were so prudent as to fasten the Custom-house door; I tryed the latch, and it was fast; a fellow said to one of the soldiers, damn you why do you turn your bayonet this way, turn it the other way. I thought I was not safe there, but went to my old place, and stood there a few minutes; I thought I heard two guns cock, immediately I heard one go off, soon after another, and I think four more. I think six in all. The people said where I was standing, they fired nothing but powder. I thought to go up to an acquaintance's house, and went in the middle of the street, and coming opposite to the soldiers, I saw two men lay, one on the right and one on the left, on their backs; I concluded they were dead.
Q. Did you see any thing hit the Sentinel?
A. I believe there were snow balls thrown, but they fell short of him.
Q. These people that were round the Sentinel, had they clubs?
A. Yes, some of them.

Docno: ADMS-05-03-02-0001-0004-0011

DateRange: 1770-11-29 - 1770-11-30


29–30 November 1770

FIVE o'clock p.m. the Court adjourned till next morning, Friday,[30 November] nine o'clock.
Friday, NINE o'clock, the Court met according to adjournment, and proceeded.

Docno: ADMS-05-03-02-0001-0004-0012

Author: Adams, John
Date: 1770-11-30

Adams' Minutes of Defense Evidence, Continued1

30 November 1770

Dr. Richard Hyrons. About 7 o Clock. Saw several soldiers at my own door a little after 8, passing and repassing, some with Clubbs, some with Bayonetts. The Noise and Confusion seemed to come from the Bottom of the Street towards the Markett. In 8 or 10 minutes I heard a Person run thro B[oylston's] Ally with great Violence from Cornhill. He ran towards the barrack Gate, and then ran back again crying Town born, turn out, Town born turn out, repeated 20 or 30 times. I heard a Voice I took it to be Lt. or Ensign Mall,2 say who is that fellow? lay hold of him. I heard nothing Said by the Centinel, to this Man, nor by him to them. This cry of Town born was continued for 6 or 7 minutes when I heard the foot steps of several more People. In a short Space there seemed to be a great many more passing backwards and for• { 182 } wards whether soldiers or Inhab[itants] cant tell. In about 20 minutes there seemed to be, a great Number of People in Boylstones Alley. I heard their Clubbs and sticks striking on the fence on both sides. I lockd my door, put out my Lights and went up stairs to the Chamber that fronts the barracks. Then I observed 4 or 5 officers of 29 Reg. standing upon their own Steps. About 20 or 30 of the Towns People facing of em. About that time comes a little Man, and asks why dont you keep your Soldiers in the Barracks. They answerd they had done and would do every Thing they could to keep em in their Barracks. On this the small Man said are the Inhabitants to be knocked down in the streets are they to be murdered in this manner? The officers still insisted they had done their Utmost and would do it. He said you know the Country has been used ill, the Town has been used ill. We did not send for you. We wont have you here. We'l get rid of you, or drive you away, I cant say which. The officers said they would do what they could to keep the Soldiers in and beggd that he would use his Influence to disperse the People that no Mischief might be done or Words to that [Effect]. Whether he did or no, I cant tell, as the Confusion was so great I could not distinguish. Immediately the Cry Home, Home was mentiond. And in 5 minutes after the Cry Home Home was repeated, and the greatest Part of em perhaps t[w]o thirds went up Boylstones Ally and huzzad for the main Guard. More Towns People came up from the Market Place. There was then a good deal of Squabble and Noise between the People and the Officers, no Blows—but could not distinguish. A little Boy came down the ally, crying he was killd he was kill'd. One of the officers laid hold of him and damd him for a little rascal, and askd him what he did out of doors. The Boy 6 or 7 Year old. Not long after, a Soldier came out with his Musquet and down upon one Knee before Boylstones Ally and presented his Musquet and Said “G. damn your Blood Il'e make a Lane thro you all.” Mr. Mall, Mr. Dixon3 or Mr. Minchin,4 laid hold of him, and turned him into the Barracks and told him at his Peril to come out again. 7 or 8 Minutes after the same soldier or another, came out and repeated much the same Words, with his Gun in his Hand. Did not kneel down. He was presenting, when Mr. Mall and one other officer knockd him down, took the Musquet from him, and drove him in and I think the Gates were then shutt. Much about this Time, I heard Dr. Coopers Bell ring. { 183 } I had heard the Bell ring before I thot for 9 o Clock. I heard an Officer, that I took to be Mall, say to somebody go stop that Bell from ringing. Whether any Body went I cant tell. At this Time, I saw Captn. Goldfinch of the 14th upon the Steps. Another little Man came up, much different from the other. He requested the officers that the soldiers might be kept in the Barracks. They Said they did all they could, and beggd that he would take the People away. This little Man said to the People, you hear what the officers say you had better go home. On which there was the Cry Home Home again, and many of em did say, again lets away to the main Guard, and went up Boylstones Alley. Goldfinch was still upon the Steps and while they were talking I heard the Report of a Musquet, not many Minutes after they cryd home home the last Time. In a few seconds I heard the 2d Musquet and the 3d &c. I heard Captn. Goldfinch say, I thought it would come to this it is time for me to go. A Soldier soon came and said as I thought, they had fired upon the main Guard. I then heard the drums at the main Guard beat to Arms. I went down Stairs and did not go out till I was sent for to some of the wounded People. I was call'd to Maverick and he told me he was running away from the soldiers and yet the Ball went into his Breast, thro a Portion of his Liver, wounded the stomack and one of the small Gutts and lodged between the 2 lower Ribbs on the left side. The Ball was bruisd as if it struck some object before him. Mr. Craft producd the Ball in Court.5
{ 184 }
Capt. John Goldfinch. In Cornhill I saw a Mob collected at the Pass to Murrays Barracks. The People were pelting the soldiers with snow Balls, and possibly some other Things they picked up in the Street, I cant tell what. The soldiers were defending themselves at the Entrance { 185 } of the Pass. One of the soldiers, I think had a fire shovel. I spoke to the Soldiers, as soon as they knew me, I prevail'd on them to go to the Bottom of the Pass. With some difficulty I got down and saw some officers of the 29th. Regt. I told em I suspected there would be a Riot, { 186 } and I being the oldest officer present6 ordered them to keep the Men in, and they did so. The Mob were extreamly abusive in Language, to the soldiers, but the Vigilance of the Officers prevented the soldiers <from being . . .>. A little Gentleman came up to the People, and desired em to go home. Part of em made off, thro this Passage to Cornhill, about 40 or 50 of em. They damn'd the Soldiers, a Pack of Scoundrells they dared not come out and fight them. About 20 minutes after, I heard some Guns go off, and the Drum beat to arms. I told Lt. Dixon it was necessary for me to move off and join my own Regt. I dont remember saying, I thought it would come to that but it is very probable, I might, { 187 } for I had seen great Confusion before. The same Evening 1/2 an Hour before, as I went up the street, a Barbers Boy, said there goes the fellow “that wont pay my Master for dressing his Hair.” I had conducted my self with that Propriety, that I thought I was the last Person to be insulted. But I found that any Man that wore the K[ing]'s Com[missio]n was lyable to be insulted any Hour of the Night.7
{ 188 }
B. Davis Jnr.8 Mr. Gray who was shot came along and asked where the fire was? I was standing in Greens Lane. I told him it was the soldiers fighting. Damn it, says he I'm glad of it, i'le knock some of them in the Head. He was running away. Says I take Care you dont get kill'd. Never fear says he. Damn their bloods. He had a Stick under his Arm, what sort of a stick I cant say. It was but a little before.9
James Thompson. At 9 o Clock, I passed up thro K[ing]'s street. No Person there the sentry a lone, in Greens Lane, I and another Person met about 15 Persons, with sticks in their Hands. As they passed Us, I heard some of em say we are rather too soon. <I went a Number of> I went on board a Vessell, att Griffins Wharfe, and said to the People, I am afraid there will be mischief, to night, for I met a Number of People and they seemd to hint, that they were about something. Soon after the Bells rung. About 4 People aboard, who left me and went off. I heard a Woman say at a distance it is no fire, good God there will be murder committed this Night. Heard huzzaing and heard 7 Guns I think.10
{ 189 }
Alexander Crookshanks. In royal exchange Lane, I spent the Evening. At 9, I came away, and stopped by Mr. Sterns House.11 I Saw 2 Boys go to a Number of People before the sentry Box about 12 or 14, and come back to the sentry with a fresh Repetition of oaths. Damn you, you lobster son of a Bitch and dared him to come and fight em, and wished him in Hells flames often and often. A lousy Rascall and dared him to come out. I heard the sentry say that was his Post, and he would maintain it, and damn them if they offered to molest them [i.e.him] he would run them thro. They made up some snow Balls and threw at the sentinell. Cant say whether they hit. Upon that the sentinell call'd out Guard 2 or 3 times, very loud. 7 or 8 soldiers upon that came from towards the main Guard, but were not upon Guard by their Having short Coats. Some had Bayonetts, Swords or sticks and one a Kitchen Tongues in his Hand. Upon their approach to the sentry, the two Boys, and the 12 or 14 Lads run up to the back of the Town { 190 } House by the Barbers Shops and the soldiers after them. I crossed over to go to pudding Lane, and 3 or 4 of the Soldiers that follerd the soldiers up by the Town House came up to me and damnd me, who I was. I Said, I was going home, that [I] did not interfere, between the Sentry and the Boys. One of em gave me a light touch over the Shoulder, and Said, by all I can learn there will be the devil to pay between the Towns People and the Soldiers, or blood shed. They then turnd, and went towards the Sentry Box at the Custom House. I then went past the Guard House, and saw the Soldiers, that went to the sentry, returning by the Watch House and come up by the main Guard, driving or chasing the People before them. I made for Jones's Shop. 16 or 18 People, Men and Boys, running before the Soldiers. At Jones's they shut the Door upon me. At the Brick meeting there was 2 or 3 Lads, trying to open the Windows, in order to ring the Bell. Before I got to Dr. Sewalls Meeting, the Bells began to ring there. The Blow that was given me by the Bayonet was a light Tap, not in Anger.12
{ 191 }
Lt. Wm. Carter.13 Was sitting playing Cards with the family. The Bell rung. We went to different Parts of the House to look for fire. They said there was a Riot in the street. I saw many People passing by, very fast, with an Air of Enterprice in their manner, and with a Clubb a sword or a Cutlace. I heard a Drum, which I took to be the Drum of the main Guard, but afterwards heard a peculiarity, in the Beat. This was after the firing. The People passed by, armed before the firing.14
Patrick Keeton. The 5th March. At the Mill Creek. A Noise in the Street. I went towards Union street, and saw a Number of People and followed them up with sticks and Clubbs, to D[ock] Square. Somebody said, a Boy and Soldier had been fowl of each other and the People soon after <said> cryd Kings Street. I was at the Crookd Lane, and saw the Mollatto Man that was killed had 2 Cordwood sticks that he took { 192 } out of the Wood pile. I [i.e. He] gave me one. Dressed Sailor like. The stick about 4 foot long not very long. The Molatto went up crooked Lane with me into Ks. street. People coming from all Parts hollowing and crying out bloody backs &c. In about 10 Minutes, some Guns went off. I heard the soldiers cry keep off, keep off. The People surrounded15
1. A continuation, without break in the original, of the Adams Massacre Minutes, MHiMS 3, from the point where Doc. X ends. See Descriptive List of Sources and Documents.
2. Alexander Mall, ensign in the 29th Regiment. Army List 1770 83. He was indicted for his actions on the evening of 5 March 1770, but “could not be found afterwards.” “Vindex,” in Boston Gazette, 24 Dec. 1770, p. 1, cols. 2–3. The indictment is in MB:Chamberlain Coll.
3. Hugh Dickson, lieutenant in the 29th Regiment. Army List 177083.
4. Paul Minchin, lieutenant in the 29th Regiment. Army List 177083. After criticizing Mall's conduct, “Vindex” said: “Some other officers, and particularly Lieutenants Minchin and Dickson, discovered a very different temper.” Boston Gazette, 24 Dec. 1770, p. 1, cols. 2–3.
5. Thus in MS. The reference is probably to Thomas Crafts, the Suffolk County Coroner, and is presumably JA's note, not the witness' testimony.
Wemms Trial 93–96:
Doctor Richard Hirons, sworn.
Q. Do you know any thing of the proceedings at Murray's barracks on the evening of the 5th March last, previous to the firing in King-street?
A. I live opposite the barrack-house, and was at home that evening. A little after eight I heard a noise and disturbance in the street, I went out to know what it was, and was told there was a difference between the towns people and soldiers. I saw several soldiers pass and repass, some with bayonets, some with clubs and one thing and another. I stood at my own door; I observed the noise seemed to come from towards the market; I saw a number of people running to and fro across the bottom of the street. I shut my door and went in about eight or ten minutes. I heard a noise like a single person running thro' Boylston's alley with great violence; he ran as I took it towards the barrack gate, and cried out, town born turn out, town born turn out, then turned to the side of the lane, and said town born turn out, town born turn out. I heard this repeated twenty or thirty times, I believe, it was the constant cry. I remember after coming out the second time, to hear the voice of a person which I took to be Ensign Maul, say, who is this fellow, lay hold of him. I did not hear a word pass betwixt the people that passed backwards and forwards, and the Sentinel at the barrack gate, nor from the Sentinel to them; this cry of town born turn out, was repeated for seven or eight minutes, when I heard the voice of a great many more.
Q. Were they soldiers?
A. I do not know, they might be soldiers; from the first of that cry it might be a quarter of an hour or more, they seemed to retreat and come on again, and struck their sticks very hard against the corner of the house. The collection of such a number, with the noise of the clubs, induced me to lock my door, put out my light in the fore part of my house, and to go upstairs into the chamber fronting the barracks; when there, I observed four or five officers of the 29th, standing on their own steps, and there might be betwixt twenty or thirty of the town's people surrounding the steps. About that time came a little man, who he was I do not know; he said, why do you not keep your soldiers in their barracks, they said they had done every thing they possibly could, and would do every thing in their power, to keep them in their barracks, on which he said, are the inhabitants to be knocked down in the street, are they to be murdered in this manner; the officers still insisted they had done their utmost, and would do it, to keep the soldiers in their barracks; the same person then said, you know the country has been used ill, you know the town has been used ill, we did not send for you, we will not have you here, we will get rid of you, or we will drive you away; which of the last expressions I cannot say, but it was one or the other: the officers still insisted they had done their utmost, and would do it, to keep the soldiers in their barracks, and begged the person to use his interest to disperse the people, that no mischief might happen; whether he did address the people or not, I cannot say, for the confusion was so great I could not distinguish.
Q. How was that man dressed?
A. He was a little man, I think in a surtout; immediately the cry of home, home, was mentioned; I don't recollect seeing any person go away at the first cry, and there was such confusion I could not tell what was said, but in five minutes afterwards the cry home, home was repeated, on which the greatest part of them, possibly two thirds, went up Boylston's alley towards the Town-house, huzzaing for the Main Guard.
Q. What number were there?
A. A considerable number. I then observed more of the towns people come from towards the Market; there was a good deal of squabble and noise betwixt the people and the officers, but what was said I could not hear. The next thing I recollect in the affair was, a little boy came down the alley, clapping his hand to his head, and cried he was killed, he was killed; on which one of the officers took hold of him, and damned him for a little rascal, asking him what business he had out of doors; the boy seemed to be about seven or eight year old. Some little time after that, I saw a soldier come out of the barrack gate with his musket, he went directly facing the alley, in the middle of the street, and kneeled down on one knee, and said now damn your bloods, I will make a lane through you all; while he was presenting, Mr. Maul an Ensign, with either Mr. Dixon or Mr. Minchin, I do not know which, came after him, immediately laid hold of him, and took the musket from him, shoved him towards the barrack, and I think gave him the musket again, and charged him at his peril to come out again. I do not recollect any discourse that passed between the towns people and officers, there was still such clamour and confusion, that I could not hear what passed; but in a little time either the soldier who came out before, or another, came out again, he repeated much the same words as the other, he had his gun in his hand, he did not offer to kneel down, but used the same expressions.
Q. Did he present his firelock?
A. He was presenting when Mr. Maul knocked him down, took his musket from him, drove him into the barracks, and I think the barrack gate was then shut; about this time I recollect I heard Dr. Cooper's bell ring, I heard some officer say, go and stop that bell from ringing, whether any body went or not, I cannot say, but it did not ring a great while: About this time I saw Capt. Goldfinch of the fourteenth, on the steps with the officers of the twenty-ninth; there came up another little man, who he was I do not know, but in a much different manner from what the other did.
Q. How was he dressed?
A. He had on a great coat or surtout of a light brown, he requested the soldiers might be kept in their barracks, and that the officers would do every thing in their power to keep them there, the officers said, they had, and would do so; and as the soldiers were in their barracks, begged the people might go away; this little man said to the people, gentlemen, you hear what the officers say, that the soldiers are all in their barracks, and you had better go home; on which the cry was, home, home, home.
Q. Do you suppose this was after you heard the bell ring?
A. Yes; on which a great many went up the alley again, and I heard the expression, Let us go to the Main-Guard: Capt. Goldfinch was still on the steps, and I heard his voice still talking, and I think he desired every person would go away; while he was talking, I heard the report of a musket.
Q. How long was that after the cry of home, home?
A. It was not many minutes; in a few seconds I heard the report of a second gun, presently after that a third; upon the firing of the first gun, I heard Capt. Goldfinch say, I thought it would come to this, it is time for me to go. I then saw a soldier come down the alley from Cornhill, and went up to the steps where the officers stood, and said, they fired from or upon the Main guard. I then heard the drum at the Main-Guard beat to arms, I came down stairs and did not go out till I was sent for to some of the wounded people.
Q. At the time when the first soldier came out, were there a body of people in the street before the barracks?
A. There were some, but I suppose the most part were in the alley, there were several about the meeting-house.
Q. Did they say or do any thing to the soldiers who came out with their muskets?
A. The officers immediately took hold of them and turned them in.
Q. Was you sent for to Maverick?[]A. Yes.
Q. Did he say any thing to you?
A. Yes, about two hours before his death, I asked him concerning the affair, he went he said up the lane, and just as he got to the corner, he heard a gun, he did not retreat back, but went to the Town-House, as he was going along, he was shot: It seems strange by the direction of the ball, how he could be killed by the firing at the Custom-House; it wounded a portion of the liver, stomach and intestines, and lodged betwixt the lower ribs, where I cut it out, the ball must have struck some wall or something else, before it struck him.
Q. Where did he say he was when he was wounded?
A. He was betwixt Royal exchange-lane and the Town-house going up towards the Town house.
Samuel Quincy Massacre Minutes, MHi:
Dr. Hyrons. A little after 8 heard a confused Noise not far off, went out, was told Soldiers and people were quarrelling, saw a Number of Soldiers pass and repass with Swords. Saw a Number of people cross the Street. Went in and in a few Minutes after heard a person run thro' the Alley with great Violence towards the Barrack Gate crying Town-born turn out, Two or Three Times he did this. Ensign Mall cried, Whose that Fellow? After the Repetition of Town born turn out 7 or 8 Times, I heard the Footsteps of several more and in a very short Time a great many more. Soon a great Clashing of sticks against The Fence &c. A little Man, I don't know who, came and addressed the Officer why don't You keep your Men in. I have done all I can, and shall do all I can. Upon which says the little Man, are the people to be knock'd down and murdered, upon which the Officer, We have done the Utmost we can. Then the little Man, you know the Country has been used ill, you know the Town has been used ill, We did not send for you, We won't have you, We'll get rid of you or drive you away, I don't know which. The Officer still replied They had done their utmost, and beg'd The Man to use his Influence to disperse the people that no mischief might be done. Whether he did so or not I can't say, as I could not distinguish Voices He had a Surtout on. Immediately the Cry home, home. I don't recollect seeing any go at first, but This Cry was repeated, and The greatest part about 2 Thirds ran up Boylstone's Alley and huzza'd for the Main Guard; Then observed some more of the Town's people come up from towards the Market. There was upon This a great Squable and Noise between the people and officers no Blows. A little Boy with his hand on his Head cried I am kill'd, I am kill'd! Upon which an Officer damn'd him for a Rascal and asked him What Business he had out of Doors. The Boy not more than 6 or 7 years old. Not long after observed a Soldier come out of his Mess-house, down upon his knee before Boylst. Alley, presented his musket and said now God damn your Blood I'll make a Lane thro' you all. While he was presenting Minchin or Dixon laid hold of him and turn'd him in to the Barracks telling him to come out again at his peril. Not long before the same Soldier or another came out again with his Gun. He repeated much the same Words as the other, was presenting and one of the officers knock'd him down, and after This Thinks the Gates were shut. About This Time heard Dr. Cooper's Bell ring, had heard the 9 o'clock Bell before as he thought. One officer said go and stop that Bell. About This Time recollects seeing Capt. Goldfinch of the 14th on the Steps. There came up a little Man but in a quite different Manner from the Other, desired 'em to keep their Men in; They said it should be done, and beg'd he would get the People away. The little Man said, you hear what the Officers say, you had better go home, upon which the Cry was Home, home, home again; on which a great many of them went up the Alley, and said let's go to the Main G[uard] a Second Time. Not many minutes after This before he heard the Report of a Musket, and in few Seconds a 2d Muskets, and then a Third. I heard Capt. G[oldfinch] say then, I tho't it would come to This, it's Time for me to go. A Soldier came, and told the Officers, as I tho't, that They had fir'd upon the Main-guard.
6. Goldfinch was Captain-Lieutenant of the 14th Regiment. Army List 1770 68.
7. Wemms Trial 96–97:
Captain John Goldfinch, sworn.
Q. Was you at Murray's barracks that evening?
A. The 5th of March, about nine in the evening, I was passing over Cornhill, I saw a number collected by the passage to the barracks, I went towards it and two or three people called me by name, and begged me to endeavour to send the soldiers to their barracks, or else there would be murder, with difficulty I got to the entrance of the passage, the people were pelting the soldiers with snow-balls, the soldiers were defending themselves at the entrance.
Q. Had the soldiers cutlasses?
A. No by no means, I think one of them had a fire-shovel, as soon as the soldiers knew me, they with my persuasion went to the bottom of the passage, when I got there, I saw some officers of the twenty-ninth, I told those officers I suspected there would be a riot, and as I was the oldest officer I ordered the men to the barracks and they were immediately confined; the mob followed me and came to the gate of the barracks, and abused the men very much indeed, with bad language, so that the men must have been enraged very much, but by the vigilence and activity of the officers, the men were kept within bounds; the mob still insulted the men, dared them to come out, called them a pack of scoundrels, that dared not come out to fight them, and it was with difficulty they were kept in their barracks, I never heard such abuse in my life, from one man to another. A little man came up and spoke to the people, and desired them to go home, as they saw the officers used their best endeavours to keep the men in their barracks; immediately the best part made towards the passage to Cornhill, I suppose a body of about forty or fifty people. I thought it necessary to stay some time to assist the officers in keeping the men in their barracks, in a quarter of an hour or twenty minutes after the people had moved off, I heard some guns fire, and the Main-Guard drumbeat to arms; I told Mr. Dixon it was necessary for me to move off, to join my own regiment. The same evening, about half an hour before this affair happened, I was in King-street, and was accosted by a barber's boy, who said, there goes the fellow who hath not paid my master for dressing his hair, fortunately for me, I had his receipt in my pocket, the Sentinel said, he is a gentleman, and if he owes you anything he will pay it: I passed on without taking any notice of what the boy said.
1/2 [hour] before I was accosted by a Barbers Boy who said there's go the fellow who has not paid my master for dressing his Hair. It appeard to me it was a premeditated Plan, and designed as an affront on the military in Gen'ral.
Samuel Quincy Massacre Minutes, MHi:
Capt. Goldfinch. Saw a mob collected before The Alley, some People called him by Name, and desired to get Soldiers in, or there would be Murder between them and the people. With some Difficulty I got thro' the Alley. The Soldiers defending themselves at the pass. As soon as the Soldiers knew him they removed to the Bottom of Alley. Saw Officers at the Steps. I told 'em I apprehended there would be a Riot and ordered them to keep the Soldiers in. The Mob followed me thro' the Alley, insulted the Soldiers by Language, so much, that I wondered they could bear it without redressing themselves, were kept in by the Vigilance and activity of the officers. A little Man spoke to the people and advised 'em to go home. Some of the people then moved off thro' the Alley but did not hear 'em say where they were going. Heard the Guns, and the Drum beat to Arms. The people went off slowly. About 1/2 of an Hour or 20 Minutes, before the Guns fired.
8. A comparison with the Wemms Trial and the Paine Massacre Notes on this witness suggests that JA had left off minute-taking briefly and did not write down the beginning of Davis Jr's. testimony.
9. Wemms Trial 97–98:
Benjamin Davis, jun. son to Mr. Davis a former witness sworn.
On the evening of the 5th March last, near the bottom of Royal exchange-lane, I saw a mob by Mr. Greenleaf's, I went right along into King street, I saw the Sentinel; a barber's boy was there crying, and said the Sentry had struck him, and asked him what business he had to do it: I went home and staid at the gate in Green's lane some time, Samuel Gray (one of the persons killed that night in King-street) came along, and asked where the fire was? I said there was no fire, it was the soldiers fighting, he said, damn it, I am glad of it, I will knock some of them on the head; he ran off, I said to him, take heed you do not get killed in the affray yourself, he said, do not fear, damn their bloods.
Q. Had he a stick in his hand? []A. He had one under his arm.
Q. What sort of a stick was it? []A. I did not take notice.
Q. How long was this before the firing?
A. I do not suppose he could have got into King-street two minutes before the firing.
Samuel Quincy Massacre Minutes, MHi:
Benja. Davis jr. Saw the Sentry across the Guttar talking with the Boy. At his Father's Gate in Green's Lane, Gray came by and asked him Where the Fire was? I told him no Fire, the Soldiers were fighting in K. S. Damn 'em says he, I'm glad of it, I'll knock some of 'em in the Head. Had a Stick, but I could not see what sort of one. I said to him take Care you don't get kill'd yourself. Don't you fear, damn'em.
10. Wemms Trial 98–99:
James Thompson, sworn.
Q. What did you hear or see passing through Quaker-Lane or Green's lane, on the 5th of March last in the evening?
A. I came out of the Green-Dragon tavern about nine o'clock, I went up to King-street, I heard no noise, nor saw any person, I went through Quaker-lane into Green's lane, had a person with me hand in hand, I met about fifteen persons walking on different sides of the street, and they had sticks in their hands.
Q. What sort of sticks were they?
A. They seemed to be pretty large sticks, rather too large for walking-sticks, just as they passed, I turned about and heard them say, we are rather too soon, I passed on and went on board a vessel at Griffin's wharf, when I came on board, I said to the people, I believed there would be mischief that night, for I had met several people armed with sticks, and what the consequences would be I did not know, for they seemed to be after something; just as I spoke, we heard the bells ring, and some said it could not be the usual bell for nine o'clock, they had heard that ring before, they all went on deck, and hearing a noise and cry of fire, together with the bells, every person went off and left me alone.
Q. How many people were on board the vessel?
A. Four went away; I went aloft to see where the fire was, I heard the engines going along the street and then stop, I heard Mrs. Marston who keeps tavern at the head of the wharf, say, Good God! this is not fire, there will be murder committed this night; a little after I heard a huzzaing and guns go off in King-street, I think seven.
Q. Did you count them?
A. Yes, I think there were seven, I think there were no more; I remained there till a person came down the wharf and I asked him what was the matter? He told me there were some people killed in King-street.
Samuel Quincy Massacre Minutes, MHi:
James Thompson. Coming thro' saw the Sentry, but nobody besides in K.S. Went towards Greens Lane, there met 15 armed with Sticks rather too large to walk with. Heard them say, We are rather too soon. Went on board a Vessell at Griffin's Wharff. Told the Sailors he was afraid [here Samuel Quincy's Massacre Notes abruptly break off at the foot of a page.]
11. That is, “Stone's,” the Royal Exchange Tavern.
12. Wemms Trial 99–100:
Alexander Cruckshanks, Jeweller, sworn.
On the 5th of March, I was in Royal exchange lane, as the clock struck nine I came up the lane, and at the head of the lane hearing some abusive language by two boys, I stopped at Stone's tavern, they were abusing the Sentinel; before the box stood about twelve or fourteen lads, I often saw the boys go towards them and back to the Sentinel with a fresh repetition of oaths, they said to him, damn you, you son of a bitch, called him lobster and rascal, wished he was in hell's flames, often and often lowsy rascal; I neither heard, nor saw the Sentinel do any thing to them, only said it was his post, and he would maintain it, and if they offered to molest him, he would run them through, upon his saying this, two boys made up some snow balls, and threw them at the Sentinel.
Q. Did they hit him?
A. I cannot say, but on their throwing snow balls, the Sentinel called out guard, guard, two or three times.
Q. Did he call loud?
A. Yes, very loud, upon that, there were some soldiers came from towards the Main Guard, seven or eight I believe, they were not of the guard by their having surtout coats on, they came towards the Sentinel, some had bayonets, some swords, others sticks in their hands, one had a large kitching tongs in his hand, on their approach, these people and the boys who stood before the box went up to the back of the Town-House by the barber's shop; I then crossed King-street and intended to go in by Pudding-lane, and I heard a noise in the Main-street, three or four of these soldiers came down to me, and damned me, and asked who I was, I said, I was going home peaceably, and interfered with neither one side or another, one of them with a bayonet or sword gave me a light stroke over my shoulder, and said, friend you had better go home, for by all I can fore-see, there will be the devil to pay or blood shed this night: they turned and went towards the Sentinel at the Custom House.
Q. Did you know these soldiers?
A. I did not; I then, instead of going by Pudding-lane, went up by the Guardhouse, and when I had passed it a little way, I saw the soldiers who went down before the Custom house returning back, with a mob before them, driving them up past the Guard house. I stepped on pretty quick and endeavoured to get into Mr. Jones shop the Apothecary.
Q. What number of people were there before the soldiers?
A. Sixteen or eighteen.
Q. Were they men or boys?
A. Some of them were boys, but the most of them were men from twenty to five and twenty years of age I believe; Jones' people shut the door and would not let me in; I went to the side of the Brick meeting, and saw two or three boys or lads, pushing at the windows to get in and ring the bell. I went home.
Q. Did you take the stroke you received from the soldier to be in anger?
A. No, it was not in anger, it was very light.
Q. Did you hear a noise in the street at that time?
A. Yes, I heard a great deal of noise, I took it to be about Queen-street, and towards the Post Office.
13. William Carter was a Lieutenant in the 65th Regiment, which had been stationed in Boston from 1768 to 1769. See Army List 1770, 120; 1 Gage, Correspondence (ed. Carter) 228.
Lieutenant William Carter, sworn.
On the evening of the 5th of March I was at my lodgings in Blind-lane at the south part of the town, I heard a bell ring, which I took at first for nine o'clock, but recollecting I had heard the bell ring for nine before, I thought it must be for fire. I went to the top of the house but could see no fire; hearing by this time several bells ring, I came down and found the family at the gate; I asked what the matter was, I was answered, there was a riot in King-street. I saw several men pass, not in a body, but in two's and singly; they walked faster than people generally do on business, they went up Hogg-lane; I observed that not a man passed but what had either a club, sword, hanger, cutlass, or gun; as I had reason to believe people in a military character were not agreable, I went in and ordered my servant not to go out. I went a second time to the gate, and saw more men passing by in the same manner as before; presently after that, I heard the report of several guns. I heard the drum beat to arms, which I knew to be customary when a riot happens, but as the drum come nearer, I discovered a peculiarity in the beating, which made me imagine it was not a regular drum. I did not go from my lodgings that night.

Docno: ADMS-05-03-02-0001-0004-0013

DateRange: 1770-11-30 - 1770-12-01

Transcript of Remaining Defense Evidence1

30 November–1 December 1770

Patrick Keaton, sworn.
On the evening of the 5th of March I was at my lodgings, I heard a noise, and went out towards Union-street, and saw people coming from the North-end, with sticks and clubs in their hands; it was about nine o'clock. I followed them to Dock-square, somebody asked what was the matter, he was answered, that a boy and soldier had been foul of one another; they hallowed King-street; I went up to the foot of Jenkin's lane, and there I saw a tall Molatto fellow, the same that was killed, he had two clubs in his hand, and he said, here take one of them, I did so.
Q. What sort of clubs were they?
A. They were cord wood sticks; I went up to the head of the lane, and I dropt the stick in the snow; he went on cursing and swearing at the soldiers, down towards where the people surrounded the soldiers; I stood by the stone steps at the Custom-house, there were people coming from all parts, calling out bloody back, and one thing and another; I could not distinguish what one half of them said; I had not been long there 'till three or four guns went off, and I went home.
Q. Did you see any thing thrown at the soldiers? []A. No.
Q. Did you see any body strike upon their guns?
A. No, but I heard the soldiers say keep off, keep off.
Q. What number of people was there in Dock square?
A. About two hundred.
Q. Did you hear any body say kill them, kill them, knock the mover? []A. No.
Q. Did the people appear to be pressing on the party?
A. Yes, they were as I thought.
{ 193 }
William Davis, Serjeant-major of the 14th Regiment, sworn.
Monday evening the 5th of March, about eight o'clock, I was going towards the North-end in Fore-street, near Wentworth's wharff, I saw a number of people in the street before me.
Q. What number?
A. About two hundred, I then stept aside, and when they came up, I saw several armed with clubs, and large sticks, and some had guns; they came down regularly in two's and three's a breast; they were a minute in passing me.
Q. Were they soldiers that had guns?
A. No, I saw no soldier in the street; I heard them saying damn the dogs knock them down, we will knock down the first officer, or bloody backed rascal we shall meet this night; some of them then said they would go to the southward, and join some of their friends there, and attack the damned scoundrels, and drive them out of the town, for they had no business here. Apprehending danger if I should be in my regimentals, I went into a house at the North end and changed my dress, and in my return from the North-end, about nine, coming near Dock square, I heard a great noise a whistling and rattling of wood; I came near the Market place, and saw a great number of people there, knocking against the posts, and tearing up the stalls, saying damn the lobsters, where are they now; I heard several voices, some said let us kill that damned scoundrel of a Sentry, and then attack the Main guard; some said, let us go to Smith's barracks, others said let us go to the rope-walks; they divided: The largest number went up Royal-exchange-lane, and another party up Fitch's alley, and the rest through the main street, up Cornhill. I passed by the Golden-Ball, I saw no person there but a woman, persuading a man to stay at home; he said he would not, he would go amongst them, if he lost his life by it. I went into King-street, looking towards the Custom-house, I saw a number of people seemingly in great commotion; I went towards my barracks, and near the fish stall at Oliver's dock, I met a great number of people coming towards King-street, with clubs and large sticks.
Q. What time was this?
A. It was past nine, for I heard bells ring before. One of them was loading his piece by Oliver's dock, he said he would do for some of these scoundrels that night. The people were using threats against the soldiers and Commissioners, damn the scoundrels and villains of soldiers and Commissioners, and damn the villain that first sent them to Boston, they shall not be here two nights longer. I went to my barracks; the roll had been called, and there was not a man absent, except { 194 } some officers that quartered in the town, and their servants. Immediately after I heard as it were a gun fired in King-street, and afterwards two or three more.
Nathaniel Russel, Chairmaker, sworn.
On the evening of the 5th March, betwixt nine and ten o'clock, I was at my own house and heard the bells ring, I run out to know where the fire was: I got from Byles's meeting down to the South meeting; I saw a number of men and boys armed with clubs, and fifteen or twenty more coming along, some were damning the soldiers that they would destroy them, and sink them, and they would have revenge for something or other I could not tell what, that they would drive them before them: some of the people there said they had been to Rowe's barracks, and had driven the soldiers or the Sentinel into the barracks. I went to the Town-house, there I saw Mr. Cox; I saw a number of people with clubs; I saw at a distance, a parcel of soldiers at the Custom house; I went down to the right of them, where Capt. Preston stood; I had not been there a minute before the guns were fired, previous to which, I saw several things but dont know what they were, thrown at the soldiers, as they stood in a circle by the Custom house. I was at the west of the soldiers; I was looking over the Molatto's shoulder: I saw Samuel Gray there. Upon these things being thrown, I intended to retreat as fast as I could; I had not got three yards before the guns were fired, first one, then another, and so on, I think there were seven in all.
Q. Before you turned, did you see any thing strike the guns?
A. I did not see, but I heard something strike, and the guns clatter. There was a great noise, the cry was, fire, damn you fire.
Q. Was the cry general? []A. Yes, it was general.
Q. How many people do you imagine were then gathered round the party? []A. Fifty or sixty able bodied men.
Q. Did they crowd near the soldiers?
A. So near, that I think you could not get your hat betwixt them and the bayonets.
Q. How many people do you think there might be in the whole?
A. About two hundred.
Q. Did the soldiers say any thing to the people?
A. They never opened their lips; they stood in a trembling manner, as if they expected nothing but death. They fired first on the right. I was looking on the whole body, no one between me and the soldiers that interrupted my sight; I saw no blows given, or any of the soldiers fall.
{ 195 }
Q. Might not their trembling proceed from rage as well as fear?
A. It might proceed from both.
John Cox, Brick-layer, sworn.
Note. This witness was called on the part of the Crown, to invalidate the testimony of Russel the former witness.
Q. Did you come down from the South end with Mr. Russel?
A. No, I met him at the Town-house. I saw three soldiers, two belonging to the Neck,2 and one to the Main Guard, by Liberty-tree, I was at Mr. Gore's shop opposite the Tree; one said to the other, bring half your guard, and we will bring half ours, and we will blow up this damned pole; I said, so sure as you offer ye scoundrels to blow up that pole, you will have your brains blown out.
Q. How were these soldiers dressed?
A. In their regimentals, one was a drummer.
Q. Was he a black man? []A. No, he was a white man.3
Henry Knox. Stationer, sworn.
I was at the North-end, and heard the bells ring, I thought it was fire; I came up as usual to go to the fire; I heard it was not fire, but the soldiers and inhabitants were fighting; I came by Cornhill, and there were a number of people an hundred and fifty, or two hundred; I asked them what was the matter, they said a number of soldiers had been out with bayonets and cutlasses, and had attacked and cut the people all down Cornhill, and then retreated to their barracks; a fellow said they had been cutting fore and aft. The people fell gradually down to Dock-square. I came up Cornhill, and went down King-street, I saw the Sentinel at the Custom-house steps loading his piece; coming up to the people, they said the Sentinel was going to fire.
Q. How many persons were there at that time round the Sentinel?
A. About fifteen or twenty, he was waving his piece about, and held it in the position that they call charged bayonets. I told him if he fired he must die for it, he said damn them, if they molested him he would fire; the boys were hallowing fire and be damned.
Q. How old were these boys?
A. Seventeen or eighteen years old. I endeavoured to keep one fellow off from the Sentinel, I either struck him or pushed him away.
Q. Did you hear one of the persons say, God damn him, we will knock him down for snapping?
{ 196 }
A. Yes, I did hear a young fellow, one Usher, about eighteen years of age say this.
Q. Did you see any thing thrown at the Sentinel?
A. No, nothing at all.
Q. Did you see the party come down? []A. Yes.
Q. What was the manner of their coming down?
A. They came down in a kind of a trot, or a very fast walk.
Q. Did they come down in a threatening posture?
A. Very threatening, at least their countenances looked so, they said make way, damn you make way, and they pricked some of the people.
Q. Did you see the Corporal?
A. I saw a person with the party, whom I took to be the Corporal.
Q. Had he a surtout on? []A. Yes, he had.
John Bulkely, Clerk to Mr. Josiah Quincy, sworn.
Hearing the bells ring I went out, and imagined it had been for fire, but found I was mistaken. I went to Mr. Quincy's, office near the Main Guard, there was a prodigious noise in King-street. I apprehended the Sentinel was in danger, and stood in expectation of seeing the guard turned out. Capt. Preston was before the office, and appeared in a great flutter of spirit. I knew not he was Captain of the day. A very young officer commanded the guard, I pitied his situation.4
Q. What induced you to believe the guard would be turned out?
A. By the Sentinel's being surrounded, and the noise.
Q. What number was about him?
A. About fifty or sixty.
Q. Did you stand in the shade, or was the shade on the other side of the way?
A. I did stand in the shade. A person came to Capt. Preston and said they were killing the Sentinel; Capt. Preston said damn you why do you not turn out; he spoke roughly to them, then some soldiers came out, and he and they went down to the Custom-house.
Q. Do you know who it was came up to Capt. Preston?[]A. No.
Q. Did you expect they would carry off the Sentinel?
A. I did not know what would be the consequence, I thought if he came off with his life he would do very well.
Benjamin Lee, an Apprentice, sworn.
On the 5th of March there were four of us in a house together, I heard that there was fire; I went to Dock-square, when I came there I
{ [facing 196] } { 197 }
heard some in the crowd say, that the towns people had been fighting with the soldiers, and then they huzzaed for King-street.
Q. How many people were there in Dock-square at that time?
A. Between fifty and sixty. I went up Royal-exchange-lane and came to the Custom house.
Q. Did you go alone?
A. No, several went up beside me, they went up as thick as they could, and some went up the next lane, and some went up Cornhill. As I stood by the Sentinel, there was a barber's boy came up and pointed to the Sentinel, and said there is the son of a bitch that knocked me down; on his saying this, the people immediately cried out kill him, kill him, knock him down.
Q. What number of people was there then?
A. I cannot tell, I believe there were as many as in this Court, some boys, some men; the Sentinel went up the Custom house steps and knocked at the door with the butt of his gun, but could not get in; then he primed and loaded, and levelled it with his hip, and desired the people to stand off, and then called to the Main-Guard to come down to his assistance.
Q. Did he call loud? []A. Yes, pretty loud.
Q. What was the expression he used?
A. Turn out Main Guard. Then Capt. Preston and nine or ten soldiers came down, and ranged themselves before the Sentry-box.
Q. Had these people that stood round the Sentinel clubs or sticks?
A. I saw no clubs, some had sticks, such as people generally walk with.
Q. Did you see any thing thrown at the Sentinel? []A. No.
Q. Did you hear the people hallow or shout?
A. They whistled with their fingers and huzzaed.
John Frost, an Apprentice, sworn.
Q. Did you meet some boys that evening, who said they had drove some soldiers to their barracks?
A. In Dock-square some people said so, and huzzaed for King-street. I went up there, and saw a barber's boy, who said this is the son of a bitch that knocked me down; the people crowded in upon the Sentinel, and he drew back to the Custom house steps.
Q. Did you see any thing thrown at the Sentinel.
A. No, he knocked at the Custom house door with the butt end of his gun, as I thought to get in, and then I saw him prime and load his piece, and level it with his hip.
Q. Were they pressing on him?
{ 198 }
A. Yes they were, they said fire, damn you fire, you dare not fire.
Q. How many people were there?
A. About fifty or sixty young men and boys.
Q. How old were these young men?
A. About twenty or twenty-two.
Q. What do you call boys? []A. Such as myself, about eighteen.
William Botson, an Apprentice, sworn.
I was at the Market and went up Royal exchange lane, I saw no soldier but one, and he was the Sentinel, he got on the steps and loaded, by and by I saw a party come down from the Main-guard, and all that stood round cried fire! fire! By and by they did fire, as soon as I saw a man drop, I went away.
Q. Did you see any ice thrown at the soldiers?
A. I saw snow balls, but no ice.
Q. Did you see any thing strike upon their guns? []A. No.
Q. Did you hear their guns rattle?
A. No, I saw snow balls thrown both at the Sentinel and at the party.
Q. Did you see any clubs thrown? []A. No.
Q. What number of people were there about the Sentinel?
A. Near two hundred boys and men.
Q. Was the Custom-House door opened?
A. Not that I minded, they hollowed fire! fire! you dogs.
Q. Was any considerable number of snow balls thrown at the Sentinel? []A. A dozen before the party came down.
Q. And when they came down, did they throw?
A. Yes, as fast as ever.
Q. Did you hear any huzzaing? []A. Not in particular.
James Waddel, Mariner, sworn.
On the 5th March I was in King-street at the Main-Guard, I saw the soldiers going down to the Custom house, I saw the soldiers very much molested by the people of the town throwing snow balls, sticks, and more rubbish than I can mention, I saw also the Sentinel molested at the Custom-house door; when the party came down, he fell in amongst the rest of the soldiers; I saw a soldier knocked down, but who he was I cannot tell.
Q. Where did you stand?
A. Betwixt the soldiers and the Sentry-box.
Q. Do you know who knocked the soldier down?
{ 199 }
A. No, I do not, I am not certain whether it was a stick that struck him down, or a brick-bat.
Q. Did his firelock fly out of his hand?
A. Yes, the firelock flew out of his hand, and he took it up again and fired, and I think he was the first that fired.
Q. Which way did the stick or b[r]ick batt come that knocked him down?
A. It came as if thrown from towards the Town-house.
Q. How near did the people stand to the soldiers, when the first gun was fired?
A. The nighest might be about ten or a dozen yards from the soldiers.
Q. When you stood there, did you see any one strike at any soldier with a stick in his hand? []A. No.
Q. Did you see any of the prisoners there that night?
A. Yes, I saw Hartegan, I was acquainted with him in Halifax, and I kept my eye upon him more than upon any of the rest.
Q. Whereabout did he stand?
A. I came up the Royal-exchange-lane, and he was then the nearest man to me.
Q. How many guns did you hear fired?
A. I believe about seven.
Daniel Cornwall, Barber, sworn.
On the evening of the 5th March I was in Milk-street, I heard the bells ring, and ran down to the Town-house, I saw diverse of the inhabitants there, I enquired the reason of the bells ringing? A young man told me, a rascally soldier had struck one of the inhabitants with a cutlass, I replied, where is the damned villain gone? He gave me no answer, presently they turned round and gave two or three cheers.
Q. How many people were there?
A. About thirty or forty: They went to the alley leading to Murray's barracks, some were for going down the alley, some were not, I staid at the head of the alley, presently they went to the bottom of Royal-exchange-lane, and huzzaed and went up the lane, I myself went up the main-street, the bell at this time had stopped; as I got to the Town house, they had all got into King-street, I went down to see what they would do, there were several gentlemen persuading them to go off, and I believe they would all have gone in a few minutes, had not the soldiers come. I saw them throwing oyster shells and snowballs at the Sentry at the Custom house door, he was on the steps.
{ 200 }
Q. Are you sure you saw them throw oyster-shells at him?
A. Yes.
Q. One or two, or a number? []A. I think two or three.
Q. Did they hit him?
A. I do not think they did. Some were hollowing out, let us burn the Sentry box, let us heave it over-board, but they did neither; I stood then opposite the Custom-House door, presently I saw a party of soldiers come down, who placed themselves before the Custom House.
Q. Before the party came down, did you hear any person say, kill him?
A. No, I observed Capt. Preston standing by the Sentry-box, I saw him talking with a man, I do not know who he was, I went to hear what they said, but I could not; in the space of two or three minutes, I heard a stick, club, or something else strike a soldier's gun, immediately the gun went off, and then I run.
Q. Did you hear any thing rattle on the pavements?
A. Yes, I heard a bayonet, or something like it, rattle on the pavements.
Q. How many people were there, when the soldiers came down?
A. I believe sixty or seventy.
Q. Where did you stand?
A. I stood at the head of Royal-exchange-lane, about three yards and a half from the Sentry box.
Q. Could you see all the soldiers?
A. No: just before they fired, I heard the people say, Damn you fire, you bloody backs.
Q. Did you hear the expressions, Rush on, knock them over, knock them over? []A. No.
Q. How long was you there?
A. About seven or eight minutes.
John Ruddock, Esq; sworn.5
As I went home that evening, I met a number of boys with clubs, they went so for several months before, they chused to do so, because they had been so often knocked down by the soldiers, some said the soldiers were going to fight with the people.
Q. What number did you meet?
A. They were in two's or three's, three's or four's in a bunch, in the whole there might be about twenty.
{ 201 }
Q. What time of night was that? []A. About eight o'clock.
Newtown Prince, a free Negro, sworn.
When the bells rung I was at my own house, I run to the door and heard the cry of fire, I put on my shoes, and went out, and met two or three men, asked where the fire was; they said it was something better than fire. I met some with clubs, some with buckets and bags, and some running before me with sticks in their hands; I went to the Town-house, looked down the street, and saw the soldiers come out with their guns and bayonets fixed: I saw Capt. Preston with them; there were a number of people by the west door of the Town-house, they said lets go and attack the Main Guard, some said for God's sake do not meddle with them; they said by God we will go, others again said do not go. After a while they huzzaed and went down King-street; there was a number of people came down Prison-lane, and some from the Post-office; they went down to the Custom house, and I went down. The soldiers were all placed round in a circle with their guns breast high. I stood on the right wing, when the Captain came the people crouded in to him to speak to him, and I went behind them, I went next to the Custom-house door, there were people all round the soldiers.
Q. How near were the people to the soldiers?
A. About three or four feet from the point of their bayonets, the thickest part was by Capt. Preston. When I got to the corner I saw people with sticks striking on their guns at the right wing. I apprehended danger and that the guns might go off accidentally. I went to get to the upper end towards the Town house, I had not got to the center of the party, before the guns went off; as they went off I run, and did not stop till I got to the upper end of the Town-house.
Q. How many did you see strike upon their guns?
A. I cannot tell how many of them did it.
Q. Did you hear at that time they were striking, the cry of fire, fire?
A. Yes, they said fire, fire damn you fire, fire you lobsters, fire, you dare not fire.
Q. Did you see any thing thrown at the soldiers?
A. Nothing but snow balls, flung by some youngsters.
Gregory Townsend, Esq; Merchant, sworn.
Just after the bell rung nine, hearing the bell ring again, I went out thinking it was fire; I saw numbers of people running from the South-end some had buckets, the principal number had clubs in their hands. { 202 } I asked where is the fire, I received for answer, at the Rope-walks and in King street. Numbers were coming with buckets, and the rest said Damn your bloods do not bring buckets, bring clubs.
Q. Was this before the firing? []A. Yes.
Andrew, (Mr. Oliver Wendall's Negro,) sworn.
On the evening of the 5th of March I was at home, I heard the bells ring, and went to the gate; I said there a little and saw Mr. Lovell coming back with his buckets, I asked him where was the fire, he said it was not fire; after that I went into the street, and saw one of my acquaintances and we run down to the end of the lane and saw another acquaintance coming up, holding his arm; I asked him what's the matter, he said the soldiers were fighting, had got cutlasses, and were killing every body, and that one of them had struck him on the arm, and almost cut it off; he told me I had best not go down; I said a good club was better than a cutlass, and he had better go down and see if he could not cut some too. I went to the Town-house, saw the Sentinels placed at the Main-Guard standing by Mr. Bowes's corner; numbers of boys on the other side of the way were throwing snow balls at them; the Sentinels were enraged and swearing at the boys; the boys called them lobsters, bloody backs, and hallowed who buys lobsters; one of my acquaintance came and told me that the soldiers had been fighting, and the people had drove them to Murray's barracks; I saw a number of people coming from Murray's barracks who went down by Jackson's corner into King-street; presently I heard three cheers given in King-street, I said we had better go down and see what's the matter; we went down to the Whipping post and stood by Waldo's shop, I saw a number of people round the Sentinel at the Custom house, there were also a number of people who stood where I did, and were picking up pieces of sea coal that had been thrown out thereabout, and snow balls, and throwing them over at the Sentinel. While I was standing there, there were two or three boys run out from among the people, and cried we have got his gun away, and now we will have him; presently I heard three cheers given by the people at the Custom house; I said to my acquaintance I would run up and see whether the guard would turn out. I passed round the Guard house, and went as far as the west door of the Town-house. While I stood there one of my acquaintance said he would go round the corner of the Town-house, and see if the guard had turned out; he went to the corner and called me, and told me the guard was come out. I went and looked down the street, I saw a file of men, with an officer with a laced { 203 } hat on before them; upon that we all went to go towards him, and when we had got about half way to them, the officer said something to them, and they filed off down the street; upon that I went in the shade towards the Guard-house, and followed them down as far as Mr. Peck's corner; I saw them pass through the croud, and plant themselves by the Custom house. As soon as they got there the people gave three cheers. I went to cross over to where the soldiers were, and as soon as I got a glimpse of them, I heard somebody huzza and say here is Old Murray with the riot-act, and they began to pelt snow balls; a man set out and run, and I followed him as far as Philips's corner, and I do not know where he went. I turned back and went through the people until I got to the head of Royal-exchange lane, right against the soldiers; the first word I heard was a Grenadier say to a man by me, Damn you stand back.
Q. How near was he to him?
A. He was so near that the Grenadier might have run him through if he had stept one step forward. While I stopt to look at him, a person came to get through betwixt the Grenadier and me, and the soldier had like to have pricked him; he turned about and said, You damn'd lobster, bloody back, are you going to stab me, the soldier said by God will I; presently somebody took hold of me by the shoulder, and told me to go home, or I should be hurt; at the same time there were a number of people towards the Town house, who said, come away and let the guard alone, you have nothing at all to do with them. I turned about and saw the officer standing before the men, and one or two persons engaged in talk with him. A number were jumping on the backs of those that were talking with the officer, to get as near as they could.
Q. Did you hear what they said?
A. No. Upon this I went to go as close to the officer as I could; one of the persons who was talking with the officer turned about quick to the people, and said, Damn him he is going to fire; upon that they gave a shout, and cryed out Fire and be damn'd, who cares, damn you, you dare not fire, and began to throw snow balls, and other things, which then flew pretty thick.
Q. Did they hit any of them?
A. Yes, I saw two or three of them hit, one struck a Grenadier on the hat, and the people who were right before them had sticks; and as the soldiers were pushing with their guns back and forth, they struck their guns, and one hit a Grenadier on the fingers. At this time, the people up at the Town house called again come away, come way; a { 204 } stout man who stood near me, and right before the Grenadiers, as they pushed with their bayonets the length of their arms, kept striking on their guns. The people seemed to be leaving the soldiers, and to turn from them, when there came down a number from Jackson's corner, huzzaing and crying, Damn them they dare not fire, we are not afraid of them; one of these people, a stout man with a long cord wood stick, threw himself in, and made a blow at the officer; I saw the officer try to fend off the stroke, whether he struck him or not I do not know: the stout man then turned round, and struck the Grenadier's gun at the Captains right hand, and immediately fell in with his club, and knocked his gun away, and struck him over the head, the blow came either on the soldiers cheek or hat. This stout man held the bayonet with his left hand, and twitched it and cried kill the dogs, knock them over; this was the general cry; the people then crouded in, and upon that the Grenadier gave a twitch back and relieved his gun, and he up with it and began to pay away on the people. I was then betwixt the officer and this grenadier, I turned to go off, when I had got away about the length of a gun, I turned to look towards the officer; and I heard the word fire; at the word fire I thought I heard the report of a gun, and upon my hearing the report, I saw the same grenadier swing his gun, and immediately he discharged it.
Q. Do you know who this stout man was, that fell in and struck the grenadier?
A. I thought, and still think it was the Molatto who was shot.
Q. Do you know the grenadier who was thus assaulted and fired?
A. I then thought it was Killroy, and I told Mr. Quincy6 so the next morning after the affair happened, I now think it was he from my best observation, but I can't positively swear it.
Q. Did the soldiers of that party, or any of them, step or move out of the rank in which they stood to push the people?
A. No, and if they had they might have killed me and many others with their bayonets.
Q. Did you, as you passed through the people towards Royal-exchange lane and the party, see a number of people take up any and every thing they could find in the street, and throw them at the soldiers?
A. Yes, I saw ten or fifteen round me do it.
Q. Did you yourself pick up every thing you could find, and throw at them? []A. Yes I did.
Q. After the gun fired, where did you go?
{ 205 }
A. I run as fast as I could into the first door I saw open, which I think was Mr. Dehones, I was very much frightened.
Oliver Wendell, Merchant, sworn.
Q. Is the witness last examined your servant? []A. Yes.
Q. How long has he lived in your family?
A. Above ten years.
Q. What is his general character for truth?
A. It is good, I have heard his testimony and believe it to be true, he gave the same relation of this matter to me on the same evening, in a quarter of an hour after the affair happened; and I then asked him whether our people were to blame, he said they were.
Q. Can Andrew read and write?
A. Yes, very well, he has been well educated.
Q. Pray Sir, is it not usual for Andrew to amplify and embellish a story?
A. He is fellow of a lively imagination, and will sometimes amuse the servants in the kitchen, but I never knew him to tell a serious lye.
FIVE o'Clock, p.m. the Court adjourned till next morning, Saturday[1 December], nine o'Clock.
Saturday, NINE o'Clock, the Court met according to adjournment, and proceeded.
William Whitington, sworn.
I was in King-street a quarter after nine o'clock on the 5th of March, and two others with me, I crossed King-street at Oliver's-Dock, and I met a few people, but did not mind them, and the people with me did not; in a little time I heard the bells ring, and I made a stop and asked what was the matter? They said fire, I saw several people with buckets, &c. and I asked them where they were going? They said there is fire somewhere. I came up by Pudding-lane, and went in betwixt the guard and Guard-House, for at this time the Main-Guard was turned out, I saw Mr. Basset the officer, and Capt. Preston, while I was standing there, some person in the croud fronting the soldiers, cried out to the guard, will you stand there and see the Sentinel murdered at the Custom house? Capt. Preston and Mr. Basset were both together, Mr. Basset said to Capt. Preston, what shall I do in this case? Said Preston, take out six or seven of the men, and let them go down to the assistance of the Sentry; I think there were six men ordered out of the { 206 } ranks, they formed themselves by files, the Corporal marched in the front, and the Captain in the rear, I was at this time on the outside of the soldiers on the left hand, and I kept on the outside from the time they marched from the parade till they came to the Custom-house, but how they formed themselves when they came there I did not see, but when I saw them they were formed in a half circle, I was about two or three yards distance from them, I heard Capt. Preston use many intreaties to the populace, begging they would disperse and go home, but what they said I cannot tell; but I heard them hollow, damn you fire! You dare not fire, we know you dare not fire; Capt. Preston desired them to go home many times; I departed and saw no more of them, and went to Wheelwright's wharf.
Joseph Hinkley, sworn.
On the evening of the 5th March I heard the bells ring, I was in Mr. Hall's house, I went out in order to see where the fire was, I heard the drum beat, I went to the shop and got a stick, and went down to the Conduit, I saw thirty or forty people with sticks in their hands.
Q. Were they walking sticks?
A. Some were short clubs, some were walking sticks. Then they hollowed, King-street forever, and huzzaed, some went up Royal-exchange-lane, I went with a number up Jenkin's-alley, I went towards the Sentinel, he was walking backwards and forwards with his firelock on his shoulder; some of the people said, kill him; I had not been there long, before the party came down, and then a good many more people gathered round before the Sentinel-box, some from Quaker-lane, some from the Town-house, and some from the bottom of King-street, some with sticks, some without, they came close to the Sentinel, the bells were ringing, I had not been there long before they loaded, I was close to them when they loaded.
Q. Who gave orders to load?
A. I did not hear, there was such huzzaing, hollowing and whistling, that I could not hear, they had their bayonets about breast high, shoving and pricking with their bayonets to make the way clear, then the people hollowed fire! why do you not fire? Damn you fire! you bloody backs.
Q. Did they tell the people to keep off? []A. Yes.
Q. And did the people go back when desired?
A. No, they pressed more upon them, while the people were thus pressing on the party, they fired, I did not hear any orders given.
Q. How near did you stand to the soldiers?
{ 207 }
A. I fell back to the middle of the street when the first gun was fired.
Q. To which wing did you fall?
A. To the center, I was right facing them.
Q. How many guns were fired?
A. I think six or seven, I did not count them.
Q. Did you see the people come close up to the soldiers, and strike on their guns?
A. No, they held their sticks up over their heads, flourishing and brandishing them, saying, damn you fire? you dare not fire.
Q. Did you see any sticks thrown?
A. No, nor any thing else, Samuel Gray who was shot that night, clapped me on the shoulder, and said, do not run my lad, they dare not fire, and he ran back and forth among the people and clapped others also on the back as he did me.
Q. Had he any thing in his hand?
A. I think he had not; I looked to my left soon after the guns were fired, and saw him upon the ground, and with the help of some others, carried him to Dr. Loring's shop, but could not get in, and left him there.
Q. Do you know Langford in this town? []A. No.
Q. Did you see any body go up to Gray, and thrust at him with a bayonet? []A. No I did not see it.
Q. How near did he fall to the soldiers?
A. He was in the middle of the street.
Q. Did you see any of the soldiers move out of the ranks?
A. No.
Q. How near was you to Gray?
A. About three or four yards distance.
Harrison Gray, junr. sworn.
That evening upon returning home, I saw a number of people round the Sentinel, making use of opprob[r]ious language and threatnings, I desired them to go off, and said the consequence would be fatal if they did not; some few snow balls were thrown, and abusive language continued, they said damn him, let him fire, he can fire but one gun.
Q. Were they men or boys?
A. They were a mixture, about eighteen or nineteen years old, and some men.
Q. How many were there of them?
A. There might be from seventy to an hundred, I did not par• { 208 } ticularly observe; when I could not prevail to take them off, I went to Mr. Pain's,7 in a little while the party came down, I saw nothing afterwards; soon after I heard the guns fired, and Mr. Pain was wounded with one of them.
Q. Did the Sentinel call out for the guard?
A. I did not hear him, he retreated to the steps of the Customhouse.
Q. Was you standing at Mr. Pain's door when the guns were fired?
A. I was, but was not looking that way, nor did I observe when the party came down; I told the people, the Sentinel was on duty, that was his post, and that he had a right to walk there, and that he could have enough to relieve him, if he stood in need of it, as he was so near the Main Guard.
Charles Willis, an Apprentice, sworn.
I know nothing worth the telling; I was not in King-street, I heard there was no fire, but I heard the soldiers were fighting. I went to Dock square, and saw a number of people there, I came up Royal-exchange-lane, and saw the firing, but was not near enough to see any thing the people did.
Matthew Murray, sworn.
That evening I was at home; and heard the bells ring, I went into the street and asked the occasion, I was told it was not fire, but the soldiers fighting with the inhabitants; I went into the house and could find no stick, but I cut the handle of my mother's broom off, with this I came to King-street, but there were no soldiers; some people were coming from Royal-exchange lane, some from the Town-house, some said, damn it, they are only making fools of us, it is best to go home: I went to the head of Royal exchange-lane, and saw a cluster of people there, and I saw a boy who said that the Sentry had knocked him down with the butt-end of his gun; I saw the Sentry on the steps, and the people after he loaded, said, fire! Damn you fire! Presently after the party came down, I stood close to them, they were swinging their bayonets, telling the people to make way, I saw a man talking with Capt. Preston, I went to hear what he said, I could not hear, the grenadier on the right was struck some where on his right side, but I do not know with what, but directly he fired.
{ 209 }
Q. Was that the right hand man? []A. Yes.
Q. Was you close to the soldiers?
A. Yes, I was quite close to them.
Q. Did you see any snow balls thrown before this?
A. I think I saw two or three.
Thomas Symmonds, Victualler, sworn.
Betwixt eight and nine o'clock of the 5th March, I was in my house near Murray's barracks, the people were running backwards and forwards, and there was a great mob and riot by the barrack gate; I heard the people as they went along declare, if the soldiers did not come out and fight them, they would set fire to the four corners of the barracks, and burn every damned soul of them.
Q. Did you see the people?
A. I was standing at my own door, I saw them pass and repass me, but I knew none of them.
Q. Was there any disturbance before that?
A. Yes, there was a disturbance half an hour before that.
Q. What sort of a disturbance was it before?
A. I saw a good number of towns people had cutlasses, clubs, and swords, there was knocking down, riot and disturbance, and this declaration of theirs was after that, and before the bells rung.
Q. Was that said by one, two, or a number?
A. I cannot tell indeed how many said so.
Q. Did you at that time keep a victualling-house?
A. Yes, I did.
Q. Did the soldiers frequent your house? []A. Yes, they did.
William Parker, Bricklayer, sworn.
On the evening of the 5th March, I was at Mr. Coleman's at the north side of the Market, I came from thence through the Market on the south side, I saw seven or eight people, the chief were boys, three or four of them were on the inside the rails, pulling the butchers stalls to pieces.
Q. How old did these boys appear?
A. About a dozen of years old, or smaller, some about eighteen, I went up to them and observed they were getting sticks; about half a minute after, came along a soldier, I took him to be an officer's servant, some said here is a damned soldier, and got foul of the man, and I got the soldier away from them, and he went off, and I went towards home round by the Golden-ball, and up into King-street; I met one Mr. { 210 } James Bayard he and I walked together, and I did not see a single soul in the street; we passed the Sentinel (I think that was he—pointing to White) it was cold under foot, and we stood upon Stone's steps; in a few minutes there were three or four boys round the Sentinel, they got foul of him: one of them said the Sentinel had struck him with his gun, and they kept pushing one another against him, and pushed him into the box; I said to Mr. Bayard there will be trouble by and bye. About two minutes after there came a parcel of boys and young fellows together, in number about fifteen or sixteen, the chief of them with sticks in their hands.
Q. What sort of sticks were they?
A. They looked like the sticks they took at the Market, like pieces of the stalls split. When they got to the head of the lane, there was a little talking and whistling amongst them, and they said lets go up to the Main guard, and they went up by the foot of the Town-House; about one minute after there were five or six boys made their appearance out of Royal-exchange-lane, from that I went to go up round Jackson's corner, when I came to the watch-house, I met a number of people coming round by Jackson's corner.
Q. How many people? []A. Twenty or thirty.
Q. Had they sticks?
A. Some had sticks, some had none, some had short sticks, some had walking canes.
Q. What sized people were these?
A. They were a mixture of men and boys running together; I asked them what had been the matter, they said there had been a squabble by Murray's barracks, and they had drove the soldiers in; they said it was all over; then I left Mr. Bayard and they all came down into King-street, and betwixt Quaker-lane and Royal-exchange-lane they made a stop, and met in a cluster, and not long afterwards dispersed; I did not leave above twelve or fifteen in King-street, when I came out of it. I went down Quaker-lane, and a number that lived that way went down with me; as I got home and lifted the latch of the door I heard some bell ring, and I heard a gun and then another, I heard them all fired, I came back as far as the bottom of the lane and no farther.
Q. What said the boys in the Market to the soldier who passed by?
A. They said here is a damned soldier, some said they are all a like, this is as bad as any of them. I believe they would have beat him if I had not rescued him; he was passing quietly along.
{ 211 }
John Gridley Merchant,8sworn.
On the evening of the 5th of March, I passed my time at the Bunch of Grapes in King-street, in company with three gentlemen of the town; betwixt the hours of nine and ten we were alarmed with the bells, and a cry of fire, they said to me come Gridley we had better go and enquire where the fire is, I said I had rather sit where I was, there might be some disturbance, and I did not want to be in it; however, I agreed, and we went. I saw Mr. Davis particularly, he said to me what do you make of this, I told him I believed there was no fire, but rather a tumult. I said to Mr. Davis I will go up the street and see what the matter is, and return again and let him and the rest that were on the steps of the door know what the matter was. I went up the street into the middle of it, and I stopt just before the Sentinel placed at the Custom House, there were a large number of boys, and some men amongst them, about ten young men, the boys were in the front, and the men in the rear; I believe about twenty five, boys men and all.
Q. How big were these boys?
A. Little trifling boys. The Sentinel had his gun and bayonet charged, levelled with his hip. I went from thence up to the south end of the Town-house opposite to the Main-Guard.
Q. Was the Sentinel at that time in the box or on the steps?
A. He was retreating towards the steps with his bayonet charged. I then found the Main guard to be in confusion. I went up to the head of the Town house, where were a number of gentlemen collected together, I asked them what was the matter, they told me that the soldiers had rushed from Murray's barracks, and had cut several of the inhabitants with their cutlasses; several people were running about the streets, and the cry was God damn the rascals. Some said this will never do, the readiest way to get rid of these people is to attack the Main guard. Strike at the root, there is the nest.
Q. Was this particularly spoken by one or two only?
A. No, it was general, they joined in with one another as they met. I went to the north-side of the Town house, with a view to return to the place from whence I came; I stopt at Mr. Kent's door, and while I was standing there, a party of the guard came down from the Main guard a cross King-street. I turned round and saw a non commissioned officer (as I took him to be by his appearance) leading the party, which I at first thought was to relieve the Sentinel at the Custom-House as usual, but perceiving this guard was going down to support the Sen• { 212 } tinel, I thought it time to go where I came from, to tell the gentlemen what I had seen according to promise. I proceeded down street on the Custom-house side, on the flat stones; the soldiers were drawn up in two ranks front and rear, as I thought it, they had not had time to form as I came down; I walked betwixt the two ranks, they were then loading their pieces.
Q. Did you hear any orders given for loading?
A. No. Passing betwixt the ranks, their guns being on a loading position, I passed leisurly through, and they put their guns and bayonets up to let me go through. I returned to the Bunch of Grapes from whence I came, I saw Mr. Davis and the other gentlemen on the steps, Mr. Davis asked me to give an account of this matter, I told him I could give no account, except a general one, that the soldiers had come out of their barracks, and that they had been a quarreling, and the Sentinel had been interrupted in his duty. Mr. Davis asked me what was that collection of people before the Custom-House, who did they consist of; they are nothing said he, but a parcel of boys; I hastily replied, yes, Mother Tapley's boys.9
Q. What did you mean by that?
A. I meant boys as big as I am.
Q. When you passed betwixt the soldiers, was any thing thrown at them, or did any body strike them.
A. No, not that I saw. When I was at the Bunch of Grapes, I saw some snow balls thrown, some from the rear, some from the middle of the street, and some from Quaker-lane, all thrown towards the Custom house.
Q. Was there any noise just before the firing?
A. As I stood on the steps of the Bunch of Grapes tavern; the general noise and cry was why do you not fire, damn you, you dare not fire, fire and be damned. These words were spoke very loud, they might be heard to the Long wharff. The noise was very great indeed. There was about fifty before the soldiers, and about half the number before the Sentinel, before the party joined him.
Mrs. Catherine Field, sworn.
Q. Did you know Patrick Carr, who was killed by the firing in King-Street on the 5th of March last? []A. Yes.
Q. Was he in your house that evening? []A. Yes.
Q. Did you hear any thing he said, when he was told there was an affray with the soldiers?
{ 213 }
A. When the bells rung, he went up stairs and put his surtout on, and got a hanger and put it betwixt his coat and surtout; my husband coming at that time, gave him a push and felt the sword; he wanted to take it from him, but he was unwilling to let it go, my husband told him he should not take it with him. I do not know what he said, but one of the neighbours was in the house and coaxed the sword out of his hand, and he went out without it. He said on his death bed, he saw a parcel of boys and negroes throwing snow balls at the guard. He thought the first or second man from the Sentinel box was the man that shot him.
John Mansfield, sworn.
Q. Do you know Patrick Carr?
A. Yes. On the night of the 5th of March, when the bells rung he would go out; I persuaded him much to stay at home, he did not mind me but took his sword betwixt his coat and surtout. Mr. Field coming in felt it, and said he should not take it out with him; with much coaxing a woman who lived next door got it from him.
Q. Did you hear any acknowlegement by him on his death bed?
A. I was often at his bed side, and all that I ever heard him say, was, he thought he knew the man that shot him, but he never made it known to me.
Doctor John Jeffries,10 sworn.
Q. Was you Patrick Carr's surgeon?
A. I was, in company with others. I was called that evening about eleven o'clock to him, I was engaged with Mr. Paine and could not go; next morning I went; after dressing his wounds, I advised him never to go again into quarrels and riots: He said he was very sorry he did go. Dr. Lloyd who was present, turned round to me and said, Jeffries, I believe this man will be able to tell us how the affair was, we had better ask him: I asked him then how long he had been in King-street when they fired? He said he went from Mr. Field's when the bells rung, when he got to Walker's corner, he saw many persons coming from Cornhill, who he was told had been quarreling with the soldiers down there, that he went with them as far as the stocks, that he stopped { 214 } there, but they passed on: While he was standing there he saw many things thrown at the Sentry. I asked him if he knew what was thrown? He said he heard the things strike against the guns, and they sounded hard, he believed they were oyster shells and ice; he heard the people huzza every time they heard any thing strike that sounded hard: that he then saw some soldiers going down towards the Custom-house, that he saw the people pelt them as they went along, after they had got down there, he crossed over towards Warden and Vernon's shop, in order to see what they would do, that as he was passing he was shot, that he was taken up and carried home to Mr. Field's11 by some of his friends. I asked him whether he thought the soldiers would fire? He told me he thought the soldiers would have fired long before. I then asked him whether he thought the soldiers were abused a great deal, after they went down there? He said, he thought they were. I asked him whether he thought the soldiers would have been hurt, if they had not fired? He said he really thought they would, for he heard many voices cry out, kill them. I asked him then, meaning to close all, whether he thought they fired in self defence, or on purpose to destroy the people? He said, he really thought they did fire to defend themselves; that he did not blame the man whoever he was, that shot him. This conversation was on Wednesday[7 March], He always gave the same answers to the same questions, every time I visited him.
Q. Was he apprehensive of his danger?
A. He was told of it. He told me also, he was a native of Ireland, that he had frequently seen mobs, and soldiers called upon to quell them: whenever he mentioned that, he always called himself a fool, that he might have known better, that he had seen soldiers often fire on the people in Ireland, but had never seen them bear half so much before they fired in his life.
Q. How often did he repeat this conversation?
A. Almost every day I saw him, though he was more particular, the day but one after he was shot.
Q. How long did he live after he received his wound?
A. Ten days.
Q. When had you the last conversation with him?
A. About four o'clock in the afternoon, preceeding the night on which he died, and he then particularly said, he forgave the man whoever he was that shot him, he was satisfied he had no malice, but fired to defend himself.
{ 215 }
Q. Did you yourself see any of the transactions at Murray's barracks on that evening?
A. On the evening of the 5th March, I was at my father's, opposite Mr. Cooper's meeting; about nine, one of the neighbours run in, (a woman) she said to my father, pray sir come out, there will be murder, the soldiers and people are fighting: I went directly towards Murray's barracks, before I got to them I found the passage way stopped up so that I could not pass; by a number of people of all sorts, I saw no soldiers just at that minute; I got upon Dr. Hyron's steps, I saw several soldiers towards Mr. Greenleaf's, I think there were three, one of them had a pair of tongs in his hand, another had a stick I think, he was the second, he that had the tongs was the first, behind them were several officers driving the soldiers towards the barrack gate, ordering them to go in, I saw them strike them, they turned them into the gate, they then shut the barrack gate intirely, I think the officers did that themselves; as they were putting them in, there were a great many snow balls thrown at them, they were called cowards, cowardly rascals, and that they were afraid to fight.
Q. What number of people do you think were there?
A. There were as many as could stand betwixt the steps and the side of the way; I took the alley to be as full as it could be, for others were pressing to get into that street and could not; I judge not less than seventy or eighty could fill that space of ground: the officers told the people not a soldier should come out, at that time I saw a gentleman speak to some of the officers, who I then took to be Mr. Palmes, I asked the person next me if he knew the names of either of the officers? He pointed to one, and said that was Capt. Goldfinch; while the gentleman was talking with Capt. Goldfinch (it was some time, about seven or eight minutes I stood on the same spot) there was a great deal of abusive language given to them, they were repeatedly called lobsters; they promised the gentleman who was speaking to them, that if any body had been injured, enquiry should be made next day, and the persons should be punished, I heard this repeated four or five different times, they spoke also to the people in general; while they were talking I saw snow balls thrown at the officers, which struck the door before which they stood; they begged the people would go away; they said they would not; the officers said, they had done all they could, they had turned the soldiers in and shut the gate, that no soldiers should come out that evening; some body replied, you mean they dare not come out, you dare not let them out; many persons cried let us go home, others said no, we shall find some soldiers in King street, a { 216 } number of them then passed up the alley, as they went up they huzzaed and made a noise against the fences and side of the walls; I then passed up the alley myself into Cornhill, as soon as I got out of the alley I heard the Old-Brick bell ring.
Q. Did you hear Dr. Cooper's bell ring before?
A. I think not, I heard it afterwards. There were many in the street running, some with buckets enquiring where the fire was? There were many answers given in the street it is not fire, it is the soldiers fighting, I do not know from who, but from several quarters behind and before me; I went up Cornhill and saw a number of persons collected betwixt Mr. Jackson's shop and the Town-house.
Q. How many?
A. About twenty, I thought many of them were the persons that had just left the alley, I had followed them with my eye and saw them stop there, many of them had sticks, they did not use them to walk with, as they went up they flourished them about.
Q. What number of sticks did you see flourishing in that manner?
A. I thought about two-thirds of them had sticks.
Q. Was there a general cry?
A. No, the chief was huzzaing. As they went up several of them struck against Jackson's shop-windows and said, damn it, here lives an importer, others ran more towards the Town-house and took up pieces of ice and threw at Jackson's windows and broke four panes of glass, I stood and counted them; at that time Mr. Cazneau came up and said, do not meddle with Mr. Jackson, let him alone, do not break his windows, and they left of[f] throwing; the bigger part of them immediately pushed down King-street by the north side of the Town-house, others of them went betwixt the west door of the Town-house and Cornhill, and said, we will go to the guard; I then went over to the opening betwixt the south side of the Town-house and the Guard-house, to look down to see if they did stop there, at that time I heard a huzza I thought lower down King-street, it was not from any of the people I had then [in] view, these persons did not stop by the Guard-house, but run directly down King-Street; I then turned back, and returned by Cornhill through Boylston's alley, I found a small circle of people talking with the officers on the steps, about twelve; at that time Dr. Cooper's bell began to ring, one of the officers immediately cried out, pray stop that bell, I then left them and went to my father's.
Q. Did you see any person ring the bell?
A. No, I saw no person, but I saw a window open.
Q. Was any thing done to stop it?
{ 217 }
A. I saw nothing done, I had been but a little while in the house, I had just took off my cloak when the girl ran in from the kitchen, and said there is a gun fired, I replied to the company, I did not believe it, for I had seen the officers put in the soldiers and shut the gate.
Captain Edmund Mason,12 sworn.
Q. By whom is the Sentry at the Custom-house placed?
A. The Sentinel at the Custom-house is placed by order of a commanding officer, the commanding officer was then Lieut. Col. Dalrymple, by his order a Sentry was placed at the Custom-house to take care of the money in the Cashier's office, books, &c. that is the duty of a Sentinel stationed at the Custom house.
Q. Had a Sentry alternately been placed there for some months before the 5th March?
A. Yes, for many months before, ever since I came to the town, and the Sentinel there cannot stir till the commanding officer relieves him.
Q. Did you see the first order for placing the Sentinel at the commissioners office when they kept at Concert-hall?
A. I did not, I was not then in the country.
Thomas Hall, sworn.
Produced on the part of the Crown.
Q. Do you know any of the prisoners?
A. Yes, White, Killroy, Wemms, and Carrol.
Q. Did White say any thing to you on the 5th of March last?
A. Yes. I went down King-street just after the bells began to ring, and he said, Hall, I am molested and imposed on on my post, I cannot keep my post clear; Hall take care of yourself, there will be something done by and bye. I moved away to the corner of Stone's house and there stood.
Q. Were any number of people about the Sentinel at that time?
A. Yes, there were about twenty, he said he could not keep his post clear. They said he dared not fire. He cocked his gun on the steps, then he presented his gun, and they drew off again.
Q. What did he say to the people?
A. He desired them to keep off. Some were throwing snow balls, some oyster shells at him.
Q. Did you see any of them hit the Sentinel?
A. No; I saw them hit his gun two or three times; then he hollowed for the guard, and the guard came down.
{ 218 }
Q. What expression did he use?
A. He hollowed soldiers come here, and they came seven men and the officer.
Q. What followed upon that?
A. As soon as they came down the people pressed in upon them; and they pushed with their bayonets to keep them off, but did not move out of their ranks.
Q. Were any snow balls, sticks, or stones, thrown at the party after they came down? []A. No.
Q. Did the soldiers tell them to keep off?
A. Yes; but they still pressed on. Then one man fired, and I run down Royal-exchange-lane as fast as I could.
Q. How near did you stand to the party?
A. About twelve or fourteen feet off.
Q. Were there people between you and the party?
A. Yes, ten or twelve.
Q. What was the general cry?
A. Fire, fire, you dare not fire, fire and be damned.
John Stewart, sworn.
Betwixt eight and nine o'clock on the 5th of March as I was going home to Green's lane, I met five or six men with sticks in their hands, about the middle of it I met with much the same number, and at the end of it I met with much the same number.
Q. Which way were they going?
A. They were going into town towards King-street.
Captain Barbason O Hara,13sworn.
Q. Do you know Carrol one of the prisoners?
A. I have known him these four years by a particular circumstance. I landed at a battery where he was on duty, and entered into conversation with him; and I have took particular notice of him ever since.
Q. What is his general character?
A. That of a discreet sober orderly man.
Q. Do you know if a Sentinel was constantly placed at the Custom-house?
A. Yes, for several months before last March, by order from the Commanding officer.
Theodore Bliss, Carpenter, sworn.
On the evening of the 5th of March I was in my own house, be• { 219 } twixt nine and ten I heard the bells ring for fire, I went out of the house and came into King-street; I there saw the soldiers and the officer. I went to the officer and asked him if his men were loaded, he said they were; I asked him if they were loaded with ball, he made me no answer, I asked if they were going to fire, he said they could not fire without his orders; directly I saw a snow ball and stick come from behind me which struck the grenadier on the right, which I took to be Warren, he fended it off with his musket as well as he could, and immediately he fired.
Q. Where did he stand?
A. He was the first man on the right, and the third man from the officer; immediately after the first gun, the officer turned to the right and I turned to the left and went down the lane; I heard the word fire given, but whether it was the town's people or the officer, I do not know.
Q. Were any blows given to the soldiers before the firing?
A. I saw none.
Q. Were any blows given after the first and before the second gun fired? []A. No.
Q. Did you, or did you not, after the first gun was fired see a blow aimed? []A. I did not.
Q. Did you not aim a blow yourself?
A. Yes, when I was going away.
Q. How large was that stick you saw thrown?
A. About an inch diameter.
Q. Did the soldier sally or step back when the stick struck him?
A. I saw only his body, I did not see his feet.
Q. Directly on the first gun's going off, did any close in upon the soldiers, and aim a blow or blows at them?
A. I did myself, whether any one else did or not I cannot tell. When I was about three or four rod from my own house, I heard the soldiers were quarrelling with the inhabitants, some inhabitants said, We had better go and see it out.
Q. What number was coming down along with you?
A. Six or eight, in some places eight or ten, in others one after another, all the way along from the South-end; the people were saying, the soldiers were quarrelling with the inhabitants—breeding a rumpus—going to beat the inhabitants. Some said we had better go home—others lets go now and see it out—it is the best time now—and now is the only time.
Q. Had they buckets? []A. Yes.
Q. Had all of them buckets? []A. No.
{ 220 }
Q. What had the rest?
A. Some had nothing at all, some had walking canes.
Q. What was the general cry before the firing?
A. Fire, damn you, why do you not fire, you dare not fire.
Q. Are you sure it was the man nighest to the Custom-house that fired first, and that the stick struck?
A. Yes, I think I am certain of it.
Henry Bass, Merchant, sworn.
Produced on the part of the Crown.
On the evening of the 5th of March I left my house in Winter-street, and went to see a friend in the neighbourhood of Dr. Cooper's meeting. I went down the main-street, and coming near Boylston's alley, I saw a number of boys and children from twelve to fifteen years old, betwixt Mr. Jackson's and the alley; some of them had walking canes. A number of soldiers, I think four, sallied out of the alley.
Q. How many boys were there? []A. Six or eight.
Q. What time of night was it?
A. About five minutes after nine. I took the soldiers for grenadiers, all of them had cutlasses drawn.
Q. Did they come out of the barracks?
A. They came out of the alley, and I imagine from the barracks; they fell on these boys, and every body else that came in their way, they struck them; they followed me and almost over took me, I had the advantage of them and run as far as Col. Jackson's, there I made a stand, they came down as far as the stone shop.
Q. Did you see that their cutlasses were drawn?
A. Yes, it was a very bright night, these lads came down, some of them came to the Market square, one got a stave, others pieces of pine, they were very small, I do not know whether any of the lads were cut. I turned and then saw an oyster-man, who said to me, damn it here is what I have got by going up; (showing his shoulder wounded) I put my finger into the wound and blooded it very much. This oyster man made a stand, and several people got round him asking him questions.
Q. What time was this? []A. About 7 minutes after nine.
Q. Was it before the bells rung as for fire or after?
A. It was some time before. My way lay through that alley where the barracks were, but I did not think it safe to go up that way, I returned home by the way of Royal exchange-lane.
Q. When you got to Dock-square, were there a number of people there?
{ 221 }
A. This affair of the oyster-man gathered numbers, before that there were not above eight, all little lads, in a little time I imagine about twenty gathered. I passed up Royal-exchange-lane by the Sentinel, quite near him, I suppose there were not above fifteen persons in King-street, very few for such a pleasant night; it was then about fifteen minutes after nine.
Q. Where was the Sentinel?
A. Close to the corner of the Custom house, I came quite near him.
Q. Did you see no boys by him? []A. None at all.
Q. Did the bells ring then?
A. No. I went up from Royal-exchange-lane to the north-side of the Town house, and when I came there the Old Brick meeting house bell began to ring.
Q. Did this gather a great many?
A. Yes. I proceeded towards home, I met several of my acquaintance and told them there was no fire, but there had been a quarrel with the soldiers and inhabitants, but that it was all over, in pa[r]ticular I met Mr. Chase, presently after another bell rung.
Q. What bell was that? []A. Dr. Cooper's.
Q. What else did you see?
A. Nothing more. I had got to Winter street when I heard the guns fire.
Q. Did you know previous to the Old Brick bell's ringing, that it was to ring to alarm the inhabitants?
A. I did not, but after it had rung I knew it.
Q. At the time when you saw the soldiers run out of the alley, did you hear any body say there had been a great number of people at the barracks? []A. No.
Edward Paine, Merchant, sworn.
Produced on the part of the Crown.
On Monday evening the 5th March I went to Mr. Amory's, while I was there the bell rung, which I supposed was for nine o'clock, Mrs. Amory said she imagined it was fire, I looked at the clock, it was twenty minutes after nine; I was going out to enquire where the fire was, Mr. Taylor came in, he said there was no fire, but he understood the soldiers were coming up to cut down Liberty-tree; I then went out to make enquiry, when I came out of the door, before I had got into King-street, I met Mr. Walker the ship carpenter, I asked him what the matter was? He said the sol[di]ers had sallied out from Smith's barracks, and had fell on the inhabitants, and had cut and wounded a { 222 } number of them, but that they were drove into the barracks: I then went to my house to inform Mrs. Payne that it was not fire, apprehending she might be frightned; I immediately went out again, and when I came into the street, there was nobody in the street at all; the Sentry at the Custom House was walking by himself as usual, nobody near him; I went up towards the Town house, and stood by the watch-house, where were a number of people, I enquired of them what the matter was? They gave me the same account Mr. Walker did. While I stood there, I heard a considerable noise in Cornhill, and presently I heard a noise of some people coming up Silsby's-alley, at first I imagined it was soldiers coming up that alley, and had some thoughts of retiring up the Town-house steps, but soon found they were inhabitants, I stood till they came up to me, I believe there might be twenty at the extent, some of the persons had sticks, some had not, I believe there were as many with sticks as without, they made a considerable noise, and cried, where are they? Where are they? At this time there came up a barber's boy and said the Sentry at the Custom house had knocked down a boy belonging to their shop; the people then turned about and went down to the Sentry; I then was left as it were alone: I proceeded towards my own house, when I had got about half way, I met Mr. Spear the cooper, he said, Mr. Payne do not go away, I am afraid the Main-guard will come down; I told him I was more afraid of those people that had surrounded the Sentry, and desired him if he had any influence over them to endeavour to take them off; I then proceeded towards my own house, and when I got as far as Mr. Davis's, directly opposite to the Custom-house: I saw a number of persons going up the steps at the Custom-house, and heard a violent knocking at the door, the Sentry stood by the box as I took it, I stopt to see if they opened the Custom house door to let them in, I found they did not open the door; I then retired to my own house, and stood on the sill of my door.
Q. Was there noise by the Sentry?
A. Yes, a confused noise, five or six were upon the steps, I remained at my door, and Mr. Harrison Gray came up and stood there talking with me; the people were crying out fire! fire! Damn you, why do you not fire?
Q. Was this before the soldiers came down?
A. Yes. Mr. Gray and I were talking of the foolishness of the people in calling the Sentry to fire on them; in about a minute after, I saw a number of soldiers come down from the Main guard, and it appeared to me they had their muskets in a horizontal posture, they went towards { 223 } the Custom house, and shoved the people from the house, I did not see in what manner they drew up: at this time Mr. Bethune joined us on my steps at the door, and the noise in the street continued much the same as before, fire! fire! Damn you, fire! why do you not fire? Soon after this, I thought I heard a gun snap, I said to Mr. Gray, there is a gun snapped, did you not hear it? He said yes; immediately a gun went off, I reached to see whether it was loaded with powder, or any body lying dead, I heard three more, then there was a pause, and I heard the iron rammers go into their guns, and then there was three more discharged, one after another; it appeared to me there were seven in all, as soon as the last gun was discharged I perceived I was wounded, and went into the house.
Q. Was it the last gun wounded you?
A. I do not know, I did not feel it before the last gun went off.
Q. Did you see any body throw any thing at the soldiers?
A. No, I was not near enough to see whether the people struck or threw any thing at the soldiers.
Q. How many people were about them?
A. From fifty to an hundred.
Q. Were they near to them? []A. Pretty nigh.
Q. Could you see all the soldiers? []A. Yes.
FIVE o'clock, p.m. the Court adjourned till Monday morning [3 December], nine o'Clock.14
1. Wemms Trial 101–134.
2. That is, belonging to the guard at the fortification across Boston Neck at what is now the intersection of Dover and Washington streets.
3. Most of the drummers were Negroes. Everard, History of the 29th Regiment 55.
4. See Rex v. Preston, note 454.
5. A colorful Boston justice of the peace. See 2 JA, Diary and Autobiography45–46.
6. Presumably Justice of the Peace Edmund Quincy.
7. Edward Pain, or Payne, lived almost directly opposite the Custom House. See The Revere Plan of The Boston Massacre Scene, by Paul Revere facing page 68Revere Plan.
8. The man who had helped rescue James Otis in the fracas of 5 Sept. 1769. See 11 Sibley-Shipton, Harvard Graduates 278.
9. Although the meaning of this expression is clear from what follows, the editors are ignorant of its origin.
10. (1745–1819), Harvard 1763, émigré, in 1785 became the first man (with his companion, Blanchard) to fly—by balloon—across the English Channel. See 1 Sabine, Loyalists 573; DAB. He was the Adamses' family physician during their London sojourn in the 1780's (see 3 JA, Diary and Autobiography203 note) and returned to Boston in 1790. Stark, Loyalists of Mass. 395. There is some evidence that his prewar practice suffered on account of his testifying on behalf of the soldiers. Jones, Loyalists of Mass. 180.
11. Carr “worked with a Mr. Field, a leather-breeches-maker in Queen Street.” Drake, History and Antiquities of Boston 782.
12. Captain in the 14th Regiment. Army List 1770 68.
13. Captain in the 14th Regiment. Army List 1770 68.
14. “More Evidence offered by Crown to prove Threats and Behaviour of Soldiers, but time would not admit and therefore agreed there was reason for going armed and coming out that night.” Paine Massacre Notes.

Docno: ADMS-05-03-02-0001-0004-0014

Author: Adams, John
DateRange: 1770-11-29 - 1770-12-01

Adams' Digest of Evidence1

29 November–1 December 1770

Evidence of Commotions that Evening.
James Crawford. Went home to Bulls Wharf at dark about 6 O Clock. Met Numbers of People, going down towards the Town House, with sticks. A[t] Calfs Corner, Saw above a dozen with sticks. In Quaker Lane and Greens Lane met many, going towards K[ing] S[treet]. Very great Sticks, pretty large Cudgells, not common Walking Canes.
Archibald Gould. Going to Crawfords at Bulls Wharf. At 8, at Swing Bridge, the People were walking from all Quarters with Sticks, { 224 } that I was afraid to go Home. Went thro Greens Lane, and met many People, the Street in such Commotion, as I hardly ever saw in my Life. Uncommon Sticks, such as a Man would pull out of an Hedge. At Hancocks Wharfe when the Bells began to ring. Mem. It must have been later.
<Archibald Wilson, William Hunter, David Mitchelson, James Selkrigg, Archibald Bowman, Wm. Dixon, 6 of em were all at one House at Mr. Hunters, and all agree in their general account. And with em concurs B. Davis.>
John Gillespie. At 7 went up to the S[outh] End to Mr. Silvester's. Met 40 or 50, with white Sticks, in small Parties of 4 or 5 in a Party. This was thro the main Street.
Thos. Knight. At his own Door. 8 or 10 passed with Sticks or Clubbs, and one of em said d—n their Bloods let us go and attack the main Guard first, the Bell ringing. One of em made a Pause, and said, let us go and get our Guns or I'le go and get my Gun. Went in and told his Wife he believd there would be bloodshed. This also was in the main Street.
Nat. Russell vid.
Mem. If these Witnesses are believed, People were in Motion both in the main Street leading from the Town H[ouse] towards the S[outh] End, and in Quaker Lane, and Greens Lane.
Archibald Wilson, Hunter, Mitchelson, Selkrig, Bowman, Dixon. 6 of em were all at one House at Mr. Hunters in Dock Square and all agree in their general Account, tho they dont all [rememb]er the same Circumstances. Their general Account is [that] many People came from the N[orth] End and assembled in D[ock] Square, made Several Attempts in small Parties at Murrays Barracks but came running hastily back, as if driven back by the Soldiers. Many had Staves, tho many had none. After some time there appeard among em a Gentleman with a red Cloak and a white Wigg. He made a Speech to em of 4 or 5 minutes. Then they proposed to go to K. Street and attack the main Guard, and the Effect immediately followed. One Party under one Leader went round and up Cornhill, another Party up r[oyal] exchange Lane, and a 3d up Silsbys Alley. And several proposed to cry fire. Fire was cryed, several Times, and the Bells soon after rung.
In Confirmation of the Testimonies of these 6 Scotch Gentlemen we have the Testimonies of Shubael Hewes and B. Davis.
Mr. Hewes, Says he was in D. Square. Saw by the Markett a Number coming from the N[orth] E[nd]. A Number of Lads, came along, and tryed to pull out, and break the Leggs of the Stalls. 6 or 7 of em, cant say exactly the Number.
{ 225 }
Mr. Davis says. A Number came 3 or 4 and cryd where are any Clubbs, or Cordwood Sticks, cryd Fire, Fire, Fire.
This Assembly of People in D. Square was undoubtedly a Riot. In those I mean, to set off for K.S. to attack the main Guard this was an unlawful Design, and End.
Dr. Hyrons very particular. Vid. page 26.2
Captn. Gold finch—page 28.
Patrick Keeton page 30.
Wm. Davis. page 21.
Benja. Lee. page 34.
John Frost 34.
John Ruddock Esqr.
Greg. Townsend Esqr. 37.
James Thompson 29.
McCauley.—Jona. W. Austin.3
Hartegan.—J. Danbrook. J. Simpson.
Carrol.—J. Bailey. Danbrook.
Wemms.—E. Bridgman. J. Simpson.
Kilroy.—E. G. Langford. F. Archbald. J. Brewer, Ferriter and Hemenway.
White.—S. Clark. E. G. Langford. J. Bailey. J. Simpson.
Montgomery.—J. Bailey. R. Palmes. J. Danbrook. J. Bass. Thos. Wilkinson.
Warren.—E. Bridgman. J. Dodge. J. Simpson. Ferriter.
Attack, Assault and Insult. Crown Witnesses
E. Bridgman. A Number of Things, Ice or Snow, thrown, Sticks struck the Guns. About 12 with Sticks, surrounded the Party and struck their Guns with their Sticks several Blows, when the Soldiers were loading. The People went up quite to them with in the length of their Guns, before the firing. Number were coming down by the Town House. Call'd em cowardly Rascalls. Dared em to fire. All the Bells rung. The ratling of a Blow before the firing very violent.
J. Dodge. About 50 People [very?] near the Soldiers. Ice and snow Balls thrown, Sticks rattled upon their Guns. The Balls seemed to come from close before em.
{ 226 }
J. Bailey. The Boys hove Pieces of Ice at Sentry as big as your fist, hard and large enough to hurt a Man.
Montgomery was knocked down, and his Musquet fell out of his Hand, by a Clubb or Stick of Wood by one of the Inhabitants, and as soon as he got up he fired. The Clubb was not thrown but I saw him struck with it. He fell down and the Gun fell out of his Hand. The Blow was very violent.
R. Palmes. Saw a Piece of Ice or Snow, or something white strike Montgomerys Gun. It struck the Grenadier and made a Noise. He fell back and fired.
J. Danbrook. Saw a little Stick flyover their Heads, a Piece of a rattan or some such Thing.
J. Bass. Saw a Stick knocked to knock up Montgomerys Gun. It knocked it up 5 or 6 Inches.
J. Simpson. Saw one Man going to throw a Clubb, but he did not. Saw one Clubb, thrown in to the Soldiers. It hit one of the Soldiers Guns, I heard it Strike. The Person that threw it stood 10 Yards from the soldiers. The Stick was thrown 1 or 2 seconds before the 1st. Gun, a white birch Cordwood Stick, an inch thick.
B. Burdick. Had an highland broad Sword in my Hand. I struck at the Soldier who pushed at me, and had I struck 2 or 3 Inches farther, I should have left a Mark that I could have Sworn to. I struck the Cock of his Gun. Saw a short Stick thrown about 2 or 3 foot long. Heard a Ratling.
R. Williams. Saw the People some huzzaing, some whistling. Somebody said dont press upon the Guard, The People seemed to be pressing. Saw some snow Balls thrown.
Assault upon the Sentry.4
1. Adams Massacre Minutes, MBMS, final portion. See Descriptive List of Sources and Documents.
2. The numbers, it is clear from an examination of the MS, refer to then numbered pages of JA's trial minutes, in this instance MHiMS 3, Doc. XII above.
3. This and the next seven brief paragraphs represent JA's defendant-by-defendant breakdown of the testimony with respect to the actual firing. Paine also made one, as did juror Edward Pierce and an unidentified contemporary. See Paine Massacre Notes, Pierce Notes (printed in note 4247 below), and Oliver Papers MHi (not printed here).
4. This caption appears at the head of an otherwise blank leaf in JA's Massacre Minutes, MBMS.

Docno: ADMS-05-03-02-0001-0004-0015

Author: Quincy, Josiah Jr.
Date: 1770-12-03

Josiah Quincy's Argument for the Defense1

3 December 1770

Monday[3 December], NINE o' Clock, the Court met according to adjournment, and proceeded.
Mr. Josiahm Quincy, junr.
May it please your Honours, and you Gentlemen of the Jury,
We have at length gone through the evidence in behalf of the { 227 } prisoners. The witnesses have now placed before you, that state of facts, from which results our defence. The examination has been so lengthy, that I am afraid some painful sensations arise, when you find that you are now to sit and hear the remarks of council. But you should reflect, that no more indulgence is shown to the Prisoners now on trial, than has ever been shown in all capital causes: the trial of one man has often taken up several days; when you consider, therefore, that there are eight lives in issue, the importance of the trial will show the necessity of its length. To each of the prisoners different evidence applies, and each of them draw their defence from different quarters.
I stated to you, Gentlemen, your duty, in opening this cause—do not forget the discharge of it. You are paying a debt you owe the community for your own protection and safety: by the same mode of trial are your own rights to receive a determination; and in your turn, a time may come, when you will expect and claim a similar return from some other jury of your fellow subjects.
In opening, I pointed out the dangers to which you were exposed; I trust your own recollection will now preclude a recapitulation of them. The reasons of what I then said, I trust have in some measure appeared: the propriety of some of those observations has been corroborated by succeed evidence; and you must have traced yourselves, some of those consequences, turning out in evidence, which have had an intimate relation, if not their origin, with some or all of those opinions, notions, sentiments or passions (call them what you will) which I took occasion to observe, as clues, aids, and leading-strings, in our intended examination and decision.
How much need was there for my desire, that you should suspend your judgment till the witnesses were all examined? How different is the complexion of the cause? Will not all this serve to show every honest man, the little truth to be attained in partial hearings? We have often seen communities complain of ex parte testimonies: individuals, as well as societies, of men, are equally susceptible of injuries of this kind: this trial ought to have another effect, it should serve to convince us all, of the impropriety, nay injustice, of giving a latitude in conversation upon topicks, likely to come under a judicial decision; the criminality of this conduct is certainly inhanced, when such loose sallies and discourses are so prevalent as to be likely to touch the life of a citizen. Moreover there is so little certainty to be obtained by such kind of methods, I wonder we so often find them practiced. In the present case, how great was the prepossession against us? And I appeal to you, Gentlemen, what cause there now is to alter our sentiments. { 228 } Will any sober, prudent man countenance the proceedings of the people in King street—can any one justify their conduct—is there any one man, or any body of men, who are interested to espouse and support their conduct? Surely no. But our enquiry must be confined to the legality of their conduct: and here can be no difficulty. It was certainly illegal, unless many witnesses are directly perjured: Witnesses who have no apparent interest to falsify—witnesses, who have given their testimony with candor and accuracy—witnesses, whose credibility stands untouched—whose credibility, the council for the king, do not pretend to impeach; or hint a suggestion to their disadvantage.
I say, Gentlemen, by the standard of the law are we to judge the actions of the people who were the assailants, and those who were the assailed, and then on duty. And here, Gentlemen, the rule, we formerly laid down, takes place. To the facts, Gentlemen, apply yourselves. Consider them as testified: weigh the credibility of the witnesses—balance their testimony—compare the several parts of it—see the amount of it: and then according to your oaths “Make true deliverance according to your evidence.” That is Gentlemen, having settled the facts, bring them truely to the standard of the law; the king's judges who are acquainted with it, who are presumed best to know it, will then inspect this great standard of right and wrong, truth and justice; and they are to determine the degree of guilt to which the fact rises.
But before we come to those divisions of enquiry, under which I intend to consider the evidence, let me once more carefully distinguish between the transactions in Cornhill and those by the Custom House.
The conduct of the soldiers in Cornhill may well be supposed to have exasperated the minds of all who beheld their behaviour. Their actions accumulated guilt as it flew—at least, we may well suppose, the incensed people who related them, added new colours to the scene. The flame of resentment imperceptibly enkindles, and a common acquaintance with human nature will shew, that it is no extravagant supposition, to imagine many a moderate man might at such a season, with such sentiments, which I have more than once noticed;—hearing such relations and complaints; I say do I injure any one, in supposing, that under all these circumstances, a very moderate person, who in ordinary matters acted with singular discretion, should now be drawn imperceptibly away, or rather transported into measures, which in a future moment he would condemn and lament. What more natural supposition, than to suppose many an honest mind might at this { 229 } time fluctuate thus. The soldiers are here—we wish them away: we did not send for them—they have cut and wounded the peaceable inhabitants, and it may be my turn next. At this instant of time, he has a fresh detail of injuries—resentment redoubles every successive moment—huzza! for the Main-guard: we are in a moment before the Custom House. No time is given for recollection. We find, from the king's evidence, and from our own, the cry was “Here is a soldier!” Not here is the soldier who has injured us—here is the fellow who wounded the man in Cornhill. No, the reasoning or rather ferment seems to be, the soldiers have committed an outrage, we have an equal right to inflict punishment—or rather revenge, which they had to make an assault. They said right, but never considered that, those soldiers had no right at all. These are sentiments natural enough to persons in this state of mind—we can easily suppose even good men thinking and acting thus. Very similar to this is the force of Dr. Hirons's testimony, and some others. But our enquiry is—What says the law? We must calmly enquire, whether this, or any thing like it, is countenanced by the law. What is natural to the man, what are his feelings are one thing: what is the duty of the citizen is quite another. Reason must resume her seat—and then we shall hear, and obey the voice of the law.
The law indulges no man in being his own avenger. Early, in the history of jurisprudence, we find the sword taken from the party injured, and put into the hands of the magistrate. Were not this the case, punishment would know no bounds in extent or duration. Besides, it saps the very root of distributive justice, when any individual invades the prerogative of law, and snatches from the civil magistrate the balance and the rod. How much more are the pillars of security shaken, when a mixt body, assembled as those in King street, assume the province of justice, and invade the rights of the citizen? For it must not be forgot, that the soldier is a citizen, equally in titled with us all to protection and security. Hence all are alike obliged to pay obedience to the law: For the price of this protection is that of obedience.
Let it not be apprehended, that I am advancing a doctrine, that a soldier may attack an inhabitant, and he not allowed to defend himself. No Gentlemen! if a soldier rush violently through the street and presents a weapon of death, in a striking posture; no doubt the person assailed may defend himself, even to taking the life of the assailant. Revenge and a sense of self preservation instantly take possession of the person thus attacked; and the law goes not upon the absurd suppo• { 230 } sition, that a person can in these circumstances, unman himself. Hence we find a husband, taking his wife in the act of adultery, instantly seizes a deadly weapon and slays the adulterer;—it is not murder. Nay a fillip upon the nose or forehead, in anger, is supposed by the law to be sufficient provocation to reduce killing to Manslaughter. It is, therefore, upon principles like these, principles, upon which those, who now bear the hardest against us, at other times, so much depend; it is, I say, upon the right of self-defence and self-preservation we rely for our acquittal.
Here again it should be kept in view, that whenever the party injurying has escaped by flight, and time sufficient for the passions to cool, in judgment of law, hath elapsed; however great the injury, the injured party must have recourse to law for his redress. Such is the wisdom of the law; of that law, than which we are none of us to presume ourselves wiser; of that law, which is foun[d]ed in the experience of ages, and which in condescension to the infirmities of flesh and blood (but to nothing else) extenuates the offence. For “no man, says the learned Judge Foster, under the protection of the law is to be the avenger of his own wrongs. If they are of such a nature for which the laws of society will give him an adequate remedy, thither he ought to resort. But be they of what nature soever, he ought to bear his lot with patience, and remember, that vengeance belongeth to the Most High.” Crown Law 296.2 Now, Gentlemen, those, whoever they were, who committed the outrage in Cornhill, had absconded— the soldiers, who are supposed to have done them, were confined in their barracks. People were repeatedly told this, and assured by the military officers, that they should not go unpunished. But what followed? Are all present appeased? We are constrained, by the force of the evidence, to affirm they were not. But to get regular and right ideas, we must consider all the commotions of the season, and endeavour to come at truth by analyzing the evidence, and arranging it, under distinct heads of enquiry.
Mr. Quincy now entered, at large, upon a review of the appearances in several parts of the town: he was copious upon the expressions and behaviour sworn to.
He, then, more particularly recapitulated the evidence touching Murray's Barracks, Dock-square, and the Market-place.3
{ 231 }
He next pursued several parties, through the several lanes and streets, till they centered at the scene of action.
The testimonies of the witnesses, who swore to the repeated information given the people;—that the Sentry and party were on duty;—that they were desired to withdraw and warned of the consequences;—were in their order considered.4
Under the next three heads, was remarked “the temper of the Sentry, of the party of soldiers, and of the people surrounding them.”
The words, insult and gestures of the same persons were next pointed out: and from thence was collected the designs of the persons assaulting, and the reasonable apprehensions of those assaulted.5
Mr. Quincy then came to the attack itself;—considering who the persons were(namely some sailors;) remarking minutely the words and actions immediately preceeding the on set; the weapons used; the violence of the assault and battery; and the danger of the soldiers.6
Mr. Quincy next exhibited those parts of the testimonies, which evidenced the attack continued after the firing.7
Under all these heads, there was methodically stated the number of the witnesses to each point, and by a comparative view of all the proofs, conclusions drawn as to the force of the whole.
The next consideration, in this mode of enquiry, was the evidence as severally pertaining to each prisoner; with such observations, on the one hand, as served to shew a defect of legal proof as to fact; on the other, such matters served to justify, excuse or extenuate the offence, in law.8
And particularly with regard to Killroy,9 Mr. Quincy cited and commented on the following passages from Judge Foster's Crown law, and the Marquiss of Beccaria's Essay on Crimes and punishments.
{ 232 }
“WORDS are often misrepresented, whether through ignorance, in attention, or malice, it mattereth not the defendant, he is equally effected in either case; and they are extremely liable to misconstruction. And with all, this evidence is not in the ordinary course of things to be disproved by that sort of negative evidence by which the proof of plain facts may be and often is confronted.” Crown Law, 243.10
“Finally, the CREDIBILITY of a witnesses is NULL, when the question relates to the WORDS of a criminal; for the tone of voice, the gesture, all that preceds, accompanies and follows the different ideas which men annex to the same words, may so alter and modify a man's discourse, that it is almost impossible to repeat them precisely in the manner in which they were spoken. Besides, violent and uncommon actions, such as real crimes, leave a trace in the multitude of circumstances that attend them, and in their effects; but Words remain only in the memory of the hearers, who are commonly negligent or prejudiced. It is infinitely easier then to found an accusation on the Words, than on the actions of a man; for in these, the number of circumstances, urged against the accused, afford him variety of means of justifications.” Essay 48, 9.11
May it please your Honours, and you Gentlemen of the Jury,
After having thus gone through the evidence, and considered it as applicatory to all and every of the prisoners, the next matter in order seems to be the consideration of the law pertinent upon this evidence.
And here, Gentlemen, let me again inform you, that the law which is to pass upon these prisoners, is a law adapting itself to the human speices, with all their feelings, passions and infirmities; a law which does not go upon the absurd supposition, that men are stocks and stones; or that in the fervour of the blood, a man can act with the diliberation and judgment of a philosopher. No Gentlemen:—the law supposes that a principle of resentment, for wise and obvious reasons, is deeply implanted in the human heart; and not to be eradicated by the efforts of state policy. It, therefore, in some degree conforms itself to all the workings of the passions, to which it pays a great indulgence, so far as not to be wholly incompatible, with the wisdom, good order and the very being of government.
Keeping therefore this full in view, let us take once more, a very { 233 } brief and cursory survey of matters supported by the evidence. And, here, let me ask sober reason—What language more approbrious—What actions more exasperating, than those used on this occasion? Words, I am sensible are no justification of blows, but they serve as the grand clues to discover the temper and the designs of the agents: they serve also to give us light in discerning the apprehensions and thoughts of those who are the objects of abuse.
“You lobster,” “You bloody-back,” “You coward,” and “You dastard,” are but some of the expressions proved.—What words more galling? What more cutting and provoking to a soldier? To be reminded of the colour of his garb, by which he was distinguished from the rest of his fellow citizens; to be compared to the most despicable animal, that crawls upon the earth, was touching indeed a tender point, To be stigmatized with having smarted under the lash, at the halbert,12 to be twitted with so in famous an ignominy; which was either wholly undeserved, or a grievance which should never have been repeated:—I say to call up and awaken sensations of this kind, must sting even to madness. But accouple these words with the succeeding actions,—“You dastard,” “You coward!”—A soldier and a coward! This was touching, (with a witness) “The point of honour, and the pride of virtue.” But while these are as yet fomenting the passions, and swelling the bosom, the attack is made: and probably the latter words were reitterated at the onset; at lest, were yet sounding in the ear. Gentlemen of the jury, for heaven's sake, let us put ourselves in the same situation!13 Would you not spurn at that spiritless institution of society, which tells you to be a subject at the expence of your manhood?
But does the soldier step out of his ranks to seek his revenge? Not a witness pretends it: Did the people repeatedly come within the points of their bayonets, and strike on the muzzels of the guns?—You have heard the witnesses.
Does the law allow one member of the community to behave in this manner towards his fellow citizen, and then bid the injured party be calm and moderate? The expressions from one party were “Stand off—stand off”—“I am upon my station”—“if they molest me upon my post, I will fire.”—“By God I will fire!”—Keep off!” These were words likely to produce reflection and procure peace. But had the words on { 234 } the other hand a similar tendency? Consider the temper prevalent among all parties at this time. Consider the then situation of the soldiery; and come to the heat and pressure of the action. The materials are laid, the spark is raised, the fire in kindles, the flame rages, the understanding is in wild disorder, all prudence and true wisdom are utterly consumed. Does common sense, does the law expect impossibilities? Here to expect equanimity of temper, would be as irrational, as to expect discretion in a mad man. But was any thing done on the part of the assailants, similar to the conduct, warnings and declarations of the prisoners? Answer for yourselves, Gentlemen. The words reiterated, all around, stabbed to the heart, the actions of the assailants tended to a worse end; To awaken every passion of which the human breast is susceptible. Fear, anger, pride, resentment, revenge, alternately, take possession of the whole man. To expect, under these circumstances, that such words would asswage the tempest, that such actions would allay the flames—You might, as rationally, expect the inundations of a torrent would suppress a deluge; or rather, that the flames of Etna would extinguish a conflagration!
Prepare, Gentlemen of the Jury, now to attend to that species of law, which will adapt itself to this trial, with all its singular and aggravating circumstances. A law full of benignity, full of compassion, replete with mercy.
And here, Gentlemen, I must, agreeable to the method we formerly adopted, first tell you by what law the prisoners are not to be tried, or condemned. And they most certainly are not to be tried by the Mosaic law: a law, we take it, peculiarly designed for the government of a peculiar nation, who being in a great measure under a theocratical form of government, it's institutions cannot, with any propriety, be adduced for our regulation in these days. It is with pain, therefore, I have observed any endeavour to mislead our judgment on this occasion; by drawing our attention to the precepts delivered in the days of Moses; and by disconnected passages of Scriptures, applied in a manner foreign to their original design or import, there seems to have been an attempt to touch some peculiar sentiments, which we know are thought to be prevalent; and in this way, we take it, an injury is like to be done, by giving the mind a biass, it ought never to have received; because it is not warranted by our laws.
We have heard it publicly said of late, oftener, than formerly, “Whoso ever shedeth man's blood, by man shall his blood be shed.” This is plainly, Gentlemen, a general rule, which, like all others of the kind must have its exceptions. A rule, which if taken in it's strict { 235 } litteral lattitude, would imply, that a man killing another in self-defence, would incur the pains of death. A doctrine, which no man in his senses would ever embrace: a doctrine that certainly never prevailed under the Mosaical institution. For we find, the Jews had their six cities of refuge, to which the mans layer might flee, from the avenger of blood.14 And something analogous to this, (if it did not originate from it) is our benefit of clergy.
And so, that “the murderer shall flee to the pit” comes under the same consideration. And when we hear it asked, as it very lately has been, “Who DARE slay him?” I answer, if the laws of our country slay him, you ought to do likewise; and every good subject dares to do what the law allows. But the very position is begging the question: for the question, now in issue, is, whether either of the prisoners is a murderer, in the sense of our laws; for you recollect, that what is murder and what not, is a question of law, arising upon facts stated and allowed.
But to go on; “You shall take no satisfaction for the life of a murderer, which is guilty of death.”15 Here again, is a begging the question; and more over the words “guilty of death,” if rightly rendered from the original, must be one of those general rules, I just now mentioned; which always have their exceptions. But those words seem to be wrong translated: for in the margin of our great bible, we find them rendered “faulty to die.” Against a position of this kind we have no objection. If we have committed a fault, on which our laws inflict the punishment of death, we must suffer. But what fault we have cummitted you are to enquire: or rather you, Gentlemen, are to find the facts proved in Court against us, and the Judges are to see and consider what the law pronounces touching our offence, and what punishment is there by inflicted as a penalty.
In order to come at the whole law resulting from the facts which have been proved, we must enquire into the LEGALITY of the assemblies. For such is the wisdom and policy of the law, that if any assembly be lawful, each individual of that assembly is answerable only for his own act, and not for any other. On the contrary, if an assembly be unlawful, the act of any one of the company, to the particular purpose of assembling, is chargeable on all. This is law, which no lawyer will dispute; it is a law founded in the security of the peace of society, and however little considered, by people in general, it ought now steadily to be kept in mind.
Was the assembly of the soldiers lawful?
{ 236 }
For What did the soldiers assemble?
Was the Sentinel insulted and attacked?
Did he call for assistance, and did the party go to assist him?
Was it lawful for them so to do?
Was the soldiers when thus lawfully assembled, assaulted, &c. by a great number of people assembled, &c.
Was this last assembly lawful?
Was any thing done by this unlawful assembly, that will, in law, justify, excuse, or extenuate the offence of killing, so as to reduce it to manslaughter?
  {   justifiable,     {   Or rather was it justifiable self-defence?  
Was the killing   excusable,     {   Or rather was it self defence culpable,—but through the benignity of the law excusable?  
    Or felonious?      
If felonious, was it   {   with or without   }     Malice?  
Under each of these heads of enquiry, in their order, Mr. Josiah Quincy arranged his arguments; and as he separated and compared, and settled the facts, he applied his law, with explanatory comments. In the course of which he necessarely run over again facts, that had been before noticed, which occasions our omission of this part of his defence. But for the sake of those, who would chuse to inspect, at their leisure, the authorities. They are here subjoined in the order in which they were cited.16
{ 237 }
Hawkin's Vol. II. p.29.17 9. ibid.18 —Mutiny Act p. 115, 116, 117, 118 §78. 8.19—Blackstone's Com. Vol. I. p. 147, 262, 335, 33620 —Blackstone Vol. IV. p. 194, 19521—3d Institute p. 51. 5722— Blackstone Vol. IV. p. 191, 19223—Foster's Crown Law 276, 277, 278, 262, 25724—Blackstone Vol. IV. p. 200 top.25
Blackstone Vol. IV. p. 180, 28026—Foster's Crown Law p. 29827—3d Institute, 56 top28—Hawkins Vol. I. 75—ibid. 71 bot. ibid. 72 top29—Foster's Crown Law 273, 274.30—Keil. 128, 129, 51.31
Foster's Crown Law 278. 277. 276. 295.32
{ 238 }
Blackstone Vol. IV p. 19133—Foster's Crown Law p. 27734—Blackstone Vol. IV. p. 19235—Foster's Crown Law p. 298. 296. 29236— 3d Institute p. 55 bot.37—Hawkins Vol. I. p. 82 bot., 84 mid.38— Hawkins pleas of the Crown Vol. I. p. 48439—Hawkins Vol. I. 85 mid.40—Cro. Car. p. 537 Cooks case41—Hale Vol. II. p. 27442— Blackstone Vol. IV. p. 18343—Hawkins Vol. I. p. 82 bot.44—Keil.p. 135 bot.45
Foster p. 261, 26246—Blackstone Vol. IV. p. 2747—Hawkins Vol. I. p. 84 §4448—Foster p. 350 §5.49
Hawkins Vol. I. Chap. 31, §2150—cites Bulstrode p. 86, 8751— Keil. p. 5152—Lord Bacon's Elem. 25.53
The law laid down, in Foster, 261, 2. before cited, being indisputable law, not denied or controverted; and being very material in the trial, and much relied on by the prisoners, is here set down at large.
“I will mention a case, (says the learned Judge,) which through the ignorance or lenity of juries hath been sometimes brought within the { 239 } rule of accidental death. It is where a blow aimed at one person lighteth upon another and killeth him. This, in a loose way of speaking, may be called accidental with regard to the person who dieth by a blow not intended against HIM. But the law considereth this case in a quite different light. If from circumstances it appeareth that the injury intended to A. be it by poison, blow, or ANY OTHER MEANS OF DEATH, would have amounted to murder, supposing him to have been killed by it, it will amount to the same offence if B. happeneth to fall by the same means. Our books say, that in this case the malice egreditur personam. But to speak more intelligibly, where the injury intended against A. proceeded from a wicked, murderous, or mischievous motive, the party is answerable for all the consequences of the action, if death ensues, from it, though it had not its effect upon the person whom he intended to destroy. The malitia I have already explained, the heart regardless of social duty DELIBERATELY bent upon mischief, consequently the guilt of the party is just the same in the one case as the other. On the other hand, if the blow intended against A. and lighting on B. arose from a sudden tra[n]sport of passion which in case A. had died by it, would have been reduced to manslaughter, the fact will admit of the SAME ALLEVIATION if B. should happen to fall by it.” To the same effect are other authorities.
May it please your Honours, and you Gentlemen of the Jury.
I have now gone thro' those authorities in law, which I thought pertinent to this trial. I have been thus lengthy, not for the information of the Court, but to satisfy you, Gentlemen, and all who may chance to hear me, of that law, which is well known to those of us, who are conversant in courts, but not so generally known, or attended to, by many, as it ought to be. A law which extends to each of us, as well as to any of the prisoners; for it knows no distinction of persons.
And the doctrines which have been thus laid down are for the safe-guard of us all. Doctrines which are founded in the wisdom and policy of ages; which the greatest men, who ever lived, have adopted and contended for. Nay, the matter has been carried, by very wise men, much further than we have contested for. And that you may not think the purport of the authorities read, are the rigid notions of a dry system, and the contracted decisions of municipal law, I beg leave to read to you a passage from a very great, theoretic, writer: a man whose praises have resounded through all the known world, and probably will, through all ages, whose sentiments are as free air, and who has done as much for learning, liberty, and mankind, as any of the Sons of { 240 } Adam; I mean the sagacious Mr. Locke: He will tell you, Gentlemen, in his Essay on Government, p. 2. c. 3. “That all manner of force without right puts man in a state of war with the aggressor; and of consequence, that, being in such a state of war, he may LAWFULLY KILL him, who put him under this unnatural restraint.”54 According to this doctrine, we should have nothing to do, but enquire, whether here was “force without right:” if so, we were in such a state, as rendered it LAWFUL to KILL the aggressor, who “put us under so unnatural a restraint.” Few, I believe, will say, after hearing all this evidence, that we were under no “unnatural restraint.” But we don't want to extend matters so far. We cite this author to show the world, that the greatest friends to their country, to universal liberty, and the immutable rights of all men, have held tenets, and advanced maxims favourable to the prisoners at the bar. And although we should not adopt the sentiments of Mr. Locke in their most extensive latitude, yet there seems to be something very analogous to his opinion, which is countenanced in our laws.
There is a spirit which pervades the whole system of English jurisprudence, which inspires a freedom of thought, speech and behaviour. Under a form of government like ours, it would be in vain to expect, that pacific, timid, obsequious, and servile temper, so predominant in more despotic governments. From our happy constitution there results it's very natural effects—an impatience of injuries, and a strong resentment of insults: (and a very wise man has said, “He who tamely beareth insults inviteth injuries.”)55 Hence, I take it, that attention to the “feelings of humanity”—to “humanity and imperfection”—“the infirmities of flesh and blood;” that attention to “the indelible rights of mankind;”—that lenity to “the passions of man;” that “benignity and condescention of the law” so often repeated in our books.
And, indeed, if this were not the case, the genius of our civil constitution and the spirit of our municipal law would be repugnant:—that prime defect in any political system—that grand solecism in state-policy.
Gentlemen of the Jury,
This cause has taken up much of your time, and is likely to take up { 241 } so much more, that I must has ten to a close: indeed I should not have troubled you, by being thus lengthy, but from a sense of duty to the prisoners; they, who, in some sense, may be said to have put their lives in my hands; they whose situation was so peculiar, that we have necessarily taken up more time, than ordinary cases require: they, under all these circumstances, placed a confidence, it was my duty not to disappoint; and which I have aimed at discharging with fidelity. I trust you, Gentlemen, will do the like: that you will examine and judge with a becoming temper of mind; remembering that they who are under oath to declare the whole truth, think and act very differently from by-standers, who, being under no ties of this kind, take a latitude, which is by no means admissible in a court of law,
I cannot close this cause better, than by desiring you to consider well the genius and spirit of the law, which will be laid down, and to govern yourselves by this great standard of truth. To some purposes, you may be said, Gentlemen, to be Ministers of justice: and “Ministers” (says a learned Judge) “appointed for the ends of public justice, should have written on their hearts the solemn engagements of his Majesty, (at his coronation) to cause law and justice IN MERCY to be executed in all his judgments.”56

“The quality of mercy is not strained;

It droppeth like the gentle rain from heaven—

—It is twice blessed;

It blesses him that gives, and him that takes.”

I leave you, Gentlemen, hoping you will be directed in your enquiry and judgment; to a right discharge of your duty. We shall all of us, Gentlemen, have an hour of cool reflection—when the feelings and agitations of the day shall have subsided; when we shall view things through a different, and a much juster medium. It is, then, we all wish an absolving conscience. May you, Gentlemen, now act such a part, as will here after insure it;—such a part as may occasion the prisoners to rejoice. May the blessing of those, who were in jeopardy of life, come upon you—may the blessing of him who is “not faulty to die,” discend and rest upon you and your posterity.
1. Wemms Trial 134–148.
3. “Many Commotions in various parts of Town, and guilty of at least in discreet Conduct. The affair at Mu[rray's] Barracks. Danbrook says 30 Sailors with Cordwood sticks and Clubs.” Paine Massacre Notes.
4. “He can fire but once, shews what they intended to do if he did fire. The People were told the Centry was on duty and warned of their Danger.” Paine Massacre Notes.
5. “What the People said to the Sentry and Party: The Temper of White the Sentry. The Temper of Party. I have not gone into the Tumult of the Town, because I dont think it much to the point.” Paine Massacre Notes.
6. “The attack on the Party. Where are we got if Negative Evidence shall outweigh Positive. Andrews evidence the most distinct. Carr's dying Speech.” Paine Massacre Notes.
7. “A rushing in and striking after 1st Gun. Fosdick. Palmes. Bliss.”Paine Massacre Notes.
8. “The Evidence of the Individuals at Bar. Every Witness who testifys to Montgomery testifys also facts to Justify or extenuate. The Eyes of all are on us to see we do right. McCauley did not fire. Warren and Kilroy at Rope walk, it is nothing to do with this.” Paine Massacre Notes.
9. “Kilroy, the evidence heard [hardest] against him. Bayonet bloody.” Paine Massacre Notes.
11. Beccaria, An Essay on Crimes and Punishments. The editors have used the 4th edition, London, 1775, but Quincy, like JA, probably used the London edition of 1770. “This applyd to Hemmingway, and may be applied to Carrs speech and all the Speeches by Inhabitants.” Paine Massacre Notes.
12. “Three of the sergeants' halberds were used to erect a tripod, with a fourth one fixed horizontally, to which the victim was tied. . . . A cat-of-nine-tails was used.” R. M. Barnes, History of the Regiments and Uniforms of the British Army 125–126 (no date).
13. “Place yourselves in King Street and consider how the soldiers view'd 'em. Consider the exasperating expressions.” Paine Massacre Notes.
14. See Numbers 35:6–15.
15. Numbers 35:31.
16. In the Adams Papers (Microfilms, Reel No. 185) is a detached small sheet containing JA's very compressed minutes on Josiah Quincy's authorities. These are set out below in the present footnote, rather than as text, because the Wemms Trial transcript is so much fuller; annotation is, however, deferred except for the two citations not included in the Wemms Trial. A comparison of JA's minutes of Quincy's authorities with the very similar ones (not printed here) in Paine's Massacre Notes on the same subject suggests that Quincy's argument as printed in the Wemms Trial had the benefit of Quincy's legal after thoughts.
JA's minutes are as follows:
J. Q. Mutiny Act. 9. 10. Ar[ti]cles of War. Oath 147. 1. Black. 262. K. has the sole Power. 335. 6. 414. If any soldier shall sleep upon his Post, or disobey his lawfull Command. [The quotation, 1 Blackstone, Commentaries *414, is: “it is enacted, that if any officer and soldier shall . . . sleep upon his post, or leave before he is relieved, . . . or strike or use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself.”]
Foster 257. [] 4. Blac.180. [] 2. Foster 298. [] 3 Inst. 56. [] 1. H.H.P.C.482. [discusses killing se defendendo]. 1 Hawk. 72. Dangerous Rioters. Foster 273. Repell Force by Force. [] Foster 274. Any other Person may interpose.
Key.128. 9. Not fit to be trusted with dangerous Weapons.
Excusable. Foster 278.
Manslaughter. Foster 198 [298?]. Foster 292. Stedmans Case. Keyling 51. The Room in the Tavern. Justifiable. Quaeried by Holt. Bacons Elements. 25.
Lock Gov. Page 2d. c. 3.
17. 2 Hawkins, Pleas of the Crown 29, discusses the powers of courts of assize and nisi prius.
18. 2 Hawkins, Pleas of the Crown 30, §9, continues the discussion.
19. The volume in question has not been located. Like every Mutiny Act since the first, 1 Wm. and Mary, c. 5 (1689), the Mutiny Act in force at the time of the Massacre, 9 Geo. 3, c. 3 (1768), Acts of 1768 59–99, set out the disciplinary rules for the government of the Army. See 1 Holdsworth, History of English Law 577.
20. The references are all to 1 Blackstone, Commentaries, but 147 seems an error, although it also appears in JA's minutes set out in note 16137 above. The other pages discuss the relationship of the Crown and the Army.
21. 4 Blackstone, Commentaries *194, *195, discusses the history of the definition of murder.
22. 3 Coke, Institutes *51: “Malice prepensed is, when one compasseth to kill, wound, or beat another, and doth it sedato animo.” Id. at 57 discusses homicide by misadventure.
23. 4 Blackstone, Commentaries *191, *192, discusses manslaughter on sudden provocation.
24. Foster, Crown Cases 257, 262, 276–278 discusses malice aforethought and killing in self-defense.
25. 4 Blackstone, Commentaries *200, discusses constructive, or presumed, malice aforethought.
26. 4 Blackstone, Commentaries *180, discusses justifiable homicide; “280” seems a mistake.
27. Foster, Crown Cases 298, discusses the Statute of Stabbing, 1 Jac. 1, c. 1 (1603), which takes away clergy for certain offenses.
28. 3 Coke, Institutes *56, discusses the law of self-defense.
29. 1 Hawkins, Pleas of the Crown 71–72, 75, discusses the law of self-defense.
30. Foster, Crown Cases 273, 274, discusses justifiable self-defense.
31. Reg. v. Mawgridge, Kelyng 119, 128–129, 84 Eng. Rep. 1107, 1111–1112 (Q.B. 1707) and Rex v. Ford, Kelyng 51, 84 Eng. Rep. 1078 (K.B. temp. Hyde C.J.), are two leading cases on the law of justifiable homicide.
32. Foster, Crown Cases 276–278 (see note 24145 above). Id. at 295 discusses manslaughter
33. 4 Blackstone, Commentaries *191, discusses voluntary manslaughter.
34. See note 24145 above.
35. 4 Blackstone, Commentaries *192, discusses involuntary manslaughter.
36. Foster, Crown Cases 292, 296, 298, discusses manslaughter.
37. 3 Coke, Institutes *55, discusses voluntary manslaughter.
38. 1 Hawkins, Pleas of the Crown 82, 84, discusses manslaughter.
39. This seems an in advertence for 1 Hale, Pleas of the Crown 484, which discusses “what the offense is, if a man kill another in the necessary saving of the life of a man assaulted by the party slain.”
40. 1 Hawkins, Pleas of the Crown 85, discusses manslaughter committed in defense of another.
41. Rex v. Cook, 3 Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1639).
42. 2 Hale, Pleas of the Crown 274, discusses challenging jurors.
43. 4 Blackstone, Commentaries *183, discusses self-defense.
44. See note 38159 above.
45. Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114 (Q.B. 1707). Killing on sufficient provocation is manslaughter.
46. Foster, Crown Cases 261–262, discusses the difference between murder, manslaughter, and accidental death.
47. 4 Blackstone, Commentaries *27, discusses death by misfortune or by mistake.
48. 1 Hawkins, Pleas of the Crown 84, §44, lays down that the accidental killing of a third person by one engaged in combat on a sudden quarrel is manslaughter.
49. Foster, Crown Cases 350, §5, discusses the law of accomplices and principals.
50. 1 Hawkins, Pleas of the Crown 80–81: “[W]herever two Persons in cool Blood meet and fight on a precedent Quarrel, and one of them is killed, the other is guilty of Murder, and cannot help himself by alledging that he was first struck by the Deceased.”
51. Egerton v. Morgan et al., 1 Bulstr. 69, 86–87, 80 Eng. Rep. 770, 786 (K.B. 1611). Appeal of murder. “If a challenge be sent and pa used upon and they fight, if death ensue, this is clearly murder on both sides.”
52. Rex v. Ford, Kelyng 51, 84 Eng. Rep. 1078 (K.B. temp. Hyde, C.J.). See note 31152 above.
53. Presumably, Bacon, Elements of the Common Laws of England, possibly c. 5. See note 6183 below.
54. The exact text has not been discovered. It appears that the “p. 2” refers to Part Two, rather than page two. Chapter three of Locke's Second Treatise of Government does, however, support Quincy's point. John Locke, Two Treatises of Government 298 (Cambridge, ed. Laslett, 1960). See also id. at 437. Quincy seems to have taken the citation, and the quotation of Locke, omitting the words “upon a man's person” after “force without right,” from 4 Blackstone, Commentaries *181.
55. The source has not been identified.
56. The source has not been identified.

Docno: ADMS-05-03-02-0001-0004-0016

Author: Adams, John
DateRange: 1770-12-03 - 1770-12-04

Adams' Argument for the Defense1

3–4 December 1770

May it please your Honours and you Gentlemen of the Jury,
I am for the prisoners at the bar, and shall apologize for it only in the words of the Marquis Beccaria: “If I can but be the instrument of preserving one life, his blessing and tears of transport, shall be a sufficient consolation to me, for the contempt of all mankind.”2 As the prisoners stand before you for their lives, it may be proper, to recollect with what temper the law requires we should proceed to this trial. The form of proceeding at their arraignment, has discovered that the spirit of the law upon such occasions, is conformable to humanity, to commonsense and feeling; that it is all benignity and candor. And the trial commences with the prayer of the Court, expressed by the Clerk, to the Supream JUDGE of Judges, empires and worlds: “God send you a good deliverance.”
We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it's of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever. I will read the words of the law itself.
The rules I shall produce to you3 from Lord Chief Justice Hale, whose character as a lawyer, a man of learning and philosophy, and as a Christian, will be disputed by nobody living; one of the greatest and best characters, the English nation ever produced: his words are these. 2. H.H.P.C. Tutius semper est errare, in acquietando, quam in puni { 243 } endo, ex-parte misericordiae, quam ex parte justitiae, it is always safer to err in acquitting, than punishing, on the part of mercy, than the part of justice. The next is from the same authority, 305 Tutius erratur ex parte mitiori, it is always safer to err on the milder side, the side of mercy, H.H.P.C. 509, the best rule in doubtful cases, is, rather to incline to acquital than conviction: and in page 300 Quod dubitas ne feceris, Where you are doubtful never act; that is, if you doubt of the prisoners guilt, never declare him guilty; this is always the rule, especially in cases of life. Another rule from the same Author, 289, where he says, In some cases, presumptive evidence go far to prove a person guilty, though there is no express proof of the fact, to be committed by him; but then it must be very warily pressed, for it is better, five guilty persons should escape unpunished, than one innocent person should die.
The next authority shall be from another Judge, of equal character, considering the age wherein he lived; that is Chancellor Fortescue, in praise of the laws of England, page 59, this is a very ancient writer on the English law: his words are, “Indeed one would rather, much rather, that twenty guilty persons escape the punishment of death, than one innocent person be condemned, and suffer capitally.” Lord Chief Justice Hale, says, It is better five guilty persons escape, than one innocent person suffer. Lord Chancellor Fortiscue, you see, carries the matter farther, and says, Indeed one had rather, much rather, that twenty guilty persons should escape, than one innocent person suffer capitally. Indeed this rule is not peculiar to the English law, there never was a system of laws in the world, in which this rule did not prevail; it prevailed in the ancient Roman law, and which is more remarkable, it prevails in the modern Roman law, even the judges in the Courts of Inquisition, who with racks, burnings and scourges, examine criminals, even there, they preserve it as a maxim, that it is better the guilty should escape punishment, than the innocent suffer. Satius esse nocentem absolvi quam insentem damnari,4 this is the temper we ought to set out with; and these the rules we are to be governed by. And I shall take it for granted, as a first principle, that the eight prisoners at the bar, had better be all acquitted, though we should admit them all to be guilty, than, that any one of them should by your verdict be found guilty, being innocent.
I shall now consider the several divisions of law, under which the evidence will arrange it self.
{ 244 }
The action now before you, is homicide; that is the killing of one man by another, the law calls it homicide, but it is not criminal in all cases, for one man to slay another. Had the prisoners been on the Plains of Abraham, and slain an hundred Frenchmen apiece, the English law would have considered it, as a commendable action, virtuous and prais[e]worthy: so that every instance of killing a man, is not a crime in the eye of the law; there are many other instances which I can not enumerate, an officer that executes a person under sentence of death, &c. So that Gentlemen, every instance of one man's killing another, is not a crime, much less a crime to be punished with death. But to descend to some more particulars.
The law divides homicide into three branches; the first, is justifiable, the second excusable, and the third felonious; felonious homicide, is subdivided into two branches; the first is murder, which is killing with malice aforethought, the second is manslaughter, which is killing a man on a sudden provocation: here Gentlemen, are four sorts of homicide, and you are to consider, whether all the evidence amounts to the first, second, third, or fourth of these heads. The fact, was the slaying five unhappy persons that night; you are to consider, whether it was justifiable, excusable, or felonious; and if felonious, whether it was murder or manslaughter. One of these four it must be, you need not divide your attention to any more particulars. I shall however, before I come to the evidence, show you several authorities, which will assist you and me in contemplating the evidence before us.
I shall begin with justifiable homicide; if an officer a sheriff execute a man on the gallows, draws and quarters him, as in case of high treason, and cuts off his head, this is justifiable homicide, it is his duty. So also, Gentlemen, the law has planted fences and barriers around every individual; it is a castle round every man's person, as well as his house. As the love of God and our neighbour, comprehends the whole duty of man, so self-love and social, comprehend all the duties we owe to mankind, and the first branch is self-love, which is not only our indisputable right, but our clearest duty, by the laws of nature, this is interwoven in the heart of every individual; God almighty, whose laws we cannot alter, has implanted it there, and we can annihilate ourselves, as easily as root out this affection for ourselves. It is the first, and strongest principle in our nature, Justice Blackstone calls it, “The primary cannon in the law of nature.”5 That precept of our holy religion which commands us to love our neighbour as ourselves doth { 245 } not command us to love our neighbour better than ourselves, or so well, no Christian Divine hath given this interpretation. The precept enjoins, that our benevolence to our fellow men, should be as real and sincere, as our affections to ourselves, not that it should be as great in degree. A man is authorised therefore by common sense, and the laws of England, as well as those of nature, to love himself better than his fellow subject: If two persons are cast away at sea, and get on a plank, (a case put by Sir Francis Bacon,) and the plank is insufficient to hold them both, the one hath a right to push the other off to save himself.6 The rules of the common law therefore, which authorize a man to preserve his own life at the expence of another's, are not contradicted by any divine or moral law. We talk of liberty and property, but, if we cut up the law of self-defence, we cut up the foundation of both, and if we give up this, the rest is of very little value, and therefore, this principle must be strictly attended to, for whatsoever the law pronounces in the case of these eight soldiers will be the law, to other persons and after ages, all the persons that have slain mankind in this country, from the beginning to this day, had better have been acquitted, than that a wrong rule and precedent should be established.
I shall now, read to you a few authorities on this subject of self-defence. Foster 273 in the case of justifiable self-defence, “The injured party may repell 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. Keiling, 128, 129.7 I must in treat you, to consider the words of this authority, the injured person may repell force by force against any who endeavours to commit any kind of felony on him or his, here the rule is, I have a right to stand on my own defence, if you intend to commit felony; if any of the persons made an attack on these soldiers, with an intention to rob them, if it was but to take their hats feloniously, they had a right to kill them on the spot, and had no business to retreat; if a robber meets me in the street, and commands me to surrender my { 246 } purse, I have a right to kill him without asking questions; if a person8 commits a bare assault on me, this will not justify killing, but if he assaults me in such a manner, as to discover an intention, to kill me, I have a right to destroy him, that I may put it out of his power to kill me. In the case you will have to consider, I do not know there was any attempt to steal from these persons; however, there were some persons concerned, who would probably enough have stolen, if there had been any thing to steal; and many were there who had no such disposition, but this is not the point we aim at, the question is, are you satisfied, the people made the attack in order to kill the soldiers? If you are satisfied that the people, who ever they were, made that assault, with a design to kill or maim the soldiers, this was such an assault, as will justify the soldiers killing in their own defence. Further it seems to me, we may make another question, whether you are satisfied that their real intention was to kill or maim or not? if any reasonable man, in the situation of one of these soldiers, would have had reason to believe in the time of it, that the people came with an intention to kill him, whether you have this satisfaction now, or not in your own minds, they were justifiable, at least excusable in firing; you and I, may be suspicious that the people who made this assault on the soldiers, did it to put them to the flight, or purpose that they might go exulting about the town afterwards in triumph; but this will not do, you must place yourselves in the situation of Wemms or Killroy— consider yourselves, as knowing that the prejudices of the world about you, were against you; that the people about you, thought you came to dragoon them into obedience to statutes, instructions, mandates and edicts, which they thoroughly detested; that many of these people were thoughtless and inconsiderate, old and young, sailors and land men, negroes and molattos; that they, the soldiers had no friends about them, the rest were in opposition to them; with all the bells ringing, to call the town together to assist the people in King-street; for they knew by that time, that there was no fire; the people shouting, huzzaing, and making the mob whistle as they call it, which when a boy makes it in the street, is no formidable thing, but when made by a multitude, is a most hideous shriek, almost as terrible as an Indian yell; the people crying Kill them! Kill them! Knock them over! heaving snow-balls, oyster shells, clubs, white birch sticks three inches and an half diameter, consider yourselves, in this situation, and then judge, whether a reasonable man in the soldiers situation, would not have concluded they were going to kill him. I believe, if I was to reverse the scene, I { 247 } should bring it home to our own bosoms; suppose Colonel Marshall, when he came out of his own door, and saw these grenadiers coming down with swords, &c. had thought it proper to have appointed a military watch; suppose he had assembled Gray and Attucks that were killed, or any other persons in town, and had planted them in that station as a military watch, and there had come from Murray's barracks, thirty or forty soldiers, with no other arms than snow-balls, cakes of ice, oyster-shells, cinders and clubs, and attacked this military watch in this manner, what do you suppose would have been the feelings and reasonings of any of our householders; I confess I believe they would not have borne the one half of what the witnesses have sworn the soldiers bore, till they had shot down as many as were necessary to intimidate and disperse the rest; because, the law does not oblige us to bear insults to the danger of our lives, to stand still with such a number of people round us, throwing such things at us, and threatening our lives, until we are disabled to defend ourselves.
“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 own servant then attendant on him, or any other person present, may interpose for preventing mischief, and if death ensues, the party so interposing will be justified. In this case nature and social duty co-operate.” Foster 274.9
Hawkins P.C. Chap. 28, §25. towards the end, “Yet it seems that a private person, a fortiori, an officer of justice, who happens unavoidably to kill another in endeavouring to defend himself from, or suppress dangerous rioters, may justify the fact, in as much as he only does his duty in aid of the public justice.”10 Section 24. “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, as much as if he had attempted to rob him: For is not he who attempts to murder me, more injurious than he who barely attempts to rob me? And can it be more justifiable to fight for my goods than for my life; and it is not only highly agreeable to reason that a man in such circumstances, may lawfully kill another, but it seems also to be confirmed by the general tenor of our law books, which speaking of homicide se defendendo, suppose it done in some quarrel or affray.”11
“And so perhaps the killing of dangerous rioters, may be justified by { 248 } any private persons, who cannot otherwise suppress them, or defend themselves from them; in as much as every private person seems to be authorized by the law, to arm himself for the purposes aforesaid.” Hawkins p. 71. §1412—Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence, that distinction is material and must be attended to.
Hawkins, page 75. §14. “And not only he who on an assault retreats to the wall or some such streight, beyond which he can go no further, 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 in such a place, that he cannot go back without manifestly endangering his life, kills the other without retreating at all.”13—§16. “And an officer who kills one that insults him in the execution of his office, and where a private person, that kills one who feloniously assaults him in the high way, may justify the fact without ever giving back at all.”14
There is no occasion for the Magistrate to read the Riot act. In the case before you, I suppose you will be satisfied when you come to examine the witnesses, and compare it with the rules of the common law, abstracted from all mutiny acts and articles of war, that these soldiers were in such a situation, that they could not help themselves; people were coming from Royal-exchange-lane, and other parts of the town, with clubs, and cord wood sticks; the soldiers were planted by the wall of the Custom House; they could not retreat, they were surrounded on all sides, for there were people behind them, as well as before them; there were a number of people in Royal-exchange-lane; the soldiers were so near to the Custom house, that they could not retreat, unless they had gone into the brick wall of it. I shall shew you presently, that all the party concerned in this unlawful design, were guilty of what any one of them did; if any body threw a snow-ball, it was the act of the whole party; if any struck with a club, or threw a club, and the club had killed any body, the whole party would have been guilty of murder in law.
Ld. C.J. HOLT, in Mawgridge's Case, Keyling 128, says, “Now it hath been held, that if A of his malice prepensed assaults B, to kill him, and B draws his sword and attacks A and pursues him, then A for his { 249 } safety gives back, and retreats to a wall, and B still pursuing him with his drawn sword, A in his defence kills B. This is murder in A. For A having malice against B, and in pursuance thereof endeavouring to kill him, is answerable for all the consequences, of which he was the original cause. 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 be trusted with a dangerous weapon in his hand. And sore solved by all the Judges when they met at Seargeant's inn, in preparation for my Lord Morley's trial.”15
In the case here, we will take Montgomery, if you please, when he was attacked by the stout man with the stick, who aimed it at his head, with a number of people round him, crying out, Kill them! Kill them! had he not a right to kill the man. If all the party were guilty of the assault made by the stout man, and all of them had discovered malice in their hearts, had not Montgomery a right, according to Lord Chief Justice Holt, to put it out of their power to wreak their malice upon him. I will not at present, look for any more authorities in the point of self-defence; you will be able to judge from these, how far the law goes, in justifying or excusing any person in defence of himself, or taking away the life of another who threatens him, in life or limb; the next point is this, That in case of an unlawful assembly, all and every one of the assembly is guilty of all and every unlawful act, committed by any one of that assembly, in prosecution of the unlawful design they set out upon.
Rules of law should be universally known, what ever effect they may have on politics; they are rules of common law, the law of the land, and it is certainly true, that where ever there is an unlawful assembly, let it consist of many persons or a few, everyman in it is guilty of every unlawful act committed by any one of the whole party, be they more or be they less, in pursuance of their unlawful design. This is the policy of the law: to discourage and prevent riots, insurrections, turbulence and tumults.
In the continual vicissitudes of human things, amidst the shocks of fortune and the whirls of passion, that take place at certain critical seasons, even in the mildest government, the people are liable to run into riots and tumults. There are Church-quakes and state-quakes, in the moral and political world, as well as earthquakes, storms and tempests in the physical. Thus much however must be said in favour { 250 } of the people and of human nature, that it is a general, if not universal truth, that the aptitude of the people to mutinies, seditions, tumults and insurrections, is in direct proportion to the despotism of the government. In governments completely despotic, i.e. where the will of one man, is the only law, this disposition is most prevalent.—In Aristocracies, next—in mixed Monarchies, less than either of the former—in compleat Republick's the least of all—and under the same form of government as in a limited monarchy, for example, the virtue and wisdom of the administration, may generally be measured by the peace and order, that are seen among the people. However this may be, such is the imperfection of all things in this world, that no form of government, and perhaps no wisdom or virtue in the administration, can at all times avoid riots and disorders among the people.
Now it is from this difficulty, that the policy of the law hath framed such strong discouragements, to secure the people against tumults; because when they once begin, there is danger of their running to such excesses, as will overturn the whole system of government. There is the rule from the reverend sage of the law, so often quoted before.
I. H.H.P.C. 437. “All present, aiding and assisting, are equally principal with him that gave the stroke, whereof the party died. For tho' one gave the stroke, yet in interpretation of law, it is the stroke of every person, that was present aiding and assisting.”16
I. H.H.P.C. 440. “If divers come with one assent to do mischief, as to kill, rob, or beat, and one doth it, they are all principals in the felony. If many be present, and one only gives the stroke whereof the party dies, they are all principal, if they came for that purpose.”17
Now if the party at Dock-square, came with an intention only to beat the soldiers, and began the affray with them, and any of them had been accidentally killed, it would have been murder, because it was an unlawful design they came upon; if but one does it, they are all considered in the eye of the law to be guilty, if any one gives the mortal stroke, they are all principal here, therefore there is a reversal of the scene; if you are satisfied, that these soldiers were there on a lawful design and it should be proved any of them shot without provocation and killed any body, he only is answerable for it. First Hale's pleas of the crown.
1. H.H.P.C. 444. “Although 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 { 251 } 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 abetted him to do it.”18
1. H.H.P.C. 445. “In the case of a riotous assembly to rob or steal deer, or do any unlawful act of violence, there the offence of one, is the offence of all the company.”19
In another place, 1. H.H.P.C. 439. “The Lord Dacre and divers others went to steal deer in the park of one Pelham—Raydon one of the company, killed the keeper in the park; the Lord Dacre and the rest of the company being in the other part of the park. Yet it was adjudged murder in them all, and they died for it.”20 And he quotes Crompton, 25. Dalton 93 p. 241.21 So that in so strong a case as this, where this nobleman set out to hunt deer in the ground of another, he was in one part of the park, his company in another part, yet they were all guilty of murder.
The next is Hale's Pleas of the Crown, 1. H.H.P.C. 440, “The case of Drayton Bassit, diverse persons doing an unlawful act, all are guilty of what is done by one.”22
Foster, 353, 354. “A general resolution against all opposers, whether such resolution appears upon evidence to have been actually and implicitly entered into by the confederates, or may reasonably be collected from their number, arms or behaviour, at, or before the scene of action, such resolutions, so proved, have always been considered as strong ingredients in cases of this kind. And in cases of homicide, committed inconsequence of them, every person present; in the sense of the law, when the homicide hath been committed, hath been involved in the guilt of him that gave the mortal blow.”23
Foster. “The cases of Lord Dacre mentioned by Hale, and of Pudsey, reported by Crompton, and cited by Hale, turned upon this point. The offences they respectively stood charged with as principals, were committed far out of their sight and hearing; and yet both were held to be present. It was sufficient, that at the instant the facts were committed, { 252 } they were of the same party and upon the same pursuit, and under the same engagements and expectations of mutual defence and support, with those that did the facts.”24
Thus far I have proceeded, and I believe it will not be hereafter disputed by any body, that this law ought to be known to every one who has any disposition to be concerned in an unlawful assembly, whatever mischief happens in the prosecution of the design they set out upon, all are answerable for it. It is necessary we should consider the definitions of some other crimes, as well as murder; sometimes one crime gives occasion to another, an assault is sometimes the occasion of man-slaughter, sometimes of excusable homicide. It is necessary to consider what is a riot. 1. Hawk. c. 65.§2. I shall give you the definition of it. “Where so ever more than three persons use force or violence, for the accomplishment of any design whatever, all concerned are rioters.”25
Were there not more than three persons in Dock-square? Did they not agree to go to King-street, and attack the Main guard? Where then, is the reason for hesitation, at calling it a riot? If we cannot speak the law as it is, where is our liberty? And this is law, that wherever more than three persons, are gathered together, to accomplish any thing with force, it is a riot. 1. Hawk. c. 65, §2. “Wherever more than three, use force and violence, all who are concerned therein are rioters: But in some cases wherein the law authorizes force, it is lawful and commendable to use it. As for a sheriff, 2. And. 67. Poph. 121. or constable, 3 H. 7. 10. 6. or perhaps even for a private person, Poph. 121. Moore, 656. to assemble a competent number of people, in order with force, to oppose rebels, or enemies, or rioters, and afterwards with such force, actually to suppress them.”26
I do not mean to apply the word rebel on this occasion: I have no reason to suppose that ever there was one in Boston, at least among the natives of the country; but rioters are in the same situation, as far as my argument is concerned, and proper officers may suppress rioters, and so may even private persons.
If we strip ourselves free from all military laws, mutiny acts, articles of war and soldiers oaths, and consider these prisoners as neighbours, if any of their neighbours were attacked in King-street, they had a right to collect together to suppress this riot and combina• { 253 } tion. If any number of persons meet together at a fair, or market, and happen to fall together by the ears, they are not guilty of a riot, but of a sudden affray: here is another paragraph which I must read to you, 1. Hawkins, c. 65, §3, “If a number of persons, being met together at a fair or market, or on 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,” &c.27 End of the §. It would be endless, as well as superfluous, to examine, whether every particular person engaged in a riot, were in truth one of the first assembly, or actually had a previous knowledge of the design thereof.28
I have endeavoured to produce the best authorities, and to give you the rules of law in their words, for I desire not to advance any thing of my own. I chuse to lay down the rules of law, from authorities which cannot be disputed. Another point is this, whether, and how far, a private person may aid another in distress? Suppose a press gang should come on shore in this town, and assault any sailor, or householder in King street, in order to carry them on board one of his Majesty's ships and impress him without any warrant, as a seaman in his Majesty's service, how far do you suppose the inhabitants would think themselves warranted by law, to interpose against that lawless press gang? I agree that such a press gang would be as unlawful an assembly, as that was in King street. If they were to press an inhabitant, and carry him off for a sailor, would not the inhabitants think them-selves warranted by law to interpose in behalf of their fellow citizens? Now Gentlemen, if the soldiers had no right to interpose in the relief of the Sentry, the inhabitants would have no right to interpose with regard to the citizen, for whatever is law for a soldier, is law for a sailor, and for a citizen, they all stand upon an equal footing, in this respect. I believe we shall not have it disputed, that it would be lawful to go into King-street, and help an honest man there, against the press master. We have many instances in the books which authorize it, which I shall produce to you presently.
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Now suppose you should have a jealousy in your minds, that the people who made this attack on the Sentry, had nothing in their intention more than to take him off his post, and that was threatened by some; suppose they intended to go a little farther, and tar and feather him, or to ride him, (as the phrase is in Hudibras)29 he would have a good right to have stood upon his defence, the defence of his liberty, and if he could not preserve that without hazard to his own life, he would be warranted, in depriving those of life, who were endeavouring to deprive him of his; that is a point I would not give up for my right hand, nay, for my life.
Well, I say, if the people did this, or if this was only their intention, surely the officer and soldiers had a right to go to his relief, and therefore they set out upon a lawful errand, they were therefore a lawful assembly, if we only consider them as private subjects and fellow citizens, without regard to Mutiny Acts, Articles of War, or Soldiers Oaths; a private person, or any number of private persons, have a right to go to the assistance of their fellow subject in distress and danger of his life, when assaulted and in danger from a few or a multitude. Keyl. 136. “If a man perceives another by force to be injuriously treated, pressed and restrained of his liberty, tho' the person abused doth not complain, or call for aid or assistance; and others out of compassion shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter. Keyl. A and others without any warrant, impress B to serve the King at sea, B quietly submitted and went off with the press master; Hugett and the others pursued them, and required a sight of their warrant; but they shewing a piece of paper that was not a sufficient warrant, thereupon Hugett with the others drew their swords, and the press masters theirs, and so there was a combat, and those who endeavoured to rescue the pressed man killed one of the pretended press masters. This was but manslaughter, for when the liberty of one subject is invaded, it affects all the rest: it is a provocation to all people, as being of ill example and pernicious consequences.”30
2. Lord Raymond, 1301. The Queen versus Tooley et alios, Lord Chief Justice Holt says, 3d. “The prisoner (i.e. Tooley) in this case had sufficient provocation; for if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion;—and where the liberty of the subject is invaded, it is a provocation to { 255 } all the subjects of England, &c. and sure a man ought to be concerned for magna charta and the laws; and if any one against the law imprisons a man, he is an offender against magna charta.”31
I am not insensible of Sir Michael Foster's observations on these cases,32 but apprehend they do not invalidate the authority of them as far as I now apply them to the purpose of my argument. If a stranger, a mere fellow subject may interpose to defend the liberty, he may to defend the life of another individual. But according to the evidence, some imprudent people before the Sentry, proposed to take him off his post, others threatened his life, and intelligence of this was carried to the Main-guard, before any of the prisoners turned out: They were then ordered out to relieve the Sentry, and any of our fellow citizens might lawfully have gone upon the same errand; they were therefore a lawful assembly.
I have but one point more of law to consider, and that is this: In the case before you, I do not pretend to prove that every one of the unhappy persons slain, were concerned in the riot; the authorities read to you just now, say, it would be endless to prove, whether every person that was present and in a riot, was concerned in planning the first enterprise or not: nay, I believe it but justice, to say, some were perfectly innocent of the occasion, I have reason to suppose, that one of them was, Mr. Maverick; he was a very worthy young man, as he has been represented to me, and had no concern in the riotous proceedings of that night; and I believe the same may be said, in favour of one more, at least, Mr. Caldwell who was slain; and therefore many people may think, that as he, and perhaps another was innocent, therefore innocent blood having been shed, that must be expiated by the death of somebody or other. I take notice of this, because one gentleman nominated by the sheriff, for a Juryman upon this trial, because he said, he believed Capt. Preston was innocent, but innocent blood had been shed, and therefore somebody ought to be hanged for it, which he thought was indirectly giving his opinion in this cause.33 I am afraid many other persons have formed such an opinion; I do { 256 } not take it to be a rule, that where innocent blood is shed, the person must die. In the instance of the Frenchmen on the Plains of Abraham, they were innocent, fighting for their King and country, their blood is as innocent as any, there may be multitudes killed, when innocent blood is shed on all sides, so that it is not an invariable rule. I will put a case, in which, I dare say, all will agree with me: Here are two persons, the father and the son, go out a hunting, they take different roads, the father hears a rushing among the bushes, takes it to be game, fires and kills his son through a mistake; here is innocent blood shed, but yet nobody will say the father ought to die for it. So that the general rule of law, is, that whenever one person hath a right to do an act, and that act by any accident, takes away the life of another, it is excusable, it bears the same regard to the innocent as to the guilty. If two men are together, and attack me, and I have a right to kill them, I strike at them, and by mistake, strike a third and kill him, as I had a right to kill the first, my killing the other, will be excusable, as it happened by accident. If I in the heat of passion, aim a blow at the person who has assaulted me, aiming at him, I kill another person, it is but manslaughter. Foster, 261. §3. “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 ensues against or beside the original intention of the party, it will be murder. But if such mischievous intention doth not appear, which is matter of fact and to be collected from circumstances, and the act was done heedlessly and inconsiderately, it will be manslaughter: not accidental death, because the act upon which death ensued, was unlawful.”34
“Under this head, &c. [See the remainder inserted in pages] 145, 14635
Supposing in this case, the Molatto man was the person made the assault, suppose he was concerned in the unlawful assembly, and this party of soldiers endeavouring to defend themselves against him, happened to kill another person who was innocent, though the soldiers had no reason that we know of, to think any person there, at least of that number who were crouding about them innocent, they might naturally enough presume all to be guilty of the riot and assault, and to come with the same design; I say, if on firing { 257 } on these who were guilty, they accidentally killed an innocent person, it was not their faults, they were obliged to defend themselves against those who were pressing upon them, they are not answerable for it with their lives, for upon supposition it was justifiable or excusable to kill Attucks or any other person, it will be equally justifiable or excusable if in firing at him, they killed another who was innocent, or if the provocation was such as to mitigate the guilt to manslaughter, it will equally mitigate the guilt, if they killed an innocent man un-designedly, in aiming at him who gave the provocation, according to Judge Foster,36 and as this point is of such consequence, I must produce some more authorities for it. 1. Hawkins, 84. “Also, if a third person accidentally happen to be killed, by one engaged in a combat with another upon a sudden quarrel, it seems that he who kills him is guilty of manslaughter only.”37 H.H.P.C. 442.38 To the same point, and 1. H.H.P.C. 48439 and 4 Black. 27.40
I shall now consider one question more, and that is concerning provocation.*41 We have hitherto been considering self-defence, and { 258 } how far persons may go in defending themselves against aggressors, even by taking away their lives, and now proceed to consider, such provocations as the law allows to mitigate or extenuate the guilt of killing, where it is not justifiable or excusable.
An assault and battery, committed upon a man, in such a manner as not to endanger his life, is such a provocation as the law allows to reduce killing, down to the crime of manslaughter. Now the law has been made on more consideration than we are capable of making at present; the law considers a man as capable of bearing any thing, and every thing, but blows. I may reproach a man as much as I please, I may call him a thief, robber, traitor, scoundrel, coward, lobster, bloody back, &c. and if he kills me it will be murder, if nothing else but words preceed; but if from giving him such kind of language, I proceed to take him by the nose, or fillip him on the forehead, that is an assault! that is a blow; the law will not oblige a man to stand still { 259 } and bear it; there is the distinction; hands off, touch me not, as soon as you touch me, if I run you thro' the heart it is but Manslaughter; the utility of this distinction, the more you think of it, the more you will be satisfied with it; it is an assault when ever a blow is struck, let it be ever so slight, and sometimes even without a blow. The law considers man as frail and passionate, when his passions are touched, he will be thrown off his guard, and therefore the law makes allowances for this frailty, considers him as in a fit of passion, not having the possession of his intellectual faculties, and therefore does not oblige him to measure out his blows with a yard stick, or weigh them in a scale; let him kill with a sword, gun or hedge stake, it is not murder, but only manslaughter. Keyling's Reports 135. Regina versus Mawgri[d]ge. “Rules supported by authority and general consent, shewing what are always allowed to be sufficient provocations. First, if one man, upon any words shall make an assault upon another, either by pulling him by the nose, or filliping upon the forehead, 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.”42 So that here is the boundary, when a man is assaulted, and kills in consequence of that assault, it is but manslaughter; I will just read as I go along the definition of an assault, 1. Hawkins Chap. 62, §1. “An assault is an attempt or offer, with force or violence, to do a co[r]poral hurt to another; as by stricking 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, or by any other such like act done in an angry, threatning manner, &c. But no words can amount to an assault.”43 Here is the definition of an assault, which is a sufficient provocation to soften killing down to manslaughter, 1. Hawkins, Chap. 31, §36. “Neither can he be thought guilty of a greater crime (than manslaughter) who finding a man in bed with his wife, or being actually struck by him, or pulled by the nose, or filliped upon the forehead, immediately kills him, or in the defence of his person from an unlawful arrest; or in the defence of his house, from those who claiming a title to it, attempt forcibly to enter it, and to that purpose shoot at it, &c.”44 Every snow-ball, oyster shell, cake of ice, { 260 } or bit of cinder that was thrown that night, at the Sentinel, was an assault upon him; every one that was thrown at the party of soldiers, was an assault upon them, whether it hit any of them or not. I am guilty of an assault, if I present a gun at any person, whether I shoot at him or not, it is an assault, and if I insult him in that manner, and he shoots me, it is but manslaughter. Foster, 295, 6. “To what I have offered with regard to sudden rencounters, let me add, that the blood, already too much heated, kindleth afresh at every pass or blow. And in the tumult of the passions, in which mere instinct self preservation, hath no inconsiderable share, the voice of reason is not heard. And therefore, the law in condesension to the infirmities of flesh and blood doth extenuate the offence.”45 Insolent, scurrilous, or slanderous language, when it preceeds an assault, aggravates it. Foster 316. “We all knew [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, and yet every man who hath considered the human frame, or but attended to the workings of his own heart, knoweth, that affronts of that kind, pierce deeper, and stimulate in the veins more effectually, than a slight injury done to a third person, tho' under colour of justice, possibly can.”46 I produce this to show the assault, in this case, was aggravated by the scurrilous language which preceeded it. Such words of reproach, stimulate in the veins, and exasperate the mind, and no doubt if an assault and battery succeeds them, killing under such a provocation, is softened to manslaughter, but, killing without such provocation, makes it murder.
FIVE o'Clock, p.m. the Court adjourned till Tuesday morning [4 December], nine o'Clock.
Tuesday, NINE o'Clock, the Court met according to adjournment, and Mr. Adams proceeded.
May it please your Honours, and you Gentlemen of the Jury,
I yesterday afternoon produced from the best authorities, those rules of law which must govern all cases of homicide, particularly that which is now before you; it now remains to consider the evidence, and see whether any thing has occurred, that may be compared to the rules read to you; and I will not trouble myself nor you with laboured endeavours to be methodical, I shall endeavour to make some few observations, on the testimonies of the witnesses, such as will place { 261 } the facts in a true point of light, with as much brevity as possible; but I suppose it would take me four hours to read to you, (if I did nothing else but read) the minutes of evidence that I have taken in this trial. In the first place the Gentleman who opened this cause, has stated to you, with candour and precision, the evidence of the identity of the persons.
The witnesses are confident that they know the prisoners at the barr, and that they were present that night, and of the party; however, it is apparent, that witnesses are liable to make mistakes, by a single example before you. Mr. Bass, who is a very honest man, and of good character, swears positively that the tall man, Warren, stood on the right that night, and was the first that fired; and I am sure you are satisfied by this time, by many circumstances, that he is totally mistaken in this matter; this you will consider at your leisure. The witnesses in general did not know the faces of these persons before; very few of them knew the names of them before, they only took notice of their faces that night. How much certainty there is in this evidence, I leave you to determine.
There does not seem to me to be any thing very material in the testimony of Mr. Aston,47 except to the identity of McCauley, and he is the only witness to that. If you can be satisfied in your own minds, without a doubt, that he knew McCauley so well as to be sure, you will believe he was there.
The next witness is Bridgham, he says he saw the tall man Warren, but saw another man belonging to the same regiment soon after, so like him, as to make him doubt whether it was Warren or not; he thinks he saw the Corporal, but is not certain, he says he was at the corner of the Custom house, this you will take notice of, other witnesses swear, he was the remotest man of all from him who fired first, and there are other evidences who swear the left man did not fire at all; if Wemms did not discharge his gun at all, he could not kill any of the persons, therefore he must be acquitted on the fact of killing; for an intention to kill, is not murder nor manslaughter, if not carried into execution: The witness saw numbers of things thrown, and he saw plainly sticks strike the guns, about a dozen persons with sticks, gave three cheers, and surrounded the party, and struck the guns with their sticks several blows: This is a witness for the crown, and his testimony is of great weight for the prisoners; he gives his testimony very sensibly and impartially. He swears positively, that he not only { 262 } saw ice or snow thrown, but saw the guns struck several times; if you believe this witness, of whose credibility you are wholly the judges, as you are of every other; if you do not believe him, there are many others who swear to circumstances in favour of the prisoners; it should seem impossible you should disbelieve so great a number, and of crown witnesses too, who swear to such variety of circumstances that fall in with one another so naturally to form our defence; this witness swears positively, there were a dozen of persons with clubs, surrounded the party; twelve sailors with clubs, were by much an overmatch to eight soldiers, chained there by the order and command of their officer, to stand in defence of the Sentry, not only so, but under an oath to stand there, i.e. to obey the lawful command of their officer, as much, Gentlemen of the Jury, as you are under oath to determine this cause by law and evidence; clubs they had not, and they could not defend themselves with their bayonets against so many people; it was in the power of the sailors to kill one half or the whole of the party, if they had been so disposed; what had the soldiers to expect, when twelve persons armed with clubs, (sailors too, between whom and soldiers, there is such an antipathy, that they fight as naturally when they meet, as the elephant and Rhinoceros) were daring enough, even at the time when they were loading their guns, to come up with their clubs, and smite on their guns; what had eight soldiers to expect from such a set of people? Would it have been a prudent resolution in them, or in any body in their situation, to have stood still, to see if the sailors would knock their brains out, or not? Had they not all the reason in the world to think, that as they had done so much, they would proceed farther? Their clubs were as capable of killing as a ball, an hedge stake is known in the law books as a weapon of death, as much as a sword, bayonet, or musket. He says, the soldiers were loading their guns, when the twelve surrounded them, the people went up to them within the length of their guns, and before the firing; besides all this he swears, they were called cowardly rascals, and dared to fire; he says these people were all dressed like sailors; and I believe, that by and bye you will find evidence enough to satisfy you, these were some of the persons that came out of Dock-square, after making the attack on Murray's barracks, and who had been arming themselves with sticks from the butchers stalls and cord wood piles, and marched up round Corn-hill under the command of Attucks. All the bells in town were ringing, the ratling of the blows upon the guns he heard, and swears it was violent; this corroborates the testimony of James Bailey, which will be considered presently. Some witnesses swear a { 263 } club struck a soldier's gun, Bailey swears a man struck a soldier and knocked him down, before he fired, “the last man that fired, levelled at a lad, and moved his gun as the lad ran:” You will consider, that an intention to kill is not murder; if a man lays poison in the way of another, and with an express intention that he should take it up and die of it, it is not murder: Suppose that soldier had malice in his heart, and was determined to murder that boy if he could, yet the evidence clears him of killing the boy, I say admit he had malice in his heart, yet it is plain he did not kill him or any body else, and if you believe one part of the evidence, you must believe the other, and if he had malice, that malice was ineffectual; I do not recollect any evidence that assertains who it was that stood the last man but one upon the left, admitting he discovered a temper ever so wicked, cruel and malicious, you are to consider his ill temper is not imputable to another, no other had any intention of this deliberate kind, the whole transaction was sudden, there was but a very short space of time between the first gun and the last, when the first gun was fired the people fell in upon the soldiers and laid on with their weapons with more violence, and this served to encrease the provocation, and raised such a violent spirit of revenge in the soldiers, as the law takes notice of, and makes some allowance for, and in that fit of fury and madness, I suppose he aimed at the boy.
The next witness is Dodge, he says, there were fifty people near the soldiers pushing at them; now the witness before says, there were twelve sailors with clubs, but now here are fifty more aiding and abetting of them, ready to relieve them in case of need; now what could the people expect? It was their business to have taken themselves out of the way; some prudent people by the Town-house, told them not to meddle with the guard, but you hear nothing of this from these fifty people; no, instead of that, they were huzzaing and whistling, crying damn you, fire! why don't you fire? So that they were actually assisting these twelve sailors that made the attack; he says the soldiers were pushing at the people to keep them off, ice and snow-balls were thrown, and I heard ice rattle on their guns, there were some clubs thrown from a considerable distance across the street. This witness swears he saw snow-balls thrown close before the party, and he took them to be thrown on purpose, he saw oyster-shells likewise thrown.—Mr. Langford the watchman, is more particular in his testimony, and deserves a very particular consideration, because it is intended by the council for the crown, that his testimony shall distinguish Killroy from the rest of the prisoners, and exempt him from those pleas of justification, { 264 } excuse or extenuation, which we rely upon for the whole party, because he had previous malice, and they would from hence conclude, he aimed at a particular person; you will consider all the evidence with regard to that, by itself.
Hemmingway, the sheriff's coachman, swears he knew Killroy, and that he heard him say, he would never miss an opportunity of firing upon the inhabitants: this is to prove that Killroy had preconceived malice in his heart, not indeed against the unhappy persons who were killed, but against the inhabitants in general, that he had the spirit not only of a Turk or an Arab, but of the devil; but admitting that this testimony is litterally true, and that he had all the malice they would wish to prove, yet, if he was assaulted that night, and his life in danger, he had a right to defend himself as well as another man; if he had malice before, it does not take away from him the right of defending himself against any unjust aggressor. But it is not at all improbable, that there was some misunderstanding about these loose expressions; perhaps the man had no thoughts of what his words might import; many a man in his cups, or in anger, which is a short fit of madness, hath uttered the rashest expressions, who had no such savage disposition in general: so that there is but little weight in expressions uttered at a kitching fire, before a maid and a coachman, where he might think himself at liberty to talk as much like a bully, a fool, and a madman as he pleased, and that no evil would come of it. Strictly speaking, he might mean no more than this, that he would not miss an opportunity of firing on the inhabitants, if he was attacked by them in such a manner as to justify it: soldiers have sometimes avoided opportunities of firing, when they would have been justified, if they had fired. I would recommend to them, to be tender by all means, nay, let them be cautious at their peril; but still what he said, amounts in strictness, to no more than this, “If the inhabitants make an attack on me, I will not bear from them what I have done already;” or I will bear no more, than what I am obliged by law to bear. No doubt it was under the fret of his spirits, the indignation, mortification, grief and shame, that he had suffered a defeat at the Rope-walks; it was just after an account of an affray was published here, betwixt the soldiers and inhabitants at New York.48 There was a little before the 5th of March, much noise in this town, and a pompous account in the news-papers, of a victory obtained by the inhabitants there over the soldiers; which doubtless excited the resentment of the soldiers { 265 } here, as well as exultations among some sorts of the inhabitants: and the ringing of the bells here, was probably copied from New York, a wretched example in this, and in two other instances at least: the defeat of the soldiers at the Rope-walks, was about that time too, and if he did, after that, use such expressions, it ought not to weigh too much in this case. It can scarcely amount to proof that he harboured any settled malice against the people in general. Other witnesses are introduced to show that Killroy had besides his general ill will against every body, particular malice against Mr. Gray, whom he killed, as Langford swears.
Some of the witnesses, have sworn that Gray was active in the battle at the Rope walks, and that Killroy was once there, from whence the Council for the Crown would infer, that Killroy, in King-street, on the 5th of March in the night, knew Gray whom he had seen at the Rope-walks before, and took that opportunity to gratify his preconceived malice; but if this is all true, it will not take away from him his justification, excuse, or extenuation, if he had any. The rule of the law is, if there has been malice between two, and at a distant time afterwards they met, and one of them assaults the other's life, or only assaults him, and he kills in consequence of it, the law presumes the killing was in self defence, or upon the provocation, not on account of the antecedent malice. If therefore the assault upon Killroy was so violent as to endanger his life, he had as good a right to defend himself, as much as if he never had before conceived any malice against the people in general, or Mr. Gray in particular. If the assault upon him, was such as to amount only to a provocation, not to a justification, his crime will be manslaughter only. However, it does not appear, that he knew Mr. Gray; none of the witnesses pretend to say he knew him, or that he ever saw him. It is true they were both in the Rope-walks at one time, but there were so many combatants on each side, that it is not even probable that Killroy should know them all, and no witnesses says there was any rencounter there between them two. Indeed, to return to Mr. Langford's testimony, he says, he did not perceive Killroy to aim at Gray, more than at him, but he says expressly, he did not aim at Gray. Langford says, “Gray had no stick, was standing with his arms folded up.” This witness, is however most probably mistaken in this matter, and confounds one time with another, a mistake which has been made by many witnesses, in this case, and considering the confusion and terror of the scene, is not to be wondered at.
Witnesses have sworn to the condition of Killroy's bayonet, that { 266 } it was bloody the morning after the 5th of March. The blood they saw, if any, might be occasioned by a wound given by some of the bayonets in the affray, possibly in Mr. Fosdick's arm, or it might happen, in the manner mentioned by my brother before. One bayonet at least was struck off and it might fall, where the blood of some person slain afterwards flowed. It would be doing violence to every rule of law and evidence, as well as to common sense and the feelings of humanity, to infer from the blood on the bayonet, that it had been stabbed into the brains of Mr. Gray after he was dead, and that by Killroy himself who had killed him.
Young Mr. Davis swears, that he saw Gray that evening, a little before the firing, that he had a stick under his arm, and said he would go to the riot, “I am glad of it, (that is that there was a rumpus) I will go and have a slap at them, if I lose my life.” And when he was upon the spot, some witnesses swear, he did not act that peaceable in-offensive part, which Langford thinks he did. They swear, they thought him in liquor—that he run about clapping several people on the shoulders saying, “Dont run away”—“they dare not fire.” Langford goes on “I saw twenty or five and twenty boys about the Sentinal—and I spoke to him, and bid him not be afraid.”—How came the Watchman Langford to tell him not to be afraid. Does not this circumstance prove, that he thought there was danger, or at least that the Sentinel in fact, was terrified and did think himself in danger. Langford goes on “I saw about twenty or five and twenty boys that is young shavers.”—We have been entertained with a great variety of phrases, to avoid calling this sort of people a mob.—Some call them shavers, some call them genius's.—The plain English is gentlemen, most probably a motley rabble of saucy boys, negroes and molattoes, Irish teagues49 and out landish jack tarrs.—And why we should scruple to call such a set of people a mob, I can't conceive, unless the name is too respectable for them: —The sun is not about to stand still or go out, nor the rivers to dry up because there was a mob in Boston on the 5th of March that attacked a party of soldiers.—Such things are not new in the world, nor in the British dominions, though they are comparatively, rareties and novelties in this town. Carr a native of Ireland had often been concerned in such attacks, and indeed, from the nature of things, soldiers quartered in a populous town, will always occasion two mobs, where they prevent one.—They are wretched conservators of the peace!
Langford “heard the rattling against the guns, but saw nothing { 267 } thrown.”—This rattling must have been very remarkable, as so many witnesses heard it, who were not in a situation to see what caused it. These things which hit the guns made a noise, those which hit the soldiers persons, did not—But when so many things were thrown and so many hit their guns, to suppose that none struck their persons is incredible. Langford goes on “Gray struck me on the shoulder and asked me what is to pay? I answered, I don't know but I believe something will come of it, by and bye.”—Whence could this apprehension of mischief arise, if Langford did not think the assault, the squabble, the affray was such as would provoke the soldiers to fire?—“a bayonet went through my great coat and jacket,” yet the soldier did not step out of his place. This looks as if Langford was nearer to the party than became a watchman. Forty or fifty people round the soldiers, and more coming from Quaker-lane, as well as the other lanes. The soldiers heard all the bells ringing and saw people coming from every point of the compass to the assistance of those who were insulting, assaulting, beating and abusing of them—what had they to expect but destruction, if they had not thus early taken measures to defend themselves?
Brewer saw Killroy, &c. saw Dr. Young, &c. “he said the people had better go home.” It was an excellent advice, happy for some of them had they followed it, but it seems all advice was lost on these persons, they would harken to none that was given them in Dock-square, Royal exchange-lane or King-street, they were bent on making this assault, and on their own destruction.
The next witness that knows any thing, was, James Bailey, he saw Carrol, Montgomery and White, he saw some round the Sentry, heaving pieces of ice, large and hard enough to hurt any man, as big as your fist: one question is whether the Sentinel was attacked or not.—If you want evidence of an attack upon him there is enough of it, here is a witness an inhabitant of the town, surely no friend to the soldiers, for he was engaged against them at the Rope-walks; he says he saw twenty or thirty round the Sentry, pelting with cakes of ice, as big as one's fist; certainly cakes of ice of this size may kill a man, if they happen to hit some part of the head. So that, here was an attack on the Sentinel, the consequence of which he had reason to dread, and it was prudent in him to call for the Main-Guard: he retreated as far as he could, he attempted to get into the Custom-house, but could not; then he called to the Guard, and he had a good right to call for their assistance; “he did not know, he told the witness, what was the matter,” “but he was afraid there would be mischief by and bye;” and well he might, with so many shavers and genius's round him—capable of { 268 } throwing such dangerous things. Bailey swears, Montgomery fired the first gun, and that he stood at the right, “the next man to me, I stood behind him, &c.” This witness certainly is not prejudiced in favour of the soldiers, he swears, he saw a man come up to Montgomery with a club, and knock him down before he fired, and that he not only fell himself, but his gun flew out of his hand, and as soon as he rose he took it up and fired. If he was knocked down on his station, had he not reason to think his life in danger, or did it not raise his passions and put him off his guard; so that it cannot be more than manslaughter.
When the multitude was shouting and huzzaing, and threatning life, the bells all ringing, the mob whistle screaming and rending like an Indian yell, the people from all quarters throwing every species of rubbish they could pick up in the street, and some who were quite on the other side of the street throwing clubs at the whole party, Montgomery in particular, smote with a club and knocked down, and as soon as he could rise and take up his firelock, another club from a far struck his breast or shoulder, what could he do? Do you expect he should behave like a Stoick Philosopher lost in Apathy? Patient as Epictatus while his master was breaking his leggs with a cudgel?50 It is impossible you should find him guilty of murder. You must suppose him divested of all human passions, if you don't think him at the least provoked, thrown off his guard, and into the furor brevis, by such treatment as this.
Bailey “Saw the Molatto seven or eight minutes before the firing, at the head of twenty or thirty sailors in Corn-hill, and he had a large cordwood stick.” So that this Attucks, by this testimony of Bailey compared with that of Andrew, and some others, appears to have undertaken to be the hero of the night; and to lead this army with banners, to form them in the first place in Dock square, and march them up to King-street, with their clubs; they passed through the main-street up to the Main-guard, in order to make the attack. If this was not an unlawful assembly, there never was one in the world. Attucks with his myrmidons comes round Jockson's[Jackson's] corner, and down to the party by the Sentry-box; when the soldiers pushed the people off, this man with his party cried, do not be afraid of them, they dare not fire, kill them! kill them! knock them over! And he tried to knock their brains out. It is plain the soldiers did not leave { 269 } their station, but cried to the people, stand off: now to have this reinforcement coming down under the command of a stout Molatto fellow, whose very looks, was enough to terrify any person, what had not the soldiers then to fear? He had hardiness enough to fall in upon them, and with one hand took hold of a bayonet, and with the other knocked the man down: This was the behaviour of Attucks;— to whose mad behaviour, in all probability, the dreadful carnage of that night, is chiefly to be ascribed. And it is in this manner, this town has been often treated; a Carr from Ireland, and an Attucks from Framingham, happening to be here, shall sally out upon their thoughtless enterprizes, at the head of such a rabble of Negroes, &c. as they can collect together, and then there are not wanting, persons to ascribe all their doings to the good people of the town.
Mr. Adams proceeded to a minute consideration of every witness produced on the crown side; and endeavoured to shew, from the evidence on that side, which could not be contested by the council for the crown, that the assault upon the party, was sufficiently dangerous to justify the prisoners; at least, that it was sufficiently provoking, to reduce to manslaughter the crime, even of the two who were supposed to be proved to have killed. But it would swell this publication too much, to insert his observations at large, and there is the less necessity for it, as they will probably occur to every man who reads the evidence with attention. He then proceeded to consider the testimonies of the witnesses for the prisoners, which must also be omitted: And conc[l]uded,
I will enlarge no more on the evidence, but submit it to you.—Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence: nor is the law less stable than the fact; if an assault was made to endanger their lives, the law is clear, they had a right to kill in their own defence; if it was not so severe as to endanger their lives, yet if they were assaulted at all, struck and abused by blows of any sort, by snow-balls, oyster-shells, cinders, clubs, or sticks of any kind; this was a provocation, for which the law reduces the offence of killing, down to manslaughter, in consideration of those passions in our nature, which cannot be eradicated. To your candour and justice I submit the prisoners and their cause.
The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating { 270 } course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men. To use the words of a great and worthy man, a patriot, and an hero, and enlightned friend of mankind, and a martyr to liberty; I mean Algernon Sidney, who from his earliest infancy sought a tranquil retirement under the shadow of the tree of liberty, with his tongue, his pen, and his sword, “The law, (says he,) no passion can disturb. Tis void of desire and fear, lust and anger. 'Tis menc sine affectu; written reason; retaining some measure of the 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.”51 On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder to the clamours of the populace.
1. Wemms Trial 148–178.
2. “[I]f, by supporting the rights of mankind and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance, equally fatal; his blessing and tears of transport, will be a sufficient consolation to me for the contempt of all mankind.” Beccaria, An Essay on Crimes and Punishments 42–43. See note 11132 above; 1 JA, Diary and Autobiography352–353
3. All the following authorities had been cited in Preston's trial.
4. Roughly, “It is preferable that the guilty be acquitted than that the innocent be condemned.”
5. The exact citation has not been established. 3 Blackstone, Commentaries * 4, refers to “self-defence . . . the primary law of nature.” See Rex v. Preston, note 24110.
6. 4 Blackstone, Commentaries *186, discusses this example, attributing it to Bacon (Francis Bacon, Elements of The Common Laws of England, c. 5) and referring to 1 Hawkins, Pleas of the Crown 73, which also discusses the example and attributes it to “Dal. Cap 98,” which may be Michael Dalton, The Country Justice. In the edition JA used (London 1746) the point appears in chapter 150, at p. 339.
7. See notes 30151 and 31152 above.
8. Wemms Trial erroneously reads “persons.”
9. See note 30151 above.
10. 1 Hawkins, Pleas of the Crown 72. (The section reference should be 23.)
12. 1 Hawkins, Pleas of the Crown 71, with immaterial grammatical shifts.
15. See note 31152 above.
21. The references are presumably to Crompton, L'Authoritie et Jurisdiction des Court de la Maieste de la Royaume 25a (1594), and to Dalton, The Country Justice. See note 6183 above. In the edition of Dalton which JA used (London, 1746), the point appears in chapter 145, at p. 331.
22. 1 Hale, Pleas of the Crown 440. Despite the quotation marks, JA is here only summarizing.
23. Foster, Crown Cases 353–354. Foster says “explicitly entered.”
25. 1 Hawkins, Pleas of the Crown 156: “[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.”
26. 1 Hawkins, Pleas of the Crown 156.
27. 1 Hawkins, Pleas of the Crown 156. The passage continues:
“because the Design of their Meeting was innocent and lawful, and the subsequent Breach of the Peace, happened unexpectedly without any previous Intention concerning it; yet it is said, That if Persons, innocently assembled together, do afterwards upon a Dispute happening to arise among them, form themselves into Parties, with Promises of mutual Assistance, and then make an Affray, They are guilty of a Riot, because upon their confederating together with an Intention to break the Peace, they may as properly be said to be assembled together for that Purpose from the Time of such Confederacy, as if their first coming together had been on such a Design.”
29. The reference is apparently to Samuel Butler's Hudibras, Part II, Canto II, lines 605–658. The editors have used the London edition of 1739.
30. Reg. v. Mawgridge, Kelyng 119, 136, 137, 84 Eng. Rep. 1107, 1114, 1115 (Q.B. 1707).
31. Reg. v. Tooley et al., 2 Ld. Raym. 1296, 1301, 1302, 92 Eng. Rep. 349, 352, 353 (Q.B. 1709).
32. Foster, Crown Cases 312:
“The Doctrine advanced in the Case of The Queen against Tooly and Others hath, I conceive, carried the Law in favour of Private Persons Officiously interposing farther than sound Reason founded in the Principles of true Policy will warrant. I say Officiously Interposing, because the Interposition of Private Persons in the Cases I have mentioned, for preserving the Peace and preventing Bloodshed, standeth upon quite a different Foot.”
Foster continues the discussion at p. 313–316.
33. The individual has not been identified.
35. The reference is to Josiah Quincy's argument, text following note 53174 above, Wemms Trial 145–146. Quotation marks, brackets, punctuation, and italics follow the original; see Wemms Trial 163.
36. Foster, Crown Cases 261–262.
40. See note 47168 above. “Killing the Woman who was hired to wash. This was innocent Blood.” Paine Massacre Notes. No such instance appears at the cited page.
41. The paragraphs printed following the asterisk below appear as a footnote in the Wemms Trial 164–165. They were clearly based on JA's research in Rex v. Corbet, No. 56; citations for all the authorities may be found in the documentary text of that case.
* The distinction between Murder and Manslaughter, is more easily confounded than many other distinctions of Law relative to Homicide. And many persons among us seem to think that the punishment of Death ought to be inflicted upon all voluntary killing one private man by another, whether done suddenly or deliberately, cooly or in anger. These received notions may have originated partly from a false construction of the general precept to Noah, whoso sheddeth man's blood, by man shall his blood be shed. But may not some of these mistaken notions have been derived from law books. We find the distinction between Murder and Manslaughter, sometimes attributed to the peculiar benignity of the English law, and it is sometimes represented that the particular fact which the law of England calls Manslaughter, and indulges with Clergy, is punished with death in all other laws.
Vide Observations on the Statutes page 54. By the law of Scotland, there is no such thing as Manslaughter, nor by the civil law; and therefore a criminal indicted for Murder under the Statute of Henry the Eighth, where the Judges proceed by the rules of the civil law, must either be found guilty of the Murder or acquitted—and in another place, Observations on the Statutes 422. Note (z.) I have before observed that by the civil law, as well as the law of Scotland, there is no such offence, as what is, with us termed Manslaughter: Sir Michael Foster 288. If taking general verdicts of acquittal, in plain cases of death, Per Infortunium, &c. deserveth the name of a deviation, it is far short of what is constantly practiced at an Admiralty sessions, under 28. H. 8. with regard to offences not ousted of Clergy by particular statutes, which had they been committed at land would have been intituled to Clergy. In these cases the Jury is constantly directed to acquit the prisoner; because the marine law doth not allow of Clergy in any case, and therefore in an indictment for murder on the high seas, if the fact cometh out upon evidence to be no more than Manslaughter, supposing it to have been committed at land, the prisoner is constantly acquitted.
II. Lord Raymond 1496. His Lordship says, “From these cases it appears, that though the law of England, is so far peculiarly favourable (I use the word peculiarly because I know of no other law, that makes such a distinction between Murder and Manslaughter) as to permit the excess of anger and passion (which a man ought to keep under and govern) in some instances to extenuate the greatest of private injuries, as the taking away a man's life is; yet in these cases, it must be such a passion, as for the time deprives him of his reasoning faculties.[”]
I shall not enter into any enquiry, how far the Admiralty sessions in England, or a Special Court of Admiralty in America ought to proceed by the rules of civil law, though it is a question of immense importance to Americans. But must beg leave to observe that though the distinction between Murder and Manslaughter is not found in words in the civil law, yet the distinction between homicide, with deliberation and without deliberation, and on a sudden provocation is well known in that law, and the former is punished with death, the lat[t]>er, with some inferior corporal punishment at the discretion of the Judges.
Indeed the civil law is more favourable, and indulgent to sudden anger and resentment than the common law, and allows many things to be a provocation sufficient to exempt the person killing from the Poena ordinaria, which is death, which the common law considers as a slight provocation or none at all.
Cod. Lib. 9. Tit. 16, Note 46. Gail, page 503. Maranta, page 49. Par. 4. Dist. 1. 77.
It should seem from these authorities, that the lenity and indulgence of the laws of England, is not unnatural, extraordinary, or peculiar, and instead of being unknown in the civil law, that it is carried much further in many respects than in the common law. And indeed it seems that the like indulgence, was permitted in the Jewish law—though it has been so often represented as peculiar to the English law, that many persons seem to think it unwarrantable, and tending to leave the guilt of blood upon the land.
42. See note 45166 above.
47. The reporter's mistake for Austin. A similar error (Bass for Bliss) appears in the preceding paragraph; see p. 219 above.
48. The Boston Gazette, 19 Feb. 1770, Suppl., had contained a full account of the Liberty Pole riots in New York during Jan. 1770.
49. “Anglicized spelling of the Irish name Tadhg. . . . A nickname for an Irishman.” OED.
50. “Epaphroditus, it is said, once gratified his cruelty by twisting his slave's Epictetus' leg in some instrument of torture. 'If you go on, you will break it,' said Epictetus. The wretch did go on, and did break it. 'I told you that you would break it,' said Epictetus quietly, not giving vent to his anguish by a single word or a single groan.” F. W. Farrar, Seekers After God 192 (London, 1891).
51. See Rex v. Preston, text at note 694.

Docno: ADMS-05-03-02-0001-0004-0017

Author: Paine, Robert Treat
DateRange: 1770-12-04 - 1770-12-05

Paine's Argument for the Crown1

4–5 December 1770

May it please &c.
It now remains to close this Cause on the part of the Crown, a cause, which from the Importance of it has been examined with such minuteness and protracted to such a length that I fear it has fatigued your attention as I am certain it has exhausted my Spirits. However Gentlemen it may serve to show you and all the world2 that the Benignity of the English Law, so much relied on by the Council for the Prisoners is well known and attended to among us and Sufficiently applied in the Cause at Barr; far be it from me to advance or even insinuate any thing to the disparagement of that well known Principle of English Law, in Support of which the Council last speaking for the Prisoners has produced so many Authoritys; Nor should I think it needful to remark perticularly on it but that it has been traced thro so many Authoritys and urged with so much []3 as tho it were the foundation of their Defence, or at least a principle Argument relyed on.
But Gentlemen if you consider this Sort of reasoning one moment you will be sensible that it tends more to [amuse?] than <infor> enlighten and without due caution might Captivate your attention { 271 } to that principle of Law which is [endeared?] by the Name of Candour Mercy and Benignity while it draws you intirely from Justice that essential principle without which the Law were but an empty Sound. Justice, strict, Justice is the ultimate Object of our Law. And to me it seems no hard Task to [maintain?] that the Attribute of mercy or Benignity can be ascribed to nothing abstract[ed?] from that of Justice and therefore that a “Law all Mercy[”] would be an [unjustice] and therefore when we talk of the Benignity of the <English> Law We can understand nothing more by it than what is fairly Comprehended in Ld. Coke's Observation on Our Law in General that it is Ultima Ratio the last improvement of Reason which in the nature of it will not admitt any Proposition to be true of which it has not Evidence, nor determine that to be certain of which there remains a doubt; if therefor in the examination of this Cause the Evidence is not sufficient to Convince beyond reasonable Doubt of the Guilt of all or any of the Prisoners by the Benignity and Reason of the Law you will acquit them, but if the Evidence be sufficient to convince you of their Guilt beyond reasonable Doubt the Justice of the Law will require you to declare them Guilty and the Benignity of the Law will be satisfyed in the fairness and impartiality of their Tryal.
I am sensible, Gentlemen I have got the severe side of the question to Conduct. I am arguing against the Lives of eight of our fellow Subjects the Very thought of which is enough to excite your Compassion and to influence my Conduct; the Council for the Crown4 well aware of their Advantage arising from the humane Side of the Question, have availed themselves of all the Observations arising therefrom and have pressed the Defence by such Appeals to the Passions in favor of Life as might be grating to your humanity should I attempt the like against Life. Numberless are the Observations that have been made in order to set the Prisoners in a favorable point of Light and bring them within the notice of your Compassion. It has been represented “that the Life of a Soldier is thought to be less valuable among us than the life of a private Subject” than which nothing can be more ill founded. What ever Wrath and bitterness may have been expressed by Some on Account of the unhappy Transaction now under Examination it was no more than would have been said had the Persons who did it not been Soldiers. Nay the very appearance of this Tryal, the Conduct of the Witnesses, and Spectators and all Concerned in it must Satisfye any one that a Soldiers Life is by no means [undervalued?], but that they have as fair Opportunitys of defence as any { 272 } other Subjects. It has been observed to you Gentlemen that the Evidence against the Prisoners has been for a long time past published and put into all your hands, and the Supposed inconveniencys which the Prisoners labour under on that Account have been Displayed with a vehemence of Expression; []5 for my part I am really at [a] Loss to determine.
The <Truth> whole of the Facts is this. Immediately after the Unhappy Homicide it was very naturally considered as attended with such Circumstances as would engage the Attention of Authority in Great Britain and as it was well known that Representations were making and Dispatches about to be sent respecting the Matter it was thought necessary to collect and send such Evidence as was feared would be omitted that so we might not Suffer in Our Conduct for want of it; the Copys of those Depositions were here Sacredly Concealed, nor would the Contents of them have got Abroad but that Copys printed on the other side the Water came over here and being free from the Controul of the Town were reprinted and for what I know in some means dispersed before the Tryal came on.
But I am really at a loss to determine whether this unexpected and undesigned Event has tended more to the Advantage or disadvantage, of the Prisoners, for it is notorious that by means of it they have known the Strength of the Evidence against them, and had time to prepare to encounter it which is manifest by the Rout [Route] taken in their Defence they have endeavoured, while the Council for the Crown with all their supposed assistance having [neither] seen nor heard of the <witnesses> Evidence to be produced in favour of the Prisoners, were surprised with a great part of it and had not the same Opportunity to prepare Evidence to oppose it which perhaps [they] might have found; but to what purpose is it to exclaim against the hard fate of the Prisoners on account of that Publication or any supposed Rancour against them when you Gentlemen know you are not prejudiced in the Cause nor have [formed?] any Judgment respecting it, as you have declared on your Oaths and when nothing has been or can be objected to the credibility of Witnesses for the Crown and when nothing Appears of Partiality in the manner or matter of their Testimony; but even many Matters are testified by them of which the Council for the Prisoners avail themselves in the Defence and which never could have { 273 } escaped any person whose mind was so unduly agitated with Passion as has been Complaind of.
Relying upon it therefore Gentlemen that as on the one hand you have Concieved none of those Prejudices <compl> against the Prisoners Complained of so on the other hand you will not Suffer your Selves to be amused with a Supposition of facts which do not Exist nor with Representations and Arguments which have no foundation; I shall endeavour to address my self to your Cool and Candid Reason and in the breifest manner I am able consider the Evidence that has been Offered in their Defence, the Arguments and Law that have been applied to it, and then observing on the Evidence against the Prisoners and the Law operating thereon, I shall rest the Matter with you.
In the first place, Gentlemen, you percieve that a very considerable part of the Evidence produced by the Prisoners is designed to prove to you that on the Evning of the 5th of March the Town was in a genral Commotion that vast Numbers of People were seen coming from all parts of the Town Armed with Clubbs and Sticks of various Sizes and some with Guns and that they Assembled at and Near King Street that Fire was cryed and the Bells rung in Order to encrease the Collection and from all this you may be induced to believe that there was a genral design in a great Number of the Inhabitants to Attack the Soldiers, that it was the Inhabitants who began the disorders of the Evning and that all the Misfortunes of it was the Effect of their disorderly Conduct. But Gentlemen if we recollect the Evidence we shall find that previous to all this Collection [a] Number of Soldiers had come out of their Barracks Armed with Clubbs Bayonet[s] Cutlasses Tongs and Instruments of divers kind and in the most disorderly and outrageous manner were ravaging the Streets Assaulting every one they met and even turning out of their way to Assault and enda[n]ger the Lives of some of the most peaceable Inhabitants who were standing at their own Doors and who did nor said any thing to them. For the Truth of this Consider the Testimony of Mr. Appleton, Kneeland and Thayer and even vented their inhumanity on a little Boy of 12 years old. That <they> some of them were conspiring to Blow up Liberty Tree in the manner as had been done at N. York the account of which had then just come among us, and the Plan they were laying for doing it as appears by the Testimony of Mr. Cox. Consider also the Testimony we have from Col. Marshall, Bailey, Crookshanks, Mr. B. Davis and others who declare the outrageous appearance, Behaviour and threatnings of the Soldiers at other times and places that Evning. Consider also the Testimony of those who give { 274 } an account of the Affray at Murrays Barracks where by the Testimony of Mr. Archibald 18 or 20 Soldiers had rushed out with Cutlasses Tongs &c. attacking all that came in their way struck him and another Person and cut an Oysterman on the Sholdier of whose Testimony we are deprived by reason of his Abscence. I mention this Testimony of Mr. Archibald as also that of Mr. Bass the more particularly as in all proba[bi]lity it was the begining of that affair at those Barracks of which so much has been said. Consider also the Testimony of Mr. Wilkenson and Helyer to the Behaviour of the Soldiers and Inhabitants at that place and it will represent to you the true Light in which that Affair ought to be viewed.
The Inhabitants had for a Long while been fully sensible of the ill disposition and Abusive Behaviour of many of the Soldiers towards them and the most peaceable among us had <thought> found it necessary to arm themselves with heavy Walking Sticks or Weapons of Defence when they went abroad. This Occasioned that appearance of Sticks in almost every ones hand which has been testified and which in fact was little more than might have been seen on any other night.
In order to draw this affair to one point of view you will consider the Account given you of the affray at the Ropewalks at 4 or 5 different times some few days before in some [one or] other of which Warren, Kilroy and Carrol three of the Prisoners at the Barr were present. From Mr. Ferriters Testimony it is clear that Affray began first by the abuse of [i.e. from] the Soldier and that previous to the unseemly Answer given by one of the Workmen. From this Testimony the Testimony of James Bayley and also of Col. Hill a Majestrate of the County (as when they struck after he had told em he was)6 we have such an Account of the Riotous barbarous ungoverned and ungovernable Behaviour of those Soldiers as must necessarily fill the minds of the Inhabitants with very alarming Prospects which when added to the Behaviour of the Soldiers on the unhappy Evning must naturally give rise to all that appearance.
There can be no doubt but that the Collection of people that were seen that night was occasioned by many different Causes. It evidently appears it was a bright moon light Evning the pleasantness of which increasd by a new fall'n Snow [ . . . ] many persons to be walking the Streets, <and some of them> these hearing of the outrages of the Soldiers stop'd to see and enquire of the matter and some of them might join with those who were abused and make preparation to defend them• { 275 } selves. Such were those who being abused by the Soldiers at Murrays Barracks ran down to Dock Square and began to pull the Leggs out of the Bu[t]chers Stalls as is testified by Bass and is doubtless the same Appearance Testified by Hewes and some other of their Witnesses. Great Numbers were brought by the ringing of the Bells and cry of Fire which cry by Coll. Marshalls Account was repeated by the Soldiers as well as some of the Inhabitants. Upon this Numbers came out of their Houses from all parts with Bucketts and Baggs as is usual in case of Fire and many Witnesses testify of a Number of Fire Engines that were drawn out on the Occasion of these. Great Numbers went away. Some few tarried to see the End of those disorders of which they had had such repeated accounts.
The Account given by Mr. William Hunter, Michelson, Selkrig and Bowman all relate to the same Collection of People in Dock Square7 which they observed from Mr. Hunters Balcony. Mr. Bowman's Account is that as the Bells rung the People collected and asked where the fire was. The Account[s] given by Dr. Hirons, Capt. Goldfinch, Dr. Jeffrys and Thos. Simmons appear evidently to have been the Consequence of the Soldiers rushing out in the manner before described and however little it can be justified yet who can say that any thing better could be expected when they found they could not walk their Streets in peace without danger of assasination. But how doth all this prove the grand point for which it must have [been] produced vizt. that there was a combination among the Inhabitants to attack the Soldiery; Does the threatning Rude and indecent Speeches of which so much pains has been taken to give you Evidence prove any thing like this? Is it to be wondered at that among a Number of people collected on such an Occasion there should be some who should rashly and without design express themselves in such a manner and must the disposition and intention of the whole be collected from such Expressions heard only by a few.8
Was it Lawful for the Inhabitants of Boston to <be in> walk the Streets that Evning and with Sticks? Was it Lawful for them to run on the Cry of Fire? Was it lawful for them to stop to enquire into any disturbance that had hapned, and while they were thus walking running or enquiring must they be Answerable for the rude Speech of every person that happens to be near them, when it does not appear { 276 } they assented to them or joined in putting them in Execution? How many Sailors and foreigners of the lower Class may we well suppose there is in so populous a Sea Port who are fond of mingling with such Commotions and pushing on a disorder of which they feel not the Consequence. In all this Gentlemen I go upon the Supposition that the Witnesses who have testified of these threatning Speaches are not mistaken or omitted some Circumstance that might alter the force of them; and how far there is a [possibility] of that you will judge when you consider the great Confusion they give an account of Concomitant there with; to me Gentlemen it seems clearly that if those Speaches were made in the manner that has been testified, however rude and indiscreet yet they are rather to be resolved into that <frenzy of> undisciplined Resentment and those frantick transports of Passion which naturally take place among a free People Oppressed and galled with the ravagings of an ungoverned Soldiery, than to be construed as Evidence of an Insurrection or a design to put in Execution the Supposed threats; And really when we trace the Evidence to the End of the affair we dont find an attempt to put them in Execution.
What Attack was made or pretended to be made on the Main Guard? <What> Consider the Evidence respecting the people who ran up Cornhill, and there Number quality and arms were such as must render the Supposition of such an attempt the Subject of Ridicule rather than Serious Argument. Of the 200 Collected in Dock Square as testified by the Gentlemen in the Balcony, who Huzza'd for the M[ain] G[uard] and ran several ways to K[ing] S[treet] together with the large Company from M[urray's] Barracks some of whom ran toward the Town House as testified by others, we find but a very few that ever got into K.S.; for by the best Account we dont find above 70 or 80 there some very Credible Witnesses of good Judgment say 50 or 60 and some say about 100 and as many Boys as men, and of these it is <evident> clear from the Current of the Evidence that many Came from else where and but a small proportion had Sticks; So that either the Gentlemen who have testified concerning the Number in Dock Square and at Murray Barracks must <either> be mistaken as to their Number which is no Reflection on them to Suppose or else but a small part of them must have gone into K. Street.
Let us now enquire whether those <few> of them who did arrive in K.S. or any Body else made an attack on the Soldiery there. For this Gentlemen is the purpose of all this Evidence, the Prisoners would have you believe that a Number of Men Armed with Clubs rush'd down into K.S. first assaulted their Centry there and then surrounded { 277 } and assaulted them when they came to <relieve and> Support him and endangered their Lives in such a manner as that they were obliged to fire on them for their own preservation or else to what purpose has so much time been spent in producing this Evidence. It was designed undoubtedly to give Such a Coloring to the Appearance and behaviour of the people in K.S. as may render them a riotous and unlawful assembly and the <proper> objects of Fear and resentment to the Party.
Let us now draw the matter closer home and see how it will turn out. It appears from the Evidence of many the K.S. at 9 oClock was clear of People and free from disturbance, till the Centry White that Prisner at the Barr, took upon him to Strike a Boy for Speaking saucily of a Capt. The Complaints of the Boy engaged the Attention of the People hereabouts as the Abuses offered elsewhere had engaged others. Many are the Witnesses who give some Account of the supposed Attacks on the Centry [ . . . ] thereon and very different are these accounts of it; Some tell you it was only a few Boys that they threw Snow Balls at him but none hit him and some of the most intelligeable persons agree in this. Some [say] that he called for the M[ain] G[uard]. Others as likely to have heard nothing of it and several of the Witnesses tell you that the Affair seemd subsiding and that they should have gone away if the Party had not come down. Some of the Witnesses tell you there was not above 12 People by the Centry when the Party came down, but the people who were collected <by the ringing of> on the Supposition of Fire and who were standing in Knots as some of the Witnesses <gathered round> tell came when the Party came.
The Evidence must Satisfye you that the people who Composed this Collection were of various kinds and various were their designs of coming. <Number> Some of them were people of fair Characters and peaceable dispositions and who mingled with the rest to use their Endeavours to prevent any Mischiefs which [many?] Witnesses tell you they saw nothing of the violent Abuses offered to the Soldiers <testified of by others> nor heard the Threats and loud Hallowings testified of by others. Some of this Collection were Boys and Negros drawn there by the Curiosity peculiar to their disposition, and without doubt might throw some Snow Balls, and its quite natural to believe from the Evidence and the Nature of the thing that there were some there armed with Sticks and Clubbs determin'd if the Soldiers abused them in the manner they had <done> the Inhabitants that Evning and at times before to try the weight of them and had repaired into K.S. on a Supposition that those Soldiers who had began the disorder of the Evening at a time when they ought to have been in their Barracks were con• { 278 } tinuing their disorders there, (for it appears about the time of the attack on the Centry [several?] partys of Soldiers were seen in K.S. armed with clubbs Cutlasses &c.;) and that they had not the least design or Idea of Attacking a Party on duty.9 And many other peaceable people gathered there meerly to see what was going on.
Can any person living from the history of this Affair as it turns up in Evidence Suppose these persons were such dangerous rioters as to bring them within those Rules of Law which have been read to you that it is lawful to kill them; Shall the innocent and peaceable who by meer Casualty are mixt with [some?] of the ruder Sort be liable to be Shot down by a Party of Soldiers meerly because they please to call 'em dangerous Rioters? Tis the Action [Generally?] and not a few [Angry?] tho threatning Expressions that constitutes any Riot and the Agreement of the whole Body that makes 'em Partys. This appears from some of the Authoritys read.
Great pains has been taken to satisfye you that this Collection of People actually <attacked> assaulted and endangered the lives of the Party. Great numbers have testified concerning this affair and their accounts of the matter are [very?] various. Numbers of the most impartial and Judicious and who stood in the best Scituation of observation saw nothing of such Transactions as are testified by others which one would think could not escape there notice. The Showers of Snow Balls, Oyster Shells and multitude of Sticks. The frequent and loud Huzzaing and threatning Crys which some relate were in some measure and in some instances totally unobserved by a very great Number of the best Witnesses many of whom were produced by the Prisoners and whose Credibility, Judgment and Scituation was equally good as those who relate it. But say their Council Shall negative Evidence out Weigh Positive? Undoubtedly in some cases it may Satisfy the [mind?] and in others it may raise a doubt. In this Case the fact asserted is of such a Nature as must be very much affected by negative Evidence; is it possible to conceive that such facts should exist as have been asserted and escape the notice of <such> so great Numbers of such Witnesses? If the facts did exist it must have only been in such a degree, as only to be observed accidently by a few and not in such a manner as to engage the notice of the whole; but great relyance is placed on the dying Speech of Carr one of the deceased as testified by Dr. Jeffrys; to me Gentlemen it seems unaccountable that any Stress should be laid { 279 } on this Evidence, Carr it seems was for taking a Sword when he went out; whether to fight for or against the Soldiers is very uncertain, by his Country and behaviour, one would think the latter for he never joined with the people nor went within six Rods of them, had been there but a very Short Space of time and was going from them When he was Shot, and I cant concieve why his Judgment of the matter whose Character and disposition we know not, without the obligation of an Oath and so scituated tho a dying Man should weigh more than the Testimony of Numbers of Judicious reputable Witnesses who were in the midst of it and told you they saw nothing that should occasion them to fire and wondered at the reason of it, and thot if they had Suspected any such thing they should have gone away and when they were so Scituated as to be in danger themselves and one of them had his Surtot Scorched and much more to the same purpose. But it is insisted on that Montgomery was knock'd down previous to the firing; <that> when you recollect the Account given by Fosdick and Danbrook, <and of> Mr. Palmes a Witness on the same Side you will at least doubt the time of it and conclude it to be the same transaction he testifys of when he and many others say he could not be without their seeing it.
No one will pretend to deny the Numerous Authority produced in the Case. The grand Question is whether they apply to the Evidence and in order to [do] this let us recapitulate the Argument. It is proved to you Gentlemen that all the Prisoners at the Bar were present in K.S. at the firing. It appears by the current of the testimony that 7 Guns were fired, and it appears pretty certain that Wemys, the Corporal was the one who did not fire. It is certain that five men were killed by the firing of which Montgomery killed Attucks and Kilroy killed Grey.
But which of the other 5 prisoners killed the other 3 of the deceased appears very uncertain. But this operates nothing in their favour if it appears to you that they were an unlawful Assembly for it has been abundantly proved to you by the Numerous Authoritys produced by the Council for the Prisoners, that every individual of an Unlawful Assembly is answerable for the doings [of] the rest. They are all considered as Principals, and all that are present aiding assisting and abetting to the doing an unlawful act as is charged in the Several Indictments against the Prisoners are also considered as Principals. The Council aware of this have endeavoured to make it appear they were a lawful Assembly that the Centry was duly Stationed at the Custom House and that the Party had a right and actually did come to Support him and so were a lawful Assembly. But it must be remembered that no Man or body of Men have a right to do a lawful Action in an unlawful { 280 } Manner if they do they become an unlawful Assembly. You recollect the Evidence of the forcible Manner of their going down pushing all those who stood in their way and of their Behaviour at their first arrival pushing their Bayonets at several people standing peacably there, and even tho they were Lawfully assembled when they got there yet the moment they turned their Arms on the People without just Cause they became an Unlawful Assembly in such a [sense?] as that all are answerable for the doings of any one. The Kings Troops have undoubtedly a right to march thro' the Streets and as such are a Lawful Assembly. But if in such marching without just Cause they fire on the Inhabitants and but one man is kill'd they Surely are all answerable tho it cant be proved who did the Execution. What better is this Case. If there was a just Cause for firing they will be acquitted on that plea and there will [be] no Occasion to determine the legality of their Assembling. If there was no just Cause of firing how will you excuse them all of the Guilt tho it is not proved who were the actual perpetrators. When you recollect further, the Account given you by many Witnesses, that on firing the first Gun the people dispersed and were in a Manner withdrawn to a distance at the firing the last Guns that the last Gun was fired at a Boy at a distance running down Street; that they presented their firelocks again at the few people who came with the Chirugeon to pick up the Dead it appears to me you must be Satisfy'd they were possessed of that Wicked depraved malignant Spirit which constitutes Malice, that from the whole Evidence taken together no just Cause appears for such outrageous Conduct and therefore that they must be considered as aiding and assisting each other in this unlawful Act which the lawfulness of their Assembling will not excuse; can it ever be supposed that the Law even the Benignity of the Law which is very necessarily here called in to their Aid will admit of so pitiful evasion as this. Will not the reason of the Law impute Guilt to all of them tho at first lawfully assembled seeing they joined in doing an unlawful Action and so that Gentlemen the final Result of the whole matter must turn on a mere question of facts.
It has been shewn you Gentlemen that all killing at the first blush is Murder in the Eye of the Law and that the Prisoner must make out the facts which he relys on for his Jus[tification] Exc[use] or Alleviation: unless they appear from the Witnesses who testify of the killing.10
{ 281 }
Does there appear Sufficient Evidence to justify or excuse the killing in Order for which it must appear to be done to prevent the Commission of a known felony. Black. Com. 4th. p. 181.11 It seems Montgomery was not knock'd down if at all till he pushed with his Bayonet and the Blow was not followed. Had the people intended any more than to resent the insolence of the Party who were pushing and wounding them they certainly would have Executed their design on the discharge of the Guns. But nothing of that kind appears. The plea of Self Defence which is made for them must inevitably fail unless you can be Satisfied there was no other possible way of Saving their Lives but by <firing> killing. Fost. 278.12 1 HPC.13 No one who recollects that till the firing the 1st Gun Capt. Preston Stood talking with a Witness can believe this to be the Case and if so it was an unlawful act to kill, and as they were all combined in the firing they are all answerable.
Neither Gentlemen doth it seem by taking the Evidence all together it will alleviate their Crime to Man Slaughter, Shall throwing a Snow Ball from a Distance alleviate the Crime of firing Ball amidst a Number of people who at first stood so thick they could not throw and as the Witnesses some that they most rely on tell you were crouding back? Shall this be likened to the filliping a man on the Forehead as has been read to you?14 Is it not manifest that in that Case the very Assailant was killed, but here it appears that none of the persons killed were assailants. Attacks 15 feet off leaning on his Stick, Gray 12 feet off with his hand in his Bosom, and the other three just run into the Street and scarce knew of the Affair before they were shot down. Tis to human Frailty and that only and not to such Brutal Rage and Diabolical Malignity as must have impelled the Prisners to fire as they did; <if there was provocation enough to have provoked a Cholerick Man>
Indeed if you believe that Montgomery was knock'd down in the manner <Testified> asserted his Crime I acknowledge can amount no higher than Manslaughter; but what Evidence is there that any of the rest recieving such a provocation before firing as will alleviate their Crime. The left wing of the Party was uncovered by the People, the Croud was chiefly at the Right. Andrew indeed supposes Kilroy was { 282 } struck but when we consider he looked about and saw Attucks fall he must have Confounded this fact as in my Opinion he has many others. The Witness who testifys of Kilroys killing Grey puts it beyond dispute that he shot him deliberately and after Caution not to fire and the Witness must have seen the blow if he had received any. When you consider the Evidence against Kilroy, his previous threatning and that repeatedly after admonition <you must unavoidably I think> and the express Evidence of killing Gray and the manner of it I think you must unavoidably find him Guilty of murder. What your Judgment should think of the rest tho the Evidence is undoubtedly the fullest against him, yet it [ . . . ] full enough against the rest.
2. Paine here uses a circle to symbolize “world.”
3. Blank in MS.
4. An inadvertence for “prisoners.”
5. A small interval of space in the MS indicates that some words have been omitted here. If the phrase “the design of which” is inserted, the passage makes sense. This phrase was, in fact, silently inserted at the point by Alden Bradford in his version of Paine's argument (see Descriptive List of Sources and Documents) along with other improvements that are less warranted.
6. The words enclosed in editorially supplied parentheses are interlined in the MS.
7. Paine here drew a square.
8. This is the point to which the text of Paine's argument as printed in Sanderson's Lives of the Signers extends. (See Descriptive List of Sources and Documents.)
9. All the matter in this long sentence beginning “and had repaired” and ending at this point appears on a following MS page. A caret indicates the place where Paine apparently wished to insert it; it is here so inserted.
10. The foregoing paragraph appears in the MS before the preceding paragraph, but is bracketed, and a note by Paine shows that it is to be inserted here. Paine's reference is to Foster, Crown Cases 255.
11. 4 Blackstone, Commentaries *181: “[W] here a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting.”
12. Foster, Crown Cases 278 discusses the plea of self-defense.
13. The exact page reference in Hawkins, Pleas of the Crown has not been identified.
14. See JA's argument, Doc. XVI, text at note 44221. Josiah Quincy had made the same point. See Doc. XV, notes 38159, 44165.

Docno: ADMS-05-03-02-0001-0004-0018

DateRange: 1770-12-04 - 1770-12-05


4–5 December 1770

TUESDAY [4 December], half past FIVE o'Clock, p.m. (Mr. Paine not having gone through his argument) the Court adjourned to Wednesday morning, Eight o'Clock.
WEDNESDAY morning [5 December], Eight o'Clock, the court met according to Adjournment, when Mr. Paine finished closing, and the Court proceeded to sum up the cause to the Jury.
1. Wemms Trial 178.

Docno: ADMS-05-03-02-0001-0004-0019

Author: Trowbridge, Edmund
Author: Oliver, Peter
Date: 1770-12-05

Trowbridge's and Oliver's Charges to the Jury1

5 December 1770

Justice Trowbridge
Gentlemen of the Jury,
William Wemms, James Hartegan, William McCauley, Hugh White, Matthew Killroy, William Warren, John Carrol and Hugh Montgomery, prisoners at the bar, are charged by the Grand Jurors for the body of this county, with having feloniously and of their malice aforethought, shot and thereby killed and murdered Samuel Maverick, Samuel Gray, James Caldwell, Patrick Carr, and Crispus Attucks, against the peace, crown and dignity of our Sovereign Lord the King; { 283 } altho' it is laid in each indictment that some one of the prisoners in particular gave the mortal wound, yet as all the rest of them are charged with being present aiding and abetting him to do it, they are all charged as principals in the murder; and therefore, if upon consideration of the evidence given in this case, it should appear to you that all the prisoners gave the mortal wound, or that any one of them did it, and that the rest were present aiding and abetting him to do it, the indictment will be well maintained against all the prisoners, so far as respects the killing, because in such case, the stroke of one is, in consideration of law, the stroke of all.2 And as the crime whereof the prisoners are accused is of such a nature as that it might have been committed by any one of them, though the indictments purport a joint charge, yet the law looks on the charge as several against each of the prisoners.3 To this charge they have severally pleaded Not Guilty, and thereby thrown the burden of proof upon the crown. Considering how much time has already been taken up in this case, and the multiplicity of evidence that has been given in it, I shall not spend any time in recapitulating what each witness has testified, especially as your Foreman has taken it in writing from the mouths of the witnesses,4 but shall endeavour to point out the manner in which the { 284 } various testimonies are to be considered, and how the evidence given is to be applied, still leaving it with you to determine how far that which has been testified by each witness is to be believed. But before I do this, it may not be improper, considering what has in the course of this year been advanced, published, and industriously propagated among the people, to observe to you that none of the indictments against the prisoners are founded on the act of this province, or the law given to the Jews, but that, all of them are indictments at common law.5 The prisoners are charged with having offended against the common law, and that only; by that law therefore they are to be judged, and by that law condemned, or else they must be acquitted. This seems to make it highly proper for me to say something to you upon the common law, upon homicide and the several kinds and degrees of it, and the rules for trial of homicide as settled and established by the common law. The laws of England are of two kinds, the unwritten or common law, and the written or statute law. The general customs or immemorial usage of the English nation, is properly the common law. And the evidence thereof are the Records of the several Courts of Justice, the Books of Reports and Judicial Decisions, and the Treatises of the Sages of the Law, handed down to us from the times of the highest antiquity.6 The common law is the law by which the proceedings and determinations in the King's ordinary Courts of Justice, are guided and directed. This law is the birth right of every Englishman. The first settlers of this country brought it from England with them. It was in force here when the act of this province against murder was made.7 Murder here was then felony by common law, and excluded Clergy by, 23 H. 8. c. 1.8 and 1. Edw. 6. c. 12.9 So that, that province act, created no new felony. It was in affirmance of the common law. If murder by that act had been made a new felony, a murderer would now be intituled to the benefit of clergy by force of 25. E. 3. c. 4.10 because it is not taken away by that province act or any other made { 285 } since.11 Homicide is of three kinds, justifiable, excusable, and felonious. The first has no share of guilt at all—the second very little, but the third is the highest crime against the law of nature.12 There are also degrees of guilt in felonious homicide, which divide the offence into manslaughter and murder.13 I shall give some instances under each head, proper to be considered in this case, and known at this day. And first of justifiable homicide. Killing him who attempts to rob or murder me, to break open my dwelling-house in the night, or to burn it, or by force to commit any other felony on me, my wife, child, servant, friend, or even a stranger, if it cannot otherwise be prevented, is justifiable.14 By common law it was, and still is, the duty of peace officers, such as Justices of the Peace, Sheriffs, Under-sheriffs, and Constables, to suppress riots, routs, and unlawful assemblies. The Stat. 13. H. 4. c. 8.15 subjected Justices of the Peace, Sheriffs, and Under-sheriffs to the penalty of £100, if they neglected their duty therein. And as the common law obliges the peace officers to suppress riots, &c. so it empowers them to raise a sufficient force to enable them to do it. A Justice of the Peace, Sheriff, or Under-sheriff may raise the power of the county, and the Constable of a town, the people of that town, to aid and assist him in suppressing a riot and apprehending the rioters, and if they stand in their defence, resist the officer, and continue their riotous proceeding in pulling down a house, assaulting and beating, or abusing any person or persons, such rioters may lawfully be killed, if they cannot otherwise be prevented.16 It is the duty of all persons (except women, decrepid persons, and infants under fifteen,) to aid and assist the peace officers to suppress riots, &c. when called upon to do it. They may take with them such weapons as are necessary to enable them effectually to do it, and may justify the beating, wounding, and even killing, such rioters as resist, or refuse to surrender; if the riot cannot otherwise be suppressed, or the rioters apprehended.17 So in case of a sudden affray, if a private person interposing to part the combatants, and giving notice of his friendly de• { 286 } sign, is assaulted by them, or either of them, and in the struggle happens to kill, he may justify it, because it is the duty of every man to interpose in such cases to preserve the public peace.18 A fortiori private persons may interpose to suppress a riot.19
Homicide excuseable in self-defence is where one engaged in a sudden affray, quits the combat before a mortal wound given, retreats as far as he safely can, and then urged by meer necessity, kills his adversary in the defence of his own life.20 This differs from justifiable self-defence, because he was to blame for engaging in the affray, and therefore must retreat as far as he can safely; whereas in the other case aforementioned neither the peace officers, nor his assistants, nor the private person, is obliged to retreat, but may stand and repel force by force.21
Manslaughter is the unlawful killing another without malice express or implied: As voluntarily upon a sudden heat, or involuntarily in doing an unlawful act.22 Manslaughter on a sudden provocation, differs from excusable homicide in self-defence, in this; that in one case there is an apparent necessity for self-preservation to kill the aggressor, in the other there is no necessity at all, it being a sudden act of revenge.23 As where one is taken in the act of adultry, and instantly killed by the husband in the first transport of passion.24 So if one, on angry words, assaults another by wringing his nose, and he thereupon immediately draws his sword and kills the assailant, it is but Manslaughter, because the peace is broken, with an indignity to him that received the assault, and he being so affronted, might reasonably apprehend the other had some further design on him.25 Where one happens to kill another in a contention for the wall, it is but manslaughter.26 So where H and A came into Buckner's lodging, A takes { 287 } down a sword in the scabbard that hung there, stood at the chamber door with the sword undrawn, to prevent Buckner from going out before they could bring a Bailiff to arrest him for a debt he owed H; and upon some discourse between Buckner and H, Buckner takes a dagger out of his pocket, stabs and kills H with it. This was adjudged only manslaughter at common law, and not to come within the statute of 1. Ja 1.27 against stabbing, because Buckner was unlawfully imprisoned.28 So where an officer abruptly and violently pushed into a gentleman's chamber, early in the morning to arrest him, without telling him his business, or using words of arrest, and the gentleman not knowing him to be an officer, in his first surprise, took down a sword and stabbed him. This also was ruled to be but manslaughter at common law, because the gentleman might reasonably conclude from the officer's behaviour, that he came to rob or murder him.29 So where Marshal and some other Bailiffs, came to Cook's dwelling house about eight o'clock in the morning, called upon him to open his doors and let them enter, because they had a warrant, on such and such writs, at the suit of such persons, to arrest him, and required him to obey them, but he told them they should not enter, and bid them depart, and thereupon they broke a window, and then came to the door of the house, and in attempting to force it open, broke one of the hinges, whereupon Cook shot Marshal and killed him; it was adjudged not to be murder, because though Marshal was an officer, yet he was not in the due execution of his office, but was doing an unlawful act in attempting to break open the house to execute such a civil process; and every one has a right to defend his house in such cases; but to be man-slaughter, because Cook saw Marshal, knew him, shot and killed him voluntarily, when he might have resisted him without killing him.30 Though no words of reproach, nor actions, or gestures expressive of reproach or contempt, without an assault, will by common law free the party killing from the guilt of murder,31 yet words, of menace of bodily harm, may amount to such a provocation, as to make the offence to be but manslaughter.32
{ 288 }
If these determinations appear new and extraordinary to you, it is not to be wondered at, considering the doctrines that of late have been advanced and propagated among you. In the course of this year you doubtless have heard much of the law given to the Jews, respecting homicide, as well as of the precept given to Noah, that “Whoso shedeth man's blood, by man shall his blood be shed.”33 Whence it has been inferred, that whoever voluntarily kills another, whatever the inducement, or provocation may be, is a murderer, and as such ought to be put to death. But surely not only the avenger of blood, and he who killed a thief breaking up an house in the night, were exceptions to that general precept, but also he who killed another in his own defence. Even the Jewish Doctors allowed this34 and that justly; because the right of self-defence is founded in the law of nature. The Jews indeed, supposed their law equally subjected to death, him who killed another, whether of malice aforethought, or on a sudden falling out: but it seems the early Christian divines did not, for the Clergy in the reign of Canute, the beginning of the eleventh century, so construed the Mosaical law as to deem him a murderer, who in time past had conceived hatred against his neighbour and lain in wait for him and killed him, and him guilty of manslaughter only who killed another on sudden provocation; and it is ordained by one of the laws of this Canute, that if any person shall with premeditation kill another he shall be openly delivered up to the kindred of the slain, but if the killing be not with premeditation the Bishop shall take cognizance of it.35 And as homicides have since happened, and been tried in the King's Courts, the Judges have from time to time, determined them to be either justifiable, excusable, or felonious: and if felonious, to be murder or manslaughter, according to the particular circumstances that attended the killing.
These determinations of the King's Courts, for so many ages past, shew, not only what the common law in cases of this kind is, but that these rules of the common law, are the result of the wisdom and experience of many ages. However it is not material in the present case, whether the common law is agreeable to, or variant from, the law given to the Jews, because it is certain, the prisoners are not in this Court to be tried by that law, but by the common law, that is according to the settled and established rules, and antient customs of the nation, approved for successions of ages.
{ 289 }
Murder, by the common law, is the unlawful killing a reasonable creature, under the King's peace, of malice aforethought, by a person of sound mind and discretion.36 Malice is the grand criterion that distinguishes murder from all other homicide. Malice aforethought, is not confined to an old grudge, or fixed, settled anger against a particular person, but it extends to a disposition to do evil.37 It is the dictate of a wicked, depraved, and malignant spirit.38 As when one with a sedate, deliberate mind, and formed design kills another.39 Not where the killing is owing to a sudden transport of passion, occasioned by any considerable provocation. For the law pays such regard to human frailty, as not to put an hasty act, and a deliberate one, upon the same footing with regard to guilt.40 In the case of duelling, when two, upon a sudden quarrel, instantly draw their swords and fight, and one kills the other, it is manslaughter; but if on such a quarrel in the morning, they agree to fight in the afternoon, or so long after as that there is sufficient time for the blood to cool, the passions to subside, and reason to interpose, and they meet and fight accordingly, if one kills the other, it is murder.41 So if a man resolves to kill the next man he meets, and does it, it is murder, although he knew him not, for this shews the malignity of his heart, and his universal malice.42 So where one maliciously strikes or shoots at another, but misses him and kills a third person, whom he did not intend to hurt, it is nevertheless murder, because he is answerable for all the consequences of his malicious act;43 but if 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.44 If two or more come together to do an unlawful act against the King's peace, of which the probable consequence might be bloodshed, as to beat a man, or commit a riot, and in the prosecution of that design, { 290 } one of them kills a man, it is murder in them all.45 So where one kills another wilfully without a considerable provocation, it is murder, because no one unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause.46 So if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray, or apprehend a felon, knowing his authority, or the intention with which he interposes, it is murder.47 As to the rules settled and established by common law, for the trial of homicide, it is observable, That no person can by common law, be held to answer for any kind of homicide, at the suit of the King only, unless he be first accused thereof by a Jury of the county where the fact was done.48 That he who is so accused, may on the plea of Not Guilty, not only put the council for the King upon the proof of the fact, but when it is proved, may give any special matter in evidence to justify or excuse it, or to alleviate the offence.49 That the facts are to be settled by another Jury of the same county,50 who are supposed to be best knowing of the witnesses and their credibility, and their verdict must be founded on the evidence given them in Court.51 That if any of the jurors are knowing of the facts, they ought to inform the Court of it, be sworn as witnesses, and give their testimonies in Court, to the end it may be legal evidence to their fellows, and the Court may know on what evidence the Jury's verdict is founded.52 That the Court are to determine the law arising on the facts, because they are supposed to know it.53 That the Jury, under the direction of the Court in point of law, matters of fact being still left to them, may give a general verdict conformable to such direction; but in cases of doubt, and real difficulty, the Jury ought to state the facts and circumstances in a special verdict, { 291 } that the Court upon farther consideration thereof, may determine what the law is thereon.54 That although malice is to be collected from all circumstances, yet the Court, and not the Jury, are the proper Judges thereof; as also, if the quarrel was sudden, whether there was time for the passions to cool, or whether the act was deliberate or not.55 The Judge ought to recommend to the Jury to find the facts specially, or direct them hypothetically, as—if you believe such and such witnesses, who have sworn so and so, the killing was malicious, and then you ought to find the prisoners guilty of murder; but if you do not believe these witnesses, then you ought to find them guilty of manslaughter only. And according to the nature of the case, if you on the evidence given, believe the facts to be so, then the act was deliberate, or if you believe them to be so, then it was not deliberate, and according as you believe, so you ought to find one or the other.56
To what has been said under this head I must add, that in the trial of this case, both the Court and Jury are as much obliged to observe these rules, as a Court and Jury in England would be in the trial of a like case there; the law in these respects is the same here, as there. A Juror's oath in this case is also the same here as there.57 Therefore as by law, you are to settle the facts in this case, upon the evidence given you in Court: you must be sensible, that in doing it, you ought not to have any manner of regard to what you may have read or heard of the case out of Court. And as it is the proper business of the Court, to determine the law arising upon the facts, you must also be sensible, that you are to take the law from the Court, and not collect it from what has been said by people out of Court, or published in the newspapers, or delivered from the pulpits.
Having premised these things, I shall observe to you, the several questions that arise in this case; and point out to you the manner in which I think they may be best considered and determined.
The principal questions are these, viz.
I. Whether the five persons said to be murdered, were in fact killed? And if so.
II. Whether they, or either of them were killed by the prisoners, or either of them? And if they were, then
{ 292 }
III. Whether such killing was justifiable, excusable, or felonious? And if the latter.
IV. Whether it was manslaughter or murder?
As to the first, you have not only the coroner's inquest, but the testimony of so many witnesses, that the five persons were shot and thereby mortally wounded in the night of the 5th of March last, and that some of them died instantly, and the rest in a few days after, that you doubtless will be satisfied they were all killed. And the same evidence must I think, also convince you, that they were all killed by the party of soldiers that were at the Custom-house that night, or by some of them.
Whether the prisoners were there, will therefore be your next enquiry; for if either of them was not, he must be acquitted. You have the testimony of Bridgham and Simpson as to Wemms; of Danbrooke and Simpson as to Hartegan; of Austin as to McCauley; of Simpson, Langford, Bailey and Clark as to White; of Archibald, Lang-ford and Brewer as to Killroy; of Dodge and Simpson as to Warren; and of Bailey, Bass, Palmes, Danbrooke and Wilkinson as to Montgomery's being at the Custom house that night, and of the party of soldiers that was there; and this is not contested with any opposite proof. The law doth not in this case make the testimony of two witnesses necessary for the Jury to settle a fact upon: If one swears it, and upon his testimony you believe it, that is sufficient evidence for you to find the fact. But if you are satisfied upon the evidence, that all the prisoners were there, yet, as each prisoner is severally charged with having killed these five persons, and by his plea has denied the charge, you must be fully satisfied upon the evidence given you, with regard to each prisoner, that he in particular, did in fact, or in consideration of law, kill one or more of these persons that were slain, or he must be acquitted.
The way therefore to determine this, will be for you to name some one of the prisoners, and then consider, whether it appears upon the evidence in the case, that he did in fact kill Maverick? And then, whether upon the evidence it appears, he in fact killed Gray? And so enquire in the same manner, whether he did in fact kill either of the other three persons? And having noted how it appears upon the evidence with regard to him; you must then proceed in like manner with each of the other prisoners; and if upon a full consideration of the evidence in the case, you should be in doubt, as to any one of the prisoners having in fact killed either of the persons that were slain, you must consider whether he did it in consideration of law? Now all that { 293 } are present, aiding and abetting one person in killing another, do, in judgment of law, kill him. The stroke of one is, in consideration of law, the stroke of all. When a number of persons assemble together to do an unlawful act, and in prosecution of that design, one of them kills a man, all the rest of the company are in law considered as abetting him to do it.58
You must therefore enquire how, and for what purpose, the prisoners came together at the Custom house, and what they did there before these persons were killed.
The Council for the prisoners say, that, if they were at the Custom house that night, they went there by order of the Captain of the Main guard, to support and protect the Sentry, who was insulted, assaulted and abused by a considerable number of people, assembled for that purpose; but as this is denied by the Council for the Crown, it will be proper to consider whether, a Sentry was duly placed at the Custom-house? And if so, whether he was attacked? And if so, whether the prisoners went by order of the Captain to support and protect him?
That a Sentry was in fact then placed at the Custom-house, by order of Colonel Dalrymple, the Commanding Officer, as also that one had been placed there for a long time before, is testified by Capts. O'Hara and Mason, and indeed the right to place Sentries, (it being in time of peace) is the only thing that has been questioned. Upon this, therefore I would observe, that as the main design of society, is the protection of individuals by the united strength of the whole community; so for the sake of unanimity, strength and dispatch, the supreme executive power is by the British constitution vested in a single person, the King. This single person has the sole power of raising fleets or armies; and the Statute of 13 Car. 2 c. 6.59 declares, That “within all his Majesty's realms and dominions, the sole supreme government, command and disposition of the militia, and of all forces by sea and land, and all forts and places of strength is, and by the law of England ever was, the undoubted right of his Majesty and his royal Predecessors, Kings and Queens of England.” And as Charles the Second had this right as King of England, it of course comes to his successors, and our present Sovereign Lord the King, now hath it.
Indeed the Bill of Rights declares among other things, That the raising or keeping a standing army, within the kingdom, in a time of peace, unless with the consent of Parliament, is against law. And it is said, { 294 } that upon the same principles whereon that declaration was founded, it is alike unlawful to be done in any other part of the King's dominions. But be that as it may, the Mutiny Acts annually made, shew the consent of Parliament, that the King in time of peace should keep up a standing army not only in the Kingdom, but in America also. They not only ascertain the number of troops that shall be kept up, but provide for the regulation of such of the King's troops as are in America. And therefore as by these acts the King is impowered to keep up these troops, and he, by common law, has the command and disposition of all forces by sea and land within his dominions, and is the principal conservator of the peace, he doubtless, well might send such part of those troops to this part of his dominions, in order to restore the public peace, or to aid and assist the civil Magistrate in preserving of it, as he judged necessary for the purpose; and if you should think there was no occasion for sending any troops here, for either of those purposes, that will not alter the case, because the King being the proper judge in that matter, the validity of his order will not depend upon the truth of the representations whereon it is founded. The acts not only fix the number of troops to be kept up, but also establish a law martial for their government. Among other things, the Acts subject every officer or soldier that sleeps on his post, or leaves it before he is relieved, or disobeys the lawful command of his superior officer, to such punishment as a Court Martial shall inflict, though it extend to death itself. These troops are, and ever since they came here, have been under this martial law, and subject to as strict regulation, as in time of war. Placing Sentries is a necessary part of the regulation of an army, accordingly a Sentry hath in fact been kept at the Custom-house, ever since the troops have been here; and it is sworn, by the Captains O'Hara and Mason, that it was done by order of the Commanding Officer. If so, you have no reason to doubt but that it was legally done.
Your next enquiry then will be, whether the Sentry so placed at the Custom house was attacked? Many witnesses have sworn that he was. But the Council for the Crown say, the contrary appears by the testimony of Col. Marshal and others.
It is with you to determine this matter upon the whole of the evidence given you. In doing it you ought to reconcile the several testimonies, if by any reasonable construction of the words it may be done. Where some witnesses swear they saw such a thing done, and others swear they were present and did not see it: if the thing said to be done be such as it may reasonably be supposed some might see and others not, by reason of their want of observation, or particular attention to { 295 } other matters there, as both may be true, you ought to suppose them to be so, rather than presume that any of the witnesses swear falsely. But if witnesses contradict each other, so that their testimonies cannot be reconciled, you must then consider the number of the witnesses on each side, their ability, integrity, indifference as to the point in question, and the probability or improbability arising from the nature of the thing in question, and upon the whole settle the fact as you verily believe it to be. If you find the Sentry was attacked, the next thing to be considered is, whether the prisoners went to protect him, and if so, whether it was lawful for them so to do. There is a great difference between a common affray, and attacking the King's forces. I think the law in that regard ought to be more generally known here than it seems to be. If upon a sudden quarrel from some affront given or taken, the neighbourhood rise and drive the King's forces out of their quarters, it is a great misdemeanor, and if death ensues it may be felony in the assailants, but it is not treason, because there was no intention against the King's person or government: But attacking the king's forces in opposition to his authority, upon a march or in quarters, is levying war against the King.60 And resisting the King's forces, if sent to keep the peace, may amount to an overt act of high treason.61 Though it may be attended with great inconveniences for private persons, without a peace officer, to make use of arms for suppressing an ordinary riot, yet if the riot be such an one as savours of rebellion, it doubtless may lawfully be done.62 You have heard what the witnesses deposed respecting the resolution taken to drive the soldiers out of town, “because they had no business here.” You have also heard what has been testified of the proposals to attack the Main-guard — of the assembling of the people especially in Dock-square — of the huzzaing for the Main guard and King-street— and of the attacking the Sentry. Now if this was done in pursuance of a resolution taken “to drive the soldiers out of the town, because they had no business here,” I will not now determine whether it was treason or not; but it certainly was a riot that savoured of rebellion; for the suppressing whereof, private persons might not only arm themselves, but make use of their arms, if they could not otherwise suppress it.63 Much more might the Captain of the Main guard take part of the guard, armed as usual, and go with them to protect the Sentry. By what Crookshanks, Benjamin Davis, Whitington, and others { 296 } have sworn, it seems the Sentry not only called to the Main-guard for assistance, but two men went and told them they must send assistance directly or the Sentry would be murdered. Whereupon the Captain gave orders that a party should go to the assistance of the Sentry, and they were drawn out accordingly, led down to the Custom house by a Corporal, and followed by the Captain. Now as this party did not assemble, or go there, of their own accord, but were sent by their Captain to protect the Sentry, it must be supposed that was their design in going until the contrary appears. And although upon the evidence you should not be satisfied that the Sentry was attacked in pursuance of a resolution taken to drive the soldiers out of town, because they had no business here, yet considering the notice given by the two men to the Captain, of the danger the Sentry was in, and what the Captain himself might then see and observe of the attack upon the Sentry, (if any regard is to be had to what a great number of the witnesses have sworn) he well might order out such a party, and go with them to protect the Sentry: And it seems to be agreed that if the prisoners were at the Custom-house that night, all of them, except the Sentry, were of that party. It has been said that this party of soldiers, when on their march, pushed Fosdick with a bayonet while he was standing peaceably in the street, and struck Brewer as soon as they got to the Custom-house, which shewed their design was to disturb the peace, and not to preserve it. But as Fosdick himself says, that, upon his refusing to move out of his place, they parted and went by him, you will consider whether it is not more reasonable to suppose, that what he calls a push was an accidental touch owing to the numbers in the street, rather than any thing purposely done to hurt him; and so with regard to the blow said to be given to Brewer. But supposing the push purposely given by one of the party, and the blow by him or another of them, it will by no means be sufficient to prove a design in the whole party, to disturb the peace, nor will all of them be involved in the guilt of one or more of them that broke the peace, unless they actually aided or abetted him or them that did it; because they were assembled and sent forth for a different purpose, and a lawful one.64 But if they were a lawful assembly when they got to the Custom house, yet if afterwards they all agreed to do an unlawful act to the disturbance of the peace, and in prosecution of that design Maverick and the rest were killed, all that party will by law be chargeable with each mortal stroke given by either of them, as though they all had in fact given it.
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And it is said, that while they were at the Custom-house, before they fired, some of them attempted with their bayonets to stab every one they could come at, without any reason at all for so doing. Such conduct to be sure can neither be justified nor excused. But as the time was so very short, and some of the witnesses declare the people were crouding upon the soldiers, and that they were moving their guns backwards and forwards crying stand off, stand off, without moving from their station, you will consider whether this may not be what other witnesses call an attempt to stab the people. But, be that as it may, if the party was a lawful assembly before, this not being the act of the whole, would not make it unlawful. The Council for the Crown insist, that the firing upon the people was an unlawful act, in disturbance of the peace, and as the party fired so near together, it must be supposed they previously agreed to do it; that agreement made them an unlawful assembly, if they were not so before, and being so when they fired, all are chargeable with the killing by any one or more of them. However just this reasoning may be, where there is no apparent cause for their firing, yet it will not hold good where there is. If each of the party had been at the same instant so assaulted, as that it would have justified his killing the assailant in defence of his own life, and there upon each of them had at that same instant fired upon and killed the person that assaulted him, surely it would not have been evidence of a previous agreement to fire, or prove them to be an unlawful assembly; nor would it have been evidence of such agreement though the attack was not such as would justify the firing and killing, if it was such an assault as would alleviate the offence, and reduce it to manslaughter, since there would be as apparent a cause of the firing in one case as in the other, and though not so good a cause, yet such an one as the law, in condescension to human frailty greatly regards. You will therefore carefully consider what the several witnesses have sworn, with regard to the assault made upon the party of soldiers at the Custom house, and if you thereupon believe they were, before, and at the time of, their firing attacked by such numbers, and in such a violent manner, as many of the witnesses have positively sworn, you will be able to assign a cause for their firing so near together, as they did, without supposing a previous agreement so to do. But it is said that if their firing as they did, don't prove a previous agreement to do it, yet it is good evidence of an actual abetment to fire, as one by firing encourages the others to do the like. As neither of the soldiers fired more than once, it is evident that he who fired last, could not thereby in fact, abet or encourage the firing of any of those who fired before him, and so it cannot be evidence of such abetment. And if he who { 298 } fired first and killed, can justify it, because it was lawful for him so to do, surely that same lawful act cannot be evidence of an unlawful abetment. And though he who first fired and killed, may not be able to justify the doing it, yet if it appears he had such a cause for the killing as will reduce it to Manslaughter, it would be strange indeed if that same act should be evidence of his abetting another who killed without provocation, so as to make him who fired first guilty of murder. The same may be said as to all the intermediate firings: and, as the evidence stands, I don't think it necessary to say how it would be in case the first person fired with little or no provocation. If therefore this party of soldiers, when at the Custom house, were a lawful assembly and continued so until they fired, and their firing was not an actual unlawful abetment of each other to fire, nor evidence of it, they cannot be said to have in consideration of law killed those five persons or either of them, but it must rest on the evidence of the actual killing: and, if so, neither of the prisoners can be found guilty thereof, unless it appears not only that he was of the party, but that he in particular infact did kill one or more of the persons slain. That the five persons were killed by the party of soldiers or some of them, seems clear upon the evidence, and indeed is not disputed.
Some witnesses have been produced to prove that Montgomery killed Attucks; and Langford swears Killroy killed Gray, but none of the witnesses undertake to say that either of the other prisoners in particular killed either of the other three persons, or that all of them did it. On the contrary it seems that one of the six did not fire, and that another of them fired at a boy as he was running down the street, but missed him (if he had killed him, as the evidence stands, it would have been murder) but the witnesses are not agreed as to the person who fired at the boy, or as to him who did not fire at all. It is highly probable, from the places where the five persons killed fell and their wounds, that they were killed by the discharge of five several guns only. If you are upon the evidence satisfied of that, and also that Montgomery killed Attucks, and Killroy Gray, it will thence follow that the other three, were killed, not by the other six prisoners, but by three of them only: and therefore they cannot all be found guilty of it. And as the evidence does not shew which three killed the three, nor that either of the six in particular killed either of the three, you cannot find either of the six guilty of killing them or either [of] them.65 If you are satisfied, upon the evidence given you, that Montgomery killed Attucks, you will proceed to inquire whether it was justifiable, { 299 } excusable, or felonious homicide, and if the latter whether it was maliciously done or not. As he is charged with murder, if the fact of killing be proved, all the circumstances of necessity or infirmity are to be satisfactorily proved by him, unless they arise out of the evidence produced against him, for the law presumeth the fact to have been founded in malice untill the contrary appears.66
You will therefore, carefully consider and weigh the whole of the evidence given you respecting the attack, made upon the party of soldiers in general, and upon Montgomery in particular. In doing it, you will observe the rules I have before mentioned, and not forget the part that some of the witnesses took in this unhappy affair, and if upon the whole it appears to you, that Montgomery was attacked, in such a violent manner, as that his life was in immediate danger, or that he had sufficient reason to think it was, and he thereupon fired and killed Attucks, for the preservation of his own life, it was justifiable homicide; and he ought to be acquitted. If you do not believe that was the case, but upon the evidence are satisfied, that he was by that assembly, assaulted with clubs and other weapons, and there-upon fired at the rioters and killed Attucks: then you ought to find him guilty of manslaughter only. But if upon the evidence you believe, that Montgomery, without being previously assaulted, fired, and killed Attucks: then you will find him guilty of murder. But you must know, that if this party of soldiers in general were pelted, with snow-balls, pieces of ice and sticks, in anger, this, without more, amounts to an assault, not only upon those that were in fact struck, but upon the whole party; and is such an assault as will reduce the killing to manslaughter. And if you believe, what some of the witnesses have sworn, that the people around the soldiers, and many of them armed with clubs, crouded upon the soldiers, and with the cry of, “Rush on, Kill them, Kill them, Knock them over,” did in fact rush on, strike at them with their clubs, and give Montgomery such a blow, as to knock him down, as some of the witnesses say, or to make him sally, or stagger, as others say—it will be sufficient to show, that his life was in immediate danger, or that he had sufficient reason to think so.
It seems, a doctrine, has of late been advanced, “that soldiers while on duty, may upon no occasion whatever fire upon their fellow subjects, without the order of a civil magistrate.” This may possibly account, for some of those who attacked the soldiers, saying to them, “You dare not fire, we know you dare not fire.” But it ought to be known, that the law doth not countenance such an absurd doctrine. A man by becoming a { 300 } soldier, doth not thereby lose the right of self-defence which is founded in the law of nature. Where any one is, without his own default, reduced to such circumstances, as that the laws of society cannot avail him, the law considers him, “as still in that instance under the protection of the law of nature.”67 This rule extends to soldiers as well as others; nay, while soldiers are in the immediate service of the King, and the regular discharge of their duty, they rather come within the reason, of civil officers and their assistants, and so are alike under the peculiar protection of the law.
If you are satisfied upon the evidence, that Killroy killed Gray, you will then enquire, whether it was justifiable, excusable or felonious homicide, and if the latter, whether it was with, or without malice. If the attack was upon the party of soldiers in general, and in the manner I have just mentioned, as some of the witnesses say it was, it is equally an assault upon all, whether all were in fact struck, or not, and makes no material difference, as to their respective right of firing: for a man is not obliged to wait until he is killed, or struck, before he makes use of the necessary means of self defence. If the blows with clubs were, by an enraged multitude, aimed at the party in general, each one might reasonably think his own life in danger; for though he escaped the first blow, he might reasonably expect more would follow, and could have no assurance, that he should be so fortunate as to escape all of them.
And therefore, I do not see but that Killroy is upon the same footing with Montgomery; and your verdict must be the same as to both, unless what Hemmingway swears Killroy said, or the affray at the Rope-walk, or both, materially vary the case. Hemmingway swears, that he and Killroy were talking about the town's people and the soldiers, and that Killroy said, “He never would miss an opportunity, when he had one, to fire on the inhabitants, and that he had wanted to have an opportunity, ever since he landed.” But he says, he cannot remember what words immediately preceded or followed, or at what particular time the words were uttered, nor does he know whether Killroy was jocular, or not. If the witness is not mistaken as to the words, the speech was at least, very imprudent and foolish. However, if Killroy, either in jest or in earnest, uttered those words, yet if the assault upon him was such, as would justify his firing and killing, or alleviate it so as to make it but manslaughter, that will not inhance the killing to murder. And though it has been sworn that Killroy and other soldiers, had a quarrel with Gray and others, at the Rope-walk, a few days before the 5th March, yet it is not certain that Killroy then knew Gray, { 301 } or aimed at him in particular: But if Gray encouraged the assault by clapping the assailants on their backs, as Hinkley swears he did, and Killroy saw this and knew him to be one of those that were concerned in the affray at the Rope walk, this very circumstance would have a natural tendency, to raise Killroy's passions, and throw him off his guard, much more than if the same things had been done by another person. In the tumult of passion the voice of reason is not heard, and it is owing to the allowance the law makes for human frailty, that all unlawful voluntary homicide is not deemed murder. If there be “malice between A and B, and they meet casually, A assaults B, and drives him to the wall, B in his own defence kills A, this is se defendendo, and shall not be heightened by the former malice, into murder or homicide at large, for it was not a killing upon the account of the former malice, but upon a necessity imposed upon him by the assault of A.”68 So upon the same principle, where the assault is such as would make the killing but manslaughter, if there had been no previous quarrel, the killing ought to be attributed to the assault, unless the evidence clearly shews the contrary: an assault being known and allowed by law to be a provocation to kill, that will free the party from the guilt of murder; whereas neither words of reproach, nor actions expressive of contempt, “are a provocation to use such violence,”69 that is, the law doth not allow them to be, without an assault such a provocation as will excuse the killing, or make it any thing less than murder.
Upon the same principle, where the assault is such, as makes the killing manslaughter, the killing ought to be attributed to the assault, unless the evidence clearly shows the contrary.
This meeting of Killroy and Gray was casual upon the part of Killroy at least; he was lawfully ordered to the place where he was and had no right to quit his station without the leave of Capt. Preston; nor were any of the party obliged to retreat and give way to the rioters, but might lawfully stand, and repel force by force.
It is needless for me to say what you ought to do with regard to the other six prisoners, in case they had gone to the Custom-house, not to protect the Sentry, but to disturb the peace, or after they got there and before the firing had agreed so to do; or in case they had actually unlawfully abetted the killing: because none of these things have been testified, nor can any of them be deduced from any thing which has been given to you in evidence.
Having already said much more upon this occasion, than I should { 302 } have thought necessary in a like case, at any other time, I shall add no more.
Justice Oliver.
Gentlemen of the Jury,
This is the most solemn trial I ever sat in judgment upon. It is of great importance to the community in general, and of the last importance to the prisoners at the bar. I have noticed your patience and attention during the course of the trial, which have been highly commendable and seem to have been adequate to the importance of the cause.
The occasion of this trial is the loss of five of our fellow-subjects, who were killed on the evening of the 5th of March last: whether the prisoners at the bar are chargeable with their death or not, it is nevertheless our part to adore the divine conduct in this unhappy catastrophe, and to justify the ways of GOD to man.
Here are eight prisoners at the bar who are charged with the murder of those five persons, and whose lives or deaths depend upon your verdict. They are soldiers, but you are to remember that they are fellow-subjects also. Soldiers, when they act properly in their department, are an useful set of men in society, and indeed, in some cases, they are more useful than any other members of society, as we happily experienced in the late war, by the reduction of Canada, whereby our liberties and properties have been happily secured to us: and soldiers, Gentlemen, are under the protection of the same laws equally with any other of his Majesty's subjects.
There have been attempts to prejudice the minds of the good people of this province against the prisoners at the bar, and I cannot help taking notice of one in particular, (which included also an insult on this Court) published in one of the Weekly Papers the day before this trial was to have come on.70 I think I never saw greater malignity of heart expressed in any one piece; a malignity blacker than ever was expressed by the savages of the wilderness, for they are in the untutored state of nature and are their own avengers of wrongs done to them; but we are under the laws of society, which laws are the avengers of wrongs done to us: I am sorry I am obliged to say it, but there are persons among us who have endeavoured to bring this Supreme Court of Law into contempt, and even to destroy the Law itself: there may come a time when these persons themselves may want the protection { 303 } of the law and of this Court, which they now endeavour to destroy, and which, if they succeed in their attempts, it may be too late for them to repair to for justice: but I trust, that the ancient virtue and spirit of this people will return and the law be established on a firm basis. If you, Gentlemen, have seen or read any of the libels which have been published, and have imbibed prejudices of any sort, I do now charge you, in that sacred Name which you have in the most solemn manner invoked for the faithful discharge of your present trust, to divest your minds of every thing that may tend to bias them in this cause: It is your duty to fix your eyes solely on the scales of justice and as the law and evidence in either scale may preponderate, so you are to determine by your verdict.
Gentlemen, the prisoners at the bar are indicted, with others, for the murder of five different persons; viz. Carrol for the murder of James Caldwell; Killroy for the murder of Samuel Maverick; White for the murder of Patrick Carr; Hartegan for the murder of Samuel Gray; Warren for the murder of Crispus Attucks. Observe, that the five prisoners I have now named, are severally charged as principals in the different supposed murders, and the others as aiding and abetting, which in the sense of the law makes the latter principals in the second degree.
I should have given to you the definitions of the different species of homicide, but as my brother hath spoke so largely upon this subject, and hath produced so many and so indisputable authorities relative thereto, I would not exhaust your patience which hath so remarkably held out during this long trial. But I would add one authority to the numbers which have been produced, not that it immediately relates to this case, but I the rather do it, because I see a mixt audience, and many from the country whom it more directly concerns: it is cited from the celebrated Ld. C. Just. HALE by the great and upright Judge FOSTER, viz. If a person, drives his cart carelessly and it runs over a child in the street; if he have seen the child and yet drives on upon him, it is MURDER because willfully done; here is the heart regardless of social duty: but if he saw not the child, it is MANSLAUGHTER; but if the child had run cross the way and the cart run over the child before it was possible for the carter to make a stop, it is by MISADVENTURE.71
The law that was given to Noah after the deluge, viz. Whosoever sheddeth Mans blood, by Man shall his blood be shed, hath lately been urged in the most public manner very indiscriminately, without any { 304 } of the softenings of humanity. Moses in his code of laws, mentions the same, though in different words, viz. He that killeth a man, he shall be put to death: but be pleased to remember Gentlemen, that Moses was the best Commentator on his own laws, and he hath published certain restrictions of this law, as, If one thrust another of hatred that he die, the slayer shall surely be put to death; but if he thrust him suddenly without enmity, or cast a stone upon him, not seeing him, so that he die, in those cases there were cities of refuge appointed for the manslayer to flee to, that his life might be safe: so that to construe that law to Noah strictly, is only to gratify a blood thirsty revenge, without any of those allowances for human frailties which the law of nature and the English law also make.
I would recommend to you, Gentlemen, in order to your forming a just verdict in this cause, to satisfy yourselves in the first place, whether or not the prisoners at the bar were an unlawful assembly when they were at the Custom-house, for on that much depends their guilt or innocence. That they were nigh the Custom-house when the five persons mentioned in the indictments were killed, you can have no doubt, for it is conceded. Inquire then how they came there. Now, two officers viz. Capt. Mason and Capt. O'Hara have sworn that a Sentinel was placed at the Custom-house, by orders of the commanding officer to protect the King's monies, and that it is at his peril if he stirs from his duty: it appears by divers witnesses that this Sentinel was attacked and called for aid; upon which a party, consisting of the prisoners at the bar with an officer at their head, went down to protect him: they were under obligation by act of parliament to obey their commanding officer; and thus far, being at their post constituted them a lawful assembly.
Consider next, whether those who were collected around the prisoners at the bar, were a lawful or unlawful assembly; and in order to satisfy yourselves, weigh the evidence that hath been offered impartially. But I cannot help taking notice in this place, that some delicacy hath been used at the bar, in calling those people a mob. Mob is only a contraction of a Latin word which signifies a tumultuous croud gathered, but I shall use the legal phrase and call such a croud a riotous assembly, if the sound is more agreeable than mob.
As my brother Trowbridge has been very full in his remarks upon the evidence, and as you Mr. Foreman have wrote down from the witnesses mouths what they testified, which is somewhat uncommon, and for which you are to be applauded, I shall therefore only make a few remarks on those I think the most material testimonies, not beginning in the order of examination, but in the order of time.
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Thomas Simmons says, that betwixt eight and nine o'clock on that unhappy evening, (which was before the firing, for the firing was not till between nine and ten) he heard people at the Sugar-house barracks, which are called Murray's barracks, say, if the soldiers would not come out and fight them, they would set fire to the four corners of the barracks, and burn every damned soul in them; that there was a considerable number of them armed with cutlasses, swords and sticks.
William Davis is the next witness I shall take notice of; he is a gentleman who is a stranger to me, but whose character stands unimpeached in this Court, and who hath given a distinct testimony of what passed under his notice: he says, that about eight o'clock he saw about two hundred in Forestreet, armed with different weapons, threatening to knock down the first soldier or bloody back they should meet; some proposed to go to the southward and join their friends there, and drive all the soldiers out of town. At Dock-square, about nine o'clock, he says he saw numbers in the market tearing up the stalls and saying, damn the dogs, where are they now? let us go and kill that damned scoundrel of a Sentry, and then attack the Main-guard; others said, Smith's barracks. At Olivers-dock he says, he saw numbers with clubs: one man was loading his piece, and said he would do for some of them scoundrels that night, and said, damn the villains, scoundrells, Soldiers and Commissioners, and damn the villain who first sent them here, they should not remain here above two days longer.
Allow me, Gentlemen, to make a pause at this last part of the evidence, viz. Damn the villain who first sent them here; and make an observation which I am sorry for the occasion of, the expression having been justified. I venture to affirm that man a villain who uttered it, for it was his Majesty who sent them here, and here they were fixed by his order and authority.
Dr. Hirons, who lives near to Murray's barracks hath told you, that a little after eight o'clock he saw people coming from Dock-square and heard the words, Town-born turn out, twenty or thirty times, and the people encreasing. He mentions the altercations between the officers and inhabitants, and a little man talking with an officer, saying, You know the town and country have been used ill, we did not send for you, we won't have you here, we'll get rid of you, or drive you away; and that then about two thirds of them went off and said, let's go to the Main-guard, huzza for the Main-guard.
Dr. Jeffries says, that about eight o'clock he saw the passage to Murray's barracks filled with inhabitants, who, with ill language dared the soldiers to fight: he imagines there were seventy or eighty people, { 306 } and but three soldiers, and that when the officers were endeavouring to appease the people, snow-balls were flung at them; and that when they told the people that the soldiers were secured in their barracks and could not come out, somebody replied, You mean they dare not come out, you dare not let them. Some then said home, others said, no we shall find some in King-street, others said, we'll go to the Main-guard. Dr. Jeffries hath been so distinct and particular, that you cannot but remember his testimony.
As to the pains which have been taken to exculpate this town from being concerned in the fatal action of that night, they seem to me to have been unnecessary. It is true, there hath been, in times past, no place more remarkable for order and good government than this town; but as it is a seaport town and of great trade, it is not to be wondered at, that the inhabitants of it should be infected with disorder as well as other populous places.
James Selkrig, with three others, say, that before the bells rang they saw, not far from Murray's barracks, a large number armed with different weapons; some of them say, nigh two hundred: that some of the people had been repulsed from the barracks, and after that, a tall man with a red cloak and white wig talked to the people, who listned to him, and then huzzaed for the Main guard. I cannot but make this observation on the tall man with a red cloak and white wig, that, whoever he was, if the huzzaing for the Main-guard and then attacking the soldiers, was the consequence of his speech to the people, that tall man is guilty in the sight of GOD, of the murder of the five persons mentioned in the indictment, and altho' he may never be brought to a court of justice here, yet unless he speedily flies to the city of refuge, the supreme avenger of innocent blood, will surely overtake him.
John Gridley hath told you, that he heard numbers before the Town-house say, GOD damn the rascals, some said, this will never do, the readiest way to get rid of those people, is to attack the Main-guard, strike at the root, this is the nest; others replied, damn you, that's right. All this was before the soldiers had formed.
It would be too tedious to recite the numbers of testimonies to prove a design to attack the soldiers: I have selected a few, which seem to prove the intent, for there are no less than thirty-eight witnesses to this fact, six of whom the council for the King have produced. Compare them Gentlemen, and then determine whether or not there is any room to doubt of the numbers collected around the soldiers at the Custom house, being a riotous assembly.
I will return now to the soldiers and view their behaviour whilst they { 307 } were going upon duty at the Custom house, and whilst they were there. As they were going from the Main guard to their post, to support the Sentry, (who by the way behaved with a good temper of mind, in endeavouring to avoid a dispute, by attempting to get into the Custom house, which he was by no means obliged to do,) I say, as they were going down, Nathaniel Fosdick says, they bid him make way, but he refused: instead of forcing him to give way, he says, they gave way to him, and passed to their post; when they got there, they loaded; and John Gridley says, that, whilst they were loading, he passed between the files and they put up their guns to let him pass. I cannot find, upon examining the testimonies, that any one soldier stir[r]ed from his post, and indeed it might have been fatal to him to have broke his orders; but on the contrary, it hath been said, that had they stepped forward, they might have killed the people, but they only pushed their bayonets as they stood, to keep off the people who were pressing on them; at the same time, bidding them keep off.
Now consider whether the prisoners had any just provocation to fire upon the inhabitants, for that some of them did fire, you can be in no doubt. There are twenty five witnesses who have sworn to ice, snowballs, sticks, &c. being thrown at the prisoners, ten of whom, are wi[t]nesses for the Crown. There are nigh thirty witnesses who have sworn to words of provocation uttered against the prisoners, as daring them to fire, and threatning to kill them; but you must remember that words only, are no provocation in law to justify the killing of a person; but if threatning expressions are attended with an attempt on the life of a man, in such a case a killing may be justified; and if any such facts appear in this trial, you must consider them thoroughly. And here, I would take notice of the testimonies of some of the witnesses, viz. that although they were close to the soldiers, they saw nothing of any kind thrown at them, nor heard any huzza or a threatning: nay, one witness is so distinct, as to tell, in a cloud of smoak, which guns killed the different persons. I know not how to account for such testimonies, unless by the witnesses being affrighted, which some of them say they were not: they themselves perhaps may satisfy their own minds.
Dr. Jeffries relates an account which he had from Patrick Carr, one of the deceased, who on his death bed repeatedly told him and confirmed it but a few hours before he died, that he went with a design against the soldiers, that the soldiers were pelted as they were going to their post, that he thought they were abused and that they would really have fired before, for he heard many voices cry out, kill them, and { 308 } that he thought they fired to defend themselves: that he forgave, and did not blame the man, whoever he was, that shot him; that he blamed himself for going to the riot, and might have known better, for he had seen soldiers called to quell riots, hut never saw any bear half so much before. This Carr was not upon oath, it is true, but you will determine, whether a man, just stepping into eternity, is not to be believed; especially in favour of a set of men by whom he had lost his life.
Ye have one difficulty to solve, Gentlemen, and that is, that there were five persons killed, and here are eight soldiers charged with murdering them. Now one witness says, that the Corporal did not fire, and Thomas Wilkinson says, that the guns of the third or fourth man from the eighth flashed, so that there are two guns of eight not discharged and yet it is said seven were fired. This evinces the uncertainty of some of the testimonies. My brother Trowbridge hath explained the difficulty of charging any one prisoner with killing any one particular person, and hath adduced an authority from Lord Chief Justice Hale, to support him; so that this maxim of law cannot be more justly applied, than in this case, viz. That it is better that ten guilty persons escape, than one innocent person suffer: indeed as to two of the prisoners, there is no great doubt of their firing, namely, Montgomery and Killroy. As to Montgomery, it seems to be agreed that he was on the right, and Richard Palmes says, that a piece of ice or a stick struck his gun before he fired: and Andrew, Mr. Wendell's Negro man (of whom his master gives a particular and good character) is very distinct in his account; and he says, that a stout man struck the grenadier on the right, first on his gun and then on his head, and also kept his bayonet in his left hand; and then a cry of kill the dogs, knock them over; upon which he soon fired: here take the words and the blows together, and then say, whether this firing was not justifiable.
As to Killroy, there have been stronger attempts to prove him guilty of murder than any other. Two witnesses have sworn, that his bayonet was bloody next morning; but nothing hath been offered in evidence to prove how it came so; I have only one way to account for it; if it was bloody, viz. that by pushing to keep off Nathaniel Fosdick it might become so by wounding him in the breast and arm. Nicholas Ferreter, who the week before beat one of the soldiers at the Rope-walks, says further, that Killroy was then at the Rope-walks; but at the same time he says, that Killroy uttered no threatnings but only daring the Rope-makers to come out. But Samuel Hemmingway says, that some time before the 5th March he heard Killroy say, that he would not miss an opportunity of firing on the inhabitants. How the conversation was had, { 309 } whether it was maliciously spoke or was jocose talk doth not so fully appear, but it would be extream hard to connect such discourse with this transaction; especially, as his being at the Custom House was not voluntary, but by order of his officer.
Thus Gentlemen, I have as concisely as I could, without doing injustice to the cause, summed up the evidence to you: I was afraid of being tedious, otherwise I should have more minutely considered it.
If upon the whole, by comparing the evidence, ye should find that the prisoners were a lawful assembly at the Custom house, which ye can be in no doubt of if you believe the witnesses, and also that they behaved properly in their own department whilst there, and did not fire till there was a necessity to do it in their own defence, which I think there is a violent presumption of: and if, on the other hand, ye should find that the people who were collected around the soldiers, were an unlawful assembly, and had a design to endanger, if not to take away their lives, as seems to be evident, from blows succeeding threatnings; ye must, in such case acquit the prisoners; or if upon the whole, ye are in any reasonable doubt of their guilt, ye must then, agreeable to the rule of law, declare them innocent.
As I said at first, this cause is of the last importance to the prisoners, their lives or deaths depend upon your verdict; and may you be conducted by the Supreme Wisdom to return such an one, as that your hearts may not reproach you so long as you live, and as shall acquit you at that tribunal, where the inmost recesses of the human mind shall be fully disclosed.
1. Wemms Trial 178–207. There are two pages numbered 192, and none numbered 200.
2. Note by Trowbridge: “1 Hale [Pleas of the Crown] 437, 463; 2, [id.][at] 344–345; Foster, [Crown Cases] 351; [Reg. v. Wallis, 1] Salk. 334, 335, [91 Eng. Rep. 294, 295 (Old Bailey 1703).”];
3. Note by Trowbridge: “2 Hawkins [Pleas of the Crown][240, c.] 25, §89.”
4. The notes of foreman Joseph Mayo of Roxbury have not survived, but those purportedly taken by Deacon Edward Pierce are in MHi: Photostats, and are here set out:
Hugh Wite. James Baley Saw White. Josiah Simpson Saw White. Thos: Hall Saw White.
William Warren. James Dodge Knew Warren. Nicholas Feriter Saw Warren at the fray. Josiah Simpson Saw Warren Under arms in the Party. Theodore Bliss Saw Warren fire.
William Whems, Josiah Simpson Saw Whems Under arms in the Party. Thos: Hall Saw Whems.
John Carroll. Mr. Austin Saw Carrall and heard Six or Seven Guns. James Baley Saw Carrall fire the Second Gun. John Danbrook Saw Carrall. Thos Hall Saw Carrall.
William McCawley. Mr. Austin Says that he Saw McCawley Load his Piece and Push his Bayonet at him.
Matthew Killroy. Lanksford Saw Killroy Present his Gun and fird and Gray fell at his feat then Pushd his Bayonet at Lanksford and run it through his Cloaths. Francis Archible Saw Killroy. Hemenway <Saw> heard Killroy Say he would not Miss an opportunity to fire on the Inhabitance. Nicholas firiter Saw Killroy. Joseph Crosswell Saw Killroy. Bayonet Bloodey the next morning. Thos Crawswell Saw Killroy. Jonathan Cary Saw the Same.
James Hartengem. John Danbrook Saw Hartengem. Josiah Simpson Saw Hartengem.
Hugh Montgomery. Test. James Baley Saw Mongomory fire the first Gun. Pointed towards the Molatto he Stood the Third from the Right. Parms Saw Mongomery and Pushd at me With his Bayonet twise. John Danbrook Saw Mongomory fire and Saw two Persons fall Near together. Jed: Bliss Saw Mongom Push his Bayonot and fire he thinks he heard Six Guns fire. Thos Wilkinson Saw Mongomory and heard Seven Guns fire and one Snap.
5. The term is loosely used, as the crimes were also statutory. See note 7250 below.
6. Note by Trowbridge: “1 Blackstone, [Commentaries] *63–64.”
7. Note by Trowbridge: “Pro. Act, 9 Wm. 3 [“An Act Against Murder,” 23 Oct. 1697, I A&R 296].”
8. (1531).
9. (1547).
10. (1350).
11. Note by Trowbridge: “2 Hawkins, [Pleas of the Crown 342, c.] 33, §24; 2 Hale [Pleas of the Crown] 330, 334–335.”
12. Note by Trowbridge: “4 Blackstone, [Commentaries] *177–178.”
13. Note by Trowbridge: “4 Blackstone, [Commentaries] *190.”
14. Note by Trowbridge: “24 Hen. 8, c. 5 [(1532)]; 1 Hale, [Pleas of the Crown] 488; 4 Blackstone, [Commentaries] *180; Foster, [Crown Cases] 273, 274.”
15. (1411). (Actually c. 7.)
16. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown 71, c.] 28, §14, [158–159, c.] 65, §11; 1 Hale, [Pleas of the Crown] 53, 293–294, 495, 596 [i.e. 496]; 4 Blackstone [Commentaries] *147.”
17. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown 136 c.] 63, §10, [161, C.] 65, §§20, 21; 4 Blackstone [Commentaries] *147, 179–180.”
18. Note by Trowbridge: “Foster, [Crown Cases] 272; 1 Hawkins, [Pleas of the Crown 136, 137, c.] 63, §§11, 13.”
19. Note by Trowbridge: “[Rex v. Messenger et al.] Kelyng [70,] 76, [84 Eng. Rep. 1087, 1090 (Old Bailey, 1669)]; 1 Hawkins [Pleas of the Crown 158–159, c.] 65, §§11.”
20. Note by Trowbridge: “1 Hale, [Pleas of the Crown] 479; Foster, [Crown Cases] 277.”
21. Note by Trowbridge: “Foster, [Crown Cases] 273.”
22. Note by Trowbridge: “4 Blackstone, [Commentaries] *191.”
23. Note by Trowbridge: “4 Blackstone, [Commentaries] *192.”
24. Note by Trowbridge: “[Reg. v. Mawgridge,] Kelyng [119,] 137, [84 Eng. Rep. 1107, 1115 (Q.B. 1707)]; [Rex v. Manning, I]Ld. Raym. 212, [83 Eng. Rep. 112 (K.B. 1672)]; Foster, [Crown Cases] 298.”
25. Note by Trowbridge: “[Reg. v. Mawgridge] Kelyng [119,] 135, [84 Eng. 1107, 1114 (Q.B. 1707)].”
26. Note by Trowbridge: “1 Hawkins [Pleas of the Crown 82–83, c.] 31, §36; 1 Hale, [Pleas of the Crown] 455–456.”
27. (1603).
28. Note by Trowbridge: “[Protector v. Buckner,] Style 467, [82 Eng. Rep. 867 (U.B. 1655)]”
29. Note by Trowbridge: “Foster, [Crown Cases] 298–299; 1 Hale, [Pleas of the Crown] 370 [i.e. 470]; [Reg. v. Mawgridge, note 267 above, at] Kelyng 136 [84 Eng. Rep. at 1115].”
30. Note by Trowbridge: “Cro. Car. 537–538, Cook's Case [79 Eng. Rep. 1063–1064 (K.B. 1640)].”
31. Note by Trowbridge: “Foster, [Crown Cases] 290.”
32. Note by Trowbridge: “1 Hale [Pleas of the Crown] 456.”
33. Genesis 9:6.
34. Note by Trowbridge: “1 Hale [Pleas of the Crown] 4.”
35. Note by Trowbridge: “[Rex v. Dwyer, Gilb. Rep.] Ca. Eq. [267,] 270–271, [25 Eng. Rep. 183, 185 (K.B. Ireland ca. 1724). This case traces the history of 'benefit of clergy'].”
36. Note by Trowbridge: “3 [Coke,] Institutes *47; 4 Blackstone, [Commentaries] *195.”
37. Note by Trowbridge: “4 Blackstone, [Commentaries] *199.”
38. Note by Trowbridge: “Foster, [Crown Cases] 256.”
39. Note by Trowbridge: “4 Blackstone, [Commentaries] *199.”
40. Note by Trowbridge: “4 Blackstone, [Commentaries] *191.”
41. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown][78, 82, c.] 31, §§1, 29; [Rex v. Legg]&