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Robert Treat Paine Papers, Volume 4

Trial notes
Suffolk Supr: Court Augt. 1780 1

State vs. Duncan McGregor, Timo. Lynch Michael Hogan, Thomas Man, Robert Watt, Morris Pressingham, Keneth McPherson, Michael Hayes, John Rotch for murder of Thos. Bickford. they pleaded a plea to the Jurisdiction. Demurer to the plea.

Mr. Hitchborn2 in Support of his plea do they owe any allegiance may not persons be in State & not Subject to its Law: Vattel B3§137.142. the right of war gives right to kill whenever they can 13.3.§20 HPC3 1.B. ch.17.§6–7. Aliens that come in a martial manner cannot be considered as Traytors 7.Coke.46. Calvins Case. 1. Black. 370.1. 372. an Alien Enemy is intitald to no protection: 132 2 Vin5 .264 would it be murder if Congress should order all the Prisoners to be hung up at Yard arm have Prisoners a right to rise & retake a vessell Mm. Vattel B.III.ch.8. Foster.6 187. Plea overuled by Court & they pleaded not guilty. Wm. Barret, I was one corporal of the Guard, the off: sd. the Pris. was abt. to rob them: Pris were saucy, getting sticks, bricks &c Lt. Morton came alongside; I drew my Bayonet John Rotch catch it out of my hand & cut me over the nose. I then got my Gun & Rotch & als. got my Gun all the Prisners were present cursing & daming me & saying they would have my life. Rotch struck me under the chin & on the head with my Gun: abt. an hour from the time of their first begginning to make preparation to their assaulting me: instantly I was on the Guard bed. the Prisoners on board run in & got the Guns out of the Guard Room Joseph Waterman I was Serjt. of Guard with a Corporal & 6 men, just a night they were in great hubbub forward. the officers Prisners told me the Pris. were abt. to rise they supposed to rob them & cut away the bulk head, a little after Lt. Morton came & asked the occasion of my firing, & told the Pris. if I or any other person had abused them they should have restitution but they hea sd. nothing to him: they took my Gun I drew my Bayonet & put it to McGregors Breast. he took it from me, they call’d me dam’d Rebell damd Rascal & ordered me back to the Guard Room. some for putting me down the hold, they had billets of wood in their hands & sticks & the like McGregor had on his Kelts & Scotch Stockins Isaac Morton I was Lieut. & officer of the day. I heard a gun fired on board the Prison ship just before sun down I went along side heard a disturbance on board. Serjt. said the centry was disarmed; I askd the Pris: how they fared, they sd. the Guard had not abused them Thos. Lynch damd me for a Rebel & if I came to the assistance of the Guard I was no better than they & he would throw me over board: McGregor sd. you are not better than the guard you Yankey Rouge, & struck me on the head with his fists. Michael Hay said you shall not abuse him McGregor came with Gun & Bayonet 133 & threatned to run me through, & threatned me to throw me over board & all of us; McGregor said he brought his Gun from Ireland, he said he disarm’d the Guards to make an Escape: Major Rice came along side, & bid me step into the boat. McGregor having a Gun in his hand sd. if you offer to go into the boat Ill blow your brains out, there was a cry of fire fire blow their brains of the damd Rebell out Major Rice bid us shove off, they cryed us board the ship fire blow their Damd brains out & immediately they fired & a man dropt, a billet of wood then from the ships knock’d me over board: there was no firing from the boat while I was there. Major Rice On the 10th last mo. I heard that Lt. Morton was on board Prison Ship. I went to the ship and see Morton a board, they swore on board the ship if I did not come on board they’d kill me. they fired killed Serjt. Bickford, after the firing I went into the Boat & person pointed a Gun & Bayonet at my head & swore he would blow my brains out. I carried him on shore & deld. him to Major Carnes Lynch did not appear to be drunk Benja. Edes the preceeding night there was a disturbance, that night I went to Boston point & saw Majr. Carnes with Timothy Lynch in his hand who said he was delivered him by Majr. Rice, we knock’d up Mr. Otis. Got a light veiwed Lynch he was bloody about the bosom to the wastband: found a musket bullet in his pocket: Heza. Bracket I was one of the Guard on board, the Prisners seem’d displeased. Serjt. fired a Gun out the cabin windows: Serjt told all of us to take our Guns. Paul Brown the centry forward came & told me he was disarmed. I saw a No. surrounding Serj. McGregor was among them. I was surrounded but not by any of these: a Prisner stood centry at round house. McGregor came in & searched for cartridges. Majr. Rice came along side Lt. Morton got into the boat & the firing soon began. Edward Carnes Maj. Rice deld. Timothy Lynch. he was bloody, he sd. he was in the boat wn. the affair happened: he did not appear to me to be drunk. he pretended to great things: Thos. Kirk I was one of the Guards stationed forward. Pat Ryan was very saucy Robt. Smith I was one of the Guard PM. Morris Pressingham seized me, took my Gun, loaded it before my face, took my Cartridge box, & swore he’d blow my brains out if I was not still: they ordered me into the Guard 134 Room. J Rotch & Richd. Makin sat down by me on a Chest & said I Should not be hurt if I was still I knew Rotch by his talk, it was not he that knock’d down Barret. McGregor came in & took out the ax Thos. Man had a billet of wood running abt. damed all the Yankees, wished he could kill em all. Swung the Stick at me & damed me: I found my Gun next morning. it had been fired John Darrick I was one of the Guards Michael Hayes had a Gun standing centry near the fore mast & swore he’d be the Death of some of the dam’d Rebels. I saw McGregor have a Bayonet in his hand—my Gun was charged when taken away & was charged when I found her next morning & had been discharged. Thomas Jones I was on board the ship a Prisner complaint was made by us that these Prisners intended to rob us. Serjt. fired an alarm gun. Timothy Lynch came down into the cabin with a Drawn Bayonet & pricked at me & swore 7 the round house. Michael Hayes came with him & knocked the Light out. Lynch and centry, & would not let us come out witht. giving the countersign exchange all this was after the firing. I saw John Rotch with a club very active. Richard Makin I on board in the cabin Lynch & Hogan came down & drove us up on Deck. we went down & staid there then the firing was Lynch had a Bayonet. Hogan struck the Light out. Philip Rogers I was a prisoner on board. abt. 9 oClock. I saw a boat & Majr. Rice in it. Timo. Lynch standing by Gunnel with a Gun & Bayonet over the Majr. Rice & threatning him. I desired him to heave off he sd. do you keep off us Ill knock you down. I saw Thos. Mann before firing walking forward with a Gun like a centry Robert Watt I saw attack the centry at the round house. I could not see if he took his arms: Michael Hayes before firing swore me upon & sd. if I did not go he’d make me the Prisoner make complaint of provision & Potts. John Sullivan I was drove on deck & saw Thos. Mann walking on deck with a Gun & Bayonet. Emanuel Joseph. Thomas Man had a Gun he sd. it was a good one with 3 bulls. he sd. he would fire into the first boat that came along side. Timothy Lynch pointed a Bayonet at my breast Michael Hayes & Duncan McGregor came down below with Bayonetts & sticks & drove me up on Deck. 135 Mr. Sumner8 we shall endeavour to establish this point that as they were Prisoners by force they had right to regain their liberty by force we allow there was a Combination to disarm the Guard as they had a right not to committ murder our Prisoners have the same right at New York.—have not Prisoners a right to rise & retake a vessel.—if our Guard had struck them could they go to a Justice of Peace. Q their enjoying the liberty of being free of Shackles is sufficient Consid: for their noble rising. Mr. Hitchborn they were lawfully assembled.—you must take each Man’s case by itself Mm. Foster of malice 291, 256, 257, 352, 353 §8 Mr. Hitchborn 4 Black. 145 of manslaughter HPC: 76. manslaughter 1 HHPC 615 HPC 72: a man ought not to justify robbing the man unless he was free from fault you dont set here as judges of the Laws of return the Guard was not sufficient Prestons Case,9 not answerable for one another Joseph Otis. Morton sd. he did not pursue Lynch thrô the Grates.10

MS .


This case was heard at the Aug. 1780 term Superiour Court of Judicature in Boston for Suffolk County before William Cushing as chief justice and Nathaniel Peaslee Sargeant, David Sewall, and James Sullivan as associate justices.

And now the Prisoners aforesaid are set to the Bar & desiring Counsel the Court thereupon assign Increase Sumner, Benja. Hichborn & Perez Morton Esqr. as Counsel, who in behalf of the Prisoners make a Plea against the Jurisdiction of the Court they being British Subjects, which is overruled by the Court, and they now are arraigned upon this Indictment & being severally demanded how 136 they will acquit themselves thereof they severally say that thereof they are not guilty & thereof for trial put themselves upon God & the Country—A Jury is thereupon impannelled & sworn to try the Issue viz. Wm. Cunningham foreman & fellows namely Joseph Kettle Aaron White Thos. Mosely John White Thos. Moor, Lemuel Cravath, Abijah Allen, Isaac Colburn Moses Davis Wm. Foster and Saml. Whitney, who after hearing all matters & Things concerning the same return their Verdict & upon their Oaths do say, that the sd. Duncan McGregor is not guilty, Timothy Lynch is not guilty, Michael Hogan is not guilty, Thomas Man is not guilty, Robert Watt is not guilty, Morris Pressingham is not guilty, Kenneth McPherson is not guilty, Michael Hayes is not guilty, John Rotch is not guilty, whreupon the Prisoners Counsel move that they be discharged, It is therefore considered by the Court that the Prisoners aforesaid go without Day—And now Patrick Ryan, Edmund Healey and Emanuel Joseph Prisoners of War confined in Goal upon suspicion of being concerned in the aforementioned Case and no Bill being found the Court order that they be delivered. (Superiour Court of Judicature Minute Books, Suffolk County, Aug. 1780. Massachusetts Judicial Archives, Boston, Mass.)

On Aug. 14, 1780, the Boston Gazette reported:

Thursday Evening last a Number of Prisoners on board the Guard Ship mutinied, seized and disarmed the Guard, consisting of eight Men, cut the Cable, and she drove ashore near Lechmere’s Point, leading up Cambridge River. On the Alarm being given, the Town Major (John Rice, jun. Esq;) attempting to go on board with an additional Guard to quell the Mutiny, was fired on from the Guard Ship when the Serjeant, Thomas Bickford, was killed; on which, the Major calling to the Shore, and informing of what had happened, it being very Foggy, the Town was alarmed, when a Number of Boats went off to his Assistance, and quell’d the Mutiny. After which, 21 of the Prisoners were bro’t on Shore, and committed to Prison.—A Jury of Inquest being summoned to sit on the Body of the deceased, after about forty-four Hours Examination of the Prisoners separately, found, from their own Confessions, eleven Principals and Accomplices, accessory to the Murder, who are now in Goal, waiting for Trial.


Benjamin Hichborn (1746–1817), see vol. 2.


RTP uses the abbreviation HPC for Matthew Hale, Historia Placitorum Coronæ: The History of the Pleas of the Crown (London, 1736).


Edward Coke, The Reports of Sir Edward Coke, Knt. in English, in Thirteen Parts Complete; with References to all the Ancient and Modern Books of the Law (London, various editions). RTP owned a copy of the Reports (unspecified edition) along with other works by Coke including his Institutes and Entries. The famous Calvin’s Case (1608) “finessed a delicate political compromise over whether James’s Scottish subjects, through his accession, had acquired the rights of English subjects” (Oxford Dictionary of National Biography).


Charles Viner, General Abridgment of Law and Equity, Alphabetically Digested under Proper Titles; with Notes and References to the Whole was published in twenty-three volumes between 1742 and 1757. The catalogue of RTP’s library lists “Cases in Equity Abridg’d 2d vol,” which was purchased for him in London by Gawen Browne from John Stockwell for £1.11s.6d.


Foster, Reports and Discourses on Crown Law. According to notes kept by Chief Justice William Cushing, RTP “on the authority of Foster 186, 187, contended that prisoners of war are amenable for an offence malum in se; and of course may be tried by the ordinary tribunals of justice in the country, in which the crime is committed. This has been the practice in England: and although they may perhaps be tried also by courts-martial, that cannot oust the courts of law of their general jurisdiction.— To which opinion the court held, and on deliberation unanimously overruled the plea” that as prisoners of war and subjects of the king of Great Britain, they were not liable to courts “who judge by municipal law: but ought to be tried by the laws of nations, and by courts-martial” (Reports of Cases Argued and Determined in the Supreme Judicial Court of the Commonwealth of Massachusetts, 14:498–499).


A full line illegible due to ink bleeding through.


Increase Sumner (1746–1799) graduated from Harvard (A.B., 1767) and was admitted to the bar in 1774. A lawyer in Boston, he became a justice of the Supreme Judicial Court in 1782 and later a popular governor of Massachusetts. In 1783 he purchased the Robert Auchmuty mansion in Roxbury, one of the loyalist estates. Later, RTP’s son Charles Paine married Sumner’s niece Sarah Sumner Cushing (Sibley’s Harvard Graduates, 16:531–538).


Although not specifically identified, presumably a reference to Rex v. Preston and/or the connected Rex v. Weems—the Boston Massacre trials—and the culpability of individuals within a group action.


RTP was extremely succinct in his diary entries for this case: Sept. 6: “Tryal of the Prisoners from Guard Ship, for Murder”; Sept. 7: “Do. not guilty.”