J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Monday, December 07, 2020

“They would have brought in all Guilty…”

As described yesterday, the trial of the eight enlisted men for the Boston Massacre ended with six acquittals and two convictions.

The acquitted men were Cpl. William Wemys and Pvts. James Hartigan, William Macauley, Hugh White, William Warren, and John Carroll.

The published record of the trial states: “Wemms, Hartegan, McCauley, White, Warren and Carrol were immediately discharged.”

According to a writer in the 17 Dec 1770 Boston Gazette, “The Soldiers were discharged from the Court in high Day-Light; and went their Way thro’ the Streets, with little, if any, Notice.”

In other words, there was no mob of Bostonians disappointed in the verdict waiting to string up or otherwise punish those men. The Boston Whigs wanted to be sure the world knew that, even as Samuel Adams prepared a long series of newspaper essays as “Vindex,” rearguing the case in the court of public opinion.

The jurors had convicted the two soldiers described by witnesses as firing fatal shots:
  • Pvt. Edward (called Hugh) Montgomery; multiple people said he was the first soldier to shoot, and some said his shot downed the tall man later identified as Crispus Attucks.
  • Pvt. Mathew Kilroy, seen to shoot Samuel Gray. In addition, people testified he was at the ropewalk fight days before, he had muttered about getting revenge, and he stuck his bayonet into Gray’s wounded head. A bloody bayonet was found in the main guard the next morning.
The jury thus identified the two men with the most responsibility for the deaths on King Street.

(I think Pvt. White deserves some blame for starting the violence there by hitting apprentice Edward Garrick, but he wasn’t charged with that. Clonking a sassy adolescent on the head wasn’t really considered a crime in colonial America.)

That’s not to say the jury thought the other soldiers were innocent. In fact, the jurors probably came closer to finding most of those men guilty than their relatively brief deliberation might imply. Acting governor Thomas Hutchinson wrote in a 1770 almanac (eventually published in the American Antiquarian Society Proceedings):
The Court [i.e., the judges] doubted whether in any the fact could be M.S. [manslaughter] the violence offered by the people they supposed would make it se defendendo [in self-defense] in every one of the Soldiers, but it seems the Jury thought they ought to have been longer before they fired & if it had been proved that all fired they would have brought in all Guilty of MSr [manslaughter] but the general run of the Evidence was that there was only 7 Guns fired by 8

whoever the eighth was there was nothing which could involve him in the guilt of the other seven. Rather therefore than convict one of the six not proved to have fired who must be innocent the jury acquitted five who were Guilty.
In the same search of the main guard that revealed the bloody bayonet, local officials found that seven of the eight muskets had been fired. They had no way of knowing which soldier had handled which gun. If the army had a system, they didn’t share that information. (Fingerprint evidence hadn’t been developed yet, of course.)

Prosecutor Robert Treat Paine argued that Cpl. Wemys was the man who refrained from firing but admitted that wasn’t certain. And that measure of doubt was enough to spare not only the corporal but five privates.

The Boston Massacre trial is thus not only an early American example of ensuring that even unpopular defendants receive adequate legal representation but also the belief that it’s wiser to let probably guilty defendants go free than to wrongly convict an innocent person.

TOMORROW: The sentence for manslaughter.

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