The Disappearance of Jonathan Sewall

In the mid-1760s, Jonathan Sewall allied with Gov. Francis Bernard, writing pseudonymous newspaper essays lampooning James Otis and favoring the Crown. The governor appointed Sewall to be attorney general of Massachusetts in 1767.

Sometime in March 1770, Attorney General Sewall wrote out the indictment of Capt. Thomas Preston and eight soldiers for multiple counts of murder—the Boston Massacre. This document used old British legal formulas: “not having the Fear of God before their eyes, but being moved and seduced by the Instigation of the devil and their own wicked Hearts…”

After 27 March, Sewall expanded that indictment to include three Customs service employees and notary John Munro, caught up in young Charles Bourgate’s accusations. It’s highly unlikely he believed in those charges, but he didn’t fight them.

Ordinarily Sewall would have prosecuted all those defendants, as well as the murder charges against Ebenezer Richardson and George Wilmot. He had personally argued all previous criminal cases since his appointment. Because people knew Sewall was a friend of the royal government, on 13 March the town of Boston voted to hire an attorney to assist him—an unusual move to ensure there was an aggressive prosecution.

Instead, the indictment turned out to be Sewall’s last official act in the Massacre trials. He never appeared in the Boston courthouse again that term. In 1816 defense counsel John Adams recalled: “Mr. Sewall, the Attorney General, who ought, at the hazard of his existence, to have conducted those prosecutions, disappeared.” Solicitor general Samuel Quincy wrote that Sewall couldn’t appear “by reason of Ill health.”

According to Thomas Hutchinson, the problem was the Boston Whigs’ visit to the court on 22 March to demand that the judges proceed to those murder trials. The acting governor wrote, “Sewall tells me he never will appear at any other court in that town, after the present, as Attorney General, and the whole court say they do not sit there with freedom.”

Yet the judges continued to sit. To prosecute the big murder cases, they appointed Robert Treat Paine, a private lawyer in Taunton, and Samuel Quincy. Adams wondered if Sewall was involved in those choices, but there’s no surviving evidence that he was.

Samuel Phillips Savage of Weston complained that Sewall didn’t stop all legal work. In his almanac diary Savage wrote that the attorney general continued to appear “with the jurys of the Inferior Courts at Charlston and Ipswich in the petty Concerns cognizable before the General Sessions of the Peace.” But he never went into Boston.

I suspect there was another factor in Sewall’s action, or lack of it: he was prone to depression. During the war he had a breakdown and spent more than a year in his bedroom. He had other spells of depression later in life, and his son suffered from the same spells while serving as chief justice of Upper Canada.

Even before the war, I think Sewall’s public writing shows a pattern of bursts of energy and silence. He published series of lively and often verbose essays from February to June 1763 (as “J,” “Jehosaphat Smoothingplain,” and “J. Philanthrop”), December 1766 to August 1767 (“Philanthrop”), December 1770 to February 1771 (Philanthrop” reviewing the Massacre trials he’d stayed away from), and June to August 1773 (“Philalethes”).

But in late 1774, after the Powder Alarm drove him into Boston, Sewall went silent. To argue for the Crown, “several of the principal gentlemen” turned to Daniel Leonard and Sewall’s law clerk Ward Chipman to deliver the “Massachusettensis” essays. Sewall may have supported the project, but he couldn’t do the work.

Historians are reluctant to apply psychiatric diagnoses like bipolar disorder to figures of the past. They’re beyond the reach of psychologists. And more than anyone historians know how concepts of mental illness change over time.

But in Sewall’s case, I think attributing his refusal after March 1770 to try the Massacre cases solely to his politics or to Whig pressure might miss a crucial internal force. The attorney general couldn’t bring himself to prosecute the big cases, nor to refuse to prosecute. He just stayed away.