Convicted for the Boston Massacre

After Robert Treat Paine finished his closing argument in the second Boston Massacre trial on 5 Dec 1770, the justices delivered their charges to the jury.

In modern trials, judges usually confine their remarks to clarifying points of law. In the eighteenth century, they also analyzed the facts of the case, often making clear what verdict they thought was appropriate.

The justices spoke in reverse order of seniority, with Edmund Trowbridge going first. Having been the province’s attorney general for over a decade, he had the most courtroom experience of any of the judges. Indeed, one didn’t even have to be a lawyer to become a Massachusetts Superior Court justice.

After reviewing British law on murder, Trowbridge got into how to apply it to the specifics of this case:

Some witnesses have been produced to prove that [Edward] Montgomery killed [Crispus] Attucks; and [Edward G.] Langford swears [Mathew] Killroy killed [Samuel] 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.

As to the argument that the soldiers were guilty for firing without orders or authorization from a magistrate, Trowbridge stated, “A man by becoming a soldier, doth not thereby lose the right of self-defence which is founded in the law of nature.”

Next came Justice Peter Oliver (shown above), who left no doubt about what verdict he would consider just:

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.

No one kept a detailed record of Justice John Cushing’s remarks. He apparently said much the same as his colleagues.

Finally came the senior and presiding judge, Benjamin Lynde. Only some of his remarks survive. He acknowledged the evidence against Pvt. Kilroy, both in firing a fatal shot and in having a malicious motive, was the strongest against any of the defendants. Then he added:

But whether he can be charged with murder is the question, when he went there, not by himself, but by command of his officer whom he was bound to obey, and placed there in defense and support of sentry fixed at this post by martial authority. And when you consider the threatening given them all, the things flung, and stroke given, and that the person slain [Attucks] was one of the most active, and had threatened he would knock down some of the soldiers, and, what [witness Joseph Hinkley] swears, was animating and pushing on the people, dissuading them from running away, for “they durst not fire,” these things, together with the real danger they all were in from the numbers surrounding, may lessen his crime, from what he is charged with, to manslaughter.

According to Paine’s notes, the case was turned over to the jury “at 1/2 past one” on 5 December. Those twelve men went away and deliberated “for about two hours and an half,” or until late afternoon. In contrast, the jury in Ebenezer Richardson’s trial back in the spring had met from 11:00 P.M. to about 9:00 A.M. before pronouncing the man guilty of murder. The jury in Capt. Thomas Preston’s trial were out from 5:00 P.M. to 9:00 the next morning and decided on acquittal.

Court officials asked foreman Joseph Mayo to announce this jury’s decision about each defendant in turn. The judgments were:

• Cpl. William Wemys, not guilty.
• Pvt. James Hartigan, not guilty.
• Pvt. William Macauley, not guilty.
• Pvt. Hugh White, not guilty.
• Pvt. Mathew Kilroy, not guilty of murder, guilty of manslaughter.
• Pvt. William Warren, not guilty.
• Pvt. John Carroll, not guilty.
• Pvt. Edward (Hugh) Montgomery, not guilty of murder, guilty of manslaughter.

TOMORROW: Inside the jury room.