Two Salaries for Chief Justice Peter Oliver

One of the Massachusetts Whigs’ complaint about Thomas Hutchinson in the 1760s is that he amassed too many offices for himself.

Hutchinson was simultaneously the lieutenant governor, as such a member of the Council, the chief justice of the superior court, and a probate judge.

When Gov. Francis Bernard went home to Britain and Hutchinson became the acting governor, he gave up his judicial posts. Benjamin Lynde seemed like a natural fit for that role—his father, also named Benjamin Lynde, had been chief justice from 1729 to 1745.

After less than two years, however, Lynde resigned. Hutchinson, now governor in his own right, looked for a new chief justice. But first, he appointed his brother Foster to the court.

(Lyndes and Hutchinsons weren’t the only judicial dynasties. In 1772, William Cushing became a third-generation justice.)

Gov. Hutchinson decided to recommend elevating associate justice Peter Oliver (shown above) to the chief position. Oliver had been on the court since 1756. He was a strong supporter of unpopular Crown officials, as he’d shown at the trials of Ebenezer Richardson, Capt. Thomas Preston, and the British soldiers in 1770.

Oliver was also related to Hutchinson by marriage in three different ways. And his own brother Andrew was lieutenant governor. For the Whigs, Hutchinson giving his old jobs to his in-laws didn’t really look like sharing power.

One aspect of royal rule that should seem foreign to us is that Crown officials could keep a lot more of their actions secret from the public. Since the people’s representatives weren’t involved in choosing governors and justices or paying their salaries under the Townshend Acts, why did they need to know?

In July 1772 the Massachusetts General Court demanded that Gov. Hutchinson tell them whether he was getting paid by the Crown. He said he was. Joseph Hawley, a lawyer and representative from Northampton, drafted resolutions condemning this arrangement, but the legislature couldn’t do anything more about it.

It took even more time for the assembly to confirm that the royal government had offered salaries to Chief Justice Oliver and his colleagues. And even then it wasn’t clear the justices would accept that money. That didn’t stop Samuel Adams and the new Boston committee of correspondence from making that their primary complaint to other towns in late 1772.

In early 1773 the General Court tested the system by appropriating £300 to pay Oliver for the previous judicial term and £200 for the associate justices. In June, the newly elected legislature (many of the representatives having been reelected) asked treasurer Harrison Gray if the justices had collected that money. They had taken only half, Gray reported.

Aha! said the legislators. That means the justices were living off the royal government’s tax revenue. At the end of June, the General Court demanded that those men renounce any pay except what it had voted on. This is one of the paradoxical moments in Revolutionary confrontations: Massachusetts politicians demanding to pay government officials they disliked instead of letting the royal government do it. But it was the principle of the thing, you see.

The associate justices agreed that they wouldn’t accept any more royal pay. Chief Justice Oliver didn’t. The next move was up to the Whigs. But according to the provincial charter, they had no role in picking judges. So what could they do?

TOMORROW: John Adams’s bright idea.

“Both fell into the Water”

This week I found myself discussing significant details that Boston newspapers left out of their reports:

• what captain nearly lost his ship on Cape Cod.
• which gentleman owned a poetry-writing girl named Phillis.

Presumably if Bostonians really wanted to know the missing information, they could ask around the town of 16,000 people and find out.

Here’s another example from the same month. The same 1 Oct 1767 Boston News-Letter report on the storm that beached Capt. Richard Coffin’s ship also included this detail:

A Gentleman and his Lady who had just landed on one of the Wharves from a Boat that had been below, was by the extreme Darkness of the Night, led to the edge of the Wharf and both fell into the Water, and would probably have been drowned, had not some of the Company immediately assisted and got them out.

What unlucky couple was that? What was their story?

Fortunately, I have some people I can ask. Here’s John Rowe’s diary from 24 September:

We had A Very Severy Storm it Blew as hard as I ever heard it, Accompanied with Thunder Lighting & very heavy Rain.

Mr Walter & Wife had Like to have been drownd at pecks Wharf

And 27 September:

After Noon I went to Church

Mr Walter Read prayers & preachd from the 103d. Psalm & the 19th Verse, The Lord hath prepard his Throne in the Heavens and his Kingdom Reigneth.

Over all, this was A very Pathetick & Good Discourse & very Applicable to Mr Walters Late Misfortune—in which Wee All Rejoyce for Gods Remarkable Deliverance of him & Wife—

William Walter was the rector at Trinity Church. So it wasn’t just any gentleman who fell off the wharf; it was one of the town’s handful of Anglican clergymen.

And his wife? Just shy of a year before that storm, the Rev. Mr. Walter had married Lydia Lynde. Her early-1760s portrait by John Singleton Copley appears above.

That sent me to the diary of Lydia Walter’s father, Massachusetts chief justice Benjamin Lynde (the second chief justice of that name). His entry for 23 September says:

A fine morning, but a great storm by night. My daughter Walter with her husband by wind carryed off the wharfe into the water, where she sank, and in most hazardous state, but got out, and thro’ God’s great goodness not hurt, tho’ then within 2 months of her time.

So the lady who fell off the wharf was seven months pregnant!

And here’s the happy ending from Lynde’s diary of 13 November:

My daughter Walter (notwithstanding her fall into the water), safely delivered of a son, baptized the 16th, Lynde; [Recompense Wadsworth?] Stimpson and wife Godfather and mother, Sheriff [Stephen] Greenleaf ye. other.

The Walter family left Boston in the evacuation of 1776, but William and Lydia Walter came back after the war when he was named rector of Christ Church.

Young Lynde Walter married in Shelburne, Nova Scotia, in 1791, then again in Trenton, New Jersey, in 1798. Eventually he returned to Boston, where he died in 1844 at age seventy-six. His namesake son was the first editor of the Boston Evening Transcript.

But all that was possible only because people had helped fish his grandmother out of Boston harbor on a stormy night in September 1767.

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.

“Jury went out after noon and did not agree all night”

On 20 Apr 1770, Benjamin Lynde, acting chief justice of the Massachusetts Superior Court, wrote in his diary:

Fair. Richardson and Wilmot’s tryal, begun morn. and Jury went out after noon and did not agree all night.

As recounted yesterday, Lynde indeed presided over the trial of former Customs employees Ebenezer Richardson and George Wilmot for murder.

The jury actually started deliberating about 11:00 P.M. Per the rules of the time, they were shut into a room of the courthouse and not given any food or drink or allowed to sleep. That was to encourage them to reach a verdict. (And of course it saved the government money.)

Those jurors had been drawn from Suffolk County outside of Boston, on the assumption that Bostonians might be biased. We have their names, and I wish I knew which towns they came from in order to nail down their identifications. I’m going to assume they’re the most prominent men of those names from Suffolk County outside Boston since a man had to be at a certain economic level to be on the jury list. (And because it’s easier to search where the light is best.)

The foreman was Jonathan Deming. A man of that name lived in the part of Needham that eventually became Wellesley. He was born in Boston in 1723, possibly son of a sea captain from Wethersfield, Connecticut, who later retired to the country. From his twenties Deming filled various town offices in Needham. In November 1768, Boston ministers published his intention to marry Elizabeth Clark, but that doesn’t appear to have worked out since in November of 1770 Deming went to Charlestown and married Esther Edes. He was in his late forties, but she was sixteen years younger, and they had three children over the next few years. Jonathan died in 1791 and Esther in 1792.

Apparently Deming and all the other jurors quickly agreed that Wilmot was innocent of the charge of murder. Most also agreed that Richardson was guilty. There were two holdouts from a quick unanimous verdict, Deming later testified:

Mr. Lothrop was satisfied as to Fact, but not Law. Mr. Clap not so fully satisfied as to Law.

Thomas Lothrop was from Hingham, the portion that became Cohasset in 1770. He had been born in 1738. After his father died and his mother remarried, he went to live with a rich uncle who left him an estate. Lothrop served in the French and Indian War, becoming a lieutenant, and in town government his neighbors chose him to be clerk, moderator, selectman, and eventually representative to the Massachusetts General Court. He married Ruth Nichols in 1760; they moved into a big house “near the cold spring” and raised twelve children.

Notably, as Massachusetts’s conflict with Britain heated up, Lothrop was active on Cohasset’s committee of correspondence and committee of inspection. He was also a militia officer, rising to lieutenant colonel in the 2nd Suffolk regiment during the war. Lothrop lived until 1813.

Seth Clap was born in Dedham in 1722, two years before part of that old town broke off to become Walpole, where he lived the rest of his life. Clap married Mary Bullard in 1745 and they had ten children before she died. In February 1769 Clap married Elizabeth Weatherbee, and they got right to having more children, the first arriving in November. Ultimately they had six. Clap served Walpole in various ways: as a schoolteacher as a young man, as a town clerk in his fifties, and in 1758 by “making a place in the meeting-house to secure the town stock of ammunition.” He died in 1788.

There’s no sign that Lothrop or Clap supported the royal government in 1770. In other words, their reluctance to convict Ebenezer Richardson wasn’t due to their politics. They were sincerely concerned about whether he should be convicted of murder for shooting at a crowd attacking his house. Lothrop later said, “I did not fall in so soon as some, for I thought the time might be as well spent in Argument.” Clap agreed, “At first going out I was not so clear as afterwards.”

In the wee hours of 21 April, 250 years ago today, Deming and the rest of the jury worked at winning over those two men. Clap apparently noted that under British common law a man was not guilty of murder if he killed someone breaking into his house. But that was only at night, other jurors replied. Richardson had shot young Christopher Seider “in the Day,” and that won Clap over. Deming assured him that “the Court knew the Law.”

What finally moved Lothrop was his fellow jurors’ belief that “if the verdict was not agreeable to Law the Court would not receive it.” The judges had already made clear they believed Richardson did not commit murder. Thus, a man could vote to convict him of a capital crime and not feel that he was necessarily sending the man to his death.

After dawn, the twelve jurors finally agreed on a verdict. About half an hour later Deming announced their decision in the courtroom. Wilmot was free to go, but everyone really cared about the other defendant. As Judge Lynde wrote in his diary:

Fair; Jury agreed abo. 9; Richardson guilty.

Judge Peter Oliver later wrote of the Whig crowd: “the Courtroom resounded with Expressions of Pleasure; ’till, even one of the Faction, who had some of the Feelings of Humanity not quite erased, cried out, ‘for Shame, for Shame Gentlemen!’—This hushed the clamorous Joy.”

The judges then adjourned court until 29 May, when one of the first orders of business would be sentencing Ebenezer Richardson.

“Liberated upon each of them giving bail”

Back on 27 March, I described how a Suffolk County grand jury indicted four civilians for murder in the Boston Massacre.

As acting governor Thomas Hutchinson wrote, those four men had been “committed to close prison, where they lay about a fortnight,” because of the testimony of Charles Bourgate.

That “French boy” claimed that his master, Edward Manwaring, had fired a gun out of the Customs House window. The other three men were charged with being part of the fatal conspiracy simply because they testified in support of Manwaring’s denial.

Ordinarily, there was no bail for people charged with murder. But some Superior Court judges thought the evidence against those men was weak enough to make an exception.

According to an anonymous correspondent keeping track of events in Boston for the Customs service, the town committee gathering evidence about the Massacre “threw every obstacle in the way in order to prevent this affair coming to a hearing by informing the Court that they daily expected new Witnesses from the Country.”

Eventually the court scheduled a bail hearing on Saturday, 7 Apr 1770—250 years ago today. According to the diary of acting Chief Justice Benjamin Lynde, it took “all forenoon.” The anonymous report described the event this way:

The Witnesses brot. against the Custom house People Manwarings french boy and one [Samuel] Drown, the former had sworn to so many falsities that the Court paid no regard to his evidence—the latter was proven in Court to be a fool, unable to utter one coherent sentence. . . .

Upwards of 40 Creditable people were summoned by Manwaring to disprove Guns being fired out of the Custom house but only the family of Mr. [Benjamin] Davis who lives directly opposite was examined—they all declared they had their eye upon the Custom house during the whole affair, and that they saw no Guns fired nor believ’d any were fired. their Evidences were so very clear that the Court thought it unnecessary to examine any other of his exculpatory Witnesses.

Lynde was nonetheless still inclined not to grant bail. Judge Peter Oliver (shown above), brother of province secretary Andrew Oliver and related by marriage to Hutchinson, already believed there was “little cause of Confinement.” Judge John Cushing (1695-1778) cast the deciding vote.

The court let the four men out of jail pending trial if they paid bail of £400 each. As comparison, in 1770 Paul Revere paid £213 for an entire house in the North End. With the help of sixteen sureties, the defendants came up with the necessary money. They still had to go on trial, but until then they were free.

The Superior Court “Overawed”

Even as the royal army and the town of Boston took steps to respond to the Boston Massacre in March 1770, a third institution was moving, albeit more slowly: the Massachusetts court system.

Under the provincial charter, governors appointed the judges in consultation with their Council. Judges served as long as they wanted. That meant the judiciary leaned toward the establishment and the Crown.

In fact, the Chief Justice of the Massachusetts Superior Court was still Thomas Hutchinson, the acting royal governor. He had stopped exercising that judicial role, however, so the acting chief was Benjamin Lynde of Salem (1700-1781, shown here).

The court was scheduled to start sitting in Boston on 20 Mar 1770, but Judge Lynde’s diary shows that he didn’t arrive (with his enslaved servant Primus) until the following afternoon. Then on 22 March, “Two of the Judges being sick, the Court came to a Determination to adjourn to the 2d. Tuesday in June,” according to a report to Crown officials.

The Boston Whigs had anticipated that possibility. As I noted back here, the town meeting had already discussed now judges falling ill would delay the murder trials of Ebenezer Richardson and the soldiers involved in the Massacre. They didn’t want that.

On 22 March or the next day, some of the town’s leading Whigs went to the courthouse. The informant stated:

a committe consisting of Ad[am]s Mol[ineu]x, War[re]n H[ancoc]k & others waited upon them in court, and in a very pathetic Speech, made by Mr. A---s, Represented the necessity of proceeding to the trial of the Criminals this Term, particularly those concerned in the late bloody Massacre. . . .

Numbers even of the Sons of L----y were shocked to see their Sup-----r C---t overawed and insulted in this manner.

The Superior Court remained in session, but it did business slowly, starting with the civil cases.

Also on 23 March, or 250 years ago today, Boston Whigs revived the case against Customs officer Edward Manwaring for shooting at the crowd during the Massacre. As I’ve been tracing, that case rested on the testiomony of Manwaring’s young French servant, Charles Bourgate.

Charles had told his story to a shopkeeper on 6 March, then denied it to a magistrate, then retold it to that magistrate, was then refuted by an alibi witness named John Munro, then accused Munro of being complicit, and was finally refuted by a second alibi witness. Since his first testimony, Charles had been in the Boston jail, either for perjury or for his own protection—the courts would sort out which.

According to Lt. Gov. Hutchinson:

Mr. [Richard] Dana, a Justice zealous for the cause of Liberty, had examined the boy and was so fully convinced of the falsity of his evidence that he would not issue a warrant for apprehending the persons charged. . . . Among other reasons given for the refusal of the Justice to issue his warrant it was said that the facts to which the boy swore were of such a nature that it was impossible they should have escaped the observation of the great number of other persons present

More radical Boston Whigs disagreed. They had a handful of witnesses ready to testify they’d observed shots come from the second floor of the Customs House during the Massacre, just as Charles claimed.

On 23 March, magistrates John Hill and John Ruddock took down the French boy’s sworn story, presumably in the jail. Also present to attest to the boy’s mark were Dr. Elisha Story, Ruddock’s son-in-law, and Edward Crafts, brother of coroner Thomas Crafts. All those men were strong Whigs.

The justices duly recorded that “Edward Manwaring, Esq; and John Munroe…were notified and present; and interrogated the deponent.” But the boy stuck to his tale.

This deposition would go into the town’s Short Narrative of the Horrid Massacre report. It would also go to the grand jury, which didn’t need warrants or judges to indict people and put them in jail.