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.

“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.