Feeding and Housing the Boston Massacre Jury

In addition to the costs of the defense in the first two Boston Massacre trials, we also have the second jury’s expense account.

Normally a jury would produce minimal expenses. Even murder trials were supposed to be over in a day. After jurors retired to discuss their verdict, they weren’t given any food or drink. That motivated a quick decision, and thrifty New Englanders no doubt also appreciated the savings.

The Massacre trials were different. To be scrupulously fair, the parties and surrounding society agreed that those sessions could extend over days in order to hear from many witnesses and learned counsels.

As a result, the jurors had to be provided with meals and beds overnight. In addition, the Massachusetts Superior Court asked the Suffolk County magistrates to provide “a reasonable Allowance” to those men to compensate them for their time.

In 1897, John Noble (1829-1909), longtime clerk of the state’s Supreme Court, showed the Colonial Society of Massachusetts a bill detailing the expenses of maintaining the jury. The society printed a transcript and most recently posted that online.

The document was headed “Mr. Joseph Mayo To Joseph Otis on Acct of the Soldiers Tried of ye 29th Regt.” Mayo was the foreman of the jury in the soldiers’ trial. Otis was keeper of the Boston jail, but his duties also included many courthouse tasks, including “Tolling the Bell, Sweeping the Court Chamber, making Fires for the Courts,” and even “bottoming Chairs for Jurymen.”

The invoice shows that on the first day of the trial, 27 November, the jurymen started to eat together and sleep away from their homes. The expenses cover “Biskett & Cheese & Syder” or “Bread Cheese & Syder” in the middle of each day, “Breakfast” every morning starting on 28 November, and “Supper” every evening until 4 December, the day before the trial ended. Breakfast and supper were for fourteen men—presumably the jurors plus two court officers.

From 27 November to the morning of 5 December, the expenses covered “Lodging” for twelve men. That included Sunday, 2 December, when there was no court session (and no bread, cheese, and cider at midday). Lodging cost £1.4s. Old Tenor for those jurors compared to £4.4 for breakfast and £7.17.6 for supper.

Also included were “Pipes & Tobacco”; “Fireing 8 Nights for ye officers” of the court, possibly sitting up to keep the jurors sequestered; and “Sperites Licker,” details frustratingly vague.

The invoice totaled almost £17 in up-to-date Massachusetts money. As written, it implied that Mayo owed that sum to Otis, recompensing him for those expenditures. But people must have agreed that the court system would pay the bill. Justices of the peace Eliphalet Pond, Joseph Williams, and Ebenezer Miller signed the document to authorize payment from the Suffolk County treasury.

Additionally, in February 1771 the Superior Court granted jailkeeper Otis “Four Pounds for his extraordinary care & trouble in attending the several Courts of Justice, for the Year past, they having sat a much longer time than usual.”

As for the jurors’ time, in May 1771 all the county justices heard arguments about whether to compensate those men. They decided that without a law to guide them, they didn’t have the authority to make such a payment. Again, the system wasn’t designed yet for multi-day trials.

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.

Finding Jurors for the Boston Massacre Trial

On 27 Nov 1770, 250 years ago today, the second trial for the Boston Massacre got under way.

It was supposed to start a week earlier, but the court had trouble finding twelve jurors who were ready to sit on what promised to be an unusually long, unusually charged trial.

The defense team was giving the jurors extra scrutiny. Acting governor Thomas Hutchinson wrote to Gen. Thomas Gage in New York:

My great concern is to obtain an unbiased Jury and for that purpose, principally, I advised Captain [Thomas] Preston to engage one of the Bar, over and above the Council to conduct the Cause in Court, in the character of an Attorney who should make a very diligent inquiry into the characters and principles of all who are returned which he has done and it may be to good purpose, but after all it will be extremely difficult to keep a Jury to the Rules of Law.

That appears to be the reason that the young solicitor Sampson Salter Blowers joined John Adams and Josiah Quincy, Jr., on the defense team. (Blowers appears above later in life, when he was a judge in Nova Scotia.) Robert Auchmuty, senior counsel for the defense in Preston’s trial, saw his job as done.

The defense lawyers challenged every potential juror from Boston as too close to the case. After all, the town was paying Robert Treat Paine to be a special prosecutor. And the judges accepted those challenges. As a result, the jurors all had to come from other towns in Suffolk County (which at that time included all of present-day Norfolk County as well as Hingham). 

The trial record, which is unusually thick for the eighteenth century and published in volume 3 of The Legal Papers of John Adams and thus on Founders Online, shows the difficulty in seating a jury of twelve. The men called were: 

• Samuel Williams, Roxbury, challenged for cause.
• Joseph Curtis, Roxbury, challenged for cause.
• Nathaniel Davis, Roxbury, sworn.
• Joseph Mayo, Roxbury, sworn.
• Abraham Wheeler, Dorchester, sworn.
• Edward Pierce, Dorchester, sworn.
• William Glover, Dorchester, challenged peremptorily.
• Isaiah Thayer, Braintree, sworn.
• Samuel Bass, Jr., Braintree, challenged peremptorily.
• James Faxen, Braintree, challenged peremptorily.
• Benjamin Fisher, Dedham, sworn.
• John Morse, Dedham, challenged peremptorily.
• James White, Medway, challenged peremptorily.
• Nehemiah Davis, Brookline, challenged peremptorily.
• Samuel Davenport, Milton, sworn.
• Joseph Houghton, Milton, sworn.
• James Richardson, Medfield, challenged peremptorily.
• John Billings, Stoughton, challenged peremptorily.
• Joseph Richards, Stoughton, challenged for cause.
• Consider Atherton, Stoughton, sworn.
• Abner Turner, Walpole, challenged peremptorily.

The clerk then called the Boston men whose names were at the bottom of that list, and the defendants challenged them all.

• John Brown, Boston, challenged for cause.
• Joseph Barrell, Boston, challenged for cause.
• Silas Aitkins, Boston, challenged for cause.
• Harbottle Dorr, Boston, challenged for cause.

The judges had Sheriff Stephen Greenleaf bring in more men, and the process resumed.

• Samuel Sheppard, Boston, challenged peremptorily.
• John Goldsbury, Boston, challenged for cause.
• Samuel Peck, Boston, challenged for cause.
• William Gouge, challenged for cause.
• Joseph Turrell, Boston, challenged for cause.
• Jacob Cushing, Jr., Hingham, sworn.
• Josiah Lane, Hingham, sworn.
• Jonathan Burr, Hingham, sworn.

Finally, the court officers did a little legal maneuvering to ensure the last three men from Hingham were indeed eligible, and the opening arguments began.

Joseph Mayo (1721-1776) of Roxbury was named foreman of the jury. He owned a large farm a little past the intersection of modern Washington Street and South Street in Roslindale. A veteran of the Louisbourg expedition of 1745, he was a captain of his town’s militia company. Mayo had also served on town committees to promote non-importation and to instruct the Massachusetts General Court representatives to stand up for the province’s charter rights. But the defense team felt, based on their inquiry, that he could assess the case fairly.

The Rev. David McClure Finds Refuge with Joseph Mayo

When we left the Rev. David McClure on the afternoon of 19 Apr 1775, he had just managed to get out of Boston to Roxbury by the neck. Here’s what he witnessed the rest of that day.

The sun was about half an hour above the western horizon. Saw several men on horseback, on a rising ground, looking over to Cambridge, I rode up to them & immediately heard the noise of battle from Cambridge across the bay. There was a constant firing of small arms. The sound was dreadful. It was the first time, I had ever heard a gun fired in anger.

I found it difficult to perswade myself that people who had lived so long peaceably together, were now killing each other. But such was the dreadful reality. O War, “thou shame to man!” O why will “men forget that they are brethren!” Were there no other proofs of the deep, and universal depravity of our moral nature, the existence of war, is a sufficiently dreadful proof.

I was informed by one of the gentlemen, Major [Joseph] Mayo, that I could not get to Cambridge, as was my intention, for the bridge was taken up, to prevent the british returning that way. He invited me to go to his house, about 3 miles. I willingly accompanied him.

Mayo (1721-1776) owned a large farm a little past the intersection of modern Washington Street and South Street in Roslindale. He served as foreman of the jury that acquitted most of the British soldiers tried after the Boston Massacre. “I am much inclined to make him a major,” wrote Gov. Thomas Hutchinson, and he indeed promoted Mayo within his Suffolk County militia regiment. Nevertheless, Mayo was a part of many Roxbury town committees protesting new Crown measures.

Since the summer of 1774, Francis S. Drake’s history of Roxbury says, Mayo had hosted Elizabeth Checkley, widow of a Boston minister and first mother-in-law of Samuel Adams; her daughter Nancy; and a cousin named Sally Hatch, among others. The merchant John Andrews (whose numbers often seem to be off by a factor of two) stated that they formed “an agreeable, social family of about twenty-five females, with the master of the house.”

The atmosphere was not so happy on 19 April, McClure reported:

The house was a place of anxiety & sorrow. It was evening. 7 or 8 Ladies from Boston were there, & their husbands & families were in town. The night was spent by them in wakefulness & weeping. About 10 O’Clock in the evening, the Major’s son returned from the battle, to the great joy of his parents, & gave us the first information of particulars. It was wonderful that a collection of militia men, should be inspired with such courage, & drive the disciplined troops of Britain before them.

Several circumstances in providence, appeared to be ordered in favor of our righteous cause. These circumstances, struck the minds of all; and men of no religious principle at other times, now seemed to be affected with them. Among other things, it is proper to mention, that the element of air helped our cause. He who caused the stars in their courses to fight against Sisera, who wared against Israel, caused on this day, the wind to rise, & follow the retreating enemy, covering them with such a cloud of dust, that blinded them, yet not so but that they were, in their crowded ranks in the road, a plain mark for the militia.

All night, the people were silently marching by the house, from neighbouring towns. I did not take off my clothes; but lay down a little while on the bed.

Some traditions among Mayo’s descendants say he was with Israel Putnam at the time of the Lexington Alarm, but McClure’s diary says otherwise. Those traditions also say Mayo became a major in the Continental Army, but it appears his rank came from the militia before the war; no source identifies Mayo’s Continental regiment.

(The picture above is John Ritto Penniman’s painting of Meetinghouse Hill in Roxbury from the 1790s. It is now owned by the Art Institute of Chicago.)