Simeon Potter and Rhode Island’s Army of Observation

Capt. Simeon Potter’s appeal to Rhode Island’s top court to overturn the verdict against him for assaulting the Rev. John Usher in 1761 didn’t work, despite having Robert Treat Paine to represent him.

So Potter appealed to an even higher court: the Privy Council in London.

According to Bruce Campbell MacGunnigle, who published the surviving record of this case in the Rhode Island Historical Society’s journal in 2006:

Usher won again, but under the condition that [he] come to England to collect [the judgement]. As Usher couldn’t afford the voyage, Potter never paid a cent.

Clifford K. Shipton likewise reported that Usher never collected any damages.

Capt. Potter continued to command respect in his home town of Bristol because of his wealth. He continued to serve in public offices. Usher continued to be the minister of St. Michael’s Church in the same neighborhood.

In 1772 Potter personally helped to attack H.M.S. Gaspee. When the Crown started an inquiry and found some witnesses, the captain apparently leaned on people to ensure he wasn’t identified. That whole affair seems to have made him only more popular.

At the end of 1774, Rhode Island made Potter the first major general of its militia forces. He looked like the right man to stand up to the Crown. By then people knew he was violent, possessive, and extremely stubborn—but those were pluses. Nobody could make Simeon Potter do what he didn’t want to do.

Come spring, Simeon Potter didn’t want to fight in the Revolutionary War.

On the evening of 19 April, according to American newspapers, Continental Congress delegate Stephen Hopkins wrote to Potter, calling on him to report to Providence in his capacity as major general; “The King’s troops are actually engaged butchering and destroying our brethren in the most inhuman manner, the inhabitants oppose them with great zeal and courage.”

Potter stayed home. In Beggarman, Spy: The Secret Life and Times of Israel Potter, David Chacko and Alexander Kulcsar wrote that Potter “claimed to have received a letter from the commanding general of the Massachusetts Militia telling him that no troops were needed,” but I can’t trace that reference and don’t trust the claim.

By 22 April Rhode Island’s legislature, having sidelined Gov. Joseph Wanton, was voting to form an “army of observation” which might march into Massachusetts. But the government had no one to lead those men.

TOMORROW: Finding a general.

“Success in this troublesome affair”?

When I broke off yesterday, Capt. Simeon Potter of Bristol, Rhode Island, had just hit the Rev. John Usher in the face.

And then he did it again.

According to the minister’s son, Hezekiah Usher, that “made the blood fly out of his Mouth.”

The younger Usher described rushing out from his doorway:

I run and catch him [Potter] by the collar & took him off from my Father and received two blows in my Face from sd. Potter.

The captain’s father, Hopestill Potter, aged about seventy-one, also joined the fray. Eventually the minister and captain were pulled apart.

In the fall of 1761, the Rev. John Usher sued Capt. Simeon Potter for the punches “…And also the left Thumb of the Plaintiff at said Time & Place did Sprain by all which the Plaintiffs Life was despaired of.” He asked for “Fifty Thousand Pounds current Money of New England” in damages.

Capt. Potter threw up every roadblock. He argued that he’d been an unarmed man acting in self-defense. That Usher shouldn’t have sued in Newport. That “this Cause might be continued to next Court as he is not provided with an Attorney and his principal Evidence is at Sea.” Ultimately Potter put up no defense and defaulted, and the county court awarded Usher £1,000 plus costs.

Both parties appealed to the Rhode Island Superior Court of Judicature, Usher “because the Damages given were not adequate to the Injury recd.” and Potter because the verdict was “wrong and erroneous and ought to be reversed.”

Meanwhile in January 1762 a grand jury in Bristol County considered criminal assault charges against Capt. Potter. I can’t tell how far that process got.

In the summer of 1762 Potter called in a big legal gun from Massachusetts: Robert Treat Paine (shown above, later in life). Paine’s 6 August letter assured Potter that he could appeal both criminal and civil cases with “the Deposition you have of the Jurys dissatisfaction in their Verdict.” Paine called Usher “a Crafty powerfull Antagonist” and closed “wishing you success in this troublesome affair & that you may finally prevail against Ecclesiastical or Political Tyranny.”

On 10 September, Paine traveled to Newport to argue for Potter. The captain was presenting testimony from several witnesses not heard at the original civil trial.

TOMORROW: Examining the evidence.

“Boston was quiet & no hurt done”

On 8 Sept 1774, two days after the men at the First Continental Congress heard dire reports about the Crown military attacking Boston, accurate information arrived in Philadelphia.

The army had not killed half a dozen civilians. The navy had not bombarded the town. In fact, over two tense days nobody had been hurt at all.

Robert Treat Paine recorded the new news in his diary:

By the Post came advice from N. York that a person had arrived from Boston & Newport since the time Supposed in [Israel] Putnams Letters & that Boston was quiet & no hurt done.

John Adams did likewise, characteristically with more emotion:

The happy News was bro’t us, from Boston, that no Blood had been spill’d but that Gen. [Thomas] Gage had taken away the Provincial Powder from the Magazine at Cambridge [sic]. This last was a disagreable Circumstance.

Roger Sherman of Connecticut wrote the next day:

We were Alarmed a few Days ago with a report that Boston was fired upon by the Land and Sea forces, but it has been Since Contradicted.

Also on 9 September, Caesar Rodney of Delaware wrote about news from Massachusetts: ”A letter to Mr. [Thomas] Cushing by Express from Boston informs that all is Quiet as Yet…” He went on to discuss other forms of resistance snarling up the Suffolk County court sessions and mandamus Council.

People in the eighteenth century were used to hearing false reports and contradictory information to sort out. They knew that news could take days and weeks to travel, and be garbled along the way. They must have been used to rethinking how they understood distant events based on new facts.

Nonetheless, those reports of the British military attacking Boston must have tinged how the delegates at this Continental Congress viewed the ongoing dispute with the Crown. The news arrived just as those men were getting acquainted and setting out the rules for their body.

On 6 September, the same day that the false rumors prompted the Congress to adjourn early, Samuel Adams was proposing that the Rev. Jacob Duché, an Anglican, lead the body in prayer. As I wrote way back here, that “masterly stroke of policy” helped allay worries that the New Englanders were all religious bigots who would drag the whole continent into an unnecessary fight. And now Adams’s home town was under attack?

Philadelphians began to ring their church bells “muffled” in mourning for the Boston dead. According to Silas Deane, Christopher Gadsden (shown above) of South Carolina was “for taking up his Firelock, & marching direct to Boston.” John Adams wrote, “Every Gentleman seems to consider the Bombardment of Boston, as the Bombardment, of the Capital of his own Province.”

Then came the better news. Deane reported, “The Bells of the City are now ringing a peal of Joy on Acct. of the News of Boston’s having been destroy’d being contradicted.” The Congress didn’t have to consider military matters after all. At least, not right away. But for a couple of days, the delegates had faced the possibility of a war against the imperial government. Could their actions keep that from happening, or did they need to prepare for it—or was it possible to do both?

“In what Scenes of Distress and Terror”?

On the afternoon of 6 September, news of the “Powder Alarm” reached Philadelphia, where the First Continental Congress had just started meeting in Carpenter’s Hall.

Of course, that news consisted of the dreadfully exaggerated rumors that had spread through New England after British soldiers had seized gunpowder on the morning of 1 September.

James Duane of New York kept private notes on each day’s session, and he wrote:

N B. During the meeting of the Congress an Express arriv’d to the Jersey Members giving Intelligence that the soldiers had seized the powder in one of the Towns near Boston. That a party was sent to take this; & that six of the Inhabitants had been killd in the Skirmish. That all the Country was in arms down to [blank] in Conneticut. That the Cannon fired upon the Town the whole Night.

Naturally, the Massachusetts delegates were most concerned. Robert Treat Paine wrote in his diary:

About 2 o Clock a Letter came from Israel Putnam into Town forwarded by Expresses in about 70 hours from Boston, by which we were informed that the Soldiers had fired on the People and Town at Boston, this news occasioned the Congress to adjourn to 8 o Clock pm. The City of Phila. in great Concern, Bells muffled rang all pm.

According to Samuel Ward of Rhode Island, the news of “the Troops & Fleets cannonading the Town of Boston &c occasioned an Adjournment to 5 o’Clock P.M.”

John Adams held out hope for better news:

Received by an express an Intimation of the Bombardment of Boston—a confused account, but an alarming one indeed.—God grant it may not be found true.

The next day, Silas Deane (shown above) of Connecticut wrote home to his wife:

An express arrived from N York confirming the Acct. of a rupture at Boston. All is in Confusion. I can not say, that all Faces, gather paleness, but they all gather indignation, & every Tongue pronounces Revenge. The Bells Toll muffled & the people run as in a Case of extremity they know not where, nor why.

As of the morning of 8 September, the Congress was still anxious for news. Adams wrote to his wife Abigail:

When or where this Letter will find you, I know not. In what Scenes of Distress and Terror, I cannot foresee.—We have received a confused Account from Boston, of a dreadfull Catastrophy. The Particulars, We have not heard. We are waiting with the Utmost Anxiety and Impatience, for further Intelligence.

The Effect of the News We have both upon the Congress and the Inhabitants of this City, was very great—great indeed! Every Gentleman seems to consider the Bombardment of Boston, as the Bombardment, of the Capital of his own Province. Our Deliberations are grave and serious indeed.

And Deane wrote:

We are all in the greatest anxiety, that of a most cruel suspence as to the certainty of the Boston rupture, as No fresh intelligence has as yet arrived.

TOMORROW: Fresh intelligence at last.

“A ministerial member pleaded a call of nature”

The Massachusetts House started its session on Friday, 17 June 1774, at 9:00 A.M.

The first action was a committee report on a land grant, which the legislators read and accepted.

Then came the all-important “Committee appointed to consider the State of the Province.” The House approved a motion “The the Gallaries be clear’d and the Door be shut.”

Ordinarily this step was to keep spectators away from sensitive discussions before official votes, so legislators could speak freely and discuss compromises. In this case, however, House clerk Samuel Adams and his allies also wanted to keep people in.

The Rev. William Gordon recounted:

They had their whole plan compleated, prepared their resolves, and then determined upon bringing the business forward. But before they went upon it, the door-keeper was ordered to let no one whatsoever in, and no one was to go out:

however, when the business opened, a ministerial member pleaded a call of nature, which is always regarded, and was allowed to go out.

He then ran to give information of what was doing, and a messenger was dispatched to general [Thomas] Gage, who lived at some distance.

Inside the Salem courthouse, the committee laid out their recommendations. First, the General Court would appoint five men to represent Massachusetts at an upcoming “Meeting of Committees from the several Colonies on this Continent”—what became known as the Continental Congress.

The designated men were:

• James Bowdoin
• Samuel Adams
• Thomas Cushing
• John Adams
• Robert Treat Paine

At that moment Adams and Cushing were leading the discussion in the chamber. Bowdoin was home sick, Adams was in Boston, and Paine on his way back to Salem from Taunton with fellow legislator Daniel Leonard.

The House then approved paying £500 for those five men’s expenses traveling and staying wherever the congress met. Finally, with a lot more verbiage than I’ll reproduce, the chamber resolved that this “Meeting of Committees” was so important that it urged towns to come up with that £500 outside of the regular tax system in case the Council didn’t get around to approving this bill or the governor vetoed it.

By this time word had reached Gage at the house he rented in Danvers (shown above at its new location). He knew what the General Court was up to.

TOMORROW: The key.

“Undertook to carry off Mr. Leonard”

As I’ve been discussing, in the middle of June 1774 Samuel Adams and his Whig colleagues had come up with a plan to have their colony represented at what would be the First Continental Congress.

But to give the Massachusetts General Court time to approve that plan before Gov. Thomas Gage learned about it and shut down the legislature, they needed to get around committee member Daniel Leonard. He had recently moved to the Loyalist side of the political divide.

Besides Leonard, the other representative from Taunton was Robert Treat Paine, one of Adams’s allies. Both Leonard and Paine were lawyers, and on Tuesday, 14 June, the Bristol County court of common pleas was due to sit in their town. The courthouse was quite close to Leonard’s house, in fact.

As Paine described his actions decades later, he told Leonard that

it had been usual for Years past, to adjourn the Common Pleas Court at Taunton which was to set the then next Tuesday in Order that the Members of the General Court from that County might attend the General Court; but that the Neglect of it always gave uneasiness to many persons; especially the Tavern keepers, who from the great Concourse of people Collected there (the days being long & the Season pleasant) reaped great profits &c., &c., & that we might agree to Shorten the Court by Demurrers & Continuances & get back to [the Massachusetts General] Court in Season to attend to all important business

It was important for politicians to keep local tavern-keepers happy, after all. They were influential men at election times.

But Paine revealed his real motivation when he wrote: “the writer hereof Undertook to carry off Mr. Leonard.”

This maneuver is sometimes described as Paine inducing Leonard to leave Salem just before the crucial legislative vote. But in fact the two men left the previous Saturday, attended the county court for a few days, and even agreed to sit on a county committee to write an address to Gov. Gage.

At the end of the week, Paine and Leonard headed back to the legislature in Salem—“in Season to attend to all important business,” Paine had promised. But Adams’s resolutions were already moving.

TOMORROW: Behind closed doors.

“Keep the committee in play, and I will go and make a caucus”

In addition to Robert Treat Paine’s recollection quoted here, the Rev. William Gordon’s early history of the American Revolution offers another peek at the delicate political maneuverings in Salem in June 1774.

Gordon wrote:

Mr. Samuel Adams observed, that some of the committee were for mild measures, which he judged no way suited to the present emergency. He conferred with Mr. [James] Warren of Plymouth upon the necessity of giving into spirited measures, and then said, “Do you keep the committee in play, and I will go and make a caucus against the evening; and do you meet me.”

Mr. Samuel Adams secured a meeting of about five principal members of the house, at the time specified; and repeated his endeavours against the next night; and so as to the third, when they were more than thirty; the friends of administration knew nothing of the matter. The popular leaders took the sense of the members in a private way, and found that they should be able to carry their scheme by a sufficient majority.

Adams and his team came up with a two-step plan.

First, the Massachusetts House would appoint delegates to a Continental Congress, an idea raised by the Providence town meeting, the Virginia House of Burgesses, and other political allies outside of the colony. The House would also alert all its counterparts of that step and urge them to participate as well.

But then there was the age-old question of how to pay for this. Sending five gentlemen to Philadelphia would cost upwards of £500. Any legislative action involving money, even if it passed the Council, could be vetoed by Gov. Thomas Gage.

The solution was to write a bill authorizing that expenditure of £500 and then adding this clause:

Wherefore this House would recommend, and they do accordingly hereby recommend to the several Towns and Districts within this Province, that each Town and District, raise, collect and pay, to the Honorable THOMAS CUSHING, Esq; of Boston, the Sum of FIVE HUNDRED POUNDS by the Fifteenth Day of August next, agreeable to a List herewith exhibited, being each Town and District’s proportion of said Sum, according to the last Province Tax, to enable them to discharge the important Trust to which they are appointed; they upon their Return to be accountable for the same.

Adams’s unofficial caucus managed to formulate that plan without official committee member Daniel Leonard or other Loyalists catching on.

The next problem was how to pass those resolutions through the House. As Paine wrote:

it was Considered that the regular Method was for the Committee on the State of the Province to make report of these doings as their Report; eight of that Committee were then present, but the ninth [Leonard] was known to be adverse to any Such measure & therefore could not be trusted, least the whole should be defeated by the Governor;…

If Gov. Gage learned about the measures that the House was discussing, he could use his constitutional authority to shut down the legislature entirely.

TOMORROW: The Bristol feint.

“It was known to all but Mr. Leonard”

Robert Treat Paine and Daniel Leonard were Taunton’s two representatives to the Massachusetts General Court in the spring of 1774.

Both Paine and Leonard were Harvard graduates and well regarded lawyers. Both men had, as I mentioned yesterday, courted Sarah White, with Leonard being successful and marrying her.

(Paine finally married Sally Cobb of Taunton in 1770, when he turned thirty-nine and she twenty-six. Losing no time, they had their first child two months later.)

On 9 June 1774, both Paine and Leonard were named to the assembly’s committee of nine members to consider how Massachusetts should respond to the Boston Port Bill.

Looking back after two decades, Paine described that period this way:

Mr. Leonard was a Gentleman of natural good Sence & Eloquence, polite & of engaging Adress & had been Chosen Several Years as member for the Town of Taunton, on the Idea of his being a firm & able freind to the Opposition in wch. his Town was so determined; but on the prevailing Address & Sollicitation of Govr. [Thomas] Hutchinson he had changed his principles, & considered himself now at Market to make the best of them;

all this was well known to the members of the Court & the rest of the Committee more especially to his Colleague the writer hereof; it was therefore considered unsafe for that committee to enter into the consideration of the State of the Province on principles of Opposition while he was present, & as it appeared by the Port bill that the only releif from the Continual Exn. of it was the payment for the Tea that was destroy’d, the Committee turn’d their whole Attention to that;

& as it was known to all but Mr. Leonard, that Another Committee of vastly more importance, form’d from Members of the house of Representatives by their own inclinations was beginning to operate in secret the committee of nine talkd very favourably of paying for the Tea, as a thing not to be compar’d with the Sufferings from the Port Bill:

it would be hard to discribe the Smooth & placid Observations made by Mr. S[amuel]. Adams, Saying that it was an irritating affair, & must be handled Cautiously; that the people must have time to think & form their minds, & that hurrying the matter would certainly create such an Opposition as would defeat the matter;

& many Observations of this kind, all tending to induce Mr. Leonard the Oblique Member of that Committee to think that matters would work terminate in Obedience to the Port Bill were made by Several other Members of the Committee, & then it was Observ’d that it was very hot, & that they had been engag’d in Court all day, & that it was unprofitable to set any longer at that time for the people must have time to bring their minds to a Compromise;

Proceedings of this kind took place on the PM & Evning of three days; as soon as the Committee on the State of the Province was adjournd, all the Members except Mr. Leonard immediately repaird to a retired room where the Self Created Committee before mention’d mett, & being cornpos’d of Such members only as had Signalized themselves in their Opposition to the British Aggressions of Tyrannick Govt., they Shut their Doors & entered freely & fully on all the Subjects of Grievances;…

Meanwhile, back in Boston some leading merchants were also arguing that the town should pay for the East India Company tea.

TOMORROW: Dr. Warren’s diagnosis.

The Sestercentennial of Salem as the Seat of Government

Gov. Thomas Hutchinson prorogued the Massachusetts General Court on 8 Mar 1774, stating:

I have passed over without notice the groundless, unkind, and illiberal charges and insinuations made by each of the other branches against the Governor…

So those insinuations didn’t bother him, not at all.

Two months later, Gen. Thomas Gage arrived as the new governor, and the legislature didn’t have Thomas Hutchinson to kick around anymore.

A newly elected General Court convened in Boston on 25 May. By the end of the day, the legislatures had elected twenty-eight gentlemen to sit on the new Council.

The next morning, Gov. Gage vetoed thirteen of those men. So things were off to a smooth start.

The House started to address the petitions, bills, and other business before it. On Saturday, 28 May, the governor sent a message that he was adjourning the legislature, and the term would start up again on 7 June in the courthouse at Salem (shown above).

That action was part of the British government’s policy of isolating and punishing Boston until the town repaid the cost of the tea destroyed the previous December. Gage acted on instructions from London. Deciding when and where the legislature would meet had long been a Massachusetts governor’s power.

Naturally, the House’s first business when it reconvened was to complain about having to be in Salem. Its resolution argued that since Gage had acted “unnecessarily, or merely in Obedience to an Instruction, and without exercising that Judgment and Discretion of his own,” he wasn’t properly exercising the governor’s prerogative.

A day after that, the House members responded to Gage’s speech opening the session with more complaints about being in Salem.

Late on the morning of 9 June, the House made itself “a Committee to consider the State of the Province” after the Boston Port Bill. After some private and unrecorded debate, the lawmakers appointed a committee to recommend responses to that situation. Its members were:

• speaker Thomas Cushing
• Joseph Hawley
• clerk Samuel Adams
• William Phillips
• Robert Treat Paine
• James Warren
• John Tyng
• Daniel Leonard
• Timothy Pickering

(Some sources say the “Col. Tyng” appointed to this committee was William Tyng of Falmouth, but he had served in the previous General Court and the House journal referred to him as “Mr. Tyng.” The only Tyng in this session was John Tyng of Dunstable, and the Rev. Dr. Samuel Cooper’s diary confirms his title of colonel.)

That committee thus included three of Boston’s four representatives to the General Court. The remaining member was John Hancock, who’s not mentioned in the record of the Salem session, suggesting he wasn’t even there.

Paine later wrote that eight of those men “were considered as firm in the Opposition to British measures.” The exception?

by the mixture of nominations from both parties in the House the Name of Daniel Leonard was so repeated, that the Speaker found himself Obliged to nominate him & he was chosen.

TOMORROW: Who was Daniel Leonard?

A Busy Week in Boston in March 1774

Even before Lt. Gov. Andrew Oliver died on 3 Mar 1774, Gov. Thomas Hutchinson knew he had to postpone his trip to Britain.

Oliver would have taken over certain gubernatorial duties while Hutchinson was out of Massachusetts. But if both men were gone, the executive power would have devolved onto the Council.

That upper house of the Massachusetts General Court hadn’t become as radical as the lower house, but it was still dominated by Hutchinson’s opponents.

Among those opponents was John Hancock, who on 5 March delivered Boston’s annual oration commemorating the Boston Massacre. This was probably the most politically radical thing he ever did before July 1776.

On Monday, 7 March the house sent a long response to Hutchinson’s message, quoted yesterday, dismissing the effort to impeach Peter Oliver, chief justice and brother of the now late lieutenant governor.

Much of that response was written by Robert Treat Paine of Taunton, as shown by a rough draft in his papers. However, some touches are more political than legal and may have come from Samuel Adams. Most pointedly, the response quoted the phrase “an abridgment of what are called English liberties” from one of Hutchinson’s own leaked letters, which was kind of rubbing it in.

The assembly’s response concluded with yet another complaint about officials like Hutchinson and the Olivers misrepresenting the state of the province:

We assure ourselves, that were the nature of our grievances fully understood by our Sovereign, we should soon have reason to rejoice in the redress of them. But, if we must still be exposed to the continual false representations of persons who get themselves advanced to places of honour and profit by means of such false representations, and when we complain we cannot even be heard, we have yet the pleasure of contemplating, that posterity for whom we are now struggling will do us justice, by abhoring the memory of those men ”who owe their greatness to their country’s ruin.”

That last quotation came from Joseph Addison’s Cato.

On the evening of 7 March, men carried out the second Boston Tea Party, dumping twenty-nine crates of tea from the ship Fortune. Some traders had thought that Bostonians would accept that tea since it wasn’t owned by the East India Company. They didn’t.

The funeral for Lt. Gov. Oliver was on 8 March. Prominent members of his family didn’t feel safe attending, and it did not go smoothly.

Meanwhile, there was still a stalemate on impeachment as the legislative session neared a close. On 9 March the house resolved, “it must be presumed that the Governor’s refusing to take any Measures therein is, because he also receives his Support from the Crown.” That same day, Secretary Thomas Flucker brought in Gov. Hutchinson’s message proroguing the legislature until April.

As it turned out, there would be no April session. The impeachment effort was dead.

TOMORROW: In the courtroom.

“I cannot shew any Countenance to it”

When the Massachusetts house informed Gov. Thomas Hutchinson on 25 Feb 1774 that it had voted to impeach Chief Justice Peter Oliver, his first response was that “he desired the Message may be reduced the Writing.”

The house named Samuel Adams, Joseph Hawley, and Robert Treat Paine a committee to do that reduction, then a larger committee to deliver the paragraph to the governor.

That afternoon, they asked where Hutchinson’s promised response was. Secretary Thomas Flucker replied that the governor had gone home to Milton.

The next morning the house received this message:

Gentlemen of the House of Representatives,

By your Message of Yesterday you informed me that you had Resolved to Impeach Peter Oliver, Esq; Chief Justice of the Superior Court, &. before the Governor and Council of High Crimes and Misdemeanors, and that you had prepared Articles of Impeachment, and you prayed that I would be in the Chair that you might then have the Opportunity of laying them before the Governor and Council.

I know of no Species of High Crimes and Misdemeanors nor any Offence against the Law committed within this Province, let the Rank or Condition of the Offender be what it may, which is not cognizable by some Judicatory or Judicatories, and I do not know what the Governor and Council have a concurrent Jurisdiction with any Judicatory in Criminal Cases, or any Authority to try and determine any Species of High Crimes and Misdemeanors whatsoever.

If I should assume a Jurisdiction and with the Council try Offenders against the Law without Authority granted by the Charter or by a Law of the Province in pursuance of the Charter, I should make myself liable to answer before a Judicatory which would have Cognizance of my Offence, and His Majesty’s Subjects would have just Cause to complain of being deprived of a Trial by Jury, the general Claim of Englishmen except in those Cases where the Law may have made special Provision to the contrary.

Whilst such Process as you have attempted to commence shall appear to me to be unconstitutional, I cannot shew any Countenance to it.

T. Hutchinson.
Milton, 26 Feb. 1774.

The assembly sent their articles of impeachment up to the Council anyway.

On 1 March the assembly produced a longer version and sent that up as well. The impeachment was entirely based on Oliver’s refusal to accept the legislature’s salary instead of the Crown’s; now the legislature also voted not to pay the chief justice any salary, so there. 

John Adams spent that evening talking politics. In his diary he wrote: “Much said of the Impeachment vs. the C.J.—and upon the Question whether the Council have the Power of Judicature in Parliament, which the Lords have at home, or whether the Governor and Council have this Power?” The next day he wrote out the arguments against and for the Council being able to act alone.

Adams also wrote:

Lt. Govr. [Andrew] Oliver, senseless, and dying, the Governor sent for and Olivers Sons. Flucker has laid in, to be Lieutenant Governor, and has perswaded Hutchinson to write in his favour. This will make a difficulty. C. J. Oliver, and Fluker will interfere.

On 3 March, Lt. Gov. Andrew Oliver died.

TOMORROW: End of an impeachment.

“Strength, Spirit and Abilities so exhausted”

In the immediate aftermath of the Continental Congress’s vote for independence in early July 1776, almost all the Massachusetts delegation got sick.

As I wrote last month, on 15 July 1776 John Adams saw Elbridge Gerry off on a trip back to Massachusetts. Gerry was “worn out of of Health, by the Fatigues of this station,” Adams told his wife, Abigail.

To James Warren he wrote that Gerry “is obliged to take a Ride for his Health, as I shall be very soon or have none. God grant he may recover it for he is a Man of immense Worth.”

Eleven days later, Adams wrote to Warren more ominously:

My Health has lasted much longer, than I expected but at last it fails. The Increasing Heat of the Weather added to incessant application to Business, without any Intermissions of Exercise, has relaxed me, to such a degree that a few Weeks more would totally incapacitate me for any Thing. I must therefore return home.

And the next day:

I assure you the Necessity of your sending along fresh delegates, here, is not chimerical. [Robert Treat] Paine has been very ill for this whole Week and remains, in a bad Way. He has not been able to attend Congress, for several days, and if I was to judge by his Eye, his Skin, and his Cough, I should conclude he never would be fit to do duty there again, without a long Intermission, and a Course of Air, Exercise, Diet, and Medicine. In this I may be mistaken.

The Secretary [i.e., Massachusetts General Court clerk Samuel Adams], between you and me, is compleatly worn out. I wish he had gone home Six months ago, and rested himself. Then, he might have done it, without any Disadvantage. But in plain English he has been so long here, and his Strength, Spirit and Abilities so exhausted, that an hundred such delegates, here would not be worth a shilling.

My Case is worse. My Face is grown pale, my Eyes weak and inflamed, my Nerves tremulous, and my Mind weak as Water—fevourous Heats by Day and Sweats by Night are returned upon me, which is an infallible Symptom with me that it is Time to throw off all Care, for a Time, and take a little Rest. I have several Times with the Blessing of God, saved my Life in this Way, and am now determined to attempt it once more.

You must be very Speedy in appointing other Delegates, or you will not be represented here. Go home I will, if I leave the Massachusetts without a Member here.

I looked at Paine’s surviving correspondence from this month, and I don’t see him saying anything about being sick.

On 3 August, Gerry wrote back to both John and Samuel Adams from Massachusetts:

I have heard this Morning that Colo. Warren has received a Letter mentioning Mr. Pain’s Illness and your Intention to set off for N England in a fortnights’ Time; and that the Government would be unrepresented. I left Boston yesterday and the Letter had not then arrived, but Mr. [Benjamin] Edes mentions it as a Fact communicated to him by Colonel or rather Major General Warren and therefore I have no Doubt of it.

I should have been glad that You had tarryed untill my Return, as the Absence of so many at one Time will I fear be considered by the people as a discourageing Circumstance; but I shall at all Events Return in a Week or ten Days from hence notwithstanding It will be impossible in so short a Time to benefit much by the Journey, and to recover from a febrile State which the southern Climate has fixed upon me and within this Day or two I find increased.

On 12 August, Samuel Adams left Philadelphia. Gerry arrived back in that city by 6 September. Paine and John Adams never left.

Ironically, John Hancock, who was already becoming known for pleading ill health when he didn’t want to do something, was the one Massachusetts delegate who seems to have remained perfectly well in this period. And as chairman of the Congress, he had plenty of work to do.

Hancock did write to Thomas Cushing on 30 July: “I have Determin’d to move my Family to Boston the Beginning of September, and propose being there my self in all that month.” But that was probably because of his wife Dorothy’s health, not his own. She was pregnant with their first child.

The Massachusetts legislature didn’t send anybody new to the Continental Congress until 1777.

The Continental Congress’s Plans for Nurses

Yesterday I reproduced a paragraph from a U.S. military webpage that contained four quotations about Continental Army nurses attributed to Gen. Horatio Gates, Gen. George Washington, and a plan sent [by Washington’s office?] to the Continental Congress.

However, none of those quoted phrases appear in Washington’s correspondence. So where did they come from?

On 19 July 1775 the Continental Congress appointed a committee “to report the method of establishing an hospital” for its army besieging Boston.

The three delegates named to that committee were Francis Lewis of New York (shown here), Robert Treat Paine of Massachusetts, and Henry Middleton of South Carolina.

(This committee was formed two days before Washington wrote to the Congress asking for the hospital to be “immediately taken into Consideration.” The Congress was already ahead of him.)

On 24 July that committee submitted its recommendations, and three days later the Congress voted to establish a medical department for its army. Among the personnel it provided for were:

Surgeons, apothecary and mates,
To visit and attend the sick, and the mates to obey the orders of the physicians, surgeons and apothecary.

Matron. To superintend the nurses, bedding, &c.

Nurses. To attend the sick, and obey the matron’s orders.

Later in the day, the Congress agreed there should be “one nurse to every 10 sick.” It also named the man they thought best suited to direct the medical department: Dr. Benjamin Church, Jr. Church lasted about two months before being exposed as a British spy.

Be that as it may, that’s the official beginning of the American army’s nursing corps. (There were women nursing sick and wounded men from the New England army before that, starting with volunteers on the first day of the war and including the first hospitals.)

That July 1775 resolution of the Congress looks like the real source of two of the four quoted phrases:

• “a matron to supervise the nurses, bedding, etc.”—not exactly from the official record but recognizable.
• nurses “to attend the sick and obey the matron’s orders.”

The reproduced passage attributes those quoted phrases to a request from Gen. Washington. But those words weren’t generated by the commander-in-chief or his staff. They came out of the Congress. There’s a hero-worshipping tendency among American authors to attribute to Washington a lot that we should credit to the institutions of democratic government.

Almost two years later, on 7 Apr 1777, the Congress again discussed how to organize its army hospitals. By this time the war had spread, so that department had grown. Its managers had a better idea of what worked. Among the provisions the Congress approved that day were:

That a matron be allowed to every hundred sick or wounded, who shall take care that the provisions are properly prepared; that the wards, beds, and utensils be kept in neat order, and that the most exact oeconomy be observed in her department:

That a nurse be allowed for every ten sick or wounded, who shall be under the direction of the matron:

This resolution is the source of the third of the four quotations (with “allotted” substituted for the original “allowed”). Those words indeed appear in a plan submitted to the Congress, as the army webpage says, but that plan was written two years into the war, not in the summer of 1775.

TOMORROW: The fourth quotation.

“So there is a final Issue of the Whole Affairs”

Yesterday I shared a letter from 1773 describing how a Barnstable goldsmith named Elisha Gray publicly whipped fifteen-year-old James Paine Freeman as punishment for a prank.

One of my questions was why Gray reacted so angrily to that boy’s joke at a local dance. The man’s life isn’t well documented. It looks like he was born in 1744, married Mary Crosby in 1769, and had small children soon after.

In 1771 the selectmen of Barnstable attested that Gray was a suitable person to take in a little girl from the Boston almshouse called Jane Wiseaker. The Boston Overseers’ paperwork for that transaction can be viewed here.

Perhaps it was exactly because Gray saw himself as a respectable luxury craftsman, a budding paterfamilias, that he reacted so strongly to young James making him look silly at a community event. James, son of a merchant, might have been from a slightly higher social class than Gray, who still worked with his hands, but was also a mere boy who deserved correction.

As recounted yesterday, Gray’s assault on James caused him to be convicted of breaching the peace and fined. But it was common in colonial New England for people to sue their assailants for monetary damages even after criminal cases.

In this case, Elisha Gray actually sued James Paine Freeman first, employing the young Barnstable lawyer Shearjashub Bourne. The boy’s uncle and guardian, Edmund Hawes, went before magistrate David Gorham to represent his side. Hawes reported the outcome to his cousin Robert Treat Paine:

The Proof was that one Witness Saw James tie the Button to the Chair & two Saw it was tied but did not know who tied it upon which the Justice Made up Judgment that James Should Pay Six shillings Dammage & Costs which was 17 Shilings more

Hawes appealed that judgment, but he also decided to get lawyers of his own. He called Paine in on the case. First, he wanted legal advice “whether I had Best Carry it to the Inferiour Court or Stop it where it is now.” In addition, he asked:

I Desire You to fill up a Writt for April Court for Elisha Gray Goldsmith of Barnstable for this Great Assault upon James Paine Freeman & State the Sum at your Discretion And Send it to Me in a Letter before the time of Service for sd. Court is Out. Also Please to Write me word if you Expect to Come to Barnstable at April Court or at the Superiour Court & I will Satisfy You for your Trouble.

Paine sent his cousin the writ he wanted. Hawes also consulted Pelham Winslow of Plymouth. Following those counselors’ advice, he convinced Gray to submit the mess to arbitration by three local gentlemen.

On 12 Apr 1773, Hawes reported to Paine:

it was Try'd & the Award Brought into Court at April Court & they found for Gray to Pay me three Pounds & for Each to Bear his Own Costs at Law & to Pay the Charge of the Arbitration Equally Between them: & so there is a final Issue of the Whole Affairs.

Elisha Gray died in 1776, leaving a widow and young children.

James Paine Freeman served most of that year in the Continental Army, standing guard on Dorchester Heights and participating in the retreat from New York. He returned to Barnstable, married twice, had children, and died in 1833, more than sixty years after being beaten on the streets of the town for tying a man’s button to a chair.

“Waited for This Oppertunity to Whip Jame in my Absence”

On 23 Feb 1773, Edmund Hawes (1738–1831) wrote from Barnstable to his cousin in Taunton, Robert Treat Paine, seeking legal help.

Hawes was uncle and guardian of a fifteen-year-old named James Paine Freeman. Years before, that boy’s father had worked as a clerk in the counting-house of Paine’s father.

Hawes’s letter described how that lad got into an altercation with a local man:

Now Acquaint you of an Unhappy Affair Desireing your Advice & Assistance therein. Novr. the 2nd: 1772 On Monday Evening James Paine Freeman was at Husking Corn to Mr. Thomas Annables. Elisha Gray Goldsmith of this Town being there, after Husking they had a Dance the said Gray being Tired Danceing Sot Down in a Chair

And it is Said that the sd. James tied the Button of the Sd. Gray’s Coat to the Chair with a Large Twine & when Gray Jumped up to Dance the Chair follow’d Him & Gray to Get Clear of the Chair Puled of his Own Button which was all the Dammage that was Done:

He Gave out that he would whip James for what He had Done: all which I was not Acquainted with by any Body on Saturday the 7th: of sd. Novr. I went to Eastham and Tarry’d there Exactly a Week. The sd. Gray have’g Waited for This Oppertunity to Whip Jame in my Absence.

On Thursday the Twelfth Day of sd. Novr. at About Eight O Clock in the Evening the sd. Elisha Gray Assaulted the sd. James with a Stick About as thick as one’s thumb as the Witnesses Say and Beat him with Great Violence till the Stick Broak to Pieces then Josep Hinckley haveing heard the Blows at a Distance Ridd up to Se the Affray. The sd. Gray Pull’d his Horse Whip out of his hand & whip James with that till the Lash Came off Then Bid James Down on his knees & Begg & then a Second Time which he Did as Once would Not Satisfy his Wicked Revenge. This was Done between My House & the Bridge.

Then Job Howland the Sheriff who Stood at Lawyer [Shearjashub] Bourns Shop Door Hearing the Blows Came & found James Laying on the Ground & sd. Gray Standing Over him: & would not leave him till the Officer Pull’d him Away By main force and Bid James Get up & Gray should not strike him again: and when He Got up he was much Beat and Bloody. All which I Prov’d Before Col. [James] Otis & I hope I Can Again.

On Thursday follow’g I had sd. Gray Before Col. Otis for the Kings Part and he was convicted of a Breach of Peace & Fine’d.

In a postscript Hawes added, “The Marks of James’s being Whip’d was Plain to be Seen Before Col. Otis as His Honour together with Others Can witness the which was allmost a week after he was whip’d.”

But that local criminal case (“for the Kings Part”) wasn’t the end of the dispute. People could also sue for assault and win damages.

TOMORROW: Back to court.

Ezekiel Price on “A Great & Glorious Event”

Yesterday’s posting raised the question of when exactly Boston heard about the American and French victory at Yorktown. The most immediate reaction would appear in people’s diaries, so I looked for my usual informants on daily events.

John Adams? In 1781 he was far away in Europe.

Merchant John Rowe? His surviving diaries end in 1779.

Printer John Boyle? He stopped compiling his “Journal of Occurrences” in 1778.

Shopkeeper and selectman Harbottle Dorr? He stopped collecting newspapers assiduously at the end of 1776, adding just a few issues from the next two years.

Robert Treat Paine was keeping his diary out in Taunton in 1781. Fortunately, the folks at the Massachusetts Historical Society have done the hard work of deciphering his handwriting and publishing pertinent entries in the Paine Papers. On 26 October, he wrote: “News came that Cornwallis had Surrendred to Genl. Washington, on 17th. Instant.”

I wanted more detail than that, and I wanted a voice from Boston. Fortunately, Harvard has preserved and digitized the 1781 almanac diary of Boston court official and insurance broker Ezekiel Price (1727–1802), who was a gossip sponge.

Price’s entry for 26 Oct 1781 appears on sequence 37–38 of the digitized version of this diary:

This Morning Mr. Thomas Hulbert [?] came to Town from Providence who brings a Hand Bill printed at Newport Yesterday in which is an Account that the afternoon before one Capt Lovett arrived there from York River who brot an account that Lord Cornwallis & his Army Surrendered Prisoners of War to Genl. Washington on the 18th. instant—

that Cornwallis had wth. him in Garrison 9000 Men with an immense quantity of Stores also that a 44[-gun warship] & one frigate & 100 Transports were Captured—

Mr. Winship who left Newport Yesterday tells me that he saw Capt. Lovett & his Mate who informed him that they say the British Flag lowered & the Continental & French Flags hoisted on the Forts at York Town—that he heard the Huzzas upon the Occasion—

they they saw the French Admiral go on shoar at the Fort that the American Vessells which lay below York Town went up to Town & that he went up so near the Forts that he could throw a Bisket on Shoar—

From all these Accts. it is beyond a doubt that Lord Cornwallis & his great Army with Vast quantities of Artillery & Military Stores are in Possession of our illustrious Genl. Washington & the Allied Army—A Great & Glorious Event—

On this Joyful occasion all the Bells in Town were rang most part of the day & the Sons of Freedom showed evident marks of their felicity. In the Evening the Coffee house was illuminated & Fireworks displayed.

Mr. [John?] Marston tells me that a French Gentleman acquainted him he had received a Letter from a Person who was in York Town at the time of the Surrender & adds that Genl. Washington had ordered 1200 Horse to the Reinforcement of Genl. [Nathanael] Greene.

Price recorded additional information on 27 and 31 October. He came to date Cornwallis’s surrender to the 17th, like Paine. That was when the British general first raised the white flag. It wasn’t until the 19th that the commanders signed surrender terms and the Crown troops gave up their arms, but we now treat that date as the significant one.

Samuel Adams’s Surviving Sister and Brother

Samuel Adams’s one surviving older sibling was his sister Mary, born in 1717, five years before him. According to descendants, he called her Polly.

In 1742, when Mary Adams was in her mid-twenties, she married a tailor named James Allen. She was his second wife. In 1751 Robert Treat Paine addressed Allen as “Merchant. Taylor living on the Draw Bridge, Boston.”

The Allens’ children included:

• Samuel (1743-1830), treasurer of Worcester County for about forty years.
• Joseph (1749-1827), reportedly his uncle Samuel’s favorite, clerk of the courts in Worcester County for more than thirty years and a member of the U.S. Congress for five months.
• Mary (1754-1842), who married the Rev. Joseph Avery of Holden.

James Allen died in 1755, Mary in 1767.

Samuel’s one surviving younger sibling was his brother Joseph, born at the end of 1728 and thus six years younger. I started looking into the Adams genealogy after a question about this man from an unnamed commenter a few months back.

Joseph Adams followed Samuel to Harvard College, joining the class of 1748. That means there’s a brief profile of him in Sibley’s Harvard Graduates. At college Joseph was a bit of a party boy, once pounding down a door “in a riotous Manner, at Night,” and another time engaging in “contemptuous hollowing” at midnight after a sleigh ride and tavern supper.

After graduating, Joseph Adams trained in medicine. The first documentation of his profession might be that 1751 letter from Robert Treat Paine to James Allen, which offered “My Service to your Spouse and to Dr. Adams.” Paine was a year behind Adams at Harvard.

In 1753 the Boston Overseers of the Poor voted to make Joseph Adams the first “Doctr. for the Alms House,” both “Physition & Chirurgeon.” He was chosen again in 1754 and 1755. In all the Overseers recorded paying Adams about £260 in the currency of the time.

In 1754 Joseph Adams married a woman named Elizabeth Hill. In April 1759, when he was thirty, the doctor was sick enough to make out his will. He died sometime in the next few weeks or months because his estate was probated in September. I found no mention of his death in the newspapers, and no indication he left children.

In October 1764, the widow Elizabeth Adams married Gawen Brown (1719-1801), a “Clock and Watchmaker lately from London” in 1749. She was his third wife. He had six children from his first marriage; one, the future artist Mather Brown, from his second; and six more with Elizabeth. The best known of the last batch was William Hill Brown (1765-1793), author of the scandalous roman à clef The Power of Sympathy.

Since 1763 Brown had been established on King Street. Late in that decade he built and installed the clock that still keeps time in the tower of the Old South Meeting-House (works shown above). Timepieces bearing Brown’s signature are in the collections of the Massachusetts Historical Society and Revolutionary Spaces.

As a native of Britain with continuing business ties there, Gawen Brown appears to have been wary of independence, so much so he’s been labeled the “Tory Clockmaker.” There’s even a latter-day report he returned to Britain during the war, but I can’t pin that down.

Despite that loyalty, Samuel Adams entrusted correspondence to the clockmaker’s namesake son, “young Mr Gawen Brown,” in October 1775. (So did John Adams, though we know his judgment about couriers wasn’t perfect.) I think Samuel Adams was willing to do that because he was a sort of uncle to the young men: Gawen Brown, Jr., was Adams’s late brother’s widow’s stepson.

The younger Gawen Brown followed his father into the trade of importing watches. During the war he seems to have bounced around: a captain of marines in 1776, an officer in Col. Henry Jackson’s Continental regiment in 1778, on state expeditions against Crown strongholds at Newport and Penobscot. Later he commanded the Independent Company of Cadets. This Brown died in Petersburg, Virginia, around the start of 1789.

Later that year, the 11 June Independent Chronicle carried a legal notice about the division of some property in Maine. It was signed by Samuel Adams, Gawen and Elizabeth Brown in her right, Joseph Allen, Samuel Allen, and Joseph and Mary Avery in her right—all the remaining heirs of Samuel Adams’s father.

“They would have brought in all Guilty…”

As described yesterday, the trial of the eight enlisted men for the Boston Massacre ended with six acquittals and two convictions.

The acquitted men were Cpl. William Wemys and Pvts. James Hartigan, William Macauley, Hugh White, William Warren, and John Carroll.

The published record of the trial states: “Wemms, Hartegan, McCauley, White, Warren and Carrol were immediately discharged.”

According to a writer in the 17 Dec 1770 Boston Gazette, “The Soldiers were discharged from the Court in high Day-Light; and went their Way thro’ the Streets, with little, if any, Notice.”

In other words, there was no mob of Bostonians disappointed in the verdict waiting to string up or otherwise punish those men. The Boston Whigs wanted to be sure the world knew that, even as Samuel Adams prepared a long series of newspaper essays as “Vindex,” rearguing the case in the court of public opinion.

The jurors had convicted the two soldiers described by witnesses as firing fatal shots:

• Pvt. Edward (called Hugh) Montgomery; multiple people said he was the first soldier to shoot, and some said his shot downed the tall man later identified as Crispus Attucks.
• Pvt. Mathew Kilroy, seen to shoot Samuel Gray. In addition, people testified he was at the ropewalk fight days before, he had muttered about getting revenge, and he stuck his bayonet into Gray’s wounded head. A bloody bayonet was found in the main guard the next morning.

The jury thus identified the two men with the most responsibility for the deaths on King Street.

(I think Pvt. White deserves some blame for starting the violence there by hitting apprentice Edward Garrick, but he wasn’t charged with that. Clonking a sassy adolescent on the head wasn’t really considered a crime in colonial America.)

That’s not to say the jury thought the other soldiers were innocent. In fact, the jurors probably came closer to finding most of those men guilty than their relatively brief deliberation might imply. Acting governor Thomas Hutchinson wrote in a 1770 almanac (eventually published in the American Antiquarian Society Proceedings):

The Court [i.e., the judges] doubted whether in any the fact could be M.S. [manslaughter] the violence offered by the people they supposed would make it se defendendo [in self-defense] in every one of the Soldiers, but it seems the Jury thought they ought to have been longer before they fired & if it had been proved that all fired they would have brought in all Guilty of MSr [manslaughter] but the general run of the Evidence was that there was only 7 Guns fired by 8

whoever the eighth was there was nothing which could involve him in the guilt of the other seven. Rather therefore than convict one of the six not proved to have fired who must be innocent the jury acquitted five who were Guilty.

In the same search of the main guard that revealed the bloody bayonet, local officials found that seven of the eight muskets had been fired. They had no way of knowing which soldier had handled which gun. If the army had a system, they didn’t share that information. (Fingerprint evidence hadn’t been developed yet, of course.)

Prosecutor Robert Treat Paine argued that Cpl. Wemys was the man who refrained from firing but admitted that wasn’t certain. And that measure of doubt was enough to spare not only the corporal but five privates.

The Boston Massacre trial is thus not only an early American example of ensuring that even unpopular defendants receive adequate legal representation but also the belief that it’s wiser to let probably guilty defendants go free than to wrongly convict an innocent person.

TOMORROW: The sentence for manslaughter.

The Prosecution’s Closing Argument

John Adams’s closing argument in the trial of soldiers for the Boston Massacre started on 3 Dec 1770 and lasted until the next day.

Then Robert Treat Paine summed up for the prosecution, concluding on the morning of 5 December, 250 years ago today.

Paine’s notes for that presentation survive, though his handwriting is notoriously hard to read. He planned to say:

Witnesses tell you they saw nothing of the violent Abuses offered to the Soldiers nor heard the Threats and loud Hallowings testified of by others. Some of this Collection were Boys and Negros drawn there by the Curiosity peculiar to their disposition, and without doubt might throw some Snow Balls, and its quite natural to believe from the Evidence and the Nature of the thing that there were some there armed with Sticks and Clubbs determin’d if the Soldiers abused them in the manner they had the Inhabitants that Evning and at times before to try the weight of them and had repaired into K[ing].S[treet]. on a Supposition that those Soldiers who had began the disorder of the Evening at a time when they ought to have been in their Barracks were continuing their disorders there, (for it appears about the time of the attack on the Centry [several?] partys of Soldiers were seen in K.S. armed with clubbs Cutlasses &c.;) and that they had not the least design or Idea of Attacking a Party on duty. And many other peaceable people gathered there meerly to see what was going on.

Can any person living from the history of this Affair as it turns up in Evidence Suppose these persons were such dangerous rioters as to bring them within those Rules of Law which have been read to you that it is lawful to kill them; Shall the innocent and peaceable who by meer Casualty are mixt with [some?] of the ruder Sort be liable to be Shot down by a Party of Soldiers meerly because they please to call ’em dangerous Rioters? Tis the Action [Generally?] and not a few [Angry?] tho threatning Expressions that constitutes any Riot and the Agreement of the whole Body that makes ’em Partys. This appears from some of the Authoritys read. . . .

It is proved to you Gentlemen that all the Prisoners at the Bar were present in K.S. at the firing. It appears by the current of the testimony that 7 Guns were fired, and it appears pretty certain that [William] Wemys, the Corporal was the one who did not fire. It is certain that five men were killed by the firing of which [Edward] Montgomery killed [Crispus] Attucks and [Mathew] Kilroy killed [Samuel] Grey.

But which of the other 5 prisoners killed the other 3 of the deceased appears very uncertain. But this operates nothing in their favour if it appears to you that they were an unlawful Assembly for it has been abundantly proved to you by the Numerous Authoritys produced by the Council for the Prisoners, that every individual of an Unlawful Assembly is answerable for the doings of the rest. They are all considered as Principals, and all that are present aiding assisting and abetting to the doing an unlawful act as is charged in the Several Indictments against the Prisoners are also considered as Principals. . . .

When you recollect further, the Account given you by many Witnesses, that on firing the first Gun the people dispersed and were in a Manner withdrawn to a distance at the firing the last Guns[;] that the last Gun was fired at a Boy at a distance running down Street; that they presented their firelocks again at the few people who came with the Chirugeon [Dr. Joseph Gardner] to pick up the Dead it appears to me you must be Satisfy’d they were possessed of that Wicked depraved malignant Spirit which constitutes Malice, that from the whole Evidence taken together no just Cause appears for such outrageous Conduct and therefore that they must be considered as aiding and assisting each other in this unlawful Act which the lawfulness of their Assembling will not excuse. . .

Paine singled outs Pvts. Montgomery and Kilroy as killing specific victims. Since the corporal was “pretty certain” not to have fired a shot, Paine argued the other privates just must have shot the rest.

Edward Pierce’s notes as a juror show that that was just the sort of distinction he was keeping track of. But would he and his fellow jurors accept the Crown’s argument that all the privates were part of an illegal attack on the crowd?

TOMORROW: The judges’ charges and the verdict.

Why Was Samuel Emmons Called to Testify?

On 28 Nov 1770, the attorneys prosecuting eight soldiers for the Boston Massacre called Samuel Emmons to the witness stand.

According to defense counsel John Adams’s notes on the trial, Emmons’s testimony consisted entirely of:

I dont know any of the Prisoners. Nor anything.

Prosecutor Robert Treat Paine wrote Emmons’s name in his notes and then crossed it out. The published record of the trial, prepared from John Hodgson’s shorthand notes, didn’t mention Emmons at all.

Hiller B. Zobel’s The Boston Massacre quotes Emmons as adding, “I was not in King Street. My brother was.” However, those words don’t appear in the many documents transcribed in The Legal Papers of John Adams, co-edited by Zobel. I don’t see an Emmons brother among the other witnesses.

So why was Samuel Emmons on the witness list?

I think the answer appears in the 1 Jan 1764 Boston News-Letter, where Emmons advertised:

TAR-WATER,
MADE of Genuine Tar, to be sold by Samuel Emmons, Ropemaker, in Milk-Street, nigh the Foot of the Rope-Walks.

Bishop George Berkeley and other authorities promoted water infused with tar as a medicine. Tar was also used in preparing ropes for use on ships, so a ropemaker might well have a supply around. Emmons’s advertisement put him in the part of central Boston where John Gray’s ropewalk stood.

Thus, Emmons was almost certainly a witness to the big brawls between ropemakers and soldiers on 1 and 2 March, one of the events that raised tensions before the Massacre. Three of the soldiers on trial—Mathew Kilroy, William Warren, and John Carroll—were involved in those fights, as was victim Samuel Gray.

It looks like the prosecutors put Samuel Emmons on their list of possible witnesses as part of a plan to make the ropewalk fight a significant part of their case, just as it played a big role in the town’s Short Narrative of the Horrid Massacre. Later on 28 November they called ropemaker Nicholas Feriter to the stand; he described being involved in the fight and seeing Kilroy and Warren on the other side.

In a modern trial, those prosecutors would have learned more about what Samuel Emmons did and didn’t have to say before calling him to the stand. But Samuel Quincy and Paine didn’t have the time and personnel that modern prosecutors command. Who knows what the jury made of his remark?

More about Samuel Emmons appears in Robert Love’s Warnings, by Cornelia H. Dayton and Sharon V. Salinger. In 1753 he married Rachel Love, daughter of town employee Robert Love. They had their children baptized in the West Meetinghouse. In the 1780s Samuel became disabled because of “several touches of the Palsey,” and Rachel supported the family by keeping a small shop with a liquor license.