Title: Editorial Note
From:
To:

       On 22 February 1770, a man named Ebenezer Richardson fatally shot an eleven-year-old German boy. The circumstances of the shooting and the conditions of Richardson’s subsequent trial for murder so emphasize the peculiarly disturbed status of the law in Boston at the time that documents pertaining to the case are included in this collection, even though Adams does not appear to have been actively engaged in the matter. The fact is that defense counsel’s notes (Document I) remain among the Adams Papers and were docketed “Rex v. Richardson” in Adams’ hand; moreover, the legal points raised in Richardson’s trial and its aftermath bore particular relevance at the Massacre trials in 1770 (Nos. 63, 64).
       Ebenezer Richardson was born in Woburn in 1718, married a Woburn woman, and some time thereafter came to Boston. There he was at least a reputed member of the customs establishment and commensurately disliked. Although the Customs Commissioners were later to deny that he had ever been a customs officer, Richardson had for “many years” before 1770 “been known by the name of The Informer,” according to the Boston Gazette. Even John Adams was in later times to fulminate against him: “If there was even a color of justice in the public opinion, he was the most abandoned wretch in America. Adultery, incest, perjury were reputed to be his ordinary crimes. His life would exhibit an atrocious volume.” Whatever Richardson’s other faults may or may not have been, later events demonstrated indubitably that he had a short temper.
       All this, added to the rough-and-tumble of the fall and winter of 1769–1770 in Boston, almost insured that Richardson would soon collide with the patriots. The occasion arrived on 22 February 1770, a Thursday, which, like all Thursdays, was by Boston custom a market day and a school holiday; plenty of idle schoolboys as well as numerous up-country farmers stood available to bolster the already powerful Boston mob.
       The latter’s principal object for some time had been the enforcement of the nonimportation agreement. Temporarily checked by the resourceful stubbornness of John Mein, the “well-disposed” were beginning to move against the few holdouts. One of these, Theophilus Lillie, a near-neighbor of Richardson’s and “a very inoffensive man, except in the offense of importation” resisted with language which, for sarcasm, at least, rivaled even Mein’s: “I cannot help saying,” Lillie had written in January 1770, “although I never entered far into the mysteries of government, having applied myself to my shop and my business, that it always seemed strange to me that People who contend so much for civil and religious Liberty should be so ready to deprive others of their natural liberty—that Men who are guarding against being subject to Laws to which they never gave their consent in person or by their representative, should at the same time make Laws, and in the most effectual manner execute them upon me and others, to which Laws I am sure I never gave my consent either in person or by my representative. . . . I own I had rather be a slave under one Master; for if I know who he is, I may, perhaps, be able to please him, than a slave to an hundred or more, who I don’t know where to find, nor what they will expect from me.”
       For some time, the technique used against men like Lillie had been the  “exhibition,” a sign or placard planted before the offending shop, carrying language whose general import was “Don’t Buy from the Traitor.” This was usually coupled with the 18th-century equivalent of a picket line, a crowd of schoolboys. As Gordon was to write a few years later, “Boys, small and great, and undoubtedly men, had been and were encouraged, and well paid by certain leaders . . . and still persevered.” But, though boys were the actors, Thomas Hutchinson, at least, did not doubt that they were being “set on by Men.”
       On the day in question, a gang of boys (the witnesses at the trial varied in their estimates: one said as few as sixty, another said as many as three hundred) paraded to Lillie’s and placed before his door a large wooden head bearing caricatures of the four leading importers and a hand pointed toward the house. Richardson, seeing the “hundreds” of boys gathered at Lillie’s, tried to persuade first “a countryman,” then a charcoal vendor, to run their respective wagons against the sign. In desperation, he even took a cart and horse standing in the street and tried to do the job himself. At this, the crowd began to add more solid missiles to the epithets it was already hurling. As Richardson retreated to his house, he passed several of the patriots, including Edward Proctor and Thomas Knox. Crying “Perjury! Perjury!” in apparent reference to what Richardson considered the false nature of the charges implied by the sign, Richardson paused to exchange insults with these men and two others besides. At the trial, there was testimony that Richardson had sworn to “make it too hot” for Proctor and the others; there was also testimony that they in turn had called him a “damn Son of Bitch” and had threatened to have his heart and liver out.
       Lieutenant Governor Hutchinson, meanwhile, hearing of the trouble, “gave express directions to the Sheriff to go and suppress this unlawful assembly before the accident happened, but he did not think it safe to attempt it nor is there a J. of P. in the town who will appear upon such an occasion.”
       With Richardson back in his house, the battle raged on. A witness at the trial was later to testify that stones shattered the windows, carrying away even the lead and frames. George Wilmot, a sailor employed in the customs service, was at Richardson’s house, the reason for his visit not being clear, although the patriots claimed he had originally been sent to tell Richardson to take down the sign. As the violence increased, and the crowd began to push at the doors, Wilmot told Richardson, one of the witnesses later said, “he would stand by him as Long as he had breath.” The pelting continued, and Richardson thrust a gun through a window, “snapping” it at the mob. Finally, he fired a charge of bird shot, eleven of which struck and mortally wounded Christopher Seider (or Snider), some after striking the hand of another boy.
       Immediately a bell was set ringing and, according to the Evening-Post account, a crowd surrounded the house front and rear. The mob completed the breaking and entering, subdued Wilmot and Richardson, and hustled them outside. “[T]he first thought was to hang him up at once and a halter was brought and a sign post picked upon, but one who is supposed to have stirred up the tumultuous proceedings took great pains and prevented it.”
       The men were dragged through the town, “cruelly abused by the Mob,” and put before Justice of the Peace John Ruddock, who ordered them on to Faneuil Hall, where in the presence of a thousand people, he, along with Justices of the Peace Richard Dana, Samuel Pemberton, and Edmund Quincy, examined them and had them committed to jail. “After the Examination, when the Sheriff was carrying them to Gaol, several attempts were made to get a Rope around Richardson’s neck.” It should be noted that the boy did not die until that evening, so that at the time of their commitment and near-lynching, Richardson and Wilmot could not, by any reasoning, be guilty of murder.
       Of course the “Sons of Liberty took care to Improve this Affair to the utmost advantage.” On 26 February 1770 the Gazette ran an inflammatory report of the “late barbarous Murder” insinuating that the customs officers were behind it all. “Inhumanly murdered” the Gazette said of “the unfortunate boy,” “the young lad who last week fell a sacrifice to the Rage and Malice of an Old Offender and his Abettors.” Richardson was called “infamous” three times, no less, once all in capital letters. Even the loyalists had to acknowledge the propaganda triumph of the patriots. “So artful were they in their account that it was almost universally believed that the Commiss[ioners of Customs] were Abettors in this Affair.”
       The funeral was a somber and effective climax to the press attacks. John Rowe, in whose company John Adams attended the rites, was “very sure two thousand people” were there, and Adams’ “Eyes never beheld such a funeral.” As the cortege wound its way past the Liberty Tree, the mourners could read on a board tacked thereto these appropriate sentiments: “Thou shalt take no Satisfaction for the Life of a Murderer. He shall surely be put to Death. Though Hand join in Hand, the Wicked shall not pass unpunished.” Adams wrote afterward in his diary: “This Shewes, there are many more Lives to spend if wanted in the Service of their Country. It Shews, too that the Faction is not yet expiring—that the Ardor of the People is not to be quelled by the Slaughter of one Child and the Wounding of another.” If the articles and the demonstration could have this effect on Adams, whose ability to distinguish patriotic heroes from “saucy boys” was to receive a public demonstration within the year, how well had the affair fulfilled its designed purpose “to raise the passions of the people, and to strengthen” the cause “in which their leaders had engaged them.” It is probably fair to say that if the troops had not fired on the mob less than two weeks after Richardson killed young Seider, the Sons would have celebrated not 5 March, but 22 February, as the anniversary of the first effusion of patriotic blood. As Hutchinson pointed out, the funeral of young Allen, killed in the St. George’s Fields riot over John Wilkes in 1768 was a good recent example of the technique.
       But the King Street riot did occur, and, though its long-run effect on Richardson was to thrust him from center stage, its immediate result was to render his chance of a fair trial minimal and of acquittal zero. Two things assured this. First, popular prejudice, already heated by the newspapers and the funeral, burst into passionate flame over the actions of the soldiers; Revenge! was the cry, anything loyalist and powerless the object. Second, the rancor against Captain Preston and the soldiers was so great, and, apparently, the official interest in defending them so much higher than in Richardson’s case, that, although the court “chose to postpone the Trials, untill there might be some Chance of Justice being uninterrupted,” when Sam Adams and a delegation “waited on the Superior Court and insisted upon their proceeding without any adjournment on the tryal of Preston, &c.,” the judges were forced to bargain. At first, it is true, the judges “notwithstanding this demand and the risque they run of being torn to pieces should they counteract the will of this Sovereign Committee . . . continued to try civil Causes only.” But “The people being very uneasy that the criminal tryals were not brought on, the Court found it necessary in order to keep them a little quiet to arraign Richardson.”
       “The existence of a state of public opinion which prevents a fair trial is a danger to which the jury system is always open,” Holdsworth has written. “And it is a danger against which there is no remedy except the existence of an impartial, a humane, a courageous, and a learned bench.” He might have added “and a strong civil authority.” In the opinion of Judge Oliver, “had a Trial been refused, it was rather more than an equal chance that the Prisoners [i.e. Preston and the soldiers as well as Richardson] would have been murdered by the Rabble; and the Judges been exposed to Assassinations.”
       According to the anonymous reporter whose narrative is in the Bernard Papers, “Richardson was arraign’d on a Monday and directed to prepare for his tryal on the Friday following. Accordingly on the Friday he was brought to the Bar and ask’d by the Court if he was then ready. He observ’d to the Court that he had made application to almost every Lawyer in town to undertake his cause, which no one would do, that the Constables had refused summoning his Witnesses, that the Jailer, had used him in so cruel a manner that he was even frequently debarred the Liberty of conversing with his friends, that every Newspaper was crouded with the most infamous and false libels against him in order to prejudice the minds of his jury; that without Counsel, without the privilege of calling upon his Witnesses to support his innocence he was now to be tried for his life. The Judges moved with compassion at this representation put off the trial to a further day. The Court then made application to the several Lawyers present to appear as his Counsel but this one and all of them declined. The court finding that a requisition had no effect asserted their Authority and order’d Mr. Fitch the advocate General to appear on his behalf on his trial. Fitch made use of a variety of arguments in order to excuse himself which the Court did not judge sufficient. He concluded with saying that since the Court had peremptorily ordered him, he would undertake it, but not otherways.”
       The right to counsel availed Richardson little, because Fitch was sick on the two occasions the case was called for trial, the last one being 17 April. The court thereupon appointed Josiah Quincy; three days later Richardson and Wilmot went on trial. For the Crown, Solicitor General Samuel Quincy and Robert Treat Paine divided the prosecution, establishing the pattern they were to follow later that year in the Massacre trials. According to a later newspaper account, “The cause was opened, and the evidence examined in behalf of the Crown by a Gentleman of superiour ability, who was assisted by another Gentleman, employed by the Town of Boston perfectly acquainted with the law, who performed his part with such distinguished talents, as did honour to himself, and gave intire satisfaction to his constituents. The evidence in behalf of the Prisoner being examined by a Gentleman who did not speak to the case, gave the other Gentleman who was his Attorney a greater opportunity to enlarge on the law and evidence in his favour; who, actuated solely from the motive of humanity, as he did it without fee or reward, and at the hazard of losing his popular reputation, so ably managed the law and evidence, in bringing such pertinent authorities to support the facts, and making such just remarks on the same, as fully convinced me of his abilities as an Attorney and of his benevolence as a citizen, in endeavouring to preserve the life of a fellow-subject; although his appointment to this task did not add to his reputation among the people at that time, yet the faithfulness and impartiality he shewed for the Prisoner must certainly more than compensate for any loss he might sustain in this or any other respect.”
       Paine’s notes of the trial appear as Document II, below. They set out the evidence and most of the arguments, but do not describe the atmosphere of the courtroom. Some of the passion and hatred that filled the onlookers and tainted the proceedings filters through the subsequent testimony of the jurors and the keeper. But the contemporary accounts detail the picture even more vividly. To appreciate the legal context, it must be realized that Richardson’s principal defense had been that, because the mob had attacked him in his own house and endangered his life, he had been entitled to protect himself in any way possible, including killing one or more of his assailants; the prosecution sought to show and to argue that the crowd was composed of nothing more than rowdy schoolboys, whose insults and stone-throwing had never endangered Richardson’s life. Moreover, the Crown contended, whatever anyone else was doing, the boy Seider was not, at the moment Richardson fired, threatening his life. These were also the patriot views, and they have generally prevailed among historians. To this last, the defense argued that, because Seider had been part of the illegal enterprise, his killing, although perhaps not justifiable as self-defense, amounted only to manslaughter. Even if Seider had been a wholly innocent bystander, if Richardson had been justified in firing the gun at all, he would not be guilty of murder.
       “Richardson’s Trial continued till late on Friday night. After the witnesses were examined and the lawyers had done pleading the Judges gave their charge to the Jury. They said it appeared by the Evidence that the prisoner was attacked in his own house by a number of tumultuous people. That what he had done was in his own defence. That self-defence was a right inherent in every man. That the persons who had encouraged putting up these hands were guilty of the murder and not the prisoner and they were convinced the jury could find him guilty of nothing more than manslaughter.”
       “There was a vast Concourse of Rabble at the Trial.”
       “The Court upon summing up the Evidence to the Jury were all of opinion that if what the witnesses on both sides had sworn was believed the fact could amount to no more than Manslaughter. Mr. Just. Oliver doubted whether it could amount to that and with great spirit charged the death of the Boy upon the Promoters of the Effigies and the Exhibitions which had drawn the people together and caused unlawful and tumultuous assemblies and he did not excuse such as had neglected suppressing these Assemblies as the Civil Magistrate had done.”
       “[W]hilst one of the Judges was delivering his Charge to the Jury, and declaring his Opinion, that the Case was justifiable Homicide, one of the Rabble broke out, ’D—n that Judge, if I was nigh him, I would give it to him’; but this was not a Time, to attempt to preserve Decorum; Preservation of Life was as much as a Judge dared to aim at.”
       “After the Judges had done speaking the mob became very outrageous, called out that they hoped no Jury dare acquit him. ’Remember jury you are upon Oath.’ ’Blood requires blood.’”
       “[The mob] designed to have hanged the Prisoner as he came out of the Court House, to be returned to Prison untill the Jurors Verdict was settled; and they provided an Halter, ready at the Door of the Court Room, for the Purpose; but the Court had ordered the Sheriff, with the Peace Officers, to lock him into the Court Room untill the Mob had dispersed.”
       “The judges found it necessary to remain in Court for upwards of an hour, and also to detain the prisoner till the mob were in some measure dispersed least they should destroy him in his way from the Court house to the Jail. It is said they had a rope in Court ready to hang him. The judges were hissed and abused in a most shameful manner in passing from the bench to their carriages.”
       The jury (none of whose members came from Boston) began its deliberations at 11 p.m. and, without food, drink, or sleep, debated until 8 or 9 o’clock the next morning. The verdict as to Wilmot was Not Guilty;as to Richardson, Guilty of Murder. “An universal clap ensued,” and “the Court Room 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.”
       At first, the grounds for the verdict were unknown. “I have not yet heard whether the Jury did not believe the W[itnesses] for the Prisoner or whether they thought themselves better J[udges of] the Law than the Court or whether they were intimidated by die  of the Inhabitants of Boston.” Notwithstanding, the defense apparently moved immediately for a new trial. This was a difficult motion to carry in the 18th century under the best of circumstances, and the court did not consider it seriously at that time. As Hutchinson noted, “The court was at first in distress. It was hard to be obliged to give judgment upon a verdict which appeared to them directly against law; and it was difficult, in the state of the town, to order the jury out a second time, or to refuse or delay sentence after the verdict was received.” So the court compromised. “The Verdict was received and recorded,” but the court adjourned without passing sentence until 29 May 1770.
       On that date, two of the judges being ill, the court further continued the matter to 31 May and then to 6 September. At last, on 6 September, at least one judge and all the lawyers having dined together at John Adams’, the jurors were called back in and individually examined. Judging from Paine’s minutes (Document III), the verdict had rested on at least two of the grounds which Hutchinson had hypothesized. The jury had pretty clearly found the facts the Crown’s way and it had certainly been exposed to the rancor of the courtroom mob, although the shouts of the crowd were “not mentioned in the Jury Room.” But the jury apparently did not consciously take to itself the decision of the law. Indeed, the willingness of eleven jurors to leave the law to the court was the lever which ultimately moved the last man, Thomas Lothrop, who finally agreed to vote Guilty on the assurance of the others that “if the verdict was not agreeable to Law the Court would not receive it.”

       The jurors having testified (whether on oath or not is unclear), the court heard defense counsel’s argument for a new trial. From Paine’s minutes, it appears that Blowers made three alternative points: first, that the jury intended to follow the court’s direction and find manslaughter, so the court should effectuate that intention; second, that the shouts as the jurors were retiring amounted to conversations with the jury sufficient to nullify a verdict of Guilty; third, that the verdict was so contrary to law and evidence that the court should order a new trial.
       There was some authority for granting a new trial to a defendant whom the court considered to have been improperly convicted, and Blowers (or whoever was arguing that branch of the motion) appears to have brought it all to the court’s attention. The trouble was that the opinions cited dealt with noncapital offenses, and the English law did not allow new trials in capital cases.
       It is apparent from the notes that counsel was very much aware of the doctrine, soon to be tested anew in the English criminal libel trials, that the jury was the proper finder not only of fact, but of law as well. Everyone agreed, and had for a hundred years, that no matter how blatantly a jury disregarded the court’s directions, neither it nor any of its twelve members could be punished for so doing. This was true in civil and criminal cases alike. In the former class of litigation, “if the Jury find against Evidence and the Direction of the Court,” the judges could alleviate the problem by granting a new trial. Thus, in capital criminal matters, the most that lay in a court’s power was to remind the jury that it was on oath to find according to law, that the court knew the law better than the jury, and that the jury would be risking its conscience by finding contrary to the rules laid down by the court. And as Lord Mansfield himself noted, the jury could always end the question by bringing in a Not Guilty verdict, right or wrong. The court could also advise the jury that, if it had any doubts of the law, its safest course was to bring in a special verdict. If the jury followed the recommendation, its verdict would take the form of a series of recited facts, found from the evidence, concluding with a prayer to the court to decide on the basis of those facts whether the defendant was guilty or not.
       But the jury, in the last analysis, did have the “final power” to decide according to its own view of the law. “This power,” as James Bradley Thayer has noted, “where it was uncontrollable, has been considered by some to be not distinguishable from a right; and it is not at all uncommon to describe it thus—as a right to judge of both fact and law.”
       Faced with the double problem of apparent jury omnipotence and inability to grant a new trial, the Massachusetts court temporized and followed the advice of the 17th-century criminal-law writer, Sir Matthew Hale, “to reprieve the person convict before judgment, and to aquaint the king, and certify for his pardon.” This made better political sense, too, than passing sentence and then having the Lieutenant Governor suspend execution pending receipt of the pardon, at which “the people would have been more enraged, than merely at the court’s suspending their own determination.”
       Hutchinson apparently wrote Lord Hillsborough, at an unspecified time after the verdict, recommending a pardon; the Hutchinson letterbooks in the Massachusetts Archives contain nothing precisely on this point. However, in a letter to Hillsborough dated 15 May 1771, Hutchinson referred to “the Instrument which accompanied” one of Hillsborough’s earlier letters; this, Hutchinson said, “I have caused to be communicated to the Judges of the Superior Court. Some of them are struck with the informalities of it for the purpose for which it is intended, and they have thought it advisable to defer their determination until their Court which is to be held on the third Tuesday of June in the County of Essex. Whatever it may be as to the sufficiency of the Instrument in point of form, it carries such evidence with it of His Majesty’s most gracious pleasure with respect to the immediate Subject of it that must stop all further proceedings against him.” The “Instrument” can only be the copy of the pardon order, dated 12 February 1771. When one recalls that the Court did not examine the jurors until 6 September 1770, the probable chronology appears to be this:
       After the examination, the court concluded it could do nothing, and Hutchinson wrote to England, asking for a pardon. As a result of the usual delays attendant upon a North Atlantic passage, coupled with the slowness of official action, the pardon order did not issue until 12 February 1771, and was not received in Boston until the beginning of May 1771.
       Throughout the summer the judges and Hutchinson temporized. Their chief concern was the form of the “Instrument,” which was really only a copy of an order from the King to the Recorder of London to insert Richardson’s name in the next “Newgate” Pardon—so-called because it referred to “our poor convicts in Newgate” Prison. As Hutchinson wrote to former Governor Pownall in August, “Neither the Judges nor the Attorney General are clear in the discharge of Richardson without some further evidence of His Majesty’s pardon. We have no precedent upon record in this province. They say that if there was no other Exception to the form of the Instrument yet it is no more than a Warrant to insert the name of Richardson in a pardon which it does not appear to them has ever been done. If a Copy could be procured of the pardon attested I hope it may be sufficient. I am not acquainted in what manner pardons are passed for such persons whose sentences are respited in the several Counties in England but if it be usual to insert the names of such persons in the Newgate pardons I wish to be furnished with a Certificate that it is so.” Hutchinson even proposed that a Royal Warrant issue, permitting Hutchinson to issue the pardon himself, under the Province seal. This was rejected, but not until 3 March 1772 did Hutchinson receive his final instructions.
       Meanwhile, Richardson remained in jail, while the patriot press flayed him and his protectors. The Massachusetts Spy and the Boston Gazette claimed that the court planned to enlarge the benefit of clergy by admitting him to it. By early 1772, the patriots were becoming impatient over Richardson’s fate. The Massachusetts Spy published some bitter doggerel referring to the two soldiers’ having pleaded clergy as well as Richardson’s remaining alive: “The basest murderers, full of guilt and crimes / Have gone unhung by reason of old LINES / So we were disappointed in our hopes / But for the future they’ll be hung by Ropes.” The Boston Gazette ran a lengthy piece signed “Callisthenes” which urged that Richardson was either innocent, and should be released, or guilty, and should be executed. “Is Richardson kept in goal in order to recommend him to mercy?” “Callisthenes” asked. “The honour of magistracy ought openly to avow it:—the wisdom of the recommenders ought to justify it. . . . Let not the infamy of the man give origin to an acquiescence in unjustifiable confinement. . . . What is law for a Richardson is law for a Sidney. If oppression is warranted by law, the Patriot is much more likely to fall a victim than the pimp and pander. Hampdens will stain the scaffold with blood, while a robber or murderer finds a city of refuge.No tyranny so secure, none so intolerable, none so dangerous, none so remediless, as that of Executive Courts.”

       This remarkable document, although too lengthy to be quoted in full, is well worth examination. On the one hand it seems to be urging Richardson’s death, on the other it appears to be vigorously asserting his rights. Its appearance in the Boston Gazette suggests that its author was certainly of the patriot party. This suggestion is accurate: “Callisthenes” was none other than Josiah Quincy himself. But his purpose in writing the letter defies explanation. It is possible that he knew of the pardon, inaccurately suspected its arrival in Boston, and hoped to stimulate Richardson’s release. Another view might be that “Callisthenes” perhaps purposed to provoke the execution. If this was Quincy’s aim, it would seem to contrast sharply not only with his duty as an attorney to his erstwhile client, but also with his stand in the Massacre trials.
       Whatever Quincy’s motive, shortly after his piece appeared, the Chief Justice told the Suffolk County Grand Jury, in apparent response to “a certain Paper, the Contents whereof have not yet transpired,” that the court believed the jurors “were ignorant that the Case of Ebenezer Richardson was then before his Majesty.”
       The suspense increased, even after the pardon safely arrived, for Hutchinson, despite his belief that “The people have never been in so good a temper to submit to his discharge at any time since he was first committed,” thought it best to wait a few days longer, until 10 March 1772, when the inhabitants were engaged at their town meeting. Then Richardson was taken hastily into court and brought to the bar, where on his knees he pleaded his pardon, recognized in the sum of £500 to appear again and plead the pardon whenever the court should require him (an empty formality), and then “fled with precipitation and crossed the ferry before the inhabitants were informed of it.” “The Rabble heard of it, and pursued him to execute their own Law upon him, but he happily escaped.”
       So Richardson left Boston, but his reputation remained as soiled as ever. Apparently he lived “at or near Stoneham” for about a year following his release, and then received an appointment in the customs service at Philadelphia. But, as late as 1774, the mere rumor of his presence in Boston was enough to raise a mob.


Title: Defense Counsel’s Notes: Suffolk Superior Court, Boston, April 1770
From: Quincy, Josiah Jr.
To:

       Dom: Rex vs. Richardson and Wilmot Upon an Indictment for Murder
       1st. To open the Defence with a proper Address to the Jury to remove all popular Prejudices and Passions and engage them to make a fair, candid and impartial Enquiry and to give their Verdict agreeable to Law and the Evidence, uninfluenc’d by any other Motive; to mention the manner of my becoming engaged as Council for the Prisoners, explain my Duty and the Part I ought and am determin’d to act.
       2d. The Witnesses for the Crown having been carefully and thoroughly cross-examined, to produce those for the Prisoners, and endeavour to find out what the Nature and Degree of Provocation offered; how far the Attack upon the house was carried; Whether and to what Degree the Windows were demolished before the firing, and whether the Door was broke open, and any Attempt made upon it; whether any actual Attempt was made to enter; or any Evidence of such Design from threatning Words; Whether Men as well as Boys were not concerned in that Attack; What Weapons were used or thrown into the house; and whether any One within was wounded; and upon the whole whether this is not to be consider’d as an Attack upon the Persons of the Prisoners.
       3d. To sum up the Evidence and state the Facts as they shall appear upon Evidence.
       4thly. To explain the Nature of the Crime of Murder and the different Kinds of Homicide, as justifiable, excusable (as se defendendo) and felonious: and to shew the Distinction between felonious Homicide of Malice prepense, which is properly Murder, and without such Malice, which is Manslaughter. Foster 273. 4. 7. 1. H.H.P.C. 449. 4 Black. Com: 190.1.2.
       The Crime in the present Case cannot at most amount to more than Manslaughter, as he was in his house peceably and there assaulted, by breaking his Windows and throwing Stones at him. And if an Intent to enter and commit a Felony appear, whether from threatening Words, or an Attempt to break the Door or the manner and Degree of the Attack, it is excusable Homicide Se defendendo, at least, if not justifiable. A Man’s house is his Castle and he may defend it by himself alone or with such as he calls to assist him. 1 H.H.P.C. 445. 487. 5 Coke Repts. 91b. Semane’s Case. 11 Coke Repts. 82b. Lewis Bowles Case.
       A Man is not obliged to retire from his house. 1 H.H.P.C. 486.
       So he may justify killing one that attempts to break open his house in the Day time with an attempt to Rob or commit other Felony. 4 Black: Com. 180. 3. 182. 1 H.P.C. Page 71 Chap. 28 Sect. 21 and by Sect. 23 of this and Sect. 13 of the next Chap. it appears that ware one kills another who assaults him in his house in the Day Time with Intent to beat him only is guilty of Homicide Se defendendo and if he appears to have a Design of killing him it is justifiable Homicide. Vid. Sect. 124. Vide also Hales P.C. 40 the reason why it is not justifiable but excusable only is that “they came not to commit a known Felony,” and “it cannot be judged whether he meant to kill me.” But if a man in the Daytime breaks the Windows of the house of another and endeavours to enter in order to execute a civil Process, and he within kills him this is Manslaughter and no more. Cooks Case in Cro. Car.George Croke, Reports of Cases in King’s Bench and Common Bench, Part 3, Charles, London, 1657.: 537. 8. And it appears by Lord Hales brief State of this Case 1 H.H.P.C. 458 that had Cook not known the other to be a Bailiff, it had been no Felony because done in Defence of his house. So if A endeavours to enter a house and shoots an arrow at those within and B shoots another out at those who wou’d enter and kills one of the Company. This is ruled not to be se defendendo, but Manslaughter because there was no Danger of their Lives by the Arrow so shot into the house upon them. Harcourts Case 1 H.H.P.C. 485. 6. Vid. also the Case of Drayton Basset in 1 H.H.P.C. 440. 1 and also in Page 444. 5 which shews who shall be said to be present, aiding, abetting &c.

       If upon angry Words one man assault another either by pulling him by the Nose or even filliping him upon the Forehead, and he who is so assaulted immediately runs the other through, it is but Manslaughter, for the Peace is broken by him that is killed; and he that receives such Indignity may reasonably apprehend a further Design upon him; Maugridges Case, in Keyling’s Repts. 135 adjudged and reported by Lord Holt.
       D. Williams on a sudden and slight Provocation only of Words kills Marbury, ruled to be only Manslaughter, 1 H.H.P.C. 469 and in 470, another Case mentioned also by Foster 298. 299 where no given but an Officer had violently entered a Room to make an arrest.
       Two Boys fight, one is beat and runs home blody and complains to his Father who goes three quarters of a mile and kills the other Boy ruled to be Manslaughter by Reason of the sudden heat &c. 1 H.H.P.C. 453 Rowley’s Case taken from 12 Coke Repts. 87. Vide also a Case in Strange Repts. 499 &c. ruled to be manslaughter only a strong Case.
       On a sudden Affray or Quarrel if the Party has declined the Combat and retreated as far as he Can with Safety and kills his Adversary thro’ Necessity and to avoid immediate Death, it is Se defendendo;but if the Combat on both sides is kept up to the time the mortal Stroke is given, and he who gave it was not at that Time in emminent Danger of Death it is Manslaughter, Foster 277.
       A Woman strikes Stedman a Soldier who returns the Blow with the pummel of his Sword. She fled he pursued and stabbed her in the back this ruled to be no more than Manslaughter: by Holt. Foster 292. Vide the general Observation by the same author Page 296 which Note.
       If A shoots at B misses him and kills C, if it wou’d have been Murder supposing he had killed B; it will amount to the same Offence, tho’ C is killed, whom he did not intend to hurt. On the other hand if the Blow intended against B arose from a sudden Transport of Passion which if B had died by it wou’d have reduced the Offence to Manslaughter, the Fact will admit of the same Alleviation if C shou’d happen to fall by it. Foster 261. 2. 1 H.H.P.C. 442.
       By Foster 295 Sect. 3d. it is apparent that tho’ base Words of Reproach or Gestures are not such Provocation as to lessen the Crime to Manslaughter. Yet when there is any assault on the Person arising from thence, it is otherwise: This Distinction appears from Maugridges Case: Whenever the Assault is very slight, as two persons justling against a Wall A kills B who had justled him, or if B had whipt A’s horse out of the Path and A had alighted and killed B, it had been only Manslaughter, 1 H.H.P.C. 455. 456. Where it also appears that Words of Menace of Bodily harm wou’d reduce the Crime to Manslaughter, though Words of Reproach only, woud not. Vid. these Distinctions 1 Hawkins P.C. Page 82 and 83 Sect. 34. 35. 36. 37.


Title: Paine’s Minutes of the Trial: Suffolk. Supr. Ct. April 1770.
From: Paine, Robert Treat
To:

       Dom. Rex vs. Ebenezer Richardson and George Wilmot
       S. Quincy.
       Wm. Gray, day before Some mention of Effigies. R said he hoped if these was before Importers Doors there be a Dust beat up, wish’d the 14. Regiment there. They would Cut up the d——d Yankees. Some time before he said he would give the Devil a Supper of them if— He has also said he would not hurt any body unless they hurt him.
       Deb. Warner. I was Looking out of my Shop door, I saw R by the Effigy. He came by with the Gentlemen and cry’d out Perjury Perjury, and said not you. Went into his house, and then came out and he came out in a great Rage, doubling his Fists and called challenged the Gentlemen to the Door. Said it should be hot enough before night. This brought the Boys from the Eff. The Boys threw light stuff. He came out with a Stick, and threatned and then went in the Step of the Door and went in and a brick Batt came out of the House and struck a Man who took it up and threw it in and that was the first of the Windows being broken.
       On saying Perjury, he said it shall be hot enough before night.
       Before Window broke he swore if they did not disperse he would make a Lane thro them.
       Front Door open when the Gun fired. No body had attempted to enter; months ago, I have heard R say Let ’em come on me I’m ready, for I’ve Guns loaded. I said I am not safe.
       Hannah Warner. The first I saw, R. was with Gentlemen called P.P. Challenged em up to Door. Boys came, R in great Rage. He ordered em to go off. They said they would not, Kings high Way. He said he had a Gun loaded and would fire. Swore by G— he would make a lane, no Men.
       Edwd. Procter. I was coming from North 1/4 past 10, with Some Gentlemen to see Pagentry before Lilly’s Door. R cry’d Perjury, Perjury. I said what do you mean. He said by the Eternal G—d I’ll make it too hot for you before night. I withdrew. I saw the brick strikeSoldier. He returned it and broke 20 Squares. Soon after the Gun fired. R. doubled his Fist and said Damn ye come here I’m ready for you.
       When the Boys threw, I don’t remember any Men among ’em.
       Saml. Appleton. I heard Boys huzza. The first I saw by Lilly was R. He spake to Mrs. L——, then spake to Country man with Waggon. R. shoke hand and said Perjury. Knox asked him what he meant. He said damn your blood come here, I’ll make it too hot for you before night. Boys got to the Door, threw things. Woman came out. Egg struke Woman.
       R: came out and said if you dont go away I’ll blow a hole thro you enough to Drive a Cart and Oxen.
       At the back Door, I saw R. and W’s. Guns. R said Dam their Blood I don’t care what I have done. He had a Cutlass drawn, and resisted. He said he would resign himself to proper Officer.
       Nathl. Noyes. I saw R. level Gun and snapt it at the Door, and went into the House. No Glass broke at that time. Then Boys threw Sticks. At first Snapping Boys were playing elswhere.
       Saml. Lock. I was in Town to sell milk. I saw Boys bringing Show. I was at Lillys, read it, saw People at the Door. He said begone to the Boys. 3 or 4 of us stood before R. Window. Saw ’em thro’, no Windows broke. He said if they did not go off he’d make it too hot for ’em, as sure as there was a G— in heaven, he’d blow a Lane thro ’em. He flashed a Gun in the House pointed to the Street.
       Robert Paterson. I went up to R, and I saw R fire the Gun, from within the House. The Boy fell. The Shot went thro’ my Trowsers.
       Charles Atkins. I saw him walking in the Room with the Gun on his Arm. Saw him pull the Tricker. Syder was stooping to take up a Stone as I thought, and was Shot down. 60 or 70 Boys.
       Jona. Kenny. The first I saw was 4 or 5 Stones flung out of R. Windows. None had been then flung at the House. I saw R knell down and point the Gun out of the Window, and I saw him shoot.
       Syder threw nothing stood looking.
       One stone struck me.
       I was by Syder 5. minutes. Saw him throw nothing.
       John Home. Woman run out and whipt the Boys. Then they threw Sticks; I saw him load, saw him point the Gun and fire.
       When he loaded the Gun no Window broke.
       R. came out swore by G— if they did not go away he’d make a Lane.
       Robert Bricks. Heard R. cry Perj:, your a pack of perjd. Villians. Knox come here. R. presented the Gun out of the Door.

        Robert Hews

       David Bradley. Windows broke when I got there. I saw 3 or 4 Stones come out of the Window. I saw one or two Men in the Room with Guns in their hands. R put a Gun on edge of Window. I heard the Gun, and run to the back of the house. R clapt the Gun at me.
       The Boys ceased throwing till R. threw again.
       Wilmot was there. He said it was not I but R.
       Robt. Hewes. After Guns fired, I saw R at Window. Boy threw. He presented again. Wilmot said he was assisting him. Wil: presented his Gun out of Window and said Stand off or I’ll fire.
       Phil Ridgaway. I saw W. at Rs.
       When I first came, no Windows broke. Large Stones thrown from house. Then Saw W and R in Yard with Guns. R. said I don’t care what I’ve done when they told him he had killd a Boy. I took from W. a Gun loaded with 179 Shots. 17. Swan Shot. The rest Goose and Duck. She looked as if flashed. Wilmot said he could not have fired for the Screw pin was gone.
       Some men laughed, 10 or 15 Stones thrown by Men with violence, but remember none in particular.
       Thos. Young. Wound mortal.
       John Loring. Wound mortal.
       Black. Anal. 119. Murder and Manslaughter.

       Hales Pl. Cr. 31: Murder what, if the act unlawful. 44. If a man do an act by which Death must ensue, consider, if intended. 45. An Intention of Evil tho not against a particular Person.
       F.C. Law. 255. The fact proved, prisoner must excuse.
       F.CL 291. §2. The Weapon. Murder.
       HHPC. 451. Def. of Malice in fact.
       2 Ray. 1489. Malice express, if a Man do an Act that must do harm.
       Prisoner.
       Sarah Richardson. Mr. Knox and Capt. Matchet followed Father up to the Door and said come out you damn Son of Bitch, I’ll have your Heart out your Liver out. Boys came there. Knox, Procter and Machet stood behind the Boys. Dont know how long. They threatned to kill us all. I staid till no Lead, no Frame, and then went away. Stones hitt my Father, hitt me, could not tarry without danger of Life. Outer Door shut when they threw Stones. Broke Cieling. They broke Doors open. Stones hit Mother. Wilmot said he would stand by him as Long as he had breath. Wilmot asked if he had any Gun. R. said he must get his Gun.
       Kezia Richardson. Knox, Matchet and Procter Challenged my Father. Knox challengd him and he said he’d have his Heart and Liver in his Hand. They broke the Door open. It was locked. Mother and father Wounded with a Stone. The Wall broken. Father desired Wilmot to .
       John Codman. School Boys Surrounded R’s House, throwing Dirt and Stones at the House. They said he had Snapt a Gun at us. Not large Stones. A Man said to me you dont know What provocation the Boys had had. Windows broke when I came. Men did not seem to have any Concern. The Doors open. Girls there, unconcerned. A Stone came from the back of Richardsons House. It could not come from Boys.
       Mrs. Ann Caldwel. The Boys were assembled and said they were a going to have a Frolick. More than 50  The Side of the House battered.
       Katherine Winch. My back Yard and R join. I saw the Boys throw Stones after R apprehended Wall broke.
       Lee Esqr. I saw R. Windows broke, Codman reproving the Boys. Man from other side way came and said he did not know the Provocation. Only Boys active. Little or no throwing while there, 15 or 20 men in Sight of R. house. I saw no Body in the house. No Passion in any Body.
       Willm. Eustice. I saw Boys thro. Stones. Sailor threw short clubb broke the Lead. The Gun went off. 200 men before firing.
       Andrew Tewksbury. The Boys said R was an Informer. They threw Limon Peels then Stones. Some Men looked on Boys and they threw faster. Men shew’d no signs of Approbation but laughing. No Glass broke when I got there. 200 or 300 Boys and Men, 20 or 30 men over the Way. Large Stones. None from the House.
       Dr. Hill. I was there before Stones thrown, 1 1/2 minutes before Gun fired. The Windows were demolishd. Not broke when I first went. The affair intirely among the Boys. Men not concern’d.
       Dr. Perkins. Some Glass broke when I got there. Some Boys threw Carelessly. Not there more than a minute.
       Elias Dupee. The boys carried the Pagentry. I tarried till all Glass broke. I spoke to the Boys. A man said the Town will pay for it tis none of my Business. A brick bat thrown out of the Window and a Soldier threw it back after Stones were thrown. I saw a Gun pointed and fired.

       David Pulsifer. R. said if ever a mobb come before my house, call away your Friends. The Girls said Wilmot ask’d R. where his Arms and Ammunition was. Some Men about in the Street. Did not heard any threats, but Matchet, Said they deserved to be hang’d 7 years ago.

        H. Laughton

        Freeman Pulsiver.

        Quincy.

       A man of universal Bad Character, apt to be prejudiced. @ Danger of its Working tother Way.
       Theocracy of Jewes. @ City of Refuge.
       4 Blackstone [191]. Manslaughter is killing without malice.
       HHPC. 449. Murder and manslaughter. What. A sudden falling out.
       FCL. 273. Injured Person may justify when known Felony intended. 277.
       Keyling 51: The case of turning out of Tavern Room. 60. The Circumstance to reduce to manslaughter must be some striving. 2 Ray. 1301. Where the Liberty of one Subject is invaded the Liberty of the whole is affected.
       @. Fost. 312. Tooleys case denied.
       2 Inst. 51; Malice must be with a calm deliberate mind. 57. Manslaughter where it happens on Sudden Shuffling.
       12 Co. Boy with bloody nose. Mem. Foster Contra. 295. 3
       HHPC 445. A comes to enter, with force. 485. Killing those who come to do Injury to the House. 486. Come to Take Goods a Trespasser.
       5 Co. 91. Semaines Case, attacking a House.
       11. Co. 84. Bowles Case, a man may call other to defend himself in his house.

       Hale PC 40, if a man come to enter.”
       HAPC. 72.
       Cro. Car. 537. Cokes Case, killing Bailiff. Vid. it was ruled Manslaughter because he might have resisted him without killing him. Ergo were it not he was a Bailiff and broke the House it would be Murder.
       Kelynge. 131. Pulling nose, and running thro with Sword.
       HHPC: 458: had it not known him to be a Bailiff no felony.
       Fos. 298. 99. An officer push’d into room to arrest.
       HHPC: 442.
       Fost. 261. When a Blow aimed at one Person killeth another, but where the first is evil it is murder. 292: Lutteralls Case.
       HPC. 81. 27. 83. 39.

       Fos. 350. 5. Accomplice. 391. bottom. Ditto Plummer Case. 353
       Haw. P.C.: 193: Libel whats provoking.
       A Man’s house his Castle a Doctrine highly approved.
       The Pagantry must not be considered as Lawful.
       A Crime of this Sort not to be presumed. @ R. must Excuse.
       A man not obliged to fly from his own House. @ When the assaliant is in his House.
       Snider was among Trespassers and therefore not murder to kill him.
       HHPC: 441. Woman killd by throwing a Stone.
       439. 440. Accomplice.
       New Trials
       5 Bac. 244.

       Str. 1106. 1142. Evidence on both sides. 887.
       May be granted when Defendant found guilty.
       Str. 104. 968. 1106.
       Bla. Com. 354. The Jury have an unquestionable right to determine on all the Circumstances and to find a general verdict. 2. Hal. 310.


Title: Paine’s Minutes of the Proceedings on the Motion for a New Trial: Suffolk Superior Court, Boston, September 1770
From: Paine, Robert Treat
To:

       SC. Augt. Term 1770
       Rex v. Richardson
       Motion for new Trial.
       Deming. Foreman. Mr. Lothrop was satisfied as to Fact, but not Law. Mr. Clap not so fully satisfied as to Law. I told him the Court knew the Law. We all agreed about 1/2 an hour before we came in on Richardson.
       Lothrop. I did not fall in so soon as some, for I thought the time might be as well spent in Argument. Jury in General thought if the verdict was not agreeable to Law the Court would not receive it. It was a motive with me.
       I heard some Body say as we passed up stairs Damn him don’t bring it in Manslaughter.
       Clap. At first going out I was not so clear as afterwards, for the Reason offered, such as its being in the Day. Something was said that the Court would not receive it if not right, but it did not weigh with me.
       Withington. The Rabble as we were going out said hang the Dog hang him.
       Stoddard. I heard no such thing.
       Leveret. A great hiddalo. But I heard northing.
       John Smith. As I passed and turn’d the Stairs down the Stairs some said hang him no Manslaughter, but no Body minded it.
       Elisha Gardner. I heard a tumultuous noise, no Manslaughter but Murder, it appeared with no Connections to the Jury.
       Jona. Ellis. I heard some Body cry out damn him hang him Murder no Manslaughter. It seemed down stairs. Not mentioned in the Jury Room.
       Jos. Hawes. As the Jury were going out I heard some Body say hang him a dog, but from whom I dont know. There was some such talk that if the Court did not like the Verdict they would not receive it.
       Ephm. Pratt. There was a noise but I heard no Words.
       Ebe. Adams. I heard a Noise below but heard no Body speak so as to be understood. Something like hang him. I did not take it to be directed to the Jury.
       Mr. Usher. Keeper of the Jury. Many People below till 12 or 1 oClock. I heard no Cry of hang ’em &c.
       Blowers.
       Cro. 778. Wats & Braine. Jury sent out again, 2 dissenting on Examination.
       State Tri. 417. Vol. X. Ashley v. Simons the Jew; Jury mistook their Verdict.
       5 Bac. 243. SC.

       Cr. El. 189. A Witness examined again by Jury.
       Trial pr. Pais. A paper delivered to the Jury by Stranger. 224.
       225. A Breviate delivered.
       222. If the Party says to the Jury ’my Case is Clear’ it is new Evidence.
       Styles 383. The delivering a Breviate to the Jury before Tryal, mistryal: Tayler v. Webb.
       1 Vent. 124. Duke Richmond v. Wise. If any of Party say I hope youll find for Plaintiff tismistryal.
       Vin. Tryal 452. §25. One said to a Jury he’d take care what for it was better for the Bishop than Duke.

       11 Mod. 118. Lady Herbert vs. Shaw. A Letter wrote to Jury to attend, to consider the Plaintiff was a poor man, mistrial.
       Burr. 390. Bright vs. Eynon.
       Foster 266. A Breviate delivered to a Juryman.
       T. Jones 163. Rex v. Smith. Verdicts vs. Evidence.
       3 Keeble 525. New Tryal, SC.
       Str. 104, 968, 1102.
       1 L. Ray. 62, 63.

       2 HPC.
       5 Bac. 292. Ld. Vaghn Law denied.
       2 Ld. R. 1494 Onebys Case.
       12 Mod. 336. If Judge in his Conscience is satisfied the Cause deserves a new Tryal.
       Rex
       CL: 228. Jury may give general verdict.
       4 Black. 354. Same vid.
       2 Hale 310. Same.
       Str. 1142.
       3 Black. 375.
       Fos. 255.


Title: Editorial Note
From:
To:

       Friction between the Boston garrison troops and the populace produced considerable heat even before the so-called Massacre of 5 March 1770. The present case grew out of one of the more notable episodes, a scuffle in the Boston market on 13 July 1769 between Private John Riley of the Fourteenth Regiment and Jonathan Winship, a Cambridge victualer.
       Mystery surrounds the precise origin of die fight, although a deposition by Corporal Samuel Heale of the Fourteenth Regiment (taken almost a year later, and for purposes other than use in court) states that Riley attempted to rescue a boy who was being beaten by a man in the market. According to Heale, first the man, and then Winship started fights with Riley.
       In any event, Winship, the loser, swore out a complaint before Justice of the Peace Edmund Quincy, who promptly issued a warrant on the strength of which Boston constable Peter Barbour brought Riley before the justice. The complaint was read, Riley pleaded guilty, and Quincy, after hearing other testimony, fined him five shillings and costs of eight shillings threepence, sentence being suspended for one day on the undertaking of John Phillips, Riley’s sergeant, to be responsible for payment or to see Riley forthcoming on 14 July. Riley duly appeared the next day, accompanied by Sergeant Phillips, Corporal Alexander Findley, and Private Jonathan Stevenson, all of the Fourteenth Regiment. Because Riley was unable or unwilling to pay his fine, Justice Quincy drew up a mittimus, an order directing Barbour to commit Riley to jail.
       Now the stories differ. Barbour testified later that Riley balked and that someone sent for Lieutenant Alexander Ross of the Fourteenth Regiment. On Ross’ arrival, and in his presence, a group of soldiers took Riley out of the constable’s custody and hustled him away. Ross, in his later deposition, gave a conflicting version. According to him, Captain Charles Fordyce, Riley’s commanding officer, had asked him to intervene with Justice Quincy, whom Ross knew, in order to “compound” or settle (“fix” is a term with more accurate Massachusetts connotations) Riley’s case. When Ross arrived at Quincy’s, he found the justice making out the mittimus. After a vain attempt to persuade Quincy to lessen the sentence, Ross began (he said) to leave. When Riley tried to follow, Ross “told him in a very peremptory manner by no means to do so.” Riley persisted, was seized by the constable and others, and fought his way free, “notwithstanding my calling to him several times and as long as I could be heard for i.e. over the Crowd not to do so.” Ross then pushed through the mob and ordered the soldiers to their barracks.
       The incident created a furor; William Palfrey even reported it to John Wilkes. And the day after the riot, the House of Representatives, having heard Barbour and Jeremiah Belknap (who had tried to help Barbour retake Riley), appointed “a Committee to make further Enquiry into the Circumstances . . . and report to the House a State of the Facts,” the same to be then transmitted to Denys de Berdt, Provincial Agent in London, presumably for propaganda purposes. The depositions which were taken on 24 July 1769 and printed as part of the “Journal of the Times” are the best known account of the fracas.
       A week after the rescue (the technical term for the unlawful taking of a prisoner out of the custody of an officer) Ross, Sergeant Phillips, Corporal Findley, Corporals William Dundass, Thomas Thornley, and John Arnold, and Privates John Lane and Francis Jackson were called before Boston Justices of the Peace Richard Dana, John Hill, and John Ruddock. After a tongue lashing from Dana, Phillips and Ross were discharged, and the others bound over for the grand jury.
       At the November 1769 adjournment of the August 1769 sitting of the Suffolk Superior Court, Findley, Dundass, Thornley, Arnold, and Jackson were indicted, as was Ross, for assaulting Barbour, for rescuing Riley, for assaulting some of the townspeople who attempted to aid Barbour, and for breach of the peace.

       The trial took place, apparently, in the middle of December 1769. Internal evidence in the Adams Trial Minutes, below, indicates that Robert Auchmuty was Ross’ counsel; Adams’ role is uncertain. He may have been participating for the Crown, although his full minutes of the prosecution evidence suggest that he may have been acting for the defense.
       As reported by Adams, the case against the soldiers seems strong, although that against Ross is not so clear-cut. The central issue seems to have been whether or not Ross had participated in the rescue, either directly, by encouraging Riley and the others, or indirectly, by failing to restrain them. On that, the testimony seems uncertain, much of the confusion apparently stemming from the words “go” and “don’t go.” Did Ross, when he said “go,” mean “make good your escape,” or did he mean “go to jail”? From the testimony as Adams recorded it, one cannot tell.
       The jury did not doubt: it found all the defendants but Dundass guilty, whereupon the court fined each soldier £7 and ordered him to post bond for good behavior. Ross’ “Lawyer Pleaded an Arrest of Judgment, and was in hopes of bringing on a Fresh Tryal; the former was granted, but I was Bound over for my Appearance.” But the court did not sit again until mid-March 1770. By then the “winter of discontent” had bubbled into blood. With Richardson, Captain Preston, the soldiers, and the customs employees on their hands, the judges had neither encouragement nor inclination to invoke the unusual remedy of a new trial for a British officer convicted of interfering with the judicial process. Ross’ motion was denied, and he was fined £20 and costs.


Title: Adams’ Minutes of the Trial: Suffolk Superior Court, Boston, December 1769
From: Adams, John
To:

       Indictment vs. Lt. Ross and Soldiers
       Peter Barber. I had a Warrant from Justice Quincy. Justice fined Riley 5s. I saw 15 or 20 Men all with their drawn swords.

       Lt. Ross came in. Mr. Quincy went on with the Mittimus. Riley said he would not pay nor go to Goal. The Word was go. He attempted to go. I took him by the Collar. He struck me with a broad sword. A whispering and a Messenger sent for Mr. Ross who came. Lt. Ross said Go. And he went. I did not hear such Words as do not go.
       Corpl. Finley was there at the Door not in the Room. I saw their broad swords drawn. Arnold and Thornly were there. Cant say I saw these Persons swords drawn.
       Jeremiah Belknap. 14 July between 2 and 3 passing thro Dock Square. Saw about a 12 soldiers, I think all with their broad swords. And I heard em say d—n him well wait for him. At the Justices Door. I heard em say d—n him. They shant carry him to Goal at the Justices the Serjeants Name is Door. And I swear by G—d he shan’t go to Goal. Ross was then in the Justices. Justice said Sir take care of your Men to Ross. He answerd I can do nothing. Riley said I’le go. Barber said you shant go. I seizd Riley, and out at the Door we went, half a dozen broad swords, upon us, and I had 3 fingers cutt.
       I did not hear Ross say go or not go. I thought Ross connived, because he held the Door open while Riley passed him.
       Dr. Jno. Loring. I saw a Number of Soldiers round Winships Cart, insulting him. Justice went.
       I heard one of the Soldiers go say to another, go fetch Lt. Ross. Ross came. I heard em sware, Riley should not go to Goal. And if the Inhabitants, insulted em they would take their own Satisfaction. I went and told Ross. He said He could not help it.
       I cant swear to any one Person. There were about 15 or 20.
       Ross gave no orders or Reproof to the Soldiers.
       Thos. Ross Foster. 1/2 Way between Perrys and Quincys. A Cart. I saw a Number of Soldiers there with their Swords in their Hands. Not drawn. They swore by God Riley should not go to Goal.
       Finly said God d—n your blood, and I think I saw him draw his sword. One Grenadier carried the Prisoner off. The Inhabitants Soldiers said seize the Prisoner if you dare. Jackson I saw there, and Thornley. It is clear in my Mind that I saw em, and clear that I saw Finly with a sword in his Hand, and saw his Hand on it attempting to draw it.
       R.
       Wm. Mills. Saw the Soldiers at the Door. They said he should not go to Goal. A Dozen with swords. Saw a Number with their swords drawn. Arnold. Thornly. They had Bayonetts. They were in the Company with the Soldiers who said he should not go to Goal.

       All in a Bunch, and many said he should not go.
       Abraham Hunt. They would be damnd if the Prisoner should go to Goal. Quincy told Ross there was like to be a Rescue. Ross said he could do nothing with em. Rily said he would not pay. I went out and heard the Threats a 2d time. Ross said a 2d Time he could do nothing with em. I saw Ross go towards the Door, and then Riley attempted it too. Barber was knockd down. Quincy told Ross a 3d time to disperse the Men. After the Prisoner was rescued, Ross told the serjeant to take the Men to the Barracks which he did immediately. Ross was in sight of the Blows when struck. Ross was at the Door or in the alley, when Barber was struck, near enough to see. Some of the Grenadiers went off with Riley. Some stayd. Jackson and Finley I knew.
       Saml. Downes. Ross said What can I do? I cant help it. Ross said he would go. Riley said he’d go too. Ross said dont go.
       Mr. Wm. Greenleaf. In my Chamber I heard an unusual Screaming. Soldiers with their Cutlaces flourishing, to keep off the Inhabitants. And afterwards had came down 2 Pair of stairs and went out in the street and then heard Ross say go to your Barraks.
       Stephen Greenleaf Jnr. Soldiers insulting the Butcher, and challenging. Those Soldiers drew towards the Door cursing and swearing that Rily should not go to Goal. The Soldiers opend to right and left and Rily went threw. And he saying take me now if you dare. Afterwards Ross came out and said you Rascalls to your Barracks directly. Knew Finley.
       Jno. Hicks. I heard ’em at the Door say Mr. Ross will be hear in a Minute. Riley said, if you go, I’le go follow and defend myself. Ross said dont go, or stay. Then Riley said again I’le go, and Ross made no Answer. I think I saw Jackson. Saw two soldiers sticking the Pavements &c.
       Mr. Auchmuty. Mr. Ross’s Inactivity, no Proof that he was guilty of a Riot. Nor Proof that he aided, incouraged, and abetted.


Title: Editorial Note
From:
To:

       At the May 1769 Suffolk Sessions, Moyse and Reader were the only men tried among six soldiers who had been presented for breaking and entering, on 16 March 1769, the shop of John Carnes of Boston and stealing 40 shillings of silver and copper coin, 22 pairs of men’s shoes (value 6s. each), 30 yards of ribbon (value 20s.), 20 watch seals (value 16s.), 25 yards of holland (value £6), unspecified amounts of printed linen (value 17s. 4d.) and calico (value 6s.), one yard of lawn (value 5s. 4d.), one yard of cambric (value 8s.), one piece of silk handkerchief (value 32s.), 3 pairs of black mitts (value 4s. 6d.), 3 dozen woolen stockings (value £6 3s. 4d.). After the defendants pleaded not guilty, the jury acquitted Reader but found Moyse guilty.
       Adams’ minutes reflect his interest, if not participation in the case. It should be noted that the minutes reflect no direct evidence of theft, only the circumstantial evidence of possession of the stolen goods. Moyse was sentenced “[to] be whipped 20 stripes on the naked back at the publick whipping post, that he pay to the said John Carnes the sum of £78 13s. 6d. being treble damages, the goods returned to be accounted part thereof according to their value, and that he pay costs of prosecution standing committed until the sentence be performed.”
       On 19 May 1769 Carnes petitioned the Sessions that Moyse was utterly unable to pay the sentence, that he had been found guilty of theft, and that Carnes “be impowered by an order from your Honors to sell him for such a term of time as you shall think reasonable and just.” The court responded with an order “that the said John Carnes be and he is hereby fully authorized and impowered to sell and dispose of said John Moyse to any of His Majesty’s subjects for the space and term of three years.”


Title: Adams’ Minutes of the Trial: Suffolk Court of General Sessions, Boston, May 1769
From: Adams, John
To:

       Rex vs. John Moyse and George Reader.

        Mr. Carnes.

        Simpson.

       Clark. Of Mrs. Thorntons, I bought them, one Pair.
       Wm. Simpson. I bought another Pair of Mrs. Thornton.
       Mrs. Hunt. I sold a Pair to William Clark. I had em of Reader. He told me he had em of Thos. Smith.
       Mrs. Thornton. I sold a Pair to Simpson. I bo’t em of Reader. He told me he had em from his friends in England. I gave 2 Pistareens, Pistoles and half a Pint of Rum.
       Wm. Agnue. I saw a Pair of the Pattern sold to Mrs. Thornton by Reader. He said they were sent by Packett from his friends in England.
       Another to the same.
       Robinson— same.
       Jno. Short. I imported em from Great Britain and Mr. Carnes had a Dozen. I cant swear to the Colour. I sold 11 dozen.
       Miss Carns. I know em to be the same that were stole out of my fathers shop. By the different shades. I often spoke of em before they were found.
        Carnes. I knew em when I first saw em. Had seen em often.
       Mr. Symms. Found Combs in Moyse’s Knapsack. Moyse said he had em from Hallifax. Reader has em from Moyse. Carnes says he heard Moise and Reader say the same.


Title: Editorial Note
From:
To:

       “Last Thursday Afternoon [28 January 1773] died at the North End, after a few Days Illness, Mrs. Christian Bell, Wife of James Bell, of this Town, Cordwainer, who is a Native of Scotland; it being notorious to Numbers of People that this Woman had for several Years past very undeservedly suffered frequent & cruel Abuses from her said Husband; a suspicion immediately arose after her Death, that she had been murdered by him; in Consequence of which, a Warrant was issued on Friday [29 January] by Mr. Justice Gardner, and the said James Bell was apprehended, and after an Examination had before the said Justice, was on the Evening of that Day committed to Goal. On Saturday [30 January] a Coroners Inquest was summoned, who after carefully examining the Witnesses, and critically inspecting the Body, with the assistance of Messers. Danforth, Rand, and Fudger, Physicians of the Town, upon their Oaths declare, that the said Christian Bell came to her Death in consequence of repeated Blows upon her Body, given her by her said Husband, James Bell; more particularly by one Blow or Blows upon her Head, just over the right Eye, which she received on and since the Evening of the 16th ult.”
       At the February 1773 Suffolk Superior Court, the grand jury, specifying the fatal wound as two inches long, one inch broad, and two inches deep, indicted Bell for murder. We do not know what part, if any, Adams played in the subsequent trial, although the extensive nature of his notes suggests that he was of counsel for the defendant. The jury returned a verdict of not guilty of murder, but guilty of manslaughter, presumably because the evidence showed no malice aforethought. Bell pleaded benefit of clergy, was branded on the brawn of the thumb, and was discharged.