Charges to The Jury as Printed In the Annual Register1
About Monday noon the judges began their charge. Judge Trowbridge, who spoke first, entered largely into the contradictory accounts given by the witnesses, and declared, that it did not appear to him that the prisoner gave orders to fire; but if the Jury should think otherwise, and find it proved that he did give such orders, the question then would naturally be, What crime is he guilty of? They surely could not call it murder—Here he explained the crime of murder in a very distinct manner, and gave it as his opinion, that by law the prisoner was not guilty of murder; observing, that the King had a right to send his troops here; that the Commanding Officer of these troops had a right to place a Centinel at the Custom-house: that the Centinel placed there on the night of the 5th of March was in the King’s peace; that he durst not quit his post; that if he was insulted or attacked, the Captain of the Guard had a right to protect him; that the prisoner and his party, who came there for that purpose, were in the King’s peace; that while they were at the custom-house, for the purpose of protecting the centinel, it was plainly proved that he had been assaulted by a great number of people; that the people assembled there were not in the King’s peace, but were by law considered as a riotous mob, as they attacked the prisoner and his party with pieces of ice, sticks, and clubs; and that even one of the witnesses against him, confessed he was armed with a Highland broadsword; that the rioters had knocked down one of the soldiers of the party, laid hold of several of their muskets, and that, before the soldiers fired, the cry was, Knock them down! Kill them! Kill them! That all this was sworn to by the witnesses, and if the Jury believed them, the prisoner could not be found guilty of murder. He then proceeded to explain what the law considered as man-slaughter, and concluded with saying, that if he was guilty of any offence, it could only be excusable homicide; that this was only founded on the supposition of the prisoner’s having given orders to fire, for if this was not proved, they must acquit him.
Judge Oliver, who spoke next, began with representing, in a very nervous and pathetic manner, the insults and outrages which he, and the Court through him, had received on a former occasion (meaning the trial of Richardson) for giving his opinion in a point of law; that, notwithstanding, he was resolved to do his duty to his God, his King, and his country; that he despised both insults and threats, and that he would not forego a moment’s peace of conscience for the applause of millions. He agreed in sentiment with the former Judge, that the prisoner was not guilty.
Judge Cushing spoke next, and agreed entirely with the other two, with regard to the prisoner’s case.
Judge Lynde concluded. He spoke a considerable time, and was of the same opinion with the other Judges. Towards the close of his speech he said, “Happy I am to find, that, after such strict examination, the conduct of the prisoner appears in so fair a light; yet I feel myself, at the same time, deeply affected, that this affair turns out so much to the disgrace of every person concerned against him, and so much to the shame of the town in general.”
1. Annual Register for 1770 218–219. See Descriptive List of Sources and Documents.