Paine’s Minutes of Cushing’s and Lynde’s Charges to the Jury1
5 December 1770
Judge Cushing. The longest Tryal I have ever known. The Party in K[ing] S[treet] had a right to [beat].
1. Paine Massacre Notes.
2. Presumably 1 Hale, Pleas of the Crown description begins Matthew Hale, Historia Placitorum Coronse: The History of the Pleas of the Crown, London, 1736; 2 vols. description ends 482, which deals with the law of self-defense, but not with the rule Judge Lynde lays down, i.e. that if the killings cannot be traced to individual prisoners, all must be acquitted.
“It appeared from the evidence, that seven guns only were discharged, and the witnesses could ascertain two only of the prisoners who fired; though they swore that the whole firing was from the eight. The court was clear in their opinion to the jury, that they were all excusable, firing in defence of their own lives against the violent assaults of the people; but the jury were made to believe all those who fired guilty of manslaughter, thinking that they should have forborne firing longer than they did; but finally found only the two who were ascertained, guilty, and acquitted the rest. For if they had found the whole, one who was innocent must have been declared guilty.” 3 Hutchinson, Massachusetts Bay, ed. Mayo description begins Thomas Hutchinson, The History of the Colony and Province of Massachusetts-Bay, ed. Lawrence Shaw Mayo, Cambridge, Mass., 1936; 3 vols. description ends , 236.
3. Compare the briefness of Paine’s notes with the comment of the editor of the Wemms Trial description begins The Trial of William Wemms, James Hartegan, William M’Cauley, [and others] ... for the Murder of Crispus Attucks, [and others], ... Superior Court of Judicature, Court of Assize, and General Goal Delivery ... taken in Short-Hand by John Hodgson, Boston, 1770. description ends inserted immediately after the charge of Oliver, J., Wemms Trial description begins The Trial of William Wemms, James Hartegan, William M’Cauley, [and others] ... for the Murder of Crispus Attucks, [and others], ... Superior Court of Judicature, Court of Assize, and General Goal Delivery ... taken in Short-Hand by John Hodgson, Boston, 1770. description ends 207:
“Each of the other Justices also summed up the evidence to the Jury very particularly, and gave their opinions of the construction of law upon the evidence; but as they differed in no material point, from the two Justices, (who according to the custom of the Court) spoke first, they thought it unnecessary to make public what was severally delivered by them.” Apparently the judges spoke in reverse order of seniority.