Arraignment, Impaneling, Crown’s Opening and Evidence: 7 September, 27 November 1770
Arraignment, Impaneling, Crown’s Opening and Evidence1
7 September, 27 November 1770
On Saturday [i.e. Tuesday], the 27th November, 1770, the Court being met, the prisoners were brought into Court and set to the bar, when the Court proceeded thus. . . .
Clerk. How sayest thou, William Wemms, art thou guilty of the felony and murder whereof thou standest indicted, or not guilty?
William Wemms. Not guilty.
Clerk. How wilt thou be tried?
William Wemms. By God and my country.
Clerk. God send thee a good deliverance. . . .2
Clerk. You the prisoners at the bar, these good men, which were last called and do now appear, are those who are to pass between our sovereign Lord the King and you, upon the trial of your several lives; if therefore you will challenge them, or any of them, you must challenge them as they are called to be sworn, before they are sworn, and you shall be heard.
The prisoners being asked whether they would agree in their challenges, consented that William Wemms should make challenges for them all.3
The Clerk having gone thro’ the pannel, and there being a deficiency of Jurors, the Sheriff, by order of the court, returned the following talesmen.
| Samuel Sheppard, | challenged peremtorily. | |
| John Goldsbury, | challenged for cause. | |
| Samuel Peck, | challenged for cause. | |
| William Gouge, | challenged for cause. | |
| Joseph Turrel, | challenged for cause. | |
| Jacob Cushing, jun. | Hingham, | sworn. |
| Josiah Lane, | ditto, | sworn. |
| Jonathan Burr, | ditto, | sworn. |
N.B. The three last being illegally returned, as Jurors, were rejected by the Court, and returned by the Sheriff as talesmen.
Clerk. Cryer count these.4
| Joseph Mayo, Forem. | } | Roxbury. | Samuel Davenport, | } | Milton. |
| Nathaniel Davis, | Joseph Houghton, | ||||
| Abraham Wheeler, | } | Dorchester. | Consider Atherton, | Stoughton. | |
| Edward Pierce, | Jacob Cushing, jun. | } | Hingham. | ||
| Isaiah Thayer, | Braintree. | Josiah Lane, | |||
| Benjamin Fisher, | Dedham. | Jonathan Burr, |
Cryer. Gentlemen are ye all sworn.5
Clerk. Prisoners hold up your hands. Gentlemen of the Jury look upon the prisoners, and hearken to the charge. (The Clerk then read the several indictments against them as before set forth.) Upon each and every of these several indictments, the prisoners at the bar have been arraigned, and upon their arraignment have pleaded not guilty, and for trial have put themselves upon God and their country, which country you are; your charge therefore is, to enquire whether they or either of them be guilty of the felony and murder whereof they stand indicted, or not guilty. If they or either of them are guilty, you are to say so; if they or either of them are not guilty, you are to say so and no more. Good men and true, stand together and hearken to your evidence.
Robert Treat Paine, Esq;
Samuel Quincy, Esq;
John Adams, Esq;
and Mr. Sampson Salter
Mr. Josiah Quincy,
Blowers.6
Samuel Quincy, Esq: addressing himself to the Court and Jury, opened the cause nearly in the following words:
May it please your Honours, and you Gentlemen of the Jury.
The prisoners at the bar, are that party of soldiers belonging to his Majesty’s 29th regiment, who in the evening of the 5th of March last, were induced from some cause or other to fire on the inhabitants of this town, in King-street.
They are charged in five distinct indictments, with the wilful premeditated murder of five different persons mentioned in the respective bills; to each of these indictments, they have severally pleaded, not guilty; and by that plea have thrown upon the crown the burthen of proving the fact alledged against them: It is my province therefore to give you evidence in support of this charge, and yours, gentlemen of the jury, to determine whether they are guilty, or not.
The cause is solemn and important; no less than whether eight of your fellow subjects shall live or die! A cause grounded on the most melancholy event that has yet taken place on the continent of America, and perhaps of the greatest expectation of any that has yet come before a tribunal of civil justice, in this part of the British dominions.
I am aware how difficult, in cases of this sort, it ever is, and more especially so in these times, and in this trial, to preserve the mind perfectly indifferent; but I remember, we are bound, not only by the natural obligations towards God and man, but also by an oath, to examine into the evidence of fact without partiality or prejudice; I need not therefore caution you of your duty in this respect: It is upon that evidence and the law resulting from it, you gentlemen are, in the language of your oath, to give a verdict; and I will venture, before hand, to pronounce that verdict righteous, if it is founded in these principles as the rule of your judgment.
It has become my duty, it shall therefore be my endeavor, to acquit myself in the course of this trial with decency and candour; reflecting that however interesting the question may be, the object of our enquiry is simply that of truth, and that this enquiry is to be conducted by the wisdom of the laws and constitution.
In support of this accusation against the prisoners at the bar, it is incumbent on the crown, to ascertain the following things; viz. The identity of the persons charged; the fact of killing; and the circumstances attending and aggravating that fact.
To this end, I shall immediately produce to you such evidence, from the testimony of credible witnesses, as may be sufficient to sustain the several indictments, and when I have gone through the examination, make such remarks upon it, as may be most concise and pertinent to the present issue.
The following witnesses were then sworn and examined in their order.
Q. Do you know either of the prisoners at the bar?
A. I do.
Q. Which of them?
A. McCauley. I knew the man before, but did not know his name; I was afterwards told it was McCauley. On the evening of the 5th of March last, I heard the bells ring, and went into King-street.
Q. How many people do you imagine might be there when you got into King-street.
A. There might be twenty or thirty I believe. I saw the Sentry at the Custom House door swinging his gun and bayonet; there were a parcel of men and boys round him. I desired them to come away, and not molest the Sentry; Some of them came off and went to the middle of the street; I then left them and went up towards the Main-Guard. Immediately a party came down, I walked by the side of them till I came to the Sentry box at the Custom House. McCauley then got to the right of the Sentry-box; he was then loading his piece.
Q. How near was you to McCauley at that time?
A. I was about four feet off: McCauley said “Damn you, stand off,” and pushed his bayonet at me: I did so: Immediately I heard the report of a gun.
Q. How near did McCauley stand to the corner?
A. He came round the Sentry-box, and stood close to it on the right.
Q. When the party came down, were there many people there?
A. I cannot really say, I think about fifty or sixty.
Q. What did they say to the people as they came down?
A. I did not hear them say any thing.
Q. Did you hear any orders given?
A. I did not, either to load or fire.
Q. Did you hear the Sentry cry out for help to the Main-Guard?
A. No; I was not there half a minute.
Q. Whereabouts did you stand?
A. I stood inside the gutter, close by the box.
Q. Whereabouts did the Sentry box stand?
A. Three or four feet from the corner of the Custom-House.
Q. How many guns did you hear?
A. Five or six, I cannot swear to any particular number.
Q. Did you look round after you heard the guns fired? A. Yes.
Q. Did you see McCauley then? A. Yes.
Q. Was he loading again?
A. I think he was; it so lies in my mind; (I cannot absolutely swear it.)
Q. Do you know whether any soldiers stood on the right of McCauley?
A. I took so particular notice of McCauley, that I minded no other object.
Q. Do you know any of the prisoners at the bar?
A. I particularly saw that tall man, (pointing to Warren, one of the prisoners.) Next day after the firing in K. street, I saw more of them whom I cannot particularly swear to now.
Q. Did you see the soldiers before the justices on examination?
A. Yes.
Q. Did you then observe you had seen any of them the night before in King street?
A. I was well persuaded next day in my own mind, that I saw that tall one; but a few days after, I saw another man belonging to the same regiment, so very like him, that I doubt whither I am not mistaken with regard to him.
Q. Were there any other of the party you knew? A. I am well satisfied I saw the Corporal7 there.
Q. Did you see White there? A. I do not remember.
Q. What was the situation of the Corporal?
A. He was the corner man at the left of the party.
Q. Did you see either of the persons, you think you know, discharge their guns?
A. Yes; the man I take to be the tall man, discharged his piece as it was upon a level.
Q. Did you see the Corporal discharge his gun? A. I did not.
Q. Where did you stand? A. I was behind them in the circle.
Q. What part of the circle did the tall man stand in?
A. He stood next but one to the Corporal. The tall man whoever he was, was the man I saw discharge his piece.
Q. Was any thing thrown at the soldiers?
A. Yes, there were many things thrown, what they were I cannot say.
Q. How did the Soldiers stand?
A. They stood with their pieces before them to defend themselves; and as soon as they had placed themselves, a party, about twelve in number, with sticks in their hands, who stood in the middle of the street, gave three cheers, and immediately surrounded the soldiers, and struck upon their guns with their sticks, and passed along the front of the soldiers, towards Royal-exchange-lane, striking the soldiers guns as they passed; numbers were continually coming down the street.
Q. Did you see any person take hold of any of the guns or bayonets of any of the party? A. I do not remember I did.
Q. Did you hear any particular words from this party of twelve?
A. I heard no particular words, there was such a noise I could not distinguish any words.
Q. Did they load their guns before the people surrounded them, or after? A. They were loading at the time.
Q. How near did they go to the soldiers?
A. Very near them, almost close to their guns.
Q. Were the people who struck the guns, there at the firing?
A. I cannot say whether they had gone away or not.
Q. Did you apprehend the soldiers in danger, from any thing you saw? A. I did not, indeed.
Q. Where did you stand at the firing?
A. I kept my place. At the time of the firing of the first gun, I heard a clattering noise on the right like one gun striking against another, and immediately the first gun was fired from the right.
Q. At the time of firing that gun was any assault made on the person that fired? A. I did not see the person that fired.
Q.. You said, you saw several blows struck upon the guns, I should like you would make it more plain.
A. I saw the people near me on the left, strike the soldiers guns, daring them to fire, and called them cowardly rascals, for bringing arms against naked men; bid them lay aside their guns, and they were their men.
Q. Did you see any person fall? A. Yes, I saw Gray fall.
Q. Where was that? A. He fell in the middle of the street.
Q. Was the place where he fell nearly opposite to the tall man you talk of?
A. No; the gun that killed him, must have been nearer to the center. When the soldiers on the left fired, there were fewer people in the street.
Q. Did you see a molatto among those persons who surrounded the soldiers? A. I did not observe.
Q. Did they seem to be sailors or town’s men?
A. They were dressed some of them in the habits of sailors.
Q. Did you hear any bell ring? A. Yes.
Q. What bell?
A. I believe all the bells in town were ringing, I heard the Old South first.
Q. Did the clattering or blows on the guns to the right, immediately before the first gun went off, appear very violent?
A. Yes, very violent.
Q. Where was the second gun fired from?
A. I took it to be the person next to him who fired the first, or very near him.
Q. Betwixt the first and second gun, did you see any assault given to the soldiers? A. No.
Q. When the firing came along to the left, were there many people in the street? A. There were very few people then in the street.
Q. What place did those few stand in? A. Right over the way.
Q. Was you looking at the person who fired the last gun?
A. Yes, I saw him aim at a lad that was running down the middle of the street, and kept the motion of his gun after him a considerable time, and then fired.
Q. Did the lad fall?
A. He did not, I kept my eye on him a considerable time.
Q. This soldier was towards the left you say, was he quite to the left? A. Not quite, but towards it.
Q. Was the lad among the party that struck at the soldiers?
A. He was passing the street, I cannot say where he came from.
Q. After the firing of the first gun did the people disperse?
A. They drew away down Royal exchange-lane, but others were coming continually down the street; but when the first person was killed, they seemed all to draw off.
Q. Did the people that came down the street, endeavour to join the party that was striking the soldiers, or did they come because of the ringing of the bells?
A. I believe they came because the bells were ringing, for they came from all parts of the town, and did not appear to me to join in the assault.
Q. How many guns were fired? A. I believe seven.
Q. How many soldiers were of the party?
A. I did not count them, but I believe twelve.
Q. Do you know either of the prisoners?
A. Yes, I know Warren, and saw him with the party in King-street on the evening of the 5th of March last.
Q. Do you know any of the rest?
A. I know them all by sight, but that is the only person I can swear to.
Q. The night of the firing, did you see the Corporal there?
A. Not so as to know him; but Warren I can swear to.
Q. Did you see him discharge his piece?
A. No; I went away when the first gun fired.
Q. Where did the person stand, who fired the first gun?
A. He stood towards the left of the party.
Q. Whereabout did you stand yourself?
A. Opposite the soldiers, by Mr. Warden’s shop the barber.
Q. Did you see any body fall?
A. I saw none fall. I went off when the first gun was fired, and came back again and heard there were three men killed.
Q. Do you mean the first gun was fired from your left, or from the left of the party?
A. From the left of the party; there were two stood to the left of Warren.
Q. What appeared to be the conduct of the soldiers before the firing?
A. When I got there, they were swinging there guns backward and forward, and several among the people, said, fire, damn you fire; but I think it was Capt. Preston that gave the word to fire.
Q. How many people were there?
A. I took them to be about fifty.
Q. What had they in their hands?
A. They had nothing in their hands.
Q. Did you see any ice or snow-balls thrown at the soldiers?
A. I saw several snow balls and pieces of ice thrown, and heard a rattling against the barrels of their guns, whether it was sticks, or what, I do not know.
Q. Where did the snow-balls seem to come from?
A. From the people right before the party.
Q. Did the snow balls seem to be thrown in anger?
A. I do not know; I saw the soldiers pushing at the people before any snow balls were thrown.
Q. Were the people pressing on?
A. They were very near, within reach of their bayonets.
Q. Did you see any oyster-shells thrown? A. No.
Q. Was the snow trodden down, or melted away by the Custom-House? A. No, the street was all covered like a cake.
2. The pleas of the other defendants, being identical, 6–7, are omitted. The arraignment actually took place 7 September. 198.
3.
“Kilroy and Hartigan remanded, on account of the absence of Joseph Brown a Witness against them. Court agreed that the Province Law respecting Challenges should take place, and that the Prisoners may challenge with Cause and have the Jurors examined [on said] Law. Afterwards before the Cause opened, it appearing there was no probability of said Jos. Brown returning into the Province Kilroy and Hartigan were set at the Bar again and agreed to the Challenges made by the other Prisoners and consented to the Jury sworn, who were sworn over again.” Paine Massacre Notes.
“upon motion from either party in any cause . . . to put any juror to answer upon oath (whether returned as afore said or as talisman) whether he . . . hath directly or indirectly given his opinion, or is sensible of any prejudice, in the cause. And if it shall then appear to said court that such juror does not stand indifferent in said cause, he shall be set a side from the trial of that cause, and another appointed in his stead.” Extended 20 March 1767, id. at 920, and 15 Nov. 1770, 5 86.
4. “[W]hen a jury are all sworn, the officer bids the crier number them, for which the word in law-french is ’countez;’ but we now hear it pronounced in very good English, ’count these.’” 4 *334 note.
5. The petit jurors’ oath: “You shall well and truly try and true deliverance make between our sovereign lord . . . the king . . ., and the prisoners at the bar, whom you shall have in charge according to the evidence. So help you God.” “An Act for the Establishing of Forms of Oaths,” 25 Nov. 1692, 1 78, 79.
6. Josiah Quincy, like Blowers, was not a barrister, each man having been admitted only as an attorney in the Superior Court of Judicature in Aug. 1768. Min. Bk. 79. Blowers was called as a barrister in Sept. 1772, ibid., but Quincy deliberately never took “the Long Robe.” 317.
7. Wemms.