Paine’s Minutes of the Preliminary Argument1
24 October 1770
Q[uestion] of the <
Jury> Prisoner having a Right by Statute of W. to a Copy of the Panel.
Court divided on the question whether the Prisoner not [. . .] a list of Jury be a Cause of Chall[enge]. To two of em viz. Jona. Day and Edmund Billings Council on both sides agreed they should not be sworn and no Exception taken.2
Q[uestion] of putting several Homicides into one Indictment.
Q[uestion] of the Rights of the Crown to Challenge.
Object[ion] to previous threats.
@ Trial per Pais 585.3
1. Paine Massacre Notes. See Descriptive List of Sources and Documents.
“Capt. Preston in his Trial challenged peremptorily nineteen Jurors viz. 15 of the Country’s Jury, and four talis men; he also challenged two other of the Country’s Jurors but by agreement of the Council for the Crown they were not considered as peremptory Challenges by reason that said Preston had not the names of the said two Jurors before he was brot to Trial. N.B. several Talis men were return’d by the Sherif who were excused by the Court for reasons by them offer’d viz. Henry Bromfield Esqr. he having a Commission for the peace, and William Boardman, he having been on the Jury of Inquest and Procter he declaring himself under Biass.” Document found in Min. Bk. 91, SCJ Suffolk, Aug. 1770 (adjournment to 23 Oct. 1770), facing entry of Preston’s indictment; now in box marked “Loose Papers Found in Minute Books,” printed in Noble, “Papers Relating to Boston Massacre,” 5 Col. Soc. Mass., Pubns. description begins Colonial Society of Massachusetts, Publications. description ends 58, 67 (1902).
There was no statute governing jury challenges. “An Act Setting Forth General Priviledges,” 13 Oct. 1692, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 40, had guaranteed the accused “his reasonable challenges”; but the Privy Council disallowed the Act, 22 Aug. 1695. In England, the accused in any case but treason could challenge twenty jurors peremptorily. See 1 Stephen, History of Criminal Law description begins J. Fitzjames Stephen, History of the Criminal Law of England, London, 1883; 3 vols. description ends 302.
Hutchinson’s note on this phase of the trial is instructive:
“In general, in criminal trials, the Courts, in Massachusetts bay, had observed the rules of the Common Law. In trials for treason, a peremptory challenge of 35, and, in murder, of 20, had always been allowed, and a challenge of any number besides, for cause. The Juries were regulated by the Province Law, and the practice of the Courts had been, to order about 30 persons, sometimes a few more, to be returned to serve the whole term, and out of these two Juries were formed at the beginning of the Court, and the super numeraries were dismissed. In a case of treason, of which none ever hapned in my memory, a greater number than the whole might be challenged, and in murder, all but four in which cases, ordinarily, a new Venire must have gone to the Towns in the County, as the Court thought proper; but this has not often been urged, and generally, talesmen had been called by the Sheriff.” C. B. Mayo, ed., “Additions to Hutchinson’s History” description begins C. B. Mayo, ed., “Additions to Hutchinson’s History,” 59 Amer.Antiq. Soc., Procs. 11–74 (1950). description ends 32.
3. Duncombe, Trials Per Pais description begins Giles Duncombe, Trials per Pais: or Law concerning Juries by Nisi Prius, etc., London, 1665. description ends 585, treats of returns. The significance is not readily apparent. Page 85, however, discusses the tales, the bystanders added to the panel to supply a deficiency. See Black, Law Dictionary description begins Henry C. Black, Black’s Law Dictionary, 4th edn., St. Paul, 1951. description ends . Paine uses the sign @ here as elsewhere to indicate a refuting argument.