MB: Chamberlain Coll. See Descriptive List of Sources and Documents. Why, in the original, the names of Hartegan and Killroy were underlined is not clear.

Adams Massacre Minutes, MHi MS 1. See Descriptive List of Sources and Documents.

An Act for Regulating of Trials in Cases of Treason and Misprision of Treason, 7 Will. 3, c. 3 (1695). “[I]t was enacted, in 1695, that persons indicted for high treason or misprision of treason should have a copy of the indictment five (afterwards extended to ten) days before trial [and of the jury panel two days before trial], and be allowed to have counsel and witnesses upon oath; and that the treason should be proved by two witnesses, either both to one overt act, or each to one of two overt acts of the same kind of treason. In 1708 [7 Anne, c. 21, §11 (1708): An Act for Improving the Union of the Two Kingdoms] the prisoner was also allowed to have a list of the witnesses and of the jury ten days before his trial. In 1702 [1 Anne, St. 2, c. 9, §3 (1702)] it was enacted that in cases of treason and felony the prisoner's witnesses should be sworn, as well as the witnesses for the Crown.” 1 Stephen, History of Criminal Law 416–417.

The precise citations to Foster, Crown Cases , and Hawkins, Pleas of the Crown , have not been located.

Foster, Crown Cases 228–229 discusses the prisoner's right to a copy of the indictment and the jury panel.

Foster, Crown Cases 299:

“A Prisoner whose Case may be brought within the Letter of the Act [2 Jac. 1, c. 8 (1604): An Act to Take Away the Benefit of Clergy for Some Kind of Manslaughter—the so-called “Statute of Stabbing”] commonly is Arraigned upon two Indictments, one at Common-Law for Murder, the other upon the Statute. And if it cometh out in Evidence that the Fact was either Justifiable or amounted barely to Manslaughter at Common-Law, it hath been rarely known that such Person hath been convicted of Manslaughter.”

Foster, Crown Cases 272:

“And even in the Case of a sudden Affray where no Felony is committed or Wound given, if a Person interposing to part the Combatants, giving Notice to them of his friendly Intention, should be Assaulted by them or either of them, and in the Struggle should happen to Kill, this, I take it, will be Justifiable Homicide, And on the other Hand, if the Party so interposing, giving such Notice, should be Killed by either of the Combatants, it will be Murder in the Person so Killing. For it is the Duty of every Man to interpose in such Cases for preserving the Publick Peace and preventing Mischief.”

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. 58, 67 (1902).

There was no statute governing jury challenges. “An Act Setting Forth General Priviledges,” 13 Oct. 1692, 1 A&R 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 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” 32.

Duncombe, Trials Per Pais 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 . Paine uses the sign @ here as elsewhere to indicate a refuting argument.

In an unidentified hand. PRO, C.O. 5:759, p. 711–720. See Descriptive List of Sources and Documents.

The correction is in another hand.

Paine Massacre Notes:

“Ed. Garrick. I left Work 8 o Clock and went down Royal Exchange Lane Saw Men with Sticks. I came back with Broders. I then went Round the Town House, I went to the Custom House. Irving came in, we went out, I stood at Exchange Corner, I said to 3 men that Capt. Goldsmith was mean and  owed my Prentice. Centinel said he was a Gentleman. I said none in that Regiment. I said I was not ashamed to shew my face. He struck me with his Gun under my Ear, I cry'd, *Soldiers came up and chase me and Ward with Naked Sword no Guns and Struck it into the Shutter, I went to Murrays Barracks. People gave 3 Cheers. Some had Sticks. Went into King Street Saw the Soldiers go from Guard House to Custom House. I went home.

“*Centinel call'd Main Guard come down, I saw no Snow Balls. Not 12 people in the street when this quarrel began.

“* Soldiers that came from Main Guard chased every Body they Saw Called them Yankees.”

Paine Massacre Notes:

“Col. Marshal. Spent Evning at Col. Jacksons. 5 past 9, all quiet as midnight. Centinel in peace went home heard cry of Murder, great noise, listned saw no person in Street but Centinel, Saw a Body of Soldiers march from Main Guard with Cutlasses, and Bayonets crying damn 'em where are they, let 'em come. No person in the Street. I went in. Another Body out of Quaker Lane of Soldiers crying damn 'em where are they, Fire Fire, by Jesus &c. I went in. Bells ringing People collected, Boys came out and cryd Fire, I saw nothing to give the Centinel any uneasiness. I stood within 30 feet of him. I Saw the Party come down from Main Guard. I took it to be the relieving Party. I heard the first Gun, after then a 2d. Time enough for an Officer to bid 'em Recover. Near a 100 collected before firing. I saw nothing done to disturb 'em. The Party march'd off with as much leisure as they came down.

“Question by Prisoner. Were they Bayonets or Cutlasses? did you.”

Paine Massacre Notes: “Thos. Hubbard. I pass'd the Street by the Custom House. Past 9 o Clock. Centinel all quiet.”

Paine Massacre Notes:

“Ebenezer Hinkley. Just after 9 o Clock heard the Cry of Fire. I saw the Party come out of the Guard House. A Capt. Cry'd out of the Window fire upon 'em damn 'em. I followed em down before Custom House door. Capt. Preston was out and commanded 'em. They drew up and charged their Bayonets. Montgomery pushed at the people advancing. In 2 or 3 minutes a Boy threw a small Stick over hand and hit Montgomery on Breast. Then I heard the word fire in 1/4 minute he fired. I saw some peices of Snow as big as an Egg thrown. 3 or 4 thrown at the same time of pushing on the other End of the file, before 1st Gun fired. The body of People about a Rod off. People said Damn 'em they durst not fire dont be afraid. No threats, people thin before 'em. I was a Rod from Capt. Preston. Did not hear him give Order to fire, 1/2 minute from 1st Gun to 2d. same to 3d. The others quicker. I saw no people stricking the Guns or Bayonets nor pelting 'em. I saw Preston between people and Soldiers. I did not see him when 1st firing, 1st I saw him he was before the Soldiers.”

Paine Massacre Notes:

“Peter Cunningham. On Cry of fire, I went down Kingstreet and saw Capt. Preston stand by Main Guard and cry turn out Main the Guard I went down and saw Centinel pushing at the Boys, 30 or 40 at that time. The party drew up. In a few minutes Prisoner said prime and load. I was in 4 foot of him. He stood before them. They push'd as before. The prisoner put the Guns in an upright posture. Then he was out of sight. Then they fired. The Person who gave order for firing priming and load was dress'd in Red, and Sash, no Arms. I was within 5 feet of him. The Soldiers all had Caps. I knew Capt. Preston by Sight very well.”

Paine Massacre Notes:

“Alexr. Crookshanks. After 9, hearing a noise by Custom House I stop'd 2 Boys quarrelling with Centinel. 12 or 14 men before Centry Box. Boys Swore at Centinel and threw Snow Balls, no body else did any thing. He call'd out Guards. Some Soldiers came down, with Sticks tongs. They struck me. After I had told him I was going home, one said you had better go home for there'll be the Devil to pay in Bloodshed. They were armed with Swords Sticks and tongs. The bells began to ring as I got near old South.

“Centinel said he would maintain his Ground, and would run them thro if they molested.”

A surtout was an overcoat; “cloth-colour . . . has been conjectured to be drab or self-colour.” OED .

Paine Massacre Notes:

“Wm. Wyat. I heard the Bell ring as I thought for fire. I ask'd where it was. By Cornhill people . I went to Town House. Some hallowing, and crying where are they. I went south of Town House and see an Officer by door. 8 or 10 Soldiers came out Prisoner walk'd at the left with a Stick. Some body took him by Arm and said for God's Sake Capt. take care mind what you are about and keep the Soldiers in Order. They drew up. He bid 'em face about and then load. The Officer in Rear, and said divide and keep your Self Clear. They turn'd round and I thought I was in danger and I spoke to em that I was not going to molest 'em.

“100 People, Shouting, they called fire, I then heard some Body say fire and took it to be Prisoner. Some Body called him Capt. Preston. No notice toke of it, then again. Then the Prisoner behind Soldiers I think he had a Cloath Coulored Surtot on. Stampt and said damn your blood fire let the consequence be what it will. They fired and people scattered. The last man on left wing started, and he primed again and fired after the People. But few people in King Street when Party went down. 10 minutes from order to load to Order to fire. No abuse offered but Shouting huzzaing.

“I saw no body speak to Prisoner while there.

“After firing one of Soldiers said yes dead enough if he again I'll be damn'd.

“I thought I heard a Stroke as on a Gun with a Stick, just before firing.

“1st Gun by 2d man on left wing.

“After firing Capt. Preston knockd up Guns and reprimanded em for firing. It was the same Person who gave Orders to fire.”

An apparent copyist's error for “Cox.”

Battalion officers of the 29th Regiment wore a single epaulette, on the right shoulder. Everard, History of the 29th Regiment 58–59.

Paine Massacre Notes:

“John Cox. I heard Bells ring as for fire when I got to Mr. Kents the Guns went off. I went down and saw 3 dead. I said to Party it was a Cowardly trick to kill men within Reach of Bayonets, and had nothing in their hands. The People who seemed to stop this evening in the street were quarrelling with Soldiers and officer in about a minute said damn your Bloods fire again let the Consequence be what it will, and the Prisoner is the officer. No firing followed. I said dont kill us who are carrying off the Dead. I was within 4 or 5 feet of the Soldiers.

“No body before Soldiers just those who were carrying away the Dead.

“I heard no Threats.”

Paine Massacre Notes:

“Theodore Bliss. I was in house when bells rung for fire. I went out, got to Town House and saw em at Custom house and saw Capt. Preston. I asked him if they were loaded he said yes. I asked if with Ball he made no Answer. They would not fire without any Orders. Snow Balls came at Soldier and hit him near the Head. A Stick thrown three feet long 1 inch thick and hit him. Stagger'd the Soldier, then he fired then I heard the Word fire but I cant say from whom. Capt. Preston faced then from me. A young man ask'd him. The Grenadier in the right fired first.

“I did not See any Body aim a blow at Prisoner.

“No body closd in till after first Gun. I did not hear Prisoner give order to fire till after first Gun. He was in the front of the men when first Gun fired. After first Gun fired, I rather think Prisoner did not say fire for I was so near him. I aimed at Grenadier who first fired. No blows on other Soldiers till 3 or 4 Guns fired.

“I saw Prisoner talk with no body but My Brother, nor any Body Strike him on the Arm.

“Bell rung 1/4 hour before 1st firing.

“Prisoner was length of Gun before Soldiers.

“After 1st firing Prisoner went to left.”

Washington's future chief of artillery and secretary of war was at this time a bookseller in Cornhill, Boston. DAB .

Paine Massacre Notes:

“Henry Knox. I saw Centry loading at Custom house door. I saw some Boys about 20 very imprudent damning him and daring him to fire. I told him if he fired he would dye. They said he snapt. 30 or 40 Boys and people. I saw nothing thrown.

“I saw a Number soldiers coming from main Guard, Arms Sholdiers thus in MS . I took em to be Grenadiers, 1/2 way from Town House to Custom House a Corporal at head. I took Prisoner by Coat and desired him to take Care of Soldiers for if they fired he died. Said he was sensible of it. I heard Soldiers damning Swaring crying make way.

“I did not hear Centry Cry for Guard but said damn their Bloods if they touch me I will fire.

“I took Prisoner to have Command of Party. Soldiers drove thro' people pushing Boys. No abuse offered. Centry Scared but in no Danger. I was at Bottom of Town House, and heard the words among the People fire damn your Blood fire.

“Corporal, I think had Surtot on. I had none.”

Paine Massacre Notes:

“Benja. Burdick. I saw a Number Soldiers stand at Custom House, I ask'd a Soldier are you loaded. I asked another do you intend to fire he said yes by Eternal God and push'd at me. I turn'd to a tall Man. The Word fire and tall Man fell. Called Dr. Gardiner.

“They presented again Officer put the Guns up and said Stop firing.

“I was stop'd by a Soldier from coming up. I said I wanted to see a face I should sware to, Prisoner said in a Melancholly tone perhaps you may. When I ask'd 2d Soldier I saw an Officer behind. Word fire came from behind, as a Word of Command. No Officer before 'em. Dress'd in Regimentals.

“Firing began at Corner.

“At this time but few Boys before the Soldiers chiefly drove into the Alley I had a Highland Broad Sword in my hand which I drew when the Soldier push'd at me. About 50 people running as near Stones House as could to get into the Alley.

“Thought I saw Something thrown over the heads.”

Paine Massacre Notes:

“Robt. Fullerton. I ran down, people gave 3 Cheers at Murrays Barracks. I saw Soldiers coming down, and begin to strike round. People came into middle of Street, not above 50. I heard fire then fire again, I was about 12 ft. from Soldiers opposite Custom House. People chiefly by Stones. Few People before em. They said they durst not fire.”

Waistcoats of officers in the 29th Regiment were plain, without embroidery or lace; hats were laced with silver. Everard, History of the 29th Regiment 59.

Paine Massacre Notes:

“Danl. Calf. I heard ring for fire. I ran into King Street. I heard the Guns Rattle. Officer gave Order to fire, and then again. I look'd the officer up in face and saw his mouth go. Officer stood to right, Red Coat, plain yellow Westcoat laced Hat. I know Prisoner to be the man.

“I did not see T. Bliss talking there, nor Samuel Bliss, I only run up and did not mind. Some People at his Right Hand. I ran when he gave the word of Command. I saw no Snow Balls nor Sticks thrown. Officer faced the Street.”

That is, the witness had identified Preston during the grand jury proceedings in March.

Paine Massacre Notes:

“Robt. Goddard. I was at home 9 Clock Bells rang for fire. I went into King Street. Some Body said a man was stabb'd. Soldiers came down, pushing damning. Officer told em to place themselves in half moon. He spoke to Boys about 50 go home. They threw Snow Balls. Officer said fire.

“Some Body struck Capt. on left Arm, he said damn your blood fire. They fired again. He ordered them to load.

“Going home Soldiers from Greens Barracks damn'd me to stand out of Way or they would run me through.

“Officer stood with a Sword drawn.

“No Guns went off till word given. Space between first Gun and 2d. Then 8 or 9.

“I saw no Body talking with Prisoner.

“If any Body had been talking to Prisoner I should have seen. I could almost touch him. Pitted with Small Pox I did not see him Capt. behind the Soldiers.

“I heard Some Body call the officer Capt. Preston.

“I saw no loading after they got down before firing.”

Paine Massacre Notes:

“Obadiah Whiston. Heard Bells ring as for fire. I went to King Street. People gathered, Boy crying. I came to Main Guard, Officer said Damn you why dont you turn out. I followed em, I was behind Crowd in Goal.

“I heard fire a few minutes before the firing.”

Paine Massacre Notes:

“Dimon Morton. Cry of fire. A few Boys before Centinal, he loaded, Boys said fire, fire and be damn'd.

“Party with an officer, drawn up. Officer gave Word to load. I see the motion to load, I drew off. Officer when he ordered 'em to load stood before 'em. I thought saw some thing thrown, I knew officer Capt. Preston. A Surtot on, I knew his face and Voice, by marching the Guard. Did not hear the Word fire, 20 feet off.

“I'm sure the Prisoner is the man that gave orders to load. Ive seen him in Common.”

Paine Massacre Notes:

“Nathl. Fosdick. Bells ring for fire. I went down King Street saw Soldiers come out of Guard House fixing Bayonets. I went 30 yds. from Centry. Some thing pushed me. I saw they were Soldiers. They said damn your Blood Stand out of our Way. I see Officer. I did not know his Name. They went to Centry Box. I desired there might be no disturbance for the officer of Day would settle it.

“I saw people talking with Officer, and he then went between Soldiers. I heard the Word fire I think it was the officer. I ask'd the Officer why he let the Soldiers fire but had no answer. They fired. I recieved two pushes with Bayonet which pricked me.

“No Opposition in their coming down.

“When the word fire was given he stept in between 4 and 5 man from right and faced about and stept back.

“I heard no orders for loading and I was so near I must have heard it.

“I was about 8 ft. from Officer.

“I Saw no Snow Balls. Calling fire.

“Nor any Body put hand on Capt.

“Officer in Regimental Dress, no Surtot, Sword in his hand. I stood to their right.

“First man that fired went to push and his feet slipt.

“I saw no Stick Strike the Soldier that fired first. I am satisfyed no Blows as much as that I saw Officer from my Scituation.”

Jonathan Williams Austin (1751–1779), who had been clerking for JA since 31 July 1769.

Paine Massacre Notes:

“Austin. I know McCauley one of the Indicted. I saw him there, prime and load, but not fire. I stept out and they fired. I turn'd round and he was loading again. He struck at me with a Bayonet.

“I heard no Order to load. I confined my self to one Object.

“1st Grenadier was facing Whipping Post.”

Paine Massacre Notes:

“Edd. Gambleton Langford. I know two of the Party. I told the Centinel not to fire for it was only a parcel of rude Boys. He called out Guard. No assault shouts jeering. Party came down. Some body asked if loaded. Form yourselves, word given fire.

“I saw no Snow Balls nor Sticks thrown. 1/2 minute between 1 and 2 Gun.”

Paine Massacre Notes: “Francis Archibald junr. I know Math. Kilroy was there, he told me since he fired nothing but powder.

“No Snow Balls, nor Sticks thrown.”

Paine Massacre Notes:

“Isaac Peirce. I heard Lt. Governours Voice who spoke to the people. He went to Soldiers, front Rank Bayonets fixed. I called to Capt. Preston and said there was the Comander in Chief. He asked Prisoner if he did not know he could not fire without Civil Officer. He said I was obliged to, to save my Centery. I said then you have murdered 3 or 4 men to Save your Centry.

“I was near Lt. Gov. Capt. opposite to him. Mr. Belnap there.”

Paine Massacre Notes: “Jos. Belknap. I came up with Lt. Gov. Soldiers drawn up, Guns pointed, Bayonets fixed. Lt. Gov. said dont you know you could do nothing without a Civil Magistrate. Preston answered I did it to save my men.”

Paine Massacre Notes: “Jona. Mason. Standing at East end of Town House with Lieutenant Governor. He said you are sensible you had no right to fire without Civil officer. Preston said he was insulted or something like that.”

Paine Massacre Notes. See Descriptive List of Sources and Documents.

3 Coke, Institutes *47, discusses murder, and is paraphrased in the footnote next following.

4 Blackstone, Commentaries *195: “Murder is . . . 'when a person, of sound memory and discretion, unlawfully killeth any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.”

1 Hawkins, Pleas of the Crown 80, c. 31, §18:

“[A]ny formed Design of doing Mischief may be called Malice; and therefore . . . not such killing only as proceeds from premeditated Hatred or Revenge against the Person killed, but also in many other Cases, such as is accompanied with those Circumstances that shew the Heart to be perversly wicked, is adjudged to be of Malice prepense, and consequently Murder.”

1 Hale, Pleas of the Crown 451, discusses malice.

Foster, Crown Cases 261, §3, distinguishes murder, manslaughter, and accidental death.

3 Coke, Institutes *62: “Malice prepensed. That is, voluntary and of set purpose, though it be done upon a sudden occasion: for if it be voluntary, the law implieth malice.”

Reg. v. Mawgridge, Kelyng 119, 127, 84 Eng. Rep. 1107, 1111 (Q.B. 1707). Quotation marks supplied.

In an unidentified hand. PRO, C.O. 5:759, p. 720–736. See Descriptive List of Sources and Documents.

At the corresponding point in the Paine Massacre Notes, preceding Paine's minutes of the defense evidence, appears the single word “Adams,” suggesting that it was JA himself who opened for the prisoner, and perhaps even examined the witnesses.

Paine Massacre Notes:

“Wm. Jackson. I went to house after Store Shut up. I went to my mothers where Capt. Preston lodged. Fire Cry'd. I run, left Prisoner. Inhabitants of Town told me they were fighting. I wish'd to God they might see it out. Corporal with 5 or 6 Soldiers came and told Prisoner the Town People were abusing the Centry. Prisoner put on his Sword and went out.”

James Basset, lieutenant in the 29th Regiment, who was officer of the guard on 5 March 1770, was 20 years old. Everard, History of the 29th Regiment 63, 72. See Rex v. Wemms, text at note 4 107 .

Paine Massacre Notes:

“Edwd. Hill. I was in a house by Mr. Deblois, 3 or 4 Soldiers of 29 Regiment. Fire cry'd, I run out. They said no fire but Soldiers killing Town's People. South Side of Town House. I told Guard Some said they would go and take Centry off Posts. They Sent a Corporal and men for Lt. Basset.

“The Party of Inhabitants said they would go and attack main Guard. Some said better not. Better take Centry off his Posts. This Parry was coming from Murrays Barracks. Capt. Preston was engaged with Some Body when the first Bullet was fired. Some Body Soldier Attempted to fire at a Boy. Prisoner took him by the Arm and bid him not fire, no more Guns fired.

“I was going to Post office heard Guns fired and turnd about heard two more Guns then I went down.”

Paine Massacre Notes:

“Benja Davis. 10 minutes after nine coming from No. people Engaged by Justice Quincy. Thus in MS. I could not see if Soldiers or Towns people, Some body clap'd me on sholder and asked me if I would go and help fight the Soldiers. I said no, he bid me note the Clock, he was down to Conduit and Cry'd fire. Presently the Bells rung. Then 7 or 8 Soldiers run thro Alley by Elliots with Something in hands. I went into King Street. No disturbance, people in Knots 5 or 6 together, at Jacksons Corner. Hear huzzaing in King Street, Went by Price. Saw 20 or 30 by Custom House and huzzaing. People hallowed to him fire, you dare not fire. A young officer walking before Guard House. 2 young men came without Hatts, and said to the Guard they must send Relief to the Centry for he heard some say they would murder him. Soon I heard Some Body from within Say out Guards. There came out I think 7. I saw no Officer. They marchd down to Centry Box and people closing near them, I think near 100. 6 or 7 min. before firing 1st Gun. Various Sorts of Noises.

“6 seconds between 1st Gun and 2d. 4 seconds between 2 and 3d then the rest fired quick.”

Paine Massacre Notes:

“Jos. Edwards. Heard bells ring, cry of fire, got to Brick Meeting house, they said affray was over. I went below King street. Saw 4 or 5. They grew to 12 Boys insulting Centry. They promised me to go away. I thought they were going till Party came from Main Guard. I thought that stopt. Order to prime and load. I see 'em prime and load. I went away. I did not see Capt. Preston.

“I thought the Order to load came from Man on left hand. He had a Red Coat on dress'd in Regimentals, had a Muskett. I see him prime and load. Had Tare i.e. tear on Arm. I Stood to East of Steps, Officer below me. I saw no Body I took to be a Capt.”

The officers of the 29th wore silver gorgets and crimson silk sashes. Everard, History of the 29th Regiment 59.

Paine Massacre Notes:

“John Frost. Bells ringing for fire. Said they had drove Soldiers into Barracks. About 50 in Dock Square. Huzza for King Street. Barbers boy said of Centry this is the Son of Bitch that struck me. Centry went on the Steps and loaded his Gun, I took it he wanted to get in. They said damn you fire. Party came down. Capt. with them had Sash and Gorget and Sword in his hand. I went away. Heard Guns go off. The Capt. 3d man from Right. I did not hear Word to prime and load.”

That is, facing west, toward the Town House.

Paine Massacre Notes:

“Benja. Leigh. Bells ring for fire. Came to Dock Square, said Inhabitants fighting, they huzzad for King street. Barber Boy said there the Son of Bitch that Struck me. People cry'd kill him, kill him knock him down. 30 in Dock Square, about 50 or 60 before Centry at this time. No clubs, but some had Walking Sticks. Centry Struck Custom House door with but of Gun. Then loaded, and charg'd Bayonet, and called out turn out Main Guard. People cry'd fire fire damn you durst not fire. Then they fell off a little. The Party came down. I saw Capt. Preston after Soldiers ranged. A man went up to Capt. and said are you going to fire. He said no Sir on my Honor if I can avoid it. I did not hear desire People to stand of f nor people hallow. Capt. Preston stood at left of whole, rather behind 'em. He had Regimental Sash, Sword in hand, hat. I then went away, saw no Snow Balls.”

Paine Massacre Notes:

“Richard Palmes. At Coffee House. Bells rang as for fire. I pass'd by Centry. No Body with him. Said Soldiers were abusing Towns People. I passd by Justice Quincy's thro' Alley. I Saw 3–4 Soldiers at Gate with Guns at Gate of Barracks. 2 Officers. I asked Officers I was Surprised they let 'em be out at that time. They answerd do you mean to teach us our duty. I said no but only to remind 'em of it. Officer said you see Soldiers gone into Barracks why dont you go home. James Lamb and I said let us go home and they went off, 20 or 30, crying home home. I came thro Little Alley, I went thro Alley back with Mr. Hickling. I ask'd if he was going home, I saw Mr. Pool Spear, I went as far as Town Pump. Some Body said there was a Noise in King Street, I turn'd to go into King Street. He said better not, afraid Something would happen. I went to make peace. I went saw Capt. Preston at head of 7. 8. Soldiers by Custom House drawn up Bayonet breast high. I found T. Bliss talking with Prisoner. T. Bliss ask'd him why dont you fire. Prisoner made some answer, T. Bliss said G od  damn you why dont you fire. Then I stept between Prisoner and T. Bliss in front of Soldiers. I put my left Hand on Prisoner's Right Sholdier in a familiar manner to Speak to him. J. Hickling was looking over my Sholder, I askd Prisoner are your Soldiers Guns loaded. He said yes with Powder and Ball, I said I hope you dont intend Soldiers shall fire on Inhabitants. His Answer was by no means. That Instant I saw a peice of Snow or Ice not large Strike the Gun of Grenadier Montgomery at Prisoner's right Hand, who was only Soldier on his Right Hand. As soon as that he stept one foot back and fired. I then had my hand on Capt. Preston's Sholdier. After this firing I heard the Word fire. (At firing 1st Gun Prisoner stood half way between Breach and Muzzle of the Gun fired.) Who gave the word fire I dont know, whether from before behind or one side of me. On firing the 1st Gun I took my hand off, I did not think who gave the Word fire. It was Spoke Loud. Gun going off frightd me and scorched my Surtot on Shoulder and Prisoner might have given the Word I not have heard it. After Word fire in 6 or 7 seconds. The next Grenadier to Prisoner's left fired and then it went through the Party. Prisoner stood still till the 2d and 3d Guns fired after 2d Gun fired I saw 1st Grenadier trying to prick me. Prisoner then by me with his hand on head of Sword not drawn. I struck him with a Stick on left Arm and dropt it and his Gun fell. I had not before that Struck at any Person. Then I turnd. I struck at 1st I could hit which was Capt. Preston. Guns then all fired. His face turn'd down Street towards Soldiers. My right foot slipt, and my Blow fell short. When I first heard word fire Prisoner's face Back to Soldiers and face towards me. Before I recovered, the 1st Grenadier recovered and was making at me to push. I threw my Stick in his face which made him jump back and I jump'd toward lane, and he push'd at me again and fell. Prisoner said nothing since his answer to me. On firing People run. I had on a Cloath Colored Surtot.

“1/2 a minute from I was there.

“60 or 70 people at time of firing. No disturbance. I saw no Stick.”

In March 1771, Palmes published his own version of his testimony, Boston Gazette, 25 March 1771, p. 2, col. 1:

“Court. Please to relate to the Court what you know concerning the 5th of March.

“A. Between the hours of nine and ten o'clock, &c. as per Narrative, p. 38. No. 53. This refers to Palmes' deposition, which the editors have set out at the end of this note.

“Q. Did you hear Mr. Bliss say any thing to Captain Preston? A. I did.

“Q. Inform the Court what he said to him.

“A. He said to Capt. Preston, 'Why don't you fire?' Capt. Preston made him some answer, but what it was, I cannot say. Then Mr. Bliss returned, God damn you, why don't you fire? Upon this, I stept in between him and Capt. Preston, as related above that is, in the deposition.

“Q. At the time the soldiers fired, did you see a number of things thrown at them?

“A. I saw nothing thrown, or touch them, excepting that which struck Montgomery. Here the printers of the Gazette added the following note: 'Mr. Palmes and Mr. John Hickling both say, that the Piece of ice or frozen snow, which struck Montgomery fell perpendicular—probably from the roof of the Custom-House.'

“Q. Did you situate yourself before Capt. Preston, in order that you might be out of danger, in case they fired?

“A. I did not apprehend myself in any danger.

“Q. Did you hear Captain Preston give the word Fire?

“A. I have told your Honors, that after the first gun was fired, I heard the word, fire, but who gave it, I know not.

“Q. Do you think it was possible Capt. Preston should give the word fire, and you not be certain he gave it? A. I think it was.”

Palmes' deposition, reprinted from A Short Narrative of the Horrid Massacre in Boston (Boston, 1770), where it appears at pages 38–40 of the Depositions, is as follows:

“I Richard Palmes of Boston, of lawful age, testify and say, that between the hours of nine and ten o'clock of the 5th instant, I heard one of the bells ring, which I supposed was occasioned by fire, and enquiring where the fire was, was answered that the soldiers were abusing the inhabitants; I asked where, was first answered at Murray's barracks, I went there and spoke to some officers that were standing at the door, I told them I was surprized they suffered the soldiers to go out of the barrack after eight o'clock; I was answered by one of the officers pray do you mean to teach us our duty; I answered I did not, only to remind them of it; one of them said you see that the soldiers are all in their barracks, and why do not you go to your homes; Mr. James Lamb and I said, Gentlemen let us go home, and were answered by some, home, home; accordingly I asked Mr. William Hickling if he was going home, he said he was, I walked with him as far as the post-office, upon my stopping to talk with two or three people, Mr. Hickling left me; I then saw Mr. Pool Spear going towards the town-house, he asked me if I was going home, I told him I was; I asked him where he was going that way, he said he was going to his brother David's. But when I got to the town-pump, we were told there was a rumpus at the custom-house door; Mr. Spear said to me you had better not go, I told him I would go and try to make peace; I immediately went there and saw Capt. Preston at the head of six or eight soldiers in a circular form, with guns breast high and bayonets fixed; the said Captain stood almost to the end of their guns. I went immediately to Capt. Preston (as soon as Mr. Bliss had left him) and asked him if their guns were loaded, his answer was they are loaded with powder and ball; I then said to him I hope you do not intend they shall fire upon the inhabitants; his reply was, by no means. When I was asking him these questions my left hand was on his right shoulder; Mr. John Hickling had that instant taken his hand off my shoulder, and stept to my left, then instantly I saw a piece of snow or ice fall among the soldiers, on which the soldier at the officer's right hand stept back and discharged his gun, at the space of some seconds the soldier at his left fired next, and the others one after the other. After the first gun was fired, I heard the word Fire, but who said it I know not; after the first gun was fired the said officer had full time to forbid the other soldiers not to fire, but I did not hear him speak to them at all; then turning myself to the left I saw one man dead, distant about six feet; I having a stick in my hand made a stroke at the soldier who fired, and struck the gun out of his hand. I then made a stroke at the officer, my right foot slipt, that brought me on my knee, the blow falling short, he says I hit his arm; when I was recovering myself from the fall I saw the soldier that fired the first gun endeavoring to push me through with his bayonet, on which I threw my stick at his head, the soldier starting back, gave me opportunity to jump from him into exchange-lane, or I must been inevitably run thro' my body. I looked back and saw three persons laying on the ground, and perceiving a soldier stepping round the corner as I thought to shoot me, I ran down Exchange lane, and so up the next into King-street, and followed Mr. Gridley with several other persons with the body of Capt. Morton's apprentice up to the prison house, and saw he had a ball shot through his breast; at my return I found that the officer and soldiers were gone to the main guard. To my best observation there were not seventy people in King street at the time of their firing, and them very scattering, but in a few minutes after the firing there were upwards of a thousand; finding the soldiers were gone I went up to the main-guard and saw there the soldiers were formed into three divisions, the front division in the posture of platoon firing, and I expected they would fire. Hearing that his Honor the Lieutenant Governor was going to the Council-chamber, I went there, his Honor looking out of the door desired the people to hear him speak; he desired them to go home and he would enquire into the affair in the morning, and that the law should take its course, and said, I will live and die by the law. A gentleman desired his Honor to order the soldiers to their barracks, he answered it was not in his power, and that he had no command over the troops and that it lay with Col. Dalrymple and not with him, but that he would send for him, which after some time he did; upon that a gentleman desired his Honor to look out of the window facing the main-guard, to see the position the soldiers were in, ready to fire on the inhabitants, which he did after a good deal of perswasion, and called for Col. Carr and desired him to order the troops to their barracks in the same order they were in; accordingly they were ordered to shoulder their guns, and were marched off by some officers, and further saith not.

Not in Paine Massacre Notes.

Paine Massacre Notes:

“Mathew Murray. Bells ring. I went out and ran and got handle of Broom. They said Soldiers by Murrays Barracks. Barbers Boy said Soldiers knoct me down with but of Gun. I saw Centry on Custom House door landing. People said fire damn you fire, they were at little distance.

“I went Royal Exchange alley Prisoner and Party came down. I see 'em load.

“I see a man come to Capt. Preston and said he had best withdraw his Men for no Body was going to do any hurt. I stood 2 or 3 minutes, by Grenadier. A Stick or piece of Ice came from Stones and struck Gren adier. in Side and immediately, he fired, and I went off. I heard no body bid him fire. 2 yd. of Prisoner nearer the Soldier, looking towards Capt. Preston who Stood talking with Man when Gun went off. He was in front. 2 or 3 Snow Balls before firing thrown at Soldiers. Prisoner had Sword in hand, I dont know if drawn. I dont know if Surtot. or Regimental, I think Surtot. I knew him by Sight before. I saw him in fore noon When going on Guard. Many People, great talking. Did not hear fire. Seem'd in Anger.

“A Woman crowded in by me and talked by the Soldier on right hand.

“If Prisoner had given Order. load I should have heard it.”

James Murray (1713–1781), the owner of Murray's Barracks, was also a justice of the peace. Whitmore, Mass. Civil List 131. The Riot Act was copied from the English original, 1 Geo. 1, Stat. 2, c. 5 (1714). “It makes it felony for twelve rioters to continue together for an hour after the reading of a proclamation by a magistrate ordering them to disperse. It then requires the magistrates to seize and apprehend all persons so continuing together, and it provides that if any of them happen to be killed, maimed or hurt in dispersing, seizing, or apprehending them, the magistrates and those who act under their orders shall be held guiltless.” F. W. Maitland, The Constitutional History of England 489 (Cambridge, 1908). See Act of 14 Feb. 1751, 3 A&R 544–546. If Murray, or some other authorized person, had succeeded in “reading the Riot Act” early enough, the actions of Captain Preston and the soldiers would have been much easier to justify.

Paine Massacre Notes:

“Andrew Servant to Oliver Wendell. Cry of fire. Bells rang. I met one of my Acquaintance bottom of School House Lane. Told me Soldiers were fighting and killing every Body. that one had struck him on Arm with Cutlass and most cut it off. and I had better not go down. I said a good Club was as good as a Cutlass, and he had better get one and go back and see if he could not cut too. He turnd back and went with me and see 2 Centrys at M ain G uard . Some Boys throwing Snow Balls at them who seemed enraged. Swearing at People. A few people talking with them and some laughing at them and Calling them Lobsters. My Acquaintance said they were trying to get them out of Murry Barracks.

“People from that way turnd down King Street in haste. Heard 3 cheers in King Street. We went down by Whipping Post. Some by us threw Snow Balls and Cinders of Seacoal at people. Some returned by Custom House. Most of 'em had Sticks, a small Huddle round Centry Box.

“Boys hallowed they had got his Gun away and now they'd have him. I heard 3 cheers round Custom House. I went by Main Guard to Town House Steps to see if Main Guard would turn out. I see 7 or 8 men turn out and officer with a lace Hat and Sword in hand Red Coat Silver on Shoulder.

“Officer said something to 'em and they march'd. He lead them he did not go behind em. They seem'd in great Rage.

“I stood by Pecks Corner Party got down and planted themselves. People by Custom House gave 3 cheers. Boys by Pecks Corner kept pelting Snow Ball. that way. I jump'd off Post and run over to see what Soldiers were about. As I got a glimpse of Soldiers I heard people hallow here comes Murray and the Riot Act. They turn'd about and began to pelt a Man that run thro P udding Lane. I try'd to get again to Soldiers in front. I got to Royal Exchange lane and heard a Grenadier next Corner say damn ye stand back. They that were before were trying to get back. A person went to crowd between me and the Bayonet and Grenadier made a push at him. The Lad said damn ye blood back'd Lobster are ye going to Stab me. Grenadier said By G od will 1. Turning round I saw the Officer. Two talking with him, and others jumping on their Backs to hear what was saying. Some Body that I took to be the officer said Stand off. Some Body said come away let the Guard alone. Some Body said in great hurry damn him he is going to fire. They began to shout and 3 cheers and cry damn him he durst not fire, fire and be dam'd, and began to throw Snow Balls and things at Soldiers, I saw the Soldiers dodging their Heads as they were pushing. I saw Several hit their Hatts. I was crowding to get as near officer as I could. People struck Guns with Sticks, and hit Grenadier's Fingers. A person stood near behind me with a long stick and Trowsers Struck at Gren adier's Gun who was pushing as I thought endeavoring to kill the person and to be turning off. Then saw Some people coming from Jacksons who huzzad and said dam em they durst not fire. We ant afraid of them. Knock em over. One of em pretty short man. He push'd his way thro people and came between me and Grenadier close to officer. He had Stick in his hand which he swing strike at officer people still talking the officer. Officer dodged and try'd to fend off to i.e. the blow with his Arm. Then he began to thump on Gren adier' s. Gun who was next to officer about 1 1/2 yd. off. I saw the Grenadier attempt to stick him, after he struck on his Gun. He started and put by Bayonets and struck the Gren adier on head with Club Stick. A Small Cord wood Stick. Just then I turnd to look tother Way to look at Officer. There seemed a bustle. The Man kept hold of Bayonet. I took it to be the Molatto man. There seem'd to be a rush behind me. Crowding me as they rush'd in. The Genral cry was by me kill em kill em knock em over. On this the Grenadier stept back and relieved himself from him that had hold of his Bayonet, and began Lay on with his Gun. People then give a jump back very quick and made great noise, or Schreeching, and some huzzaing and saying fire dam him durst not fire. I heard a Voice distinguished from rest Say fire, and that instant a Gun went off. Came from before me. I took it to be a man 2 or 3 below me from left. Officers back then before me. Voice came from below soldier Capt. I did not think it to be him. I took it to be a Soldier. Officer made a Corner. On Gun going off Grenadier I think Kilroy who stood on Capt. left Swung his Gun and it went off. I looked round and saw the Molatto fall, 1st Gun was down lower and sounded like a Pistol.

“5 or 6 seconds from my 1st glimpse to 2d Gun.

“Next I remember I was in Dehon Entry.”

Paine Massacre Notes: “Oliver Wendell. Andrew my Servant, his Character is good for Truth Integrity and understanding. Can Read and write.”

Not in Paine Massacre Notes.

Paine Massacre Notes: “John Coffin. T. Bliss at my home a few days after the firing. He did not think Capt. gave order to fire. Preston said no by no means. They could not fire without my leave.”

Not in Paine Massacre Notes.

Paine Massacre Notes:

“Jack Servant of Dr. Lloyd. 19 yrs. in Country all time with Dr. Lloyd. Cant read.

“Heard Bells ring, met Andrew, I got to Whipping Post, Saw men and Soldiers by Custom House. I went among. Snow Ball hit me. I went to Stones Door. I heard voice fire. I stood back by Barbers Shop. Presently fired. I see a man drop.”

Paine Massacre Notes:

“Danl. Cornwall. Bells ring. I run to Town House. Man said a Rascal of Soldier had Cut a Boy on Arm. I ask'd where is the damn'd Rascall gone. Heard 3 cheers, and then run to alley by Murrays Barracks. Then 3 cheers. I went to Town House and heard 3 cheers by Custom House and one advising em to go off. I believe they would if Soldiers had not gone off come down. I saw 'em throw Snow Balls and Oyster shells at Centry by Custom House door. Some for killing him, taking him burning Centry Box, but did neither. I stood in middle of King Street. I saw Soldiers by Centry Box and Capt. Preston stood before 2 soldiers. I was in Crowd and did not see them down. I saw a young Man talking with Capt. Preston. I could not see Capt. say any Thing. He seem'd concern'd. Presently I heard a Stick or Something hard come against one of Soldiers Guns. Immediately I heard Gun go off but from what Soldier I could not tell. Not 1/2 minute. I think I was then within 2 yds. of Capt. He was before them. I don't think he was then talking with any Body. I was looking at him, I think I should have heard him if he had given word to fire. I heard a voice Say damn you why do you fire dont fire. I think it was Capt. Preston. I stood at head of Royal Exchange Lane.”

Paine Massacre Notes:

“Wm. Sawyer. Of Bolton. Bells rung. I went to Town House. Cry of fire kept up. Soldiers before Guard House fixing Bayonets. I passed by and see people by Custom House. Soldiers challenged people to move out of Way. They faced about. People closed. I got to head of Royal Exchange Lane. They stood pushing to keep off Inhabitants. They came as close on them as they could. Inhabitants challenged crying fire, huzza. Snow Balls. I think they hit Soldiers. A club hit one of their Guns and they fired. The Corner man I think said fire and fired. As soon as he fired he said again damn you fire. I was 10 feet off. I think it was not the man whose Gun was struck with a Club. In 6 seconds next Gun fired and so thro. I was in a fright. When 1st Gun fired I cant say I was looking on Soldier who fired 1st.

“I think it was he, it look'd reasonable for he was the 1st who fired. I did not see Capt. What other witnesses say do not make me doubt. I was on a line with 'em.”

The following testimony appears only in the Paine Massacre Notes:

“Joseph Williams. I know nothing about firing.”

Paine Massacre Notes:

“Jane Whitehouse. I living near head of Royal Exchange Lane. I ask'd Centry what noise was. People coming from Town House said there is the Centry there is the bloody hacked Son of a Bitch let us go kill him. They keep coming along throw Oyster Shells chunks of Wood and Snow Balls at Centry, and beat him from Box to Custom House Steps. Then I saw a Party coming down from Main Guard. I did not hear him call and an Officer with them which proved to be Capt. Preston. He bid em halt. He bid his Centry recover his Arms—fall in and march up to G uard H ouse . The Soldiers offered to move forward but could not for the Riot for they called out damn you Sons of Bitches fire you cant kill us all. I stept a little advancing and heard a Gentleman ask Capt. if he was going to fire, he said no Sir by no means by no means. Then Centry push'd me back and bid me go home or I should he killed. I stopt at end of Custom House where Centry put me. A man walked between C ustom H ouse and Soldiers and encouraged the Men to fire. Capt. Preston was to left of Soldiers when he said by no means, near in a line about 3 yd. from Lane. The man that encouraged the men to fire clap'd one Man on back and said fire by God I'll stand by you. Dressed in dark coulored Cloaths. Did not look like an Officer. Upon that the man fired directly, it was not Capt. Preston, he did not give word to fire. I was in 1 1/2 yd. of him. I must have heard if he gave orders to fire, for my attention was on him by People saying Their is their Officer dam Son of Bitch let us go kill him. I see one Man take a Stick from under Coat and throw at a Soldier and knock'd him down, a thick Chunk of Wood, he fell across the Gutter and his firelock fell out of his hand, the right hand Soldier, before Gun were fired. Between first Gun and 2d did not hear word fire nor see any Body speak with Capt.”

A statute specified, as to “Tryals in Civil Causes,” that “no person serving as a justice, juror, witness or otherwise, shall be required to use any other ceremony in takeing of their respective oaths than lifting up the hand, as has been accustomed.” Act of 12 June 1702, I A&R 464, 465. Apparently the same rule applied in criminal causes.

Paine Massacre Notes:

“Newtown Prince. From in West Indies. Church member, free Negro.

“I heard Bells ring, people said something better than fire. I got as far as Town House. Number of People by West Door of Town House. I see Soldiers come out of Guard House and run down to Custom House Bayonets fixed. Co. Company by Town House said let us tack attack Main Guard or Centry down to Custom House. Others said no dont let us, let us Attack the Centry gone down into King Street.

“They went down King Street. I went after em. Soldiers round Custom House 2 deep. Number in front of Soldiers calling 'em Lobsters, dam you why dont you fire. Capt. Preston came out of Rear and stood in front. I knew him and that he was Capt. of Guard this day. I see him talk with some people, some had Clubbs, and struck the Guns with sticks. Capt. Preston was to the Right 1 1/2 yds. from Corner. I thought the Guns would go off accidentally. I stepd out of the way and then Guns went off. I heard no Body give word to fire only general Cry of Fire.”

Paine Massacre Notes:

“James Waddel. Sworn on Bible. People said it was fire. I followed down to King Street. Standing at Main Guard door I saw party of Soldiers. They went to Centry who fell in with them. They drawed up in a Circle. First thing I saw was a Soldier knock'd down and his Gun flew out of his hand. They threw Sticks and every thing else thrown at Soldiers. When knocked down he gets his firelock up and fires directly. I saw a person like a Gentleman walking behind the Soldiers, dress'd in blue or black Velvet or plush mounted, trimmed with Gold or Silver Lace. Bag wigg on. He offered his hand on a Soldiers back and said he would stand by them while he had a drop of Blood in his Body and said Fire. The first Gun went off before and immediately after his so speaking they fired. I was between Capt. Preston and End of a lane 2 yds. from him. I am certain and sure Capt. Preston did not give the word fire. He looked shock'd and lifted up his hand on their firing. A person speaking with Capt. at firing of 1st Gun. People 12 or 14 yds. from Capt. Preston at 1st firing. Capt. Preston at End of their left.”

Paine Massacre Notes:

“Joseph Helyer. Bells rang. People at Conduit. People said a fight, dangerous to pass up. Street was still, people at Custom House, Soldier on Custom House Steps in threatning posture, heard Voice from Small people fire if you dare. People of more years told Boys not to molest Centry. It seem'd to Subside. I was about going off for I went to prevent mischief: a Gentleman came up Royal Exchange lane, was opposed by a Soldier, the point of Bayonet touch'd his Hat. I think it was Hurd the Engraver. Nathaniel Hurd (1730–1777); subject of a Copley portrait. DAB . About 1/2 way between Custom House and Town House I met 8 Soldiers coming down. I saw a Commissioned officer with 'em. Heard Some Body addressing the officer in this Manner you wont fire upon them you have nothing to do but to keep em off. No answer. I thought at 1st sight it was one of the Men of Custom House and that he had been to call em. They went to Centry Box, confused Noise. I went to Custom House found Soldiers drawn up charged Bayonets. As I pass'd the last man on left a Gun was fired on the right about 20 seconds another 10 seconds another 3 seconds or 4 seconds, 3 or 4 Gun 20 seconds more another, last Gun fired on an Angle. No Body before him he seem'd to fire at People on other Side of the Way. No Orders given to fire. The Soldiers seem'd to act pure Nature i.e. no Body coming towards 'em; I thought no order because they fired Scattering. I saw no Contest that could Occasion such an Action. After they were dead I could hardly believe it, because there was a Commissioned Officer. I heard noise like locking firelocks. Capt. stept before them and said dont fire on Inhabitants. I was nearly connected with one that was killed vizt. Maverick. Firing began at Right, last Gun, last man but one on left. No Crowding nor any thing that could occasion it. Confusion of Tempers. Watch Box just above Gutter, about Corner. People Covered Soldiers, but clear in the front.”

Following this in the Paine Massacre Notes appears the notation: “Sargt. Jos. Keys. Not sworn.” The Sergeant's regiment is not known.

14th Regiment. Army List 1770 68. Gifford (1740?–1813) was later to become a noted Unitarian writer; his son was Admiral James Gifford (1768–1853). DNB .

Paine Massacre Notes:

“Jas. Gifford. A short Conversation with Prisoner after the affair. At Guard House I found Prisoner who said Centry attack'd by Mob. He carried down a party. Had rec eive d a blow on his Arm, that they had fired. He gave 'em no Orders and they must take the Consequence.

“I have known him 3 yrs. mild Temper'd, prudent, discreet. Officers never give Order to fire from charged Bayonet. They would all have fired together, or most of them.”

The “leading fur exporter of the province,” and grandfather of Thomas Handasyd Perkins, who became “the first of Boston merchants, both in fortune and in public spirit.” S. E. Morison, The Maritime History of Massachusetts 49 (Boston, 1921). T. H. Perkins remembered viewing the bodies of the men killed in King Street. See T. G. Cary, Memoir of Thomas Handasyd Perkins 7 (Boston, 1856).

Paine Massacre Notes: “Thos. H. Peck. Lt. Governor in Council Chamber. Capt. Preston said to me it was none of my doings the Soldiers fired without my Orders. I might have been shot as well as the Men, his Character good as a Gentleman and a Soldier.”

Paine Massacre Notes: “Har. Gray junr. I saw Centry Surrounded, noise and confusion. I think I saw a Snow Ball. They hallowed let em fire he has but one Gun. I went to Paynes.” “Payne” was Edward Paine, “a Merchant of the Town” who was shortly thereafter “shot in his arm and the bone splintered as he stood at his door,” across King Street from the Custom House. Hutchinson to Gage, 6 March 1770, Adams, New Light 14.

Paine Massacre Notes:

“John Gallispe. Going up to South End. I saw people coming down with Swords and Sticks 7 oClock.

“We were told Bell rung for fire. Landlord said it was not.

“I went down. 100 people just above Guard.”

The following testimony appears only in the Paine Massacre Notes:

“Capt.  Brabazon OHara  14th Regiment.  Army List 1770 68. Commanding Officer appoints the place of Centry. One placed at Custom House. Officer of day cant move the Centry from place. Centry placed at Custom House for its safety.”

“[J]ust before ten o'clock, the bells of the town were rung as is usual in case of fire, but I soon found there was another cause and one upon another came running to my house to inform me that, unless I went out immediately, the whole Town would be in arms and the most bloody scene would follow that had ever been known in America. I went immediately abroad, and met vast crowds of People running for their arms and prevailed on them to turn back and follow me to King street, promising them justice should be done.” Hutchinson to Gage, 6 March 1770, Adams, New Light 14.

See text at note 4 134 below.

Adams Massacre Minutes. MHi MS 1. See Descriptive List of Sources and Documents.

2 Hale, Pleas of the Crown 290: “It is always safer to err in acquitting rather than punishing, on the side of mercy than on the side of justice.” Black, Law Dictionary .

2 Hale, Pleas of the Crown 305: “It is safer to err on the side of leniency.”

1 Hale, Pleas of the Crown 509.

1 Hale, Pleas of the Crown 300: “What you doubt of, do not do.” Black, Law Dictionary .

2 Hale, Pleas of the Crown 289.

Fortescue, De Laudibus Legum Anglix 59.

Algernon Sidney, Discourses Concerning Government 288 (London, 2d edn., 1704).

1 Hawkins, Pleas of the Crown 82–83: “Neither can he be thought guilty of a greater Crime who . . . happens to kill another in a Contention for the Wall; or in the Defence of his Person from an unlawful Arrest. . . . But it is certain, That it can amount to no more than Manslaughter.”

Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114 (Q.B. 1707):

“Having . . . shewn what is not a provocation sufficient to alleviate the act of killing, so as to reduce it to be but a bare homicide, I will now secondly give some particular Rules, such as are supported by Authority and general consent, and shew what are always allowed to be sufficient provocations. First, If one Man upon angry words shall make an Assault upon another, either by pulling him by the Nose, or filliping upon the Fore-head, and he that is so assaulted shall draw his Sword, and immediately run the other through, that is but Manslaughter; for the Peace is broken by the Person killed, and with an indignity to him that received the Assault. Besides, he that was so affronted might reasonably apprehend, that he that treated him in that manner might have some further design upon him.”

Foster, Crown Cases 295: “The Rule laid down in the first Section [that words, however provocative, do not justify killing] will not hold in Cases where from Words or Actions of Reproach or Contempt, or indeed upon any other sudden Provocation, the Parties come to Blows, no undue Advantage being sought or taken on either Side.”

Foster, Crown Cases 316: “[W]e all know that Words of Reproach, how grating and offensive soever, are in the Eye of the Law no Provocation in the Case of voluntary Homicide.”

Foster, Crown Cases 296: “And in the tumult of the Passions, in which meer Instinct Self-Preservation, hath no inconsiderable Share, the Voice of Reason is not heard. And therefore the Law in Condescension to the Infirmities of Flesh and Blood hath extenuated the Offence.”

Anon. 12 Co. Rep. 87, 77 Eng. Rep. 1364 (K.B. 1612): A and B quarrel; C, B's friend, strikes and kills A. “[T]his was held Manslaughter, for this, that it happened upon a sudden Motion in Revenge of his Friend.”

1 Hawkins, Pleas of the Crown 133–134:

“[A]n Assault is an Attempt, or Offer, with Force and Violence, to do a corporal Hurt to another; as by striking at him with, or without, a Weapon; or presenting a Gun at him, at such a Distance to which the Gun will carry, or pointing a Pitchfork at him, standing within the Reach of it; or by holding up one's Fist at him, or by any other such like Act done in an angry threatening Manner.”

1 Hale, Pleas of the Crown 437, discusses accessories-by-presence in murder.

1 Hale, Pleas of the Crown 440: “If divers come with one assent to do mischief, (male faire) as to kill, rob or beat, and one doth it, they are all principals in the felony.”

1 Hale, pleas of the Crown 444:

“3. Again, altho if many come upon an unlawful design, and one of the company kill one of the adverse party in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of an adverse party without any particular abetment of the rest to this fact of homicide, they are not all guilty, that are of the company, but only those, that gave the stroke, or actually abeted him to do it.”

1 Hale, Pleas of the Crown 445: “But in the case of a riotous assembly to rob, or steal deer, or do any unlawful act of violence, there the offense of one is the offense of all the company.”

1 Hale, Pleas of the Crown 439: “The lord Dacre and divers others came to steal deer in the park of one Pelham, Rayden one of the company kild the keeper in the park, the lord Dacre and the rest of the company being in other parts of the park, it was ruled, that it was murder in them all, and they died for it.”

1 Hale, Pleas of the Crown 440: “If many be present, and one only gives the stroke, whereof the party dies, they are all principal, if they came for that purpose.”

1 Hale, Pleas of the Crown 440–441, discusses the case of the fracas at Drayton Basset.

1 Hawkins, Pleas of the Crown 156–157:

“[W]here-ever more than three Persons use Force and Violence, in the Execution of any Design whatever wherein the Law does not allow the Use of such Force, all who are concerned therein are Rioters: But in some Cases wherein the Law authorizes Force, it is not only lawful, but also commendable to make use of it; as for a Sheriff or Constable, or perhaps even for a private Person, to assemble a competent Number of People in order with Force to suppress Rebels, or Enemies, or Rioters, and afterwards with such Force actually to suppress them. . . . As to . . . How far the Intention with which such Persons assemble together must be unlawful; it seems agreed, That if a Number of Persons being met together at a Fair, or Market, or Churchale, or any other lawful and innocent Occasion, happen on a sudden Quarrel to fall together by the Ears, they are not guilty of a Riot, but of a sudden Affray only, of which none are guilty but those who actually engage in it. . . . [A]lso it seems to be certain, That if a Person seeing others actually engaged in a Riot, do join himself unto them and assist them therein, he is as much a Rioter as if he had at first assembled with them for the same Purpose, inasmuch as he has no Pretence that he came innocently into the Company, but appears to have joined himself unto them with an Intention to second them in the Execution of their unlawful Enterprize.”

Compare 3 Blackstone, Commentaries *4: “Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.” See also Foster, Crown Cases 273, quoted in note 25 111 below.

Foster, Crown Cases 273:

“In the Case of Justifiable Self-Defense the injured Party may repel Force with Force in Defence of his Person, Habitation, or Property, against one who manifestly intendeth and endeavoureth with Violence or Surprize to commit a known Felony upon either. In these Cases He is not obliged to retreat, but may pursue his Adversary 'till He findeth himself out of Danger, and if in a Conflict between them He happeneth to Kill, such Killing is Justifiable. The Right of Self-Defence in these Cases is founded in the Law of Nature, and is not nor can be superseded by any Law of Society.”

Reg. v. Mawgridge, Kelyng 119, 128–129, 84 Eng. Rep. 1107, mi (Q.B. 1707): “It is not reasonable for any Man that is dangerously assaulted, and when he perceives his Life in danger from his Adversary, but to have Liberty for the security of his own Life, to pursue him that maliciously assaulted him; for he that hath manifested that he hath Malice against another is not fit to he trusted with a dangerous Weapon in his Hand.”

Foster, Crown Cases 274:

“Where a known Felony is attempted upon the Person, be it to Rob or Murder, here the Party assaulted may repel Force with Force, and even his Servant then attendant on Him, or any Other Person present may interpose for preventing Mischief; and if Death ensueth, the Party so interposing will be Justified. In this Case Nature and Social duty cooperate.”

1 Hawkins, Pleas of the Crown 71:

“If those who are engaged in a Riot . . . stand in their Defence, and continue the Force in Opposition to the Command of a Justice of Peace, &c. or resist such Justice endeavouring to arrest them, the Killing of them may be justified; and so perhaps may the killing of dangerous Rioters by any private Persons, who cannot otherwise suppress them, or defend themselves from them, inasmuch as every private Person seems to be authorized by the Law to arm himself for the Purposes aforesaid.”

1 Hawkins, Pleas of the Crown 72: “[I]t seems that a private Person, and a fortiori, an Officer of Justice, who happens unavoidably to kill another in en-deavouring to defend himself from, or suppress dangerous Rioters, may justify the Fact, inasmuch as he only does his Duty in Aid of the publick Justice.”

1 Hawkins, Pleas of the Crown 72: “And I can see no Reason why a Person, who without Provocation is assaulted by another in any Place whatsoever, in such a Manner as plainly shews an Intent to murder him, as by discharging a Pistol, or pushing at him with a drawn Sword, &c. may not justify killing such an Assailant.”

1 Hawkins, Pleas of the Crown 75:

“And not only he who on an Assault retreats to a Wall or some such Streight, beyond which he can go no farther, before he kills the other, is judged by the Law to act upon unavoidable Necessity: But also he who being assaulted in such a Manner, and such a Place, that he cannot go back without manifestly indangering his Life, kills the other without retreating at all.”

See note 26 112 above.

4 Blackstone, Commentaries *185:

“The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment; or as far as the fierceness of the assault will permit him: for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm; and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice, as well as of the municipal law.”

Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1707), cites Protector v. Buckner, Style 467, 82 Eng. Rep. 867 (U.B. 1655).

Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1707): “Thirdly, If a Man perceives another by force to be injuriously treated, pressed, and restrained of his Liberty, though the Person abused doth not complain, or call for Aid or Assistance; and others out of Compassion shall come to his Rescue, and shall kill any of those that shall so restrain him, that is Manslaughter.”

Rex v. Hugget, Kelyng 59, 62, 84 Eng. Rep. 1082, 1083 (Newgate Gaol Delivery 1660): Held: Murder, but “it being in Case of Life, we did not think it prudent to give him judgment of Death, but admitted him to his Clergy.”

Reg. v. Tooley, 2 Ld. Raym. 1296, 92 Eng. Rep. 349, Holt 485, 90 Eng. Rep. 1167, sub nom. The Case of the Reforming Constables (Q.B. 1710). Held: Those who in a fray kill a constable's aid, the constable having taken a prisoner without warrant, are guilty of manslaughter only.

Reg. v. Mawgridge, Holt 484, 90 Eng. Rep. 1167 (Q.B. 1707). See note 35 121 above.

Foster, Crown Cases 261: “If an Action unlawful in itself be done Deliberately and with Intention of Mischief or great Bodily Harm to Particulars, or of Mischief indiscriminately, fall it where it May, and Death ensue Against or Beside the Original Intention of the Party, it will be Murder.”

Foster, Crown Cases 262: “[I]f the Blow intended against A and lighting on B arose from a sudden Transport of Passion which in Case A had Died by it would have reduced the Offence to Manslaughter, the Fact will admit of the same Alleviation if B should happen to Fall by it.”

1 Hale, Pleas of the Crown 442, discusses the guilt of those who kill by mistake.

1 Hawkins, Pleas of the Crown 84, discusses the guilt of those who kill by mistake.

1 Hale, Pleas of the Crown 484, considers “what the offense is, if a man kill another in the necessary saving of the life of a man assaulted by the party slain.”

4 Blackstone, Commentaries *27.

Paine Massacre Notes. See Descriptive List of Sources and Documents.

What follows may be Paine's minute of Sheriff Stephen Greenleaf's testimony, although it appears in the MS directly in the middle of Paine's minute of JA's argument. More significant, it does not appear in either Summary of Evidence, Docs. IV and VI.

This comment (like others which follow) is apparently Paine's.

This is almost certainly Paine's minute of Hutchinson's original testimony. Its position in the MS is inexplicable.

Compare text at note 17 27 above, which suggests that one of the soldiers, rather than Preston, made this remark.

Paine Massacre Notes. See Descriptive List of Sources and Documents. JA's much less complete minutes follow (MHi: MS I):

1 Hawkins, pleas of the Crown 71, c. 28, §14.

See note 29 115 above.

1 Hawkins, Pleas of the Crown 74–75, c. 29, §13:

“Homicide se defendendo . . . seems to be where one, who has no other possible Means of preserving his Life from one who combats with him on a sudden Quarrel, or of defending his Person from one who attempts to beat him, (especially if such Attempt be made upon him in his own House,) kills the Person by whom he is reduced to such an inevitable Necessity.”

1 Hawkins, pleas of the Crown 75, c. 29, §16: “[A]n Officer who kills one that resists him in the Execution of his Office, and even a private Person, that kills one who feloniously assaults him in the Highway, may justify the Fact without ever giving back at all.”

Foster, Crown Cases 292, reports Rex v. Stedman (Old Bailey 1704), which holds that a soldier struck by a woman in the face with an iron patten so that the blood ran, was guilty of no more than manslaughter for subsequently killing her. “The Smart of the Man's Wound, and the Effusion of Blood might possibly keep his Indignation boiling to the Moment of the Fact.”

Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114 (Q.B. 1707). For the full quotation, see note 10 96 above.

1 Hale, Pleas of the Crown 485–486, discusses Harcourt's Case, holding that one who from within a house kills another who is attempting to enter, is guilty of manslaughter (and not entitled to plead self-defence) because his life was not endangered by those on the outside.

Rex v. Cook, Cro. Car. 537, 538, 79 Eng. Rep. 1063 (K.B. 1639): Killing a bailiff who, in attempting to serve process, broke a window and door “was not Murder, but Manslaughter only; For although he killed a Bayliff, yet he killed him not in duly executing Process.”

Adams Massacre Minutes, MHi MS 1. See Descriptive List of Sources and Documents.

Foster, Crown Cases 278, discusses Reg. v. Nailor (unreported) (Old Bailey 1704): Drunken son fights with father; second son floors inebriate, who stabs second son to death. Held (after conference, by all the judges of England): Manslaughter. “For there did not appear to be any Inevitable Necessity so as to Excuse the Killing in this Manner,” because “The Deceased did not appear to aim at the Prisoner's Life, but rather to Chastise Him for his Misbehaviour and Insolence towards his Father.”

Foster, Crown Cases 290: “Words of Reproach, how grievous soever, are not a Provocation sufficient to free the Party Killing from the Guilt of Murder. Nor indecent provoking Actions or Gestures expressive of Contempt or Reproach, without an Assault upon the Person.”

Foster, Crown Cases 291: “And it ought to be remembered, that in all other Cases of Homicide upon slight Provocation, if it may be reasonably collected from the Weapon made use of, or from any other Circumstance, that the Party intended to kill, or to do some great bodily Harm, such Homicide will be Murder.” The author then sets out “a few Instances,” which Paine presumably alluded to.

Foster, Crown Cases 295. See note 11 97 above.

Foster, Crown Cases 298, discusses exceptions to the Statute of Stabbing. See note 5 6 above.

Rex v. Oneby, 2 Ld. Raym. 1485, 92 Eng. Rep. 465 (K.B. 1727).

1 Hawkins, Pleas of the Crown 73, §25: “[I]n all these Cases, there ought to be a Distinction between an Assault in the Highway and an Assault in a Town; for in the first Case it is said, That the Person assaulted may justify killing the other without giving back at all: But that in the second Case, he ought to retreat as faras he can without apparently hazarding his Life, in respect of the Probability of getting Assistance.”

Foster, Crown Cases 296: In every “Case of Homicide upon Provocation how great soever it be, if there is sufficient Time for Passion to subside, and for Reason to interpose, such Homicide will be Murder.”

1 Hale, Pleas of the Crown 485–486, discusses the law of self-defense.

See note 9 144 above.

Paine Massacre Notes. See Descriptive List of Sources and Documents.

The “last argument of the law.”

Adams Massacre Minutes MHi MS 1. See Descriptive List of Sources and Documents.

See note 41 127 above. The position of this paragraph in the MS suggests that Trowbridge may have made these remarks during an earlier phase of the trial.

Foster, Crown Cases 256:

“In Cases of Doubt and real Difficulty it is commonly recommended to the Jury to state Facts and Circumstances in a special Verdict. But where the Law is Clear, the Jury, under the Direction of the Court in Point of Law, Matters of Fact being still left to their Determination, May, and if They are well advised always Will find a general Verdict conformable to such Direction.” Id. at 257: “The Malus Animus, which is to be collected from all Circumstances, and of which, as I before said, the Court and Not the Jury is to judge, is what bringeth the Offence within the Denomination of Wilful Malicious Murder, whatever might be the immediate Motive to it.”

See note 7 151 above.

Probably 13 Car. 2, c. 6 (1661),

“An act declaring the sole right of the militia to be in the King, and for the present ordering and disposing the same.” “[W]ithin all his Majesty's realms and dominions, the sole supream government, command and disposition of the militia and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was the undoubted right of his Majesty, and his royal predecessors.”

One John “Paymount” was a “wigmaker . . . and Inhabitant of Boston.” See Deposition of Private John Timmons, 29th Regiment, 28 July 1770, 12 Gay Transcripts 128, 129, MHi. The “Boy” was Edward Gerrish, the Crown's opening witness.

Illegible name. MS apparently reads “Bardet,” perhaps for “Burdick.”

See No. 59, note 15 131 .

See note 9 144 above. A “ca. sa.” or “capias ad satisfaciendum” was a writ of execution, commanding the sheriff to take the defendant and hold him until satisfaction of the damages. See Black, Law Dictionary .

Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114, Holt 484, 90 Eng. Rep. 1167 (Q.B. 1707). See note 10 96 above.

Here there is an interval of space in JA's MS. Paine Massacre Notes contain the following minutes of Trowbridge's charge:

The Paul Revere engraving of “The Bloody Massacre Perpetrated in King Street,” long on propaganda but short on accuracy, carries at its base some doggerel which concludes: “Should venal C——ts the scandal of the Land / Snatch the relentless Villain from her Hand / Keen Execrations on this Plate inscrib'd / Shall reach a Judge that never can be brib'd.” Clarence S. Brigham, Paul Revere's Engravings Plate 14 (Worcester, 1954).

See No. 59, text at note 48.

Paine Massacre Notes. See Descriptive List of Sources and Documents.

Annual Register for 1770 218–219. See Descriptive List of Sources and Documents.