The Trial of Captain Preston

    731. From Peter Oliver, [27 October 1770]

    732. To Thomas Gage, 28 October 1770

    733. To Sir Francis Bernard, 30 October 1770

    734. To Lord Hillsborough, 30 October 1770

    735. To Lord Hillsborough, 30 October 1770

    736. To John Pownall, 30 October 1770

    The fate of Captain Thomas Preston and the soldiers remained one of Hutchinson’s chief concerns for over eight months following the Massacre. He had done his best to delay the case from coming to trial in order to let popular sentiments cool. Little in the cross-examination of witnesses supported the town’s version of events as printed in A Short Narrative of the Horrid Massacre, and Preston was subsequently acquitted.

    731. From Peter Oliver

    Saturday Night [27 October 1770]1

    Dear Brother, After having had the Pleasure of seeing you to Day, I now give my self the Pleasure of writing to you. I know you think you would have finished the Cause in half the Time & I know it would not have taken half a Day at the Old Bailey; but we must conform to the Times.2 We have not finished yet. Mr. Pain has now to close for the Crown & he was so unfit that to avoid as much as possible all popular Censure we indulged him till Monday morn, for Mr. Auchmuty did not finish till ½ past 4 o’clock.3 We shall finish I believe by one or two o’clock on Monday. Hard upon the jury you say, it is so, but we have allowd them the Liberty of the Court House to morrow with their Keepers. It is best on the whole.

    I have a Quarto Volume of Evidence, which I have pretty minutely taken. I have reviewed it, & it turns out to the dishonour of the Inhabitants & appears quite plain to me that he must be acquitted, that the Person who gave Orders to fire was not the Capt. & indeed if it had been he, it at present appears justifiable. What the Verdict will be Monday I suppose will declare.

    I shall be glad to be released from this Prison, but it will be only an Exchange to others. Farewell Dear Brother Your affectionately

    Peter Oliver

    RC (Massachusetts Archives, SC1/series 45X, 25:413–14b); addressed, “To his Honour Mr. Hutchinson Milton”; docketed, “Letter From Judge Oliver [illegible] (no date).”

    Gilbert DeBlois, c. late 1770s. By John Singleton Copley. Gilbert DeBlois initially supported nonimportation but ran afoul of the committee of inspection, prompting him to change his sympathies. His selection as a juror signaled that Captain Thomas Preston would receive a sympathetic hearing at his trial. Courtesy of the Museum of Fine Arts, Boston

    732. To Thomas Gage

    Boston 28 October 1770

    Sir, I have the honour of your Letter of the 22nd. The mistake in dating my Letter of the 4th must have been occasioned by the haste I made to save the Post.1 Capt. Preston has been upon Trial ever since Wednesday morning. This is the only instance I ever knew of a Capital Trial in a Court of Common Law in this Province where the Court has adjourned before the Trial was finished. I should have apposed & probably prevented it if I could have sat with any pr[o]priety but the other Judges think they may justify it ex necessitate rei.2 The Jury have never seperated which is excessive hard upon them. I expect the trial will be finished to morrow. From what I hear of the Evidence, which is closed, from the best authority it is not possible he should be convicted. The Witnesses on the part of the Crown have varied much from the printed depositions.3 Had those Depositions been truly taken yet the proceeding was so unwarrantable that an attachment ought to have issued against every one concerned in it and I could wish some of them principally concerned had been punished. The favourable appearance is owing to the delay, for had the Trial come on, at any time before, the prejudice would have been stronger than it is at present. I wish I may be able to acquaint you with his acquittal before the post goes out. From the Evidence upon this Trial I cannot but hope the fact will be determined to be, at worst, excusable in the Soldiers. This Trial cannot come on this fortnight.4

    I have parryed the Faction against Government as well as I could, in the Affair of the Castle and I do not expect to hear any thing further from them. Give me leave to ask you to recommend a prudent use of the Ammunition, with which in case of War we are insufficiently stocked. From the arrival of so many men of War and on many publick days there has been a great deal expended in Salutes and, the Gunner tells me, they fire, from the Royal Battery, the 24 pounders & sometimes from Shirleys Battery the 42 pounders whereas we never used any of the Guns for Salutes but the 9 & 12 pounders and pointed them to the Town which answered as well as the 42 pounders which are pointed from it. I have never said any thing to Colo. Dalrymple because I would not appear to disapprove of any part of his Conduct and I must pray that your directions may be given, not as if you had received any Information from hence but meerly from the consideration of the present prospect in Europe, and the necessity of Oeconomy that you would consider this paragraph of my Letter as private. I am, most respectfully Sir Your most humble most Obedient Servant,

    October 29th 5 o’Clock PM. The Judges have just now committed the Cause to the Jury, were unanimous in favour of an acquittal & have adjourned until tomorrow morning 8 o’Clock to Receive the Verdict.

    RC (Clements Library, Thomas Gage Papers); at foot of letter, “His Excellency General Gage.” AC (Massachusetts Archives, SC1/series 45X, 27:43–44); in WSH’s hand. Contemporary printing: Boston Gazette, 5 February 1776; excerpt beginning “I have parryed. . . .”

    733. To Sir Francis Bernard

    Boston 30 October 1770

    (No. 41)

    My Dear Sir, By keeping off Prestons trial in spight of all the menaces of the Faction it has had a favorable issue & he is now at Castle William. If these men had any feeling what pain must it give them to reflect upon the distress they have brought upon this innocent man. Their printed Depositions turn out upon Trial to be some mistakes for want of due examination some misrepresentations and some of their witnesses one Drowne the strongest they did not think fit to produce.1

    Judge Oliver tells me the Evidence is infinitely to the dishonour of the Inhabitants. The Court remarked upon the Irregularity of taking these Depositions & predetermining a Cause but strictly an Attachment should have issued against Bowdoin & all concerned in the Wickedness.2 There never was a knot of fellows who less scrupled any degree of falsity to accomplish their malicious Purposes. I am trying to procure the whole Evidence to send to My Lord Hillsborough.

    I thought Parliament would be sitting and it might possibly be of use for the Ministry to know this Event before it was publick. I therefore desired the Commodore to send one of the Scooners away a few days sooner than he intended she should have gone & if there be anything of Importance done or to be done she may come back immediately to give advice of it.

    I have sent the most extraordinary proceedings of the Council upon the affair of the Secretary to My Lord Hillsborough & I have wrote particularly upon it to Mr. Secretary Pownall.3 People in general are so wrong headed that they think him to blame. He must in some way or other be vindicated and so as that it may be made publick or he will be triumphed over. B______ is enraged because the Deposition has destroyed the Credit of his Narrative which indeed never deserved any credit,4 but its hard this villany should be exposed & the Secretary be left to suffer for it. In haste I conclude Your faithful humble Servant,

    AC (Massachusetts Archives, SC1/series 45X, 27:48).

    734. To Lord Hillsborough

    Boston 30 October 1770.

    (No. 28.)

    By Scooner

    My Lord, It is with the greatest pleasure I acquaint your Lordship that after a long & fair Trial the Jury this morning gave in their Verdict in favour of Captain Preston and he is now safe at Castle William. The behaviour of the People was remarkably decent during the whole Trial and, in general, they are satisfied with his acquittal.

    He is a very great Sufferer in the cause of Government & has conducted through the whole Affair in the most discreet manner. The Trial of the Soldiers will not come on this fortnight. From the Evidence which appeared upon Capt. Prestons Trial there is room to expect that, at most, they can be found Guilty of Man slaughter only and some of the Court seem to think it a justifiable homicide.

    I shall send under this cover copy of the proceedings of Council against Mr. Secretary Oliver, who has been a very faithful Servant of the Crown ever since he has been in Office. They do not need any Remarks upon them to your Lordship. If the Council had any cause of Complaint it was against me for the Deposition of the Secretary was at my request and I told them so and at the same time cautioned them against this proceeding but they would not desist.1

    I keep the Assembly sitting at Cambridge doing the ccommon business of the Province very leisurely by which their Constituents are Sufferers. Nothing has passed since my last Letters worth communicating to your Lordship except a further altercation upon the Subject of Castle William. I have the honour to be with very great respect My Lord Your Lordships most humble and Obedient Servant,

    Tho Hutchinson

    As Sir F Bernards Letters may mention Capt. Prestons Trial I take the liberty to cover them that they may be delivered when your Lordship shall think proper.2

    RC (National Archies UK, CO 5/759, ff. 300–01); at foot of letter, “Right Honorable the Earl of Hillsborough”; docketed, “Boston 30th October 1770 Governor Hutchinson (No. 28) Rx 8th. December.”; notation, “C:43:.” SC (National Archies UK, CO 5/768, ff. 170–71); docketed, “Lieut Govr Hutchinson Boston 30th Octr. 1770 (No. 28) Rx 8th. Recd”; notation, “Inclosure 1. Massachusets Gazette of 29th. Octr. 2. Proceedgs. of the Council.” AC (Massachusetts Archives, SC1/series 45X, 27:46); in WSH’s hand. Enclosures to RC: Massachusetts Gazette and Boston Weekly News-Letter, 29 October 1770 (National Archies UK, CO 5/759, ff. 302–03); Proceedings of the Council relative to Andrew Oliver (National Archies UK, CO 5/759, ff. 304–30); docketed, “Council of Massachusetts in Govr. Hutchinson’s of the 30th October No. 28.”

    735. To Lord Hillsborough

    Boston 30 October 1770

    By Scooner

    My Lord, I did not think it proper in my publick Letter of this date to relate many circumstances relative to Capt. Prestons Trial which it is notwithstanding necessary that your Lordship should be acquainted with. The Judges inform me that the Witnesses for the Crown differed materially in their Evidence from the Depositions which they had made before a Justice of Peace and which were printed & sent to England by the Towns Committee in that illegal criminal manner, and that the Evidence taken together reflects great dishonour upon the Inhabitants of the Town.1 I am endeavouring to procure the minutes, which were taken at the Trial of the whole proceedings in Order to transmit them to Your Lordship, but it is very lengthy and will take some days to transcribe.

    The trial was brought on at a time more favourable than any other since the action. Time has brought truth to light & suffered the ferment upon the Spirits of the People to subside. A Letter from Mr. Trecothick & another from Governor Pownall to the Committee of the Town advising them not to push the prosecution and, if there should be a conviction, to apply to me for a respit I think had some effect.2 But the principal cause of the change in the Temper of the people is the measure lately taken for the possession of the Harbour of Boston which, at first indeed set great part of the people into rage and fury & it would have been hazardous then to have brought on the trial but upon reflection they seemed generally to be convinced that they had gone too far & became dispirited more than they had been for a Twelve month before and scarce any of the Leaders of the Faction appeared at the Trial.

    As the Issue of the Trial was uncertain I thought it proper to suggest the sending a pardon for Capt Preston.3 I imagine therefore it must be agreable to your Lordship to have the most early advice of the acquittal and as the case of the Province may be under consideration in Parliament I think it probable that It may be of some use for the Ministry to know that this Event before it is made publick in England. I therefore desired Commodore Gambier to dispatch a Scooner immediately which I understood from him he intended to do in a short time although there should be no extraordinary occasion for it. I have the honour to be most respectfully My Lord Your Lordships most faithful humble Servt,

    AC (Massachusetts Archives, SC1/series 45X, 27:46–47); in WSH’s hand.

    736. To John Pownall

    Boston 30 October 1770

    By Scooner

    Dear Sir, Give me leave to mention to you the Case of Mr. Secretary Oliver who has been extremely ill used by the Council. After the unfortunate Affair the 5th March, the Council had first satisfied themselves in Conversation with the Commanding Officer of the Troops that if they could prevail upon me to desire him he would remove not only the 29th Regt, agreable to the offer he had made without any motion from me, but also the 14th. They pressed it upon me unanimously with uncommon vehemence and divers of them mentioned such Facts of their own Knowledge as made it certain that an Insurrection would be the consequence of my persisting in my Refusal, which I had done, untill Evening. The Secretary, as usual, prepared the minutes of the proceedings of the day on paper in order to enter them in the Council Books. The next morning he read them to the Council. The senior Counsellor excepted to them & said that if they went to England in that manner it would be said the province was in a state of Revolt or Rebellion and then he proposed a new form which the Council voted should be entered.1 I mentioned afterwards to the Secretary the unfair manner in which the Council had treated me, first to press me into a measure then to refuse to suffer the proceedings to stand in its true light upon their Records. He acquainted me that when he came home in the Evening after the Council the first Day he made a minute of the substance of the Debate which I required him to furnish me with that I might send it to Governor Bernard to be used in case of necessity.2

    Unfortunately it has got published. Mr. Tyler denied that he made any mention of the Commissioners. I am sure I heard it from him but could not be certain whether that Day or a day or two before. Three or four Witnesses present swore, they heard it that Day. All the Council say they do not remember it. They have not however directly charged the Secretary with false swearing but to a long Narrative drawn up by Mr. Bowdoin there is added divers Resolves declaring him guilty of a Breach of trust in taking the Minutes &c. The whole is a weak but malicious injurious performance which they have ordered to be recorded.3 I shall inclose a Copy for My Lord Hillsborough but I did not think it proper to relate these circumstances in a publick Letter.

    I have told the Council that they used to value themselves as being called his Majestys Council, that the Governor expected such advise as is for His Majestys service, that nothing ever ought to be said by any of them that they would wish to be kept secret from the King, that I had a right to require from the Secretary to furnish me with the particulars of every debate that nobody, besides myself could be blamed.4 I had sent it to Sir Francis Bernard who was then Governor of the Province, and had made no other use of it. I was not privy to the publication. I warned them against their Resolves.5 One of the Council owned I had foretold the consequence of some past proceedings. I gave them my Opinion that these Resolves would be more resented than any thing which preceeded them as they plainly indicated a determination to discourage a faithful Servant of the Crown from doing his Duty as far as lay in their power.

    These proceedings I hope will not pass without censure either in Council or when the State of the Province comes before the Parliament. Such a censure would mortify the party and being made matter of Record here would remove the reproach which otherwise will be transmitted to posterity upon the Secretarys Character.

    What makes these doings of the Council more unreasonable is that three or four Gentlemen were present in Council & heard all their debates so that there was no pretence for the Secretarys having divulged any Secret.6

    The great cause of the resentment against him is what dropped from Mr. B____n to one of his acquaintance Mr. Flucker. Why this Deposition of the Secretary has defeated every thing we aimed at by the Narrative & Deposition sent home.7 I am with very great Esteem Dear Sir Your Obedient humble Servant,

    AC (Massachusetts Archives, SC1/series 45X, 27:44–45); in WSH’s hand.