The Trial of the Soldiers

    765. To Lord Hillsborough, 5 December 1770

    766. To Lord Hillsborough, 5 December 1770

    767. To John Pownall, 5 December 1770

    768. To Thomas Gage, 6 December 1770

    769. From Lord Hillsborough, 7 December 1770

    770. To Sir Francis Bernard, 10 December 1770

    A favorable verdict in the trial of the soldiers, a source of constant anxiety for eight months, brought great relief to Hutchinson. Based on early reports of the trial, he was skeptical that conviction for manslaughter was appropriate in the cases of Privates Matthew Kilroy and Hugh Montgomery, but as he gradually came to understand the jury’s logic, he took pride in the way justice (as he saw it) had been done in Massachusetts.

    765. To Lord Hillsborough

    Boston 5 Decemb. 1770

    (No 31)

    My Lord, This Vessel being detained a few hours gives me Opportunity of acquainting your Lordship with the Issue of the Trial of the Soldiers. Six of them are acquitted and two found Guilty of Manslaughter.1 The Jury must be excused for not fully comprehending the Law for by the Evidence, as I have received it, there was no room for the distinction between them. The characters of the two stood in the most unfavorable light & one of them had uttered some threats before the Action. Take the whole together it is a favourable Event, and I cannot omit doing justice to the Judges who have conducted with great firmness and have in the most publick manner very largely explained the law as it respects the various kinds of Homicide, which, though often done before, was now necessary to remove the prejudices the people were under from new Doctrines they had been made to embrace from Letters News papers &ca sent us from time to time from England. I must likewise mention the assistance Government has had from a Gentleman who goes Passenger in the Glasgow Mr Murray who as a Magistrate has been very active & faithful notwithstanding he knew it must make him obnoxious to the people here.2

    The minutes of the Evidence, though inacurately taken by a young Lawyer, I will cover that your Lordship may have the first knowledge of them.3 A correct account of the whole Trial is preparing for the press.

    Whilst I am writing I am informed the Ship Intended to take this Letter will stop at an Outport. I shall therefore send it by the Glasgow which Commodore Gambier advises me shall sail tomorrow and I expect Captain Preston will go passenger in her. He has been confined to the Castle by the advice of his friends ever since his own Trial but has been very assiduous in furnishing every necessary help for the Trial of the soldiers and certainly has great merit.

    The present face of Affairs is much more favourable than it has been at any time for Eighteen months past. I hope to learn from it more firmly to depend at all times upon Providence to prosper all Endeavours for the support of Truth and Justice. I have the honour to be most respectfully My Lord Your Lordships most humble and most obedient Servant,

    RC (National Archives UK, CO 5/759, ff. 379–80); at foot of letter, “Right Honorable the Earl of Hillsborough”; docketed, “Boston 5th. Decembr. 1770 Governor Hutchinson (No. 31) Rx 30th. Decembr. C: 46.” Dup RC (National Archives UK, CO 5/894, ff. 127–28); docketed, “Massachusets. Duplicate of a Letter No. 31 from Govr. Hutchinson to the Earl of Hillsborough dated Decr. 5. 1770, on the trial of the six Soldiers.” AC (Massachusetts Archives, SC1/series 45X, 27:64–65); in WSH’s hand. SC (National Archives UK, CO 5/768, ff. 177–79); docketed, “Boston December 5th. 1770 Governor Hutchinson (No. 31.) R 30th Decr.” SC (Houghton Library, Sparks 10, 4:13); at foot of letter, “[O.o. but not said when read]” (brackets in original); docketed, “Govr. Hutchinson To Lord Hillsbro. 5 Decr. 1770.” Enclosure to RC: Copy of evidence of the soldiers’ trial (National Archives UK, CO 5/759, ff. 381–403).

    766. To Lord Hillsborough

    Boston 5. Decem. 1770

    My Lord, Having wrote at large of this & a former date to your Lordship by the Glasgow which only waits for a wind I think it proper by this Vessel to repeat that part of my Letters which relates to the Trial of the Soldiers. The Jury this Evening gave in their Verdict and have acquitted Six. The other two they found Guilty of Manslaughter and Clergy will be allowed them.1 Sentence is not yet passed.

    I have the honour to be with great respect My Lord Your Lordships most humble & most obedient servant,

    RC (National Archives UK, CO 5/760, ff. 3–4); at foot of letter, “Right Honorable the Earl of Hillsborough”; docketed, “Boston 5th Decembr. 1770 Governor Hutchinson (No. 32) Rx 7th. January 1771 D. 1.” AC (Massachusetts Archives, SC1/series 45X, 27:65); in WSH’s hand. SC (National Archives UK, CO 5/768, f. 179); docketed, “Boston 5th: Decr. 1770. Govr. Hutchinson (No 32) Rx 7. Jany 1771.”

    767. To John Pownall

    Boston 5th. Decr. 1770

    My Dear Sir, I am sure you will rejoice with me upon the acquittal of all the Soldiers from the charge of Murder, two of them are found Guilty of Manslaughter. This is a great point gained for Government. The trial shall be correctly printed and I hope it will have a good Effect throughout the Colonies. I have never yet given up the Body of the people. There certainly is a stock of Virtue in the Country though sometimes overborn by the Violent Efforts of some as bad men perhaps as any upon the globe.

    I have mentioned to My Ld. Hillsborough the case of the Eastern part of the Province. I have since received an account of further disorders at the same place, and am taking measures to apprehend the Offenders and bring them to Justice.1 I do not know what will be the wish of Administration concerning this Country whether to continue it as a part of this Province or to seperate it and annex it to Nova Scotia or to make it with other Territory a new & distinct Government. By the Charter Nova Scotia is as much a part of the province as the Country between Sagadahoc & Saint Croix. A year before the Charter Nova Scotia & the whole of Accady as far West as Penobscot had been taken from the French by Sir Wm. Phips in the Service of this Colony.2 Upon the Claims of Merit the whole was comprehended in the new Massachusetts Government. In a year or two after the French repossessed themselves of Nova Scotia & of all Accady as far as Penobscot & held one as much as the other until 1710 when by the taking of Port Royal by Nicholson the whole, alike come again to the British Crown and by the treaty of Utretch was alike ceded.3 Massachusets never made any claim to Nova Scotia after this Cession. They never exercised any Authority over the Land East of Penobscot until Gov. Pownall took a formal possession of them about the year 1760.4 The two Territories have generally had the same fate. They were both granted to Sir Wm. Alexander. They were both taken by Cromwell. They were both ceded or restored by the treaty of Breda.5 The principal distinction was when one part was included in the Grant to the Duke of York and the other not. Andros when under the D. of York was Governor of the Country between Sagadahoc & St. Croix & when K James came to the Crown he included N. York & all N. England in one Commission and Andros claimed to St. Croix as he had done whilst under the D of York, but no Settlement was ever made by any Englishman so far East as Penobscot after the treaty of Breda until since 1760.

    If there should be a disposition in Parliament to annex this Country to Nova Scotia or make it a distinct Government and the neglect of the Gen Court to put a stop to Intrusions should not be thought sufficient foundation for an act perhaps the circumstances I have mentioned may be worthy of consideration. I did not think it prudent to make them the Subject of a publick Letter. I am with very great Esteem Sir Your Most Obedient Servant,

    AC (Massachusetts Archives, SC1/series 45X, 27:65–67); at end of letter, “Mr Pownall”; in WSH’s hand.

    768. To Thomas Gage

    Boston 6. Decemb. 1770

    Sir, It is with pleasure that I embrace the first opportunity of advising you that yesterday towards Evening the Jury gave in their Verdict and found Kilroy and Montgomery guilty of manslaughter and acquitted the rest. I do not think there was sufficient ground for the Verdict as to the two. Kilroy is said to be a bad fellow and, the day before, had sworn that he would kill some of the People the first opportunity but this ought not to have been connected with the Action for which he was charged. Montgomery fired the first Gun and it appears probable that he did it to save his own life.1 The Judges shewed great firmness. The Foreman of the Jury had the character of a Son of Liberty but proved an honest man and would not go against his Conscience.2 A correct copy of the Trial taken in short hand is preparing for the Press.3 I shall send minutes of the Evidence by Preston to Ld Hillsborough.

    I will inclose a few anecdotes Relative to the Trial &ca. They may serve for your own amusement or they may go into your Mondays paper if you think it will do no harm. They will discover some Truths which the Printers have not yet courage to publish here. I am told the Printer of your Thursdays paper corresponds with the Faction here.4 If you wish to have it in print pray let it be transcribed ^& burn the Original^.5 My hand is singular and much known. I have the honour to be Sir Your faithful and most obedient servant,

    RC (Clements Library, Thomas Gage Papers); at foot of letter, “His Excellency General Gage.” AC (Massachusetts Archives, SC1/series 45X, 27:67).

    769. From Lord Hillsborough

    Whitehall, 7th: December 1770

    Sir, By the same Vessel that conveys this Letter to you, you will receive the King’s Commission under the Great Seal appointing you Governor in Chief of His Majesty’s Province of Massachuset’s Bay; and it is His Majesty’s pleasure that you should cause this Commission to be published in such manner & form as has been usual on like occasions.

    The General Instructions which usually accompany the Govr’s. Commission & are referred to in it, will be prepared & transmitted to you without delay, and it is the King’s Command that in the mean time the General Instructions to Sir Francis Bernard, now in your possession, should be the rule for your Conduct in all cases to which they relate. I am &c.,

    Hillsborough

    SC (National Archives UK, CO 5/759, f. 298); at head of letter, “Govr. Hutchinson.” SC (National Archives UK, CO 5/765, f. 191); at head of letter, “Govr Hutchinson”; notation, “By the Ship Boscawen, Capt Robson.”

    770. To Sir Francis Bernard

    Boston 10 Decr. 1770

    (No 47)

    Boas

    Dear Sir, A Postscript by the Glasgow gave you an Account of the favourable Verdict in the Trial of the Soldiers. Mr Murray will tell you all the circumstances of the Trial.1 Our great difficulty was to obtain an unbiassed Jury. A Capt. Mayo of your Roxbury neighbourhood was foreman. I am much inclined to make him a Major.2 I find they went upon better grounds than I imagined in their Verdict.3 Upon comparing the Evidence they could not be convinced that the Soldiers had not been too hasty in firing upon the people & if there had been Evidence of all having fired they would have convicted all of Manslaughter but it was agreed on all hands that no more than seven Guns were fired, consequently one was innocent. Two as several Witnesses swore fired and killed their Men. Of the other Six there was no certainty which fired. If they had all been convicted the Jury would certainly have found one Guilty who was innocent and they chose five guilty should escape rather than some innocent be convicted. It being admitted to be a lawful Assembly the Man who did not fire could not share in any part of the Guilt of those who did fire. These are pretty good distinctions for an American Jury and upon the whole they have done better than a Middlesex Jury have lately done, and it is a most humbling stroke to the Enemies of Government and when the Trial appears in print it will make the Man ashamed who drew up the Narrative & directed from fifty to an hundred copies to persons of distinction in England beginning with the Duke of Cumberland,4 and I hope it will undeceive the people in England who have given so much credit to the false relations from hence.

    It is evident that the Disturbers of our peace have never been in so depressed a state for two or three years past as they are at this juncture. I do not mention this to induce a departure from any measures that have been proposed in Parliament to restore order, for the same measures may be greatly ^equally^ necessary to prevent our return to disorder.

    I am in formed a Committee of Council have sent to Mr Bollan a vindication of the Council from the charge, of meeting as a Privy Council without the Governor and they declare they never have done it except in one instance when you gave your consent.5 Some of them offered to swear to it but Gray declined & said it was enough to declare upon their honour. The true reason I beleive was his scruple of swearing to what was evasive, for their Meetings at other times pretending to be in their private capacities were meer evasions. They meet at present as a Committee of the Council in their Legislative capacity but this is as irregular as the other and no Committees ought to subsist after the Court is prorogued and such proceedings ought in some way or other to be animadverted upon.

    The Truck Master at Fort Pownall declined the Office & I have appointed Goldthwait and I hope I shall have influence enough to obtain his election.6 When the Court meets I shall make some remarks upon the Act for the Truck Trade when I send it with the other Laws which I hoped to have ready for the Tweed.

    Lady Bernard has been advised not to go in the Tweed but to tarry until the Spring and go home in a Merchant Vessel & if War wait for convoy.7 I knew if you had been here you would not have approved of this advice. She seemed much afraid of the Enemy and of a Winters passage. I have endeavoured to encourage her & she tells me this Evening she will quit her house in the Country one Day this week & come to town with the Children in order to embark & the Commodore says the Ship shall be ready in eight days at farthest. What shall further occur I will then communicate. In the meantime and always I am Dear Sir Your faithful humble Servant,

    AC (Massachusetts Archives, SC1/series 45X, 27:72–74); in WSH’s hand. Contemporary printing: Boston Gazette, 28 August 1775 (first two paragraphs only).

    771. To Thomas Gage

    Boston 10. Decemb. 1770

    Sir, Captain Montresor intending to set out to morrow for New York I may not omit giving him my Testimony of his faithful and discreet conduct in the Service in which he was employed.1

    I take the same opportunity to acknowledge your favour of the 2d Instant by Post, and to thank you for your Intelligence.2 My Letter by the Mercury of which the Packet brought Duplicate is of the 28t September and being circular the Contents of it are already known to you. No news yet of the Original. I have another Letter of the 3d October which Relates intirely to our interior Affairs. Not one word from any quarter to enable us to form a better judgment of Peace or war than what we have from England. As the Castle is now under a new direction I can expect nothing from the General Court concerning it.3

    Immediate provision seems to be necessary respecting the Platforms but Capt. Montresor will lay the whole state of the Fortress before you. I have the honour to be Sir Your most obedient humble Servant,

    RC (Clements Library, Thomas Gage Papers). AC (Massachusetts Archives, SC1/series 45X, 27:72); in WSH’s hand.