MS .

This case was heard at the Aug. 1780 term Superiour Court of Judicature in Boston for Suffolk County before William Cushing as chief justice and Nathaniel Peaslee Sargeant, David Sewall, and James Sullivan as associate justices.

And now the Prisoners aforesaid are set to the Bar & desiring Counsel the Court thereupon assign Increase Sumner, Benja. Hichborn & Perez Morton Esqr. as Counsel, who in behalf of the Prisoners make a Plea against the Jurisdiction of the Court they being British Subjects, which is overruled by the Court, and they now are arraigned upon this Indictment & being severally demanded how 136 they will acquit themselves thereof they severally say that thereof they are not guilty & thereof for trial put themselves upon God & the Country—A Jury is thereupon impannelled & sworn to try the Issue viz. Wm. Cunningham foreman & fellows namely Joseph Kettle Aaron White Thos. Mosely John White Thos. Moor, Lemuel Cravath, Abijah Allen, Isaac Colburn Moses Davis Wm. Foster and Saml. Whitney, who after hearing all matters & Things concerning the same return their Verdict & upon their Oaths do say, that the sd. Duncan McGregor is not guilty, Timothy Lynch is not guilty, Michael Hogan is not guilty, Thomas Man is not guilty, Robert Watt is not guilty, Morris Pressingham is not guilty, Kenneth McPherson is not guilty, Michael Hayes is not guilty, John Rotch is not guilty, whreupon the Prisoners Counsel move that they be discharged, It is therefore considered by the Court that the Prisoners aforesaid go without Day—And now Patrick Ryan, Edmund Healey and Emanuel Joseph Prisoners of War confined in Goal upon suspicion of being concerned in the aforementioned Case and no Bill being found the Court order that they be delivered. (Superiour Court of Judicature Minute Books, Suffolk County, Aug. 1780. Massachusetts Judicial Archives, Boston, Mass.)

On Aug. 14, 1780, the Boston Gazette reported:

Thursday Evening last a Number of Prisoners on board the Guard Ship mutinied, seized and disarmed the Guard, consisting of eight Men, cut the Cable, and she drove ashore near Lechmere’s Point, leading up Cambridge River. On the Alarm being given, the Town Major (John Rice, jun. Esq;) attempting to go on board with an additional Guard to quell the Mutiny, was fired on from the Guard Ship when the Serjeant, Thomas Bickford, was killed; on which, the Major calling to the Shore, and informing of what had happened, it being very Foggy, the Town was alarmed, when a Number of Boats went off to his Assistance, and quell’d the Mutiny. After which, 21 of the Prisoners were bro’t on Shore, and committed to Prison.—A Jury of Inquest being summoned to sit on the Body of the deceased, after about forty-four Hours Examination of the Prisoners separately, found, from their own Confessions, eleven Principals and Accomplices, accessory to the Murder, who are now in Goal, waiting for Trial.

Benjamin Hichborn (1746–1817), see vol. 2.

RTP uses the abbreviation HPC for Matthew Hale, Historia Placitorum Coronæ: The History of the Pleas of the Crown (London, 1736).

Edward Coke, The Reports of Sir Edward Coke, Knt. in English, in Thirteen Parts Complete; with References to all the Ancient and Modern Books of the Law (London, various editions). RTP owned a copy of the Reports (unspecified edition) along with other works by Coke including his Institutes and Entries. The famous Calvin’s Case (1608) “finessed a delicate political compromise over whether James’s Scottish subjects, through his accession, had acquired the rights of English subjects” (Oxford Dictionary of National Biography).

Charles Viner, General Abridgment of Law and Equity, Alphabetically Digested under Proper Titles; with Notes and References to the Whole was published in twenty-three volumes between 1742 and 1757. The catalogue of RTP’s library lists “Cases in Equity Abridg’d 2d vol,” which was purchased for him in London by Gawen Browne from John Stockwell for £1.11s.6d.

Foster, Reports and Discourses on Crown Law. According to notes kept by Chief Justice William Cushing, RTP “on the authority of Foster 186, 187, contended that prisoners of war are amenable for an offence malum in se; and of course may be tried by the ordinary tribunals of justice in the country, in which the crime is committed. This has been the practice in England: and although they may perhaps be tried also by courts-martial, that cannot oust the courts of law of their general jurisdiction.— To which opinion the court held, and on deliberation unanimously overruled the plea” that as prisoners of war and subjects of the king of Great Britain, they were not liable to courts “who judge by municipal law: but ought to be tried by the laws of nations, and by courts-martial” (Reports of Cases Argued and Determined in the Supreme Judicial Court of the Commonwealth of Massachusetts, 14:498–499).

A full line illegible due to ink bleeding through.

Increase Sumner (1746–1799) graduated from Harvard (A.B., 1767) and was admitted to the bar in 1774. A lawyer in Boston, he became a justice of the Supreme Judicial Court in 1782 and later a popular governor of Massachusetts. In 1783 he purchased the Robert Auchmuty mansion in Roxbury, one of the loyalist estates. Later, RTP’s son Charles Paine married Sumner’s niece Sarah Sumner Cushing (Sibley’s Harvard Graduates, 16:531–538).

Although not specifically identified, presumably a reference to Rex v. Preston and/or the connected Rex v. Weems—the Boston Massacre trials—and the culpability of individuals within a group action.

RTP was extremely succinct in his diary entries for this case: Sept. 6: “Tryal of the Prisoners from Guard Ship, for Murder”; Sept. 7: “Do. not guilty.”