Petition of the Jurors in the Trials of Captain Preston & the British Soldiers

1 Super. Ct. Jud. 382

Opinion

AT last August Term the Honourable Justices of the Superiour Court passed the following Order:

“ Ordered, that it be recommended to the Court “ of General Sessions of the Peace to make the Jurors that were impannelled and sworn for the Trial “ of Thomas Preston, Esq., and the Soldiers, as also “ the Officers who kept them, a reasonable Allow- “ ance for said Services : said Preston’s Trial hold“ing six Days, and said Soldiers’nine Days; faid “ Jurys being kept together every Night by two or “ more Officers.”

Footnotes

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(2)

In Consequence of this Order, the Jurors above named petitioned the Court of Sessions for the above Allowance, and the Court, having a Doubt of their Power touching the Grant of the Prayer thereof, ordered the Petition to stand over for Argument at the Sessions in April; and, on last Wednesday, the power of the court to grant the Prayer of the Petitioners was argued by four Gentlemen of the Bar (pro fy con) by Desire of the Honourable Justices of the Sessions.

It seemed agreed by Bench and Bar that the only Power of the Sessions to grant Monies must be derived from provincial Law; that such a Power could be derived from no where else. — And the Question was, whether the Act of 4 of W. & M. c. 12, (3) gave the Court a Power to grant Monies for the Allowance before mentioned.

The Act is intituled “ An Act for the Settlement “ of the Bounds and defraying the publick and “necessary charges arising within each respective “ County in this Province.” “ And for the due and “ equal raising of Monies for defraying of the Charges “ arising within each respective County, for the necessa- “ ry Repairs and Amendments of Bridges, Prisons, “ the Maintenance of poor Prisoners, and all other “ proper county charges, It is enacted, that, when “and fo often as there shall be need of raising “ money for the ends aforesaid in any County, “ the Justices in Quarter Sessions for such County “ receiving Information thereof from the County “ Treasurer, shall agree and determine the whole “ Sum to be raised, &c., and issue their Order,” &c., “ to assess the same upon the Inhabitants,” &c.

The Debates at the Bar took up the Day. And the Justices after this solemn Hearing (only Mr. Justice Dunbar doubting) were unanimously of Opinion that the Prayer of the Petition of the Jurors should not be granted; and the Petition was accordingly dismissed.

It gives a most sensible Pleasure in these Times to find a Court of Justice deciding a Point of Law against an Extension of their Power; especially as that Power would affect the Purse of the Subject. — This Decision is of no small Moment; its Importance will appear more conipicuous upon a close Examen and Reflection. However, it is yet a Matter of deep Concern with some that the Superiour Court seem to entertain a different Opinion on the Point in Question. Tbey ordered a Recommendation of the Allowance to be made. They are presumed to know the Law, and we are willing to suppose they would not influence, and much less recommend to a subordinate Court the Exertion of an illegal Power; a Power derogatory to the natural and primary Right of the Subject over his Property; and of the highest Consequence to the Community, considered in a separate or collective View.

The Existence and Exertion of such a Power in the Sessions are of very extensive Concernment; we therefore imagine all due Confederation was had at passing the above Order of Recommendation: and, if fo, does not a becoming Deference to the Supreme Court lead us to conjecture that they were of Opinion that the Court of Sessions was by Law vested with Power to take Money out of the Pocketts of the People to make that Allowance which it was thought expedient thus formally to recommend ?

Í Printed in Boston Gazette (Edes & Gill) I { Monday, May 20, 1771. j

Motto:

Intelligentibus.

These trials would seem to have been the first in the province which, lasted more than a day. Among Judge Trowbridge’s papers is a list of “ Tryals by Jury cont’d for federal Days,” which may have been drawn up for this case, and which comprises the trials of John Lisburne, 2 Hargr. St. Tr. 19, & 7 lb. 354; Peter Cook, 4 lb. 738 ; Capt. Kidd, 5 lb. 287, and quotes from the trial of Elizabeth Canning, as follows :

“ Emlyn in his Opinion says ye Law will not allow a Jury to go at “ Large in a Criminal Case while ye Tryal is depending but y* they “ may take Refreshm’ts & retire to rest in a place provided for them if “ Guarded by a sworn Officer,” &c., and that “ Perhaps ye suffering ye “ Jury to go at Large in ye midst of ye Tryal may be Cause for arresting “ Judgm’t. 10 Vol. State Tryal, 407.”

In the margin of the record of Preston’s case appears the following memorandum :

“ N. B. The Court being unable to go through this Trial in one Day, “ the King’s Attorney and the Prisoner consent that the Court shall “ adjourn over Night during the Trial; the Jury being kept together by “ two Keepers, one chosen by the King’s Attorney, the other by the “ Prisoner or his Council; besides the Officer appointed by the Court.” Rec. 1770, fob 52.

A like memorandum appears on the record of the trial of the soldiers, except that, in this case, the prisoners did not enjoy the privilege of appointing a keeper, “the Jury being kept together by proper Officers appointed & sworn by the Court.” Rec. 1770, fol. 52.

In 25 Mass. Archives, 414, appears the following letter, written by Oliver to Hutchinson during the trial of Preston; Hutchinson having ceased to act as Chief Justice, shortly after assuming the administration in consequence of the departure of Governor Bernard. See ante, p. 316.

“ Dear Brother, “ Saturday Night.

“ After having had the Pleasure of seeing you to Day, I now give “ myself 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. We have not finished yet. Mr. Paine has now to close for “ the Crown, & he was fo unfit, that to avoid as much as possible all “ popular Censure we indulged him till Monday morn ; for Mr. Auch- “ muty did not finish till ⅜ past 4 o’clock. We shall finish I believe by “ one or two o’clock on Monday. Hard upon the Jury, you say, it is “ fo, but we have allowed them the Liberty of the Court House tomor- “ row with their Keepers. It is bell 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 In- “ habitants, & 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.

“ Yours affectionately,

“To “Peter Oliver.”

“ His Honour

“ Mr. Hutchinson, “ Milton.”

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Anc. Chart. 245.