December 1966 | Volume 18, Issue 1
Even the worst offender, even the most unpopular cause, deserves a good lawyer. Our example is a passionate moment in Boston on the eve of the Revolution, when John Adams undertook to defend the hatred British soldiers who had fired into a Boston mob and created some “martyrs.” There are echoes of our own times in the trial that followed
“The Jurors for the said Lord the King upon oath present that Thomas Preston, Esq.; William Wemms, laborer; James Hartegan, laborer; William McCauley, laborer; Hugh White, laborer; Matthew Killroy, laborer; William Warren, laborer; John Carroll, laborer and Hugh Montgomery, laborer, all now resident in Boston in the County of Suffolk, … not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil and their own wicked hearts, did on the 5th day of this instant March, at Boston aforesaid within the county aforesaid iuith force and arms feloniously, willfully and of their malice aforethought assault one Crispus Attacks, then and there being in the peace of God and of the said Lord the King and that the said William Warren, with a certain handgun of the value of 20 shillings, which he the said William Warren then and there held in both his hands charged with gunpowder and two leaden bullets, then and there feloniously, wilfully and of his malice aforethought, did shoot off and discharge at and against the said Crispus Attucks, and that the said William Warren, with the leaden bullets as aforesaid out of the said handgun then and there by force of the said gunpowder so shot off and discharged as aforesaid did then and there feloniously, willfully and of his malice aforethought, strike, penetrate and wound the said Crispus Attucks in and upon the right breast a little below the right pap of him the said Crispus and in and upon the left breast a little below the left pap … of which said mortal wounds the said Crispus Attucks then and there instantly died.”
Thus did the citizens of Boston indict nine British soldiers for murder. (The designation of the soldiers as “laborers” in the indictment emphasi/ed that they were being tried as ordinary citizens—and also that they often eked out their pay by working for hire in and around Boston.) Never before in the history of Massachusetts had a trial aroused such intense, complex political and personal passion. Although his name stands alone in the indictment, Crispus Attucks was not the only victim. Four other Bostonians were also dead in what Samuel Adams, through his mouthpiece Benjamin Edes, publisher of the Boston Gazette , promptly called “a horrid massacre.” For Adams and his friends in the Liberty party, the trial could have only one possible outcome. Paul Revere summed it up in the verse beneath his famous engraving of the scene.
But know, Fate summons to that awful Goal Where Justice strips the Murd’rer of his Soul: Should venal C[our]ts the scandal of the land Snatch the relentless Villain from her Hand Keen Execrations on this Plate inscrib’d Shall reach a Judge who never can be brib’d.
The gist of what happened, whether baldly or passionately stated, was simple enough. Parliament’s passage of the Townshend duties (import taxes on lead, paper, glass, tea) had inspired a series of riots and assaults on Royal officials which the magistrates and watchmen of Boston seemed helpless to prevent. On October 1, 1768, the Crown had landed two regiments of Royal troops to keep the peace. Relations between the townspeople and the soldiers had started poor and deteriorated steadily. Alter eighteen months, tempers on both sides were sputtering ominously.
Ironically, Parliament was about to repeal the Townshend duties, except lor the tiny tax on tea, but the news had not reached Koston when the explosion occurred. At about eight o’clock on the moonlit night ol March 5, 1770, a sentry on duty bet’f6re the hated Custom House gave an impudent apprentice boy a knock on the ear with his gun. An unruly crowd gathered. Someone rang the bells in a nearby church. This signal, ordinarily a summons to fight me, drew more people into the street. The !lightened sentry called out the main guard. Seven men led by a corporal responded, and were shortly joined by Captain Thomas Preston. A lew minutes later, a volley ol shots IcIi dvc “martyrs dead or dying in the snow and six other men painfully wounded.
For a few hours Hoston teetered on the brink ol a blood bath. The well-armed Sons ol Liberty outnumbered the British regiments ten to one, and the local militia was swiftly bolstered by hundreds of farmers who swarmed in from the countryside. Only a desperate speech by Lieutenant Governor Thomas Hutchinson, in which he promised to arrest the soldiers and charge them with murder, calmed the enraged city enough to restore an uneasy semblance of peace.
On the morning after ihe bloodshed, John Adams was in his office beside the Town House steps. Through the door came a tearful, wailing man, James Forest, known about Most on as a British toady and scornfully called “the Irish infant.” The accused leader of the arrested British soldiers. Captain Preston, had begged him to find a lawyer posthaste. This had proved very difficult. Finally, young Josiah Quincy, Jr., from John Adams home town of Braintree, had expressed a willingness on one condition—that John Adams join him in the defense. One other lawyer, Robert Auchmuty. a staunch conservative, had volunteered with the same proviso.
The challenge aroused all the latent conservatism in the thirty-four-year-old |ohn Adams’ pugnacious spirit. For a decade he had watched his distant cousin Samuel construct a “political engine” in Boston, discovering under his tutelage “the wheels … cogs or pins, some of them dirty ones, which composed the machine and made it go.” Though lie wrote convincing defenses of the Liberty party position in the Boston Gazette , John often signed himself “Clarendon” (the British lord who had done his utmost to prevent Cromwell’s excesses in the English civil war), and politely declined to harangue town meetings in the demagogic style of cousin Samuel and his friends Dr. Joseph Warren and James Otis. John took an even dimmer view of the violent tendencies of the Sons of Liberty—and obviously saw a direct connection between their terrorist tactics and the frighicned slate of the Boston bar.
Years later, John Adams recalled that he had “no hesitation” in accepting the case. He told Forest “that Council otig’lu to be the very last thing that an accused person should want [ i.e. , lack] in a Tree country. That the bar ought in my opinion to be independent and impartial at all limes and in every circumstance.”
This was a noble ideal, but John Adams knew that it was far from the reality of Boston in 1770. The city was ruthlessly divided into King’s men and Liberty men. Doctors, lawyers, even clergymen, were chosen lor their fiercely partisan political opinions. Adams himself had made his irrevocable choice in iyOH, when lie refused Thomas Hutchinson’s offer to make him advocate general of the Court of Admiralty. Since that time the vast proportion of his law practice had come from Liberty clients.
Nevertheless Adams solemnly accepted a guinea from James Forest as a retainer to seal the agreement. He warned the overwrought Irishman that this would be “as important a cause as had ever been tried in any court or country of the world.” Neither he nor Captain Preston could, of course, expect anything more than “fact, evidence and law would justify.”
“Captain Preston,” Forest answered, “requested and desired no more … as God Almighty is my judge I believe him an innocent man.”
It was only a few days before the surprising news of Adams decision had made a complete circuit of Hoston and its environs. Rocks were flung through the windows of the Adams home. Boys jeered him on the streets. Josiah Quincy got a letter from his father in Braintree: “My Dear Son, 1 am under great affliction at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals who are charged with the murder of their fellow citizens. Good God! Is it possible? I will not believe it.”
Young Quincy wrote his father a spirited defense of his decision. Tall and handsome, he was a fervent Liberty man, but above all an idealist. And he could afford to be reckless. He already knew he was suffering from tuberculosis, which was to cut short his brilliant career five years later. John Adams, with an established practice and a wife and three children to support, had no such motive. Nor was his temperament in the least inclined to enthusiasm. A worrier by nature, he sometimes expressed awed amazement at Sam Adams, who let the citi/ens of Boston pay his debts and lived “like the grasshopper” from day to day. John had always self-consciously planned his career. “The art of living,” he once told Cousin Samuel, had cost him “much musing and pondering and anxiety.”
Adams’ morale did not improve when Cousin Samuel convened a town meeting of three thousand roaring adherents to demand the immediate expulsion of the two regiments. Lieutenant Governor Thomas Hutchinson yielded one regiment, then (literally trembling with anguish) yielded both, and the soldiers trudged through a barrage of derision to boats that took them to Castle William, far out in Boston Harbor.
Sam Adams’ next move was a vigorous prosecution of a trial by newspaper. Ninety-six depositions from eyewitnesses were recorded by John Hodgson, the only shorthand writer in Boston, and solemnly sworn to before justices of the peace. They were attached to a twenty-two-page report compiled by the Boston selectmen and published and distributed throughout the province, but not in Boston. The Liberty men piously declared they did not want to prejudice anyone against the defendants.
As propaganda the book was a masterful document. The ninety-six witnesses were all but unanimous in their pro-Liberty description of the murder scene. Only one man had anything even faintly favorable to say for the soldiers, and editorial comments declared him to be a liar. The rest agreed that they were all in the streets of Boston that night on utterly peaceful errands—visiting friends, attending church meetings—when they were attacked by soldiers armed with bayonets, swords, and cutlasses.
But Samuel Adams was not the only person interested in compiling a version of what happened on the night of March 5. In New York, General Thomas Gage, commander in chief of all British troops in North America, wrote to Lieutenant Colonel Dalrymple, the commander of the Boston garrison. It is absolutely necessary everything relating to the unhappy affair of the gth of March should appear as full as it is possible upon Captain Preston’s tryal. Not only what happened on the said night should be circumstantially made to appear, but also every insult and attack made upon the troops previous thereto with the pains taken by the military to prevent quarrels between the soldiers and inhabitants. If such things cannot be introduced at the tryal, affidavits should, however, be procured of these several circumstances and printed with the tryal which ought to be taken down for the purpose. …
Thus from the very start the trial became far more than a matter of determining the guilt or innocence of the arrested soldiers. The King’s men were out to win a conviction against the mob-rule tactics of Samuel Adams. The Liberty men were as fiercely determined to pillory Parliament’s use of armed force to suppress their political rights.
Between these two bitter, determined groups of menstood the prisoners and their uneasy lawyers. Ironically, after the frantic search for defense attorneys, the Crown had almost as much trouble finding men willing to serve on the prosecution side. Jonathan Sewall, the colony’s attorney general, handed up the indictment and disappeared from Boston, declaring that he would never appear in another court in that town. This may have been in part a maneuver to delay the trial. In the weeks succeeding the Massacre, Boston’s inflamed state of mind made the possibility of an objective jury almost laughable.
But Samuel Adams was not to be easily put off. On the thirteenth of March, a town meeting resolved “That the selectmen be desired to employ one or more counsel to offer to the King’s attorney as assistants to him in the trial of the murtherers now committed; and in case the King’s attorney should refuse such assistance and the relatives of those persons who were murthered should apply for it, that then the town will bear the expense that may accrue thereby.” The court soon appointed Samuel Quincy, Josiah Quincy’s elder brother and a convinced Tory, to head the prosecution. Assisting him as the town’s désignée was attorney Robert Treat Paine, a staunch Liberty man.
On March 14, the day after the term opened, two of the judges declared themselves ill and announced a determination to adjourn to the second Tuesday in June. A committee of Liberty men swiftly appeared in court, with Samuel Adams and John Hancock as their spokesmen. In his quavering voice, gesturing with his palsied hands, Adams made what one observer called “a very pathetic [emotional] speech,” calling on the court to proceed to the trial without delay. Governor Hutchinson described Adams as followed by “a vast concourse of people.” The terrified judges, Hutchinson reported, “altered their determination and resolved to go on with the business. This, they assured me, was contrary to their inclination but they were under duress and afraid to offend the town.”
Captain Thomas Preston, meanwhile, tried to launch a small propaganda campaign on his own behalf. An Anglo-Irishman, forty years old with fifteen years of army service on his record, he was, compared to the other British soldiers in the garrison, well liked by the people of Boston. Various letters describe him as “amiable” and as being “a benevolent, humane man.” Hoping no doubt to enlarge this image, he had the following “card” published in the Boston Gazette . Messieurs Edes and Gill, permit me thro’ the channel of your Paper, to return my Thanks in the most publick Manner to the Inhabitants in general of this Town—who throwing aside all Party and Prejudice, have with the utmost Humanity and Freedom slept forth Advocates for Truth in Defence of my injured Innocence, in the late unhappy Affair that happened on Monday Night last: and to assure them, that I shall ever have the highest Sense of the Justice they have done me, which will be ever gratefully remembered, by Their most obliged and most obedient humble Servant, Thomas Preston.
In New York, this gesture struck General Gage as the height of folly. “I can’t be a proper judge at this distance,” he wrote to Colonel Dalrymple, “but I wish he may not have been too premature in that measure; and if a legal proceedings are hereafter made use of against him, they will justify themselves by his own words.”
Through late March and April, Samuel Adams kept his town meeting in almost continuous session by endlessly delaying matters of business. This gave him a perfectly legal device to maintain a relentless pressure on Governor Hutchinson and the judges.
The beleaguered Hutchinson decided that he would have to offer his enemies a sacrifice to allay their ferocity. Two weeks before the Massacre, a Custom House employee, Ebenezer Richardson, had gotten into a brawl with some boys who chased him home with a barrage of icy snowballs, stones, and brickbats. They continued the bombardment on his house, smashing most of the windows. The enraged Tory suddenly thrust a musket loaded with birdshot from an upstairs window. “By God,” he shouted, “I’ll make a lane through you.” The gun boomed and most of the charge struck a twelve-year-old boy, who died that night. For Samuel Adams, Richardson was, of course, a very small fish. But his case did, in sequence of time, come first. Adams was therefore helpless to object when the judges moved to put Richardson in the dock.
Richardson had even more trouble procuring legal aid than Preston and his soldiers. Not a single attorney volunteered, and when the court appointed Samuel Fitch, he agreed to serve under violent protestations of duress, then became conveniently ill when the case went to trial. The court then appointed Josiah Quincy, Jr., an equally reluctant if more idealistic advocate. Only recently have we learned that the man who directed Richardson’s defense was John Adams. The notes and documents pertaining to the case were discovered in John’s legal files by the editors of the Adams Papers. With Samuel Quincy and Robert Treat Paine handling the prosecution, Richardson’s case became almost a rehearsal for the Massacre trial.
“A vast concourse of rabble,” as one Tory described his fellow Bostonians, packed the courtroom. They growled their disapproval when the three judges unanimously agreed that from the testimony of witnesses on both sides, the charge against Richardson could amount to no more than manslaughter. Justice Peter Oliver went even further and declared to the jury that in his opinion the case was justifiable homicide. Whereupon an improper Bostonian shouted from the crowd: “Damn that judge. If I was nigh him I would give it to him.” When Oliver finished speaking, someone in the crowd roared out: “Remember, Jury, you are on oath. Blood requires blood.”
The jury found Richardson guilty of first-degree murder, and only vigorous exertion by the sheriff and town constables prevented the mob from taking him outside and hanging him on the spot.
The judges, aghast at the jury’s complete disregard of their charge, refused to sentence Richardson. He was remanded to jail, where he was to languish for another two years. His case, however, made it look certain that trying Preston and the soldiers right away would result in their conviction. “Procrastination is our only course as thi.igs are now situated,” wrote Colonel Dalrymple to General Gage.
Samuel Adams and his friends continued to agitate for instant justice. Once more they appeared in the courtroom and harangued the judges, threatening to withhold their salaries if they delayed any longer. But Hutchinson, who had the courage of his convictions, finally won the seesaw battle. Under his direction, the court constantly met and adjourned, met and adjourned. Then Hutchinson shifted the next meeting of the judiciary to Cambridge, proclaiming it a necessity to avoid the threats of the Boston mob. This inspired (on June 1, 1770) what Hutchinson ironically called “a jovial celebration … at Boston in opposition to me,” which involved roasting an ox whole on the Common and a great dinner at Faneuil Hall. While toasts were being drunk to liberty, the judges quietly adjourned the court sine die (without setting a day to reconvene), automatically continuing to the next term the question of the soldiers’ fate. Hutchinson wrote proudly to Gage, describing how he had “procured without any tumult a continuance of the trial to the next term.”
Through the hot Boston summer Preston and his men sat in their cells. Preston’s fortunes, which seemed for a while to be rising, took a sharp downward turn when a Tory version of the Massacre, first published in England, appeared in the Boston Gazette . The Captain was soon writing Gage that he feared the mob was planning an attack on the jail to murder him and his men in their cells. Though Hutchinson doubted that the Liberty people would make such an attack before the trial, he recommended to Sheriff Steven Greenleaf that he take the keys from the jailkeeper at night, just in case.
Meanwhile, Hutchinson was having his troubles with the judges. Twice during the summer, Chief Justice Benjamin Lynde, who was over seventy, came to him with his resignation. Justice Edmund Trowbridge was at least as terrified. Only Judge Peter Oliver stood firm, ignoring personal threats in the newspapers. Another worry was the lack of enthusiasm which the Tories anticipated in the soldiers’ attorneys. Loyalist Auchmuty bluntly told Hutchinson he did not think Preston had a chance.
Nevertheless, early in September, with Hutchinson’s approval, Preston began to press for a trial. Actually Hutchinson was still certain Preston would be found guilty, but he wanted the matter settled early in the fall, with sentencing delayed until the opening of the March term. This might give him time to get a ship to England and back with a King’s pardon to save Preston’s neck.
The justices, however, reserved their own opinion of when they should risk their lives by bringing Preston to trial: they went on circuit into the country. First, however, they did bring the Captain and his eight soldiers into the courtroom for arraignment. Each pleaded “Not guilty,” and “for trial put himself upon God and the country.”
At this point John Adams played a surprise card, one he had been holding very close to his vest. He made a motion to try Captain Preston and the soldiers separately. The court granted it. The soldiers immediately decided they were to be the sacrificial lambs, and forwarded a plaintive petition to the court: “May it please Your Honors, we poor distressed prisoners beg that ye would be so good as to lett us have our trial at the same time with our Captain, for we did our Captain’s orders and if we don’t obay his command we should have been confined and shott for not doing it. …” This only confirmed defense fears that Preston and his men would each accuse the other if tried jointly, and in the confusion the jury would decide to hang them all. But as we shall soon see, this was not the only reason for Adams’ unexpected motion.
Not until October 24, 1770, did the judges return and the lawyers assemble to impanel a jury to decide Captain Preston’s fate. Almost immediately it became evident that the court and all the lawyers were involved in a curious kind of collusion. Adams, the acknowledged leader of the defense, challenged every juror who came from within the city limits of Boston, quickly rejecting the eighteen men who had been selected by the Boston town meeting of August 24, 1770. When the legally summoned jurors were used up, it was the custom of the day to allow the sheriff to contribute “talesmen.” By no coincidence, every talesman produced by the sheriff for Preston’s trial came from outside Boston. Indeed, a study of the jury list reveals that five of the twelve selected were later Loyalist exiles.
These maneuvers must have been obvious to Samuel Adams. They were beyond all doubt known to John Adams and Josiah Quincy. Why did Samuel Adams by silence and inaction give tacit approval? A nod from him, and his well-disciplined bullyboys could have filled the courtroom as they did at Richardson’s trial and terrified the judges and jurors into submission. But there is no evidence of any disorder during Preston’s trial, nor at the trial of the soldiers. The change of tactics is startling, and there is nothing in the written evidence of the Massacre story that explains it.
The answer must lie in the political struggle that surrounded the trials. By this time, John Adams and Josiah Quincy had, thanks to a liberal supply of sovereigns from General Gage, obtained depositions from dozens of people who had been witnesses to various aspects of the bloody deed. These statements conflicted so totally with the evidence advanced by the Liberty men in their ninety-six depositions that there was only one possible conclusion—someone was committing perjury. Worse, the evidence advanced by the witnesses Adams and Quincy uncovered put the town of Boston in a most unholy light. For the first time the Loyalists had a weapon with which they could smite Samuel Adams hard. But Sam on his side retained the weapon he knew and handled best: the Boston mob.
Even with the packed jury, Preston’s case was by no means a sure thing. The prosecution attacked vigorously, parading witness after witness to the stand for the better part of two days; all of them agreed that the Captain gave the order to fire—and, equally important, that there was no provocation for it beyond name-calling and a few snowballs from the crowd gathered in King Street.
The defense attorneys did little to dispute these assertions in their cross-examination. But they did shake the believability of many witnesses by pointing out strange confusions in their testimony. Some swore the Captain stood in front of the men; others said he stood behind them. Several said that the Captain had on a “cloth color” surtout (a kind of overcoat); almost as many said they distinctly saw him in his bright red regimentals.
After a prosecution summation by Samuel Quincy, in which he accused Preston of “murder with malice aforethought,” the defense produced their witnesses. The first few disputed the prosecution’s claim that the crowd was small and peaceful, but said nothing that would stir an already tired jury. (It was the first time in Massachusetts’ memory that a murder trial had lasted more than a day.) Then John Adams produced a merchant named Richard Palmes, and the courtroom came to life. Mr. Palmes was the real reason for the separate trials. He had earlier given a lengthy deposition supposedly supporting the Liberty side of the story. Even a cursory reading of this told a lawyer as keen as John Adams that detaching Preston from his men converted Palmes into a witness for the Captain.
Palmes knew it, and had desperately tried to decamp from Boston. John Adams had kept him in town by court order. On the stand, the reluctant Palmes was forced to repeat his sworn deposition. He told of stepping up to Preston as he joined his soldiers and asking: “Sir, I hope you don’t intend the soldiers shall fire on the inhabitants.”
“He said, ‘by no means.’ The instant he spoke I saw something resembling snow or ice strike the grenadier on the Captain’s right hand, being the only one then at his right. [The grenadier] instantly stepped one foot back and fired the first gun. … The gun scorched the nap of my surtout at the elbow.”
Other witnesses substantiated Palmes’ statement. As a good lawyer, Adams also brought in a few people who bolstered the self-defense side of Preston’s plea. But in his summation, he made it clear that Palmes was his key witness. Coolly, he noted that the mortified merchant was “an inhabitant of the town and therefore not prejudiced in favor of the soldiers.” Robert Auchmuty, summing up after Adams, declared that Palmes’ evidence “may be opposed to all the Crown’s evidence.” He went on to give an impressive speech, citing a wealth of precedents in the common law which permitted soldiers or other persons to kill rioters or even individuals who attacked them and threatened them with serious injury. Auchmuty’s knowledge of the law was considered weak, but he sounded formidable as he cited case after case from Coke and other great authorities on English law. Undoubtedly he was using John Adams’ research. But he put it together with an enthusiasm and flair that surprised and delighted Preston and the Tories who had been doubting him. His performance can probably be explained by a letter General Gage wrote to Colonel Dalrymple, “I am sorry,” the British commander in chief said, “you doubt Mr. Auchmuty’s zeal or good intentions. … If you find it necessary, you should encourage him, for very particular reports are to be made of every circumstance of the tryal.” Caught between the threat of royal censure and his dread of the Boston mob, Auchmuty followed his Loyalist leanings and performed brilliantly.
Robert Treat Paine valiantly tried to rescue the prosecution’s case. But he could not explain away Palmes. He called him “their principal witness” and admitted he was “a gentleman who I can by no means suppose would be guilty of a known falsehood.” Paine could only maintain that this staunch Son of Liberty was “certainly mistaken,” and fumble to an emotional peroration, calling on the jury to “find such a verdict as the laws of God, of nature and your own conscience will ever approve.”
Now came the judges’ charges to the jury. There were four sitting—Chief Justice Lynde and Justices John Gushing, Peter Oliver, and Edmund Trowbridge. Trowbridge was considered the best legal mind in Massachusetts. Stately in their white wigs and long red (for a murder trial) robes, they proceeded to examine the evidence and the law. Trowbridge spoke first, pointing out the contradictory accounts given by the witnesses and declaring that it did not appear to him that the prisoner gave orders to fire. But even if the jury should think otherwise, they surely could not call his crime murder. The people assembled were “a riotous mob” who had murderously attacked the prisoner and his party. If Preston was guilty of any offense, it could only be excusable homicide. The other three judges concurred. Oliver added, “in a very nervous and pathetic manner,” that he was resolved to do his duty to his God, his King, and his country, and despise both insults and threats.
The jury was then locked up for the night. Within three hours they voted to acquit Preston and so reported it to the assembled court the next morning. The Captain was immediately released from jail and rushed by boat to Castle William, where the guns of his regiment guaranteed his safety against possible revenge from the Boston mob. But Samuel Adams’ obvious acquiescence in the choice of a packed jury made it clear that he had long since agreed to let Captain Preston go in peace. His men were another matter.
Thus far, John Adams, with Josiah Quincy’s help, had maintained his perilous balancing act. At one point during the five days of Preston’s trial, he had objected angrily when Auchmuty tried to advance more evidence of a Liberty conspiracy to incite a riot. The Tories on the bench had stressed mob violence in their remarks to the jury; yet the violent side of the evidence had played only a minor role in Preston’s trial. It had to be the heart of the soldiers’ case. That they had fired their guns was beyond debating; five men were dead to prove it.
There was another hint of the way the local wind was blowing: Auchmuty now withdrew from the soldiers’ defense, and another attorney, Sampson Salter Blowers, was appointed in his place. Like Quincy, he was young and comparatively inexperienced. Thus almost full responsibility for the soldiers’ fate, both in a public and a private sense, fell on the stocky shoulders of John Adams.
If he had any illusions about the tactics of the opposition, they vanished when he picked up the Boston Gazette on the Monday before the trial began. “Is it then a dream—murder on the 5th of March with the dogs greedily licking human blood in King Street? Some say that righteous heaven will avenge it. And what says the Law of God? Whoso sheddeth Man’s Blood, by Man shall his Blood be shed! ” And the Gazette quoted at length from a sermon preached by the Reverend Doctor Chauncy, senior minister of Boston, declaring that should the soldiers be convicted of murder, Governor Hutchinson would never dare grant them a reprieve: “Surely he would not suffer the town and land to lie under the defilement of blood! Surely he would not make himself a partaker in the guilt of murder by putting a stop to the shedding of their blood, who have murderously spilt the blood of others.”
On the day the second trial began, the audience was a good barometer of the local atmosphere. At Preston’s trial the benches had been filled by Tories and army officers. Now the courtroom was jammed to the windows with townspeople. Shorthand-writer John Hodgson, who recorded the trial, complained that he did not have room to move his elbow. Outside, snow was falling, and the bailiffs had to light candles against the gloom. People shivered in winter clothes; the two small stoves in the room seemed to have no effect whatsoever on the pervading chill.
The prisoners were brought to the bar. Their blazing red coats set off their faces, drawn and pale from almost nine months in jail. The clerk of the court read an enlarged indictment to them. It accused them of murdering, besides Crispus Attucks, Samuel Maverick, a seventeen-year-old apprentice boy; Samuel Gray, a former employee of (but no relation to) the owner of Gray’s rope works; James Caldwell, a sailor from a Massachusetts coasting vessel; and one Patrick Carr, known as “the Irish teague.”
The jury was now chosen, and Adams and Quincy challenged and rejected no less than thirty prospects, forcing the sheriff to summon eight talesmen. As in Preston’s case, the accepted jurymen were all from neighboring towns—Roxbury, Dedham, Milton, Hingham—and one, Isaiah Thayer, was from Adams’ home town of Braintree. But there is no evidence that any had Tory leanings.
The prosecution opened with a brief, low-keyed talk by Samuel Quincy. He declared that the trial involved the “most melancholy event that has yet taken place on the continent of America, and perhaps of the greatest expectation of any that has yet come before a tribunal of civil justice in this part of the British dominions.” He vowed to make no appeal to partiality or prejudice but to conduct himself “with decency and candor,” with one object—“simply that of truth.”
Whereupon he began summoning witnesses by the dozen. The first several (one was Jonathan W. Austin, John Adams’ clerk) simply identified various soldiers and reported seeing one or two of the victims fall. Things heated up when Edward Langford, a town watchman, took the stand. He testified that Samuel Gray was standing beside him in the front rank of the crowd in the most peaceable manner, without any weapon, not even a snowball: “His hands were in his bosom.” According to Langford, Gray asked him what was going on. Langford replied he did not know, and almost immediately Matthew Killroy’s gun went off and Samuel Gray fell, striking Langford’s left foot. A parade of succeeding witnesses repeatedly identified Killroy as Gray’s assassin.
Richard Palmes returned to testify, for the prosecution this time, and was obviously much more comfortable about it. He identified bald-headed Hugh Montgomery, one of the sentries, and testified that he had knocked Montgomery down—but only after the grenadier had fired his gun, and was attempting to run Palmes through with his bayonet.
Subsequent testimony, notably by Nicholas Ferreter, supplied interesting background information for the “massacre.” Ferreter was a worker at Gray’s rope works. He reported that on Friday, March a, during the lunch hour at Gray’s, Samuel Gray hailed a passing soldier and asked him if he wanted work. “Yes,” said the poorly paid redcoat, “I do, faith.” Well, said Gray in pure Anglo-Saxon, he could go clean his outhouse. The soldier’s temper exploded. He took a swing at Gray, and other ropemakers rushed to Gray’s assistance. Ferreter described how he “knocked up his [the soldier’s] heels, his coat flew open and out dropped a naked cutlass which I took up and carried off with me.” The soldier was soon back with a dozen of his fellows, among them Matthew Killroy. A battle royal ensued, until the ropewalk owner, John Gray, stopped it. That afternoon the soldiers returned in force, and this time the rope workers, in a furious brawl, drove them back to their barracks.
Ill feeling on the part of the British garrison toward the populace was thus well established. Another point in the prosecution’s attack was the conduct of the soldiers on the night of the killing. There was, they argued, a plot afoot among the members of the agth Regiment to attack anyone they caught on the street. Nathaniel Appleton told how a dozen soldiers with drawn bayonets had attacked him on the steps of his house and only fast footwork got him inside in time to bolt the door. John Appleton, “a young lad,” told how he had been with his nine-year-old brother in King Street when twenty soldiers with cutlasses in their hands attacked him. He begged them to spare his life, he testified, and one said, “No, damn you, we will kill you all,” and struck at his head with a sheathed cutlass. Thomas Marshall told how he saw “a party from the main guard, ten or twelve, come rushing out violently. I saw their arms glitter by the moonlight, hallooing, ‘Damn them, where are they, by Jesus, let them come.””
Finally, to certify the hideous and bloodthirsty character of the defendants, one Joseph Crosswell testified that the next morning he saw blood dried on five or six inches of Killroy’s bayonet.
Samuel Quincy summed up the prosecution’s evidence. He dwelt at length on testimony that accused Killroy of firing directly at Gray, and deduced that the private was guilty of murder with malice. He then deplored the conduct of the soldiers before the riot, maintaining that the church bells had rung because it was the soldiers who, rushing to the street, had cried the word “fire.” “It is probable,” declared Quincy darkly, “the word fire was the watchword. It appears to me that if we can believe the evidence, they had a design of attacking and slaughtering the inhabitants that night and they could have devised no better method to draw out the inhabitants unarmed than to cry fire!” Finally, he hammered again at Killroy, reminding the jury that it is “immaterial, where there are a number of persons concerned, who gave the mortal blow; all that are present are in the eye of the law principals. This is a rule settled by the judges of England upon solid argument.”
To the bar now stepped young Josiah Quincy to open for the defense. After a vigorous speech, in which he reminded the jurors that a soldier’s life was, from a legal standpoint, “as estimable as the life of any other citizen,” he began summoning witnesses to bolster his assertion that the soldiers had fired in self-defense. This was the climax of the Adams-Quincy tightrope act. Could the defense prove a mob was at work without pricking the jury’s civic pride and political animosity? One by one the witnesses paraded to the stand.
James Crawford told how on the way home he met “numbers of people” going downtown with sticks in their hands. The sticks were “not common walking canes but pretty large cudgels.” Archibald Wilson told of sitting in a house near Dock Square when “a certain gentleman” came in and asked how “he came to be sitting there when there was such trouble betwixt the soldiers and inhabitants.” Looking out the window, Wilson saw thirty or forty men from the North End make “two or three sundry attacks up that lane where the barracks which are called Murray’s were.”
“How were they armed that came from the North End?” Josiah Quincy asked.
“They had sticks or staves, I know not what they are called,” Wilson said.
In Dock Square Wilson found some two hundred men gathered. They surged away as if on a signal giving “two or three cheers for [ i.e. , challenging] the main guard.” Wilson followed them and was in Royal Exchange Lane, leading into King Street, when the bells rang. He said he heard voices shouting fire and remarked it was “uncommon to go to a fire with bludgeons.” Somebody told him, “they were uncommon bells.”
William Hunter, the next witness, added another significant detail to the gathering in Dock Square. He told of seeing “a gentleman” with a red cloak around whom the crowd gathered. “He stood in the middle of them and they were all very quiet; he spoke to them a little while, and then he went off and they took off their hats and gave three cheers for the main guard.”
“Was the man who spoke to these people a tall or short man?” Josiah Quincy asked.
“How was he dressed?”
“He had a white wig and red cloak, and instantly after his talking a few minutes to them they made huzzas for the main guard.”
It may well have been at this point that John Adams arose in distress to interrupt his colleague and declare that he would walk out of the case if Quincy insisted on cross-examining witnesses to such unnecessary lengths, thereby setting the town in a bad light. (The transcript of the trial does not show us exactly where this happened but we know it occurred.) William Gordon, the British historian of the Revolution, describes the incident but mistakenly places it in Preston’s trial. We must be grateful to him, nonetheless, because in John Adams’ personal copy of Gordon’s book he wrote an explanatory marginal note: “Adams’ motive is not here perceived. His clients’ lives were hazarded by Quincy’s too youthful ardor.” Could anything sum up more graphically the terrible pressure under which Quincy and Adams worked? If Quincy persuaded a witness to identify the tall, red-cloaked speaker in Dock Square (Samuel Adams was short, but Will Molineux, his right-hand man, was tall), the Liberty boys in wrathful self-defense would have almost certainly unleashed the mob, jammed the courtroom, and created the kind of atmosphere that had convicted Richardson.
The evidence Adams did tolerate was bad enough, from the Liberty viewpoint. Witness after witness confirmed that there had been mobs of Bostonians surging through the streets, armed with clubs. Doctor Richard Hirons gave some details of a scene before the barracks. As early as seven o’clock some twenty or thirty townspeople appeared there, he said, led by “a little man” who lectured four or five officers of the agth Regiment on the conduct of their soldiers in the streets. The man then began making a speech, shouting, “We did not send for you. We will not have you here. We will get rid of you.” The officers insisted they were doing their best to keep the soldiers in their barracks and urged the speechmaker to use “his interest” to disperse the people.
Next came Benjamin Davis, Jr., who shattered the prosecution’s claim that Samuel Gray was “in the King’s peace” on the night he died. Young Davis told of meeting Gray, who asked where the fire was. “I said there was no fire, it was the soldiers fighting. He said, ‘Damn it, I am glad of it. I will knock some of them on the head.’ He ran off. I said to him, take heed you do not get killed … He said, ‘Do not you fear, damn their bloods.’”
“Had he a stick in his hand?”
“He had one under his arm.”
Now Quincy concentrated his fire on the scene in Dock Square. Patrick Keaton saw “a tall mulatto fellow, the same that was killed; he had two clubs in his hand and he said, ‘Here take one of them.’ I did so.” Nathaniel Russell, chairmaker, said he saw trouble coming and “intended to retreat as fast as I could. I had not got three yards before the guns were fired.”
“How many people do you imagine were then gathered around the party?”
“Fifty or sixty able-bodied men.”
“Did they crowd near the soldiers?”
“So near, that I think you could not get your hat betwixt them and the bayonets.”
“How many people do you think there might be in the whole?”
“About two hundred.”
“Did the soldiers say anything to the people?”
“They never opened their lips; they stood in a trembling manner, as if they expected nothing but death.”
This hit the prosecution so hard that they introduced a Crown witness, one John Cox, a bricklayer, who testified that he saw three soldiers threatening, earlier in the evening, to chop down or blow up Boston’s sacred Liberty tree. They also threw in a future Revolutionary War general, Henry Knox, who said that Preston and his squad, while forcing their way through the crowd, behaved “in a very threatening” manner. “They said, ‘Make way, damn you, make way,’ and they pricked some of the people.”
But the defense returned relentlessly to the evidence of riot. Benjamin Burdick admitted he stood in the front ranks of the crowd brandishing a highland broadsword. Newton Prince, a free Negro, told of watching people with sticks striking the guns of the soldiers at the right wing of the squad. Andrew, the Negro servant of Oliver Wendell, placed special emphasis on the conduct of Crispus Attucks. He told of seeing Attucks knock Killroy’s gun away and strike him over the head. “The blow came either on the soldier’s cheek or hat.” Holding Killroy’s bayonet with his left hand, Attucks tried to tear the gun loose, crying, “Kill the dogs. Knock them over.” But Killroy wrenched his gun free, and Andrew, sensing imminent bloodshed, “turned to go off.” He had gotten away “only about the length of a gun” when the first man fired.
“Did the soldiers of that party or any of them,” Quincy asked, “step or move out of the rank in which they stood to push the people?”
“No,” Andrew replied, “and if they had they might have killed me and many others with their bayonets.”
Finally John Adams played his trump card, Doctor John Jeffries. Though he later became a Loyalist exile, Jeffries was one of Boston’s most respected physicians. When Adams was representing America in London in the 1780’s, he retained him as his family doctor. Jeffries told how he had been called to attend Patrick Carr, who had been mortally wounded in the firing. Carr lived nine days, and Jeffries conversed with him several times about the brawl. Carr told how he had been drawn from his boardinghouse by the ringing bells and had followed the crowd up Cornhill to King Street. Carr had not been in the front rank of the rioters. He was on the other side of the street circling the outer rim of the crowd when the guns began to fire, and obviously was hit by a wild bullet. Jeffries asked him whether he thought the soldiers would fire: He told me that he thought that the soldiers would have fired long before. I then asked him if he thought the soldiers would have been hurt if they had not fired. He said he really thought they would, for he had heard many voices cry out “Kill them.” I asked him then, meaning to close all, whether he thought they fired in self-defense or on purpose to destroy the people. He said he really thought they did fire to defend themselves; that he did not blame the man, whoever he was, who shot him. … He told me also that he was a native of Ireland, that he had frequently seen mobs and soldiers called upon to quell them: whenever he mentioned that he always called himself a fool, that he might have known better, that he had seen soldiers often fire on the people in Ireland, but had never seen them bear half so much before they fired in his life.
All by himself, Jeffries blew up ninety per cent of the prosecution’s case. Proof of their consternation was the sudden production of additional witnesses at the very end of the trial. They were not particularly effective, merely reiterating what had been said before.
Josiah Quincy summed up for the defense. In a long, emotional speech he reviewed the evidence, urging the jurors to ask themselves crucial questions. “Was the sentinel insulted and attacked? Did he call for assistance, and did the party go to assist him? Was it lawful for them so to do? Were the soldiers when thus lawfully assembled, assaulted by a great number of people assembled? Was this last assembly lawful?” He closed with a moving appeal to mercy, quoting Shakespeare on the subject, asking the jurors to guarantee themselves “an absolving conscience” when the “agitations of the day” had subsided.
John Adams now took the floor to close for the defense. Thus far he had spoken little; Quincy had handled the interrogation of the witnesses. But everyone, jurors included, knew that Adams was the heart and head of the defense. His words would have a finality that Quincy, for all his emotion, could not convey.
Adams began with a direct and simple statement of his professional role: “I am for the prisoners at the bar.” He would apologize for it, he said, only in the words of Cesare Beccaria, the eminent Italian jurist of the period: “If I can but be the instrument of preserving one life, his blessing and tears of transport shall be a sufficient consolation to me, for the contempt of all mankind.”
In a quiet, matter-of-fact voice Adams proceeded to explain the law of homicide to the jury, and then applied the legal principle of self-defense to the situation of the soldiers in King Street, “with all the bells ringing to call the town together … [and] they knew by that time that there was no fire; the people shouting, huzzaing, and making the mob whistle … , which when a boy makes it in the street is no formidable thing, but when made by a multitude is a most hideous shriek, almost as terrible as an Indian yell; the people crying, ‘Kill them! Kill them! Knock them over!’ heaving snowballs, oyster shells, clubs, white birch sticks …” Consider, he asked the jury, whether any reasonable man in the soldiers’ situation would not have concluded the mob was going to kill him.
Next he cited the law on riot: “Wheresoever more than three persons use force or violence, for the accomplishment of any design whatever, all concerned are rioters.” Were there not more than three persons in Dock Square? Did they not agree to go to King Street and attack the main guard? Why hesitate then to call this so-called assembly a riot?
Perhaps at this point Adams saw the jurors’ faces clouding. He swiftly led their emotions in the opposite direction by distinguishing between rioters and rebels. “I do not mean to apply the word rebel on this occasion: I have no reason to suppose that ever there was one in Boston, at least among the natives of the country; but rioters are in the same situation as far as my argument is concerned, and proper officers may suppress rioters and so may even private persons.”
From 11 A.M. to 5 P.M. Adams examined the law and the evidence, frequently reading directly from authorities to bolster his arguments. The next morning he continued his summation, examining the testimony of various witnesses. He dismissed the Crown’s attempt to prove Killroy’s malice. “Admitting that this testimony is literally true and that he had all the malice they would wish to prove, yet if he was assaulted that night and his life in danger, he had a right to defend himself as well as another man.”
The witnesses who had described Crispus Attucks’ belligerent behavior were cited. Attucks was, said Adams, “a stout mulatto fellow whose very looks was enough to terrify any person … He had heartiness enough to fall in upon them [ i.e. , the soldiers] and with one hand took hold of the bayonet and with the other knocked the man down.” It was to Attucks’ “mad behavior, in all probability, the dreadful carnage of that night is chiefly to be ascribed.”
Proving he could play on the prejudices of the jurors as skillfully as he could cite the law, Adams added: “And it is in this manner this town has been often treated; a Carr from Ireland and an Attucks from Framingham, happening to be here, shall sally out upon their thoughtless enterprises, at the head of such a rabble of negroes, etcetera, as they can collect together, and then there are not wanting persons to ascribe all their doings to the good people of the town.”
The law, Adams declared, was clear. The soldiers had a right to kill in their own defense. If the attack on them was not so severe as to endanger their lives, yet if they were assaulted at all, the law reduces their offense to manslaughter.
Finally came a soaring peroration. To your candor and justice I submit the prisoners and their cause. The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady, undeviating course. It will not bend to the uncertain wishes, imaginations, and wanton tempers of men … On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder, to the clamors of the populace.
Once more Robert Treat Paine strove to rescue the prosecution’s collapsing case. But he was in retreat all the way. “I am sensible, gentlemen,” he began, “I have got the severe side of the question to conduct.” He wasted time trying to justify the presence of so many armed citizens on the streets, renewing the argument that the soldiers had started the trouble first. He had nothing whatsoever to say about Doctor Jeffries’ report of Carr’s words, insisting instead on his witnesses’ versions of the conduct of Attucks and Gray: “Attucks, fifteen feet off leaning on his stick, Gray, twelve feet off with his hand in his bosom.” He ended by concentrating his fire on Killroy, calling his deliberate murder of Gray “beyond dispute.” He all but gave up on the other soldiers in his closing lines. “You must unavoidably find him [i.e., Killroy] guilty of murder. What your judgement should think of the rest, though the evidence is undoubtedly the fullest against him, yet it is full enough against the rest.”
The next morning, Justice Trowbridge charged the jury. It was a long and careful examination of the evidence and the law, most of which had already been covered by John Adams. But Adams must have stirred uneasily when he heard Trowbridge couple the words “riot and rebellion,” and add a remark that the law in regard to treason should be “more generally known here than it seems to be.” Judge Peter Oliver went even farther down this risky path. He declared that the riot had been perpetrated “by villains.” As for the tall man in the red cloak and white wig, “that tall man is guilty in the sight of God of the murder of the five persons mentioned in the indictment.”
Thus instructed, the jury withdrew. Two hours and a half dragged slowly by while the defense attorneys undoubtedly sat there fearing the worst. Finally, a door behind the bench opened, the twelve countrymen filed into their places, and the foreman, Joseph Mayo of Roxbury, arose to give the verdict. “William Wemms, James Hartegan, William McCauley, Hugh White, William Warren, and John Carroll: Not guilty . … Matthew Killroy and Hugh Montgomery, Not guilty of murder but guilty of manslaughter.”
John Adams rose instantly and asked the benefit of clergy for Killroy and Montgomery. The judges dismissed the six acquitted men and quickly granted Adams’ plea. ("Benefit of clergy,” by 1770, had been interpreted to include anyone who was literate; and the “clergyman’s” penalty for manslaughter was branding on the thumb.)
On December 14, Killroy and Montgomery were brought back to court. They read a passage from the Bible to establish their literacy, and prepared for the shock of the glowing iron. Adams recalled later he “never pitied any men more … They were noble, fine-looking men; protested they had done nothing contrary to their duty as soldiers; and, when the sheriff approached to perform his office, they burst into tears.”
For Preston and the soldiers, the ordeal was over. They went their various ways, and John Adams saw only one of them again. Years later, when he was ambassador of an independent America to the Court of St. James’s, he recognized Preston as he passed by on a London street. For bearing his part of the ordeal with patience and dignity, Preston, retiring from the army almost immediately, received a pension of two hundred pounds a year from the King. The enlisted men, as was their lot in those days, received nothing.
In his diary and later letters, John Adams maintained that his “disinterested action” in defending the soldiers was “one of the best pieces of service I ever rendered my country.” Samuel Adams did not think so, at least in public. Writing under the name Vindex , he denounced the jury’s verdict and the defense arguments in a series of scathing articles in the Boston Gazette . But Samuel Adams was a very subtle man. Privately, his friendship with John became even more intimate; early in the following year, when John Adams took his family home to Braintree and became a commuter to his city law office, he frequently ate breakfast, lunch, and dinner at his “brother” Samuel’s house.
Did Samuel Adams realize that without John at the defense table, the trials might well have sent him and other leaders of the Liberty party, such as the man in the red cloak, to London under arrest for treason? Did the trials enable John to convince his cousin that the Liberty policy of violence had come close to destroying the cause, and must be modified henceforth? Both conclusions seem almost inescapable. But two years later, patient Cousin Samuel revealed another reason for his friendship. He had organized an annual extravaganza to commemorate the death of the Massacre victims with prayers and fierce anti-British oratory. In 1772, Samuel asked John to make the principal address. It would have been a most satisfactory way of including him at last on the Boston side of the case. But John Adams was still his own man. He quietly declined, explaining that he felt “I should only expose myself to the lash of ignorant and malicious tongues on both sides of the question.”
There the matter would have undoubtedly remained if Parliament had not foolishly reignited the quarrel with the colonies the following year. The dead rioters thereby became enshrined in American folklore as martyrs. And John Adams was able to stand beside his Cousin Samuel with a clear conscience in the struggle against British oppression. That John won the larger place in history should not be surprising to anyone who penetrates beyond the patriotic myth to the interior drama of this great but little-understood trial.