John Adams: Defense of the Boston Massacre Soldiers

By James Grant

Pealing church bells called John Adams into the moonlit Boston street on the night of March 5, 1770. Erroneously supposing that they tolled for a fire, he joined the streaming crowd—firefighting in those days was a community effort. He was carried along to King Street, where a file of redcoats was formed up at a distance from some blood-stained ice. Nearby two townspeople lay dead; three were mortally wounded.

Adams, who had been spending a convivial evening in the South End with members of his club, now thought of home. A month before, Abigail and he had buried their baby girl, Susanna, whom they called Suky. This night Abigail, once again pregnant, was alone except for her maids and “a boy” (presumably John Quincy, not yet three). Hearing the news, she would want him by her side, as he would want to be there. He turned for home and passed more British troops, bayonets fixed in their shouldered muskets. They were as still as “marble statues.”

 

In the wee hours of March 6 a warrant was issued for the arrest of Captain Thomas Preston, forty years old, an Irishman and the officer in charge of the troops who did the shooting; he was jailed at about 3 a.m. Eight soldiers under Preston’s command were clapped into prison later the same day. Preston, regarded even by the Whigs as a competent and level-headed officer, was identified by certain witnesses as the source of an order to fire upon the innocent Bostonians. Evidence later would show that Preston had done no such thing. Boston at the moment, however, was in no mood for an impartial sifting of the facts. Extreme patriots regarded the absence of a lynching of Preston and his men as proof of the impartiality of Boston justice.

John Adams, possessing strong patriotic views by refusing to express them on any terms but his own, sometimes was suspected of a lack of Whiggish zeal. But on the eve of the shooting—the “Boston Massacre,” as Sam Adams lost no time in styling it—his mind and heart were united in the cause. At the end of February he had witnessed a public outpouring of grief and anger over the death of a boy whom a customs official had shot and killed during a set-to outside the official’s house. The spectacle moved Adams to express a frankly revolutionary idea: “There are many more Lives to spend if wanted in the Service of their Country,” he wrote in his diary.

When not espousing the cause of liberty, Adams was making his mark in the law, all branches of it, criminal as well as admiralty, riparian, and commercial work. “God bless Mr. Adams,” cried one satisfied customer—Samuel Quinn, accused of rape but exonerated—in 1768. “God bless his Soul, I am not to be hanged.” So it was nothing out of the ordinary when an overwrought loyalist merchant appeared at his office door on the morning after the shooting to seek representation. Would Adams defend Preston? No contemporaneous account exists of the meeting, which Adams described from memory years later: “With tears streaming down his Eyes, he said I am come with a very solemn Message from a very unfortunate Man, Captain Preston in Prison. He wishes for Council, and can get none.” Josiah Quincy and Robert Auchmuty, first-class lawyers, had provisionally agreed to help—but only if Adams would participate.

We have only Adams’s word for the noble speech he delivered to the merchant, James Forrest, but it would not have been out of character: “I had no hesitation in answering that Council ought to be the very last thing that an accused Person should want in a free Country. That the Bar ought in my opinion to be independent and impartial at all Times And in every Circumstance. And that Persons whose Lives were at Stake ought to have the Council they preferred: But he must be sensible this would be as important a Cause as ever was tried in any Court or Country of the World: and that every Lawyer must hold himself responsible not only to his Country, but to the highest and most infallible of all Trybunals for the Part he should Act. He must therefore expect from me no Art nor Address, No Sophistry or Prevarication in such a Cause nor any thing more than Fact, Evidence and Law would justify.” Forrest replied that that was all the defendant wanted. Payment of a single guinea constituted Adams’s retainer.

Certainly this act of high-minded professionalism did not endear Adams to every Boston patriot. Josiah Quincy’s decision to serve on the defense team shamed his father. Yet on June 6, when an election was held in Boston to fill a newly vacant position on the General Court, Adams received 418 out of 536 votes cast. As was customary, the candidate did nothing on his own behalf. Presented with the news of his victory, he made the expected appearance at Faneuil Hall and said the conventional things. Also true to form, he poured out his second thoughts to Abigail. Here he was, he said, in feeble health but in the full bloom of professional success. Now he was preparing to throw away his life—for surely, where could the cause lead except to trouble, even death? —for the sake of his duty. Follow duty wherever it leads she tearfully urged.

* * *

On March 12, a week after the shootings on King Street, an advertisement appeared in the Boston Gazette, the Whigs’ paper (affectionately known to the Tories as the “Weekly Dung Barge”), placed by none other than Captain Preston. In it the defendant extended “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 stept forth Advocates for Truth in Defense of my injured Innocence.”

In the opinion of the Boston mob, the best resolution of the cases of Preston and his men, short of immediate hangings, was an instant trial, conducted while the town was still on the boil. But Hutchinson deftly deflected this hope, and the proceedings were postponed until the autumn. An indictment and arraignment dated September 8 charged that Preston and the other defendants, “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 commit murder, “against the peace of the said Lord the King, his Crown and Dignity.”

Jonathan Sewall drew up the indictment in his capacity as attorney general. The case was his to prosecute, but he didn’t believe in it. Indeed, he had not prosecuted any of the soldier-citizen cases that had come before him since the military occupation began. Sewall might have resigned his post in protest. Instead, he abandoned it, much to Adams’s disgust, quitting Boston and retiring to his Middlesex home for a year of peace and quiet.

The politically explosive prosecution devolved to Samuel Quincy, a Harvard classmate of Adams’s. In sole consideration of his Tory politics, Quincy might have preferred a place on the defense. However, there was already a Quincy helping Adams: Josiah Quincy was Samuel’s brother. A third member of the defense team, Robert Auchmuty, was not only a leading loyalist but also a judge of the Massachusetts Vice Admirality Court. Assisting in the prosecution was the man who had once called Adams a “Blunder Buss,” Robert Treat Paine.

British officers worried that Adams, Auchmuty, and Quincy lacked the fire to win against long odds. In Boston the view was prevalent that “Innocent blood had been shed and somebody ought to be hanged for it.” But Preston’s friends could have put their minds at ease. For reasons never fully explained, at least five dyed-in-the-wool loyalists found their way onto the captain’s jury. Inasmuch as conviction required a unanimous vote, the outcome of the trail was settled almost as soon as the jurors were impaneled.

By millennial standard of impartiality, John Adams was a compromised participant in the massacre proceedings. He was engaged to defend Captain Preston, but a successful and vigorous defense was likely to undermine the standing of the men under Preston’s command, whom Adams was also defending. The soldiers had done the shooting. The captain’s crime, if any, had been to order them to fire without sufficient provocation. Preston’s simplest line of defense was to deny that he had ever given the order to shoot (which indeed he did deny). The best and simplest defense for the soldiers, on the other hand, was to maintain that they had acted under orders.

Yet, by the standards then prevailing, no conflict of interest existed. No one seemed to object to the presence of a pair of brothers on opposite sides of the issue, much less to the apparent opposition of the brace of Adamses. Neither did the presence, on the witness list, of Adams’s law clerk, Jonathan Williams Austin, excite comment. The trial—Preston’s—began on October 24 at the new courthouse on what it today Court Street. The soldiers’ trial would follow.

The productivity of the American legal system has made no noticeable progress since the days of candlelight, wigs, and quill pens. A half-dozen civil verdicts a day issued from a typical Boston court; up until the massacre, few criminal cases in America had lasted more than a day. The Preston trial shattered records and pointed the way to the era of elongated justice.

Scores of witnesses were called. Few facts were attested to by everyone, but the outlines of the story clearly emerged. Private Hugh White, a lone British sentry at the corner of King Street and Royal Exchange Lane, had had words with some Boston apprentices. Words finally failing him, he swung his musket butt, striking one of them. The victim cried in pain. Grown men, including members of Sam Adams’s irregulars, armed with clubs and staves, arrived. White called for help. Six privates and a corporal, led by Preston, hurried to relieve him. Bells rang, and the crowd grew. Snowballs and debris pelted the relief party. “Damn you, you sons of bitches, fire,” a patriot shouted. “You can’t kill us all.”

While this was taking place, a costumed figure in Dock Square harangued a crowd against the British. Possibly this patriot was “Joyce Junior,” the living and breathing specter of Cornet George Joyce, who had led the troops who took Charles I into custody in 1647. With his white wig, jackboots, and red coat, the ghost of Joyce was a familiar political symbol to  Bostonians. What he told his audience on the night of March 5 is unrecorded. However, it might be supposed that a hero of the Puritan revolution would not waste an opportunity to draw instructive comparisons between King Charles’s abusers of royal authority.

Back on King Street, crowds pressed in on the British soldiers, who poked back with bayonets. The civilians dared them to shoot— “Fire and be damned” — and showered them with ice shards and oyster shells. A flying stick sent Private Hugh Montgomery sprawling to the ice. In a rage, he picked himself up, raised his musket, roared “Damn you, fire!” and squeezed the trigger. More muskets rattled. Men fell. It seemed incredible to witnesses that these bodies in the street were actually dead. The townspeople had come to assume that the soldiers would never take lethal action, even in self-defense.

Did Preston give the fatal command? If he did, was he justified? Were he and his men in mortal danger? And even if the opening shot was defensible, what about subsequent rounds? On the answers to these questions hung Preston’s life as well as John Adams’s reputation.

The first day of the trial featured jury selection—a triumph for the defense—and preliminary argument. One of the crown’s witnesses testified that he had heard Preston say, “Damn your bloods, fire again, let the consequence be what it will,” or a slight variation on that none-too-terse command. The day’s business closed with a reprieve for the jury. Contrary to common-law usage, they would not be deprived of food, drink, light, and fire until they delivered a verdict. Duly sequestered (at the neighboring house of the jailkeeper), they ate and drank punch, wine, flip, and toddy—fortifying items on the colonial menu.

On the second day Preston listened to some of the most damaging testimony of the trial. “I looked the officer in the face when he gave the word and saw his mouth,” said the crown’s witness. “. . . I saw his face plain, the moon shone on it. I am sure of the man though I have not seen him since before yesterday when he came into Court with others. I knew him instantly.” A second witness swore that Preston, struck by a civilian, had drawn his sword and exclaimed, “Damn your bloods, fire! Think I’ll be treated in this manner?” After the men fired their first volley, said this man, Preston ordered a second.

This marked the high point of the prosecution’s case. On the third day, the defense went to work. Richard Palmes, a merchant and sometime Son of Liberty, effectively negated the crown’s strongest witnesses by swearing that he could not be sure who gave the command to fire, though he was staring straight at Preston when he heard the cry. Testimony equally effective at sowing reasonable doubt was provided by a black slave for whom no last name was given. Andrew, the property of Oliver Wendell, great-grandfather of Justice Oliver Wendell Holmes, described a scene that an impartial witness would have had to admit was mortally threatening to the defendant and his men. “Kill him. Knock him over!” screamed onlookers as one of the civilians wielded a club against a soldier. A voice did cry “Fire,” said Andrew, but it came from beyond the point where Preston was standing.

Preston suffered one mortification that did not come from the witness box. An intense and quite audible argument broke out between the defense lawyers over the advisability of bringing to light the threatening conduct of the townspeople leading to the shootings. Josiah Quincy favored it, but Adams resisted. When Quincy pressed his point, Adams threatened to resign from the case. Preston would be acquitted without this politically volatile and tactically redundant line of inquiry, Adams said. (Indeed, to inflame the town would only put Preston’s life in greater jeopardy.) Preston, not so sure as Adams about acquittal, and in any case not inclined to withhold any evidence on the authentically murderous character of the mob, floated the idea among his friends of replacing Adams for the rest of the trial. But there was nothing to be gained by such an impulsive action, even if Adams had been mistaken, which he was not. The crisis passed.

On the morning of the fourth day, Saturday, October 27, Adams rose to give the first of the defense’s closing arguments. If Preston still harbored doubts about his famous Whig attorney, he soon had reason enough to lay them aside.

“It is better five guilty persons should escape unpunished than one innocent Person should die,” Adams began, quoting Hale’s Pleas of the Crown. He next explained the law as it bore on mob actions, and he reminded the jury of Blackstone’s view of self-defense: it is the “primary Canon of the Law of Nature.” He then moved on to the evidence, masterfully picking apart the weaknesses and inconsistencies in the crown’s case and passing quickly over the damning portions. Instead of challenging the truthfulness of the prosecution’s witnesses, he noted the fallibility of human perception. Honest men could disagree about passion-stirring events. He was embarking on an exegesis of Preston’s side of the case when Thomas Hutchinson appeared in the courtroom. Adams’s nemesis was, technically, chief justice of the court, as well as lieutenant governor. Today, however, he appeared before the proceedings as a witness for the defense. (For this reason he was not on the bench.) “Had I wanted an Officer to guard against a precipitate action,” said the man Adams loathed, in vouching for the character of Adams’s client, “I should have pitched upon him as soon as any in the Regiment.”

It was October 29 before the jury was charged, and the thirtieth when it rendered its verdict: not guilty. Possibly the defendant and his attorney shook hands. Years later, however, when Adams was in London as U.S. minister, Preston and he happened to pass each other on the street one day. Neither man said a word to the other.

Adams had a week or ten days in which to prepare for the second and final massacre, Rex v. Wemms et al. That the wheels of justice did not turn without lubrication in those days is obvious from the itemized expenses for which Adams later sought reimbursement from the British army. They included private investigators (“certain people employed to enquire about town and collects Affidavits and Evidences”), postage, attorney’s feed, and gifts for those who required them: “small presents to particular people in Boston” and “Turnkeys fees and Civility money.”

Precious little civility was accorded to the soldier-defendants—William Wemms, the corporal of the guard, and seven privates. Taking their lead from the attitude of the British officers who commanded them, the Bostonians barely acknowledged the men’s humanity. Preston, though esteemed as an officer and a gentleman, repeatedly sloughed responsibility for the shootings onto his own troops. It did not raise these nullities in the estimation of the Boston saints that many of the soldiers were practicing Roman Catholics. And Adams’s superior work in the first trial was of dubious benefit to the defendants in the second. The inference to be drawn from the Preston verdict was that they had fired without a lawful order. To the Whigs, they were murderers.

For the student of John Adams’s life and thought, the most important feature of the second massacre trial was the presence in the courtroom of a shorthand writer. There was no such thing in Boston as a trained court reporter, but John Hodgson was the functional equivalent. His dashing pen preserved not only reams of mundane testimony but also the text of Adams’s closing argument, esteemed by Hiller B. Zobel as a “masterpiece of political tightroping and partisan invective, wrapped inextricably in a skillful, effective jury argument. Its effectiveness is shown by the results obtained: none of the defendants were hanged. Six were acquitted, and two were found guilty of manslaughter. (Their punishment was to be branded on the right thumb by the Boston sheriff.) More than this, however, the speech illuminated the core of Adams’s political thought, especially his view of the human material of which politics is made. It shows him in the process of becoming a conservative revolutionary, a role that would baffle and mystify his political adversaries for years to come.

Adams opened his remarks with a reference to his own precarious position as a Boston Whig. “I am for the prisoners at the bar,” he said, not forgetting himself even in these dramatic circumstances, “and shall apologize for it only in the words of Marquis Beccaria: ‘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.’” He repeated his admonition to the Preston jury that it was better that a guilty man escaped than that an innocent one be punished. This familiar doctrine, however, he lightly dressed in legal scholarship: “there never was a system of laws in the world, in which this rule did not prevail,” from ancient Rome to the Inquisition. The prisoners were charged with murder, but Adams asked the jurymen to consider the many circumstances in which homicide was justifiable under the law. There was nothing inherently wrong with a man in the king’s service using lethal force. Only remember the glorious conclusion to the French and Indian War: “every instance of killing a man, is not a crime in the eye of the law.”

Adams sang the praises of self-defense, as any defense lawyer would have, but he went on to set the scene in King Street on the night of March 5 in a manner worthy of a playwright: “the people shouting, huzzaing, and making the mob whistle as they call it, 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 snow-balls, oyster shells, clubs, white birch stick three inches and an half diameter, consider yourselves, in this situation, would not have concluded they were going to kill him.” Then Adams asked the jurymen to imagine the scene in reverse, with the supposedly martyred townspeople facing a howling men of redcoats—this, he said, “should bring it home to our own bosoms.”

John-Adams-Party-of-One-by-James-Grant

Excerpted from John Adams: Party of One by James Grant

Copyright 2005 by James Grant.

Reprinted with permission from the publisher.

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