The Boston Massacre Trials

Source

Civil Disorder. Law and order deteriorated in Boston in the late 1760s as resistance to British rule developed into mob rule. In 1765, as part of the protest against the Stamp tax, a mob attacked the newly appointed tax collector, Andrew Oliver, brother of superior court justice Peter Oliver, and invaded and ransacked his house. He resigned his office the next day. Merchants’ groups in several colonies agreed that boycotting British goods might be an effective form of protest, and they resolved not to import or sell British goods. In Boston, mob action enforced these promises of nonimportation and also thwarted efforts by the customs authorities to enforce the customs laws. Gov. Francis Bernard petitioned for British troops to help maintain a civil order. His pleas were answered in September 1768 when six hundred British troops landed in Boston.

Wintery Night. The presence of the troops seemed to have no effect in reducing the mob rule and the attacks upon the tax collectors, but their presence increased tensions between citizens and government. On 5 March 1770 a crowd confronted a squad of eight British soldiers. The soldiers were taunted by schoolboys throwing snowballs and felt threatened by a mob of men carrying clubs. Finally the eight soldiers loaded their muskets and formed a single line facing the crowd. Their commander, Capt. Thomas Preston, stood in front of his soldiers, urging the crowd to disperse, but to no avail. Someone yelled “Fire!” and shots rang out. The soldiers and the mob battled briefly, and when the fighting ceased, five civilians were dead. Captain Preston and the eight soldiers were arrested that night.

Getting Ready. Preparations for the trial began almost immediately. Witnesses were summoned to appear before justices of the peace to give depositions, and the military collected statements from more than ninety witnesses as well. The Sons of Liberty raised funds to help prosecute the soldiers and urged the hiring of a strong prosecutor to press the criminal case. They also tried to ensure that the defense be well represented too, so no one would suggest (after the expected convictions) that the proceedings had not been fair. John Adams was asked to represent Preston. Adams

took the captain’s case because he believed the defendant was entitled to counsel and it was his obligation as a member of the bar to provide that service. He also agreed to defend the soldiers.

Defense Counsel. Adams, in preparing for the trials (the captain would be tried separately from the soldiers) faced a problem of tactics, which today would be considered one of professional ethics. Captain Preston had not actually killed anyone. He was accused of ordering his men to fire without sufficient provocation. The best defense for him was to deny that he had given the order to fire. The men, on the other hand, would have to argue that they fired because the captain had ordered them to do so, and had they disobeyed they would have been subject to a military punishment. This conflict between the interests of the two sets of defendants would in present-day courts prevent Adams from representing both the captain and the soldiers. However, the rules were not as strict at that time, and Adams did not step down.

Preston. Captain Preston’s trial took five days, an unusually long time for a criminal trial in that era. The prosecution called more than twenty witnesses, who described the scene leading up to the shooting. Little by little they painted a picture of noise, confusion, and threats, and there were conflicting stories about whether Preston had ordered the men to fire. Some witnesses said they had heard him yell “Fire!” Others testified that church bells were ringing and some of his words, such as “Hold your...” might have been drowned out. Other witnesses said that someone in the crowd had yelled “Fire!” The cross-examination of these witnesses and the testimony of the twenty-two defense witnesses merely added to the uncertainty. The jury took only three hours to reach a verdict of not guilty.

DEDICATED PROFESSIONAL

John Adams described how he became the lawyer for the British captain and his soldiers. In his Autobiography (1850-1851) he described the street scene immediately after the shooting and his reaction to it and then went on:

The next morning...Mr. Forrest [a Loyalist Boston merchant] came in.... With tears streaming from his eyes, he said Captain Preston [is] in prison. He wishes for counsel and can get none. I have waited on Mr. [Josiah] Quincy, who says he will engage if you will give him your assistance: without it positively he will not.... I had no hesitation in answering that counsel 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 counsel they preferred.... [E]very lawyer must hold himself responsible not only to his country, but to the highest and most infallible of all tribunals.... He must therefore expect from me no art or address, no sophistry or prevarication in such a cause; nor anything more than fact, evidence and law would justify.... [Forrest said he thought Preston was innocent.] I replied that must be ascertained by his trial, and if he thinks he cannot have a fair trial without my assistance, without hesitation he shall have it.

The Soldiers. The eight redcoats went to trial a month later. No one contested the fact that five civilians were dead. The prosecution needed to prove that the eight soldiers were present at the massacre and that each had fired his musket. Then the burden would shift to the defense to prove that the firings were provoked, so that the deaths would be justifiable as self-defense. The testimony of the witnesses was similar to that in Preston’s trial. The focus, however, was on the commotion, the taunting, and the apparent threats. Witnesses testified about iceballs and pieces of firewood being thrown at the

troops. Several witnesses were sure that two of the soldiers had fired their muskets, but there was no testimony from any witness about the other six. The jury obviously thought that the soldiers had been provoked but perhaps should have waited longer before firing. They found the two who had fired guilty of manslaughter instead of murder and the other six not guilty of all charges.

The Sentences. The two soldiers, when they appeared in court for sentencing, claimed “benefit of clergy.” This practice dates back to medieval times when a rivalry existed between the royal courts and church courts. A clergyman could not be tried in a civil court for most crimes. To prove his status as clergy, at a time when only clergy were literate, the clergyman had merely to read a passage from the Bible. This entitled him to the benefit of clergy, thereby escaping punishment. In time this practice was extended to all literate defendants and then to anyone who was a first offender. To prevent an offender from claiming the benefit a second time, he was subjected to branding on his thumb, and these two soldiers were so marked.

Public Reaction. The townspeople reacted rather calmly to the not-guilty verdicts. A debate in the newspapers followed, just as today, when litigants and lawyers retry their cases in the press. Adams later wrote that he heard his name “execrated in the most opprobrious terms” whenever he appeared in Boston thereafter. Perhaps it is significant that after a period of five years in which law and order had been displaced by mob rule, there was no violent reaction to the acquittals. The two juries performed their duties and reached unpopular verdicts, but many seemed to recognize that they had, given the evidence, followed their consciences.

Source

Hiller B. Zobel, The Boston Massacre (New York: Norton, 1970).