The day following the shooting on King Street was a Tuesday. Early that morning, the commanding officer, Captain Thomas Preston, turned himself in to the justices of the peace. Sitting in the stone prison, Preston realized he would need a lawyer immediately. The officer was sure a Boston court would convict him if his fate were “life left to the mercy of a partial Jury.” The only route to saving his life would be a royal pardon, “and God knows if it will come time enough to save me from a shameful end,” he wrote to a possible patron in England. But without a lawyer, he certainly had no chance.
How a future president of the United States, John Adams, became the leading lawyer for British soldiers has become the stuff of legend, created in large part by Adams himself through his autobiography. As he explained many years later, he took the cases despite their potential to ruin his reputation as a patriot, “incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read.”
Sitting in his office on the day after the shooting, Adams later recalled, he received a visit from a local merchant, James Forrest, who had become friendly with several of the army officers over the previous year and a half. “With tears streaming from his eyes,” Forrest choked out, “‘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.’” In words that are frequently repeated to members of the Massachusetts bar to this day, Adams responded, “Council ought to be the very last thing that an accused Person should want [that is, lack] in a free Country.” And so John Adams, in his recollection, took on Preston’s case.
By Adams’s account, Forrest had gone first to two other lawyers, Josiah Quincy Jr. and Robert Auchmuty, neither of whom would represent Preston until and unless Adams himself agreed to join the legal team. Robert Auchmuty was a strong supporter of the government, and Josiah Quincy Jr. was a young lawyer, committed to the liberty party and younger brother to Samuel Quincy, the Massachusetts solicitor general.
Certainly, Quincy’s father was “anxious and distressed” about his twenty-six-year-old son taking on the case. Quincy assured his father that he had taken some time to reflect on whether or not he should help Preston, and decided to do so only after being urged by many Sons of Liberty, including “an Adams, a Hancock, [and] a Molineux.” Moreover, in a letter reproduced by Quincy Jr.’s granddaughter fifty years after Josiah Quincy’s death, the son reminded his father of “an attorney’s oath and duty,” a commitment that sounded quite similar to Adams’s right to counsel.
In fact, Preston was not the first army officer Quincy had represented. As we have seen, in June 1769, Quincy represented Ensign William Fitzpatrick after he was accused of attempted assault on Susannah Dalton. In that case, Forrest had put up the hundred-pound bail for Fitzpatrick. Given that they had already worked together once, it must not have taken long for Forrest to think of Quincy as a possible lawyer for Preston.
Meanwhile, the question of the prosecution’s legal counsel was also complicated. Every case of murder is prosecuted not by the human victim but by the state. So while the defense would speak for the accused military men, in eighteenth-century Boston, the prosecution would speak for the king. It was a strange position: the prosecution and the defense seemed to change sides. The royal government that had so backhandedly brought the troops to Boston now needed to appoint a lawyer who would try to prove that these troops had acted illegally. In a sense, prosecution lawyers seemed to be prosecuting their own principles.
It was not easy to find a prosecutor. The job would ordinarily have been taken on by the attorney general, John Sewell, but he seemed to have no appetite for the task. The prosecution then fell to the Massachusetts solicitor general, Josiah Quincy’s brother Samuel. As a committed member of the liberty party, Samuel’s father did not seem to have concerns about his son taking on the prosecution of the soldiers. Yet although Samuel’s loyalist leanings had not yet emerged in 1770, by virtue of his appointment as solicitor general, Samuel Quincy was already a government man. He would soon be on the outs with his father.
The Boston Town Meeting was concerned that the Crown, in the person of Samuel Quincy, would not have the stomach to bring an adequate case against its own troops. Feeling it would be best to hire another lawyer to help Quincy and ensure he was trying hard enough, the town meeting “pitched upon” the lawyer Robert Treat Paine. Although he had not been involved in the Boston liberty party, Paine had had a legal practice in Boston until 1761, when he moved to the small town of Taunton, from which he kept up his professional and personal connections to Boston. To their disappointment, the town meeting members were informed by the selectmen that the town of Boston could not bring a criminal prosecution against the soldiers. Paine, as the representative of the deceased’s relatives, would have to stand in for Boston.
To help Paine prepare for the case, the merchant William Molineux sent him an early copy of the Short Narrative. Paine dutifully worked his way through the depositions, coding each one with a few words that revealed the prosecution’s line of attack. “Threats,” he jotted next to many of the depositions; “first insults” he added to others. The prosecution might be formally representing the Crown, but Paine at least would argue that soldiers had threatened, insulted, and deliberately shot Bostonians.
The town of Boston, even its more determined adherents to the liberty party such as William Molineux, seemed to be taking two tracks at the same time. On the one hand, it hired Paine to ensure that the prosecution of the soldiers would be robust and thorough. On the other, the town was eager to show how law-abiding a community it was. Not only would the case be tried on its merits, but the defendants would get the best possible representation. Hiring counsel had become the opening salvo in the battle for reputation, but it would not be the last.
While the prisoners sat in the jail around the corner from King Street, the heart of Boston, rumors swirled. There was still no clarification as to what had actually happened on the night of March 5, or who was accountable. Opinions ranged widely. Some Bostonians were sure that Captain Preston bore the main responsibility for the deaths. As one man wrote to his London correspondent, it “seems plain, upon the whole, that the Capt. must have had an intention of firing upon the people, notwithstanding his declaration to the contrary; otherwise, why should he order his men to load with ball?” Embracing a completely different interpretation, one government ally, trying to pick up gossip while confined to his bedroom with gout, reported that he had heard that Preston “endeavoured to prevent the exasperated Soldiers from firing even at the Risque of his own Life.” Sixty-six-year-old Reverend David Hall recorded in his diary a week after the shooting that he had heard that the soldiers (who “had been troublesome” the week before) had “fired their pieces. 8 of them. Killed 3 men on the spot. Wounded many 2 of which died.” A week later, he noted that the story continued to shift, “not Just as we heard,” although “not less affecting.”
As the taking of public depositions continued at Faneuil Hall, Bostonians shared their versions of events. Throughout March, people tried and failed to put together a coherent story. One of John Rowe’s fishing companions, Gregory Townsend, wrote to his brother in frustration, “We have the most positive asertions directly opposite so that it is almost impossible to come at the truth.”One of Captain Preston’s strongest advocates, Justice of the Peace James Murray, illustrated Townsend’s point perfectly in a letter to his sister: “Five or six witnesses swear that Preston bid his men fire. Others swear that he did not, and say that if the fireing had been by order it would not have been by single muskets.” Murray acknowledged that his information was not utterly reliable. “I will not answer for the Authenticity of every article of the above,” he admitted in a postscript.
If finding the truth was indeed “almost impossible,” what would happen at the soldiers’ trial? Lieutenant Governor Hutchinson had promised, on the night of the shooting, that he would ensure that “Justice [be] done on the Guilty.” Others were dubious, however, that justice could be done in Boston. The government supporter Gregory Townsend worried that “poor Preston will stand a very bad chance if his trial comes on speedily before the Passions of people are a little Subsided,” and the acting governor’s friend James Murray too thought “there will be Little Chance for him and his Men with enraged, prejudiced Juries. The King’s Mercy must be their only hope.”
Ardent supporters of the liberty party were just as skeptical that the judicial process could lead to what they thought would be a just outcome. In his sermon given on Sunday, March 11, the Reverend John Lathrop warned, “If innocent blood is not heard and avenged . . . it will continue to cry, not only against the murderer, but the government and land, which suffers murderers to go unpunished.”
Perhaps recognizing that he should not put his faith in blind justice, Captain Thomas Preston tried to put his thumb on the scales. But although Preston had served in the army for fourteen years, he had not developed a sense of political savoir-faire . His first response to his arrest was alarmingly naive: he took out an advertisement in the March 12 issue of the Boston Gazette, the newspaper most sympathetic to the Sons of Liberty. Perhaps he thought that the fastest way to end the ordeal would be to throw himself on the mercy of Bostonians, reminding them of his friendship with so many of the town’s elites. After all, as he claimed, even the members of Boston’s liberty movement were willing to admit that he was “a sober, honest man & a good officer.” In one rambling sentence, the captain tried to capture the goodwill of his readers by thanking them for “throwing aside all party and Prejudice” in order to defend his “injured Innocence.” Preston closed by promising that he would “ever have the highest sense of the justice they have done me.” Unfortunately for the captain, his message had to compete for the attention of the Gazette’s readers. The black-bordered page on which it appeared gave an extensive account of the shooting from the perspective of the citizens, and Preston’s “card,” as it came to be known, stood in jarring contrast to the image of four coffins that appeared with the article directly above.
No one, except Preston himself, thought it was wise to publish the card. The potential irony of his final phrase, promising that Boston’s justice “will be ever gratefully remembered,” pointed at the very least to a misplaced confidence, if not a willful blindness to the political consequences of the shooting on King Street. When the advertisement was reprinted in the New York papers, General Gage was particularly distressed by Preston’s assurance that Bostonians would put aside their prejudices. “I wish he may not have been too premature in that Measure,” he lamented to Lieutenant Colonel Dalrymple. Any judicial irregularities or even illegalities, he noted, “will Justify themselves by his own Words.
Boston readers also mocked Preston’s preemptive claim to innocence. A letter to the paper the next week asked the editors of the Boston Gazette to explain how anyone “can be satisfied of his injured innocence, until he is acquitted of the high Charge laid against him, in a due Course of Law.” Preston had mistaken the mood of his audience; they were not predisposed to support him. The captain could expect fairness, the writer argued, but not advocacy. Already Preston’s attempts to turn to his personal connections with Bostonians had misfired. The day after Preston’s advertisement appeared, a grand jury indicted him and his eight subordinates for murder.
Preston’s next attempt at self-exculpation went equally awry. During his second week in jail he wrote a long narrative explaining his own motives and actions on the evening of the shooting. The narrative, published under the title “The Case of Captain Thomas Preston,” contained the well-worn and tactless statement that Bostonians had fomented ill will toward the soldiers ever since their arrival. Preston blamed Boston’s judges and magistrates for emboldening the civilians. Moreover, he defended taking soldiers into the street with him on the grounds that he feared Bostonians were prepared to attack and plunder the Custom House.
In late March, Preston sent a copy of the narrative to Gage, who cringed when he read it. Gage had hoped that Preston might make a more effective case with this narrative than he had with his card, but it was obvious for many reasons that this composition would not have that effect. “It appears too plainly to be wrote by himself,” Gage complained to Dalrymple, “and he takes up the Affair from the first arrival of the Troops at Boston, and censures the Conduct of the Magistrates from the beginning.” He was even more distraught when he found that Preston had sent his account to the papers in London, thus clearly and unnecessarily exposing Preston’s mistaken actions in King Street. Gage’s anger with Preston led him to articulate most clearly the legal argument against the captain: “He had no Business to defend the Custom House, unless legaly called upon.”
“The Case of Captain Thomas Preston” appeared in the London papers at the end of April, and by June it was reappearing in newspapers in America. Editorials in the American papers made clear just how much Preston had again miscalculated. The Boston Gazette republished it in a special supplement to show “how greatly the Conduct of the Town has been misrepresented,” a sentiment picked up by most other colonial papers.
In July, a committee consisting of Thomas Cushing, Samuel Adams, John Hancock, William Molineux, and others visited Preston in jail to ask how the same person could have written both the March 12 card to the Boston paper, which praised Boston for its sense of justice, and “The Case of Captain Thomas Preston.” The committee pointed out that “those papers directly militate with each other.” In fact, the Essex Gazette had made the same point to its readers a few weeks earlier when it published the card directly preceding Preston’s “Case.”
When Preston tried to explain to the committee of his former neighbors that others had edited his account before it was published in London, they were unconvinced. Their anger was directed less at the shooting itself and more at the ways in which Preston had characterized Boston. By speaking ill of the town, he had eroded his support still further.
The miseries of jail did nothing to improve Preston’s mood. He wrote in June to Lord Barrington, the secretary at war, saying he feared he would remain “at least six months close confin’d in a loathsome gaol, almost suffocated with Charcoal, and in case of the Gaol’s taking fire as it did last year, must certainly be burn’d to Death. My health is much compromised by my long confinement, my debts increased by my great expences, my promotion to the Majority stopt if not lost, my life in danger from the Mob threatening to take me out of Gaol & hang me, and lastly the great probability of the Jury finding me guilty in spite of all laws & evidence.” He foresaw the end of his career and even his life—he might be lynched before the trial began or found guilty and hanged for murder.
Preston’s fear of lynching had some justification. An anonymous letter written to Preston in July 1770 cautioned the captain that even a pardon from the king might not save him from the crowd. Recent history provided a precedent: in 1736, an army captain in Edinburgh named Porteous had shot into a crowd, killing several citizens. The captain had been dragged from the prison and hanged by a mob before his trial could begin. The same thing could happen to Preston, warned the letter writer.
Even as privates kept on marrying Boston women and John Rowe continued to dine with Dalrymple, Thomas Preston became increasingly isolated from the social world of Boston. His regiment had been redeployed to New Jersey in June, leaving only the Fourteenth Regiment in Boston. Preston’s shift to seeing himself as the victim of a lynching, rather than a gentleman at ease with his friends, was a realistic foreshadowing of what would happen in Boston by the end of the trials. Just as Preston’s own reputation seemed to shift during his time in jail from that of a “benevolent, humane man” to “a military criminal,” so that night’s events would be transformed from a “shooting” to a “massacre.”
By August, Preston’s view of his relationship with Bostonians was dark. He wrote to Gage that the general could “have no conception of their wickedness.” He had heard hopeful rumors that some patron of his might be able to acquire a royal pardon, but he put less stock in that rumor than in the anonymous letter suggesting he would be lynched before he could face trial. Unless Dalrymple were to bring the Fourteenth Regiment back from Castle Island to spring him from prison, he suggested morosely to Gage, “this [should] be the last letter . . . I shall trouble you with.”
Preston may have felt abandoned by Dalrymple, but in fact the long wait in jail was part of the strategy that Dalrymple and Lieutenant Governor Hutchinson had devised. They had hoped that a cooling-off period would render the eventual jurors less emotional and more willing to acquit. The time finally seemed ripe. Preston asked John Adams and Josiah Quincy to bring his case before the courts in September. He knew that Boston’s prominent opposition politicians had just received letters from their major supporters in Britain, urging them to ensure a fair trial. Moreover, Adams and the rest of the legal team had suggested to him that if the case went to trial now and the verdict went against him, the soldiers would still have sufficient time to apply for a royal pardon.
As General Gage saw it, the soldiers’ argument should be simple self-defense: “that they were grossly insulted and attacked without Provocation . . . as to endanger their Lives.” By this theory, there was no difference between the arguments made for the officer and those made for the enlisted men. “Whether the Captain gave Orders to fire or not, seems a Circumstance something Stronger in his particular favour, and nothing more.” He continued blithely, “I should imagine [it will be] not difficult for the Lawyers, to make these particulars appear plain to the Court.”
Preston must have been relieved, then, when he and the eight soldiers (along with the four men accused of shooting from the Custom House window) were brought into the courthouse early in September to enter their pleas of not guilty. At last there seemed to be forward motion. And then, to the disappointment of everyone, the judges simply adjourned the county court for another six weeks.
In those six weeks after the arraignment, the eight other soldiers imprisoned with Preston may have had time to further consider their case. It has never been precisely clear whether Samuel Quincy and Robert Treat Paine had intended to try all of the military men together, or to try the officer separately from the enlisted men. Regardless, when the Superior Court reopened on Tuesday, October 23, the justices declared that the next day’s case would be Rex [The King] v. Preston.
The privates may have learned or suspected that the defense team planned to take a different tack than Gage’s straightforward self-defense theory. The implications of separating the officer from enlisted men seemed ominous to some of them. If Preston was found not guilty of ordering them to fire, what would their defense be? On the morning of the first day of Preston’s trial, three of the men—the sentry Hugh White, the newlywed James Hartigan, and twenty-two-year-old Matthew Kilroy—wrote a desperate petition to the judges, asking to be tried together with their commanding officer.
May it please Yr, Honours 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 Captains Orders & if we don’t Obay is Command [we] should have been Coufine’d & shott for not doing of it—We Humbly pray Yr, Honours that you would take it into yr serious consideration & grant us that favour for we only desire to Open the truth before our Captains face for it is very hard he being a Gentelman should have more chance for to save his life then we poor men that is Oblidged to Obay his command—we hope that Yr Honours will grant this our petition, & we shall all be in dut[y] Bound ever to pray for Your honours.
The three privates showed as little loyalty to Preston as he had shown to them. They were happy to tell the judges that Preston had ordered them to fire. Their evident acceptance of Preston’s guilt seemed to be the only way out. Evoking the horror that Bostonians had felt seeing the execution of the deserter Richard Ames two years earlier, on the Boston Common, they reminded the justices that the punishment for refusing an order was a firing squad. Besides, they added, Preston had had the opportunity to make a free choice when faced with Bostonians that night, whereas they had not.
The justices were unmoved. The eight enlisted men would be tried separately. Meanwhile, they could only wait in jail and hope that whatever defense strategy the lawyers tried in Rex v. Preston would not foreclose their own future.
When his trial finally began on October 24, Captain Preston had only to step across the small alley through a “blustering cold” day from the jail to the courthouse. The room was full of observers. Some of them he knew as possible supporters: they were officers like him, or men he had met at John Rowe’s house. Others were new to him. Worryingly, lying on the lawyers’ table was a copy of the Short Narrative. The prosecuting lawyer, Robert Treat Paine, had apparently brought his annotated copy to the courtroom. Even from across the room, the words on the cover, printed in an enormous black font, caught the eye. Largest and darkest of all were two lines: NARRATIVE . . . HORRID MASSACRE IN BOSTON. The prosecution evidently intended to follow the storyline laid out the previous March: not a loss of control or a sad overreaction, but a massacre. Would the jury decide that Preston had ordered it?
Ostensibly, the question on which Preston’s fate would turn concerned responsibility. As the commanding officer, had he ordered his men to shoot? Revere had engraved Preston standing safely behind the privates, his sword raised in a gesture of command. The prosecution would want to show that Preston had shouted the order to fire. The defense’s job would be to prove that Revere’s engraving was wrong.
As it turned out, however, the skill of Preston’s legal team trumped proof and logic. Seven months earlier, when James Murray had written to his sister about his fears of “enraged, prejudicial Juries,” he had already foreseen the approach Adams would take in Preston’s defense. It is unlikely that James Murray and John Adams agreed on much; Murray was a devoted supporter of the acting governor and the royal government; Adams abhorred Thomas Hutchinson. But when it came to the question of the jury, the two were in agreement. Preston’s fate would depend on getting a favorable jury.
John Adams used every lawyering tool he had. When he did not receive the list of potential jurors ahead of time, as was customary, Adams convinced the judges that his client should be able to challenge individual jurors on the basis that he had not seen their names on the jury list. He also apparently convinced the judges that only the defense, and not the prosecution, had this right to challenge individual jurors. Through both his lawyer’s management and some good luck, Preston eventually faced a sympathetic jury, one that included his close friends Gilbert Deblois and Philip Dumaresq. The latter had even declared in public that he “believed Captain Preston to be as innocent as the child unborn.” Since Massachusetts law required a unanimous jury verdict to convict a defendant of murder, Preston’s eventual freedom was assured the moment those two men were sworn in.
Modern historians have not been able to understand why Paine, as the lawyer for the Crown (and the liberty party coalition who had hired him), countenanced such a pro-Preston jury. The tilt of the jury was certainly no secret to Bostonians watching the trial; observers such as William Palfrey were shocked at the number of Preston’s friends who sat in judgment on him. “I shudder with horror & indignation at the strange perversion of Justice,” he fumed to a correspondent. Yet it seems that neither Paine nor anyone else who spoke in the courtroom mentioned these friendships or their likely effect on the outcome of the trial. Perhaps they were too obvious to need mentioning. Perhaps, however, this silence was an intentional part of the strategy of each side. To ignore the connections between civilians and soldiers, to play down the long-established relationships between Preston and his civilian colleagues, allowed prosecution and defense alike to emphasize the separation between what had in fact been two intermingled elements of one society.
The captain sat through five long days of trial. Proceedings began at eight o’clock and went until close to six, and lawyers often spoke for three hours at a stretch. Attorneys called nearly fifty witnesses to testify to innumerable and minuscule points of detail: where people were standing, what each of them heard. Even now, the mass of detail offered by the witnesses is difficult to keep straight, and the long days of unending oral testimony must have challenged the attentiveness of the jurors, none of whom presumably expected such lengthy proceedings. As the lieutenant governor noted at the time, it was the only capital trial in a regular court of common law in Massachusetts that had ever lasted more than a single day.
Even so, the fate of Preston, who observers thought “appear’d perfectly unconcern’d,” did not depend on any evidence given in that courtroom. Sons of Liberty like William Palfrey sneered that the entire trial was nothing but “a farce”; in fact, in addition to his knowledge that the jury would not convict, Preston had a second reason for confidence. Lieutenant Colonel Dalrymple had whispered to the army captain that the king had already prepared pardons for him and for the men under his command.
On the third day of the trial, John Adams called to the stand a woman named Jane Whitehouse to speak in Preston’s defense. She claimed definitively that the captain had not encouraged the soldiers to shoot. She was sure, she told the court, because she had been talking with the sentry before any crowds had made their way to King Street. She had stayed on the street corner and therefore was in an excellent position to observe what had happened. No record exists of the prosecution asking Whitehouse how she knew the soldiers well enough to be chatting with them as the confrontation began. More significant, they did not—nor did anyone else—inform the judges and jury that at the time of the event Whitehouse had not been the woman’s surname.
At the time of the shooting, this woman had been known as Jane Crothers; she had married Private Joseph Whitehouse of the Fourteenth Regiment three weeks after the incident. Given that the witness was a woman of no social standing who had now become a part of the military community, Paine might have suggested that Whitehouse would therefore be an unreliable and biased witness. Casting doubt on her veracity in his summation would have been the work of mere moments. To explain her connection to the troops, however, would make public the marriage of a Massachusetts woman to a soldier of the British army.
But just as Paine and Samuel Quincy silently allowed two of Preston’s friends to stay on his jury, they said nothing about Jane Whitehouse née Crothers. In fact, no lawyer in that courtroom chose to mention the intimate connections that bound Boston women to British soldiers. To do so would have cracked open the pretense to which both sides had tacitly agreed: that an enormous gulf separated soldiers and civilians.
When at last the jury announced his acquittal on the morning of October 30, Preston felt grimly justified. The verdict of not guilty brought “great mortification of every blood thirsty & malicious Bostonian,” he told Gage. Freedom was less a relief than it was a pleasure “of the complete victory obtained over the knaves & foolish villains of Boston.” The feelings of connection and trust that he had expressed in his initial letter from jail had dissipated completely. As soon as court was adjourned that day, Preston fled to Castle William and stayed there as long as he could, avoiding his former civilian friends in town.
Meanwhile, the other eight soldiers spent another month in Boston’s jail. When the court had refused their petition to be tried with Preston, the privates and the corporal had no choice but to wait and worry. The fears some of them had expressed in their petition to the justices proved prescient. Since Preston was acquitted of ordering the men to fire, logically speaking, it seemed their only chance lay in the argument of self-defense.
Observers inferred from Preston’s trial that winning acquittal depended as much on the character of the jury as on the merits of the case. After Preston’s case ended, General Gage repeatedly expressed his hope that “the same Jury will try the Soldiers,” but it was not to be. With a new case, the lawyers and their clients had to pick a new jury. Once the trial began, on November 27, Lieutenant Governor Hutchinson fretted that “we have not so good a Jury nor was it possible to obtain better.”
No one on this second jury was quite so explicit as Philip Dumaresq had been for Preston in vouching, pretrial, for the innocence of the defendants. It seemed unlikely that any of the soldiers would have friends on the jury; every single juror came from outside Boston. Samuel Adams complained later that it was hardly a jury of peers when none of them had had the experience of living in a town with soldiers.
To those assessing this jury through the lens of Preston’s acquittal, its composition certainly did not look promising. The foreman, Joseph Mayo of Roxbury, had been involved for years in the movement to resist the military occupation of Boston. In 1769, he had been part of a committee that instructed the Roxbury representative to the Massachusetts legislature to find out “why the King’s troops have been quartered in the body of the metropolis of the Province while the barracks provided heretofore have remained in a manner useless.” The week after the shooting, the town of Roxbury had sent a petition to Lieutenant Governor Hutchinson to express “astonishment grief and indignation, at the horrid and barbarous action committed last Monday Evening . . . in the most wanton, cruel, and cowardly manner.” Petitions like this one could hardly have given Hutchinson much confidence in the jury.
The other jurors also came from towns that had explicitly expressed concern about troops or had declared their support for the town of Boston. Three jurors came from Hingham. After the shooting, the Hingham Town Meeting sent a letter to the Committee of Merchants in Boston, assuring them that “we heartily sympathize with our Brethren of the Town of Boston, in the late unhappy Destruction of so many of their Inhabitants.” In 1769 Braintree, the home of the juror Isaiah Thayer, had sent instructions to its representative in the Massachusetts Assembly to question how the entire province could have been put “in the odious Light of a factious and rebellious People.” All these men came from towns that had plenty of anti-soldier feeling.
The soldiers’ trial did not initially catch John Rowe’s attention. He did not even realize that the proceedings had started until the second day, when the prosecution’s evidence was well underway. From this point onward, however, Rowe made the same careful note in his diary: “The Soldiers still on Tryal.” Over eighty people gave evidence; it took six days to get through their testimony. There were two reasons why the soldiers’ trial took even longer than Preston’s. First, the lawyers who were prosecuting the case for the Crown needed to prove that the men on trial were in fact the soldiers who had been in King Street the night of the shooting. Second, the lawyers had agreed that each side could introduce evidence about brawls and conflicts occurring elsewhere in town that night, something that had not been allowed in Preston’s trial. The prosecution had suggested this expansion of allowable evidence as part of its strategy to show that soldiers all over town, not just those in King Street, had been spoiling for a fight. In the end, however, it was the defense that used these stories to greater advantage.
From a legal standpoint, citing evidence about conflicts that happened out of sight of the Custom House sentry made “technical evidentiary sense.” Obviously, brawls in other neighborhoods or alleys, regardless of whether civilians or soldiers initiated them, could add little to an argument about the military men’s self-defense. But a long week of testimony pointing to these conflicts all over town would serve John Adams’s ultimate argument. These witnesses would drive home a picture of civilians and soldiers at odds with each other, implacably and absolutely.
But the ploy to show threats and conflicts beyond those on King Street ended up demonstrating the wealth of connections between soldiers and townspeople. For example, on the first day, the Crown called for the prosecution a man named Samuel Clark. When asked to identify the soldiers he had seen that night, Clark explained that he knew that Hugh White was the sentry. He went on to say that he passed a few words with White, and that no one was near him at the time. According to John Adams’s notes, White testified, “He spoke to me, and asked how we all did? I said pretty well.” The single shorthand reporter who took down most of the trial picked up a few more words: “He spoke to me and asked how we all did at home.” Had White been to Clark’s home? Did he know his wife? The lawyers for the Crown were not interested in how Clark knew White; they used his testimony to show that at the time of the conversation, all was peaceful and White had no reason to worry about a developing riot.
The next day saw a parade of witnesses testifying to their personal knowledge of the soldiers on trial and to the relative quiet of the streets. What mattered to the prosecution was the evidence of calm; they entirely ignored the social ties that Bostonians acknowledged having with the soldiers. The resident John Danbrooke knew two of the defendants, John Carroll and James Hartigan, and he testified that he saw only peaceful activity in the streets: “no Blow given or stick or anything thrown.” While not all the witnesses knew the soldiers well enough to swear to recognition, they all claimed that there were no more than twenty or thirty people on King Street that night, “not so many as often seen there.” As the prosecution tried to build its case for premeditated and widespread attacks of soldiers on civilians, they called to the stand Samuel Hemmenway, who testified that he knew Matthew Kilroy “particularly well.” Hemmenway claimed that he and Kilroy had been visiting together in a kitchen when the soldier told him that “he never would miss an opportunity of firing upon the Inhabitants.” In his summary of the evidence, the lawyer for the prosecution, Samuel Quincy, put particular emphasis on Kilroy’s supposedly bloodthirsty intentions. He ignored the circumstances that brought Kilroy and Hemmenway together.
Later that day, Thomas Wilkinson came to the stand as a witness on behalf of the prosecution. His testimony bolstered Samuel Quincy’s argument that it had been a quiet evening and the guard had nothing to fear. Wilkinson testified that he had been at home when he first heard bells ringing. He walked the very few blocks to the town center, where he saw, he swore under oath, soldiers with swords and townspeople with buckets for firefighting. King Street itself, he recalled, was completely empty.
Three people in the courtroom took down Wilkinson’s testimony that day: John Adams, Samuel Quincy, and a court stenographer. Often any testimony recorded by all three note takers is relatively consistent. This time, however, while all the men recorded that Wilkinson identified Edward Montgomery as a neighbor, only the stenographer also recorded that Montgomery had gone to his former neighbor to ask him to explain the situation. Perhaps neither lawyer thought this piece of evidence worth writing down. The detail that a civilian knew one of the soldiers well enough to march up to him while the soldiers were in formation, in order to ask him for an explanation, never was part of the story that Quincy told the jury.
After calling thirty-four witnesses, most of whose testimony differed only in small details about the size and rowdiness of the people in King Street or nearby, Quincy rested his case on the evidence that his witnesses had identified all of the soldiers standing trial and that some combination of the eight of them must have killed the five Bostonians. Furthermore, Quincy suggested that soldiers all over town were so hostile and violent that “the inhabitants had reason to be apprehensive they were in danger of their lives; children and parents, husbands and wives, masters and servants, had reason to tremble for one another.” It was a picture of innocent Bostonians drawn together against the imminent threat of a vicious soldiery.
When Samuel’s brother Josiah opened the case for the defense, he began by urging the jury to remember that “the reputation of the country depends much on your conduct.” These words are a surprising appropriation of the prosecution’s argument. It was impossible to deny that soldiers had shot civilians; the defense therefore needed to shift the blame for those deaths from the soldiers onto someone else. If the case for the defense required innocent Bostonians and vicious soldiers, Josiah and his fellow counsel would have to find a way to plead self-defense for the soldiers while saving Boston’s reputation. Emphasizing the conflict between the soldiers and civilians was the strategy.
Adams and Quincy called over fifty witnesses for the defense, and their testimony took three days. The first dozen set the stage, describing how they had seen hordes of citizens in the streets, armed with sticks and clubs. Archibald Gould, walking toward Faneuil Hall from the southern end of town on the night of the shooting, saw so many Bostonians with sticks that he was afraid even to make the journey back home. Gould had deliberately chosen a route that would let him circle around the busy heart of the town; other witnesses, however, found multiple brawls in alleys and streets to the north and east of the sentry on King Street.
Once the evidence turned to the shooting itself, witnesses added a bewildering array of detail in describing where they were and what they heard. Most of them noticed teenage boys; many saw the soldiers pelted with missiles ranging from snow and ice to shells and sticks. They heard shouts and hollers. And they saw a crowd that, in their testimony, swelled from sixty people to two hundred, pressing close to the soldiers and taunting them to fire.
Thomas Wilkinson had testified for the prosecution that he had seen neither “Man nor Boy nor Child” in King Street, much less a woman or girl. Jane Whitehouse, née Crothers, seems to have been one of the few women out on the street that night; the only other woman to testify was Catherine Field. She told the court that at least one of the men on the street that night had planned to go out armed. Patrick Carr had been at Field’s house when he heard that there was a fight going on with the soldiers. He had immediately slid a sword under his overcoat and started to slip out the door. Only the combined efforts of Field’s husband and two of her neighbors had convinced him to leave it inside. Carr was held up by the defense as Irish and spoiling for a fight; he would become the first exhibit for the defense’s argument that it was civilians rather than the soldiers who had set out looking for trouble.
A few of the defense witnesses also mentioned a “stout” man. This was Crispus Attucks, one of the victims of the shooting. Only three of fifty-one witnesses mentioned seeing a “molatto,” or mixed-race man, before the shooting; one thought he had noticed that Attucks was dressed as a sailor. The same witness also testified that Attucks had handed him a club and then walked down Crooked Lane to the corner of King Street, where he “went on cursing and swearing at the soldiers.” A few of the prosecution’s witnesses had also spotted Attucks, although most of them did not claim that he was particularly aggressive. One observed him silently resting his weight on a stick; the other affirmed that Attucks neither spoke to the soldiers nor threw anything at them.
Only one witness, James Bailey, who had spoken earlier and not too effectively for the prosecution, gave a different picture of Crispus Attucks. He told the court that he had seen Attucks “at the Head of 25 or 30 sailors,” some of whom had clubs. Bailey had already had a verbal confrontation with some soldiers at a ropewalk on the weekend before the shooting in King Street, which might explain why Private Carroll had thrust his bayonet into Bailey’s chest as soon as he saw the man standing next to the sentry while they talked on the Custom House steps. Bailey’s testimony gave Adams the foundation he needed for his summation.
On Tuesday, December 4, John Rowe finally decided to go see the trial for himself after dinner. He stood with a few dozen others—some locals, many officers of the army and navy—in the courtroom (its gallery had no chairs) as they listened quietly to the closing remarks of the prosecution and the defense. This was the seventh day of the trial, and it was drawing to a close; if Rowe was to hear any of it firsthand, this was his final chance.
Rowe also may have been curious about a report that was circulating about Adams’s defense strategy. The day before, Thomas Hutchinson had sent an update to General Gage about a rumor that “one of the Council is not so faithful as he ought to be.” The gossip probably came from Adams’s former co-counsel Robert Auchmuty, who was still watching the case closely from the sidelines. Gage had worried from the beginning that a local lawyer might damage his client’s case for his own political gain. Gage heard from Dalrymple too, who complained that despite his daily nagging “the Lawyers have held back much on the occasion . . . they do their parts but ill.”
Hutchinson had a better appreciation for Adams’s defense of the soldiers than either Auchmuty or Gage did, however. Hutchinson thought that Adams was wary “of the necessity of entering into the examination of the Conduct of the Townspeople previous to the Action itself, he being a Representative of the Town and a great Partisan [who] wishes to black the people as little as may be consistent with his Duty to his Clients.” Hutchinson understood that Adams was hoping to save his clients without smearing Boston. It would be a difficult needle to thread. To do so would require a virtuoso performance.
On the face of it, an eighteenth-century courtroom—crowded, dark, and filled with the sound of lawyers reading pages of recondite legal philosophy for hours to juries accustomed to lengthy Sunday sermons—seems hardly the place to tell a gripping story. Yet court cases inevitably were and are dramatic narratives. Modern audiences may look for drama on the stage or screen, but eighteenth-century Bostonians found it in oratory.
When Adams began the second half of his speech on December 4, he turned away from legal questions of self-defense and returned to the evidence given by the witnesses over the previous week, reviewing it at great length, and in somewhat confusing detail. As he pulled apart the testimony offered by the prosecution, he lingered on the language of the town watchman, Edward Langford. The watchman had said that he saw some boys, whom he referred to as “young shavers,” in King Street that night. Apparently struck by the phrase, Adams went on: “We have been entertained with a great variety of phrases, to avoid calling this sort of people a mob.—Some call them shavers, some call them genius’s.” Perceptions, not bullets, were at the heart of this controversy.
The time had come to define these young men. “The plain English is gentlemen, most probably a motley rabble of saucy boys, negroes and molattoes, Irish teagues, and out landish jack tars.” This is how Adams managed to steer a course between saving the soldiers and saving Boston’s reputation. He accused outsiders—apprentices, people of color, alien Irish, and uncouth sailors—of attacking the soldiers. Likewise, soldiers were lonely outsiders, neither aggressors nor friends. Boston, just as much as the soldiers, was an innocent victim of the mob.
Here, then, was the storyline for the four judges and jury to hold on to as they sorted through contradictory and confusing evidence. Adams offered his listeners—and the future readers of the trial transcripts—a convenient shorthand for understanding a complicated event. An unruly crowd, separate from both the town and the soldiers it was taunting, had driven soldiers to think that they needed to defend themselves from Boston’s inhabitants.
Members of the jury came from towns that had recently declared that their sentiments were “united” with Boston. Adams would not be able to convince them that the provincial capital was rife with mobs. It would be simply too offensive. Instead, he redefined the genealogy of mobs.
Do not fear, Adams urged the jury, the implications of admitting that there was a mob in Boston. “The sun is not about to stand still or go out, nor the rivers to dry up because there was a mob in Boston on the 5th of March that attacked a party of soldiers.” Far from it; a mob was exactly what one might expect from the presence of troops. “From the nature of things, soldiers quartered in a populous town, will always occasion two mobs, where they prevent one.—They are wretched conservators of the peace!” This mob of outsiders, in other words, did not have its origins in a “mobbish” Boston. The soldiers—or rather, the government that had sent them—had themselves brought it into being.
The men on the jury had heard similar arguments before. Most of their town meetings had penned screeds about the inevitable evils that accompanied the presence of a standing army—a military force—among civilians. They were not predisposed to have sympathy for soldiers; rather, they were part of a political culture that saw soldiers as distinct, different, and disconnected from civilians. Their sympathies lay with Boston. But to acquit Boston, they would have to acquit the soldiers. They had to accept the new picture that Adams had drawn for them: civilians on one side, soldiers on the other, and the middle ground covered with a sudden and shifting mob. This picture looked surprisingly like the one that Paul Revere had engraved, with white gun smoke billowing between the soldiers and the townspeople.
Adams’s explanation of this “motley rabble” expanded on the overblown imagery of Revere’s “Bloody Massacre” print. Adams’s description likewise left little room for soldiers’ wives, their neighbors, and their landladies. He too swept away the intimacy of shared doorways and stoops that brought together civilians and soldiers. His was a story of strangers.
In every court case, the prosecution and the defense tell competing stories; the job of the jury is to determine which version they find more compelling. In both of these trials, however, the stories told by the prosecution and the defense were surprisingly similar in one important respect. Naturally, the two sides disagreed on the identities of the villains and the motivation for their actions, but they nonetheless copied each other in using the trials to reinforce the overall account portrayed in the pamphlets, which pitted soldiers and civilians against each other. Despite the fact that the explicit purpose of the trials was to determine blame for the deaths of five Bostonians, the final verdicts clarified very little about what had happened in King Street the previous March; in fact, they did just the opposite. The true importance of the Boston Massacre trials is to be found in what they managed to conceal.
In the end, the defense was almost entirely successful. Wemms, McAuly, White, and Hartigan were exonerated. Kilroy and Montgomery were found guilty of manslaughter, not murder, and their punishment was commuted from hanging to branding on the thumb. Disgusted after their long months in prison, the soldiers wanted nothing more to do with the army. Fearing that they might desert, Dalrymple decided to send them by boat to join their regiment in New Jersey, thus giving them much less opportunity to slip away. As for Captain Preston, he did not even wait for his soldiers to embark for their next posting; he sailed for England the morning after the verdict.
Ten months after the deaths in King Street, the trials had not solved the question of who was to blame for the shooting. But in creating a new image of Boston, they did other important work. They showed Americans that British soldiers stood on one side of a chasm and colonial civilians on the other. By downplaying the plentiful evidence, given by witnesses on both sides of the case, of longstanding connections between town and Crown, the trials made clear that the concept of a cross-cultural community no longer had a place in the story of the Boston Massacre. It easily could be removed from the picture of life in the British Empire.
With his usual immodesty, John Adams later commented that the verdicts of the two trials were “exactly right.” There is no need to agree with him; the trials never did settle the question of blame, the evidence was contradictory, and Adams managed to pick juries that no one then or now would call impartial. In the end, however, even if we had the ability to ascribe responsibility for those deaths 250 years ago, the answer would bring us no closer to understanding how the massacre brought us to the American Revolution. Focusing on the question of responsibility leads us down the wrong path. It conflates the events of March 5, 1770, with the political, legal, and even literary maneuvering that immediately followed. And the ultimate end of that political spin was to erase the shared lives of soldiers and civilians—even, sometimes, in their own memories.
Just three months after the soldiers’ trial ended, Boston officials began to commemorate the Boston Massacre with an oration, an event that became an annual celebration. In the second annual oration, held in 1772, Dr. Joseph Warren asked his audience of four thousand Bostonians to remember the threat that the regiments had offered to “our children subjected to the barbarous caprice of the raging soldiery; our beauteous virgins exposed to all the insolence of unbridled passion.” Some of those children, of course, were in fact the offspring of soldiers and local women, and some of the “beauteous virgins” had chosen to share their own passion, unbridled or otherwise, with their military husbands. But such friendships and marriages and births and baptisms were rapidly becoming a distant memory. No longer integrated into their homes and families, soldiers seemed to have lived in a world apart.
With the eventual disappearance of these families came the disappearance, more specifically, of all women, both civilian and military, associated with this event. There is hardly a trace of them in witnesses’ accounts of the shooting, and this absence was no accident. Lawyers on both sides, to simplify the legal and political elements of the drama, simply wrote out the many intimacies between civilians and the army. The trials’ revised version of history smoothed the path to the American Revolution.