(Credit: Library of Congress, LC-DIG-pga-12930)
No. 4
Certain Principles Are Eternal
The Boston Massacre Trial and the Moral Courage of John Adams
By Kenneth A. Turner, with Introduction by Lieutenant Colonel Tanasha N. Stinson
“Principled Counsel is professional advice on law and policy grounded in the Army Ethic and the enduring respect for the Rule of Law, effectively communicated with appropriate candor and moral courage, that influences informed decisions.”1 Although this particular definition is new to our Corps, principled counsel has been at the heart of our legal practice throughout our nation’s history.2 “Principled Counsel is the north pointing direction on our Corps’s North Star—designed to remind each of us—constantly—the origin of our advice and counsel—which are our shared values sourced from timeless virtues.”3
John Adams, in his determination to do the right thing, regardless of the personal cost that might accompany his decision, represents the epitome of principled counsel. Adams was the professor of William Tudor, our first Judge Advocate General, and would later serve as the second President of the United States. The following article is not about the Army or military law, but it does provide a shining example of leadership and a profound belief in principled counsel, which resonates throughout our Corps.
Moral Courage
On the night of 5 March 1770, British troops opened fire on hundreds of civilians on the streets of Boston, Massachusetts. What started as a clash between a British sentry, Private (PVT) Hugh White, and a large crowd, escalated into one of the most controversial events of early American colonial history. Responding to PVT White’s call for help, Captain (Capt) Thomas Preston arrived at the Customs House on King Street with seven soldiers of the 29th Regiment of Foot.4 During the conflict, a fire bell rang out in the night, prompting hundreds of more civilians to come running to King Street. It is uncertain why the soldiers opened fire on the growing crowd, or how many fired. What is certain is the night ended with three civilians dead—Samuel Gray, Crispus Attucks (also known as Michael Johnson), and James Caldwell—with six others wounded. Two of the wounded men later died of their injuries, Samuel Maverick on 6 March and Patrick Carr on 14 March.5
John Adams was one of the American colonists who responded to the fire bells that cold March night. Although he arrived too late to witness the height of the unrest, as the days passed, he found himself inextricably drawn into the tumultuous events resulting from the clash on King Street. In the ensuing murder trial, Adams defended Capt Preston and his soldiers in a profound act of moral courage. Adams risked his and his family’s personal safety, his livelihood, and his social reputation to courageously confront an injustice and uphold his moral principles.
Adams believed in the intrinsic rights of man. He described his defense of the British soldiers as “one of the most gallant, generous, manly, and disinterested Actions of my whole life, one of the best Pieces of service I ever rendered my Country.”6
In Adams’s mind, the rule of law, informed by facts and evidence, not
the passions of a cause, should govern the affairs of freemen in a
society.7 His actions demonstrated his belief that every freeman had the right to a fair trial and representation in his defense, and it would be an injustice to deny these rights to Preston and the British soldiers. These men deserved a fair trial and sound representation in their defense. Adams’s actions demonstrated the trial was about the guilt or innocence of the defendants and the inherent rights of freemen in a society. These were eternal principles.
In standing up for what he believed was right, Adams demonstrated exceptional moral courage, which William Miller terms “lonely courage.”8 Moral courage is the ability to take a stand for what you believe in, informed by your ideals, principles, or convictions. Moral courage also entails physical or emotional risk, or perceived risk. If there is no risk in the action, then there is no courage. Miller further defines moral courage as “the capacity to overcome the fear of shame and humiliation in order to admit one’s mistakes, to confess a wrong, to reject evil conformity, to denounce injustice, and to defy immoral imprudent orders.”9 John Adams took action informed by his moral principles, to prevent injustice, overcoming the perceived risk to his safety, family, business, and reputation, in support of his deeply held principles.
Two-hundred-and-fifty years after the Boston Massacre, the ultimate responsibility for the deaths is still a matter of debate. However, on the night of the conflict, Lieutenant Governor Thomas Hutchinson acted swiftly to determine the guilt of those involved, while calming the crowd of people crying out for justice on the steps of the Customs House. Arriving on the scene, Hutchinson moved to the second floor of the council chamber overlooking King Street. He spoke to the crowd and assured them the law would prevail. He pled with them to peaceably disperse and leave justice to the civil courts of the Commonwealth. He told the crowd, “The law shall have its course. I will live and die by the law.”10 Eventually, Hutchison’s efforts helped disperse the troops and the crowd without further physical conflict. By two o’clock in the morning, Sheriff Greenleaf (the Sheriff of Suffolk County) served a warrant for Capt Preston’s arrest. By three o’clock in the morning, Preston was in jail. The next morning, the eight soldiers involved in the incident surrendered to the civil authorities.11 The Superior Court of Suffolk County charged the British soldiers—William Wemms, James Hartegan, William M’Cauley, Hugh White, Matthew Killroy, William Warren, John Carrol, and Hugh Montgomery—with the murders of Crispus Attucks, Samuel Gray, Samuel Maverick, James Caldwell, and Patrick Carr.12
British Soldiers in Boston
In the years preceding the winter of 1770, economic troubles dominated the relationship between England, its American Colonies, and the Crown. To raise revenue to satisfy debts from the Seven Years War and reassert its imperial control over the colonies, England levied various taxes on colonial goods, passing the Stamp Acts of 1765 and, later, the Townshend Acts of 1767. The colonists were able to force the repeal of the Stamp Acts through civil unrest and violence against the King’s representatives. However, soon after repeal of the Stamp Act, the new Chancellor of the Exchequer, Charles Townshend, took several measures to bring the colonists in line and extract more revenue for England. One of these measures was the Townshend Acts of 1767.
In the summer of 1767, Townshend developed and worked an omnibus bill through Parliament reaffirming the legality of the writs of assistance, establishing new admiralty courts, and setting up a five-member Board of Customs Commissioners in Boston reporting directly to the British Treasury. The Board of Customs was responsible for commerce, navigation, coast guard, customs, the admiralty courts, and allied services in seventeen colonies of the mainland and the Caribbean.13 The customs official’s headquarters was in Boston on King Street. Townshend also imposed a new series of duties on specific goods coming into the colonies including tea, glass, lead, paints, and paper.14 These duties caused angst throughout the colonies, particularly in Boston due to its vibrant commercial activity.
In response to the Townshend Acts, leading citizens of Boston held a town meeting on 28 October 1767 and declared their opposition. The citizens vowed to boycott “dutied” articles and to persuade the merchants to stop importing British goods. The citizens also appointed a committee to draw up a circular letter persuading other colonies to support the ban.15 In response to these antagonistic acts, Francis Bernard (the Royal Governor of Massachusetts), reluctantly called the General Court Legislature into session. The legislature quickly devolved into turmoil—arguing with the governor over its rights, framing petitions, and drafting circular letters to other legislative assemblies calling on support of the non-importation movement. Governor Bernard denounced the circular letter as seditious and dissolved the assembly.16
By the summer of 1768, many Boston importers joined the economic protest
and refused to pay the import fees. In support of the circular letter,
American coastal cities from New England to Georgia refused to import
goods from England.17
At a loss to enforce the acts and suffering from reduced revenue, customs officials sent a request to Lord Hillsborough (the Secretary of the Colonies) expressing their concern for their safety. Lord Hillsborough requested help from the War Office. The War Office directed General Thomas Gage, the commander of all British forces in the American Colonies, to “strengthen the ends of government in the Province of the Massachusetts Bay, enforce due obedience of the law, and protect officials of the colony in the discharge of their duties.”18 The customs officials did not have the power to enforce Parliament’s directives and obtain compliance. They needed British soldiers to compel the colonies. The War Office responded and occupied Boston with British Regulars.
In August 1768, General Gage received word from London to move troops to Boston to enforce royal decrees, ensure order, and reduce unrest. General Gage sent one of his aides, Capt William Sheriff, to confer with Governor Bernard on the use of the troops. At a meeting on 3 September 1768, Capt Sheriff and Governor Bernard agreed they needed two regiments in Boston to enforce the royal decrees. The plan called for one regiment stationed in the town and the other in Castle William, three miles from the town center. The 29th and 14th Infantry Regiments arrived in Boston on 1 October 1768.19
In the next eighteen months, between the arrival of the soldiers in 1768 and the fateful night of 5 March 1770, a bitterness grew over the presence of British soldiers in Boston. Residents resented the presence of the British soldiers for a variety of reasons. The soldiers competed for many lower-paying jobs during their off-duty time, often accepting menial jobs for less pay than civilians. With high unemployment due to the ongoing economic turmoil, residents resented the competition for scarce jobs. Additionally, the Colonies shared the English tradition of opposing the military occupation of cities in peacetime.
The soldiers’ role in enforcing the King’s policies was starkly different from the role of British soldiers in the past. The British Government sent these soldiers expressly to enforce royal decrees and maintain law and order. The soldiers were not in Boston to protect the colonists from outside threats, making these regiments distinctly different from the British forces formerly serving in the American colonies. Before this, British soldiers fought to defend the colonies against mutual threats involving the French, Spanish, and various Indigenous tribes. Now the soldiers represented the colonists’ government, enforcing British economic policy and interests against British citizens. Previously, the colonists supported British military interests, and about 8,000 colonists served in the British army during the French and Indian War.20 This occupation was different. It was another example of England treating the colonists differently from the subjects in Britain and as lower-class freemen. The resentment continued to grow. Members of the Non-Importation Association and other “radical” groups continued to foment unrest to force Parliament to revoke the Townshend Acts.
Turmoil Increases
Several noteworthy events occurred in the winter of 1770, leading up to the shootings on King Street. These activities ranged from public protests and confrontations to persuasive commentaries intended to arouse unrest. One of the confrontations occurred on 22 February 1770, when radicals erected a painted, wood head on a post in front of Theophilus Lillie’s importation business. The sign marked Lillie’s business as a violator of the non-importation ban and stood as a signal for patrons to boycott his goods. Later in the day, Lillie’s neighbor, Ebenezer Richardson,21 saw the sign and used an ax to try to cut it down. As he tried to destroy the post, a crowd of boys surrounded him. The boys threw ice and snowballs at him and chased him into his house. They surrounded the house and threw stones and bricks through his windows. In response, Richardson fired a musket into the crowd killing an eleven-year-old boy named Christopher Snider. After the shooting, a crowd entered Richardson’s house and pulled him and another man, George Wilmot, from the house. The crowd took them to Faneuil Hall and presented the men to three magistrates: Richard Dana, Edmund Quincy, and Samuel Pemberton. The authorities placed Richardson in confinement to stand trial.22
On 26 February, Boston held a public funeral for Snider. Commencing at three o’clock near Liberty Tree, the line of mourners stretched a quarter of a mile from the town center to the burial ground, and it included 400 to 500 boys from several schools and other members of the town—an estimated 1,300 people.23 John Adams, who was sympathetic to the cause, if not the means, of the radicals, participated in the march and commented on his experience in his diary.24
When I came into Town, I saw a vast Collection of People, near Liberty Tree—enquired and found the funeral of the Child, lately kill’d by Richardson was to be attended. Went into Mr. Rowes, and warmed me, and then went out with him to the Funeral, a vast Number of Boys walked before the Coffin, a vast Number of Women and Men after it, and a Number of Carriages. My Eyes never beheld such a funeral. The Procession extended further than can be well imagined.25
Adams also commented on the crowd and the socio-political public
atmosphere of Boston:
This Shewes, there are many more Lives to spend if wanted in the Service
of their Country. It Shews, too that the Faction [illegible] is not yet expiring—that the Ardor of the People is not to be quelled
by the Slaughter of one Child and the Wounding of another.26
Tensions continued to rise as the Sons of Liberty capitalized on the
unrest to compel the British to remove the regulars from Boston.27
On Friday, 2 March, shortly after Snider’s funeral, another incident
occurred adding to the already tense mood in Boston. Two soldiers from
the 29th Regiment got into a brawl with the dockworkers along John
Gray’s Ropewalk.28 The fight broke out when PVT Patrick Walker of the 29th Regiment got into a verbal confrontation with a rope maker, William Green. The fight escalated with other workers joining the fray using rocks, clubs, and cutlasses. Sam Gray (who was later shot on King Street) and PVT Matthew Kilroy (one of the soldiers involved in shooting into the crowd) joined the fight. The fight escalated as additional workers and up to forty soldiers joined the brawl. Eventually, the civilians pushed the soldiers back to their barracks.29 Immediately afterward, rumors flew through town that the workers and soldiers would renew the fight on Monday, 5 March.30
On Saturday, 3 March, another brawl arose by the docks between soldiers of the 29th Regiment and workers in the ropewalk. Private John Carrol and sailor James Bailey were among those who returned to the ropewalks to challenge the civilian workers. Several soldiers and civilians were injured in the ensuing brawl.31 The same day, Reverend Andrew Elliot mentioned many people were looking forward to “fighting it out with the Soldiers on Monday.”32 It was also widely known that the bells summoning the militia would toll to bring the people together. Anxiety continued Sunday as rumors of another large confrontation persisted.33
All of these actions increased tensions, making further confrontations
almost inevitable. As soldiers and civilians clashed on King Street the
next night, this played out in what became known as the Boston Massacre.
The clash of Monday, 5 March, resulted in five deaths and immense
political upheaval. The events also provided an opportunity to
demonstrate the importance of the rule of law in the maelstrom of public
emotions. John Adams was one of many who responded to the bells tolling
that cold March night; the next morning, he became directly involved in
its aftermath.
No One Will Take the Case
On the morning after the clash on King Street, a Boston merchant, James
Forrest, visited John Adams in his residence. Forrest, a Tory merchant,
was a known companion of the British officers. On the night of 5 March,
he was sharing drinks with Capt Jeremiah French of the 29th
Regiment.34 Forrest pled with Adams to defend Preston and the soldiers in the upcoming trial. According to Forrest, no one else would take the case.35
Forrest told Adams the three Crown lawyers refused to represent the
accused men. Even Robert Auchmuty Jr., the Admiralty Court Judge,
refused to become involved, but he admitted he would help represent
Preston if Adams would assist. Forrest also stated he had spoken to
barrister Josiah Quincy. Quincy said that if Adams stepped forward, he,
too, would assist.36 No lawyer, either royalist or radical, would face the hatred of the Boston populace unless Adams led the way. Adams had the respect of the community; however, it would require exceptional moral courage to defy the vocal and active radicals and defend the unpopular British amid the civil unrest confronting Boston. Adams could have shut the door and dismissed Forrest. However, Adams was a man of strong principles. He would weigh those principles against the risk of Forrest’s request and, in the end, demonstrate commendable moral courage.
Adams was genuinely concerned about representing the British soldiers, and his concerns were well-founded. He was a prominent member of Boston society and held in high esteem by leading figures in Boston. Taking the case entailed considerable risk to his family, his business, and his standing in Boston society. Balancing his ideals against the safety of his business and the personal welfare of his family was a major source of anxiety. These concerns likely weighed heavily on his decision.
His wife Abigail’s emotional state and the added stress of taking the case also caused Adams much concern. There was already considerable stress in the family because of the loss of a child.37 Abigail took the death extremely hard, becoming listless and depressed. When Adams would come home, he would find her sitting alone in the dark, staring out the window, motionless and unresponsive to his appeals.38 The combination of taking the case and Abigail’s current condition troubled him, and he discussed it with her. He related his anxiety in his diary three years after meeting with Forrest:
I . . . devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, a sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions: That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.39
In addition to the anxiety over the personal safety of his family, Adams was concerned about the effect of the case on his continued success as a lawyer. Adams was a particularly successful lawyer when he moved his family from Braintree into the city in 1768 to be closer to his office and courts. Amid a thriving and growing practice, he had much to lose in opposing the popular view. Given the current unrest in Boston, fueled by the hatred of the British soldiers and tough economic times, accepting this case would likely result in public scorn—which would damage his reputation and have financial repercussions. By his own account: “At this time I had more business at the bar than any man in the Province.”40 Adams later related in his writings that his role in defending the soldiers resulted in the instantaneous loss of more than half of his business.41
Another factor affecting Adams’s decision was the influence of the Sons of Liberty. The Sons were behind much of the unrest in Boston. Their major objective was to force the expulsion of the British troops. The Sons of Liberty included influential members of society from notable merchants, artisans, and tradesmen. John Gill—the Boston Gazette editor,42 and Benjamin Eades—the printer of the Gazette, were members of the Sons of Liberty.43 Other supporters included Paul Revere, Alexander Hamilton, and John Adams’s cousin, Samuel Adams. John Adams was a member of the group and attended some of their meetings.44 He was sympathetic to the radical group’s cause, but he questioned their methods. Sam Adams, being a prominent member of the Sons and an ardent radical, opposed Adams taking the case. John Adams’s loyalty to his family and his sympathy for the radical cause factored in his decision to represent the men. If he defended the hated British soldiers, he could expect tension between his cousin and his acquaintances in the Sons of Liberty.
Adams’s views on freedom and his principles overrode his concerns. His later writings provide insight into his thoughts at the time. He wrote, “[N]o man in a free country should be denied the right to counsel and a fair trial, and convinced on principle, that the case was of utmost importance.”45 The importance of the case was not solely in the guilt or innocence of the soldiers or civilians. This case was important to Adams because of the ideal it represented. Adams passionately believed every freeman deserved a trial and representation in his defense by sound counsel. These concepts were inherent rights of every freeman.
Adams’s past writings offer insight into what he believed about the significance of the rule of law and the rights of man as he weighed his decision. While a resident of Braintree, Massachusetts, in October 1765, Adams provided his ideas on the importance of the rule of law in his development and circulation of a document entitled the Braintree Instructions.46 He wrote Braintree Instructions in support of the colonial opposition to the Stamp Acts and provided the document to the delegates of the legislative body of Massachusetts. In these instructions, Adams repudiated the authority of the Admiralty Court to collect taxes in the colonies. He based his objections on the fact that the courts did not employ juries and, therefore, violated the principle of just representation inherent in the rights of Englishmen. Forty towns across New England adopted the Braintree Instructions.47
According to Adams, the Stamp Acts also violated the right to consultation in the levee of taxes:
We have always understood it to be a grand and fundamental principle of the constitution, that no freeman should be subject to any tax to which he has not given his consent, in person or by proxy. And the maxims of the law, as we have constantly received them, are to the same effect, that no freeman can be separated from his property but by his act or fault. We take it clearly, therefore, to be inconsistent with the spirit of the common law, and of the essential fundamental principles of the British constitution, that we should be subject to any tax imposed by the British Parliament; because we are not represented in that assembly in any sense, unless it be by a fiction of law, as insensible in theory as it would be injurious in practice, if such a taxation should be grounded on it.48
In rejecting the authority of the Admiralty Courts, Adams reaffirmed his commitment to the inherent right of freemen for a trial by their peers. During the same period, Adams continued his opposition to the Stamp Acts by writing a series of articles for the Boston Gazette entitled “The Dissertation on Feudal and Canon Law.”49
In these articles, he reiterated his beliefs about individual rights and
asserted these rights came from “our Maker” and are “indisputable,
unalienable, and indefensible” as well as “inherent, essential, and
divine.”50
Adams’s writings provide insight into the principles that guided his actions in assuming the case. His writings reveal his belief that God gave men their rights and that no man could take away those rights. Only through a “social contract” could these rights be limited. This ideal helped explain Adams’s commitment and his belief he had a duty to defend Preston and the British soldiers. Adams knew the Crown-appointed lawyers refused to take the case because of the danger posed by a passionate element of the populace, but he would not let that danger prevent him from standing on principles.
Adams took the case because he believed the law, founded on the facts and the truth, must govern the outcome, not the emotions of a cause, regardless of how just the cause might be. As he told Forrest, he would rely on facts, evidence, and the law. The rule of law would determine the soldiers’ innocence. Adams would not stoop to the use of tricks or deception.51
Adams’s concerns over his safety and reputation in the community immediately came to fruition. While he talked to Forrest, a group gathered outside his home. He was instantly pressured by the local crowds, composed of members of the Sons of Liberty. After Forrest left the house, Adams met the crowd outside his door. Benjamin Eades asked Adams what Forrest was doing in his house. Adams announced to the crowd, “Forrest came to me from the jail. Ben Eades, you may tell whom you please that I have agreed to act as counsel for Capt Preston, who is held for murder. You may say also that I will defend the British soldiers lying in the stone jail under capital charges.”52
Word spread immediately about Adams taking the case, and he suffered the catcalls, humiliating words, and taunts of the populous when he appeared in public. The more aggressive radicals even assaulted him by throwing mud.53 In another incident, three boys threw stones through the windows of his house.54 On 6 March, on his way home, members of the Sons of Liberty stopped Adams on the street to ask if he would defend the murderers. He replied forcefully he would take the case and the men were innocent until proven guilty.55
Yet, while Capt Preston and his men would have defense counsel, there was no certainty of a quick trial. The radicals and the Royal Authorities swiftly worked to use the trial to achieve their political ends: the radicals vying for a swift trial and the Royal Authorities working to delay justice. With emotions running high in Boston, Lieutenant Governor Hutchison worked hard to delay the trials, hoping the emotions and passions would subside. He thought that, with the passing of time, reason would prevail and the delay would facilitate a fairer trial.
On the other hand, the radicals—afraid the passions of the public would diminish with time—pushed for a quick trial, working to influence public opinion in their favor. On Monday, 12 March, at a meeting “of the freeholders and other inhabitants of the Town of Boston,”56 Boston selectmen appointed a committee to write an account of what happened on King Street. The men produced their report, including ninety-six depositions from eyewitnesses. On the following Monday, 19 March, they delivered their account to the town meeting. The town leaders directed the publication of the report as a pamphlet titled A Short Narrative of the Horrid Massacre in Boston.57 Members of the Sons of Liberty, Eades, and Gill produced the pamphlet.58
Adams persevered with his preparation for the trial. However, the
tumultuous political environment of Boston would not allow for a quick
and, in Adams’s mind, fair trial. He mentioned to Abigail in March, “If
Preston’s trial is not postponed, we shall have no chance at all. No
judge will sit and no jury dare give a fair verdict.”59
The Trial
As the radicals pushed to rouse the furor of the public and attain a
quick trial, on 12 March 1770, Chief Justice Lynde of the Suffolk County
Superior Court postponed the trial until June, citing the absence of two
of the Superior Court justices as the reason. Justice Towbridge was
sick, and another was recovering from a fall from his horse. Lynde
believed a trial of such significance deserved the presence of all four
of the justices and delayed the trial.60
The radicals also resorted to physical means to assert their demands for
immediate trials. When they heard the court delayed the trials until
June, Sam Adams and John Hancock led a crowd into the court proclaiming
the “necessity of proceeding to the trial of the Criminals this Term,
particularly those concerned in the late bloody Massacre.”61
When the radicals referred to “the Criminals,” they meant both
Richardson for the murder of the Snider boy and the soldiers for the
clash on King Street. These bullying tactics had their intended effect.
The justices, claiming “duress and afraid to offend the town,” agreed to
try the Richardson and other cases in April instead of June.62
The Court tried Richardson on 11 April 1770. Josiah Quincy defended
Richardson, and Josiah’s brother Samuel Quincy served as prosecutor. The
court found Richardson guilty. However, the justices did not render a
punishment and adjourned until 29 May.63
The justices did not mention the trial of Preston and the soldiers, but
many people expected them to address this issue when they reconvened in
May.
When the court reconvened in May, Judge Trowbridge was still sick, and
Judge Oliver was still recovering from his injury. Unable to convene the
court without all four superior justices, Chief Justice Lynde again
adjourned without specifying a day to reconvene. The law did not require
the court to sit in Boston until 28 August; and, since the court
conducted its circuit in Maine from June through July, the earliest
possible trial date would be after this circuit.
64
Hutchinson obtained his delay.
In early September 1770, the justices met with the jury of the
Richardson case for sentencing. The justices felt the evidence did not
justify a guilty verdict in the case. They understood the threat of
violence unjustly influenced the jury, but the sanctity of the jury
verdict and the law tied the justices’ hands. Once again, faced with the
threat of violence, the justices put off sentencing Richardson.65
Unwilling to sentence Richardson, they turned their attention to the
arraignment of Preston and the soldiers.
On 7 September 1770, the Suffolk County Court arraigned the defendants.
Each man pled not guilty and elected for a trial “by God and my
country,”66 meaning by jury. The court once again deferred the trial until 23 October and adjourned the next day.67 While previous delays were in his favor, at this point, Preston wanted a trial soon, understanding that if the superior court found him guilty, he would need time for an appeal of pardon from the King. He was running out of time. The winter storms prevented travel to England and would delay his anticipated request for pardon.68
As the Superior Court session approached, the question of separating Preston’s trial from the trial of the soldiers arose. The soldiers petitioned the court to secure a joint trial. The soldiers asked the court to “be so good as to lett us have our Trial at the same time as our Captains, for we did our Captains orders and if we don’t Obay his Command we should have been Confine’d and shott for not doing of it.”69 They went on, stating, “[W]e only desire to Open the truth before our Captains face for it is very hard he being a Gentleman should have more chance for saving his life than we poor men that is Obliged to Obay his command.”70 There are no surviving notes or correspondence to determine how the court acted on the soldiers’ petition. However, subsequent actions reveal the decision. On 23 October, the records of the court indicated there would be one trial for both the soldiers and Capt Preston. Yet, despite these written records, at eight o’clock in the morning on 24 October, Preston stood in the dock alone.71
The Superior Court would hold two separate trials.
John Adams based his strategy for defending the British soldiers on the
principle that, under English Common Law, freemen had the inherent right
of self-defense. He understood the defense of Preston and the soldiers
relied on convincing the jury of the difference between killing someone
and murder. In Adams’s mind, freemen had the right to self-defense and,
if assaulted, could defend to the death. The right of self-defense
applied to civilians and soldiers alike. By English law, an attack on a
soldier standing his post was an illegal act. Adams recognized this
belief ran counter to the understanding of many of the people of New
England, who based their interpretation of the law on biblical tenets.
It was a common fallacy in Massachusetts that soldiers could not fire on
civilians, except in time of war, and Adams’s task was to overcome this
misperception.72 He knew overcoming this deeply-held belief was an arduous task.
Another misconception was that, during times of peace, soldiers needed permission from the civil magistrate to fire. Adams had to overcome this myth as well. Adams based his defense on the intrinsic right of a freeman to defend himself against a threat. This basic right was inherent to every freeman and not reliant on a state of war or the presence of a magistrate. Furthermore, Soldiers did not abdicate their rights of freemen by becoming soldiers. These basic ideas served as the foundation for Adams’s defense of the British soldiers.
Preston’s trial began on Wednesday, 24 October 1770, and ended on 30 October 1770. For the defense, John Adams, Josiah Quincy, and Admiralty Court Judge Robert Auchmuty Jr. quickly established that, in the confusion of the night, it was impossible to conclude whether Capt Preston gave the order to fire. The jury deliberated for three hours and returned with a not guilty verdict. The court acquitted Preston.73 The acquittal increased the public’s desire for vengeance on the soldiers who fired their weapons. The Sons of Liberty reacted to the acquittal by pursuing prosecution of various civil actions in support of the people wounded during the conflict. Because of the threats to his safety, Preston retired to his regimental garrison at Castle William. He wrote a thank-you note to Auchmuty, but not to his lawyers Adams and Quincy.74
Preston’s acquittal complicated Adams’s defense of the soldiers by increasing the emotions tied to their case. The acquittal also intensified the social pressure against Adams. The Monday before the second trial, the Boston Gazette published the following commentary: “Is it then a dream, murder on the 5th of March, with 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!”75 The unrelenting rhetoric, coupled with religious overtones, made John Adams’s defense of the soldiers based on the rule of law even more challenging. Emotions continued to rise, causing difficulties for John Adams’s pursuit of the truth based on reason.
Jury selection for the soldiers’ trial occurred from 20 November to 27 November. The trial began the afternoon of 27 November and ended on 5 December 1770. Samuel Quincy and Robert Treat Paine prosecuted the case for the Crown. John Adams, Josiah Quincy, and Sampson Blowers sat for the defense.76
To Adams, the trial was not a political opportunity as some believed, or a chance to expel the British from Boston. The trial was about the rule of law and individual rights. To Adams, the jurors should disregard the passions they felt based on their loyalties to a cause, either loyalist or radical. Only the facts must prevail. He stated in his closing arguments,
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence: nor is the law less stable than the fact; if an assault was made to endanger their lives, the law is clear, they had a right to kill in their defence; if it was not so severe as to endanger their lives, yet if they were assaulted at all, struck and abused by blows of any sort, by snow balls, oyster-shells, cinders, clubs, or sticks of any kind; this was a provocation, for which the law reduces the offence of killing, down to manslaughter, in consideration of those passions in our nature, which cannot be eradicated. To your candour 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.77
When Adams finished, the prosecution again addressed the jury in rebuttal. The evening adjournment interrupted the prosecution’s closing arguments, so Paine finished his comments in two hours the next day. At ten o’clock in the morning, Paine finished, and the four justices addressed the court for three-and-a-half hours. The justices’ address included legalities and formalities with no visible effect on the outcome. For all practical purposes, Adams won the case after his closing remarks.
He had eloquently made his case, and the rule of law prevailed. With no sophistry, tricks of the trade, or lurid objections, he rebuked the passions of the political turmoil with the facts. The justices excused the jury to deliberate at half-past one o’clock. The jury returned at four o’clock and rendered a verdict. The jury found Montgomery and Kilroy guilty of manslaughter and the other six soldiers not guilty. According to the jury, the prosecution proved that only Montgomery and Kilroy fired their weapons.78 Montgomery and Kilroy immediately pleaded “Benefit of Clergy.”79 The two soldiers read from the Bible and were branded on the thumb with an “M” for manslaughter before the court dismissed them.80
Conclusion
The ordeal took a great toll on Adams, both physically and emotionally. After the trial, he moved from Boston back to Braintree, Massachusetts. He moved for two reasons. First, he was exhausted from the trial. Second, he had work to do as a representative to the provincial legislature for a year. He suffered chest pains, a general malaise, and a desire for a long rest.81 He related the weariness in his diary:
Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were . . . all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for 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 . . . . It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour.82
John Adams did not assume the defense of the British soldiers for any
personal gain. He emerged from the ordeal exhausted. He defended them
because it was the right thing to do, and that took moral courage.
Recall that moral courage is the ability to take a stand for personal
beliefs or values, informed by one’s principles, involving physical or
emotional risk, either real or perceived. In the case of John Adams, the
physical risk was real. As the violence of both the radicals and the
Tories displaced reason on the streets of Boston, John Adams was
resolute in his ideals. He passionately believed the rule of law—not the
passions of a mob, no matter how justified they may feel—must inform the
affairs of freemen in a society. More importantly, he acted based on
this belief and manifested his beliefs in morally courageous action. He
stood up for the intrinsic rights of the British soldiers because they
were freemen, entitled to a fair trial, representation in court, and the
right to defend themselves against a dangerous mob.
While this may be an idealized vision of Adams, the concept of moral
courage is wrought with idealism. Adams moved from an idealized version
of what a virtuous man should do, guided by the rule of law and the
inherent rights of man, to what a virtuous man could do. He acted on his
principles. He could have easily asked Forrest to leave his house on the
morning of 6 March 1770. Instead, he defended the soldiers because he
knew it was the right action to take. He demonstrated the courage of his
convictions. Adams could have effortlessly continued with his life,
improving his prosperous and growing law practice, maintaining his
positive relations as a rising member of the social-political clubs in
Boston, and taking care of his family. His inaction would have made
living with his cousin Sam Adams, and the other Sons of Liberty, much
easier. On the other hand, shutting the door on Forrest would have made
it difficult for Adams to live with himself. For John Adams, certain
principles proved eternal. TAL
Mr. Turner is an Assistant Professor of Leadership in the Department of Command and Leadership at the Command and General Staff College at Fort Leavenworth, Kansas. He retired in 2008 after serving for over twenty-six years in the U.S. Army in a variety of command and staff positions, to include commanding at the battalion and group level.
Notes
1. The Judge Advoc. Gen. & Deputy Judge Advoc. Gen., TJAG and DJAG Sends, Vol. 40-16, Principled Counsel—Our Mandate as Dual Professionals (9 Jan. 2020).
2. Major General (Retired) Thomas J. Romig, The Calm in the Storm, Army Law., no. 4, 2020, at 102.
3. Lieutenant General Charles N. Pede, The Significance of the Nuremberg International Military Tribunals on
the Practice of Military Law, 229 Mil. L. Rev. 253 (2020).
4. Hiller B. Zobel, The Boston Massacre 187–94 (1970).
5. Boston-Gazette & Country J., Mar. 12, 1770, at 2, https://www.masshist.org/dorr/volume/3/sequence/101; Boston-Gazette & Country J., Mar. 19, 1770, at 3, https://www.masshist.org/dorr/volume/3/sequence/106; Zobel, supra note 4, at 199–200; William Emmons, The Trial of the British Soldiers of the
29th Foot: for the Murder of Crispus Attucks, Samual GrAy, Samual
Maverick, James Caldwell and Patrick Carr on Monday Evening, March 5,
1770, Trial Report 4 (1824).
6. 2 John Adams, Diary and Autobiography of John Adams, 1771–1781, at 79 (L.H. Butterfield et al. eds., 1961).
7. The term “freemen” is used throughout the article to represent the historical application of the term. In eighteenth-century, western society, this was an exclusive word to refer to men who were not subject to indentured servitude, slavery, or legal confinement. The use of freemen also did not include females. Replacing this word with individuals would be inaccurate for the period.
8. William Ian Miller, The Mystery of Courage
255 (2002).
9. Id. at 254.
10. I Page Smith, John Adams, 1735–1784, at 118 (1962).
11. Zobel, supra note 4, at 204–05.
12. Emmons, supra note 5, at 3.
13. O.M. Dickerson, The Commissioners of Custom and the “Boston Massacre,” 27 New Eng. Q. 307, 307 (1954).
14. Smith, supra note 10, at 93.
15. Id. at 94.
16. Id. at 96.
17. Catherine Drinker Bowen, John Adams and the American Revolution
342 (1950).
18. Smith, supra note 10, at 96.
19. Zobel, supra note 4, at 89, 96, 99.
20. Id. at 94.
21. Dickerson, supra note 13, at 310.
22. Mass. Gazette: and The Boston Wkly. News-Letter, Mar. 1, 1770, at 3, http://www.masshist.org/dorr/volume/3/sequence/93; Bowen, supra note 17, at 346–47.
23. Mass. Gazette: and the Boston Weekly News-Letter, Mar.1, 1770, at 3, http://www.masshist.org/dorr/volume/3/sequence/93.
24. Bowen, supra note 17, at 347–48.
25. John Adams, John Adams Diary 1, 18 November 1755–29 August 1756, Mass. Hist. Soc’y, https://www.masshist.org/digitaladams/archive/doc?id=D1 (last visited Aug. 4, 2021).
26. February 1770, from the Diary of John Adams, Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Adams/01-01-02-0014-0002.
27. The Sons of Liberty was a radical political group that grew from the colonies’ fight against the Stamp Act and other perceived injustices of the Crown. The Sons were a decentralized collection of societal clubs, which operated independently throughout the colonies. Sam Adams was a prominent member of the Boston Club, and John Adams occasionally attended some of their meetings.
28. A ropewalk is a common feature along many docks that serves as a place for the manufacture and repair of ropes for the shipping industry. The workers would lay the raw material out to make ropes, conduct inspections, and repair ropes.
29. Zobel, supra note 4, at 182.
30. Smith, supra note 10, at 117.
31. Looking for Trouble, Even on the Sabbath, Boston 1775 (Mar. 4, 2020), https://boston1775.blogspot.com/search/label/ropemaking.
32. Zobel, supra note 4, at 183.
33. Id.
34. Id. at 196.
35. John T. Morse Jr., American Statesman: John Adams
37 (1890). Mr. Morse refers to him as Mr. Forrest. Other sources use the
name Mr. Forrester. Mr. Forrest is the most common spelling.
36. Bowen, supra note 17, at 355–56. Bowen refers to him as Mr. Forrester. Id.
37. Bowen, supra note 17, at 346. In February, the Adams family lost their one-year-old daughter, Susanna, to a lengthy illness. Complications in burying his daughter added to the anxiety and anguish. When Susanna died, John and his two brothers—Elihu and Peter—took her to his birthplace in Braintree, Massachusetts, to bury her in the churchyard. However, the frozen ground prevented Elihu and Peter from digging her grave. Elihu covered the small coffin with pine boughs and promised John he would watch the area daily and return to bury Susanna as soon as the ground thawed. To add to the trauma, a pregnant Abigail did not have the stamina to make the journey to Braintree. Id.
38. Id.
39. 2 John Adams, The Works of John Adams, Second President of the United
States 232 (Charles Francis Adams ed., 1850).
40. Id.
41. Peter Shaw, The Character of John Adams 58 (1976).
42. Smith, supra note 10, at 86.
43. Id. at 110.
44. Id. at 86.
45. David McCollough, John Adams 66 (2002).
46. John Adams, Instruction of the Town of Braintree to Their Representative, 1765, reprinted in
The Revolutionary Writings of John Adams
ch. 3 (C. Bradley Thompson, ed., 2000).
47. McCollough, supra note 45, at 61.
48. Adams,
supra note 46.
49. Alan Axelrod, Revolutionary Management: John Adams on
Leadership
7 (2008).
50. Id. at VIII.
51. Smith, supra note 10, at 121.
52. Bowen, supra note 17, at 357.
53. Hugh P. Williamson, John Adams: Counsellor of Courage, 54 A.B.A. J. 148, 149 (1968).
54. Bowen, supra note 17, at 365.
55. Id. at 358.
56. A Short Narrative of the Horrid Massacre in Boston
3 (Edes & Gill 1770), https://www.masshist.org/database/viewer.php?item_id=337&mode=transcript&img_step=13&pid=2#page3.
57. Id. at 13.
58. Id.
59. Bowen, supra note 17, at 361.
60. Zobel, supra note 4, at 222.
61. Id.
62. Id.
63. Id. at 226.
64. Id. at 231.
65. Id. at 239.
66. Id.
67. Boston Gazette & Country J., Sept. 10, 1770, at 1, http://www.masshist.org/dorr/volume/3/sequence/274.
68. Zobel, supra note
4, at 239–40.
69. Id. at 242.
70. Id.
71. Id. at 242–43.
72. Bowen, supra note 17, at 379.
73. The Boston Gazette & Country J., Nov. 5, 1770, at 1, http://www.masshist.org/dorr/volume/3/sequence/339; Morse,
supra note 35, at 39.
74. Zobel, supra note 4, at 265–66.
75. Bowen, supra note 17, at 384–85.
76. Id. at 386; Smith, supra note 10, at 123.
77. Emmons, supra note 5, at 117.
78. Boston Gazette & Country J., Dec. 10, 1770, at 2, http://www.masshist.org/dorr/volume/3/sequence/365; Zobel, supra note 4, at 293–94.
79. See generally Linda Rowe, The Benefit of Clergy Plea, 19 Colonial Williamsburg Interpreter, no. 1, 1998. The Benefit of Clergy was an old English law that evolved
from a time when both civil and church officials presided over the Shire
Courts. As English monarchs separated the body of civil and canon law,
Benefit of Clergy evolved to protect ecclesiastic officials from
persecution in secular courts under civil law. The law allowed clergy to
invoke the benefit if facing charges in a secular court. The Benefit of
Clergy originally only pertained to officials of the church, including
monks and nuns; but, with various modifications from the 12th century
on, it evolved to include layman. By 1770, it further evolved to include
all freemen who could read since the ability to read was often
restricted to clergy. The Benefit of Clergy was part of the American
Judicial System until abolished by congress in 1790.
Id.
80. Smith, supra note 10, at 125; McCollough, supra note 45, at 68.
81. John R. Galvin, Three Men of Boston 218 (1997).
82. Adams, supra note 39, at 231.