I have Reason to remember that fatal Night. The Part I took in Defence of Captn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.
On the 6th of March, 1770, the day after the “Affair on King Street,” also known as the Boston Massacre, Captain Thomas Preston, a 48-year old captain in the 29th Regiment of Foot and 8 of his men as well as 4 civilians were all conducted to the town jail where they were to await indictment for the murders of Crispus Attucks, Samuel Maverick, Samuel Gray, Patrick Carr and James Caldwell. The soldiers of the twenty-ninth regiment accused of murder were William Wemms, James Hartigan, William McCauley, Hugh White, Matthew Kilroy, William Warren, John Carrol and Hugh Montgomery.
Facing a capital charge that carried a sentence of death, Captain Preston set out to find legal representation for himself and his men. As expected, there was great difficulty in finding an attorney who would take on the case, but James Forrest, an Irish-born merchant in Boston eventually succeeded in getting Josiah Quincy to agree to take the case. Josiah Quincy had already been approached by the leading men of Boston to take the case in an effort to show that the soldier’s would get a fair trial.
It was also Forrest who engaged John Adams in the case. Completing the team were Sampson Salter Blowers, a young lawyer in the office of John Adams, and Robert Auchmuty, a judge of the Vice-Admiralty Court.
The counsel for the prosecution was headed by Samuel Quincy, Josiah Quincy’s older brother. He recruited Robert Treat Paine, a prosperous attorney in Southern Massachusetts and Rhode Island.
A decision was made to sever the trials of Captain Preston and that of his men, although several of his men argued against the severance. However, the defense could not risk the cross-arguments for the various defendants. Did the soldiers fire because Preston told them to, or did they fire ignoring their commanding officer?
The trial of Rex V. Preston
The trials did not take place immediately. Thomas Gage, the commander of British troops in America, urged Thomas Hutchinson to delay the trials until feelings against the soldiers had cooled. Seven months passed between the Boston Massacre and the start of the trials on October 24, 1770. During this time a propaganda war broke out trying to seize upon the hearts and minds of the public and affecting public opinion in the colony as well as in the mother country.
The town of Boston appointed a committee that included James Bowdoin, Joseph Warren and Samuel Pemberton who were in charge of submitting an official account of the Boston Massacre entitled “A Short Narrative of the Horrid Massacre in Boston”. In addition to a rambling narrative it contained an appendix of 95 depositions that told the Town’s side of the story. (But only about one-third of the deponents testified at any of the ensuing trials.) Perhaps the most influential propaganda was Paul Revere’s engraving of the Boston Massacre which contained inflammatory details such as Captain Preston ordering his men to fire and the customs office shown as “Butcher’s Hall.
Thomas Preston’s trial took place from October 24th to the 30th, 1770 in Boston’s new courthouse, just a few dozen yards from the site of the massacre. A six-day trial was unusual in Massachusetts. Preston pleaded not guilty but did not testify. (Defendants did not testify in their own behalf back then.) The defense argued that Preston had not ordered the shooting. The prosecution called fifteen witnesses to but on cross examination their testimony appeared contradictory. The defense produced twenty three witnesses who testified that soldiers were intimidated and provoked by the crowd. Much of the cross examination by the defense was centered on who shouted the word “fire”.
The court took the unusual step of sequestering the jury (keep them away from family and friends) in the town jail. After much deliberation the jury acquitted Preston on the basis of “reasonable doubt.”.
The trial of the soldiers
The soldiers’ trial started November 27th and lasted until December 5th.
The defense of the soldiers was complicated by the acquittal of Thomas Preston since the jurors would be inclined to believe the soldiers were responsible for the shootings. As a result the defense focused on the actions of the mob that threatened the soldiers in order to pursue a justifiable use of force in self defense. Adams argued that if the soldiers were attacked by “a motley rabble of saucy boys, negroes and molattoes, Irish teagues and outlandish jacktars,” At most, Adams argued, the soldiers were guilty of manslaughter and not of murder.
An important circumstance in the trial was the death bed testimony of Patrick Carr. Carr had been wounded on March 5th, and before he died he admitted to his physician, John Jeffries, that the soldiers were provoked and fired in self defense and that he (Patrick Carr) did not blame the soldier who shot him.
The prosecution concentrated on showing that soldiers wanted revenge after many months of being abused and harrassed by townspeople. A witness testified that Private Killroy had admitted to him that “he would not miss an opportunity to fire on inhabitants”. However, the prosecution’s case was undermined on cross examination when witnesses admitted that the crowd was throwing objects and provoking the soldiers to fire.
In his summation, Adams famously argues:
I will enlarge no more on the evidence, but submit it to you.—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 own 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 jury acquitted six of the soldiers: William Wemms, William M’Cauley, Hugh White, William Warren, John Carrol and James Hartegan. The other two soldiers, Hugh Montgomery and Matthew Killroy, were found not guilty of murder but guilty of manslaughter, therefore escaping the death penalty. Both men invoked the “benefit of the clergy” allowing them to avoid a long imprisonment. They had their thumbs branded with the letter “M”, leaving a permanent mark so that they would not receive a lenient treatment in the future.
On December 13th, the four civilians who were accused of firing from the customs house were tried. All four were acquitted as the only prosecution witness presented a false testimony. The witness was later convicted of perjury.