Desperate Sons

by Les Standiford

  At the same time, responding to the charges of critics that the nonimportation agreement only perpetuated the sour economy, the town assembly set about a public works project that would provide employment for out-of-work tradesmen and “the poor.” Soon the committee announced what might be termed the first American public welfare project, the building of three new ships that would put the citizenry back to work.

  Sniping continued between Hutchinson and Adams, of course. Hutchinson enraged Boston leaders when he passed along a decree from the colonial minister in London that future meetings of the colony’s assembly were to be relocated to Cambridge. That was a violation of the colony’s charter, Bostonians complained, arguing quite correctly that it would lead to a diminution of their influence. Hutchinson stood firm, however, pointing out that he was only following the orders of the king.

  Meanwhile, word reached Boston that Parliament had in April removed all duties save for that on tea. It was a serious blow to the nonimportation agreement, and though Adams’s vociferous protests kept Boston merchants mindful that even one tax was the crack through which a multitude of future incursions might intrude, the accord that he had in large part been responsible for began to fall apart in New York and elsewhere in the colonies. Once New York and Philadelphia merchants fell, Boston would not be far behind, and on October 12, those merchants declared that the only British import no longer to be sold would be tea.

  As 1770 drew to a close in Boston, Samuel Adams must have seen it as a doleful time. A year before, as redcoats marched through the streets of his city, he would have sensed that the time for an ultimate confrontation with the abusive mother country was at hand. The confrontation between citizens and troops in April could have only convinced him further. Now, with his colony’s legislature banished to the hinterlands and the support of the city’s merchants evaporated, it would have seemed that the moment was lost.

  ( 17 )

  Trial of the Century

  Until the case of Captain Preston and his men went to trial in Boston in late 1770, the successful defense of the New York publisher John Peter Zenger on charges of libel had stood as the most significant legal triumph of the colonies over the Crown. But the precedent to be set in this case involved more than principles. Blood and bodies had been strewn about the streets of Boston by the hands of British troops, and the decision of the courts in this case would have a huge impact in the land.

  From the outset, Samuel Adams pressed for a speedy trial, in part to ensure that the frustrated public did not erupt in violence while waiting for justice to be done. Of course, he was also motivated by his own desire to see the villainy of the troops exposed for the wider world. In turn, though Hutchinson cited a number of “unavoidable circumstances” as reasons for delay, the governor would surely have understood the wisdom of putting off the trial for as long as possible, until the public pulse calmed.

  In any case, the first trial did not begin until October 24, with a Whig attorney, Robert Treat Paine, appointed as prosecutor in the case of Captain Preston. Acting in Preston’s defense were Josiah Quincy and John Adams, who, though no zealot, was by then well known as a sympathizer of the Sons of Liberty.

  Years later, Adams would write in his Autobiography in explanation of his decision to aid in the defense of the soldiers, “Endeavours had been systematically pursued for many Months, by certain busy Characters, to excite Quarrells, Rencounters and Combats single or compound in the night between the Inhabitants of the lower Class and the Soldiers, and at all risks to enkindle an immortal hatred between them.”

  Of the events of the night of March 5, he continued, “I suspected that this was the Explosion, which had been intentionally wrought up by designing Men, who knew what they were aiming at better than the Instrument employed.” Adams left it open to interpretation who these “designing men” who had manipulated the masses and the soldiers were, but whether he meant Hutchinson and his supporters or Samuel Adams and his men, it was the principle of law that dictated the right of the latter to a fair trial.

  Adams wrote that he had been at the home of a friend the night of the shootings. When he and his friends heard the ringing of the bells, they ran into the street, thinking at first that there was a fire. When passersby recounted the events, Adams hurried to King Street to find the rioters dispersed and the troops arrayed near the barracks and the church on Brattle Square. “I had no other way to proceed,” he said, “but along the whole front in a very narrow Space which they had left for foot passengers. Pursuing my Way, without taking the least notice of them or they of me, any more than if they had been marble Statues, I went directly home to Cold Lane.”

  After that harrowing experience, Adams said, he spent the night tossing and turning, consumed by the implications of the situation. “If these Poor Tools should be prosecuted for any of their illegal Conduct they must be punished,” he said. But, he continued, “if the Soldiers in self-defense should kill any of them they must be tried, and, if Truth was respected and the Law prevailed, [they] must be acquitted. To depend upon the perversion of Law and the Corruption or partiality of juries would insensibly disgrace the jurisprudence of the Country and corrupt the Morals of the People.”

  The next day, James Forrest, a loyalist merchant, appeared in Adams’s office to beg him to take on the defense of Preston, as it seemed unlikely that anyone else among the largely liberal corps of Boston attorneys would take on the job. Forrest had just been to see the young Josiah Quincy, and Quincy had said he’d defend Preston only if John Adams would join his team.

  Adams deliberated, telling Forrest that of course he believed that any defendant whose life was at stake ought to have the counsel he preferred. But he also warned his petitioner that the case “would be as important a Cause as ever was tried in any Court or Country of the World.” And if Forrest and Preston expected any shenanigans from him as a defense attorney, they should look elsewhere.

  “He must therefore expect from me no Art or Address, No Sophistry or Prevarication in such a Cause; nor any thing more than Fact, Evidence and Law would justify,” he emphasized. Forrest assured Adams that Preston was well versed as to Adams’s rectitude and was willing to entrust his life to Adams’s hands.

  Adams nodded. “If he thinks he cannot have a fair trial of that issue without my assistance,” he said finally, “then without hesitation he shall have it.” With that Forrest pressed a guinea into Adams’s hand, and the deal was sealed.

  John Adams may not have resorted to chicanery, but he certainly availed himself of every ethical tool at his disposal. During the impaneling of the jury, he exercised every one of his twenty-two available challenges to ensure that not a single Whig or Son of Liberty was chosen. Among those seated were the baker who held the contract to supply Preston’s regiment with bread and a man whom Samuel Adams complained was a known friend of Preston, a person who’d been overheard saying he would “sit ’til Doomsday” before joining in a verdict against the captain.

  Given Adams’s insistence that he had taken on the task of defending the soldiers because of his awareness that they had been manipulated into their plight by men desirous of causing a cataclysm, his refusal to put the Boston mob on trial for having provoked the attack perplexed his cocounsel, Quincy. Why not paint Preston as a man terrified by a crowd well known to have been spoiling for a fight for weeks? The mob had already started one riot that had resulted in the death of a young man and had also, just days before the shootings, shattered the arm and skull of another soldier.

  Furthermore, Quincy pointed out, the prosecution had introduced similar inflammatory testimony against the troops, including that of a friend of Matthew Killroy, one of the accused soldiers.

  “Did you ever hear Killroy make use of any threatening expressions against the inhabitants of this town?” the prosecutor asked his witness.

  “Yes,” the witness replied, “one evening I heard him say, he never would miss an opportunity, when he had one, to fire on the inhabitants, a
nd that he had wanted to have an opportunity ever since he landed.”

  But Adams was resolute in his refusal, leading to speculation by General Gage and Lieutenant Governor Hutchinson that John Adams was more concerned about protecting the reputation of the Sons of Liberty than the welfare of his clients. “Such a disposition appeared in Adams to favor the Town,” Hutchinson wrote to Gage, that various loyalists “spoke to me & told me they expected the cause was lost.”

  That was not the case, however. For one thing, Adams was probably confident that he would prevail without such testimony, and furthermore, as he would later say, such testimony would have actually “hazarded his clients’ lives.” Though Adams never explained just what he had meant, some historians have theorized that the words suggest that he feared a great uprising of the people, perhaps even a lynching of his client, were he to parade a series of witnesses damning the populace and their cause.

  However, the legal scholar John Phillip Reid proposes a far more practical explanation for why Adams was reluctant to paint the Boston mob as a bloodthirsty band prowling the streets on a nightly basis and panting for a chance at mayhem. Had he done so, Reid theorizes, Captain Preston would have necessarily been viewed as having been reckless in leading his troops out from the barracks that fateful night, into an arena where he should have known calamity might well result. In that lawyer’s view, the shootings would then have been Preston’s fault.

  As it was, Adams rested his defense of Preston on the answer to one question: did the captain order his men to fire or not? Eyewitnesses testified that indeed Preston had given that order. Preston said that he had not. In fact, the captain said in his deposition, as he had been explaining to one person in the crowd why it was that he would not have his men fire, someone had stepped forward and struck one of the soldiers with a club. The soldier, “having received a severe blow with a stick, stepped a little on one side and instantly fired.”

  As Preston turned in surprise, someone delivered a blow to his arm, “which for some time deprived me of the use of it.” Had he taken the blow to the head, it would have surely killed him, he added. Townsmen were charging the troops with clubs and hurling ice, shouting, “Damn your bloods, why don’t you fire?”

  Instantly—fearing for their lives—three or four of the soldiers had fired, Preston testified, and soon after, “three more in the same confusion and hurry.” In the next seconds, the mob had fled, according to Preston’s account, leaving behind the three who had died at once. “The whole of this melancholy affair,” said Preston, “was transacted in almost twenty minutes.”

  Though no transcript of the trial remains, the result is well known: Preston was acquitted, and if John Adams had done nothing else in the years to come, his place in history was secured. As he would later write, it was the most exhausting case he would ever try, all the more for the popular sentiments that assailed him. The resultant suspicion of his motives “never will be forgotten as long as History of this period is read,” he said. “The Memory of Malice is faithfull, and more, it continually adds to its Stock; while that of Kindness and Friendship is not only frail but treacherous.”

  Subsequent events cast some doubt on Adams’s assertions, however. The trial of the soldiers was continued to the next term of the court, and meantime there was an election called to fill the seat of Otis, forced to resign as the city’s representative to the colony’s assembly, owing to his declining health. At the meeting called to fill the vacancy, Adams—who had never so much as attended a Boston Town Meeting—was nominated to run against a shipwright named Ruddock, said to be very popular among the mechanics and merchants. Nonetheless—and all memory of malice aside—Adams won the election in a landslide, taking 418 of the 536 votes cast.

  Though Adams was dubious as to the wisdom of placing himself squarely in the public eye, his sense of duty and the encouragement of his wife, Abigail, that he had done as he ought, led him to accept the place that would launch a fabled political career. He would come to take more than a little satisfaction in his decision, of course, and enjoyed telling the story of a former governor’s response when told who now made up the Boston delegation to the Massachusetts Assembly: Mr. Cushing (the loyalist merchant Thomas Cushing), Mr. Hancock, Mr. Samuel Adams, and Mr. John Adams, the former governor was told.

  “Well,” the aging minister replied, “Mr. Cushing I know and Mr. Hancock I know, but where the Devil this brace of Adamses came from I know not.”

  Meanwhile, the trial of the soldiers was fast approaching. Though buoyed by Preston’s acquittal, Adams still had the lives of eight men in his hands. His approach in this instance was to argue that the soldiers had fired in defense of their lives. And because he could argue that the men had simply followed their commander’s orders in marching to the scene of the disturbance, he could more freely characterize the situation and the composition of the mob in a fearsome aspect.

  The soldiers had actually petitioned to be tried along with Preston, arguing that “we did our Captain’s orders, and if we do not obey his command should have been confined and shot for not doing it.” That petition for a common trial had been denied by the court, however, and the subsequent exoneration of Preston had put Adams into something of a bind. Preston might have ordered the men to the scene, but Adams certainly could not argue that the captain had commanded them to fire.

  The prosecution called witnesses characterizing the soldiers as provocateurs in the days leading up to the shootings and introduced the testimony that Private Killroy had been overheard stating his fervent wish for a chance “to fire on the inhabitants”; Adams countered with those describing the mob as a bloodthirsty gang of thugs. James Bailey testified that he had seen Crispus Attucks bludgeon Private Hugh Montgomery with the cordwood staff he had been leaning on when shot and vividly described the hail of ice and stones hurled at the troops. Perhaps most powerful was the hearsay testimony introduced by the surgeon of Patrick Carr, one of those who had lingered before dying. Carr told him that as a native of Ireland, he was no stranger to confrontations between troops and citizens, the surgeon said. But Carr “had never seen [troops] bear half so much before they fired.”

  As to his own feelings about the soldier who had shot him, Carr harbored no ill will, even as he lay dying. “He forgave the man, whoever he was, that shot him. He was satisfied he had no malice, but fired to defend himself.”

  Adams’s summation to the jury was masterful and unapologetic as to the makeup of the crowd. They were, Adams said, “most probably a motley rabble of saucy boys, negroes and molattoes, Irish teagues and out landish jack tarrs. And why we should scruple to call such a set of people a mob, I can’t conceive, unless the name is too respectable for them: 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.”

  What he wished was for the members of the jury to put themselves in the places of the soldiers on that night. The crowd, Adams said, “were huzzaing and whistling, crying damn you, fire! why don’t you fire? So that they were actually assisting these twelve sailors that made the attack . . . ice and snow-balls were thrown . . . there were some clubs thrown from a considerable distance across the street,” and oyster shells as well. “Would it have been a prudent resolution in them, or in any body in their situation, to have stood still,” he asked, “to see if the sailors would knock their brains out, or not?”

  In his instructions to the jury, Judge Peter Oliver created a precedent for what would become known as the “dying declaration” or “deathbed” exemption to the inadmissibility of hearsay evidence, saying, “This Carr was not upon oath, it is true, but you will determine whether a man just stepping into eternity is not to be believed, especially in favor of a set of men by whom he lost his life.”

  In less than three hours, the jury was back with a verdict of not guilty for six of the soldiers. There were two—Hugh Montgomery and Matthew Killroy—who were proved to have fired, however, both of whom were found g
uilty of manslaughter, a charge that normally carried a sentence of death. Those two, however, invoked a plea of “benefit of clergy,” which permitted the commutation of their sentences. Instead of being executed, they would have a brand placed upon their thumbs.

  Looking back at the incident near the end of his long career, John Adams proclaimed it one of his most satisfying accomplishments. “Judgment of Death against those Soldiers would have been as foul a stain upon this Country as the Executions of the Quakers or Witches,” he said. “Although the Clamour was very loud, among some Sorts of People, it has been a great Consolation to me through Life, that I acted in this Business with steady impartiality, and conducted it to so happy an issue.”

  His cousin Samuel was not as happy with the verdicts, though he was not so much aggrieved that Preston and the soldiers had escaped mortal punishment. To understand, the modern reader might again use the example of the Kent State Massacre as a guide. Though that incident turned the tide of public opinion against the war, there were relatively few who wanted the blood of National Guardsmen in return for the tragic deaths of the young victims. Nearly everyone, however, saw the folly in the thinking that had sent troops into such a situation in the first place.

  Similarly, Samuel Adams hoped that the trials of Preston and his men would establish the folly of maintaining a standing army in a community during peacetime. He lamented that although a great deal of testimony had been introduced attesting to the hostile atmosphere of Boston, including the brawl at the rope works and the specter of citizens walking the streets armed with clubs, “nothing appeared there, to show the Cause and even the necessity of it.”

  In Samuel Adams’s view the people had a right to organize and arm themselves with clubs because they were in danger from the troops. There was no reason for the troops’ presence in the city, he contended, and furthermore, if they had not been there, no one would have died.