Patriots (22 page)

Since the news circulated that the regiments would be removed, Boston had been calm. But two days after the funeral the troops still had not been evacuated, and at another Town Meeting Samuel Adams pointed out that since it had taken only forty-eight hours to land the soldiers in Boston, there was no excuse for any further delay.

In New York, General Gage had been late in getting Colonel Dalrymple’s request for instructions and approved the transfer thinking that the troops had already gone to the Castle. When he learned a few days later that they were still in Boston, he urged Dalrymple to make every effort to keep at least the Fourteenth Regiment in town. But his directive didn’t arrive until the end of March, and by that time the troops had been marched to the wharf—with William Molineux at their side to guard against any outburst from the town—and ferried through the harbor to Castle William. In London, Lord North began to refer sarcastically to the Twenty-ninth and the Fourteenth as
“Sam Adams’s two regiments.”

—

The deaths of March 5 were soon enshrined in patriot mythology. Henry Pelham, a young half brother of the artist John Copley, produced a partisan engraving of the shootings. Set against the serene buildings of Boston, the redcoats were shown opening fire at point-blank range while distressed but orderly citizens gathered up their dead. He labeled the Custom House “Butcher’s Hall.” When he sent off his work to the printers, it was intercepted by Paul Revere, the silversmith, who based an engraving of his own on it. Revere never claimed to be an original artist and often borrowed ideas or characters. His version beat Pelham’s to the public by two weeks and became a great success. In the minds of patriots throughout the colonies, it confirmed the wanton nature of the killings. Pelham urged Revere to reflect upon his dishonorable action, but
the engraving was already going up on walls throughout the province.

The patriots were shrewd in exploiting their victory. British officers were allowed to walk through the town unmolested, and even though Josiah Quincy’s father tried to dissuade him from defending the accused soldiers, Samuel Adams gave no sign that he disapproved of his two young friends accepting the assignment. Indeed, Quincy could assure his father that he had taken on the case only after he had been urged forward by an Adams, a Hancock, a Molineux, a Warren and five more of the leading patriots.

Samuel Adams preferred that the trial begin promptly, while memories were fresh and emotion ran high. But when two judges fell ill Hutchinson refused to appoint temporary replacements for them, and it was early September, six months after the shootings, before Captain Preston and his men were arraigned. Each pleaded not guilty.

“How wilt thou be tried?” the clerk asked.

“By God and my country,” the men answered, a formality that meant they were requesting a jury trial. A murder case could not be heard by only a judge.

“God send thee a good deliverance,” was the clerk’s ritual response.

The court adjourned and it was not until October 24, 1770, that John Adams rose to defend Captain Preston. His men had petitioned that since they had only followed Preston’s orders, they should all be tried together. It was unfair, they said, that he, as a gentleman, should have a better chance to save his life than the poor men obliged to obey him. But Preston was being tried alone. John Adams and Josiah Quincy—joined by a Tory attorney, Richard Auchmuty—were taking one challenge at a time. First they would prove that Preston gave no order to fire. Then they would consider where that left the defense of his troops.

The Tories feared that the jury would be packed with Sons of Liberty, but those patriots who had encouraged Quincy to act for the defense also wanted to make this trial a model of province justice. After nineteen challenges, Preston’s lawyers seated seven jurors, only two from Boston. Another five Tories were quickly empaneled. One had been overheard to say that if he had to sit to all eternity he would
never convict Preston. But by the time his vow had reached the courtroom, the clerk had already given the
jury the usual admonition, “Good men and true, stand together and
harken to your evidence.”

Captain Preston had reason for optimism aside from a tame jury. Assurance had come from England that even if he or his men were convicted, Acting Governor Hutchinson should not impose their sentences until he had heard directly from the king. And around Boston temperatures were cooling. The people continued to call the shootings a massacre rather than—in Colonel Dalrymple’s words—a scuffle, but their fever had broken over the long summer. There was even speculation that the local court might issue a complete reprieve for the defendants, apart from whatever George III might do for them.

The courtroom in Queen Street held about sixty spectators. Most of the places were taken by British military men, sitting stolidly and waiting to see how the town would treat their comrades. By the standard of the day, the trial would be a slow one. After seating the jury, the crown had time for only eight witnesses, and Captain Preston’s became the first criminal trial in Massachusetts history to run more than one day. Accompanied by a guard from both defense and prosecution, the jurors were locked up overnight in the house of Boston’s jailer.

Josiah Quincy’s older brother, Samuel, had once been a Son of Liberty but had been won over to the Tories. Now, as one of the crown’s prosecutors, he opened the argument against Preston. He set out to establish that even if Preston had not given the order to fire the first shot, he had had sufficient time to call, “Recover” before the volley began. One witness swore to that. But the testimony soon became as chaotic as the night itself. One unpersuasive witness said he had heard Preston shout, “Damn your bloods, fire again, let the consequence be what it will.” Benjamin Burdick, who had peered into the faces of the men to prepare himself for this trial, now admitted for the first time that he had been carrying a sword and had been prepared to cut off the head of any soldier who stabbed him with a bayonet. John Adams’ law clerk testified for the prosecution, but lamely. He had heard no orders—not to prime, not to load, not to fire.

The crown rested late in the second day, and John Adams opened his defense. From the bench, Justice Peter Oliver sent an apologetic note to Thomas Hutchinson: “I know you think you would have finished the cause in half the time, and I know it would
not have taken half a day at the Old Bailey, but
we must conform to the times.” The defense, however, was moving its witnesses quickly. Twenty-two testified on the third day alone. Since the law forbade the accused to take the stand, Preston did not speak in his own defense. His best witness was Richard Palmes, the merchant and Son of Liberty, who said that Preston had been facing him and that he had had his hand on Preston’s shoulder when the shout came to fire. Although Palmes couldn’t entirely rule out the possibility that Preston had given the command, John Adams thought that his was the most relevant testimony so far.

Three black witnesses also bolstered Preston’s defense. Andrew, a slave who belonged to a Son of Liberty named Oliver Wendell, told about Crispus Attucks swinging his stick, first at Preston, then at Private Hugh Montgomery. Andrew was sure that the voice that called, “Fire” had come from a point beyond where Preston was standing. Then Oliver Wendell affirmed that Andrew had lived with him for ten years and that his reputation for integrity was good. Jack, a Boston doctor’s slave, testified to the provocation of the snowballs. Newton Prince, a pastry cook and a freeman from the West Indies, said he had been watching Captain Preston and had heard him give no order to fire.

With a break for the Sabbath, the court was done in six days. On October 31, 1770, Captain Preston wrote triumphantly to General Gage about the previous day’s verdict: “I take the liberty of wishing you joy of the complete victory obtained over the knaves and foolish villains of Boston.” The jury had found him not guilty. True, Preston observed, the prosecution had been weak. But he praised all three of his lawyers for their great skill and cleverness. What the captain hadn’t done, in his rush from jail, was pause and thank his lawyers in person. John Adams noted the lapse in his diary.

As the trial of the remaining soldiers proceeded in early December, Colonel Dalrymple wrote to General Gage to complain about their defense. This time, Dalrymple said, the lawyers were holding back much evidence, and he was right.

Josiah Quincy, at the age of twenty-six, was at least as wholeheartedly devoted to the law as John Adams, and he was determined to win the case. An older brother had died of tuberculosis, and there were signs of erosion in Josiah’s frail body, but he was a handsome and smiling young man who radiated goodwill to
everyone except Thomas Hutchinson. For years, Quincy had been denouncing Hutchinson’s administration, and, as chief justice, Hutchinson had retaliated by denying Josiah the long robes of a barrister; instead, he had to plead his cases in street clothes.

To save his clients, Quincy now wanted to put the town of Boston on trial. Despite his own devotion to the patriots’ cause, he hoped to show—in far greater detail than John Adams had permitted during Preston’s trial—the provocations the British troops had been responding to. Samuel Adams hadn’t attended the captain’s trial, but he was in court this time to see that at least the soldiers who had fired were punished. From his spectator’s seat, Adams took notes and sent advice to the prosecution. The case would be damaged, perhaps fatally, if Josiah Quincy called witnesses to prove that there had been a premeditated plot to drive the soldiers out of Boston.

When John Adams heard that Quincy intended to do just that, he moved to quash it. If Quincy put the town on trial, Adams said, he would quit the case. The threat worked. Quincy canceled some witnesses and scheduled others in their place. Even with that shift of tactics, a parade of men testified to the violence of the attack, first against the sentry and then against the file of soldiers. The slave Andrew was called again to testify to Crispus Attucks’ assault on one of the British privates. Samuel Adams listened glumly, aware that Andrew’s testimony was having a significant effect, especially when Oliver Wendell, a man of undeniable honor, vouched again for his slave’s truthfulness. It was small consolation for Adams to reflect that no man knew less of the real character of a servant than his master.

There was worse to come. Dr. John Jeffries, a Harvard classmate of Josiah Quincy, had been treating Patrick Carr for his wounds until, four days after the shootings, the Irish boy died. Jeffries had questioned his dying patient often about the circumstances of the fatal night, and each time the boy had given the same answers. “I asked him,” Dr. Jeffries testified, “whether he thought the soldiers would fire.” Carr answered that he had thought they would fire much earlier. Jeffries asked whether he thought the soldiers had been abused a great deal. Carr said he thought they had been.

On and on the patriots’ young martyr defended his assailants
from beyond the grave. Yes, the soldiers would have been injured if they hadn’t fired—Carr had heard many voices crying, “Kill them.” Did they fire in self-defense or purposely to kill civilians? In self-defense. And, in a final poignant moment, Carr told the doctor that he did not blame the man, whoever he was, who had shot him.

It was all hearsay evidence, but when Josiah Quincy put the next question, “Was he apprehensive of his danger?,” it became admissible. Colony law permitted unsworn testimony from someone who knew he was dying: no man facing the ultimate judgment would use his last breath to lie. Samuel Adams’ rebuttal from the sidelines pointed out that Carr, an Irishman, had probably died a Roman Catholic. Protestant Boston could make up its own mind how much his last words were worth.

John Adams offered the final summation. Samuel Adams had been arguing that a few harsh words from the crowd didn’t give the soldiers license to kill. John Adams had never shared his cousin’s tolerance for mobs, even when they were supporting his cause. For the sake of those jurors who had never heard a Boston mob, John Adams tried to recreate one. A whistle from one boy in the street was no formidable thing, he admitted. But a mob’s whistling, along with its shouting, became a most hideous shriek—almost as terrible as an Indian war whoop. John Adams used his summation to remind his audience that, under the law, everyone who had joined in an illegal assembly was guilty of every crime a mob might commit. But to pacify the Sons of Liberty, Adams claimed that an insurrection was always due directly to despotism from the government.

Adams spoke until the court adjourned at 5
P.M.
Continuing the next morning, he showed how a man could seem to be direct and forthright and yet serve the patriots’ cause. “We have been entertained with a great variety of phrases to avoid calling this sort of people a mob,” John Adams said. “Some call them shavers, some call them geniuses. The plain English is, gentlemen, most probably a motley rabble of saucy boys, Negroes and mulattoes, Irish teagues and outlandish jack tars. And why should we 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 fifth of March that attacked a party of soldiers.”

But then, he added, “Soldiers quartered in a populous town will always occasion two mobs where they prevent one. They are wretched conservators of the peace.”

Robert Treat Paine, John Adams’ longtime rival at the bar, summed up for the crown. Tired and sick, Paine made an uninspired case, rousing himself only when he turned one of Adams’ arguments back on him by claiming that if one soldier was guilty, all must be found guilty. Paine did not point out that three of the six privates who marched out on the line—Matthew Kilroy, William Warren and John Carroll—had been among the brawlers at the ropeworks.

—

The jurors were out for two and a half hours. When they filed back into the courtroom, the clerk asked, “Gentlemen of the jury, are you all agreed in your verdict?”