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1 Temple University A Lawyer Acquitted: John Adams and the Boston Massacre Trials Author(s): John Phillip Reid Source: The American Journal of Legal History, Vol. 18, No. 3 (Jul., 1974), pp Published by: Temple University Stable URL: Accessed: 11/09/ :30 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org. Temple University is collaborating with JSTOR to digitize, preserve and extend access to The American Journal of Legal History.

2 A Lawyer Acquitted: John Adams and the Boston Massacre Trials by JOHN PHILLIP REID It does not do to mock those legends of American history that exalt the role of the bar. So few lawyers have been heroes we must cherish every one. There was a time when John Adams stood tall in our legal pantheon, the beau ideal of the common-law tradition -a legal cavalier, devoted servant of the court who championed the despicable cause and defied the clamor of the mob, faithful to a more worthy mistress and oblivious to all but his professional oath. It was a splendid image and a splendid myth: John Adams defending the redcoat soldiers of King George III who had massacred innocent Americans in the town of Boston in the colony of Massachusetts Bay and with dogged courage winning their freedom in the face of overwhelming odds. During recent years the image has become tarnished and it is lawyers who have thrown the mud. Digging more deeply than historians and asking questions historians are not trained to ask, they have questioned Adams's law and in their answers have cast doubt on Adams's professional integrity. If they are correct we must lower the pedestal, but if they are wrong we must not hesitate to repolish the marble. John Adams cared much how we remember him, but that is not the point. He no longer needs our respect. It is in this cynical age that we need John Adams to respect. On the night of the fifth of March, 1770, an angry mob surrounded a soldier standing sentry before the customs house of Boston. Hearing that the man was in danger, Captain Thomas Preston went to his rescue with an armed detail. Surrounded by an ever-increasing number of rioters, the troops experienced threats, missiles, and blows. It is possible that the captain gave the order to fire. It is almost certain that he did not. Perhaps the soldiers heard someone in the crowd say "fire" and mistook it for a command. It is just as possible that they panicked and when one fired his rifle, the others followed on cue. The details have often been told, and conflicts may never be resolved.' Only a few facts need concern us. Blood was shed on the streets of Boston and the British army had spilled it. Five civilians were to die as a result and 1. For the latest and best accounts of the events on King Street see Hiller B. Zobel, The Boston Massacre pp (1970). 189

3 190 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII no one fired a gun at the soldiers. The commander of troops in Boston believed that his men had been deliberately provoked: part of a plan by which the "People of Boston... concerted a general rising on the Night of the 5th of March".2 The whigs countered by gathering affidavits to prove that the soldiers had been plotting a bloodbath-in fact some were quoted as boasting of what they would do-depositions that a number of American historians have cited as evidence that the British had some scheme afoot.3 John Adams did not think so. He was one whig who believed that the blame lay more on his side than on the other. "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 instruments employed," Adams later wrote. "If these poor tools should be prosecuted for any of their illegal conduct they must be punished. If the soldiers in self-defense should kill any of them, they must be tried, and if truth was respected, and the law prevailed, must be acquitted."4 Surely John Adams did not seriously think the rioters would be prosecuted. Perhaps, as he said, they "should be" but there was no chance that they would. More pithy was his statement that the soldiers-even if they had fired in self-defense-would have to stand trial. He was a man of law and was speaking of the law, not politics, when he hoped they would be acquitted. Had he thought more deeply on the "massacre", however, John Adams might have recognized that the law had played as large a role before the event as it would play after. We must be cautious, and we must be bold. We speak of "law" and we speak of "politics," and it seems we may have contrary thoughts in mind. But the Boston of 1770 was not the Boston of 1974 or even the Boston of The politics that divided competing parties was to a large extent a politics that turned on legal issues and was debated before legal institutions, and the historian who contends that he can define where politics ended and law began is naive indeed. 2. Narrative by Lieutenant Colonel William Dalrymple," enclosed in a Letter From General Thomas Gage to Lord Barrington in 2 The Correspondence of General Thomas Gage with the Secretaries of State, and with the War Office and the Treasury (Clarence Edwin Carter, editor, 1933). 3. See e.g., 1 Ellen Chase, The Beginnings of the American Revolution Based on Contemporary Letters Diaries and other Documents (1910). 4. John Adams quoted in Frederic Kidder, History of the Boston Massacre, March 5, 1770, Consisting of the Narrative of the Town, the Trial of the Soldiers, and a Historical Introduction 18 (1870).

4 A LAWYER ACQUITTED John Adams is our protagonist, but we need not concentrate on him alone. On one side were the forces of imperial government -the governor sent out by the ministry in London, the commissioners of the customs, the judges of the vice-admiralty courts, and the soldiers of the king-supported by and attempting to enforce an imperial law as understood by Thomas Hutchinson, George Grenville, and General Thomas Gage. The sovereign, the King in Parliament, was in London and for some lawyers the sovereignty of Parliament would answer all questions. Imperial law was "law;" defiance of it "treason" or "rebellion." The officials of imperial rule were in North America to uphold that law; they were committed not merely to the British connection but also, they believed, to the rule of law as prescribed by the ancient principles of the English constitution. They thought of their whig opponents as lawless and so might we, but the whigs did not, and it would not do to question their sincerity. If men espoused it and policy was formulated upon it, whig legal theory should not be dismissed merely because Lord Mansfield or John Austin would have found it untenable. If we are willing to be bold and to think as a pre-revolutionary whig thought, we would see there was another sovereignty, or at least another legitimacy, besides parliamentary supremacy. It was the tradition of local government-the magistrates, the grand and traverse jurors, the representatives to the general court, and the citizens in their town meetings-which supported and enforced a "whig law." For whig lawyers, such as Samuel Adams, James Otis, and Joseph Hawley, the question of sovereignty and legitimacy was neither as clear nor as narrow as it was for tory or imperial lawyers. If the vice-admiralty jurisdiction took its legitimacy from the sanction of parliament, the common-law courts took theirs from constitutional principles upon which the liberties of the English had long been based. When whig law opposed imperial law it did so by using institutions of government that traced their parentage to a constitutional source as respectable as parliament itself. We must keep two facts clearly in mind lest they be easily lost from sight. First, law played an all-pervasive and highly central role in the politics of pre-revolutionary America. Second, participants on both sides of the political debate were committed to the forms of law. Despite the thousands of volumes that have been written about the American Revolution, historians have largely neglected or have not understood the role played by law in both setting the stage for rebellion and formulating the conditions under which it would be fought. Greater attention should be paid to the words of the actual participants, such as those of John Adams on that morning following the Boston Massacre. Perhaps the "designing men" of

5 192 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII whom he wrote did plot trouble in the streets of that town, but as Adams knew they alone were not to blame. As much at fault as any individuals was the law itself, or at least, popular notions about the law: the eighteenth-century legal theory that made some mobs -especially political mobs-quasilegal;5 the contemporary constitution that entrusted the keeping of the peace to soldiers without giving them authority to employ force;6 and the legal misconception widely held in Boston that the king's troops could never fire upon British subjects "without the aid of a civil magistrate."7 John Adams may well have been the only person in Boston who gave thought to the possibility of prosecuting the rioters. Thomas Hutchinson, acting governor and chief justice of the province, never mentioned it. He was on the scene almost immediately, calming the excited people and "assuring them that a due inquiry should be made, and justice done, so far as was in my power."t He meant, of course, an inquiry by whig magistrates.9 5. Pauline Maier, Popular Uprisings and Civil Authority in Eighteenth-Century American," 27 Will. & Mary Q. 3 (1970); Gordon S. Wood, *A Note on Mobs in the American Revolution," 23 Will. & Mary Q. 635 (1966). 6. The military, when confronted by civilian rioters, were not authorized to use their weapons unless given orders by a justice of the peace (who, in America, was generally a whig). See Letter From General Thomas Gage to Captain Schlosser, 6 February 1765, quoted in Clarence E. Carter, "The Office of Commander in Chief: A Phrase of Imperial Unity on the Eve of the Revolution," in 1 The Era of the American Revolution 170, 205 (Richard B. Morris, editor, Harper Torchbook edition, 1965); Letter From General Thomas Gage to Lieutenant Governor Cadwallader Colden, 31 August 1765, quoted in ibid, at 205; Letter From Secretary of State H. S. Conway to General Thomas Gage, 24 October 1764, reprinted in Anon., An Impartial History of the War Between Great Britain and Her Colonies 8-9 (appendix) (1780); see also letter from same to same, 1 March 1766, in 2 The Correspondence. supra note 2, at 33; Letter From General Thomas Gage to Lord Barrington, 16 January 1766, in ibid, at 334; Letter From General Thomas Gage to the Duke of Richmond, 26 August 1766, in 1 The Correspondence of General Thomas Gage With the Secretaries of State (Clarence Edwin Carter, editor, 1931); John Richard Alden, General Gage in America 114 (1948); John Shy, Toward Lexington: The Role of the British Army in the Coming of the American Revolution (1965). 7. See Quincy's summation to the jury, in Josiah Quincy, Memoir of the Life of Josiah Quincy, Jun. 44 (1825) Hiller B. Zobel, supra note 1, at See Letter From Lieutenant Governor Thomas Hutchinson to the Earl of Hillsborough, [10] March 1770, reprinted in 6 Proc. Mass. Hist. Soc'y 483, 484 (1863). 9. Letter From Lieutenant Governor Thomas Hutchinson to General

6 1974 A LAWYER ACQUITTED 193 "The law shall have its course," he promised, "I shall live and die by the law.""' Hutchinson knew he would be living by whig law, not tory law, for the chief fact of constitutional life under which both he and the army commander, General Thomas Gage, had to operate was that the structure of the institutions of law enforcement gave the whigs, not the officials of imperial rule, power to decide who would be indicted and who would be tried. The constitutional apparatus that should have told Adams that the rioters would never be indicted, and which told Hutchinson that the military men would be, was selection of grand and traverse juries. All jurors were chosen in open town meeting and the whigs controlled the town meetings of Suffolk County. The commander of the British troops in Boston thought the game up from the beginning: the whigs would stock the juries and the outcome was beyond doubt. "In short," Lieutenant Colonel William Dalrymple wrote General Gage, "if the trial comes on, I do not see a Chance of a Verdict being found for the prisonerrs."11 Gage was even more positive. "Most people," he informed Lord Hillsborough, "are of Opinion they will be condemned. Justly or unjustly, for that no Jury will be found in Boston, who will dare, tho' inclined to it, to give any other Verdict."12 Whig leaders may have been less certain than Gage that their power to select the jury made the outcome a foregone conclusion. Perhaps they had more respect for the impartiality of Massachusetts jurors-or they may have been troubled by the possibility that veniremen chosen by those Suffolk county towns geographically and politically beyond the influence of Boston would be unreliable. In a remarkable usurpation of the executive prerogative, they strengthened their chances of a conviction by naming a special prosecutor. The attorney general had left the province and Hutchinson had appointed Samuel Quincy, a high tory, to serve as prosecutor for the crown. He was reluctant, and the feeling was that he might not be anxious to see Preston and the soldiers found guilty. To keep an eye on Quincy and to make sure whig law had its day in court, the Boston town meeting resolved that "the Selectmen be desired to employ one or more Council to offer to the Kings Attorney Thomas Gage, 6 March 1770, reprinted in Randolph G. Adams, *New Light on the Boston Massacre," 47 Proc. Am. Antiquarian Soc'y 259, 270 (1936). 10. Hiller B. Zobel, supra note 1, at Letter From Lieutenant Colonel William Dalrymple to General Thomas Gage, 26 August 1770, in Randolph G. Adams, supra note 9, at Letter From General Thomas Gage to the Earl of Hillsborough, 7 July 1770, in 1 The Correspondence..., supra note 6, at 264.

7 194 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII as Assistance to him in the tryal of the Murtherers now committed; and in case the Kings Attorney should refuse such Assistance, and the Relatives of those Persons who were murthered should apply for it, that then the Town will bear the Expense that may accrue thereby."'3 The lawyer chosen was, of course, a militant whig, Robert Treat Paine. Here we see a constitutional question that remains to plague the 1970s: who possesses the authority to appoint a special prosecutor. Governor Hutchinson might have made an issue of Paine's appointment but his constitutional grounds would have been thin. He could have argued that the town lacked the power, which was probably true, but unfortunately for him the colony's charter said nothing about who appointed prosecutors. Had Hutchinson drawn an analogy to the office of attorney general, the whigs might have countered by pointing out that even the attorney generalship was not mentioned in the charter and hence could have said that the governor had no more right to appoint a crown prosecutor than did a town meeting to appoint a special prosecutor. Considering the dynamics of the political situation and the anger of the Boston mob it would have been immaterial and useless to contend that a prosecutor was the servant of the province (or the county), not of the town. It would be well to pause at this point to emphasize the second striking characteristic of the pre-revolutionary struggle between the forces of local or whig rule and the representatives of the imperial government. Both sides were dedicated to following the forms of law but both were prepared to manipulate those forms for their own advantage. It was the forms of law and the idea of legality that mattered, for they kept the situation from escalating into violence; manipulation was a matter of strategy not of abuse. Thomas Hutchinson could accept the fact that the whigs would pack the jury or appoint a special prosecutor, for he knew that should he find a legal means to pack the jury with tories or nullify the whole proceedings by producing the king's pardon following conviction, the whigs on their part would respect the forms of law. Everyone concerned agreed with Hutchinson when he said, "The law shall have its course." They had different ideas about that course, but all accepted the tradition that the course would be determined by "law." Thus we should not be surprised by another remarkable feature of the "massacre" trials: Captain Preston and his soldiers retained three defense attorneys, only one of whom was a loyalist Legal Papers of John Adams 8 (L. Kinvin Wroth & Hiller B. Zobel, editors, 1965). See also, Hiller B. Zobel, supra note 1, at 219.

8 1974 A LAWYER ACQUITTED 195 And that one loyalist-robert Auchmuty, former advocate general in admiralty and currently judge of the Massachusetts viceadmiralty court and of the district court of vice admiralty in Boston -played a secondary role. He was a respectable lawyer, but served Preston only as counsel and did not actively participate in the conduct of the trials themselves.14 The task of leading for the defense was assumed by two whigs, John Adams and Josiah Quincy, Jr., brother of the crown prosecutor, Samuel Quincy. Considering that Edmund Trowbridge was now on the superior court and James Otis was unstable, they were probably the best men available. But their politics caused some imperial officials to ask whether they would be reluctant to raise all the defenses available. "Lawyers from other provinces," Dalrymple explained to Gage, "would probably do much better for their Client, not being residents here they might exert their abilities without apprehension of future injuries; but where are any to be had."15 Even Hutchinson who knew and respected the integrity of both men had doubts about retaining them. "Adams & Quincy being too hot lawyers in favour of all popular irregularities," he noted, "had there been others of different principles & equal powers who would have engaged with zeal it certainly would have been more advisable to have employed them & have silenced these...."16 The first step taken by the defense was to sever the trial of Captain Preston from that of the men. Three of the six accused soldiers objected, and even petitioned the court to prevent it. May it please Your 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 and if we don't Obay is Command we should have been Confine'd and shott for not doing of it. We Humbly pray Your Honours that you would take it into your serious consideration and 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.'7 14. See Hutchinson's remarks that he was not a conductor". Hiller B. Zobel, Newer Light on the Boston Massacre," 78 Proc. Am. Antiquarian Soc'y 119, 126 (1969). 15. Letter From Lieutenant Colonel William Dalrymple to General Thomas Gage, 12 August 1770, in Randolph G. Adams, supra note 9, at Hiller B. Zobel, supra note 14, at Petition of 24 October 1770, reprinted in 3 Legal Papers... supra note 13, at 17n50.

9 196 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII Just what these men had in mind is one of the deepest puzzles of this deeply puzzling case. It has been suggested that the trials of the officer had to be severed from that of the men in order to avoid the kind of "mutual finger-pointing" that is hinted at in the petition.18 If Preston failed in his primary defense, that is, that the killings were justifiable, he would then have to maintain that the soldiers fired contrary to his orders or without his orders.19 That contention is true, but how one side could point the finger at the other is hard to imagine as none of the defendants could testify. The lawyers, of course, might do so through direct testimony of third-party witnesses or during their summations, but not when the same lawyers were defending both the officer and the men. That fact may explain why Adams and Quincy wanted the trials severed, but it cannot explain why these three soldiers wanted to be tried with Preston. The wording, grammar, and spelling of the petition, leave the impression that it was drafted without the aid of an attorney. The men may not have understood the law or they may have thought-as they imply-that an officer was more likely to be found not guilty than were common soldiers. If so, they did not know the whigs of Boston. Their petition was rejected. The most unexpected feature of Preston's trial was the jury. As previously noted, veniremen were returned by town meetings,20 selected by lottery from a list compiled by the selectmen,21 and as the town meeting could discard the name of any prospective member who in the sole judgment of the town was unable to serve,22 it was possible for the party that controlled the meeting to pack its share of the venire with dependable men. Samuel Adams saw to it that 18 good whigs and no tories were returned as Boston's representation of the special venire from which the "massacre" jurors were to be drawn. Preston, however, had 22 challenges and used them all,23 exhausting the list of veniremen. Rather than go back to the town meetings for a new venire, the practice was to fill the vacancies de talibus circumstantibus, that is, the sheriff was to call up talesmen whom he could select as he found them Legal Papers..., supra note 13, at Ibid, at See e.g., for early law, An Act for Holding of Courts (1699), in 1 Acts and Resolves 368 (1869) Legal Papers..., supra note 13, at 17n Hiller B. Zobel, supra note 15, at Legal Papers...., supra note 13, at See Hutchinson's comment quoted in ibid, at 49n9. Also, An Act For Establishing a Superiour Court of Judicature (1699), 1 Acts and Resolves 372 (1869).

10 1974 A LAWYER ACQUITTED 197 Sheriff Stephen Greenleaf for once had the opportunity to act more like an Irish or English sheriff than a Massachusetts sheriff and thereby have an impact on the course of events. Samuel Adams had been outfoxed. The prospective tales standing by the courthouse just happened to have been tories. One of them, it is reported, had gone to the town meeting and asked to be excused as "he was an intimate acquaintance of Captain Preston's and therefore consider'd himself as an improper person to serve upon the Jury."25 Now he was conveniently stationed to be summoned by Greenleaf. One of the tales, Samuel Adams complained, "was a known intimate of Prestons and another had declared before that if he was to be of the Jury he w[ould] sit till Doomsday before he w[ould] consent to a Verdict ag[ainst] him." A third man selected by Sheriff Greenleaf was the baker who sold bread to Preston's regiment.26 "I am at a Loss to know how so good a Jury came to be impannelled," the surprised Thomas Gage wrote to Lord Barrington, "for on the Jurors Names being transmitted here [New York] at the beginning of the Tryal; Some Gentlemen of this Place who knew most of them, declared they were the most honest and best People in the City of Boston."27 Of the twelve jurors eventually selected, five would become loyalist exiles,28 and it is not farfetched to suggest that the jury the whigs had been expected to dominate was "packed" the other way.29 The packing of the jury with so many loyalists might seem to make acquittal a foregone conclusion. If so, it is hindsight that provides the certainty, for there is no evidence that any of the participants felt they could relax. The unusual lengths and depths of Judge Trowbridge's instructions-his deemphasis of Biblical law, his defense of the mutiny act, his detailed analysis of self defense, 25. Letter From William Palfrey to John Wilkes, October 1770, reprinted in 3 Legal Papers...., supra note 13, at Letter From Samuel Adams to Stephen Sayre, 16 November 1770, reprinted in 2 The Writings of Samuel Adams 59 (Harry Alonzo Cushing, editor, 1906). It is not true, as sometimes stated, that Preston's jury was made up of nonbostonians. See e.g., John C. Miller, Sam Adams: Pioneer in Propaganda 187 (1936). The trial of the soldiers, however, did not have a single Bostonian on the jury. 3 Legal Papers.. supra note 13, at 25. It did have whig members. 27. Letter From General Thomas Gage to Lord Barrington, 12 November 1770, in 2 The Correspondence..,supra note 2, at Legal Papers...,supra note 13, at Hiller B. Zobel, Law Under Pressure: Boston ," in Law and Authority in Colonial America 187 (George Athan Billias, editor, 1968).

11 198 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII and his careful explanation that a person convicted of manslaughter may suffer the penalty of forfeiture-belie the fact that he thought the jurors had already made up their minds.3" At the very best there was a possibility they might return a verdict of manslaughter. Surely the backstage managers of the trial, General Gage and Lieutenant Governor Hutchinson, continued to worry until the very end. They were more prepared for a conviction than they were for an acquittal.31 Perhaps the best evidence, however, is the attitude of the defense lawyers. Neither John Adams nor Josiah Quincy acted as if the outcome was beyond doubt. On the question of what evidence should be submitted they had a disagreement that threatened to divide the defense and even prompted some royal officials to intervene in the belief that John Adams should be replaced as counsel. The question in controversy was whether the people of Boston should be put on trial. Captain Preston and his men had been confronted by a Boston mob and had used the last extremity in defending themselves. Their justification depended on the danger they faced. To establish the existence of sufficient danger the defense could produce direct evidence bearing on the events that led up to the shooting and limiting questions to what had happened on that night-what was said, by whom, whether the mob was armed, and whether witnesses thought the soldiers were about to be assaulted in such a manner that their lives were threatened. Or the defense could go further and introduce circumstantial evidence about Boston mobs in general, the antimilitary mood of the town, the threats of militant whigs to commit violence, the abuse heaped on the troops during past riots, and the likelihood that some political leaders were engineering a fatal clash between the town and the soldiers in order to drive them out of Boston. Such circumstantial evidence might not prove that Captain Preston's men were in actual danger on the night of the fifth of March, but it would bear on the question whether they had cause to think they were and therefore acted reasonably when they fired on the mob. It was not immaterial that the "massacre" occurred just three days after the fight at the ropewalk, when several soldiers had been beaten and the mob had been defended by whig officialdom See Trowbridge's charge to the jury (Preston's case), in 3 Legal Papers..., supra note 13, at 93-97; Trowbridge's charge to the jury (soldiers' case), ibid, at They had, for example, obtained the king's pardon, a fact they did not make public. 32. Jesse Lemisch, Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America," 25 Will. & Mary Q. 371, (1968); 1 Page Smith, John Adams 117 (1962); John Richard Alden,

12 1974 A LAWYER ACQUITTED 199 Thomas Gage was one of the amateur lawyers who thought that Captain Preston should be defended by putting Boston on trial. He would have brought in all the circumstantial evidence admissible to show that the people were spoiling for a fight and that the soldiers stationed in town had long been subjected not only to abuse but physical danger. "I imagine," he explained to Dalrymple, "the Prisoners chief Defence lyes in proving that the People were in search of them, which indicates premeditated Mischief, that they were grossly insulted and attacked without Provocation, and support the Degree of Violence in the Attack to have been such, as to endanger their Lives.... These are the opinions of many, and I should imagine not difficult for the Lawyers, to make these particulars appear plain to the Court, as well as to cross Question the opposite Evidence, in a proper Manner."33 Among those agreeing with General Gage that circumstantial evidence regarding attitudes and danger held the key to the trial were the prosecutors. They made use of testimony gathered by whigs immediately after the "massacre" to show that the soldiers were the ones who had, during recent weeks, been making threats and looking for trouble.34 Thus they called one witness, Samuel Hemmingway, who apparently had not been present at the "massacre," to testify about the attitude of one of the soldiers, a private named Mathew Killroy. * Hemmingway said he knew Killroy "particularly well." Did you ever hear Killroy make use of any threatening expressions against the inhabitants of this town? Yes, one evening I heard him say, he never would miss an opportunity, when he had one, to fire on the inhabitants, and that he had wanted to have an opportunity ever since he landed. How long was that before the 5th March? A week or fortnight, I cannot say which.... What gave occasion for this? He and I were talking about the town's people and the soldiers. Did he say it with any resentment? No. Was he in anger? No. Was Killroy in liquor or not? No. Had there any angry words passed betwixt him and you at that time? No, none at all. Was it in supra note 6, at 194; Thomas Hutchinson, The History of the Province of Massachusetts Bay, From 1749 to (1828). 33. Letter From General Thomas Gage to Lieutenant Colonel William Dalrymple, 19 August 1770, reprinted in Randolph G. Adams, supra note 9, at For the whig depositions see, Frederic Kidder, supra note 4, at * Also Mathew Killeroy or Kilroy.

13 200 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII jocular talk? I do not know. I said he was a fool for talking so; he said he did not care.35 Josiah Quincy wanted to offer similar evidence and to ask similar questions for the defense. He put one witness on the stand who told of seeing, sometime prior to the "massacre" a gang of townspeople prowling the streets, armed with sticks.36 John Adams refused to permit any more evidence of that type and even threatened to resign if Quincy proceeded.37 Preston and his friends began to worry. It seemed that Adams was more intent on protecting Boston's reputation than the captain's life, and there was discussion as to whether Adams should be removed from the case.38 Summarizing the event, Thomas Hutchinson has left us our only contemporary account, unfortunately secondhand. Quincy one of the Counsel for the prisoners39 was for giving very large Evidence against the Inhabitants to prove a premeditated design to drive out the Soldiers & frequent abuse as well as threats Adams was against it & [Sampson] Blowers who acted as an Atto[r]n[e]y to prepare the Evidence told me that Adams said if they would go on with such Witnesses who only served to set the Town in a bad light he would leave the cause & not say a word more. So that a stop was put & many witnesses were not brought who otherwise would have been. Such a disposition appeared in Adams to favor the Town that the Commodore [Samuel Hood] & others spoke to me & told me they expected the cause was lost and the Commod[ore] sent for Auchmuty & urged him to insert himself instead of Adams. He declined & I declined [consenting] to it as it would have been extremely irregular & would have done more hurt than good especially as he had not attended thro' the whole of the Trial & could not be sufficiently prepared to close the Cause.40 Hutchinson's implication is clear enough. To protect the reputation of Boston and its whig leadership John Adams was suppressing pertinent evidence. As Hutchinson explained to Gage, "he being a Representative of the Town and a great Partisan wishes 35. Ibid, at 149. Also reprinted in 3 Legal Papers..., supra note 13, at 131n Testimony of John Gillespie, reprinted in ibid, at Hiller B. Zobel, supra note 1, at Ibid. 39. Quincy and Adams would disagree on this question in the second trial as well as at that of Captain Preston's. Ibid, at Quoted in Hiller B. Zobel, supra note 15, at 126.

14 1974 A LAWYER ACQUITTED 201 to blacken the people as little as may be consistent with his Duty to his Clients."4' Since it was uncovered, Hutchinson's version has generally been accepted by historians, some even suggesting that Samuel Adams had persuaded the two whig lawyers to defend Preston in order that witnesses would not be examined as to the responsibility of the people for the "massacre."42 Even the leading legal expert on "massacre" history has concluded that John Adams put politics over his responsibility as a defense attorney. "Allow though we may for the understandable anxiety current among the Loyalist chiefs, which might have caused them to view the progress of the trial as less favorable than it actually was, we still come away from the Hutchinson account with the uncomfortable feeling that in trying to do what he considered justice to Boston, John Adams came shockingly close to sacrificing his clients for the good of his constituency."4:- It may be that Adams's refusal to allow Quincy's line of questioning tells us something about the conditions of whig law in pre-revolutionary Boston: that whig lawyers like whig jurors and whig magistrates were so committed to whig politics that even their clients were given secondary importance. But John Adams has left us no direct evidence supporting that contention. Instead he once asserted that his motive in suppressing the testimony was not understood. "His Clients lives," he wrote of himself in the third person, "were hazarded by Quincy's too youthful ardour."44 It is quite likely that what Adams says is true. Legal historians have suggested only two reasons why John Adams would not allow Josiah Quincy to pursue his evidence about the threats and intentions of Boston's more militant rioters. One is that Preston's acquittal did not require such testimony.45 Adams is said to have protected the town only after he had a case strong enough to be confident of victory.4" This explanation is plausible, but does not answer the question how he persuaded Quincy, Auchmuty, and Preston to accept his judgment. Surely the worried Preston did not believe that he was certain of acquittal. The second reason is that Adams believed the evidence that Quincy wanted to offer would harm his clients,47 as it might set 41. Letter From Lieutenant Governor Thomas Hutchinson to General Thomas Gage, 3 December 1770, reprinted in Randolph G. Adams, supra note 9, at See e.g., John C. Miller, supra note 26, at Hiller B. Zobel, supra note 15, at Legal Papers...., supra note 13, at Hiller B. Zobel, supra note 1, at Legal Papers..., supra note 13, at Ibid.

15 202 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII off a reaction among the population either to lynch Preston or terrorize the jurors.48 That explanation is only barely acceptable as it goes against what we know of the Boston mob: it was violent but it never took blood. Surely John Adams gave no indication Bostonians would react violently if he exposed their guilt to the world. For that is precisely what he did, and he did so in strong terms. We do not have a detailed report of his words at Preston's trial, but in the second case -that of the soldiers-adams used incriminating language when necessary. He did not hesitate to assert and prove the aggressiveness of Bostonians on the night of the "massacre" and in his last summation charged that the people attacking the soldiers were engaged in an "unlawful design."4" "Irish teagues" and "jack tars" he called them without indicating any fear that his clients would be lynched or the jurors abused. We have been entertained with a great variety of names to avoid calling the persons who gathered at the custom-house a mob. Some have called them shavers, some call them geniuses. The plain English is, gentlemen, 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 cannot conceive, unless the name is too respectful for them. The sun is not about to stand still or go out, nor the rivers dry up, because there was a mob in Boston on the fifth of March that attacked a party of soldiers. Such things are not new in the world, nor in the British dominions, though they are, comparatively, rarities and novelties in this town.5" Calling the victims of the "massacre" a mob and insisting that the jury face the reality of what occurred on the night of the fifth of March, John Adams gave no indication that he wanted to protect the reputation of Boston. Josiah Quincy in his summation was nowhere as near as severe as Adams. It could be argued that Adams carried his accusations only so far. He proved one particular Boston crowd a dangerous mob and ignored the previous harassment of the soldiers by the inhabitants, the threats, and other matters that Quincy wanted to make part of the defense. But that was precisely the legal point. He developed the case necessary to exonerate his clients and ignored matters that might have been harmful. 48. Hiller B. Zobel, supra note 1, at Legal Papers..., supra note 13, at Page Smith, supra note 32, at 124.

16 A LAWYER ACQUITTED What Adams did was limit his condemnation to the night in question. He did not present arguments based on prior threats to the soldiers and the explanation may be the one that he gave. To have done so would have "hazarded" his clients' lives.5 Sampson Blowers may not have repeated to Hutchinson every argument Adams made to prevent Quincy from pursuing his circumstantial evidence, or Hutchinson, who was not a lawyer, may not have appreciated what he was told. Just as likely as whig politics, John Adams could have been motivated by considerations of law. Had he put Boston on trial he would have "hazarded" Preston's chances of an acquittal and to a lesser degree the chances of the soldiers. For the military lawfully to fire upon civilians without orders from a magistrate, they had to prove their lives were in danger and they could not retreat. Quincy would have established the danger by prosecuting the entire town for intending an assault that might lead to death. But had it been proven that the town was spoiling for a fight and the soldiers knew it, Captain Preston might have been accused of recklessly entering a situation of peril without sufficient justification. "I went to the fatal place," Preston had explained to Gage, "to passify the Mob if possible, to support the Sentry in his material trust, & restrain the Soldiers by my presence from commiting the mischiefs that happened."52 As he could not take the stand, he could not tell this to the jury. Had he been able to testify and had he made this defense under direct examination, the prosecution would have asked him why he sent the armed soldiers there in the first place. As it was, there was no need to ask him. A letter he had written had already been made public and in it he said that he had heard that the sentry, standing alone before the customhouse, might be murdered by the mob. "This," Preston explained, "I feared might be a prelude to their plundering the king's chest. I immediately sent a non-commissioned officer and 12 men to protect both the sentry and the king's money, and very soon followed myself to prevent, if possible all disorder...":3 When he read this explanation, Thomas Gage seems to have thought that Preston was hastening his own hanging. Captain Preston's own Account I rather wish kept here than sent home [where it was published]. He had no Business to 51. Text to note 44 supra. 52. Letter From Captain Thomas Preston to General Thomas Gage, 19 March 1770, reprinted in Randolph G. Adams, supra note 9, at Captain Thomas Preston's account of the Boston Massacre, 13 March 1770, reprinted in Merrill Jensen (editor), 9 English Historical Documents: American Colonial Documents to (1955).

17 204 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII defend the Custom House unless legally called upon; I suppose his Motive for sending the Party was, to relieve the Centry, who was attacked, and bring him back to the Guard to prevent Mischief. Other Motives were no doubt good, honest and Military but they may not be good in Law, where a Military Man Acts by his own Authority solely.54 Gage put his finger on the difficulty. Preston, not having acted pursuant to civilian orders, could justify his presence and his conduct only if there on military business. To have gone to save his sentry was one matter, to keep the mob from plundering the customhouse was another. He needed a request from a magistrate to undertake that assignment. Otherwise his presence with a detail of armed men would not have been justified under law. Judge Trowbridge would tell the jury that anyone had the right of self defense if he finds himself in a situation of peril "without his own fault."55 Had John Adams permitted Josiah Quincy to prosecute the entire town of Boston for assault with intent to kill, the jury might have been more convinced that Preston and his men were in a situation of grave peril. But that evidence depended on proving that everyone knew and expected there was going to be troublethat the people were making threats and even planned violence. Preston, as much as anyone, would have known about the danger. The prosecution could have charged that Preston was at "fault"- that he knowingly took armed men into a situation of peril and as a result of his reckless conduct death resulted. The charge of reckless or wanton disregard for the consequences would have been compounded by the fact that his publicly-stated purpose of acting -to protect "the king's money"-was not sanctioned by law. No matter what had been John Adams's motive, it was certainly to Preston's advantage that he did not permit Josiah Quincy to prove that Bostonians were planning to attack some soldiers and that everyone knew that they were. It was better not to have had to scrutinize Preston's presence at the customhouse, and to limit the defense to proving that he and his men were justified when defending themselves against the "Irish teagues" and the "jack tars" who had assembled there. Historians may differ as to whether John Adams protected the reputation of Boston. Far more divulgatory is the judgment of 54. Letter From General Thomas Gage to Lieutenant Colonel William Dalrymple, 30 April 1770, quoted in 2 The Correspondence..., supra note 2, at 102n45. See also same to same, 28 April 1770, reprinted in Randolph G. Adams, supra note 9, at Judge Trowbridge's charge to the jury (soldiers' trial), 5 December 1770, reprinted in 3 Legal Papers..., supra note 13, at 300.

18 1974 A LAWYER ACQUITTED 205 contemporaries especially tory contemporaries, and if we consider what was said by those who participated, it is evident that many felt Boston had not only been put on trial, it had been convicted. First of all, there is John Adams himself. He may be an ex parte witness, yet it is not irrelevant that he did not believe that he had surpressed pertinent evidence about the Boston mob. Instead, when Adams recalled the "massacre" trials, he retained the impression that he had not only condemned the mob, he had exposed it as a danger to liberty and the true cause of the "massacre." "I begin to suspect," he wrote a friend more than a decade and a half later, "that some Gentlemen who had more Zeal than Knowledge in the year 1770 will soon discover that I had good Policy, as well as sound Law on my side, when I ventured to lay open before our People the Laws against Riots, Routs, and unlawful assemblies. Mobs will never do-to govern States or command armies. I was as sensible of it in 70 as I am in 87. To talk of Liberty in such a state of things-!"56 One tory participant who agreed with Adams was Benjamin Lynde, a judge who tried to resign his commission before the trials began.57 In his charge to the jury-made in open court before members of the potential mob he is supposed to have feared- Lynde told the Suffolk county jurors that the defense had done more than prove Preston innocent. Adams and Josiah Quincy had proved the town of Boston guilty. "Happy I am to find, that, after such strict examination, the conduct of the prisoner [Preston] appears in so fair a light; yet I feel myself, at the same time, deeply affected, that this affair turns out so much to the disgrace of every person concerned against him, and so much to the shame of the town in general."58 Peter Oliver, another judge, said much the same. "I have a Quarto Volume of Evidence," he wrote Hutchinson, "which I have pretty minutely taken. I have reviewed it, & it turns out to the Dishonour of the Inhabitants, & appears quite plain to me that he [Preston] must be acquitted."5" 56. Letter From John Adams to Benjamin Hichborn, 27 January 1787, quoted in ibid, at Letter From Lieutenant Governor Thomas Hutchinson to Governor Francis Bernard, 28 August 1770, quoted in ibid, at 14; James K. Hosmer, The Life of Thomas Hutchinson, Royal Governor of the Province of Massachusetts Bay 196 (1896). 58. Judge Lynde's Charge, reprinted in 3 Legal Papers..., supra note 13, at Letter From Judge Peter Oliver to Lieutenant Governor Thomas Itutchinson, n.d., quoted in Quincy Reports 384n2 (1868).

19 206 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVIII Even Thomas Hutchinson--the man responsible for suggesting that John Adams might have jeopardized his clients by suppressing evidence for the sake of whig politics-was not so harsh as some of the historians who have accepted his judgment too literally. Like Lynde, Oliver, and John Adams himself, Hutchinson seems to have been satisfied that the story of the Boston mob had been exposed to the world. "The issue," he wrote, "is favorable to the cause of Government and the Counsel for the prisoners have done more to hurt the general cause in which they had warmly engaged than they ever intended & I think it not impossible if they could have forseen it they would have declined engaging or measures would have been taken to discourage them from it."6" Thomas Hutchinson was again probably wrong. John Adams and Josiah Quincy had no regrets and there is no evidence that they believed that the conditions of law in pre-revolutionary Boston were such that a whig lawyer had to put politics above client in a criminal case or lose favor with the multitude. Adams himself would be elected by the town one of its representatives to the general court and the whigs would even invite him to accept their highest mark of distinction-to be the orator at the annual commemoration of the Boston Massacre.6' But the fact that John Adams had exposed the doings of the Boston mob is best attested to by his cousin, Samuel Adams, who wrote that "much was bro't into Court, to show that the Town was in a state of disorder on that Evening, and previous to the Affray at Murray's Barracks; Witnesses were admitted to testify, that they had met by one and another arm'd with Clubs; but nothing appeared there, to show the Cause and even the necessity of it."62 John Adams had done his duty, Samuel Adams is saying. The town of Boston had been put on trial. Nonetheless, Samuel Adams was not satisfied. If the "massacre" trials are to be understood from the perspective of contemporary Boston they must be seen in terms of whig law. That law did not demand an unfair trial or certain convictions. No whig mobs took to the street when the jury was packed with loyalists or when Preston and the soldiers were acquitted. What whig law asked, as Samuel Adams would state, was to have its own day in court. Evidence proving the people were armed did not have to be suppressed to satisfy the whigs. It was what was not done at the trials that bothered Samuel Adams. Evidence supporting a doctrine of whig law was not produced. 60. Hiller B. Zobel, supra note 15, at Entry for 23 December 1772, in 2 Diary and Autobiography of John Adams (L. H. Butterfield, editor, 1961). 62. The Boston Gazette, 13 December 1770, reprinted in 2 The Writings of Samuel Adams 115 (Harry Alonzo Cushing, editor, 1906).

20 1974 A LAWYER ACQUITTED 207 Under that doctrine the people had a right to be armed because they were in danger from the soldiers.63 If Boston was to be put on trial, so should the British occupation of the town. This is the reason why Thomas Hutchinson was wrong. It was not John Adams or Josiah Quincy who let the whigs down. It was their special prosecutor, Robert Treat Paine. 63. Samuel Adams would have extended the whig theory of the legitimacy of some mobs (see supra note 5) further by insisting the fact a mob was armed did not make it illegal or dangerous. There was still the question of whether it had a right to be armed. The cause" or "necessity of arming" were factual issues for the jury. See his arguments ibid, at