John Adams and the Trial of the Boston Massacre Defendants:

Honoring the Rule of Law

Speech by

The Honorable William H. Burgess, III

to the

Pinellas County Trial Lawyers Association

May 21, 2019

Ladies and gentlemen,

Justice being the first virtue of America society, it is appropriate that as trial lawyers we
honor John Adams, one of the finest lawyers our Nation has ever produced, who stood for
adherence to the rule of law and defense of the rights of the accused.

Although he is more widely known today as a diplomat, statesman and political theorist
who rose to become the second President of the United States, John Adams initially came to
prominence as a brilliant and skillful trial attorney willing to take on difficult and unpopular
cases that no other lawyer would take, such as when he defended a British captain and eight
soldiers charged with murder in the wake of what has become known as “The Boston
Massacre.”

In unhesitatingly taking on nine of the Boston Massacre defendants, all of whom faced
the death penalty, Adams pursued the most difficult and unpopular criminal defense ever
undertaken in pre-Revolutionary War America, and against all odds vindicated the enduring
principle that even the most unpopular criminal defendants are entitled to competent legal
counsel and fair treatment by the courts.

I was born and raised in Massachusetts, and have visited the site of the Boston
Massacre many times. The trials of the Boston Massacre defendants have always had a certain
fascination for me, which I will now share with all of you.

The Incident

In the Spring of 1770 the seaport town of Boston, population 16,000, is an isthmus
connected to the mainland by a sliver of land, and is simmering with rebellion. As a result of
the resistance of colonial merchants to the payment of import duties and other taxes to the
British Crown, the town has been occupied since 1768 by two regiments of British troops,
numbering about 600 in all. There have been numerous incidents of violence between the
troops and the inhabitants, and the Sons of Liberty have become an organized resistance
movement with tremendous influence over the people of the town.

Matters come to a head on the evening of March 5, 1770.

The evening is cool and there is ice and snow left over from a storm earlier in the day
on the cobblestone streets. Private Hugh White is standing sentry duty on King Street near the
Customs House when, sometime after 8 PM he sees a wig-maker’s apprentice insulting a
passing British officer for not paying his master for dressing the officer’s wig. White tells the
apprentice that the officer is an honorable man who will pay any just debts owed, and the
apprentice begins to insult White. The officer ignores the apprentice and neither the
apprentice nor White knows that the bill had been paid the day before. The confrontation
between the apprentice and White escalates to the point where White strikes the apprentice
with the butt of his musket, knocking him to the ground. The apprentice runs off, and then
returns with some friends to confront White. Within minutes, a crowd of unruly young men
has surrounded the sentry and is yelling insults and throwing chunks of ice, oyster shells, pieces
of coal and ash, and other objects at him.

The anti-British agitators have a technique for getting people out on the street when
they want a confrontation with British troops: They ring the bells in nearby churches and
government buildings which are normally used to sound the general alarm for a fire, and go
about shouting “Fire!” There is no organized fire department in Boston and the citizens have
to turn out to fight large fires themselves. People turn out thinking there is a fire, and those
who are up for a confrontation remain on the street as part of an 18th-century version of the
modern “flash mob.” There are several such confrontations with British troops that evening,
and the bells have brought out hordes of people itching for a fight. Many of these people also
know that British soldiers are not permitted to fire on civilians in the town without an order
from a civil magistrate, and this emboldens them.

In the face of the onslaught, Private White is forced to retreat to the Customs House,
with a locked door to his back. He pounds on the door, yelling for help, and at about 9 PM
Captain Thomas Preston orders the guard out to protect the sentry and restore order.

Preston and seven soldiers force their way through the crowd and form a defensive
semicircle with their backs to the Customs House. At this point, the crowd numbers about 300,
and they are upon the soldiers, hitting them with wooden sticks and trying to grab their
muskets away from them. Some of the people in the crowd are encouraging others to press
on, while assuring them that the soldiers will not fire. One of the soldiers, Hugh Montgomery,
is hit with a cudgel and knocked over. As he tries to recover he yells “Damn you bloods, fire!”
or words to that effect, and shoots into the crowd. Other soldiers follow in rapid order
shooting into the crowd and Preston, who is standing to the side of the soldiers and engaged in
a conversation with a member of the crowd shouts for them to stop firing and tries to restore

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order. When the shooting stops, 5 civilians lie mortally wounded and 6 or more have serious
injuries. A few minutes later, a larger force of British soldiers arrives on the scene and
disperses the crowd.

That evening, Preston and the soldiers are questioned by acting Governor Thomas
Hutchinson and, after midnight, they are arrested and confined to the local jail where they are
held until their trials many months later.

The anti-British propaganda machine begins to refer to the incident as a “massacre”

almost immediately after the shooting, and makes the victims out to be martyrs for the cause
of liberty. At 11 AM on March 6th a town meeting is held at Faneuil Hall and the members
excoriate the British soldiers for their butchery and accuse Captain Preston of ordering the
troops to fire into the crowd. The March 8th funeral of the first 4 victims becomes a town-wide
day of mourning, with a huge funeral procession, closed shops, and church bells ringing
throughout Boston. Local newspapers run articles condemning the actions of the British
soldiers, and anti-British activists write inflammatory letters to these publications as part of the
wider effort to manage the “spin.” On March 19th, the town publishes and distributes a lengthy
report titled “Horrid Massacre in Boston” that propagandizes against the British. By March
22nd, local justices of the peace have collected the sworn affidavits of 96 witnesses who attest
to the brutality and malice of the accused British soldiers. During the month of March,
drawings showing the British troops shooting their victims in cold blood begin to circulate and,
by March 28th, Paul Revere has produced the now-famous engraving that shows, quite
inaccurately, the British troops standing in orderly line formation shooting into the unarmed
crowd as Preston stands behind the soldiers, cutlass raised, giving the order to fire.
Unpublished, however, is a crime scene sketch made by Paul Revere that is more accurate in
depicting what happened than his well-publicized engraving.

The Indictment

On March 13th, at the request of the colony’s Attorney General, the local grand jury
indicted Preston and the eight soldiers for murder and being accomplices to murder. Also
indicted were four civilian employees of the Customs House who, it is alleged, fired out the
building’s windows into the crowd.

Captain Preston knew that he needed a lawyer, and so he asked a local merchant to
find one for him. It appears, however, that no other lawyer in town would take the case until
the merchant came to John Adams, who immediately agreed to represent Preston and the
soldiers. Adams accepted because he believed that no man in a free country should be denied
the right to counsel and a fair trial, and because he believed, in principle, that this case was the
utmost of importance. He knew that he would be risking his hard-earned reputation and his
practice, but he felt that his duty as a lawyer was clear.

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 The defendants were arraigned on September 7th, and each pleaded “not guilty.”
Adams immediately asked for, and was granted, severance of Captain Preston’s trial from the
trial of the eight soldiers, and set Preston to be tried first. Adams, ever so shrewd, privately
reasoned that trying them together, with Preston telling the jury that he did not order the
soldiers to fire, would leave the soldiers with one defense, namely that Preston did give the
order, and a confused jury would convict them all.

All of the defendants were charged with capital murder, for which the penalty was a
trip to the gallows without the possibility of benefit of clergy (that is, without the opportunity
to do penance instead of being executed). The defense strategy of Adams was to seek outright
acquittal on the basis of self-defense, and if not, to persuade the jury to return a lesser verdict
of manslaughter, which also carries the death penalty but was “clergyable.” In order to get the
lesser verdict, Adams would be relying on the ancient common law defense of provocation.
Under the common law, an intentional killing done in cold blood was murder, whereas a killing
done in the heat of passion brought on by legally adequate provocation was the lesser offense
of manslaughter.

Trial Preparation

Adams and the other members of the defense team prepared for the upcoming trials by
interviewing their clients, speaking to witnesses, and reviewing all of the available written
statements collected by the government. In the course of preparation, Adams detected a
pattern of perjury and found the affidavit of one government witness to be especially helpful
to his defense of Preston. Adams deftly identified the lynchpins in the government’s case
against his clients and planned how he would pull these pins out at trial.

The Trial of Captain Preston

Captain Thomas Preston’s trial began on October 24, 1770 and lasted a week. During
the trial, Adams sought to create reasonable doubt in the minds of the jury by focusing on the
lack of evidence and the conflict in the evidence as to whether Preston had given the order to
fire, but Adams had also made clever use of the jury selection process of the day before the
government even began to put on its case.

The procedure under colonial law was that the town meeting would pick the venire, the
group of men from which the jury would be selected, and the names of the venire would be
given to the accused before trial. Challenges for cause were allowed, and 20 peremptory
challenges were allowed in a murder trial. If the venire was exhausted and additional jurors
were needed, the county sheriff would call on onlookers at the courthouse, called talesmen, to
supplement the venire.

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 The town meeting had picked the venire for the trial with an eye towards getting a
conviction, and Adams was ready for this. Adams challenged peremptorily 19 jurors; 15 of the
original venire, and 4 talesmen. He also challenged two other of the original venire for cause
by reason that Preston had not been given their names before he was brought to trial. Several
talesmen returned by the Sheriff were excused by the Court for various reasons offered by
them, including bias. In the end, however, 5 talesmen were picked for the jury, all of whom
were Loyalist merchants, and only two of the twelve jurors seated were from Boston. Among
these talesmen were Philip Dumaresq and Gilbert Deblois, who were friends of Preston.
Deblois had also assisted Preston in his defense before trial by gathering evidence and
providing information about the persons returned by the town as jurors.

The prosecution called 15 witnesses, including 4 who testified that they saw Preston
give the order to fire, although the credibility of these witnesses faltered on cross-examination.
The defense called 23 witnesses, including 3 who supported Preston’s denial that he had given
the order.

In a surprise move, John Adams called one of the government’s witnesses, a well-known
Boston merchant named Richard Palmes. Palmes had given a lengthy deposition in support of
the government’s case against Preston and the soldiers. In that deposition, however, Palmes
told the story that he was in a face-to-face conversation with Preston as Preston stood at the
end of the troops, with Preston assuring him that the troops would not fire on the crowd,
when Palmes saw a piece of snow or ice fall among the soldiers, at which point the soldier to
Preston’s right stepped back and fired his musket, a few seconds after which the other soldiers
started firing. In other words, Preston could not have given the order to fire. Palmes was
aware of his importance to the defense and had tried to leave the county to avoid being called
by Adams, but Adams had him served with a court order prohibiting him from leaving the
jurisdiction and forced him to repeat his deposition testimony on the stand. Other witnesses
called by the defense substantiated Palmes’s statement, and the government’s case was in
ruins. The jury deliberated only about 3 hours before acquitting Preston.

The Trial of the Soldiers

The trial of the 8 soldiers began 8 weeks later, on November 27th, and ended on
December 5th. There were only 4 veniremen from Boston and all were struck for cause, leaving
no one from Boston on the jury and ensuring that those seated were of moderate
temperament and untainted by the passions and propaganda of the anti-British forces.

The prosecution theory was that the soldiers were being hit with snowballs, were not in
mortal danger, did not have a lawful excuse for firing into the crowd, and were predisposed to
shoot the unarmed civilians. The prosecution based much of its case on the statements of a
series of witnesses who cited earlier violent encounters with the defendant soldiers in which

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the soldiers had made statements to the effect that they would not hesitate to kill a townsman
if they had the chance. The prosecution called 28 witnesses for this purpose.

The theory of the defense was that the soldiers fired after coming under
life-threatening attack, and portrayed the crowd as an out-of control gang of hooligans. The
defense called 54 witnesses for this purpose. Among the witnesses Adams called was Dr. John
Jeffries, the doctor who attended to victim Patrick Carr, who had lingered until March 17th. Dr.
Jeffries testified, in what appears to be the first written record in American jurisprudence of
the use of the “dying declaration” exception to hearsay, that Carr told the doctor shortly
before he passed that the soldiers had shown exceptional restraint and had fired in
self-defense, that he forgave the man whoever he was that shot him, and that he was satisfied
the shooter had no malice and had fired to defend himself.

At the end of the trial, Adams gave a brilliant summation, which included these famous
words:

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 candor 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.

The jury deliberated 2½ hours and returned verdicts of not guilty as to six of the
soldiers and verdicts of manslaughter as to two soldiers, Matthew Killroy and Hugh
Montgomery. The acquitted soldiers were immediately discharged by the court.

At their sentencing hearing on December 14th, Adams and the convicted soldiers pled
“the benefit of clergy,” (the chance to make penance instead of being executed). To insure
that they would never again claim the benefit of clergy, Sheriff Stephen Greenleaf branded the
2 men with an “M” on their right thumbs and they were discharged as free men.

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Epilogue: The Trial of the Customs House Employees

As an epilogue to the trials of Captain Preston and the soldiers, Adams had so
weakened the government’s case against the 4 Customs House employees that, when their
case went to trial in December 1770, the jury acquitted all of the defendants without even
leaving their seats to deliberate. Adams did not represent those defendants, but they greatly
benefitted from the work he had done in the earlier trials of Preston and the soldiers.

Conclusion

John Adams was paid only 18 guineas, which today would mean about $3,112.51 in
earning power, for 14 or 15 days labor. He paid dearly for standing up for principle. In 1770,
before the trial of Captain Preston, Adams was handling 450 cases a year, and his clients
included many of the Massachusetts social elite; after the trials of the soldiers, Adams lost half
of his practice. But Adams was a man of principle and had no regrets. On the third anniversary
of the incident that has become known as the Boston Massacre, Adams wrote in his diary

The part I played in the defense of Captain 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 have ever rendered my country. Judgment of death against
these 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.

The example of John Adams is that, for our democracy to work properly, legal
representation of even the most unpopular and notorious accused must be meaningful, and
that counsel for the defense must be fearless enough, competent enough, principled enough,
and passionate enough to be able to vindicate the rights of his or her client and ensure that the
legal process is full, fair, and untainted. The John Adamses of our legal community make us
great and free, and without them the tyranny of the mob would prevail.

Thank you.