J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Thursday, October 29, 2020

The Case for Capt. Preston

On 25 Oct 1770, Capt. Thomas Preston’s attorneys began to make the case for his acquittal for murder after the Boston Massacre.

The defense team consisted of three men. Robert Auchmuty was a senior attorney allied with Lt. Gov. Thomas Hutchinson’s adminstration. John Adams appears to have called the first witnesses and started questioning them. The youngest team member, Josiah Quincy, Jr. (shown here), worked in a subordinate role, also posing questions.

The first defense witness was William Jackson, proprietor of the Brazen Head hardware store. His mother, Mary Jackson, had rented a room to Capt. Preston, and he testified about how soldiers had come to fetch the officer because of fighting on the street.

The defense called two more witnesses on 25 October, eighteen the next day, and one or two the day after that, in addition to the owner of an enslaved witness to testify to his veracity. (The prosecutors also called back one of their witnesses for brief testimony.) Among the eyewitnesses were:
  • Benjamin Davis, who lived directly across from the Customs house.
  • Richard Palmes, a hot-headed apothecary who said that at the first musket shot “I had then my hand on the Captains shoulder.” Then, in swinging his cane at a soldier poking at him with a bayonet, Palmes said, he accidentally hit Preston on his arm.
  • Andrew a Negro Servant” (i.e., slave) owned by the merchant Oliver Wendell.
  • “Jack Negro Servant to Doctr. [James] Lloyd.”
  • Jane Whitehouse, who married a solder between the shooting and her testimony.
  • Newton Prince, a free black man who later settled in London as a Loyalist.
  • Capt. James Gifford and Capt. Brabazon O’Hara of the 14th Regiment.
  • Hat merchant Thomas Handysyd Peck.
  • Harrison Gray, Jr., son of the provincial treasurer.
  • Lt. Gov. Hutchinson himself, reporting what he had found on the scene when summoned after the shooting and what little he could recall of his conversation with Preston.
None of these defense witnesses described hearing Preston give an order to fire. Some were certain he didn’t. (Palmes suggested he might have, but he was close enough to be touching the captain and heard nothing.) While some prosecution witnesses said Capt. Preston had ordered the soldiers to load their guns, one defense witness said that Cpl. William Wemms had made that call.

The main value of all this testimony was in building a picture of an angry crowd, verging on violence, and of confusion in the crush around the soldiers. Preston’s attorneys were laying the blame for the deaths on the mob or the soldiers, but not the captain. (The soldiers were afraid that would happen.)

There was also conflict within the defense team. According to Hutchinson, Adams and Quincy had “a difference in opinion…of the necessity of entring into the examination of the Conduct of the Towns people previous to the Action itself.” Was it necessary to portray the Boston crowd as habitually violent in order to get Preston off?

The Rev. William Gordon’s history of the Revolution later described the interaction this way:
Mr. Quincy pushes the examination and cross-examination of the witnesses to such an extent, that Mr. Adams, in order to check it, is obliged to tell him, that if he will not desist, he shall decline having anything further to do in the cause. The captain and his friends are alarmed, and consult about engaging another counsellor; but Mr. Adams has no intention of abandoning his client. He is sensible that there is sufficient evidence to obtain a favorable verdict from an impartial jury; and only feels for the honor of the town, which he apprehends will suffer yet more, if the witnesses are examined too closely and particularly…
Hutchinson likewise saw Adams as protecting Boston’s reputation: “he being a Representative of the Town and a great Partisan wishes to blacken the people as little as may be consistent with his Duty to his Clients.”

Adams himself responded to the passage in Gordon’s book by stating, “His Clients lives were hazarded by Quincy’s too youthful ardour.” It’s not clear what Adams had in mind here. Did he fear that Quincy would make the Suffolk County jury so resentful they’d vote to convict, or that he’d rouse the crowd outside against Preston?

The defense counsels rested their case on Saturday, 27 October. Under the custom of the time, they then made their closing arguments to the jury—first Adams, then Auchmuty. With darkness falling, the court adjourned for the Sabbath.

On Monday, 29 October, Robert Treat Paine summed up the prosecution case. Then Judge Edmund Trowbridge analyzed both the evidence and the law at length, followed by each of the three more senior judges. It wasn’t until 5:00 P.M. that the jurors retired to deliberate—all night if they had to.

TOMORROW: The first verdict.


David Churchill Barrow said...

The best evidence in the captain’s favor was an answer to a question that may have been posed by Preston himself to Capt. Gifford:
“Have you ever known an officer to give the command to fire when his men were at the half-cock and at charged bayonets?”
Gifford: “No. Officers never give the command to fire when at the charged bayonet.”
“Charge bayonets” is a command to place the butt of a musket or rifle aside the right hip with the bayonet angled upward. The command to “present” or “make ready” would have to be given before the command to fire. No witness in either trial testified to hearing such a command.

J. L. Bell said...

The line from the summary of evidence sent to London is: “The Prisoner asked did you ever know an Officer order Men to fire with their Bayonets charged: answer no.”

That was indeed an indication that Preston hadn’t prepared the men to fire and then ordered them to. Of course, the jurors could still have thought he ordered the soldiers to shoot as an emergency action.

I think the most interesting aspect of that exchange is that it shows Preston getting involved in his own defense. Under the rules of British law at the time, he couldn’t testify from the witness box since he was a very interested party in his own trial. But he could help to conduct his own defense.

Likewise, the soldiers tried next couldn’t testify, and as far as we know they remained silent in the courtroom until two had the opening to plead benefit of clergy.