The Case against Capt. Preston

In 1770, 28 October was a Sunday—the Sunday right in the middle of Capt. Thomas Preston’s trial for murder.

The fact that this criminal trial stretched over multiple days was unprecedented in Massachusetts. Courts always got through seating a jury, hearing testimony, and summations by the attorneys and judges within a day.

Sometimes a jury had to deliberate late into the night, as at the murder trial of Ebenezer Richardson earlier in 1770. But common-law rules dictated that no food or firewood could be delivered to the jurors, prodding them to quicker decisions.

Everyone knew Capt. Preston’s trial was exceptional and had to be handled with rigorous fairness. The jury selection involved a lot of challenges, and there were dozens of witnesses called to testify.

On 24 October Samuel Quincy, Advocate-General but younger than and thus junior to special prosecutor Robert Treat Paine, opened for the Crown. The first prosecution witness was a child, probably in his teens: barber’s apprentice Edward Garrick, described how he had argued with the sentry outside the Customs office, Pvt. Hugh White. But the boy said nothing about Preston.

Next came Thomas Marshall, tailor and colonel of the Boston militia regiment. Deploying his military experience, Marshall declared, “Between the firing the first and second Gun there was time enough for an Officer to step forward and to give the word Recover if he was so minded.” That was the sort of testimony the prosecution needed to establish Preston’s responsibility for the deaths.

Among the six other witnesses that day, Peter Cunningham said, “I am pretty positive the Capt. bid ’em Prime and load. I stood about 4 feet off him. Heard no Order given to fire.”

According to Paine’s notes, ship’s captain William Wyatt testified that Preston “Stampt and said damn your blood fire let the consequence be what it will.” However, the next witness, John Cox, quoted Preston saying the same thing after the soldiers had fired, apparently threatening them with retribution if they fired a second time. An unsigned summary of the testimony sent to London quoted that line from Cox but not from Wyatt.

In sum, the night of the shooting on King Street was often a confusing mess, and so are our inexact sources on what the witnesses said.

The next day, the prosecutors called fifteen more witnesses, including town watchmen Benjamin Burdick and Edward Langford, selectman Jonathan Mason, blacksmith Obadiah Whiston, bookseller Henry Knox, and Jonathan Williams Austin, law clerk to John Adams, one of the defense attorneys. Several of those men testified that they hadn’t seen or heard Capt. Preston give an order to fire; some were sure he hadn’t.

Only one man, Robert Goddard, stated that Capt. Preston definitely did tell the soldiers to shoot:

The Capt. was behind the Soldiers. The Captain told them to fire. One Gun went off. A Sailor or Townsman struck the Captain. He thereupon said damn your bloods fire think I’ll be treated in this manner. This Man that struck the Captain came from among the People who were seven feet off and were round on one wing. I saw no person speak to him. I was so near I should have seen it. After the Capt. said Damn your bloods fire they all fired one after another about 7 or 8 in all, and then the officer bid Prime and load again. He stood behind all the time.

Goddard had said the same thing at a coroner’s inquest, even going to the Boston jail to identify Preston. He had said the same thing in a deposition for Boston’s Short Narrative report. He was clearly the most dangerous witness for the defense.

TOMORROW: The captain’s argument.