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.

John Adams on Trial

The big dramatic anchor of the first episode of the H.B.O. miniseries John Adams is the murder trial that followed the Boston Massacre. As this series tells the story, John Adams single-handedly defended Capt. Thomas Preston and his soldiers in the face of violent opposition, a heckling crowd, and reluctant witnesses. The lawyer cleverly elicits testimony from the witnesses and defendants that implicates the crowd, and one Son of Liberty in particular, in prompting the soldiers to fire. The jury then clears all the soldiers. Though his business suffers, Adams feels proud that he’s served justice.

How historically accurate is that scene? I’ll list differences between what plays out on screen and what the documents of the time tell us. Some of those changes must have been dictated by the need to keep the cast and sets limited, the story short and simple. Others reveal some misunderstandings of the eighteenth century, and then there might be unconscious ideological distortions. I’ll leave it up to you to decide which changes are trivial, which are significant, and whether there’s an overall bias in the portrayal. (Some of these deviations from the record have also been pointed out by Jeremy Stern at History News Network.)

• Capt. Preston was tried separately from the eight soldiers. Their legal interests were, after all, different. His defense was that he’d never ordered those men to fire their weapons, which shifted the criminal onus onto them. Some of the soldiers petitioned to be tried at the same time as Preston, but were denied.
• James Forrest wasn’t beaten up while trying to secure representation for Capt. Preston. After the war he wrote a petition to the Loyalists Commission detailing all he’d done and suffered for the British Empire, and made no remarks about such injuries. (In fact, Forrest didn’t even mention helping Preston find a lawyer.) Adams, the sole source for this conversation, wrote nothing about Forrest being hurt. Adams recalled Forrest weeping with emotion, as he supposedly often did, but the episode didn’t show a tear.
• Adams wasn’t the only defense counsel. Much of the witness questioning was done by the junior member of the team, Josiah Quincy, Jr. The senior member, Robert Auchmuty, handled part of the summation for the jury.
• Robert Treat Paine wasn’t the only prosecutor. Samuel Quincy, Josiah’s older brother, shared that job.
• Jonathan Sewall, the royal Attorney General for Massachusetts, wasn’t observing the trial from a prominent window seat. In fact, he was supposed to be prosecuting it, but a combination of political distaste and (my theory) biological depression kept him from even coming into Boston for months. Also, Sewall didn’t offer Adams a major royal appointment right after the trial; he’d made that offer two years before.
• Three judges presided over the trials, not just Benjamin Lynde. One of those judges, Peter Oliver, was a delightfully outspoken Loyalist who clearly leaned toward the defense.
• Under British law, the defendants weren’t allowed to speak as witnesses on their own behalf. After all, they had an interest in the case.
• The witness Richard Palmes wasn’t a lumbering, unshaven ropemaker. He was a genteel merchant who had tried to break up fights in the evening before the Massacre. He was at the front of the crowd because he was urging Capt. Preston to obey the law and not order his men to shoot. The stick Palmes carried was a walking-stick, and he swung it at soldiers only after they had started to fire their guns. He testified to a town committee and at both trials (once for the defense and once for the prosecution), so he wasn’t a reluctant witness.
• The witness Robert Goddard did testify that he’d heard Capt. Preston give an order to fire; he said as much in three separate legal documents. He did not, however, state that he was in an alley behind the soldiers; there was no such alley since those men were backed up against a corner of the Customs house. I haven’t found evidence that Goddard was active in Whig politics.
• Before the trial, the miniseries’s Samuel Adams criticizes his cousin’s decision to represent Preston and the soldiers, and declares that “a Boston jury” would never acquit the soldiers. In reality, Samuel Adams was among the Whig leaders who urged Quincy to work on the case. John never wrote of criticism from his cousin. The show doesn’t mention that all the jurors were chosen from parts of the county outside Boston in an attempt to avoid prejudice. (Furthermore, in The Boston Massacre Hiller B. Zobel presents evidence that Preston’s jury was stacked with men sympathetic to the royal authorities.)
• Capt. Preston, as a gentleman, was probably jailed separately from his men and allowed to shave. The soldiers probably didn’t wear their full uniforms, including wigs, during the trial since one witness identified a soldier by his bald head. Most of the soldiers were grenadiers, whose uniforms were different from those of ordinary soldiers.
• On television, the trial occurs so soon after the Massacre that one soldier still has bruises on his face from the riot. In fact, because of canny delays by the defense and sympathetic judges, the soldiers’ trial started more than eight months after the shootings, after passions had cooled a bit.
• Pvt. Montgomery wasn’t a fresh-faced youth; he was a husband with three children. Pvt. Montgomery wasn’t the sentry at the Customs house; that was Pvt. Hugh White. Pvt. Montgomery wasn’t named Hugh; he was named Edward. (Okay, that last fact is a Boston 1775 exclusive; the Massachusetts court records say Hugh, but the army muster rolls in London say Edward.) Pvt. Montgomery wasn’t the soldier whom locals insulted by saying he should empty an outhouse; that was Pvt. Patrick Walker, three days earlier. Finally, the miniseries doesn’t mention that after the trial was over the real Pvt. Montgomery told one of his lawyers that he’d shouted “Fire!” to his fellow soldiers.
• The crowd in the courtroom wasn’t a howling mob, according to even the most hostile observers, such as Justice Oliver. Dozens of Bostonians testified as defense witnesses, not a reluctant few.
• It’s very hard to find evidence that John Adams’s law practice or political stature suffered as a result of his work defending Capt. Preston and the soldiers. Indeed, after he took their cases, Boston elected him to the Massachusetts General Court.
• Adams’s final argument to the jury wasn’t simply that “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,” as valuable as that statement is. He also played on the jurors’ prejudices by calling the crowd “a motley rabble of saucy boys, negroes and molattoes, Irish teagues and out landish jack tarrs.”
• The jury in the soldiers’ trial voted to convict two soldiers—Montgomery and Pvt. Mathew Kilroy—of manslaughter, a potentially capital crime. They didn’t acquit all the men outright, as the television jury does. Under British law, those two men were sentenced to be branded on one thumb.

My favorite inaccuracy in the trial scene involves the witness whom Adams addresses as “Mr. Holmes.” He’s a black man with dark skin and an accent—obviously meant to be an African- or Caribbean-born worker. But gentlemen and the law didn’t grant the title “Mr.” to men of color. The first newspaper reports on the Massacre referred to all the adult victims as “Mr.” except Crispus Attucks.

The credits for this first episode of John Adams identify that witness as “Andrew Holmes.” That and his words reveal that this character was based on an enslaved man named Andrew who testified at length for the defense in both trials. The records refer to him consistently just by “Andrew.” Where did the surname “Holmes” come from? His owner was the merchant Oliver Wendell. Did screenwriter Kirk Ellis mix that man up with the baby named after him in 1809, the first Oliver Wendell Holmes?