Boston Massacre Trials: 1770

Defendants: Captain Thomas Preston; Corporal William Wemms; Privates Hugh White, John Carroll, William Warren, and Matthew Killroy, William McCauley, James Hartegan, and Hugh Montgomery
Crimes Charged: Murder and accessories to murder
Chief Defense Lawyers: Both trials: John Adams, Josiah Quincy, Jr.; First trial: Robert Auchmuty; Second trial: Sampson Salter Blowers
Chief Prosecutors (Attorneys for the Crown): Samuel Quincy and Robert Treat Paine
Judges: John Cushing, Peter Oliver, Benjamin Lynd, and Edmund Trowbridge
Place: Boston, Massachusetts Bay Colony
Dates of Trials: Rex v. Preston: October 24-30, 1770; Rex v. Wemms etal.: November 27-December 5, 1770
Verdicts: First trial: Captain Robert Preston, Not guilty; Second trial: Corporal Wemms, Privates White, Carroll, Warren, McCauley, and Hartegan, Not guilty; Privates Killroy and Montgomery, Not guilty of murder but guilty of manslaughter
Sentences: Branding on the thumbs for Killroy and Montgomery

SIGNIFICANCE: This case was a landmark on the road to the American Revolution. Despite a politically hostile atmosphere, two reasonably fair trials were conducted and the concept of the right of self-defense was upheld.

On the night of March 5, 1770, three men lay dead and two more were dying, following shots fired by British troops into an angry crowd outside of the Custom House in Boston, Massachusetts. This scene, known as the Boston Massacre, came after months of feuding between Bostonians and the soldiers sent to the city to protect newly appointed Customs commissioners. The British king and his cabinet viewed Boston as a hotbed of dissent in the colonies, where ill will blossomed in the years following the French and Indian War. Quarrels arose over Indian and frontier affairs, over customs regulations, over taxes, and particularly over how extensive was Parliament's right to tax the colonies. Boston, with its unusually stormy Stamp Act riots, seemed to be the focal point of the American political ferment.

Although some British troops had remained in the colonies following the war, the stationing of a large number of troops in a colonial city was a new and unwelcome phenomenon. In the 18th century, British citizens and colonists viewed the maintenance of a standing army in peace time as an abomination, much as Americans would regard a secret police force today. The ever-present troops in Boston seemed proof of the erosion of the colonists' rights as individuals and the usurpation of the powers of their cherished political institutions.

In such an atmosphere, trouble was inevitable. Snubs, shoving matches, loud arguments, and occasional fistfights occurred between Boston residents and the soldiers almost from the day the first contingent landed in the fall of 1768.

Snowballs, then Musket Balls Fly

The series of events that led to the confrontation on March 5, 1770, apparently began with a nasty exchange between Private Patrick Walker of the 29th Regiment and William Green, a local rope-maker.

Soldiers of low rank routinely augmented their meager salaries with odd jobs. As Walker passed Green on March 2, the rope-maker asked the soldier if he wanted work. When Walker said yes, Green replied, "Well, then go and clean my shithouse." Insulted, Walker swore revenge. He walked away and, in'a few minutes, returned with several other soldiers.

A fight ensued between the soldiers and the rope-makers, who had rallied around Green. Clubs and sticks were used, as well as fists. The rope-makers routed the soldiers.

But the lull in the fighting was brief. Skirmishes popped up over the next two days. Rumors flew and tensions mounted. The commander of the 29th Regiment, Lieutenant Colonel Maurice Carr, wrote to Acting Governor Thomas Hutchinson to complain of the abuse his men were forced to endure from the citizens of Boston. On March 5, Hutchinson put the letter before the Governor's Council. The unanimous reply was that the people of the town would not be satisfied until the troops were removed.

The evening of the fifth was cold, and a foot of snow lay on the ground. When a wig-maker's apprentice named Edward Garrick insulted Private Hugh White, who was stationed at a sentry box near the Main Guard, the army's headquarters, White struck Garrick on the head with a musket. Nevertheless, other apprentices continued to bait White and throw snowballs at him.

Periodically, cries of "fire" could be heard in the streets, although no buildings were burning that night. Soldiers passed up and down Brattle Street carrying clubs, bayonets, and other weapons. In Boylston's Alley, a battle of snowballs and insults was quelled by a passing officer, who led the troops to nearby Murray's barracks and told their junior officers to confine them. Outside the barracks, a few more words were exchanged before Richard Palmes, a Boston merchant, persuaded many members of the crowd to go home. But some of the crowd shouted that they should go "away to the Main Guard."

At about the same time, some 200 people gathered in an area called Dock Square. More people joined them as groups flowed in from Boston's North End. Some came carrying cudgels. Others picked up whatever weapons they could find in the square. The crowd eventually gathered around a tall man whose words evidently sent the crowd to the Main Guard.

Meanwhile, Private Hugh White retreated from his sentry box near the Main Guard to the steps of the Custom House. From there, he threatened to fire on the approaching crowd and called for the assistance of other soldiers.

When word of the sentry's predicament reached Captain Thomas Preston, he led a small contingent from the 29th Regiment to White's rescue. With bayonets affixed, two columns of men managed to reach the beleaguered Private White. When the soldiers prepared to retrace their route, the prospect of retreating through the menacing crowd appeared more daunting. The soldiers positioned themselves in a rough semicircle, facing the crowd with their captain just in front of them. Their muskets were loaded. Some in the crowd flung angry words and taunts to fire. Finally, someone hurled a club, knocking down soldier Hugh Montgomery. He got to his feet, and a cry was heard to fire. Montgomery fired one shot. No one seemed to be hit and the crowd pulled away a little from the troops. There was a pause during which Captain Preston might have given an order to cease firing. The pause between the first and the subsequent shots could have been as little as six seconds or as much as two minutes, according to witnesses' accounts.

However long the pause, the troops commenced firing. Confusion ensued. Most people in the crowd believed the soldiers were firing only powder, not bullets. But two men were hit almost immediately. Samuel Gray fell with a hole in his head. A tall, burly sailor known as Michael Johnson (true name Crispus Attucks), variously described as black, mulatto, or Indian, took two bullets in the chest. As some members of the crowd surged forward to prevent further firing, another sailor, James Caldwell, was hit.

A ricocheting bullet struck 17-year-old Samuel Maverick as he ran toward the Town House. He died several hours later at his mother's boarding house. The fifth fatality was Patrick Carr. Struck in the hip by a bullet that "tore away part of the backbone," he lingered until the 14th of March. Carr's dying testimony later helped bolster the defense attorneys' claim that the soldiers fired in self-defense.

Captain Preston yelled at his men, demanding to know why they had fired. The reply was they thought he ordered them to shoot when they had heard the word "fire." As the crowd, which had fallen back, began to help those who had fallen, the troops again raised their muskets. Preston commanded them to cease fire and went down the line pushing up their musket barrels. The crowd dispersed, carrying the wounded, the dying, and the dead. Captain Preston and his men marched back to the Main Guard. The Boston Massacre was over. Although the city did not quiet, there were no more deadly altercations.

Following a brusque interview with Captain Preston, Royal Governor Hutchinson made his way to the council room of the town hall. Addressing the crowd from a balcony, Hutchinson promised a full inquiry and asked the townspeople to go home. He said, "The law shall have its course; I will live and die by the law." Thus, the Crown undertook an investigation into the Boston Massacre.

The Redcoats are Indicted

That very night, two justices of the peace went to the council chamber and spent the next several hours calling witnesses to be examined. By morning, Captain Preston and his eight men had been incarcerated. A week later, a grand jury was sworn in, and, at the request of Attorney General Jonathan Sewall, indictments were promptly handed down.

But Sewall, a loyalist, busied himself with legal affairs out of town, leaving the prosecution of the soldiers to whomever the royal court appointed. The disappointing choice was another loyalist, Samuel Quincy, the colony's solicitor general. To strengthen the prosecution, at a town meeting, radicals led by Samuel Adams, persuaded Boston selectmen and citizens to pay prosecution expenses, bringing in the very successful lawyer Robert Treat Paine.

The choice of loyalist Robert Auchmuty to serve as the senior counsel for Captain Preston was no surprise, but the other two attorneys who agreed to act for the defense were: Josiah Quincy, Jr. (brother of the prosecutor Samuel Quincy), a fiery radical; John Adams, the cousin of Samuel Adams and just as offended as he by the presence of the king's troops in Boston. Both Quincy and Adams had participated in the funeral procession for four of the men the soldiers were accused of killing. For the trial of the soldiers, Auchmuty dropped out, and Adams became senior counsel, with Samuel Salter Blowers as junior counsel.

The trials were delayed more than once, providing a long period for tempers to cool. The radicals, thwarted in their efforts to obtain an immediate trial, tried to convict the troops in the press.

The decision on whether to hold one trial or two was not announced until the last minute. The troops wanted to be tried with Captain Preston. They believed separate trials would lessen their chances of acquittal, particularly if Preston were tried first and found not guilty, which would indicate that his men bore the responsibility for firing without orders.

Additionally, if the Captain and his men were tried together, the prosecution would have a difficult case in proving that a bullet from one specific gun, fired by one specific soldier had hit one specific victim. Furthermore, the troops knew that if the Crown could prove that Preston had given the order to fire, the greater share of responsibility and guilt would be his.

Probably to the disappointment of the troops, it was decided there would be two separate trials: the first for Captain Preston, the second for the troops.

Captain Preston's Trial

If a transcript of the trial of Captain Preston ever existed, it has disappeared. Summaries and notes of the testimony were made by various, sometimes artisan, individuals. The reconstruction from the available evidence is as follows.

The captain's trial began October 24, 1770, and was over October 30, 1770. It was the first criminal trial in Massachusetts to last longer than a day.

Samuel Quincy opened for the prosecution and called as its first witness Edward Garrick, the apprentice wig-maker whose taunts had ended with his being struck by Private Hugh White. After describing this incident, Garrick testified that he had seen soldiers in the streets carrying swords before Preston had led his men to the Custom House. The next witness, Thomas Marshall, supported that statement and added that Preston most certainly did have time to order his men to cease fire between the first and subsequent shots.

Witnesses that followed also gave damning testimony. Peter Cunningham said that Preston had ordered his men to prime and load their muskets. Later, he qualified his statement by saying that the man who had ordered the troops to fire was definitely an officer by reason of the way he was dressed. Witnesses William Wyatt and John Cox both insisted that Preston had given the order to fire.

But on the following day, the Crown's testimony floundered. Witness Theodore Bliss said Preston had been standing in front of the guns. Bliss heard someone shouting "Fire" but did not think it was the captain. Henry Knox testified that the crowd was shouting, "Fire, damn your blood, fire." And Benjamin Burdick said he heard the word "Fire" come from behind the men.

The Crown regained some ground with witness Daniel Calef, who unequivocally stated that he had "looked the officer in the face when he gave the word" to fire. The next witness, Robert Goddard, also stated firmly that Preston, standing behind his men, had given the order to fire.

Samuel Quincy did not close the Crown's case with a summation of the evidence. Instead, he quoted from a few legal treatises:

Not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also in many other cases, such as is accompanied with those circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder.

The first three witnesses for the defense testified to the threats uttered against the soldiers by those in the street. According to one, Edward Hill, after the firing, he saw Preston push up a musket and say, "Fire no more. You have done mischief enough."

On the following day, a string of witnesses vividly described the confusion and anger that reigned March 5. The first witness for the defense, John Edwards, stated firmly that it was the corporal, William Wemms, who had given the men the order to prime and load their muskets. Another, Joseph Hilyer, said, "The soldiers seemed to act from pure nature, … I mean they acted and fired by themselves."

Reasonable Doubt

Richard Palmes testified that he had had his hand on Preston's shoulder just as the order to fire was given. At the time, the two men were in front of the troops. Even at that distance, Palmes could not be sure whether Preston or someone else had given the order. Palmes' testimony, even with its measure of ambiguity, threw a strong element of "reasonable doubt" on the Crown's case.

Another major witness for the defense was Andrew (no last name recorded). He was a slave, but he was always referred to as the "Negro servant" of merchant Oliver Wendell, a Son of Liberty, who testified emphatically to Andrew's integrity. In meticulous, coherent detail, Andrew described the explosive scene on March 5—the taunts, the threats, the objects thrown (mostly snowballs), the clash of stick against bayonet. Andrew also testified that the voice that gave the order to fire was different from the other voices calling out and he was sure the voice had come from beyond Preston.

When John Gillespie took the stand, he testified about an event that occurred at least two hours before the Massacre. He spoke of seeing a group of townspeople carrying swords, sticks, and clubs, coming from the South End. The tone of Gillespie's testimony implied a "plot" to expel the troops from Boston. Adams was opposed to such testimony and was angry with Josiah Quincy, who had prepared the witnesses. He feared attacking Boston's reputation would backfire on the defendant, angering a jury to a guilty verdict or inciting a mob to lynching. Adams threatened to withdraw from the case if any further evidence of that nature was introduced.

In making closing arguments, defense attorney Adams spoke first. He said, "Self-defence [sic] is the primary canon of the law of nature," and he explained how a homicide was justifiable under common law when an assaulted man had nowhere to retreat. Carefully reviewing the evidence, Adams ruthlessly demolished the Crown's weakly presented case. Instead of attacking the Crown's witnesses, he deftly wove parts of their testimony into his arguments and dismissed as honest mistakes those that he couldn't use.

In his summation for the prosecution, Paine, in an effort to dismiss the notion of self-defense introduced by Adams, pointed out that defense witness Palmes was standing in front of the soldiers' muskets. "Would he place himself before a party of soldiers and risque his life at the muzzles of their guns," Paine reasoned, "when he thought them under a necessity of firing to defend their life?"

In the judges' charge to the jury, the main points the jurors had to consider were: Whether the soldiers' party constituted an unlawful assembly? Whether that party was assaulted? Whether the crowd constituted an unlawful assembly? Whether Preston ordered the loading of the muskets and, if so, why? Was this a defensive action? And, most important, did Preston give the order to fire? Finally, in a move that favored the defense, the judges reminded the jury that self-defense was a law of nature.

The court adjourned at 5:00 p.m. on Monday. By 8:00 a.m. on Tuesday, the jury had reached a verdict. Preston was found not guilty.

The Soldiers' Trial

One month later in the trial of the soldiers, the Crown's first witnesses testified about the behavior of soldiers—who may or may not have been among those on trial—in the hours before the Massacre. Prosecution witnesses spoke of off-duty officers, armed with cutlasses, running through the streets and randomly assaulting citizens.

Apparently the prosecution wanted to broaden the court's scope of inquiry, a questionable move since testimony about other soldiers was irrelevant. The defense had little objection so long as it could introduce equally irrelevant testimony concerning the actions of citizens prior to the crucial events. The court permitted the lawyers to have their way.

Of the Crown's first witnesses, only one made a major point. The town watchman, Edward Langford, described the death of a citizen, John Gray. According to Langford, Gray had definitely been shot by Private Matthew Killroy.

The following day the Crown's witnesses faltered. James Brewer, who consistently denied that the crowd had uttered any threats against the soldiers, admitted that people all around were calling "Fire." Asked if he had thought the cry referred to a fire or if it was bidding the soldiers to fire, Brewer answered he could not "tell now what I thought then."

Another witness, James Bailey, was quite clear on the fact that boys in the street had pelted the soldiers with pieces of ice large enough to do injury. Bailey also stated that Private Montgomery had been knocked down and that he had seen Crispus Attucks (one of the men killed) carrying "a large cord-wood stick."

One of the prosecution's most effective witnesses was Samuel Hemmingway, who testified that Private Killroy had said, "He would never 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."

In his opening remarks for the defense, Josiah Quincy spoke about the widespread notion "that the life of a soldier was of very little value; of much less value, than others of the community. The law, gentlemen, knows no such distinction.… What will justify and mitigate the action of one, will do the same to the other." He dwelt on the bad feeling between the citizens and the soldiers and the fears of citizens that their liberties were threatened.

Like those for the prosecution, the first defense witnesses spoke of extreme behavior throughout the town. A picture emerged of a possible riot in the making. The testimony of William Hunter, an auctioneer who had seen the tall man addressing the crowd in Dock Square, suggested some of the crowd's activities may have been organized rather than spontaneous. But for the same reasons he had cited during the first trial, John Adams put a stop to further testimony of this sort. And again he threatened to withdraw from the case.

For two days, the defense presented solid evidence that the soldiers at the Custom House were jeopardized by a dangerous crowd. A stream of 40 witnesses appeared. One of the last witnesses was Dr. John Jeffries, who had cared for Patrick Carr, the fifth victim, as he lay dying. Jeffries said, I asked him if he thought the soldiers would have been hurt, if they had not fired. He said he really thought they would, for he heard many voices cry out, kill them.

I asked him then, meaning to close all, whether he thought they fired in self-defense, or on purpose to destroy the people. He said he really thought they did fire to defend themselves; that he did not blame the man whoever he was, that shot him.

In his closing remarks, Quincy pointed out that even a "moderate" person might impulsively seek to exact vengeance from the soldiers at the Custom House for the actions of soldiers elsewhere in the town that night. But the law did not permit this. The evidence demonstrated that the troops had acted in self-defense.

In his closing summation, a brilliant blend of law and politics, John Adams argued self-defense. He portrayed the wrath of the crowd, while subtly exonerating the city of Boston from blame and placing much of the blame on "Mother England." He pointed out, "At certain critical seasons, even in the mildest government, the people are liable to run into riots and tumults." The possibility of such events "is in direct proportion to the despotism of the government."

Adams turned his attention to a description of the crowd. "And why we should scruple to call such a set of people a mob? … Soldiers quartered in a populous town, will always occasion two mobs, where they prevent one. They are wretched conservators of the peace."

After 2 and one-half hours of deliberation, the jury acquitted Corporal William Wemms, and Privates White, Warren, Carroll, McCauley, and Hartegan. Privates Killroy and Montgomery were found not guilty of murder but guilty of manslaughter. Sufficient evidence had shown that these two men had definitely shot their weapons. There was not enough evidence to prove which of the other soldiers had or had not fired.

On December 14, 1770, Killroy and Montgomery returned to court for sentencing. They pleaded "benefit of clergy." This legal technicality dated back centuries to a time when a member of a religious order could only be tried in an ecclesiastical court. By the 18th century, benefit of clergy had become a legal oddity, extended to those who could read and write, which enabled them to obtain a reduced sentence. The court granted the request to Killroy and Montgomery who were branded on the thumbs and released from custody.

The mystery of who actually gave the order to fire was solved after the trials. Shortly before he left Boston, Private Montgomery admitted to his lawyers that it was he who cried "Fire" after he had been knocked down by a thrown stick.

The massacre and the subsequent trials persuaded the British that troops quartered in Boston were more likely to spark than quench the flames of rebellion. Although British troops were soon withdrawn from Boston, patriots continued to use the massacre as evidence of British perfidy and to goad their fellow colonists toward insurrection.

—Teddi DiCanio

Suggestions for Further Reading

Adams, John. The Adams Papers: The Legal Papers of John Adams, 3 vols. Edited by L. Kinvin Wroth and Hiller B. Zobel. Cambridge, Mass.: Harvard University Press, 1965.

Calhoon, Robert McCluer. The Loyalists in Revolutionary, America, 1760—1781. New York: Harcourt Brace Jovanovich, 1973

Fleming, Thomas J. "The Boston Massacre." American Heritage. (December 1969): 6-11, 102-111.

Hansen, Harry. The Boston Massacre: An Episode of Dissent and Violence. New York: Hastings House, 1970.

Kidder, Frederic. History of the Boston Massacre. Albany, N.Y.: Munsell, 1870

Middlekauff, Robert. The Glorious Cause, The American Revolution, 1763—1789. New York: Oxford University Press, 1982.

Quincy, Josiah, Jr. Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772. Edited by Samuel M. Quincy. Boston: 1885.

Zobel, Hiller B. The Boston Massacre. New York: W.W. Norton & Company, 1970.