John Adams Defended the British Soldiers Who Fired in the Boston Massacre

Here is a question for a quiet moment. When your whole city is shouting for a verdict, and the accused are strangers in uniform whom nobody will speak up for, who is the lawyer who takes the case?

In Boston in 1770 it was John Adams, one of the leading patriots in the colony, a man who had publicly opposed the Crown's policies and who stood to lose money and reputation by taking the job. He took it anyway. The outcome is one of the finest moments in American legal history, and it tells us what the Revolution was actually for. The colonists were not fighting for the right to be judged by a mob. They were fighting for the right to be judged by law.

What Happened on March 5, 1770

Start with the facts, which were ugly enough. Boston in 1770 was an occupied town in the eyes of many of its residents. British regiments had been stationed there since 1768 to support the royal customs officers, and the soldiers, who lived among the townspeople and sometimes competed with them for work, were resented. Quarrels were common. On the evening of March 5, a dispute that began over a wigmaker's apprentice and a soldier's unpaid bill ended with a lone sentry, Private Hugh White, standing guard outside the Custom House on King Street while a crowd gathered around him, shouting and throwing snowballs, ice and other objects.

White called for help. Captain Thomas Preston, the officer of the day, came out with a squad of soldiers to support him, and they formed a line in front of the Custom House with fixed bayonets. The crowd pressed in. Someone, no one has ever settled who, threw something that hit a soldier. A shot rang out. Then more. When the smoke cleared, three men were dead or dying in the street. Two more died of their wounds in the following days. The victims included Crispus Attucks, a man of African and Native American descent who was among the crowd's leaders, and Samuel Gray, James Caldwell, Samuel Maverick and Patrick Carr.

Within hours the town was in uproar. Church bells rang, and the lieutenant governor, Thomas Hutchinson, persuaded the crowd to disperse by promising that the law would take its course. Preston and the eight soldiers were arrested and jailed. A print of the scene, copied by Paul Revere from another engraver and distributed widely, called it a "Bloody Massacre." It showed the soldiers firing in an orderly line into a peaceful crowd, which was not what the witnesses described. It was propaganda, and it was very effective, which is the only thing a modern editor would say in its defense, since the soldiers in the picture are neatly lined up like a drill team.

The colony's leaders understood that the case was a trap for both sides. If the soldiers were convicted in a rigged proceeding, the Crown would call the whole colony lawless. If they were acquitted, the mob might riot again. Boston needed a fair trial more than it needed a verdict.

Why Adams

Preston sent a request through an intermediary for a lawyer, and the lawyers in Boston, as one might expect, were reluctant, in the manner of every professional who has ever been asked to take the case that will ruin his dinner invitations. Adams, then thirty-four, had a reputation as a patriot, and he knew exactly what it would cost him to be seen defending British soldiers. He took the case regardless, with Josiah Quincy Jr., another patriot attorney, who joined him, and Robert Auchmuty, a loyalist lawyer, who also worked on the defense. The prosecution was led by the Crown's lawyer for Suffolk County, Samuel Quincy, and Robert Treat Paine.

Adams explained his reasoning later. He wrote in his diary that the part he took in defending Preston and the soldiers had brought him anxiety and abuse enough, but that it was one of the most gallant, generous, manly and disinterested actions of his whole life, and one of the best pieces of service he ever rendered his country. I give you the substance and not a polished quotation, because I want to be sure of the wording, but the sentiment is clear and consistent. He believed that the principle of counsel for the accused was more important than the unpopularity of the accused.

That principle later went into the Sixth Amendment, which says that in all criminal prosecutions "the accused shall enjoy the right to a speedy and public trial, by an impartial jury," and that he shall have "the Assistance of Counsel for his defence." Adams was not citing the amendment, which did not exist. He was practicing the idea that would later be written down.

The Two Trials

The trials were delayed for months so that feelings would cool. Preston was tried first, in October 1770, separately from his men. The charge was murder, and the central question was whether he had ordered the soldiers to fire. Several witnesses testified that he had not. The defense argued that he had been trying to keep order, and that the troops fired in the confusion. The jury acquitted him on October 30.

The eight soldiers were tried together in late November and early December. The case was more difficult, since the soldiers had fired, and the question was whether they had done so lawfully. Adams's defense was built on self-defense and on the law's standard of reasonable doubt. The soldiers, he argued, had been surrounded by a hostile crowd armed with sticks and other objects, and had acted under the genuine fear for their lives that the law recognizes as justification for force. If the jury believed that the crowd was threatening and that the soldiers' fear was reasonable, they could not convict of murder.

"Facts Are Stubborn Things"

In his closing argument in early December, Adams spoke the line for which the case is remembered. "Facts are stubborn things," he told the jury, and whatever our wishes, our inclinations or our passions, they cannot alter the state of facts and evidence. I give the closing part as a close paraphrase because transcriptions of the exact wording differ in small ways.

That sentence is the whole philosophy of a fair trial. It does not say the dead men did not matter, or that the town's grief was irrelevant. It says that grief and anger are not evidence. A court that rules on what it wishes is not a court. It is a crowd in robes, with better parking.

Take the sentence apart. Our wishes and inclinations are the preferences we bring to every case. Our passions are the strong feelings that come with a death in the street. Neither one changes what happened. Adams was asking twelve neighbors of the dead to hold their feelings in check long enough to ask a narrower question: what does the evidence show, and has the Crown proven guilt beyond a reasonable doubt?

He also argued harder than modern readers may like about the crowd, describing it in unflattering terms and arguing that it had provoked the soldiers. It is fair to note that his language about the people in the street was harsh, and in places unjust, and that a defense lawyer's duty to his clients led him into rhetoric that we would not use. A good argument that we admire for its principle can contain parts we do not admire.

The Verdicts

The jury acquitted six of the eight soldiers of all charges. Two of them, Matthew Kilroy and Hugh Montgomery, were convicted of manslaughter, a lesser offense, on the grounds that the evidence showed they had fired directly into the crowd. They received the punishment the law allowed, which was to be branded on the thumb, and were released. The jury had done what a jury is supposed to do: it distinguished among the defendants and among the charges and gave each the verdict the evidence supported.

The result was criticized in some quarters and quietly approved in others. But one result was clear. Boston had given a hated enemy a fair trial, and the cause of liberty had gained a moral advantage that no pamphlet could have bought. The Crown's argument that the colonists were a lawless mob lost its force. Adams, who had feared that he would be ruined, remained one of the leading patriots of Boston.

The Strongest Objection

A critic will say something like the following, and the objection has weight.

The objection says: Defending the soldiers meant defending the occupation. Five people were dead, and the men who killed them wore the uniform of a government that was oppressing the colony. A patriot who took the case was helping the Crown escape justice.

Answer it in four points.

1. The soldiers were individuals, not the Crown. Each man was accused of a specific act, and each was entitled to be judged for what he did. Collective punishment is the very thing the colonists were protesting in the Coercive Acts.
2. A principle that applies only to friends is not a principle. The patriots were claiming the "rights of Englishmen," including trial by an impartial jury, against a government that sometimes tried colonists without one. If they refused those rights to their enemies at the first opportunity, they would have shown that the claim was a pose.
3. The verdict strengthened the cause. By proving that a patriot jury could acquit when the evidence required it, the colonists demonstrated that their government of law was real. The goal was to show that the colony could rule itself justly.
4. The alternative is what a mob does. If the soldiers had been convicted by a jury intimidated by the street, the lesson would have been that a verdict goes to the side with the louder crowd. That is a lesson no free people can afford to learn.

A Government of Laws

Ten years later, Adams wrote the Massachusetts Constitution of 1780, the oldest working written constitution in the world, as described in John Adams Wrote the Oldest Working Written Constitution in the World. In its Declaration of Rights, he declared that the separation of the powers of government was meant to the end that it might be "a government of laws and not of men." That phrase is the thread that runs from King Street to the constitution. The trial of 1770 was the lesson, and the constitution was the form.

The point goes back much further. In The Rule of Law Is Older Than the Constitution, From Magna Carta to Marbury I trace the idea through English and American history. The idea is that the law stands above those who govern and those who judge, and it protects the unpopular because the popular do not need protection. The Fifth Amendment says no person shall be "deprived of life, liberty, or property, without due process of law." The words "no person" are the key. They do not say "no popular person" or "no innocent person." They say no person, because in advance of the trial nobody knows who is innocent.

What It Means When Passions Run High

The test of a legal system is not how it treats the sympathetic. It is how it treats the case that the public has already decided. Two things follow.

First, the presumption of innocence is not a technicality. It is the way a society says that the power to punish must be earned by proof. When people abandon it for convenience, as they do in a modern outrage cycle, they are reasoning like the crowd in King Street. The trouble with trial by public opinion, as I argue in Cancel Culture Has No Judge, No Jury and No Statute of Limitations, is that it has no judge, no jury, no standard of proof and no appeal.

Second, jurors are the guardians of the principle. Adams relied on twelve ordinary citizens to put aside their feelings, and they did. That is what a jury does, and I explore the history in Twelve Strangers, How Trial by Jury Crossed the Atlantic to America. When you are called for jury duty, you are being asked to be one of those twelve.

There is a harder lesson too. Adams was not trying to be loved. He acted in a way that cost him in the short run, and it is a measure of the man that he did not mind. Principle that is only held when it is popular is not worth the name.

The Case in Brief

1. On March 5, 1770, British soldiers fired into a crowd outside the Boston Custom House, killing five men, and the city demanded revenge.
2. John Adams, a leading patriot, defended Captain Preston and the soldiers, with Josiah Quincy Jr., because the accused were entitled to counsel and a fair trial.
3. Preston was acquitted on October 30, 1770, and in December six soldiers were acquitted while two were convicted of manslaughter, a result that showed a jury sorting evidence from passion.
4. Adams's line that "facts are stubborn things" states the idea of due process: our wishes and passions cannot alter the evidence.
5. The cause of liberty is the cause of the rule of law, and it applies first to those whom the public has already condemned.

What you can do: when a jury summons arrives, answer it and serve, and before then read the Fifth and Sixth Amendments aloud so you remember the words you are being asked to uphold.