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Boston Massacre Trials: 1770

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.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1637 to 1832Boston Massacre Trials: 1770 - Snowballs, Then Musket Balls Fly, The Redcoats Are Indicted, Captain Preston's Trial