In a snapshot from 2016, the LA Times reported in mid-2016 that the number of unarmed black men and women have been shot and killed by police has grown year-by-year. The issue of death at the hands of those in authority has a lengthy history. Today's essay takes us back to March 5, 1770 on the Boston waterfront. If this is a (fair & balanced) example of the power of historical truth, so be it.
[x TAS]
Black Lives And The Boston Massacre
By Farah Peterson
TagCrowd Cloud of the following piece of writing
On March 5, 1770, at a little after nine o’clock in the evening, men in uniform shot and killed an unarmed black man named Crispus Attucks. They got away with it.
This may seem like a radical way to introduce the Boston Massacre, that seminal episode in American history in which British soldiers fired on a mob, killing five men. But it is not far from how John Adams described the events to jurors while defending those soldiers at trial. The future president would later say that winning their acquittal was “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” He engaged in some excellent lawyering, no doubt about it. The trial cemented Adams’s reputation as the archetypal lawyer-as-hero, a man willing to be hated in order to give individuals the chance to have their cause fairly heard. And it confirmed for Revolutionary British North Americans that theirs was a cause rooted in legal ideals. We have remembered the trial this way ever since: as a triumph of principle over self-interest or impetuous emotionalism. But an honest look at the transcript complicates the story by showing how racial prejudice contributed to the outcome. A critical part of Adams’s strategy was to convince the jury that his clients had only killed a black man and his cronies and that they didn’t deserve to hang for it.
I don’t teach the Boston Massacre to law students in order to talk about race. I teach it because it represents an important moment in the history of Anglo-American criminal procedure. But the trial of those British soldiers does prompt some inevitable reflections on where we’ve been and where we are on certain problems that are older than the Republic itself.
On that night in early March 1770, shortly after the bell housed in Boston’s Old South Meeting House tolled the nine o’clock hour, the bell began to ring again. To Bostonians hearing it that night, a bell tolling between hours meant a fire or some other emergency. People started pouring out of their houses with buckets in hand, while others leaned out of their upper-story windows, calling down to the street for more information. What they heard made some men put aside their buckets and grab weapons instead before heading out into the night. Others passed down a warning to their neighbors not to go out because there was no fire, only trouble with the soldiers. Someone was bound to get murdered, they said.
Boston had been the site of the fiercest resistance to a series of controversial taxes the British Parliament had levied on its North American subjects in the mid-18th century. Bostonians had been so insistent on their right to pay only some of these taxes and not others, and to continue to smuggle the goods they had grown accustomed to smuggling, that in 1768, Parliament stationed four regiments of soldiers in town. This force was meant primarily as a menace and a warning. Bostonians got the message, and they despised the messengers, subjecting the soldiers to constant ridicule and harassment.
This is how the massacre began, with a group of “boys”—that is, teenagers—surrounding a young soldier named Hugh White, who was standing stiffly in his red coat on sentry duty at the Custom House. They started shouting at him, calling him a “son of a bitch” and a “lobster” and screaming to each other (hilariously), “Who buys lobster?” They made a game of pitching snowballs and debris at him and joked about picking up the sentry box and lobbing it into Boston Harbor. When White took his musket off his shoulder, a Bostonian night watchman came to stand with him and urged him not to be afraid. But the young man was afraid, and he called loudly for reinforcements, backing up until he could bang on the door of the Custom House.
It was clear that other men—possibly in cahoots with the boys surrounding the sentry—were also out looking for trouble that night. A group of high-spirited sailors and other laborers assembled in nearby Dock Square. They were either responding to a rumor that a soldier had hurt a young boy or they had fabricated that story to rile up followers. Half of them split off to go harass the soldiers confined to their barracks on one side of town, calling, “Town-born turn out! Town-born turn out!” A seven- or eight-year-old boy, clutching his head and claiming that a soldier had “killed” him, followed in that party’s train until he was nabbed by a British officer who “damned him for a little rascal” and asked him “what business he had out of doors.” Crispus Attucks led the other part of the group. His party made its way to the fracas at the Custom House, where another little boy was busy accusing the sentry of having “knocked him down with the butt-end of his gun.” One witness watching the streets from his second-story window described seeing men “flying here and there like pidgeons.” By the time the men led by Attucks had arrived at the Custom House, eight soldiers had emerged to defend the frightened sentry.
Historians don’t read original materials just to find out what happened. Details emerge that a bare recitation of the facts wouldn’t capture. It is one thing to know as a dry fact that events occurring in March 1770 at just past nine in the evening would have unfolded in darkness. It is different to hear about that darkness and its variations from the dozens of eyewitnesses describing what they saw or thought they saw and how. The only man-made illumination would have been firelight—the small, wavering beacons of lamps and candles set in the windows of homes along either side of Boston’s residential streets or the occasional oil lamp in a public square. But how far does a lamp’s light extend? Surely not far enough to illuminate the middle of a road. The testimony also reveals that the 18th-century eye could adjust to this darkness and was accustomed to seeing at night in ways the modern eye is not. So a witness would offer as proof of unsheathed weapons that he “saw their arms glitter by the moon light.” At the trial, the lawyers also asked, and the witnesses discussed, whether they had been standing in the light of the moon or in the moon’s “shade.” Apparently, everyone in the jury box understood that at night, a person could see more clearly when standing in the shade of the moon and looking out at events unfolding in the light.
The witnesses’ descriptions varied. Some saw dozens of people surrounding the soldiers at the Custom House. Others saw a crowd of one or two hundred. Some said only snowballs were thrown, but others noticed sticks flying through the air, as well as dark handfuls of sea coal and oyster shells from the nearby wharves. The soldiers, led by Captain Thomas Preston, had their muskets out and their bayonets fixed. The crowd, enraged by this, and pressing no more than a couple of feet from the soldiers, started screaming at them, “Fire, damn you! Fire, you lobsters! Fire! You dare not fire!” This dare makes sense issued from a crowd of a hundred. Eight soldiers holding guns with bayonets is a threatening array, but each musket can only hold one bullet at a time.
At one point, a stick hit a soldier hard enough to knock him over. When he stood up, he immediately fired. Someone, no one knows who, shouted “Fire” as an order, and seven of the soldiers complied at once. Five hit their targets, and one of the guns flashed, but no bullet emerged. The seventh soldier waited a beat. Witnesses described how he sighted down his barrel, swinging it to follow a “lad” who was running across the square. After carefully following the young boy’s progress, the soldier fired and missed. When the smoke cleared, three men lay dead. Two others died of their wounds soon after. A witness described seeing Crispus Attucks’s body lying near the gutter of the street.
When John Adams agreed to represent the soldiers in the murder trial that followed, he explained that “counsel ought to be the very last thing that an accused person should want in a free country” and that “persons whose lives were at stake ought to have the counsel they preferred.” But he warned that his clients should expect from him “no art or address, no sophistry or prevarication… nor any thing more than fact, evidence, and law would justify.” I like to pause over that statement in my classes. For a budding lawyer, these sentiments feel wonderful to read, of course. But, I ask my students, do these principles seem realistic? Are they even fair? Is that all you owe a client accused of murder and facing execution—only the best defense that a neutral view of the facts will permit, with no art? What makes these sentiments touching in retrospect, of course, is that Adams, our revolutionary, statesman, diplomat, and president, and the forebear to other American giants, is expressing virtues that we look for in those in government, though perhaps not in a defense counsel. We cherish this idea that there should be a trial—a real trial!—whenever a suspect is accused of a serious crime. We also cherish the view that everyone deserves a firm defense. And we expect trials to excavate the facts and to lead inexorably toward a neutral “truth.”
But is that the kind of service that Adams provided? Some of his performance is difficult to judge by modern standards, given how different the role of a defense attorney was in colonial Massachusetts. At the time, juries there could determine the legal rules applicable to the case, as well as the facts, and so lawyers’ arguments needed to do considerably more work. The lawyers on either side disputed whether the soldiers could have gone back into the Custom House to avoid the confrontation that cost five lives, but they also disagreed about what that fact would mean. The prosecution insisted that the law required the soldiers to retreat if they could. Adams argued that the soldiers had the right to “stand their ground.” To urge his version of the law, Adams had to begin his arguments with the most basic principles, sometimes referencing God and appealing to the juryman’s emotions and deeply held cultural values.
Lawyers today still summarize the facts to the jury, so this aspect of Adams’s performance is easier for a modern reader to judge. And it is clear that in describing the facts, Adams was forced to use all of his powers—including his arts. He faced a difficult challenge. The jury must have felt more kinship with the men who had assembled to harass the soldiers than with the soldiers sent by Britain to harass Boston, and this posed a terrible problem for defense counsel. To acquit the soldiers of murder, the jurors had to see the killings as justified. But how could they do so? To say that the soldiers were right to fire on the crowd required a condemnation of their fellow Bostonians, whose actions that night had been dramatic, sure, but deserving of death? Attucks and his band had only expressed what everyone in town had been thinking and feeling and saying to his neighbors ever since the soldiers first arrived.
Adams started by rejecting the characterization of those who surrounded the sentry as just a group of rowdy local teenagers—“shavers” in 18th-century parlance. “We have been entertained with a great variety of phrases,” he said, “to avoid calling this sort of people a mob.” Adams had to rectify that. In “plain English,” this was “most probably a motley rabble of saucy boys, negroes and molattoes, Irish teagues and outlandish jack tars. — And why we should scruple to call such a set of people a mob, I can’t conceive, unless the name is too respectable for them.” And then Adams likely drew a laugh by observing, “The sun is not about to stand still or go out, nor the rivers to dry up because there was a mob in Boston on the 5th of March that attacked a party of soldiers.” Here is one under-celebrated aspect of Adams’s genius on display: he transformed the crowd into outside agitators, and then he tried to make the jurors laugh. He created the intimacy of the inside joke, the coziness of a dinner table conversation among the like-minded. In doing so, he gave the jury permission to despise the victims.
Not that it mattered to Adams, but was his characterization of the crowd true? It seems likely that Attucks, who historians believe was of mixed Native American and African descent, had escaped from slavery in nearby Framingham and was a stranger to Boston. Attucks was only pausing there between stints on the ships where he made his living; other members of the crowd were also sailors, and so perhaps not locals. And one member of the crowd, as Adams was careful to highlight, was an immigrant from Ireland.
But aside from Attucks, there is little evidence that “negroes” made up much of the “motley rabble” taking part in the violence. We know that at least two other black men were present that night because they testified at the trial. But one of these men came as a spectator, not as a participant, and when the fighting started, he said he did his best to slip away. Witnesses also remembered that as the crowd of sailors and laborers passed under windows calling, “Town-born turn out! Town-born turn out!” a lot of town-born did turn out to join them. Some of these were white Bostonians who testified at the trial, proudly describing how they gave as good as they got that night.
Facts like these would have detracted from Adams’s story. He needed the jury to focus on the spectacle of “Attucks with his myrmidons” coming “round Jackson’s corner, and down to the party by the Sentry-box.” He wanted the jury to imagine the soldiers, already surrounded, and then seeing “reinforcement coming down under the command of a stout Molatto fellow, whose very looks, was enough to terrify any person.” Pause here, and note the echo across the ages to Ferguson, Missouri, in 2014, when Michael Brown’s killer described how he had to shoot the unarmed teen because he was terrified when Brown came charging toward him with “looks like a demon.”
Adams also described Attucks charging at the soldiers. He argued that the soldiers were justifiably frightened when Attucks “had hardiness enough to fall in upon them, and with one hand took hold of a bayonet, and with the other knocked the man down.” I would pause here again, because Adams has fastened on the least plausible version of the facts, drawn from a single witness’s description of the actions of a man he “thought” was Attucks. Many witnesses testified that they saw Attucks there, stood near him, or watched him fall, but only one described him taking part in the active fighting. Two witnesses directly contradicted Adams’s narrative. Both testified that Attucks remained 12 to 15 feet from the soldiers when the shooting began, too far away to “take hold of a bayonet” or to knock a man down. And one of them remembered that Attucks stood resting his chest on the end of a long stick, and that this was how he was shot—in a posture of repose.
But having decided on a useful story, Adams ran with it: “This was the behavior of Attucks;—to whose mad behavior, in all probability, the dreadful carnage of that night, is chiefly to be ascribed.” Again, Adams drove the wedge between Attucks and the Boston jury. The true victims here were Boston itself and white Bostonians, the jurymen included. “It is in this manner,” Adams explained, that “this town has been often treated; a Carr from Ireland, and an Attucks from Framingham, happening to be here, shall sally out upon their thoughtless enterprizes, at the head of such a rabble of Negroes, &c. as they can collect together,” and afterward many would “ascribe all their doings to the good people of the town.”
We’ve gone through two different versions of the facts now: as the witnesses remembered them and as Adams transformed them. But as with any important event, when presented to the broader public, the facts changed again. Many Americans learned about that night through Paul Revere’s famous engraving of the scene, an illustration captioned by a poem :
… if a weeping World can ought appease
The plaintive Ghosts of Victims such as these
The Patriot’s copious Tears for each are shed
A glorious Tribute which embalms the Dead.
The illustration, reprinted in every child’s American history textbook, is still familiar to us today. Revere indulged in many inaccuracies in this piece of wartime propaganda. To me, the most interesting is the color of the victims over whom the reader is instructed to shed copious tears. Most of the surviving copies show all five of them as white. When Attucks was merely a rabble-rouser who deserved to be put down, he was a “stout Molatto fellow” with terrifying looks. But Attucks the hero was white. Revere’s illustration was meant to be a call to arms, rallying British North Americans in other colonies to see Boston’s cause as their own. It seems that this job was more easily accomplished if the victims were once again “us,” not “them.” That is, if they were white, not black.
In remembering the Boston Massacre today, we have yet another version of the facts. When I was a young girl growing up black and proud in Oakland, California, in the 1980s and ’90s, well before I knew that something called the Boston Massacre had occurred, someone informed me that “the first patriot to die for our country in the American Revolution was black.” This version of the story was created in the mid-19th century by abolitionist reformers and has had a long life. I was surprised to discover that even after receiving my doctorate in American history, I still had this story in my heart. I suppose one does carry around stories learned in childhood, whether or not one wants them or believes in them any longer. Reading Adams’s summation for the first time twisted that childhood story, like so many other stories about race, into a cruel joke.
With the facts in hand, we then ask, what is their significance? First, what was the significance of the case to the people directly involved? Why did Adams say, without irony, that it was “as important a cause as was ever tried in any court or country of the world”? And why did he care so much about an acquittal? To answer this, one must remember that he considered himself a British subject. Men like Adams, a successful lawyer of good family and conservative principles, joined in the demands Bostonians directed to their Parliament in London only because they believed those demands to be lawful. They saw themselves as the reluctant conservators of a constitutional tradition that the government in London had begun to subvert. Adams could not know that in a few years the British Empire would suffer the civil war that would result in the creation of a new American republic. But he believed in each of the steps British North Americans took that led them in that direction. To believe in those steps, he had to assert that they served conservative principles, not radical ones. It was important to him and to the broader causes he served to convince London that Bostonians were principled in a classic legal sense. And so he had to prove that a Boston jury could set aside its mistrust of the soldiers and the political heat of the moment and make a legal rather than an emotional decision: the decision to acquit. An acquittal would prove to Adams himself, to the other colonies watching Massachusetts, and to London that Boston’s position in its quarrel with Britain was based on a constitutional argument, not provincial egoism.
Of course, a decision to convict would have been perfectly legal as well. One of the soldiers, only a week before the shooting, had calmly and soberly told his companions that he would “never miss an opportunity, when he had one, to fire on the inhabitants.” And the soldiers aimed and shot at people who, like the young boy running across the square, posed no threat at all. There was, in other words, plenty of evidence of malice. The jury could also have accepted the prosecution’s argument that the soldiers were required to retreat to safety if they could. The legal case against them was not easily overcome.
It is also worth noting that the soldiers enjoyed the greatest procedural protections anyone could expect. At a time when having a defense attorney at all was still relatively innovative, the soldiers were represented by two excellent lawyers—Adams was assisted by Josiah Quincy Jr., a member of the Sons of Liberty and part of a lineage of important Massachusetts lawyers and statesmen. The soldiers were also the beneficiaries of the first known instance of a judge’s instructing a jury that it must acquit unless the facts add up to guilt “beyond a reasonable doubt.” Yes, the reasonable doubt standard, that jewel of our criminal procedure, had a dummy run. The high-water mark of criminal defendants’ rights was first articulated in 1770, in a trial in which defense counsel could insist, truthfully or not, that the victims were just a “a rabble of Negroes, &c.”
If the soldiers had been convicted and hanged for their crimes, that outcome would have been justified by the facts adduced at a fair trial. But Adams had in mind the trial’s broader audience. Without parsing the difficult details, the English public and Parliament may well have reacted badly to the idea that British soldiers had been executed on the say-so of a colonial jury. Adams also believed that acquittal was the only outcome of the case that would appear legal because acquittal leaned against the hottest political sentiments of the moment. Later, when Adams joined his countrymen in throwing off the only legal authority they had ever known, it would only become more important to insist that he followed the dictates of established law and his law-educated conscience, rather than emotion, personal ambition, or more radical ideals. So Adams didn’t need to win an acquittal just because he thought the soldiers deserved it—although probably, like any committed lawyer, he argued well and passionately enough to convince himself of the justice of his side. He needed it so that when Americans embarked on a more radical course of action, he could reassure himself of the essential conservatism of their movement. Adams was not really neutral, even as he warned that the soldiers could expect from him no “art” and “no sophistry.” He sought acquittal no matter what the facts revealed out of an overriding ambition to prove that American institutions and the values they served could withstand the pressure of public sentiment.
That kind of false neutrality is not a virtue in anyone in a position of public trust or prominence. To be actually neutral on the great social issues we face is to fail to appreciate their gravity. The effort to pretend neutrality in a courtroom can prevent a judge and jury from being truly impartial. The trial of a white police officer who has shot an unarmed black man should not be influenced by the furious public gathered outside. But it is no more neutral to acquit out of the instinct that officers have been unfairly demonized by the heat of public disapproval. Both represent a failure to do justice to the individuals before the court. For legislators and other nonjudicial public servants, for whom public opinion ought to matter, dismissing as irrational or “biased” those who are most passionate about issues requires ignoring anyone with a real stake in the outcome. A habit of leaning away from the fire of the hottest public sentiment often means leaning away from victims crying out for justice. Attention to these voices may be critical, however, to understanding where the center actually is on social problems. Often, it is those who are most vulnerable in a society who can see it best. Even when the light is dim, one gets the best view, as it were, in the moon’s shade.
Instead, as in the Boston Massacre trial, Americans have often achieved a “reasonable” or “neutral” solution to an intractable political problem by defining more narrowly the community of people whose lives and interests matter. There was enough evidence for and against the guilt of those soldiers to bring the case to equipoise. To make the math easy, Adams simply discounted the value of black life. This approach would become a habit for Adams and his generation, the authors of the Constitution’s three-fifths clause and its other shameful equivocations on slavery. Another generation of Americans would be able to reconcile after the Civil War only when leaders in the North abandoned freemen to the mercy of the South, in tacit agreement that black rights and black lives were not worth continued national discord. Is it any wonder that even today, the mild observation that “Black Lives Matter” counts in some circles as a radical political statement?
The omission of black lives from the story is one clear problem with how important moments in early American history have been remembered. We don’t know much about Crispus Attucks, the child of an 18th-century interracial relationship, who escaped slavery and had enough verve and enough friends in Boston to organize and lead a mob against the soldiers stationed there. Attucks enters America’s story, at least the version we remember, as a body. We also don’t know much about the community that included him and other people like him. For a black citizen today looking back at the 18th century and hoping to find herself there, there is a problem that tokenism highlights rather than alleviates: black people are visible only when they intersect with the triumphal tale of the creation of a white American republic. We see only the few black people who step out into the light of that moon. I know that others were there. I know that there were black men in Boston on the night of the massacre—real people, not the bogeymen that Adams created to frighten the jury. But no historical record chronicles their lives, and so those whose bodies did not appear in the street after the shooting remain hidden in the shade.
Perhaps a more serious problem, however, is the way we remember the well-heralded protagonists of these stories, their intentions, and their accomplishments. As a moral fable about the rule of law, the Boston Massacre trial is a story in need of revision. We remember it because we think it tells us something triumphant about who we are: a society based on law, in which principle rises above interest, and in which every person’s individual rights are held sacred. But this trial is also a warning about who we are. Americans have upheld these ideals cheaply in the past by ignoring the full breadth of American society or by demeaning some of its members. Our challenge, and our duty, is to hold to our principles while paying their full price. ###
[Farah Peterson is an Associate Professor of Law and legal historian at the University of Virginia School of Law. After law school, Peterson clerked for Associate Justice Stephen Breyer at the US Supreme Court and Judge Guido Calabresi at the US Court of Appeals for the Second Circuit. She is currently working on a book, The Most Dangerous Branch: Law and Legislation in Republican America, based on her doctoral dissertation. Peterson received a BA (history) from Yale University (CT), an MA (history) from Princeton University (NJ), a JD from the Yale University School of Law, and a PhD (history) from Princeton University.]
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