Two hundred and forty-five years ago, on Oct. 24, 1770, Captain Thomas Preston entered the Queen Street Courthouse in Boston to stand trial for murder. Soldiers under his command had fired into the crowd surrounding them on March 5, killing five and wounding six more. Preston and eight enlisted men were arrested immediately with the blessings of the British Lt. Governor as he stared down a huge and threatening mob. The patriots quickly named it “The Bloody Massacre.” British officials referred to “the King St. incident.”
Crowds gathered outside the jail through the summer, chanting for the soldiers to be hung from the Liberty Tree, while British government officials and American leaders did some very fancy dancing to shape public perceptions in America and England. The British wanted to appear willing to prosecute their own soldiers while securing their freedom in the end; the Sons of Liberty wanted to be seen as reasonable and fair while gaining vengeance when the soldiers were executed.
In a rare case during the years before the Revolution, the royal government walked away with the desired results and perceptions. The trials only resulted in two convictions for manslaughter. Both privates escaped the death penalty, were branded on the ball of the thumb and returned to England.
Skillful lawyers ensured acquittals for the soldiers. The trials had been delayed for months so that much of the anger from the Massacre had dissipated, and the government prosecutors engaged in only half-hearted efforts. The British-appointed judges separated the trials of Capt. Preston and the others, making it almost certain he would be acquitted — there was no evidence he gave an order to fire. When the soldiers appeared in court, everyone knew Preston had already been found innocent. It was a legal technicality that was most important, however: it allowed the defense to disqualify an unlimited number of jurors. They chose twelve men, five who were declared Loyalists or would be within a few months. Just one dissenting vote would result in acquittal.
The patriot side overplayed its hand when it persuaded two of its best young lawyers to defend the soldiers. This would provide good publicity — “We may be rebellious, but we’re still good British citizens dedicated to the established legal system” — but the lawyers themselves, especially future President John Adams, had an eye on their reputations as well. With the jury already stacked in the soldiers’ favor, Adams gave a rousing speech in summation, including the platitude that it was better under English law to set a guilty man free than to convict an innocent one.
The soldiers were acquitted as well, with only the two exceptions. The jury assumed they fired in self-defense, although the hostile crowd surrounding them was armed with only taunting words, sticks, stones, oyster shells and chunks of ice. By acquitting those who used lethal force when they subjectively feared for their lives — regardless of the reality of the threat — the Massacre verdict set a precedent that has been strongly resurrected in recent years.
Two hundred years after the Massacre, in 1970, National Guard soldiers opened fire on a crowd of thousands that surrounded them on the campus of Kent State University in Ohio, killing four and wounding nine. Many of the circumstances were similar to those of the Boston Massacre: crowds had destroyed property in recent days; the troops were badly outnumbered by the crowd; the people and troops were on edge because of widespread conflicts over government policies (in this case, the Vietnam War); the protesters were armed with rocks and other projectiles, but no guns (with the possible exception of Terry Norman, an FBI informant who brought a pistol; there is some new evidence that he fired in the air moments before the soldiers’ shots).
After several years and multiple court actions, the legal results were essentially the same: no soldiers were convicted of any wrongdoing. A government inquiry concluded that they had fired in a mistaken belief that they needed to defend themselves.
Since that time, there have been scores of incidents involving unarmed people shot because someone feared them, most with racial overtones; Bernhard Goetz on a New York subway in 1984; George Zimmerman shooting Trayvon Martin in Florida in 2012; police officers killing unarmed suspects in a variety of locations across the country. By May 2015, 33 states had passed some sort of ‘Stand Your Ground’ law that allows citizens to use lethal force if they felt they need to protect themselves or their property. In an increasingly violent society, our laws are reaffirming the defense of the soldiers in the Boston Massacre: the fear of a threat justifies the use of lethal force, not the reality of the threat itself.
Allen Woods is the author of the historically-accurate novel The Sword and Scabbard: Thieves and Thugs and the Bloody Massacre in Boston,www.theswordandscabbard.com, that details events of the time, including those leading up to the Boston Massacre.