Responses to Our Winter 2019 Issue

What’s Race Got to Do With It?

In the opening paragraph of “Black Lives and the Boston Massacre” (Winter 2019), Farah
Peterson characterizes Crispus Attucks as an unarmed black man, shot and killed by men in uniform who “got away with it.” This bald statement seriously distorts or disregards the historical evidence.

Attucks arrived at King Street heading a group of sailors, armed with clubs fashioned from the legs of marketplace stalls or from cordwood, each about the thickness of a man’s wrist—equivalent in heft to today’s baseball bats. The chaotic scene centered on a group of eight redcoats, armed with muzzle-loading muskets, facing not mere peaceful demonstrators but a rowdy, raucous crowd of at least 200 men and youths deeply hating the British government and its “hirelings,” throwing snowballs, ice chunks, sticks, and an occasional stone, all the while giving the fearful “mob whistle” and taunting the soldiers: “You dare not fire!” Therein lay the key to the tragedy.

For weeks before March 5, 1770, Boston buzzed with assurances that troops could not fire on civilians without authority from the civil authority. The assurances, however, omitted a vital corollary: the soldier always retained his common-law right of self-defense. In proper circumstances, he could—without orders—shoot to kill. Thus a dangerous mix: armed, outnumbered, execrated soldiers facing incensed civilians tragically and wrongly sure of their own immunity and the troops’ impotence. A bloody riot was brewing.

Yet Professor Peterson, citing a single witness, gives us an image of Attucks, in the midst of this pandemonium, “resting his chest on the end of a long stick … [and] shot—in a posture of repose.” However one regards the men confronting the soldiers, not one was a quiet, innocent bystander. Certainly not Attucks, the six-foot-two leader of a crowd of armed sailors. (His height, although she doesn’t mention it, was significant. Attucks was, for those days, a giant. Only four men in the 29th Regiment stood as tall as six feet; only 36, out of about 300, exceeded five-foot-ten.) A man that large, swinging a wrist-thick club would—without regard to race—frighten anyone. Professor Peterson cites testimony that one of the soldiers held his shot and then swung his musket to follow a fleeing boy.  Not very likely: soldiers facing an armed mob save their shots for people in front of them, not somebody running away.

Before examining how John Adams conducted the defense, it is worth considering some serious questions that Professor Peterson leaves unanswered, indeed unasked. For at least five years preceding the Boston Massacre, Adams had been, if not the radicals’ “mouthpiece,” certainly their lawyer of choice for a series of legal and forensic battles. He was, in fact, so professionally tied to them that one wonders why he did not decline representing Captain Preston and the men. Even a mediocre lawyer—and Adams was by 1770 the best lawyer in Massachusetts—would realize that an effective defense required showing that the mob—the Boston mob—had plainly threatened the soldiers’ lives. In other words, a successful defense would necessitate contributing to Boston’s reputation for lawlessness.

We know that Adams’s co-counsel, Josiah Quincy, joined the defense team only after receiving the blessing of the radical leadership.  One may reasonably conclude that Adams followed suit. Now Adams (and Quincy) would have to show that the same people forming the radicals’ political base were tossing sticks, stones, and ice blocks at an outnumbered corporal’s guard of soldiers. The conflict of interest seems obvious. That, however, was the least of the ethical issues.

Remember, Adams represented Captain Preston and the men. To convict Preston, the Crown had to prove that he ordered the firing. If the men fired without orders, Preston would gain acquittal, but only at the soldiers’ expense.  True, the trials were separate. Nonetheless, witnesses exonerating Preston could have helped convict the men.

At both trials, Adams adopted a strategy designed to show that everyone faced a serious, immediate risk of death.  As much as possible, he carefully avoided directly blaming Bostonians (or even residents of the other Suffolk County towns), instead blaming what we would call outside agitators: Attucks (who came from Framingham, in Middlesex County) and another victim, Irishman Patrick Carr.  Adams’s tactics were in no way racially based.  By emphasizing the out-of-town makeup of the mob, he showed the jury a path to acquittal. That is what any good defense lawyer does: make the jurors comfortable voting Not Guilty.

Hiller B. Zobel
Zobel, a retired associate justice of the Massachusetts Superior Court, is the author of  The Boston Massacre (1970) and coeditor of the three-volume Legal Papers of John Adams (1965).

Farah Peterson responds:

Justice Zobel and I agree on more than we disagree. Indeed, we describe the events of that March night in nearly identical terms. I describe Attucks as the leader of a mob, not as “a quiet, innocent bystander.” And I describe the frightening scene the soldiers faced and the deep resentment Bostonians felt at the presence of the British regiments. As for Justice Zobel’s portrayal of Attucks “swinging a club” at the soldiers and his speculation about whether soldiers were “likely” to have aimed at a fleeing boy, his dispute seems to be with the majority of eyewitnesses who testified to those issues at trial. Two-hundred and forty-nine years later, neither of us is in a position to cross-examine them.

Where Justice Zobel and I truly part ways is on his view of Adams’s ethical obligations. Justice Zobel points out that because Adams agreed to represent both the soldiers and their captain, he had fewer paths to acquittal. He couldn’t exonerate the soldiers at the captain’s expense by claiming the soldiers were following orders; neither could he exonerate the captain by portraying the soldiers as out of control. Justice Zobel argues that, trapped in this ethical bind, Adams was duty-bound to characterize Attucks and the mob the way he did. I disagree.

To be sure, the conflict of his clients’ interests posed a real dilemma. That may explain, but it does not excuse, Adams’s denigration of the victims as just “a rabble of negroes.” For one thing, Adams could have, and maybe should have, declined to represent clients whose interests were so clearly opposed. More to the point, I disagree with the suggestion that a lawyer’s duty to his client is the only ethical obligation he brings into a courtroom. Of course it is not. A lawyer’s personal and civic ethics do not go on hold for the duration of a trial. He remains accountable for the way he behaves and for the kind of society his behavior in the courtroom helps to create. The courtroom is not a theater, after all; real rights and responsibilities are determined there.

In contending that Adams’s defense was “in no way racially based,” Justice Zobel seems to object to the suggestion that Adams was a racist. But that’s hardly the point of my essay. Adams himself may not have been motivated by racial animus, but he was a shrewd enough lawyer to understand that the jurors would respond to his expressly race-based characterization of the mob. That is why he focused not just on some of the victims’ status as “outsiders,” but specifically on the color and ethnicity of the mob’s participants. I believe that lawyers have an obligation to make their clients’ case without race baiting, even when doing so would be expedient.

Pleasure, Politics, and the Canon

I partly agree with Arthur Krystal (“A Pleasure to Read You,” Books Essay), but I am also partial to the contemporary cultural critiques made with reference to the canon. Another kind of pleasure can be derived from understanding all the ways in which a novel succeeds and fails at portraying certain cultural issues. Although the argument that Jay Gatsby is ultimately excluded from the problematic class he wishes to join is quite obvious, I still think it’s fascinating to see how Gatsby’s “exclusionary status” plays out in the novel. A certain interruption takes place when one realizes that the character’s goal is not only unattainable but morally dubious, and this, I
believe, is beautiful and worth exploring.

from our website

I have spent a lifetime reading all sorts of literature and not questioning too deeply which sector of the tremendous spectrum of pleasure it evoked—beginning with fairy tales and nursery rhymes through Mickey Mouse comic books, newspaper comic strips such as Pogo and Krazy Kat, Ellery Queen detective stories, Astounding Science Fiction, the novels of H. G. Wells, classical poetry, Shakespeare, and through to the present—a cataract of novels and other kinds of literature. The concept of denying oneself the delights of even imperfect writing seems to be a kind of masochism born out of a fear of falling below the standards proclaimed by accepted academics. I take my pleasures wherever I can discover them.

from our website

Kiwi Memories

Gwyneth Kelly’s “Beauty and the Beef” (Letter from New Zealand) brought back memories of a year spent in Whangerei, on the North Island, in a ’50s house with uninsulated floors and no central heat. It was indeed like camping out. New Zealand was like a huge, beautiful postcard, and the people were delightful, but turning it into a bit of Great Britain was definitely hard on the land—little slumps everywhere. I hope the next transition is more benign.

from our website

Strength in Simplicity

“The Sleeper” by Frank Huyler is an attention-holding testimony to both the power and mystery of medicine, and the joy of the straightforward English declarative sentence. Well done indeed. Thanks!

Jon Rutherford
from our website

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