Tyranny and Musings on the Massacre on King Street

On a chilly day in March, 243 years ago, shots fired out on a Boston street; people were killed and wounded and history changed course.  As with all history that takes on mythological proportions, the Boston Massacre, as it would come to be known, carries drama.  The specific facts are still murky - did a sentry chide a child who reported an overdue bill; did a victim of the events provoke the violence; did Preston say "fire" or "don't fire"?  But the basic premise remains the same: British soldiers fired upon Boston civilians - John Adams mounted a mighty defense; the lead defendant was acquitted of all charges and the two men convicted received reduced sentences.  The event either sparked, or had little to do with, the Revolution.  But it resonates in history as a pivotal moment; remarkably many of those colonial discussions permeate our national ones centuries later.

First - taxes: a fight still being waged.  The initial tax on the Colonists occurred years before, the Sugar Act.  Colonists objected on economic grounds more than principle.  By the time of the Townshend Acts, however, a legal argument emerged; rather than the money, it was the fact that the Crown taxed the Colonists when the Colonists had no say in the matter, a violation of the Bill of Rights of 1689.  Put aside that the purpose of the Townshend Acts was to provide funding for judges and governors in order to be free from colonial rule - it was an act of tyranny.

To quell the uproar, some of the taxes were repealed and soldiers were sent to calm the unrest.  But distant government being out of touch with "Main Street", the plan backfired and caused even more agitation.  Soldiers were to be stationed throughout the colonies, but somehow they all landed in Boston and stayed.  Then as now, Boston suffered from a surfeit of housing so the men were quartered in private homes and public buildings.  They needed more money than their meager wages would abide - so many worked second jobs better left to decent local folk scrounging for work.  And, there is a claim that they did not all pay their bills on time.  Despite the fact that they partook in all manner of bustling city life in a port city full of amenities of the day, many were heard to disparage their hosts to the point of wanting to kill them and just waiting for the opportunity to shoot.  In short, these British Regulars were "takers"- ungrateful, job stealing, takers.  Locals cared neither for their presence nor the taxation without representation that spurred their arrival. 

Second - trial by jury: encompassing rights still deemed sacred and yet unclear.  The trials took place in Boston, but none of the jurors was a Bostonian.  Scuttlebutt from Captain Preston's trial was that the jury was packed for the defendant.  For those who question whether jury packing for defendants (rather than the government) could occur in modern America, think of almost every police officer accused of brutality and how many are acquitted after trial.  The flip side of that concept is the refusal of the court system to provide information to jurors about the possible consequences of a guilty verdict and to negate the time honored right of jury nullification.  Defense arguments in 1770 allowed for it; in 2013, people are arrested for spreading the information and jurors are dismissed for espousing the idea (and courts will do anything to pretend that this was not the reason for dismissal.)

Third - rules of evidence: questions remain hotly litigated today as to admissible hearsay and confrontation rights.  A witness was permitted to retell the "dying declaration" of Mr. Carr, a fatally wounded man who averred that the soldier who killed him must have fired in self-defense.  Mr. Carr was Irish and had had many run-ins with British soldiers in his homeland and noted that they all would have fired their weapons earlier than did those in King Street.  In other words, the British Regulars were eager to shoot - at least eager to shoot the Irish - and those in Boston held back...until they fired.  Although his testimony was very helpful to John Adams' client, Adams sought to blame the victims and play on embedded prejudices: the mob was comprised of such rabble as "teagues" and "negroes and mulattos" and "jack tarrs" causing problems for respectable Bostonians and the Englishmen who served to keep the peace. But, there is not a chance that this "dying declaration" would be admissible today: the statement sought to get into the head of the defendant, it did not add to the factual construction of the case, and it benefited the man on trial.  It would be excluded as hearsay (unless it would help convict the defendant in which case it would be okay).

Fourth - burden of proof and affirmative defenses: the trial was the first to declare "proof beyond a reasonable doubt"; the defense of self-defense is equivalent to the standard used today.  In regard to self-defense, Adams argued that even if one of the defendants averred that he hated the locals and would kill any of them for any reason, if he were attacked, that statement could not be used to support the government's case against him.  Today, several states, including Massachusetts, have turned that truth on its head: if the defendant seeks to demonstrate that the victim was the first aggressor, the government can now submit "prior bad acts" to illustrate that the defendant was the first aggressor in direct opposition to the law in tyrannical, colonial times.

Fifth - glorification for historical purposes: take advantage of the situation to prove a point later in time.  The incident on King Street became the Bloody Massacre on King Street and then finally the Boston Massacre as time crept closer to the events of 1776.  Before the acquittals and reduced sentences, the 5 mortally wounded men, including one former slave and one Catholic, would be laid to rest in a common Patriot grave at the Granary; they would come to be known as the first to die for their country in a war that did not yet exist, lest we forget.  After the emotion of the events faded, the anniversary would be observed.  Every angle is still exalted today from the patriotism of the African American Crispus Attucks to the selfless grace of John Adams defending the British soldiers to the compassion of Americans in granting the benefit of clergy to such brutes to the perils of tyrannical taxation on an unwilling public - all have a home in the Boston Massacre. And, as we all know  glorification of disconnected events continues today.

The legacy is often embellished, but it is fair and true to say that the roots of much of the Bill of Rights was born in Boston in 1770.  The First Amendment right to assemble might have some foundation in the events where a motley mob gathered to confront a government official for chiding or harming a young boy.  In contrast to the modern interpretation of the Second Amendment discussing self-defense and "fundamental rights" of gun ownership, here is how John Hancock explained a well-regulated militia on the fourth anniversary of the events:

A well-disciplined militia is a safe, an honorable guard to a community like this, whose inhabitants are by nature brave, and are laudably tenacious of that freedom in which they were born. From a well-regulated militia we have nothing to fear; their interest is the same with that of the State. When a country is invaded, the militia are ready to appear in its defense; they march into the field with that fortitude which a consciousness of the justice of their cause inspires; they do not jeopardy their lives for a master who considers them only as the instruments of his ambition, and whom they regard only as the daily dispenser of the scanty pittance of bread and water. No; they fight for their houses, their lands, for their wives, their children; for all who claim the tenderest names, and are held dearest in their hearts; they fight pro aris et focis, for their liberty, and for themselves, and for their God. And let it not offend if I say that no militia ever appeared in more flourishing condition than that of this province now cloth; and pardon me if I say, of this town in particular.

      The direct connection to the Third Amendment cannot be overstated: the soldiers were housed in private homes.  Had this not been the law, the "massacre" would never have occurred as there would have been a distant barracks and less opportunity for interaction between the military police force and the citizenry.  The Fifth Amendment requires a grand jury for indictments and due process of law; the charged soldiers faced indictments that had been hastily written by the Attorney General (who would soon step down, refusing to prosecute the men) and the pleas for delay to allow the fervor to abate fell on deaf ears.  Almost all of the provisions of the Sixth Amendment make an appearance:  speedy and public trial, impartial jury, confrontation and the right to counsel.  The Eighth Amendment, too, comes into play as those convicted received the benefit of clergy rather than the gallows; it would have been cruel or unusual to hang men for doing their jobs and, very likely acting in self-defense.

Both the pride and the prejudice of American life made their way into the events of March 5, 1770.  The legacy is more than just one of propaganda and a media campaign turning an unfortunate event into a massacre into a trial into a myth.  There is no question that constitutional issues related to taxation have punctuated the history of this nation from the assumption of the debt at the initiation of the country to the challenged income tax during the Civil War to the ratification of the 16th Amendment to the ruling on the Affordable Care Act and discussions - or lack thereof - in Congress today regarding taxes.  The difference today is that while there may not be very good representation, there is direct representation in both national and state governments.  While that representation exists on paper, the reality of it is in jeopardy.  And instead of working to ensure the protection of the franchise, Americans are making nonsensical arguments about present day tyranny for taxes to pay for wars and other programs which they supported but failed to fund.  The entire historical argument is lost.

Stereotypes and racial prejudice is still on display in trials.  Concerns about the innocent being convicted is even more true today than it was in our colonial past.  Rights of confrontation and concepts of hearsay exceptions are still debated (in 1770, the dying declaration hearsay exception was introduced to assist the defendant, not the prosecution: if it is admitted today, it is solely used to convict rather than exonerate, despite the protections of the Confrontation Clause).  The affirmative defense of self-defense in many jurisdictions now permits prior bad acts of the victim and, if so admitted, then also prior bad acts of the defendant to demonstrate who might have been the first aggressor, but as the argument on behalf of the British soldiers went, their prior prejudices, including statements that they would take any opportunity to shoot the local population, could NOT be invoked against them to deflect from self-defense. Although the death penalty was widely available, the work-arounds were also more prevalent as the benefit of clergy is no longer a viable option.  And, it is fair to say that across America when groups or "mobs" assemble, there is still a possibility that the authorities may shoot and kill one or more of the group.

The events of the Boston Massacre and their ramifications are significant to history; but the way they are presently understood resembles a game of telephone.  The fight for freedom is ongoing not only to protect inherent rights, but also to prevent arbitrary and capricious laws.  That is the part we have lost in the translation.  Recalling that the purpose of the Townshend Acts - albeit through taxation - was to provide MORE, not less, liberty to colonists for self-rule.  By then, the "constitutional question" of taxation without representation had taken such a strong hold that the intent of the law lost to the procedure for imposing it.

Where individual liberties clash against the imposition of authority, the more things change, the more they stay the same.