International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique

, Volume 22, Issue 1, pp 69–82

The Lawyer, the Judge, the Historian: Shaping the Meaning of the Boston Massacre, American Revolution, and Popular Opinion from 1770 to the Present Day


    • History and Jewish StudiesPennsylvania State University

DOI: 10.1007/s11196-008-9096-y

Cite this article as:
Pencak, W. Int J Semiot Law (2009) 22: 69. doi:10.1007/s11196-008-9096-y


Both the Kevelson Seminar topic, ‘Lawyers as Makers of Meaning,’ and the appearance of a highly-publicized television series in the United States dedicated to the life of President John Adams (1735–1826) invite inquiry into Adams’ role as a lawyer who shaped the meaning of the American Revolution (and his role in bringing it about). Three trials from Adams’ early legal career illustrate that he presented both himself and fellow resistance leader James Otis, Jr., as heroic loners struggling for the rights of Americans against British injustice. Although he did not call it that, in 1970 lawyer and future Massachusetts Superior Court Justice Hiller Zobel, in his book The Boston Massacre, undertook what we would consider a semiotic approach that investigated the relevant codes and contexts—both the legal complexities and the audiences, other lawyers, judges, and posterity about which Adams spoke, simplifying and minimizing their roles as he maximized his own (and Otis’s). Zobel’s own relationship with Adams’ legal career appeared in his own tenure on the bench, especially in the famous ‘Nanny’ (discussed by Denis Brion, in this issue) case in which he explicitly presented the Boston Massacre Trials as a relevant precedent. Despite Adams’ willingness to subordinate his clients’ welfare to the patriot cause early in his career, it can be argued that HBO television and historian David McCullough, by presenting him to the public only flawed by his outspoken, stubborn honesty, have nevertheless performed a public service. Their version of Adams offers Americans in the twenty-first century an alternative role model to the dishonest, ill-informed politicians who use public opinion polls rather than political theory, moral philosophy, and historical knowledge as the basis of their decisions.

Introduction: The Issues and the PBS Special

The 2008 HBO television series about John Adams, based on the best-selling biography by David McCullough, who was involved with its production, begins with Adams the lawyer in the Boston Massacre Trials of 1770 as a maker of meaning [1]. Adams’ own slant on this event is presented uncritically, as it has been by almost every historian who has interpreted the incident since. Adams is the heroic loner, standing against the intimidating populace of Boston who prevented every other lawyer in town from taking the case. McCullough, the foremost non-academic historian of the late twentieth-century United States, takes his interpretation solely from Adams’ papers, as his footnotes attest. His biography, combined with the TV series, will be all that most people will ever know of the incident, not to mention Adams himself.

The heroic loner was Adams’ favorite image of himself, the voice of truth and reason in a world of liars and fools, whom he persuaded (at least in some cases) to do the right thing (pp. 531–537 in [2]). In the Massacre trial, as portrayed on television, his two principal witnesses are an African-American boy and a rope maker, who were also heroic loners in that they spoke the truth in the face of public pressure—that on 5 March 1770, eight soldiers were bullied and driven to defend themselves against a mob that taunted and assaulted them. (In reality Adams presented several dozen witnesses to this effect.) The jury then acquitted the soldiers of murder despite popular pressure to convict.

Adams the maker of meaning, uncritically accepted by posterity, presents himself in the Massacre Trials and elsewhere as an iconic figure. The context—the audience at the trial, the other lawyers and judges, the legal complexities—are simplified or ignored for his own glorification. Nor is this the only case in which Adams shaped meaning this way: his writings on the Writs of Assistance Trial of 1761 and the Corbet Impressment case of 1769 again isolate the heroic lawyer—James Otis in the former case, himself again in the latter—from a complicated situation to present both trials, and the larger narrative of the American Revolution attached to it, as instances where heroic individuals attempt to create new legal meaning in the face of pro-British courts and other government authorities.

The Adams series is great television, but much of the first episode is inaccurate history, presenting Adams as the ‘great man’ who is solely responsible for a just verdict in the trial. The best parts of that episode are the recreation of colonial Boston and Philadelphia, especially the powerful images of mobs carrying figures burned in effigy. A tarring and feathering was accurately presented as a horrifying spectacle that it was. And the soldiers are presented as genuine, victimized human beings.

Things get much better in episode two from the perspective of accuracy and usefulness in understanding America’s legal history rather than the details of architecture, public processions, or colonial clothing. That as of 1 July 1776, there was considerable opposition in the Continental Congress to declaring independence is vividly brought out, as is the behind-the-scenes maneuvering that changed that. The positions of Adams and Philadelphia lawyer John Dickinson, the leading advocates of independence and reconciliation in the floor debate, are brilliantly brought out. Dickinson is not presented as a fool but as a sensible opponent, and when he marches off to battle and salutes Congress after the Declaration is proclaimed, his patriotic credentials are confirmed (he later signed the Constitution). Most notably from a legal perspective, Dickinson argues that people only have rights because they live under a particular legal system that has produced and guarantees them (in this case, the British), that they would lose these rights if they separated (especially if the British won, which he considered possible), and that there are no ‘natural’ rights—a position many modern legal thinkers would consider more useful than Adams’ and the Declaration’s proclamation of ‘inalienable rights’ and the natural equality of (hu)mankind.

Adams’ fears as well as optimism for the future are also clearly brought out in episode two, as is the fact that these men (who left-wing historians portray as aristocratic types taking power for themselves at the expense of ‘the people’) were risking their lives at least as much as the soldiers in the field. Britain considered the majority of Americans deluded by a handful of unscrupulous power-hungry agitators and was willing to forgive the rank-and-file, but not the ringleaders. That many of them were not upper-crust, too, is vividly portrayed in their dress (there are exceptions, such as Dickinson and Massachusetts’ John Hancock) not to mention the wonderful scene in the first episode, where John Adams (who was a farmer as well as a lawyer and put in a crop in 1801 right after he left the presidency) teaches his son John Quincy how to make fertilizer and picks up some manure with his own hands to mix with soil.

Episodes three and four return to the presentation of Adams as loner rather than leader. Once again the casualty is historical truth. In France, Adams’ refusal to be satisfied with the aid given to America and blunt insistence on more angers the subtle and luxurious French court that idolizes Franklin. While the court has its frivolous, even ridiculous moments (Franklin’s supposed mistress Mme. Helvetius wiping up her dog’s excrement with her beautiful dress), the viewer’s sympathy is clearly directed toward Franklin, who can ingratiate himself with the aristocracy.

Yet it is Adams who turns out to be doing the right thing for the United States, which HBO does not tell us. Franklin would have prostituted American interests to the French, who were committed to staying in the war until Spain was willing to quit, and who would not have included a provision in the peace treaty extending the western border of the United States to the Mississippi River. None of this appears on television: style replaces substance. That Adams and John Jay (a somewhat less blunt but still like-minded negotiator who simply does not exist) entered into separate negotiations with the British and thereby obtained a much better deal is ignored in the celebration of Franklin and the French alliance.

In the episodes dealing with the treaty negotiations, Franklin’s version of history wins rather than Adams’ to conform to the traditional American historical narrative that seeks to give both men a place in the sun: Adams at the Massacre Trials, Franklin at the French court. Rather than educating the public, the HBO series confirms its prejudices, accords to all the great men who appear (the stoic Washington, the quiet yet eloquent writer Jefferson) their appropriate place in the patriotic pantheon much as Americans have learned for the past two centuries. The series’ painstaking accuracy in small matters—such as the appearances of particular characters and places—effectually diverts attention from its inaccuracy in dealing with critical events by conveying an air of ‘authenticity’ where it matters least.

The Boston Massacre Trial

To return to the Boston Massacre and Adams the maker of meaning. Adams’ interpretation that ignores other prominent actors in the trial is presented as truth. First, the Chief Justice of the Massachusetts Superior Court (the actor on television actually looks like Peter Oliver, whom he is playing) did more than shout for order when required. He issued a powerful charge to the jury (vol. 3, pp. 302–309 in [3, 4]), as did associate justice Edmund Trowbridge (vol. 3, pp. 282–302 in [3]) that supported Adams’ case: ‘They are our fellow-subjects also’ Oliver pleaded with the jury and audience. (In the HBO show it is Adams who says they are also fellow human beings, and in the printed version of his defense he urges the jury to put themselves in the place of the soldiers, surrounded by a hostile crowd, but Oliver also does so, and more succinctly.) Oliver continued: ‘Soldiers, when they act properly in their department, are… in some cases, more useful than any other members of society, as we happily experienced in the late [Seven Years or French and Indian] War, by the reduction of Canada, whereby our liberties and properties have been happily attached to us.’ Oliver linked the war again to the trials, where he added that patriot propaganda to influence the trial’s outcome—notably the famous but inaccurate Paul Revere engraving of soldiers’ firing in unison at their officers’ command with mythically conjured solders from an upstairs window doing likewise, at an innocent, unprovocative crowd—exhibited ‘greater malignity of heart… blacker than ever was expressed by the savages in the wilderness.’ Oliver was hoping to remind the Bostonians that just a few years before, they were cheering British soldiers for freeing them from the French menace along their northern border.

At the trial, Oliver kept up the comparison between savages and people in a society with laws by criticizing the patriots’ insistence that British violations of their natural rights had thrust them into a state of nature—meaning government was dissolved—and that thereby the soldiers were an alien, invading force they had a right to resist. ‘Savages,’ Oliver insisted ‘are in the untutored state of nature and are their own avengers, but we are under the law of society, whose laws are the avengers of wrong done unto them.’ Those who argued otherwise sought ‘even to destroy the law itself.’ On television, it is once again Adams who takes Oliver’s words out of his mouth, where he insists that the law must be followed regardless of political consequences.

Oliver made two more points assigned on television to Adams. In his charge to the jury he expressed the hope that ‘the ancient virtue and spirit of the people’ would return. The televised Adams appropriates this point when he, and the principal, lying witness that the soldiers were commanded to fire by their captain, exchange smiles after Adams remarks with pride that New Englanders had acted correctly thanks to their respect for law and truth. That spirit returns, even to the chief instigator of the incident, during the trial itself. Oliver also presents the argument that the soldiers had the right to be there at their post, but a mob had no right to assemble and attack them, another point given to Adams.

Completely left out on television also is Oliver’s powerful summary of the case, taken from his own notes, which unfortunately do not survive. He did the math: thirty-eight witnesses (including six for the prosecution!) testified there was ‘a design to attack the soldiers’; twenty-five witnesses (including 10 for the prosecution) swore to ‘ice, snowballs, stick &c. being thrown at the prisoners’; thirty attested to ‘words of provocation uttered against the prisoners, as daring them to fire, and threatening to kill them.’ Given this evidence, Oliver concluded that if ‘the people who were collected around the soldiers were an unlawful assembly, and had a design to endanger, if not to take away their lives, as seems to be evident, from blows succeeding threatening; you must, in such case acquit the prisoners.’

On television, Oliver is nearly completely erased from the trial. He is a cipher who seeks to keep the unruly colonists in line. But we ourselves must erase the ‘nearly’ when it comes to Josiah Quincy and Robert Auchmuty, as HBO viewers would never have any idea that Adams was joined by two co-counsels for the defense. Thus, they would never have any idea that Adams prevented Quincy—himself an ardent patriot—from offering the soldiers the most effective defense they could have provided. Hiller Zobel writes: ‘After hearing the testimony’ that a crowd of Bostonians armed with swords and sticks was assembling and marching toward the soldiers’ post about two hours before the riot, ‘Adams told Quincy not to put any more evidence tending to show that the expulsion of the troops from the town of Boston was a plan concerted among the inhabitants. When Quincy began to argue, Adams told him flatly that if he insisted upon any further evidence of that sort, Adams would decline being further concerned in the case.’ (pp. 259–260, 282–283 in [5]). Instead of attempting to show that the townsfolk in general had provoked the soldiers, Adams resorted to Boston’s usual tendency to blame a riot on ‘a motley rabble of saucy boys, negroes, and molattoes, Irish teagues, and out landish [foreign] 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’ (vol. 3 p. 266 in [3]). Historian John Philip Reid [6] argued that Adams in fact criticized the town forcefully in his speeches to the jury, but overlooks the fact that Adams blamed the riot precisely on people who were not inhabitants of the town and thereby sought to exonerate the Bostonians themselves.

Curiously, McCullough (pp. 65–68 in [7]) cites Zobel but does not follow his interpretation. Zobel found and cited records which showed that the court was on the verge of removing Adams for failing to defend his clients adequately. The soldiers did not, as on television, thank Adams for his defense, but rather Robert Auchmuty, a future loyalist (and another defense counsel ignored on the screen) who assisted him. Adams again threatened to quit in the trial of the soldiers (which, unlike on television, was a separate one from Captain Preston’s.) When Quincy urged ‘giving very large evidence against the inhabitants to prove a premeditated design to drive out the soldiers’ Adams responded that if he ‘would go on with such witnesses who only served to set the town in a bad light… [he] would leave the cause and not say a word more’ (pp. 119–128 in [8]).

Hence, the totality of the case—what was argued, what was not, the role of the chief justice, and not just Adams’ effort take all the credit—need to be considered. The HBO show does not even mention that after Adams initially agreed to take the soldiers’ case, the patriots were quite happy that one of their own (which the series denies he was at the time) would handle it instead of a loyalist, who might have shown the townsfolk had intended to attack and drive the soldiers out of Boston and institute a real ‘Massacre.’ Far from being ostracized for taking the soldiers’ case (pp. 220–221 in [5]), Adams was the preferred choice of the patriot leaders for the prisoners’ counsel. Adams and Quincy were two of three members of a committee the town selected after the shootings to acquaint their friends in England ‘with the Circumstances and Facts relative to the late horrid massacre.’ The patriots had won—in public opinion—the town appeared as just, the riot was blamed on the lower classes—and they got rid of the soldiers to boot. Governor Hutchinson—who was a bit of a hero himself, which the film does not show, when he plunged into the hostile crowd and tried to keep order—ordered the soldiers out of town the following day to Castle William, the island fortress that even today (symbolically) guards Boston harbor (pp. 205–209 in [5]).

Soon thereafter, John Adams was chosen as a representative of Boston in the Assembly. Adams’ elevation in the ranks of the resistance is treated on television as a sudden change of heart rather than the logical culmination of his services. For HBO, in aftermath of the trial, Adams’ cousin Samuel Adams begs him to join the cause, but he still holds off [1]. This is untrue: Adams had been involved in the resistance at least since 1765, when as representative in the Assembly from Braintree he wrote an effective protest against the Stamp Act, ‘the Braintree Resolves.’ Even earlier, in his ‘Dissertation on the Cannon [sic] and Feudal Law,’ Adams had strongly presented the idea of America as a separate society whose educated, freedom-loving people had developed a separate and superior legal system opposed to that of Europe, where illiterate and poor masses were mystified into believing their aristocratic and clerical masters had divine authority to rule them [9]. That Adams’ participation in the Massacre Trials was an act of conscience fueled only by respect for the law and justice rather than a calculated step by a veteran of resistance politics is good theater but poor history.

Rex v. Corbet—Opposing Naval Impressment

The Massacre trials were not the first time Adams exaggerated his heroism and downplayed other critical elements of a case. Two years earlier, in Marblehead, sailor Michael Corbet had killed Lieutenant Henry Panton who had attempted to press him into the British navy. At issue was a conflict of laws, as well as a conflict between legality and legitimacy. Impressment was not authorized by law, but was a common practice used to man the British navy. A 1707 Act of Parliament made impressment illegal in American waters, but another act of 1746, declaring impressments illegal only in the West Indies, in turn suggested it was legal elsewhere. Americans, especially in Massachusetts, had always resisted impressments. To prevent riots and bloodshed, the colonial government and the navy usually arranged to impress only non-Massachusetts seamen on in-bound vessels, thereby rendering the crowd on shore irrelevant and pleasing merchants, who would otherwise have a cargo to sell but insufficient sailors to get it to market [10].

Adams was Corbet’s defense attorney, but before he could present his case, Thomas Hutchinson, at the time Chief Justice of the Superior Court, moved for a recess. After four hours, the Admiralty Court that consisted of Hutchinson, Governor Francis Bernard, Admiral Samuel Hood (commander of the British naval squadron in North American waters) and eleven other colonial officials returned and pronounced Corbet not guilty by reason of self-defense (vol. 3, p. 167 in [11]).

Half a century later, Adams wrote that Hutchinson had arranged the acquittal for the specific purpose of preventing him from citing the Act of 1707 to prove that impressment in American waters was illegal (vol. 10, pp. 209, 226 in [12]). Historian Dora Mae Clark, echoing Adams’ own interpretation, agreed that ‘Hutchinson by his decisive action may have prevented impressment from becoming one of the main issues of the Revolution in Massachusetts.’ Hutchinson adjourned the court to prevent the constitutional issue of impressments from becoming a source of controversy’ (p. 193 in [13]). But the problem with the Adams/Clark interpretation is that the constitutionality of impressment had already been questioned publicly the year before in a set of instructions from the Boston town meeting to its representatives. These resolutions were drawn up by Adams himself. Hutchinson therefore must have moved the adjournment—and, presumably, the acquittal—for other reasons (pp. 130–131 in [5]).

Clearly, Hutchinson wished to do more than obtain Corbet’s release: he himself had been responsible for digging up and presenting some British statutes to Governor Bernard which insured that Corbet would be tried by an Admiralty Court. About to retire to England, Bernard, in company with Corbet’s lawyers, Adams and James Otis, was perfectly willing to permit a jury trial called for by conflicting statutes, which would have acquitted Corbet with no difficulty (pp. 113–131 in [5]). Instead, both Hutchinson and Adams sought to use Corbet as a political pawn.

Hutchinson adopted the course he did so that he, rather than a jury, would be responsible for Corbet’s release and thereby contradict the patriots’ propaganda that he was a tool of the ministry out to establish a tyranny. (He had a point—he had vigorously defended Massachusetts inhabitants against impressments since the 1740s (pp. 22–38 in [14]). At the same time, Hutchinson would prevent his antagonists from capitalizing politically on the issue. Hutchinson’s plan worked perfectly. During the trial, he proved more helpful in freeing Corbet than Adams. As during the Boston Massacre trials the following year, Adams followed a defense strategy that helped the patriot cause while risking his client’s lives. His Legal Papers demonstrate that he considered it adequate to summon witnesses proving that an impressment had indeed been attempted; then he was prepared simply to go on and cite the Act of 1707 to show that it was illegal (vol. 2, pp. 280–335 in [3]).

Adams’ case suffered from the serious flaw that unanimity as to whether that act still applied did not exist, given the fact that the subsequent act exempting the West Indies may been brought up to contradict him—naval officers in British waters acted on this theory. Adams knew this, for otherwise he would not have planned to bring up and refute the opinions of British legal authorities that the 1707 act had indeed expired (vol. 2, pp. 322–325 in [3]).

The reasoning Hutchinson gave for the acquittal made it impossible for Adams to bring up the fact that Corbet was innocent because impressments in general were illegal. Hutchinson wrote that ‘it appeared, that neither the lieutenant nor any of his superior officers were authorized to impress, by any warrant or special authority from the Lords of Admiralty’ [vol. 3, p. 167 in [11]). Even though Hutchinson personally believed Adams’ case was right, and that all colonial impressments were unconstitutional, as a letter he sent in 1757 to Massachusetts’ provincial agent in Britain shows, he realized this argument would probably not be accepted by at least some of the other members of the Admiralty Court (pp. 28–30 in [15]). Most of them, unlike the Boston-born Hutchinson who had also served as a representative of that town, were British and some, like Hood, were naval officers who would almost certainly hold such an opinion in contempt. But Hutchinson’s point that individuals could legally resist arbitrary acts by subordinate officials that were beyond their powers carried the necessary weight without bringing in question as to whether the act of 1707 was still valid in Massachusetts. Unlike the patriots, who appeared willing to sacrifice Corbet to demonstrate yet another example of unconstitutional and tyrannical British policy, Hutchinson swallowed his own constitutional scruples—as he had done in protesting the Stamp Act on practical rather than theoretical grounds—and sought to defuse the issue in the interests of obtaining the immediate practical benefit of making sure that there was no question of Corbet’s acquittal. He also hoped to obtain a practical benefit for himself: he was about to become acting governor and wanted to begin by showing the people he was a champion of both popular rights and political conciliation. In this case as in the Boston Massacre, McCullough [(p. 66 in [7]) ignores Zobel’s detailed analysis, and simply mentions Adams successfully defended the accused.

The Writs of Assistance Case

Hutchinson (and perhaps Adams too) must have appreciated the irony of the former’s argument that Corbet’s impressment was illegal because ‘neither the lieutenant nor any of his superior officers were authorized to impress, by any warrant of special authority from the Lords of Admiralty’ (vol. 3, p. 167 in [11]). Eight years earlier, in the Writs of Assistance Case of 1761, Hutchinson had ruled that the Massachusetts Superior Court could issue such general warrants to allow customs officials to search anywhere they wished—as opposed to the specific warrants now required by the United States Constitution. Hutchinson had his ruling overturned five years later by British Attorney General William DeGrey precisely because he had assumed that Massachusetts courts and judges enjoyed the same power to issue general warrants as comparable courts in Britain endowed with exchequer power, even though the colonial courts (unlike the British) were not specifically authorized to do so by Act of Parliament [15].

The case was made famous by Adams although James Otis, Jr., not he, became his surrogate as the heroic defender of popular rights. Nearly six decades later, Adams wrote that ‘Otis was a flame of fire’ and ‘then and there, the child independence was born,’ and he selected this case as the first in the train of events that led to 1776 (vol. 10, pp. 233–248 in [12]). To be sure Adams’ notes from the trial indicate that Otis made a very strong argument (pp. 139–144 in [3]). But his later claim that the case started the colonies on the road to independence is exaggerated. It arose because William Tudor, Otis’ biographer, was at work in 1817 and Adams was upset that the Virginians (who had been Presidents of the United States since his own defeat in 1800) were getting all the credit for leading the movement. In particular, William Wirt had just published a biography of Patrick Henry which Adams urged Tudor to correct. He wanted Otis’ speech to replace Henry’s ‘Cesar had his Brutus, Charles I his Cromwell, and George III may profit by his example’ to the Virginia House of Burgesses as the starting point for the change in popular consciousness (vol. 10, pp. 314–362 in [12]).

Historian Joseph Frese [15] has proven that although very few people heard Otis’ speech, it was indeed widely discussed in the colonies, especially when it was retried later in the year, and when over the next five years lawyers in other courts picked up on his argument and denied that colonial courts could issue these writs on the grounds they violated their natural rights. The persuasiveness of Otis’ arguments led them to refer the matter to England. Here, however, while the attorney general agreed colonial courts had no power to issue the writs, and thus made those who were importing illegal goods happy, his argument was based on the fact that Parliament had not specifically granted the courts this power rather than the inherent rights of British subjects. Hutchinson, by stating the Superior Court of Massachusetts had such power, was hoping to establish the colonial courts as equal to their British counterparts, an assertion of colonial—rather than natural—rights. Adams and his fellow patriots were making precisely the same argument with regard to colonial legislatures—that Parliament had no power over the colonies they did not choose to give it—and that ‘the King was in fact King of the United Kingdom, King of Massachusetts, King of Virginia, and so forth’ (nos. 6 and 7 in [16]). They were denying the claim to absolute parliamentary sovereignty put forth by Sir William Blackstone, Britain’s leading legal theorist, who expressed the Mother Country’s pride in the wake of the Seven Years’ War by declaring Parliament the supreme legislative power in what he called an Empire, a term the colonists (on those few occasions they thought about it) denied had any legal applicability [17]). Hutchinson, in asserting the power of colonial courts in the Writs of Assistance Case and in his writings, instead put forth the idea that while Parliament was technically sovereign, in practice colonial and British institutions had developed symbiotically and the former traditionally exercised comparable powers as their counterparts at home (courts tried cases, legislatures made laws, etc.) and thereby had earned de facto legitimacy by doing so. Needless to say, the loyalist Hutchinson’s legal thought has been neglected, although it bears a remarkable similarity to the British conservative Edmund Burke’s [14].

Even Adams’ point that the Writs of Assistance case first advanced natural rights to defend colonial liberties is inaccurate. Surely he had either forgotten or put aside words written in The Independent Advertiser, a newspaper founded in 1748 by his cousin Samuel Adams and other Bostonians to defend the inhabitants who in 1747 had resisted a large British naval impressment. (It was also the first anti-war newspaper in the colonies as it argued that Governor William Shirley and his political friends were profiting from what had turned into a disastrous war against the French in Canada.) The Advertiser criticized those who dubbed the protestors a ‘low liv’d mob’ and instead claimed they were an ‘assembly of the people’ defending their natural rights to life, liberty, and property, given the consequences of impressments into the navy. (The town of Boston and government of Massachusetts were trying to blame some ‘low lived mob’ for the riot as Britain might not take kindly to knowing nearly the whole town was involved.) The 1747/1748 incident is an even better precedent for the revolution, for here people did not just assert their rights in court as did the Boston merchants and their attorney Otis in the Writs of Assistance case, but they took to the streets. On the other hand, no organized political movement followed the impressment riot: the Independent Advertiser folded after about a year and a half, while Governor Shirley’s faction (led by Thomas Hutchinson, his right-hand man) retained political control of the province [10]. Once again, McCullough (p. 62 in [7]). simply repeated Adams’ point about the importance of the speech without analyzing it. Here, as in the above two cases, part of the trouble is that McCullough moves very quickly (in some 70 pages) through Adams’ career before 1776.

Adams’ Place in History

Adams’ interpretations of the three cases in which he was involved between 1761 and 1770 have been followed by historians, with few exceptions. It can greatly increase the historical reputation of a major participant in important events to tell his story first, for if it is well told it will almost certainly become the standard interpretation. For instance, Winston Churchill’s magnificent history of the Second World War conveniently downplays two items that are known, for the most part, only by academic scholars: that the British conservative party was for the most part fairly pro-Hitler and willing to make a deal that would have turned their country into something like Vichy France, and that Britain’s Far Eastern disasters early in the war occurred because Churchill stripped their defenses to focus on securing the homeland (probably necessary, but still important to be told). Adams, like Churchill, wrote the history he wanted people to remember, and almost without exception, they have.

We should not hold Adams’ early legal improprieties against him. After all, we do not remember the Martin Luther King, Jr. who plagiarized a good deal of his doctoral thesis [18], or (not very much) the Churchill who engineered the disastrous World War I campaign that led to Gallipoli, or liberal Supreme Court Justice Hugo Black’s early days as a member of the Ku Klux Klan. Adams is finally getting his well-deserved due.

That he is results from an expansion in the manner in which US history is studied. The nearly unanimous glorification by historians and the public of Thomas Jefferson and Andrew Jackson as great democrats came to an end in the 1960s, when it became widely recognized that ‘the people’ contained women, African- and Native-Americans as well as the white men for whom Jefferson and Jackson exclusively spoke. As Watergate established a new low in public morals, Adams’ integrity throughout nearly all of his career (fragments of the interpretation advanced in this paper have only appeared in passing in Zobel’s and my own earlier work) became increasingly appealing. David McCullough’s biography was originally intended to be a history of the Adams/Jefferson friendship, but like nearly all serious academic historians of the last quarter-century who have studied the early American Republic, McCullough found himself liking Adams much more than Jefferson, whose behavior contrasted greatly with the beautiful sentiments he was so fond of penning. McCullough’s book is excellent, if laudatory, and gets much better as he moves past Adams’ early career: my own article on Adams in American National Biography (Online) makes no claim to excellence, but it is also laudatory.

Hiller Zobel: Rewriting Adams’ Legal Career

The background of Judge Hiller Zobel, who has challenged Adams’ mythmaking, is especially interesting. Zobel began to work on Adams’ legal papers in the 1950s as a law student at Harvard under the direction of his professor Mark DeWolfe Howe: eventually, with L. Kinvin Wroth, they edited the three-volume series. Like many people, he was unnerved by the violence of the 1960s. In his book of 1970, he is less than sympathetic to the Boston crowd, while displaying respect for the provincial officials who tried to keep the populace from bringing the wrath of Britain upon them.

What Zobel did not know when he wrote The Boston Massacre is that he would later be called on to decide a remarkably similar case. In 1997, he was faced as an appeals judge of the Massachusetts Superior Court with the conviction of Louise Woodward for second-degree murder. Woodward was the now-famous ‘nanny’ who, unaware of a pre-existing medical problem, killed an infant by shaking him too vigorously. Zobel reduced the sentence to involuntary manslaughter and freed Woodward.

In the memorandum prefacing his decision—also famous as the first ever to be simultaneously released to the press and over the internet—Zobel explicitly compared his unpopular ruling to the Massacre Trials. He began: ‘The law, John Adams told a Massachusetts jury while defending British citizens on trial for murder, is inflexible, inexorable, and deaf: inexorable to the cries of the defendant; ‘deaf as an adder to the clamours of the populace.’ His words ring true, 227 years later. Elected officials may consider popular urging and sway to public opinion polls. Judges must follow their oaths and do their duty, heedless of editorials, letters, telegrams, picketers, threats, petitions, panelists, and talk shows. In this country, we do not administer justice by plebiscite. A judge, in short, is a public servant who must follow his conscience, whether or not he counters the manifest wishes of those he serves; whether or not his decision seems a surrender to the prevalent demands’ [19].

Zobel then went on to reduce the charges and release Woodward with credit for time served using the same reasoning the Boston jury lowered the charges against the soldiers from murder to manslaughter: ‘Viewing the evidence broadly, as I am permitted to do, I believe that the circumstances in which Defendant acted were characterized by confusion, inexperience, frustration, immaturity and some anger, but not malice (in the legal sense) supporting a conviction for second degree murder. Frustrated by her inability to quiet the crying child [read Boston mob] she was ‘a little rough with him,’ under circumstances where another, perhaps wiser, person would have sought to restrain the physical impulse. The roughness was sufficient to start (or re-start) a bleeding [read conflict] that escalated fatally’ [19].

Despite his strictures on Adams’ conduct in the Massacre Trials, Zobel has also fallen under his spell. Those who have observed his conduct on the bench speak in words reminiscent of the traditional praise of Adams: ‘Judge Zobel was fiercely independent,’ says Harvey Silverglate, Woodward’s defense lawyer. ‘He had the courage of his convictions, too. When he was convinced he was right, he stuck to his guns.’ ‘Zobel could be a cantankerous fellow, and he often was,’ says Silverglate, ‘But I have great respect for him, even if he sometimes was impossible and frustrating to deal with’. Zobel’s reputation as tough but fair has led to yet another legal incarnation. Translating judicial meaning-making to the screen, Hiller Zobel became the model for Judge Zoe Hiller on ‘The Practice,’ a Boston-based television series whose creator, David Kelley, was a former lawyer who had practiced before Zobel [20].

Further, when he wrote an article for American Heritage [21] ‘Why We Hate Judges,’ Zobel apparently was overwhelmed by Adams’ reputation and resurrected the image of Adams as the persecuted righteous man he had questioned in his own book three decades earlier. ‘Criminal cases also provoke judge-targeting partisanship. In the abstract, we all abhor crime. Everyone wants proper punishment for the guilty, just as everybody expects that a fair trial will precede the determination of guilt. In reality, however, we tend to blur the distinction between accusation and proof, between passion and rationality. This is no modern phenomenon. Consider the Salem witch trials of 1692, the execution of Quakers in seventeenth-century Boston, and the obloquy in which his contemporaries drenched John Adams for defending the British soldiers in the aftermath of the Boston Massacre.’


Whether it is important for scholars to expose the way John Adams shaped the meaning of three trials in the 1770s to further his own reputation and provide a satisfactory interpretation of the American Revolution to those who admire it is probably a moot question. In fact, it may be best that we remember Adams as McCullough wants us to, standing high above the audiences, contexts, and complexities that facilitated the verdicts he attributed to himself (or, in the Writs case, Otis.) We need heroes, and Adams’ willingness later in life to stand for what was right certainly deserves praise. It is impossible to praise too highly his treaty negotiations with Britain and France in the early 1780s, or his restraint in 1799, when he refused to embark on a larger war with France or suppress civil liberties at home as the Federalist party advised him [22].

It is therefore fitting that McCullough is working with the Adams family and federal government to erect a monument in the District of Columbia not only to Adams, who believed he would never be honored in that way, but to the Adams family, among whom the most notable are other independent-minded figures cut from the same cloth including his wife Abigail, his son John Quincy, and grandson Charles Francis (Union Minister to Britain during the Civil War). John Adams believed that posterity would interpret the American Revolution as ‘one continued lie from one end to the other. The essence of the whole will be that Dr. Franklin’s electric rod smote the earth and out sprang George Washington… Then Franklin electrified him [and]… the two conducted all the policy, negotiations, legislation, and war’ (p. 55 in [23]). Perhaps that is changing, and Adams will finally enjoy a memorial—albeit shared with his remarkable family—in the sun, or rather on the Mall that connects the Capitol and the White House, previously granted only to four individuals: Washington, Lincoln, Franklin D. Roosevelt, and Thomas Jefferson.

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© Springer Science+Business Media B.V. 2009