Monday, May 9, 2011

Crimes to Remember in History

I have just come from seeing The Conspirator, a docudrama about the judicial aftermath of the assassination of President Lincoln by Confederate zealot John Wilkes Booth. Fear and anxiety grip the nation. Secretary of War Stanton jettisons judicial process in the belief that any sign of weakness (read “fairness”) in the trial of those accused of conspiring with Booth will incite other acts of “terrorism.” In the frenzy Mary Surratt was condemned to death despite having all her rights guaranteed in the Constitution disregarded. She was reluctantly defended by Frederick Aiken, a rookie lawyer and Union war hero, who came to see what terrible injustices were being done to innocent people.

The assassination of President Lincoln is a crime to remember, but so is the crime against Mary Surratt.

Similar crimes were almost committed over a hundred years earlier, and would have been, had it not been for another brave lawyer who believed in the Constitution. As I watched The Conspirator I couldn’t get this story out of my mind.

The year was 1769 and the place was Boston in the Massachusetts Bay Colony.(1) Boston was full of red-coated British troops – sent the year before to keep order as another round of taxes was imposed by the English Parliament, this time on paper, tea, paint, and glass. The atmosphere in the city was volatile. Incidents of violence between the townspeople and the soldiers, the hated “lobsterbacks,” began to erupt.

Four American sailors were arrested and charged with killing a British naval officer who had boarded their ship with a gang to “kidnap” them into the British navy. The sailors resisted and the British officer was killed. John, like other American colonists, was outraged by the British policy – called “impressments” -- and eagerly agreed to defend the sailors. The sailors were acquitted and John became a hero to the people of Boston.

A year later on March 5, 1770, the streets of Boston were covered in a foot of snow. On the icy, cobbled square at Province House near the harbor, a lone British sentry stood guard. He was taunted by a small band of men and boys. Just after nine o’clock a church bell began to toll, the alarm for fire, and almost at once crowds poured into the streets, many brandishing sticks and clubs, not buckets. Eight British soldiers with loaded muskets and fixed bayonets soon reinforced the lone sentry. Shouts and curses were exchanged. Then the crowd began to pelt the despised redcoats with snowballs, chunks of ice, oyster shells, and stones. In the chaos, the soldiers suddenly opened fire, killing five of the colonists. Patriots Samuel Adams and Paul Revere portrayed the incident as the slaughter of innocents, an example of British tyranny. It came to be known as the “Boston Massacre.”

Now thirty-four years old, John was asked to defend the British soldiers and their captain. Hesitating no longer than it had taken him to agree to defend the American sailors a year before, he said “yes.” He said that no one in a free country should be denied the right to counsel and a fair trial. John knew that this would not be a popular decision, that it could ruin his reputation, his law practice and, because feelings were running so high in Boston, possibly endangering the lives of his wife Abigail and their children. The rumor spread that he had been bribed to take the case, when in fact eighteen guineas was the only payment he would ever receive. With the political climate as it was in Boston, John was scorned as few ever experience in their lifetimes.

There were actually two trials, one for the captain and one for the soldiers. In the first, John argued that there was no proof that the captain had given an order to fire, and the captain was found not guilty. The city was enraged.

The second trial began immediately afterward. In defense of the soldiers John argued that the tragedy was not brought on by the soldiers, but by the mob. And the mob, he wanted it understood, was the result of bad British policy of quartering troops in the city on the pretext of keeping the peace. One of the soldiers, he pointed out, had been knocked down and then hit again when he tried to get up. John argued that the soldiers should be acquitted because they acted only in self-defense. Without clear and compelling evidence, John argued, it was better that guilty persons escape unpunished than that one innocent person should be punished. This is the way he put it in his summation to the jury: “The reason is because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished.”

The jury was out for two and a half hours. They came back with verdicts that acquitted six of the soldiers and found two guilty of manslaughter, the punishment for which was branding their thumbs. John was vilified in the press and lost over half of his practice. He soon regained the respect of the citizens of Boston and beyond. In fact, John was one of a few brave people who made possible the Declaration of Independence and the establishment of the United States.

We are at the end of a decade of a “War on Terror” deemed by many to be such a threat that due process guarantees in the Constitution should be set aside. Do you believe in Adams’ summation to the jury? I believe that equivocation on this point betrays both the Constitution and our national ideals.

I’d be interested in know what you think.

- Milo

(1) This account is based on David McCullough’s, John Adams (New York: Simon & Schuster, 2001) pp. 65-68.

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