and defence of his country.* He had heard that he put not off the citizen, when he entered the camp; but because he was a citizen and wished to continue so, he made himself for a while a soldier. How stinging was it to be stigmatized as the instrument of tyranny and oppression? How exasperating to be viewed as aiding to enthrall his country? He felt his heart glow with an ardor which he took for a love of liberty and his country, and had formed to himself no design fatal to its privileges. He recollected, no doubt, that he had heretofore exposed himself for its service. He had bared his bosom in defence of his native soil, and as yet felt the smart of wounds received in conflict for his king and country. Could that spirit which had braved the shafts of foreign battle brook the keener wounds of civil contest? The arrows which now pierced him, pierced as deep, and rankled more, than those of former times. Is it rational to imagine much harmony could long exist? We must take human nature as we find it, and not vainly imagine that all things are to become new at such a crisis. There is an order of men in every commonwealth who never reason, but always act from feeling. That their rights and liberties were filched away, one after another, they had often been told. They had been taught by those whom they believed, that the axe was now laid to the root of the tree and one more stroke completed its fall. It was in vain to expect to silence or subdue these emotions by reasons, soothings, or dangers. A belief, that nothing could be worse than the calamities which seemed inevitable, had extended itself on all sides, and arguments drawn from such sources had little influence. Each day gave rise to new occurrences, which increased animosities. Heart-burnings, heats, and bickerings became more and more extensive. Reciprocal insults soured the temper, mutual injuries embittered the passions. Can we wonder that, when every thing tended to some important action, the period so soon arrived? Will not our wonder be increased to find the crisis no sooner taking place, when so many circumstances united to hasten its approach? To use an illusion somewhat homely, may we not wonder that the acid and the alcali did not sooner ferment? A thought here imperceptibly forces itself on our minds, and we are led to be astonished that persons so discordant in opinion, so opposite in views, attachments and connections, should be stationed together. But here, gentlemen, we must stop. If we pursue this inquiry at this time, and in this place, we shall be in danger of doing great injustice. We shall get beyond our limits. The right of quartering troops in this province must be discussed at a different tribunal. The constitutional legality, the propriety, the expediency of their appointment are See Blackstone's Commentaries, vol. 1, p. 407. questions of State, not to be determined, nor even agitated by us in this court. It is enough for us if the law takes notice of them when thus stationed; if it warrants their continuance; if it protects them in their quarters. They were sent here by that authority which our laws know; they were quartered here, as I take it, agreeable to an act of the British Parliament; they were ordered here by your sovereign, and mine. I expect, hereafter, to be more particular on this head. Let me here take a method very common with another order of men. Let me remind you of what is not your duty. Gentlemen, great pains have been taken by different men, with very different views, to involve the character, the conduct, and reputation of the town of Boston in the present issue. Boston, and its inhabitants, have no more to do with this cause than you or any other members of the community. You are, therefore, by no means to blend two things, so essentially different as the guilt or innocence of this town, and the prisoners, together. The inhabitants of Boston, by no rules of law, justice, or common sense, can be supposed answerable for the unjustifiable conduct of a few individuals, hastily assembled in the streets. Every populous city, in like circumstances, would be liable to similar commotions, if not worse. No rational or honest man will form any worse opinion of this metropolis, for the transactions of that melancholy night. Who can, who will, unnecessarily interest themselves to justify the rude behavior of a mixed and ungovernable multitude? May I not appeal to you, and all who have heard this trial, thus far, that things already wear a different aspect from what we have been heretofore taught to expect? Had any one told you some weeks ago, that the evidence on the crown side would have appeared in its present light, would you have believed it? Can any one think it his duty to espouse the part acted by those assembled in King street? I think not; but lest my opinion should not have any weight, let me remind you of an author, whom I trust and wish in the hands of all of you. One whom I trust you will credit. I am sure you ought to love and revere him. I wish his sentiments were engraven in indelible characters on your heart. You will not suspect him of being unfriendly to liberty, if this cause and its event must, at all hazards, be held as interwoven with a matter so foreign to it. I allude to the third letter of the Farmer of Pennsylvania,* to his countrymen. "The cause of liberty," says that great and good writer, "is a cause of too much dignity, to be sullied by turbulence and tumult. It ought to be maintained in a manner suitable to her nature. Those who engage in it should breathe a sedate, yet fervent spirit,-animating them to actions of prudence, justice, modesty, bravery, humanity, and magnanimity." What has then transpired on this trial, savor * John Dickinson, see page 278. ing of any these virtues? Was it justice, or humanity to attack, insult, ridicule, and abuse a single sentinel on his post? Was it either modest, brave, or magnanimous to rush upon the points of fixed bayonets, and trifle, vapor, and provoke at the very mouths of loaded muskets? It may be brutal rage or wanton rashness, but not surely any true magnanimity. our present decisions will be scanned perhaps through all Europe. We must not forget that we ourselves will have a reflective hour-an hour, in which we shall view things through a different medium-when the pulse will no longer beat with the tumults of the day-when the conscious pang of having betrayed truth, justice, and integrity, shall bite like a serpent and sting like an adder. "I hope," says the same eminent writer, "my dear countrymen, that you will, in every Consider, gentlemen, the danger which you colony, be upon your guard against those who, and all of us are in, of being led away by our at any time, endeavor to stir you up under pre-affections and attachments. We have seen the tences of patriotism, to any measures disrespect- blood of our fellow men flowing in the streets. ful to your sovereign, and our mother country." We have been told that this blood was wrongBy this, it should seem as though the Farmer fully shed. That is now the point in issue. never expected any period would arrive, when But let it be borne deep upon our minds, that such measures would be warrantable. Now, the prisoners are to be condemned by the eviwhat more disrespectful to our parent country, dence here in court produced against them, and than to treat with contempt a body of men by nothing else. Matters heard or seen abroad stationed, most certainly, by the consent of her are to have no weight: in general they undersupreme legislative, the Parliament of Britain? mine the pillars of justice and truth. It has What more disrespectful of our common sove-been our misfortune, that a system of evidence reign than to assume the sword of justice, and become the avengers of either public or private wrongs? Though the soldiers, who appeared in the earlier part of the evening in Cornhill, acted like barbarians and savages, they had now retired and were confined in their barracks; what though an impertinent boy had received unjustifiable correction from the sentinel, the boy and the persons in Cornhill must have recourse only to the law for their redress. Courts of law are styled "vindices injuriarum," the avengers of injuries, and none others are to assume this prerogative. The law erects itself as the supreme dernier resort in all complaints of wrongs; and nothing could more essentially sap our most important interests than any countenance to such dangerous encroachments on the domains of municipal justice. has appeared in the world against us. It is not our business to blame any one for this. It is our misfortune, I say. It should be remembered that we were not present to cross-examine: and the danger which results from having this publication in the hands of those who are to pass upon our lives, ought to be guarded against. We say we are innocent by our plea, and are not to be denounced guilty upon a new species of evidence unknown in the English system of criminal law. But as though a series of ex parte evidence was not enough, all the colors of the canvas have been touched in order to freshen the wounds, and by a transport of imagination, we are made present at the scene of action. The prints exhibited in our houses have added wings to fancy, and in the fervor of our zeal, reason is But, finally, to finish with the justly celebra- in hazard of being lost. For, as was elegantly ted Farmer-"hot, rash, disorderly proceedings expressed by a learned gentleman at the late injure the reputation of a people as to wisdom, trial, "The passions of man, nay, his very imvalor, and virtue, without procuring the least aginations are contagious." The pomp of fubenefit." Thus have you the sense of this great neral, the horrors of death, have been so deauthority with us. And let me ask all those lineated, as to give a spring to our ideas, and who have thought the cause of their country inspire a glow incompatible with sound, delibconnected with the agents of the assembly in erative judgment. In this situation every pasKing street, whether the proceedings of that sion has alternately been predominant. They unhappy night were hot, rash, or disorderly? have, each in its turn, subsided in degree, and If they were, have they not, in the opinion of they have sometimes given place to desponthis great friend of liberty, injured our reputa- dence, grief, and sorrow. How careful should tion as to wisdom, valor, and virtue, and that we be that we do not mistake the impressions too, without procuring the least benefit? Who of gloom and melancholy for the dictates of then would sacrifice his judgment and his integ-reason and truth. How careful, lest borne rity to vindicate such proceedings? away by a torrent of passion, we make shipwreck of conscience. To what purposes the soldiers were sent; whether it was a step warranted by sound policy or not, we shall not inquire; we are to consider the troops not as the instruments for wresting our rights, but as fellow-citizens, who being to be tried by a law, extending to every individual, claim a part in its benefits, its privileges, its mercy. We must steel ourselves against passions, which contaminate the fountains of justice. We ought to recollect that Perhaps you may be told, gentlemen, as I remember it was said at the late trial, that passions were like the flux and reflux of the sea-the highest tides always producing the lowest ebbs. But let it be noticed that the tide in our political ocean has yet never turned; certainly the current has never set towards the opposite quarter. However similes may illustrate, they never go for proof. Though I be But lieve that it will be found, that if the tide of | lanes near the guard-house, or, as Col. Marshall resentment has not risen of late, it has been because it has reached the summit. In the same mode of phraseology, if so homely an expression may be used, perhaps, as the seamen say, it has been high-water slack; but I am satisfied the current has not yet altered its course in favor of the prisoners at the bar. Many things yet exist, sufficient to keep alive the glow of indignation. I have aimed at securing you against the catching flame. I have endeavored to discharge my duty in this respect. What success will follow these endeavors, depends on you, gentlemen. If being told of your danger will not produce caution, nothing will. If you are determined in opinion, it is in vain to say more; but if you are zealous inquirers after truth, if you are willing to hear with impartiality-to examine and judge for yourselves-enough has been said to apprise you of those avenues, at which the enemies of truth and justice are most likely to enter, and most easily to beset you. Gentlemen of the jury: I shall now for argument's sake only, take it for granted, that the fact of killing had been proved upon all the prisoners: you are sensible this is not really true; for as to this point there are several of the prisoners, upon whom this fact is not fixed. But as I shall hereafter take occasion to consider the distinct case of each prisoner, as he is affected by the evidence, I at present choose to avoid confusion, and apply myself to the full strength of the crown; and, upon a supposition that all the prisoners were answerable for the act of any one, see how the prisoners are chargeable by the evidence already offered, with the crime of murder; or rather endeavor to point out to you those facts, appearing by the evidence on the crown side, which will amount in law to a justification, an excuse, or, at least, an extenuation of their offence. For we say, that give the evidence for the king its full scope and force, and our offence is reduced at least to manslaughter; in which case we claim the privilege of that law, by the sentence of which, if guilty, we must suffer the pains of death-a privilege we can never again claim-a privilege that by no means implies exemption from all punishment: the offender becomes liable to imprisonment for a year-incurs a forfeiture of all goods and chattels; and, till he receives the judgments of law, is to all intents a felon, subject to all disabilities and other incidents of a felon. Without taking up time in attending and discussing points, no way pertinent to the present issue, without a tedious recapitulation of circumstances, with which, I take it, we have no more concern than either of you gentlemen; I say, passing over all these matters as foreign to this trial, let us state evidence appearing even from the crown witnesses. These witnesses, whose testimony I shall not consider in the order they were produced, inform you that, in the former part of the evening a number of soldiers rushed from some of the supposes, from the guard-house itself. some circumstances he relates as to their dress, may render it doubtful whether he is right in this point. Soldiers on guard have a peculiar regimental habiliment, which they never dare put off; and, if I am rightly instructed, no soldiers but those on duty, are suffered to be at the guard-house at those hours. However, thus much is certain, that being dressed in short jackets or working coats, proves them not to be of that particular party who had mounted guard at this time. The cry was "where are they-damn them, where are they!" They brandish their weapons and proceed to Cornhill. What those weapons were the witnesses say differently. But it should be mentioned, as we go along, that the soldiers of the twenty-ninth are never allowed to wear swords or cutlasses. As these soldiers pass down Cornhill, they assault, abuse and attack people. The soldiers in their turn are beaten. One has his wrist broken-and the general cry soon after was"they are beaten,-they are drove into the barracks!" Some part of this conduct may hereafter be accounted for, and other parts of it may stand in a very different light. But we are ready to admit that their behavior was altogether unjustifiable for we don't look upon ourselves as any way concerned in their conduct-conduct, which, if some of the witnesses are not mistaken, seems more like that of madmen and barbarians, than like reasonable creatures. If they acted like savages or ruffians, what is that to us? This evidence, therefore, not applying to this case, we are injured if it has any influence to our prejudice. Being foreign to the issue, we humbly conceive it ought never to have been introduced:-or being introduced, it ought to be rejected in our determining the guilt or innocence of the prisoners. Mr. Quincy then proceeded to a minute detail of the Crown evidence, pointing out, as he went along, those circumstances that favored the prisoners; and commenting chiefly on those facts which served to refute or invalidate the positions of the Counsel for the Crown; by showing an assault and attack upon the sentry. He then reviewed those parts of the evidence which had a tendency either to prove insult, abuse, or assault and battery of the party; he pointed out the various quarters from which all these, but especially the assault and battery proceeded; and from the facts, time and circumstances testified, inferred the attack to have been on various sides at the same instant. From the noises, violence, and rattling of the guns, he drew other consequences useful to his cause. From the inattention of some and the forgetfulness of others; from | parte testimonies; individuals as well as societhe tumult, fright, confusion and passions in the scene, he made such deductions as might account for the contrariety and seeming incompatibility of the evidence. He next very particularly stated the evidence for the prisoners, as he had been instructed, it would turn out on examination; and as he opened his evidence, he carefully remarked its conformity to and connection with, many parts of that already exhibited by the Counsel for the King. On the conclusion of the evidence for the prisoners, Mr. Quincy continued: MAY IT PLEASE YOUR HONORS, AND YOU GENTLEMEN OF THE JURY: We have at length gone through the evidence in behalf of the prisoners. The witnesses have now placed before you that state of facts, from which results our defence. The examination has been so lengthy, that I am afraid some painful sensations arise, when you find that you are now to sit and hear the remarks of counsel. But you should reflect that no more indulgence is shown to the prisoners now on trial, than has ever been shown in all capital causes: the trial of one man has often taken up several days;-when you consider, therefore, that there are eight lives in issue, the importance of the trial will show the necessity of its length. To each of the prisoners different evidence applies, and each of them draw their defence from different quarters. I stated to you, gentlemen, your duty in opening this cause do not forget the discharge of it. You are paying a debt you owe the community for your own protection and safety: by the same mode of trial are your own rights to receive a determination; and in your turn a time may come, when you will expect and claim a similar return from some other jury of your fellow subjects. In opening, I pointed out the dangers to which you were exposed; I trust your own recollection will now preclude a recapitulation of them. The reasons of what I then said, I trust, have, in some measure, appeared; the propriety of some of those observations has been corroborated by succeeding evidence; and you must have traced yourselves, some of those consequences, turning out in evidence, which have had intimate relation, if not their origin, with some or all of those opinions, notions, sentiments, or passions, (call them what you will,) which I took occasion to observe, as clues, aids, and leading-strings, in our intended examination and decision. How much need was there for my desire, that you should suspend your judgment till the witnesses were all examined? How different is the complexion of the cause? Will not all this serve to show every honest man the little truth to be attained in partial hearings? We have often seen communities complain of ex | ties of men are equally susceptible of injuries of this kind: this trial ought to have another effect; it should serve to convince us all of the impropriety, nay, injustice, of giving a latitude in conversation upon topics likely to come under a judicial decision; the criminality of this conduct is certainly enhanced, when such loose sallies and discourses are so prevalent as to be likely to touch the life of a citizen; moreover, there is so little certainty to be obtained by such kind of methods, I wonder we so often how great was the prepossession against us? find them practised. In the present case, And I appeal to you, gentlemen, what cause there now is to alter our sentiments? Will any sober, prudent man, countenance the proceedings of the people in King street,-can any one justify their conduct,-is there any one man or any body of men, who are interested to espouse and support their conduct? Surely, no! But our inquiry must be confined to the legality of their conduct, and here can be no difficulty. It was certainly illegal, unless many witnesses are directly perjured: witnesses, who have no apparent interest to falsify,-witnesses who have given their testitimony with candor and accuracy, witnesses, whose credibility stands untouched,-whose credibility the Counsel for the King do not pretend to impeach, or hint a suggestion to their disadvantage. I say, gentlemen, by the standard of the law are we to judge the actions of the people who were the assailants, and those who were the assailed and then on duty. And here, gentlemen, the rule we formerly laid down, takes place. To the facts, gentlemen, apply yourselves. Consider them as testified; weigh the credibility of the witnesses-balance their testimony-compare the several parts of it-see the amount of it;-and then according to your oath-"make true deliverance according to your evidence." That is, gentlemen, having settled the facts, bring them truly to the standard of the law; the king's judges, who are acquainted with it, who are presumed best to know it, will then inspect this great standard of right and wrong, truth and justice; and they are to determine the degree of guilt to which the fact rises. But before we come to those divisions of inquiry, under which I intend to consider the evidence, let me once more carefully distinguish between the transactions in Cornhill and those by the custom-house. The conduct of the soldiers in Cornhill may well be supposed to have exasperated the minds of all who beheld their behavior. Their actions accumulated guilt as it flew-at least, we may well suppose, the incensed people who related them, added new colors to the scene. The flame of resentment imperceptibly enkindles, and a common acquaintance with human nature will show, that it is no extravagant supposition to imagine many a moderate man might at such a season, with such sentiments, which I have more than once noticed,―hearing such relations and complaints; I say, do I injure any one, in supposing that, under all these circumstances a very moderate person, who in ordinary matters acted with singular discretion, should now be drawn imperceptibly away, or rather transported into measures, which in a future moment he would condemn and lament? What more natural supposition than to suppose many an honest mind might at this time fluctuate thus? The soldiers are here we wish them away; we did not send for them; they have cut and wounded the peaceable inhabitants, and it may be my turn next. At this instant of time he has a fresh detail of injuries: resentment redoubles every successive moment-huzza! for the main guard! we are in a moment before the custom-house. No time is given for recollection. We find from the king's evidence and from our own, the cry was, "Here is a soldier!" not here is the soldier who has injured us-here is the fellow who wounded the man in Cornhill. No, the reasoning, or rather ferment, seems to be, the soldiers have committed an outrage-we have an equal right to inflict punishment or rather revenge, which they had to make an assault. They said right, but never considered that those soldiers had no right at all. These are sentiments natural enough to persons in this state of mind: we can easily suppose even good men thinking and acting thus. Very similar to this is the force of Dr. Hiron's testimony, and some others. But our inquiry is, what says the law? We must calmly inquire whether this, or any thing like it, is countenanced by the law. What is natural to the man-what are his feelings are one thing: what is the duty of the citizen, is quite another. Reason must resume her seat, and then we shall hear and obey the voice of the law. The law indulges no man in being his own avenger. Early in the history of jurisprudence we find the sword taken from the party injured and put into the hands of the magistrate. Were not this the case, punishment would know no bounds in extent or duration. Besides, it saps the very root of distributive justice, when any individual invades the prerogative of law, and snatches from the civil magistrate the balance and the rod. How much more are the pillars of security shaken, when a mixed body, assembled as those in King street, assume the province of justice, and invade the rights of the citizen? For it must not be forgot that the soldier is a citizen, equally entitled with us all to protection and security. Hence all are alike obliged to pay obedience to the law; for the price of this protection is that of obedience. Let it not be apprehended that I am advancing a doctrine that a soldier may attack an inhabitant, and he not allowed to defend himself. No, gentlemen, if a soldier rush violently through the street and presents a weapon of death in a striking posture, no doubt the person assailed may defend himself, even to taking the life of the assailant. Revenge and a sense of self-preservation, instantly take possession of the person thus attacked; and the law goes not upon the absurd supposition that a person can in these circumstances unman himself. Hence we find a husband, taking his wife in the act of adultery, instantly seizes a deadly weapon and slays the adulterer. It is not murder. Nay, a fillip upon the nose or forehead, in anger, is supposed by the law to be sufficient provocation to reduce killing to manslaughter. It is, therefore, upon principles like these-principles upon which those who now bear the hardest against us, at other times so much depend; it is, I say, upon the right of self-defence and self-preservation, we rely for our acquittal. Here again, it should be kept in view, that whenever a party injuring has escaped by flight, and time sufficient for the passions to cool, in judgment of law, hath elapsed, however great the injury, the injured party must have recourse to law for his redress. Such is the wisdom of the law; of that law, than which we are none of us to presume ourselves wiser; of that law which is found in the experience of ages, and which in condescension to the infirmities of flesh and blood (but to nothing else) extenuates the offence. For "no man," says the learned judge Foster, "under the protection of the law is to be the avenger of his own wrongs. If they are of such a nature for which the laws of society will give him an adequate remedy, thither he ought to resort. But be they of what nature soever, he ought to bear his lot with patience, and remember that vengeance belongeth to the Most High."* Now, gentlemen, those whoever they were, who committed the outrage in Cornhill, had absconded; the soldiers, who are supposed to have done them, were confined in their barracks. People were repeatedly told this, and assured by the military officers, that they should not go unpunished. But what followed? Are all present appeased? We are constrained by the force of the evidence, to affirm they were not. But to get regular and right ideas, we must consider all the commotions of the season, and endeavor to come at truth by analyzing the evidence and arranging it under distinct heads of inquiry. After a further consideration of the evidence in the case, Mr. Quincy remarked: MAY IT PLEASE YOUR HONORS AND YOU GENTLEMEN OF THE JURY: After having thus gone through the evidence, and considered it as applicatory to all and every of the prisoners, the next matter in order seems to be the consideration of the law pertinent upon this evidence. And here, gentlemen, let me again inform you, that the law which is to pass upon these prisoners, is a law adapting itself to the human species, with all their feelings, passions and * Crown Law, 296. |