Keeping, therefore, this full in view, let us take once more a very brief and cursory survey of matters supported by the evidence. And here let me ask sober reason—What language more opprobrious? What actions more exasperating, than those used on this occasion? Words, I am sensible, are no justification of blows, but they serve as the grand clues to discover the temper and the designs of the agents; they serve also to give us light in discerning the apprehensions and thoughts of those who are the objects of abuse.

"You lobster," "you bloody-back," "you coward," and "you dastard," are but some of the expressions proved. What words more galling? What more cutting and provoking to a soldier? To be reminded of the color of his garb, by which he was distinguished from the rest of his fellow-citizens; to be compared to the most despicable animal that crawls upon the earth, was touching indeed a tender point. To be stigmatized with having smarted under the lash, at the halbert, to be twitted with so infamous an ignominy; which was either wholly undeserved, or a grievance which should never have been repeated;-I say to call up and awaken sensations of this kind, must sting even to madness. But accouple these words with the succeeding actions,-"You dastard," "you coward! A soldier and a coward! This was touching (with a witness) "the point of honor, and the pride of virtue." But while these are as yet fomenting the passions, and swelling the bosom, the attack is made; and probably the latter words were reiterated at the onset; at least, were yet sounding in the ear. Gentlemen of the jury, for heaven's sake, let us put ourselves in the same situation! Would you not spurn at that spiritless institution of society, which tells you to be a subject at the expense of your manhood!

But does the soldier step out of his ranks to seek his revenge? Not a witness pretends it. Did not the people repeatedly come within the points of their bayonets, and strike on the muzzles of the guns? You have heard the wit

my post, I will fire." "By God, I will fire!" "Keep off!" These were words likely to produce reflection and procure peace. But had the words on the other hand a similar tendency? Consider the temper prevalent among all parties at this time. Consider the then situation of the soldiery; and come to the heat and pressure of the action. The materials are laid, the spark is raised, the fire enkindles, the flame rages, the understanding is in wild disorder, all prudence and true wisdom are utterly consumed. Does common sense, does the law expect impossibilities? Here, to expect equanimity of temper, would be as irrational as to expect discretion in a madman. But was any thing done on the part of the assailants, similar to the conduct, warnings, and declarations of the prisoners? Answer, for yourselves, gentlemen! The words reiterated all around, stabbed to the heart;-the actions of the assailants tended to a worse end; to awaken every passion of which the human breast is susceptible; fear, anger, pride, resentment, revenge, alternately take possession of the whole man. expect, under these circumstances, that such words would assuage the tempest, that such actions would allay the flames;-you might, as rationally, expect the inundations of a torrent would suppress a deluge; or rather that the flames of Etna would extinguish a conflagration!

Το

Prepare, gentlemen of the jury, now to attend to that species of law, which will adapt itself to this trial, with all its singular and aggravating circumstances. A law full of benignity, full of compassion, replete with mercy.

And here, gentlemen, I must, agreeable to the method we formerly adopted, first tell you by what law the prisoners are not to be tried, or condemned. And they most certainly are not to be tried by the Mosaic law: a law, we take it, peculiarly designed for the government of a peculiar nation, who being in a great measure under a theocratical form of government, its institutions cannot, with any propriety, be adduced for our regulation in these days. It is with pain, therefore, I have observed any endeavor to mislead our judgment on this occasion; by drawing our attention to the precepts delivered in the days of Moses; and by disconnected passages of Scriptures, applied in a manner foreign to their original design or import, there seems to have been an attempt to touch some peculiar sentiments, which we know are thought to be prevalent: and in this way, we take it, an injury is likely to be done, by giving the mind a bias, it ought never to have received; because it is not warranted by our laws.

We have heard it publicly said of late, oftener than formerly, "Whosoever sheddeth man's blood, by man shall his blood be shed." This is plainly, gentlemen, a general rule which, like all others of the kind, must have its exceptions. A rule which if taken in its strict literal lati

tude would imply, that a man killing another in self-defence, would incur the pains of death. A doctrine which no man in his senses would ever embrace; a doctrine that certainly never prevailed under the Mosaical institution. For we find the Jews had their six cities of refuge, to which the man-slayer might flee, from the avenger of blood; and something analogous to this (if it did not originate from it) is our benefit of clergy.

And so, that "the murderer shall flee to the pit," comes under the same consideration. And when we hear it asked, as it very lately has been "who dare stay him?" I answer, if the laws of our country stay him, you ought to do likewise; and every good subject dares to do what the law allows. But the very position is begging the question; for the question now in issue is, whether either of the prisoners is a murderer, in the sense of our laws? for you recollect, that what is murder and what not, is a question of law, arising upon facts stated and allowed.

But to go on: "You shall take no satisfaction for the life of a murderer, which is guilty of death." Here again is a begging of the question; and moreover, the words, "guilty of death," if rightly rendered from the original, must be one of those general rules I just now mentioned, which always have their exceptions. But these words seem to be wrongly translated; for in the margin of our great Bible, we find them rendered "faulty to die." Against a position of this kind we have no objection. If we have committed a fault, on which our laws inflict punishment of death, we must suffer. But what fault we have committed, you are to inquire or rather you, gentlemen, are to find the facts proved in Court against us, and the judges are to see and consider what the law pronounces touching our offence, and what punishment is thereby inflicted as a penalty.

In order to come at the whole law resulting from the facts which have been proved, we must inquire into the legality of the assemblies. For such is the wisdom and policy of the law, that if any assembly be lawful, each individual of that assembly is answerable only for his own act, and not for any other. On the contrary, if an assembly be unlawful, the act of any one of the company, to the particular purpose of assembling, is chargeable on all. This is law which no lawyer will dispute: it is a law founded in the security of the peace of society, and however little considered by people in general, it ought now steadily to be kept in mind.

Was the assembly of the soldiers lawful?
For what did the soldiers assemble?

Was the sentinel insulted and attacked?

Was this last assembly lawful?

Was any thing done by this unlawful assembly, that will in law justify, excuse, or extenuate, the offence of killing, so as to reduce it to manslaughter?

Was the killing justifiable; or rather was it justifiable self-defence?

Was the killing excusable; or rather was it self-defence, culpable-but through the benignity of the law excusable?

Was the killing felonious: if felonious, was it with or without malice?

Under each of these heads of inquiry, in their order, Mr. Quincy arranged his arguments: and as he separated and compared, and settled the facts, he applied the law with explanatory comments. After which, he concluded his argument as follows:

MAY IT PLEASE your Honors, and you, GenTLEMEN OF THE JURY: I have now gone through those authorities in law, which I thought pertinent to this trial. I have been thus lengthy, not for the information of the Court, but to satisfy you gentlemen, and all who may chance to hear me, of that law, which is well known to those of us, who are conversant in courts, but not so generally known or attended to by many, as it ought to be-a law which extends to each of us, as well as to any of the prisoners; for it knows no distinction of persons.

And the doctrines which have been thus laid down are for the safeguard of us all. Doctrines which are founded in the wisdom and policy of ages; which the greatest men who ever lived, have adopted and contended for. Nay, the matter has been carried by very wise men, much further than we have contested for. And that you may not think the purport of the authorities read are the rigid notions of a dry system, and the contracted decisions of municipal law, I beg leave to read to you a passage from a very great theoretic writer-a man whose praises have resounded through all the known world, and probably will through all ageswhose sentiments are as free air, and who has done as much for learning, liberty, and mankind, as any of the sons of Adam—I mean the sagacious Mr. Locke. He will tell you gentlemen, in his Essay on Government, "That all manner of force without right, puts man in a state of war with the aggressor; and of consequence, that being in such a state of war, he may lawfully kill him who put him under this unnatural restraint." According to this doctrine, we should have nothing to do but inquire whether here was "force without right?" if so, we were in such a state, as rendered it law

Was it lawful for them so to do?

Were the soldiers when thus lawfully assembled, assaulted, &c., by a great number of people assembled, &c.?

unnatural a restraint.

Few, I believe, will say, after hearing all this evidence, that we were under no "unnatural restraint." But we don't want to extend matters so far. We cite this author to show the

There is a spirit which pervades the whole system of English jurisprudence, which inspires & freedom of thought, speech, and behavior. Under a form of government like ours, it would be in vain to expect that pacific, timid, obsequious, and servile temper, so predominant in more despotic governments. From our happy constitution there results its very natural effects an impatience of injuries, and a strong resentment of insults: (and a very wise man has said, "He who tamely beareth insults inviteth injuries.") Hence, I take it, that attention to the "feelings of humanity," to "humanity and imperfection," "the infirmities of flesh and blood;" that attention to "the indelible rights of mankind;" that lenity to "the passions of men;" that "benignity and condescension of the law," so often repeated in our books.

And, indeed, if this were not the case, the genius of our civil constitution, and the spirit of our municipal law would be repugnant: that prime defect in any political system-that grand solecism in State policy.

GENTLEMEN OF THE JURY: This cause has taken up much of your time, and is likely to take up so much more, that I must hasten to a close. Indeed, I should not have troubled you, by being thus lengthy, but from a sense of duty to the prisoners; they, who, in some sense, may be said to have put their lives in my hands; they, whose situation was so peculiar, that we have necessarily taken up more time than ordinary cases require. They, under all these

duty not to disappoint; and which I have aimed at discharging with fidelity. I trust you, gentlemen, will do the like; that you will examine and judge with a becoming temper of mind; remembering that they who are under oath to declare the whole truth, think and act very differently from by-standers, who, being under no ties of this kind, take a latitude, which is by no means admissible in a court of law.

I cannot close this cause better, than by desiring you to consider well the genius and spirit of the law, which will be laid down, and to govern yourselves by this great standard of truth. To some purposes, you may be said, gentlemen, to be ministers of justice; and ministers," says a learned judge, "appointed for the ends of public justice, should have written on their hearts the solemn engagements of his majesty, at his coronation, to cause law and justice in mercy to be executed in all his judgments."

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"The quality of mercy is not strained;

It droppeth like the gentle rain from heaven-
It is twice blessed;

It blesses him that gives, and him that takes." I leave you, gentlemen, hoping you will be directed in your inquiry and judgment, to a right discharge of your duty. We shall all of us, gentlemen, have an hour of cool reflection; when the feelings and agitations of the day shall have subsided; when we shall view things through a different and a much juster medium. It is then we all wish an absolving conscience. May you, gentlemen, now act such a part, as will hereafter ensure it; such a part as may occasion the prisoners to rejoice. May the blessing of those who were in jeopardy of life come upon you-may the blessing of Him who is "not faulty to die," descend and rest upon you and your posterity.