Posted by: Democratic Thinker | September 13, 2011

John Adams: Defense of the British Soldiers—I

American Papers

 
Following the Boston Massacre in 1770, John Adams joins in the defense of the British soldiers charged in the deaths.

The rules of the common law, therefore, which authorize a man to preserve his own life at the expense of another’s, are not contradicted by any divine or moral law. We talk of liberty and property, but if we cut up the law of self-defence, we cut up the foundation of both; and if we give up this, the rest is of very little value, and therefore this principle must be strictly attended to; for whatsoever the law pronounces in the case of these eight soldiers will be the law to other persons and after ages.

—To Adjournment—At Reconvening

 

In Defense of the British Soldiers.
Mr. John Adams.
To Adjournment, Monday Afternoon, December 3, 1770.

The Defense delivered by Mr. Adams in the trial of William Weems, James Hartigan, and others, soldiers in His Majesty’s Twenty-ninth Regiment, for the murder of Crispus Attacks, Samuel Gray, and others, on Monday evening, the fifth of March, 1770.

—————

May it please your Honors, and you, Gentlemen of the Jury,

I AM for the prisoners at the bar, and shall apologize for it only in the words of the Marquis Beccaria: “If I can but be the instrument of preserving one life, his blessings and tears of transport shall be a sufficient consolation to me for the contempt of all mankind.” As the prisoners stand before you for their lives, it may be proper to recollect with what temper the law requires we should proceed to this trial. The form of proceeding at their arraignment has discovered that the spirit of the law upon such occasions is conformable to humanity, to common sense and feeling; that it is all benignity and candor. And the trial commences with the prayer of the court, expressed by the clerk, to the Supreme JUDGE of judges, empires, and worlds, “God send you a good deliverance.”

We find, in the rules laid down by the greatest English judges, who have been the brightest of mankind;—we are to look upon it as more beneficial that many guilty persons should escape unpunished than one innocent person should suffer. The reason is, because it is of more importance to the community that innocence should be protected than it is that guilt should be punished; for guilt and crimes are so frequent in the world that all of them cannot be punished; and many times they happen in such a manner that it is not of much consequence to the public whether they are punished or not. But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me whether I behave well or ill, for virtue itself is no security. And if such a sentiment as this should take place in the mind of the subject, there would be an end to all security whatsoever. I will read the words of the law itself.

The rules I shall produce to you from Lord Chief Justice Hale, whose character as a lawyer, a man of learning and philosophy, and a Christian, will be disputed by nobody living; one of the greatest and best characters the English nation ever produced. His words are these. 2 H. H. P. C. Tutins semper est errare in acquietando, quam in puniendo, ex parte misericordiæ quam exparte justitiæ—it is always safer to err in acquitting than punishing, on the part of mercy than the part of justice. The next is from the same authority, 305. Tutius erratur ex parte mitiori—it is always safer to err on the milder side, the side of mercy. H. H. P. C. 509: The best rule in doubtful cases is rather to incline to acquittal than conviction; and in page 300: Quod dubitas, ne fecoris—where you are doubtful, never act; that is, if you doubt of the prisoner’s guilt, never declare him guilty. This is always the rule, especially in cases of life. Another rule from the same author, 289, where he says: In some cases presumptive evidences go far to prove a person guilty, though there is no express proof of the fact to be committed by him; but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die.

The next authority shall be from another judge of equal character, considering the age wherein he lived; that is, Chancellor Fortescue in Praise of the Laws of England, page 59. This is a very ancient writer on the English law. His words are:—“Indeed, one would rather, much rather, that twenty guilty persons escape the punishment of death, than one innocent person be condemned and suffer capitally.” Lord Chief Justice Hale says:—“It is better five guilty persons escape, than one innocent person suffer.” Lord Chancellor Fortescue, you see, carries the matter further, and says, “Indeed, one had rather, much rather, that twenty guilty persons should escape, than one innocent person suffer capitally.” Indeed, this rule is not peculiar to the English law; there never was a system of laws in the world in which this rule did not prevail. It prevailed in the ancient Roman law, and, which is more remarkable, it prevails in the modern Roman law. Even the judges in the Courts of Inquisition, who with racks, burnings, and scourges examine criminals,—even there they preserve it as a maxim, that it is better the guilty should escape punishment than the innocent suffer. Satius esse nocentem absolvi quam insentem damnari—this is the temper we ought to set out with, and these the rules we are to be governed by. And I shall take it for granted, as a first principle, that the eight prisoners at the bar had better be all acquitted, though we should admit them all to be guilty, than that any one of them should, by your verdict, be found guilty, being innocent.

I shall now consider the several divisions of law, under which the evidence will arrange itself.

The action now before you is homicide; that is, the killing of one man by another. The law calls it homicide; but it is not criminal in all cases for one man to slay another. Had the prisoners been on the Plains of Abraham and slain an hundred Frenchmen apiece, the English law would have considered it as a commendable action, virtuous and praiseworthy; so that every instance of killing a man is not a crime in the eye of the law. There are many other instances which I cannot enumerate—an officer that executes a person under sentence of death, &c. So that, gentlemen, every instance of one man’s killing another is not a crime, much less a crime to be punished with death. But to descend to some more particulars.

The law divides homicide into three branches: the first is justifiable, the second excusable, and the third felonious. Felonious homicide is subdivided into two branches: the first is murder, which is killing with malice aforethought; the second is manslaughter, which is killing a man on a sudden provocation. Here, gentlemen, are four sorts of homicide; and you are to consider whether all the evidence amounts to the first, second, third, or fourth of these heads. The fact was the slaying five unhappy persons that night. You are to consider whether it was justifiable, excusable, or felonious; and if felonious, whether it was murder or manslaughter. One of these four it must be. You need not divide your attention to any more particulars. I shall, however, before I come to the evidence, show you several authorities, which will assist you and me in contemplating the evidence before us.

I shall begin with justifiable homicide. If an officer, a sheriff, execute a man on the gallows, draws and quarters him, as in case of high treason, and cuts off his head, this is justifiable homicide. It is his duty. So also, gentlemen, the law has planted fences and barriers around every individual; it is a castle round every man’s person, as well as his house. As the love of God and our neighbor comprehends the whole duty of man, so self-love and social comprehend all the duties we owe to mankind; and the first branch is self-love, which is not only our indisputable right, but our clearest duty. By the laws of nature, this is interwoven in the heart of every individual. God Almighty, whose laws we cannot alter, has implanted it there, and we can annihilate ourselves as easily as root out this affection for ourselves. It is the first and strongest principle in our nature. Justice Blackstone calls it “the primary canon in the law of nature.” That precept of our holy religion which commands us to love our neighbor as ourselves, does not command us to love our neighbor better than ourselves, or so well. No Christian divine has given this interpretation. The precept enjoins that our benevolence to our fellow-men should be as real and sincere as our affections to ourselves, not that it should be as great in degree. A man is authorized, therefore, by common sense and the laws of England, as well as those of nature, to love himself better than his fellow-subject. If two persons are cast away at sea, and get on a plank (a case put by Sir Francis Bacon), and the plank is insufficient to hold them both, the one hath a right to push the other off to save himself. The rules of the common law, therefore, which authorize a man to preserve his own life at the expense of another’s, are not contradicted by any divine or moral law. We talk of liberty and property, but if we cut up the law of self-defence, we cut up the foundation of both; and if we give up this, the rest is of very little value, and therefore this principle must be strictly attended to; for whatsoever the law pronounces in the case of these eight soldiers will be the law to other persons and after ages. All the persons that have slain mankind in this country, from the beginning to this day, had better have been acquitted, than that a wrong rule and precedent should be established.

I shall now read to you a few authorities on this subject of self-defence. Foster, 278, in the case of justifiable self-defence:—“The injured party may repel force with force in defence of person, habitation, or property, against one who manifestly intendeth and endeavoreth with violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary till he finds himself out of danger; and if in a conflict between them he happeneth to kill, such killing is justifiable.” Keiling, 128, 129. I must entreat you to consider the words of this authority. The injured person may repel force by force against any who endeavors to commit any Kind of felony on him or his. Here the rule is, I have a right to stand on my own defence, if you intend to commit felony. If any of the persons made an attack on these soldiers, with an intention to rob them, if it was but to take their hats feloniously, they had a right to kill them on the spot, and had no business to retreat. If a robber meets me in the street, and commands me to surrender my purse, I have a right to kill him without asking any questions. If a person commits a bare assault on me, this will not justify killing; but if he assaults me in such a manner as to discover an intention to kill me, I have a right to destroy him, that I may put it out of his power to kill me. In the case you will have to consider, I do not know there was any attempt to steal from these persons; however, there were some persons concerned who would, probably enough, have stolen, if there had been any thing to steal, and many were there who had no such disposition. But this is not the point we aim at. The question is, are you satisfied the people made the attack in order to kill the soldiers? If you are satisfied that the people, whoever they were, made that assault with a design to kill or maim the soldiers, this was such an assault as will justify the soldiers killing in their own defence. Further, it seems to me, we may make another question, whether you are satisfied that their real intention was to kill or maim, or not? If any reasonable man, in the situation of one of these soldiers, would have had reason to believe in the time of it, that the people came with an intention to kill him, whether you have this satisfaction now or not in your own minds, they were justifiable, at least excusable, in firing. Tou and I may be suspicious that the people who made this assault on the soldiers, did it to put them to the flight, on purpose that they might go exulting about the town afterwards in triumph; but this will not do. You must place yourselves in the situation of Wemms and Killroy—consider yourselves as knowing that the prejudices of the world about you were against you—that the people about you thought you came to dragoon them into obedience to statutes, instructions, mandates, and edicts, which they thoroughly detested—that many of these people were thoughtless and inconsiderate, old and young, sailors and landsmen, negroes and mulattoes—that they, the soldiers, had no friends about them, the rest were in opposition to them; with all the bells ringing to call the town together to assist the people in King street, for they knew by that time that there was no fire; the people shouting, huzzaing, and making the mob whistle, as they call it, which, when a boy makes it in the street, is no formidable thing, but when made by a multitude, is a most hideous shriek, almost as terrible as an Indian yell; the people crying, “Kill them! kill them! knock them over!”—heaving snowballs, oyster-shells, clubs, white birch sticks, three inches and a half diameter;—consider yourselves in this situation, and then judge whether a reasonable man in the soldiers’ situation would not have concluded they were going to kill him. I believe, if I was to reverse the scene, I should bring it home to our own bosoms. Suppose Colonel Marshall, when he came out of his own door, and saw these grenadiers coming down, with swords, &c., had thought it proper to have appointed a military watch; suppose he had assembled Gray and Attucks that were killed, or any other person in town, and had planted them in that station as a military watch, and there had come from Murray’s barracks thirty or forty soldiers, with no other arms than snowballs, cakes of ice, oyster-shells, cinders, and clubs, and attacked this military watch in this manner, what do you suppose would have been the feelings and reasonings of any of our householders. I confess, I believe they would not have borne one half of what the witnesses have sworn the soldiers bore, till they had shot down as many as were necessary to intimidate and disperse the rest. Because the law does not oblige us to bear insults to the danger of our lives, to stand still with such a number of people around us, throwing such things at us, ana threatening our lives, until we are disabled to defend ourselves.

“Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force, and even his own servant, then attendant on him, or any other person present, may interpose for preventing mischief, and if death ensues, the party so interposing will be justified. In this case nature and social duty co-operate.”—Foster, 274.

Hawkins, P. C. chapter xxviii, § 25, towards the end:—“Yet it seems that a private person, a fortiori, an officer of justice, who happens unavoidably to kill another in endeavoring to defend himself from or suppress dangerous rioters, may justify the fact, inasmuch as he only does his duty in aid of the public justice.” Section 24:—“And I can see no reason why a person, who, without provocation, is assaulted by another, in any place whatsoever, in such a manner as plainly shows an intent to murder him, as by discharging a pistol, or pushing at him with a drawn sword, &c., may not justify killing such an assailant, as much as if he had attempted to rob him. For is not he who attempts to murder me more injurious than he who barely attempts to rob me? And can it be more justifiable to fight for my goods than for my life? And it is not only highly agreeable to reason that a man in such circumstances may lawfully kill another, but it seems also to be confirmed by the general tenor of our law books, which, speaking of homicide se defendo, suppose it done in some quarrel or affray.”

“And so, perhaps, the killing of dangerous rioters may be justified by any private persons, who cannot otherwise suppress them or defend themselves from them, inasmuch as every private person seems to be authorized by the law to arm himself for the purposes aforesaid.”—Hawkins, p. 71, § 14. Here every private person is authorized to arm himself; and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence. That distinction is material, and must be attended to.

Hawkins, p. 75, § 14: “And not only he who on an assault retreats to the wall, or some suol strait, beyond which he can go no further before he kills the other, is judged by the law to act upon unavoidable necessity; but also he who being assaulted in such a manner and in such a place, that he cannot go back without manifestly endangering his life, kills the other without retreating at all.” §16: “And an officer who kills one that insults him in the execution of his office, and where a private person, that kills one who feloniously assaults him in the highway, may justify the fact without ever giving back at all.”

There is no occasion for the magistrate to read the riot act. In the case before you, I suppose you will be satisfied when you come to examine the witnesses and compare it with the rules of the common law, abstracted from all mutiny-acts and articles of war, that these soldiers were in such a situation that they could not help themselves. People were coming from Royal Exchange Lane, and other parts of the town, with clubs and cord-wood sticks; the soldiers were planted by the wall of the Custom House; they could not retreat; they were surrounded on all sides, for there were people behind them as well as before them; there were a number of people in Royal Exchange Lane; the soldiers were so near to the Custom House that they could not retreat, unless they had gone into the brick wall of it. I shall show you presently that all the party concerned in this unlawful design were guilty of what any one of them did; if any body threw a snowball, it was the act of the whole party; if any struck with a club or threw a club, and the club had killed any body, the whole party would have been guilty of murder in law.

Lord C. J. Holt, in Mawgrige’s case, Keyling 128, says: “Now it has been held, that if A of his malice prepensed assaults B to kill him, and B draws his sword and attacks A, and pursues him, then A, for his safety, gives back and retreats to a wall, and B still pursuing him with his drawn sword, A in his defence kills B; this is murder in A. For A having malice against B, and in pursuance thereof endeavoring to kill him, is answerable for all the consequences, of which he was the original cause. It is not reasonable for any man that is dangerously assaulted, and when he perceives his life in danger from his adversary, but to have liberty for the security of his own life, to pursue him that maliciously assaulted him; for he that has manifested that he has malice against another, is not fit to be trusted with a dangerous weapon in his hand. And so resolved by all the judges when they met at Seargeant’s Inn, in preparation for my Lord Morley’s trial.”

In the case here we will take Montgomery, if you please, when he was attacked by the stout man with a stick, who aimed it at his head, with a number of people round him, crying out, kill them! kill them! had he not a right to kill the man? If all the party were guilty of the assault made by the stout man, and all of them had discovered malice in their hearts, had not Montgomery a right, according to Lord Chief Justice Holt, to put it out of their power to wreak their malice upon him? I will not at present look for any more authorities in the point of self-defence; you will be able to judge from these how far the law goes in justifying or excusing any person in defence of himself, or taking away the life of another who threatens him in life or limb. The next point is this: that in case of an unlawful assembly, all and every one of the assembly is guilty of all and every unlawful act committed by any one of that assembly in prosecution of the unlawful design they set out upon.

Rules of law should be universally known, whatever effect they may have on politics; they are rules of common law, the law of the land; and it is certainly true, that wherever there is an unlawful assembly, let it consist of many persons or a few, every man in it is guilty of every unlawful act committed by any one of the whole party, be they more or be they less, in pursuance of their unlawful design. This is the policy of the law: to discourage and prevent riots, insurrections, turbulence, and tumults.

In the continual vicissitudes of human things, amidst the shocks of fortune and the whirls of passion that take place at certain critical seasons, even in the mildest government, the people are liable to run into riots and tumults—There are church-quakes and State-quakes in the moral and political world, as well as earthquakes, storms, and tempests in the physical. Thus much, however, must be said in favor of the people and of human nature, that it is a general, if not universal truth, that the aptitude of the people to mutinies, seditions, tumults, and insurrections, is in direct proportion to the despotism of the government. In governments completely despotic, i. e. where the will of one man is the only law, this disposition is most prevalent. In aristocracies next—in mixed monarchies, less than either of the former—in complete republics the least of all, and under the same form of government as in a limited monarchy, for example, the virtue and wisdom of the administrations may generally be measured by the peace and order that are seen among the people. However this may be, such is the imperfection of all things in this world, that no form of government, and perhaps no virtue or wisdom in the administration, can at all times avoid riots and disorders among the people.

Now, it is from this difficulty that the policy of the law has framed such strong discouragements to secure the people against tumults; because, when they once begin, there is danger of their running to such excesses as will overturn the whole system of government—There is the rule from the reverend sage of the law, so often quoted before.

1. H. H. P. C. 437. “All present, aiding and assisting, are equally principal with him that gave the stroke, whereof the party died. For though one gave the stroke, yet in interpretation of law, it is the stroke of every person that was present aiding and assisting.”

1. H. H. P. C. 440. “If divers come with one assent to do mischief, as-to kill, rob or beat, and one doeth it, they are all principals in the felony. If many be present, and one only give the stroke whereof the party dies, they are all principal, if they came for that purpose.”

Now if the party at Dock Square, came with an intention only to beat the soldiers, and began the affray with them, and any of them had been accidentally killed, it would have been murder, because it was an unlawful design they came upon. If but one does it, they are all considered in the eye of the law to be guilty; if any one gives the mortal stroke, they are all principal here, therefore there is a reversal of the scene. If you are satisfied that these soldiers were there on a lawful design, and it should be proved any of them shot without provocation, and killed any body, he only is answerable for it. First Hale’s Pleas of the Crown.

1. H. H. P. C. 444. “Although if many come upon an unlawful design, and one of the company kill one of the adverse party in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of an adverse party, without any particular abetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those that gave the stroke or actually abetted him to do it.”

1. H. H. P. C. 445. “In a case of a riotous assembly to rob or steal deer or do any unlawful act or violence, there the offence of one is the offence of all the company.”

In another place 1. H. H. P. C. 439. “The Lord Dacre and divers others went to steal deer in the park of one Pelham—Raydon, one of the company, killed the keeper in the park; the Lord Dacre and the rest of the company being in the other part of the park. Yet it was adjudged murder in them all, and they died for it. And he quotes Crompton 25, Dalton 93, p. 241.” So that in so strong a case as this, where this nobleman set out to hunt deer in the ground of another, he was in one part of the park and his company in another part, yet they were all guilty of murder.

The next is Hale’s Pleas of the Crown, 1. H. H. P. C. 440. “The case of Drayton Bassit; divers persons doing an unlawful act, all are guilty of what is done by one.”

Foster, 353, 354. “A general resolution against all opposers, whether such resolution appears upon evidence to have been actually and implicitly entered into by the confederates, or may reasonably be collected from their number, arms or behavior, at or before the scene of action, such resolutions so proved have always been considered as strong ingredients in cases of this kind. And in cases of homicide, committed in consequence of them, every person present, in the sense of the law, when the homicide has been committed, has been involved in the guilt of him that gave the mortal blow.”

Foster. “The cases of Lord Dacre, mentioned by Hale, and of Pudsey, reported by Crompton and cited by Hale, turned upon this point. The offences they respectively stood charged with, as principals, were committed far out of their sight and hearing, and yet both were held to be present. It was sufficient that at the instant the facts were committed, they were of the same party and upon the same pursuit, and under the same engagements and expectations of mutual defence and support with those that did the facts.”

Thus far I have proceeded, and I believe it will not be hereafter disputed by any body, that this law ought to be known to every one who has any disposition to be concerned in an unlawful assembly, whatever mischief happens in the prosecution of the design they set out upon; all are answerable for it. It is necessary we should consider the definitions of some other crimes as well as murder; sometimes one crime gives occasion to another. An assault is sometimes the occasion of manslaughter, sometimes of excusable homicide. It is necessary to consider what is a riot. 1 Hawk. c. lxv. § 2. I shall give you the definition of it. “Wheresoever more than three persons use force or violence, for the accomplishment of any design whatever, all concerned are rioters.”

Were there not more than three persons in Dock Square? Did they .not agree to go to King street, and attack the main guard? Where, then, is the reason for hesitation at calling it a riot? If we cannot speak the law as it is, where is our liberty? And this is law, that wherever more than three persons are gathered together to accomplish any thing with force, it is a riot. I Hawk. c. lxv. § 2.—“Wherever more than three use force and violence, all who are concerned therein are rioters. But in some cases wherein the law authorizes force, it is lawful and commendable to use it. As for a sheriff, 2. and. 67 Poph. 421, or constable, 3. H. 7, 10, 6, or perhaps even for a private person, Poph. 121, Moore 656, to assemble a competent number of people, in order with force to oppose rebels or enemies or rioters, and afterwards with such force actually to suppress them.”

I do not mean to apply the word rebel on this occasion; I have no reason to suppose that ever there was one in Boston, at least among the natives of the country; but rioters are in the same situation, as far as my argument is concerned, and proper officers may suppress rioters, and so may even private persons.

If we strip ourselves free from all military laws, mutiny acts, articles of war and soldiers’ oaths, and consider these prisoners as neighbors; if any of their neighbors were attacked in King street, they had a right to collect together to suppress this riot and combination. If any number of persons meet together at a fair or market, and happen to fall together by the ears, they are not guilty of a riot, but of a sudden affray. Here is another paragraph which I must read to you. I Hawkins, c. lxv. § 3. “If a number of persons being met together at a fair or market, or on any other lawful or innocent occasion, happen on a sudden quarrel, to fall together by the ears, they are not guilty of a riot, but of a sudden affray only, of which none are guilty but those who actually engage in it,” &c. End of the §. It would be endless, as well as superfluous, to examine whether every particular person engaged in a riot, were in truth one of the first assembly or actually had a previous knowledge of the design thereof.

I have endeavored to produce the best authorities, and to give you the rules of law in their words, for I desire not to advance any thing of my own. I choose to lay down the rules of law from authorities which cannot be disputed.—Another point is this, whether and how far a private person may aid another in distress? Suppose a press-gang should come on shore in this town and assault any sailor or householder in King street, in order to carry them on board one of his Majesty’s ships, and impress him without any warrant as a seaman in his Majesty’s service; how far do you suppose the inhabitants would think themselves warranted by law to interpose against that lawless press-gang? I agree that such a press-gang would be as unlawful an assembly as that was in King street. If they were to press an inhabitant and carry him off for a sailor, would not the inhabitants think themselves warranted by law to interpose in behalf of their fellow-citizen? Now, gentlemen, if the soldiers had no right to interpose in the relief of the sentry, the inhabitants would have no right to interpose with regard to the citizen, for whatever is law for a soldier is law for a sailor and for a citizen. They all stand upon an equal footing in this respect I believe we shall not have it disputed that it would be lawful to go into King street and help an honest man there against the press-master. We have many instances in the books which authorize it, which I shall produce to you presently.

Now, suppose you should have a jealousy in your minds that the people who made this attack upon the sentry had nothing in their intention more than to take him off his post, and that was threatened by some. Suppose they intended to go a little further, ana tar and feather him, or to ride him (as the phrase is in Hudibras), he would have had a good right to have stood upon his defence—the defence of his liberty; and if he could not preserve that without the hazard to his own life, he would be warranted in depriving those of life who were endeavoring to deprive him of his. That is a point I would not give up for my right hand—nay, for my life.

Well, I say, if the people did this, or if this was only their intention, surely the officers and soldiers had a right to go to his relief; and therefore they set out upon a lawful errand. They were, therefore, a lawful assembly, if we only consider them as private subjects and fellow-citizens, without regard to Mutiny Acts, Articles of War, or Soldiers’ Oaths. A private person, or any number of private persons, have a right to go to the assistance of their fellow subject in distress or danger of his life, when assaulted and in danger from a few or a multitude. Keyl. 136.—“If a man perceives another by force to be injuriously treated, pressed and restrained of his liberty, though the person abused doth not complain or call for aid or assistance, and others, out of compassion, shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter.” Keyl.—“ A and others, without any warrant, impress B to serve the king at sea. B quietly submitted, and went off with the press-master. Hugett and the others pursued them, and required a sight of their warrant; but they showing a piece of paper that was not a sufficient warrant, thereupon Hugett with the others drew their swords, and the press-masters theirs, and so there was a combat, and those who endeavored to rescue the pressed man killed one of the pretended press-masters. This was but manslaughter; for when the liberty of one subject is invaded, it affects all the rest. It is a provocation to all people, as being of ill example and pernicious consequences.”

2. Lord Raymond, 1301. The Queen versus Tooley et alios Lord Chief Justice Holt says, 3d.—“The prisoner (i. e. Tooley) in this case had sufficient provocation; for if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion;—and where the liberty of the subject is invaded, it is a provocation to all the subjects of England, &c.; and sure a man ought to be concerned for Magna Charta and the laws; and if any one, against the law, imprisons a man, he is an offender against Magna Charta.”

I am not insensible of Sir Michael Foster’s observations on these cases, but apprehend they do not invalidate the authority of them as far as I now apply them to the purposes of my argument. If a stranger, a mere fellow-subject, may interpose to defend the liberty, he may, too, defend the life of another individual. But, according to the evidence, some imprudent people, before the sentry, proposed to take him off his post; others threatened his life; and intelligence of this was carried to the main-guard before any of the prisoners turned out. They were then ordered out to relieve the sentry; and any of our fellow-citizens might lawfully have gone upon the same errand. They were, therefore, a lawful assembly.

I have but one point of law more to consider, and that is this:—In the case before you I do not pretend to prove that every one of the unhappy persons slain were concerned in the riot. The authorities read to you just now, say it would be endless to prove whether every person that was present and in a riot was concerned in planning the first enterprise or not. Nay, I believe it but justice to say some were perfectly innocent of the occasion. I have reason to suppose that one of them was Mr. Maverick. He was a very worthy young man, as he has been represented to me, and had no concern in the rioters’ proceedings of that night; and I believe the same may be said in favor of one more at least, Mr. Caldwell, who was slain; and, therefore, many people may think, that as he and perhaps another was innocent, therefore innocent blood having been shed, that must be expiated by the death of somebody or other. I take notice of this, because one gentleman nominated by the sheriff for a juryman upon this trial, because he had said he believed Captain Preston was innocent, but innocent blood had been shed, and therefore somebody ought to be hanged for it, which he thought was indirectly giving his opinion in this cause. I am afraid many other persons have formed such an opinion. I do not take it to be a rule, that where innocent blood is shed, the person must die. In the instance of the Frenchmen on the Plains of Abraham, they were innocent, fighting for their king and country; their blood is as innocent as any. There may be multitudes killed, when innocent blood is shed on all sides; so that it is not an invariable rule. I will put a case, in which, I dare say, all will agree with me. Here are two persons, the father and the son, go out a hunting. They take different roads. The father hears a rushing among the bushes, takes it to be game, fires, and kills his son, through a mistake. Here is innocent blood shed, but yet nobody will say the father ought to die for it. So that the general rule of law is, that whenever one person has a right to do an act, and that act, by any accident, takes away the life of another, it is excusable. It bears the same regard to the innocent as to the guilty. If two men are together, and attack me, and I have a right to kill them, I strike at them, and by mistake strike a third, and kill him, as I had a right to kill the first, my killing the other will be excusable, as it happened by accident. If I, in the heat of passion, aim a blow at the person who has assaulted me, aiming at him, I kill another person, it is but manslaughter. Foster, 261. § 3:—“If an action unlawful in itself be done deliberately, and with intention of mischief, or great bodily harm to particulars, or of mischief indiscriminately, fall it where it may, and death ensues, against or beside the original intention of the party, it will be murder. But if such mischievous intention doth not appear, which is matter of fact, and to be collected from circumstances, and the act was done heedlessly and inconsiderately, it will be manslaughter, not accidental death; because the act upon which death ensued was unlawful.”

“Under this head &c. [see trial records for supporting testimony.]

Supposing, in this case, the mulatto man was the person who made the assault; suppose he was concerned in the unlawful assembly, and this party of soldiers endeavoring to defend themselves against him, happened to kill another person, who was innocent—though the soldiers had no reason, that we know of, to think any person there, at least of that number who were crowding about them, innocent; they might, naturally enough, presume all to be guilty of the riot and assault, and to come with the same design;—I say, if on firing on those who were guilty, they accidentally killed an innocent person, it was not their fault. They were obliged to defend themselves against those who were pressing upon them. They are not answerable for it with their lives; for on supposition it was justifiable or excusable to kill Attucks, or any other person, it will be equally justifiable or excusable, if in firing at him they killed another, who was innocent; or if the provocation was such as to mitigate the guilt to manslaughter, it will equally mitigate the guilt, if they killed an innocent man undesignedly, in aiming at him who gave the provocation, according to Judge Foster,—and, as this point is of such consequence, I must produce some more authorities for it,—1. Hawkins, 84:—“Also, if a third person accidentally happen to be killed by one engaged in a combat with another, upon a sudden quarrel, it seems that he who killed him is guilty of manslaughter only, &c. H. H. P. C. 442. to the same point; and 1. H. H. P. C, 484, and 4 Black, 2.

I shall now consider one question more, and that is concerning provocation. We have hitherto been considering self-defence and how far persons may go in defending themselves against aggressors, even by taking away their lives, and now proceed to consider such provocations as the law allows to mitigate or extenuate the guilt of killing, where it is not justifiable or excusable.

An assault and battery committed upon a man in such a manner as not to endanger his life, is such a provocation as the law allows to reduce killing down to the crime of manslaughter. Now the law has been made on more considerations than we are capable of making at present; the law considers a man as capable of bearing any thing and every thing but blows. I may reproach a man as much as I please; I may call him a thief, robber, traitor, scoundrel, coward, lobster, bloody back, &c., and if he kills me it will be murder, if nothing else but words precede; but if from giving him such kind of language I proceed to take him by the nose, or fillip him on the fore-head, that is an assault; that is a blow. The law will not oblige a man to stand still and bear it; there is the distinction; hands off! touch me not! As soon as you touch me, if I run you through the heart it is but manslaughter. The utility of this distinction, the more you think of it, the more you will be satisfied with it. It is an assault whenever a blow is struck, let it be ever so slight, and sometimes even without a blow. The law considers man as frail and passionate. When his passions are touched, he will be thrown off his guard, and therefore the law makes allowances for this frailty—considers him as in a fit of passion, not having the possession of his intellectual faculties, and therefore does not oblige him to measure out his blows with a yard-stick, or weigh them in a scale. Let him kill with a sword, gun or hedge stake, it is not murder, but only manslaughter. Keyling’s Report, 135. Regina versus Mawgridge. “Rules supported by authority and general consent, showing what are always allowed to be sufficient provocations. First, if one man upon any words shall make an assault upon another, either by pulling him by the nose or filliping him on the forehead, and he that is so assaulted shall draw his sword and immediately run the other through, that is but manslaughter, for the peace is broken by the person killed, and with an indignity to him that received the assault. Besides, he that was so affronted, might reasonably apprehend that he that treated him in that manner might have some further design upon him.” So that here is the boundary, when a man is assaulted and kills in consequence of that assault, it is but manslaughter. I will just read as I go along the definition of an assault. 1 Hawkins, chap. lxv, § 1. “An assault is an attempt or offer, with force or violence, to do a corporal hurt to another, as by striking at him with or without a weapon, or presenting a gun at him at such a distance to which the gun will carry, or pointing a pitchfork at him, or by any other such like act done in an angry, threatening manner, &c.; but no words can amount to an assault.” Here is the definition of an assault, which is a sufficient provocation to soften killing down to manslaughter. 1 Hawkins, chap. xxxi. § 36. “Neither can he be thought guilty of a greater crime than manslaughter, who, finding a man in bed with his wife, or being actually struck by him, or pulled by the nose or filliped upon the forehead, immediately kills him, or in the defence of his person from an unlawful arrest, or in the defence of his house from those who, claiming a title to it, attempt forcibly to enter it, and to that purpose shoot at it,” &c. Every snowball, oyster-shell, cake of ice or bit of cinder, that was thrown that night at the sentinel, was an assault upon him; every one that was thrown at the party of soldiers, was an assault upon them, whether it hit any of them or not. I am guilty of an assault if I present a gun at any person; whether I shoot at him or not, it is an assault, and if I insult him in that manner and he shoots me, it is but manslaughter. Foster, 295, 6. “To what I have offered with regard to sudden rencounters, let me add, that the blood already too much heated, kindleth afresh at every pass or blow. And in the tumult of the passions, in which mere instinct self-preservation has no inconsiderable share, the voice of reason is not heard; and therefore the law, in condescension to the infirmities of flesh and blood, doth extenuate the offence.” Insolent, scurrilous or slanderous language, when it precedes an assault, aggravates it. Foster, 316. “We all know that words of reproach, how grating and offensive soever, are in the eye of the law no provocation in the case of voluntary homicide; and yet every man who hath considered the human frame, or but attended to the workings of his own heart, knoweth that affronts of that kind pierce deeper and stimulate in the veins more effectually than a slight injury done to a third person, though under color of justice, possibly can.” I produce this to show the assault in this case was aggravated by the scurrilous language which preceded it. Such words of reproach stimulate in the veins and exasperate the mind, and no doubt if an assault and battery succeeds them, killing under such provocation is softened to manslaughter, but killing without such provocation makes it murder.

Five o’clock, P. M. the Court adjourned till Tuesday morning, nine o’clock.

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[ Continued ]


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