Posted by: Democratic Thinker | September 14, 2011

John Adams: Defense of the British Soldiers—II

American Papers

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

Facts are stubborn things, and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence; nor is the law less stable than the fact. If an assault was made to endanger their lives, the law is clear: they had a right to kill in their own defence.

To Adjournment—At Reconvening—

 

In Defense of the British Soldiers.
Mr. John Adams.
At Reconvening, Tuesday Morning, December 4, 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.

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Tuesday, nine o’clock, the Court met according to adjournment, and Mr. Adams, proceeded.

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

I YESTERDAY afternoon produced from the best authorities those rules of law which must govern all cases of homicide, particularly that which is now before you; it now remains to consider the evidence, and see whether any thing has occurred that may be compared to the rules read to you; and I will not trouble myself nor you with labored endeavors to be methodical. I shall endeavor to make some few observations on the testimonies of the wit. nesses, such as will place the facts in a true point of light, with as much brevity as possible; but I suppose it would take me four hours to read to you (if I did nothing else but read) the minutes of evidence that I have taken in this trial. In the first place, the gentleman who opened this cause has stated to you with candor and precision the evidence of the identity of the persons.

The witnesses are confident that they know the prisoners at the bar, and that they were present that night, and of the party. However, it is apparent that witnesses are liable to make mistakes, by a single example before you. Mr. Bass, who is a very honest man, and of good character, swears positively that the tall man, Warren, stood on the right that night, and was the first that fired; and I am sure you are satisfied by this time by many circumstances that he is totally mistaken in this matter. This you will consider at your leisure. The witnesses in general did not know the faces of these persons before; very few of them knew the names of them before; they only took notice of the faces that night. How much certainty there is in this evidence, I leave you to determine.

There does not seem to me to be any thing very material in the testimony of Mr. Aston, except to the identity of M’Cauley, and he is the only witness to that. If you can be satisfied in your own minds, without a doubt, that he knew M’Cauley so well as to be sure, you will believe he was there.

The next witness is Bridgham; he says he saw the tall man, Warren, but saw another man belonging to the same regiment, soon after, so like him, as to make him doubt whether it was Warren or not; he thinks he saw the Corporal, but is not certain. He says he was at the corner of the Custom House. This you will take notice of. Other witnesses swear he was the remotest man of all from him who fired first, and there are other evidences who swear the left man did not fire at all. If Wemms did not discharge his gun at all, he could not kill any of the persons, therefore he must be acquitted on the fact of killing; for an intention to kill is not murder or manslaughter, if not carried into execution. The witness saw numbers of things thrown, and he saw plainly sticks strike the guns. About a dozen persons with sticks, gave three cheers and surrounded the party, and struck the guns with their sticks several blows. This is a witness for the Crown, and his testimony is of great weight for the prisoners; he gives his testimony very sensibly and impartially. He swears positively, that he not only saw ice or snow thrown, but saw the guns struck several times. If you believe this witness, of whose credibility you are wholly the judges, as you are of every other; if you do not believe him, there are many others who swear to circumstances in favor of the prisoners. It should seem impossible yon should disbelieve so great a number, and of Crown witnesses, too, who swear to such variety of circumstances that fall in with one another so naturally to form our defence. This witness swears positively there were a dozen of persons with clubs, surrounded the party. Twelve sailors with clubs were by much an overmatch to eight soldiers, chained there by the order and command of their officer, to stand in defence of the sentry. Not only so, but under an oath to stand there, i. e. to obey the lawful command of their officer, as much, gentlemen of the jury, as you are under oath to determine this cause by law and evidence. Clubs they had not, and they could not defend themselves with their bayonets against so many people. It was in the power of the sailors to kill one half or the whole of the party, if they had been so disposed. What had the soldiers to expect, when twelve persons, armed with clubs, (sailors too, between whom and soldiers there is such an antipathy that they fight as naturally, when they meet, as the elephant and rhinoceros,) were daring enough, even at the time when they were loading their guns, to come up with their clubs and smite on their guns. What had eight soldiers to expect from such a set of people? Would it have been a prudent resolution in them, or in any body in their situation, to have stood still and see if the sailors would knock their brains out or not? Had they not all the reason in the world to think, that as they had done so much, they would proceed further? Their clubs were as capable of killing as a ball. A hedge stake is known in the law books as a weapon of death as much as a sword, bayonet or musket. He says the soldiers were loading their guns, when the twelve surrounded them. The people went up to them within the length of their guns, and before the firing. Besides all this, he swears they were called cowardly rascals, and dared to fire. He says these people were all dressed like sailors, and I believe that by and by you will find evidence enough to satisfy yon these were some of the persons that came out of Dock Square, after making the attack on Murray’s barracks, and who had been arming themselves with sticks from the butchers’ stalls and cord wood piles, and marched up round Cornhill under the command of Attucks. All the bells in town were ringing; the rattling of the blows upon the guns he heard, and swears it was violent. This corroborates the testimony of James Bailey, which will be considered presently. Some witnesses swear a club struck a soldier’s gun; Bailey swears a man struck a soldier and knocked him down, before he fired; “the last man that fired levelled at a lad, and moved his gun as the lad ran.” You will consider that an intention to kill is not murder. If a man lays poison in the way of another, and with an express intention that he should take it up and die of it. it is not murder. Suppose that soldier had malice in his heart, and was determined to murder that boy if he could; yet the evident clears him of killing the boy. I say, admit he had malice in his heart, yet it is plain he did not kill him, or any body else, and if you believe one part of the evidence, you must believe the other, and if he had malice, that malice was ineffectual. I do not recollect any evidence that ascertains who it was that stood the last man but one upon the left. Admitting be discovered a temper ever so wicked, cruel and malicious, you are to consider his ill temper is not imputable to another. No other had any intention of this deliberate kind; the whole transaction was sudden. There was but a very short space of time between the first gun and the last When the first gun was fired, the people fell in upon the soldiers and laid on with their weapons with more violence, and this served to increase the provocation, and raised such a violent spirit of revenge in the soldiers as the law takes notice of, and makes some allowance for, and in that fit of fury and madness I suppose he aimed at the boy.

The next witness is Dodge. He says there were fifty people near the soldiers pushing at them. Now the witness before says there were twelve sailors with clubs; but now here are fifty more aiding and abetting of them, ready to relieve them in case of need. Now what could the people expect? It was their business to have taken themselves out of the way. Some prudent people by the Town House told them not to meddle with the guard; but yon bear nothing of this from these fifty people. So; instead of that, they were huzzaing and whistling, crying—damn you, fire! why don’t yon fire? So that they were actually assisting these twelve sailors that made the attack. lie says the soldiers were pushing at the people to keep them off; ice and snow were thrown, and “I heard ice rattle on their guns.” There were some clubs thrown from a considerable distance across the street. This witness swears he saw snowballs thrown close before the party, and he took them to be thrown on purpose. He saw oyster-shells likewise thrown. Mr. Langford, the watchman, is more particular in his testimony, and deserves a very particular consideration, because it is intended by the counsel for the Crown that his testimony shall distinguish Killroy from the rest of the prisoners, and exempt him from those pleas of justification, excuse or extenuation, which we rely upon for the whole party; because he had previous malice, and they would from hence conclude be aimed at a particular person. You will consider all the evidence with regard to that by itself.

Hemmingway, the sheriff’s coachman, swears he knew Killroy, and that he heard him say he would never miss an opportunity of firing upon the inhabitants. This is to prove that Killroy had preconceived malice in his heart, not, indeed, against the unhappy persons who were killed, but against the inhabitants in general—that he had the spirit, not only of a Turk or an Arab, but of the devil. But admitting that this testimony is literally true, and that he had all the malice they would wish to prove, yet, if he was assaulted that night, and his life in danger, he had a right to defend himself, as well as another man. If he had malice before, it does not take away from him the right of defending himself against any unjust aggressor. But it is not at all improbable that there was some misunderstanding about these loose expressions. Perhaps the man had no thoughts of what his words might import. Many a man in his cups or in anger, which is a short fit of madness, hath uttered the rashest expressions, who had no such savage disposition in general. So that there is but little weight in expressions uttered at a kitchen fire, before a maid and a coachman, where he might think himself at liberty to talk as much like a bully, a fool, and a madman as he pleased, and that no evil would come of it. Strictly speaking, he might mean no more than this: that he would not miss an opportunity of firing on the inhabitants if he was attacked by them in such a manner as to justify it. Soldiers have sometimes avoided opportunities of firing, when they would have been justified if they had fired. I would recommend to them to be tender, by all means—nay, let them be cautious, at their peril. But still what he said amounts in strictness to no more than this:—“If the inhabitants make an attack on me, I will not bear from them what I have done already;” or “I will bear no more than what I am obliged by law to bear.” No doubt it was under the fret of his spirits, the indignation, mortification, grief, and shame, that he had suffered a defeat at the Rope-walks. It was just after an account of an affray was published here, betwixt the soldiers and inhabitants at New York. There was, a little before the 5th of March, much noise in this town, and a pompous account in the newspapers of a victory obtained by the inhabitants there over the soldiers, which, doubtless, excited the resentment of the soldiers here, as well as exultations among some sorts of the inhabitants. And the ringing of the bells here was, probably, copied from New York—a wretched example, in this and in two other instances, at least. The defeat of the soldiers at the Rope-walks was about that time, too; and if he did after that use such expressions, it ought not to weigh too much in this case. It can scarcely amount to proof that he harbored any settled malice against the people in general. Other witnesses are introduced, to show that Killroy had, besides his general ill-will against every body, particular malice against Mr. Gray, whom he killed, as Langford swears.

Some of the witnesses have sworn that Gray was active in the battle at the Rope-walks, and that Killroy was once there; from whence the counsel for the Crown would infer that Killroy, in King street, on the 5th of March, in the night, knew Gray, whom he had seen at the Rope-walks before, and took that opportunity to gratify his preconceived malice. But if this is all true, it will not take away from him his justification, excuse, or extenuation, if he had any. The rule of die law is, if there has been malice between two, and at a distant time afterwards they meet, and one of them assaults the other’s life, or only assaults him, and he kills in consequence of it, the law presumes the killing was in self-defence, or upon the provocation, not on account of the antecedent malice. If, therefore, the assault upon Killroy was so violent as to endanger his life, he had as good a right to defend himself, as much as if he never had before conceived any malice against the people in general, or Mr. Gray in particular. If the assault upon him was such as to amount only to a provocation, not to a justification, his crime will be manslaughter only. However, it does not appear that he knew Mr. Gray; none of the witnesses pretend to say that he knew him, or that he ever saw him. It is true they were both at the Rope-walks at one time, but there were so many combatants on each side, that it is not even probable that Killroy should know them all; and no witness says there was any rencontre there between them two. Indeed, to return to Mr. Langford’s testimony, he says he did not perceive Killroy to aim at Gray more than at him, but he says expressly he did not aim at Gray. Langford says, “Gray had no stick; was standing with his arms folded up.” This witness is, however, most probably mistaken in this matter, and confounds one time with another—a mistake which has been made by many witnesses in this case, and considering the confusion and terror of the scene, is not to be wondered at.

Witnesses have sworn to the condition of Killroy’s bayonet—that it was bloody the morning after the 5th of March. The blood they saw, if any, might be occasioned by a wound given by some of the bayonets in the affray—possibly in Mr. Fosdick’s arm—or it might happen in the manner mentioned by my brother before. One bayonet, at least, was struck off and it might fall where the blood of some person slain afterwards flowed. It would be doing violence to every rule of law and evidence, as well as to common sense and the feelings of humanity, to infer from the blood on the bayonet, that it had been stabbed into the brains of Mr. Gray, after he was dead, and that by Killroy himself, who had killed him.

Young Mr. Davis swears that he saw Gray that evening, a little before the firing; that he had a stick under his arm, and said he would go to the riot. “I am glad of it (that is, that there was a rumpus), I will go and have a slap at them, if I lose my life.” And when he was upon the spot, some witnesses swear he did not act that peaceable, inoffensive part which Langford thinks he did. They swear they thought him in liquor; that he ran about, clapping several people on the shoulders, saying, “Don’t run away—they dare not fire!” Langford goes on:—“I saw twenty or five and twenty boys about the sentinel, and I spoke to him, and bid him not be afraid.” How came the watchman Langford to tell him not to be afraid. Does not this circumstance prove that he thought there was danger, or, at least, that the sentinel, in fact, was terrified, and did think himself in danger? Langford goes on:—“I saw about twenty or five and twenty boys—that is, young shavers.” We have been entertained with a great variety of phrases, to avoid calling this sort of people a mob. Some call them shavers, some call them geniuses. The plain English is, gentlemen, most probably, a motley rabble of saucy boys, negroes and mulattoes, Irish Teagues, and outlandish jack tars. And why we should scruple to call such a set of people a mob I cannot conceive, unless the name is too respectable for them. The sun is not about to stand still or go out, nor the rivers to dry up, because there was a mob in Boston, on the 5th of March, that attacked a party of soldiers. Such things are not new in the world, nor in the British dominions, though they are comparatively rarities and novelties in this town. Carr, a native of Ireland, had often been concerned in such attacks; and indeed, from the nature of things, soldiers quartered in a populous town will always occasion two mobs, where they prevent one. They are wretched conservators of the peace!

Langford “heard the rattling against the guns, but saw nothing thrown.” This rattling must have been very remarkable, as so many witnesses heard it, who were not in a situation to see what caused it. Those things which hit the guns made a noise; those which hit the soldiers’ persons did not. But when so many things were thrown, and so many hit their guns, to suppose that none struck their persons is incredible. Langford goes on: “Gray struck me on the shoulder, and asked me, What is to pay? I answered, I don’t know, but I believe something will come of it by and by.” Whence could this apprehension of mischief arise, if Langford did not think the assault, the squabble, the affray, was such as would provoke the soldiers to fire? “A bayonet went through my great coat and jacket.” Yet the soldier did not step out of his place. This looks as if Langford was nearer to the party than became a watchman.

Forty or fifty people around the soldiers, and more coming from Quaker lane as well as the other lanes. The soldiers heard all the bells ringing, and saw people coming from every point of the compass to the assistance of those who were insulting, assaulting, beating, and abusing of them. What had they to expect but destruction, if they had not thus early taken measures to defend themselves?

Brewer saw Killroy, &c., saw Dr. Young, &c. “He said the people had better go home.” It was an excellent advice. Happy for some of them had they followed it; but it seems all advice was lost on these persons. They would hearken to none that was given them in Dock Square, Royal Exchange lane, or King street. They were bent on making this assault and on their own destruction.

The next witness that knows any thing was James Bailey. He saw Carrol, Montgomery, and White; he saw some around the sentry, heaving pieces of ice large and hard enough to hurt any man—as big as your fist. One question is, whether the sentinel was attacked or not. If you want evidence of an attack upon him, there is enough of it. Here is a witness, an inhabitant of the town—surely no friend to the soldiers, for he was engaged against them at the Rope-walks. He says he saw twenty or thirty around the sentry, pelting with cakes of ice as big as one’s fist. Certainly, cakes of ice of this size may kill a man, if they happen to hit some part of the head. So that here was an attack upon the sentinel, the consequence of which he had reason to dread, and it was prudent in him to call for the main guard. He retreated as far as he could. He attempted to get into the Custom House, but could not. Then he called to the guard, and he had a good right to call for their assistance. “He did not know, he told the witness, what was the matter, but he was afraid there would be mischief by and by;” and well he might, with so many shavers and geniuses around him, capable of throwing such dangerous things. Bailey swears Montgomery fired the first gun, and that he stood at the right, “the next man to me; I stood behind him,” &c. This witness certainly is not prejudiced in favor of the soldiers. He swears he saw a man come up to Montgomery with a club and knock him down before he fired, and that he not only fell himself, but his gun flew out of his hand, and as soon as he rose he took it up and fired. If he was knocked down on his station, had he not reason to think his life in danger? or did it not raise his passions and put him off his guard, so that it cannot be any more than manslaughter?

When the multitude was shouting and huzzaing, and threatening life, the bells all ringing, the mob whistling, screaming, and rending like an Indian yell, the people from all quarters throwing every species of rubbish they could pick up in the streets, and some who were quite on the other side of the street throwing clubs at the whole party, Montgomery in particular, smote with a club and knocked down, and as soon as he could rise and take up his firelock, another club from afar struck his breast or shoulder, what could he do? Do you expert he should behave like a stoic philosopher, lost in apathy? Patient as Epictetus while his master was breaking his legs with a cudgel? It is impossible you should find him guilty of murder. You must suppose him divested of all human passions, if you don’t think him, at the least, provoked, thrown off his guard, and into the furor brevis, by such treatment as this.

Bailey “saw the mulatto, seven or eight minutes before the firing, at the head of twenty or thirty sailors in Cornhill, and he had a large cord-wood stick.” So that this Attucks, by this testimony of Bailey, compared with that of Andrew and some others, appears to have undertaken to be the hero of the night, and to lead this army with banners. To form them in the firstt place in Dock Square, and march them up to King street with their clubs. They passed through the main street up to the main guard in order to make the attack. If this was not an unlawful assembly, there never was one in the world. Attucks, with his myrmidons, comes around Jackson’s corner and down to the party by the sentry-box. When the soldiers pushed the people off, this man, with his party, cried, Do not be afraid of them; they dare not fire; kill them! kill them! knock them over! And he tried to knock their brains out. It is plain, the soldiers did not leave their station, but cried to the people, Stand off! Now, to have this reinforcement coming down, under the command of a stout mulatto fellow, whose very looks was enough to terrify any person, what had not the soldiers then to fear? He had hardiness enough to fall in upon them, and with one hand took hold of a bayonet, and with the other knocked the man down. This was the behavior of Attucks, to whose mad behavior, in all probability, the dreadful carnage of that night is chiefly to be ascribed. And it is in this manner this town has been often treated. A Carr from Ireland, and an Attucks from Framingham, happening to be here, shall sally out upon their thoughtless enterprises at the head of such a rabble of negroes, &c., as they can collect together, and then there are not wanting persons to ascribe all their doings to the good people of the town.

[Mr. Adams proceeded to a minute consideration of every witness produced on the Crown side; and endeavored to show, from the evidence on that side, which could not be contested by the counsel for the Crown, that the assault upon the party was sufficiently dangerous to justify the prisoners; at least, that it was sufficiently provoking to reduce to manslaughter the crime, even of the two who were supposed to be proved to have killed. But it would swell this publication too much, to insert his observations at large, and there is the less necessity for it, as they will probably occur to every man who reads the evidence with attention. He then proceeded to consider the testimonies of the witnesses for the prisoners, which must also be omitted: and concluded.]

I will enlarge no more on the evidence, but submit it to you. Facts are stubborn things, and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence; nor is the law less stable than the fact. If an assault was made to endanger their lives, the law is clear: they had a right to kill in their own defence. If it was not so severe as to endanger their lives, yet if they were assaulted at all, struck and abused by blows of any sort—by snowballs, oyster-shells, cinders, clubs, or sticks of any kind—this was a provocation for which the law reduces the offence of killing down to manslaughter, in consideration of those passions in our nature which cannot be eradicated. To your candor and justice I submit the prisoners and their cause.

The law in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady, undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men. To use the words of a great and worthy man, a patriot and a hero, an enlightened friend of mankind, and a martyr to liberty—I mean Algernon Sidney, who, from his earliest infancy, sought a tranquil retirement under the shadow of the tree of liberty, with his tongue, his pen, and his sword. “The law (says he) no passion can disturb. ‘Tis void of desire and fear, lust and anger. ‘Tis mens sine affeetu; written reason; retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but without any regard to persons, commands that which is good and punishes evil in all, whether rich or poor, high or low.—‘Tis deaf, inexorable, inflexible.” On the one hand, it is inexorable to the cries and lamentations of the prisoners; on the other, it is deaf, deaf as an adder, to the clamors of the populace.

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VERDICT.

William Wemms, James Hartegan, William M’Cauley, Hugh White, William Warren, and John Carroll—NOT GUILTY.

Matthew Killroy, and Hugh Montgomery—GUILTY OF MANSLAUGHTER.

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[ Beginning ]


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