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Browsing: Legal Papers of John Adams, Volume 3

Docno: ADMS-05-03-02-0001-0004-0015

Author: Quincy, Josiah Jr.
Date: 1770-12-03

Josiah Quincy's Argument for the Defense1

3 December 1770

Monday[3 December], NINE o' Clock, the Court met according to adjournment, and proceeded.
Mr. Josiahm Quincy, junr.
May it please your Honours, and you Gentlemen of the Jury,
We have at length gone through the evidence in behalf of the { 227 } 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 council. 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 succeed evidence; and you must have traced yourselves, some of those consequences, turning out in evidence, which have had an 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 parte testimonies: individuals, as well as societies, 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 topicks, likely to come under a judicial decision; the criminality of this conduct is certainly inhanced, 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 find them practiced. In the present case, how great was the prepossession against us? And I appeal to you, Gentlemen, what cause there now is to alter our sentiments. { 228 } 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 enquiry 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 testimony with candor and accuracy—witnesses, whose credibility stands untouched—whose credibility, the council 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 oaths “Make true deliverance according to your evidence.” That is Gentlemen, having settled the facts, bring them truely 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 enquiry, 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 behaviour. Their actions accumulated guilt as it flew—at least, we may well suppose, the incensed people who related them, added new colours to the scene. The flame of resentment imperceptibly enkindles, and a common acquaintance with human nature will shew, 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 { 229 } 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. Hirons's testimony, and some others. But our enquiry is—What says the law? We must calmly enquire, 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 mixt 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 in titled 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 suppo• { 230 } sition, 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 the party injurying 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 foun[d]ed 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.” Crown Law 296.2 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 endeavour to come at truth by analyzing the evidence, and arranging it, under distinct heads of enquiry.
Mr. Quincy now entered, at large, upon a review of the appearances in several parts of the town: he was copious upon the expressions and behaviour sworn to.
He, then, more particularly recapitulated the evidence touching Murray's Barracks, Dock-square, and the Market-place.3
{ 231 }
He next pursued several parties, through the several lanes and streets, till they centered at the scene of action.
The testimonies of the witnesses, who swore to the repeated information given the people;—that the Sentry and party were on duty;—that they were desired to withdraw and warned of the consequences;—were in their order considered.4
Under the next three heads, was remarked “the temper of the Sentry, of the party of soldiers, and of the people surrounding them.”
The words, insult and gestures of the same persons were next pointed out: and from thence was collected the designs of the persons assaulting, and the reasonable apprehensions of those assaulted.5
Mr. Quincy then came to the attack itself;—considering who the persons were(namely some sailors;) remarking minutely the words and actions immediately preceeding the on set; the weapons used; the violence of the assault and battery; and the danger of the soldiers.6
Mr. Quincy next exhibited those parts of the testimonies, which evidenced the attack continued after the firing.7
Under all these heads, there was methodically stated the number of the witnesses to each point, and by a comparative view of all the proofs, conclusions drawn as to the force of the whole.
The next consideration, in this mode of enquiry, was the evidence as severally pertaining to each prisoner; with such observations, on the one hand, as served to shew a defect of legal proof as to fact; on the other, such matters served to justify, excuse or extenuate the offence, in law.8
And particularly with regard to Killroy, 9 Mr. Quincy cited and commented on the following passages from Judge Foster's Crown law, and the Marquiss of Beccaria's Essay on Crimes and punishments.
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“WORDS are often misrepresented, whether through ignorance, in attention, or malice, it mattereth not the defendant, he is equally effected in either case; and they are extremely liable to misconstruction. And with all, this evidence is not in the ordinary course of things to be disproved by that sort of negative evidence by which the proof of plain facts may be and often is confronted.” Crown Law, 243.10
“Finally, the CREDIBILITY of a witnesses is NULL, when the question relates to the WORDS of a criminal; for the tone of voice, the gesture, all that preceds, accompanies and follows the different ideas which men annex to the same words, may so alter and modify a man's discourse, that it is almost impossible to repeat them precisely in the manner in which they were spoken. Besides, violent and uncommon actions, such as real crimes, leave a trace in the multitude of circumstances that attend them, and in their effects; but Words remain only in the memory of the hearers, who are commonly negligent or prejudiced. It is infinitely easier then to found an accusation on the Words, than on the actions of a man; for in these, the number of circumstances, urged against the accused, afford him variety of means of justifications.” Essay 48, 9.11
May it please your Honours, 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 speices, with all their feelings, passions and infirmities; a law which does not go upon the absurd supposition, that men are stocks and stones; or that in the fervour of the blood, a man can act with the diliberation and judgment of a philosopher. No Gentlemen:—the law supposes that a principle of resentment, for wise and obvious reasons, is deeply implanted in the human heart; and not to be eradicated by the efforts of state policy. It, therefore, in some degree conforms itself to all the workings of the passions, to which it pays a great indulgence, so far as not to be wholly incompatible, with the wisdom, good order and the very being of government.
Keeping therefore this full in view, let us take once more, a very { 233 } brief and cursory survey of matters supported by the evidence. And, here, let me ask sober reason—What language more approbrious—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 colour 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,12 to be twitted with so in famous 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 honour, 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 reitterated at the onset; at lest, were yet sounding in the ear. Gentlemen of the jury, for heaven's sake, let us put ourselves in the same situation!13 Would you not spurn at that spiritless institution of society, which tells you to be a subject at the expence of your manhood?
But does the soldier step out of his ranks to seek his revenge? Not a witness pretends it: Did the people repeatedly come within the points of their bayonets, and strike on the muzzels of the guns?—You have heard the witnesses.
Does the law allow one member of the community to behave in this manner towards his fellow citizen, and then bid the injured party be calm and moderate? The expressions from one party were “Stand off—stand off”—“I am upon my station”—“if they molest me upon 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 { 234 } 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 in kindles, 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 mad man. 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. To expect, under these circumstances, that such words would asswage 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!
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, it's institutions cannot, with any propriety, be adduced for our regulation in these days. It is with pain, therefore, I have observed any endeavour 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 like to be done, by giving the mind a biass, 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, “Whoso ever shedeth 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 it's strict { 235 } litteral lattitude, 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 mans layer might flee, from the avenger of blood.14 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 slay him?” I answer, if the laws of our country slay 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.” 15 Here again, is a begging the question; and more over 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 those words seem to be wrong 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 the punishment of death, we must suffer. But what fault we have cummitted you are to enquire: 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 there by inflicted as a penalty.
In order to come at the whole law resulting from the facts which have been proved, we must enquire 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?
{ 236 }
For What did the soldiers assemble?
Was the Sentinel insulted and attacked?
Did he call for assistance, and did the party go to assist him?
Was it lawful for them so to do?
Was the soldiers when thus lawfully assembled, assaulted, &c. by a great number of people assembled, &c.
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?
  {   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?  
    Or felonious?      
If felonious, was it   {   with or without   }     Malice?  
Under each of these heads of enquiry, in their order, Mr. Josiah Quincy arranged his arguments; and as he separated and compared, and settled the facts, he applied his law, with explanatory comments. In the course of which he necessarely run over again facts, that had been before noticed, which occasions our omission of this part of his defence. But for the sake of those, who would chuse to inspect, at their leisure, the authorities. They are here subjoined in the order in which they were cited.16
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Hawkin's Vol. II. p.29.17 9. ibid.18 —Mutiny Act p. 115, 116, 117, 118 §78. 8.19—Blackstone's Com. Vol. I. p. 147, 262, 335, 33620 —Blackstone Vol. IV. p. 194, 19521—3d Institute p. 51. 5722— Blackstone Vol. IV. p. 191, 19223—Foster's Crown Law 276, 277, 278, 262, 25724—Blackstone Vol. IV. p. 200 top.25
Blackstone Vol. IV. p. 180, 28026—Foster's Crown Law p. 29827—3d Institute, 56 top28—Hawkins Vol. I. 75—ibid. 71 bot. ibid. 72 top29—Foster's Crown Law 273, 274.30—Keil. 128, 129, 51.31
Foster's Crown Law 278. 277. 276. 295.32
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Blackstone Vol. IV p. 19133—Foster's Crown Law p. 27734—Blackstone Vol. IV. p. 19235—Foster's Crown Law p. 298. 296. 29236— 3d Institute p. 55 bot.37—Hawkins Vol. I. p. 82 bot., 84 mid.38— Hawkins pleas of the Crown Vol. I. p. 48439—Hawkins Vol. I. 85 mid.40—Cro. Car. p. 537 Cooks case41—Hale Vol. II. p. 27442— Blackstone Vol. IV. p. 18343—Hawkins Vol. I. p. 82 bot.44—Keil.p. 135 bot.45
Foster p. 261, 26246—Blackstone Vol. IV. p. 2747—Hawkins Vol. I. p. 84 §4448—Foster p. 350 §5.49
Hawkins Vol. I. Chap. 31, §2150—cites Bulstrode p. 86, 8751— Keil. p. 5152—Lord Bacon's Elem. 25.53
The law laid down, in Foster, 261, 2. before cited, being indisputable law, not denied or controverted; and being very material in the trial, and much relied on by the prisoners, is here set down at large.
“I will mention a case, (says the learned Judge,) which through the ignorance or lenity of juries hath been sometimes brought within the { 239 } rule of accidental death. It is where a blow aimed at one person lighteth upon another and killeth him. This, in a loose way of speaking, may be called accidental with regard to the person who dieth by a blow not intended against HIM. But the law considereth this case in a quite different light. If from circumstances it appeareth that the injury intended to A. be it by poison, blow, or ANY OTHER MEANS OF DEATH, would have amounted to murder, supposing him to have been killed by it, it will amount to the same offence if B. happeneth to fall by the same means. Our books say, that in this case the malice egreditur personam. But to speak more intelligibly, where the injury intended against A. proceeded from a wicked, murderous, or mischievous motive, the party is answerable for all the consequences of the action, if death ensues, from it, though it had not its effect upon the person whom he intended to destroy. The malitia I have already explained, the heart regardless of social duty DELIBERATELY bent upon mischief, consequently the guilt of the party is just the same in the one case as the other. On the other hand, if the blow intended against A. and lighting on B. arose from a sudden tra [n] sport of passion which in case A. had died by it, would have been reduced to manslaughter, the fact will admit of the SAME ALLEVIATION if B. should happen to fall by it.” To the same effect are other authorities.
May it please your Honours, and you Gentlemen of the Jury.
I have now gone thro' 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 safe-guard 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 ages, whose sentiments are as free air, and who has done as much for learning, liberty, and mankind, as any of the Sons of { 240 } Adam; I mean the sagacious Mr. Locke: He will tell you, Gentlemen, in his Essay on Government, p. 2. c. 3. “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.”54 According to this doctrine, we should have nothing to do, but enquire, whether here was “force without right:” if so, we were in such a state, as rendered it LAWFUL to KILL the aggressor, who “put us under so 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 world, that the greatest friends to their country, to universal liberty, and the immutable rights of all men, have held tenets, and advanced maxims favourable to the prisoners at the bar. And although we should not adopt the sentiments of Mr. Locke in their most extensive latitude, yet there seems to be something very analogous to his opinion, which is countenanced in our laws.
There is a spirit which pervades the whole system of English jurisprudence, which inspires a freedom of thought, speech and behaviour. 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 it's 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.”)55 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 man;” that “benignity and condescention 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 { 241 } so much more, that I must has ten 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 circumstances, placed a confidence, it was my 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.”56

“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 enquiry 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 here after insure 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,” discend and rest upon you and your posterity.
1. Wemms Trial 134–148.
3. “Many Commotions in various parts of Town, and guilty of at least in discreet Conduct. The affair at Mu[rray's] Barracks. Danbrook says 30 Sailors with Cordwood sticks and Clubs.” Paine Massacre Notes.
4. “He can fire but once, shews what they intended to do if he did fire. The People were told the Centry was on duty and warned of their Danger.” Paine Massacre Notes.
5. “What the People said to the Sentry and Party: The Temper of White the Sentry. The Temper of Party. I have not gone into the Tumult of the Town, because I dont think it much to the point.” Paine Massacre Notes.
6. “The attack on the Party. Where are we got if Negative Evidence shall outweigh Positive. Andrews evidence the most distinct. Carr's dying Speech.” Paine Massacre Notes.
7. “A rushing in and striking after 1st Gun. Fosdick. Palmes. Bliss.” Paine Massacre Notes.
8. “The Evidence of the Individuals at Bar. Every Witness who testifys to Montgomery testifys also facts to Justify or extenuate. The Eyes of all are on us to see we do right. McCauley did not fire. Warren and Kilroy at Rope walk, it is nothing to do with this.” Paine Massacre Notes.
9. “Kilroy, the evidence heard [hardest] against him. Bayonet bloody.” Paine Massacre Notes.
11. Beccaria, An Essay on Crimes and Punishments . The editors have used the 4th edition, London, 1775, but Quincy, like JA , probably used the London edition of 1770. “This applyd to Hemmingway, and may be applied to Carrs speech and all the Speeches by Inhabitants.” Paine Massacre Notes.
12. “Three of the sergeants' halberds were used to erect a tripod, with a fourth one fixed horizontally, to which the victim was tied. . . . A cat-of-nine-tails was used.” R. M. Barnes, History of the Regiments and Uniforms of the British Army 125–126 (no date).
13. “Place yourselves in King Street and consider how the soldiers view'd 'em. Consider the exasperating expressions.” Paine Massacre Notes.
14. See Numbers 35:6–15.
15. Numbers 35:31.
16. In the Adams Papers (Microfilms, Reel No. 185) is a detached small sheet containing JA 's very compressed minutes on Josiah Quincy's authorities. These are set out below in the present footnote, rather than as text, because the Wemms Trial transcript is so much fuller; annotation is, however, deferred except for the two citations not included in the Wemms Trial . A comparison of JA 's minutes of Quincy's authorities with the very similar ones (not printed here) in Paine's Massacre Notes on the same subject suggests that Quincy's argument as printed in the Wemms Trial had the benefit of Quincy's legal after thoughts.
JA 's minutes are as follows:
J. Q. Mutiny Act. 9. 10. Ar[ti]cles of War. Oath 147. 1. Black. 262. K. has the sole Power. 335. 6. 414. If any soldier shall sleep upon his Post, or disobey his lawfull Command. [The quotation, 1 Blackstone, Commentaries *414, is: “it is enacted, that if any officer and soldier shall . . . sleep upon his post, or leave before he is relieved, . . . or strike or use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself.”]
Foster 257. [] 4. Blac.180. [] 2. Foster 298. [] 3 Inst. 56. [] 1. H.H.P.C.482. [discusses killing se defendendo ]. 1 Hawk. 72. Dangerous Rioters. Foster 273. Repell Force by Force. [] Foster 274. Any other Person may interpose.
Key.128. 9. Not fit to be trusted with dangerous Weapons.
Excusable. Foster 278.
Manslaughter. Foster 198 [298?]. Foster 292. Stedmans Case. Keyling 51. The Room in the Tavern. Justifiable. Quaeried by Holt. Bacons Elements. 25.
Lock Gov. Page 2d. c. 3.
17. 2 Hawkins, Pleas of the Crown 29, discusses the powers of courts of assize and nisi prius.
18. 2 Hawkins, Pleas of the Crown 30, §9, continues the discussion.
19. The volume in question has not been located. Like every Mutiny Act since the first, 1 Wm. and Mary, c. 5 (1689), the Mutiny Act in force at the time of the Massacre, 9 Geo. 3, c. 3 (1768), Acts of 1768 59–99, set out the disciplinary rules for the government of the Army. See 1 Holdsworth, History of English Law 577.
20. The references are all to 1 Blackstone, Commentaries , but 147 seems an error, although it also appears in JA 's minutes set out in note 16 137 above. The other pages discuss the relationship of the Crown and the Army.
21. 4 Blackstone, Commentaries *194, *195, discusses the history of the definition of murder.
22. 3 Coke, Institutes *51: “Malice prepensed is, when one compasseth to kill, wound, or beat another, and doth it sedato animo.” Id. at 57 discusses homicide by misadventure.
23. 4 Blackstone, Commentaries *191, *192, discusses manslaughter on sudden provocation.
24. Foster, Crown Cases 257, 262, 276–278 discusses malice aforethought and killing in self-defense.
25. 4 Blackstone, Commentaries *200, discusses constructive, or presumed, malice aforethought.
26. 4 Blackstone, Commentaries *180, discusses justifiable homicide; “280” seems a mistake.
27. Foster, Crown Cases 298, discusses the Statute of Stabbing, 1 Jac. 1, c. 1 (1603), which takes away clergy for certain offenses.
28. 3 Coke, Institutes *56, discusses the law of self-defense.
29. 1 Hawkins, Pleas of the Crown 71–72, 75, discusses the law of self-defense.
30. Foster, Crown Cases 273, 274, discusses justifiable self-defense.
31. Reg. v. Mawgridge, Kelyng 119, 128–129, 84 Eng. Rep. 1107, 1111–1112 (Q.B. 1707) and Rex v. Ford, Kelyng 51, 84 Eng. Rep. 1078 (K.B. temp. Hyde C.J.), are two leading cases on the law of justifiable homicide.
32. Foster, Crown Cases 276–278 (see note 24 145 above). Id. at 295 discusses manslaughter
33. 4 Blackstone, Commentaries *191, discusses voluntary manslaughter.
34. See note 24 145 above.
35. 4 Blackstone, Commentaries *192, discusses involuntary manslaughter.
36. Foster, Crown Cases 292, 296, 298, discusses manslaughter.
37. 3 Coke, Institutes *55, discusses voluntary manslaughter.
38. 1 Hawkins, Pleas of the Crown 82, 84, discusses manslaughter.
39. This seems an in advertence for 1 Hale, Pleas of the Crown 484, which discusses “what the offense is, if a man kill another in the necessary saving of the life of a man assaulted by the party slain.”
40. 1 Hawkins, Pleas of the Crown 85, discusses manslaughter committed in defense of another.
41. Rex v. Cook, 3 Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1639).
42. 2 Hale, Pleas of the Crown 274, discusses challenging jurors.
43. 4 Blackstone, Commentaries *183, discusses self-defense.
44. See note 38 159 above.
45. Reg. v. Mawgridge, Kelyng 119, 135, 84 Eng. Rep. 1107, 1114 (Q.B. 1707). Killing on sufficient provocation is manslaughter.
46. Foster, Crown Cases 261–262, discusses the difference between murder, manslaughter, and accidental death.
47. 4 Blackstone, Commentaries *27, discusses death by misfortune or by mistake.
48. 1 Hawkins, Pleas of the Crown 84, §44, lays down that the accidental killing of a third person by one engaged in combat on a sudden quarrel is manslaughter.
49. Foster, Crown Cases 350, §5, discusses the law of accomplices and principals.
50. 1 Hawkins, Pleas of the Crown 80–81: “[W]herever two Persons in cool Blood meet and fight on a precedent Quarrel, and one of them is killed, the other is guilty of Murder, and cannot help himself by alledging that he was first struck by the Deceased.”
51. Egerton v. Morgan et al., 1 Bulstr. 69, 86–87, 80 Eng. Rep. 770, 786 (K.B. 1611). Appeal of murder. “If a challenge be sent and pa used upon and they fight, if death ensue, this is clearly murder on both sides.”
52. Rex v. Ford, Kelyng 51, 84 Eng. Rep. 1078 (K.B. temp. Hyde, C.J.). See note 31 152 above.
53. Presumably, Bacon, Elements of the Common Laws of England, possibly c. 5. See note 6 183 below.
54. The exact text has not been discovered. It appears that the “p. 2” refers to Part Two, rather than page two. Chapter three of Locke's Second Treatise of Government does, however, support Quincy's point. John Locke, Two Treatises of Government 298 (Cambridge, ed. Laslett, 1960). See also id. at 437. Quincy seems to have taken the citation, and the quotation of Locke, omitting the words “upon a man's person” after “force without right,” from 4 Blackstone, Commentaries *181.
55. The source has not been identified.
56. The source has not been identified.