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Browsing: Legal Papers of John Adams, Volume 3

Docno: ADMS-05-03-02-0001-0004-0019

Author: Trowbridge, Edmund
Author: Oliver, Peter
Date: 1770-12-05

Trowbridge's and Oliver's Charges to the Jury1

5 December 1770

Justice Trowbridge
Gentlemen of the Jury,
William Wemms, James Hartegan, William McCauley, Hugh White, Matthew Killroy, William Warren, John Carrol and Hugh Montgomery, prisoners at the bar, are charged by the Grand Jurors for the body of this county, with having feloniously and of their malice aforethought, shot and thereby killed and murdered Samuel Maverick, Samuel Gray, James Caldwell, Patrick Carr, and Crispus Attucks, against the peace, crown and dignity of our Sovereign Lord the King; { 283 } altho' it is laid in each indictment that some one of the prisoners in particular gave the mortal wound, yet as all the rest of them are charged with being present aiding and abetting him to do it, they are all charged as principals in the murder; and therefore, if upon consideration of the evidence given in this case, it should appear to you that all the prisoners gave the mortal wound, or that any one of them did it, and that the rest were present aiding and abetting him to do it, the indictment will be well maintained against all the prisoners, so far as respects the killing, because in such case, the stroke of one is, in consideration of law, the stroke of all.2 And as the crime whereof the prisoners are accused is of such a nature as that it might have been committed by any one of them, though the indictments purport a joint charge, yet the law looks on the charge as several against each of the prisoners.3 To this charge they have severally pleaded Not Guilty, and thereby thrown the burden of proof upon the crown. Considering how much time has already been taken up in this case, and the multiplicity of evidence that has been given in it, I shall not spend any time in recapitulating what each witness has testified, especially as your Foreman has taken it in writing from the mouths of the witnesses,4 but shall endeavour to point out the manner in which the { 284 } various testimonies are to be considered, and how the evidence given is to be applied, still leaving it with you to determine how far that which has been testified by each witness is to be believed. But before I do this, it may not be improper, considering what has in the course of this year been advanced, published, and industriously propagated among the people, to observe to you that none of the indictments against the prisoners are founded on the act of this province, or the law given to the Jews, but that, all of them are indictments at common law.5 The prisoners are charged with having offended against the common law, and that only; by that law therefore they are to be judged, and by that law condemned, or else they must be acquitted. This seems to make it highly proper for me to say something to you upon the common law, upon homicide and the several kinds and degrees of it, and the rules for trial of homicide as settled and established by the common law. The laws of England are of two kinds, the unwritten or common law, and the written or statute law. The general customs or immemorial usage of the English nation, is properly the common law. And the evidence thereof are the Records of the several Courts of Justice, the Books of Reports and Judicial Decisions, and the Treatises of the Sages of the Law, handed down to us from the times of the highest antiquity.6 The common law is the law by which the proceedings and determinations in the King's ordinary Courts of Justice, are guided and directed. This law is the birth right of every Englishman. The first settlers of this country brought it from England with them. It was in force here when the act of this province against murder was made.7 Murder here was then felony by common law, and excluded Clergy by, 23 H. 8. c. 1.8 and 1. Edw. 6. c. 12.9 So that, that province act, created no new felony. It was in affirmance of the common law. If murder by that act had been made a new felony, a murderer would now be intituled to the benefit of clergy by force of 25. E. 3. c. 4.10 because it is not taken away by that province act or any other made { 285 } since.11 Homicide is of three kinds, justifiable, excusable, and felonious. The first has no share of guilt at all—the second very little, but the third is the highest crime against the law of nature.12 There are also degrees of guilt in felonious homicide, which divide the offence into manslaughter and murder.13 I shall give some instances under each head, proper to be considered in this case, and known at this day. And first of justifiable homicide. Killing him who attempts to rob or murder me, to break open my dwelling-house in the night, or to burn it, or by force to commit any other felony on me, my wife, child, servant, friend, or even a stranger, if it cannot otherwise be prevented, is justifiable.14 By common law it was, and still is, the duty of peace officers, such as Justices of the Peace, Sheriffs, Under-sheriffs, and Constables, to suppress riots, routs, and unlawful assemblies. The Stat. 13. H. 4. c. 8.15 subjected Justices of the Peace, Sheriffs, and Under-sheriffs to the penalty of £100, if they neglected their duty therein. And as the common law obliges the peace officers to suppress riots, &c. so it empowers them to raise a sufficient force to enable them to do it. A Justice of the Peace, Sheriff, or Under-sheriff may raise the power of the county, and the Constable of a town, the people of that town, to aid and assist him in suppressing a riot and apprehending the rioters, and if they stand in their defence, resist the officer, and continue their riotous proceeding in pulling down a house, assaulting and beating, or abusing any person or persons, such rioters may lawfully be killed, if they cannot otherwise be prevented.16 It is the duty of all persons (except women, decrepid persons, and infants under fifteen,) to aid and assist the peace officers to suppress riots, &c. when called upon to do it. They may take with them such weapons as are necessary to enable them effectually to do it, and may justify the beating, wounding, and even killing, such rioters as resist, or refuse to surrender; if the riot cannot otherwise be suppressed, or the rioters apprehended.17 So in case of a sudden affray, if a private person interposing to part the combatants, and giving notice of his friendly de• { 286 } sign, is assaulted by them, or either of them, and in the struggle happens to kill, he may justify it, because it is the duty of every man to interpose in such cases to preserve the public peace.18 A fortiori private persons may interpose to suppress a riot.19
Homicide excuseable in self-defence is where one engaged in a sudden affray, quits the combat before a mortal wound given, retreats as far as he safely can, and then urged by meer necessity, kills his adversary in the defence of his own life.20 This differs from justifiable self-defence, because he was to blame for engaging in the affray, and therefore must retreat as far as he can safely; whereas in the other case aforementioned neither the peace officers, nor his assistants, nor the private person, is obliged to retreat, but may stand and repel force by force.21
Manslaughter is the unlawful killing another without malice express or implied: As voluntarily upon a sudden heat, or involuntarily in doing an unlawful act.22 Manslaughter on a sudden provocation, differs from excusable homicide in self-defence, in this; that in one case there is an apparent necessity for self-preservation to kill the aggressor, in the other there is no necessity at all, it being a sudden act of revenge.23 As where one is taken in the act of adultry, and instantly killed by the husband in the first transport of passion.24 So if one, on angry words, assaults another by wringing his nose, and he thereupon immediately draws his sword and kills the assailant, it is but Manslaughter, because the peace is broken, with an indignity to him that received the assault, and he being so affronted, might reasonably apprehend the other had some further design on him.25 Where one happens to kill another in a contention for the wall, it is but manslaughter.26 So where H and A came into Buckner's lodging, A takes { 287 } down a sword in the scabbard that hung there, stood at the chamber door with the sword undrawn, to prevent Buckner from going out before they could bring a Bailiff to arrest him for a debt he owed H; and upon some discourse between Buckner and H, Buckner takes a dagger out of his pocket, stabs and kills H with it. This was adjudged only manslaughter at common law, and not to come within the statute of 1. Ja 1.27 against stabbing, because Buckner was unlawfully imprisoned.28 So where an officer abruptly and violently pushed into a gentleman's chamber, early in the morning to arrest him, without telling him his business, or using words of arrest, and the gentleman not knowing him to be an officer, in his first surprise, took down a sword and stabbed him. This also was ruled to be but manslaughter at common law, because the gentleman might reasonably conclude from the officer's behaviour, that he came to rob or murder him.29 So where Marshal and some other Bailiffs, came to Cook's dwelling house about eight o'clock in the morning, called upon him to open his doors and let them enter, because they had a warrant, on such and such writs, at the suit of such persons, to arrest him, and required him to obey them, but he told them they should not enter, and bid them depart, and thereupon they broke a window, and then came to the door of the house, and in attempting to force it open, broke one of the hinges, whereupon Cook shot Marshal and killed him; it was adjudged not to be murder, because though Marshal was an officer, yet he was not in the due execution of his office, but was doing an unlawful act in attempting to break open the house to execute such a civil process; and every one has a right to defend his house in such cases; but to be man-slaughter, because Cook saw Marshal, knew him, shot and killed him voluntarily, when he might have resisted him without killing him.30 Though no words of reproach, nor actions, or gestures expressive of reproach or contempt, without an assault, will by common law free the party killing from the guilt of murder,31 yet words, of menace of bodily harm, may amount to such a provocation, as to make the offence to be but manslaughter.32
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If these determinations appear new and extraordinary to you, it is not to be wondered at, considering the doctrines that of late have been advanced and propagated among you. In the course of this year you doubtless have heard much of the law given to the Jews, respecting homicide, as well as of the precept given to Noah, that “Whoso shedeth man's blood, by man shall his blood be shed.”33 Whence it has been inferred, that whoever voluntarily kills another, whatever the inducement, or provocation may be, is a murderer, and as such ought to be put to death. But surely not only the avenger of blood, and he who killed a thief breaking up an house in the night, were exceptions to that general precept, but also he who killed another in his own defence. Even the Jewish Doctors allowed this34 and that justly; because the right of self-defence is founded in the law of nature. The Jews indeed, supposed their law equally subjected to death, him who killed another, whether of malice aforethought, or on a sudden falling out: but it seems the early Christian divines did not, for the Clergy in the reign of Canute, the beginning of the eleventh century, so construed the Mosaical law as to deem him a murderer, who in time past had conceived hatred against his neighbour and lain in wait for him and killed him, and him guilty of manslaughter only who killed another on sudden provocation; and it is ordained by one of the laws of this Canute, that if any person shall with premeditation kill another he shall be openly delivered up to the kindred of the slain, but if the killing be not with premeditation the Bishop shall take cognizance of it.35 And as homicides have since happened, and been tried in the King's Courts, the Judges have from time to time, determined them to be either justifiable, excusable, or felonious: and if felonious, to be murder or manslaughter, according to the particular circumstances that attended the killing.
These determinations of the King's Courts, for so many ages past, shew, not only what the common law in cases of this kind is, but that these rules of the common law, are the result of the wisdom and experience of many ages. However it is not material in the present case, whether the common law is agreeable to, or variant from, the law given to the Jews, because it is certain, the prisoners are not in this Court to be tried by that law, but by the common law, that is according to the settled and established rules, and antient customs of the nation, approved for successions of ages.
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Murder, by the common law, is the unlawful killing a reasonable creature, under the King's peace, of malice aforethought, by a person of sound mind and discretion.36 Malice is the grand criterion that distinguishes murder from all other homicide. Malice aforethought, is not confined to an old grudge, or fixed, settled anger against a particular person, but it extends to a disposition to do evil.37 It is the dictate of a wicked, depraved, and malignant spirit.38 As when one with a sedate, deliberate mind, and formed design kills another.39 Not where the killing is owing to a sudden transport of passion, occasioned by any considerable provocation. For the law pays such regard to human frailty, as not to put an hasty act, and a deliberate one, upon the same footing with regard to guilt.40 In the case of duelling, when two, upon a sudden quarrel, instantly draw their swords and fight, and one kills the other, it is manslaughter; but if on such a quarrel in the morning, they agree to fight in the afternoon, or so long after as that there is sufficient time for the blood to cool, the passions to subside, and reason to interpose, and they meet and fight accordingly, if one kills the other, it is murder.41 So if a man resolves to kill the next man he meets, and does it, it is murder, although he knew him not, for this shews the malignity of his heart, and his universal malice.42 So where one maliciously strikes or shoots at another, but misses him and kills a third person, whom he did not intend to hurt, it is nevertheless murder, because he is answerable for all the consequences of his malicious act;43 but if the blow intended against A, and lighting on B, arose from a sudden transport of passion, which in case A had died by it, would have reduced the offence to manslaughter, the fact will admit of the same alleviation if B should happen to fall by it.44 If two or more come together to do an unlawful act against the King's peace, of which the probable consequence might be bloodshed, as to beat a man, or commit a riot, and in the prosecution of that design, { 290 } one of them kills a man, it is murder in them all.45 So where one kills another wilfully without a considerable provocation, it is murder, because no one unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause.46 So if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray, or apprehend a felon, knowing his authority, or the intention with which he interposes, it is murder.47 As to the rules settled and established by common law, for the trial of homicide, it is observable, That no person can by common law, be held to answer for any kind of homicide, at the suit of the King only, unless he be first accused thereof by a Jury of the county where the fact was done.48 That he who is so accused, may on the plea of Not Guilty, not only put the council for the King upon the proof of the fact, but when it is proved, may give any special matter in evidence to justify or excuse it, or to alleviate the offence.49 That the facts are to be settled by another Jury of the same county,50 who are supposed to be best knowing of the witnesses and their credibility, and their verdict must be founded on the evidence given them in Court.51 That if any of the jurors are knowing of the facts, they ought to inform the Court of it, be sworn as witnesses, and give their testimonies in Court, to the end it may be legal evidence to their fellows, and the Court may know on what evidence the Jury's verdict is founded.52 That the Court are to determine the law arising on the facts, because they are supposed to know it.53 That the Jury, under the direction of the Court in point of law, matters of fact being still left to them, may give a general verdict conformable to such direction; but in cases of doubt, and real difficulty, the Jury ought to state the facts and circumstances in a special verdict, { 291 } that the Court upon farther consideration thereof, may determine what the law is thereon.54 That although malice is to be collected from all circumstances, yet the Court, and not the Jury, are the proper Judges thereof; as also, if the quarrel was sudden, whether there was time for the passions to cool, or whether the act was deliberate or not.55 The Judge ought to recommend to the Jury to find the facts specially, or direct them hypothetically, as—if you believe such and such witnesses, who have sworn so and so, the killing was malicious, and then you ought to find the prisoners guilty of murder; but if you do not believe these witnesses, then you ought to find them guilty of manslaughter only. And according to the nature of the case, if you on the evidence given, believe the facts to be so, then the act was deliberate, or if you believe them to be so, then it was not deliberate, and according as you believe, so you ought to find one or the other.56
To what has been said under this head I must add, that in the trial of this case, both the Court and Jury are as much obliged to observe these rules, as a Court and Jury in England would be in the trial of a like case there; the law in these respects is the same here, as there. A Juror's oath in this case is also the same here as there.57 Therefore as by law, you are to settle the facts in this case, upon the evidence given you in Court: you must be sensible, that in doing it, you ought not to have any manner of regard to what you may have read or heard of the case out of Court. And as it is the proper business of the Court, to determine the law arising upon the facts, you must also be sensible, that you are to take the law from the Court, and not collect it from what has been said by people out of Court, or published in the newspapers, or delivered from the pulpits.
Having premised these things, I shall observe to you, the several questions that arise in this case; and point out to you the manner in which I think they may be best considered and determined.
The principal questions are these, viz.
I. Whether the five persons said to be murdered, were in fact killed? And if so.
II. Whether they, or either of them were killed by the prisoners, or either of them? And if they were, then
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III. Whether such killing was justifiable, excusable, or felonious? And if the latter.
IV. Whether it was manslaughter or murder?
As to the first, you have not only the coroner's inquest, but the testimony of so many witnesses, that the five persons were shot and thereby mortally wounded in the night of the 5th of March last, and that some of them died instantly, and the rest in a few days after, that you doubtless will be satisfied they were all killed. And the same evidence must I think, also convince you, that they were all killed by the party of soldiers that were at the Custom-house that night, or by some of them.
Whether the prisoners were there, will therefore be your next enquiry; for if either of them was not, he must be acquitted. You have the testimony of Bridgham and Simpson as to Wemms; of Danbrooke and Simpson as to Hartegan; of Austin as to McCauley; of Simpson, Langford, Bailey and Clark as to White; of Archibald, Lang-ford and Brewer as to Killroy; of Dodge and Simpson as to Warren; and of Bailey, Bass, Palmes, Danbrooke and Wilkinson as to Montgomery's being at the Custom house that night, and of the party of soldiers that was there; and this is not contested with any opposite proof. The law doth not in this case make the testimony of two witnesses necessary for the Jury to settle a fact upon: If one swears it, and upon his testimony you believe it, that is sufficient evidence for you to find the fact. But if you are satisfied upon the evidence, that all the prisoners were there, yet, as each prisoner is severally charged with having killed these five persons, and by his plea has denied the charge, you must be fully satisfied upon the evidence given you, with regard to each prisoner, that he in particular, did in fact, or in consideration of law, kill one or more of these persons that were slain, or he must be acquitted.
The way therefore to determine this, will be for you to name some one of the prisoners, and then consider, whether it appears upon the evidence in the case, that he did in fact kill Maverick? And then, whether upon the evidence it appears, he in fact killed Gray? And so enquire in the same manner, whether he did in fact kill either of the other three persons? And having noted how it appears upon the evidence with regard to him; you must then proceed in like manner with each of the other prisoners; and if upon a full consideration of the evidence in the case, you should be in doubt, as to any one of the prisoners having in fact killed either of the persons that were slain, you must consider whether he did it in consideration of law? Now all that { 293 } are present, aiding and abetting one person in killing another, do, in judgment of law, kill him. The stroke of one is, in consideration of law, the stroke of all. When a number of persons assemble together to do an unlawful act, and in prosecution of that design, one of them kills a man, all the rest of the company are in law considered as abetting him to do it.58
You must therefore enquire how, and for what purpose, the prisoners came together at the Custom house, and what they did there before these persons were killed.
The Council for the prisoners say, that, if they were at the Custom house that night, they went there by order of the Captain of the Main guard, to support and protect the Sentry, who was insulted, assaulted and abused by a considerable number of people, assembled for that purpose; but as this is denied by the Council for the Crown, it will be proper to consider whether, a Sentry was duly placed at the Custom-house? And if so, whether he was attacked? And if so, whether the prisoners went by order of the Captain to support and protect him?
That a Sentry was in fact then placed at the Custom-house, by order of Colonel Dalrymple, the Commanding Officer, as also that one had been placed there for a long time before, is testified by Capts. O'Hara and Mason, and indeed the right to place Sentries, (it being in time of peace) is the only thing that has been questioned. Upon this, therefore I would observe, that as the main design of society, is the protection of individuals by the united strength of the whole community; so for the sake of unanimity, strength and dispatch, the supreme executive power is by the British constitution vested in a single person, the King. This single person has the sole power of raising fleets or armies; and the Statute of 13 Car. 2 c. 6.59 declares, That “within all his Majesty's realms and dominions, the sole supreme government, command and disposition of the militia, and of all forces by sea and land, and all forts and places of strength is, and by the law of England ever was, the undoubted right of his Majesty and his royal Predecessors, Kings and Queens of England.” And as Charles the Second had this right as King of England, it of course comes to his successors, and our present Sovereign Lord the King, now hath it.
Indeed the Bill of Rights declares among other things, That the raising or keeping a standing army, within the kingdom, in a time of peace, unless with the consent of Parliament, is against law. And it is said, { 294 } that upon the same principles whereon that declaration was founded, it is alike unlawful to be done in any other part of the King's dominions. But be that as it may, the Mutiny Acts annually made, shew the consent of Parliament, that the King in time of peace should keep up a standing army not only in the Kingdom, but in America also. They not only ascertain the number of troops that shall be kept up, but provide for the regulation of such of the King's troops as are in America. And therefore as by these acts the King is impowered to keep up these troops, and he, by common law, has the command and disposition of all forces by sea and land within his dominions, and is the principal conservator of the peace, he doubtless, well might send such part of those troops to this part of his dominions, in order to restore the public peace, or to aid and assist the civil Magistrate in preserving of it, as he judged necessary for the purpose; and if you should think there was no occasion for sending any troops here, for either of those purposes, that will not alter the case, because the King being the proper judge in that matter, the validity of his order will not depend upon the truth of the representations whereon it is founded. The acts not only fix the number of troops to be kept up, but also establish a law martial for their government. Among other things, the Acts subject every officer or soldier that sleeps on his post, or leaves it before he is relieved, or disobeys the lawful command of his superior officer, to such punishment as a Court Martial shall inflict, though it extend to death itself. These troops are, and ever since they came here, have been under this martial law, and subject to as strict regulation, as in time of war. Placing Sentries is a necessary part of the regulation of an army, accordingly a Sentry hath in fact been kept at the Custom-house, ever since the troops have been here; and it is sworn, by the Captains O'Hara and Mason, that it was done by order of the Commanding Officer. If so, you have no reason to doubt but that it was legally done.
Your next enquiry then will be, whether the Sentry so placed at the Custom house was attacked? Many witnesses have sworn that he was. But the Council for the Crown say, the contrary appears by the testimony of Col. Marshal and others.
It is with you to determine this matter upon the whole of the evidence given you. In doing it you ought to reconcile the several testimonies, if by any reasonable construction of the words it may be done. Where some witnesses swear they saw such a thing done, and others swear they were present and did not see it: if the thing said to be done be such as it may reasonably be supposed some might see and others not, by reason of their want of observation, or particular attention to { 295 } other matters there, as both may be true, you ought to suppose them to be so, rather than presume that any of the witnesses swear falsely. But if witnesses contradict each other, so that their testimonies cannot be reconciled, you must then consider the number of the witnesses on each side, their ability, integrity, indifference as to the point in question, and the probability or improbability arising from the nature of the thing in question, and upon the whole settle the fact as you verily believe it to be. If you find the Sentry was attacked, the next thing to be considered is, whether the prisoners went to protect him, and if so, whether it was lawful for them so to do. There is a great difference between a common affray, and attacking the King's forces. I think the law in that regard ought to be more generally known here than it seems to be. If upon a sudden quarrel from some affront given or taken, the neighbourhood rise and drive the King's forces out of their quarters, it is a great misdemeanor, and if death ensues it may be felony in the assailants, but it is not treason, because there was no intention against the King's person or government: But attacking the king's forces in opposition to his authority, upon a march or in quarters, is levying war against the King.60 And resisting the King's forces, if sent to keep the peace, may amount to an overt act of high treason.61 Though it may be attended with great inconveniences for private persons, without a peace officer, to make use of arms for suppressing an ordinary riot, yet if the riot be such an one as savours of rebellion, it doubtless may lawfully be done.62 You have heard what the witnesses deposed respecting the resolution taken to drive the soldiers out of town, “because they had no business here.” You have also heard what has been testified of the proposals to attack the Main-guard — of the assembling of the people especially in Dock-square — of the huzzaing for the Main guard and King-street— and of the attacking the Sentry. Now if this was done in pursuance of a resolution taken “to drive the soldiers out of the town, because they had no business here,” I will not now determine whether it was treason or not; but it certainly was a riot that savoured of rebellion; for the suppressing whereof, private persons might not only arm themselves, but make use of their arms, if they could not otherwise suppress it.63 Much more might the Captain of the Main guard take part of the guard, armed as usual, and go with them to protect the Sentry. By what Crookshanks, Benjamin Davis, Whitington, and others { 296 } have sworn, it seems the Sentry not only called to the Main-guard for assistance, but two men went and told them they must send assistance directly or the Sentry would be murdered. Whereupon the Captain gave orders that a party should go to the assistance of the Sentry, and they were drawn out accordingly, led down to the Custom house by a Corporal, and followed by the Captain. Now as this party did not assemble, or go there, of their own accord, but were sent by their Captain to protect the Sentry, it must be supposed that was their design in going until the contrary appears. And although upon the evidence you should not be satisfied that the Sentry was attacked in pursuance of a resolution taken to drive the soldiers out of town, because they had no business here, yet considering the notice given by the two men to the Captain, of the danger the Sentry was in, and what the Captain himself might then see and observe of the attack upon the Sentry, (if any regard is to be had to what a great number of the witnesses have sworn) he well might order out such a party, and go with them to protect the Sentry: And it seems to be agreed that if the prisoners were at the Custom-house that night, all of them, except the Sentry, were of that party. It has been said that this party of soldiers, when on their march, pushed Fosdick with a bayonet while he was standing peaceably in the street, and struck Brewer as soon as they got to the Custom-house, which shewed their design was to disturb the peace, and not to preserve it. But as Fosdick himself says, that, upon his refusing to move out of his place, they parted and went by him, you will consider whether it is not more reasonable to suppose, that what he calls a push was an accidental touch owing to the numbers in the street, rather than any thing purposely done to hurt him; and so with regard to the blow said to be given to Brewer. But supposing the push purposely given by one of the party, and the blow by him or another of them, it will by no means be sufficient to prove a design in the whole party, to disturb the peace, nor will all of them be involved in the guilt of one or more of them that broke the peace, unless they actually aided or abetted him or them that did it; because they were assembled and sent forth for a different purpose, and a lawful one.64 But if they were a lawful assembly when they got to the Custom house, yet if afterwards they all agreed to do an unlawful act to the disturbance of the peace, and in prosecution of that design Maverick and the rest were killed, all that party will by law be chargeable with each mortal stroke given by either of them, as though they all had in fact given it.
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And it is said, that while they were at the Custom-house, before they fired, some of them attempted with their bayonets to stab every one they could come at, without any reason at all for so doing. Such conduct to be sure can neither be justified nor excused. But as the time was so very short, and some of the witnesses declare the people were crouding upon the soldiers, and that they were moving their guns backwards and forwards crying stand off, stand off, without moving from their station, you will consider whether this may not be what other witnesses call an attempt to stab the people. But, be that as it may, if the party was a lawful assembly before, this not being the act of the whole, would not make it unlawful. The Council for the Crown insist, that the firing upon the people was an unlawful act, in disturbance of the peace, and as the party fired so near together, it must be supposed they previously agreed to do it; that agreement made them an unlawful assembly, if they were not so before, and being so when they fired, all are chargeable with the killing by any one or more of them. However just this reasoning may be, where there is no apparent cause for their firing, yet it will not hold good where there is. If each of the party had been at the same instant so assaulted, as that it would have justified his killing the assailant in defence of his own life, and there upon each of them had at that same instant fired upon and killed the person that assaulted him, surely it would not have been evidence of a previous agreement to fire, or prove them to be an unlawful assembly; nor would it have been evidence of such agreement though the attack was not such as would justify the firing and killing, if it was such an assault as would alleviate the offence, and reduce it to manslaughter, since there would be as apparent a cause of the firing in one case as in the other, and though not so good a cause, yet such an one as the law, in condescension to human frailty greatly regards. You will therefore carefully consider what the several witnesses have sworn, with regard to the assault made upon the party of soldiers at the Custom house, and if you thereupon believe they were, before, and at the time of, their firing attacked by such numbers, and in such a violent manner, as many of the witnesses have positively sworn, you will be able to assign a cause for their firing so near together, as they did, without supposing a previous agreement so to do. But it is said that if their firing as they did, don't prove a previous agreement to do it, yet it is good evidence of an actual abetment to fire, as one by firing encourages the others to do the like. As neither of the soldiers fired more than once, it is evident that he who fired last, could not thereby in fact, abet or encourage the firing of any of those who fired before him, and so it cannot be evidence of such abetment. And if he who { 298 } fired first and killed, can justify it, because it was lawful for him so to do, surely that same lawful act cannot be evidence of an unlawful abetment. And though he who first fired and killed, may not be able to justify the doing it, yet if it appears he had such a cause for the killing as will reduce it to Manslaughter, it would be strange indeed if that same act should be evidence of his abetting another who killed without provocation, so as to make him who fired first guilty of murder. The same may be said as to all the intermediate firings: and, as the evidence stands, I don't think it necessary to say how it would be in case the first person fired with little or no provocation. If therefore this party of soldiers, when at the Custom house, were a lawful assembly and continued so until they fired, and their firing was not an actual unlawful abetment of each other to fire, nor evidence of it, they cannot be said to have in consideration of law killed those five persons or either of them, but it must rest on the evidence of the actual killing: and, if so, neither of the prisoners can be found guilty thereof, unless it appears not only that he was of the party, but that he in particular infact did kill one or more of the persons slain. That the five persons were killed by the party of soldiers or some of them, seems clear upon the evidence, and indeed is not disputed.
Some witnesses have been produced to prove that Montgomery killed Attucks; and Langford swears Killroy killed Gray, but none of the witnesses undertake to say that either of the other prisoners in particular killed either of the other three persons, or that all of them did it. On the contrary it seems that one of the six did not fire, and that another of them fired at a boy as he was running down the street, but missed him (if he had killed him, as the evidence stands, it would have been murder) but the witnesses are not agreed as to the person who fired at the boy, or as to him who did not fire at all. It is highly probable, from the places where the five persons killed fell and their wounds, that they were killed by the discharge of five several guns only. If you are upon the evidence satisfied of that, and also that Montgomery killed Attucks, and Killroy Gray, it will thence follow that the other three, were killed, not by the other six prisoners, but by three of them only: and therefore they cannot all be found guilty of it. And as the evidence does not shew which three killed the three, nor that either of the six in particular killed either of the three, you cannot find either of the six guilty of killing them or either [of] them.65 If you are satisfied, upon the evidence given you, that Montgomery killed Attucks, you will proceed to inquire whether it was justifiable, { 299 } excusable, or felonious homicide, and if the latter whether it was maliciously done or not. As he is charged with murder, if the fact of killing be proved, all the circumstances of necessity or infirmity are to be satisfactorily proved by him, unless they arise out of the evidence produced against him, for the law presumeth the fact to have been founded in malice untill the contrary appears.66
You will therefore, carefully consider and weigh the whole of the evidence given you respecting the attack, made upon the party of soldiers in general, and upon Montgomery in particular. In doing it, you will observe the rules I have before mentioned, and not forget the part that some of the witnesses took in this unhappy affair, and if upon the whole it appears to you, that Montgomery was attacked, in such a violent manner, as that his life was in immediate danger, or that he had sufficient reason to think it was, and he thereupon fired and killed Attucks, for the preservation of his own life, it was justifiable homicide; and he ought to be acquitted. If you do not believe that was the case, but upon the evidence are satisfied, that he was by that assembly, assaulted with clubs and other weapons, and there-upon fired at the rioters and killed Attucks: then you ought to find him guilty of manslaughter only. But if upon the evidence you believe, that Montgomery, without being previously assaulted, fired, and killed Attucks: then you will find him guilty of murder. But you must know, that if this party of soldiers in general were pelted, with snow-balls, pieces of ice and sticks, in anger, this, without more, amounts to an assault, not only upon those that were in fact struck, but upon the whole party; and is such an assault as will reduce the killing to manslaughter. And if you believe, what some of the witnesses have sworn, that the people around the soldiers, and many of them armed with clubs, crouded upon the soldiers, and with the cry of, “Rush on, Kill them, Kill them, Knock them over,” did in fact rush on, strike at them with their clubs, and give Montgomery such a blow, as to knock him down, as some of the witnesses say, or to make him sally, or stagger, as others say—it will be sufficient to show, that his life was in immediate danger, or that he had sufficient reason to think so.
It seems, a doctrine, has of late been advanced, “that soldiers while on duty, may upon no occasion whatever fire upon their fellow subjects, without the order of a civil magistrate.” This may possibly account, for some of those who attacked the soldiers, saying to them, “You dare not fire, we know you dare not fire.” But it ought to be known, that the law doth not countenance such an absurd doctrine. A man by becoming a { 300 } soldier, doth not thereby lose the right of self-defence which is founded in the law of nature. Where any one is, without his own default, reduced to such circumstances, as that the laws of society cannot avail him, the law considers him, “as still in that instance under the protection of the law of nature.”67 This rule extends to soldiers as well as others; nay, while soldiers are in the immediate service of the King, and the regular discharge of their duty, they rather come within the reason, of civil officers and their assistants, and so are alike under the peculiar protection of the law.
If you are satisfied upon the evidence, that Killroy killed Gray, you will then enquire, whether it was justifiable, excusable or felonious homicide, and if the latter, whether it was with, or without malice. If the attack was upon the party of soldiers in general, and in the manner I have just mentioned, as some of the witnesses say it was, it is equally an assault upon all, whether all were in fact struck, or not, and makes no material difference, as to their respective right of firing: for a man is not obliged to wait until he is killed, or struck, before he makes use of the necessary means of self defence. If the blows with clubs were, by an enraged multitude, aimed at the party in general, each one might reasonably think his own life in danger; for though he escaped the first blow, he might reasonably expect more would follow, and could have no assurance, that he should be so fortunate as to escape all of them.
And therefore, I do not see but that Killroy is upon the same footing with Montgomery; and your verdict must be the same as to both, unless what Hemmingway swears Killroy said, or the affray at the Rope-walk, or both, materially vary the case. Hemmingway swears, that he and Killroy were talking about the town's people and the soldiers, and that Killroy said, “He never would miss an opportunity, when he had one, to fire on the inhabitants, and that he had wanted to have an opportunity, ever since he landed.” But he says, he cannot remember what words immediately preceded or followed, or at what particular time the words were uttered, nor does he know whether Killroy was jocular, or not. If the witness is not mistaken as to the words, the speech was at least, very imprudent and foolish. However, if Killroy, either in jest or in earnest, uttered those words, yet if the assault upon him was such, as would justify his firing and killing, or alleviate it so as to make it but manslaughter, that will not inhance the killing to murder. And though it has been sworn that Killroy and other soldiers, had a quarrel with Gray and others, at the Rope-walk, a few days before the 5th March, yet it is not certain that Killroy then knew Gray, { 301 } or aimed at him in particular: But if Gray encouraged the assault by clapping the assailants on their backs, as Hinkley swears he did, and Killroy saw this and knew him to be one of those that were concerned in the affray at the Rope walk, this very circumstance would have a natural tendency, to raise Killroy's passions, and throw him off his guard, much more than if the same things had been done by another person. In the tumult of passion the voice of reason is not heard, and it is owing to the allowance the law makes for human frailty, that all unlawful voluntary homicide is not deemed murder. If there be “malice between A and B, and they meet casually, A assaults B, and drives him to the wall, B in his own defence kills A, this is se defendendo, and shall not be heightened by the former malice, into murder or homicide at large, for it was not a killing upon the account of the former malice, but upon a necessity imposed upon him by the assault of A.”68 So upon the same principle, where the assault is such as would make the killing but manslaughter, if there had been no previous quarrel, the killing ought to be attributed to the assault, unless the evidence clearly shews the contrary: an assault being known and allowed by law to be a provocation to kill, that will free the party from the guilt of murder; whereas neither words of reproach, nor actions expressive of contempt, “are a provocation to use such violence,”69 that is, the law doth not allow them to be, without an assault such a provocation as will excuse the killing, or make it any thing less than murder.
Upon the same principle, where the assault is such, as makes the killing manslaughter, the killing ought to be attributed to the assault, unless the evidence clearly shows the contrary.
This meeting of Killroy and Gray was casual upon the part of Killroy at least; he was lawfully ordered to the place where he was and had no right to quit his station without the leave of Capt. Preston; nor were any of the party obliged to retreat and give way to the rioters, but might lawfully stand, and repel force by force.
It is needless for me to say what you ought to do with regard to the other six prisoners, in case they had gone to the Custom-house, not to protect the Sentry, but to disturb the peace, or after they got there and before the firing had agreed so to do; or in case they had actually unlawfully abetted the killing: because none of these things have been testified, nor can any of them be deduced from any thing which has been given to you in evidence.
Having already said much more upon this occasion, than I should { 302 } have thought necessary in a like case, at any other time, I shall add no more.
Justice Oliver.
Gentlemen of the Jury,
This is the most solemn trial I ever sat in judgment upon. It is of great importance to the community in general, and of the last importance to the prisoners at the bar. I have noticed your patience and attention during the course of the trial, which have been highly commendable and seem to have been adequate to the importance of the cause.
The occasion of this trial is the loss of five of our fellow-subjects, who were killed on the evening of the 5th of March last: whether the prisoners at the bar are chargeable with their death or not, it is nevertheless our part to adore the divine conduct in this unhappy catastrophe, and to justify the ways of GOD to man.
Here are eight prisoners at the bar who are charged with the murder of those five persons, and whose lives or deaths depend upon your verdict. They are soldiers, but you are to remember that they are fellow-subjects also. Soldiers, when they act properly in their department, are an useful set of men in society, and indeed, in some cases, they are more useful than any other members of society, as we happily experienced in the late war, by the reduction of Canada, whereby our liberties and properties have been happily secured to us: and soldiers, Gentlemen, are under the protection of the same laws equally with any other of his Majesty's subjects.
There have been attempts to prejudice the minds of the good people of this province against the prisoners at the bar, and I cannot help taking notice of one in particular, (which included also an insult on this Court) published in one of the Weekly Papers the day before this trial was to have come on.70 I think I never saw greater malignity of heart expressed in any one piece; a malignity blacker than ever was expressed by the savages of the wilderness, for they are in the untutored state of nature and are their own avengers of wrongs done to them; but we are under the laws of society, which laws are the avengers of wrongs done to us: I am sorry I am obliged to say it, but there are persons among us who have endeavoured to bring this Supreme Court of Law into contempt, and even to destroy the Law itself: there may come a time when these persons themselves may want the protection { 303 } of the law and of this Court, which they now endeavour to destroy, and which, if they succeed in their attempts, it may be too late for them to repair to for justice: but I trust, that the ancient virtue and spirit of this people will return and the law be established on a firm basis. If you, Gentlemen, have seen or read any of the libels which have been published, and have imbibed prejudices of any sort, I do now charge you, in that sacred Name which you have in the most solemn manner invoked for the faithful discharge of your present trust, to divest your minds of every thing that may tend to bias them in this cause: It is your duty to fix your eyes solely on the scales of justice and as the law and evidence in either scale may preponderate, so you are to determine by your verdict.
Gentlemen, the prisoners at the bar are indicted, with others, for the murder of five different persons; viz. Carrol for the murder of James Caldwell; Killroy for the murder of Samuel Maverick; White for the murder of Patrick Carr; Hartegan for the murder of Samuel Gray; Warren for the murder of Crispus Attucks. Observe, that the five prisoners I have now named, are severally charged as principals in the different supposed murders, and the others as aiding and abetting, which in the sense of the law makes the latter principals in the second degree.
I should have given to you the definitions of the different species of homicide, but as my brother hath spoke so largely upon this subject, and hath produced so many and so indisputable authorities relative thereto, I would not exhaust your patience which hath so remarkably held out during this long trial. But I would add one authority to the numbers which have been produced, not that it immediately relates to this case, but I the rather do it, because I see a mixt audience, and many from the country whom it more directly concerns: it is cited from the celebrated Ld. C. Just. HALE by the great and upright Judge FOSTER, viz. If a person, drives his cart carelessly and it runs over a child in the street; if he have seen the child and yet drives on upon him, it is MURDER because willfully done; here is the heart regardless of social duty: but if he saw not the child, it is MANSLAUGHTER; but if the child had run cross the way and the cart run over the child before it was possible for the carter to make a stop, it is by MISADVENTURE.71
The law that was given to Noah after the deluge, viz. Whosoever sheddeth Mans blood, by Man shall his blood be shed, hath lately been urged in the most public manner very indiscriminately, without any { 304 } of the softenings of humanity. Moses in his code of laws, mentions the same, though in different words, viz. He that killeth a man, he shall be put to death: but be pleased to remember Gentlemen, that Moses was the best Commentator on his own laws, and he hath published certain restrictions of this law, as, If one thrust another of hatred that he die, the slayer shall surely be put to death; but if he thrust him suddenly without enmity, or cast a stone upon him, not seeing him, so that he die, in those cases there were cities of refuge appointed for the manslayer to flee to, that his life might be safe: so that to construe that law to Noah strictly, is only to gratify a blood thirsty revenge, without any of those allowances for human frailties which the law of nature and the English law also make.
I would recommend to you, Gentlemen, in order to your forming a just verdict in this cause, to satisfy yourselves in the first place, whether or not the prisoners at the bar were an unlawful assembly when they were at the Custom-house, for on that much depends their guilt or innocence. That they were nigh the Custom-house when the five persons mentioned in the indictments were killed, you can have no doubt, for it is conceded. Inquire then how they came there. Now, two officers viz. Capt. Mason and Capt. O'Hara have sworn that a Sentinel was placed at the Custom-house, by orders of the commanding officer to protect the King's monies, and that it is at his peril if he stirs from his duty: it appears by divers witnesses that this Sentinel was attacked and called for aid; upon which a party, consisting of the prisoners at the bar with an officer at their head, went down to protect him: they were under obligation by act of parliament to obey their commanding officer; and thus far, being at their post constituted them a lawful assembly.
Consider next, whether those who were collected around the prisoners at the bar, were a lawful or unlawful assembly; and in order to satisfy yourselves, weigh the evidence that hath been offered impartially. But I cannot help taking notice in this place, that some delicacy hath been used at the bar, in calling those people a mob. Mob is only a contraction of a Latin word which signifies a tumultuous croud gathered, but I shall use the legal phrase and call such a croud a riotous assembly, if the sound is more agreeable than mob.
As my brother Trowbridge has been very full in his remarks upon the evidence, and as you Mr. Foreman have wrote down from the witnesses mouths what they testified, which is somewhat uncommon, and for which you are to be applauded, I shall therefore only make a few remarks on those I think the most material testimonies, not beginning in the order of examination, but in the order of time.
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Thomas Simmons says, that betwixt eight and nine o'clock on that unhappy evening, (which was before the firing, for the firing was not till between nine and ten) he heard people at the Sugar-house barracks, which are called Murray's barracks, say, if the soldiers would not come out and fight them, they would set fire to the four corners of the barracks, and burn every damned soul in them; that there was a considerable number of them armed with cutlasses, swords and sticks.
William Davis is the next witness I shall take notice of; he is a gentleman who is a stranger to me, but whose character stands unimpeached in this Court, and who hath given a distinct testimony of what passed under his notice: he says, that about eight o'clock he saw about two hundred in Forestreet, armed with different weapons, threatening to knock down the first soldier or bloody back they should meet; some proposed to go to the southward and join their friends there, and drive all the soldiers out of town. At Dock-square, about nine o'clock, he says he saw numbers in the market tearing up the stalls and saying, damn the dogs, where are they now? let us go and kill that damned scoundrel of a Sentry, and then attack the Main-guard; others said, Smith's barracks. At Olivers-dock he says, he saw numbers with clubs: one man was loading his piece, and said he would do for some of them scoundrels that night, and said, damn the villains, scoundrells, Soldiers and Commissioners, and damn the villain who first sent them here, they should not remain here above two days longer.
Allow me, Gentlemen, to make a pause at this last part of the evidence, viz. Damn the villain who first sent them here; and make an observation which I am sorry for the occasion of, the expression having been justified. I venture to affirm that man a villain who uttered it, for it was his Majesty who sent them here, and here they were fixed by his order and authority.
Dr. Hirons, who lives near to Murray's barracks hath told you, that a little after eight o'clock he saw people coming from Dock-square and heard the words, Town-born turn out, twenty or thirty times, and the people encreasing. He mentions the altercations between the officers and inhabitants, and a little man talking with an officer, saying, You know the town and country have been used ill, we did not send for you, we won't have you here, we'll get rid of you, or drive you away; and that then about two thirds of them went off and said, let's go to the Main-guard, huzza for the Main-guard.
Dr. Jeffries says, that about eight o'clock he saw the passage to Murray's barracks filled with inhabitants, who, with ill language dared the soldiers to fight: he imagines there were seventy or eighty people, { 306 } and but three soldiers, and that when the officers were endeavouring to appease the people, snow-balls were flung at them; and that when they told the people that the soldiers were secured in their barracks and could not come out, somebody replied, You mean they dare not come out, you dare not let them. Some then said home, others said, no we shall find some in King-street, others said, we'll go to the Main-guard. Dr. Jeffries hath been so distinct and particular, that you cannot but remember his testimony.
As to the pains which have been taken to exculpate this town from being concerned in the fatal action of that night, they seem to me to have been unnecessary. It is true, there hath been, in times past, no place more remarkable for order and good government than this town; but as it is a seaport town and of great trade, it is not to be wondered at, that the inhabitants of it should be infected with disorder as well as other populous places.
James Selkrig, with three others, say, that before the bells rang they saw, not far from Murray's barracks, a large number armed with different weapons; some of them say, nigh two hundred: that some of the people had been repulsed from the barracks, and after that, a tall man with a red cloak and white wig talked to the people, who listned to him, and then huzzaed for the Main guard. I cannot but make this observation on the tall man with a red cloak and white wig, that, whoever he was, if the huzzaing for the Main-guard and then attacking the soldiers, was the consequence of his speech to the people, that tall man is guilty in the sight of GOD, of the murder of the five persons mentioned in the indictment, and altho' he may never be brought to a court of justice here, yet unless he speedily flies to the city of refuge, the supreme avenger of innocent blood, will surely overtake him.
John Gridley hath told you, that he heard numbers before the Town-house say, GOD damn the rascals, some said, this will never do, the readiest way to get rid of those people, is to attack the Main-guard, strike at the root, this is the nest; others replied, damn you, that's right. All this was before the soldiers had formed.
It would be too tedious to recite the numbers of testimonies to prove a design to attack the soldiers: I have selected a few, which seem to prove the intent, for there are no less than thirty-eight witnesses to this fact, six of whom the council for the King have produced. Compare them Gentlemen, and then determine whether or not there is any room to doubt of the numbers collected around the soldiers at the Custom house, being a riotous assembly.
I will return now to the soldiers and view their behaviour whilst they { 307 } were going upon duty at the Custom house, and whilst they were there. As they were going from the Main guard to their post, to support the Sentry, (who by the way behaved with a good temper of mind, in endeavouring to avoid a dispute, by attempting to get into the Custom house, which he was by no means obliged to do,) I say, as they were going down, Nathaniel Fosdick says, they bid him make way, but he refused: instead of forcing him to give way, he says, they gave way to him, and passed to their post; when they got there, they loaded; and John Gridley says, that, whilst they were loading, he passed between the files and they put up their guns to let him pass. I cannot find, upon examining the testimonies, that any one soldier stir[r]ed from his post, and indeed it might have been fatal to him to have broke his orders; but on the contrary, it hath been said, that had they stepped forward, they might have killed the people, but they only pushed their bayonets as they stood, to keep off the people who were pressing on them; at the same time, bidding them keep off.
Now consider whether the prisoners had any just provocation to fire upon the inhabitants, for that some of them did fire, you can be in no doubt. There are twenty five witnesses who have sworn to ice, snowballs, sticks, &c. being thrown at the prisoners, ten of whom, are wi[t]nesses for the Crown. There are nigh thirty witnesses who have sworn to words of provocation uttered against the prisoners, as daring them to fire, and threatning to kill them; but you must remember that words only, are no provocation in law to justify the killing of a person; but if threatning expressions are attended with an attempt on the life of a man, in such a case a killing may be justified; and if any such facts appear in this trial, you must consider them thoroughly. And here, I would take notice of the testimonies of some of the witnesses, viz. that although they were close to the soldiers, they saw nothing of any kind thrown at them, nor heard any huzza or a threatning: nay, one witness is so distinct, as to tell, in a cloud of smoak, which guns killed the different persons. I know not how to account for such testimonies, unless by the witnesses being affrighted, which some of them say they were not: they themselves perhaps may satisfy their own minds.
Dr. Jeffries relates an account which he had from Patrick Carr, one of the deceased, who on his death bed repeatedly told him and confirmed it but a few hours before he died, that he went with a design against the soldiers, that the soldiers were pelted as they were going to their post, that he thought they were abused and that they would really have fired before, for he heard many voices cry out, kill them, and { 308 } that he thought they fired to defend themselves: that he forgave, and did not blame the man, whoever he was, that shot him; that he blamed himself for going to the riot, and might have known better, for he had seen soldiers called to quell riots, hut never saw any bear half so much before. This Carr was not upon oath, it is true, but you will determine, whether a man, just stepping into eternity, is not to be believed; especially in favour of a set of men by whom he had lost his life.
Ye have one difficulty to solve, Gentlemen, and that is, that there were five persons killed, and here are eight soldiers charged with murdering them. Now one witness says, that the Corporal did not fire, and Thomas Wilkinson says, that the guns of the third or fourth man from the eighth flashed, so that there are two guns of eight not discharged and yet it is said seven were fired. This evinces the uncertainty of some of the testimonies. My brother Trowbridge hath explained the difficulty of charging any one prisoner with killing any one particular person, and hath adduced an authority from Lord Chief Justice Hale, to support him; so that this maxim of law cannot be more justly applied, than in this case, viz. That it is better that ten guilty persons escape, than one innocent person suffer: indeed as to two of the prisoners, there is no great doubt of their firing, namely, Montgomery and Killroy. As to Montgomery, it seems to be agreed that he was on the right, and Richard Palmes says, that a piece of ice or a stick struck his gun before he fired: and Andrew, Mr. Wendell's Negro man (of whom his master gives a particular and good character) is very distinct in his account; and he says, that a stout man struck the grenadier on the right, first on his gun and then on his head, and also kept his bayonet in his left hand; and then a cry of kill the dogs, knock them over; upon which he soon fired: here take the words and the blows together, and then say, whether this firing was not justifiable.
As to Killroy, there have been stronger attempts to prove him guilty of murder than any other. Two witnesses have sworn, that his bayonet was bloody next morning; but nothing hath been offered in evidence to prove how it came so; I have only one way to account for it; if it was bloody, viz. that by pushing to keep off Nathaniel Fosdick it might become so by wounding him in the breast and arm. Nicholas Ferreter, who the week before beat one of the soldiers at the Rope-walks, says further, that Killroy was then at the Rope-walks; but at the same time he says, that Killroy uttered no threatnings but only daring the Rope-makers to come out. But Samuel Hemmingway says, that some time before the 5th March he heard Killroy say, that he would not miss an opportunity of firing on the inhabitants. How the conversation was had, { 309 } whether it was maliciously spoke or was jocose talk doth not so fully appear, but it would be extream hard to connect such discourse with this transaction; especially, as his being at the Custom House was not voluntary, but by order of his officer.
Thus Gentlemen, I have as concisely as I could, without doing injustice to the cause, summed up the evidence to you: I was afraid of being tedious, otherwise I should have more minutely considered it.
If upon the whole, by comparing the evidence, ye should find that the prisoners were a lawful assembly at the Custom house, which ye can be in no doubt of if you believe the witnesses, and also that they behaved properly in their own department whilst there, and did not fire till there was a necessity to do it in their own defence, which I think there is a violent presumption of: and if, on the other hand, ye should find that the people who were collected around the soldiers, were an unlawful assembly, and had a design to endanger, if not to take away their lives, as seems to be evident, from blows succeeding threatnings; ye must, in such case acquit the prisoners; or if upon the whole, ye are in any reasonable doubt of their guilt, ye must then, agreeable to the rule of law, declare them innocent.
As I said at first, this cause is of the last importance to the prisoners, their lives or deaths depend upon your verdict; and may you be conducted by the Supreme Wisdom to return such an one, as that your hearts may not reproach you so long as you live, and as shall acquit you at that tribunal, where the inmost recesses of the human mind shall be fully disclosed.
1. Wemms Trial 178–207. There are two pages numbered 192, and none numbered 200.
2. Note by Trowbridge: “1 Hale [Pleas of the Crown] 437, 463; 2, [id.][at] 344–345; Foster, [Crown Cases] 351; [Reg. v. Wallis, 1] Salk. 334, 335, [91 Eng. Rep. 294, 295 (Old Bailey 1703).”];
3. Note by Trowbridge: “2 Hawkins [Pleas of the Crown][240, c.] 25, §89.”
4. The notes of foreman Joseph Mayo of Roxbury have not survived, but those purportedly taken by Deacon Edward Pierce are in MHi: Photostats, and are here set out:
Hugh Wite. James Baley Saw White. Josiah Simpson Saw White. Thos: Hall Saw White.
William Warren. James Dodge Knew Warren. Nicholas Feriter Saw Warren at the fray. Josiah Simpson Saw Warren Under arms in the Party. Theodore Bliss Saw Warren fire.
William Whems, Josiah Simpson Saw Whems Under arms in the Party. Thos: Hall Saw Whems.
John Carroll. Mr. Austin Saw Carrall and heard Six or Seven Guns. James Baley Saw Carrall fire the Second Gun. John Danbrook Saw Carrall. Thos Hall Saw Carrall.
William McCawley. Mr. Austin Says that he Saw McCawley Load his Piece and Push his Bayonet at him.
Matthew Killroy. Lanksford Saw Killroy Present his Gun and fird and Gray fell at his feat then Pushd his Bayonet at Lanksford and run it through his Cloaths. Francis Archible Saw Killroy. Hemenway <Saw> heard Killroy Say he would not Miss an opportunity to fire on the Inhabitance. Nicholas firiter Saw Killroy. Joseph Crosswell Saw Killroy. Bayonet Bloodey the next morning. Thos Crawswell Saw Killroy. Jonathan Cary Saw the Same.
James Hartengem. John Danbrook Saw Hartengem. Josiah Simpson Saw Hartengem.
Hugh Montgomery. Test. James Baley Saw Mongomory fire the first Gun. Pointed towards the Molatto he Stood the Third from the Right. Parms Saw Mongomery and Pushd at me With his Bayonet twise. John Danbrook Saw Mongomory fire and Saw two Persons fall Near together. Jed: Bliss Saw Mongom Push his Bayonot and fire he thinks he heard Six Guns fire. Thos Wilkinson Saw Mongomory and heard Seven Guns fire and one Snap.
5. The term is loosely used, as the crimes were also statutory. See note 7 250 below.
6. Note by Trowbridge: “1 Blackstone, [Commentaries] *63–64.”
7. Note by Trowbridge: “Pro. Act, 9 Wm. 3 [“An Act Against Murder,” 23 Oct. 1697, I A&R 296].”
8. (1531).
9. (1547).
10. (1350).
11. Note by Trowbridge: “2 Hawkins, [Pleas of the Crown 342, c.] 33, §24; 2 Hale [Pleas of the Crown] 330, 334–335.”
12. Note by Trowbridge: “4 Blackstone, [Commentaries] *177–178.”
13. Note by Trowbridge: “4 Blackstone, [Commentaries] *190.”
14. Note by Trowbridge: “24 Hen. 8, c. 5 [(1532)]; 1 Hale, [Pleas of the Crown] 488; 4 Blackstone, [Commentaries] *180; Foster, [Crown Cases] 273, 274.”
15. (1411). (Actually c. 7.)
16. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown 71, c.] 28, §14, [158–159, c.] 65, §11; 1 Hale, [Pleas of the Crown] 53, 293–294, 495, 596 [i.e. 496]; 4 Blackstone [Commentaries] *147.”
17. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown 136 c.] 63, §10, [161, C.] 65, §§20, 21; 4 Blackstone [Commentaries] *147, 179–180.”
18. Note by Trowbridge: “Foster, [Crown Cases] 272; 1 Hawkins, [Pleas of the Crown 136, 137, c.] 63, §§11, 13.”
19. Note by Trowbridge: “[Rex v. Messenger et al.] Kelyng [70,] 76, [84 Eng. Rep. 1087, 1090 (Old Bailey, 1669)]; 1 Hawkins [Pleas of the Crown 158–159, c.] 65, §§11.”
20. Note by Trowbridge: “1 Hale, [Pleas of the Crown] 479; Foster, [Crown Cases] 277.”
21. Note by Trowbridge: “Foster, [Crown Cases] 273.”
22. Note by Trowbridge: “4 Blackstone, [Commentaries] *191.”
23. Note by Trowbridge: “4 Blackstone, [Commentaries] *192.”
24. Note by Trowbridge: “[Reg. v. Mawgridge,] Kelyng [119,] 137, [84 Eng. Rep. 1107, 1115 (Q.B. 1707)]; [Rex v. Manning, I]Ld. Raym. 212, [83 Eng. Rep. 112 (K.B. 1672)]; Foster, [Crown Cases] 298.”
25. Note by Trowbridge: “[Reg. v. Mawgridge] Kelyng [119,] 135, [84 Eng. 1107, 1114 (Q.B. 1707)].”
26. Note by Trowbridge: “1 Hawkins [Pleas of the Crown 82–83, c.] 31, §36; 1 Hale, [Pleas of the Crown] 455–456.”
27. (1603).
28. Note by Trowbridge: “[Protector v. Buckner,] Style 467, [82 Eng. Rep. 867 (U.B. 1655)]”
29. Note by Trowbridge: “Foster, [Crown Cases] 298–299; 1 Hale, [Pleas of the Crown] 370 [i.e. 470]; [Reg. v. Mawgridge, note 267 above, at] Kelyng 136 [84 Eng. Rep. at 1115].”
30. Note by Trowbridge: “Cro. Car. 537–538, Cook's Case [79 Eng. Rep. 1063–1064 (K.B. 1640)].”
31. Note by Trowbridge: “Foster, [Crown Cases] 290.”
32. Note by Trowbridge: “1 Hale [Pleas of the Crown] 456.”
33. Genesis 9:6.
34. Note by Trowbridge: “1 Hale [Pleas of the Crown] 4.”
35. Note by Trowbridge: “[Rex v. Dwyer, Gilb. Rep.] Ca. Eq. [267,] 270–271, [25 Eng. Rep. 183, 185 (K.B. Ireland ca. 1724). This case traces the history of 'benefit of clergy'].”
36. Note by Trowbridge: “3 [Coke,] Institutes *47; 4 Blackstone, [Commentaries] *195.”
37. Note by Trowbridge: “4 Blackstone, [Commentaries] *199.”
38. Note by Trowbridge: “Foster, [Crown Cases] 256.”
39. Note by Trowbridge: “4 Blackstone, [Commentaries] *199.”
40. Note by Trowbridge: “4 Blackstone, [Commentaries] *191.”
41. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown][78, 82, c.] 31, §§1, 29; [Rex v. Legg] Kelyng 27, [84 Eng. Rep. 1066 (Newgate Sessions 1663)], [Reg. v. Mawgridge, Kelyng 119,] 130, [84 Eng. Rep. 1107, 1112 (Q.B. 1707)]; Foster, [Crown Cases] 296; [Rex v. Oneby, 2] Ld. Raym. [1485], 1494–1495, [92 Eng. Rep. 465, 471 (K.B. 1727)]”
42. Note by Trowbridge: “4 Blackstone, [Commentaries] *200.”
43. Note by Trowbridge: “1 Hale, [Pleas of the Crown] 442; Foster, [Crown Cases] 261–262.”
44. Note by Trowbridge: “Foster, [Crown Cases] 262.”
45. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown 84, c.] 31, §46; 4 Blackstone, [Commentaries] *200.”
46. Note by Trowbridge: “4 Blackstone, [Commentaries] *200.”
47. Note by Trowbridge: “1 Hale, [Pleas of the Crown] 457; Foster, [Crown Cases] 270, 308; 1 Hawkins, [Pleas of the Crown 84 c.] 31, §44; 4 Blackstone, [Commentaries] *200–201.”
48. Note by Trowbridge: “4 Blackstone, [Commentaries] *343, *300–301.”
49. Note by Trowbridge: “4 Blackstone, [Commentaries] *332–333; [compare] 1 [Coke,] Institutes *283a.”
50. Note by Trowbridge: “2 Hawkins, [Pleas of the Crown 403, c.] 40, §1; 4 Blackstone, [Commentaries] *301.”
51. Note by Trowbridge: “1 Hale, [Pleas of the Crown] 635 [an apparent inadvertence; the correct citation has not been located]; Fortescue, De Laudibus Legum Angliae c. 28.”
52. Note by Trowbridge: “3 Blackstone, [Commentaries] * 374–375.”
53. Note by Trowbridge: “2 Hawkins, [Pleas of the Crown 148–149, c.] 22, §21; [2] Ld. Raym. [1485,] 1494 [see note 41 284 above]; Foster, [Crown Cases] 255–256, 280.”
54. Note by Trowbridge: “Foster, [Crown Cases] 255–256.”
55. Note by Trowbridge: “Foster, [Crown Cases] 257; [2] Ld. Raym. [1485], 1493–1495 see note 41 284 above.”
56. Note by Trowbridge: “Foster, [Crown Cases] 256; [2] Ld. Raym. [1485], 1494 see note 41 284 above; [Bushel's Case,]Vaughan[135,] 144, [124 Eng. Rep. 1006, 1010–1011 (C.P. 1670)].”
57. Note by Trowbridge: “2 Hale, [Pleas of the Crown] 293.”
58. Note by Trowbridge: “1 Hale, [Pleas of the Crown] 440–441; Foster, [Crown Cases] 351.”
59. (1661).
60. Note by Trowbridge: “Foster, [Crown Cases] 219.”
61. Note by Trowbridge: “4 Blackstone, [Commentaries] “147.”
62. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown 158–159, c.] 65, §11.”
63. Note by Trowbridge: “1 Hawkins, [Pleas of the Crown 158–159, c.] 65, §11.”
64. Note by Trowbridge: “Foster, [Crown Cases] 354; 2 Hawkins, [Pleas of the Crown 312–313, c.] 29, §9.”
65. Note by Trowbridge: “1 Hale, [Pleas of the Crown] 442.”
66. Note by Trowbridge: “Foster, [Crown Cases] 255.”
67. Note by Trowbridge: “Foster, [Crown Cases] 274–275 [i.e. 274].”
68. Note by Trowbridge: “1 Hale, [Pleas of the Crown] 479.”
69. Note by Trowbridge: “Kelyng 131 [see note 41 284 above]; Foster, [Crown Cases] 290.”
70. This may be “Suppos'd Misdemeanours fully atton'd for, or the Conduct of the Soldiery Justify'd,” Boston Gazette, 28 May 1770, p. 3, col. 1.