If therefore on the whole of the evidence offered, you should be of the mind that this meeting of the soldiers was lawful, as they were enjoyned it by their officer who had the command, you must look upon it that there being thus met was lawful; whether it was so or not may be after considered; but, on that supposition, it will be necessary for you to determine by which or how many of the prisoners, the deceased persons were slain, or who actually abetted those who did it; for the soldiers were not unlawfully assembled; the homicide cannot legally be imputed to them all; those only who did the act can be charged with it; let us then go into the enquiry.
With regard to some of the prisoners you have nothing particularly laid to their charge, save their being there. You will find, indeed, on looking over the evidence that they all were together there; Corporal Wemms, Warren, Montgomery, and the others, were all present when this fatal firing happened; but there are only two against whom anything certain can be fixed. There is indeed a third, viz., the tall man Warren; by the evidence of Burdick “on a man firing one fell;” he thinks it Warren, but is not certain of it; and when you find where he places the man who fired, it makes it the more doubtful, especially as it is against the general run of the other evidence.
However, it bears hard on this prisoner Kilroy; especially consider what Ferriter swears of Kilroy being in the affray at the Rope walks; and there some of them swore they would have satisfaction for what they there met with. This taken alone would suggest a malicious in•
tent in this man, and, had he gone down and joyned the soldiers of his own accord, this would be more apparent; but that was not the case; he was ordered there by his superior officer whom he was obliged to obey.
Still there is another matter against this man, and which savours of cruelty and inhumanity; I mean what Croswell and Carter swear, that, seeing his bayonet the next morning, it was bloody five inches up. If this was done by stabbing the dying man after he was shot down, it was a barbarous action, and must arise from a bad mind, and not from any fear of danger from a person near his end; and therefore cannot be justified under the pretence of self defense. But whether he can be charged with murder is the question, when he went there, not by himself, but by command of his officer whom he was bound to obey, and placed there in defense and support of sentry fixed at this post by martial authority. And when you consider the threatening given them all, the things flung, and stroke given, and that the person slain was one of the most active, and had threatened he would knock down some of the soldiers, and, what [Hinckley] swears, was animating and pushing on the people, dissuading them from running away, for “they durst not fire,” these things, together with the real danger they all were in from the numbers surrounding, may lessen his crime, from what he is charged with, to manslaughter.
Mr. Palmes, who appears a very intelligent witness, fixes the first fire on the grenadier, Montgomery, on the Captain's right hand. With regard to Montgomery, J. Bailey swears he was the first person that fired, and Attucks, the mulatto fell by his shot. J. Danbrook swears that on Montgomery firing fell Attucks and, he thinks, another. If you credit these witnesses, what they declare fixes the killing of Attucks on this soldier, unless the account given by Mr. Burdick should render it somewhat uncertain, for he fixes this, if I mistake him not, on the tall man, Warren.
You have then to consider what has been offered by his Counsel for him, and what the witnesses have declared in his behalf. They allege that Montgomery had a just provocation to fire, for this is what Bailey the witness for the king declares—That before the first fire Montgomery had a blow given him by one who stood on his right, and being asked by the prisoner's counsel, whether it was a very violent one, he answered, Yes; he goes on to say that the stroke given Montgomery brought him to the ground. Mr. Palmes confirms the same; so also Waddle and Andrew, who testify as to the stroke given the grenadier, the blow on his head, accompanied with the cry, “Kill the Dog,
“knock him overboard.” They say this was done by a large stout man, and describe him in such a manner as we must suppose him to be Attucks.