May it please your Honours, and you Gentlemen of the Jury.
Having gone through the evidence on the part of the crown, it is my province to support the charge against the prisoners. The examination hath been lengthy, and from the nature of the transaction complex, and in some part difficult; I shall apply it as distinctly as I am able, without endeavouring to misrepresent or aggravate any thing to the prejudice of the prisoners on the one hand, or on the other to neglect any thing that justice to the deceased sufferers, the laws of my country, or the preservation of the peace of society demand.
There are two things necessary to prove which I mentioned in the first opening of this cause, namely, the identity of the prisoners, that is, that they were that party of men who on the 5th of March last were in King street, and that they committed the facts mentioned in the indictments, and farther gentlemen, the circumstances attending and aggravating the commission of those facts.
As to the first point, to prove the identity of the prisoners, all of them have been sworn to, and most of them by more than one witness.
To KILLROY gentlemen, you have Langford, Archibald and Brewer, who swear positively; and farther you have the evidence of Ferriter and Hemmingway. The one, of Killroy's being in the affray at the rope-walks, and the other to his uttering a number of malicious and threatning expressions in regard to the inhabitants of the town of Boston.
To WHITE gentlemen, you have four more, Simpson, Langford, Bailey and Clark.
To MONTGOMERY, you have Bailey, Palmes, Bass, Danbrook and Wilkinson.
To HARTEGAN, you have Danbrook and Simpson.
To WEMMS, you have Simpson and Bridgham.
To CARROL, Bailey and Danbrook.
To WARREN, Bridgham, Dodge and Simpson. Bridgham indeed expressed some doubt, and gave his reasons for it, which may be worthy notice hereafter.
To MC CAULEY, you have Mr. Austin.
And that Warren was at the Rope-walks, you have also the testimony of Mr. Ferriter.
All these witnesses as I have mentioned them to you, have testified on oath to the several prisoners, that they were that evening in King street, and of the party; the next thing to be enquired into gentlemen is as to the facts. In order to ascertain these it will be necessary to have recourse to the testimony of the witnesses. I could have wished I had been able, after the fatigue of yesterday, to have ranged the evidence in the order of time as the facts took place; but not being able to do this, I must take them up as the witnesses were examined. I will however endeavour to state the facts in the best arrangement I can.
The first witness Mr. Austin, says, that he was in King-street that evening, near the Sentry-box which was placed at the Custom-house; that about a quarter after nine he saw the party coming from the Main guard; when they got down to the Sentry Box, they wheeled to the left and formed themselves round it; and in coming round McCauley pushed at him with his bayonet, damned him, and bid him to stand off, this was the first instance of their conduct. Mr. Austin was not particular who fired, his back being towards the soldiers when that happened. He says there were five or six guns fired; and he saw McCauley after the firing. These are the most material circumstances of his testimony.
The next witness is Bridgham,
who says he was in King-street
also; and the next morning when he went to the goal to view the prisoners, he apprehended he had seen Warren
in King street
the evening before, but afterwards he saw a person that looked very like him belonging to the same regiment, which occasioned him to doubt whether he was the man or not; my remark upon this, is, it was probable that the first impressions made on his mind were the strongest, and therefore you cannot well doubt he was right in judging that Warren
was in fact the person he saw the evening before; he saw also Wemms
the corporal stationed on the left of the party betwixt him and the tall man; the Corporal
was on the left entire, if so gentlemen, Warren
must have been the third man from the left in that situation; there were a number of people he says round the party huzzaing, some having sticks; his face was the other way when the first gun went off, he heard a noise like the clashing of guns, he saw Gray
fall, and says the person that killed
him, must have been near the center of the party; when the left man fired there were but few in the street, they divided and were passing off; the last man that fired, he says leveled his piece, following a lad that was running down the street before he fired; he also mentions a number of people coming down from the north side of the Town-house,
collected as he supposed by the bells, and not disposed to commit any injury whatsoever; he did not apprehend himself, or the soldiers in any danger from any thing he observed; he says about seven guns were fired, and there were about twelve people at that time before the party. These are the most material circumstances in his evidence.
Dodge says, he saw Warren, but cannot swear to any of the rest, the man who fired first he thinks stood towards the left, about two from the corner, however he was over at Vernon's shop across the street, and perhaps not able to make so good observations as some others; he saw about fifty people in the street, but he saw nothing in their hands; he saw a number of snow balls thrown, but none as he observed with violence or in anger; he saw the people near the party of soldiers, and they pushing at them with their bayonets; he does not imagine there was any thing besides snow balls thrown.
Clark the next witness saw White the Sentinel at his station just before nine o'clock, that he spoke to him, but saw no one at that time near or molesting him.
comes next, and this witness is perhaps as particular as any one witness on the part of the Crown; it appears by the relation of his evidence that he came down about nine o'clock as a watchman, in order to go to the Watch-house
next adjoining the Town-house;
when he came down, he was told the people and soldiers were fighting at Murray's Barracks;
upon this, he took his course that way, but the matter being over by the time he got there, he returned to King-street:
there were a number of boys round the Sentinel, to whom he spoke and told him he need not fear, the boys would not hurt him; soon after this the Sentinel without saying any thing to the people went up the Custom-house
steps and knocked at the door; a person within opened it and said something, but what, the witness did not hear; upon that the Sentinel turned round, and pointed his piece at the people opposite to him. Langford
spoke again, and told him there was no danger, the boys would not hurt him, and he shouldered. The witness continued talking with the Sentry till the party came down, and then he went into the street. About this time Gray,
one of the unhappy sufferers, came and clapped Langford
on the shoulder, say•
ing what's here to pay? Langford
replies, I do not know, but something I believe will come of it by and by; his stand was half way as he said betwixt the Sentry-box and Royal-exchange-lane;
the box being on the right corner of the lane, and he opposite the center of the lane; the witness and Gray
were standing together talking familiarly, Langford
leaning on his stick, and Gray
standing with his hands folded in his bosom, without a stick in his hand, neither saying or doing anything to the soldiers. You cannot but recollect Gentlemen, that this witness was expressly and repeatedly asked, if Gray
had a stick or said any thing to the soldiers? he as often answered no. Langford
spoke to Killroy,
and after two guns were discharged, seeing him present his piece, said to him, damn you are you going to fire? Presently upon this Killroy
levelled his piece, and firing directly at Gray,
killed him dead on the spot! The ball passed through his head, and he fell on Langford's
left foot; upon which, not satisfied with having murdered one of his fellow creatures in that cruel and inhuman manner, he pushed with his bayonet, and pierced Langford
through his great coat and jacket; here Gentlemen, if any there can be, is evidence, and I think compleat evidence of a heart desperately wicked, and bent upon mischief, the true characteristic of a wilful malicious murderer.
It could not be thought, at the distance the witness and Gray were standing from him, without offering any violence, but Killroy the prisoner saw them distinctly, and aimed to destroy them; if you compare this testimony with Mr. Hemmingway's, who swears to Killroy's uttering expressions importing, that he would miss no opportunity of firing on the inhabitants, he had wished for it ever since he landed, you certainly Gentlemen can have no doubt in your minds but that he had that intention at heart, and took this opportunity to execute it.
The crime of murder, Gentlemen, it will be agreed by all, necessarily involves in it the malice of the heart, and that malice is to be collected from the circumstances attending the action; but it is not necessary to constitute malice, that it should be harboured long in the breast; a distinction is made in the books betwixt malice and hatred, and a good distinction it is; I have it in my hand and will read it;
126, and 127. Mawgridge's Case
. “Some have been led into mistake by not well considering what the passion of malice is; they have construed it to be a rancour of mind lodged in the person killing, for some considerable time before the commission of the fact, which is a mistake arising from their not well distinguishing between
malice,” And a little after, “Malice is a design formed of
doing mischief to another;
cum quis data opera male agit, he that designs and useth the means to do ill is malicious
. 2 [Coke]
Inst. 42. He that doth a cruel act voluntarily, doth it of malice propensed
. 3 [Coke]
Though Gentlemen, it happens on a sudden occasion as this was, if the act is in it's nature wanton and cruel, the law will presume it to be malicious, unless that presumption is taken off by contrary evidence.
Ferriter, who testified to the same person, tells you, he was remarkably active at the Rope walks amongst the rest of the soldiers; taking therefore all the circumstances of this testimony together, it must remove every sort of difficulty in your minds as to the purpose Killroy had at that time; it seems apparent that there were strong marks of malice in his heart; the person you can have no doubt of, the fact you can have no doubt of, nor can you I think doubt of the species of crime.
The next witness, who also testifies to Killroy's going down, and being of the party, swears that he was about twenty feet from the party when the first gun was fired; that he also had been, previous to this, at Murray's barracks, when the affray happened there, and tells you the behaviour of the soldiers in that scene.
another witness also swears to Killroy
. He saw the Sentinel on the Custom-house
steps; at that time there were about twenty people, boys chiefly about fourteen, and some younger, round about him, but they made no great show; he saw the Captain come down with the party, the Sentinel at this time had his gun breast high; that while the witness was speaking to Monk,
(a young lad who was wounded) he lost sight of Preston
and the guns went off: Monk
complained of being shot, but Brewer
apprehended it was nothing but powder, and that he was more frightened than hurt; the firing began at the right and extended to the corner man on the left. Killroy
attacked this witness in the same manner McCauley
by pushing at him with his bayonet; a number were collected by the ringing of the bells, but he heard nothing particular in regard to abusive language; he saw no snow balls thrown, and when the soldiers came down, he heard some of the people crying fire, and that was the general cry; some crying fire because the bells rung, some, no doubt fire, to the soldiers, daring them to it; but of this no great [word omitted]
can be made in the present case. There were seven guns he says fired, he was certain as to the number, having counted them himself. He says further, he met Dr. Young
and that he had a sword; the witness said, let every man go to his own home, and the Doctor replied, that is the best way, the soldiers are gone to their barracks: perhaps something will be attempted to be made of this circumstance, and therefore I shall make an observation upon it. If you attend to the testimony of several of the witnesses, there were that evening in the streets at all parts of the town, a number of soldiers; they sallied out from Murray's
barracks and everywhere with clubs, cutlasses, and other weapons of death; this occasioned a general alarm; every man therefore had a right, and very prudent it was to endeavour to defend himself if attacked; this accounts for the reason of Dr. Young
or any one inhabitant of the town having a sword that evening; the Doctor surely could not be supposed to have any intention of mischief, because the same witness tells you his cry was, the soldiers were gone to their barracks, and go every man to his own home.
Mr. Bailey the next witness, testifies as to the identity of some of the party, that there were Montgomery, Carrol and White there; that he placed himself at the post by the Custom-House, and stood there all the time; that there were about twenty boys, some fourteen years old, and some under that; he was near the Sentinel when the party came down; Carrol pointed at his breast with his bayonet, and White said do not hurt him; that Montgomery discharged his piece first; he thinks it was about half a minute before the second gun went off; the grenadier's gun he says was struck out of his hand by some person near him, and that he recovered it, and then fired; that Carrol was the next but one to him: he imagines Gentlemen, that Montgomery killed Attucks; Attucks was about fifteen feet from him over the gutter: He continued in his station at the corner from the time of the party's coming down till all was over; he did not apprehend himself or the soldiers in danger, from clubs, sticks, snow balls, or any thing else; he saw the person that struck Montgomery as he supposed, at the corner of Royal exchange-lane; he was asked if Attucks was the person, he answered no. From this witness you ascertain, Gentlemen, that Montgomery fired first, and that he was on the right wing of the party.
The next witness is Mr. Palmes,
he saw the Sentry, and nobody near him: He had come from Murray's
barracks, and hearing a disturbance in King-street,
he was told he had better not go down, he said I will, and try to make peace; he also
there; the stick that struck Montgomery
as he apprehended; Montgomery
stept back and then fired; he thinks he heard seven or eight
guns, but did not count them, and it was seven or eight seconds between the first and second gun; as the last gun went off, Montgomery
pushed at him with his bayonet, and he struck him with his cane, and struck the gun down; the bayonet stuck in the snow, and the gun fell out of his hand; Mr. Palmes
at this time slipt and fell, but quickly recovered himself; Montgomery
attempted again to push him with his bayonet, and he threw his cane at him and ran; not satisfied with this, Montgomery
attempted to push him a third time, and in that attempt he slipt and fell, and thereby gave Palmes
an opportunity to get out of his way, or else he says he had been run through the body; from the testimony of this witness, you have further proof that Montgomery
was the person who fired first; that after firing, he continued to discover marks of malice and malevolence, by pushing with his bayonet, and endeavouring to destroy not only Mr. Palmes,
but all around him.
Next comes Mr. Danbrook, he saw there Hartegan, Montgomery, and Carrol. Here is another witness to three of the party; it was about a quarter after nine when he came up; he stood about ten or twelve feet from Montgomery; he saw no stick strike him, but a little stick he says flew over their heads, which he took to be a piece of a rattan; he was looking on Montgomery when he fired; this is another evidence as to the fact of firing, upon which, the witness thinks, two men fell: if that was the case, there was execution indeed; by the discharge of one gun two persons killed on the spot! He did not hear the second gun, but supposes, that by one of the guns Attucks fell, he stooped to see if the Molatto was dead, then turned round and saw another man fall; Attucks at that time was near him, at his left, leaning on his stick; that circumstance I would have you keep in your minds Gentlemen, that you may remember it when you have the whole evidence together.
Jedediah Bass is the next witness, he came up Royal-exchange lane; when he got into King street, he saw Montgomery there: here Gentlemen is another witness as to the identity of one of the prisoners, and the witness saw him push his bayonet at a man that stood near him; he drew back into the lane, and in a minute Montgomery fired: the number of guns he took to be six, but did not count them: the people began on the firing of the first gun to run, some one way and some another. As he came up Dock-square, the people were saying let us go home, there is no fire, the soldiers are gone to their barracks.
After this witness comes Mr. Wilkinson,
who gave a very regular account; he tells you he was at his own house when the bells rung
for nine as usual; a little while after that he heard Dr. Cooper's
bell, on which apprehending it was for fire, he put on his surtout, and went out; he came towards the Town-House,
went past it as far as the town-pump, and the people from the windows were cautioning those in the street not to go down, for they would be killed; the night was so bright that he was able where he was to see down the street as far as Boylston's alley,
and there he saw a number of soldiers sallying out, brandishing their swords, and contending with the people; there were about thirty or forty round them with buckets and bags, thinking as he supposed that the bells rung for fire; after this he went to the Guard-house,
intending to wait there, to learn if any mischief had been done at the barracks; he presently saw Capt. Preston
come down, as he imagined from behind the Old-Brick
meeting-house, and call to the guard, and ordered them to turn out; then he saw the party come out, and saw the Captain
draw his sword and march down with them; at that time there were about thirty or forty people in King street;
he went a little lower, and turned back again round the north side of the Town-house,
and placed himself at the Royal-exchange-tavern;
and the party was formed when he got there: he tells you he was not at all apprehensive of danger, consequently he was capable of making observations, and placed himself in such a situation as to do it; the party formed in a circle, and he stood about four or five minutes before he heard the word given to fire: that he heard it twice: on the first command they did not fire; it was repeated, and then the guns went off one after another, like the striking of a clock, he was about two yards from them and thinks the firing began at the right. This corresponds with the testimony of several witnesses. He saw the flash of each gun seven went off, and one flashed. There Gentlemen you have evidence of all the party's firing save one: the witness was asked if he saw snow balls, ice, oyster shells, or any thing else thrown by the people, to which he answered No; he said if he had, he should have thought himself in danger, and have retreated; he heard two or three cheers before the party came down, but none afterwards.
Now, Gentlemen, if you recollect that circumstance, and the manner of his relating it, you will remember he expressed himself very emphatically: from this testimony you have further express evidence of the fact of firing, that it came from the right, and from thence followed on to the left: he did not see the persons who were killed, therefore there is nothing in his evidence relating to that.
From the next witness, Mr. Simpson,
you have proof of White, Wemms, Warren,
four of the prisoners, that they were
all of the party that evening; and after relating a number of minute circumstances, he swears to the discharge of eight guns, which if you give credit to his testimony, will prove to you that the whole party fired; from him you have also further evidence of the killing Attucks, Gray
Mr. Fosdick, deposes that upon his going down King-street, the first salutation he had, was the pressing of soldiers behind him with the points of their bayonets, crying out, damn your blood stand out of the way! this Gentlemen, was the conduct of the party as they came down along. From Mr. Fosdick also you have evidence of their manoeuvers both before and after they formed; when the first gun was fired, the second man from the right pushed his bayonet at him, and wounded him in the breast, you saw Gentlemen the mark in Court: before this two different men pierced him in the arm and elbow quite to the bone; here Gentlemen were three thrusts given to a person innocently passing down upon the cry of fire! he knew not as he swears to you, what was the occasion of the party's coming down. The right hand Grenadier fell after he had fired, occasioned by pushing at a person who went down Royal-exchange-lane, this probably was Mr. Palmes, in whose evidence if you remember, you have this circumstance related, that on his pushing at him the third time, Montgomery's foot slipped, which gave him an opportunity to escape down the lane.
Hemmingway, the next witness, swears, that being in company with Killroy, he heard him say he never would miss an opportunity to fire on the people of the town, for he had wanted it ever since he landed; that Killroy was not then in liquor nor appeared to be in anger; he told him he was a fool, for saying so, he said I do not care, I will not miss an opportunity for all that; these expressions Gentlemen speak for themselves, they are of such a nature as you cannot but draw from them the temper of the man's heart who spoke them, which you will consider at your leisure.
came from the North end,
was told there was no fire, but the soldiers were insulting the inhabitants; a number of people in Dock square
seemed afraid to go up to King-street,
another circumstance which accounts for the appearance of the inhabitants, at that time in Dock-square;
the witness went up to King-street,
saw the Sentry with his bayonet charged breast high, about twenty or thirty boys about him; he had often seen many more in that street in such a night as that was; it was bright moon light; the people on the party's coming down seemed to collect in a body in Royal-exchange-lane;
he passed the last man, he heard a gun from the right, thinks it was about twenty seconds before the second gun fired; he observed a little boy running a cross the street crying fire, and the left hand man followed the boy with his gun; there was nothing passed he observed to induce them to apprehend any danger; he says, had even the soldiers pointed at me, I should not have thought myself in danger; he thinks there were six guns fired; he saw no snow balls thrown, if there had been, he must have seen them. When the soldiers came down, there was a sort of shouting, and a short time after, the first gun fired. I need not dwell longer on this testimony for you must remember it yourselves.
Nicholas Ferriter was next sworn, who knew Killroy and Warren; he swears to their being at the Rope-walks before this affair happened; he relates the circumstances of three several attacks in the Rope-walks; the first was a single person who challenged him out to fight; a squable ensued, and the soldier took to his heels; he soon collected a dozen more, came again, and had a farther battle, in which the soldiers were again worsted; they then collected a large number, to the amount of thirty, and in about three-quarters of an hour they came back, and went at it again; in this last squabble the soldiers were a third time worsted. From this affair perhaps may be dated a good deal of the proceedings of the Monday-evening; you have heard from the witnesses that the soldiers of that regiment remembered the grudge, and discovered a malicious disposition; were frequently seen in parties, and when single, with arms, attacking the people passing the streets. Killroy one of the prisoners, and Warren, are expressly sworn to, that they were in this affray; Gray and Ferriter went into King-street, Gray had no stick; Ferriter left Gray in King-street; it appears he did not go down with a disposition to commit any assault at all.
Burdick is the next witness, he says when he came down to King-street he spoke to a soldier, he thinks it was Montgomery, he asked him if he was loaded and intended to fire; yes, by the eternal God! was the answer he received. The intention of that soldier, whoever he was, you clearly discover; the witness thinks it was Montgomery; he says further, a soldier pushed at him with his bayonet, and he struck his gun; he saw nothing flung but a small stick, which hit nobody; as he was stooping to take up the dead, they cocked their guns and presented at him again; thus you see the same disposition continued, they were aiming to push at every body round about them; and after they had killed these persons, they were not satisfied with that, but attempted to push those that were taking them away.
who was next sworn, hath nothing material in his
testimony, but that of the guns following the people as they ran after the first gun was fired; that seven guns were fired, that he saw no sticks or snow balls fall near them, that all the snow balls he did see seemed to be light, and not hard.
It has been asked from the bench,2
Whether there may not be voluntary manslaughter? I readily grant there may; it has also been observed, that homicide which includes murder, must be committed with coolness and deliberation, I allow it, and my application of this rule, is, that it comes within the evidence you have of the particular facts related by the witnesses with regard to Killroy;
there is no manner of doubt with me, but the fact was done in the manner which the law calls sedato animo;
he was doing a deliberate action, with a cool and calm mind; it appears, if you believe Langford,
he was not molested; it appears the person he killed, and at whom he aimed, and the person whose cloths he pierced with his bayonet, were standing peaceably, one leaning on a stick, and the other with his arms folded.
After the witnesses we have gone through, a number of gentlemen were examined, most of whom lived in Cornhill, who have testifyed to the conduct of the soldiers, that evening the affair happened.
I will not take them in order, for I apprehend, by recuring to Colonel Marshall
first, the rest will come in more naturally; he says, he came from Colonel Jackson's
about a quarter after nine o'clock; that the street was quite still, no body passing thro' Dock-square;
he came up to his own house next the Custom house,
he passed the Sentinel, and there was no body near him; King-street
was quite still, fewer people passing than he had usually seen on such a fine night; he went into his own house, and soon after heard a distant cry of murder, what part of the street it came from he did not know: He, gentlemen, you will remember, intimated also this circumstance, that he had been warned not to go out that evening; this gave him an apprehension there was some mischief to be betwixt the soldiers and the inhabitants; he mentioned it to the person in the shop, and went out; looking towards the Guard-house,
he saw a number of soldiers issue from thence in an undress, with naked swords, cutlasses, &c. crying out “Damn them where are they? By Jesus let 'em come.” As to the situation of the Moon, whether she was north or south, which has been much altercated, I cannot see it will make much one way or the other, it is sufficient that Colonel Marshall,
whose credibility and capacity will not be disputed, has sworn that from his door he observed a party
of soldiers come down in undress, armed with cutlasses and other weapons, the cutlasses he swears he particularly saw glittering in the Moon light; the expressions he said he plainly heard, while they were brandishing their swords; when this party passed off, he saw a second party come up Quaker-lane,
armed in the same manner, and making use of the same kind of language, and that party he said cried fire; in his testimony on the trial of Captain Preston,
he said the bells rung on that cry; he expressed some doubt of this yesterday, but it was certainly just about that time; the use I would make of this is, to compare it with what the other witnesses say of the conduct of the soldiers in Cornhill;
as Mr. Thayer
expresses it, it is probable the word fire was a watch-word; it appears to me, that if we can believe the evidence, they had a design of attacking and slaughtering the inhabitants that night, and they could have devised no better method to draw out the inhabitants unarmed, than to cry fire!
Mr. Thayer, was sitting at his fire, in Corn-hill, near Boylston's alley, he heard a great noise, and went to the door, he saw seven soldiers in an undress coming down like wild creatures, with cutlasses in their hands, crying damn them, where are they? upon this he heard a cry of fire, and supposed it to be a watch-word.
Mr. Kneeland, who lives by the town-pump, came out and stood at his door; saw a number of soldiers pass by him armed; one of them came up to him and said, damn you what do you do here? and pointed his bayonet to his breast, telling him to go in.
Mr. Appleton who lived opposite, tells you he was standing by his neighbour Mr. Marsh, they were both at the door; a number of soldiers came running down, armed with cutlasses, in an undress, and they seemed to come out of their way, (observing them at the door) with uplifted weapons, intending as it appeared, to strike them: but they fortunately got into their doors.
Then gentlemen, comes the son of Mr. Appleton,
the young master who was sworn, yesterday, whose story, with his manner of telling it, must strike deep into your minds; I am sure it did in mine; a child of his age, with a younger brother sent of an errand a few steps, and on returning home, struck at by a party of soldiers, nay ruffians, with cutlasses, he innocently crying, soldiers spare my life! No damn you we will kill you all, or words to that purpose, attended with a blow, was the answer the little victim received! what can indicate malice if this does not? cruelty almost equal to that of a Pharoh
I remember at the last tryal, my brother Adams
made this observation, that “Man is a social creature, that his feelings, his passions, his
imaginations are contagious.” I am sure if in any instance it is so, here was food enough for such passions, such imaginations to feed upon.
But Gentlemen, as it does not immediately relate to the prisoners, all the use I mean to make of it is, to show you that from the conduct and appearance of the soldiery, in different parts of the town, the inhabitants had reason to be apprehensive they were in danger of their lives; children and parents, husbands and wives, masters and servants, had reason to tremble one for another. This apprehension, together with the ringing of the bells, collected numbers of people in different quarters, as is commonly the case when there is any appearance of fire; and the center of the town, when there is a doubt where fire is, becomes naturally the place of rendezvouz: this accounts for the number of people that were there, and for some having sticks and canes. I mention this only to take off the force of any evidence or pretence that may be made, that there was an intention of the people to assault, or as it has been expressed, swallow up the soldiers.
I have now gone through the evidence on the part of the Crown, in support of the charge against the prisoners, I shall make a very few observations, and leave it with the prisoners and their Council to make their defence, and Mr. Paine who is on the side of the Crown with me, to close the cause.
I think Gentlemen upon the whole evidence, you can, in the first place, have no doubt but that all the prisoners at the bar were of that party of soldiers, headed by Capt. Preston, who went down to the Custom-House, on the 5th March, the evening mentioned in the indictments; that the five persons named in those indictments were killed by some or other of that party, but who they were that killed those several persons, may not be precisely ascertained, except in the case of Killroy, against whom I think you have certain evidence.
It is a rule of law Gentlemen, when the fact of killing is once proved, every circumstance alleviating, excusing, or justifying, in order to extenuate the crime must be proved by the prisoners, for the law presumes the fact malicious, untill the contrary appears in evidence.
There is another rule I shall mention also, and that is, that it is imaterial, where there are a number of persons concerned, who gave the mortal blow, all that are present, are in the eye of the law, principals. This is a rule settled by the Judges of England upon solid argument. The question therefore then will be, what species of homicide this is? and the decision of that question must be deferred, untill the defence comes out by the evidence on the other side.
The laws of society, Gentlemen, lay a restraint on the passions of men, that no man shall be the avenger of his own cause, unless through absolute necessity, the law giving a remedy for every wrong: If a man might at any time execute his own revenge, there would be an end of law.
A person cannot justify killing, if he can by any means make his escape; he should endeavour to take himself out of the way, before he kills the person attacking him.
Here one of the Court judging it improper for the Council in opening the cause to anticipate the defence, and this being determined by the whole Bench, Mr. Quincy then closed, with saying:
I was about to make some farther remarks, but it is thought by the Honourable Court improper to anticipate what may be urged on the other side. I shall therefore rest the case as it is, and doubt not but on the evidence as it now stands, the facts, as far as we have gone, against the prisoners at the bar, are fully proved, and until something turns up to remove from your minds, the force of that evidence, you must pronounce them GUILTY.