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Browsing: Legal Papers of John Adams, Volume 3


Docno: ADMS-05-03-02-0001-0003-0011

Author: UNKNOWN
Date: 1770-10-29

Anonymous Minutes of Paine's Argument for the Crown1

29 October 1770

Mr. Pain, for the Crown.
It remains for me to close this Cause on the part of the Crown. It's importance Gentlemen is not confined to the small Circle of a few Individuals, but concerns the very foundation of Civil Goverment. In their Defence, every Source of Eloquence and Art has been exhausted; which I don't mention as a fault in them, but to guard you against mistaking, the Flowers of Rhetoric for Reason and Argument. This Prosecution is founded on one of the most essential Laws of Nature: Murder is such a Daring Violation of the first Laws of Society that if suffered with impunity, will not only annihilate every blessing we derive from Social Compacts, but, cause them to be reconed among the greatest Misfortunes that attend Mankind. Your enquiry Gentlemen in this important Affair will be directed to these two points—did the Prisoner give Orders to fire, in consequence of which ensued the Death of any, or all the Persons named in the Indictments? If so, has he offered any thing to reduce this Crime to a lower Species of homicide than Murder? The Evidence from it's Nature, must be complicated and their Wit[nesse]s as well as ours, vary in their Accounts but from the whole taken together, you are to collect the facts. Great pains have been taken to convince you that we are mistaken in the Man, that the Prisoner never gave Orders to fire, and if he did, the Necessity he was [ . . . ] to, must justify it: but a little enquiry into the State of the Evidence will rectify all these Mistakes. From the Deposition of Colonel Marshal and others it appears, that there was a Number of Soldiers patroling the Streets, brandishing their Weapons of Death and threatning the innocent Inhabitants, with Bloodshed and Slaughter: Is it strange then that the People were alarmed, that their Fears and even Indignation were excited, at this clamorous and hostile appearance of the Soldiers? The Inhab[itan]ts undoubtedly had as good a Right to appear in behalf of their injured Fellow Citizens, as Capt. P[reston] to espouse the Quarrel of his Centinel: but here's the Michief, neither had a right to interfere: was the Centinel abused? There were peace Officers at hand, to protect him; and miserable is the Situation of that People, whose ultima Ratio Legum,2 is Guns and Bayo• { 92 } nets! For what did we quit our native Savage State; but by combining the power of Numbers, to restrain the Lawless Ravages of Individuals and establish personal Security on it's surest Basis? That the P[risoner]at the Bar, wantonly assuming the powers of Government, has exercised a worse than savage Cruelty, in Butchering <a Number of> his Fellow Subjects; you have the Testimony of Numbers: some sware to the Identity of his Person, the words he uttered, the Station he was placed in; and some to the Motion of his Lips, that accompanied his Orders to fire: but to invalidate all this positive proof, they have produced several Witnesses to testify that the Prisoner stood in the front, when some of ours place him in the Rear, and that if Capt. P. gave any orders to fire they did not hear them: a little Attention to Mr. Fosdick's Deposition will cure all this Difficulty: he sais, “at the same time the P[risoner] gave orders to fire, he retired into the Rear”: now his thus being both in front and Rear, within a few seconds, this apparent Variance is easily reconciled. Mr. Palmes (their principal Witness) is a Gentleman who I can by no means suppose wou'd be guilty of a known Falshood; but he is certainly mistaken, either in the Person or Situation of the Prisoner; unless you can discredit the Testimony of Many <Persons> (whose Veracity is equally unimpeachable) that have sworn directly to the contrary. I acknowledge there is some little Confusion in the Evidence which must certainly operate as much to their Disadvantage, as ours, And at least destroy the Supposition of a preconcerted plan to convict the Prisoner—but some of their Witnesses, in a very extraordinary fit of fancy, have given such romantic Accounts, that Persons of less extravagance than themselves, can <give but little> hardly Credit them. Andrews Testimony is very curious, he tells you he saw a stout Fellow run down the Street, make his way thro' the People and rush upon the Soldiers; a fact, which, unless all the other Witnesses were Stone-blind, or deprived of their Senses, never had existence but in his own brain: but his Imagination once set on fire, did not stop here; for upon seeing one Person shot dead, Andrew must think himself dead too, and for some time lost all Consciousness even of his own Existence: These unaccountable flights of Fancy may be ornamental in a Poet (It was suggested in favour of Andrew's Understanding, that he had wrote poetry), but, will never establish the Credibility of an Historian.
Now Gentlemen the fact being once proved, it is the prisoner's part to justify or excuse it, for all killing is, prima facie, Murder. They have attempted to prove, that the People were not only the aggressors, but attacked the Soldiers with so much Violence, that an immediate Danger { 93 } of their own Lives, obliged them to fire upon the Assailants, as they are pleased to call them. Now this violent Attack, turns out to be nothing more, than a few Snow-Balls, thrown by a parcel of Boys; the most of them at a considerable distance, and as likely to hit the Inhab[itan]ts as the Soldiers (<all this is but> which is a common Case in the Streets of Boston at that Season of the Year, when a Number of People are collected in a Body), and one Stick, that struck a Grenadier, but was not thrown with sufficient force to wound, or even sally him; whence then this Outrage, fury and abuse, so much talk'd of? The Inhabitants collected, Many of them from the best of Motives, to make peace; and some out of mere Curiosity, and what was the Situation of Affairs when the Soldiers begun the fire? In addition to the Testimony of many others, you may collect it from the Conduct of Mr. Palms, a Witness on whom they principally build their Defence. Wou'd he place himself before a party of Soldiers, and risque his Life at the Muzzels of their Guns, when he thought them under a Necessity of firing to defend their Life? 'Tis absurd to suppose it; and it is impossible you should ever seriously believe, that their Situation could either justify or excuse their <firing> Conduct. I would contend, as much as any Man, for the tenderness and Benignity of the Law; but, if upon such triffling and imaginary provocation, Men may o'erleap the Barriers of Society, and carry havock and Desolation among their defenceless, Fellow Subjects; we had better resign an unmeaning title to protection in Society and range the Mountains uncontrol'd. Upon the whole Gentlemen the facts are with you, and I doubt not, you will find such a Verdict as the Laws of God, of Nature and your own Conscience will ever approve.
2. The “last argument of the law.”
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/