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 Witnesses 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 Inhabitants undoubtedly had as good a Right to appear in behalf of their injured Fellow Citizens, as Capt. Preston 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-92nets! 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 Prisonerat 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 Prisoner 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 93of 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 Inhabitants 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.

Judge Trowbridge.

1. H.H.P.C. 442.2 8 Soldiers. 7 Guns fired. 5 Persons killed. Query whether it must not be proved which Soldier killed which of the deceased.

J. Trowbridge .

Foster 256. 257. Province of Judge and Jury.3

2. Ld. Ray. Onebys Case.4 If you believe &c. &c.

I hope and believe there was not such occasion to send the Troops here as was pretended. But the Question is whether the King has not Authority.

Stat. C 2. 12. C. 2d.5 Command of all Forces by Sea and Land, is and ever was in his Majesty. It is the K's duty to watch when any Invasion is intended. And this Authority extends to all the Dominions as well as Realms. Not to be kept up, a standing Army without express order of Parliament. Mutiny Act annual.

Next Q. whether the commanding officer of the Troops here appointed a Sentry at the Custom house. Next whether the Centinel was assaulted and insulted. No concerted Plan on Either side, but bickerings, &c. and any little Spark would in kindle a great fire—and 5 lives sacrificed to a Squabble between the Sentry and Piemont's Barbers Boy.6 A sawcy Speech in the Boy. The Sentry no Right to strike him. The Credit of the Witnesses is entirely with you. Next whether assistance was call'd for by the Centinel. Garrick, Crookshanks, Langford and Lee, say he did. Hill, Jackson, and Davis say the Guard were call'd. If you find that he went to protect the Sentry, it is plain in my Mind, it was a lawful assembly. If they were not assaulted, as soon as they turned their Arms against the Inhabitants, they were an unlawfull assembly. Witnesses say they were assaulted are &c. Thus in MS. By whom? were they assaulted? By Boys only or by Men? Next Q. whether the People assembled round the sentry or Party, were a lawfull 95Assembly. If unlawfull, all present, aiding, abeting or incouraging were principals. Any Act done by one, is chargeable upon all.

Judge Trowbridge. Next whether the firing could be justified, by any Thing that was done by any one of this unlawfull Assembly. An assault lifting up a Hand in Anger, throwing a Bottle a material Difference between Justifiable or excusable, and extenuate it to Manslaughter. Next, whether Prisoner was aiding and abetting this Firing, 1st whether he orderd to load, or to fire. Next whether he had a Right to order them to load. Cunningham says orderd 'em to load, the same Man that led the Party down. Wyat says so too. It seems to be agreed on all Hands the Corporal led the Party down. Edwards contrary. Knox and Archibald say the Corporal that led em down, And orderd them to prime and load. If it remains only doubtful in your Minds whether he did order the loading or not, you cant charge him with doing it. If he did it, whether he had a Right. If the People were gathering, and insulting and assaulting him and his Party he might put himself in the best Posture of Defence. Next Q. whether he gave the orders to Fire? Settle the Place where the Man was who gave the orders, and the Place where Captain Preston was. Was he before or behind his Men. Before say Bliss, Palmes &c. Murray, Prince, Waddel, Whitehouse and many others. Behind, Wyat, Godard, Fosdick and Lee. Wyat was behind. Palmes says he had his Hand upon his shoulder. Was the order to fire before the first Gun or after. Before, Wyat, 7 Palmes, Langford &c. After, Cox, Bliss, Cornwall, these say they heard the Captn. say “dont fire.” Next whether Captain Preston acknowledged that he did order them to fire—Pierce, Belknap, and Mason.

Cities of Refuge were appointed for those who killed a Man unaware for he hated him not aforetime and a Man might kill a Thief who attempted to break his House in the Night. Whoso sheddeth Mans Blood, by Man shall his Blood be shed, is a general Rule, many Exceptions to it.8

Cooks Case. Cro. An Officer had a Ca. Sa. He lay in wait in the stable. In the Morning he tryd to get into the Windows and Door, and the Man takes his Gun, and shoots the officer, thro the Body.9

Keiling. Mawgridges Case. Where one Man catches another by the 96Nose and fillips him in the forhead, it is only Manslaughter. Mawgridges Case, adjudged and reported by Holt.10

I shall take it for granted that these snow Balls, Sticks, Oyster shells and Blows struck on the Guns and aimed at them. If you are Satisfyed that the sentinel was insulted and assaulted, and that Captain Preston and his Party went to assist them, it was doubtless excusable Homicide, if not justifiable. Self Defense a Law of Nature, what every one of us have a Right to, and may stand in need of.11

J. Oliver. There has been a great deal done to prejudice the People against the Prisoner a copper Plate Print, in which this Court has been insulted and call'd a venal Court, if this Prisoner was not condemned.12 I my self was last Term insulted for giving my opinion in a Point of Law.13 15 of the Prisoner's Witnesses mention the snow Balls, Ice, Clubbs, &c.

Q. Whether the Sentry was obliged to retreat from his Post. My opinion is, that the Party, attacked in that violent manner they were not obliged to retreat at all.