James Crawford. Went home to Bulls Wharf at dark about 6 O Clock. Met Numbers of People, going down towards the Town House, with sticks. At Calfs Corner, Saw above a dozen with sticks. In Quaker Lane and Greens Lane met many, going towards King Street. Very great Sticks, pretty large Cudgells, not common Walking Canes.

Archibald Gould. Going to Crawfords at Bulls Wharf. At 8, at Swing Bridge, the People were walking from all Quarters with Sticks, 224that I was afraid to go Home. Went thro Greens Lane, and met many People, the Street in such Commotion, as I hardly ever saw in my Life. Uncommon Sticks, such as a Man would pull out of an Hedge. At Hancocks Wharfe when the Bells began to ring. Mem. It must have been later.

Archibald Wilson, William Hunter, David Mitchelson, James Selkrigg, Archibald Bowman, Wm. Dixon, 6 of em were all at one House at Mr. Hunters, and all agree in their general account. And with em concurs B. Davis.

John Gillespie. At 7 went up to the South End to Mr. Silvester's. Met 40 or 50, with white Sticks, in small Parties of 4 or 5 in a Party. This was thro the main Street.

Thos. Knight. At his own Door. 8 or 10 passed with Sticks or Clubbs, and one of em said d—n their Bloods let us go and attack the main Guard first, the Bell ringing. One of em made a Pause, and said, let us go and get our Guns or I'le go and get my Gun. Went in and told his Wife he believd there would be bloodshed. This also was in the main Street.

Nat. Russell vid.

Mem. If these Witnesses are believed, People were in Motion both in the main Street leading from the Town House towards the South End, and in Quaker Lane, and Greens Lane.

Archibald Wilson, Hunter, Mitchelson, Selkrig, Bowman, Dixon. 6 of em were all at one House at Mr. Hunters in Dock Square and all agree in their general Account, tho they dont all remember the same Circumstances. Their general Account is that many People came from the North End and assembled in Dock Square, made Several Attempts in small Parties at Murrays Barracks but came running hastily back, as if driven back by the Soldiers. Many had Staves, tho many had none. After some time there appeard among em a Gentleman with a red Cloak and a white Wigg. He made a Speech to em of 4 or 5 minutes. Then they proposed to go to K. Street and attack the main Guard, and the Effect immediately followed. One Party under one Leader went round and up Cornhill, another Party up royal exchange Lane, and a 3d up Silsbys Alley. And several proposed to cry fire. Fire was cryed, several Times, and the Bells soon after rung.

In Confirmation of the Testimonies of these 6 Scotch Gentlemen we have the Testimonies of Shubael Hewes and B. Davis.

Mr. Hewes, Says he was in D. Square. Saw by the Markett a Number coming from the North End. A Number of Lads, came along, and tryed to pull out, and break the Leggs of the Stalls. 6 or 7 of em, cant say exactly the Number.

Mr. Davis says. A Number came 3 or 4 and cryd where are any Clubbs, or Cordwood Sticks, cryd Fire, Fire, Fire.

This Assembly of People in D. Square was undoubtedly a Riot. In those I mean, to set off for K.S. to attack the main Guard this was an unlawful Design, and End.

Dr. Hyrons very particular. Vid. page 26.2

Captn. Gold finch—page 28.

Patrick Keeton page 30.

Wm. Davis. page 21.

Benja. Lee. page 34.

John Frost 34.

John Ruddock Esqr.

Greg. Townsend Esqr. 37.

James Thompson 29.

McCauley.—Jona. W. Austin.3

Hartegan.—J. Danbrook. J. Simpson.

Carrol.—J. Bailey. Danbrook.

Wemms.—E. Bridgman. J. Simpson.

Kilroy.—E. G. Langford. F. Archbald. J. Brewer, Ferriter and Hemenway.

White.—S. Clark. E. G. Langford. J. Bailey. J. Simpson.

Montgomery.—J. Bailey. R. Palmes. J. Danbrook. J. Bass. Thos. Wilkinson.

Warren.—E. Bridgman. J. Dodge. J. Simpson. Ferriter.

E. Bridgman. A Number of Things, Ice or Snow, thrown, Sticks struck the Guns. About 12 with Sticks, surrounded the Party and struck their Guns with their Sticks several Blows, when the Soldiers were loading. The People went up quite to them with in the length of their Guns, before the firing. Number were coming down by the Town House. Call'd em cowardly Rascalls. Dared em to fire. All the Bells rung. The ratling of a Blow before the firing very violent.

J. Dodge. About 50 People very near the Soldiers. Ice and snow Balls thrown, Sticks rattled upon their Guns. The Balls seemed to come from close before em.

J. Bailey. The Boys hove Pieces of Ice at Sentry as big as your fist, hard and large enough to hurt a Man.

Montgomery was knocked down, and his Musquet fell out of his Hand, by a Clubb or Stick of Wood by one of the Inhabitants, and as soon as he got up he fired. The Clubb was not thrown but I saw him struck with it. He fell down and the Gun fell out of his Hand. The Blow was very violent.

R. Palmes. Saw a Piece of Ice or Snow, or something white strike Montgomerys Gun. It struck the Grenadier and made a Noise. He fell back and fired.

J. Danbrook. Saw a little Stick flyover their Heads, a Piece of a rattan or some such Thing.

J. Bass. Saw a Stick knocked to knock up Montgomerys Gun. It knocked it up 5 or 6 Inches.

J. Simpson. Saw one Man going to throw a Clubb, but he did not. Saw one Clubb, thrown in to the Soldiers. It hit one of the Soldiers Guns, I heard it Strike. The Person that threw it stood 10 Yards from the soldiers. The Stick was thrown 1 or 2 seconds before the 1st. Gun, a white birch Cordwood Stick, an inch thick.

B. Burdick. Had an highland broad Sword in my Hand. I struck at the Soldier who pushed at me, and had I struck 2 or 3 Inches farther, I should have left a Mark that I could have Sworn to. I struck the Cock of his Gun. Saw a short Stick thrown about 2 or 3 foot long. Heard a Ratling.

R. Williams. Saw the People some huzzaing, some whistling. Somebody said dont press upon the Guard, The People seemed to be pressing. Saw some snow Balls thrown.

Monday  3 December, NINE o' Clock, the Court met according to adjournment, and proceeded.

May it please your Honours, and you Gentlemen of the Jury,

We have at length gone through the evidence in behalf of the 227prisoners. The witnesses have now placed before you, that state of facts, from which results our defence. The examination has been so lengthy, that I am afraid some painful sensations arise, when you find that you are now to sit and hear the remarks of council. But you should reflect, that no more indulgence is shown to the Prisoners now on trial, than has ever been shown in all capital causes: the trial of one man has often taken up several days; when you consider, therefore, that there are eight lives in issue, the importance of the trial will show the necessity of its length. To each of the prisoners different evidence applies, and each of them draw their defence from different quarters.

I stated to you, Gentlemen, your duty, in opening this cause—do not forget the discharge of it. You are paying a debt you owe the community for your own protection and safety: by the same mode of trial are your own rights to receive a determination; and in your turn, a time may come, when you will expect and claim a similar return from some other jury of your fellow subjects.

In opening, I pointed out the dangers to which you were exposed; I trust your own recollection will now preclude a recapitulation of them. The reasons of what I then said, I trust have in some measure appeared: the propriety of some of those observations has been corroborated by succeed evidence; and you must have traced yourselves, some of those consequences, turning out in evidence, which have had an intimate relation, if not their origin, with some or all of those opinions, notions, sentiments or passions (call them what you will) which I took occasion to observe, as clues, aids, and leading-strings, in our intended examination and decision.

How much need was there for my desire, that you should suspend your judgment till the witnesses were all examined? How different is the complexion of the cause? Will not all this serve to show every honest man, the little truth to be attained in partial hearings? We have often seen communities complain of ex parte testimonies: individuals, as well as societies, of men, are equally susceptible of injuries of this kind: this trial ought to have another effect, it should serve to convince us all, of the impropriety, nay injustice, of giving a latitude in conversation upon topicks, likely to come under a judicial decision; the criminality of this conduct is certainly inhanced, when such loose sallies and discourses are so prevalent as to be likely to touch the life of a citizen. Moreover there is so little certainty to be obtained by such kind of methods, I wonder we so often find them practiced. In the present case, how great was the prepossession against us? And I appeal to you, Gentlemen, what cause there now is to alter our sentiments. 228Will any sober, prudent man countenance the proceedings of the people in King street—can any one justify their conduct—is there any one man, or any body of men, who are interested to espouse and support their conduct? Surely no. But our enquiry must be confined to the legality of their conduct: and here can be no difficulty. It was certainly illegal, unless many witnesses are directly perjured: Witnesses who have no apparent interest to falsify—witnesses, who have given their testimony with candor and accuracy—witnesses, whose credibility stands untouched—whose credibility, the council for the king, do not pretend to impeach; or hint a suggestion to their disadvantage.

I say, Gentlemen, by the standard of the law are we to judge the actions of the people who were the assailants, and those who were the assailed, and then on duty. And here, Gentlemen, the rule, we formerly laid down, takes place. To the facts, Gentlemen, apply yourselves. Consider them as testified: weigh the credibility of the witnesses—balance their testimony—compare the several parts of it—see the amount of it: and then according to your oaths “Make true deliverance according to your evidence.” That is Gentlemen, having settled the facts, bring them truely to the standard of the law; the king's judges who are acquainted with it, who are presumed best to know it, will then inspect this great standard of right and wrong, truth and justice; and they are to determine the degree of guilt to which the fact rises.

But before we come to those divisions of enquiry, under which I intend to consider the evidence, let me once more carefully distinguish between the transactions in Cornhill and those by the Custom House.

The conduct of the soldiers in Cornhill may well be supposed to have exasperated the minds of all who beheld their behaviour. Their actions accumulated guilt as it flew—at least, we may well suppose, the incensed people who related them, added new colours to the scene. The flame of resentment imperceptibly enkindles, and a common acquaintance with human nature will shew, that it is no extravagant supposition, to imagine many a moderate man might at such a season, with such sentiments, which I have more than once noticed;—hearing such relations and complaints; I say do I injure any one, in supposing, that under all these circumstances, a very moderate person, who in ordinary matters acted with singular discretion, should now be drawn imperceptibly away, or rather transported into measures, which in a future moment he would condemn and lament. What more natural supposition, than to suppose many an honest mind might at this 229time fluctuate thus. The soldiers are here—we wish them away: we did not send for them—they have cut and wounded the peaceable inhabitants, and it may be my turn next. At this instant of time, he has a fresh detail of injuries—resentment redoubles every successive moment—huzza! for the Main-guard: we are in a moment before the Custom House. No time is given for recollection. We find, from the king's evidence, and from our own, the cry was “Here is a soldier!” Not here is the soldier who has injured us—here is the fellow who wounded the man in Cornhill. No, the reasoning or rather ferment seems to be, the soldiers have committed an outrage, we have an equal right to inflict punishment—or rather revenge, which they had to make an assault. They said right, but never considered that, those soldiers had no right at all. These are sentiments natural enough to persons in this state of mind—we can easily suppose even good men thinking and acting thus. Very similar to this is the force of Dr. Hirons's testimony, and some others. But our enquiry is—What says the law? We must calmly enquire, whether this, or any thing like it, is countenanced by the law. What is natural to the man, what are his feelings are one thing: what is the duty of the citizen is quite another. Reason must resume her seat—and then we shall hear, and obey the voice of the law.

The law indulges no man in being his own avenger. Early, in the history of jurisprudence, we find the sword taken from the party injured, and put into the hands of the magistrate. Were not this the case, punishment would know no bounds in extent or duration. Besides, it saps the very root of distributive justice, when any individual invades the prerogative of law, and snatches from the civil magistrate the balance and the rod. How much more are the pillars of security shaken, when a mixt body, assembled as those in King street, assume the province of justice, and invade the rights of the citizen? For it must not be forgot, that the soldier is a citizen, equally in titled with us all to protection and security. Hence all are alike obliged to pay obedience to the law: For the price of this protection is that of obedience.

Let it not be apprehended, that I am advancing a doctrine, that a soldier may attack an inhabitant, and he not allowed to defend himself. No Gentlemen! if a soldier rush violently through the street and presents a weapon of death, in a striking posture; no doubt the person assailed may defend himself, even to taking the life of the assailant. Revenge and a sense of self preservation instantly take possession of the person thus attacked; and the law goes not upon the absurd suppo-230sition, that a person can in these circumstances, unman himself. Hence we find a husband, taking his wife in the act of adultery, instantly seizes a deadly weapon and slays the adulterer;—it is not murder. Nay a fillip upon the nose or forehead, in anger, is supposed by the law to be sufficient provocation to reduce killing to Manslaughter. It is, therefore, upon principles like these, principles, upon which those, who now bear the hardest against us, at other times, so much depend; it is, I say, upon the right of self-defence and self-preservation we rely for our acquittal.

Here again it should be kept in view, that whenever the party injurying has escaped by flight, and time sufficient for the passions to cool, in judgment of law, hath elapsed; however great the injury, the injured party must have recourse to law for his redress. Such is the wisdom of the law; of that law, than which we are none of us to presume ourselves wiser; of that law, which is founded in the experience of ages, and which in condescension to the infirmities of flesh and blood (but to nothing else) extenuates the offence. For “no man, says the learned Judge Foster, under the protection of the law is to be the avenger of his own wrongs. If they are of such a nature for which the laws of society will give him an adequate remedy, thither he ought to resort. But be they of what nature soever, he ought to bear his lot with patience, and remember, that vengeance belongeth to the Most High.” Crown Law 296.2 Now, Gentlemen, those, whoever they were, who committed the outrage in Cornhill, had absconded— the soldiers, who are supposed to have done them, were confined in their barracks. People were repeatedly told this, and assured by the military officers, that they should not go unpunished. But what followed? Are all present appeased? We are constrained, by the force of the evidence, to affirm they were not. But to get regular and right ideas, we must consider all the commotions of the season, and endeavour to come at truth by analyzing the evidence, and arranging it, under distinct heads of enquiry.

Mr. Quincy now entered, at large, upon a review of the appearances in several parts of the town: he was copious upon the expressions and behaviour sworn to.

He, then, more particularly recapitulated the evidence touching Murray's Barracks, Dock-square, and the Market-place.3

He next pursued several parties, through the several lanes and streets, till they centered at the scene of action.

The testimonies of the witnesses, who swore to the repeated information given the people;—that the Sentry and party were on duty;—that they were desired to withdraw and warned of the consequences;—were in their order considered.4

Under the next three heads, was remarked “the temper of the Sentry, of the party of soldiers, and of the people surrounding them.”

The words, insult and gestures of the same persons were next pointed out: and from thence was collected the designs of the persons assaulting, and the reasonable apprehensions of those assaulted.5

Mr. Quincy then came to the attack itself;—considering who the persons were(namely some sailors;) remarking minutely the words and actions immediately preceeding the on set; the weapons used; the violence of the assault and battery; and the danger of the soldiers.6

Mr. Quincy next exhibited those parts of the testimonies, which evidenced the attack continued after the firing.7

Under all these heads, there was methodically stated the number of the witnesses to each point, and by a comparative view of all the proofs, conclusions drawn as to the force of the whole.

The next consideration, in this mode of enquiry, was the evidence as severally pertaining to each prisoner; with such observations, on the one hand, as served to shew a defect of legal proof as to fact; on the other, such matters served to justify, excuse or extenuate the offence, in law.8

And particularly with regard to Killroy, 9 Mr. Quincy cited and commented on the following passages from Judge Foster's Crown law, and the Marquiss of Beccaria's Essay on Crimes and punishments.

“WORDS are often misrepresented, whether through ignorance, in attention, or malice, it mattereth not the defendant, he is equally effected in either case; and they are extremely liable to misconstruction. And with all, this evidence is not in the ordinary course of things to be disproved by that sort of negative evidence by which the proof of plain facts may be and often is confronted.” Crown Law, 243.10

“Finally, the CREDIBILITY of a witnesses is NULL, when the question relates to the WORDS of a criminal; for the tone of voice, the gesture, all that preceds, accompanies and follows the different ideas which men annex to the same words, may so alter and modify a man's discourse, that it is almost impossible to repeat them precisely in the manner in which they were spoken. Besides, violent and uncommon actions, such as real crimes, leave a trace in the multitude of circumstances that attend them, and in their effects; but Words remain only in the memory of the hearers, who are commonly negligent or prejudiced. It is infinitely easier then to found an accusation on the Words, than on the actions of a man; for in these, the number of circumstances, urged against the accused, afford him variety of means of justifications.” Essay 48, 9.11

May it please your Honours, and you Gentlemen of the Jury,

After having thus gone through the evidence, and considered it as applicatory to all and every of the prisoners, the next matter in order seems to be the consideration of the law pertinent upon this evidence.

And here, Gentlemen, let me again inform you, that the law which is to pass upon these prisoners, is a law adapting itself to the human speices, with all their feelings, passions and infirmities; a law which does not go upon the absurd supposition, that men are stocks and stones; or that in the fervour of the blood, a man can act with the diliberation and judgment of a philosopher. No Gentlemen:—the law supposes that a principle of resentment, for wise and obvious reasons, is deeply implanted in the human heart; and not to be eradicated by the efforts of state policy. It, therefore, in some degree conforms itself to all the workings of the passions, to which it pays a great indulgence, so far as not to be wholly incompatible, with the wisdom, good order and the very being of government.

Keeping therefore this full in view, let us take once more, a very 233brief and cursory survey of matters supported by the evidence. And, here, let me ask sober reason—What language more approbrious—What actions more exasperating, than those used on this occasion? Words, I am sensible are no justification of blows, but they serve as the grand clues to discover the temper and the designs of the agents: they serve also to give us light in discerning the apprehensions and thoughts of those who are the objects of abuse.

“You lobster,” “You bloody-back,” “You coward,” and “You dastard,” are but some of the expressions proved.—What words more galling? What more cutting and provoking to a soldier? To be reminded of the colour of his garb, by which he was distinguished from the rest of his fellow citizens; to be compared to the most despicable animal, that crawls upon the earth, was touching indeed a tender point, To be stigmatized with having smarted under the lash, at the halbert,12 to be twitted with so in famous an ignominy; which was either wholly undeserved, or a grievance which should never have been repeated:—I say to call up and awaken sensations of this kind, must sting even to madness. But accouple these words with the succeeding actions,—“You dastard,” “You coward!”—A soldier and a coward! This was touching, (with a witness) “The point of honour, and the pride of virtue.” But while these are as yet fomenting the passions, and swelling the bosom, the attack is made: and probably the latter words were reitterated at the onset; at lest, were yet sounding in the ear. Gentlemen of the jury, for heaven's sake, let us put ourselves in the same situation!13 Would you not spurn at that spiritless institution of society, which tells you to be a subject at the expence of your manhood?

But does the soldier step out of his ranks to seek his revenge? Not a witness pretends it: Did the people repeatedly come within the points of their bayonets, and strike on the muzzels of the guns?—You have heard the witnesses.

Does the law allow one member of the community to behave in this manner towards his fellow citizen, and then bid the injured party be calm and moderate? The expressions from one party were “Stand off—stand off”—“I am upon my station”—“if they molest me upon my post, I will fire.”—“By God I will fire!”—Keep off!” These were words likely to produce reflection and procure peace. But had the words on 234the other hand a similar tendency? Consider the temper prevalent among all parties at this time. Consider the then situation of the soldiery; and come to the heat and pressure of the action. The materials are laid, the spark is raised, the fire in kindles, the flame rages, the understanding is in wild disorder, all prudence and true wisdom are utterly consumed. Does common sense, does the law expect impossibilities? Here to expect equanimity of temper, would be as irrational, as to expect discretion in a mad man. But was any thing done on the part of the assailants, similar to the conduct, warnings and declarations of the prisoners? Answer for yourselves, Gentlemen. The words reiterated, all around, stabbed to the heart, the actions of the assailants tended to a worse end; To awaken every passion of which the human breast is susceptible. Fear, anger, pride, resentment, revenge, alternately, take possession of the whole man. To expect, under these circumstances, that such words would asswage the tempest, that such actions would allay the flames—You might, as rationally, expect the inundations of a torrent would suppress a deluge; or rather, that the flames of Etna would extinguish a conflagration!

Prepare, Gentlemen of the Jury, now to attend to that species of law, which will adapt itself to this trial, with all its singular and aggravating circumstances. A law full of benignity, full of compassion, replete with mercy.

And here, Gentlemen, I must, agreeable to the method we formerly adopted, first tell you by what law the prisoners are not to be tried, or condemned. And they most certainly are not to be tried by the Mosaic law: a law, we take it, peculiarly designed for the government of a peculiar nation, who being in a great measure under a theocratical form of government, it's institutions cannot, with any propriety, be adduced for our regulation in these days. It is with pain, therefore, I have observed any endeavour to mislead our judgment on this occasion; by drawing our attention to the precepts delivered in the days of Moses; and by disconnected passages of Scriptures, applied in a manner foreign to their original design or import, there seems to have been an attempt to touch some peculiar sentiments, which we know are thought to be prevalent; and in this way, we take it, an injury is like to be done, by giving the mind a biass, it ought never to have received; because it is not warranted by our laws.

We have heard it publicly said of late, oftener, than formerly, “Whoso ever shedeth man's blood, by man shall his blood be shed.” This is plainly, Gentlemen, a general rule, which, like all others of the kind must have its exceptions. A rule, which if taken in it's strict 235litteral lattitude, would imply, that a man killing another in self-defence, would incur the pains of death. A doctrine, which no man in his senses would ever embrace: a doctrine that certainly never prevailed under the Mosaical institution. For we find, the Jews had their six cities of refuge, to which the mans layer might flee, from the avenger of blood.14 And something analogous to this, (if it did not originate from it) is our benefit of clergy.

And so, that “the murderer shall flee to the pit” comes under the same consideration. And when we hear it asked, as it very lately has been, “Who DARE slay him?” I answer, if the laws of our country slay him, you ought to do likewise; and every good subject dares to do what the law allows. But the very position is begging the question: for the question, now in issue, is, whether either of the prisoners is a murderer, in the sense of our laws; for you recollect, that what is murder and what not, is a question of law, arising upon facts stated and allowed.

But to go on; “You shall take no satisfaction for the life of a murderer, which is guilty of death.” 15 Here again, is a begging the question; and more over the words “guilty of death,” if rightly rendered from the original, must be one of those general rules, I just now mentioned; which always have their exceptions. But those words seem to be wrong translated: for in the margin of our great bible, we find them rendered “faulty to die.” Against a position of this kind we have no objection. If we have committed a fault, on which our laws inflict the punishment of death, we must suffer. But what fault we have cummitted you are to enquire: or rather you, Gentlemen, are to find the facts proved in Court against us, and the Judges are to see and consider what the law pronounces touching our offence, and what punishment is there by inflicted as a penalty.

In order to come at the whole law resulting from the facts which have been proved, we must enquire into the LEGALITY of the assemblies. For such is the wisdom and policy of the law, that if any assembly be lawful, each individual of that assembly is answerable only for his own act, and not for any other. On the contrary, if an assembly be unlawful, the act of any one of the company, to the particular purpose of assembling, is chargeable on all. This is law, which no lawyer will dispute; it is a law founded in the security of the peace of society, and however little considered, by people in general, it ought now steadily to be kept in mind.

Was the assembly of the soldiers lawful?

For What did the soldiers assemble?

Was the Sentinel insulted and attacked?

Did he call for assistance, and did the party go to assist him?

Was it lawful for them so to do?

Was the soldiers when thus lawfully assembled, assaulted, &c. by a great number of people assembled, &c.

Was this last assembly lawful?

Was any thing done by this unlawful assembly, that will, in law, justify, excuse, or extenuate the offence of killing, so as to reduce it to manslaughter?

Under each of these heads of enquiry, in their order, Mr. Josiah Quincy arranged his arguments; and as he separated and compared, and settled the facts, he applied his law, with explanatory comments. In the course of which he necessarely run over again facts, that had been before noticed, which occasions our omission of this part of his defence. But for the sake of those, who would chuse to inspect, at their leisure, the authorities. They are here subjoined in the order in which they were cited.16

Hawkin's Vol. II. p.29.17 9. ibid.18 —Mutiny Act p. 115, 116, 117, 118 §78. 8.19—Blackstone's Com. Vol. I. p. 147, 262, 335, 33620 —Blackstone Vol. IV. p. 194, 19521—3d Institute p. 51. 5722— Blackstone Vol. IV. p. 191, 19223—Foster's Crown Law 276, 277, 278, 262, 25724—Blackstone Vol. IV. p. 200 top.25

Blackstone Vol. IV. p. 180, 28026—Foster's Crown Law p. 29827—3d Institute, 56 top28—Hawkins Vol. I. 75—ibid. 71 bot. ibid. 72 top29—Foster's Crown Law 273, 274.30—Keil. 128, 129, 51.31

Foster's Crown Law 278. 277. 276. 295.32

Blackstone Vol. IV p. 19133—Foster's Crown Law p. 27734—Blackstone Vol. IV. p. 19235—Foster's Crown Law p. 298. 296. 29236— 3d Institute p. 55 bot.37—Hawkins Vol. I. p. 82 bot., 84 mid.38— Hawkins pleas of the Crown Vol. I. p. 48439—Hawkins Vol. I. 85 mid.40—Cro. Car. p. 537 Cooks case41—Hale Vol. II. p. 27442— Blackstone Vol. IV. p. 18343—Hawkins Vol. I. p. 82 bot.44—Keil.p. 135 bot.45

Foster p. 261, 26246—Blackstone Vol. IV. p. 2747—Hawkins Vol. I. p. 84 §4448—Foster p. 350 §5.49

Hawkins Vol. I. Chap. 31, §2150—cites Bulstrode p. 86, 8751— Keil. p. 5152—Lord Bacon's Elem. 25.53

The law laid down, in Foster, 261, 2. before cited, being indisputable law, not denied or controverted; and being very material in the trial, and much relied on by the prisoners, is here set down at large.

“I will mention a case, (says the learned Judge,) which through the ignorance or lenity of juries hath been sometimes brought within the 239rule of accidental death. It is where a blow aimed at one person lighteth upon another and killeth him. This, in a loose way of speaking, may be called accidental with regard to the person who dieth by a blow not intended against HIM. But the law considereth this case in a quite different light. If from circumstances it appeareth that the injury intended to A. be it by poison, blow, or ANY OTHER MEANS OF DEATH, would have amounted to murder, supposing him to have been killed by it, it will amount to the same offence if B. happeneth to fall by the same means. Our books say, that in this case the malice egreditur personam. But to speak more intelligibly, where the injury intended against A. proceeded from a wicked, murderous, or mischievous motive, the party is answerable for all the consequences of the action, if death ensues, from it, though it had not its effect upon the person whom he intended to destroy. The malitia I have already explained, the heart regardless of social duty DELIBERATELY bent upon mischief, consequently the guilt of the party is just the same in the one case as the other. On the other hand, if the blow intended against A. and lighting on B. arose from a sudden tra n sport of passion which in case A. had died by it, would have been reduced to manslaughter, the fact will admit of the SAME ALLEVIATION if B. should happen to fall by it.” To the same effect are other authorities.

May it please your Honours, and you Gentlemen of the Jury.

I have now gone thro' those authorities in law, which I thought pertinent to this trial. I have been thus lengthy, not for the information of the Court, but to satisfy you, Gentlemen, and all who may chance to hear me, of that law, which is well known to those of us, who are conversant in courts, but not so generally known, or attended to, by many, as it ought to be. A law which extends to each of us, as well as to any of the prisoners; for it knows no distinction of persons.

And the doctrines which have been thus laid down are for the safe-guard of us all. Doctrines which are founded in the wisdom and policy of ages; which the greatest men, who ever lived, have adopted and contended for. Nay, the matter has been carried, by very wise men, much further than we have contested for. And that you may not think the purport of the authorities read, are the rigid notions of a dry system, and the contracted decisions of municipal law, I beg leave to read to you a passage from a very great, theoretic, writer: a man whose praises have resounded through all the known world, and probably will, through all ages, whose sentiments are as free air, and who has done as much for learning, liberty, and mankind, as any of the Sons of 240 Adam; I mean the sagacious Mr. Locke: He will tell you, Gentlemen, in his Essay on Government, p. 2. c. 3. “That all manner of force without right puts man in a state of war with the aggressor; and of consequence, that, being in such a state of war, he may LAWFULLY KILL him, who put him under this unnatural restraint.”54 According to this doctrine, we should have nothing to do, but enquire, whether here was “force without right:” if so, we were in such a state, as rendered it LAWFUL to KILL the aggressor, who “put us under so unnatural a restraint.” Few, I believe, will say, after hearing all this evidence, that we were under no “unnatural restraint.” But we don't want to extend matters so far. We cite this author to show the world, that the greatest friends to their country, to universal liberty, and the immutable rights of all men, have held tenets, and advanced maxims favourable to the prisoners at the bar. And although we should not adopt the sentiments of Mr. Locke in their most extensive latitude, yet there seems to be something very analogous to his opinion, which is countenanced in our laws.

There is a spirit which pervades the whole system of English jurisprudence, which inspires a freedom of thought, speech and behaviour. Under a form of government like ours, it would be in vain to expect, that pacific, timid, obsequious, and servile temper, so predominant in more despotic governments. From our happy constitution there results it's very natural effects—an impatience of injuries, and a strong resentment of insults: (and a very wise man has said, “He who tamely beareth insults inviteth injuries.”)55 Hence, I take it, that attention to the “feelings of humanity”—to “humanity and imperfection”—“the infirmities of flesh and blood;” that attention to “the indelible rights of mankind;”—that lenity to “the passions of man;” that “benignity and condescention of the law” so often repeated in our books.

And, indeed, if this were not the case, the genius of our civil constitution and the spirit of our municipal law would be repugnant:—that prime defect in any political system—that grand solecism in state-policy.

Gentlemen of the Jury,

This cause has taken up much of your time, and is likely to take up 241so much more, that I must has ten to a close: indeed I should not have troubled you, by being thus lengthy, but from a sense of duty to the prisoners; they, who, in some sense, may be said to have put their lives in my hands; they whose situation was so peculiar, that we have necessarily taken up more time, than ordinary cases require: they, under all these circumstances, placed a confidence, it was my duty not to disappoint; and which I have aimed at discharging with fidelity. I trust you, Gentlemen, will do the like: that you will examine and judge with a becoming temper of mind; remembering that they who are under oath to declare the whole truth, think and act very differently from by-standers, who, being under no ties of this kind, take a latitude, which is by no means admissible in a court of law,

I cannot close this cause better, than by desiring you to consider well the genius and spirit of the law, which will be laid down, and to govern yourselves by this great standard of truth. To some purposes, you may be said, Gentlemen, to be Ministers of justice: and “Ministers” (says a learned Judge) “appointed for the ends of public justice, should have written on their hearts the solemn engagements of his Majesty, (at his coronation) to cause law and justice IN MERCY to be executed in all his judgments.”56

I leave you, Gentlemen, hoping you will be directed in your enquiry and judgment; to a right discharge of your duty. We shall all of us, Gentlemen, have an hour of cool reflection—when the feelings and agitations of the day shall have subsided; when we shall view things through a different, and a much juster medium. It is, then, we all wish an absolving conscience. May you, Gentlemen, now act such a part, as will here after insure it;—such a part as may occasion the prisoners to rejoice. May the blessing of those, who were in jeopardy of life, come upon you—may the blessing of him who is “not faulty to die,” discend and rest upon you and your posterity.