ARTICLE SIGNED “VINDEX”
To the Printers.
That the trial of the soldiers concern’d in the carnage on the memorable 5th of March, was the most solemn trial that ever was had in this country, was pronounc’d from the bench. To see eight prisoners bro’t to the bar together, charg’d with the murder of five persons at one time, was certainly, as was then observ’d, affecting: But whoever recollects the tragedy of that fatal evening, will I believe readily own that the scene then was much more affecting—There is something pleasing and solemn when one enters into a court of law —Pleasing, as there we expect to see the scale held with an equal hand—to find matters deliberately and calmly weigh’d and decided, and justice administered without any respect to persons or parties, and from no other motive but a sacred regard to truth—And it is solemn as it brings to our minds the tribunal of GOD himself! before whose judgment-seat the scriptures assure us all must appear: And I have often tho’t that no one will receive a greater share of rewards at that decisive day, than he who has approv’d himself a faithful upright judge.
Witnesses who are bro’t into a court of justice, while their veracity is not impeach’d, stand equal in the eye of the judge; unless he happens to be acquainted with their different characters, which is not presum’d—The jury who are taken from the vicinity, are suppos’d to know the credibility of the witnesses: In the late trials the witnesses were most if not all of them either inhabitants of this town or transient persons residing in it, and the jurors were all from the country: Therefore it is not likely that they were acquainted with the characters of all the witnesses; and it is more than probable that in so great a number of witnesses there were different characters, that is, that some of them were more, others less creditable. If then the judge, whose province it is to attend to the law, and who, not knowing the characters of the witnesses, presumes that they are all good, & gives an equal credit to them, it is the duty of the jurors who are sovereign in regard to facts, to determine in their own minds the credibility of those who are sworn to relate the facts: And this in a trial for murder requires great care and attention. I would just observe here, that in the last trial there were not less than eighty- two witnesses for the jury to examine and compare, which was an arduous task indeed! And I will venture further to observe, that some of these witnesses who swore very positively were not so creditable as others, and the testimony of one of them in particular, which was very precisely related & very peremptory, might have been invalidated in every part of it. I shall not at present suggest what I take to be the reason why it was not done. These matters will no doubt have their place in the history of the present times in some future day, when the faithful recorder it is to be hoped will, to use the language of our courts of justice, relate the truth, the whole truth, and nothing but the truth.
It is enough for the jury to receive the law from the bench: They may indeed determine this for themselves; but of facts they are ever the uncontroulable judges. They ought therefore to receive the facts from the mouths of the witnesses themselves, and implicitly from no other: Unless the jury particularly attend to this, they may be in danger of being misled by persons who would be far from doing it with design: For instance, if one should swear that A being foreworn’d against it, levell’d his gun and kill’d B: and afterwards it should be forgot, that the witness also swore that A immediately advanc’d & push’d his bayonet at C, which pass’d between his waistcoat and his skin; if this I say should be forgot, and should be overlook’d by the jury when they are together, perhaps instead of bringing it in murder according to the rules of the law laid down by the bench, they would bring it in manslaughter—I do not here affirm that this has ever been a fact: I mention it as what may hereafter be a fact, and to show the necessity of a jury’s relying upon facts as they receive them from the witnesses themselves, and from them alone.
The furor brevis which we have heard much of, the fury of the blood which the benignity of the law allows for upon sudden provocation, is suppos’d to be of short duration—the shooting a man dead upon the spot, must have stopp’d the current in the breast of him who shot him, if he had not been bent upon killing—an attempt to stab a second person immediately after, infers a total want of remorse at the shedding of human blood; and such a temper of mind afterwards discovers the rancorous malice before, especially if it be proved that the same man had declated that he would never miss an opportunity so to do: If this does not imply malice at first, I do not see but he might have gone on stabbing people in his furor brevis, till he had kill’d an hundred; and after all, it might have been adjudg’d, in indulgence to the human passions, excuseable homicide.
The law in its benignity makes allowance for human passions: But the law is just; and make this allowance upon the principles of justice: It gives no indulgence to malice and rancour against any individual; much less against a community or the human species—He who threatens or thirsts for the blood of the community is an enemy to the publick; and hostis humani generis, the enemy of mankind consummates the villain. I will not take upon myself to say that either of these characters belong to any of the late prisoners—There are two remaining yet in gaol, convicted of manslaughter, and waiting judgment of the court. With regard to one of these, namely, Kilroi, it was sworn that about a week or a fortnight before (the 5th of March, which must be before the affray at the ropewalks, that happening on the 2d) he said he would never miss an opportunity of firing upon the inhabitants, and that he had wanted such—It is said that these might be words spoken in jest, or without any intention, when they were spoken, of acting according to their true import & meaning: But the witness said, he repeated the words several times: And that after he had told him he was a very great fool for saying so, he again declared he would never miss an opportunity.—It appears that the witness himself, as any one might, tho’t him to be in earnest, and rebuked him for saying so; and in truth, none but a madman, or one whose heart was desperately wicked, would repeatedly, especially after such wholesome reproof, have persisted in such a threat; It discovered, to borrow the expression of a very polite & humane gentleman, upon another late occasion, a malignity beyond what might have been expected from a Barbarian.
It was also sworn, that this same Kilroi was with a party of soldiers in the affray at the Ropewalks a few evenings before the 5th of March, —and that they had clubs & cutlasses—That Kilroi was of the party of soldiers that fired in King-street—that as the party came round before they form’d, Kilroi struck a witness upon his arm—and after the firing began, Kilroi struck at the same witness, tho’ he had hear’d nothing said, nor seen any thing done to provoke the soldiers. —Another witness declared, that he saw Kilroi there, that he knew him well before, and was positive it was he—that he heard the word fire, twice, upon which he said to the soldiers, damn you, don’t fire, and Kilroi fired at once, and killed Gray, who had no weapon, and his arms were folded in his bosom. Gray fell at the feet of this witness, and immediately Kilroi pushed his bayonet at the witness, which pass’d thro’ all his clothes, and came out at his surtuit behind, and he was oblig’d to turn round to quit himself of the weapon—the witness suppos’d he designed to kill them both.—How long is this furor brevis, this short hurricane of passion to last in the breast of a soldier, when called, not by the civil magistrate, but by his military officer, under a pretence of protecting a Centinel, and suppressing a Riot? who had taken with him weapons, not properly of defence, but of death, and was calm enough in this impetuosity of anger, to load his gun, and perhaps with design, to level it, for it killed one of the very men with whom he had had a quarrel but a few evenings before: He had now a fair opportunity, which he had wished for, and resolved never to miss, of firing upon the inhabitants. It was said upon the words he uttered, that if all the unjustifiable words that had been spoken by the inhabitants of this town, were to be bro’t in judgment against them, they would have much to answer for.—Those who believe the letters of governor Bernard, the Commissioners of the customs, and some others whom I could name, and will name in proper time, may think so. I dare say, if Bernard could have proved one overt-act of rebellion or treason, after the many things he pretended had been said, and he or his tools could have had any influence, the words if prov’d, would have been adjudg’d to have been said in sober earnest, and would have been considered as material to have shown the malignancy of the heart.
This Kilroi’s bayonet was prov’d to be the next morning bloody five inches from the point. It was said to be possible that this might be occassion’d by the bayonet’s falling into the human blood, which ran plentifully in the street, for one of their bayonets was seen to fall. It is possible, I own; but much more likely that this very bayonet was stab’d into the head of poor Gray after he was shot, and that this may account for its being bloody five inches from the point—Such an instance of Savage barbarity there undoubtedly was.—It was sworn before the Magistrate who first examined into this cruel tragedy, though the witness who then swore it, being out of this province, could not be produced in Court upon the trial. It is not to be wonder’d at that any material witness was out of the way, when it is consider’d that the trial did not come on till the secord term, and nine months after the facts were committed. I shall continue the subject at my leisure.
VINDEX.
Dec. 11th.