JOHN ADAMS (1735-1826)
John Adams, second President of the United States, was not a man of the strong emotional temperament which so often characterizes the great orator. He was fitted by nature for a student and scholar rather than to lead men by the direct appeal the orator makes to their emotions, their passions, or their judgment His inclinations were towards the Church; but after graduating from Harvard College, which he entered at the age of sixteen, he had a brief experience as a school-teacher and found it so distasteful to him that he adopted the law as a relief, without waiting to consult his inclinations further. "Necessity drove me to this determination," he writes, "but my inclination was to preach." He began the practice of law in his native village of Braintree, Massachusetts, and took no prominent part in public affairs until 1765, when he appeared as counsel for the town of Boston in proceedings growing out of the Stamp Act difficulties.
From this time on, his name is constantly associated with the great events of the Revolution. That be never allowed his prejudices as a patriot to blind him to his duties as a lawyer, he showed by appearing as counsel for the British soldiers who killed Crispus Attucks, Samuel Gray, and others, in the Boston riot of 1770. He was associated in this case with Josiah Quincy, and the two distinguished patriots conducted the case with such ability that the soldiers were acquitted—as no doubt they should have been.
Elected a member of the Continental Congress, Mr. Adams did work in it which identified him in an enduring way with the formative period of republican institutions in America. This must be remembered in passing upon his acts when as President, succeeding Washington, he is brought into strong contrast with the extreme republicans of the French school. In the Continental Congress, contrasted with English royalists and conservatives Mr. Adams himself appeared an extremist, as later on, under the same law of contrast, he appeared conservative when those who were sometimes denounced as "Jacobins" and "Levellers" were fond of denouncing him as a disguised royalist.
Prior to his administration as President, he had served as commissioner to the court of France, "Minister Plenipotentiary for the Purpose of Negotiating a Treaty of Peace and Commerce with Great Britain"; commissioner to conclude a treaty with the States-General of Holland; minister to England after the conclusion of peace, and finally as Vice-President under Washington. His services in every capacity in which he was engaged for his country showed his great ability and zeal: but in the struggle over the Alien and Sedition Laws his opponents gave him no quarter and when he retired from the Presidency it was with the feeling, shared to some extent by his great opponent Jefferson, that republics never have a proper regard for the services and sacrifices of statesmen, though they are only too ready to reward military heroes beyond their deserts. The author of 'Familiar Letters on Public Affairs' writes of Mr. Adams:—
"He was a man of strong mind, great learning, and eminent ability to use knowledge both in speech and writing. He was ever a firm believer in Christianity, not from habit and example but from a diligent investigation of its proofs. He had an uncompromising regard for his own opinion and was strongly contrasted with Washington in this respect. He seemed to have supposed that his opinions could not have been corrected by those of other men or bettered by any comparison."
It might be inferred from this that Mr. Adams was as obstinate in prejudice as in opinion, but as he had demonstrated to the contrary in taking the unpopular cause of the British soldiers at the beginning of his public career, he showed it still more strikingly by renewing and continuing until his death a friendship with Jefferson which had been interrupted by the fierce struggle over the Alien and Sedition Act.
INAUGURAL ADDRESS (March 4th. 1797)
When it was first perceived, in early times, that no middle course for America remained, between unlimited submission to a foreign legislature and a total independence of its claims, men of reflection were less apprehensive of danger from the formidable powers of fleets and armies they must determine to resist, than from those contests and dissensions which would certainly arise concerning the forms of government to be instituted over the whole and over the parts of this extensive country. Relying, however, on the purity of their attentions, the justice of their cause, and the integrity and intelgence of the people, under an over-ruling Providence, which had so signally protected this country from the first, the representatives of this nation, then consisting of little more than half its present numbers, not only broke to pieces the chains which were forging, and the rod of iron that was lifted up, but frankly cut asunder the ties which had bound them, and launched into an ocean of uncertainty.
The zeal and ardor of the people during the Revolutionary War, supplying the place of government, commanded a degree of order, sufficient, at least, for the temporary preservation of society. The confederation, which was early felt to be necessary, was prepared from the models of the Bavarian and Helvetic confederacies, the only examples which remain, with any detail and precision, in history, and certainly the only ones which the people at large had ever considered. But, reflecting on the striking difference, in so many particulars, between this country and those where a courier may go from the seat of government to the frontier in a single day, it was then certainly foreseen by some who assisted in Congress at the formation of it, that it could not be durable.
Negligence of its regulations, inattention to its recommendations, if not disobedience to its authority, not only in individuals but in States, soon appeared with their melancholy consequences— universal languor, jealousies, rivalries of States, decline of navigation and commerce, discouragement of necessary manufactures, universal fall in the value of lands and their produce, contempt of public and private faith, loss of consideration and credit with foreign nations; and, at length, in discontents, animosities, combinations, partial conventions, and insurrection, threatening some great national calamity.
In this dangerous crisis, the people of America were not abandoned by their usual good sense, presence of mind, resolution, or integrity. Measures were pursued to concert a plan to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty. The public disquisitions, discussions, and deliberations issued in the present happy constitution of government.
Employed in the service of my country abroad during the whole course of these transactions, I first saw the Constitution of the United States in a foreign country. Irritated by no literary altercation, animated by no public debate, heated by no party animosity, I read it with great satisfaction, as the result of good heads, prompted by good hearts; as an experiment better adapted to the genius, character, situation, and relations of this nation and country than any which had ever been proposed or suggested. In its general principles and great outlines, it was conformable to such a system of government as I had ever most esteemed, and in some States, my own native State in particular, had contributed to establish. Claiming a right of suffrage common with my fellow-citizens in the adoption or rejection of a constitution, which was to rule me and my posterity, as well as them and theirs, I did not hesitate to express my approbation of it on all occasions, in public and in private. It was not then, nor has been since, any objection to it, in my mind, that the Executive and Senate were not more permanent. Nor have I entertained a thought of promoting any alteration in it, but such as the people themselves, in the course of their experience, should see and feel to be necessary or expedient, and by their representatives in Congress and the State legislature, according to the constitution itself, adopt and ordain.
Returning to the bosom of my country, after a painful separation from it for ten years, I had the honor to be elected to a station under the new order of things; and I have repeatedly laid myself under the most serious obligations to support the constitution. The operation of it has equaled the most sanguine expectations of its friends; and from an habitual attention to it, satisfaction in its administration, and delight in its effects upon the peace, order, prosperity, and happiness of the nation, I have acquired an habitual attachment to it, and veneration for it.
What other form of government, indeed, can so well deserve our esteem and love?
There may be little solidity in an ancient idea that congregations of men into cities and nations are the most pleasing objects in the sight of superior intelligences; but this is very certain, that to a benevolent human mind there can be no spectacle presented by any nation more pleasing, more noble, majestic, or august, than an assembly like that which has so often been seen in this and the other chamber of Congress—of a government in which the executive authority, as well as that of all the branches of the legislature, are exercised by citizens selected at regular periods by their neighbors, to make and execute laws for the general good. Can any thing essential, any thing more, than mere ornament and decoration be added to this by robes or diamonds? Can authority be more amiable or respectable when it descends from accident or institutions established in remote antiquity than when it springs fresh from the hearts and judgments of an honest and enlightened people? For it is the people that are represented; it is their power and majesty that is reflected, and only for their good, in every legitimate government, under whatever form it may appear. The existence of such a government as ours for any length of time is a full proof of a general dissemination of knowledge and virtue throughout the whole body of the people. And what object of consideration more pleasing than this can be presented to the human mind? If natural pride is ever justifiable or excusable, it is when it springs, not from power or riches, grandeur or glory, but from conviction of national innocence, information, and benevolence.
In the midst of these pleasing ideas, we should be unfaithful to ourselves if we should ever lose sight of the danger to our liberties—if anything partial or extraneous should infect the purity of our free, fair, virtuous, and independent elections. If an election is to be determined by a majority of a single vote, and that can be procured by a party through artifice or corruption, the government may be the choice of a party, for its own ends, not of the nation for the national good. If that solitary suffrage can be obtained by foreign nations by flattery or menaces, by fraud or violence, by terror, intrigue, or venality, the government may not be the choice of the American people, but of foreign nations. It may be foreign nations who govern us, and not we, the people, who govern ourselves; and candid men will acknowledge that, in such cases, choice would have little advantage to boast of over lot or chance.
Such is the amiable and interesting system of government (and such are some of the abuses to which it may be exposed) which the people of America have exhibited to the admiration and anxiety of the wise and virtuous of all nations for eight years, under the administration of a citizen, who, by a long course of great actions, regulated by prudence, justice, temperance, and fortitude, conducting a people inspired with the same virtues, and animated with the same ardent patriotism and love of liberty, to independence and peace, to increasing wealth and unexampled prosperity, has merited the gratitude of his fellow-citizens, commanded the highest praises of foreign nations, and secured immortal glory with posterity.
In that retirement, which is his voluntary choice, may he long live to enjoy the delicious recollection of his services—the gratitude of mankind; the happy fruits of them to himself and the world, which are daily increasing, and that splendid prospect of the future fortunes of his country, which is opening from year to year. His name may be still a rampart and the knowledge that he lives a bulwark against all open or secret enemies of his country's peace.
This example has been recommended to the imitation of his successors, by both houses of Congress, and by the voice of the legislatures and the people, throughout the nation.
On this subject it might become me better to be silent, or to speak with diffidence; but as something may be expected, the occasion, I hope, will be admitted as an apology, if I venture to say, that if a preference upon principle, of a free republican government, formed upon long and serious reflection, after a diligent and impartial inquiry after truth; if an attachment to the Constitution of the United States, and a conscientious determination to support it, until it shall be altered by the judgments and wishes of the people, expressed in the mode prescribed in it; if a respectful attention to the constitution of the individual States, and a constant caution and delicacy towards the State governments; if an equal and impartial regard to the rights, interests, honor, and happiness of all the States in the Union, without preference or regard to a northern or southern, eastern or western position, their various political opinions on essential points, or their personal attachments; if a love of virtuous men, of all parties and denominations; if a love of science or letters and a wish to patronize every rational effort to encourage schools, colleges, universities, academies, and every institution of propagating knowledge, virtue, and religion among all classes of people, not only for their benign influence on the happiness of life, in all its stages and classes, and of society in all its forms, but as the only means of preserving our constitution from its natural enemies, the spirit of sophistry, the spirit of party, the spirit of intrigue, profligacy, and corruption, and the pestilence of foreign influence, which is the angel of destruction to elective governments, if a love of equal laws, of justice and humanity, in the interior administration; if an inclination to improve agriculture, commerce, and manufactures for necessity, convenience, and defense; if a spirit of equity and humanity towards the aboriginal nations of America, and a disposition to ameliorate their condition by inclining them to be more friendly to us, and our citizens to be more friendly to them; if an inflexible determination to maintain peace and inviolable faith with all nations, and the system of neutrality and impartiality among the belligerent powers of Europe which has been adopted by the government, and so solemnly sanctioned by both houses of Congress, and applauded by the legislatures of the States and by public opinion, until it shall be otherwise ordained by Congress; if a personal esteem for the French nation, formed in a residence of seven years chiefly among them, and a sincere desire to preserve the friendship, which has been so much for the honor and interest of both nations; if, while the conscious honor and integrity of the people of America and the internal sentiment of their own power and energies must be preserved, an earnest endeavor to investigate every just cause, and remove every colorable pretense of complaint; if an intention to pursue, by amicable negotiation, a reparation for the injuries that have been committed on the commerce of our fellow-citizens, by whatever nation; and, if success cannot be obtained, to lay the facts before the legislature, that they may consider what further measures the honor and interest of the government and its constituents demand; if a resolution to do justice, as far as may depend upon me, at all times and to all nations, and maintain peace, friendship, and benevolence with all the world; if an unshaken confidence in the honor, spirit, and resources of the American people, on which I have so often hazarded my all, and never been deceived; if elevated ideas of the high destinies of this country, and of my own duties towards it, founded on a knowledge of the moral principles and intellectual improvements of the people, deeply engraven on my mind in early life, and not obscured, but exalted, by experience and age; and with humble reverence, I feel it my duty to add, if a veneration for the religion of the people who profess and call themselves Christians, and a fixed resolution to consider a decent respect for Christianity among the best recommendations for the public service, can enable me, in any degree, to comply with your wishes, it shall be my strenuous endeavor that this sagacious injunction of the two houses shall not be without effect.
With this great example before me—with the sense and spirit, the faith and honor, the duty and interest of the same American people, pledged to support the Constitution of the United States, I entertain no doubt of its continuance in all its energy; and my mind is prepared, without hesitation, to lay myself under the most solemn obligations to support it to the utmost of my power.
And may that Being who is supreme over all, the patron of order, the fountain of justice, and the protector, in all ages of the world, of virtuous liberty, continue his blessing upon this nation and its government, and give it all possible success and duration, consistent with the ends of his providence!
THE BOSTON MASSACRE
(First Day's Speech in Defense of the British Soldiers Accused of
Murdering Attucks, Gray and Others, in the Boston Riot of 1770)
May If Please Your Honor, and You, Gentlemen of the Jury:—
I am for the prisoners at the bar, and shall apologize for it only in the words of the Marquis Beccaria:—
"If I can but be the instrument of preserving one life, his blessings and tears of transport shall be a sufficient consolation for me for the contempt of all mankind."
As the prisoners stand before you for their lives, it may be proper to recollect with what temper the law requires we should proceed to this trial. The form of proceeding at their arraignment has discovered that the spirit of the law upon such occasions is conformable to humanity, to common sense and feeling; that it is all benignity and candor. And the trial commences with the prayer of the court, expressed by the clerk, to the Supreme Judge of judges, empires, and worlds, "God send you a good deliverance."
We find in the rules laid down by the greatest English judges, who have been the brightest of mankind: We are to look upon it as more beneficial that many guilty persons should escape unpunished than one innocent should suffer. The reason is, because it is of more importance to the community that innocence should be protected than it is that guilt should be punished; for guilt and crimes are so frequent in the world that all of them cannot be punished; and many times they happen in such a manner that it is not of much consequence to the public whether they are punished or not. But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, "It is immaterial to me whether I behave well or ill, for virtue itself is no security." And if such a sentiment as this should take place in the mind of the subject, there would be an end to all security whatsoever, I will read the words of the law itself.
The rules I shall produce to you from Lord Chief-Justice Hale, whose character as a lawyer, a man of learning and philosophy, and a Christian, will be disputed by nobody living; one of the greatest and best characters the English nation ever produced. His words are these:—
(2 H. H. P. C.): Tutius semper est errare, in acquietando quam in puniendo, ex parte misericordiae quam ex parte justitiae.—"It is always safer to err in acquitting than punishing, on the part of mercy than the part of justice."
The next is from the same authority, 305:—
Tutius erratur ex parte mitiori,—"It is always safer to err on the milder side, the side of mercy."
(H. H. P. C. 509): "The best rule in doubtful cases is rather to incline to acquittal than conviction."
And on page 300:—
Quod dubitas, ne feceris.—"Where you are doubtful, never act; that is, if you doubt of the prisoner's guilt, never declare him guilty."
This is always the rule, especially in cases of life. Another rule from the same author, 289, where he says:—
"In some cases presumptive evidences go far to prove a person guilty, though there is no express proof of the fact to be committed by him; but then it must be very warily expressed, for it is better five guilty persons should escape unpunished than one innocent person should die."
The next authority shall be from another judge of equal character, considering the age wherein he lived; that is, Chancellor Fortescue in 'Praise of the Laws of England,' page 59. This is a very ancient writer on the English law. His words are:—
"Indeed, one would rather, much rather, that twenty guilty persons escape punishment of death, than one innocent person be condemned and suffer capitally."
Lord Chief-Justice Hale says:—
"It is better five guilty persons escape, than one innocent person suffer."
Lord Chancellor Fortescue, you see, carries the matter further, and says:—
"Indeed, one had rather, much rather, that twenty guilty persons should escape than one innocent person suffer capitally."
Indeed, this rule is not peculiar to the English law; there never was a system of laws in the world in which this rule did not prevail. It prevailed in the ancient Roman law, and, which is more remarkable, it prevails in the modern Roman law. Even the judges in the Courts of Inquisition, who with racks, burnings, and scourges examine criminals,—even there they preserve it as a maxim, that it is better the guilty should escape punishment than the innocent suffer. Satius esse nocentem absolvi quam innocentem damnari. This is the temper we ought to set out with, and these the rules we are to be governed by. And I shall take it for granted, as a first principle, that the eight prisoners at the bar had better be all acquitted, though we should admit them all to be guilty, than that any one of them should, by your verdict, be found guilty, being innocent.
I shall now consider the several divisions of law under which the evidence will arrange itself.
The action now before you is homicide; that is, the killing of one man by another. The law calls it homicide; but it is not criminal in all cases for one man to slay another. Had the prisoners been on the Plains of Abraham and slain a hundred Frenchmen apiece, the English law would have considered it as a commendable action, virtuous and praiseworthy; so that every instance of killing a man is not a crime in the eye of the law. There are many other instances which I cannot enumerate—an officer that executes a person under sentence of death, etc. So that, gentlemen, every instance of one man's killing another is not a crime, much less a crime to be punished with death. But to descend to more particulars.
The law divides homicide into three branches; the first is "justifiable," the second "excusable," and the third "felonious." Felonious homicide is subdivided into two branches; the first is murder, which is killing with malice aforethought; the second is manslaughter, which is killing a man on a sudden provocation. Here, gentlemen, are four sorts of homicide; and you are to consider whether all the evidence amounts to the first, second, third or fourth of these heads. The fact was the slaying five unhappy persons that night. You are to consider whether it was justifiable, excusable, or felonious; and if felonious, whether it was murder or manslaughter. One of these four it must be. You need not divide your attention to any more particulars. I shall, however, before I come to the evidence, show you several authorities which will assist you and me in contemplating the evidence before us.
I shall begin with justifiable homicide. If an officer, a sheriff, execute a man on the gallows, draw and quarter him, as in case of high treason, and cut off his head, this is justifiable homicide. It is his duty. So also, gentlemen, the law has planted fences and barriers around every individual; it is a castle round every man's person, as well as his house. As the love of God and our neighbor comprehends the whole duty of man, so self-love and social comprehend all the duties we owe to mankind; and the first branch is self-love, which is not only our indisputable right, but our clearest duty. By the laws of nature, this is interwoven in the heart of every individual. God Almighty, whose law we cannot alter, has implanted it there, and we can annihilate ourselves as easily as root out this affection for ourselves. It is the first and strongest principle in our nature. Justice Blackstone calls it "The primary canon in the law of nature." That precept of our holy religion which commands us to love our neighbor as ourselves does not command us to love our neighbor better than ourselves, or so well. No Christian divine has given this interpretation. The precept enjoins that our benevolence to our fellow-men should be as real and sincere as our affection to ourselves, not that it should be as great in degree. A man is authorized, therefore, by common sense and the laws of England, as well as those of nature, to love himself better than his fellow-subject. If two persons are cast away at sea, and get on a plank (a case put by Sir Francis Bacon), and the plank is insufficient to hold them both, the one has a right to push the other off to save himself. The rules of the common law, therefore which authorize a man to preserve his own life at the expense of another's, are not contradicted by any divine or moral law. We talk of liberty and property, but if we cut up the law of self-defense, we cut up the foundations of both; and if we give up this, the rest is of very little value, and therefore this principle must be strictly attended to; for whatsoever the law pronounces in the case of these eight soldiers will be the law to other persons and after ages. All the persons that have slain mankind in this country from the beginning to this day had better have been acquitted than that a wrong rule and precedent should be established.
I shall now read to you a few authorities on this subject of self-defense. Foster, 273 (in the case of justifiable self-defense):
"The injured party may repel force with force in defense of person, habitation, or property, against one who manifestly intendeth and endeavoreth with violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but pursue his adversary till he finds himself out of danger; and a conflict between them he happeneth to kill, such killing is fiable."
I must entreat you to consider the words of this authority. The injured person may repel force by force against any who endeavoreth to commit any kind of felony on him or his. Here the rule is, I have a right to stand on my own defense, if you intend to commit felony. If any of the persons made an attack on these soldiers, with an intention to rob them, if it was but to take their hats feloniously, they had a right to kill them on the spot, and had no business to retreat. If a robber meet me in the street and command me to surrender my purse, I have a right to kill him without asking any questions. If a person commit a bare assault on me, this will not justify killing; but if he assault me in such a manner as to discover an intention to kill me, I have a right to destroy him, that I may put it out of his power to kill me. In the case you will have to consider, I do not know there was any attempt to steal from these persons; however, there were some persons concerned who would, probably enough, have stolen, if there had been anything to steal, and many were there who had no such disposition. But this is not the point we aim at. The question is, Are you satisfied the people made the attack in order to kill the soldiers? If you are satisfied that the people, whoever they were, made that assault with a design to kill or maim the soldiers, this was such an assault as will justify the soldiers killing in their own defense. Further, it seems to me, we may make another question, whether you are satisfied that their real intention was to kill or maim, or not? If any reasonable man in the situation of one of these soldiers would have had reason to believe in the time of it, that the people came with an intention to kill him, whether you have this satisfaction now or not in your own minds, they were justifiable, at least excusable, in firing. You and I may be suspicious that the people who made this assault on the soldiers did it to put them to flight, on purpose that they might go exulting about the town afterwards in triumph; but this will not do. You must place yourselves in the situation of Weems and Killroy—consider yourselves as knowing that the prejudice of the world about you thought you came to dragoon them into obedience, to statutes, instructions, mandates, and edicts, which they thoroughly detested—that many of these people were thoughtless and inconsiderate, old and young, sailors and landsmen, negroes and mulattoes—that they, the soldiers, had no friends about them, the rest were in opposition to them; with all the bells ringing to call the town together to assist the people in King Street, for they knew by that time that there was no fire; the people shouting, huzzaing, and making the mob whistle, as they call it, which, when a boy makes it in the street is no formidable thing, but when made by a multitude is a most hideous shriek, almost as terrible as an Indian yell; the people crying, "Kill them, kill them. Knock them over," heaving snowballs, oyster shells, clubs, white-birch sticks three inches and a half in diameter; consider yourselves in this situation, and then judge whether a reasonable man in the soldiers' situation would not have concluded they were going to kill him. I believe if I were to reverse the scene, I should bring it home to our own bosoms. Suppose Colonel Marshall when he came out of his own door and saw these grenadiers coming down with swords, etc., had thought it proper to have appointed a military watch; suppose he had assembled Gray and Attucks that were killed, or any other person in town, and appointed them in that situation as a military watch, and there had come from Murray's barracks thirty or forty soldiers with no other arms than snowballs, cakes of ice, oyster shells, cinders, and clubs, and attacked this military watch in this manner, what do you suppose would have been the feelings and reasonings of any of our householders? I confess, I believe they would not have borne one-half of what the witnesses have sworn the soldiers bore, till they had shot down as many as were necessary to intimidate and disperse the rest; because the law does not oblige us to bear insults to the danger of our lives, to stand still with such a number of people around us, throwing such things at us, and threatening our lives, until we are disabled to defend ourselves.
(Foster, 274): "Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force, and even his own servant, then attendant on him, or any other person present, may interpose for preventing mischief, and if death ensue, the party so interposing will be justified. In this case nature and social duty co-operate."
Hawkins, P. C., Chapter 28, Section 25, towards the end:—"Yet it seems that a private person, a fortiori, an officer of justice, who happens unavoidably to kill another in endeavoring to defend himself from or suppress dangerous rioters, may justify the fact in as much as he only does his duty in aid of the public justice."
Section 24:—"And I can see no reason why a person, who, without provocation, is assaulted by another, in any place whatsoever, in such a manner as plainly shows an intent to murder him, as by discharging a pistol, or pushing at him with a drawn sword, etc., may not justify killing such an assailant, as much as if he had attempted to rob him. For is not he who attempts to murder me more injurious than he who barely attempts to rob me? And can it be more justifiable to fight for my goods than for my life?"
And it is not only highly agreeable to reason that a man in such circumstances may lawfully kill another, but it seems also to be confirmed by the general tenor of our books, which, speaking of homicide se defendo, suppose it done in some quarrel or affray.
(Hawkins, p. 71. section 14); "And so, perhaps, the killing of dangerous rioters may be justified by any private persons, who cannot otherwise suppress them or defend themselves from them, inasmuch as every private person seems to be authorized by the law to arm himself for the purposes aforesaid."
Here every private person is authorized to arm himself; and on the strength of this authority I do not deny the inhabitants had a right to arm themselves at that time for their defense, not for offense. That distinction is material, and must be attended to.
(Hawkins, p. 75, section 14): "And not only he who on an assault retreats to the wall, or some such strait, beyond which he can go no further before he kills the other, is judged by the law to act upon unavoidable necessity; but also he who being assaulted in such a manner and in such a place that he cannot go back without manifestly endangering his life, kills the other without retreating at all."
(Section 16); "And an officer who kills one that insults him in the execution of his office, and where a private person that kills one who feloniously assaults him in the highway, may justify the fact without ever giving back at all."
There is no occasion for the magistrate to read the riot act. In the case before you, I suppose you will be satisfied when you come to examine the witnesses and compare it with the rules of the common law, abstracted from all mutiny acts and articles of war, that these soldiers were in such a situation that they could not help themselves. People were coming from Royal Exchange Lane, and other parts of the town, with clubs and cord-wood sticks; the soldiers were planted by the wail of the Customhouse; they could not retreat; they were surrounded on all sides, for there were people behind them as well as before them; there were a number of people in the Royal Exchange Lane; the soldiers were so near to the Customhouse that they could not retreat, unless they had gone into the brick wall of it. I shall show you presently that all the party concerned in this unlawful design were guilty of what any one of them did; if anybody threw a snowball it was the act of the whole party; if any struck with a club or threw a club, and the club had killed anybody, the whole party would have been guilty of murder in the law. Lord Chief-Justice Holt, in Mawgrige's case (Keyling, 128), says:—
"Now, it has been held, that if A of his malice prepense assaults B to kill him, and B draws his sword and attacks A and pursues him, then A, for his safety, gives back and retreats to a wall, and B still pursuing him with his drawn sword, A in his defense kills B; this is murder in A. For A having malice against B, and in pursuance thereof endeavoring to kill him, is answerable for all the consequences of which he was the original cause. It is not reasonable for any man that is dangerously assaulted, and when he perceives his life in danger from his adversary, but to have liberty for the security of his own life, to pursue him that maliciously assaulted him; for he that has manifested that he has malice against another is not at to be trusted with a dangerous weapon in his hand. And so resolved by all the judges when they met at Seargeant's Inn, in preparation for my Lord Morley's trial."
In the case here we will take Montgomery, if you please, when he was attacked by the stout man with a stick, who aimed it at his head, with a number of people round him crying out, "Kill them, kill them." Had he not a right to kill the man? If all the party were guilty of the assault made by the stout man, and all of them had discovered malice in their hearts, had not Montgomery a right, according to Lord Chief-Justice Holt, to put it out of their power to wreak their malice upon him? I will not at present look for any more authorities in the point of self-defense; you will be able to judge from these how far the law goes in justifying or excusing any person in defense of himself, or taking away the life of another who threatens him in life or limb. The next point is this: that in case of an unlawful assembly, all and every one of the assembly is guilty of all and every unlawful act committed by any one of that assembly in prosecution of the unlawful design set out upon.
Rules of law should be universally known, whatever effect they may have on politics; they are rules of common law, the law of the land; and it is certainly true, that wherever there is an unlawful assembly, let it consist of many persons or of a few, every man in it is guilty of every unlawful act committed by any one of the whole party, be they more or be they less, in pursuance of their unlawful design. This is the policy of the law; to discourage and prevent riots, insurrections, turbulence, and tumults.
In the continual vicissitudes of human things, amidst the shocks of fortune and the whirls of passion that take place at certain critical seasons, even in the mildest government, the people are liable to run into riots and tumults. There are Church-quakes and State-quakes in the moral and political world, as well as earthquakes, storms, and tempests in the physical. Thus much, however, must be said in favor of the people and of human nature, that it is a general, if not a universal truth, that the aptitude of the people to mutinies, seditions, tumults, and insurrections, is in direct proportion to the despotism of the government. In governments completely despotic,—that is, where the will of one man is the only law, this disposition is most prevalent. In aristocracies next; in mixed monarchies, less than either of the former; in complete republics the least of all, and under the same form of governments as in a limited monarchy, for example, the virtue and wisdom of the administrations may generally be measured by the peace and order that are seen among the people. However this may be, such is the imperfection of all things in this world, that no form of government, and perhaps no virtue or wisdom in the administration, can at all times avoid riots and disorders among the people.
Now, it is from this difficulty that the policy of the law has framed such strong discouragements to secure the people against tumults; because, when they once begin, there is danger of their running to such excesses as will overturn the whole system of government. There is the rule from the reverend sage of the law, so often quoted before:—
(1 H. H. P. C. 437): "All present, aiding and assisting, are equally principal with him that gave the stroke whereof the party died. For though one gave the stroke, yet in interpretation of law it is the stroke of every person that was present, aiding and assisting."
(1 H. H. P. C. 440): "If divers come with one assent to do mischief, as to kill, to rob or beat, and one doeth it, they are all principals in the felony. If many be present and one only give the stroke whereof the party dies, they are all principal, if they came for that purpose."
Now, if the party at Dock Square came with an intention only to beat the soldiers, and began to affray with them, and any of them had been accidentally killed, it would have been murder, because it was an unlawful design they came upon. If but one does it they are all considered in the eye of the law guilty; if any one gives the mortal stroke, they are all principals here, therefore there is a reversal of the scene. If you are satisfied that these soldiers were there on a lawful design, and it should be proved any of them shot without provocation, and killed anybody, he only is answerable for it.
(First Kale's Pleas of the Crown, 1 H. H. P. C. 444): "Although if many come upon an unlawful design, and one of the company till one of the adverse party in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of the adverse party, without any particular abetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those that gave the stroke or actually abetted him to do it."
(1 H. H. P. C. 445): "In case of a riotous assembly to rob or steal deer, or to do any unlawful act of violence, there the offense of one is the offense of all the company."
(In another place, 1 H. H. P. C. 439): "The Lord Dacre and divers others went to steal deer in the park of one Pellham. Raydon, one of the company, killed the keeper in the park, the Lord Dacre and the rest of the company being in the other part of the park. Yet it was adjudged murder in them all, and they died for it." (And he quotes Crompton 25, Dalton 93. p. 241.) "So that in so strong a case as this, where this nobleman set out to hunt deer in the ground of another, he was in one part of the park and his company in another part, yet they were all guilty of murder."
The next is:—
(Kale's Pleas of the Crown, 1 H. H. P. C. 440): "The case of Drayton Bassit; divers persons doing an unlawful act, all are guilty of what is done by one."
(Foster 353, 354): "A general resolution against all opposers, whether such resolution appears upon evidence to have been actually and implicitly entered into by the confederates, or may reasonably be collected from their number, arms or behavior, at or before the scene of action, such resolutions so proved have always been considered as strong ingredients in cases of this kind. And in cases of homicide committed in consequence of them, every person present, in the sense of the law, when the homicide has been involved in the guilt of him that gave the mortal blow."
(Foster): "The cases of Lord Dacre, mentioned by Hale, and of Pudsey, reported by Crompton and cited by Hale, turned upon this point. The offenses they respectively stood charged with, as principals, were committed far out of their sight and hearing, and yet both were held to be present. It was sufficient that at the instant the facts were committed, they were of the same party and upon the same pursuit, and under the same engagements and expectations of mutual defense and support with those that did the facts."
Thus far I have proceeded, and I believe it will not be hereafter disputed by anybody, that this law ought to be known to every one who has any disposition to be concerned in an unlawful assembly, whatever mischief happens in the prosecution of the design they set out upon, all are answerable for it. It is necessary we should consider the definitions of some other crimes as well as murder; sometimes one crime gives occasion to another. An assault is sometimes the occasion of manslaughter, sometimes of excusable homicide. It is necessary to consider what is a riot, (1 Hawkins, ch. 65, section 2): I shall give you the definition of it:—
"Wheresoever more than three persons use force or violence, for the accomplishment of any design whatever, all concerned are rioters."
Were there not more than three persons in Dock Square? Did they not agree to go to King Street, and attack the main guard? Where, then, is the reason for hesitation at calling it a riot? If we cannot speak the law as it is, where is our liberty? And this is law, that wherever more than three persons are gathered together to accomplish anything with force, it is a riot.
(1 Hawkins, ch. 65, section 2): "Wherever more than three persons use force and violence, all who are concerned therein are rioters. But in some cases wherein the law authorizes force, it is lawful and commendable to use it. As for a sheriff [2 And. 67 Poph. 121], or constable [3 H. 7, 10, 6], or perhaps even for a private person [Poph. 121, Moore 656], to assemble a competent number of people, in order with force to oppose rebels or enemies or rioters, and afterwards, with such force actually to suppress them."
I do not mean to apply the word rebel on this occasion; I have no reason to suppose that ever there was one in Boston, at least among the natives of the country; but rioters are in the same situation, as far as my argument is concerned, and proper officers may suppress rioters, and so may even private persons.
If we strip ourselves free from all military laws, mutiny acts, articles of war and soldiers' oaths, and consider these prisoners as neighbors, if any of their neighbors were attacked in King Street, they had a right to collect together to suppress this riot and combination. If any number of persons meet together at a fair or market, and happen to fall together by the ears, they are not guilty of a riot, but of a sudden affray. Here is another paragraph, which I must read to you:—
(1 Hawkins, ch. 65, section 3): "If a number of persons being met together at a fair or market, or on any other lawful or innocent occasion, happen, on a sudden quarrel, to fall together by the ears, they are not guilty of a riot, but of a sudden affray only, of which none are guilty but those who actually began it," etc.
It would be endless, as well as superfluous, to examine whether every particular person engaged in a riot were in truth one of the first assembly or actually had a previous knowledge of the design thereof. I have endeavored to produce the best authorities, and to give you the rules of law in their words, for I desire not to advance anything of my own. I choose to lay down the rules of law from authorities which cannot be disputed. Another point is this, whether and how far a private person may aid another in distress? Suppose a press-gang should come on shore in this town and assault any sailor or householder in King Street, in order to carry him on board one of his Majesty's ships, and impress him without any warrant as a seaman in his Majesty's service; how far do you suppose the inhabitants would think themselves warranted by law to interpose against that lawless press-gang? I agree that such a press-gang would be as unlawful an assembly as that was in King Street. If they were to press an inhabitant and carry him off for a sailor, would not the inhabitants think themselves warranted by law to interpose in behalf of their fellow-citizen? Now, gentlemen, if the soldiers had no right to interpose in the relief of the sentry, the inhabitants would have no right to interpose with regard to the citizen, for whatever is law for a soldier is law for a sailor and for a citizen. They all stand upon an equal footing in this respect. I believe we shall not have it disputed that it would be lawful to go into King Street and help an honest man there against the press-master. We have many instances in the books which authorize it.
Now, suppose you should have a jealousy in your minds that the people who made this attack upon the sentry had nothing in their intention more than to take him off his post, and that was threatened by some. Suppose they intended to go a little further, and tar and feather him, or to ride him (as the phrase is in Hudibras), he would have had a good right to have stood upon his defense—the defense of his liberty; and if he could not preserve that without the hazard of his own life, he would have been warranted in depriving those of life who were endeavoring to deprive him of his. That is a point I would not give up for my right hand—nay, for my life.
Well, I say, if the people did this, or if this was only their intention, surely the officers and soldiers had a right to go to his relief; and therefore they set out upon a lawful errand. They were, therefore, a lawful assembly, if we only consider them as private subjects and fellow-citizens, without regard to mutiny acts, articles of war, or soldiers' oaths. A private person, or any number of private persons, has a right to go to the assistance of a fellow-subject in distress or danger of his life, when assaulted and in danger from a few or a multitude.
(Keyl. 136): "If a man perceives another by force to be injuriously treated, pressed, and restrained of his liberty, though the person abused doth not complain or call for aid or assistance, and others, out of compassion, shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter."
Keyl.: "A and others without any warrant impress B to serve the king at sea. B quietly submitted, and went off with the pressmaster. Hugett and the others pursued them, and required a sight of their warrant; but they showing a piece of paper that was not a sufficient warrant, thereupon Hugett with the others drew their swords, and the pressmasters theirs, and so there was a combat, and those who endeavored to rescue the pressed man killed one of the pretended pressmasters. This was but manslaughter; for when the liberty of one subject is invaded, it affects all the rest. It is a provocation to all people, as being of ill example and pernicious consequences."
Lord Raymond, 1301. The Queen versus Tooley et al. Lord Chief-Justice Holt says: "The prisoner (i.e. Tooley) in this had sufficient provocation; for if one be impressed upon an unlawful authority, it is a sufficient provocation to all people out of compassion; and where the liberty of the subject is invaded, it is a provocation to all the subjects of England, etc.; and surely a man ought to be concerned for Magna Charta and the laws: and if any one, against the law, imprisons a man, he is an offender against Magna Charta."
I am not insensible to Sir Michael Foster's observations on these cases, but apprehend they do not invalidate the authority of them as far as I now apply them to the purposes of my argument. If a stranger, a mere fellow-subject, may interpose to defend the liberty, he may, too, defend the life of another individual. But, according to the evidence, some imprudent people, before the sentry, proposed to take him off his post; others threatened his life; and intelligence of this was carried to the main guard before any of the prisoners turned out. They were then ordered out to relieve the sentry; and any of our fellow-citizens might lawfully have gone upon the same errand. They were, therefore, a lawful assembly.
I have but one point of law more to consider, and that is this: In the case before you I do not pretend to prove that every one of the unhappy persons slain was concerned in the riot. The authorities read to you just now say it would be endless to prove whether every person that was present and in a riot was concerned in planning the first enterprise or not. Nay, I believe it but justice to say some were perfectly innocent of the occasion. I have reason to suppose that one of them was—Mr. Maverick. He was a very worthy young man, as he has been represented to me, and had no concern in the rioters' proceedings of that night; and I believe the same may be said in favor of one more at least, Mr. Caldwell, who was slain; and, therefore, many people may think that as he and perhaps another was innocent, therefore innocent blood having been shed, that must be expiated by the death of somebody or other. I take notice of this, because one gentleman was nominated by the sheriff for a juryman upon this trial, because he had said he believed Captain Preston was innocent, but innocent blood had been shed, and therefore somebody ought to be hanged for it, which he thought was indirectly giving his opinion in this cause. I am afraid many other persons have formed such an opinion. I do not take it to be a rule, that where innocent blood is shed the person must die. In the instance of the Frenchmen on the Plains of Abraham, they were innocent, fighting for their king and country; their blood is as innocent as any. There may be multitudes killed, when innocent blood is shed on all sides; so that it is not an invariable rule. I will put a case in which, I dare say, all will agree with me. Here are two persons, the father and the son, go out a-hunting. They take different roads. The father hears a rushing among the bushes, takes it to be game, fires, and kills his son, through a mistake. Here is innocent blood shed, but yet nobody will say the father ought to die for it. So that the general rule of law is, that whenever one person has a right to do an act, and that act, by any accident takes away the life of another, it is excusable. It bears the same regard to the innocent as to the guilty. If two men are together, and attack me, and I have a right to kill them, I strike at them, and by mistake strike a third and kill him, as I had a right to kill the first, my killing the other will be excusable, as it happened by accident. If I, in the heat of passion, aim a blow at the person who has assaulted me, and aiming at him I kill another person, it is but manslaughter.
(Foster. 261. section 3): "If an action unlawful in itself is done deliberately, and with intention of mischief, or great bodily harm to particulars, or of mischief indiscriminately, fall it where it may, and death ensues, against or beside the original intention of the party, it will be murder. But if such mischievous intention doth not appear, which is matter of fact, and to be collected from circumstances, and the act was done heedlessly and inconsiderately, it will be manslaughter, not accidental death; because the act upon which death ensued was unlawful."
Suppose, in this case, the mulatto man was the person who made the assault; suppose he was concerned in the unlawful assembly, and this party of soldiers, endeavoring to defend themselves against him, happened to kill another person, who was innocent—though the soldiers had no reason, that we know of, to think any person there, at least of that number who were crowding about them, innocent; they might, naturally enough, presume all to be guilty of the riot and assault, and to come with the same design—I say, if on firing on those who were guilty, they accidentally killed an innocent person, it was not their fault. They were obliged to defend themselves against those who were pressing upon them. They are not answerable for it with their lives; for on supposition it was justifiable or excusable to kill Attucks, or any other person, it will be equally justifiable or excusable if in firing at him they killed another, who was innocent; or if the provocation was such as to mitigate the guilt of manslaughter, it will equally mitigate the guilt, if they killed an innocent man undesignedly, in aiming at him who gave the provocation, according to Judge Foster; and as this point is of such consequence, I must produce some more authorities for it:
(1 Hawkins. 84): "Also, if a third person accidentally happen to be killed by one engaged in a combat, upon a sudden quarrel, it seems that he who killed him is guilty of manslaughter only," etc. (H. H P. C. 442, to the same point; and 1 H. H. P. C. 484. and 4 Black, 27.)
I shall now consider one question more, and that is concerning provocation. We have hitherto been considering self-defense, and how far persons may go in defending themselves against aggressors, even by taking away their lives, and now proceed to consider such provocations as the law allows to mitigate or extenuate the guilt of killing, where it is not justifiable or excusable. An assault and battery committed upon a man in such a manner as not to endanger his life is such a provocation as the law allows to reduce killing down to the crime of manslaughter. Now, the law has been made on more considerations than we are capable of making at present; the law considers a man as capable of bearing anything and everything but blows. I may reproach a man as much as I please; I may call him a thief, robber, traitor, scoundrel, coward, lobster, bloody-back, etc., and if he kill me it will be murder, if nothing else but words precede; but if from giving him such kind of language I proceed to take him by the nose, or fillip him on the forehead, that is an assault; that is a blow. The law will not oblige a man to stand still and bear it; there is the distinction. Hands off; touch me not. As soon as you touch me, if I run you through the heart, it is but manslaughter. The utility of this distinction, the more you think of it the more you will be satisfied with it. It is an assault whenever a blow is struck, let it be ever so slight, and sometimes even without a blow. The law considers man as frail and passionate. When his passions are touched, he will be thrown off his guard, and therefore the law makes allowance for this frailty —considers him as in a fit of passion, not having the possession of his intellectual faculties, and therefore does not oblige him to measure out his blows with a yard-stick, or weigh them in a scale. Let him kill with a sword, gun, or hedge-stake, it is not murder, but only manslaughter.
(Keyling's Report, 135. Regina versus Mawgrige.) "Rules supported by authority and general consent, showing what are always allowed to be sufficient provocations. First, if one man upon any words shall make an assault upon another, either by pulling him by the nose or filliping him on the forehead, and he that is so assaulted shall draw his sword and immediately run the other through, that is but manslaughter, for the peace is broken by the person killed and with an indignity to him that received the assault. Besides, he that was so affronted might reasonably apprehend that he that treated him in that manner might have some further design upon him."
So that here is the boundary, when a man is assaulted and kills in consequence of that assault, it is but manslaughter. I will just read as I go along the definition of assault:—
(1 Hawkins. ch. 62, section 1): "An assault is an attempt or offer, with force or violence, to do a corporal hurt to another, as by striking at him with or without a weapon, or presenting a gun at him at such a distance to which the gun will carry, or pointing a pitchfork at him, or by any other such like act done in angry, threatening manner, etc.; but no words can amount to an assault,"
Here is the definition of an assault, which is a sufficient provocation to soften killing down to manslaughter:—
(1 Hawkins, ch. 31, section 36): "Neither can he be thought guilty of a greater crime than manslaughter, who, finding a man in bed with his wife, or being actually struck by him, or pulled by the nose or filliped upon the forehead, immediately kills him, or in the defense of his person from an unlawful arrest, or in the defense of his house from those who, claiming a title to it, attempt forcibly to enter it, and to that purpose shoot at it," etc.
Every snowball, oyster shell, cake of ice, or bit of cinder, that was thrown that night at the sentinel, was an assault upon him; every one that was thrown at the party of soldiers was an assault upon them, whether it hit any of them or not. I am guilty of an assault if I present a gun at any person; and if I insult him in that manner and he shoots me, it is but manslaughter.
(Foster. 295, 396): "To what I have offered with regard to sudden rencounters let me add, that the blood already too much heated, kindleth afresh at every pass or blow. And in the tumult of the passions, in which the mere instinct of self-preservation has no inconsiderable share, the voice of reason is not heard; and therefore the law, in condescension to the infirmities of flesh and blood, doth extenuate the offense."
Insolent, scurrilous, or slanderous language, when it precedes an assault, aggravates it.
(Foster, 316): "We all know that words of reproach, how grating and offensive soever, are in the eye of the law no provocation in the case of voluntary homicide: and yet every man who hath considered the human frame, or but attended to the workings of his own heart knoweth that affronts of that kind pierce deeper and stimulate in the veins more effectually than a slight injury done to a third person, though under the color of justice, possibly can."
I produce this to show the assault in this case was aggravated by the scurrilous language which preceded it. Such words of reproach stimulate in the veins and exasperate the mind, and no doubt if an assault and battery succeeds them, killing under such provocation is softened to manslaughter, but killing without such provocation makes it murder.
End of the first day's speech