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."