"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."