(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.