Some time ago I took the liberty of making a few remarks in my poor

manner, upon a SPEECH deliver’d at the close of a session of the

General Assembly: I then thought, and still think that I had good

right and lawful authority so to do, notwithstanding the rebuke which

the VENERABLE Mr. Probus1 then “thought fit” to give me. In imitation

of some of my BRETHREN, I solemnly warned my readers, by way of

applications, of the danger of certain INSTRUCTIONS, or as they were

term’d, “MINISTERIAL MANDATES” we had about that time been told of;

which appear’d to me to be equal to that of REVENUE ACTS, or STANDING

ARMIES to ENFORCE them: I little thought that these instructions, or

mandates, call them what you will, would in their effects have made

so rapid a progress, in so short a time, as I find they have since

THE PRESENT ADMINISTRATION began: For I perceive that our house of

representatives have plainly told the Lt. Governor that “merely in

obedience to INSTRUCTIONS, he has made an ABSOLUTE SURRENDER of Castle

William to his Majesty’s forces, with a MOST EXPRESS RESIGNATION of

his POWER OF GARRISONING the same to Lt. Col. Dalrymple”: and to prove

it they recite his Honor’s orders UNDER HIS OWN HAND, to Capt.

Phillips, to deliver that Fort into the hands of the commanding

officer of his Majesty’s regular forces then upon the island, TO BE

GARRISON’D by such detachment as HE SHOULD ORDER! To this indeed his

honor says, “There is nothing in the orders which I gave to Capt.

Phillips, which does not perfectly consist with my retaining the

command of the Castle, and my right to exchange the present garrison

for the former or any other, as I shall think proper”: But I must

confess, it is mysterious to me, how his Honor can retain the Right

to dismiss Col. Dalrymple and his detachment, WHEN HE PLEASES, or

exchange the present garrison for any other AS HE SHALL THINK PROPER,

after having delivered the fort without any reservation, into the

hands of Col. Dalrymple, in consequence of EXPRESS ORDERS from

another, to be garrison’d by such detachment AS HE SHALL ORDER. I am

not so certain that his Honor, who pays a sacred regard to

instructions, will easily be perswaded to exchange the present

garrison for the former, or any other, however necessary such

exchange may be, without first having leave from the right Hon. the

Earl of Hillsborough, as full and EXPRESS as the orders he receiv’d

from his lordship to place the present garrison there--Others may

reconcile an absolute delegation of power without any reserve, by the

express orders of a superior, with a right retain’d in the person who

is THUS ORDER’D to delegate, to exercise the same power when he

pleases; I have not that INTUITIVE knowledge which some men are said

to be bless’d with, and therefore it will not be thought strange if I

do not see clearly through this mystery in POLITICS.--The house

further observe, that “as his Honor has heretofore repeatedly declared

that he has no authority over the King’s troops in the province,2 it

was absurd to suppose he COULD have the command of a fort, thus

unreservedly surrendered to, and in full possession of such troops”:

Which appears to be a just conclusion; for can any one believe that

Col. Dalrymple will hold himself oblig’d to march the King’s troops

under his command out of that fort, in obedience to the orders of one

who has no authority over them? Think not, Mess. Printers, that I am

now finding fault: For if his Honor has “in this instance divested

himself of a power of governing which is vested in him by the Charter

FOR THE SAFETY of the province”, as wiser heads than mine have

determin’d, who WILL DARE to find fault? It was done by virtue of

instructions; and we are told that instructions from a minister of

state come MEDIATELY from the K-----, and his Honor knows that

instructions, whatever “coarse epithet” may have been bestow’d upon

them, are “founded in very wise reasons”, and ought not to be treated

with contempt--HOLT, SOMERS and others, who near eighty years ago

laid their heads together to form our Charter, were certainly wise

and great men; and King William who gave it was as certainly a wise

and good King: But does not the wisdom of my Lord of H-----h far

exceed theirs? Pray, does not every measure which he has advis’d,

fully evince this to the conviction of all but a few factious fellows

here and there. The FRIENDS OF GOVERNMENT are willing to submit WHAT

JUDGEMENT THEY HAVE to such profound wisdom; and what if our OLD

FASHION Charter should be pared down by INSTRUCTIONS, and a power or

two of the G-----r, vested in him FOR THE SAFETY OF THE PEOPLE, should

even be annihilated by them, we are only to BELIEVE there are very

wise reasons for it, and we shall find that all is for the best.

But it is said that “Mr. Hall the late chaplain (whose deposition was

also taken) has not only not given the House the form of words in

which his Honor committed the CUSTODY of the Castle “according to the

Charter” to Col. Dalrymple, but has substituted words which carry a

very different meaning.” --It is strange that Mr. Hall, whom his

Honor directed to attend him--I suppose as a witness--should so

grosly mistake the meaning of the words. But whatever he may lack in

comprehension, memory or VERACITY, he shall, IF HE LIKES IT, be

touch’d up with the reputation of a very MODEST KIND OF GENTLEMAN;

“he has with GREAT MODESTY declared that he COULD NOT RECOLLECT THE

WORDS”--Mr. Hall’s expression is, “PERHAPS I MAY not recollect the

words EXACTLY”;--and “could ONLY recollect the impression they made

upon his mind”--Here again we find Mr. Hall’s expression to be, “This

as far as I can recollect is the impression they made upon my mind.”

He spoke upon memory, and if he delivered the SUBSTANCE of what he

heard, his not being certain that he recollected the words EXACTLY,

is not material--What then is the substance as deliver’d by Mr. Hall

UNDER OATH, who has the character both of an honest and a sensible

man, altho’ it is said that he substituted words which convey a very

different meaning? It is this; “By virtue of authority deriv’d from

his Majesty to govern this province, and in consequence of EXPRESS

ORDERS from the Right Hon. the Earl of Hillsborough to deliver this

fort into the hands of the commanding officer of the King’s troops

now upon the island to be garrison’d by such detachment or detachments

as HE SHALL THINK PROPER I deliver these keys to you as commanding

officer”. If his Honor has a copy of the EXACT FORM OF WORDS, and will

favor the publick with it, we shall be able to judge where the

difference is, and whether “in our opinion” it is MATERIAL. Perhaps

the words “according to the Charter” which I observe are comma’d in

his Honor’s reply as emphatical, are omitted by Mr. Hall: But if THEY

are a part of the FORM OF WORDS, the house seem to have fully taken

them up by affirming that his Honor has no authority either BY THE

CHARTER or his commission to delegate the power of garrisoning the

Castle to any other person: And “that the SHEW of the authority of

the Governor thus held up serv’d only to make the surrender the more

solemn and formal.” If then he had no such authority to do it either

by Charter or Commission, how could he do it by virtue of the

authority deriv’d from his Majesty to govern the province? unless

that authority is deriv’d to him to govern, SOLELY by the “EXPRESS

ORDERS from the Rt. Hon. the Earl of Hillsborough”--If so, where

indeed “is the freedom of the Governor of this province”: I desire to

know, how his Honor in delivering the keys of the Castle and the

power of garrisoning it to Col. Dalrymple, can be suppos’d to have

exercis’d HIS OWN judgment and election, when he declares he did it

in consequence of EXPRESS ORDERS from another? And that other does not

appear to be his Majesty, but the Rt. Hon. the Earl of Hillsborough

--The whole matter that could exercise his judgment, as it appears to

me, must have been whether he should deliver the fort to Col.

Dalrymple to be garrison’d by such detachment of the regular forces as

he should think proper, in obedience to the EXPRESS ORDERS of Lord

Hillsborough, or retain the Right of committing the custody and

government thereof to such person or persons as to him should seem

meet, by virtue of the authority deriv’d from his Majesty to govern

the province according to the EXPRESS TERMS of the Charter.

I may venture to say, there has not been an instance of this kind

since the date of our Charter; and in the opinion of judicious and

unprejudiced persons, it is a matter of very great moment. Our enemies

may now have the pleasure of seeing the principal fort & key of the

province in the hands of persons who have not the least dependance

upon it; the captial environ’d with ships of war; the General Assembly

removed from its ancient seat, into the country; and the College,

which has been liberally supported by the people for the education of

our youth, has been made a seat of government, under a pretence, as

it is said, of a prerogative in the Crown, to take up any public

buildings;--All by virtue of instructions, which we are implicitly to

believe are founded in wise reasons; while the people thro’out the

province, whether they are sensible of it or not, are every day

contributing to a revenue rais’d by the act of a legislature in which

they are not and cannot be represented, and against their most

earnest petitions and warmest remonstrances! Surely these are not the

blessings of adm-----n for which we are this week to return to

Almighty God our unfeigned thanks.

When the public observe that the House had ordered Mr. Hall’s

deposition to be published at large, and that his Honor was DULY

NOTIFIED TO BE PRESENT at the caption, perhaps it may be thought that

the mention that is made of the “care INDUSTRIOUSLY taken by the

House to omit the reserve” Mr. Hall had made, because it “did not

suit their purpose”, might have been spared. Its not suiting their

purpose, might be a sufficient reason for their ommitting it: But

possibly his Honor’s manner of introducing it, may be taken be some

“to convey a very different meaning.”

As to “the formality of delivering the keys of the fort,” I suppose

it to have been in much the same FORM OF WORDS, as is used, when a

governor who is recalled, delivers them to another who is to succeed

him in the government of the province by his Majesty’s appointment.

--Col. Dalrymple accepted them “in consequence of orders from General

Gage,” without recognizing any subordination to his Honor. Whether he

will ever deliver them to any person, but such as may claim more

authority over the King’s troops in the province than the Lieutenant

Governor has, I very much doubt.--You shall hear from me again.---

In the mean while, I am yours,

A CHATTERER.

1See above, p. 43.

2The identical words used by that warm friend to this province, the

colonies, the nation and all men but himself, Sir F. B. of Nettleham,

Baronet.

ARTICLE SIGNED “VINDEX.”

[Boston Gazette, December 10, 1770.]

To the Printers,

The trial of Capt. Preston and the Soldiers who were indicted for the

murder of Messrs. Gray, Maverick, Caldwell, Carr and Attucks, on the

fatal fifth of March last, occasions much speculation in this Town:

And whatever may be the sentiments of men of the coolest minds abroad,

concerning the issue of this trial, we are not to doubt, but the

Court,1 the Jury, the Witnesses, and the Council on both sides, have

conscienciously acquitted themselves: To be sure, no one in his

senses will venture to affirm the contrary.

I am free to declare my opinion, that a cause of so great importance,

not only to this town, but to all his Majesty’s subjects, especially

to the inhabitants of cities and sea-port towns; who are expos’d to

have troops posted among them, whenever the present administration

shall take it into their heads in his Majesty’s name to send them;

such a cause, I say, ought to be fairly stated to the public; that we

may from thence learn how far we are bound to submit to every band of

soldiers we may meet in the streets, and in what instances we may

venture to interpose and prevent their murdering those whom we may

think to be innocent persons without being liable to be censured for

acting unlawfully, if we escape with our own heads, if we should fall

victims to their rage and cruelty.

It was a question put by the chief magistrate of this province to the

officer who commanded on that bloody evening. “Did you not know that

you should not have fired without the order of a civil magistrate”.

And it was sworn in court in the case of Capt. Preston, that he

answered, “I did it to save my Sentry”: But whatever his answer was,

or however “unsatisfactory” to his Honor, the question plainly implies

that it was the judgment of his Honor, that the soldiers could not

justify themselves in firing upon the people without the order of the

civil magistrate. Yet they did fire without such orders, and killed

five of his Majesty’s good subjects; most, if not all of whom were at

that time, for aught that has yet appear’d, in the peace of God and

the King! They not only fired without the orders of the civil

magistrate, but they never called for one, which they might easily

have done--They went down of their own accord, arm’d with musquets,

and bayonets fix’d, presuming that they were cloath’d with as much

authority by the law of the land, as the Posse Comitatus of the

country with the high sheriff at their head--How little regard is due

to the word fo a m--r, who would fain have flatter’d us into a belief

that the troops were sent here to aid the civil magistrate, and were

never to act without one? And let me observe, how fatal are the

effects, the danger of which I long ago mention’d, of posting a

standing army among a free people!

If his Honor was not mistaken in his judgment, and I presume he was

not, viz. that it was unlawful for them to fire without the order of

the civil magistrate, they were certainly from the beginning, at

least very imprudent and fool-hardy, in going down, arm’d as they

were, with weapons of death, without the direction of the civil

magistrate; especially, if they intended to fire, as I think it is

manifest they did.-- When Captain Preston was asked, Whether the

soldiers intended to fire, he answer’d they could not fire without

his orders: No one will pretend that they had not strength or skill

to pull their trickers; but by the rules of the army, their own rules,

they were restrained from firing till he first gave them orders: Yet

contrary to those very rules they all did fire; all but one, and he

did all he could to fire, for his gun flush’d in the pan--it is said

that when it was urg’d by the council for the crown, that by the

rules of law they ought to have retreated if they were in danger of

their lives; it was answered, that by the rules of the army they

were chain’d as it were to their post--that they dared not to retreat

without the orders of their captain--that in so doing they would have

‘expos’d themselves to a sentence of death in a court martial:’--Yet

we have it from great authority that they would have been distracted

if they had not fired, upon a supposition that they were in danger;

altho’ by the same rules of war they could not have fired any more

than they could have retreated, till the captain order’d them; and

they expos’d themselves to be shot by the sentence of a court martial

if they did fire, as much as they would have done if they had

retreated without his order--Certainly it will not be said, it was

more becoming the bravery of a British soldier, to stand his ground

against the subjects of his own King, and kill them upon the spot,

than to have retreated and deserted the glorious cause, and thus have

saved the lives of his Majesty’s subsjects.

The behavior of the party as they went from the main guard discover’d

an haughty air--they push’d their bayonets and damn’d the people as

they went along--and when they arriv’d at their post, one witness who

is a young gentleman of a liberal education and an unspotted

character, declared, that when they came down there were about ten

persons round the sentry--that one of the prisoners whom he

particularly named, loaded his gun, pushed him with his bayonet and

damn’d him--that about fifty or sixty persons came down with the

party, and that he did not observe the people press on. Another

declared, that when the soldiers were loading, about a dozen

surrounded them, and that several of them struck their guns--that he

saw ice or snow balls thrown, but did not apprehend himself or the

soldiers in danger by any thing he saw--This witness was very near

the soldiers; and will any one wonder, that when the soldiers were

to all appearance meditating the death of people by loading their

guns, while there was no apparent danger to them, some of the people

should strike their guns, to prevent the mischief which they seem’d

to be resolv’d upon.

Another declared, that one of the prisoners whom he also named, struck

him upon the arm with his bayonet as the party came down before they

formed; and that he had then told Capt. Preston that every body was

about dispersing--The characters of these witnesses will not be

contested. Such a conduct surely did not discover the most peaceable

disposition in this lawful assembly of soldiers--One would think that

they intended to assassinate those, who they had no reason to think

had the least inclination to injure them--If these are not instances

of assault, I know not what an assault is: And if they were not an

unlawful assembly before, it may well be suppos’d they were at this

time doing an unlawful act--an act that to be sure very ill became

gentlemen soldiers sent here to curb a rebellious spirit and keep the

peace: But there is a colouring at hand; and because this party did

not knock a witness down, or run him thro’, who had the audacity to

refuse at their sovereign order to move out of the way for them as

they pass’d the street from the main guard to the custom-house, tho’

he had then been push’d with a bayonet by one of them, it is

sufficient to convince all the world of their lamb-like meekness and

immaculate innocence.

I have in a former paper consider’d soldiers when quarter’d in free

cities, in the light of other inhabitants, under the same direction

of the civil magistrate and the same controul of the law of the land:

and that by this law, like all other men, they are to be protected,

govern’d, restrain’d, rewarded or punish’d. If then a soldier has the

right in common with other men, to arm himself for his defence when

he thinks there is a necessity for it, he has certainly no more right

then they, to use his weapons of death at random; or at all under a

pretence of suppressing riots, or any other pretence, without the

presence of the civil magistrate, unless his own life is in danger,

and he cannot retreat: Such a liberty would tend to increase the

disorder rather than suppress it, and would endanger life rather than

save it: In the instances I have mention’d, the lives of the soldiers

were not in danger from the men whom they assaulted: This was early

in the tragical scene, and it was an assault personally upon those

who had not attempted to do them the least injury: How far their lives

were in danger afterwards, and who were in fault, shall be the subject

of free Enquiry in a future paper.

VINDEX.

1The published report, cited above, p. 60, contains the charge to the

jury as given only by Judge Trowbridge and Judge Oliver. All that is

extant of Judge Lynde’s charge to the jury is printed in The Diaries

of Benjamin Lynde and of Benjamin Lynde, Jr., pp. 228-230.

ARTICLE SIGNED “VINDEX”

To the Printers.

That the trial of the soldiers concern’d in the carnage on the

memorable 5th of March, was the most solemn trial that ever was had

in this country, was pronounc’d from the bench. To see eight

prisoners bro’t to the bar together, charg’d with the murder of five

persons at one time, was certainly, as was then observ’d, affecting:

But whoever recollects the tragedy of that fatal evening, will I

believe readily own that the scene then was much more affecting--There

is something pleasing and solemn when one enters into a court of law

--Pleasing, as there we expect to see the scale held with an equal

hand--to find matters deliberately and calmly weigh’d and decided,

and justice administered without any respect to persons or parties,

and from no other motive but a sacred regard to truth--And it is

solemn as it brings to our minds the tribunal of GOD himself! before

whose judgment-seat the scriptures assure us all must appear: And I

have often tho’t that no one will receive a greater share of rewards

at that decisive day, than he who has approv’d himself a faithful

upright judge.

Witnesses who are bro’t into a court of justice, while their veracity

is not impeach’d, stand equal in the eye of the judge; unless he

happens to be acquainted with their different characters, which is

not presum’d--The jury who are taken from the vicinity, are suppos’d

to know the credibility of the witnesses: In the late trials the

witnesses were most if not all of them either inhabitants of this town

or transient persons residing in it, and the jurors were all from the

country: Therefore it is not likely that they were acquainted with the

characters of all the witnesses; and it is more than probable that in

so great a number of witnesses there were different characters, that

is, that some of them were more, others less creditable. If then the

judge, whose province it is to attend to the law, and who, not knowing

the characters of the witnesses, presumes that they are all good, &

gives an equal credit to them, it is the duty of the jurors who are

sovereign in regard to facts, to determine in their own minds the

credibility of those who are sworn to relate the facts: And this in a

trial for murder requires great care and attention. I would just

observe here, that in the last trial there were not less than eighty-

two witnesses for the jury to examine and compare, which was an

arduous task indeed! And I will venture further to observe, that some

of these witnesses who swore very positively were not so creditable

as others, and the testimony of one of them in particular, which was

very precisely related & very peremptory, might have been invalidated

in every part of it. I shall not at present suggest what I take to be

the reason why it was not done. These matters will no doubt have

their place in the history of the present times in some future day,

when the faithful recorder it is to be hoped will, to use the language

of our courts of justice, relate the truth, the whole truth, and

nothing but the truth.

It is enough for the jury to receive the law from the bench: They may

indeed determine this for themselves; but of facts they are ever the

uncontroulable judges. They ought therefore to receive the facts from

the mouths of the witnesses themselves, and implicitly from no other:

Unless the jury particularly attend to this, they may be in danger of

being misled by persons who would be far from doing it with design:

For instance, if one should swear that A being foreworn’d against it,

levell’d his gun and kill’d B: and afterwards it should be forgot,

that the witness also swore that A immediately advanc’d & push’d his

bayonet at C, which pass’d between his waistcoat and his skin; if this

I say should be forgot, and should be overlook’d by the jury when they

are together, perhaps instead of bringing it in murder according to

the rules of the law laid down by the bench, they would bring it in

manslaughter--I do not here affirm that this has ever been a fact: I

mention it as what may hereafter be a fact, and to show the necessity

of a jury’s relying upon facts as they receive them from the witnesses

themselves, and from them alone.

The furor brevis which we have heard much of, the fury of the blood

which the benignity of the law allows for upon sudden provocation, is

suppos’d to be of short duration--the shooting a man dead upon the

spot, must have stopp’d the current in the breast of him who shot him,

if he had not been bent upon killing--an attempt to stab a second

person immediately after, infers a total want of remorse at the

shedding of human blood; and such a temper of mind afterwards

discovers the rancorous malice before, especially if it be proved that

the same man had declated that he would never miss an opportunity so

to do: If this does not imply malice at first, I do not see but he

might have gone on stabbing people in his furor brevis, till he had

kill’d an hundred; and after all, it might have been adjudg’d, in

indulgence to the human passions, excuseable homicide.

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