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.