On Saturday i.e. Tuesday, the 27th November, 1770, the Court being met, the prisoners were brought into Court and set to the bar, when the Court proceeded thus. . . .

Clerk. How sayest thou, William Wemms, art thou guilty of the felony and murder whereof thou standest indicted, or not guilty?

William Wemms. Not guilty.

Clerk. How wilt thou be tried?

William Wemms. By God and my country.

Clerk. God send thee a good deliverance. . . .2

Clerk. You the prisoners at the bar, these good men, which were last called and do now appear, are those who are to pass between our sovereign Lord the King and you, upon the trial of your several lives; if therefore you will challenge them, or any of them, you must challenge them as they are called to be sworn, before they are sworn, and you shall be heard.

The prisoners being asked whether they would agree in their challenges, consented that William Wemms should make challenges for them all.3

The Clerk having gone thro' the pannel, and there being a deficiency of Jurors, the Sheriff, by order of the court, returned the following talesmen.

N.B. The three last being illegally returned, as Jurors, were rejected by the Court, and returned by the Sheriff as talesmen.

Clerk. Cryer count these.4

Cryer. Gentlemen are ye all sworn.5

Clerk. Prisoners hold up your hands. Gentlemen of the Jury look upon the prisoners, and hearken to the charge. (The Clerk then read the several indictments against them as before set forth.) Upon each and every of these several indictments, the prisoners at the bar have been arraigned, and upon their arraignment have pleaded not guilty, and for trial have put themselves upon God and their country, which country you are; your charge therefore is, to enquire whether they or either of them be guilty of the felony and murder whereof they stand indicted, or not guilty. If they or either of them are guilty, you are to say so; if they or either of them are not guilty, you are to say so and no more. Good men and true, stand together and hearken to your evidence.

Robert Treat Paine, Esq;

Samuel Quincy, Esq;

John Adams, Esq;

and Mr. Sampson Salter

Mr. Josiah Quincy,

Blowers.6

Samuel Quincy, Esq: addressing himself to the Court and Jury, opened the cause nearly in the following words:

May it please your Honours, and you Gentlemen of the Jury.

The prisoners at the bar, are that party of soldiers belonging to his Majesty's 29th regiment, who in the evening of the 5th of March last, were induced from some cause or other to fire on the inhabitants of this town, in King-street.

They are charged in five distinct indictments, with the wilful premeditated murder of five different persons mentioned in the respective bills; to each of these indictments, they have severally pleaded, not guilty; and by that plea have thrown upon the crown the burthen of proving the fact alledged against them: It is my province therefore to give you evidence in support of this charge, and yours, gentlemen of the jury, to determine whether they are guilty, or not.

The cause is solemn and important; no less than whether eight of your fellow subjects shall live or die! A cause grounded on the most 102melancholy event that has yet taken place on the continent of America, and perhaps of the greatest expectation of any that has yet come before a tribunal of civil justice, in this part of the British dominions.

I am aware how difficult, in cases of this sort, it ever is, and more especially so in these times, and in this trial, to preserve the mind perfectly indifferent; but I remember, we are bound, not only by the natural obligations towards God and man, but also by an oath, to examine into the evidence of fact without partiality or prejudice; I need not therefore caution you of your duty in this respect: It is upon that evidence and the law resulting from it, you gentlemen are, in the language of your oath, to give a verdict; and I will venture, before hand, to pronounce that verdict righteous, if it is founded in these principles as the rule of your judgment.

It has become my duty, it shall therefore be my endeavor, to acquit myself in the course of this trial with decency and candour; reflecting that however interesting the question may be, the object of our enquiry is simply that of truth, and that this enquiry is to be conducted by the wisdom of the laws and constitution.

In support of this accusation against the prisoners at the bar, it is incumbent on the crown, to ascertain the following things; viz. The identity of the persons charged; the fact of killing; and the circumstances attending and aggravating that fact.

To this end, I shall immediately produce to you such evidence, from the testimony of credible witnesses, as may be sufficient to sustain the several indictments, and when I have gone through the examination, make such remarks upon it, as may be most concise and pertinent to the present issue.

The following witnesses were then sworn and examined in their order.

Q. Do you know either of the prisoners at the bar?

A. I do.

Q. Which of them?

A. McCauley. I knew the man before, but did not know his name; I was afterwards told it was McCauley. On the evening of the 5th of March last, I heard the bells ring, and went into King-street.

Q. How many people do you imagine might be there when you got into King-street.

A. There might be twenty or thirty I believe. I saw the Sentry at the Custom House door swinging his gun and bayonet; there were a 103parcel of men and boys round him. I desired them to come away, and not molest the Sentry; Some of them came off and went to the middle of the street; I then left them and went up towards the Main-Guard. Immediately a party came down, I walked by the side of them till I came to the Sentry box at the Custom House. McCauley then got to the right of the Sentry-box; he was then loading his piece.

Q. How near was you to McCauley at that time?

A. I was about four feet off: McCauley said “Damn you, stand off,” and pushed his bayonet at me: I did so: Immediately I heard the report of a gun.

Q. How near did McCauley stand to the corner?

A. He came round the Sentry-box, and stood close to it on the right.

Q. When the party came down, were there many people there?

A. I cannot really say, I think about fifty or sixty.

Q. What did they say to the people as they came down?

A. I did not hear them say any thing.

Q. Did you hear any orders given?

A. I did not, either to load or fire.

Q. Did you hear the Sentry cry out for help to the Main-Guard?

A. No; I was not there half a minute.

Q. Whereabouts did you stand?

A. I stood inside the gutter, close by the box.

Q. Whereabouts did the Sentry box stand?

A. Three or four feet from the corner of the Custom-House.

Q. How many guns did you hear?

A. Five or six, I cannot swear to any particular number.

Q. Did you look round after you heard the guns fired?   A. Yes.

Q. Did you see McCauley then?   A. Yes.

Q. Was he loading again?

A. I think he was; it so lies in my mind; (I cannot absolutely swear it.)

Q. Do you know whether any soldiers stood on the right of McCauley?

A. I took so particular notice of McCauley, that I minded no other object.

Q. Do you know any of the prisoners at the bar?

A. I particularly saw that tall man, (pointing to Warren, one of the prisoners.) Next day after the firing in K. street, I saw more of them whom I cannot particularly swear to now.

Q. Did you see the soldiers before the justices on examination?

A. Yes.

Q. Did you then observe you had seen any of them the night before in King street?

A. I was well persuaded next day in my own mind, that I saw that tall one; but a few days after, I saw another man belonging to the same regiment, so very like him, that I doubt whither I am not mistaken with regard to him.

Q. Were there any other of the party you knew?   A. I am well satisfied I saw the Corporal 7 there.

Q. Did you see White there?   A. I do not remember.

Q. What was the situation of the Corporal?

A. He was the corner man at the left of the party.

Q. Did you see either of the persons, you think you know, discharge their guns?

A. Yes; the man I take to be the tall man, discharged his piece as it was upon a level.

Q. Did you see the Corporal discharge his gun?   A. I did not.

Q. Where did you stand?   A. I was behind them in the circle.

Q. What part of the circle did the tall man stand in?

A. He stood next but one to the Corporal. The tall man whoever he was, was the man I saw discharge his piece.

Q. Was any thing thrown at the soldiers?

A. Yes, there were many things thrown, what they were I cannot say.

Q. How did the Soldiers stand?

A. They stood with their pieces before them to defend themselves; and as soon as they had placed themselves, a party, about twelve in number, with sticks in their hands, who stood in the middle of the street, gave three cheers, and immediately surrounded the soldiers, and struck upon their guns with their sticks, and passed along the front of the soldiers, towards Royal-exchange-lane, striking the soldiers guns as they passed; numbers were continually coming down the street.

Q. Did you see any person take hold of any of the guns or bayonets of any of the party?   A. I do not remember I did.

Q. Did you hear any particular words from this party of twelve?

A. I heard no particular words, there was such a noise I could not distinguish any words.

Q. Did they load their guns before the people surrounded them, or after?   A. They were loading at the time.

Q. How near did they go to the soldiers?

A. Very near them, almost close to their guns.

Q. Were the people who struck the guns, there at the firing?

A. I cannot say whether they had gone away or not.

Q. Did you apprehend the soldiers in danger, from any thing you saw?   A. I did not, indeed.

Q. Where did you stand at the firing?

A. I kept my place. At the time of the firing of the first gun, I heard a clattering noise on the right like one gun striking against another, and immediately the first gun was fired from the right.

Q. At the time of firing that gun was any assault made on the person that fired?   A. I did not see the person that fired.

Q.. You said, you saw several blows struck upon the guns, I should like you would make it more plain.

A. I saw the people near me on the left, strike the soldiers guns, daring them to fire, and called them cowardly rascals, for bringing arms against naked men; bid them lay aside their guns, and they were their men.

Q. Did you see any person fall?   A. Yes, I saw Gray fall.

Q. Where was that?   A. He fell in the middle of the street.

Q. Was the place where he fell nearly opposite to the tall man you talk of?

A. No; the gun that killed him, must have been nearer to the center. When the soldiers on the left fired, there were fewer people in the street.

Q. Did you see a molatto among those persons who surrounded the soldiers?   A. I did not observe.

Q. Did they seem to be sailors or town's men?

A. They were dressed some of them in the habits of sailors.

Q. Did you hear any bell ring?   A. Yes.

Q. What bell?

A. I believe all the bells in town were ringing, I heard the Old South first.

Q. Did the clattering or blows on the guns to the right, immediately before the first gun went off, appear very violent?

A. Yes, very violent.

Q. Where was the second gun fired from?

A. I took it to be the person next to him who fired the first, or very near him.

Q. Betwixt the first and second gun, did you see any assault given to the soldiers?   A. No.

Q. When the firing came along to the left, were there many people in the street?   A. There were very few people then in the street.

Q. What place did those few stand in?   A. Right over the way.

Q. Was you looking at the person who fired the last gun?

A. Yes, I saw him aim at a lad that was running down the middle of the street, and kept the motion of his gun after him a considerable time, and then fired.

Q. Did the lad fall?

A. He did not, I kept my eye on him a considerable time.

Q. This soldier was towards the left you say, was he quite to the left?   A. Not quite, but towards it.

Q. Was the lad among the party that struck at the soldiers?

A. He was passing the street, I cannot say where he came from.

Q. After the firing of the first gun did the people disperse?

A. They drew away down Royal exchange-lane, but others were coming continually down the street; but when the first person was killed, they seemed all to draw off.

Q. Did the people that came down the street, endeavour to join the party that was striking the soldiers, or did they come because of the ringing of the bells?

A. I believe they came because the bells were ringing, for they came from all parts of the town, and did not appear to me to join in the assault.

Q. How many guns were fired?   A. I believe seven.

Q. How many soldiers were of the party?

A. I did not count them, but I believe twelve.

Q. Do you know either of the prisoners?

A. Yes, I know Warren, and saw him with the party in King-street on the evening of the 5th of March last.

Q. Do you know any of the rest?

A. I know them all by sight, but that is the only person I can swear to.

Q. The night of the firing, did you see the Corporal there?

A. Not so as to know him; but Warren I can swear to.

Q. Did you see him discharge his piece?

A. No; I went away when the first gun fired.

Q. Where did the person stand, who fired the first gun?

A. He stood towards the left of the party.

Q. Whereabout did you stand yourself?

A. Opposite the soldiers, by Mr. Warden's shop the barber.

Q. Did you see any body fall?

A. I saw none fall. I went off when the first gun was fired, and came back again and heard there were three men killed.

Q. Do you mean the first gun was fired from your left, or from the left of the party?

A. From the left of the party; there were two stood to the left of Warren.

Q. What appeared to be the conduct of the soldiers before the firing?

A. When I got there, they were swinging there guns backward and forward, and several among the people, said, fire, damn you fire; but I think it was Capt. Preston that gave the word to fire.

Q. How many people were there?

A. I took them to be about fifty.

Q. What had they in their hands?

A. They had nothing in their hands.

Q. Did you see any ice or snow-balls thrown at the soldiers?

A. I saw several snow balls and pieces of ice thrown, and heard a rattling against the barrels of their guns, whether it was sticks, or what, I do not know.

Q. Where did the snow-balls seem to come from?

A. From the people right before the party.

Q. Did the snow balls seem to be thrown in anger?

A. I do not know; I saw the soldiers pushing at the people before any snow balls were thrown.

Q. Were the people pressing on?

A. They were very near, within reach of their bayonets.

Q. Did you see any oyster-shells thrown?   A. No.

Q. Was the snow trodden down, or melted away by the Custom-House?   A. No, the street was all covered like a cake.

James Dodge . . .seemed to come from close before them, i.e. I took it, the snow was flung on Purpose. I took it, the? soldiers 108pushed, to keep the Inhabitants off. Saw no Oyster Shells thrown, and believe there were none. A Cake of Ice covered the Pavement there, and covered up all the shells.

Samuel Clark. Saw White, before the Affray. He stood Sentry. He spoke to me, and asked me how we all did? I said pretty well. No body at all with the sentinel then.2

Edward Gambett Langford. Met 20 or 25 Boys and young Men, by the Centry Box. They said the sentry had knocked a Boy down. White is the Centry. I spoke to him, and bid him not be afraid. Saw Kilroy there that night. The Boys were swearing and cursing at him, but I saw no thing thrown. Centry got up to the Door and tryed to open it, but could not and then, he call'd out, what he Said I dont know. He levelld his Piece, but I told him not to be afraid. Then he took his Gun down. The young Shavers there said he had knocked a Boy down. At the Party, S. Gray came to me, took me by the shoulder and said what is here to pay? I said I dont know but I believe Something or other would come of it, by and by. S. Gray was just by me, when the 1st Gun went off. I stood so near that they might have reached me, and they did. A Bayonet went thro my Cloaths. I heard the Word Fire, twice, once G–d d—n you fire. About 40 or 50 People in the Streets, but others coming from Quaker Lane and Royal Exchange Lane. I had a Stick. I tho't 7 or 8 Soldiers. Dont know who fired the 1st Gun. I stood about ½ Way between the Centry Box and Royal Exchange Lane. I saw Kilroy fire, and Saml. Gray fell and struck my left foot. I knew him before, very well, and know it was he. there was 2 or 3 at Kilroys right. With red coats, but cant say whether armed or not. I said God d—n you, dont fire, or damn you dont, and he fired at once. Gray stood still by me. Kilroys Gun went off and S. Gray fell, and I heard no Gun by his at that time. Gray spoke to nobody but me, that I heard. He had no Weapen, was naked. Threw no snow Ball, or any Thing. Grays Hands were in his Bosom. I was looking Kilroy right in the Face. I heard the Ratling of Guns, but saw nothing flung. I took it Kilroys 109Gun kill'd Gray. Did not see that Kilroy aimed at Gray any more than me. He designed to kill both of us I suppose.3

Francis Archibald Jnr. I Saw Kilroy, that Night, go from the main 111Guard to the Centry. I took it there were 6 besides the Corporal, in the Party. Dont recollect any other. Wa4

N.B. The Court being unable to go through this trial in one day, the King's Attorney and the prisoners consented to the Court's adjourning over night during the Trial, the Jury being kept together in the mean time, by proper officers, appointed and sworn by the Court for that purpose.

FIVE o'clock p.m. the Court adjourned to next morning, Wednesday  28 November. NINE o'clock.

Wednesday, NINE o'clock, the Court met according to adjournment, and proceeded.

James Brewer. To the best of my Remembrance I saw Kilroy. I came up royal exchange Lane, and saw the Sentry with his Bayonett breast high, and a Number of Boys 20 or more round him. He was on the steps of the Custom House. I spoke to the Sentry, and said to him, no Body would hurt him. The Boys were talking together, but doing nothing. I saw the Party come down. I spoke to Captain Preston and said to him every Body was about dispersing. He said He hoped they were, and presently left me, and went in among them. Kit. Monk was there. I turnd round to speak to Kit Monk, and they fired and K. faltered. Kilroy struck me upon the Arm with his Bayonet as they came round before they were formed. The Firing began upon the Right, I thought it the Man quite upon the right. Kilroy struck at me. Saw no Blows, nothing thrown. Monk had a Catstick 2  in his Hand. Heard no Names called, no Threats, no shouts, no Cheers, till the firing. Saw the Molatto Man, but did not see him strike. Saw Dr. Young 3 at the Bottom of royal Exchange Lane with a sword in his Hand. He said the Soldiers had been making a Rumpus, but were gone to their Barracks. I said it was best for Us to go home and Dr. Young said so too.4

Saml. Emmons. I dont know any of the Prisoners. Nor anything.5

James Bailey. Saw Carrol and Montgomery, and White there the sentry. I was standing with the sentry upon the Custom House Steps, when the Party came down. I saw 20 or 30 Boys, Lads about 14 or 15 years of Age, about him. I asked the sentry what was the Matter? The Boys were heaving Pieces of Ice at him large and hard enough to hurt a Man, as big as your fist. He said he did not know what was the Matter but he was afraid, if the Boys did not disperse, there would be some- 115 thing by and by. I dont know whether any Ice hit him. Did not hear him knock at the door or call for assistance. When the Party came down, Carrol came and put his Bayonet up to my Breast, and the sentry told him not to hurt me. I went and stood leaning over the Post, between the Corner and the Post. Montgomery fired the first Gun. He was the next Man to me close to me, at the right. Cant Say whether the 1st. Gun killed or hurt any one. I Stoopd down to look under the Smoke and the others went off. ½ a Minute between 1st. and 2d. Gun. Montgomery was knockd down and his Musquet fell out of his Hand by a Clubb or stick of Wood by one of the Inhabitants and as soon as he got up he fired his Gun, I think Carrol fired next. The Clubb was not thrown but I saw him struck with it. He fell down himself and the Gun fell out of his Hand. The Person that struck was a tall, stout man. There was 50 or 60 People near. Montgomery fired, about where the Molatto fell. It was pointing towards the Place where we saw Attucks lie. It was not the Mollato that struck Montgomery. But the Blow was very violent. I heard 3 Cheers given two Minutes before the Firing. Carrol stood the 3 d. from the right. The People were shouting. Saw the Mollatto at the Head of 25 or 30 sailors with Clubbs some of em. Molatto had a large Cord wood stick. It was 7 or 8 Minutes before the firing that I saw them in Cornhill. They held their Sticks up huzzaing and whistling. I Saw a Number of Soldiers at Murrays Barracks and officers driving of em in. The Man that struck Montgomery down stood at the right of the right Hand Grenadier. The Blow was before the firing. Was at the Rope walks fryday or Saturday before. The soldiers had large Clubbs. Carroll was there.6

Richard Palmes. I know Montgomery, and saw him there. Heard Bells ring, after 9. In Kings Street saw the sentry, at the Custom House. Went to Murrays Barracks, and saw 7 or 8 soldiers with their Guns &c. 117Spoke to the officers &c. Saw Hickling, and Spear. I said I'd go and try to make Peace. Found Captain Preston and 7 or 8 Soldiers. Went up to C. P. and saw Bliss, who said why dont you fire God d—n you fire. I askd him &c.

I saw a Piece of Ice or Snow strike Montgomerys Gun. It struck the Grenadier, and made a Noise. He fell back whether he stepped back or sallied back I cant tell, and fired his Gun. Then I heard the Word fire. In 6 or 8 seconds, the soldier next to Captn. Prestin, fired. 7 or 8 Guns I believe were fired in the whole. Montgomery pushed at me. I struck, &c. Another was coming at me with his Bayonett and I ran.

I am sure Montgomery was not knocked down before he fired. He did not fall. Did not see any Blow given or any Thing sent but the Blow I gave myself and the Piece of Ice which hit Montgomery. Montgomery could not have been knockd down and I not have seen it before the firing, for he stood close to Captn. Preston. I struck Montgomery and knockd him down just as the last Gun was fired.7

John Danbrook. Knows the 2 farthest Men, Hartigan and Carrol. Saw em there. I saw Montgomery there and saw him fire. Saw no Blow given or stick or any thing thrown at him. Montgomery stood at the 120right of C.P. I saw a little stick fly over their Heads, but did not perceive that it hit. A Piece of a rattan or some such thing. I saw two fall as he fired, before I heard any other Gun. One fell just vs. my left Elbow, and the other about 3 foot from me about 10 or 15 foot from the Soldier. In a range with me, one was the Molatto. I believe it was with the first Gun that they were. They were 5 foot a sunder. It was not a Minute, after the Molatto fell that the other Man fell. I cant say, I heard another Gun, before I Saw the 2d Man down. I did not hear Attucks say any Thing. He stood leaning over a long Stick he had. I came through Dock Square. About 20 or 30 Persons, dressd in Sailers Cloaths. They cryd We'l go up this Way by the Town House. The Bells rung at this Time. Most of em had Clubbs. I did not see them in K's Street that I know of. I heard no Noise, no hazzaing, and Saw nothing thrown. I Saw the 20 or 30 first by the dock Square Pump. 121 The Clubbs were Cordwood sticks broke up as thick as one's Wrist.8

Jed. Bass. I came up royal Exchange Lane, and saw Montgomery. Saw him push his Bayonet at a Man, I drew back about 5 foot and saw his Gun go off. He was the right Hand Man. Saw a stick knocked? to knock up his Gun, by whom I cant say. It knocked the Gun up 5 or 6 Inches. I think I saw him fall down after he fired, but am sure he did not before. I was placed so that I must have seen it. His Gun fell out of his Hand. What occasiond it dont know. The People were round him 7 or 8 foot off. I was 5 or 6 foot within the Lane. 6 Guns fired I think. I could not see all the Soldiers where I stood. I could see but 2 soldiers. I came thro royal exchange Lane. Saw a Number there. They were talking there of going Home. I heard 2 Cheers before the firing. The People in Dock Square were dressed some in Sailors Habits, some in Surtouts &c. Some had sticks. They said there was no fire, but that the soldiers had been out.9

Thos, Wilkinson. Knew Montgomery. He lived close by me. No other. ¼ after 9 heard Dr. Coopers Bell ring. Saw the Engine. Ran to Mr. Bagnalls. Many People coming, with Baggs and Bucketts. I saw a Number of soldiers 10 or 12 by Boylstones alley, with swords and Bayonetts, pressing up towards the People. I went back and stopped at the Main guard. The soldiers appeard to me to be challenging the People, but I did not Stop one Minute to see any Stroke. The People at the Chamber Windows cryd for G—d Sake dont go there, if you love 124your Life. When I went to the head of the main Guard, you could not see Man nor Boy nor Child in Kings Street. Dr. Chanceys Bell began to ring. I was not low enough down to see the sentry at the Custom House. In a very short Time I saw 40 or 50 People in Kings street. C. P. came down, to the Guard, and cryd d—n you turn out. They did. He went down with them at their right, 8 of them, I think, 2 files. I went with them as far as Mr. Waldoe's shop. I thought they were going to relieve Guard. C. P. stood at the right of em. In 4 minutes I heard the Word given fire, d—n your Bloods fire. They fired, regularly one after the other, like the Clock striking. I saw the flash of every Gun seperately. Firing began at the right, but dont remember seeing Montgomery after I got down there. The Circle coverd ½ royal exchange Lane. 7 Guns fired. One flashed. I was 2 yards from 'em. I stood there all the Time they were there, saw no Ice nor Snow Balls thrown. The People did not press on. I would have departed if I had seen any Pressing, or snow Balls or Blows. 2 or 3 Huzzas, before the Party marched down but none after. Not 12 minutes from the Parties going down, firing, and all.10

Josiah Simpson. Curious.11 Knows Warren, and Hartigan and White and Wemms and saw 'em there. At Faneuil Hall, I Saw a Number of Gentlemen. Asked what was the matter. They answerd me that 2 young Men had been abused by the Soldiers, and that the Soldiers were returned to the Barracks. The Bells ringing I ran up royal exchange Lane. At the Head of the Lane, no Person there but a Soldier, the sentry. The People coming up cryd heres a the soldier and huzza'd. The soldier at those Words immediately repaired from the W. Corner of C. H. to the Door. Gave 3 loud and remarkable Strokes with the brass Knocker. 4 or 5. or 6 People or such a matter as that. Somebody came to the door and spoke to him. He turnd and loaded his Gun, and knockd it loud on the Stone Steps. I Saw the Soldiers with an officer coming. They Said nothing to the Sentry. Nor threw any Thing. The officer cryed Shoulder. 7 Soldiers. I take it. He C. P. orderd em to handle Arms, Ease Arms, Support Arms, and prime and load, and I am as certain of it, as I am of my own Existence. He stood behind the soldiers within the Circle next the C. H. C. P. behind em when they came down. The Soldiers on a run. I went up to the officer and said for G. Sake dont fire on these People. He was behind the soldiers then. I was before em at the Edge of the Gutter. I went then to the People and said for G–d Sake Gentlemen dont trouble these Men they are on duty. They said they would not, nor would be drove off by them. I then withdrew to the other Side of the Way and saw a Man a going to throw a Clubb. I begd him not to and he did not. I was then just by Wardells Warden's shop. I saw then one Clubb thrown in to the soldiers, I heard the Word present, I stoopd down and a little Time ensued, and then I heard d—n you fire. I believe the 127 Clubb hit one of the Soldiers Guns. I heard it strike. The Person that threw it stood about 10 foot from me, 10 Yards from the Soldiers. 2 Guns first. 3 Guns more were discharged, which killed Attucks and Gray, then 2 more which killed Caldwell who stood near me. The other Gun struck about 5 Inches over my back. I saw Attucks and Gray fall and heard them too. 3 or 4 seconds between the 2 and the 3 Guns. The last Gun wounded Patterson in the Arm, his Blood Sprinkled on my Waiscoat. 8 Guns I judged. The Stick was thrown 1 or 2 seconds before the 1st Gun. The Stick was a Cordwood Stick, a White birch. An inch thick. I heard Murder cryd between the 2 and the 3 Guns. By the Voice, I thought it was Maverick. The People made considerable Noise but no huzzaing, no bloody back.12

Nathl. Fosdick. Did not know any of em that night. I was pushed behind by a Bayonet. They d—d my Blood and bid me stand out of the Way. I said I would not. They parted 3 went of one side of me and 6 of the other. I heard the Word fire, and the right Hand Man fired. 129 I then run in towards them and they pushed me with their Bayonetts and wounded me in the Breast shewing the scar. 13 I had a Small Stick in my hand as big as my finger. Two different Bayonetts run into my Arm, I can shew the scar now. The Bayonet that struck me in the Breast, I put it aside, and the Gun went under my Arm, I never Struck, only as I put away the Gun. There had been no Blows struck that I saw and I could see the most of the soldiers. I knew nothing of the Cause of their firing. I Saw the Grenadier fall after he had fired.14

Saml. Hemmenway. Sheriffs Coachman. Knows Kilroy. About a Week or fortnight before, I heard Kilroy Say at Mr. Apthorps that he never would miss an opportunity of firing upon the Inhabitants. He had wanted Such an Opportunity ever since he had been in the Country. He repeated the Words several Times. Mrs. Buker Mr. Apthorps House keeper was there and nobody else but the Negro Boy. I told him, he was a very great fool for saying so. He said he never would miss an opportunity.15

Joseph Hilyer. Knows none. At the North End heard the Bells at the Mill bridge,16 heard it was a Rumpus between the Soldiers and Inhabitants. At the Conduit, Saw People who said I could not go up Cornhill, without Danger of Life, and they seemed to me to be there from fear to go not from a Design to do Mischief. I went up Kings Street. Saw the sentry and 20 or 30 People. Boys at Diversion, not so many as often seen there. He levell'd his Gun and waved it, in a Way that had a Tendency to exasperate a People. The People after the Party passed thro them came out to the Middle of the Street.

The People collected at the Head of royal exchange Lane. The soldiers with charged Bayonets at their Hips, as I passed the last Man upon the left, the Gun was fired on the right. The last Man upon the left but one, fired the last Gun at a Boy that ran down the middle of the street, but did not hit the Boy. I saw no Molestation, nothing that could produce any firing, and could not believe they had shot any Body. A little Boy, at Mr. Hicklings told me People were kill'd. I went 132up to see, and I heard a Cocking of one Gun, and it ran thro the whole. An officer stepped forward and said dont fire upon the Inhabitants. They cocked without any orders. The soldier at the left did fire. Moon and snow made it light as day. The Head of the Lane was stopped up, by People.17

Nick. Ferriter. I have seen Killroy and Warren at the Ropewalks in the Affray, the Fryday before. Never heard them threaten. They had Clubbs and Cutlaces.

Fryday 2 March Mr. John Gray askd me to go to his Walk to make some Ropes. A soldier came down cursing and damning and Swearing, he would have satisfaction. By God he would have Satisfaction of me. He struck me. I tript knockd up his Heels and his Cloaths opend and discoverd a naked Cutlass under his Coat. He went away and brought about a Dozen more, Warren with them and another. We went up with Clubbs and they made Blows at our People and we at them and drove them away, and after that the whole Barracks came and Kilroy and Warren was with them and we had a Battle with them, and drove 'em off.

That night, 5 March, I heard the Bells ring, and in Quaker Lane I met Saml. Gray, and S. Gray said he would go home if there was no fire. He had no stick and was as calm as a Clock. 18

Benja. Burdick. I went up to one that I take to be the bald man but cant swear to any. I askd him if he intended to fire. Yes by the eternal God. I had a Cutlass or high Land broad sword in my Hand. Soldiers after the affray of the Ropewalks, came about my House, and I beat one of em off. They dogged a young Man that lived with me, and had been active in the Ropewalks. At first I had a Stick, and my Wife, told me to take this the Broadsword. I struck at the soldier 19 who pushed at me, and had I struck 2 or 3 Inches further, I should have 135 left a March that I could have sworn to. This was before the firing. I struck the Cock of the Gun. The Man I struck was the 4th. Man from the Corner, about the Middle. I saw but one Thing thrown that was a short stick, about 2 or 3 foot long. I heard a rattling. I took it they knocked their Guns together. They were continually pushing at People, and it was pretty slippery. I went afterwards to take up the dead, and they began to present and cock their Guns. The officer came before and knocked up the Guns, and said dont fire any more. Cant ascertain the Number of Guns, believe 5 or 6. I saw no Blows struck by others, for I had not time, to see before I drew my own sword.20

Robert Williams. In Dock Square, it was said there had been an affray. Some went to the north, some one Way, some another. I went to King Street. People there. Some huzzaing, whistling, some leaning over their sticks. Somebody said dont press upon the Guard. I repeated the Words. The People seemed to be pressing as I was to get among the thickest of them. I heard a flash of a Gun. It made a Noise like a Pistal, a small Report. Another Gun went off, at the right a Man fell. The 3d Gun was fired. I saw the flash and heard the Report on my Knees. The People were running away, and the Guns seemed to move after the People. I saw People jumping upon the Backs of others trying to get in as I had been. Saw no some snow Balls, no sticks. I cautiond them not to press, upon the Soldiers least they should press the People upon the Points of the Bayonetts. They were within two foot. I was not there above a Minute. Saw no Blows.21

Bartholomew Kneeland. I lived at Mrs. Toreys by the Town Pump. About a ¼ after 9 the Bells ringing, I went to the Door and saw a Number of soldiers. One came up to me, d—n you what do you do there. He put his Bayonet at my Breast and put it there sometime.22

Mr. Thayer. A terrible swearing. Cutlaces and Clubbs were going. 7 soldiers came from the Town House without any Coats. Like wild Creatures. Damn them where are they cutt them to Pieces, a little after 9. I cant say who they were. The People below cryed fire. Soon before. I took it for a signal for the soldiers to come to help the others. The Cry of fire was by Justice Quincys.23

Mr. Nathl. Appleton. A little after 9. It was said at my Door the soldiers and Inhabitants were fighting. A Party of Soldiers came down from the Southward, 10 or 12, short Cloths on-white arms. I stood. I saw the Course of the Soldiers began to bend towards Us, and when they got about half a rod off they lifted up their Weapons. I retreated. They rushed on with uplifted Weapons and I thought myself in danger, if I did not retreat.24

John Appleton.25 About 9 o clock, I was sent of an Errand, in King street, I was going home. At Jenkins ally about 20 soldiers. One came to me with his Cutlass. I cryd soldier Spare my Life. No damn you. We'l kill you all, and struck me upon the shoulder. I dodged or he would have Struck me on the Head.26

Coll. Thos. Marshall. No Body at Dock Square, no Body in Kings street at 9. K. Street never clearer. I some time after heard a distant Cry of Murder. A Party from the Main Guard came out, and damn em where are they? By Jesus let em come. I went in and came out again, and another Party came out of Quaker Lane. I saw their Arms glitter, and heard much such Expressions as before.27

Bailey's testimony is exactly as set out in the Wemms Trial except that Palmes or the Gazette printers omitted the final question and answer. Palmes added this comment: “I imagine this evidence was bro't to invalidate my declaration in court; but I assure the world upon the oath I then took, that Montgomery did not fall until he attempted to run his bayonet thro' my body; which was about the time the last gun went off.”

SIX o'clock, p.m. the Court adjourned to Thursday morning  29 November  Nine o'clock.

Thursday NINE o'clock the Court met according to adjournment, and proceeded.

Jos. Crosbey.2 Kilroys Bayonett appeared to be covered with Blood 5 or 6 Inches, next day.3

James Carter. The next Morning I observed Kilroys Bayonett to be bloody. I am Satisfyed it was blood. I was near to it, as to Mr. Paine.4

Jona. Cary. 4 of my Sons, Maverick and another Lad were at supper in my Kitchen, when the Bells rang and I told em there was fire. They said theyd eat a few mouth fulls more and go.5

Jno. Hill Esqr. Was struck at at the Ropewalks.6

Mrs. Gardiner 7

Mr. S. Quincy. 8 It is my Province to apply the Evidence. It is complex and in some Places perhaps difficult.

2 Things I must prove, the Identity, and the Fact. Goes over all the Names and mentions the Witnesses who swore to each of them. Could wish that the fatigues of yesterdy and the Circumstances of my family would have allowd me to have arranged the Evidence more particular, to have extracted the most material Parts of it.

Considers J. W. Austins Testimony. Then Eb. Bridgham's.

The last Man aim'd at a running Lad. Did not apprehend any Danger.

Dodge. Clark. Langford. As particular as any Witness on the Part of the Crown. Boys were damning the sentry, told him the Boys would not hurt him. Gray came up. What's here? I dont know, but Something will come of it, by and by. Gray with his Hands folded. He leaning on his Stick. He Spoke to Kilroy. D—n you you ant a going to fire. Kilroy presents at Gray, and shoots him dead upon the Spot, and then pushes at Langford with his Bayonet. Here is Evidence of an Heart desperate, wicked, bent deliberately bent upon Mischief. Compared with the Testimony of Hemenway. This is Malice. A Distinction between Malice and Hatred. Keyling 126.9 2 Inst. 6210 Mawgridges Case. Envy, Hatred and Malice. He that doth a cruel Act voluntarily doth it of Malice prepensed, tho upon a sudden Occasion.

Ferriter testifies that Kilroy was at the Ropewalks, and that Gray was there too, and both active in the Affray there. These Circumstances must remove all doubt of the fact and of the Species of Crime.

Archibald, J. Brewer. Saw no Abuse, more than was common. Met Dr. Young with a sword. Dr. said every Man to his own House. Perhaps some use may be made of this Circumstance. There was a general Alarm. Every Body had a Right, and it was very prudent, to arm themselves for their defence.

Bailey. Thinks Montgomery kill'd Attucks. That Montgomery fired is clear from this Witness.

Mr. Palmes. Saw Montgomery. Stepd back, did not fall. Montgomery slippd in pushing 3d time at him and fell. In probability he kill'd Attucks, and continued the same mischivous Spirit in pushing.

Danbrook. Saw a Piece of Rattan. Saw M. fire. Two Persons fell. 143 Attucks at the left Hand of this Witness and leaning on his Stick.

J. Bass. Thos. Wilkinson. The People in the Window cautioning those In the Street, not to go there. Soldiers challenging the People. Not apprehensive of danger. Well placed to observe. They must be believed if any Witnesses. Striking of the Clock. 7 went off, one flashed. Saw no pressing, nothing thrown. 2 or 3 cheers, before, none after the Party came down.

J. Simpson. Curious. Handle, Ease, support, &c. Arms. There is something like these in the Words of Command. Captain Preston behind the Soldiers. 8 Guns.

N. Fosdick. Pressing behind him with Bayonetts, in his back. Thrusts, and pushes in the Breast and Arm.

S. Hemenway. Kilroy not in Anger nor in Liquor.

Helyer. People in Dock Square afraid to go up. 20 seconds between 1 and 2d Gun. A little Boy, running and crying fire, the last Gun was pointed at him and fired.

Ferriter. 3 Attacks at the Ropewalks. Kilroy and Warren in the last Battle at the Ropewalks.

Burdick. Spoke to the bald Man, he thinks. Yes by the eternal God. Intention to fire. Mem. vid. Test.11

Williams. The Guns followed the People as they ran.

Quincy.12 No doubt with me, that Kilroy did it sedato Animo. The Person he killed was in Peace. No Insult offerd to K.

Marshall. The Street entirely Still. Fewer People there than usual. He had been warned not to go out that Evening. Moon, to the North. Saw a Party come out of the main Guard door. D—n em where are they? By Jesus let em come. Boisterous Language. The Party came from Quaker Lane, and cryd fire. Very probable the Word fire was a Watch Word. Any one next the Meeting House, steps in, at a Cry of fire, and sets the Bell a ringing.

Mr. Thayer. Heard a Cry of Fire, and supposed it a Watch Word.

Bart. Kneeland. One pointed his Bayonet at his Breast.

Mr. Appleton, and little Master John Appleton. His Story and the Manner of his telling of it, must have struck deep into your Mind. Struck by a Soldier, tenderly askd him Soldier, Spare my Life. No damn you we'l kill you all. Brother Adams's Social Creature.13 Here is food enough for the social Appetite.

Immaterial who gives the mortal Blow, where there are a Number of Persons together. All present, aiding, abetting, are guilty. No Man shall be an Avenger of his own Cause unless from absolute Necessity.

J. Trowbridge. You ought to produce all your Evidence now.

May it please your Honours, and you Gentlemen of the Jury.

Having gone through the evidence on the part of the crown, it is my province to support the charge against the prisoners. The examination hath been lengthy, and from the nature of the transaction complex, and in some part difficult; I shall apply it as distinctly as I am able, without endeavouring to misrepresent or aggravate any thing to the prejudice of the prisoners on the one hand, or on the other to neglect any thing that justice to the deceased sufferers, the laws of my country, or the preservation of the peace of society demand.

There are two things necessary to prove which I mentioned in the first opening of this cause, namely, the identity of the prisoners, that is, that they were that party of men who on the 5th of March last were in King street, and that they committed the facts mentioned in the indictments, and farther gentlemen, the circumstances attending and aggravating the commission of those facts.

As to the first point, to prove the identity of the prisoners, all of them have been sworn to, and most of them by more than one witness.

To KILLROY gentlemen, you have Langford, Archibald and Brewer, who swear positively; and farther you have the evidence of Ferriter and Hemmingway. The one, of Killroy's being in the affray at the rope-walks, and the other to his uttering a number of malicious and threatning expressions in regard to the inhabitants of the town of Boston.

To WHITE gentlemen, you have four more, Simpson, Langford, Bailey and Clark.

To MONTGOMERY, you have Bailey, Palmes, Bass, Danbrook and Wilkinson.

To HARTEGAN, you have Danbrook and Simpson.

To WEMMS, you have Simpson and Bridgham.

To CARROL, Bailey and Danbrook.

To WARREN, Bridgham, Dodge and Simpson. Bridgham indeed expressed some doubt, and gave his reasons for it, which may be worthy notice hereafter.

To MC CAULEY, you have Mr. Austin.

And that Warren was at the Rope-walks, you have also the testimony of Mr. Ferriter.

All these witnesses as I have mentioned them to you, have testified on oath to the several prisoners, that they were that evening in King street, and of the party; the next thing to be enquired into gentlemen is as to the facts. In order to ascertain these it will be necessary to have recourse to the testimony of the witnesses. I could have wished I had been able, after the fatigue of yesterday, to have ranged the evidence in the order of time as the facts took place; but not being able to do this, I must take them up as the witnesses were examined. I will however endeavour to state the facts in the best arrangement I can.

The first witness Mr. Austin, says, that he was in King-street that evening, near the Sentry-box which was placed at the Custom-house; that about a quarter after nine he saw the party coming from the Main guard; when they got down to the Sentry Box, they wheeled to the left and formed themselves round it; and in coming round McCauley pushed at him with his bayonet, damned him, and bid him to stand off, this was the first instance of their conduct. Mr. Austin was not particular who fired, his back being towards the soldiers when that happened. He says there were five or six guns fired; and he saw McCauley after the firing. These are the most material circumstances of his testimony.

The next witness is Bridgham, who says he was in King-street also; and the next morning when he went to the goal to view the prisoners, he apprehended he had seen Warren in King street the evening before, but afterwards he saw a person that looked very like him belonging to the same regiment, which occasioned him to doubt whether he was the man or not; my remark upon this, is, it was probable that the first impressions made on his mind were the strongest, and therefore you cannot well doubt he was right in judging that Warren was in fact the person he saw the evening before; he saw also Wemms the corporal stationed on the left of the party betwixt him and the tall man; the Corporal was on the left entire, if so gentlemen, Warren must have been the third man from the left in that situation; there were a number of people he says round the party huzzaing, some having sticks; his face was the other way when the first gun went off, he heard a noise like the clashing of guns, he saw Gray fall, and says the person that killed 146him, must have been near the center of the party; when the left man fired there were but few in the street, they divided and were passing off; the last man that fired, he says leveled his piece, following a lad that was running down the street before he fired; he also mentions a number of people coming down from the north side of the Town-house, collected as he supposed by the bells, and not disposed to commit any injury whatsoever; he did not apprehend himself, or the soldiers in any danger from any thing he observed; he says about seven guns were fired, and there were about twelve people at that time before the party. These are the most material circumstances in his evidence.

Dodge says, he saw Warren, but cannot swear to any of the rest, the man who fired first he thinks stood towards the left, about two from the corner, however he was over at Vernon's shop across the street, and perhaps not able to make so good observations as some others; he saw about fifty people in the street, but he saw nothing in their hands; he saw a number of snow balls thrown, but none as he observed with violence or in anger; he saw the people near the party of soldiers, and they pushing at them with their bayonets; he does not imagine there was any thing besides snow balls thrown.

Clark the next witness saw White the Sentinel at his station just before nine o'clock, that he spoke to him, but saw no one at that time near or molesting him.

Mr. Langford comes next, and this witness is perhaps as particular as any one witness on the part of the Crown; it appears by the relation of his evidence that he came down about nine o'clock as a watchman, in order to go to the Watch-house next adjoining the Town-house; when he came down, he was told the people and soldiers were fighting at Murray's Barracks; upon this, he took his course that way, but the matter being over by the time he got there, he returned to King-street: there were a number of boys round the Sentinel, to whom he spoke and told him he need not fear, the boys would not hurt him; soon after this the Sentinel without saying any thing to the people went up the Custom-house steps and knocked at the door; a person within opened it and said something, but what, the witness did not hear; upon that the Sentinel turned round, and pointed his piece at the people opposite to him. Langford spoke again, and told him there was no danger, the boys would not hurt him, and he shouldered. The witness continued talking with the Sentry till the party came down, and then he went into the street. About this time Gray, one of the unhappy sufferers, came and clapped Langford on the shoulder, say-147ing what's here to pay? Langford replies, I do not know, but something I believe will come of it by and by; his stand was half way as he said betwixt the Sentry-box and Royal-exchange-lane; the box being on the right corner of the lane, and he opposite the center of the lane; the witness and Gray were standing together talking familiarly, Langford leaning on his stick, and Gray standing with his hands folded in his bosom, without a stick in his hand, neither saying or doing anything to the soldiers. You cannot but recollect Gentlemen, that this witness was expressly and repeatedly asked, if Gray had a stick or said any thing to the soldiers? he as often answered no. Langford spoke to Killroy, and after two guns were discharged, seeing him present his piece, said to him, damn you are you going to fire? Presently upon this Killroy levelled his piece, and firing directly at Gray, killed him dead on the spot! The ball passed through his head, and he fell on Langford's left foot; upon which, not satisfied with having murdered one of his fellow creatures in that cruel and inhuman manner, he pushed with his bayonet, and pierced Langford through his great coat and jacket; here Gentlemen, if any there can be, is evidence, and I think compleat evidence of a heart desperately wicked, and bent upon mischief, the true characteristic of a wilful malicious murderer.

It could not be thought, at the distance the witness and Gray were standing from him, without offering any violence, but Killroy the prisoner saw them distinctly, and aimed to destroy them; if you compare this testimony with Mr. Hemmingway's, who swears to Killroy's uttering expressions importing, that he would miss no opportunity of firing on the inhabitants, he had wished for it ever since he landed, you certainly Gentlemen can have no doubt in your minds but that he had that intention at heart, and took this opportunity to execute it.

The crime of murder, Gentlemen, it will be agreed by all, necessarily involves in it the malice of the heart, and that malice is to be collected from the circumstances attending the action; but it is not necessary to constitute malice, that it should be harboured long in the breast; a distinction is made in the books betwixt malice and hatred, and a good distinction it is; I have it in my hand and will read it;

Kelynge 126, and 127. Mawgridge's Case. “Some have been led into mistake by not well considering what the passion of malice is; they have construed it to be a rancour of mind lodged in the person killing, for some considerable time before the commission of the fact, which is a mistake arising from their not well distinguishing between hatred and malice,” And a little after, “Malice is a design formed of 148 doing mischief to another; cum quis data opera male agit, he that designs and useth the means to do ill is malicious. 2 Coke Inst. 42. He that doth a cruel act voluntarily, doth it of malice propensed. 3 Coke Inst. 62.”

Though Gentlemen, it happens on a sudden occasion as this was, if the act is in it's nature wanton and cruel, the law will presume it to be malicious, unless that presumption is taken off by contrary evidence.

Ferriter, who testified to the same person, tells you, he was remarkably active at the Rope walks amongst the rest of the soldiers; taking therefore all the circumstances of this testimony together, it must remove every sort of difficulty in your minds as to the purpose Killroy had at that time; it seems apparent that there were strong marks of malice in his heart; the person you can have no doubt of, the fact you can have no doubt of, nor can you I think doubt of the species of crime.

The next witness, who also testifies to Killroy's going down, and being of the party, swears that he was about twenty feet from the party when the first gun was fired; that he also had been, previous to this, at Murray's barracks, when the affray happened there, and tells you the behaviour of the soldiers in that scene.

Brewer, another witness also swears to Killroy. He saw the Sentinel on the Custom-house steps; at that time there were about twenty people, boys chiefly about fourteen, and some younger, round about him, but they made no great show; he saw the Captain come down with the party, the Sentinel at this time had his gun breast high; that while the witness was speaking to Monk, (a young lad who was wounded) he lost sight of Preston and the guns went off: Monk complained of being shot, but Brewer apprehended it was nothing but powder, and that he was more frightened than hurt; the firing began at the right and extended to the corner man on the left. Killroy attacked this witness in the same manner McCauley did Austin, by pushing at him with his bayonet; a number were collected by the ringing of the bells, but he heard nothing particular in regard to abusive language; he saw no snow balls thrown, and when the soldiers came down, he heard some of the people crying fire, and that was the general cry; some crying fire because the bells rung, some, no doubt fire, to the soldiers, daring them to it; but of this no great word omitted can be made in the present case. There were seven guns he says fired, he was certain as to the number, having counted them himself. He says further, he met Dr. Young in Dock- 149 square and that he had a sword; the witness said, let every man go to his own home, and the Doctor replied, that is the best way, the soldiers are gone to their barracks: perhaps something will be attempted to be made of this circumstance, and therefore I shall make an observation upon it. If you attend to the testimony of several of the witnesses, there were that evening in the streets at all parts of the town, a number of soldiers; they sallied out from Murray's barracks and everywhere with clubs, cutlasses, and other weapons of death; this occasioned a general alarm; every man therefore had a right, and very prudent it was to endeavour to defend himself if attacked; this accounts for the reason of Dr. Young or any one inhabitant of the town having a sword that evening; the Doctor surely could not be supposed to have any intention of mischief, because the same witness tells you his cry was, the soldiers were gone to their barracks, and go every man to his own home.

Mr. Bailey the next witness, testifies as to the identity of some of the party, that there were Montgomery, Carrol and White there; that he placed himself at the post by the Custom-House, and stood there all the time; that there were about twenty boys, some fourteen years old, and some under that; he was near the Sentinel when the party came down; Carrol pointed at his breast with his bayonet, and White said do not hurt him; that Montgomery discharged his piece first; he thinks it was about half a minute before the second gun went off; the grenadier's gun he says was struck out of his hand by some person near him, and that he recovered it, and then fired; that Carrol was the next but one to him: he imagines Gentlemen, that Montgomery killed Attucks; Attucks was about fifteen feet from him over the gutter: He continued in his station at the corner from the time of the party's coming down till all was over; he did not apprehend himself or the soldiers in danger, from clubs, sticks, snow balls, or any thing else; he saw the person that struck Montgomery as he supposed, at the corner of Royal exchange-lane; he was asked if Attucks was the person, he answered no. From this witness you ascertain, Gentlemen, that Montgomery fired first, and that he was on the right wing of the party.

The next witness is Mr. Palmes, he saw the Sentry, and nobody near him: He had come from Murray's barracks, and hearing a disturbance in King-street, he was told he had better not go down, he said I will, and try to make peace; he also saw Montgomery there; the stick that struck Montgomery was thrown as he apprehended; Montgomery stept back and then fired; he thinks he heard seven or eight 150guns, but did not count them, and it was seven or eight seconds between the first and second gun; as the last gun went off, Montgomery pushed at him with his bayonet, and he struck him with his cane, and struck the gun down; the bayonet stuck in the snow, and the gun fell out of his hand; Mr. Palmes at this time slipt and fell, but quickly recovered himself; Montgomery attempted again to push him with his bayonet, and he threw his cane at him and ran; not satisfied with this, Montgomery attempted to push him a third time, and in that attempt he slipt and fell, and thereby gave Palmes an opportunity to get out of his way, or else he says he had been run through the body; from the testimony of this witness, you have further proof that Montgomery was the person who fired first; that after firing, he continued to discover marks of malice and malevolence, by pushing with his bayonet, and endeavouring to destroy not only Mr. Palmes, but all around him.

Next comes Mr. Danbrook, he saw there Hartegan, Montgomery, and Carrol. Here is another witness to three of the party; it was about a quarter after nine when he came up; he stood about ten or twelve feet from Montgomery; he saw no stick strike him, but a little stick he says flew over their heads, which he took to be a piece of a rattan; he was looking on Montgomery when he fired; this is another evidence as to the fact of firing, upon which, the witness thinks, two men fell: if that was the case, there was execution indeed; by the discharge of one gun two persons killed on the spot! He did not hear the second gun, but supposes, that by one of the guns Attucks fell, he stooped to see if the Molatto was dead, then turned round and saw another man fall; Attucks at that time was near him, at his left, leaning on his stick; that circumstance I would have you keep in your minds Gentlemen, that you may remember it when you have the whole evidence together.

Jedediah Bass is the next witness, he came up Royal-exchange lane; when he got into King street, he saw Montgomery there: here Gentlemen is another witness as to the identity of one of the prisoners, and the witness saw him push his bayonet at a man that stood near him; he drew back into the lane, and in a minute Montgomery fired: the number of guns he took to be six, but did not count them: the people began on the firing of the first gun to run, some one way and some another. As he came up Dock-square, the people were saying let us go home, there is no fire, the soldiers are gone to their barracks.

After this witness comes Mr. Wilkinson, who gave a very regular account; he tells you he was at his own house when the bells rung 151for nine as usual; a little while after that he heard Dr. Cooper's bell, on which apprehending it was for fire, he put on his surtout, and went out; he came towards the Town-House, went past it as far as the town-pump, and the people from the windows were cautioning those in the street not to go down, for they would be killed; the night was so bright that he was able where he was to see down the street as far as Boylston's alley, and there he saw a number of soldiers sallying out, brandishing their swords, and contending with the people; there were about thirty or forty round them with buckets and bags, thinking as he supposed that the bells rung for fire; after this he went to the Guard-house, intending to wait there, to learn if any mischief had been done at the barracks; he presently saw Capt. Preston come down, as he imagined from behind the Old-Brick meeting-house, and call to the guard, and ordered them to turn out; then he saw the party come out, and saw the Captain draw his sword and march down with them; at that time there were about thirty or forty people in King street; he went a little lower, and turned back again round the north side of the Town-house, and placed himself at the Royal-exchange-tavern; and the party was formed when he got there: he tells you he was not at all apprehensive of danger, consequently he was capable of making observations, and placed himself in such a situation as to do it; the party formed in a circle, and he stood about four or five minutes before he heard the word given to fire: that he heard it twice: on the first command they did not fire; it was repeated, and then the guns went off one after another, like the striking of a clock, he was about two yards from them and thinks the firing began at the right. This corresponds with the testimony of several witnesses. He saw the flash of each gun seven went off, and one flashed. There Gentlemen you have evidence of all the party's firing save one: the witness was asked if he saw snow balls, ice, oyster shells, or any thing else thrown by the people, to which he answered No; he said if he had, he should have thought himself in danger, and have retreated; he heard two or three cheers before the party came down, but none afterwards. Now, Gentlemen, if you recollect that circumstance, and the manner of his relating it, you will remember he expressed himself very emphatically: from this testimony you have further express evidence of the fact of firing, that it came from the right, and from thence followed on to the left: he did not see the persons who were killed, therefore there is nothing in his evidence relating to that.

From the next witness, Mr. Simpson, you have proof of White, Wemms, Warren, and Hartegan, four of the prisoners, that they were 152all of the party that evening; and after relating a number of minute circumstances, he swears to the discharge of eight guns, which if you give credit to his testimony, will prove to you that the whole party fired; from him you have also further evidence of the killing Attucks, Gray and Caldwell.

Mr. Fosdick, deposes that upon his going down King-street, the first salutation he had, was the pressing of soldiers behind him with the points of their bayonets, crying out, damn your blood stand out of the way! this Gentlemen, was the conduct of the party as they came down along. From Mr. Fosdick also you have evidence of their manoeuvers both before and after they formed; when the first gun was fired, the second man from the right pushed his bayonet at him, and wounded him in the breast, you saw Gentlemen the mark in Court: before this two different men pierced him in the arm and elbow quite to the bone; here Gentlemen were three thrusts given to a person innocently passing down upon the cry of fire! he knew not as he swears to you, what was the occasion of the party's coming down. The right hand Grenadier fell after he had fired, occasioned by pushing at a person who went down Royal-exchange-lane, this probably was Mr. Palmes, in whose evidence if you remember, you have this circumstance related, that on his pushing at him the third time, Montgomery's foot slipped, which gave him an opportunity to escape down the lane.

Hemmingway, the next witness, swears, that being in company with Killroy, he heard him say he never would miss an opportunity to fire on the people of the town, for he had wanted it ever since he landed; that Killroy was not then in liquor nor appeared to be in anger; he told him he was a fool, for saying so, he said I do not care, I will not miss an opportunity for all that; these expressions Gentlemen speak for themselves, they are of such a nature as you cannot but draw from them the temper of the man's heart who spoke them, which you will consider at your leisure.

Mr. Hillier, came from the North end, was told there was no fire, but the soldiers were insulting the inhabitants; a number of people in Dock square seemed afraid to go up to King-street, another circumstance which accounts for the appearance of the inhabitants, at that time in Dock-square; the witness went up to King-street, saw the Sentry with his bayonet charged breast high, about twenty or thirty boys about him; he had often seen many more in that street in such a night as that was; it was bright moon light; the people on the party's coming down seemed to collect in a body in Royal-exchange-lane; as 153he passed the last man, he heard a gun from the right, thinks it was about twenty seconds before the second gun fired; he observed a little boy running a cross the street crying fire, and the left hand man followed the boy with his gun; there was nothing passed he observed to induce them to apprehend any danger; he says, had even the soldiers pointed at me, I should not have thought myself in danger; he thinks there were six guns fired; he saw no snow balls thrown, if there had been, he must have seen them. When the soldiers came down, there was a sort of shouting, and a short time after, the first gun fired. I need not dwell longer on this testimony for you must remember it yourselves.

Nicholas Ferriter was next sworn, who knew Killroy and Warren; he swears to their being at the Rope-walks before this affair happened; he relates the circumstances of three several attacks in the Rope-walks; the first was a single person who challenged him out to fight; a squable ensued, and the soldier took to his heels; he soon collected a dozen more, came again, and had a farther battle, in which the soldiers were again worsted; they then collected a large number, to the amount of thirty, and in about three-quarters of an hour they came back, and went at it again; in this last squabble the soldiers were a third time worsted. From this affair perhaps may be dated a good deal of the proceedings of the Monday-evening; you have heard from the witnesses that the soldiers of that regiment remembered the grudge, and discovered a malicious disposition; were frequently seen in parties, and when single, with arms, attacking the people passing the streets. Killroy one of the prisoners, and Warren, are expressly sworn to, that they were in this affray; Gray and Ferriter went into King-street, Gray had no stick; Ferriter left Gray in King-street; it appears he did not go down with a disposition to commit any assault at all.

Burdick is the next witness, he says when he came down to King-street he spoke to a soldier, he thinks it was Montgomery, he asked him if he was loaded and intended to fire; yes, by the eternal God! was the answer he received. The intention of that soldier, whoever he was, you clearly discover; the witness thinks it was Montgomery; he says further, a soldier pushed at him with his bayonet, and he struck his gun; he saw nothing flung but a small stick, which hit nobody; as he was stooping to take up the dead, they cocked their guns and presented at him again; thus you see the same disposition continued, they were aiming to push at every body round about them; and after they had killed these persons, they were not satisfied with that, but attempted to push those that were taking them away.

Mr. Williams who was next sworn, hath nothing material in his 154testimony, but that of the guns following the people as they ran after the first gun was fired; that seven guns were fired, that he saw no sticks or snow balls fall near them, that all the snow balls he did see seemed to be light, and not hard.

It has been asked from the bench,2 Whether there may not be voluntary manslaughter? I readily grant there may; it has also been observed, that homicide which includes murder, must be committed with coolness and deliberation, I allow it, and my application of this rule, is, that it comes within the evidence you have of the particular facts related by the witnesses with regard to Killroy; there is no manner of doubt with me, but the fact was done in the manner which the law calls sedato animo; he was doing a deliberate action, with a cool and calm mind; it appears, if you believe Langford, he was not molested; it appears the person he killed, and at whom he aimed, and the person whose cloths he pierced with his bayonet, were standing peaceably, one leaning on a stick, and the other with his arms folded.

After the witnesses we have gone through, a number of gentlemen were examined, most of whom lived in Cornhill, who have testifyed to the conduct of the soldiers, that evening the affair happened.

I will not take them in order, for I apprehend, by recuring to Colonel Marshall first, the rest will come in more naturally; he says, he came from Colonel Jackson's in Dock-square, about a quarter after nine o'clock; that the street was quite still, no body passing thro' Dock-square; he came up to his own house next the Custom house, he passed the Sentinel, and there was no body near him; King-street was quite still, fewer people passing than he had usually seen on such a fine night; he went into his own house, and soon after heard a distant cry of murder, what part of the street it came from he did not know: He, gentlemen, you will remember, intimated also this circumstance, that he had been warned not to go out that evening; this gave him an apprehension there was some mischief to be betwixt the soldiers and the inhabitants; he mentioned it to the person in the shop, and went out; looking towards the Guard-house, he saw a number of soldiers issue from thence in an undress, with naked swords, cutlasses, &c. crying out “Damn them where are they? By Jesus let 'em come.” As to the situation of the Moon, whether she was north or south, which has been much altercated, I cannot see it will make much one way or the other, it is sufficient that Colonel Marshall, whose credibility and capacity will not be disputed, has sworn that from his door he observed a party 155of soldiers come down in undress, armed with cutlasses and other weapons, the cutlasses he swears he particularly saw glittering in the Moon light; the expressions he said he plainly heard, while they were brandishing their swords; when this party passed off, he saw a second party come up Quaker-lane, armed in the same manner, and making use of the same kind of language, and that party he said cried fire; in his testimony on the trial of Captain Preston, he said the bells rung on that cry; he expressed some doubt of this yesterday, but it was certainly just about that time; the use I would make of this is, to compare it with what the other witnesses say of the conduct of the soldiers in Cornhill; as Mr. Thayer expresses it, it is probable the word fire was a watch-word; it appears to me, that if we can believe the evidence, they had a design of attacking and slaughtering the inhabitants that night, and they could have devised no better method to draw out the inhabitants unarmed, than to cry fire!

Mr. Thayer, was sitting at his fire, in Corn-hill, near Boylston's alley, he heard a great noise, and went to the door, he saw seven soldiers in an undress coming down like wild creatures, with cutlasses in their hands, crying damn them, where are they? upon this he heard a cry of fire, and supposed it to be a watch-word.

Mr. Kneeland, who lives by the town-pump, came out and stood at his door; saw a number of soldiers pass by him armed; one of them came up to him and said, damn you what do you do here? and pointed his bayonet to his breast, telling him to go in.

Mr. Appleton who lived opposite, tells you he was standing by his neighbour Mr. Marsh, they were both at the door; a number of soldiers came running down, armed with cutlasses, in an undress, and they seemed to come out of their way, (observing them at the door) with uplifted weapons, intending as it appeared, to strike them: but they fortunately got into their doors.

Then gentlemen, comes the son of Mr. Appleton, the young master who was sworn, yesterday, whose story, with his manner of telling it, must strike deep into your minds; I am sure it did in mine; a child of his age, with a younger brother sent of an errand a few steps, and on returning home, struck at by a party of soldiers, nay ruffians, with cutlasses, he innocently crying, soldiers spare my life! No damn you we will kill you all, or words to that purpose, attended with a blow, was the answer the little victim received! what can indicate malice if this does not? cruelty almost equal to that of a Pharoh or Herod. I remember at the last tryal, my brother Adams made this observation, that “Man is a social creature, that his feelings, his passions, his 156imaginations are contagious.” I am sure if in any instance it is so, here was food enough for such passions, such imaginations to feed upon.

But Gentlemen, as it does not immediately relate to the prisoners, all the use I mean to make of it is, to show you that from the conduct and appearance of the soldiery, in different parts of the town, the inhabitants had reason to be apprehensive they were in danger of their lives; children and parents, husbands and wives, masters and servants, had reason to tremble one for another. This apprehension, together with the ringing of the bells, collected numbers of people in different quarters, as is commonly the case when there is any appearance of fire; and the center of the town, when there is a doubt where fire is, becomes naturally the place of rendezvouz: this accounts for the number of people that were there, and for some having sticks and canes. I mention this only to take off the force of any evidence or pretence that may be made, that there was an intention of the people to assault, or as it has been expressed, swallow up the soldiers.

I have now gone through the evidence on the part of the Crown, in support of the charge against the prisoners, I shall make a very few observations, and leave it with the prisoners and their Council to make their defence, and Mr. Paine who is on the side of the Crown with me, to close the cause.

I think Gentlemen upon the whole evidence, you can, in the first place, have no doubt but that all the prisoners at the bar were of that party of soldiers, headed by Capt. Preston, who went down to the Custom-House, on the 5th March, the evening mentioned in the indictments; that the five persons named in those indictments were killed by some or other of that party, but who they were that killed those several persons, may not be precisely ascertained, except in the case of Killroy, against whom I think you have certain evidence.

It is a rule of law Gentlemen, when the fact of killing is once proved, every circumstance alleviating, excusing, or justifying, in order to extenuate the crime must be proved by the prisoners, for the law presumes the fact malicious, untill the contrary appears in evidence.

There is another rule I shall mention also, and that is, that it is imaterial, where there are a number of persons concerned, who gave the mortal blow, all that are present, are in the eye of the law, principals. This is a rule settled by the Judges of England upon solid argument. The question therefore then will be, what species of homicide this is? and the decision of that question must be deferred, untill the defence comes out by the evidence on the other side.

The laws of society, Gentlemen, lay a restraint on the passions of men, that no man shall be the avenger of his own cause, unless through absolute necessity, the law giving a remedy for every wrong: If a man might at any time execute his own revenge, there would be an end of law.

A person cannot justify killing, if he can by any means make his escape; he should endeavour to take himself out of the way, before he kills the person attacking him.

Here one of the Court judging it improper for the Council in opening the cause to anticipate the defence, and this being determined by the whole Bench, Mr. Quincy then closed, with saying:

I was about to make some farther remarks, but it is thought by the Honourable Court improper to anticipate what may be urged on the other side. I shall therefore rest the case as it is, and doubt not but on the evidence as it now stands, the facts, as far as we have gone, against the prisoners at the bar, are fully proved, and until something turns up to remove from your minds, the force of that evidence, you must pronounce them GUILTY.

Josa. Quincy. 3 main Divisions, under the last there will be many Sub divisions. 1st. whether any killd. 2. Who killed 'em? Wherever a Doubt the Bias is in favour of the Prisoner. 3d. last and main Division, is what are the facts they all edge to justify, excuse, or all eviate. Under this many minute divisions. Need not remind you of the importance to the Prisoners, nor to the Community. Important that the Dignity of Justice, to the Country and that same Rules should prevail. A Prejudice prevails that the Life of a Soldier is less valuable than that of a subject.

The Criminal Law extends itself to every Individual of the Community. It views Man possessed of Affections and Passions. The Law attends to Man kind as we find em surrounded with all their Infirmities and all their Passions. Whatever will justify an Inhabitant in firing upon an Inhabitant, will justify a soldier. And a Soldier need not have 158a civil Magistrate any more than an Inhabitant. A general Opinion, almost universal, thro this Continent, that their Rights and Liberties were invaded. Believed that the soldiers came here to inforce those Acts. Mankind Act from Feelings more than Reasoning. The Object of Resentment was out of Reach, and it fell upon the Instrument. The People thought the Soldiers the Instruments of fastening the shackles that had been forged. The soldier felt himself touched in the Point of Honour, and in the Pride of Virtue, when he saw and felt these Marks of Disrespect.

You are not sitting here as statesmen or Politicians. You have nothing to do with the Injuries your Country, has sustained. The Town is not concerned.

This Cause has awakened the Attention of this whole Continent if not all Europe. You ought to be carefull to give a Verdict, which will bear the Examination of Times, when the Pulses which now beat shall beat no more. Do nothing which shall hereafter bite like a Serpent and Sting like an Adder. All the Colours of the Canvas, the Pictures the Publications. Every Thing that could possibly stimulate, and inflame. An high Water slack. The Passions, so high that they can go no higher.

The Fact of Killing has not been proved with Regard to some of em, and others are left in doubt.

Person producing a Witness is never to discredit him. A Person swearing a Positive is to be believd, ceteris paribus,2 rather than one swearing a Negative. Persons upon Guard have a particular Habit. Therefore probably, Colonel Marshall, mistaken. In that Temper of Mind, that frame of Disposition, which prevailed thro the whole Continent. These Persons were upon their Duty, and their Lives in Danger if they movd from their stations.

May it please your Honours, and you Gentlemen of the Jury.

The prisoners at the bar stand indicted for the murder of five of his Majesty's leige subjects, as set forth in the several indictments, which have been read to you: the persons slain, those indictments set forth, 159as “being in the peace of God and our Lord, the King,” at the time of the mortal wounds given.

To these indictments, the prisoners have severally pleaded Not Guilty: and for their trial have put themselves on God and their country; which country you are. And by their pleas, thus severally pleaded, they are to stand or fall, by the evidence, which shall respectively apply to them.

By their plea of Not Guilty, they throw the burden of proof, as to the fact of killing, upon the Crown; but, upon which being proved, the matters, they allege to justify, excuse, or extenuate, must be adduced by them, and supported by legal evidence. The truth of the facts, they may thus alledge, is your sole and undoubted province to determine; but upon a supposition, that those facts shall appear to your satisfaction, in the manner we alledge, the grand question then to be determined, will be, whether, such matters so proved, do in law extenuate, excuse, or justify. The decision of this question, belongs to another department; namely, the Court. This is law so well known and acknowledged, that I shall not now detain you by a recital of authorities, but only refer to Judge Foster's Crown Law, where this point is treated with precision, and fixed beyond controversy. It may not be amiss, however, to assure you, that as certain as the cognizance of facts is within your jurisdiction, as certain does the law, resulting from these facts, in cases of the present kind, seem to reside solely in the Court: unless cases where juries, under the direction of the Court, give general verdicts, may be denominated exceptions.

I take it, that, in the cause now before us, it will not be contested, that five persons were unfortunately killed, at the time the indictments charge; and this case will naturally enough divide itself, into three main divisions of enquiry.

I. Whether any homicide was committed?

II. By whom was it committed?

III. Is there any thing appearing in evidence, which will justify, excuse, or extenuate such homicide, by reducing it to that species of offence, called manslaughter?

Before we enter upon these enquiries, permit me, Gentlemen, to remind you of the importance of this trial, as it relates to the prisoners. It is for their lives! If we consider the number of persons now on trial, joined with many other circumstances which might be mentioned, it is by far the most important, this country ever saw.

Remember the ties you are under to the prisoners and even to your selves: The eyes of all are upon you. Patience in hearing this cause is 160an essential requisite; candor and caution are no less essential. It is tedious and painful to attend so lengthy a trial; but remember the time which has been taken up by the Crown, in the opening. By every bond of humanity and justice, we claim an equal indulgence: nay, it is of high importance to your country, that nothing should appear on this trial to impeach our justice, or stain our humanity.

And here, let me remind you of a notion, which has certainly been too prevalent, and guard you against it's baneful influence. An opinion has been entertained by many among us, that the life of a soldier, was of very little value: of much less value, than others of the community. The law Gentlemen, knows no such distinction; the life of a soldier is viewed by the equal eye of the law, as estimable, as the life of any other citizen.

I cannot any other way account, for what I mention, but by supposing, that the indigence and poverty of a soldier, the toils of his life, the severity of discipline to which he is exposed, the precarious tenure by which he is generally thought to hold his life, in the summary decisions of a court martial, have conspired to propagate a sentiment of this kind; but a little attention to the human heart, will dissipate this notion.

The soldier takes his choice, like all others, of his course of life: he has an equal right, with you or me, so to do. It is best we should not all think alike. Habit makes all things agreeable. What at first was irksome, soon becomes pleasing. But does experience teach, that misery begets in general an hatred of life. By no means; we all reluct at death; we long for one short space more—we grasp, with anxious solicitude, even after a wretched existence. GOD and Nature has implanted this love of life. Expel therefore from your breasts, an opinion so unwarrantable by any law, human or divine; let not any thing so injurious to the prisoners, who value life as much as you; let not any thing so repugnant to all justice have an influence in this trial. The reputation of the country depends much on your conduct, Gentlemen, and, may I not add, Justice calls aloud for candour in hearing, and impartiality in deciding this cause, which has, perhaps, too much engrossed our affections—and, I speak for one, too much excited our passions.

The law, by which the prisoners are to be tried, is a law of mercy— a law applying to us all—a law, judge Blackstone will tell us “founded in principles, that are permanent, uniform and universal, always conformable to the feelings of humanity and the indelible rights of mankind.” Sec 4, 13. Cap. 3.2

How ought we all, who are to bear a part in this day, to aim at a strick adherence to the principles of this law—how ought we all to aim at utterly eradicating every undue biass of the judgment—a bias subversive of all justice and humanity.

Another opinion equally foreign to truth and law has been adopted by many.

It has been thought, that no possible case could happen, in which a soldier could fire, without the aid of a civil magistrate. This is a great mistake—a very unhappy mistake indeed!—one, I am afraid, that had it's influence, on the fatal night, which we all lament. The law, as to the present point, puts the citizen and soldier under equal restraint. What will justify and mitigate the action of the one, will do the same to the other. Let us bear this invariably in mind, in examining the evidence. But before we proceed to this examination, let us take a transient view of some occurences, preceding and subsequent to the melancholy fifth of March.

About some five or six years ago, it is well known, certain measures were adopted by the British parliament, which gave a general alarm to this continent. Measures were alternately taken, in Great Britain, that awakened jealosy, resentment, fortitude and vigilance. Affairs continued long fluctuating. A sentiment universal prevailed, that our dearest rights were invaded. It is not our business here to enquire touching these delicate points. These are concernments, which however interesting or important in themselves, we must keep far away from us, when in a Court of law. It poisons justice, when politics tinctures it's current.

I need not inform you, how the tide rose, as we were advancing towards the present times. The general attention became more and more roused—people became more alike in opinion and practice. A vast majority thought all that was dear was at stake—sentiments of liberty, property, ignominious bondage, all conspire to encrease the ferment. At this period, the troops land. Let us here pause, and view the citizen and soldier.

The causes of grievance being thus spread far and wide, the inhabitants viewed the soldiery as called in, foreign from their prime institution, to enforce obedience to acts, which were, in general, deemed subversive of natural, as well as constitutional freedom. With regard to the universal prevalence of ideas of this kind, it does not fall within our present plan, to give you direct, positive evidence. It would be too foreign to the present issue, though pertinent enough, when considered as a clue to springs and motives of action, and as an addi-162tional aid to form a just judgement in our present enquiry. You Gentlemen who come from the body of the county, are presumed to know these facts, if they are true; nay their notoriety must be such, provided I am not mistaken in my conjecture, that the justice of my observation on this matter, must be certainly confirmed by your own experience. I presume not in this, or any other matter of fact, to prescribe to you; if these sentiments are wrong, they ought to have no influence; if right, they ought certainly to have their due weight.

I say, Gentlemen, and appeal to you for the truth of what I say, that many on this continent viewed their chains as already forged, they saw fetters as prepared, they beheld the soldiers as fastening, and riveting for ages, the shackles of their bondage. With the justness of these apprehensions, you and I have nothing to do in this place. Disquisitions of this sort, are for the Senate, and the Chamber of Council— they are for statesmen and politicians who take a latitude in thoughts and actions; but we, Gentlemen, are confined in our excursions, by the rigid rules of law. Upon the real, actual existence of these apprehensions, in the community, we may judge—they are facts falling properly within our cognizance—and hitherto may we go, but no further. It is my duty, and I ought to impress it on your minds, and you, Gentlemen, ought to retain the impression. You are to determine on the facts coming to your knowledge; You are to think, judge, and act, as Jurymen, and not as Statesmen.

Matters being thus circumstanced, what might be expected. No room was left for cordiality and friendship. Discontent was seated on almost every brow. Instead of that hospitality, that the soldier thought himself intitled to, scorn, contempt and silent murmurs were his reception. Almost every countenance lowered with a discontented gloom, and scarce an eye, but flashed indignant fire.

Turn and contemplate the camp. Do you find a more favourable appearance?

The soldier had his feelings, his sentiments, and his characteristick passions also. The constitution of our government has provided a stimulus for his affections. The pride of conscious virtue, the sense of valour, the point of honour.

The law had taught him to think favourably of himself. Had taught him to consider himself,3 as peculiarly appointed for the safeguard and defence of his country. He had heard, that he put not off the citizen, when he entered the camp; but because he was a citizen, and wished to continue so, he made himself for a while a soldier.

How stinging was it to be stigmatized, as the instrument of tyranny and oppression? how exasperating to be viewed, as aiding to enthrall his country? He felt his heart glow with an ardour, which he took for a love of liberty and his country, and had formed to himself no design fatal to it's privileges. He recollected no doubt, that he had heretofore exposed himself for it's service. He had bared his bosom in the defence of his native soil, and as yet felt the smart of wounds received in conflict for his King and Country. Could that spirit, which had braved the shafts of foreign battle, brook the keener wounds of civil contest? The arrows which now pierced him, pierced as deep, and rankled more, than those of former times. Is it rational to imagine much harmony could long subsist?

We must take human nature as we find it, and not vainly imagine, that all things are to become new, at such a crisis.

There are an order of men in every commonwealth who never reason, but always act from feelings. That their rights and liberties were filched away one after another, they had often been told. They had been taught, by those whom they believed, that the ax was now laid to the root of the tree, and one more stroke compleated it's fall. It was in vain to expect to silence or subdue these emotions by reasons, soothings, or dangers. A belief, that nothing could be worse, than the calamities which seemed inevitable, had extended itself on all sides, and arguments drawn from such sources had little influence. Each day gave rise to new occurrences which encreased animosities. Heart-burnings, heats and bickerings became more and more extensive. Reciprocal insults sowered the temper, mutual injuries imbittered the passions.

Can we wonder, that when every thing tended to some important action, the period so soon arrived? Will not our wonder be encreased, to find the crisis no sooner taking place, when so many circumstances united to hasten it's approach? To use an allusion somewhat homely, may we not wonder, that the acid and the alcali, did not sooner ferment?

A thought here imperceptibly forces itself on our minds, and we are led to be astonished, that persons so discordant in opinion, so opposite in views, attachments and connections, should be stationed together. But here, Gentlemen, we must stop. If we pursue this enquiry, at this time, and in this place, we shall be in danger of doing great injustice. We shall get beyond our limits. The right of quartering troops in this province must be discussed at a different tribunal. The constitutional legality, the propriety, the expediency of their appointment are ques-164tions of state, not to be determined, nor even agitated by us, in this Court. It is enough for us, if the law takes notice of them when thus stationed; if it warrants their continuance; if it protects them in their quarters. They were sent there by that authority, which our laws know; they were quartered here, as I take it, agreeable to an act of the British Parliament; they were ordered here, by your Sovereign, and mine. I expect hereafter, to be more particular on this head.

Let me here take a method very common, with another order of men. Let me remind you of what is not your duty.

Gentlemen, great pains have been taken by different men, with very different views, to involve the character, the conduct and reputation of the town of Boston, in the present issue. Boston and it's inhabitants have no more to do with this cause, than you or any other members of the community. You are, therefore, by no means to blend two things, so essentially different, as the guilt or innocence of this town and the prisoners, together. The inhabitants of Boston, by no rules of law, justice or common sense, can be supposed answerable for the unjustifiable conduct of a few individuals hastily assembled in the streets. Every populous city, in like circumstances, would be liable to similar commotions, if not worse. No rational or honest man, will form any worse opinion of this metropolis, for the transactions of that melancholy night. Who can, who will, unnecessarily interest themselves, to justify the rude behaviour of a mixt and ungovernable multitude? May I not appeal to you, and all who have heard this trial, thus far, that things already wear a different aspect from what we have been, heretofore, taught to expect? Had any one told you some weeks ago, that the evidence on the Crown side, would have appeared in it's present light, would you have believed it? Can any one think it his duty, to espouse the part acted, by those assembled in King-street?—I think not; but lest my opinion should not have any weight, let me remind you of an author, whom, I trust, and wish in the hands of all of you. One whom I trust you will credit. I am sure you ought to love and revere him. I wish his sentiments were ingraven in indelible characters on your hearts. You will not suspect him of being unfriendly to liberty; if this cause and it's event must, at all hazards, be held as interwoven with a matter so foreign to it. I allude to the third Letter of the FARMER of Pennsylvania to his countrymen.

“The cause of liberty, says that great and good writer, is a cause of too much dignity, to be sullied by turbulence and tumult. It ought to be maintained in a manner suitable to her nature. Those who engage in it, should breathe a sedate, yet fervent spirit, animating them to ac-

tions of prudence, justice, modesty, bravery, humanity, and magnanimity.”4

What has there transpired on this trial, favouring of any of these virtues? Was it justice or humanity to attack, insult, ridicule and abuse a single Sentinel on his post? Was it either modest, brave or magnanimous to rush upon the points of fixed bayonets; and trifle, vapour, and provoke at the very mouths of loaded muskets. It may be brutal rage, or wanton rashness, but not surely any true magnanimity.

“I hope, says the same eminent writer, my dear countrymen, that you will in every colony be upon your guard against those, who AT ANY TIME endeavour to stir you up, under pretences of patriotism, to any measures DISRESPECTFUL to your Sovereign and our mother country.” 5 By this it should seem, as though the Farmer never expected any period would arrive, when such measures would be warrantable. Now what more disrespectful to our parent country, than to treat with contempt a body of men stationed most certainly by the consent of her supreme legislative, the parliament of Britain? What more disrespectful of our common sovereign, than to assume the sword of justice, and become the avengers of either public or private wrongs? Tho' the soldiers, who appeared in the earlier part of the evening, in Cornhill, acted like barbarians and savages, they had now retired, and were now confined in their barracks: what tho' an impertinent boy had received unjustifiable correction from the Sentinel; the boy, and the persons in Cornhill, must have recourse only to the law for their redress. Courts of law are stiled “vindices injuriarum,” the avengers of injuries, and none others are to assume this prerogative. The law erects itself as the supreme, dernier resort, in all complaints of wrongs; and nothing could more essentially sap our most important interests, than any countenance to such dangerous encroachments on the domains of municipal justice.

But finally, to finish with the justly celebrated Farmer, “Hot, rash, disorderly proceedings, injure the reputation of a people as to wisdom, valour, and virtue, without procuring the least benefit.” 6 Thus have you the sense of this great authority with us. And let me ask all those, who have thought the cause of their country connected with the agents of the assembly in King Street, whether the proceedings of that unhappy night, were hot, rash, or disorderly? If they were, have they not, in the opinion of this great friend of liberty, injured our reputa-166tion, as to wisdom, valour, and virtue; and that too, without procuring the least benefit? Who then would sacrifice his judgment and his integrity, to vindicate such proceedings?

To what purposes the soldiers were sent; whether it was a step warranted by sound policy or not, we shall not enquire; we are to consider the troops, not as the instruments for wresting our rights, but as fellow citizens, who being to be tried by a law, extending to every individual, claim a part in it's benefits—it's privileges—it's mercy. We must steel ourselves against passions, which contaminate the fountain of justice. We ought to recollect, that our present decisions will be scann'd, perhaps thro' all Europe. We must not forget, that we ourselves will have a reflective hour—an hour, in which we shall view things through a different medium—when the pulse will no longer beat with the tumults of the day—when the conscious pang of having betrayed truth, justice, and integrity, shall bite like a serpent and sting like an adder.

Consider, Gentlemen, the danger which you, and all of us are in, of being led away by our affections and attachments. We have seen the blood of our fellow men flowing in the streets. We have been told that this blood was wrongfully shed. That is now the point in issue. But let it be borne deep upon our minds, that the prisoners are to be condemned by the evidence here in Court produced against them, and by nothing else. Matters heard or seen abroad, are to have no weight: in general they undermine the pillars of justice and truth. It has been our misfortune, that a system of evidence has appeared in the world against us. It is not our business to blame any one for this. It is our misfortune, I say. It should be remembered, that we were not present to cross examine: and the danger which results from having this publication in the hands of those who are to pass upon our lives, ought to be guarded against. We say we are innocent, by our plea, and are not to be denounced guilty upon a new species of evidence, unknown in the English system of criminal law.

But as though a series of ex parte evidence was not enough, all the colours of the canvass have been touched in order to freshen the wounds, and by a transport of imagination, we are made present at the scene of action. The prints exhibited in our houses have added wings to fancy; and in the fervour of our zeal, reason is in hazard of being lost. For as was elegantly expressed, by a learned Gentleman7 at the late trial, “The passions of man, nay his very imaginations are contagious.” The pomp of funeral, the horrors of death have been so 167delineated, as to give a spring to our ideas, and inspire a glow in-compatible with sound, deliberative judgment. In this situation, every passion has alternately been predominant. They have each in it's turn, subsided, in degree, and have sometimes given place to despondence, grief and sorrow. How careful should we be, that we do not mistake the impressions of gloom and melancholy, for the dictates of reason and truth. How careful, lest borne away by a torrent of passion, we make shipwreck of conscience.

Perhaps, you may be told, Gentlemen, as I remember it was said, at the late trial, that passions were like the flux and reflux of the sea the highest tides always producing the lowest ebbs. But let it be noticed, that the tide, in our political ocean, has yet never turned; certainly the current has never set towards the opposite quarter. However similies may illustrate, they never go for proof. Though I believe, that it will be found, that if the tide of resentment has not risen of late, it has been because, it had reached the summit. In the same mode of phraseology, if so homely an expression may be used; perhaps, as the seamen say, it has been high-water slack—but I am satisfied the current has not as yet altered it's course, in favour of the prisoners at the bar.

Many things yet exist sufficient to keep alive the glow of indignation. I have aimed at securing you against the catching flame. I have endeavoured to discharge my duty, in this respect:—What success will follow those endeavours, depends on you, Gentlemen. If being told of your danger will not produce caution, nothing will. If you are determined in opinion, it is in vain to say more, but if you are zealous enquirers after truth; if you are willing to hear with impartiality—to examine and judge for yourselves—enough has been said to apprize you of those avenues, at which the enemies of truth and justice are most likely to enter—and most easily to beset you.

Gentlemen of the Jury,

I shall now, for argument's sake only, take it for granted, that the fact of killing, had been proved upon all the prisoners: you are sensible this is not really true; for as to this point, there are several of the prisoners upon whom this fact is not fixed. But as I shall hereafter take occasion to consider the distinct case of each prisoner, as he is affected by the evidence, I at present chuse to avoid confusion, and apply myself to the full strength of the crown; and, upon a supposition, that all the prisoners were answerable for the act of any one, see how the prisoners are chargeable, by the evidence already offered, with the crime of Murder: or rather endeavour to point out to you those 168facts, appearing by the evidence on the crown side, which will amount, in law, to a justification, an excuse, or, at least, an extenuation of their offence. For we say, that give the evidence for the king it's full scope and force, and our offence is reduced, at least, to Manslaughter: in which case, we claim the privilege of that law, by the sentence of which, if guilty, we must suffer the pains of death: a privilege we can never again claim—a privilege, that by no means implies exemption from all punishment: the offender becomes liable to imprisonment, for a year—incurs a forfeiture of all goods and chattels; and, till he receives the judgment of law, is to all intents a felon—subject to all the disabilities and other incidents of a felon. Without taking up time, in attending and discussing points, no way pertinent to the present issue; without a tedious recapitulation of circumstances, with which, I take it, we have no more concern, than either of you, Gentlemen; I say passing over all these matters as foreign to this trial; let us state evidence appearing even from the crown witnesses.

These witnesses, (whose testimony I shall not consider in the order they were produced) inform you, that in the former part of the evening a number of soldiers rushed from some of the lanes near the Guard-house, or as Col. Marshall supposes, from the Guard-house itself. But some circumstances he relates, as to their dress, may render it doubtful, whether he is right in this point. Soldiers on guard have a peculiar regimental habiliment, which they never dare put off; and if I am rightly instructed, no soldiers, but those on duty, are suffered to be at the Guard-house at those hours. However thus much is certain, that being dressed in short jackets or working coats, proves them not to be of that particular party who had mounted guard at this time,

The cry was “where are they—damn them where are they!” They brandish their weapons, and proceed to Corn-hill. What those weapons were the witnesses say differently. But it should be mentioned as we go along, that the soldiers of the twenty-ninth, are never allowed to wear swords or cutlasses.8

As these soldiers pass down Corn-hill, they assault, abuse and attack people. The soldiers in their turn are beaten. One has his wrist broke—and the general cry soon after was—“they are beaten—they are drove into the barracks!”

Some part of this conduct may hereafter be accounted for, and other parts of it may stand in a very different light. But we are ready to 169admit, that their behaviour was altogether unjustifiable—for we don't look upon ourselves as any way concerned in their conduct. Conduct which, if some of the witnesses are not mistaken, seems more like that of madmen and barbarians, than like reasonable creatures. If they acted like savages or ruffians, what is that to us? This evidence, therefore not applying to this case, we are injured if it has any influence to our prejudice. Being foreign to the issue, we humbly conceive it ought never to have been introduced; or being introduced, it ought to be rejected, in our determining the guilt or innocence of the prisoners.

Mr. Josiah Quincy then proceeded to a minute detail of the crown evidence, pointing out, as he went along, those circumstances that favoured the prisoners; and commenting chiefly on those facts, which served to refute or invalidate the positions of the Council for the Crown; by showing an assault and attack upon the Sentry. He then reviewed those parts of the evidence, which had a tendency either to prove insult, abuse, or assault and battery of the party: he pointed out the various quarters, from which all these, but especially the assault and battery proceeded; and from the facts, time and circumstances testified, inferred the attack to have been on various sides at the same instant. From the noises, violence and rattling of the guns he drew other consequences useful to his cause. From the inattention of some, and the forgetfulness of others; from the tumult, fright, confusion and passions in the scene, he made such deductions as might account for the contrariety and seeming incompatibility of the evidence.

He next very particularly stated the Evidence for the prisoners, as he had been instructed it would turn out on examination; and as he opened his evidence, he carefully remarked its conformity to, and connection with, many parts of that already exhibited by the Council for the King. He then called the witnesses, who swore as follow.

James Crawford. At dark that night, I went home and was not out till next morning. I met Numbers of People that night as I went home, going down with sticks in their Hands. At Calefs Corner, saw a Num- 170 ber above 12 with sticks in their Hands. Heard no Declarations. In Quaker Lane I met many more than common, going towards K's Street. I was going to Bulls Wharfe where I live and met them. They were very great Sticks, not common Canes, for walking with, pretty large Cudgells. All along I met them continually, and in Greens Lane particularly.2

Archibald Gould. Coming over Swing Bridge at 8 O Clock the People were walking from all Quarters with sticks, that I was afraid to go home. I went threw Greens Lane, and met many People, the Streets in such Commotion as I hardly ever saw in my Life. Uncommon Sticks, such as a Man would pull out of an Hedge. I was just by Hancocks Warehouse3 when the Bells begun to ring.4

Archibald Wilson. I spent the Evening in Dock Square. A certain Gentleman between 8 and 9 came in and asked why we sat there when there was so much disturbance between Inhabitants and soldiers. We went to Gerrishes Vendue,5 Hunters now, and sat in the Balcony. I looked out at the Vendue Window. A good many People assembled in dock Square. A Number came from the North End and made several attempts at Murrays barracks, 30 or 40 of 'em came back suddenly. What Resistance they met with I cant tell. It was very light. They had Staves a good many, Some had not. I imagined there might be 200 People that came from the North End and went up 3 several Ways, 171 some up Cornhill some up r[oyal] exchange Lane and some up Crooked Lane. As a new Parcell came up from North End they made attempt at the Guard at Murrays Barracks and gatherd in a Cloud crowd about 30 or 40. Then made 2 or 3 Cheers for the main Guard. I went out to go up the Lane and the Guns went off. I turnd about and went home. I do remember the Bells ringing, but the Time I dont remember. But before I went up royal exchange Lane, a good many cryed for the main Guard. I heard Voices, Fire. I said it was uncommon to go to a Fire with Bludgeons. Somebody said they were uncommon Bells. Mr. Mitchelson came up and told us, there was disturbance.6

William Hunter. Mr. Mitchelson came and said there was Disturb-172ance between Inhabitants and soldiers. We went into the Balcony, and saw great Numbers coming up from the North End and in several Parties made attempts at the Lane that leads to Murrays Barracks. There was a tall Gentleman in a red Cloak. He stood in the middle of em, and they were whist7 for some time and presently they huzzayd for the main Guard. They went up royal exchange Lane. And I saw no more about it. The Gentleman had a white Wigg on. They collected round him. He stood in the Center and talkd a few Minutes.8

David Mitchelson. I came up Stairs and told the 2 Witnesses that were examind before me. I was coming Home from fore street. As I was turning into Union Street, I heard a Noise, about the Post office, and went up as far as the bottom of r. exchange Lane. I heard it was a Squabble with the soldiers. The Party engagd with the Soldiers were routed, and came down that Way. I ran into Mr. Hunters House. We went into the Balcony. I Saw a pretty large Number of People, assembled. It was proposed by several to call out Fire. Fire was called several Times, and after a While the Bells set a ringing. Many People came, some came with Bucketts, many with Sticks. Several attempts were made at the Lane to Murrays Barracks. They came back, as if driven. They assembled in several little Knotts, about several little Leaders. They cryd they would go up the main Guard. The Effect im- 173 mediately followd. Part went up by Cornhill, part up r. exchange Lane, part up crooked Lane. I could not observe who was leader up Cornhill. They huzzad for the Main Guard after the Proposal of it. The Bells were ringing. The largest Party went round Cornhill. I should suppose the greatest Number at any one time in King Street Dock Square was 200. 9

John Short. There was a Number of People in Dock Square, and I was told that a Soldier had hurt an oyster Man. After the firing there was a Proposal of taking the Arms10 out of the Hall.11

Benja. Davis. At Dock Square I heard a Noise in Cornhill. I found there was a Quarrell. I went and stoppd at Silsbeys Alley. There I saw a Number Soldiers and Inhabitants, fighting with Clubbs as I thought by the Sound. A Man 3 or 4 came and cryd, where are any Cordwood sticks or Clubbs, and cryd Fire Fire Fire. One of em left his Cloak with me. The 1st Bell I heard was the brick Meeting Bell. I Saw a general Running down the Street 8 or 9 or 10 soldiers, that ran into Kings street, with something in their Hands. I went into King Street. The Engine was out.12 Several Knotts of People were collected. I went to the South Side of the Town House. A huzzaing in King Street. I went by the South side of the Town House and stood by Prices office. The sentinel on the Custom House steps, and 175 People and Boys round him crying fire &c. He put his Piece down as if he was going to fire. 2 young Men without Hatts came to the main Guard, and said you must send Help to the sentry for I heard em say they would kill the sentinel. By and by out guard. About 7 came out their guns not shoulderd and walked right across the street to the Box. A great Noise. There I stood till the Guns were all fired. 5, 6, or 7 Guns.13

Shubael Hewes. I spent the Evening near the Dock. The Master of the House came in and said a cry of fire. I belonged to the Town House Engine.14 I was the first out of the House. I came by the Markett —saw a Number coming from the North. I stoppd at Colonel Jacksons Corner. A Man told me, no fire, but a Dispute between the soldiers at Murrays barracks. A Number of Lads came along, and tryd to pull out and break the Leggs of the Stalls. They came from the Northward some and some from Hubbards Corner. 6 or 7, I cant say exactly.15

James Selkrig. At Hunters. Mr. Mitchelson came in. 4 or 5 or 6 unsuccessfull attacks upon the Barracks. As a new Party came they made a fresh Attack. I saw nothing, but that they went up the ally and came back suddenly. A Gentleman with red Cloak and large white Wigg. He made a Speech to them. 4 or 5 minutes. They went and knockd with their Sticks and said they would do for the Soldiers. Not less than about 2 or 300. It was not the 1st Time I've seen an affair of this 177sort. I'le go to my Family. Ile do for the soldiers, was Spoke by Number at Simpsons store. 16

Archibald Bowman. At Hunters. Fire, Fire, from different Quarters. The Parties that went up the allys came down in a furious manner as if they were chased. A Gentleman with a red Cloak and white Wigg. They stood thick round the Gentleman some time and after, huzzad for the main Guard, and went up in different Ways. A great Number of People. Dont remember, their striking Simpsons Store or, saying that'd do for the soldiers.17

Wm. Dixon. At Hunters. A Party came running down the Ally as if they met with opposition there. 18

Jno. Gillespie. At 7 O Clock I went up to the South End, and met I suppose 40 or 50 People with white sticks, in Parties of 4 or 5, at Mr. Silvesters. I met Mr. Flemming's Man. He said it was only fighting with the soldiers.19

Thomas Knight. I stood at my own Door at the sign of the 3 Kings in Cornhill. About 8 or 10 passed with sticks Clubbs and one said D—n their Bloods let us go and attack the main Guard and attack the main Guard first. The Bell still ringing. One of em made a stand and said Ile go back and get my Gun or let Us go back and get our Guns. I went in and told my Wife not to be surprized if she heard any firing for I thought from what I had heard at the Door, there would be bloodshed —and soon heard Guns. 5, 6 or 7, in 12 or 14 seconds.20

John Cookson. At the Green Dragon. A Man said if the Bells were ringing it was he apprehended an Affray with the Soldiers. The story of the Pistol or Hearsay.21

William Strong. At Marstons. We heard Fire 3 or 4 times. Going out saw several People going too and fro. Somebody said a soldier had kill'd a Boy. Went to the North Corner of the Town House. Heard a huzzaing near the Post office. Saw several Persons coming about 90, many with sticks. They stopped at the Custom House. I found the People encroaching upon the Sentry. He retird to the Steps. They encroachd upon him there. He then loaded his Gun, and presented it, and said keep off or Ile fire upon you. They cryd fire d—n you why dont you fire. One Man had the But End of a Bat in his Hand, and said dam it I've a great Mind to throw it at him. I said you'd better not. Presently a Cry that the Centinel was disarmed. About 90 Persons about the sentry, before the Party came down. A great Noise, and Clamour, a few snow Balls and some things thrown, by those in front. 22

FIVE o'clock p.m. the Court adjourned till next morning, Friday,  30 November nine o'clock.

Friday, NINE o'clock, the Court met according to adjournment, and proceeded.

Dr. Richard Hyrons. About 7 o Clock. Saw several soldiers at my own door a little after 8, passing and repassing, some with Clubbs, some with Bayonetts. The Noise and Confusion seemed to come from the Bottom of the Street towards the Markett. In 8 or 10 minutes I heard a Person run thro Boylston's Ally with great Violence from Cornhill. He ran towards the barrack Gate, and then ran back again crying Town born, turn out, Town born turn out, repeated 20 or 30 times. I heard a Voice I took it to be Lt. or Ensign Mall,2 say who is that fellow? lay hold of him. I heard nothing Said by the Centinel, to this Man, nor by him to them. This cry of Town born was continued for 6 or 7 minutes when I heard the foot steps of several more People. In a short Space there seemed to be a great many more passing backwards and for- 182wards whether soldiers or Inhabitants cant tell. In about 20 minutes there seemed to be, a great Number of People in Boylstones Alley. I heard their Clubbs and sticks striking on the fence on both sides. I lockd my door, put out my Lights and went up stairs to the Chamber that fronts the barracks. Then I observed 4 or 5 officers of 29 Reg. standing upon their own Steps. About 20 or 30 of the Towns People facing of em. About that time comes a little Man, and asks why dont you keep your Soldiers in the Barracks. They answerd they had done and would do every Thing they could to keep em in their Barracks. On this the small Man said are the Inhabitants to be knocked down in the streets are they to be murdered in this manner? The officers still insisted they had done their Utmost and would do it. He said you know the Country has been used ill, the Town has been used ill. We did not send for you. We wont have you here. We'l get rid of you, or drive you away, I cant say which. The officers said they would do what they could to keep the Soldiers in and beggd that he would use his Influence to disperse the People that no Mischief might be done or Words to that Effect. Whether he did or no, I cant tell, as the Confusion was so great I could not distinguish. Immediately the Cry Home, Home was mentiond. And in 5 minutes after the Cry Home Home was repeated, and the greatest Part of em perhaps two thirds went up Boylstones Ally and huzzad for the main Guard. More Towns People came up from the Market Place. There was then a good deal of Squabble and Noise between the People and the Officers, no Blows—but could not distinguish. A little Boy came down the ally, crying he was killd he was kill'd. One of the officers laid hold of him and damd him for a little rascal, and askd him what he did out of doors. The Boy 6 or 7 Year old. Not long after, a Soldier came out with his Musquet and down upon one Knee before Boylstones Ally and presented his Musquet and Said “G. damn your Blood Il'e make a Lane thro you all.” Mr. Mall, Mr. Dixon3 or Mr. Minchin,4 laid hold of him, and turned him into the Barracks and told him at his Peril to come out again. 7 or 8 Minutes after the same soldier or another, came out and repeated much the same Words, with his Gun in his Hand. Did not kneel down. He was presenting, when Mr. Mall and one other officer knockd him down, took the Musquet from him, and drove him in and I think the Gates were then shutt. Much about this Time, I heard Dr. Coopers Bell ring. 183I had heard the Bell ring before I thot for 9 o Clock. I heard an Officer, that I took to be Mall, say to somebody go stop that Bell from ringing. Whether any Body went I cant tell. At this Time, I saw Captn. Goldfinch of the 14th upon the Steps. Another little Man came up, much different from the other. He requested the officers that the soldiers might be kept in the Barracks. They Said they did all they could, and beggd that he would take the People away. This little Man said to the People, you hear what the officers say you had better go home. On which there was the Cry Home Home again, and many of em did say, again lets away to the main Guard, and went up Boylstones Alley. Goldfinch was still upon the Steps and while they were talking I heard the Report of a Musquet, not many Minutes after they cryd home home the last Time. In a few seconds I heard the 2d Musquet and the 3d &c. I heard Captn. Goldfinch say, I thought it would come to this it is time for me to go. A Soldier soon came and said as I thought, they had fired upon the main Guard. I then heard the drums at the main Guard beat to Arms. I went down Stairs and did not go out till I was sent for to some of the wounded People. I was call'd to Maverick and he told me he was running away from the soldiers and yet the Ball went into his Breast, thro a Portion of his Liver, wounded the stomack and one of the small Gutts and lodged between the 2 lower Ribbs on the left side. The Ball was bruisd as if it struck some object before him. Mr. Craft producd the Ball in Court.5

Capt. John Goldfinch. In Cornhill I saw a Mob collected at the Pass to Murrays Barracks. The People were pelting the soldiers with snow Balls, and possibly some other Things they picked up in the Street, I cant tell what. The soldiers were defending themselves at the Entrance 185of the Pass. One of the soldiers, I think had a fire shovel. I spoke to the Soldiers, as soon as they knew me, I prevail'd on them to go to the Bottom of the Pass. With some difficulty I got down and saw some officers of the 29th. Regt. I told em I suspected there would be a Riot, 186and I being the oldest officer present6 ordered them to keep the Men in, and they did so. The Mob were extreamly abusive in Language, to the soldiers, but the Vigilance of the Officers prevented the soldiers from being . . .. A little Gentleman came up to the People, and desired em to go home. Part of em made off, thro this Passage to Cornhill, about 40 or 50 of em. They damn'd the Soldiers, a Pack of Scoundrells they dared not come out and fight them. About 20 minutes after, I heard some Guns go off, and the Drum beat to arms. I told Lt. Dixon it was necessary for me to move off and join my own Regt. I dont remember saying, I thought it would come to that but it is very probable, I might, 187for I had seen great Confusion before. The same Evening 1/2 an Hour before, as I went up the street, a Barbers Boy, said there goes the fellow “that wont pay my Master for dressing his Hair.” I had conducted my self with that Propriety, that I thought I was the last Person to be insulted. But I found that any Man that wore the King's Commission was lyable to be insulted any Hour of the Night.7

B. Davis Jnr. 8 Mr. Gray who was shot came along and asked where the fire was? I was standing in Greens Lane. I told him it was the soldiers fighting. Damn it, says he I'm glad of it, i'le knock some of them in the Head. He was running away. Says I take Care you dont get kill'd. Never fear says he. Damn their bloods. He had a Stick under his Arm, what sort of a stick I cant say. It was but a little before.9

James Thompson. At 9 o Clock, I passed up thro King's street. No Person there the sentry a lone, in Greens Lane, I and another Person met about 15 Persons, with sticks in their Hands. As they passed Us, I heard some of em say we are rather too soon. I went a Number of I went on board a Vessell, att Griffins Wharfe, and said to the People, I am afraid there will be mischief, to night, for I met a Number of People and they seemd to hint, that they were about something. Soon after the Bells rung. About 4 People aboard, who left me and went off. I heard a Woman say at a distance it is no fire, good God there will be murder committed this Night. Heard huzzaing and heard 7 Guns I think.10

Alexander Crookshanks. In royal exchange Lane, I spent the Evening. At 9, I came away, and stopped by Mr. Sterns House.11 I Saw 2 Boys go to a Number of People before the sentry Box about 12 or 14, and come back to the sentry with a fresh Repetition of oaths. Damn you, you lobster son of a Bitch and dared him to come and fight em, and wished him in Hells flames often and often. A lousy Rascall and dared him to come out. I heard the sentry say that was his Post, and he would maintain it, and damn them if they offered to molest them i.e.him he would run them thro. They made up some snow Balls and threw at the sentinell. Cant say whether they hit. Upon that the sentinell call'd out Guard 2 or 3 times, very loud. 7 or 8 soldiers upon that came from towards the main Guard, but were not upon Guard by their Having short Coats. Some had Bayonetts, Swords or sticks and one a Kitchen Tongues in his Hand. Upon their approach to the sentry, the two Boys, and the 12 or 14 Lads run up to the back of the Town 190 House by the Barbers Shops and the soldiers after them. I crossed over to go to pudding Lane, and 3 or 4 of the Soldiers that follerd the soldiers up by the Town House came up to me and damnd me, who I was. I Said, I was going home, that I did not interfere, between the Sentry and the Boys. One of em gave me a light touch over the Shoulder, and Said, by all I can learn there will be the devil to pay between the Towns People and the Soldiers, or blood shed. They then turnd, and went towards the Sentry Box at the Custom House. I then went past the Guard House, and saw the Soldiers, that went to the sentry, returning by the Watch House and come up by the main Guard, driving or chasing the People before them. I made for Jones's Shop. 16 or 18 People, Men and Boys, running before the Soldiers. At Jones's they shut the Door upon me. At the Brick meeting there was 2 or 3 Lads, trying to open the Windows, in order to ring the Bell. Before I got to Dr. Sewalls Meeting, the Bells began to ring there. The Blow that was given me by the Bayonet was a light Tap, not in Anger.12

Lt. Wm. Carter. 13 Was sitting playing Cards with the family. The Bell rung. We went to different Parts of the House to look for fire. They said there was a Riot in the street. I saw many People passing by, very fast, with an Air of Enterprice in their manner, and with a Clubb a sword or a Cutlace. I heard a Drum, which I took to be the Drum of the main Guard, but afterwards heard a peculiarity, in the Beat. This was after the firing. The People passed by, armed before the firing. 14

Patrick Keeton. The 5th March. At the Mill Creek. A Noise in the Street. I went towards Union street, and saw a Number of People and followed them up with sticks and Clubbs, to Dock Square. Somebody said, a Boy and Soldier had been fowl of each other and the People soon after said cryd Kings Street. I was at the Crookd Lane, and saw the Mollatto Man that was killed had 2 Cordwood sticks that he took 192 out of the Wood pile. I i.e. He gave me one. Dressed Sailor like. The stick about 4 foot long not very long. The Molatto went up crooked Lane with me into Ks. street. People coming from all Parts hollowing and crying out bloody backs &c. In about 10 Minutes, some Guns went off. I heard the soldiers cry keep off, keep off. The People surrounded15

On the evening of the 5th of March I was at my lodgings, I heard a noise, and went out towards Union-street, and saw people coming from the North-end, with sticks and clubs in their hands; it was about nine o'clock. I followed them to Dock-square, somebody asked what was the matter, he was answered, that a boy and soldier had been foul of one another; they hallowed King-street; I went up to the foot of Jenkin's lane, and there I saw a tall Molatto fellow, the same that was killed, he had two clubs in his hand, and he said, here take one of them, I did so.

Q. What sort of clubs were they?

A. They were cord wood sticks; I went up to the head of the lane, and I dropt the stick in the snow; he went on cursing and swearing at the soldiers, down towards where the people surrounded the soldiers; I stood by the stone steps at the Custom-house, there were people coming from all parts, calling out bloody back, and one thing and another; I could not distinguish what one half of them said; I had not been long there 'till three or four guns went off, and I went home.

Q. Did you see any thing thrown at the soldiers?   A. No.

Q. Did you see any body strike upon their guns?

A. No, but I heard the soldiers say keep off, keep off.

Q. What number of people was there in Dock square?

A. About two hundred.

Q. Did you hear any body say kill them, kill them, knock the mover?   A. No.

Q. Did the people appear to be pressing on the party?

A. Yes, they were as I thought.

Monday evening the 5th of March, about eight o'clock, I was going towards the North-end in Fore-street, near Wentworth's wharff, I saw a number of people in the street before me.

Q. What number?

A. About two hundred, I then stept aside, and when they came up, I saw several armed with clubs, and large sticks, and some had guns; they came down regularly in two's and three's a breast; they were a minute in passing me.

Q. Were they soldiers that had guns?

A. No, I saw no soldier in the street; I heard them saying damn the dogs knock them down, we will knock down the first officer, or bloody backed rascal we shall meet this night; some of them then said they would go to the southward, and join some of their friends there, and attack the damned scoundrels, and drive them out of the town, for they had no business here. Apprehending danger if I should be in my regimentals, I went into a house at the North end and changed my dress, and in my return from the North-end, about nine, coming near Dock square, I heard a great noise a whistling and rattling of wood; I came near the Market place, and saw a great number of people there, knocking against the posts, and tearing up the stalls, saying damn the lobsters, where are they now; I heard several voices, some said let us kill that damned scoundrel of a Sentry, and then attack the Main guard; some said, let us go to Smith's barracks, others said let us go to the rope-walks; they divided: The largest number went up Royal-exchange-lane, and another party up Fitch's alley, and the rest through the main street, up Cornhill. I passed by the Golden-Ball, I saw no person there but a woman, persuading a man to stay at home; he said he would not, he would go amongst them, if he lost his life by it. I went into King-street, looking towards the Custom-house, I saw a number of people seemingly in great commotion; I went towards my barracks, and near the fish stall at Oliver's dock, I met a great number of people coming towards King-street, with clubs and large sticks.

Q. What time was this?

A. It was past nine, for I heard bells ring before. One of them was loading his piece by Oliver's dock, he said he would do for some of these scoundrels that night. The people were using threats against the soldiers and Commissioners, damn the scoundrels and villains of soldiers and Commissioners, and damn the villain that first sent them to Boston, they shall not be here two nights longer. I went to my barracks; the roll had been called, and there was not a man absent, except 194some officers that quartered in the town, and their servants. Immediately after I heard as it were a gun fired in King-street, and afterwards two or three more.

On the evening of the 5th March, betwixt nine and ten o'clock, I was at my own house and heard the bells ring, I run out to know where the fire was: I got from Byles's meeting down to the South meeting; I saw a number of men and boys armed with clubs, and fifteen or twenty more coming along, some were damning the soldiers that they would destroy them, and sink them, and they would have revenge for something or other I could not tell what, that they would drive them before them: some of the people there said they had been to Rowe's barracks, and had driven the soldiers or the Sentinel into the barracks. I went to the Town-house, there I saw Mr. Cox; I saw a number of people with clubs; I saw at a distance, a parcel of soldiers at the Custom house; I went down to the right of them, where Capt. Preston stood; I had not been there a minute before the guns were fired, previous to which, I saw several things but dont know what they were, thrown at the soldiers, as they stood in a circle by the Custom house. I was at the west of the soldiers; I was looking over the Molatto's shoulder: I saw Samuel Gray there. Upon these things being thrown, I intended to retreat as fast as I could; I had not got three yards before the guns were fired, first one, then another, and so on, I think there were seven in all.

Q. Before you turned, did you see any thing strike the guns?

A. I did not see, but I heard something strike, and the guns clatter. There was a great noise, the cry was, fire, damn you fire.

Q. Was the cry general?   A. Yes, it was general.

Q. How many people do you imagine were then gathered round the party?   A. Fifty or sixty able bodied men.

Q. Did they crowd near the soldiers?

A. So near, that I think you could not get your hat betwixt them and the bayonets.

Q. How many people do you think there might be in the whole?

A. About two hundred.

Q. Did the soldiers say any thing to the people?

A. They never opened their lips; they stood in a trembling manner, as if they expected nothing but death. They fired first on the right. I was looking on the whole body, no one between me and the soldiers that interrupted my sight; I saw no blows given, or any of the soldiers fall.

Q. Might not their trembling proceed from rage as well as fear?

A. It might proceed from both.

Note. This witness was called on the part of the Crown, to invalidate the testimony of Russel the former witness.

Q. Did you come down from the South end with Mr. Russel?

A. No, I met him at the Town-house. I saw three soldiers, two belonging to the Neck, 2 and one to the Main Guard, by Liberty-tree, I was at Mr. Gore's shop opposite the Tree; one said to the other, bring half your guard, and we will bring half ours, and we will blow up this damned pole; I said, so sure as you offer ye scoundrels to blow up that pole, you will have your brains blown out.

Q. How were these soldiers dressed?

A. In their regimentals, one was a drummer.

Q. Was he a black man?   A. No, he was a white man.3

I was at the North-end, and heard the bells ring, I thought it was fire; I came up as usual to go to the fire; I heard it was not fire, but the soldiers and inhabitants were fighting; I came by Cornhill, and there were a number of people an hundred and fifty, or two hundred; I asked them what was the matter, they said a number of soldiers had been out with bayonets and cutlasses, and had attacked and cut the people all down Cornhill, and then retreated to their barracks; a fellow said they had been cutting fore and aft. The people fell gradually down to Dock-square. I came up Cornhill, and went down King-street, I saw the Sentinel at the Custom-house steps loading his piece; coming up to the people, they said the Sentinel was going to fire.

Q. How many persons were there at that time round the Sentinel?

A. About fifteen or twenty, he was waving his piece about, and held it in the position that they call charged bayonets. I told him if he fired he must die for it, he said damn them, if they molested him he would fire; the boys were hallowing fire and be damned.

Q. How old were these boys?

A. Seventeen or eighteen years old. I endeavoured to keep one fellow off from the Sentinel, I either struck him or pushed him away.

Q. Did you hear one of the persons say, God damn him, we will knock him down for snapping?

A. Yes, I did hear a young fellow, one Usher, about eighteen years of age say this.

Q. Did you see any thing thrown at the Sentinel?

A. No, nothing at all.

Q. Did you see the party come down?   A. Yes.

Q. What was the manner of their coming down?

A. They came down in a kind of a trot, or a very fast walk.

Q. Did they come down in a threatening posture?

A. Very threatening, at least their countenances looked so, they said make way, damn you make way, and they pricked some of the people.

Q. Did you see the Corporal?

A. I saw a person with the party, whom I took to be the Corporal.

Q. Had he a surtout on?   A. Yes, he had.

Hearing the bells ring I went out, and imagined it had been for fire, but found I was mistaken. I went to Mr. Quincy's, office near the Main Guard, there was a prodigious noise in King-street. I apprehended the Sentinel was in danger, and stood in expectation of seeing the guard turned out. Capt. Preston was before the office, and appeared in a great flutter of spirit. I knew not he was Captain of the day. A very young officer commanded the guard, I pitied his situation.4

Q. What induced you to believe the guard would be turned out?

A. By the Sentinel's being surrounded, and the noise.

Q. What number was about him?

A. About fifty or sixty.

Q. Did you stand in the shade, or was the shade on the other side of the way?

A. I did stand in the shade. A person came to Capt. Preston and said they were killing the Sentinel; Capt. Preston said damn you why do you not turn out; he spoke roughly to them, then some soldiers came out, and he and they went down to the Custom-house.

Q. Do you know who it was came up to Capt. Preston?   A. No.

Q. Did you expect they would carry off the Sentinel?

A. I did not know what would be the consequence, I thought if he came off with his life he would do very well.

On the 5th of March there were four of us in a house together, I heard that there was fire; I went to Dock-square, when I came there I

heard some in the crowd say, that the towns people had been fighting with the soldiers, and then they huzzaed for King-street.

Q. How many people were there in Dock-square at that time?

A. Between fifty and sixty. I went up Royal-exchange-lane and came to the Custom house.

Q. Did you go alone?

A. No, several went up beside me, they went up as thick as they could, and some went up the next lane, and some went up Cornhill. As I stood by the Sentinel, there was a barber's boy came up and pointed to the Sentinel, and said there is the son of a bitch that knocked me down; on his saying this, the people immediately cried out kill him, kill him, knock him down.

Q. What number of people was there then?

A. I cannot tell, I believe there were as many as in this Court, some boys, some men; the Sentinel went up the Custom house steps and knocked at the door with the butt of his gun, but could not get in; then he primed and loaded, and levelled it with his hip, and desired the people to stand off, and then called to the Main-Guard to come down to his assistance.

Q. Did he call loud?   A. Yes, pretty loud.

Q. What was the expression he used?

A. Turn out Main Guard. Then Capt. Preston and nine or ten soldiers came down, and ranged themselves before the Sentry-box.

Q. Had these people that stood round the Sentinel clubs or sticks?

A. I saw no clubs, some had sticks, such as people generally walk with.

Q. Did you see any thing thrown at the Sentinel?   A. No.

Q. Did you hear the people hallow or shout?

A. They whistled with their fingers and huzzaed.

Q. Did you meet some boys that evening, who said they had drove some soldiers to their barracks?

A. In Dock-square some people said so, and huzzaed for King-street. I went up there, and saw a barber's boy, who said this is the son of a bitch that knocked me down; the people crowded in upon the Sentinel, and he drew back to the Custom house steps.

Q. Did you see any thing thrown at the Sentinel.

A. No, he knocked at the Custom house door with the butt end of his gun, as I thought to get in, and then I saw him prime and load his piece, and level it with his hip.

Q. Were they pressing on him?

A. Yes they were, they said fire, damn you fire, you dare not fire.

Q. How many people were there?

A. About fifty or sixty young men and boys.

Q. How old were these young men?

A. About twenty or twenty-two.

Q. What do you call boys?   A. Such as myself, about eighteen.

I was at the Market and went up Royal exchange lane, I saw no soldier but one, and he was the Sentinel, he got on the steps and loaded, by and by I saw a party come down from the Main-guard, and all that stood round cried fire! fire! By and by they did fire, as soon as I saw a man drop, I went away.

Q. Did you see any ice thrown at the soldiers?

A. I saw snow balls, but no ice.

Q. Did you see any thing strike upon their guns?   A. No.

Q. Did you hear their guns rattle?

A. No, I saw snow balls thrown both at the Sentinel and at the party.

Q. Did you see any clubs thrown?   A. No.

Q. What number of people were there about the Sentinel?

A. Near two hundred boys and men.

Q. Was the Custom-House door opened?

A. Not that I minded, they hollowed fire! fire! you dogs.

Q. Was any considerable number of snow balls thrown at the Sentinel?   A. A dozen before the party came down.

Q. And when they came down, did they throw?

A. Yes, as fast as ever.

Q. Did you hear any huzzaing?   A. Not in particular.

On the 5th March I was in King-street at the Main-Guard, I saw the soldiers going down to the Custom house, I saw the soldiers very much molested by the people of the town throwing snow balls, sticks, and more rubbish than I can mention, I saw also the Sentinel molested at the Custom-house door; when the party came down, he fell in amongst the rest of the soldiers; I saw a soldier knocked down, but who he was I cannot tell.

Q. Where did you stand?

A. Betwixt the soldiers and the Sentry-box.

Q. Do you know who knocked the soldier down?

A. No, I do not, I am not certain whether it was a stick that struck him down, or a brick-bat.

Q. Did his firelock fly out of his hand?

A. Yes, the firelock flew out of his hand, and he took it up again and fired, and I think he was the first that fired.

Q. Which way did the stick or brick batt come that knocked him down?

A. It came as if thrown from towards the Town-house.

Q. How near did the people stand to the soldiers, when the first gun was fired?

A. The nighest might be about ten or a dozen yards from the soldiers.

Q. When you stood there, did you see any one strike at any soldier with a stick in his hand?   A. No.

Q. Did you see any of the prisoners there that night?

A. Yes, I saw Hartegan, I was acquainted with him in Halifax, and I kept my eye upon him more than upon any of the rest.

Q. Whereabout did he stand?

A. I came up the Royal-exchange-lane, and he was then the nearest man to me.

Q. How many guns did you hear fired?

A. I believe about seven.

On the evening of the 5th March I was in Milk-street, I heard the bells ring, and ran down to the Town-house, I saw diverse of the inhabitants there, I enquired the reason of the bells ringing? A young man told me, a rascally soldier had struck one of the inhabitants with a cutlass, I replied, where is the damned villain gone? He gave me no answer, presently they turned round and gave two or three cheers.

Q. How many people were there?

A. About thirty or forty: They went to the alley leading to Murray's barracks, some were for going down the alley, some were not, I staid at the head of the alley, presently they went to the bottom of Royal-exchange-lane, and huzzaed and went up the lane, I myself went up the main-street, the bell at this time had stopped; as I got to the Town house, they had all got into King-street, I went down to see what they would do, there were several gentlemen persuading them to go off, and I believe they would all have gone in a few minutes, had not the soldiers come. I saw them throwing oyster shells and snowballs at the Sentry at the Custom house door, he was on the steps.

Q. Are you sure you saw them throw oyster-shells at him?

A. Yes.

Q. One or two, or a number?   A. I think two or three.

Q. Did they hit him?

A. I do not think they did. Some were hollowing out, let us burn the Sentry box, let us heave it over-board, but they did neither; I stood then opposite the Custom-House door, presently I saw a party of soldiers come down, who placed themselves before the Custom House.

Q. Before the party came down, did you hear any person say, kill him?

A. No, I observed Capt. Preston standing by the Sentry-box, I saw him talking with a man, I do not know who he was, I went to hear what they said, but I could not; in the space of two or three minutes, I heard a stick, club, or something else strike a soldier's gun, immediately the gun went off, and then I run.

Q. Did you hear any thing rattle on the pavements?

A. Yes, I heard a bayonet, or something like it, rattle on the pavements.

Q. How many people were there, when the soldiers came down?

A. I believe sixty or seventy.

Q. Where did you stand?

A. I stood at the head of Royal-exchange-lane, about three yards and a half from the Sentry box.

Q. Could you see all the soldiers?

A. No: just before they fired, I heard the people say, Damn you fire, you bloody backs.

Q. Did you hear the expressions, Rush on, knock them over, knock them over?   A. No.

Q. How long was you there?

A. About seven or eight minutes.

As I went home that evening, I met a number of boys with clubs, they went so for several months before, they chused to do so, because they had been so often knocked down by the soldiers, some said the soldiers were going to fight with the people.

Q. What number did you meet?

A. They were in two's or three's, three's or four's in a bunch, in the whole there might be about twenty.

Q. What time of night was that?   A. About eight o'clock.

When the bells rung I was at my own house, I run to the door and heard the cry of fire, I put on my shoes, and went out, and met two or three men, asked where the fire was; they said it was something better than fire. I met some with clubs, some with buckets and bags, and some running before me with sticks in their hands; I went to the Town-house, looked down the street, and saw the soldiers come out with their guns and bayonets fixed: I saw Capt. Preston with them; there were a number of people by the west door of the Town-house, they said lets go and attack the Main Guard, some said for God's sake do not meddle with them; they said by God we will go, others again said do not go. After a while they huzzaed and went down King-street; there was a number of people came down Prison-lane, and some from the Post-office; they went down to the Custom house, and I went down. The soldiers were all placed round in a circle with their guns breast high. I stood on the right wing, when the Captain came the people crouded in to him to speak to him, and I went behind them, I went next to the Custom-house door, there were people all round the soldiers.

Q. How near were the people to the soldiers?

A. About three or four feet from the point of their bayonets, the thickest part was by Capt. Preston. When I got to the corner I saw people with sticks striking on their guns at the right wing. I apprehended danger and that the guns might go off accidentally. I went to get to the upper end towards the Town house, I had not got to the center of the party, before the guns went off; as they went off I run, and did not stop till I got to the upper end of the Town-house.

Q. How many did you see strike upon their guns?

A. I cannot tell how many of them did it.

Q. Did you hear at that time they were striking, the cry of fire, fire?

A. Yes, they said fire, fire damn you fire, fire you lobsters, fire, you dare not fire.

Q. Did you see any thing thrown at the soldiers?

A. Nothing but snow balls, flung by some youngsters.

Just after the bell rung nine, hearing the bell ring again, I went out thinking it was fire; I saw numbers of people running from the South-end some had buckets, the principal number had clubs in their hands. 202I asked where is the fire, I received for answer, at the Rope-walks and in King street. Numbers were coming with buckets, and the rest said Damn your bloods do not bring buckets, bring clubs.

Q. Was this before the firing?   A. Yes.

On the evening of the 5th of March I was at home, I heard the bells ring, and went to the gate; I said there a little and saw Mr. Lovell coming back with his buckets, I asked him where was the fire, he said it was not fire; after that I went into the street, and saw one of my acquaintances and we run down to the end of the lane and saw another acquaintance coming up, holding his arm; I asked him what's the matter, he said the soldiers were fighting, had got cutlasses, and were killing every body, and that one of them had struck him on the arm, and almost cut it off; he told me I had best not go down; I said a good club was better than a cutlass, and he had better go down and see if he could not cut some too. I went to the Town-house, saw the Sentinels placed at the Main-Guard standing by Mr. Bowes's corner; numbers of boys on the other side of the way were throwing snow balls at them; the Sentinels were enraged and swearing at the boys; the boys called them lobsters, bloody backs, and hallowed who buys lobsters; one of my acquaintance came and told me that the soldiers had been fighting, and the people had drove them to Murray's barracks; I saw a number of people coming from Murray's barracks who went down by Jackson's corner into King-street; presently I heard three cheers given in King-street, I said we had better go down and see what's the matter; we went down to the Whipping post and stood by Waldo's shop, I saw a number of people round the Sentinel at the Custom house, there were also a number of people who stood where I did, and were picking up pieces of sea coal that had been thrown out thereabout, and snow balls, and throwing them over at the Sentinel. While I was standing there, there were two or three boys run out from among the people, and cried we have got his gun away, and now we will have him; presently I heard three cheers given by the people at the Custom house; I said to my acquaintance I would run up and see whether the guard would turn out. I passed round the Guard house, and went as far as the west door of the Town-house. While I stood there one of my acquaintance said he would go round the corner of the Town-house, and see if the guard had turned out; he went to the corner and called me, and told me the guard was come out. I went and looked down the street, I saw a file of men, with an officer with a laced 203hat on before them; upon that we all went to go towards him, and when we had got about half way to them, the officer said something to them, and they filed off down the street; upon that I went in the shade towards the Guard-house, and followed them down as far as Mr. Peck's corner; I saw them pass through the croud, and plant themselves by the Custom house. As soon as they got there the people gave three cheers. I went to cross over to where the soldiers were, and as soon as I got a glimpse of them, I heard somebody huzza and say here is Old Murray with the riot-act, and they began to pelt snow balls; a man set out and run, and I followed him as far as Philips's corner, and I do not know where he went. I turned back and went through the people until I got to the head of Royal-exchange lane, right against the soldiers; the first word I heard was a Grenadier say to a man by me, Damn you stand back.

Q. How near was he to him?

A. He was so near that the Grenadier might have run him through if he had stept one step forward. While I stopt to look at him, a person came to get through betwixt the Grenadier and me, and the soldier had like to have pricked him; he turned about and said, You damn'd lobster, bloody back, are you going to stab me, the soldier said by God will I; presently somebody took hold of me by the shoulder, and told me to go home, or I should be hurt; at the same time there were a number of people towards the Town house, who said, come away and let the guard alone, you have nothing at all to do with them. I turned about and saw the officer standing before the men, and one or two persons engaged in talk with him. A number were jumping on the backs of those that were talking with the officer, to get as near as they could.

Q. Did you hear what they said?

A. No. Upon this I went to go as close to the officer as I could; one of the persons who was talking with the officer turned about quick to the people, and said, Damn him he is going to fire; upon that they gave a shout, and cryed out Fire and be damn'd, who cares, damn you, you dare not fire, and began to throw snow balls, and other things, which then flew pretty thick.

Q. Did they hit any of them?

A. Yes, I saw two or three of them hit, one struck a Grenadier on the hat, and the people who were right before them had sticks; and as the soldiers were pushing with their guns back and forth, they struck their guns, and one hit a Grenadier on the fingers. At this time, the people up at the Town house called again come away, come way; a 204stout man who stood near me, and right before the Grenadiers, as they pushed with their bayonets the length of their arms, kept striking on their guns. The people seemed to be leaving the soldiers, and to turn from them, when there came down a number from Jackson's corner, huzzaing and crying, Damn them they dare not fire, we are not afraid of them; one of these people, a stout man with a long cord wood stick, threw himself in, and made a blow at the officer; I saw the officer try to fend off the stroke, whether he struck him or not I do not know: the stout man then turned round, and struck the Grenadier's gun at the Captains right hand, and immediately fell in with his club, and knocked his gun away, and struck him over the head, the blow came either on the soldiers cheek or hat. This stout man held the bayonet with his left hand, and twitched it and cried kill the dogs, knock them over; this was the general cry; the people then crouded in, and upon that the Grenadier gave a twitch back and relieved his gun, and he up with it and began to pay away on the people. I was then betwixt the officer and this grenadier, I turned to go off, when I had got away about the length of a gun, I turned to look towards the officer; and I heard the word fire; at the word fire I thought I heard the report of a gun, and upon my hearing the report, I saw the same grenadier swing his gun, and immediately he discharged it.

Q. Do you know who this stout man was, that fell in and struck the grenadier?

A. I thought, and still think it was the Molatto who was shot.

Q. Do you know the grenadier who was thus assaulted and fired?

A. I then thought it was Killroy, and I told Mr. Quincy 6 so the next morning after the affair happened, I now think it was he from my best observation, but I can't positively swear it.

Q. Did the soldiers of that party, or any of them, step or move out of the rank in which they stood to push the people?

A. No, and if they had they might have killed me and many others with their bayonets.

Q. Did you, as you passed through the people towards Royal-exchange lane and the party, see a number of people take up any and every thing they could find in the street, and throw them at the soldiers?

A. Yes, I saw ten or fifteen round me do it.

Q. Did you yourself pick up every thing you could find, and throw at them?   A. Yes I did.

Q. After the gun fired, where did you go?

A. I run as fast as I could into the first door I saw open, which I think was Mr. Dehones, I was very much frightened.

Q. Is the witness last examined your servant?   A. Yes.

Q. How long has he lived in your family?

A. Above ten years.

Q. What is his general character for truth?

A. It is good, I have heard his testimony and believe it to be true, he gave the same relation of this matter to me on the same evening, in a quarter of an hour after the affair happened; and I then asked him whether our people were to blame, he said they were.

Q. Can Andrew read and write?

A. Yes, very well, he has been well educated.

Q. Pray Sir, is it not usual for Andrew to amplify and embellish a story?

A. He is fellow of a lively imagination, and will sometimes amuse the servants in the kitchen, but I never knew him to tell a serious lye.

FIVE o'Clock, p.m. the Court adjourned till next morning, Saturday  1 December, nine o'Clock.

Saturday, NINE o'Clock, the Court met according to adjournment, and proceeded.

I was in King-street a quarter after nine o'clock on the 5th of March, and two others with me, I crossed King-street at Oliver's-Dock, and I met a few people, but did not mind them, and the people with me did not; in a little time I heard the bells ring, and I made a stop and asked what was the matter? They said fire, I saw several people with buckets, &c. and I asked them where they were going? They said there is fire somewhere. I came up by Pudding-lane, and went in betwixt the guard and Guard-House, for at this time the Main-Guard was turned out, I saw Mr. Basset the officer, and Capt. Preston, while I was standing there, some person in the croud fronting the soldiers, cried out to the guard, will you stand there and see the Sentinel murdered at the Custom house? Capt. Preston and Mr. Basset were both together, Mr. Basset said to Capt. Preston, what shall I do in this case? Said Preston, take out six or seven of the men, and let them go down to the assistance of the Sentry; I think there were six men ordered out of the 206ranks, they formed themselves by files, the Corporal marched in the front, and the Captain in the rear, I was at this time on the outside of the soldiers on the left hand, and I kept on the outside from the time they marched from the parade till they came to the Custom-house, but how they formed themselves when they came there I did not see, but when I saw them they were formed in a half circle, I was about two or three yards distance from them, I heard Capt. Preston use many intreaties to the populace, begging they would disperse and go home, but what they said I cannot tell; but I heard them hollow, damn you fire! You dare not fire, we know you dare not fire; Capt. Preston desired them to go home many times; I departed and saw no more of them, and went to Wheelwright's wharf.

On the evening of the 5th March I heard the bells ring, I was in Mr. Hall's house, I went out in order to see where the fire was, I heard the drum beat, I went to the shop and got a stick, and went down to the Conduit, I saw thirty or forty people with sticks in their hands.

Q. Were they walking sticks?

A. Some were short clubs, some were walking sticks. Then they hollowed, King-street forever, and huzzaed, some went up Royal-exchange-lane, I went with a number up Jenkin's-alley, I went towards the Sentinel, he was walking backwards and forwards with his firelock on his shoulder; some of the people said, kill him; I had not been there long, before the party came down, and then a good many more people gathered round before the Sentinel-box, some from Quaker-lane, some from the Town-house, and some from the bottom of King-street, some with sticks, some without, they came close to the Sentinel, the bells were ringing, I had not been there long before they loaded, I was close to them when they loaded.

Q. Who gave orders to load?

A. I did not hear, there was such huzzaing, hollowing and whistling, that I could not hear, they had their bayonets about breast high, shoving and pricking with their bayonets to make the way clear, then the people hollowed fire! why do you not fire? Damn you fire! you bloody backs.

Q. Did they tell the people to keep off?   A. Yes.

Q. And did the people go back when desired?

A. No, they pressed more upon them, while the people were thus pressing on the party, they fired, I did not hear any orders given.

Q. How near did you stand to the soldiers?

A. I fell back to the middle of the street when the first gun was fired.

Q. To which wing did you fall?

A. To the center, I was right facing them.

Q. How many guns were fired?

A. I think six or seven, I did not count them.

Q. Did you see the people come close up to the soldiers, and strike on their guns?

A. No, they held their sticks up over their heads, flourishing and brandishing them, saying, damn you fire? you dare not fire.

Q. Did you see any sticks thrown?

A. No, nor any thing else, Samuel Gray who was shot that night, clapped me on the shoulder, and said, do not run my lad, they dare not fire, and he ran back and forth among the people and clapped others also on the back as he did me.

Q. Had he any thing in his hand?

A. I think he had not; I looked to my left soon after the guns were fired, and saw him upon the ground, and with the help of some others, carried him to Dr. Loring's shop, but could not get in, and left him there.

Q. Do you know Langford in this town?   A. No.

Q. Did you see any body go up to Gray, and thrust at him with a bayonet?   A. No I did not see it.

Q. How near did he fall to the soldiers?

A. He was in the middle of the street.

Q. Did you see any of the soldiers move out of the ranks?

A. No.

Q. How near was you to Gray?

A. About three or four yards distance.

That evening upon returning home, I saw a number of people round the Sentinel, making use of opprobrious language and threatnings, I desired them to go off, and said the consequence would be fatal if they did not; some few snow balls were thrown, and abusive language continued, they said damn him, let him fire, he can fire but one gun.

Q. Were they men or boys?

A. They were a mixture, about eighteen or nineteen years old, and some men.

Q. How many were there of them?

A. There might be from seventy to an hundred, I did not par-208ticularly observe; when I could not prevail to take them off, I went to Mr. Pain's,7 in a little while the party came down, I saw nothing afterwards; soon after I heard the guns fired, and Mr. Pain was wounded with one of them.

Q. Did the Sentinel call out for the guard?

A. I did not hear him, he retreated to the steps of the Customhouse.

Q. Was you standing at Mr. Pain's door when the guns were fired?

A. I was, but was not looking that way, nor did I observe when the party came down; I told the people, the Sentinel was on duty, that was his post, and that he had a right to walk there, and that he could have enough to relieve him, if he stood in need of it, as he was so near the Main Guard.

I know nothing worth the telling; I was not in King-street, I heard there was no fire, but I heard the soldiers were fighting. I went to Dock square, and saw a number of people there, I came up Royal-exchange-lane, and saw the firing, but was not near enough to see any thing the people did.

That evening I was at home; and heard the bells ring, I went into the street and asked the occasion, I was told it was not fire, but the soldiers fighting with the inhabitants; I went into the house and could find no stick, but I cut the handle of my mother's broom off, with this I came to King-street, but there were no soldiers; some people were coming from Royal-exchange lane, some from the Town-house, some said, damn it, they are only making fools of us, it is best to go home: I went to the head of Royal exchange-lane, and saw a cluster of people there, and I saw a boy who said that the Sentry had knocked him down with the butt-end of his gun; I saw the Sentry on the steps, and the people after he loaded, said, fire! Damn you fire! Presently after the party came down, I stood close to them, they were swinging their bayonets, telling the people to make way, I saw a man talking with Capt. Preston, I went to hear what he said, I could not hear, the grenadier on the right was struck some where on his right side, but I do not know with what, but directly he fired.

Q. Was that the right hand man?   A. Yes.

Q. Was you close to the soldiers?

A. Yes, I was quite close to them.

Q. Did you see any snow balls thrown before this?

A. I think I saw two or three.

Betwixt eight and nine o'clock of the 5th March, I was in my house near Murray's barracks, the people were running backwards and forwards, and there was a great mob and riot by the barrack gate; I heard the people as they went along declare, if the soldiers did not come out and fight them, they would set fire to the four corners of the barracks, and burn every damned soul of them.

Q. Did you see the people?

A. I was standing at my own door, I saw them pass and repass me, but I knew none of them.

Q. Was there any disturbance before that?

A. Yes, there was a disturbance half an hour before that.

Q. What sort of a disturbance was it before?

A. I saw a good number of towns people had cutlasses, clubs, and swords, there was knocking down, riot and disturbance, and this declaration of theirs was after that, and before the bells rung.

Q. Was that said by one, two, or a number?

A. I cannot tell indeed how many said so.

Q. Did you at that time keep a victualling-house?

A. Yes, I did.

Q. Did the soldiers frequent your house?   A. Yes, they did.

On the evening of the 5th March, I was at Mr. Coleman's at the north side of the Market, I came from thence through the Market on the south side, I saw seven or eight people, the chief were boys, three or four of them were on the inside the rails, pulling the butchers stalls to pieces.

Q. How old did these boys appear?

A. About a dozen of years old, or smaller, some about eighteen, I went up to them and observed they were getting sticks; about half a minute after, came along a soldier, I took him to be an officer's servant, some said here is a damned soldier, and got foul of the man, and I got the soldier away from them, and he went off, and I went towards home round by the Golden-ball, and up into King-street; I met one Mr. 210 James Bayard he and I walked together, and I did not see a single soul in the street; we passed the Sentinel (I think that was he—pointing to White) it was cold under foot, and we stood upon Stone's steps; in a few minutes there were three or four boys round the Sentinel, they got foul of him: one of them said the Sentinel had struck him with his gun, and they kept pushing one another against him, and pushed him into the box; I said to Mr. Bayard there will be trouble by and bye. About two minutes after there came a parcel of boys and young fellows together, in number about fifteen or sixteen, the chief of them with sticks in their hands.

Q. What sort of sticks were they?

A. They looked like the sticks they took at the Market, like pieces of the stalls split. When they got to the head of the lane, there was a little talking and whistling amongst them, and they said lets go up to the Main guard, and they went up by the foot of the Town-House; about one minute after there were five or six boys made their appearance out of Royal-exchange-lane, from that I went to go up round Jackson's corner, when I came to the watch-house, I met a number of people coming round by Jackson's corner.

Q. How many people?   A. Twenty or thirty.

Q. Had they sticks?

A. Some had sticks, some had none, some had short sticks, some had walking canes.

Q. What sized people were these?

A. They were a mixture of men and boys running together; I asked them what had been the matter, they said there had been a squabble by Murray's barracks, and they had drove the soldiers in; they said it was all over; then I left Mr. Bayard and they all came down into King-street, and betwixt Quaker-lane and Royal-exchange-lane they made a stop, and met in a cluster, and not long afterwards dispersed; I did not leave above twelve or fifteen in King-street, when I came out of it. I went down Quaker-lane, and a number that lived that way went down with me; as I got home and lifted the latch of the door I heard some bell ring, and I heard a gun and then another, I heard them all fired, I came back as far as the bottom of the lane and no farther.

Q. What said the boys in the Market to the soldier who passed by?

A. They said here is a damned soldier, some said they are all a like, this is as bad as any of them. I believe they would have beat him if I had not rescued him; he was passing quietly along.

On the evening of the 5th of March, I passed my time at the Bunch of Grapes in King-street, in company with three gentlemen of the town; betwixt the hours of nine and ten we were alarmed with the bells, and a cry of fire, they said to me come Gridley we had better go and enquire where the fire is, I said I had rather sit where I was, there might be some disturbance, and I did not want to be in it; however, I agreed, and we went. I saw Mr. Davis particularly, he said to me what do you make of this, I told him I believed there was no fire, but rather a tumult. I said to Mr. Davis I will go up the street and see what the matter is, and return again and let him and the rest that were on the steps of the door know what the matter was. I went up the street into the middle of it, and I stopt just before the Sentinel placed at the Custom House, there were a large number of boys, and some men amongst them, about ten young men, the boys were in the front, and the men in the rear; I believe about twenty five, boys men and all.

Q. How big were these boys?

A. Little trifling boys. The Sentinel had his gun and bayonet charged, levelled with his hip. I went from thence up to the south end of the Town-house opposite to the Main-Guard.

Q. Was the Sentinel at that time in the box or on the steps?

A. He was retreating towards the steps with his bayonet charged. I then found the Main guard to be in confusion. I went up to the head of the Town house, where were a number of gentlemen collected together, I asked them what was the matter, they told me that the soldiers had rushed from Murray's barracks, and had cut several of the inhabitants with their cutlasses; several people were running about the streets, and the cry was God damn the rascals. Some said this will never do, the readiest way to get rid of these people is to attack the Main guard. Strike at the root, there is the nest.

Q. Was this particularly spoken by one or two only?

A. No, it was general, they joined in with one another as they met. I went to the north-side of the Town house, with a view to return to the place from whence I came; I stopt at Mr. Kent's door, and while I was standing there, a party of the guard came down from the Main guard a cross King-street. I turned round and saw a non commissioned officer (as I took him to be by his appearance) leading the party, which I at first thought was to relieve the Sentinel at the Custom-House as usual, but perceiving this guard was going down to support the Sen- 212tinel, I thought it time to go where I came from, to tell the gentlemen what I had seen according to promise. I proceeded down street on the Custom-house side, on the flat stones; the soldiers were drawn up in two ranks front and rear, as I thought it, they had not had time to form as I came down; I walked betwixt the two ranks, they were then loading their pieces.

Q. Did you hear any orders given for loading?

A. No. Passing betwixt the ranks, their guns being on a loading position, I passed leisurly through, and they put their guns and bayonets up to let me go through. I returned to the Bunch of Grapes from whence I came, I saw Mr. Davis and the other gentlemen on the steps, Mr. Davis asked me to give an account of this matter, I told him I could give no account, except a general one, that the soldiers had come out of their barracks, and that they had been a quarreling, and the Sentinel had been interrupted in his duty. Mr. Davis asked me what was that collection of people before the Custom-House, who did they consist of; they are nothing said he, but a parcel of boys; I hastily replied, yes, Mother Tapley's boys.9

Q. What did you mean by that?

A. I meant boys as big as I am.

Q. When you passed betwixt the soldiers, was any thing thrown at them, or did any body strike them.

A. No, not that I saw. When I was at the Bunch of Grapes, I saw some snow balls thrown, some from the rear, some from the middle of the street, and some from Quaker-lane, all thrown towards the Custom house.

Q. Was there any noise just before the firing?

A. As I stood on the steps of the Bunch of Grapes tavern; the general noise and cry was why do you not fire, damn you, you dare not fire, fire and be damned. These words were spoke very loud, they might be heard to the Long wharff. The noise was very great indeed. There was about fifty before the soldiers, and about half the number before the Sentinel, before the party joined him.

Q. Did you know Patrick Carr, who was killed by the firing in King-Street on the 5th of March last?   A. Yes.

Q. Was he in your house that evening?   A. Yes.

Q. Did you hear any thing he said, when he was told there was an affray with the soldiers?

A. When the bells rung, he went up stairs and put his surtout on, and got a hanger and put it betwixt his coat and surtout; my husband coming at that time, gave him a push and felt the sword; he wanted to take it from him, but he was unwilling to let it go, my husband told him he should not take it with him. I do not know what he said, but one of the neighbours was in the house and coaxed the sword out of his hand, and he went out without it. He said on his death bed, he saw a parcel of boys and negroes throwing snow balls at the guard. He thought the first or second man from the Sentinel box was the man that shot him.

Q. Do you know Patrick Carr?

A. Yes. On the night of the 5th of March, when the bells rung he would go out; I persuaded him much to stay at home, he did not mind me but took his sword betwixt his coat and surtout. Mr. Field coming in felt it, and said he should not take it out with him; with much coaxing a woman who lived next door got it from him.

Q. Did you hear any acknowlegement by him on his death bed?

A. I was often at his bed side, and all that I ever heard him say, was, he thought he knew the man that shot him, but he never made it known to me.

Q. Was you Patrick Carr's surgeon?

A. I was, in company with others. I was called that evening about eleven o'clock to him, I was engaged with Mr. Paine and could not go; next morning I went; after dressing his wounds, I advised him never to go again into quarrels and riots: He said he was very sorry he did go. Dr. Lloyd who was present, turned round to me and said, Jeffries, I believe this man will be able to tell us how the affair was, we had better ask him: I asked him then how long he had been in King-street when they fired? He said he went from Mr. Field's when the bells rung, when he got to Walker's corner, he saw many persons coming from Cornhill, who he was told had been quarreling with the soldiers down there, that he went with them as far as the stocks, that he stopped 214there, but they passed on: While he was standing there he saw many things thrown at the Sentry. I asked him if he knew what was thrown? He said he heard the things strike against the guns, and they sounded hard, he believed they were oyster shells and ice; he heard the people huzza every time they heard any thing strike that sounded hard: that he then saw some soldiers going down towards the Custom-house, that he saw the people pelt them as they went along, after they had got down there, he crossed over towards Warden and Vernon's shop, in order to see what they would do, that as he was passing he was shot, that he was taken up and carried home to Mr. Field's 11 by some of his friends. I asked him whether he thought the soldiers would fire? He told me he thought the soldiers would have fired long before. I then asked him whether he thought the soldiers were abused a great deal, after they went down there? He said, he thought they were. I asked him whether he thought the soldiers would have been hurt, if they had not fired? He said he really thought they would, for he heard many voices cry out, kill them. I asked him then, meaning to close all, whether he thought they fired in self defence, or on purpose to destroy the people? He said, he really thought they did fire to defend themselves; that he did not blame the man whoever he was, that shot him. This conversation was on Wednesday  7 March, He always gave the same answers to the same questions, every time I visited him.

Q. Was he apprehensive of his danger?

A. He was told of it. He told me also, he was a native of Ireland, that he had frequently seen mobs, and soldiers called upon to quell them: whenever he mentioned that, he always called himself a fool, that he might have known better, that he had seen soldiers often fire on the people in Ireland, but had never seen them bear half so much before they fired in his life.

Q. How often did he repeat this conversation?

A. Almost every day I saw him, though he was more particular, the day but one after he was shot.

Q. How long did he live after he received his wound?

A. Ten days.

Q. When had you the last conversation with him?

A. About four o'clock in the afternoon, preceeding the night on which he died, and he then particularly said, he forgave the man whoever he was that shot him, he was satisfied he had no malice, but fired to defend himself.

Q. Did you yourself see any of the transactions at Murray's barracks on that evening?

A. On the evening of the 5th March, I was at my father's, opposite Mr. Cooper's meeting; about nine, one of the neighbours run in, (a woman) she said to my father, pray sir come out, there will be murder, the soldiers and people are fighting: I went directly towards Murray's barracks, before I got to them I found the passage way stopped up so that I could not pass; by a number of people of all sorts, I saw no soldiers just at that minute; I got upon Dr. Hyron's steps, I saw several soldiers towards Mr. Greenleaf's, I think there were three, one of them had a pair of tongs in his hand, another had a stick I think, he was the second, he that had the tongs was the first, behind them were several officers driving the soldiers towards the barrack gate, ordering them to go in, I saw them strike them, they turned them into the gate, they then shut the barrack gate intirely, I think the officers did that themselves; as they were putting them in, there were a great many snow balls thrown at them, they were called cowards, cowardly rascals, and that they were afraid to fight.

Q. What number of people do you think were there?

A. There were as many as could stand betwixt the steps and the side of the way; I took the alley to be as full as it could be, for others were pressing to get into that street and could not; I judge not less than seventy or eighty could fill that space of ground: the officers told the people not a soldier should come out, at that time I saw a gentleman speak to some of the officers, who I then took to be Mr. Palmes, I asked the person next me if he knew the names of either of the officers? He pointed to one, and said that was Capt. Goldfinch; while the gentleman was talking with Capt. Goldfinch (it was some time, about seven or eight minutes I stood on the same spot) there was a great deal of abusive language given to them, they were repeatedly called lobsters; they promised the gentleman who was speaking to them, that if any body had been injured, enquiry should be made next day, and the persons should be punished, I heard this repeated four or five different times, they spoke also to the people in general; while they were talking I saw snow balls thrown at the officers, which struck the door before which they stood; they begged the people would go away; they said they would not; the officers said, they had done all they could, they had turned the soldiers in and shut the gate, that no soldiers should come out that evening; some body replied, you mean they dare not come out, you dare not let them out; many persons cried let us go home, others said no, we shall find some soldiers in King street, a 216number of them then passed up the alley, as they went up they huzzaed and made a noise against the fences and side of the walls; I then passed up the alley myself into Cornhill, as soon as I got out of the alley I heard the Old-Brick bell ring.

Q. Did you hear Dr. Cooper's bell ring before?

A. I think not, I heard it afterwards. There were many in the street running, some with buckets enquiring where the fire was? There were many answers given in the street it is not fire, it is the soldiers fighting, I do not know from who, but from several quarters behind and before me; I went up Cornhill and saw a number of persons collected betwixt Mr. Jackson's shop and the Town-house.

Q. How many?

A. About twenty, I thought many of them were the persons that had just left the alley, I had followed them with my eye and saw them stop there, many of them had sticks, they did not use them to walk with, as they went up they flourished them about.

Q. What number of sticks did you see flourishing in that manner?

A. I thought about two-thirds of them had sticks.

Q. Was there a general cry?

A. No, the chief was huzzaing. As they went up several of them struck against Jackson's shop-windows and said, damn it, here lives an importer, others ran more towards the Town-house and took up pieces of ice and threw at Jackson's windows and broke four panes of glass, I stood and counted them; at that time Mr. Cazneau came up and said, do not meddle with Mr. Jackson, let him alone, do not break his windows, and they left off throwing; the bigger part of them immediately pushed down King-street by the north side of the Town-house, others of them went betwixt the west door of the Town-house and Cornhill, and said, we will go to the guard; I then went over to the opening betwixt the south side of the Town-house and the Guard-house, to look down to see if they did stop there, at that time I heard a huzza I thought lower down King-street, it was not from any of the people I had then in view, these persons did not stop by the Guard-house, but run directly down King-Street; I then turned back, and returned by Cornhill through Boylston's alley, I found a small circle of people talking with the officers on the steps, about twelve; at that time Dr. Cooper's bell began to ring, one of the officers immediately cried out, pray stop that bell, I then left them and went to my father's.

Q. Did you see any person ring the bell?

A. No, I saw no person, but I saw a window open.

Q. Was any thing done to stop it?

A. I saw nothing done, I had been but a little while in the house, I had just took off my cloak when the girl ran in from the kitchen, and said there is a gun fired, I replied to the company, I did not believe it, for I had seen the officers put in the soldiers and shut the gate.

Q. By whom is the Sentry at the Custom-house placed?

A. The Sentinel at the Custom-house is placed by order of a commanding officer, the commanding officer was then Lieut. Col. Dalrymple, by his order a Sentry was placed at the Custom-house to take care of the money in the Cashier's office, books, &c. that is the duty of a Sentinel stationed at the Custom house.

Q. Had a Sentry alternately been placed there for some months before the 5th March?

A. Yes, for many months before, ever since I came to the town, and the Sentinel there cannot stir till the commanding officer relieves him.

Q. Did you see the first order for placing the Sentinel at the commissioners office when they kept at Concert-hall?

A. I did not, I was not then in the country.

Q. Do you know any of the prisoners?

A. Yes, White, Killroy, Wemms, and Carrol.

Q. Did White say any thing to you on the 5th of March last?

A. Yes. I went down King-street just after the bells began to ring, and he said, Hall, I am molested and imposed on on my post, I cannot keep my post clear; Hall take care of yourself, there will be something done by and bye. I moved away to the corner of Stone's house and there stood.

Q. Were any number of people about the Sentinel at that time?

A. Yes, there were about twenty, he said he could not keep his post clear. They said he dared not fire. He cocked his gun on the steps, then he presented his gun, and they drew off again.

Q. What did he say to the people?

A. He desired them to keep off. Some were throwing snow balls, some oyster shells at him.

Q. Did you see any of them hit the Sentinel?

A. No; I saw them hit his gun two or three times; then he hollowed for the guard, and the guard came down.

Q. What expression did he use?

A. He hollowed soldiers come here, and they came seven men and the officer.

Q. What followed upon that?

A. As soon as they came down the people pressed in upon them; and they pushed with their bayonets to keep them off, but did not move out of their ranks.

Q. Were any snow balls, sticks, or stones, thrown at the party after they came down?   A. No.

Q. Did the soldiers tell them to keep off?

A. Yes; but they still pressed on. Then one man fired, and I run down Royal-exchange-lane as fast as I could.

Q. How near did you stand to the party?

A. About twelve or fourteen feet off.

Q. Were there people between you and the party?

A. Yes, ten or twelve.

Q. What was the general cry?

A. Fire, fire, you dare not fire, fire and be damned.

Betwixt eight and nine o'clock on the 5th of March as I was going home to Green's lane, I met five or six men with sticks in their hands, about the middle of it I met with much the same number, and at the end of it I met with much the same number.

Q. Which way were they going?

A. They were going into town towards King-street.

Q. Do you know Carrol one of the prisoners?

A. I have known him these four years by a particular circumstance. I landed at a battery where he was on duty, and entered into conversation with him; and I have took particular notice of him ever since.

Q. What is his general character?

A. That of a discreet sober orderly man.

Q. Do you know if a Sentinel was constantly placed at the Custom-house?

A. Yes, for several months before last March, by order from the Commanding officer.

On the evening of the 5th of March I was in my own house, be- 219twixt nine and ten I heard the bells ring for fire, I went out of the house and came into King-street; I there saw the soldiers and the officer. I went to the officer and asked him if his men were loaded, he said they were; I asked him if they were loaded with ball, he made me no answer, I asked if they were going to fire, he said they could not fire without his orders; directly I saw a snow ball and stick come from behind me which struck the grenadier on the right, which I took to be Warren, he fended it off with his musket as well as he could, and immediately he fired.

Q. Where did he stand?

A. He was the first man on the right, and the third man from the officer; immediately after the first gun, the officer turned to the right and I turned to the left and went down the lane; I heard the word fire given, but whether it was the town's people or the officer, I do not know.

Q. Were any blows given to the soldiers before the firing?

A. I saw none.

Q. Were any blows given after the first and before the second gun fired?   A. No.

Q. Did you, or did you not, after the first gun was fired see a blow aimed?   A. I did not.

Q. Did you not aim a blow yourself?

A. Yes, when I was going away.

Q. How large was that stick you saw thrown?

A. About an inch diameter.

Q. Did the soldier sally or step back when the stick struck him?

A. I saw only his body, I did not see his feet.

Q. Directly on the first gun's going off, did any close in upon the soldiers, and aim a blow or blows at them?

A. I did myself, whether any one else did or not I cannot tell. When I was about three or four rod from my own house, I heard the soldiers were quarrelling with the inhabitants, some inhabitants said, We had better go and see it out.

Q. What number was coming down along with you?

A. Six or eight, in some places eight or ten, in others one after another, all the way along from the South-end; the people were saying, the soldiers were quarrelling with the inhabitants—breeding a rumpus—going to beat the inhabitants. Some said we had better go home—others lets go now and see it out—it is the best time now—and now is the only time.

Q. Had they buckets?   A. Yes.

Q. Had all of them buckets?   A. No.

Q. What had the rest?

A. Some had nothing at all, some had walking canes.

Q. What was the general cry before the firing?

A. Fire, damn you, why do you not fire, you dare not fire.

Q. Are you sure it was the man nighest to the Custom-house that fired first, and that the stick struck?

A. Yes, I think I am certain of it.

On the evening of the 5th of March I left my house in Winter-street, and went to see a friend in the neighbourhood of Dr. Cooper's meeting. I went down the main-street, and coming near Boylston's alley, I saw a number of boys and children from twelve to fifteen years old, betwixt Mr. Jackson's and the alley; some of them had walking canes. A number of soldiers, I think four, sallied out of the alley.

Q. How many boys were there?   A. Six or eight.

Q. What time of night was it?

A. About five minutes after nine. I took the soldiers for grenadiers, all of them had cutlasses drawn.

Q. Did they come out of the barracks?

A. They came out of the alley, and I imagine from the barracks; they fell on these boys, and every body else that came in their way, they struck them; they followed me and almost over took me, I had the advantage of them and run as far as Col. Jackson's, there I made a stand, they came down as far as the stone shop.

Q. Did you see that their cutlasses were drawn?

A. Yes, it was a very bright night, these lads came down, some of them came to the Market square, one got a stave, others pieces of pine, they were very small, I do not know whether any of the lads were cut. I turned and then saw an oyster-man, who said to me, damn it here is what I have got by going up; (showing his shoulder wounded) I put my finger into the wound and blooded it very much. This oyster man made a stand, and several people got round him asking him questions.

Q. What time was this?   A. About 7 minutes after nine.

Q. Was it before the bells rung as for fire or after?

A. It was some time before. My way lay through that alley where the barracks were, but I did not think it safe to go up that way, I returned home by the way of Royal exchange-lane.

Q. When you got to Dock-square, were there a number of people there?

A. This affair of the oyster-man gathered numbers, before that there were not above eight, all little lads, in a little time I imagine about twenty gathered. I passed up Royal-exchange-lane by the Sentinel, quite near him, I suppose there were not above fifteen persons in King-street, very few for such a pleasant night; it was then about fifteen minutes after nine.

Q. Where was the Sentinel?

A. Close to the corner of the Custom house, I came quite near him.

Q. Did you see no boys by him?   A. None at all.

Q. Did the bells ring then?

A. No. I went up from Royal-exchange-lane to the north-side of the Town house, and when I came there the Old Brick meeting house bell began to ring.

Q. Did this gather a great many?

A. Yes. I proceeded towards home, I met several of my acquaintance and told them there was no fire, but there had been a quarrel with the soldiers and inhabitants, but that it was all over, in particular I met Mr. Chase, presently after another bell rung.

Q. What bell was that?   A. Dr. Cooper's.

Q. What else did you see?

A. Nothing more. I had got to Winter street when I heard the guns fire.

Q. Did you know previous to the Old Brick bell's ringing, that it was to ring to alarm the inhabitants?

A. I did not, but after it had rung I knew it.

Q. At the time when you saw the soldiers run out of the alley, did you hear any body say there had been a great number of people at the barracks?   A. No.

On Monday evening the 5th March I went to Mr. Amory's, while I was there the bell rung, which I supposed was for nine o'clock, Mrs. Amory said she imagined it was fire, I looked at the clock, it was twenty minutes after nine; I was going out to enquire where the fire was, Mr. Taylor came in, he said there was no fire, but he understood the soldiers were coming up to cut down Liberty-tree; I then went out to make enquiry, when I came out of the door, before I had got into King-street, I met Mr. Walker the ship carpenter, I asked him what the matter was? He said the soldiers had sallied out from Smith's barracks, and had fell on the inhabitants, and had cut and wounded a 222number of them, but that they were drove into the barracks: I then went to my house to inform Mrs. Payne that it was not fire, apprehending she might be frightned; I immediately went out again, and when I came into the street, there was nobody in the street at all; the Sentry at the Custom House was walking by himself as usual, nobody near him; I went up towards the Town house, and stood by the watch-house, where were a number of people, I enquired of them what the matter was? They gave me the same account Mr. Walker did. While I stood there, I heard a considerable noise in Cornhill, and presently I heard a noise of some people coming up Silsby's-alley, at first I imagined it was soldiers coming up that alley, and had some thoughts of retiring up the Town-house steps, but soon found they were inhabitants, I stood till they came up to me, I believe there might be twenty at the extent, some of the persons had sticks, some had not, I believe there were as many with sticks as without, they made a considerable noise, and cried, where are they? Where are they? At this time there came up a barber's boy and said the Sentry at the Custom house had knocked down a boy belonging to their shop; the people then turned about and went down to the Sentry; I then was left as it were alone: I proceeded towards my own house, when I had got about half way, I met Mr. Spear the cooper, he said, Mr. Payne do not go away, I am afraid the Main-guard will come down; I told him I was more afraid of those people that had surrounded the Sentry, and desired him if he had any influence over them to endeavour to take them off; I then proceeded towards my own house, and when I got as far as Mr. Davis's, directly opposite to the Custom-house: I saw a number of persons going up the steps at the Custom-house, and heard a violent knocking at the door, the Sentry stood by the box as I took it, I stopt to see if they opened the Custom house door to let them in, I found they did not open the door; I then retired to my own house, and stood on the sill of my door.

Q. Was there noise by the Sentry?

A. Yes, a confused noise, five or six were upon the steps, I remained at my door, and Mr. Harrison Gray came up and stood there talking with me; the people were crying out fire! fire! Damn you, why do you not fire?

Q. Was this before the soldiers came down?

A. Yes. Mr. Gray and I were talking of the foolishness of the people in calling the Sentry to fire on them; in about a minute after, I saw a number of soldiers come down from the Main guard, and it appeared to me they had their muskets in a horizontal posture, they went towards 223the Custom house, and shoved the people from the house, I did not see in what manner they drew up: at this time Mr. Bethune joined us on my steps at the door, and the noise in the street continued much the same as before, fire! fire! Damn you, fire! why do you not fire? Soon after this, I thought I heard a gun snap, I said to Mr. Gray, there is a gun snapped, did you not hear it? He said yes; immediately a gun went off, I reached to see whether it was loaded with powder, or any body lying dead, I heard three more, then there was a pause, and I heard the iron rammers go into their guns, and then there was three more discharged, one after another; it appeared to me there were seven in all, as soon as the last gun was discharged I perceived I was wounded, and went into the house.

Q. Was it the last gun wounded you?

A. I do not know, I did not feel it before the last gun went off.

Q. Did you see any body throw any thing at the soldiers?

A. No, I was not near enough to see whether the people struck or threw any thing at the soldiers.

Q. How many people were about them?

A. From fifty to an hundred.

Q. Were they near to them?   A. Pretty nigh.

Q. Could you see all the soldiers?   A. Yes.

FIVE o'clock, p.m. the Court adjourned till Monday morning 3 December, nine o'Clock.14

James Crawford. Went home to Bulls Wharf at dark about 6 O Clock. Met Numbers of People, going down towards the Town House, with sticks. At Calfs Corner, Saw above a dozen with sticks. In Quaker Lane and Greens Lane met many, going towards King Street. Very great Sticks, pretty large Cudgells, not common Walking Canes.

Archibald Gould. Going to Crawfords at Bulls Wharf. At 8, at Swing Bridge, the People were walking from all Quarters with Sticks, 224that I was afraid to go Home. Went thro Greens Lane, and met many People, the Street in such Commotion, as I hardly ever saw in my Life. Uncommon Sticks, such as a Man would pull out of an Hedge. At Hancocks Wharfe when the Bells began to ring. Mem. It must have been later.

Archibald Wilson, William Hunter, David Mitchelson, James Selkrigg, Archibald Bowman, Wm. Dixon, 6 of em were all at one House at Mr. Hunters, and all agree in their general account. And with em concurs B. Davis.

John Gillespie. At 7 went up to the South End to Mr. Silvester's. Met 40 or 50, with white Sticks, in small Parties of 4 or 5 in a Party. This was thro the main Street.

Thos. Knight. At his own Door. 8 or 10 passed with Sticks or Clubbs, and one of em said d—n their Bloods let us go and attack the main Guard first, the Bell ringing. One of em made a Pause, and said, let us go and get our Guns or I'le go and get my Gun. Went in and told his Wife he believd there would be bloodshed. This also was in the main Street.

Nat. Russell vid.

Mem. If these Witnesses are believed, People were in Motion both in the main Street leading from the Town House towards the South End, and in Quaker Lane, and Greens Lane.

Archibald Wilson, Hunter, Mitchelson, Selkrig, Bowman, Dixon. 6 of em were all at one House at Mr. Hunters in Dock Square and all agree in their general Account, tho they dont all remember the same Circumstances. Their general Account is that many People came from the North End and assembled in Dock Square, made Several Attempts in small Parties at Murrays Barracks but came running hastily back, as if driven back by the Soldiers. Many had Staves, tho many had none. After some time there appeard among em a Gentleman with a red Cloak and a white Wigg. He made a Speech to em of 4 or 5 minutes. Then they proposed to go to K. Street and attack the main Guard, and the Effect immediately followed. One Party under one Leader went round and up Cornhill, another Party up royal exchange Lane, and a 3d up Silsbys Alley. And several proposed to cry fire. Fire was cryed, several Times, and the Bells soon after rung.

In Confirmation of the Testimonies of these 6 Scotch Gentlemen we have the Testimonies of Shubael Hewes and B. Davis.

Mr. Hewes, Says he was in D. Square. Saw by the Markett a Number coming from the North End. A Number of Lads, came along, and tryed to pull out, and break the Leggs of the Stalls. 6 or 7 of em, cant say exactly the Number.

Mr. Davis says. A Number came 3 or 4 and cryd where are any Clubbs, or Cordwood Sticks, cryd Fire, Fire, Fire.

This Assembly of People in D. Square was undoubtedly a Riot. In those I mean, to set off for K.S. to attack the main Guard this was an unlawful Design, and End.

Dr. Hyrons very particular. Vid. page 26.2

Captn. Gold finch—page 28.

Patrick Keeton page 30.

Wm. Davis. page 21.

Benja. Lee. page 34.

John Frost 34.

John Ruddock Esqr.

Greg. Townsend Esqr. 37.

James Thompson 29.

McCauley.—Jona. W. Austin.3

Hartegan.—J. Danbrook. J. Simpson.

Carrol.—J. Bailey. Danbrook.

Wemms.—E. Bridgman. J. Simpson.

Kilroy.—E. G. Langford. F. Archbald. J. Brewer, Ferriter and Hemenway.

White.—S. Clark. E. G. Langford. J. Bailey. J. Simpson.

Montgomery.—J. Bailey. R. Palmes. J. Danbrook. J. Bass. Thos. Wilkinson.

Warren.—E. Bridgman. J. Dodge. J. Simpson. Ferriter.

E. Bridgman. A Number of Things, Ice or Snow, thrown, Sticks struck the Guns. About 12 with Sticks, surrounded the Party and struck their Guns with their Sticks several Blows, when the Soldiers were loading. The People went up quite to them with in the length of their Guns, before the firing. Number were coming down by the Town House. Call'd em cowardly Rascalls. Dared em to fire. All the Bells rung. The ratling of a Blow before the firing very violent.

J. Dodge. About 50 People very near the Soldiers. Ice and snow Balls thrown, Sticks rattled upon their Guns. The Balls seemed to come from close before em.

J. Bailey. The Boys hove Pieces of Ice at Sentry as big as your fist, hard and large enough to hurt a Man.

Montgomery was knocked down, and his Musquet fell out of his Hand, by a Clubb or Stick of Wood by one of the Inhabitants, and as soon as he got up he fired. The Clubb was not thrown but I saw him struck with it. He fell down and the Gun fell out of his Hand. The Blow was very violent.

R. Palmes. Saw a Piece of Ice or Snow, or something white strike Montgomerys Gun. It struck the Grenadier and made a Noise. He fell back and fired.

J. Danbrook. Saw a little Stick flyover their Heads, a Piece of a rattan or some such Thing.

J. Bass. Saw a Stick knocked to knock up Montgomerys Gun. It knocked it up 5 or 6 Inches.

J. Simpson. Saw one Man going to throw a Clubb, but he did not. Saw one Clubb, thrown in to the Soldiers. It hit one of the Soldiers Guns, I heard it Strike. The Person that threw it stood 10 Yards from the soldiers. The Stick was thrown 1 or 2 seconds before the 1st. Gun, a white birch Cordwood Stick, an inch thick.

B. Burdick. Had an highland broad Sword in my Hand. I struck at the Soldier who pushed at me, and had I struck 2 or 3 Inches farther, I should have left a Mark that I could have Sworn to. I struck the Cock of his Gun. Saw a short Stick thrown about 2 or 3 foot long. Heard a Ratling.

R. Williams. Saw the People some huzzaing, some whistling. Somebody said dont press upon the Guard, The People seemed to be pressing. Saw some snow Balls thrown.

Monday  3 December, NINE o' Clock, the Court met according to adjournment, and proceeded.

May it please your Honours, and you Gentlemen of the Jury,

We have at length gone through the evidence in behalf of the 227prisoners. The witnesses have now placed before you, that state of facts, from which results our defence. The examination has been so lengthy, that I am afraid some painful sensations arise, when you find that you are now to sit and hear the remarks of council. But you should reflect, that no more indulgence is shown to the Prisoners now on trial, than has ever been shown in all capital causes: the trial of one man has often taken up several days; when you consider, therefore, that there are eight lives in issue, the importance of the trial will show the necessity of its length. To each of the prisoners different evidence applies, and each of them draw their defence from different quarters.

I stated to you, Gentlemen, your duty, in opening this cause—do not forget the discharge of it. You are paying a debt you owe the community for your own protection and safety: by the same mode of trial are your own rights to receive a determination; and in your turn, a time may come, when you will expect and claim a similar return from some other jury of your fellow subjects.

In opening, I pointed out the dangers to which you were exposed; I trust your own recollection will now preclude a recapitulation of them. The reasons of what I then said, I trust have in some measure appeared: the propriety of some of those observations has been corroborated by succeed evidence; and you must have traced yourselves, some of those consequences, turning out in evidence, which have had an intimate relation, if not their origin, with some or all of those opinions, notions, sentiments or passions (call them what you will) which I took occasion to observe, as clues, aids, and leading-strings, in our intended examination and decision.

How much need was there for my desire, that you should suspend your judgment till the witnesses were all examined? How different is the complexion of the cause? Will not all this serve to show every honest man, the little truth to be attained in partial hearings? We have often seen communities complain of ex parte testimonies: individuals, as well as societies, of men, are equally susceptible of injuries of this kind: this trial ought to have another effect, it should serve to convince us all, of the impropriety, nay injustice, of giving a latitude in conversation upon topicks, likely to come under a judicial decision; the criminality of this conduct is certainly inhanced, when such loose sallies and discourses are so prevalent as to be likely to touch the life of a citizen. Moreover there is so little certainty to be obtained by such kind of methods, I wonder we so often find them practiced. In the present case, how great was the prepossession against us? And I appeal to you, Gentlemen, what cause there now is to alter our sentiments. 228Will any sober, prudent man countenance the proceedings of the people in King street—can any one justify their conduct—is there any one man, or any body of men, who are interested to espouse and support their conduct? Surely no. But our enquiry must be confined to the legality of their conduct: and here can be no difficulty. It was certainly illegal, unless many witnesses are directly perjured: Witnesses who have no apparent interest to falsify—witnesses, who have given their testimony with candor and accuracy—witnesses, whose credibility stands untouched—whose credibility, the council for the king, do not pretend to impeach; or hint a suggestion to their disadvantage.

I say, Gentlemen, by the standard of the law are we to judge the actions of the people who were the assailants, and those who were the assailed, and then on duty. And here, Gentlemen, the rule, we formerly laid down, takes place. To the facts, Gentlemen, apply yourselves. Consider them as testified: weigh the credibility of the witnesses—balance their testimony—compare the several parts of it—see the amount of it: and then according to your oaths “Make true deliverance according to your evidence.” That is Gentlemen, having settled the facts, bring them truely to the standard of the law; the king's judges who are acquainted with it, who are presumed best to know it, will then inspect this great standard of right and wrong, truth and justice; and they are to determine the degree of guilt to which the fact rises.

But before we come to those divisions of enquiry, under which I intend to consider the evidence, let me once more carefully distinguish between the transactions in Cornhill and those by the Custom House.

The conduct of the soldiers in Cornhill may well be supposed to have exasperated the minds of all who beheld their behaviour. Their actions accumulated guilt as it flew—at least, we may well suppose, the incensed people who related them, added new colours to the scene. The flame of resentment imperceptibly enkindles, and a common acquaintance with human nature will shew, that it is no extravagant supposition, to imagine many a moderate man might at such a season, with such sentiments, which I have more than once noticed;—hearing such relations and complaints; I say do I injure any one, in supposing, that under all these circumstances, a very moderate person, who in ordinary matters acted with singular discretion, should now be drawn imperceptibly away, or rather transported into measures, which in a future moment he would condemn and lament. What more natural supposition, than to suppose many an honest mind might at this 229time fluctuate thus. The soldiers are here—we wish them away: we did not send for them—they have cut and wounded the peaceable inhabitants, and it may be my turn next. At this instant of time, he has a fresh detail of injuries—resentment redoubles every successive moment—huzza! for the Main-guard: we are in a moment before the Custom House. No time is given for recollection. We find, from the king's evidence, and from our own, the cry was “Here is a soldier!” Not here is the soldier who has injured us—here is the fellow who wounded the man in Cornhill. No, the reasoning or rather ferment seems to be, the soldiers have committed an outrage, we have an equal right to inflict punishment—or rather revenge, which they had to make an assault. They said right, but never considered that, those soldiers had no right at all. These are sentiments natural enough to persons in this state of mind—we can easily suppose even good men thinking and acting thus. Very similar to this is the force of Dr. Hirons's testimony, and some others. But our enquiry is—What says the law? We must calmly enquire, whether this, or any thing like it, is countenanced by the law. What is natural to the man, what are his feelings are one thing: what is the duty of the citizen is quite another. Reason must resume her seat—and then we shall hear, and obey the voice of the law.

The law indulges no man in being his own avenger. Early, in the history of jurisprudence, we find the sword taken from the party injured, and put into the hands of the magistrate. Were not this the case, punishment would know no bounds in extent or duration. Besides, it saps the very root of distributive justice, when any individual invades the prerogative of law, and snatches from the civil magistrate the balance and the rod. How much more are the pillars of security shaken, when a mixt body, assembled as those in King street, assume the province of justice, and invade the rights of the citizen? For it must not be forgot, that the soldier is a citizen, equally in titled with us all to protection and security. Hence all are alike obliged to pay obedience to the law: For the price of this protection is that of obedience.

Let it not be apprehended, that I am advancing a doctrine, that a soldier may attack an inhabitant, and he not allowed to defend himself. No Gentlemen! if a soldier rush violently through the street and presents a weapon of death, in a striking posture; no doubt the person assailed may defend himself, even to taking the life of the assailant. Revenge and a sense of self preservation instantly take possession of the person thus attacked; and the law goes not upon the absurd suppo-230sition, that a person can in these circumstances, unman himself. Hence we find a husband, taking his wife in the act of adultery, instantly seizes a deadly weapon and slays the adulterer;—it is not murder. Nay a fillip upon the nose or forehead, in anger, is supposed by the law to be sufficient provocation to reduce killing to Manslaughter. It is, therefore, upon principles like these, principles, upon which those, who now bear the hardest against us, at other times, so much depend; it is, I say, upon the right of self-defence and self-preservation we rely for our acquittal.

Here again it should be kept in view, that whenever the party injurying has escaped by flight, and time sufficient for the passions to cool, in judgment of law, hath elapsed; however great the injury, the injured party must have recourse to law for his redress. Such is the wisdom of the law; of that law, than which we are none of us to presume ourselves wiser; of that law, which is founded in the experience of ages, and which in condescension to the infirmities of flesh and blood (but to nothing else) extenuates the offence. For “no man, says the learned Judge Foster, under the protection of the law is to be the avenger of his own wrongs. If they are of such a nature for which the laws of society will give him an adequate remedy, thither he ought to resort. But be they of what nature soever, he ought to bear his lot with patience, and remember, that vengeance belongeth to the Most High.” Crown Law 296.2 Now, Gentlemen, those, whoever they were, who committed the outrage in Cornhill, had absconded— the soldiers, who are supposed to have done them, were confined in their barracks. People were repeatedly told this, and assured by the military officers, that they should not go unpunished. But what followed? Are all present appeased? We are constrained, by the force of the evidence, to affirm they were not. But to get regular and right ideas, we must consider all the commotions of the season, and endeavour to come at truth by analyzing the evidence, and arranging it, under distinct heads of enquiry.

Mr. Quincy now entered, at large, upon a review of the appearances in several parts of the town: he was copious upon the expressions and behaviour sworn to.

He, then, more particularly recapitulated the evidence touching Murray's Barracks, Dock-square, and the Market-place.3

He next pursued several parties, through the several lanes and streets, till they centered at the scene of action.

The testimonies of the witnesses, who swore to the repeated information given the people;—that the Sentry and party were on duty;—that they were desired to withdraw and warned of the consequences;—were in their order considered.4

Under the next three heads, was remarked “the temper of the Sentry, of the party of soldiers, and of the people surrounding them.”

The words, insult and gestures of the same persons were next pointed out: and from thence was collected the designs of the persons assaulting, and the reasonable apprehensions of those assaulted.5

Mr. Quincy then came to the attack itself;—considering who the persons were(namely some sailors;) remarking minutely the words and actions immediately preceeding the on set; the weapons used; the violence of the assault and battery; and the danger of the soldiers.6

Mr. Quincy next exhibited those parts of the testimonies, which evidenced the attack continued after the firing.7

Under all these heads, there was methodically stated the number of the witnesses to each point, and by a comparative view of all the proofs, conclusions drawn as to the force of the whole.

The next consideration, in this mode of enquiry, was the evidence as severally pertaining to each prisoner; with such observations, on the one hand, as served to shew a defect of legal proof as to fact; on the other, such matters served to justify, excuse or extenuate the offence, in law.8

And particularly with regard to Killroy, 9 Mr. Quincy cited and commented on the following passages from Judge Foster's Crown law, and the Marquiss of Beccaria's Essay on Crimes and punishments.

“WORDS are often misrepresented, whether through ignorance, in attention, or malice, it mattereth not the defendant, he is equally effected in either case; and they are extremely liable to misconstruction. And with all, this evidence is not in the ordinary course of things to be disproved by that sort of negative evidence by which the proof of plain facts may be and often is confronted.” Crown Law, 243.10

“Finally, the CREDIBILITY of a witnesses is NULL, when the question relates to the WORDS of a criminal; for the tone of voice, the gesture, all that preceds, accompanies and follows the different ideas which men annex to the same words, may so alter and modify a man's discourse, that it is almost impossible to repeat them precisely in the manner in which they were spoken. Besides, violent and uncommon actions, such as real crimes, leave a trace in the multitude of circumstances that attend them, and in their effects; but Words remain only in the memory of the hearers, who are commonly negligent or prejudiced. It is infinitely easier then to found an accusation on the Words, than on the actions of a man; for in these, the number of circumstances, urged against the accused, afford him variety of means of justifications.” Essay 48, 9.11

May it please your Honours, and you Gentlemen of the Jury,

After having thus gone through the evidence, and considered it as applicatory to all and every of the prisoners, the next matter in order seems to be the consideration of the law pertinent upon this evidence.

And here, Gentlemen, let me again inform you, that the law which is to pass upon these prisoners, is a law adapting itself to the human speices, with all their feelings, passions and infirmities; a law which does not go upon the absurd supposition, that men are stocks and stones; or that in the fervour of the blood, a man can act with the diliberation and judgment of a philosopher. No Gentlemen:—the law supposes that a principle of resentment, for wise and obvious reasons, is deeply implanted in the human heart; and not to be eradicated by the efforts of state policy. It, therefore, in some degree conforms itself to all the workings of the passions, to which it pays a great indulgence, so far as not to be wholly incompatible, with the wisdom, good order and the very being of government.

Keeping therefore this full in view, let us take once more, a very 233brief and cursory survey of matters supported by the evidence. And, here, let me ask sober reason—What language more approbrious—What actions more exasperating, than those used on this occasion? Words, I am sensible are no justification of blows, but they serve as the grand clues to discover the temper and the designs of the agents: they serve also to give us light in discerning the apprehensions and thoughts of those who are the objects of abuse.

“You lobster,” “You bloody-back,” “You coward,” and “You dastard,” are but some of the expressions proved.—What words more galling? What more cutting and provoking to a soldier? To be reminded of the colour of his garb, by which he was distinguished from the rest of his fellow citizens; to be compared to the most despicable animal, that crawls upon the earth, was touching indeed a tender point, To be stigmatized with having smarted under the lash, at the halbert,12 to be twitted with so in famous an ignominy; which was either wholly undeserved, or a grievance which should never have been repeated:—I say to call up and awaken sensations of this kind, must sting even to madness. But accouple these words with the succeeding actions,—“You dastard,” “You coward!”—A soldier and a coward! This was touching, (with a witness) “The point of honour, and the pride of virtue.” But while these are as yet fomenting the passions, and swelling the bosom, the attack is made: and probably the latter words were reitterated at the onset; at lest, were yet sounding in the ear. Gentlemen of the jury, for heaven's sake, let us put ourselves in the same situation!13 Would you not spurn at that spiritless institution of society, which tells you to be a subject at the expence of your manhood?

But does the soldier step out of his ranks to seek his revenge? Not a witness pretends it: Did the people repeatedly come within the points of their bayonets, and strike on the muzzels of the guns?—You have heard the witnesses.

Does the law allow one member of the community to behave in this manner towards his fellow citizen, and then bid the injured party be calm and moderate? The expressions from one party were “Stand off—stand off”—“I am upon my station”—“if they molest me upon my post, I will fire.”—“By God I will fire!”—Keep off!” These were words likely to produce reflection and procure peace. But had the words on 234the other hand a similar tendency? Consider the temper prevalent among all parties at this time. Consider the then situation of the soldiery; and come to the heat and pressure of the action. The materials are laid, the spark is raised, the fire in kindles, the flame rages, the understanding is in wild disorder, all prudence and true wisdom are utterly consumed. Does common sense, does the law expect impossibilities? Here to expect equanimity of temper, would be as irrational, as to expect discretion in a mad man. But was any thing done on the part of the assailants, similar to the conduct, warnings and declarations of the prisoners? Answer for yourselves, Gentlemen. The words reiterated, all around, stabbed to the heart, the actions of the assailants tended to a worse end; To awaken every passion of which the human breast is susceptible. Fear, anger, pride, resentment, revenge, alternately, take possession of the whole man. To expect, under these circumstances, that such words would asswage the tempest, that such actions would allay the flames—You might, as rationally, expect the inundations of a torrent would suppress a deluge; or rather, that the flames of Etna would extinguish a conflagration!

Prepare, Gentlemen of the Jury, now to attend to that species of law, which will adapt itself to this trial, with all its singular and aggravating circumstances. A law full of benignity, full of compassion, replete with mercy.

And here, Gentlemen, I must, agreeable to the method we formerly adopted, first tell you by what law the prisoners are not to be tried, or condemned. And they most certainly are not to be tried by the Mosaic law: a law, we take it, peculiarly designed for the government of a peculiar nation, who being in a great measure under a theocratical form of government, it's institutions cannot, with any propriety, be adduced for our regulation in these days. It is with pain, therefore, I have observed any endeavour to mislead our judgment on this occasion; by drawing our attention to the precepts delivered in the days of Moses; and by disconnected passages of Scriptures, applied in a manner foreign to their original design or import, there seems to have been an attempt to touch some peculiar sentiments, which we know are thought to be prevalent; and in this way, we take it, an injury is like to be done, by giving the mind a biass, it ought never to have received; because it is not warranted by our laws.

We have heard it publicly said of late, oftener, than formerly, “Whoso ever shedeth man's blood, by man shall his blood be shed.” This is plainly, Gentlemen, a general rule, which, like all others of the kind must have its exceptions. A rule, which if taken in it's strict 235litteral lattitude, would imply, that a man killing another in self-defence, would incur the pains of death. A doctrine, which no man in his senses would ever embrace: a doctrine that certainly never prevailed under the Mosaical institution. For we find, the Jews had their six cities of refuge, to which the mans layer might flee, from the avenger of blood.14 And something analogous to this, (if it did not originate from it) is our benefit of clergy.

And so, that “the murderer shall flee to the pit” comes under the same consideration. And when we hear it asked, as it very lately has been, “Who DARE slay him?” I answer, if the laws of our country slay him, you ought to do likewise; and every good subject dares to do what the law allows. But the very position is begging the question: for the question, now in issue, is, whether either of the prisoners is a murderer, in the sense of our laws; for you recollect, that what is murder and what not, is a question of law, arising upon facts stated and allowed.

But to go on; “You shall take no satisfaction for the life of a murderer, which is guilty of death.” 15 Here again, is a begging the question; and more over the words “guilty of death,” if rightly rendered from the original, must be one of those general rules, I just now mentioned; which always have their exceptions. But those words seem to be wrong translated: for in the margin of our great bible, we find them rendered “faulty to die.” Against a position of this kind we have no objection. If we have committed a fault, on which our laws inflict the punishment of death, we must suffer. But what fault we have cummitted you are to enquire: or rather you, Gentlemen, are to find the facts proved in Court against us, and the Judges are to see and consider what the law pronounces touching our offence, and what punishment is there by inflicted as a penalty.

In order to come at the whole law resulting from the facts which have been proved, we must enquire into the LEGALITY of the assemblies. For such is the wisdom and policy of the law, that if any assembly be lawful, each individual of that assembly is answerable only for his own act, and not for any other. On the contrary, if an assembly be unlawful, the act of any one of the company, to the particular purpose of assembling, is chargeable on all. This is law, which no lawyer will dispute; it is a law founded in the security of the peace of society, and however little considered, by people in general, it ought now steadily to be kept in mind.

Was the assembly of the soldiers lawful?

For What did the soldiers assemble?

Was the Sentinel insulted and attacked?

Did he call for assistance, and did the party go to assist him?

Was it lawful for them so to do?

Was the soldiers when thus lawfully assembled, assaulted, &c. by a great number of people assembled, &c.

Was this last assembly lawful?

Was any thing done by this unlawful assembly, that will, in law, justify, excuse, or extenuate the offence of killing, so as to reduce it to manslaughter?

Under each of these heads of enquiry, in their order, Mr. Josiah Quincy arranged his arguments; and as he separated and compared, and settled the facts, he applied his law, with explanatory comments. In the course of which he necessarely run over again facts, that had been before noticed, which occasions our omission of this part of his defence. But for the sake of those, who would chuse to inspect, at their leisure, the authorities. They are here subjoined in the order in which they were cited.16

Hawkin's Vol. II. p.29.17 9. ibid.18 —Mutiny Act p. 115, 116, 117, 118 §78. 8.19—Blackstone's Com. Vol. I. p. 147, 262, 335, 33620 —Blackstone Vol. IV. p. 194, 19521—3d Institute p. 51. 5722— Blackstone Vol. IV. p. 191, 19223—Foster's Crown Law 276, 277, 278, 262, 25724—Blackstone Vol. IV. p. 200 top.25

Blackstone Vol. IV. p. 180, 28026—Foster's Crown Law p. 29827—3d Institute, 56 top28—Hawkins Vol. I. 75—ibid. 71 bot. ibid. 72 top29—Foster's Crown Law 273, 274.30—Keil. 128, 129, 51.31

Foster's Crown Law 278. 277. 276. 295.32

Blackstone Vol. IV p. 19133—Foster's Crown Law p. 27734—Blackstone Vol. IV. p. 19235—Foster's Crown Law p. 298. 296. 29236— 3d Institute p. 55 bot.37—Hawkins Vol. I. p. 82 bot., 84 mid.38— Hawkins pleas of the Crown Vol. I. p. 48439—Hawkins Vol. I. 85 mid.40—Cro. Car. p. 537 Cooks case41—Hale Vol. II. p. 27442— Blackstone Vol. IV. p. 18343—Hawkins Vol. I. p. 82 bot.44—Keil.p. 135 bot.45

Foster p. 261, 26246—Blackstone Vol. IV. p. 2747—Hawkins Vol. I. p. 84 §4448—Foster p. 350 §5.49

Hawkins Vol. I. Chap. 31, §2150—cites Bulstrode p. 86, 8751— Keil. p. 5152—Lord Bacon's Elem. 25.53

The law laid down, in Foster, 261, 2. before cited, being indisputable law, not denied or controverted; and being very material in the trial, and much relied on by the prisoners, is here set down at large.

“I will mention a case, (says the learned Judge,) which through the ignorance or lenity of juries hath been sometimes brought within the 239rule of accidental death. It is where a blow aimed at one person lighteth upon another and killeth him. This, in a loose way of speaking, may be called accidental with regard to the person who dieth by a blow not intended against HIM. But the law considereth this case in a quite different light. If from circumstances it appeareth that the injury intended to A. be it by poison, blow, or ANY OTHER MEANS OF DEATH, would have amounted to murder, supposing him to have been killed by it, it will amount to the same offence if B. happeneth to fall by the same means. Our books say, that in this case the malice egreditur personam. But to speak more intelligibly, where the injury intended against A. proceeded from a wicked, murderous, or mischievous motive, the party is answerable for all the consequences of the action, if death ensues, from it, though it had not its effect upon the person whom he intended to destroy. The malitia I have already explained, the heart regardless of social duty DELIBERATELY bent upon mischief, consequently the guilt of the party is just the same in the one case as the other. On the other hand, if the blow intended against A. and lighting on B. arose from a sudden tra n sport of passion which in case A. had died by it, would have been reduced to manslaughter, the fact will admit of the SAME ALLEVIATION if B. should happen to fall by it.” To the same effect are other authorities.

May it please your Honours, and you Gentlemen of the Jury.

I have now gone thro' those authorities in law, which I thought pertinent to this trial. I have been thus lengthy, not for the information of the Court, but to satisfy you, Gentlemen, and all who may chance to hear me, of that law, which is well known to those of us, who are conversant in courts, but not so generally known, or attended to, by many, as it ought to be. A law which extends to each of us, as well as to any of the prisoners; for it knows no distinction of persons.

And the doctrines which have been thus laid down are for the safe-guard of us all. Doctrines which are founded in the wisdom and policy of ages; which the greatest men, who ever lived, have adopted and contended for. Nay, the matter has been carried, by very wise men, much further than we have contested for. And that you may not think the purport of the authorities read, are the rigid notions of a dry system, and the contracted decisions of municipal law, I beg leave to read to you a passage from a very great, theoretic, writer: a man whose praises have resounded through all the known world, and probably will, through all ages, whose sentiments are as free air, and who has done as much for learning, liberty, and mankind, as any of the Sons of 240 Adam; I mean the sagacious Mr. Locke: He will tell you, Gentlemen, in his Essay on Government, p. 2. c. 3. “That all manner of force without right puts man in a state of war with the aggressor; and of consequence, that, being in such a state of war, he may LAWFULLY KILL him, who put him under this unnatural restraint.”54 According to this doctrine, we should have nothing to do, but enquire, whether here was “force without right:” if so, we were in such a state, as rendered it LAWFUL to KILL the aggressor, who “put us under so unnatural a restraint.” Few, I believe, will say, after hearing all this evidence, that we were under no “unnatural restraint.” But we don't want to extend matters so far. We cite this author to show the world, that the greatest friends to their country, to universal liberty, and the immutable rights of all men, have held tenets, and advanced maxims favourable to the prisoners at the bar. And although we should not adopt the sentiments of Mr. Locke in their most extensive latitude, yet there seems to be something very analogous to his opinion, which is countenanced in our laws.

There is a spirit which pervades the whole system of English jurisprudence, which inspires a freedom of thought, speech and behaviour. Under a form of government like ours, it would be in vain to expect, that pacific, timid, obsequious, and servile temper, so predominant in more despotic governments. From our happy constitution there results it's very natural effects—an impatience of injuries, and a strong resentment of insults: (and a very wise man has said, “He who tamely beareth insults inviteth injuries.”)55 Hence, I take it, that attention to the “feelings of humanity”—to “humanity and imperfection”—“the infirmities of flesh and blood;” that attention to “the indelible rights of mankind;”—that lenity to “the passions of man;” that “benignity and condescention of the law” so often repeated in our books.

And, indeed, if this were not the case, the genius of our civil constitution and the spirit of our municipal law would be repugnant:—that prime defect in any political system—that grand solecism in state-policy.

Gentlemen of the Jury,

This cause has taken up much of your time, and is likely to take up 241so much more, that I must has ten to a close: indeed I should not have troubled you, by being thus lengthy, but from a sense of duty to the prisoners; they, who, in some sense, may be said to have put their lives in my hands; they whose situation was so peculiar, that we have necessarily taken up more time, than ordinary cases require: they, under all these circumstances, placed a confidence, it was my duty not to disappoint; and which I have aimed at discharging with fidelity. I trust you, Gentlemen, will do the like: that you will examine and judge with a becoming temper of mind; remembering that they who are under oath to declare the whole truth, think and act very differently from by-standers, who, being under no ties of this kind, take a latitude, which is by no means admissible in a court of law,

I cannot close this cause better, than by desiring you to consider well the genius and spirit of the law, which will be laid down, and to govern yourselves by this great standard of truth. To some purposes, you may be said, Gentlemen, to be Ministers of justice: and “Ministers” (says a learned Judge) “appointed for the ends of public justice, should have written on their hearts the solemn engagements of his Majesty, (at his coronation) to cause law and justice IN MERCY to be executed in all his judgments.”56

I leave you, Gentlemen, hoping you will be directed in your enquiry and judgment; to a right discharge of your duty. We shall all of us, Gentlemen, have an hour of cool reflection—when the feelings and agitations of the day shall have subsided; when we shall view things through a different, and a much juster medium. It is, then, we all wish an absolving conscience. May you, Gentlemen, now act such a part, as will here after insure it;—such a part as may occasion the prisoners to rejoice. May the blessing of those, who were in jeopardy of life, come upon you—may the blessing of him who is “not faulty to die,” discend and rest upon you and your posterity.

May it please your Honours and you Gentlemen of the Jury,

I am for the prisoners at the bar, and shall apologize for it only in the words of the Marquis Beccaria: “If I can but be the instrument of preserving one life, his blessing and tears of transport, shall be a sufficient consolation to me, for the contempt of all mankind.”2 As the prisoners stand before you for their lives, it may be proper, to recollect with what temper the law requires we should proceed to this trial. The form of proceeding at their arraignment, has discovered that the spirit of the law upon such occasions, is conformable to humanity, to commonsense and feeling; that it is all benignity and candor. And the trial commences with the prayer of the Court, expressed by the Clerk, to the Supream JUDGE of Judges, empires and worlds: “God send you a good deliverance.”

We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind; We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it's of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever. I will read the words of the law itself.

The rules I shall produce to you3 from Lord Chief Justice Hale, whose character as a lawyer, a man of learning and philosophy, and as a Christian, will be disputed by nobody living; one of the greatest and best characters, the English nation ever produced: his words are these. 2. H.H.P.C. Tutius semper est errare, in acquietando, quam in puni-243 endo, ex-parte misericordiae, quam ex parte justitiae, it is always safer to err in acquitting, than punishing, on the part of mercy, than the part of justice. The next is from the same authority, 305 Tutius erratur ex parte mitiori, it is always safer to err on the milder side, the side of mercy, H.H.P.C. 509, the best rule in doubtful cases, is, rather to incline to acquital than conviction: and in page 300 Quod dubitas ne feceris, Where you are doubtful never act; that is, if you doubt of the prisoners guilt, never declare him guilty; this is always the rule, especially in cases of life. Another rule from the same Author, 289, where he says, In some cases, presumptive evidence go far to prove a person guilty, though there is no express proof of the fact, to be committed by him; but then it must be very warily pressed, for it is better, five guilty persons should escape unpunished, than one innocent person should die.

The next authority shall be from another Judge, of equal character, considering the age wherein he lived; that is Chancellor Fortescue, in praise of the laws of England, page 59, this is a very ancient writer on the English law: his words are, “Indeed one would rather, much rather, that twenty guilty persons escape the punishment of death, than one innocent person be condemned, and suffer capitally.” Lord Chief Justice Hale, says, It is better five guilty persons escape, than one innocent person suffer. Lord Chancellor Fortiscue, you see, carries the matter farther, 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 insentem damnari, 4 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 it self.

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 an 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 can not enumerate, an officer that executes a person under sentence of death, &c. 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 some 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, draws and quarters him, as in case of high treason, and cuts 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 neighbour, 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 laws 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 cannon in the law of nature.”5 That precept of our holy religion which commands us to love our neighbour as ourselves doth 245not command us to love our neighbour better than ourselves, or so well, no Christian Divine hath given this interpretation. The precept enjoins, that our benevolence to our fellow men, should be as real and sincere, as our affections to ourselves, not that it should be as great in degree. A man is authorised 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 hath a right to push the other off to save himself.6 The rules of the common law therefore, which authorize a man to preserve his own life at the expence 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-defence, we cut up the foundation 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-defence. Foster 273 in the case of justifiable self-defence, “The injured party may repell force with force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoureth with violence, or surprize, to commit a known felony upon either.” In these cases he is not obliged to retreat, but may pursue his adversary, till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable. Keiling, 128, 129.7 I must in treat you, to consider the words of this authority, the injured person may repell force by force against any who endeavours to commit any kind of felony on him or his, here the rule is, I have a right to stand on my own defence, 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 meets me in the street, and commands me to surrender my 246purse, I have a right to kill him without asking questions; if a person8 commits a bare assault on me, this will not justify killing, but if he assaults 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 any thing 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, who ever 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 defence. 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 the flight, or 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 Wemms or Killroy— consider yourselves, as knowing that the prejudices of the world about you, were against you; that the people 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 land men, negroes and molattos; 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 snow-balls, oyster shells, clubs, white birch sticks three inches and an half 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 was to reverse the scene, I 247should 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, &c. had thought it proper to have appointed a military watch; suppose he had assembled Gray and Attucks that were killed, or any other persons in town, and had planted them in that station as a military watch, and there had come from Murray's barracks, thirty or forty soldiers, with no other arms than snow-balls, 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 the 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 round us, throwing such things at us, and threatening our lives, until we are disabled to defend ourselves.

“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 ensues, the party so interposing will be justified. In this case nature and social duty co-operate.” Foster 274.9

Hawkins P.C. Chap. 28, §25. towards the end, “Yet it seems that a private person, a fortiori, an officer of justice, who happens unavoidably to kill another in endeavouring 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.”10 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 shews an intent to murder him, as by discharging a pistol, or pushing at him with a drawn sword, &c. 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 law books, which speaking of homicide se defendendo, suppose it done in some quarrel or affray.”11

“And so perhaps the killing of dangerous rioters, may be justified by 248any private persons, who cannot otherwise suppress them, or defend themselves from them; in as much as every private person seems to be authorized by the law, to arm himself for the purposes aforesaid.” Hawkins p. 71. §1412—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 defence, not for offence, that distinction is material and must be attended to.

Hawkins, page 75. §14. “And not only he who on an assault retreats to the wall or some such streight, 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.”13—§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 high way, may justify the fact without ever giving back at all.”14

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 wall of the Custom House; 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 Royal-exchange-lane; the soldiers were so near to the Custom house, that they could not retreat, unless they had gone into the brick wall of it. I shall shew you presently, that all the party concerned in this unlawful design, were guilty of what any one of them did; if any body threw a snow-ball, it was the act of the whole party; if any struck with a club, or threw a club, and the club had killed any body, the whole party would have been guilty of murder in law.

Ld. C.J. HOLT, in Mawgridge's Case, Keyling 128, says, “Now it hath been held, that if A of his malice prepensed assaults B, to kill him, and B draws his sword and attacks A and pursues him, then A for his 249safety gives back, and retreats to a wall, and B still pursuing him with his drawn sword, A in his defence kills B. This is murder in A. For A having malice against B, and in pursuance thereof endeavouring 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 hath manifested that he hath malice against another, is not fit to be trusted with a dangerous weapon in his hand. And sore solved by all the Judges when they met at Seargeant's inn, in preparation for my Lord Morley's trial.”15

In the case here, we will take Montgomery, if you please, when he was attacked by the stout man with the 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-defence; you will be able to judge from these, how far the law goes, in justifying or excusing any person in defence 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 they set out upon.

Rules of law should be universally known, what ever effect they may have on politics; they are rules of common law, the law of the land, and it is certainly true, that where ever there is an unlawful assembly, let it consist of many persons or a few, everyman 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 favour 250of the people and of human nature, that it is a general, if not 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, i.e. 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 compleat Republick's the least of all—and under the same form of government as in a limited monarchy, for example, the virtue and wisdom of the administration, 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 wisdom or virtue 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 hath 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.

I. H.H.P.C. 437. “All present, aiding and assisting, are equally principal with him that gave the stroke, whereof the party died. For tho' one gave the stroke, yet in interpretation of law, it is the stroke of every person, that was present aiding and assisting.”16

I. H.H.P.C. 440. “If divers come with one assent to do mischief, as to kill, rob, or beat, and one doth it, they are all principals in the felony. If many be present, and one only gives the stroke whereof the party dies, they are all principal, if they came for that purpose.”17

Now if the party at Dock-square, came with an intention only to beat the soldiers, and began the 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 to be guilty, if any one gives the mortal stroke, they are all principal 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 any body, he only is answerable for it. First Hale's pleas of the crown.

1. H.H.P.C. 444. “Although if many come upon an unlawful design, and one of the company kill one of the adverse party, in pursuance of that design, all are principals; yet if many be together upon a lawful 251account, and one of the company, kill another of an 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.”18

1. H.H.P.C. 445. “In the case of a riotous assembly to rob or steal deer, or do any unlawful act of violence, there the offence of one, is the offence of all the company.”19

In another place, 1. H.H.P.C. 439. “The Lord Dacre and divers others went to steal deer in the park of one Pelham—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.”20 And he quotes Crompton, 25. Dalton 93 p. 241.21 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, his company in another part, yet they were all guilty of murder.

The next is Hale's Pleas of the Crown, 1. H.H.P.C. 440, “The case of Drayton Bassit, diverse persons doing an unlawful act, all are guilty of what is done by one.”22

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 behaviour, 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 inconsequence of them, every person present; in the sense of the law, when the homicide hath been committed, hath been involved in the guilt of him that gave the mortal blow.”23

Foster. “The cases of Lord Dacre mentioned by Hale, and of Pudsey, reported by Crompton, and cited by Hale, turned upon this point. The offences 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, 252they were of the same party and upon the same pursuit, and under the same engagements and expectations of mutual defence and support, with those that did the facts.”24

Thus far I have proceeded, and I believe it will not be hereafter disputed by any body, 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 man-slaughter, sometimes of excusable homicide. It is necessary to consider what is a riot. 1. Hawk. c. 65.§2. I shall give you the definition of it. “Where so ever more than three persons use force or violence, for the accomplishment of any design whatever, all concerned are rioters.”25

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 any thing with force, it is a riot. 1. Hawk. c. 65, §2. “Wherever more than three, 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.”26

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 neighbours, if any of their neighbours were attacked in King-street, they had a right to collect together to suppress this riot and combina-253tion. 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, c. 65, §3, “If a number of persons, being met together at a fair or market, or on any other lawful and 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 engage in it,” &c.27 End of the §. 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.28

I have endeavoured to produce the best authorities, and to give you the rules of law in their words, for I desire not to advance any thing of my own. I chuse 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 them 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 them-selves warranted by law to interpose in behalf of their fellow citizens? 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, which I shall produce to you presently.

Now suppose you should have a jealousy in your minds, that the people who made this attack on 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 farther, and tar and feather him, or to ride him, (as the phrase is in Hudibras)29 he would have a good right to have stood upon his defence, the defence of his liberty, and if he could not preserve that without hazard to his own life, he would be warranted, in depriving those of life, who were endeavouring 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 officer 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, have a right to go to the assistance of their fellow subject in distress and 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, tho' 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 press master; Hugett and the others pursued them, and required a sight of their warrant; but they shewing a piece of paper that was not a sufficient warrant, thereupon Hugett with the others drew their swords, and the press masters theirs, and so there was a combat, and those who endeavoured to rescue the pressed man killed one of the pretended press masters. 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.”30

2. Lord Raymond, 1301. The Queen versus Tooley et alios, Lord Chief Justice Holt says, 3d. “The prisoner (i.e. Tooley) in this case had sufficient provocation; for if one be imprisoned 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 255all the subjects of England, &c. and sure 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.”31

I am not insensible of Sir Michael Foster's observations on these cases,32 but apprehend they do not invalidate the authority of them as far as I now apply them to the purpose of my argument. If a stranger, a mere fellow subject may interpose to defend the liberty, he may to 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 more of law 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, were 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 riotous proceedings of that night; and I believe the same may be said, in favour 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 nominated by the sheriff, for a Juryman upon this trial, because he said, he believed Capt. 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.33 I am afraid many other persons have formed such an opinion; I do 256not 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 hath 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, aiming at him, I kill another person, it is but manslaughter. Foster, 261. §3. “If an action unlawful in itself be 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.”34

“Under this head, &c. See the remainder inserted in pages 145, 14635

Supposing in this case, the Molatto man was the person made the assault, suppose he was concerned in the unlawful assembly, and this party of soldiers endeavouring 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 crouding 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 257on these who were guilty, they accidentally killed an innocent person, it was not their faults, they were obliged to defend themselves against those who were pressing upon them, they are not answerable for it with their lives, for upon 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 to manslaughter, it will equally mitigate the guilt, if they killed an innocent man un-designedly, in aiming at him who gave the provocation, according to Judge Foster, 36 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 with another upon a sudden quarrel, it seems that he who kills him is guilty of manslaughter only.”37 H.H.P.C. 442.38 To the same point, and 1. H.H.P.C. 48439 and 4 Black. 27.40

I shall now consider one question more, and that is concerning provocation.*41 We have hitherto been considering self-defence, and 258how 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 consideration than we are capable of making at present; the law considers a man as capable of bearing any thing, and every thing, 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, &c. and if he kills me it will be murder, if nothing else but words preceed; 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 259and bear it; there is the distinction; hands off, touch me not, as soon as you touch me, if I run you thro' 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 when ever 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 allowances 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 Reports 135. Regina versus Mawgridge. “Rules supported by authority and general consent, shewing 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 upon 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.”42 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 an assault, 1. Hawkins Chap. 62, §1. “An assault is an attempt or offer, with force or violence, to do a corporal hurt to another; as by stricking 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 an angry, threatning manner, &c. But no words can amount to an assault.”43 Here is the definition of an assault, which is a sufficient provocation to soften killing down to manslaughter, 1. Hawkins, Chap. 31, §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 defence of his person from an unlawful arrest; or in the defence of his house, from those who claiming a title to it, attempt forcibly to enter it, and to that purpose shoot at it, &c.”44 Every snow-ball, oyster shell, cake of ice, 260or 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, whether I shoot at him or not, it is an assault, and if I insult him in that manner, and he shoots me, it is but manslaughter. Foster, 295, 6. “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 mere instinct self preservation, hath no inconsiderable share, the voice of reason is not heard. And therefore, the law in condesension to the infirmities of flesh and blood doth extenuate the offence.”45 Insolent, scurrilous, or slanderous language, when it preceeds an assault, aggravates it. Foster 316. “We all knew 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, tho' under colour of justice, possibly can.”46 I produce this to show the assault, in this case, was aggravated by the scurrilous language which preceeded 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 a provocation, is softened to manslaughter, but, killing without such provocation, makes it murder.

FIVE o'Clock, p.m. the Court adjourned till Tuesday morning 4 December, nine o'Clock.

Tuesday, NINE o'Clock, the Court met according to adjournment, and Mr. Adams proceeded.

May it please your Honours, and you Gentlemen of the Jury,

I yesterday afternoon produced from the best authorities, those rules of law which must govern all cases of homicide, particularly that which is now before you; it now remains to consider the evidence, and see whether any thing has occurred, that may be compared to the rules read to you; and I will not trouble myself nor you with laboured endeavours to be methodical, I shall endeavour to make some few observations, on the testimonies of the witnesses, such as will place 261the facts in a true point of light, with as much brevity as possible; but I suppose it would take me four hours to read to you, (if I did nothing else but read) the minutes of evidence that I have taken in this trial. In the first place the Gentleman who opened this cause, has stated to you, with candour and precision, the evidence of the identity of the persons.

The witnesses are confident that they know the prisoners at the barr, and that they were present that night, and of the party; however, it is apparent, that witnesses are liable to make mistakes, by a single example before you. Mr. Bass, who is a very honest man, and of good character, swears positively that the tall man, Warren, stood on the right that night, and was the first that fired; and I am sure you are satisfied by this time, by many circumstances, that he is totally mistaken in this matter; this you will consider at your leisure. The witnesses in general did not know the faces of these persons before; very few of them knew the names of them before, they only took notice of their faces that night. How much certainty there is in this evidence, I leave you to determine.

There does not seem to me to be any thing very material in the testimony of Mr. Aston, 47 except to the identity of McCauley, and he is the only witness to that. If you can be satisfied in your own minds, without a doubt, that he knew McCauley so well as to be sure, you will believe he was there.

The next witness is Bridgham, he says he saw the tall man Warren, but saw another man belonging to the same regiment soon after, so like him, as to make him doubt whether it was Warren or not; he thinks he saw the Corporal, but is not certain, he says he was at the corner of the Custom house, this you will take notice of, other witnesses swear, he was the remotest man of all from him who fired first, and there are other evidences who swear the left man did not fire at all; if Wemms did not discharge his gun at all, he could not kill any of the persons, therefore he must be acquitted on the fact of killing; for an intention to kill, is not murder nor manslaughter, if not carried into execution: The witness saw numbers of things thrown, and he saw plainly sticks strike the guns, about a dozen persons with sticks, gave three cheers, and surrounded the party, and struck the guns with their sticks several blows: This is a witness for the crown, and his testimony is of great weight for the prisoners; he gives his testimony very sensibly and impartially. He swears positively, that he not only 262saw ice or snow thrown, but saw the guns struck several times; if you believe this witness, of whose credibility you are wholly the judges, as you are of every other; if you do not believe him, there are many others who swear to circumstances in favour of the prisoners; it should seem impossible you should disbelieve so great a number, and of crown witnesses too, who swear to such variety of circumstances that fall in with one another so naturally to form our defence; this witness swears positively, there were a dozen of persons with clubs, surrounded the party; twelve sailors with clubs, were by much an overmatch to eight soldiers, chained there by the order and command of their officer, to stand in defence of the Sentry, not only so, but under an oath to stand there, i.e. to obey the lawful command of their officer, as much, Gentlemen of the Jury, as you are under oath to determine this cause by law and evidence; clubs they had not, and they could not defend themselves with their bayonets against so many people; it was in the power of the sailors to kill one half or the whole of the party, if they had been so disposed; what had the soldiers to expect, when twelve persons armed with clubs, (sailors too, between whom and soldiers, there is such an antipathy, that they fight as naturally when they meet, as the elephant and Rhinoceros) were daring enough, even at the time when they were loading their guns, to come up with their clubs, and smite on their guns; what had eight soldiers to expect from such a set of people? Would it have been a prudent resolution in them, or in any body in their situation, to have stood still, to see if the sailors would knock their brains out, or not? Had they not all the reason in the world to think, that as they had done so much, they would proceed farther? Their clubs were as capable of killing as a ball, an hedge stake is known in the law books as a weapon of death, as much as a sword, bayonet, or musket. He says, the soldiers were loading their guns, when the twelve surrounded them, the people went up to them within the length of their guns, and before the firing; besides all this he swears, they were called cowardly rascals, and dared to fire; he says these people were all dressed like sailors; and I believe, that by and bye you will find evidence enough to satisfy you, these were some of the persons that came out of Dock-square, after making the attack on Murray's barracks, and who had been arming themselves with sticks from the butchers stalls and cord wood piles, and marched up round Corn-hill under the command of Attucks. All the bells in town were ringing, the ratling of the blows upon the guns he heard, and swears it was violent; this corroborates the testimony of James Bailey, which will be considered presently. Some witnesses swear a 263club struck a soldier's gun, Bailey swears a man struck a soldier and knocked him down, before he fired, “the last man that fired, levelled at a lad, and moved his gun as the lad ran:” You will consider, that an intention to kill is not murder; if a man lays poison in the way of another, and with an express intention that he should take it up and die of it, it is not murder: Suppose that soldier had malice in his heart, and was determined to murder that boy if he could, yet the evidence clears him of killing the boy, I say admit he had malice in his heart, yet it is plain he did not kill him or any body else, and if you believe one part of the evidence, you must believe the other, and if he had malice, that malice was ineffectual; I do not recollect any evidence that assertains who it was that stood the last man but one upon the left, admitting he discovered a temper ever so wicked, cruel and malicious, you are to consider his ill temper is not imputable to another, no other had any intention of this deliberate kind, the whole transaction was sudden, there was but a very short space of time between the first gun and the last, when the first gun was fired the people fell in upon the soldiers and laid on with their weapons with more violence, and this served to encrease the provocation, and raised such a violent spirit of revenge in the soldiers, as the law takes notice of, and makes some allowance for, and in that fit of fury and madness, I suppose he aimed at the boy.