Chapter 5

I must entreat you to consider the words of this authority. The injured person may repel force by force against any who endeavoreth to commit any kind of felony on him or his. Here the rule is, I have a right to stand on my own defense, if you intend to commit felony. If any of the persons made an attack on these soldiers, with an intention to rob them, if it was but to take their hats feloniously, they had a right to kill them on the spot, and had no business to retreat. If a robber meet me in the street and command me to surrender my purse, I have a right to kill him without asking any questions. If a person commit a bare assault on me, this will not justify killing; but if he assault me in such a manner as to discover an intention to kill me, I have a right to destroy him, that I may put it out of his power to kill me. In the case you will have to consider, I do not know there was any attempt to steal from these persons; however, there were some persons concerned who would, probably enough, have stolen, if there had been anything to steal, and many were there who had no such disposition. But this is not the point we aim at. The question is, Are you satisfied the people made the attack in order to kill the soldiers? If you are satisfied that the people, whoever they were, made that assault with a design to kill or maim the soldiers, this was such an assault as will justify the soldiers killing in their own defense. Further, it seems to me, we may make another question, whether you are satisfied that their real intention was to kill or maim, or not? If any reasonable man in the situation of one of these soldiers would have had reason to believe in the time of it, that the people came with an intention to kill him, whether you have this satisfaction now or not in your own minds, they were justifiable, at least excusable, in firing. You and I may be suspicious that the people who made this assault on the soldiers did it to put them to flight, on purpose that they might go exulting about the town afterwards in triumph; but this will not do. You must place yourselves in the situation of Weems and Killroy--consider yourselves as knowing that the prejudice of the world about you thought you came to dragoon them into obedience, to statutes, instructions, mandates, and edicts, which they thoroughly detested--that many of these people were thoughtless and inconsiderate, old and young, sailors and landsmen, negroes and mulattoes--that they, the soldiers, had no friends about them, the rest were in opposition to them; with all the bells ringing to call the town together to assist the people in King Street, for they knew by that time that there was no fire; the people shouting, huzzaing, and making the mob whistle, as they call it, which, when a boy makes it in the street is no formidable thing, but when made by a multitude is a most hideous shriek, almost as terrible as an Indian yell; the people crying, "Kill them, kill them. Knock them over," heaving snowballs, oyster shells, clubs, white-birch sticks three inches and a half in diameter; consider yourselves in this situation, and then judge whether a reasonable man in the soldiers' situation would not have concluded they were going to kill him. I believe if I were to reverse the scene, I should bring it home to our own bosoms. Suppose Colonel Marshall when he came out of his own door and saw these grenadiers coming down with swords, etc., had thought it proper to have appointed a military watch; suppose he had assembled Gray and Attucks that were killed, or any other person in town, and appointed them in that situation as a military watch, and there had come from Murray's barracks thirty or forty soldiers with no other arms than snowballs, cakes of ice, oyster shells, cinders, and clubs, and attacked this military watch in this manner, what do you suppose would have been the feelings and reasonings of any of our householders? I confess, I believe they would not have borne one-half of what the witnesses have sworn the soldiers bore, till they had shot down as many as were necessary to intimidate and disperse the rest; because the law does not oblige us to bear insults to the danger of our lives, to stand still with such a number of people around us, throwing such things at us, and threatening our lives, until we are disabled to defend ourselves.

(Foster, 274): "Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force, and even his own servant, then attendant on him, or any other person present, may interpose for preventing mischief, and if death ensue, the party so interposing will be justified. In this case nature and social duty co-operate."

Hawkins, P. C., Chapter 28, Section 25, towards the end:--"Yet it seems that a private person, _a_ _fortiori_, an officer of justice, who happens unavoidably to kill another in endeavoring to defend himself from or suppress dangerous rioters, may justify the fact in as much as he only does his duty in aid of the public justice."

Section 24:--"And I can see no reason why a person, who, without provocation, is assaulted by another, in any place whatsoever, in such a manner as plainly shows an intent to murder him, as by discharging a pistol, or pushing at him with a drawn sword, etc., may not justify killing such an assailant, as much as if he had attempted to rob him. For is not he who attempts to murder me more injurious than he who barely attempts to rob me? And can it be more justifiable to fight for my goods than for my life?"

And it is not only highly agreeable to reason that a man in such circumstances may lawfully kill another, but it seems also to be confirmed by the general tenor of our books, which, speaking of homicide _se_ _defendo_, suppose it done in some quarrel or affray.

(Hawkins, p. 71. section 14); "And so, perhaps, the killing of dangerous rioters may be justified by any private persons, who cannot otherwise suppress them or defend themselves from them, inasmuch as every private person seems to be authorized by the law to arm himself for the purposes aforesaid."

Here every private person is authorized to arm himself; and on the strength of this authority I do not deny the inhabitants had a right to arm themselves at that time for their defense, not for offense. That distinction is material, and must be attended to.

(Hawkins, p. 75, section 14): "And not only he who on an assault retreats to the wall, or some such strait, beyond which he can go no further before he kills the other, is judged by the law to act upon unavoidable necessity; but also he who being assaulted in such a manner and in such a place that he cannot go back without manifestly endangering his life, kills the other without retreating at all."

(Section 16); "And an officer who kills one that insults him in the execution of his office, and where a private person that kills one who feloniously assaults him in the highway, may justify the fact without ever giving back at all."

There is no occasion for the magistrate to read the riot act. In the case before you, I suppose you will be satisfied when you come to examine the witnesses and compare it with the rules of the common law, abstracted from all mutiny acts and articles of war, that these soldiers were in such a situation that they could not help themselves. People were coming from Royal Exchange Lane, and other parts of the town, with clubs and cord-wood sticks; the soldiers were planted by the wail of the Customhouse; they could not retreat; they were surrounded on all sides, for there were people behind them as well as before them; there were a number of people in the Royal Exchange Lane; the soldiers were so near to the Customhouse that they could not retreat, unless they had gone into the brick wall of it. I shall show you presently that all the party concerned in this unlawful design were guilty of what any one of them did; if anybody threw a snowball it was the act of the whole party; if any struck with a club or threw a club, and the club had killed anybody, the whole party would have been guilty of murder in the law. Lord Chief-Justice Holt, in Mawgrige's case (Keyling, 128), says:--

"Now, it has been held, that if A of his malice prepense assaults B to kill him, and B draws his sword and attacks A and pursues him, then A, for his safety, gives back and retreats to a wall, and B still pursuing him with his drawn sword, A in his defense kills B; this is murder in A. For A having malice against B, and in pursuance thereof endeavoring to kill him, is answerable for all the consequences of which he was the original cause. It is not reasonable for any man that is dangerously assaulted, and when he perceives his life in danger from his adversary, but to have liberty for the security of his own life, to pursue him that maliciously assaulted him; for he that has manifested that he has malice against another is not at to be trusted with a dangerous weapon in his hand. And so resolved by all the judges when they met at Seargeant's Inn, in preparation for my Lord Morley's trial."

In the case here we will take Montgomery, if you please, when he was attacked by the stout man with a stick, who aimed it at his head, with a number of people round him crying out, "Kill them, kill them." Had he not a right to kill the man? If all the party were guilty of the assault made by the stout man, and all of them had discovered malice in their hearts, had not Montgomery a right, according to Lord Chief-Justice Holt, to put it out of their power to wreak their malice upon him? I will not at present look for any more authorities in the point of self-defense; you will be able to judge from these how far the law goes in justifying or excusing any person in defense of himself, or taking away the life of another who threatens him in life or limb. The next point is this: that in case of an unlawful assembly, all and every one of the assembly is guilty of all and every unlawful act committed by any one of that assembly in prosecution of the unlawful design set out upon.

Rules of law should be universally known, whatever effect they may have on politics; they are rules of common law, the law of the land; and it is certainly true, that wherever there is an unlawful assembly, let it consist of many persons or of a few, every man in it is guilty of every unlawful act committed by any one of the whole party, be they more or be they less, in pursuance of their unlawful design. This is the policy of the law; to discourage and prevent riots, insurrections, turbulence, and tumults.

In the continual vicissitudes of human things, amidst the shocks of fortune and the whirls of passion that take place at certain critical seasons, even in the mildest government, the people are liable to run into riots and tumults. There are Church-quakes and State-quakes in the moral and political world, as well as earthquakes, storms, and tempests in the physical. Thus much, however, must be said in favor of the people and of human nature, that it is a general, if not a universal truth, that the aptitude of the people to mutinies, seditions, tumults, and insurrections, is in direct proportion to the despotism of the government. In governments completely despotic,--that is, where the will of one man is the only law, this disposition is most prevalent. In aristocracies next; in mixed monarchies, less than either of the former; in complete republics the least of all, and under the same form of governments as in a limited monarchy, for example, the virtue and wisdom of the administrations may generally be measured by the peace and order that are seen among the people. However this may be, such is the imperfection of all things in this world, that no form of government, and perhaps no virtue or wisdom in the administration, can at all times avoid riots and disorders among the people.

Now, it is from this difficulty that the policy of the law has framed such strong discouragements to secure the people against tumults; because, when they once begin, there is danger of their running to such excesses as will overturn the whole system of government. There is the rule from the reverend sage of the law, so often quoted before:--

(1 H. H. P. C. 437): "All present, aiding and assisting, are equally principal with him that gave the stroke whereof the party died. For though one gave the stroke, yet in interpretation of law it is the stroke of every person that was present, aiding and assisting."

(1 H. H. P. C. 440): "If divers come with one assent to do mischief, as to kill, to rob or beat, and one doeth it, they are all principals in the felony. If many be present and one only give the stroke whereof the party dies, they are all principal, if they came for that purpose."

Now, if the party at Dock Square came with an intention only to beat the soldiers, and began to affray with them, and any of them had been accidentally killed, it would have been murder, because it was an unlawful design they came upon. If but one does it they are all considered in the eye of the law guilty; if any one gives the mortal stroke, they are all principals here, therefore there is a reversal of the scene. If you are satisfied that these soldiers were there on a lawful design, and it should be proved any of them shot without provocation, and killed anybody, he only is answerable for it.

(First Kale's Pleas of the Crown, 1 H. H. P. C. 444): "Although if many come upon an unlawful design, and one of the company till one of the adverse party in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of the adverse party, without any particular abetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those that gave the stroke or actually abetted him to do it."

(1 H. H. P. C. 445): "In case of a riotous assembly to rob or steal deer, or to do any unlawful act of violence, there the offense of one is the offense of all the company."

(In another place, 1 H. H. P. C. 439): "The Lord Dacre and divers others went to steal deer in the park of one Pellham. Raydon, one of the company, killed the keeper in the park, the Lord Dacre and the rest of the company being in the other part of the park. Yet it was adjudged murder in them all, and they died for it." (And he quotes Crompton 25, Dalton 93. p. 241.) "So that in so strong a case as this, where this nobleman set out to hunt deer in the ground of another, he was in one part of the park and his company in another part, yet they were all guilty of murder."

The next is:--

(Kale's Pleas of the Crown, 1 H. H. P. C. 440): "The case of Drayton Bassit; divers persons doing an unlawful act, all are guilty of what is done by one."

(Foster 353, 354): "A general resolution against all opposers, whether such resolution appears upon evidence to have been actually and implicitly entered into by the confederates, or may reasonably be collected from their number, arms or behavior, at or before the scene of action, such resolutions so proved have always been considered as strong ingredients in cases of this kind. And in cases of homicide committed in consequence of them, every person present, in the sense of the law, when the homicide has been involved in the guilt of him that gave the mortal blow."

(Foster): "The cases of Lord Dacre, mentioned by Hale, and of Pudsey, reported by Crompton and cited by Hale, turned upon this point. The offenses they respectively stood charged with, as principals, were committed far out of their sight and hearing, and yet both were held to be present. It was sufficient that at the instant the facts were committed, they were of the same party and upon the same pursuit, and under the same engagements and expectations of mutual defense and support with those that did the facts."

Thus far I have proceeded, and I believe it will not be hereafter disputed by anybody, that this law ought to be known to every one who has any disposition to be concerned in an unlawful assembly, whatever mischief happens in the prosecution of the design they set out upon, all are answerable for it. It is necessary we should consider the definitions of some other crimes as well as murder; sometimes one crime gives occasion to another. An assault is sometimes the occasion of manslaughter, sometimes of excusable homicide. It is necessary to consider what is a riot, (1 Hawkins, ch. 65, section 2): I shall give you the definition of it:--

"Wheresoever more than three persons use force or violence, for the accomplishment of any design whatever, all concerned are rioters."

Were there not more than three persons in Dock Square? Did they not agree to go to King Street, and attack the main guard? Where, then, is the reason for hesitation at calling it a riot? If we cannot speak the law as it is, where is our liberty? And this is law, that wherever more than three persons are gathered together to accomplish anything with force, it is a riot.

(1 Hawkins, ch. 65, section 2): "Wherever more than three persons use force and violence, all who are concerned therein are rioters. But in some cases wherein the law authorizes force, it is lawful and commendable to use it. As for a sheriff [2 And. 67 Poph. 121], or constable [3 H. 7, 10, 6], or perhaps even for a private person [Poph. 121, Moore 656], to assemble a competent number of people, in order with force to oppose rebels or enemies or rioters, and afterwards, with such force actually to suppress them."

I do not mean to apply the word rebel on this occasion; I have no reason to suppose that ever there was one in Boston, at least among the natives of the country; but rioters are in the same situation, as far as my argument is concerned, and proper officers may suppress rioters, and so may even private persons.

If we strip ourselves free from all military laws, mutiny acts, articles of war and soldiers' oaths, and consider these prisoners as neighbors, if any of their neighbors were attacked in King Street, they had a right to collect together to suppress this riot and combination. If any number of persons meet together at a fair or market, and happen to fall together by the ears, they are not guilty of a riot, but of a sudden affray. Here is another paragraph, which I must read to you:--

(1 Hawkins, ch. 65, section 3): "If a number of persons being met together at a fair or market, or on any other lawful or innocent occasion, happen, on a sudden quarrel, to fall together by the ears, they are not guilty of a riot, but of a sudden affray only, of which none are guilty but those who actually began it," etc.

It would be endless, as well as superfluous, to examine whether every particular person engaged in a riot were in truth one of the first assembly or actually had a previous knowledge of the design thereof. I have endeavored to produce the best authorities, and to give you the rules of law in their words, for I desire not to advance anything of my own. I choose to lay down the rules of law from authorities which cannot be disputed. Another point is this, whether and how far a private person may aid another in distress? Suppose a press-gang should come on shore in this town and assault any sailor or householder in King Street, in order to carry him on board one of his Majesty's ships, and impress him without any warrant as a seaman in his Majesty's service; how far do you suppose the inhabitants would think themselves warranted by law to interpose against that lawless press-gang? I agree that such a press-gang would be as unlawful an assembly as that was in King Street. If they were to press an inhabitant and carry him off for a sailor, would not the inhabitants think themselves warranted by law to interpose in behalf of their fellow-citizen? Now, gentlemen, if the soldiers had no right to interpose in the relief of the sentry, the inhabitants would have no right to interpose with regard to the citizen, for whatever is law for a soldier is law for a sailor and for a citizen. They all stand upon an equal footing in this respect. I believe we shall not have it disputed that it would be lawful to go into King Street and help an honest man there against the press-master. We have many instances in the books which authorize it.

Now, suppose you should have a jealousy in your minds that the people who made this attack upon the sentry had nothing in their intention more than to take him off his post, and that was threatened by some. Suppose they intended to go a little further, and tar and feather him, or to ride him (as the phrase is in Hudibras), he would have had a good right to have stood upon his defense--the defense of his liberty; and if he could not preserve that without the hazard of his own life, he would have been warranted in depriving those of life who were endeavoring to deprive him of his. That is a point I would not give up for my right hand--nay, for my life.

Well, I say, if the people did this, or if this was only their intention, surely the officers and soldiers had a right to go to his relief; and therefore they set out upon a lawful errand. They were, therefore, a lawful assembly, if we only consider them as private subjects and fellow-citizens, without regard to mutiny acts, articles of war, or soldiers' oaths. A private person, or any number of private persons, has a right to go to the assistance of a fellow-subject in distress or danger of his life, when assaulted and in danger from a few or a multitude.

(Keyl. 136): "If a man perceives another by force to be injuriously treated, pressed, and restrained of his liberty, though the person abused doth not complain or call for aid or assistance, and others, out of compassion, shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter."

Keyl.: "A and others without any warrant impress B to serve the king at sea. B quietly submitted, and went off with the pressmaster. Hugett and the others pursued them, and required a sight of their warrant; but they showing a piece of paper that was not a sufficient warrant, thereupon Hugett with the others drew their swords, and the pressmasters theirs, and so there was a combat, and those who endeavored to rescue the pressed man killed one of the pretended pressmasters. This was but manslaughter; for when the liberty of one subject is invaded, it affects all the rest. It is a provocation to all people, as being of ill example and pernicious consequences."

Lord Raymond, 1301. The Queen _versus_ Tooley _et_ _al_. Lord Chief-Justice Holt says: "The prisoner (i.e. Tooley) in this had sufficient provocation; for if one be impressed upon an unlawful authority, it is a sufficient provocation to all people out of compassion; and where the liberty of the subject is invaded, it is a provocation to all the subjects of England, etc.; and surely a man ought to be concerned for Magna Charta and the laws: and if any one, against the law, imprisons a man, he is an offender against Magna Charta."

I am not insensible to Sir Michael Foster's observations on these cases, but apprehend they do not invalidate the authority of them as far as I now apply them to the purposes of my argument. If a stranger, a mere fellow-subject, may interpose to defend the liberty, he may, too, defend the life of another individual. But, according to the evidence, some imprudent people, before the sentry, proposed to take him off his post; others threatened his life; and intelligence of this was carried to the main guard before any of the prisoners turned out. They were then ordered out to relieve the sentry; and any of our fellow-citizens might lawfully have gone upon the same errand. They were, therefore, a lawful assembly.