The Writings of Samuel Adams, volume II (1770 1773)

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I am free to declare my opinion, that a cause of so great importance,
not only to this town, but to all his Majesty’s subjects, especially
to the inhabitants of cities and sea-port towns; who are expos’d to
have troops posted among them, whenever the present administration
shall take it into their heads in his Majesty’s name to send them;
such a cause, I say, ought to be fairly stated to the public; that we
may from thence learn how far we are bound to submit to every band of
soldiers we may meet in the streets, and in what instances we may
venture to interpose and prevent their murdering those whom we may
think to be innocent persons without being liable to be censured for
acting unlawfully, if we escape with our own heads, if we should fall
victims to their rage and cruelty.

It was a question put by the chief magistrate of this province to the
officer who commanded on that bloody evening. “Did you not know that
you should not have fired without the order of a civil magistrate”.
And it was sworn in court in the case of Capt. Preston, that he
answered, “I did it to save my Sentry”: But whatever his answer was,
or however “unsatisfactory” to his Honor, the question plainly implies
that it was the judgment of his Honor, that the soldiers could not
justify themselves in firing upon the people without the order of the
civil magistrate. Yet they did fire without such orders, and killed
five of his Majesty’s good subjects; most, if not all of whom were at
that time, for aught that has yet appear’d, in the peace of God and
the King! They not only fired without the orders of the civil
magistrate, but they never called for one, which they might easily
have done--They went down of their own accord, arm’d with musquets,
and bayonets fix’d, presuming that they were cloath’d with as much
authority by the law of the land, as the Posse Comitatus of the
country with the high sheriff at their head--How little regard is due
to the word fo a m--r, who would fain have flatter’d us into a belief
that the troops were sent here to aid the civil magistrate, and were
never to act without one? And let me observe, how fatal are the
effects, the danger of which I long ago mention’d, of posting a
standing army among a free people!

If his Honor was not mistaken in his judgment, and I presume he was
not, viz. that it was unlawful for them to fire without the order of
the civil magistrate, they were certainly from the beginning, at
least very imprudent and fool-hardy, in going down, arm’d as they
were, with weapons of death, without the direction of the civil
magistrate; especially, if they intended to fire, as I think it is
manifest they did.-- When Captain Preston was asked, Whether the
soldiers intended to fire, he answer’d they could not fire without
his orders: No one will pretend that they had not strength or skill
to pull their trickers; but by the rules of the army, their own rules,
they were restrained from firing till he first gave them orders: Yet
contrary to those very rules they all did fire; all but one, and he
did all he could to fire, for his gun flush’d in the pan--it is said
that when it was urg’d by the council for the crown, that by the
rules of law they ought to have retreated if they were in danger of
their lives; it was answered, that by the rules of the army they
were chain’d as it were to their post--that they dared not to retreat
without the orders of their captain--that in so doing they would have
‘expos’d themselves to a sentence of death in a court martial:’--Yet
we have it from great authority that they would have been distracted
if they had not fired, upon a supposition that they were in danger;
altho’ by the same rules of war they could not have fired any more
than they could have retreated, till the captain order’d them; and
they expos’d themselves to be shot by the sentence of a court martial
if they did fire, as much as they would have done if they had
retreated without his order--Certainly it will not be said, it was
more becoming the bravery of a British soldier, to stand his ground
against the subjects of his own King, and kill them upon the spot,
than to have retreated and deserted the glorious cause, and thus have
saved the lives of his Majesty’s subsjects.

The behavior of the party as they went from the main guard discover’d
an haughty air--they push’d their bayonets and damn’d the people as
they went along--and when they arriv’d at their post, one witness who
is a young gentleman of a liberal education and an unspotted
character, declared, that when they came down there were about ten
persons round the sentry--that one of the prisoners whom he
particularly named, loaded his gun, pushed him with his bayonet and
damn’d him--that about fifty or sixty persons came down with the
party, and that he did not observe the people press on. Another
declared, that when the soldiers were loading, about a dozen
surrounded them, and that several of them struck their guns--that he
saw ice or snow balls thrown, but did not apprehend himself or the
soldiers in danger by any thing he saw--This witness was very near
the soldiers; and will any one wonder, that when the soldiers were
to all appearance meditating the death of people by loading their
guns, while there was no apparent danger to them, some of the people
should strike their guns, to prevent the mischief which they seem’d
to be resolv’d upon.

Another declared, that one of the prisoners whom he also named, struck
him upon the arm with his bayonet as the party came down before they
formed; and that he had then told Capt. Preston that every body was
about dispersing--The characters of these witnesses will not be
contested. Such a conduct surely did not discover the most peaceable
disposition in this lawful assembly of soldiers--One would think that
they intended to assassinate those, who they had no reason to think
had the least inclination to injure them--If these are not instances
of assault, I know not what an assault is: And if they were not an
unlawful assembly before, it may well be suppos’d they were at this
time doing an unlawful act--an act that to be sure very ill became
gentlemen soldiers sent here to curb a rebellious spirit and keep the
peace: But there is a colouring at hand; and because this party did
not knock a witness down, or run him thro’, who had the audacity to
refuse at their sovereign order to move out of the way for them as
they pass’d the street from the main guard to the custom-house, tho’
he had then been push’d with a bayonet by one of them, it is
sufficient to convince all the world of their lamb-like meekness and
immaculate innocence.

I have in a former paper consider’d soldiers when quarter’d in free
cities, in the light of other inhabitants, under the same direction
of the civil magistrate and the same controul of the law of the land:
and that by this law, like all other men, they are to be protected,
govern’d, restrain’d, rewarded or punish’d. If then a soldier has the
right in common with other men, to arm himself for his defence when
he thinks there is a necessity for it, he has certainly no more right
then they, to use his weapons of death at random; or at all under a
pretence of suppressing riots, or any other pretence, without the
presence of the civil magistrate, unless his own life is in danger,
and he cannot retreat: Such a liberty would tend to increase the
disorder rather than suppress it, and would endanger life rather than
save it: In the instances I have mention’d, the lives of the soldiers
were not in danger from the men whom they assaulted: This was early
in the tragical scene, and it was an assault personally upon those
who had not attempted to do them the least injury: How far their lives
were in danger afterwards, and who were in fault, shall be the subject
of free Enquiry in a future paper.

VINDEX.

1The published report, cited above, p. 60, contains the charge to the
jury as given only by Judge Trowbridge and Judge Oliver. All that is
extant of Judge Lynde’s charge to the jury is printed in The Diaries
of Benjamin Lynde and of Benjamin Lynde, Jr., pp. 228-230.

ARTICLE SIGNED “VINDEX”

To the Printers.

That the trial of the soldiers concern’d in the carnage on the
memorable 5th of March, was the most solemn trial that ever was had
in this country, was pronounc’d from the bench. To see eight
prisoners bro’t to the bar together, charg’d with the murder of five
persons at one time, was certainly, as was then observ’d, affecting:
But whoever recollects the tragedy of that fatal evening, will I
believe readily own that the scene then was much more affecting--There
is something pleasing and solemn when one enters into a court of law
--Pleasing, as there we expect to see the scale held with an equal
hand--to find matters deliberately and calmly weigh’d and decided,
and justice administered without any respect to persons or parties,
and from no other motive but a sacred regard to truth--And it is
solemn as it brings to our minds the tribunal of GOD himself! before
whose judgment-seat the scriptures assure us all must appear: And I
have often tho’t that no one will receive a greater share of rewards
at that decisive day, than he who has approv’d himself a faithful
upright judge.

Witnesses who are bro’t into a court of justice, while their veracity
is not impeach’d, stand equal in the eye of the judge; unless he
happens to be acquainted with their different characters, which is
not presum’d--The jury who are taken from the vicinity, are suppos’d
to know the credibility of the witnesses: In the late trials the
witnesses were most if not all of them either inhabitants of this town
or transient persons residing in it, and the jurors were all from the
country: Therefore it is not likely that they were acquainted with the
characters of all the witnesses; and it is more than probable that in
so great a number of witnesses there were different characters, that
is, that some of them were more, others less creditable. If then the
judge, whose province it is to attend to the law, and who, not knowing
the characters of the witnesses, presumes that they are all good, &
gives an equal credit to them, it is the duty of the jurors who are
sovereign in regard to facts, to determine in their own minds the
credibility of those who are sworn to relate the facts: And this in a
trial for murder requires great care and attention. I would just
observe here, that in the last trial there were not less than eighty-
two witnesses for the jury to examine and compare, which was an
arduous task indeed! And I will venture further to observe, that some
of these witnesses who swore very positively were not so creditable
as others, and the testimony of one of them in particular, which was
very precisely related & very peremptory, might have been invalidated
in every part of it. I shall not at present suggest what I take to be
the reason why it was not done. These matters will no doubt have
their place in the history of the present times in some future day,
when the faithful recorder it is to be hoped will, to use the language
of our courts of justice, relate the truth, the whole truth, and
nothing but the truth.

It is enough for the jury to receive the law from the bench: They may
indeed determine this for themselves; but of facts they are ever the
uncontroulable judges. They ought therefore to receive the facts from
the mouths of the witnesses themselves, and implicitly from no other:
Unless the jury particularly attend to this, they may be in danger of
being misled by persons who would be far from doing it with design:
For instance, if one should swear that A being foreworn’d against it,
levell’d his gun and kill’d B: and afterwards it should be forgot,
that the witness also swore that A immediately advanc’d & push’d his
bayonet at C, which pass’d between his waistcoat and his skin; if this
I say should be forgot, and should be overlook’d by the jury when they
are together, perhaps instead of bringing it in murder according to
the rules of the law laid down by the bench, they would bring it in
manslaughter--I do not here affirm that this has ever been a fact: I
mention it as what may hereafter be a fact, and to show the necessity
of a jury’s relying upon facts as they receive them from the witnesses
themselves, and from them alone.

The furor brevis which we have heard much of, the fury of the blood
which the benignity of the law allows for upon sudden provocation, is
suppos’d to be of short duration--the shooting a man dead upon the
spot, must have stopp’d the current in the breast of him who shot him,
if he had not been bent upon killing--an attempt to stab a second
person immediately after, infers a total want of remorse at the
shedding of human blood; and such a temper of mind afterwards
discovers the rancorous malice before, especially if it be proved that
the same man had declated that he would never miss an opportunity so
to do: If this does not imply malice at first, I do not see but he
might have gone on stabbing people in his furor brevis, till he had
kill’d an hundred; and after all, it might have been adjudg’d, in
indulgence to the human passions, excuseable homicide.

The law in its benignity makes allowance for human passions: But the
law is just; and make this allowance upon the principles of justice:
It gives no indulgence to malice and rancour against any individual;
much less against a community or the human species--He who threatens
or thirsts for the blood of the community is an enemy to the publick;
and hostis humani generis, the enemy of mankind consummates the
villain. I will not take upon myself to say that either of these
characters belong to any of the late prisoners--There are two
remaining yet in gaol, convicted of manslaughter, and waiting
judgment of the court. With regard to one of these, namely, Kilroi,
it was sworn that about a week or a fortnight before (the 5th of
March, which must be before the affray at the ropewalks, that
happening on the 2d) he said he would never miss an opportunity of
firing upon the inhabitants, and that he had wanted such--It is said
that these might be words spoken in jest, or without any intention,
when they were spoken, of acting according to their true import &
meaning: But the witness said, he repeated the words several times:
And that after he had told him he was a very great fool for saying so,
he again declared he would never miss an opportunity.--It appears that
the witness himself, as any one might, tho’t him to be in earnest,
and rebuked him for saying so; and in truth, none but a madman, or one
whose heart was desperately wicked, would repeatedly, especially after
such wholesome reproof, have persisted in such a threat; It
discovered, to borrow the expression of a very polite & humane
gentleman, upon another late occasion, a malignity beyond what might
have been expected from a Barbarian.

It was also sworn, that this same Kilroi was with a party of soldiers
in the affray at the Ropewalks a few evenings before the 5th of March,
--and that they had clubs & cutlasses--That Kilroi was of the party of
soldiers that fired in King-street--that as the party came round
before they form’d, Kilroi struck a witness upon his arm--and after
the firing began, Kilroi struck at the same witness, tho’ he had
hear’d nothing said, nor seen any thing done to provoke the soldiers.
--Another witness declared, that he saw Kilroi there, that he knew
him well before, and was positive it was he--that he heard the word
fire, twice, upon which he said to the soldiers, damn you, don’t fire,
and Kilroi fired at once, and killed Gray, who had no weapon, and his
arms were folded in his bosom. Gray fell at the feet of this witness,
and immediately Kilroi pushed his bayonet at the witness, which pass’d
thro’ all his clothes, and came out at his surtuit behind, and he was
oblig’d to turn round to quit himself of the weapon--the witness
suppos’d he designed to kill them both.--How long is this furor
brevis, this short hurricane of passion to last in the breast of a
soldier, when called, not by the civil magistrate, but by his military
officer, under a pretence of protecting a Centinel, and suppressing a
Riot? who had taken with him weapons, not properly of defence, but of
death, and was calm enough in this impetuosity of anger, to load his
gun, and perhaps with design, to level it, for it killed one of the
very men with whom he had had a quarrel but a few evenings before: He
had now a fair opportunity, which he had wished for, and resolved
never to miss, of firing upon the inhabitants. It was said upon the
words he uttered, that if all the unjustifiable words that had been
spoken by the inhabitants of this town, were to be bro’t in judgment
against them, they would have much to answer for.--Those who believe
the letters of governor Bernard, the Commissioners of the customs,
and some others whom I could name, and will name in proper time, may
think so. I dare say, if Bernard could have proved one overt-act of
rebellion or treason, after the many things he pretended had been
said, and he or his tools could have had any influence, the words if
prov’d, would have been adjudg’d to have been said in sober earnest,
and would have been considered as material to have shown the
malignancy of the heart.

This Kilroi’s bayonet was prov’d to be the next morning bloody five
inches from the point. It was said to be possible that this might be
occassion’d by the bayonet’s falling into the human blood, which ran
plentifully in the street, for one of their bayonets was seen to fall.
It is possible, I own; but much more likely that this very bayonet was
stab’d into the head of poor Gray after he was shot, and that this
may account for its being bloody five inches from the point--Such an
instance of Savage barbarity there undoubtedly was.--It was sworn
before the Magistrate who first examined into this cruel tragedy,
though the witness who then swore it, being out of this province,
could not be produced in Court upon the trial. It is not to be
wonder’d at that any material witness was out of the way, when it is
consider’d that the trial did not come on till the secord term, and
nine months after the facts were committed. I shall continue the
subject at my leisure.

VINDEX.

Dec. 11th.

ARTICLE SIGNED “VINDEX.”

[Boston Gazette, December 24, 1770.]

To the Printers.

In the late trials of Preston and the Soldiers, it was observ’d that
the Court constantly from day to day adjourn’d at noon and at sun-set
--Our enemies, who are fruitful in their inventions, may possibly from
hence take occasion to represent that it was dangerous for the Court
to sit in the tumultuous town of Boston after dark. At the first view
it may perhaps bear this complexion in the eye of a prejudiced
stranger; for such adjournments in capital causes it may be were never
before known here: But the representation would be without the least
foundation in truth. It is possible that among other reasons this
might be one, that the judges are all of them, to use the words of a
good old Patriarch, well stricken in years, and one of them labours
under infirmities of Body. I have another observation to make on this
occasion, but I reserve it till a future opportunity.

I have already said that the Soldiers in coming down from the main-
guard to the custom-house behaved with an haughty air--that they
abused the people as they pass’d along--pushing them with their
bayonets--and damning them; and when they had got to their post, they
in like manner abused and struck innocent persons there who offer’d
them no injury--and all this was even before they form’d, in doing
which it does not appear to be danger to them or any one else. These
facts, I think were prov’d, if we may believe persons of good credit,
who declared them upon their oaths in Court:--And that they came down
under a pretence of suppressing a riot, without a civil magistrate or
peace officer, which ought always to be remembered, no one will
dispute.

There was indeed a sort of evidence bro’t into Court, which, if it is
at all to be rely’d upon, may serve to invalidate in some measure what
has been said--namely the declaration of one of the deceas’d persons,
as it was related by a gentleman who dress’d his wounds, and to whom
he is said to have declared it. This man, as the doctor testified,
told him among many other things, that he saw some Soldiers passing
from the main-guard to the custom-house and the people pelted them as
they went along. But whether these Soldiers were Preston and his
party; or other Soldiers who are mention’d by another witness, as
going from the main-guards towards the Centry, having short coats and
arm’d with bayonets, swords or sticks, and one of them with a pair of
kitchen tongs, chasing the people as they went, must remain an
uncertainty--If he meant the former, it is somewhat strange that among
all the witnesses on both sides, no one saw the people pelting them as
they went along but he. This man confess’d to the doctor that he was
a fool to be there--was surprized at the forbearance of the soldiers;
believed that they fired in their own defence & freely forgave the man
that shot him. But it is to be observed, he did not declare this under
oath nor before a magistrate: It was however the dying speech,--very
affecting and all, true no doubt; altho’ no one knew the character of
this believing penitent either in point of veracity or judgment.--By
the testimony of his land-lady in Court, one would not form the best
opinion of him; but de mortuis nil nisi bonum.

There were others ready to be sworn, if the Council for the crown had
thought it worth while to have bro’t them forward, that they also
could relate what this man had told them, viz. that his doctors had
encouraged him that he would soon recover of his wounds, and he hoped
to live to be a swift witness against the soldiers--Great stress was
laid by some upon the simple declaration of this man, who in all
probability died in the faith of a roman catholick. This, however, I
am apt to think, will not disparage his declaration in the opinion
of some great men at home, even tho’ he did not make his confession to
a ghostly physician.

Before I proceed to enquire into the danger the Soldiers were in, if
they were in any at all, and who were in fault, I will take the
liberty to lead the reader back to a consideration of the temper the
Soldiers in general discovered, and their correspondent conduct, for
some considerable time before the fatal tragedy was acted--It is well
known indeed that from their first landing, their behavior was to a
great degree insolent; and such as look’d as if they had enter’d
deeply into the spirit of those who procur’d them,--and really
believed, that we were a country of rebels and they were sent here to
subdue us. But for some time before the fifth of March, they more
frequently insulted the inhabitants who were quietly passing the
streets; and gave out many threats, that on that very night the blood
would run down the streets of Boston, and that many who would dine on
Monday would not breakfast on Tuesday; and to show that they were in
earnest they forewarn’d their particular acquaintance to take care of
themselves--These things were attested before the magistrates by
credible persons under oath.--Accordingly when the Monday evening came
on, they were early in every part of the town arm’d with bludgeons,
bayonets and cutlasses, beating those whom they could, and assaulting
and threatning others--By the way, I will just observe for the
information of a certain honorable gentleman, that the name of
bludgeons was unheard of in this town till the Soldiers arrived--This
behavior put the inhabitants in mind of their threatenings; and was
the reason that those of them who had occasion to walk the streets,
came out arm’d with canes or clubs. Between eight and nine o’clock,
the Soldiers in Murray’s barracks in the centre of the town rush’d out
with their naked cutlasses insulting, beating and wounding the
inhabitants who were passing along: This, in so frequented a street,
naturally collected numbers of people who resented the injury done
and an affray ensued--About the same time a difference arose in King-
street, between a centry there and a barber’s boy, who said to his
fellow-apprentice in the hearing of the centry “there goes Capt.-----
who has not paid my master for dressing his hair:” The centry
foolishly resented it, and word took place; and the boy answering him
with pertness, & calling him a name, the centry struck him. Here was
the first assault in King-street.--But for what reason the evidence
of this matter was not bro’t into Court, at the last trial, as it had
been at the trial of Preston, the reader if he pleases may conjecture.
At the same time a gentleman not living far from the custom-house,
and hearing as he tho’t a distant cry of murder, came into the street,
which he had just before left perfectly still, and to use his words,
“never clearer”: He there saw a party of Soldiers issue from the
mainguard, and heard them say, damn them where are they, by Jesus let
them come; and presently after another party rush’d thro’ Quaker-lane
into the street, using much such expressions:--Their arms glitter’d in
the moon-light. These cried fire, and ran up the street and into
Cornhill which leads to Murray’s barracks; in their way they knocked
down a boy of twelve years old, a son of Mr. Appleton, abused and
insulted several gentlemen at their doors and others in the street:--
Their cry was, damn them, where are they, knock them down; and it is
suppos’d they join’d in the affray there, which still continued--They
also then cried fire, which one of the witnesses took to be their
watch-word.

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