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Josiah Quincy’s Opening for the Defense: 29 November 1770

Josiah Quincy’s Opening for the Defense1

29 November 1770

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, as “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 an 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 addi­tional 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 ques­tions 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 reputa­tion, 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 delineated, 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 facts, 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 admit, 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.

1Wemms Trial description begins The Trial of William Wemms, James Hartegan, William M’Cauley, [and others] ... for the Murder of Crispus Attucks, [and others], ... Superior Court of Judicature, Court of Assize, and General Goal Delivery ... taken in Short-Hand by John Hodgson, Boston, 1770. description ends 68–80. At several places in Docs. IX, XV, and XVI, the editor of the Wemms Trial description begins The Trial of William Wemms, James Hartegan, William M’Cauley, [and others] ... for the Murder of Crispus Attucks, [and others], ... Superior Court of Judicature, Court of Assize, and General Goal Delivery ... taken in Short-Hand by John Hodgson, Boston, 1770. description ends summarized portions of the respective lawyers’ jury addresses. The present editors have printed these without any typographical differentiation, but have spaced them off from the body of the text.

24 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *3.

3Note by Quincy: “1 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *407.”

4John Dickinson, Letters from a Farmer in Pennsylvania 17 (Englewood Cliffs, N.J., ed. McDonald, 1962).

5Dickinson, Letters from a Farmer in Pennsylvania 17.

6Dickinson, Letters from a Farmer in Pennsylvania 17.

7That is, JA. See note 13 above.

8Although the officers of the regiment traditionally wore swords even at mess, it appears that after 1768 among the enlisted men only the sergeants carried them. Everard, History of the 29th Regiment description begins H. Everard, History of Thomas Farrington’s Regiment subsequently designated the 29th (Worcestershire) Foot 1694 to 1891, Worcester, England, 1891. description ends 59, 221. But see id. at 61, where a picture shows a grenadier, vintage 1769, wearing a sword.

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