May it please &c.

It now remains to close this Cause on the part of the Crown, a cause, which from the Importance of it has been examined with such minuteness and protracted to such a length that I fear it has fatigued your attention as I am certain it has exhausted my Spirits. However Gentlemen it may serve to show you and all the world2 that the Benignity of the English Law, so much relied on by the Council for the Prisoners is well known and attended to among us and Sufficiently applied in the Cause at Barr; far be it from me to advance or even insinuate any thing to the disparagement of that well known Principle of English Law, in Support of which the Council last speaking for the Prisoners has produced so many Authoritys; Nor should I think it needful to remark perticularly on it but that it has been traced thro so many Authoritys and urged with so much  3 as tho it were the foundation of their Defence, or at least a principle Argument relyed on.

But Gentlemen if you consider this Sort of reasoning one moment you will be sensible that it tends more to [amuse?] than <infor> enlighten and without due caution might Captivate your attention to that principle of Law which is [endeared?] by the Name of Candour Mercy and Benignity while it draws you intirely from Justice that essential principle without which the Law were but an empty Sound. Justice, strict, Justice is the ultimate Object of our Law. And to me it seems no hard Task to [maintain?] that the Attribute of mercy or Benignity can be ascribed to nothing abstract[ed?] from that of Justice and therefore that a “Law all Mercy[”] would be an [unjustice] and therefore when we talk of the Benignity of the <English> Law We can understand nothing more by it than what is fairly Comprehended in Ld. Coke’s Observation on Our Law in General that it is Ultima Ratio the last improvement of Reason which in the nature of it will not admitt any Proposition to be true of which it has not Evidence, nor determine that to be certain of which there remains a doubt; if therefor in the examination of this Cause the Evidence is not sufficient to Convince beyond reasonable Doubt of the Guilt of all or any of the Prisoners by the Benignity and Reason of the Law you will acquit them, but if the Evidence be sufficient to convince you of their Guilt beyond reasonable Doubt the Justice of the Law will require you to declare them Guilty and the Benignity of the Law will be satisfyed in the fairness and impartiality of their Tryal.

I am sensible, Gentlemen I have got the severe side of the question to Conduct. I am arguing against the Lives of eight of our fellow Subjects the Very thought of which is enough to excite your Compassion and to influence my Conduct; the Council for the Crown4 well aware of their Advantage arising from the humane Side of the Question, have availed themselves of all the Observations arising therefrom and have pressed the Defence by such Appeals to the Passions in favor of Life as might be grating to your humanity should I attempt the like against Life. Numberless are the Observations that have been made in order to set the Prisoners in a favorable point of Light and bring them within the notice of your Compassion. It has been represented “that the Life of a Soldier is thought to be less valuable among us than the life of a private Subject” than which nothing can be more ill founded. What ever Wrath and bitterness may have been expressed by Some on Account of the unhappy Transaction now under Examination it was no more than would have been said had the Persons who did it not been Soldiers. Nay the very appearance of this Tryal, the Conduct of the Witnesses, and Spectators and all Concerned in it must Satisfye any one that a Soldiers Life is by no means [undervalued?], but that they have as fair Opportunitys of defence as any other Subjects. It has been observed to you Gentlemen that the Evidence against the Prisoners has been for a long time past published and put into all your hands, and the Supposed inconveniencys which the Prisoners labour under on that Account have been Displayed with a vehemence of Expression;  5 for my part I am really at [a] Loss to determine.

The <Truth> whole of the Facts is this. Immediately after the Unhappy Homicide it was very naturally considered as attended with such Circumstances as would engage the Attention of Authority in Great Britain and as it was well known that Representations were making and Dispatches about to be sent respecting the Matter it was thought necessary to collect and send such Evidence as was feared would be omitted that so we might not Suffer in Our Conduct for want of it; the Copys of those Depositions were here Sacredly Concealed, nor would the Contents of them have got Abroad but that Copys printed on the other side the Water came over here and being free from the Controul of the Town were reprinted and for what I know in some means dispersed before the Tryal came on.

But I am really at a loss to determine whether this unexpected and undesigned Event has tended more to the Advantage or disadvantage, of the Prisoners, for it is notorious that by means of it they have known the Strength of the Evidence against them, and had time to prepare to encounter it which is manifest by the Rout [Route] taken in their Defence they have endeavoured, while the Council for the Crown with all their supposed assistance having [neither] seen nor heard of the <witnesses> Evidence to be produced in favour of the Prisoners, were surprised with a great part of it and had not the same Opportunity to prepare Evidence to oppose it which perhaps [they] might have found; but to what purpose is it to exclaim against the hard fate of the Prisoners on account of that Publication or any supposed Rancour against them when you Gentlemen know you are not prejudiced in the Cause nor have [formed?] any Judgment respecting it, as you have declared on your Oaths and when nothing has been or can be objected to the credibility of Witnesses for the Crown and when nothing Appears of Partiality in the manner or matter of their Testimony; but even many Matters are testified by them of which the Council for the Prisoners avail themselves in the Defence and which never could have escaped any person whose mind was so unduly agitated with Passion as has been Complaind of.

Relying upon it therefore Gentlemen that as on the one hand you have Concieved none of those Prejudices <compl> against the Prisoners Complained of so on the other hand you will not Suffer your Selves to be amused with a Supposition of facts which do not Exist nor with Representations and Arguments which have no foundation; I shall endeavour to address my self to your Cool and Candid Reason and in the breifest manner I am able consider the Evidence that has been Offered in their Defence, the Arguments and Law that have been applied to it, and then observing on the Evidence against the Prisoners and the Law operating thereon, I shall rest the Matter with you.

In the first place, Gentlemen, you percieve that a very considerable part of the Evidence produced by the Prisoners is designed to prove to you that on the Evning of the 5th of March the Town was in a genral Commotion that vast Numbers of People were seen coming from all parts of the Town Armed with Clubbs and Sticks of various Sizes and some with Guns and that they Assembled at and Near King Street that Fire was cryed and the Bells rung in Order to encrease the Collection and from all this you may be induced to believe that there was a genral design in a great Number of the Inhabitants to Attack the Soldiers, that it was the Inhabitants who began the disorders of the Evning and that all the Misfortunes of it was the Effect of their disorderly Conduct. But Gentlemen if we recollect the Evidence we shall find that previous to all this Collection [a] Number of Soldiers had come out of their Barracks Armed with Clubbs Bayonet[s] Cutlasses Tongs and Instruments of divers kind and in the most disorderly and outrageous manner were ravaging the Streets Assaulting every one they met and even turning out of their way to Assault and enda[n]ger the Lives of some of the most peaceable Inhabitants who were standing at their own Doors and who did nor said any thing to them. For the Truth of this Consider the Testimony of Mr. Appleton, Kneeland and Thayer and even vented their inhumanity on a little Boy of 12 years old. That <they> some of them were conspiring to Blow up Liberty Tree in the manner as had been done at N. York the account of which had then just come among us, and the Plan they were laying for doing it as appears by the Testimony of Mr. Cox. Consider also the Testimony we have from Col. Marshall, Bailey, Crookshanks, Mr. B. Davis and others who declare the outrageous appearance, Behaviour and threatnings of the Soldiers at other times and places that Evning. Consider also the Testimony of those who give an account of the Affray at Murrays Barracks where by the Testimony of Mr. Archibald 18 or 20 Soldiers had rushed out with Cutlasses Tongs &c. attacking all that came in their way struck him and another Person and cut an Oysterman on the Sholdier of whose Testimony we are deprived by reason of his Abscence. I mention this Testimony of Mr. Archibald as also that of Mr. Bass the more particularly as in all proba[bi]lity it was the begining of that affair at those Barracks of which so much has been said. Consider also the Testimony of Mr. Wilkenson and Helyer to the Behaviour of the Soldiers and Inhabitants at that place and it will represent to you the true Light in which that Affair ought to be viewed.

The Inhabitants had for a Long while been fully sensible of the ill disposition and Abusive Behaviour of many of the Soldiers towards them and the most peaceable among us had <thought> found it necessary to arm themselves with heavy Walking Sticks or Weapons of Defence when they went abroad. This Occasioned that appearance of Sticks in almost every ones hand which has been testified and which in fact was little more than might have been seen on any other night.

In order to draw this affair to one point of view you will consider the Account given you of the affray at the Ropewalks at 4 or 5 different times some few days before in some [one or] other of which Warren, Kilroy and Carrol three of the Prisoners at the Barr were present. From Mr. Ferriters Testimony it is clear that Affray began first by the abuse of [i.e. from] the Soldier and that previous to the unseemly Answer given by one of the Workmen. From this Testimony the Testimony of James Bayley and also of Col. Hill a Majestrate of the County (as when they struck after he had told em he was)6 we have such an Account of the Riotous barbarous ungoverned and ungovernable Behaviour of those Soldiers as must necessarily fill the minds of the Inhabitants with very alarming Prospects which when added to the Behaviour of the Soldiers on the unhappy Evning must naturally give rise to all that appearance.

There can be no doubt but that the Collection of people that were seen that night was occasioned by many different Causes. It evidently appears it was a bright moon light Evning the pleasantness of which increasd by a new fall’n Snow [. . .] many persons to be walking the Streets, <and some of them> these hearing of the outrages of the Soldiers stop’d to see and enquire of the matter and some of them might join with those who were abused and make preparation to defend them­selves. Such were those who being abused by the Soldiers at Murrays Barracks ran down to Dock Square and began to pull the Leggs out of the Bu[t]chers Stalls as is testified by Bass and is doubtless the same Appearance Testified by Hewes and some other of their Witnesses. Great Numbers were brought by the ringing of the Bells and cry of Fire which cry by Coll. Marshalls Account was repeated by the Soldiers as well as some of the Inhabitants. Upon this Numbers came out of their Houses from all parts with Bucketts and Baggs as is usual in case of Fire and many Witnesses testify of a Number of Fire Engines that were drawn out on the Occasion of these. Great Numbers went away. Some few tarried to see the End of those disorders of which they had had such repeated accounts.

The Account given by Mr. William Hunter, Michelson, Selkrig and Bowman all relate to the same Collection of People in Dock Square7 which they observed from Mr. Hunters Balcony. Mr. Bowman’s Account is that as the Bells rung the People collected and asked where the fire was. The Account[s] given by Dr. Hirons, Capt. Goldfinch, Dr. Jeffrys and Thos. Simmons appear evidently to have been the Consequence of the Soldiers rushing out in the manner before described and however little it can be justified yet who can say that any thing better could be expected when they found they could not walk their Streets in peace without danger of assasination. But how doth all this prove the grand point for which it must have [been] produced vizt. that there was a combination among the Inhabitants to attack the Soldiery; Does the threatning Rude and indecent Speeches of which so much pains has been taken to give you Evidence prove any thing like this? Is it to be wondered at that among a Number of people collected on such an Occasion there should be some who should rashly and without design express themselves in such a manner and must the disposition and intention of the whole be collected from such Expressions heard only by a few.8

Was it Lawful for the Inhabitants of Boston to <be in> walk the Streets that Evning and with Sticks? Was it Lawful for them to run on the Cry of Fire? Was it lawful for them to stop to enquire into any disturbance that had hapned, and while they were thus walking running or enquiring must they be Answerable for the rude Speech of every person that happens to be near them, when it does not appear they assented to them or joined in putting them in Execution? How many Sailors and foreigners of the lower Class may we well suppose there is in so populous a Sea Port who are fond of mingling with such Commotions and pushing on a disorder of which they feel not the Consequence. In all this Gentlemen I go upon the Supposition that the Witnesses who have testified of these threatning Speaches are not mistaken or omitted some Circumstance that might alter the force of them; and how far there is a [possibility] of that you will judge when you consider the great Confusion they give an account of Concomitant there with; to me Gentlemen it seems clearly that if those Speaches were made in the manner that has been testified, however rude and indiscreet yet they are rather to be resolved into that <frenzy of> undisciplined Resentment and those frantick transports of Passion which naturally take place among a free People Oppressed and galled with the ravagings of an ungoverned Soldiery, than to be construed as Evidence of an Insurrection or a design to put in Execution the Supposed threats; And really when we trace the Evidence to the End of the affair we dont find an attempt to put them in Execution.

What Attack was made or pretended to be made on the Main Guard? <What> Consider the Evidence respecting the people who ran up Cornhill, and there Number quality and arms were such as must render the Supposition of such an attempt the Subject of Ridicule rather than Serious Argument. Of the 200 Collected in Dock Square as testified by the Gentlemen in the Balcony, who Huzza’d for the M[ain] G[uard] and ran several ways to K[ing] S[treet] together with the large Company from M[urray’s] Barracks some of whom ran toward the Town House as testified by others, we find but a very few that ever got into K.S.; for by the best Account we dont find above 70 or 80 there some very Credible Witnesses of good Judgment say 50 or 60 and some say about 100 and as many Boys as men, and of these it is <evident> clear from the Current of the Evidence that many Came from else where and but a small proportion had Sticks; So that either the Gentlemen who have testified concerning the Number in Dock Square and at Murray Barracks must <either> be mistaken as to their Number which is no Reflection on them to Suppose or else but a small part of them must have gone into K. Street.

Let us now enquire whether those <few> of them who did arrive in K.S. or any Body else made an attack on the Soldiery there. For this Gentlemen is the purpose of all this Evidence, the Prisoners would have you believe that a Number of Men Armed with Clubs rush’d down into K.S. first assaulted their Centry there and then surrounded and assaulted them when they came to <relieve and> Support him and endangered their Lives in such a manner as that they were obliged to fire on them for their own preservation or else to what purpose has so much time been spent in producing this Evidence. It was designed undoubtedly to give Such a Coloring to the Appearance and behaviour of the people in K.S. as may render them a riotous and unlawful assembly and the <proper> objects of Fear and resentment to the Party.

Let us now draw the matter closer home and see how it will turn out. It appears from the Evidence of many the K.S. at 9 oClock was clear of People and free from disturbance, till the Centry White that Prisner at the Barr, took upon him to Strike a Boy for Speaking saucily of a Capt. The Complaints of the Boy engaged the Attention of the People hereabouts as the Abuses offered elsewhere had engaged others. Many are the Witnesses who give some Account of the supposed Attacks on the Centry [. . .] thereon and very different are these accounts of it; Some tell you it was only a few Boys that they threw Snow Balls at him but none hit him and some of the most intelligeable persons agree in this. Some [say] that he called for the M[ain] G[uard]. Others as likely to have heard nothing of it and several of the Witnesses tell you that the Affair seemd subsiding and that they should have gone away if the Party had not come down. Some of the Witnesses tell you there was not above 12 People by the Centry when the Party came down, but the people who were collected <by the ringing of> on the Supposition of Fire and who were standing in Knots as some of the Witnesses <gathered round> tell came when the Party came.

The Evidence must Satisfye you that the people who Composed this Collection were of various kinds and various were their designs of coming. <Number> Some of them were people of fair Characters and peaceable dispositions and who mingled with the rest to use their Endeavours to prevent any Mischiefs which [many?] Witnesses tell you they saw nothing of the violent Abuses offered to the Soldiers <testified of by others> nor heard the Threats and loud Hallowings testified of by others. Some of this Collection were Boys and Negros drawn there by the Curiosity peculiar to their disposition, and without doubt might throw some Snow Balls, and its quite natural to believe from the Evidence and the Nature of the thing that there were some there armed with Sticks and Clubbs determin’d if the Soldiers abused them in the manner they had <done> the Inhabitants that Evning and at times before to try the weight of them and had repaired into K.S. on a Supposition that those Soldiers who had began the disorder of the Evening at a time when they ought to have been in their Barracks were con­tinuing their disorders there, (for it appears about the time of the attack on the Centry [several?] partys of Soldiers were seen in K.S. armed with clubbs Cutlasses &c.;) and that they had not the least design or Idea of Attacking a Party on duty.9 And many other peaceable people gathered there meerly to see what was going on.

Can any person living from the history of this Affair as it turns up in Evidence Suppose these persons were such dangerous rioters as to bring them within those Rules of Law which have been read to you that it is lawful to kill them; Shall the innocent and peaceable who by meer Casualty are mixt with [some?] of the ruder Sort be liable to be Shot down by a Party of Soldiers meerly because they please to call ’em dangerous Rioters? Tis the Action [Generally?] and not a few [Angry?] tho threatning Expressions that constitutes any Riot and the Agreement of the whole Body that makes ’em Partys. This appears from some of the Authoritys read.

Great pains has been taken to satisfye you that this Collection of People actually <attacked> assaulted and endangered the lives of the Party. Great numbers have testified concerning this affair and their accounts of the matter are [very?] various. Numbers of the most impartial and Judicious and who stood in the best Scituation of observation saw nothing of such Transactions as are testified by others which one would think could not escape there notice. The Showers of Snow Balls, Oyster Shells and multitude of Sticks. The frequent and loud Huzzaing and threatning Crys which some relate were in some measure and in some instances totally unobserved by a very great Number of the best Witnesses many of whom were produced by the Prisoners and whose Credibility, Judgment and Scituation was equally good as those who relate it. But say their Council Shall negative Evidence out Weigh Positive? Undoubtedly in some cases it may Satisfy the [mind?] and in others it may raise a doubt. In this Case the fact asserted is of such a Nature as must be very much affected by negative Evidence; is it possible to conceive that such facts should exist as have been asserted and escape the notice of <such> so great Numbers of such Witnesses? If the facts did exist it must have only been in such a degree, as only to be observed accidently by a few and not in such a manner as to engage the notice of the whole; but great relyance is placed on the dying Speech of Carr one of the deceased as testified by Dr. Jeffrys; to me Gentlemen it seems unaccountable that any Stress should be laid on this Evidence, Carr it seems was for taking a Sword when he went out; whether to fight for or against the Soldiers is very uncertain, by his Country and behaviour, one would think the latter for he never joined with the people nor went within six Rods of them, had been there but a very Short Space of time and was going from them When he was Shot, and I cant concieve why his Judgment of the matter whose Character and disposition we know not, without the obligation of an Oath and so scituated tho a dying Man should weigh more than the Testimony of Numbers of Judicious reputable Witnesses who were in the midst of it and told you they saw nothing that should occasion them to fire and wondered at the reason of it, and thot if they had Suspected any such thing they should have gone away and when they were so Scituated as to be in danger themselves and one of them had his Surtot Scorched and much more to the same purpose. But it is insisted on that Montgomery was knock’d down previous to the firing; <that> when you recollect the Account given by Fosdick and Danbrook, <and of> Mr. Palmes a Witness on the same Side you will at least doubt the time of it and conclude it to be the same transaction he testifys of when he and many others say he could not be without their seeing it.

No one will pretend to deny the Numerous Authority produced in the Case. The grand Question is whether they apply to the Evidence and in order to [do] this let us recapitulate the Argument. It is proved to you Gentlemen that all the Prisoners at the Bar were present in K.S. at the firing. It appears by the current of the testimony that 7 Guns were fired, and it appears pretty certain that Wemys, the Corporal was the one who did not fire. It is certain that five men were killed by the firing of which Montgomery killed Attucks and Kilroy killed Grey.

But which of the other 5 prisoners killed the other 3 of the deceased appears very uncertain. But this operates nothing in their favour if it appears to you that they were an unlawful Assembly for it has been abundantly proved to you by the Numerous Authoritys produced by the Council for the Prisoners, that every individual of an Unlawful Assembly is answerable for the doings [of] the rest. They are all considered as Principals, and all that are present aiding assisting and abetting to the doing an unlawful act as is charged in the Several Indictments against the Prisoners are also considered as Principals. The Council aware of this have endeavoured to make it appear they were a lawful Assembly that the Centry was duly Stationed at the Custom House and that the Party had a right and actually did come to Support him and so were a lawful Assembly. But it must be remembered that no Man or body of Men have a right to do a lawful Action in an unlawful Manner if they do they become an unlawful Assembly. You recollect the Evidence of the forcible Manner of their going down pushing all those who stood in their way and of their Behaviour at their first arrival pushing their Bayonets at several people standing peacably there, and even tho they were Lawfully assembled when they got there yet the moment they turned their Arms on the People without just Cause they became an Unlawful Assembly in such a [sense?] as that all are answerable for the doings of any one. The Kings Troops have undoubtedly a right to march thro’ the Streets and as such are a Lawful Assembly. But if in such marching without just Cause they fire on the Inhabitants and but one man is kill’d they Surely are all answerable tho it cant be proved who did the Execution. What better is this Case. If there was a just Cause for firing they will be acquitted on that plea and there will [be] no Occasion to determine the legality of their Assembling. If there was no just Cause of firing how will you excuse them all of the Guilt tho it is not proved who were the actual perpetrators. When you recollect further, the Account given you by many Witnesses, that on firing the first Gun the people dispersed and were in a Manner withdrawn to a distance at the firing the last Guns that the last Gun was fired at a Boy at a distance running down Street; that they presented their firelocks again at the few people who came with the Chirugeon to pick up the Dead it appears to me you must be Satisfy’d they were possessed of that Wicked depraved malignant Spirit which constitutes Malice, that from the whole Evidence taken together no just Cause appears for such outrageous Conduct and therefore that they must be considered as aiding and assisting each other in this unlawful Act which the lawfulness of their Assembling will not excuse; can it ever be supposed that the Law even the Benignity of the Law which is very necessarily here called in to their Aid will admit of so pitiful evasion as this. Will not the reason of the Law impute Guilt to all of them tho at first lawfully assembled seeing they joined in doing an unlawful Action and so that Gentlemen the final Result of the whole matter must turn on a mere question of facts.

It has been shewn you Gentlemen that all killing at the first blush is Murder in the Eye of the Law and that the Prisoner must make out the facts which he relys on for his Jus[tification] Exc[use] or Alleviation: unless they appear from the Witnesses who testify of the killing.10

Does there appear Sufficient Evidence to justify or excuse the killing in Order for which it must appear to be done to prevent the Commission of a known felony. Black. Com. 4th. p. 181.11 It seems Montgomery was not knock’d down if at all till he pushed with his Bayonet and the Blow was not followed. Had the people intended any more than to resent the insolence of the Party who were pushing and wounding them they certainly would have Executed their design on the discharge of the Guns. But nothing of that kind appears. The plea of Self Defence which is made for them must inevitably fail unless you can be Satisfied there was no other possible way of Saving their Lives but by <firing> killing. Fost. 278.12 1 HPC.13 No one who recollects that till the firing the 1st Gun Capt. Preston Stood talking with a Witness can believe this to be the Case and if so it was an unlawful act to kill, and as they were all combined in the firing they are all answerable.

Neither Gentlemen doth it seem by taking the Evidence all together it will alleviate their Crime to Man Slaughter, Shall throwing a Snow Ball from a Distance alleviate the Crime of firing Ball amidst a Number of people who at first stood so thick they could not throw and as the Witnesses some that they most rely on tell you were crouding back? Shall this be likened to the filliping a man on the Forehead as has been read to you?14 Is it not manifest that in that Case the very Assailant was killed, but here it appears that none of the persons killed were assailants. Attacks 15 feet off leaning on his Stick, Gray 12 feet off with his hand in his Bosom, and the other three just run into the Street and scarce knew of the Affair before they were shot down. Tis to human Frailty and that only and not to such Brutal Rage and Diabolical Malignity as must have impelled the Prisners to fire as they did; <if there was provocation enough to have provoked a Cholerick Man>

Indeed if you believe that Montgomery was knock’d down in the manner <Testified> asserted his Crime I acknowledge can amount no higher than Manslaughter; but what Evidence is there that any of the rest recieving such a provocation before firing as will alleviate their Crime. The left wing of the Party was uncovered by the People, the Croud was chiefly at the Right. Andrew indeed supposes Kilroy was struck but when we consider he looked about and saw Attucks fall he must have Confounded this fact as in my Opinion he has many others. The Witness who testifys of Kilroys killing Grey puts it beyond dispute that he shot him deliberately and after Caution not to fire and the Witness must have seen the blow if he had received any. When you consider the Evidence against Kilroy, his previous threatning and that repeatedly after admonition <you must unavoidably I think> and the express Evidence of killing Gray and the manner of it I think you must unavoidably find him Guilty of murder. What your Judgment should think of the rest tho the Evidence is undoubtedly the fullest against him, yet it [. . .] full enough against the rest.