Chapter III: Preface (2)

The time that has since elapsed enables us now to look back and to see things in their true proportions. We begin to realize that the years we have so recently passed through, though we did not appreciate it at the time, were the heroic years of American history. Now that their passionate excitement is over, it is pleasant to dwell upon them; to recall the rising of a great people; the call to arms as it boomed from our hilltops and clashed from our steeples; the eager patriotism of that fierce April which kindled new sympathies in every bosom, which caused the miser to give freely of his wealth, the wife with eager hands to pack the knapsack of her husband, and mothers with eyes glistening with tears of pride, to look out upon the shining bayonets of their boys; then came the frenzy of impatience and the defeat entailed upon us by rashness and inexperience, before our nation settled down, solidly and patiently, to its work, determined to save itself from destruction; and then followed the long weary years of doubt and mingled fear and hope, until at last that day came six years ago which we now celebrate-- the day which saw the flood, tide of rebellion reach the high-water mark, whence it never after ceased to recede. At the moment, probably, none of us, either at home or at the seat of war, realized the grandeur of the situation, the dramatic power of the incidents, or the Titanic nature of the conflict. To you who were at home, mothers, fathers, wives, sisters, brothers, citizens of the common country, if nothing else, the agony of suspense, the anxiety, the joy, and, too often, the grief which was to know no end, which marked the passage of those days, left little either of time or inclination to dwell upon aught save the horrid reality of the drama. To others who more immediately participated in those great events, the daily vexations and annoyances--the hot and dusty day --the sleepless, anxious night--the rain upon the unsheltered bivouac--the dead lassitude which succeeded the excitement of action --the cruel orders which recognized no fatigue and made no allowance for labors undergone--all these small trials of the soldier's life made it possible to but few to realize the grandeur of the drama to which they were playing a part. Yet we were not wholly oblivious of it. Now and then I come across strange evidences of this in turning over the leaves of the few weather-stained, dogeared volumes which were the companions of my life in camp. The title page of one bears witness to the fact that it was my companion at Gettysburg, and in it I recently found some lines of Browning's noble poem of 'Saul' marked and altered to express my sense of our situation, and bearing date upon this very fifth of July. The poet had described in them the fall of snow in the springtime from a mountain, under which nestled a valley; the altering of a few words made them well describe the approach of our army to Gettysburg.

"Fold on fold, all at once, we crowded thundrously down to your feet; And there fronts yon, stark black but alive yet, your army of old With its rents, the successive bequeathing of conflicts untold. Yea, each harm got in fighting your battles, each furrow and scar Of its head thrust twixt you and the tempest--all hail, here we are."

And there we were, indeed, and then and there was enacted such a celebration as I hope may never again be witnessed there or elsewhere on another fourth of July. Even as I stand here before you, through the lapse of years and the shifting experiences of the recent past, visions and memories of those days rise thick and fast before me. We did, indeed, crowd thundrously down to their feet. Of the events of those three terrible days I may speak with feeling and yet with modesty, for small, indeed, was the part which those with whom I served were called upon to play. When those great bodies of infantry drove together in the crash of battle, the clouds of cavalry which had hitherto covered up their movements were swept aside to the flanks. Our work for the time was done, nor had it been an easy or a pleasant work. The road to Gettysburg had been paved with our bodies and watered with our blood. Three weeks before, in the middle days of June, I, a captain of cavalry, had taken the field at the head of one hundred mounted men, the joy and pride of my life. Through twenty days of almost incessant conflict the hand of death had been heavy upon us, and now, upon the eve of Gettysburg, thirty-four of the hundred only remained, and our comrades were dead on the field of battle, or languishing in hospitals, or prisoners in the hands of the enemy. Six brave young fellows we had buried in one grave where they fell on the heights of Aldie. It was late on the evening of the first of July, that there came to us rumors of heavy fighting at Gettysburg, nearly forty miles away. The regiment happened then to be detached, and its orders for the second were to move in the rear of Sedgwick's corps and see that no man left the column. All that day we marched to the sound of the cannon. Sedgwick, very grim and stern, was pressing forward his tired men, and we soon saw that for once there would be no stragglers from the ranks. As the day grew old and as we passed rapidly up from the rear to the head of the hurrying column, the roar of battle grew more distinct, until at last we crowned a hill, and the contest broke upon us. Across the deep valley, some two miles away, we could see the white smoke of the bursting shells, while below the sharp incessant rattle of the musketry told of the fierce struggle that was going on. Before us ran the straight, white, dusty road, choked with artillery, ambulances, caissons, ammunition trains, all pressing forward to the field of battle, while mixed among them, their bayonets gleaming through the dust like wavelets on a river of steel, tired, foot-sore, hungry, thirsty, begrimed with sweat and dust, the gallant infantry of Sedgwick's corps hurried to the sound of the cannon as men might have flocked to a feast. Moving rapidly forward, we crossed the brook which ran so prominently across the map of the field of battle, and halted on its further side to await our orders. Hardly had I dismounted from my horse when, looking back, I saw that the head of the column had reached the brook and deployed and halted on its other bank, and already the stream was filled with naked men shouting with pleasure as they washed off the sweat of their long day's march. Even as I looked, the noise of the battle grew louder, and soon the symptoms of movement were evident. The rappel was heard, the bathers hurriedly clad themselves, the ranks were formed, and the sharp, quick snap of the percussion caps told us the men were preparing their weapons for action. Almost immediately a general officer rode rapidly to the front of the line, addressed to it a few brief, energetic words, the short sharp order to move by the flank was given, followed immediately by the "double-quick"; the officer placed himself at the head of the column, and that brave infantry which had marched almost forty miles since the setting of yesterday's sun,--which during that day had hardly known either sleep, or food, or rest, or shelter from the July heat,--now, as the shadows grew long, hurried forward on the run to take its place in the front of battle and to bear up the reeling fortunes of the day.

It is said that at the crisis of Solferino, Marshal McMahon appeared with his corps upon the field of battle, his men having run for seven miles. We need not go abroad for examples of endurance and soldierly bearing. The achievement of Sedgwick and the brave Sixth Corps, as they marched upon the field of Gettysburg on that second day of July, far excels the vaunted efforts of the French Zouaves.

Twenty-four hours later we stood on that same ground. Many dear friends had yielded up their young lives during the hours which had elapsed, but, though twenty thousand fellow-creatures were wounded or dead around us, though the flood gates of heaven seemed opened and the torrents fell upon the quick and the dead, yet the elements seemed electrified with a certain magic influence of victory, and as the great army sank down over-wearied in its tracks it felt that the crisis and danger was passed,--that Gettysburg was immortal.

May I not, then, well express the hope that never again may we or ours be called upon so to celebrate this anniversary? And yet now that the passionate hopes and fears of those days are all over,-- now that the grief which can never be forgotten is softened and modified by the soothing hand of time,--now that the distracting doubts and untold anxieties are buried and almost forgotten,--we love to remember the gathering of the hosts, to bear again in memory the shock of battle, and to wonder at the magnificence of the drama. The passion and the excitement are gone, and we can look at the work we have done and pronounce upon it. I do not fear the sober second judgment. Our work was a great work,--it was well done, and it was done thoroughly. Some one has said, "Happy is the people which has no history." Not so! As it is better to have loved and lost than never to have loved at all, so it is better to have lived greatly, even though we have suffered greatly, than to have passed a long life of inglorious ease. Our generation,--yes, we ourselves have been a part of great things. We have suffered greatly and greatly rejoiced; we have drunk deep of the cup of joy and of sorrow; we have tasted the agony of defeat, and we have supped full with the pleasures of victory. We have proved ourselves equal to great deeds, and have learnt what qualities were in us, which in more peaceful times we ourselves did not suspect.

And, indeed, I would here in closing fain address a few words to such of you, if any such are here, who like myself may nave been soldiers during the War of the Rebellion. We should never more be partisans. We have been a part of great events in the service of the common country, we have worn her uniform, we have received her pay and devoted ourselves to the death, if need be, in her service. When we were blackened by the smoke of Antietam, we did not ask or care whether those who stood shoulder to shoulder beside us, whether he who led us, whether those who sustained us, were Democrats or Republicans, conservatives or radicals; we asked only that they might prove as true as was the steel we grasped, and as brave as we ourselves would fain have been. When we stood like a wall of stone vomiting fire from the heights of Gettysburg,--nailed to our position through three long days of mortal Hell,--did we ask each other whether that brave officer who fell while gallantly leading the counter-charge--whether that cool gunner steadily serving his piece before us amid the storm of shot and shell--whether the poor wounded, mangled, gasping comrades, crushed and torn, and dying in agony around us--had voted for Lincoln or Douglas, for Breckenridge or Bell? We then were full of other thoughts. We prized men for what they were worth to the common country of us all, and recked not of empty words. Was the man true, was he brave, was he earnest, was all we thought of then;--not, did he vote or think with us, or label himself with our party name? This lesson let us try to remember. We cannot give to party all that we once offered to country, but our duty is not yet done. We are no longer, what we have been, the young guard of the Republic; we have earned an exemption from the dangers of the field and camp, and the old musket or the crossed sabres hang harmless over our winter fires, never more to be grasped in these hands henceforth devoted to more peaceful labors; but the duties of the citizen, and of the citizen who has received his baptism in fire, are still incumbent upon us. Though young in years, we should remember that henceforth, and as long as we live in the land, we are the ancients,--the veterans of the Republic. As such, it is for us to protect in peace what we preserved in war; it is for us to look at all things with a view to the common country and not to the exigencies of party politics; it is for us ever to bear in mind the higher allegiance we have sworn, and to remember that he who has once been a soldier of the motherland degrades himself forever when he becomes the slave of faction. Then at last, if through life we ever bear these lessons freshly in mind will it be well for us, will it be well for our country, will it be well for those whose names we bear, that our bones also do not molder with those of our brave comrades beneath the sods of Gettysburg, or that our graves do not look down on the swift-flowing Mississippi from the historic heights of Vicksburg?

JOHN ADAMS (1735-1826)

John Adams, second President of the United States, was not a man of the strong emotional temperament which so often characterizes the great orator. He was fitted by nature for a student and scholar rather than to lead men by the direct appeal the orator makes to their emotions, their passions, or their judgment His inclinations were towards the Church; but after graduating from Harvard College, which he entered at the age of sixteen, he had a brief experience as a school-teacher and found it so distasteful to him that he adopted the law as a relief, without waiting to consult his inclinations further. "Necessity drove me to this determination," he writes, "but my inclination was to preach." He began the practice of law in his native village of Braintree, Massachusetts, and took no prominent part in public affairs until 1765, when he appeared as counsel for the town of Boston in proceedings growing out of the Stamp Act difficulties.

From this time on, his name is constantly associated with the great events of the Revolution. That be never allowed his prejudices as a patriot to blind him to his duties as a lawyer, he showed by appearing as counsel for the British soldiers who killed Crispus Attucks, Samuel Gray, and others, in the Boston riot of 1770. He was associated in this case with Josiah Quincy, and the two distinguished patriots conducted the case with such ability that the soldiers were acquitted--as no doubt they should have been.

Elected a member of the Continental Congress, Mr. Adams did work in it which identified him in an enduring way with the formative period of republican institutions in America. This must be remembered in passing upon his acts when as President, succeeding Washington, he is brought into strong contrast with the extreme republicans of the French school. In the Continental Congress, contrasted with English royalists and conservatives Mr. Adams himself appeared an extremist, as later on, under the same law of contrast, he appeared conservative when those who were sometimes denounced as "Jacobins" and "Levellers" were fond of denouncing him as a disguised royalist.

Prior to his administration as President, he had served as commissioner to the court of France, "Minister Plenipotentiary for the Purpose of Negotiating a Treaty of Peace and Commerce with Great Britain"; commissioner to conclude a treaty with the States-General of Holland; minister to England after the conclusion of peace, and finally as Vice-President under Washington. His services in every capacity in which he was engaged for his country showed his great ability and zeal: but in the struggle over the Alien and Sedition Laws his opponents gave him no quarter and when he retired from the Presidency it was with the feeling, shared to some extent by his great opponent Jefferson, that republics never have a proper regard for the services and sacrifices of statesmen, though they are only too ready to reward military heroes beyond their deserts. The author of 'Familiar Letters on Public Affairs' writes of Mr. Adams:--

"He was a man of strong mind, great learning, and eminent ability to use knowledge both in speech and writing. He was ever a firm believer in Christianity, not from habit and example but from a diligent investigation of its proofs. He had an uncompromising regard for his own opinion and was strongly contrasted with Washington in this respect. He seemed to have supposed that his opinions could not have been corrected by those of other men or bettered by any comparison."

It might be inferred from this that Mr. Adams was as obstinate in prejudice as in opinion, but as he had demonstrated to the contrary in taking the unpopular cause of the British soldiers at the beginning of his public career, he showed it still more strikingly by renewing and continuing until his death a friendship with Jefferson which had been interrupted by the fierce struggle over the Alien and Sedition Act.

INAUGURAL ADDRESS (March 4th. 1797)

When it was first perceived, in early times, that no middle course for America remained, between unlimited submission to a foreign legislature and a total independence of its claims, men of reflection were less apprehensive of danger from the formidable powers of fleets and armies they must determine to resist, than from those contests and dissensions which would certainly arise concerning the forms of government to be instituted over the whole and over the parts of this extensive country. Relying, however, on the purity of their attentions, the justice of their cause, and the integrity and intelgence of the people, under an over-ruling Providence, which had so signally protected this country from the first, the representatives of this nation, then consisting of little more than half its present numbers, not only broke to pieces the chains which were forging, and the rod of iron that was lifted up, but frankly cut asunder the ties which had bound them, and launched into an ocean of uncertainty.

The zeal and ardor of the people during the Revolutionary War, supplying the place of government, commanded a degree of order, sufficient, at least, for the temporary preservation of society. The confederation, which was early felt to be necessary, was prepared from the models of the Bavarian and Helvetic confederacies, the only examples which remain, with any detail and precision, in history, and certainly the only ones which the people at large had ever considered. But, reflecting on the striking difference, in so many particulars, between this country and those where a courier may go from the seat of government to the frontier in a single day, it was then certainly foreseen by some who assisted in Congress at the formation of it, that it could not be durable.

Negligence of its regulations, inattention to its recommendations, if not disobedience to its authority, not only in individuals but in States, soon appeared with their melancholy consequences-- universal languor, jealousies, rivalries of States, decline of navigation and commerce, discouragement of necessary manufactures, universal fall in the value of lands and their produce, contempt of public and private faith, loss of consideration and credit with foreign nations; and, at length, in discontents, animosities, combinations, partial conventions, and insurrection, threatening some great national calamity.

In this dangerous crisis, the people of America were not abandoned by their usual good sense, presence of mind, resolution, or integrity. Measures were pursued to concert a plan to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty. The public disquisitions, discussions, and deliberations issued in the present happy constitution of government.

Employed in the service of my country abroad during the whole course of these transactions, I first saw the Constitution of the United States in a foreign country. Irritated by no literary altercation, animated by no public debate, heated by no party animosity, I read it with great satisfaction, as the result of good heads, prompted by good hearts; as an experiment better adapted to the genius, character, situation, and relations of this nation and country than any which had ever been proposed or suggested. In its general principles and great outlines, it was conformable to such a system of government as I had ever most esteemed, and in some States, my own native State in particular, had contributed to establish. Claiming a right of suffrage common with my fellow-citizens in the adoption or rejection of a constitution, which was to rule me and my posterity, as well as them and theirs, I did not hesitate to express my approbation of it on all occasions, in public and in private. It was not then, nor has been since, any objection to it, in my mind, that the Executive and Senate were not more permanent. Nor have I entertained a thought of promoting any alteration in it, but such as the people themselves, in the course of their experience, should see and feel to be necessary or expedient, and by their representatives in Congress and the State legislature, according to the constitution itself, adopt and ordain.

Returning to the bosom of my country, after a painful separation from it for ten years, I had the honor to be elected to a station under the new order of things; and I have repeatedly laid myself under the most serious obligations to support the constitution. The operation of it has equaled the most sanguine expectations of its friends; and from an habitual attention to it, satisfaction in its administration, and delight in its effects upon the peace, order, prosperity, and happiness of the nation, I have acquired an habitual attachment to it, and veneration for it.

What other form of government, indeed, can so well deserve our esteem and love?

There may be little solidity in an ancient idea that congregations of men into cities and nations are the most pleasing objects in the sight of superior intelligences; but this is very certain, that to a benevolent human mind there can be no spectacle presented by any nation more pleasing, more noble, majestic, or august, than an assembly like that which has so often been seen in this and the other chamber of Congress--of a government in which the executive authority, as well as that of all the branches of the legislature, are exercised by citizens selected at regular periods by their neighbors, to make and execute laws for the general good. Can any thing essential, any thing more, than mere ornament and decoration be added to this by robes or diamonds? Can authority be more amiable or respectable when it descends from accident or institutions established in remote antiquity than when it springs fresh from the hearts and judgments of an honest and enlightened people? For it is the people that are represented; it is their power and majesty that is reflected, and only for their good, in every legitimate government, under whatever form it may appear. The existence of such a government as ours for any length of time is a full proof of a general dissemination of knowledge and virtue throughout the whole body of the people. And what object of consideration more pleasing than this can be presented to the human mind? If natural pride is ever justifiable or excusable, it is when it springs, not from power or riches, grandeur or glory, but from conviction of national innocence, information, and benevolence.

In the midst of these pleasing ideas, we should be unfaithful to ourselves if we should ever lose sight of the danger to our liberties--if anything partial or extraneous should infect the purity of our free, fair, virtuous, and independent elections. If an election is to be determined by a majority of a single vote, and that can be procured by a party through artifice or corruption, the government may be the choice of a party, for its own ends, not of the nation for the national good. If that solitary suffrage can be obtained by foreign nations by flattery or menaces, by fraud or violence, by terror, intrigue, or venality, the government may not be the choice of the American people, but of foreign nations. It may be foreign nations who govern us, and not we, the people, who govern ourselves; and candid men will acknowledge that, in such cases, choice would have little advantage to boast of over lot or chance.

Such is the amiable and interesting system of government (and such are some of the abuses to which it may be exposed) which the people of America have exhibited to the admiration and anxiety of the wise and virtuous of all nations for eight years, under the administration of a citizen, who, by a long course of great actions, regulated by prudence, justice, temperance, and fortitude, conducting a people inspired with the same virtues, and animated with the same ardent patriotism and love of liberty, to independence and peace, to increasing wealth and unexampled prosperity, has merited the gratitude of his fellow-citizens, commanded the highest praises of foreign nations, and secured immortal glory with posterity.

In that retirement, which is his voluntary choice, may he long live to enjoy the delicious recollection of his services--the gratitude of mankind; the happy fruits of them to himself and the world, which are daily increasing, and that splendid prospect of the future fortunes of his country, which is opening from year to year. His name may be still a rampart and the knowledge that he lives a bulwark against all open or secret enemies of his country's peace.

This example has been recommended to the imitation of his successors, by both houses of Congress, and by the voice of the legislatures and the people, throughout the nation.

On this subject it might become me better to be silent, or to speak with diffidence; but as something may be expected, the occasion, I hope, will be admitted as an apology, if I venture to say, that if a preference upon principle, of a free republican government, formed upon long and serious reflection, after a diligent and impartial inquiry after truth; if an attachment to the Constitution of the United States, and a conscientious determination to support it, until it shall be altered by the judgments and wishes of the people, expressed in the mode prescribed in it; if a respectful attention to the constitution of the individual States, and a constant caution and delicacy towards the State governments; if an equal and impartial regard to the rights, interests, honor, and happiness of all the States in the Union, without preference or regard to a northern or southern, eastern or western position, their various political opinions on essential points, or their personal attachments; if a love of virtuous men, of all parties and denominations; if a love of science or letters and a wish to patronize every rational effort to encourage schools, colleges, universities, academies, and every institution of propagating knowledge, virtue, and religion among all classes of people, not only for their benign influence on the happiness of life, in all its stages and classes, and of society in all its forms, but as the only means of preserving our constitution from its natural enemies, the spirit of sophistry, the spirit of party, the spirit of intrigue, profligacy, and corruption, and the pestilence of foreign influence, which is the angel of destruction to elective governments, if a love of equal laws, of justice and humanity, in the interior administration; if an inclination to improve agriculture, commerce, and manufactures for necessity, convenience, and defense; if a spirit of equity and humanity towards the aboriginal nations of America, and a disposition to ameliorate their condition by inclining them to be more friendly to us, and our citizens to be more friendly to them; if an inflexible determination to maintain peace and inviolable faith with all nations, and the system of neutrality and impartiality among the belligerent powers of Europe which has been adopted by the government, and so solemnly sanctioned by both houses of Congress, and applauded by the legislatures of the States and by public opinion, until it shall be otherwise ordained by Congress; if a personal esteem for the French nation, formed in a residence of seven years chiefly among them, and a sincere desire to preserve the friendship, which has been so much for the honor and interest of both nations; if, while the conscious honor and integrity of the people of America and the internal sentiment of their own power and energies must be preserved, an earnest endeavor to investigate every just cause, and remove every colorable pretense of complaint; if an intention to pursue, by amicable negotiation, a reparation for the injuries that have been committed on the commerce of our fellow-citizens, by whatever nation; and, if success cannot be obtained, to lay the facts before the legislature, that they may consider what further measures the honor and interest of the government and its constituents demand; if a resolution to do justice, as far as may depend upon me, at all times and to all nations, and maintain peace, friendship, and benevolence with all the world; if an unshaken confidence in the honor, spirit, and resources of the American people, on which I have so often hazarded my all, and never been deceived; if elevated ideas of the high destinies of this country, and of my own duties towards it, founded on a knowledge of the moral principles and intellectual improvements of the people, deeply engraven on my mind in early life, and not obscured, but exalted, by experience and age; and with humble reverence, I feel it my duty to add, if a veneration for the religion of the people who profess and call themselves Christians, and a fixed resolution to consider a decent respect for Christianity among the best recommendations for the public service, can enable me, in any degree, to comply with your wishes, it shall be my strenuous endeavor that this sagacious injunction of the two houses shall not be without effect.

With this great example before me--with the sense and spirit, the faith and honor, the duty and interest of the same American people, pledged to support the Constitution of the United States, I entertain no doubt of its continuance in all its energy; and my mind is prepared, without hesitation, to lay myself under the most solemn obligations to support it to the utmost of my power.

And may that Being who is supreme over all, the patron of order, the fountain of justice, and the protector, in all ages of the world, of virtuous liberty, continue his blessing upon this nation and its government, and give it all possible success and duration, consistent with the ends of his providence!

THE BOSTON MASSACRE

(First Day's Speech in Defense of the British Soldiers Accused of Murdering Attucks, Gray and Others, in the Boston Riot of 1770)

_May_ _If_ _Please_ _Your_ _Honor_,_ and_ _You_,_ Gentlemen_ _of_ _the_ _Jury_:--

I am for the prisoners at the bar, and shall apologize for it only in the words of the Marquis Beccaria:--

"If I can but be the instrument of preserving one life, his blessings and tears of transport shall be a sufficient consolation for me for the contempt of all mankind."

As the prisoners stand before you for their lives, it may be proper to recollect with what temper the law requires we should proceed to this trial. The form of proceeding at their arraignment has discovered that the spirit of the law upon such occasions is conformable to humanity, to common sense and feeling; that it is all benignity and candor. And the trial commences with the prayer of the court, expressed by the clerk, to the Supreme Judge of judges, empires, and worlds, "God send you a good deliverance."

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

The rules I shall produce to you from Lord Chief-Justice Hale, whose character as a lawyer, a man of learning and philosophy, and a Christian, will be disputed by nobody living; one of the greatest and best characters the English nation ever produced. His words are these:--

(2 H. H. P. C.): _Tutius_ _semper_ _est_ _errare_, _in_ _acquietando_ _quam_ _in_ _puniendo_, _ex_ _parte_ _misericordiae_ _quam_ _ex_ _parte_ _justitiae_.--"It is always safer to err in acquitting than punishing, on the part of mercy than the part of justice."

The next is from the same authority, 305:--

_Tutius_ _erratur_ _ex_ _parte_ _mitiori_,--"It is always safer to err on the milder side, the side of mercy."

(H. H. P. C. 509): "The best rule in doubtful cases is rather to incline to acquittal than conviction."

And on page 300:--

_Quod_ _dubitas_, _ne_ _feceris_.--"Where you are doubtful, never act; that is, if you doubt of the prisoner's guilt, never declare him guilty."

This is always the rule, especially in cases of life. Another rule from the same author, 289, where he says:--

"In some cases presumptive evidences go far to prove a person guilty, though there is no express proof of the fact to be committed by him; but then it must be very warily expressed, for it is better five guilty persons should escape unpunished than one innocent person should die."

The next authority shall be from another judge of equal character, considering the age wherein he lived; that is, Chancellor Fortescue in 'Praise of the Laws of England,' page 59. This is a very ancient writer on the English law. His words are:--

"Indeed, one would rather, much rather, that twenty guilty persons escape punishment of death, than one innocent person be condemned and suffer capitally."

Lord Chief-Justice Hale says:--

"It is better five guilty persons escape, than one innocent person suffer."

Lord Chancellor Fortescue, you see, carries the matter further, and says:--

"Indeed, one had rather, much rather, that twenty guilty persons should escape than one innocent person suffer capitally."

Indeed, this rule is not peculiar to the English law; there never was a system of laws in the world in which this rule did not prevail. It prevailed in the ancient Roman law, and, which is more remarkable, it prevails in the modern Roman law. Even the judges in the Courts of Inquisition, who with racks, burnings, and scourges examine criminals,--even there they preserve it as a maxim, that it is better the guilty should escape punishment than the innocent suffer. _Satius_ _esse_ _nocentem_ _absolvi_ _quam_ _innocentem_ _damnari_. This is the temper we ought to set out with, and these the rules we are to be governed by. And I shall take it for granted, as a first principle, that the eight prisoners at the bar had better be all acquitted, though we should admit them all to be guilty, than that any one of them should, by your verdict, be found guilty, being innocent.

I shall now consider the several divisions of law under which the evidence will arrange itself.

The action now before you is homicide; that is, the killing of one man by another. The law calls it homicide; but it is not criminal in all cases for one man to slay another. Had the prisoners been on the Plains of Abraham and slain a hundred Frenchmen apiece, the English law would have considered it as a commendable action, virtuous and praiseworthy; so that every instance of killing a man is not a crime in the eye of the law. There are many other instances which I cannot enumerate--an officer that executes a person under sentence of death, etc. So that, gentlemen, every instance of one man's killing another is not a crime, much less a crime to be punished with death. But to descend to more particulars.

The law divides homicide into three branches; the first is "justifiable," the second "excusable," and the third "felonious." Felonious homicide is subdivided into two branches; the first is murder, which is killing with malice aforethought; the second is manslaughter, which is killing a man on a sudden provocation. Here, gentlemen, are four sorts of homicide; and you are to consider whether all the evidence amounts to the first, second, third or fourth of these heads. The fact was the slaying five unhappy persons that night. You are to consider whether it was justifiable, excusable, or felonious; and if felonious, whether it was murder or manslaughter. One of these four it must be. You need not divide your attention to any more particulars. I shall, however, before I come to the evidence, show you several authorities which will assist you and me in contemplating the evidence before us.

I shall begin with justifiable homicide. If an officer, a sheriff, execute a man on the gallows, draw and quarter him, as in case of high treason, and cut off his head, this is justifiable homicide. It is his duty. So also, gentlemen, the law has planted fences and barriers around every individual; it is a castle round every man's person, as well as his house. As the love of God and our neighbor comprehends the whole duty of man, so self-love and social comprehend all the duties we owe to mankind; and the first branch is self-love, which is not only our indisputable right, but our clearest duty. By the laws of nature, this is interwoven in the heart of every individual. God Almighty, whose law we cannot alter, has implanted it there, and we can annihilate ourselves as easily as root out this affection for ourselves. It is the first and strongest principle in our nature. Justice Blackstone calls it "The primary canon in the law of nature." That precept of our holy religion which commands us to love our neighbor as ourselves does not command us to love our neighbor better than ourselves, or so well. No Christian divine has given this interpretation. The precept enjoins that our benevolence to our fellow-men should be as real and sincere as our affection to ourselves, not that it should be as great in degree. A man is authorized, therefore, by common sense and the laws of England, as well as those of nature, to love himself better than his fellow-subject. If two persons are cast away at sea, and get on a plank (a case put by Sir Francis Bacon), and the plank is insufficient to hold them both, the one has a right to push the other off to save himself. The rules of the common law, therefore which authorize a man to preserve his own life at the expense of another's, are not contradicted by any divine or moral law. We talk of liberty and property, but if we cut up the law of self-defense, we cut up the foundations of both; and if we give up this, the rest is of very little value, and therefore this principle must be strictly attended to; for whatsoever the law pronounces in the case of these eight soldiers will be the law to other persons and after ages. All the persons that have slain mankind in this country from the beginning to this day had better have been acquitted than that a wrong rule and precedent should be established.

I shall now read to you a few authorities on this subject of self-defense. Foster, 273 (in the case of justifiable self-defense):

"The injured party may repel force with force in defense of person, habitation, or property, against one who manifestly intendeth and endeavoreth with violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but pursue his adversary till he finds himself out of danger; and a conflict between them he happeneth to kill, such killing is fiable."

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."