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 const.i.tution of government.

Employed in the service of my country abroad during the whole course of these transactions, I first saw the Const.i.tution 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 const.i.tution, 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 const.i.tution 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 const.i.tution. 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 n.o.ble, majestic, or august, than an a.s.sembly 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 inst.i.tutions 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 fort.i.tude, 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 grat.i.tude 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 grat.i.tude 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 Const.i.tution 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 const.i.tution 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 inst.i.tution of propagating knowledge, virtue, and religion among all cla.s.ses of people, not only for their benign influence on the happiness of life, in all its stages and cla.s.ses, and of society in all its forms, but as the only means of preserving our const.i.tution 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 const.i.tuents 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 Const.i.tution 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 Ma.s.sACRE

(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, "G.o.d 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 n.o.body 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_ _just.i.tiae_.--"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_ _d.a.m.nari_. 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 a.s.sist 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 G.o.d 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. G.o.d 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 p.r.o.nounces 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 a.s.sault on me, this will not justify killing; but if he a.s.sault 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 a.s.sault with a design to kill or maim the soldiers, this was such an a.s.sault 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 a.s.sault 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 a.s.sist 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 mult.i.tude is a most hideous shriek, almost as terrible as an Indian yell; the people crying, "Kill them, kill them. Knock them over," heaving s...o...b..a.l.l.s, oyster sh.e.l.ls, 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 a.s.sembled 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 s...o...b..a.l.l.s, cakes of ice, oyster sh.e.l.ls, 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 a.s.saulted may repel force with force, and even his own servant, then attendant on him, or any other person present, may interpose for preventing mischief, and if death ensue, the party so interposing will be justified. In this case nature and social duty co-operate."

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

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

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

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