Charge to the Grand Jury by the Chief Justice

1 Super. Ct. Jud. 218

• Court: Massachusetts Supreme Judicial Court
• Decided: August 15, 1766
• Status: Published

Opinion

GENTLEMEN of the Grand Jury: When we opened the Court in this Place, this time Twelvemonth, the Disorders through the Continent, in general, were very great. Here, it was so great, that a stop was put to the Courts of Justice, and this Court was adjourned to a distant Day, because it was not safe

* to proceed. But, through the Favour of Divine Providence, we are now in a better State, and it may perhaps be prudent to say Nothing of what is past. Disorders, arising from what was esteemed a Violation of our Right, had better be gone over in Silence; for it is difficult to draw the Line, where Duty ceases, and Opposition may begin. Yet, for Persons under Pretence of Rectifying public Wrongs, to invade private Rights is highly criminal.

This Town is the first in the Province, and indeed generally takes the Lead through the Continent: I should therefore be culpable, did I not say Something respecting our future Conduct. Our Grievances being removed, it will be best for us to return to our usual Order. A Time, perhaps, will never arrive in the Life of the longest Liver of us, nor of our Children’s Children, when such an Attempt will again be made : And if not, why should we still continue those Broils and Animosities, which disturb our internal Peace and Tranquillity. Is it not better to go on, as formerly, with the Exercise of Government, than unnecessarily to provoke the Parliament of Great Britain to A&ts, which otherwise might never be thought on ?

As the Behaviour of this Town has great Influence through the whole Province, and, as I observed before, has its Weight through the whole Continent, this is the Reason, Gentlemen, why I mention Things of so general a Nature, and which do not so immediately relate to you ; but you, Gentlemen, being returned from the Body of the County, may, in Respect to the Restoration of Harmony and Order among us, be extensively usefull.

I do not know how it happens, but Disorders are seldom confined to one Point. People who begin with one View, seldom end there.

Every one must have observed, the Court I am sure have, through the Province, a general Disposition to Disorder, Confusion and Riot, Breaches of the Peace, and what is commonly called Mobs. Laws have been thought rigorous, hardly to be borne, which heretofore were never thought severe. The Minds of the People are disturbed, their Sentiments divided, but it is absolutely necessary for us to unite; and as our Interest is the same, so our Wills should be in Concert with Great Britain.

It is an old Maxim of the Law, Gentlemen, that the Laws may sometimes sleep, but they never die. It lays a great Deal with you, Gentlemen, to revive those, which are absolutely necessary for the Safety of the Community and good Order of Government ; and I hope that you will set an Example to the Rest of the Province.

The Bufinets that immediately concerns you, Gentlemen, respects the Crown Law; And you are sensible, Gentlemen, that there is a standing Grand Jury, which meet four Times a Year, and present all lesser Offences cognizable at the Sessions. Capital Offences, being extremely dangerous to Society, will demand your highest Attention. High Treason is another Crime which may be committed here, but in few Instances. I will mention some which I recollect. Levying War against the King is High Treason; as where People set about redressing public Wrongs; this, Gentlemen, the Law calls levying War against the King; because it is going in direct Opposition to the King’s Authority, who is the Redresser of all Wrongs.

Counterfeiting the King’s Coin is High Treason at Home, but we have not settled that Point here. We have a particular Province-Law, which makes it a lesser Offence; how far this will operate upon the Law of England, we have never determined; tho’ there is no Negative Clause in our Ad. (2) Another Instance of High Treason here, may be committed by counterfeiting the King’s Seal; but as never yet happened. These are all the Instances of High Treason here, which now occur to me.

Homicide, Gentlemen, is another Offence which you are to take Notice of, and this, Gentlemen, may be done, either by shooting, striking, poisoning, or any other Way, however secret, by which the Life of a Man is destroyed. Homicide is either voluntary or casual: The former is Murder, the latter may be Manslaughter, Chancemedley, or otherwise, as the particular Cafe may happen.

Burglary is another Offence which will come under your Examination, and is, in the Law, defined, breaking open in the Night-time, and entering into any Dwelling-house with a felonious Intention, whether such Intention be executed or not. There has been a Difficulty in the Minds of Some, as to the felonious Intention; As where a Man enters without a felonious Intention, and afterwards commits a Felony, whether fuch an Offence come under the Denomination of Burglary. Now I would observe, that the only Rule of Law is, to judge of the Intention by the Act; and, this Rule adhered to, there can be no Difficulty.

Blasphemy, Gentlemen, is another Offence, and in the Law is a very high Crime, being of the most dangerous Nature; for it tends to the Dissolution of all the Ties of Government, and saps the very Foundation of Society.

I am desired to mention another Offence, which does not immediately relate to your Conduct, There has been of late, a great Number of Thefts and Robberies committed in the Day-time in many of the neighbouring Towns; particularly, I am informed, in Roxbury, Dorchester, Brookline and Milton : And an Offence which is of very dangerous Tendency, has been frequent, that in Law is called Theft-bote; where the Person robbed has taken back the Goods stolen, and received a Satisfaction in Order to a Concealment. Indeed I should give you this particularly in Charge, had I not great Reason to think the Instance I have a more immediate Reference to, was committed through pure Simplicity and Ignorance; but I hope this publick mentioning of it, will have the same Effect, and prevent the like Evil for the Future.

In a word, all high Crimes and Offences, all highhanded Riots, which any of you ‘ know, you are obliged by your Oaths to communicate to your Brethren, that they may judge of, and present them.

You must act, through the whole, with Impartiality, without Prejudice in Favour of, or against any One. You are bound by your Oaths to Secresy, which Jurors do not always observe, not considering their Oath, and the Hurt they do the Community; and especially to Individuals, who, by their revealing Matters, which came before them, are rendered obnoxious to those whose pad Offences have made them Criminals.

Gentlemen : You, and we are all of us accountable to the Supreme Governour of the Universe, for our Conduct in our seyeral Departments.

£u. de hoc, & vid. the Votes of the Town of Boston, on the Day, to which the Chief Justice referred. (1)

The following is a copy of the votes referred to, from the town • records for 1765, fol. 647 :

“ At a legal Meeting of the Freeholders and other Inhabitants of “ the Town of Bofton at Faneuil Hall, Auguft 27th, Anno Domini “ 1765>—

“ The Hon’ble James Otis Efq. was chofen Moderator.

“ The Town having an utter deteftation of the extraordinary & vio- “ lent proceedings of a number of Perfons unknown againft fome of the “Inhabitants of the fame the laft Night—Vote unanimoufly that the “ Selectmen and Magiftrates of the Town be delired to ufe their utmoft “ endeavors agreeable to Law to fupprefs the like diforders for the future, “ and that the Freeholders and other Inhabitants will do everything in “ their power to affift them therein.

“ VOTED, That the Inhabitants of this Town will be ready on all “ occaiions to affift the Selectmen and Magiftrates in the fuppreffion of “ all Diforders of a like nature that may happen, when called upon for “ that purpofe.

“ VOTED, That the Thanks of the Town be, and hereby are given “ to the Honble James Otis Efq. the Moderator of this Meeting, for dif- “ patching the Bufinefs thereof.

“ Then the Meeting was diffolved.”

The only mention of any further difturbance is by Hutchinfon himfelf, who fays that on the next evening an attempt was made “ to collect “ the people together in order to further rapine ; but a military watch hav- “ ing been ordered, and the Governor’s Company of Cadets appearing in “ arms, and fhewing great fpirit, the mob was difperfed.” 3 Hutch. Hift. Mafs. 127.

Anc. Chart. 745.