Boston. March 5, 1770.
British soldiers have been garrisoned in the colonial city to help keep order, a presence that only exacerbates the growing tensions between Colony and Crown. Resentment between Bostonians and their red-coated keepers frequently breaks out in shoving, shouting and even fistfights. Still, the British make every effort to avoid violence.
On this memorable night, an unruly mob faces down a troop of jittery soldiers, who are pelted first with snowballs, ice and oyster shells, then with clubs. When the smoke clears, three civilians lay dead, two dying. The city is outraged. Eight British soldiers are arrested on charges of murder. With the public crying out for blood and the Sons of Liberty hoping to use the incident to further their cause, the chances of the redcoats’ receiving a fair trial in such a hotbed seems slim.
One stout, 34-year-old lawyer, known to all as a man of integrity, agrees to take the case for the defense when no one else will– knowing he and his young family will be resented, reviled, perhaps harmed and that his career and growing popularity as a patriot might be at an end. In his opening statement before the court he states why he has taken the case: “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 to me, for the contempt of all mankind.’ . . .”
And as his argument proceeds, he makes the case, based on English law, that every effort should be made to guard against too hasty a condemnation of an accused, lest the man be innocent, even if that means many more guilty men go free.
“…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 person 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.” (Adam’s oratory on this occasion has long been considered one of the greatest speeches in world history. To read it in its entirety, click here.)
If Mr. Adams lived in the U.S. today, it would surely seem to him a foreign country. In our fear and zeal to prevent any act of terrorism, we have ruined many innocent lives through years of detention and even torture. Yet few Americans seem to care, as so many of us have bought the lie that the ends justify all, that the freedom of a few innocent must be sacrificed to insure the safety of thousands.
I would like to think that if he were here today, Adams would disagree and feel duty-bound to represent these detainees, whether innocent or guilty, to insure that they received the due process that is the hallmark of any free, democratic society. And for that, he would no doubt receive in return the curses and hatred of his countrymen, as he so often did in his lifetime.
In the course of the speech, Adams quotes a well known maxim of Roman law: Satius est impunitum relinqui facinus nocentis, quam innocentem damnari. (“It is better that a crime is left unpunished than that an innocent man is punished.”—Corpus Iuris Civilis: Digesta, 6th century)
The ancient Roman jurists recognized the danger in having so fine a net of justice that even the innocent are not safe. They knew the gods would avenge such an injustice, and so innocence had to be protected, even if that meant the guilty go free.
I am also reminded of this quotable exchange from Robert Bolt’s 1960 play A Man for All Seasons. Here, Sir Thomas More’s family chastises him for allowing an obviously corrupt man to walk away free. “And go he should if he were the Devil himself until he broke the law!” is his reply. His son-in-law Roper, a zealous Lutheran, is shocked at More’s willingness to “grant the Devil the benefit of law,” but Sir Thomas holds his ground:
- “What would you do? Cut a great road through the law to get after the Devil? … And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man’s laws, not God’s, and if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety’s sake!”
The idea here is that if we mow down our own laws in order to try to get at every evil, we render ourselves vulnerable in the end, since no law would remain to protect the innocent.