honestly resolved, and endeavored to lay aside | case, his would be the misfortune, and to him all opinions which you may have entertained would it be confined; but in the other, you vioprevious to this trial. But the difficulty of late a principle, and the consequence may be doing this, is perhaps not fully estimated; a ruin. Consider what would be the effect of an man deceives himself oftener than he misleads impression on the public mind, that in conseothers; and he does injustice from his errors, quence of party opinion and feelings, the defendwhen his principles are all on the side of recti- ant was acquitted. Would there still be retude. To exhort him to overcome his preju- course to the laws, and to the justice of the dices, is like telling a blind man to see. He country? Would the passions of the citizen, may be disposed to overcome them, and yet be in a moment of frenzy, be calmed by looking unable because they are unknown to himself. forward to the decision of courts of law for jusWhen prejudice is once known, it is no longer tice? Rather every individual would become prejudice, it becomes corruption; but so long the avenger of imaginary transgression. Vioas it is not known, the possessor cherishes it lence would be repaid with violence; havoc without guilt: he feels indignation for vice, would produce havoc; and instead of a peaceand pays homage to virtue; and yet does in-able recurrence to the tribunals of justice, the justice. It is the apprehension that you may thus mistake, that you may call your prejudices principles, and believe them such, and that their effects may appear to you the fruits of virtue, which leads us so anxiously to repeat the request, that you would examine your hearts, and ascertain that you do not come here with partial minds. In ordinary cases, there is no reason for this precaution. Jurors are so appointed, by the institutions of our country, as to place them out of the reach of improper influence, on common occasions; at least as much so as frail humanity will per

mit.

spectre of civil discord would be seen stalking through our streets, scattering desolation, misery and crimes.

Such may be the consequences of indulging political prejudice on this day; and if so, you are amenable to your country and your God. This I say to you who are federalists; and have I not as much right to speak thus to those who are democratic republicans? That liberty, which you cherish with so much ardor, depends on your preserving yourselves impartial in a court of justice. It is proved by the history of man, at least of civil society, that the moment the judicial power becomes corrupt, liberty expires. What is liberty, but the enjoyment of your rights, free from outrage or danger? And what security have you for these, but an impar tial administration of justice? Life, liberty, reputation, property, and domestic happiness, are all under its peculiar protection. It is the judicial power, uncorrupted, that brings to the dwelling of every citizen, all the blessings of civil society, and makes it dear to man. Little has the private citizen to do with the other branches of government. What, to him, are the great and splendid events that aggrandize a few eminent men and make a figure in history? His domestic happiness is not less real, because it will not be recorded for posterity; but this happiness is his no longer than courts of justice protect it. It is true, injuries cannot always be prevented; but while the fountains of justice are pure, the sufferer is sure of a recompense.

But when à cause has been a long time the subject of party discussion; when every man among us belongs to one party or the other, or at least is so considered; when the democratic presses, throughout the country, have teemed with publications, fraught with appeals to the passions, and bitter invective against the defendant; when, on one side, every thing has been done, that party rage could do, to prejudice this cause; and, on the other, little has been said in vindication of the supposed of fender, though, on one occasion, I admit that too much has been said; when silence has been opposed to clamor, and patient waiting for a trial to systematic labor to prevent justice; when the friends of the accused, restrained by respect for the laws, have kept silence, because it was the exclusive right of a court of justice to speak; when no voice has been heard from the walls of the defendant's prison, but a request that he may not be condemned without a trial; Contemplate the intermediate horrors and the necessary consequence must be, that opinion final despotism, that must result from mutual will progress one way; that the stream of in- deeds of vengeance, when there is no longer an cessant exertion will wear a channel in the pub-impartial judiciary, to which contending parties lic mind; and the current may be strong enough to carry away those who may be jurors, though they know not how, or when, they received the impulse that hurries them forward.

I am fortunate enough not to know, with respect to most of you, to what political party you belong. Are you republican federalists? I ask you to forget it: leave all your political opinions behind you; for it would be more mischievous, that you should acquit the defendant from the influence of these, than that an innocent man, by mistake, should be convicted. In the latter

may appeal, with full confidence that principles will be respected. Fearful must be the interval of anarchy; fierce the alternate pangs of rage and terror, till one party shall destroy the other, and a gloomy despotism terminate the struggles of conflicting factions. Again, I beseech you to abjure your prejudices. In the language once addresssed from Heaven to the Hebrew prophet, "Put off your shoes, for the ground on which you stand is holy." You are the professed friends, the devoted worshippers of civil liberty; will you violate her sanctuary? Will you pro

fane her temple of justice? Will you commit | sake of argument, that the evidence proves mursacrilege while you kneel at her altar?

I will now proceed to state the nature of the charge on which you are to decide, and of the defence which we oppose to it; then examine the evidence, to ascertain the facts, and then inquire what is the law applicable to those facts.

The charge is for manslaughter; but it has been stated in the opening, that it may be necessary to know something of each species of homicide, in order to obtain a correct idea of that which you are now to consider.

Homicide, as a general term, includes, in law, every mode of killing a human being. The highest and most atrocious is murder; the discriminating feature of which is previous malice. With that the defendant is not charged; the grand jury did not think that by the evidence submitted to them, they were authorized to accuse him of that enormous crime. They have, therefore, charged him with manslaughter only.

der. Our time will be more usefully employed in considering the principles of the defence. Let it be admitted, then, as stated by the counsel for government, that the killing being proved, it is incumbent on the defendant to discharge himself from guilt. Our defence is simply this, that the killing was necessary in self-defence; or, in other words, that the defendant was in such imminent danger of being killed, or suffering other enormous bodily harm, that he had no reasonable prospect of escaping, but by killing the assailant.

This is the principle of the defence stripped of all technical language. It is not important to state the difference between justifiable and excusable homicide, or to show to which the evidence will apply; because, by our law, either being proved, the defendant is entitled to a general acquittal.

Let us now recur to the evidence and see

whether this defence be not clearly established.

Mr. DEXTER here went into a minute examination of the whole evidence. In the course of it he labored to prove, that Mr. Selfridge went on the Exchange about his lawful business, and without any design of engaging in an affray; that he was in the practice of carrying pistols, and that it was uncertain whether he took the weapon in his pocket in consequence of expecting an attack; that if he did, he had a right so to do, provided he made no unlawful use of it; that the attack was so violent and with so dangerous a weapon, that he was in imminent danger; that it was so sudden, and himself so feeble, that retreat would have been attended with extreme hazard; that the pistol was not

The very definition of this crime, excludes previous malice; therefore it is settled, that there cannot, with respect to this offence, be an accessory before the fact; because the intention of committing it is first conceived at the moment of the offence, and executed in the heat of a sudden passion, or it happens without any such intent, in doing some unlawful act. It will not be contended that the defendant is guilty of either of these descriptions of manslaughter. Neither party suggests that the defendant was under any peculiar impulse of passion at the moment; and had not time to reflect; on the contrary, he is said to have been too cool and deliberate. The case in which it is important to inquire, whether the act was done in the heat of blood, is where the indictment is for murder, and the intent of the defence is to reduce the crime from murder to manslaughter; but Selfridge is not charged with murder. There is no-discharged until it was certain that none would thing in the evidence that has the least tendency interfere for his relief, and that blows, which to prove an accidental killing, while doing some perhaps might kill him, and probably would unlawful act. It is difficult to say, from this view of manslaughter, when compared with the fracture his skull, were inevitable in any other evidence, on what legal ground the defendant way, and that the previous quarrel with the can be convicted; unless it be, that he is to be father of the deceased, if it could be considered considered as proved guilty of a crime which as affecting the cause, arose from the misbehamight have been charged as murder, and by vior of old Mr. Austin, and that the defendant law, if he now stood before you under an indictment for murder, you might find him guilty of had been greatly injured in that affair :—Mr. manslaughter, and therefore you may now con- DEXTER then proceeded: vict him.

This does not appear to be true; for the evidence would not apply to reduce the offence from murder to manslaughter, on either of the aforementioned grounds. Perhaps it may be said, that every greater includes the less, and therefore, manslaughter is included in murder; and that it is on this principle that a conviction for manslaughter may take place on an indictment for murder. I will not detain you to exmine this, for it is not doing justice to the defendant to admit, for a moment, even for the VOL. II.-16

It cannot be necessary, gentlemen, for the defendant to satisfy you beyond doubt, that he received a blow before the discharge of the pistol. There is positive evidence from one witness, that the fact was so, and other witnesses say much that renders it probable. But if the defendant waited until the cane was descending, or even uplifted within reach of him, reason and common sense say, it is the same thing; no man is bound to wait until he is killed, and being knocked down would disable him for de

fence. The killing can be justified only on the | to defend himself against it? As little is the ground that it was necessary to prevent an injury that was feared; not that it was to punish for one that was past. This would be revenge, and not self-defence.

defendant to be censured for going about his ordinary business, when he knew it would be attended with danger, and arming himself for defence, in case such an emergency should happen, as that the laws could not afford him protection. I have here supposed that the pistol was taken for the purpose for which it was

The same law authorities which tell you, that a man must retreat as far as he can, say also, that, if the assault be so violent that he cannot retreat without imminent danger, he is ex-used; this, however, is far from being certain cused from so doing. If this means any thing, it is applicable to our case: for perhaps you can hardly imagine a more violent or more sudden assault. When to this is added the muscular debility of the defendant, it certainly forms a very strong case. He could neither fight nor fly. Had he attempted the latter, he must have been overtaken by his more athletic and active antagonist, and either knocked down, or maimed, or murdered, as the passions of that antagonist might dictate.

But it is said, and some passages from law books are read to prove it, that the necessity which excuses killing a man, must not be produced by the party killing: and that he must be without fault. You are then told that the defendant sought the affray, and armed himself for it; and that he had been faulty in calling Mr. Austin, the father, opprobrious names in the

newspaper.

from the evidence, as it is in proof, that the defendant had daily occasion for pistols in passing between Boston and Medford, a road that has been thought attended with some danger of robbery; and that he sometimes carried pistols in his pocket. There is not the least pretence for saying that he expected an affray with young Mr. Austin. He could not presume that his father would employ him; and it is not probable that he knew him in the confusion that the sudden attack must have produced. As to the publication in the newspaper against old Mr. Austin; though this might be in some sense a fault, yet it is far from being within the principle established by the books. When it is said the party must be without fault, it is evident that nothing more is meant, than that he must be without fault in that particular transaction. If we are to leave this and look back, where are we to stop? Are we to go through the life of the party to examine his conduct? If the defendant had libelled Mr. Austin; that was a previous and distinct offence, for which he was, and yet is, liable to an action or an indictment; and unless it be presumed without evidence and against all probability that it was intended to produce this affray, it can have no connection with the principle stated. There is another obvious motive for it, and there is nothing in the intended to provoke an attack. The defendant had been defamed; retaliation was the natural punishment; and there is no reason to presume that any thing more was intended, unless it was to blunt the shafts of calumny from Mr. Austin, by destroying his credit and standing in society. It is true, that it is said by several respectable compilers of law, that the party killing must be without fault; but they all refer to one adjudged case, which is found stated in 1. H. P. Č. page 440.

As to the affray being sought by the defendant, there is no evidence to support such an assertion, but what arises from his conversations with Mr. Richardson and Mr. Whitman, or from the fact of his having a pistol in his pocket. These only prove, that he was prepared to defend himself, if attacked: and if he did defend himself lawfully, this is the best evidence to show what was his intention. It cannot be presumed that he took the pistol with an un-evidence tending to convince you that it was lawful intent, when he never expressed such intent, and when his subsequent conduct was lawful. He had been informed that he should be attacked by a bully: in such case what was his duty? Was he bound to shut himself up in his own house? Was he bound to hire a guard? If he had done so, this would have been urged as the strongest evidence of his intention to commit an affray. Could he obtain surety of the peace from a future assailant, whose name was unknown to him? Or was he bound to go about his business, constitutionally feeble and unarmed, at the peril of his life? There would be more color for this suggestion if the defendant had gone on the Exchange, and then insulted either old Mr. Austin or his son, or voluntarily engaged in an altercation with either of them. But he went peaceably about his ordinary business, and made use of his weapon only when an unavoidable necessity happened. A man when about to travel a road infested with robbers, lawfully arms himself with pistols; if he should be attacked by a robber, and from necessity kill him, is he to be charged with having sought this necessity, because he voluntarily undertook the journey, knowing the danger that attended it, and took weapons

By recurring to the statement of this case it appears that the persons who killed, and would have excused it on the ground of necessary selfdefence, had forcibly entered and disseized the rightful owner of a house, and continued forcibly to detain it against him; in an attempt by the owner forcibly to recover possession, those who held wrongfully were reduced to the necessity of killing; and it was holden, that as they were then engaged in an unlawful act, namely, forcibly detaining the house against him who had a right to enter, they had produced his necessity by their own wrongful conduct; and therefore it should not excuse them.

So that this principle seems to be related to another, and in reality to be involved in it. I

mean the well known principle that he who kills another by accident, while performing an unlawful act, is guilty of manslaughter. It would be absurd that a man who kills by accident, while performing an unlawful act, should be guilty of manslaughter; and yet that he who kills, from design, while performing an unlawful act, however necessary it may have become, should be guiltless.

It is settled that if, on a sudden affray, A make an assault on B, and afterwards the assaulter be driven to the wall, so that he can retreat no farther, and then kill B necessarily in his own defence, that it is excusable homicide in A; and yet here A was in fault in this very affray, by making the first assault; but having afterwards retreated as far as he could, the law extends to him the right of self-defence. This shows that unless at the moment of killing, the party be doing wrong, the principle contended for on the other side does not apply. In proof of this I will also read to you an authority from 1st Hale's P. C., 479. "There is malice between A and B, they meet casually, A assaults B and drives him to the wall, B in his own defence kills A. This is se defendendo, and shall not be heightened by the former malice into murder or homicide at large; for it was not a killing on the former malice, but upon a necessity imposed upon him by the assault of A.

"A assaults B, and B presently thereupon strikes A without flight, whereof A dies; this is manslaughter in B and not se defendendo. But if B. strikes A again, but not mortally, and blows pass between them, and at length B retires to the wall, and being pressed upon by A, gives him a mortal wound, whereof A dies; this is only homicide, se defendendo, although that B. had given divers other strokes that were not mortal before he retired to the wall or as far as he could. But now, suppose that A by malice makes a sudden assault upon B, who strikes again, and pursuing hard upon A, A retreats to the wall, and, in saving his own life kills B. Some have held this to be murder, and not se defendendo, because A gave the first assault, Cromp. fol. 22 b, grounding upon the book of 3 Edw., 3 Itin., North. Coron, 287; but Mr. Dalton, ubi supra, thinketh it to be se defendendo, though A made the first assault either with or without malice, and then retreated."

on a sudden affray without malice, A may still excuse killing B from a subsequent necessity in his own defence; and yet none will deny that first assaulting B, though without malice, was a fault.

On this point, I submit to your consideration one further remark. The publication in the newspaper is nothing more than provoking language; now if the defendant had, immediately before the affray, made use of the same language to old Mr. Austin, no lawyer will pretend that this would have been such a fault as would have precluded the defendant from excusing himself for the subsequent necessary killing on the principle of self-defence. If it were so we should find it so stated in books of authority that treat on this subject; for the case must often have happened, as provoking language generally precedes blows. On the contrary, we find it settled, that even making the first assault does not deprive the party of this defence. It would be absurd then to say, that rude and offensive language, which cannot even justify an assault, should produce this effect. It can hardly be necessary to add, that, if these words, spoken at the moment, would not have deprived the defendant of this defence, having published them before in a newspaper, cannot produce this consequence.

I have hitherto admitted that the publication in the newspaper was a fault in the defendant; nor am I disposed entirely to justify it; yet circumstances existed which went far to extenuate it. He had been defamed on a subject, the delicacy of which, perhaps, will not be understood by you, as you are not lawyers, without some explanation. Exciting persons to bring suits is an infamous offence, for which a lawyer is liable to indictment, and to be turned away from the bar. It is so fatal to the reputation of a lawyer, that it is wounding him in the nicest point, to charge him with it. It is the point of honor; and charging him with barratry, or stirring up suits, is like calling a soldier a coward. Mr. Austin, the father, had accused the defendant publicly of this offence, respecting a transaction in which his conduct had been punctiliously correct. The defendant first applied to him in person, and with good temper, to retract the charge; afterwards in conversations with Mr. Welsh, Mr. Austin acknowledged the accusation to be false, and promised to contradict it I am bound in candor to add, that the law as as publicly as he had made it. Yet he neglectabove laid down, on the authority of Dalton, ed to do it; again he said he had done it; but has since been doubted as to that part of it the fact appeared to be otherwise. This inwhich supposes previous malice. This passage duced the defendant to demand a denial of it has been reviewed by Hawkins and East in in writing. Though Mr. Austin privately their several treatises, on Crown law, and I have acknowledged he had injured Mr. Selfridge, yet chosen to read it from this very circumstance, he refused to make him an adequate recombecause it appears that it has been well consid-pense, when he neglected to make the denial as ered; and when subsequent and eminent writers on full examination reject a part, and admit the residue to be law, it is strong confirmation of that residue. It is that alone on which I rely, and it is amply sufficient to prove, what I have before stated; that if A first assault B

public as the charge. This was a state of war
between them upon this subject, in which the
more the defendant annoyed his enemy, the
less power he had to hurt him.
It was
therefore a species of self-defence; and Mr.
Austin, who had first been guilty of defama-

tion, perhaps had little cause to complain. To to beat a man, and there be no possibility of try the correctness of this, we will imagine an | avoiding it but by killing the assailant, it is excusable so to do.