al description of the crime of manslaughter, than the 4th volume of Blackstone's Commentaries, in which the subject of homicide is treated at large. But at this time I shall ask your attention to those parts only which treat of the crime of which the defendant stands accused. In 4 Blackstone's Com. p. 177, that learned author says: "Of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away that life, which is the immediate gift of the great CREATOR; and of which therefore no man can be entitled to deprive himself, or another, but in some manner, either expressly commanded in, or evidently deducible from, those laws which the CREATOR has given us; the divine laws, I mean, of either nature or revelation." The author then proceeds to state what would be justifiable homicide; but as nothing can occur in the present trial, which can render the homicide of that nature, it will be unnecessary to read it.

In pages 180 and 181, he proceeds, in the next place, to consider such homicide as takes place to prevent a crime.

"The Roman law," he says, "also justifies homicide, when committed in defence of the chastity either of one's self or relations; and so also, according to Selden, stood the law in the Jewish republic. The English law justifies a woman, killing one who attempts to ravish her; and so too the husband or father may justify killing a man, who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other. And I make no doubt but the forcibly attempting a crime, of a still more detestable nature, may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own, and all other laws, seems to be this: that where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does; who holds, "that all manner of force, without right, upon a man's person, puts him in a state of war with the aggressor; and, of consequence, that, being in such a state of war, he may lawfully kill him that puts him under this unnatural restraint." However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of every well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.

In page 183, the author considers that species which consists in self-defence.

"Homicide in self-defence or se defendendo, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defence, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by

killing him who assaults him. And this is what the law expresses by the word chance-medley, or rather (as some choose to write it) chaud-medley; the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion: both of them are pretty much of the same import; but the former is in common speech too often erroneously applied to any manner of homicide by misadventure; whereas it appears by the statute 24 Hen. viii. c 5. and our antient books, that it is properly applied to such killing, as happens in self-defence upon a sudden rencounter. This right of natural defence does not imply a right of attacking; for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible (or at least probable) means of escaping from his assailant."

In page 188, the learned writer describes the nature of felonious homicide:

"Felonious homicide is an act of a very different nature from the former, being the killing of a human creature, of any age or sex, without justification or excuse. This may be done, either by killing one's self, or another man."

I will thank you, gentlemen of the jury, to attend to the distinction between that offence, and the one for which the defendant stands indicted, and which I am about to state from the same elegant author.

In page 191, he says:

Manslaughter is therefore thus defined, the unlawful killing of another, without malice either express or implied: which may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act."

"As to the first, or voluntary branch: if upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter; and so it is, if they upon such an occasion go out and fight in a field; for this is one continued act of passion; and the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself; yet neither is it murder, for there is no previous malice; but it is manslaughter."

There is only one other definition, which I will trouble you, Gentlemen, to attend to in the opening of this trial; it is the definition of the crime of murder, as given in the 195th page of the same book, in the words of Sir Edward Coke.

"Murder is therefore now thus defined, or rather described, by Sir Edward Coke. "When a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the King's peace, with malice aforethought, either express or implied.”

it is murder. He then goes on to give different descriptions of the feveral branches of murder, which it is not neceffary in this state of the trial to trouble you with.

I thought it my duty, Gentlemen, to read to you fuch paffage's in the book I have reforted to on this occafion, as contained a gen eral description of all the different branches of homicide, from wilful murder down to justifiable self defence.

I will now state my reafons for fo doing. So far as I am ac quainted with the facts of this case, it will turn out, from the testimony of the witneffes on the part of the Government, that this event happened in fuch a manner, that it may become a question whether the Defendant has been guilty of murder or manslaughter.

I do not mean to infinuate, that it is poffible to convict the Defendant on this indictment of a higher fpecies of homicide than manflaughter; but you will find by a recurrence to other books, and on an investigation of the facts, that though he be indicted for manflaughter, if from those facts he might have been found guilty of murder, he must be found guilty of manslaughter.

I mention this, because, poffibly, it may be contended, that the facts amount either to murder, or excufable self defence, and that in either cafe you must acquit. I fay it is poffible, because it is out of my power to anticipate on what ground the Defendant's Counsel will place their defence. It is therefore neceffary that you should have a juft idea of the nature of these different species of homicide for though you find that the facts approach the degree of murder, you must from every principle of public juftice fay, that the Defendant is guilty of manflaughter only.

I will now ftate to you generally, the facts which will appear in evidence to you on the part of the Government, and before I proceed particularly to state those facts, I will mention that it is neceffary that the Government prove these two things; first, that Charles Austin, the person named in the indictment, is dead; fecondly, that he came to his death by the inftrumentality of the Defendant at the bar, and under the circumflances alleged in the indictment; which two facts will amount to the crime of manslaughter. These then are the facts which the Government must prove before it can be entitled to your verdict; and you are to judge from the evidence that will be laid before you, whether these two points are or are not subftantiated on the part of the Commonwealth.

I expect that it will appear, that on the day mentioned in the Indictment, between the hours of one and two o'clock in the afternoon, Selfridge was in his office, employed about his ordinary bufiefs; that a few minutes before he proceeded from thence inte

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State ftreet, he had a converfation, in which he mentioned that he anticipated some attack in the course of the day, (probably about 'Change hours) and that he then stated a converfation which took place between Mr. Benjamin Austin and Mr. Welsh, in which Mr. Auftin had threatened to have him chastised; that Mr. Selfridge declared to the perfon with whom he had that converfation, that he was not a man to engage at fifticuffs, though he was prepared to protect and defend himself; to this, will be added other circumftances which tend to fhow, that Mr. Selfridge went out of his office with the pistol, which was the inftrument of the death of the deceased, and which was deliberately loaded for that purpose. About twenty minutes after Mr. Selfridge went out of his office, down into State ftreet, and the deceased was then on 'Change, ftanding near the door of Mr. Townsend's shop; that Mr. Selfridge walked down State street, with his hands in his pockets, or behind him, with, probably, an intent to conceal the inftrument he had in his pocket, and with which he gave the deceased his death wound; that in paffing down in this manner, Austin leaving the place at which he flood, approached him with a stick in his hand; that they met together a few paces from the door of the fhop, and that there a combat enfued. It will appear that the deceased came with a stick in his hand, in a manner to make an affault; but from the evidence we shall introduce, it will be impoffible, I think, to decide, whether the pistol was discharged, and the death wound given, before, or after Austin gave Selfridge a blow.

It is not neceffary now fo very minutely to ftate the circumstances of this affecting tragedy; I fhall rely on the information of the witnesses for thefe facts, but it will appear from the whole, that it was performed in the course of twenty feconds at the farthest ; the parties met, the piftol and firft blow given and discharged, probably, at the fame inftant. Auftin then fell to the ground, and foon expired; he was carried into the fhop of Mr. Townsend, where his wound was examined, found mortal, and of which he died.

When the people collected, Mr. Selfridge appeared perfectly in poffeffion of his mind; declared himself in a state of recollection, and faid, he knew what he had done, and was ready to answer for it at the bar of his country.

These are the outlines of this cafe; these facts, I am confident, from what I know of the former teftimony of the witnesses, they will again declare, and, perhaps, fomething further in favour of the Government. If fo, it will be impoffible the Defendant should escape the punishment the law affixes to the crime. Taking it for granted that I fhall prove the facts, it may be convenient at this time to ask your attention to those rules of law applicable to a cafe of this kind.

When I have fo done, their applicability will eafily be perceived, and the cause will be fully opened on the part of the Government.

I do not know that the book I have in my hands, has ever been read as an authority. It is 1 Eaft's Pleas of the Crown, which contains the best treatise on the subject of homicide, that has been printed.

I will begin, by reading fome part of the 19th fec. chap. 5, page 232. If any question is made as to the correctness of the principles, I have Hale, Hawkins, and the other authorities cited, which can be referred to.

Parker J.

There are few authorities in that book, that are not taken from Hale and Hawkins.

Sol. Gen. The part I cite, is that which treats of homicide from tranfport of paffion, or heat of blood.

"Herein is to be confidered under what circumstances it may be prefumed that the act done, though intentional of death, or great bodily harm, was not the refult of a cool deliberate judgment and previous malignity of heart, but imputable to human infirmity alone. Upon this head it is principally to be obferved, that whenever death enfues from fudden transport of paffion, or heat of blood, if upon a reasonable provocation and without malice, or if upon fudden combat, it will be manslaughter; if without fuch provocation, or the blood has reasonable time or opportunity to cool, or there be evidence of express malice, it will be murder. For let it be again observed, that in no instance can the party killing, alleviate his case, by referring to a previous provocation, if it appear by any means, that he acted upon exprefs malice."

I shall now read part of the 21st sec. of the same chapter:

"It must not however be understood that any trivial provocation, which in point of law amounts to an affault, or even a blow, will of courfe reduce the crime of the party killing to manflaughter. This I know has been fuppofed by fome, but there is no authority for it in the law. For where the punishment inflicted for a flight tranfgreffion of any fort is outrageous in its nature, either in the manner or the continuance of it, and beyond all proportion to the offence, it is rather to be confidered as the effect of a brutal and a diabolical malignity, than of human frailty; it is one of the true symptoms of what the law denominates malice; and therefore the crime will amount to murder, notwithstanding such provocation. Barbarity, says Lord Holt, in Keate's cafe, will often make malice."

I will now read another rule from the 23d fec. page

239:

"In no cafe, however, will the plea of provocation avail the party, if it were fought for and induced by his own act, in order to afford him a pretence for wreaking his malice. As, where A. and B. having fallen out, A. fays he will not strike, but will give B. a pot of ale to touch him; on which B.strikes A. and A. kills him: this is murder. And in all cafes of provocation, in order to extenuate the offence, it must appear that the party killing acted upon fuch provocation, and not upon an old grudge; for then it would amount to murder.

Gore. The gentleman has ftated and laid down principles