would practice moderation and forbearance, to avoid so terrible a calamity; yet, should I ever be driven to that impassable point, where degradation and disgrace begin, may this arm shrink palsied from its socket, if I fail to defend my own honor.

It has been intimated, that the principles of christianity condemn the defendant. If he is to be tried by this law, he certainly has a right to avail himself of one of its fundamental principles. I call on you then to do to him, as in similar circumstances, you would expect others to do to you; change situations for a moment, and ask yourselves, what you would have done, if attacked as he was. And instead of being necessitated to act at the moment, and without reflection, take time to deliberate. Permit me to state, for you, your train of thought. You would say this man, who attacks me, appears young, athletic, active and violent. I am feeble and incapable of resisting him; he has a heavy cane, which is undoubtedly a strong one, as he had leisure to select it for the purpose; he may intend to kill me; he may, from the violence of his passion, destroy me, without intending it; he may maim or greatly injure me; by beating me he must disgrace me. This alone destroys al my prospects, all my happiness, and all my usefulness. Where shall fly, when thus rendered contemptible? Shall I go abroad? Every one will point at me the finger of scorn. Shall I go home? My children-I have taught them to shrink from dishonor; will they call me father? What is life to me, after suffering this outrage? Why should I endure this accumulated wretchedness, which is worse than death, rather than put in hazard the life of my enemy.

Ask yourselves whether you would not make use of any weapon that might be within your power to repel the injury; and if it should happen to be a pistol, might you not with sincere feelings of piety, call on the Father of Mercies to direct the stroke?

While we reverence the precepts of christianity, let us not make them void by impracticable construction. They cannot be set in opposition to the law of our nature; they are a second edition of that law; they both proceed from the same author.

Gentlemen, all that is dear to the defendant, in his future life, is by the law of his country placed in your power. He cheerfully leaves it there. Hitherto he has suffered all that his duty as a good citizen required, with fortitude and patience; and if more be yet in store for him, he will exhibit to his accusers an example of patient submission to the laws. Yet permit me to say in concluding his defence, that he feels full confidence that your verdict will terminate his sufferings.

ATTORNEY GENERAL.

May it please your Honor, and you, Gentlemen of the Jury,

It is my official duty to close this cause on the part of the Government. If I can perform this duty by a simple, accurate and intelligible arrangement of the facts, and a just and pertinent application of the legal principle by which they are governed, I shall be satisfied.

I will not play the orator before you, or pretend to make a speech if I was capable. I would not do it on this occasion.

Circumstanced as I am, nothing but my duty could induce me to undertake the task. No pecuniary reward could engage me in the cause. Nothing, I repeat it, but the sense I have of my official duty and a compliance with the public expectation, could induce me to appear this day before you on this occasion. But, I thank God, that through a course of what may be called a long life, I have had firmness to do my duty when I had a duty to do.

The prosecution of this cause on the part of the Government has been conducted in every respect similar to prosecutions in other cases on like occasions. When it was said, that one of our fellow Citizens, in the open street, at noon-day, had undertaken to destroy the life of another, it was necessary to inquire by what authority he did it; what legal process or warrant of law he had for conduct of such consequence to the public, as well as to an individual citizen.

Is there any cause of wonder that on the day it happened, he should be apprehended and carried before a Magistrate, who exercised the same power in this particular as he would have been obliged to do had it been the case of either of you gentlemen of the Jury, or of any other member of the community?

The Magistrate found the killing to have been voluntary and not occasioned by any accident: what ought the Magistrate to do? was he to undertake to decide the difficulties which you have to encounter in this cause? was he to undertake to say that the act of killing amounted to murder, or manslaughter, or to justifiable or ex. cusable homicide?

The Magistrate was bound to commit him to take his trial, to which he is now brought. Was there any thing wrong in this? if there was, he had the remedy in his own power. The Supreme

Court upon a Habeas Corpus might have set him at liberty; it is a writ of right, and would have been granted if by law it ought, as of course if he had applied for it. If he chose to decline the application and lay in prison, he had his reasons for it. He as a lawyer must have known the consequences. Would not every other man in the community have had to suffer a like inconvenience with that sustained by the Defendant under similar circumstances? Certainly they would. Why then this warm and eloquent address to the passions and feelings of the public? Do they expect to influence you, gentlemen of the Jury, and divert your attention from the just

ness of the case by an appeal to the feebleness of his health and the weakness of his person? Is it to injure the reputation of the officer, who, ex officio, moved the commitment of the Defendant to prison, that his counsel apply to your compassion and tender feelings? Be it so, but I hope that I shall continue conscientiously to discharge the duties of my public function, regardless of every other consideration, than that of the duty which I owe the Commonwealth.

It is said, that a great crowd has attended the court during this trial, and we are asked the reason-many, I suppose attend from curiosity. Is it to be wondered at that a crowd attended also at the exchange, on the day, that the Defendant shot the young man in State Street? The human mind naturally shudders at death, and when a man destroys his fellow citizen, it naturally draws the attention of all men to the fact! The insinuation respecting a crowd in this court room, seems to glance at party spirit, but had party spirit any thing to do with the crowd that assembled on the exchange? When one man has struck another out of being, so far as being depends upon his existence in this world, is it marvellous that the public attention should be on tiptoe on this occasion? Is the agitation any thing more than the effect of nature's law? Is it any thing more than the uniform principle of our holy revealed religion? Is it not the voice of God?

He

It is true, when the crowd assembled in State-street, an inquiry was made—who was the man that did this? The Defendant boldly stood forth, and said. I am the man; and it appears that he raised himself in the middle of the crowd to make the declaration. had courage in the midst of this universal cry of who is the man that has done this, to stand forth and avow himself the perpetrator. But courage is not the criterion of truth, this firmness of nerve, this unexampled boldness has not changed the nature of the crime, nor can it give us the law to govern the fact. Does the definition of offence or the rights of men in civil society depend on the character of individuals, or the different constitutions of men?

The question before you, is this, has the Government produced evidence to convince you beyond a reasonable doubt, that the Defendant killed Charles Austin, in the manner and form as set forth in the indictment. If you are satisfied of this question, then the burthen of the cause has devolved upon you, and you must undertake it, whatever may be the consequences.

If you are not satisfied of this fact, there is no further inquiry to be made, but if you are, then there is a second question. Has the Defendant shown you beyond a reasonable doubt, that the fact of killing, independent of any previous circumstances against him, attached to it, was done in such a manner as will render the killing lawful, and excuse him from any share of guilt.

Why this devolves upon him I will show from an authority in which it is better expressed than I can express it in my own language. Fost. C. L.

255.

"In every charge of murder, the fact of killing being first proved, all circumstances of accident, necessity, or infirmity, are to be satisfactorily prov. ed by the prisoner, unless they arise out of the evidence produced against him, for the law presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it is, that the law should so presume. The Defendant in this instance standeth upon just the same foot that every other Defendant doth, the matters tending to justify, excuse, or alleviate, must appear in evidence before he can avail himself of them."

And why must it devolve upon him? Because if he had a legal warrant he could produce it.Whether there was malice or not, in killing, upon any other than legal authority, depends upon the feelings of the heart, and no man can be so well acquainted with them as the person who perpetrates the act. I will adduce another authority to the same point from 1 East. C. L. Byrne Ed. 224.

"The implication of malice arises in every instance of homicide amounting in point of law to murder: and in every charge of murder, the fact of killing being first proved all the circumstances of accident, necessity or infirmity are to be satisfactorily proved by the prisoner unless they arise out of the evidence produced against him.".

The question you have before you is, whether the Defendant has proved either accident, or necessity, as fully as the Government has proved the fact of killing? If he has not, he is guilty of the homicide charged in the indictment. Has he proved circumstances that will reduce it to excusable homicide? or that he has done nothing but what he had a right to do. If there was any premeditation a share of blame attaches itself to the fact, though it were but momentary the law makes it a crime in that case, and it cannot be less than manslaughter; but if the Defendant has proved beyond a reasonable doubt by the evidence he has offered, or what arose out of the evidence offered on the part of the Government, that the fact of killing, in the manner it was committed, independent of any previous circumstances attached to, or explanatory of it, was excusable homicide, yet if the Government has given convincing proof of a premeditation his excuse cannot avail him.

First, have we proved the fact of killing? that is admitted to be proved beyond a doubt. And you have secondly to inquire, whether the Defendant has given evidence to justify what he has done, or to shew it to be excusable from a legal necessity. Thirdly, you will inquire whether the government has given evidence of such facts and circumstances previous to the transaction as will take from the Defendant all his claim of excuse and render him guilty of a felonious homicide.

These three questions include every fact and every principle of law that can arise in the cause. They will embrace and call into examination every circumstance which has been given in evidence

by the witnesses, and every principle of law by which the facts are, to be governed and decided upon.

This cause is an important one, and presents to our discussion a question of principles : It is of no consequence who are the parties, or what the facts are, on which the issue rests, otherwise than to call into examination the principles that are to guide you to a verdict. It would be desirable to lay out of the question the persons of the deceased and the Defendant; and to consider the cause in the abstract, as if between persons of whom you had never before heard. The principles on which this cause is to be tried, must stand or fall by themselves, without any regard to the parties. The principles upon which the issue rests must be fixed and determinated.

Without fixed and permanent principles, religion itself is a delusion. Morality is a cheat. Politics are a source of oppression and cruelty, and the forms of law but the vehicle of corruption, the mask of chicane and injustice.

Principles are no other but the primordial nature of things upon which systems are predicated, for the use and happiness of rational nature; without those, all is insecurity and confusion; the world is a waste, society is a curse, and life itself but a dream of misery. While religion, founded in the self existence of the Deity, and the relation of man to the Divine nature. While morals, predicated upon the cònnexion between man and man, as brethren, while stubborn nature, fixed on eternal and unchangeable laws, deny to yield to man the inflexibility of their principles, he is left to raise, for himself, those systems of civil social government, and jurisprudence, which are best adapted to his situation, and circumstances, and in this society is left to decide for its self.

When the sovereign will of the civil community has arranged these, the obligation of each member to submission, becomes a moral obligation, crimes result from disobedience, to disobedience penalties must be attached.

Despotism is adapted to a state of savage barbarity, where fear is the only motive to action or forbearance; yet even there, the will of the people, let it be founded in what it may, either in prudence, or in cowardice, is the foundation of the sovereignty.

A monarchy and aristocracy, mixed together to form a government, supports a state of servile dependance, where the hopes of favour and interest exclude the idea of reward for merit, bring patriotism and public virtue into base contempt, and render fraud, deceit, chicane and cunning, the insolent claimants of the rights of truth, talents and integrity.

In a free government only, it is that principles, founded in the nature of social virtue, can claim the decision of what is right between man and man, or between an individual and civil society, without the corruptions arising from the destruction or irregularity of rights and privileges, from party distinctions, from the frauds of

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