Gentlemen-Not being able to fathom this abyss of troubled waters; not having the courage and firmness to cast away the guardianship of social protection, and the laws; not having an imagination that can show the lines of security beyond those of the civil government, I will yet believe the laws to be fully adequate, where we have time to apply to them; and I will fondly suppose that I am, to every possible purpose, in a state of civil society and social security. The laws may be so imperfect, for human nature is so, that the remedy may be slow, and below my wishes; but I will not claim to be my own judge; I will not say that I have a right to appeal to this arm to avenge an injury, whilst the law affords me a complete remedy. The defendant's counsel asks how he could have gone home to his wife and children, with his honour stained, by the blow he had received on the public exchange from young Austin. I put a case hypothetically: If a man of honor and great irritability of nerves, should have received a blow, could he appeal to the laws of his country without tarnishing his honor, or injuring his family? If his wife was a virtuous woman, she would applaud his moderation, and be gratified in teaching her children to pursue a similar course through their future lives; no person would deem him disgraced by the blow, though he had not destroyed his adversary. If we are to return to the barbarous times so well described by Robertson, in his history of Charles V, where every great man was to go armed with his trained bands behind him, in order to encounter any whom he might meet, without regard to laws either human or divine-If heroism and honour and chivalry are to return, we may expect to see again those combats so well described in the well known ballad of Chevy Chase; and this promised land, flowing with milk and honey, is to be turned into a field of battle, and crimsoned by the blood of our fellow citiI trust we are now too far advanced in civilization to return from the light of this day to the barbarisms of the 13th century, when the interposition of the authority of the Pope and his council became necessary in order to prohibit these misadventures. Whatever opinions we may have of the Roman Catholic religion, we are indebted to its influence for this one good deed, which all the potentates of Europe combined together could not have effected.

zens.

There is something in this cause which has unnecessarily been introduced, and which I wish to lay out of the question before we proceed: The gentleman on the other side is above personalities in a cause of this importance, but he draws a picture in the darkest colours, and leaves you to point to the original;-he says that some one has been standing in the gutter for twenty years past, throwing mud at every well dressed gentleman that passed by, and that he can have no ground of complaint if he should be a little spattered himself, I ask whether if it was true that a man had

done this, is he to be outlawed? Is he and his family to be hunted and shot down at noon day? That is not the punishment for libels; if he is to be condemned for libelling, let the innocent man among his accusers cast the first stone. I have had my share of such opprobium, but it never came into my mind to redress myself by shooting one of my fellow citizens. He wrote against Washing ton, they say; so did Hamilton ;-he wrote against Adams and others of his administration; so did Alexander Hamilton and others ;-but Austin authorises me to deny the charge of his writing against Washington. Who wrote against Hancock and Samuel Adams and Washington and all the great men who produced the revolution? Are all those writers outlawed? If any of them were punished, it was in pursuance of the laws of the country—we have no check beyond that. Who is there of consequence enough to deserve notice, but is the object of daily slander? Does Benjamin Austin do all this?

Where will these ideas carry us? Are they compatible with the elegant expostulations of both my brethren against party politi cal prejudice? I think they would carry us back to the barbarous ages; in which case it will become necessary for every man to become an expert combatant. These ideas will, I presume, excuse robbery in those who are too proud to beg. Should we lower our notions of honour, and condescend to bring our feelings to the rules of law, we should then have to enquire,

Whether the defendant has proved beyond a reasonable doubt, that the fact of killing was committed in such a manner as to ren der it lawful, and excuse him of all blame.

In this the first enquiry is-Was the death a voluntary killing ? that is to be decided by the weapon and manner. Was it by justifiable or legal warrant? was it an accident? was it on a sudden provocation? was it on a sudden combat? or was it done in pursuance of a design unlawful in itself, and unjustifiable by the established laws of our government? Should you be satisfied from the opinion of the Court, that it is of no consequence as the evidence is, whether the pistol was fired before a blow was given by the deceased, you will be much relieved; but if that fact should be considered as important in the case, you will then have to enquire Ist, Was the assault previous to the mortal wound,

2d, Was it at the same instant, or

3d, Was it after the mortal stroke.

In these enquiries, what shall guide you? Are you left to the nice feelings of a man of honour, to be decided on his apprehensions of the moment, and to make a separate law in each case as it arises or are these established laws to guide you? The constitution has fixed a system by which the courts of justice are to be governed :-these books which have been cited contain those

laws, which are laws, though they were not made by the legislative authority; they were made by the voice of the people; and this, which is the highest authority, has said that these books shall be the law of the land: For this I refer you to the sixth section of the sixth chapter of the constitution, where it is declared that all the laws, rules and practices in the judiciary department, which have been heretofore adopted, shall continue to be law, until they shall be altered by the general court of this commonwealth.They were brought by your ancestors from the land of slavery ; they have been wet with the mists of the red sea, washed in the waters of Jordan, and are now our garments of comfort in the promised land-yes, in the promised land! You young men, who have only heard of the revolution, may smile at the simile, but the venerable and aged members of this community, many of whom I see around me, know what it was to have passed through the wilderness, through difficulties and dangers almost unparalleled; those will not willingly relinquish their principles.

By these rules, if the defendant entertained a grudge or ill will against the father of the deceased, can the malice in such a case be transferred to the son? if it should appear that the defendant went out armed with a deadly weapon, with an expectation of meeting the elder Mr. Austin, and did thereupon kill the son, it would be such a malice as to constitute the crime of manslaughter at least. On this point I will read from East's P. C. 231 Sect. 18.

"Homicide from a general malice or depraved inclination to mischief, fall where it may, the act itself must be unlawful, attended with probable serious danger, and must be done with a mischievous intent to hurt people, in order to make the killing amount to murder in these cases; for it is from these circumstances that the malice is to be inferred. But if an unlawful and dangerous act, manifestly so appearing, be done deliberately the mischievous intent will be presumed unless the contrary be shewn : Thus if a person, breaking in an unruly horse willfully ride him among a crowd of persons, the probable danger being great and apparent, and death ensue from the viciousness of the animal; it is murder. For how can it be supposed that a person willfully doing an act, so manifestly attended with danger, especially if he shewed any consciousness of such danger himself, should intend any other than the probable consequence of such an act. But yet if it appears clearly to have been done heedlessly and incautiously only, and not with an intent to do mischief, it is only manslaughter: though Hawkins considers it would be murder if the person intended to divert himself with the fright of the crowd. So if a man knowing that people are passing along the street, throw a stone likely to create danger, or shoot over the house or wall with intent to do hurt to people, and one is thereby slain; it is murder on account of the previous malice though not directed against any particular individual; for it is no excuse since it appears that the party was bent upon mischief generally, but if the act were done incautiously, without any such intent which must be collected from the circumstances, it is only manslaughter. Again; if the killing happen in the prosecution of an unlawful act, as

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where the party comes with a general resolution to resist all opposition; to commit a riot, to enter a park and death ensue, upon such resistance, it would be murder, but this will be considered more fully in another place. To this point may be cited Foster 261, 262, 263 and 4 Black. 200. also Hawk. 74 ch. 29. Sect. 12. 3 Jus. 50.

Foster C. L. page 261. If an action unlawful in itself be done deliberately and with intention of mischief or great bodily harm to particulars, or mischief indiscriminately fall it where it may, and death ensue against or beside the original intention of the party, it will be murder. But if such mischievous intention doth not appear, which is matter of fact and to be collected from circumstances, and the act was done heedlessly and incautiously, it will be manslaughter; not accidental death. Because the act upon which death ensued was unlawful.

Upon this head I will mention a case, which through the ignorance or lenity of Juries, hath been sometimes brought within the rule of accidental death, it is where a blow aimed at one person lighteth upon another and killeth him. This in a loose way of speaking may be called accidental with regard to the person who dieth by a blow not intended against him. But the law considereth this case in a quite different light. If from circumstances it appeareth that the injury intended to A, be it by poison or any other means of death, would have amounted to murder supposing him to have been killed by it, it will amount to the same offence if B happeneth to fall by the same means. Our books say that in this case the malice egneditun parsanam. But to speak more intelligibly, where the injury intended against A proceeded from a wicked, murderous, or mischievous motive, the party is answerable for all the consequences of the action, if death ensueth from it, though it had not its effect upon the person whom he intended to destroy. The malitia I have already explained, the heart regardless of social duty and deliberately bent upon mischief, and consequently the guilt of the party is just the same in the one case as in the other. On the other hand if the blow intended against A and lighting on B arose from a sudden transport of passion which in case A had died by it would have reduced the offence to manslaughter, the fact will admit of the same alleviation if B should happen to fall by it.

Now we come to an examination of the testimony which has been laid before you, and from which you will have to determine the degree of guilt incurred by the defendant.

Was the assault of young Austin made upon Selfridge previously to the firing of the pistol, that instrument which gave the mortal wound? To this point we have the testimony of John M. Lane and Job Bass. I will make one or two observations on Lane's evidence. Mr. Lane said he was standing in his shop door and saw Selfridge fire the pistol and the person who was fired at raised the stick and struck at Selfridge after the pistol was discharged.

The evidence of shooting before the blow was, is from the testimony of Bass and Lane (here the Attorney General recited the testimony of those two witnesses for which see pages 35 and 56.

Howe, Frost and others say they did not see any blow struck before the pistol was fired, but perhaps these two witnesses will be sufficient to satisfy your minds that the deadly wound was given before a blow was struck, and there is a distinction in law between an as

sault and battery. The counsel for the defendant have attempted to disparage the testimony of Mr. Lane, without intending to impeach his moral character. Mr. Lane's standing in society is above imputations of that sort, for my part I am astonished that the circumstances of this case should not have been attended with greater variations then they appear to have from the witnesses on both sides. It is an extraordinary thing in a scuffle of this kind at noon day, on the public exchange, done on the sudden, that the testimonies should come so near together as they do in respect to the time, place, &c. I shall pot however insist that the pistol was fired before the assault was made.

I come now to the second question whether the killing and the blow were at the same instant of time, and here you have the tes timony of a number of witnesses to prove that both happened at the same moment, (the Attorney General here referred to the testimony, and read several extracts from those of Edward Howe, I. Frost, J. Warren, J. Bailey, Z. French, R. Edwards, H. Bass, and John Erving) which testimonies the reader will find stated at large in pages 36, 50, 51, 53, 54, 56, 57, and 59.

I do not deny that from their testimonies, an assault may be inferred, and that there was an intention on the part of young Mr. Austin to commit a battery, but I do deny that it was such an assault as would justify the defendant in putting the assailant to death with a deadly mortal weapon prepared and charged on premeditation for the purpose.

I now come to the consideration of another point that the blow was given by Mr. Austin before the defendant gave the mortal wound. On this head you have only the solitary testimony of Lewis Glover, I know nothing of his prejudices or party feelings, for he is quite a stranger to me; while on the stand, he told you that he had expected something would take place in the course of the day between Selfridge and Austin, the father of the deceased, that he meant to amuse himself by attending the exhibition. As in former days the Romans had gladiators to amuse the public, so this witness watched the parties that he might see them sink below the character of men, he owns however that he might have been better employed; there I agree with him, I think he would have been better employed if he had gone to a magistrate and apprised him of his suspicions, in which case the magistrate would have taken a necessary precaution to prevent the town of Boston being disgraced by actions of this kind. He says that he saw the deceased give one violent blow, which struck Selfridge on the hat, that he recovered his cane in order to repeat the stroke, and that the second blow and pistol went together. This I say is the solitary testimony of Glover, unless you take the testimony of Mr. Wiggin as a corroberation of it; and even then, there are upwards of