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he describes God as nature herself, and infers that men have all the rights in society which they possessed under the revealed will -of their Creator, where the protecting laws of the government cannot be applied. In this case Selfridge had the whole state to protect him, even in a quarrel he provoked himself.

In Hawkins, b. 1, chap. 30, sec. 1, it is held that homicide against the life of another, amounting to felony, is either with or without malice:

"That which is without malice, is called manslaughter, or sometimes chance-medley, by which we understand such killing as happens either on a sudden quarrel, or in the commission of an unlawful act, without any deliberate intention of doing any mischief at all.”

The same author lays it down, that if he who kills another on a sudden quarrel was master of his temper at the time, he is guilty of murder; as if after the quarrel he fall into other discourse, and talk calmly thereon.

In 4 Blackstone, 184, it is laid down as a principle, that the person who kills another in his own defence, should have retired as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon the assailant. There is a distinction in the law between a combat and a sudden affray; a combat is when two men meet by agreement to fight. In the present case the defendant appears to be within the meaning of the word combat ; for it appears he was told that there would be an assault, and to make it a combat he went armed with a loaded pistol. The same author proceeds to say, that the person shall not fictitiously appear to retire or to avoid the affray, in order to catch his opportunity of killing the assailant, but from a real tenderness of shedding his brother's blood. Apply this doctrine to the present case, and ex. amine whether the evidence has shewn to you that the defendant entertained this tenderness in shedding the blood of young Austin. When he armed himself with a deadly weapon, and concealed it in his pocket, in order to shoot down any one who should assault him, can it be thought he had a tenderness against shedding human blood? When he declined having a recourse to the laws of his country for protection-when he chose to take vengeance into his own hands and perpetrated this act, can it be thought he had that tenderness which the law requires in him who shall unfortunately be driven from necessity to shed his brother's blood?

If the defendant had not written the advertisement, this quarrel would not have taken place-it was that which produced it. It appears that the consequences were produced exactly as he intended they should be, except that he killed one man instead of another. Retrace the whole of the transaction, and you will see the defendant bent on a bloody purpose: the letters of the 29th and 30th of July, appeared to have been intended to provoke a duel. But his counsel tell you that he was provoked to take these measures, on account of the injurious words spoken by B. Austin. Suppose it

rue that Mr. Austin had spoken disrespectfully of the defendant, bor that he had printed the most opprobirous slander of him, would Lit justify the defendant's going armed with a loaded pistol concealed in his pocket? The law holds that words either spoken or written can never justify an assault; it is of no consequence, therefore, whether B. Austin was to blame or not, the defendant ought not -to have defended himself in this way. It is true that the reputation of a lawyer is of great importance to himself, and of some to the community. As one of the profession, I wish the order was more respectable than the conduct of some of its members have lately renderedsit; in that case we should not at this day have heard the outcry against them, which seems to prevail too much throughout the United States.

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To me the original conversation which is said to have occasioned this unhappy event, does not appear necessarily to have involved the affront which the defendant seems to have conceived. From

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: the testimony of Mr Scott, we find that some gentlemen had been -joking Mr. Austin, at Russell's Insurance Office, on the Republican Committee being sued for the expence of the dinner the party - had on Copp's hill; and that Mr. Auftin, when he was going away, I laughingly retorted, that if a federal lawyer had not interfered, it would not have happened; it was a reply upon the other party, -and not a perfonal attack upon Mr. Selfridge. Mr. Scott inferred that he alluded to Mr. Selfridge, because he thought Mr. Austin - addreffed himself to him, as he was one of the federal party. Mr. *Selfridge's reputation was not affected, but he pursues him with a dreadful vengeance, and throughout the whole appears to be deterbmined to have him at his feet, alive or dead; how could he have fuffered in his character or his bufinefs? Is there any federalift who 7 thinks it dishonourable to fue a democrat? or is there any federalist e who would decline to employ Selfridge on that account? For my apart, I apprehend from what I have feen on the present trial, there was no ground for what is faid to be the apprehenfion of the Defendant.

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One further observation Mr. Carrol fays that he heard the report of the piftol when he was at the poft office; immediately after he faw Mr. Ritchie and Selfridge together, and Mr. Ritchie faid to the Defendant, that he was extremely agitated; to which the Defendant replied, Icam not agitated, I have done what I intended to do, or meant to do. Mr. Haftings fays that he heard Selfridge fpeak alfo, when it was inquired who had done the deed, and fay, I cram the man, I am not agitated. Mr. Ritchie fays that the Defendo ant faid, I know what I have done, I am not so much agitated as you are; and that he stood firm, erect, and upright. Does this look as if the killing was done upon a fudden affray ? would either of you Gentlemen, who fhould have been driving your carriage, and had the misfortune to run over a poor child begging alms in the street, and

kill him, stop short; and fay, I am the man who has done it, I know what I have done, I am not agitated! I am totally unacquainted with human nature, even at this advanced period of life, if there is a man among you but who would fhudder at the accident, and lament the effect of fuch careleffnefs. If any of you, in firing a gun, should be fo unfortunate as to kill one of your neighbours without intending it, your hearts would be too full, and you would be too much affected, to vaunt in a confident manner that you was the man that had done it ; that you had done nothing more than what you intended. If the Defendant had killed young Auftin by accident, he must have shown fome degree of agitation; but he was cool and collected, and did no more than what he intended to do.. This was true, or why did he carry with him a loaded piftol? If there is in your opinion, any degree of premeditation, he must be at least guilty of manflaughter.

I have, I think, candidly examined this cafe, and have done only that which appeared to me to be my duty to do. I did expect that the indictment would have been for murder. It ought on every principle to have been fo; there is no precedent to the contrary. The testimony I had heard, rendered fuch an indictment proper; not that I wished that he fhould have been convicted of that offence, but because I thought it would furnish an opportunity for a full examination of the unfortunate event. The Grand Jury having found a bill for manflaughter only, have, in fome measure, restrained us from fuch an inquiry, and the opportunity we might have had of conducting the trial before a full bench of the Supreme Court. I have no doubt but what his Honor, the judge who prefides, will give you correct directions in his charge; but ftill it is not the charge of a full bench, and therefore cannot be fo fatisfactory, as it might have been. I ought to have no expectation either that a wrong verdict will be given, or that the verdict, be it what it may, will throw the community into convulfions. Fear of confequences is an inadmiffible principle in our judicial proceedings; higher motives muft urge us to our duty, and the base principle of fear, can have no effect in the trial.

If the Defendant has fuffered, or must fuffer, is it not the confequence of his own fault? And is it not right that one who avowedly raises himself above the laws, should suffer, rather than that the effential laws of society, the first law of natural reafon, and the law of God, promulgated by the highest fanctions, shall be set at defiance?

Gentlemen, I confign this cause to you; to be decided according to the laws of our country, which laws his Honor will ftate to you from the bench; you will decide as in the prefence of Him who knows all our motives, and before whom we must all soon appear and have to answer, and in the presence of the whole human race, for the motives on which the prefent decifion shall be formed.

PARKER. J.

Gentlemen of the Jury! As this most interesting trial has already occupied four days-And as you must by this time be nearly exhausted, I shall endeavour, in discharging the duty incumbent on me, to consume as little more of your time as may be consistent with a clear exposition of the principles necessary to be understood, in order to form a just and legal decision. You have heard the important facts in the case, minutely and distinctly stated by the witnesses, ably and ingeniously commented upon by counsel, and the principles of law elaborately discussed and illustrated in as forcible and eloquent arguments as were ever witnessed in any court of justice in our country. It is now left to you upon the whole view of the case, both of the law as it shall be declared to you by the court, and the facts as proved by the testimony, to pronounce a verdict between the defendant and your country.

That in so important a trial, it should have devolved upon me, alone, to preside over its forms, as well as to declare the principles upon which your decision is to rest, is by no means a subject of congratulation. It is a situation which of all others I should have avoided, had not official duty imperiously imposed it upon me. But the organization of the court, and distribution of the services of its members are such as to have rendered any other arrangement difficult, if not impossible. Unde ur present judiciary establishment, all criminal causes, other than capital, are triable before one judge; and this system has proved itself to be eminently calculated for the dispatch of public business; other provisions in the system ensure as great a degree of correctness as can be expected of any human institution.

It is true that although at a term holden by one judge, if others are present, they may proceed together: But at this time, the court being in session in three, if not four several counties, it was impracticable, had it been desirable, to have more than two judges engaged in the present trial. The great delay which would have taken place, in consequence of a division of opinion (a case not unlikely to happen in the course of any trial) between two judges, rendered it altogether inexpedient that more than one should attend; and as this term had been previously assigned to me, the unpleasant task of officiating in the present case, seemed unavoidably to belong to me.

Since it has thus fallen to me to execute a painful and anxious duty, I shall not shrink from the task of declaring to you the principles of law by which you are to be governed in your investi. gation and decision of this case. If in doing this, I should be found capable, in order to retain the favour of one class of the community, or to court that of another, of abusing my office by

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stating that to be law which I know to be otherwise; this is the last time I should be suffered to sit upon this bench, and I ought to meet the execration and contempt of the society to which I belong.

The crime charged by the Grand Jury upon the defendant is manslaughter; a crime of high consideration in the eye of the This crime, however, is not defined by our statute, but its punishment is by it provided for.

law.

In order therefore, to ascertain the nature and character of the crime, it is necessary to resort to the books of the common law, the principles of which, by the constitution of our government, are made the law of our land, until they shall be changed or repealed, by our own legislature.

The counsel for the government, as well as for the defendant, have therefore wisely and properly searched the most approved authorities of the common law, for the principles upon which the prosecution or the defence must be supported. It is from those books alone, that any clear ideas of the offence which is in trial, or the defence which has been set up, can be attained.

The crime of manslaughter, according to those authorities, consists in the unlawful and wilful killing of a reasonable being, without malice express or implied, and without any justification

or excuse.

That the killing of a human being, under some circumstances, is not only excusable, but justifiable, is proved by the very terms of this definition.

Some persons, however, have affected to entertain the visionary notion, that it is in no instance lawful to destroy the life of another, grounding their opinion upon the general proposition in the Mosaic code, that whosoever sheddeth man's blood, by man shall his blood be shed." There is always danger in taking general propositions as the rules of faith or action, without attending to those exceptions, which if not expressly declared, necessarily grow out of the subject matter of the proposition.

Were the position above alluded to, true, in the extent contended for by some; then the judge who sits in the trial of a capital offence, the jury who may convict, the magistrate who shall order execution, and the sheriff who shall execute, will all fall within this general denunciation, as by their instrumentality the blood of man has been shed.

The same observations may be applied to one of the precepts in the decalogue. Thou shalt not kill, is the mandate of God himself. Should this be construed literally and strictly, then a man who, attacked by a robber, or in defence of the chastity of his wife, or of his habitation from the midnight invader, should kill the assailant, would offend against the divine command, and be

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