which I fhall oppofe; and I may as well take the opinion of the Court now, as at any time hereafter. The gentleman has faid that on this Indictment he fhall offer evidence to fhew, that there was that fort of malice, which is defcribed in the crime of murder. He has stated that by entering into the conversation and antecedent circumstances, he will be able to prove there was a previous malice, and that thofe circumstances and malice, amount to the crime of murder ; now the Indictment being for manslaughter, negatives all idea of malice; he therefore can give no teftimony on the ground of malice, as it does not comport with crimes ftated in the Indictment. It is confounding all rules of law, if under this Indictment for manslaugh ter, he should attempt to fet up a proof of malice; to this point, I quote Hawkins. Book 1. chap. 30.

"Homicide against the life of another amounting to felony is either with or without malice. That which is without malice," I am reading now from the firft fection, “ is called manflaughter, or fometimes chance medley, by which we understand fuch killing as happens either on a fudden quarrel, or in the commiffion of an unlawful act, without any deliberate intention of doing any mischief at all ;" and in the fecond fection he goes on to ftate, “ and from hence it follows, that there can be no acceffaries to this offence before the fact, because it must be done without premeditation.”

Here is an exact definition of the crime of murder, corroborated by other definitions in the Books cited in the margin, which perfectly excludes all idea of malice. Therefore they cannot, under this Indictment, attempt, according to any rule of law (that I know of,) to prove malice in my Client, for it would make a distinct crime, different from that with which the Defendant is charged.

Sol. Gen. I had no inducement to make this ftatement to the Jury, or to intimate the nature of the evidence I fhould offer, but that of doing what I apprehend to be my duty. I stated that it was impoffible for me to anticipate on what grounds the defence would be placed; but if it fhould turn out that the Defendant is not guilty of the crime of manslaughter, according to the technical definition of that crime, because the evidence may show that it was either murder, or may tend to prove it justifiable felf defence; in the first case, it is clearly law, that if, on an Indictment for manslaughter, the evidence fhould fhew the crime was murder with malice, the Jury would be juftifiable in convicting him at least of manslaughter. The reafon upon which I bottom this opinion is, that they being judges of the facts, and of the law as it applies to thofe facts, they are competent to the decifion, and they will find themselves warranted in fo doing by the opinion Judge Holt delivered in Mawgridge's cafe, reported by Kelyng, page 125. The principle I lay down, was then recognized, and on the authority of that cafe, I ground myself on the prefent occafion. Holt then, after speaking of homicide or manflaughter, fays,

"The killing of a man by affault of malice prepense, hath been allowed to be murder, and to comprehend the other two inftances."

Parker J. I fee no reason to doubt that principle. If the evidence proves the Defendant guilty of a higher crime than that with which he ftands indicted for example, if they prove him guilty of murder, it is competent to the jury, to find him guilty of manflaughter, for which he is indicted.

Att. Gen. The books are fo full on this point, that it is unneceffary to trouble the Court with the recital of them.

Dexter. I wish to know what is precifely the queftion, and to what point it is necessary to turn our attention. If it be true, that the whole queftion before the Court and Jury, is whether the fame evidence can be given on a trial for manslaughter as on an indictment for murder, and it be decided that it can, it appears to follow that the cause is to be tried on principles on which there can be no legal decifion; if we are to try on the prefent occafion for murder, the Jury cannot convict nor acquit. It seems to me clear law that no cafe can be decided, but that which is in iffue.

The Indictment is for manslaughter; the definition of this crime is that it must be committed on a sudden, without malice. If malice aforethought be proved, then no part of the definition is fubftantiated. We cannot have come here to defend what we are not charged with. We have no objection to go into every fact anterior, but we ought to have had an opportunity to know of this, and of what was intended by the profecution, and further we ought to have known of it legally, that is by the Indictment. The Defendant is not prepared to meet fuggeftions of malice. We are not willing to exclude any facts, but the truth is, that not expecting a charge of this kind, the Defendant is not completely prepared; we do not wifh to escape from the offence, if it be one; but it ought to have been defcribed with technical precifion. We infift that it has not. The authorities exclude malice and premeditation, and we cannot be prepared to meet them, nor is it competent for the Government to fhew them, nor is it incumbent on us to prove that they were not in existence.

Parker J. There is no definite motion before the Court; the obfervations now made, arise from what the Solicitor General expected to be able to prove. I understand, that he expected to show a previous preparation, and that what was done by the Defendant was not to protect himself from attack. Whether the offence was manflaughter or excufable homicide, depends perhaps on the instrument that was employed, the opportunity to conceal it, whether he carried it before him, or whether he took up a stick in the street to defend himfelf. The object of the Solicitor General was to fhew whether it was merely in defence of himself, or whether there was any previs ous malice; it appeared to me proper to go into evidence to that effect,

Attorney General. There are feveral authorities to show that this

may

be done.

Dexter. There is but one, and that is from an opinion of Holt's. Parker J. I ftate this, that if from the evidence admitted, and * laid before the Jury, they should be of opinion that the crime was of a higher nature, the fame facts would prove manslaughter was committed. I believe there can be no doubt of this.

Dexter. We do not hold as law, that if the facts come out to prove this offence to be an higher crime than manslaughter, the Jury are to acquit.

Att. Gen. If by excluding evidence that would fhow a previous defign, they can get rid of this Indictment, it would amount to faying, if it be proved that he was guilty of murder, he shall not be found guilty of manslaughter.

Sol. Gen. I was reading to you, Gentlemen, a passage from the fame authority which occupied your attention when I was interrupted; it was from Eaft's Pleas of the Crown, fect. 23, p. 239.

"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."

And in the next fect. 24, he proceeds,

"But there is another clafs of cafes, where the degree or fpecies of provocation enters not fo deeply into the merits of them as the foregoing; and those are, where upon words of reproach, or, indeed, any other fudden provocation, the parties come to blows, and a combat enfues no undue advantage being taken or fought on either fide: if death enfue, this amounts to manMaughter."

The application of this rule will be to that part of the cafe, by which it will appear that the Defendant took an undue advantage, by being fecretly armed; a fact, of which the deceased could have had no knowledge at the time. I fhall therefore next read the latter part of fection 30, from the fame chapter, page 251.

"It has been fhewn, that fuch malice will be prefumed, even though the act be perpetrated recently after the provocation received, if the inArument or manner of retaliation be greatly inadequate to the offence given, and cruel, and dangerous in its nature; because the law fuppofes that a party capable of acting in fo outrageous a manner upon a flight provocation must have entertained at leaft a general, if not a particular malice, and have before determined to inflict fuch vengeance upon any pretence shat offered."

I will now beg leave to ftate part of section 44, of the fame chap ter, page 272.

“A man may repel force by force, in defence of his person, habitation, or property, against any one who manifeftly intends or endeavours by violence, or furprife, to commit a known felony, fuch as murder, rape, robbery, arfon, burglary, and the like, upon either. In these cafes he is not obliged to retreat, but may purfue his adversary until he has fecured himself from all danger; and if he kill him in fo doing, it is called justifiable self defence.”

The next authority, which I fhall ask your attention to, is in fection 47, page 246.

"In another cafe, however, where the affault, though a very, violent one, was plainly with a view to chasten the party for his misbehaviour, and there appeared no intent to aim at his life; his killing the affailant was holden not to be lawful or excufable under the plea of self defence. That was Nailor's cafe, tried before Holt C. J. Tracy J. and Bury B. The prisoner, who was indicted for the murder of his brother, appeared to have come home drunk on the night the fact was committed: his father ordered him to go to bed, which he refused to do; whereupon a scuffle happened between the father and fon. The deceased, who was then in bed, hearing the disturbance, got up, threw the prifoner on the ground, and fell upon him, and beat him, the prisoner lying upon the ground, with his brother upon him, not being able to avoid his blows, or make any escape from his hands. And as they were striving together, the prifoner gave his brother the mortal wound with a penknife. As a conference of all the Judges after Michaelmas Term, 1704, it was unanimously holden to be manslaughter; for there did not appear to be any inevitable neceffity, fo as to excuse the killing in that manner. The deceased did not appear to have aimed at the prifoner's life, but only to have intended to chastise him for his misbe haviour to his father: and to excuse homicide upon the ground of felf defence, there must always appear to have been such a degree of neceffity as may reafonably be deemed inevitable. At the conference in the above cafe, Powell, J. put the cafe: If A. ftrike B. without any weapon, and B. retreat to a wall, and then stab A. that will be manslaughter; which Holt, C. J. faid was the fame as the principal cafe: and that was not denied by any of the Judges. For it cannot be inferred from the bare act of ftriking without any dangerous weapon, that the intent of the aggreffor rofe fo high as the death of the party ftricken: and without there be a plain manifestation of a felonious intent, no affault, however violent, will justify killing the assailant under the plea of neceffity."

And in the fame fection it is further laid down,

"In no cafe can a man justify the killing of another under the pretence of neceffity, unless he were wholly without any fault imputable by law in bringing that neceffity upon himself."

This

The next fection I fhall read is fection 51, page 279. fection contains a rule and principle directly applicable to the pref ent cafe, and the most important diftinction you will have to take into confideration in this trial. I therefore afk your particular attention to it.

"It has been fhewn that where death enfues from a combat on a sudden quarrel, without prepenfe malice, fuch act amounts but to manslaughter; being attributed to heat of blood arising from human infirmity."

I prefume it will be impoffible for the Defendant's Counsel to place his defence on ftronger grounds than the one in this rule. Now the authority proceeds, that in this neceffity, which you will probably.find to be the precife cafe of the Defendant.

"In order to reduce fuch offence from manslaughter to self defence upon chance medley, it is incumbent on the Defendant to prove two things; 1ft, that before a mortal stroke given he had declined any further combat, and had re

treated as far as he could with fafety; 2d, that he then killed his adverfaty through mere neceffity, in order to avoid immediate death."

And here you obferve it will be a fact of inquiry whether the Defendant declined the combat and retreated as far as he could with fafety, and then killed the deceased through mere neceffity, in order to avoid his own immediate death. If the facts fhould turn out to be fuch that the Defendant cannot justify himself on one or other of these principles, fo long as they remain the rule of law, the Defendant muft be found guilty.

Parker, J. There is a natural exception to that rule, which you will find in the book you have read; it is, that if the retreat would be fuch as would caufe his own death, then the retreat is not neceffary.

Sol. Gen. That forms a part of the rule itself, and is not, I prefume an exception to it. I fhall read fome authorities to that by and by, and will not trouble you any farther, except for the purpose of reading part of section 55, page 285 :

"As to the other point to be established, namely, the existence of the neceflity under which the party killing endeavours to excufe himself, he can in no cafe fubstantiate such excuse if he kill his adverfary, even after a retreat; unless there were reasonable ground to apprehend that he would otherwise have been killed himself. And therefore where nothing appeared in Nailor's cafe abovementioned, to fhew that the deceased aimed at the prisoner's life; although he held him down on the ground, beating him, and the prisoner could not avoid his blows, it was ruled manslaughter."

That is the rule to which your Honour referred. proceeds:

The author

"It is to be noted in that case, that the prisoner struck the mortal blow with a penknife, which was a dangerous, mifchievous weapon; from whence it was to be prefumed, that he intended to rid himself of the chastisement which his brother was then inflicting on him, by his death. Mr. Juftice Fofter, in alluding to this case, seems to lay a stress upon the want of an inevitable neceffity, so as to excufe the killing in that manner."

-Thefe principles you will find have a direct application to the prefent caufe; the books which contain them will be adverted to in the course of the trial, by thofe gentlemen who follow me. I will only read a paffage from Fofter's Crown Law, and then pass to one or two other authorities; and that will be all that is neceffary in the opening. I do this for your information, by which you can apply the evidence more correctly, and also to advertise the Defendant's Counsel of the books we shall rely on to establish, that the Defendant must be convicted of the crime for which he ftands indicted. The first I shall now read, is from Fofter's Crown Law, page 255:

"In every charge of murder, the fact of killing being firft proved, all the ircumstances of accident, neceffity, or infirmity, are to be fatisfactorily

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