ice, as much as if the indictment had been for murder, and therefore both parties are entitled to go into it, on this indictment for manslaughter, or nothing must be given in evidence but what relates to the act itself. This the definition of the crimes fully establishes. In 1st Hawk. P. C. ch. 13, Sect. I, it is said,

"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." Sect. 2. And from hence it follows, that there can be no accessaries to this offence before the act, because it must be done without premeditation."

Parker 7. I do not wish to hear any thing further on this point. By admitting the evidence now offered, I do not consider my. self as pledged to receive any other of previous circumstances. The objection made, goes to confine the knowledge of the jury to the circumstances which took place at the very instant. Though the fact itself may, if taken alone, be proved to be excusable homicide, or in self-defence, there may be other facts which would give another complexion to the transaction. If for instance a

death ensue in a sudden combat, and the suddenness of the affray be proved, and relied on by the defendant, still it may be shewn that the assault was pursued by the slayer, and if so it would deprive him of his defence. Therefore the anteriour circumstances must be laid before the jury. The testimony offered is of a con. versation immediately preceding the affray. Now we do not know but that there was an intent to draw the deceased into the affray. I am therefore of opinion the teftimony ought to be admitted.

Sol. Gen. Proceed to state the conver ation alluded to.

Ans. The first part of the conversation took place between 12 and I o'clock, on the 4th of August, and in the course of it Mr. Selfridge appeared to have some intimation that he should be attacked He observed, that he did not expect old Mr. Austin would attack him, but some bully employed by him. He observed further, that he did not intend to keep himself shut up, as his business required him to go abroad; that he would go out, notwithstanding any apprehension he entertained of being attack. ed. He added, that every man who knew him, knew he was no man for bullying or fisticuffs, or some such expression.

Att. Gen. Are you sure he used the words bullying and fisti cuffs?

A. I am not certain whether he said fighting or fisticuffs; but he certainly said that he was no man for bu lying, and that if he had injured any man, he was willing to meet him in a fair way. The exact expression I cannot recollect, nor do I recollect any thing further that passed in that conversation.

Att Gen. What did you understand him to mean by saying, if he had injured any man he was willing to meet him in any fair way?

A. I had seen a note in the Gazette of that morning; I dropt in upon him as I was passing, and began to banter him about it, and that lead to the conversation which followed.

Att. Gen. Which of you began the conversation ?

A. I be ieve I began it myself, but I dont recollect exactly. I believe I asked him what was the controversy between him and Austin. He began to recite to me the circumstances of that controversy, and gave me a detailed account on what it was grounded, after which he said that he had received some intimations that he should be attacked, but that he should not keep himself shut up on that account.

it. Gen. What were the precise words he used in speaking of keeping himself shut up?

A. He said it would be foolish, or silly, to keep himself shut up, when his business required him to be abroad.

Att. Gen. Did you see any arms in the Defendant's office ?
A. I did not.

Att. Gen. Did the Defendant say any thing about arms ?
A. He did not.

Att. Gen. Was there any person in the office during this time? A. Mr. Shaw was in the office a part of the time that I was there.

Att. en Which way did you go when you left the Lefendant's offic?

A. I went down state street, and walked moderately. I was near the Branch Bank when I heard the report of a Pi tol. I think I heard the report within four minutes after I left Mr. Selfridge in his office.

T. O. Selfridge. Might it not have been longer? 1 do not think it was.

4.

Cross Examined.

Gore. Did not Mr. Selfridge tell you that he had used all possible means, and gone all lengths, to effect an accommodation with Mr. Austin?

A. He stated to me that he had had an application from a tav. ern keeper to bring an action against the republican committee at whose instance he had provided a public dinner for the party on Copp's Hill; he told me that he had put the man off two or three times and had advised him not to take out a writ; the man, however, insisting upon it, the writ was at length issued; and that Mr. B.ustin had told some persons that there would not hav been any thing done about the business if it had not been for the interference of a damned federal lawyer. He said that he had Austin in his power; that he could prove that he had tried to set tle the difficulty, and that Austin had promised him to contradict the aspersion, in the same public manner, and in the same places, wherein it had been made.

Gore. Did he tell you whether any body applied to Austin about it?

A. Yes. He told me he had applied himself to Mr. Austin to contradict the report, ut he had not done it.

Dexte. Did he not inform you, that Austin had confessed that he was wrong in what he had reported, and that he promised to contradict it, and that afterwards he refused to comply with his promise?

A. I think he did.

Att. Gen. Was it that Mr. Austin refused to contradict verbally what had been said, or that he refused to sign a paper? A I am not certain of that point?

Dexter. Did you understand hat Mr. Austin was to contradict the asper ion to the same individuals before whom it was made?

A understood he was to contradict it to the same individuals, T. O. Selfrice. Did I not say that if he would recal his expressions, I would be satisfied ?

A I do not recollect. I did not endeavour to fix the particulars in my mind.

T. 0. Selfridge. Did I not say that I had ordered the publication to be suspended for two or three days, in order to give him an opportunity of retracting what he had said?

A. Yes.

T. 0. Selfridge. Did not I mention to you that the last message I received from him was, that I was a damned rascal, and that I might help myself as well as I could?

A. I do not recollect, but there was something to that effect. I have the impression from what was said that it was an offensive message.

Gore. Was he your classmate at College?

A. Yes.

Gore. Was he not of a very weakly constitution, and very much debilitated?

A. He never was robust or hearty.

Gore. Did he mix with you and your companions at College in manly or athletic exercises?

A. I do not think that he did; but if he did, I am confident he never excelled in any of them.

T. O. Selfridge. Do you recollect that I lost the use of my limbs some time ago; that I never run, but walk deliberate and slow?

A. I do not know myself that ever you lost the use of your limbs, nor do I recollect that I ever saw you run.

Att. Gen. Did he say any thing about declining to go to law with Mr. Austin, in order to procure satisfaction for the injury of which he complained?

A. I do not think he mentioned any thing of that kind to me. T. 0. Selfridge. Did I show any symptoms of a vindictive temper during that conversation?

A. No; you were calm and cool; at least I saw nothing like ill temper in either your words or manners.

Benjamin Whitman, Esq. Sworn.

Sol. Gen. Relate the conversation which passed between you and the defendant previous to the death of Charles Austin, on the 4th of August last.

At

Whitman. In the morning of that day, I had seen the two publications in the papers, one in the Chronicle, the other in the Gazette-one signed T. O Selfridge, and the other B. Aus'in the usual hour of going on the exchange, passing Mr. Selfridge's office, I saw him leaning against a cask, which stood on the flag ging, near the door of his office, in conversation with a person whom I now know to have been his client. He stood with his hands folded. When I got up to him, I asked him how he and B. Austin came on. He smiled, and made this reply- I understand he has hired or procured some one or some bully (I do not recollect exactly which of the two phrases he used) to attack or to flog me I made no reply, for I thought it was a kind of smoke which would fly off when the parties grew cool and had wasted their fire. He afterwards asked me for some tobacco. I gave him some, and left him.

Att. Gen. Did he say any thing to you as to the mode of defence he meant to use?

A. He did not. I passed on, and walked pretty direct to the head of the exchange, near Mr. Townsend's shop, when stepping up on the pavement, I heard the report of a pistol. Turning myself instantly round, I saw a person in the act of striking a blow with a cane. The cane was elevated, but whether striking, or recovering from a blow struck, I cannot say positively. The defendant's position was inclining backwards: he seemed to me to be regaining a perpendicular posture, which he had lost as it were by a retreat. I saw the smoke of the pistol about breast high. The pistol itself was not raised higher than his chin. I saw a number of blows struck at him with the cane; I think as many as four. They grew fainter in succession. I saw the deceased fall, and it appeared as if some person eased him down; the deceased fell very near my feet; there was but one person between him and me he had on a white frock, which was afterwards very bloody, suppose from supporting the deceased when falling. Soon af ter this, I saw Mr. S. standing near the spot where the rencounter took place, a great crowd gathered round him. Some persons cried, Who is the damned rascal that has done this? I heard Selfridge say, I am the man, or I have killed him. He retired soon afterwards, but which way I do not know. sation afterwards with Judge Paine and Dr. Jarvis.

I

I had some conver

Sol. Gen. How near were the parties together when the rencounter happened.

A. Within the reach of each others hands.

Gore. Did you see that the Defendant's head was wounded? 4. About two hours after, I saw Mr. Selfridge, he had a wound

on his head and another on his arm, his hat was fractured in the front part. The wound on his forehead was oozing blood at that time. It appeared to have been wiped before. I saw the wound

on his arm below his elbow: the skin was broken.

T. O. Selfridge. Do you recollect that the hat was a fur one, and broken across the front where the wound appeared on my forehead?

A. It was a fur hat, and was broken across the top about two inches in length, when I saw it. This was two hours after the affray.

Parker 7. Was the breach in the hat such a one as might be occasioned by a stroke with a stick or a cane?

A. I thought so, and that the blow must have been a pretty se

vere one.

Dexter. Was it a black hat with a white lining?

A. It was a black hat, but I do not recollect the lining.
James Richardson, Esq. called again.

Dexter. Did Mr. Selfridge tell you it was his custom to go armed, or prepared to defend himself, on account of his debility? 4. I do not recollect any thing that passed, which led me to suppose him armed at that time.

John M. Lane-S-worn.

Sol Gen. Please to relate what you saw on the 4th of August last.

4. A little after one o'clock on that day, I was standing at the door of my shop, which is on the north side of State-Street. I was looking directly across the Street, and there saw the Defendant, whom I knew, standing on the brick pavement or side walk, in front of Mr. Townsend's shop. His face was towards me.The person, who was afterwards shot, and whom I did not at that time know, was standing in front of the defendant, a little to the right The Defendant stood with his arms folded, or rather crossed horizontally, the right arm being uppermost, and in that position he fired the pistol, which I saw just as it went off, at the deceased. He turned round instantly, and gave the Defendant several strokes before he fell. He was not more than a foot from the Defendant when the pistol was discharged. I saw the Defendant throw the pistol at the deceased, while he was striking-At that time blood was issuing from his mouth-He fell and I saw no more of him-I did not go from my shop door. Major Melville and a gentleman from Salem were in the shop at the time. Att. Gen. Were there many people in the Strect at the time? A. There might be fifteen or twenty on the side walks between Congress Street and Mr. Townsend's shop. There were also some moving up and down on the stone pavement.

Cross Examined.

Dexter. Are you positive that the Defendant was facing you?