When I shall read some of the authorities, which contain the law of our own country, you will be convinced, that I have advanced no one principle, which they do not warrant ; neither do I wish, gentlemen, to extend them beyond their fair import, in behalf of the cause I defend. At present, my only purpose is, by propositions so plain, as must command the assent of every human understanding, to efface any erroneous impressions, which may have been made in relation to the law on this subject. There is another important charge and prejudice, against my client, which I wish, and trust to remove. It is founded on this fact, viz. that he had in his pocket a pistol, with which he preserved his life, against a man, who would have beaten cut his brains with a cluban instrument as effectual, for the purpose of producing death, as a pistol; and, in some views, even more so: for the pistol once discharged of its ball becomes useless, and unless some vital part be struck, the advantage is altogether in favour of him holding the club. A misplaced blow with a cane, may be corrected, until, with increased skill, and redoubled vigour, the assailant bring his victim dying, and dead at his feet. I, however, wish to bring bebefore you, the single circumstance of wearing a pistol, distinct from any relation to the particular case of the Defendant, or the reason, which had the law been, as is pretended, might and would have justified him, in wearing an instrument of this sort. There is no law written or unwritten, no part of the statute or common law of our country, which denies to a man the right of possessing or wearing any kind of arms. In every free society a man is free to do that, which the law does not interdict, nor can the doing that, which is not forbidden be imputed as a crime. But it may be again said, as it has been already, that possessing a pistol is evidence of malice. If it be lawful to possess and wear such an instrument, it would be unjust, in the highest degree, to make it, unconnected with any thing else, evidence to change another act, lawful in itself, into an act criminal and unlawful. For instance, it ought not, and I trust would not, in the opinion of any court or jury, change a justifiable homicide into manslaughter, or manslaughter into murder. I will attempt to illustrate this, by putting one or two cases.Every man has a right to possess military arms, of every sort and kind, and to furnish his rooms with them. Suppose a man, occupying a house thus furnished, is visited by a neighbour, and after some warm conversation an affray ensues, the owner glances his eye on a sword, instantly snatches it from its place, and destroys his neighbour-But for such possessing the instrument of death, the act would, I presume, be manslaughter. Can such possession be so tinctured with criminality, as to aggravate this act, otherwise only manslaughter, to the crime of murder!-If so, do but change the parties Suppose the visitor to cast his eye on the sword, and under like circumstances, to use the same instrument, to the des truction of his opponent, he would be guilty of manslaughter.Can the mere circumstance of not being owner of the instrument used, alter the act from murder to manslaughter? Further, a man, about to travel on a road, infested with robbers, and knowing it to be lawful to kill another, who attempts to rob him, arms himself with a pistol-on the road, he is attacked by one, who attempts to rob him, and, in the exercise of his rights, uses his pistol and destroys the life of the aggressor. If the having a pistol with him be an argument against his innocence, an act, lawful in itself, will be deemed unlawful, merely because the agent had the precaution to supply himself with the means of doing that, which the law authorised him to do.-Again, suppose a man, having occasion to travel a road, infested by robbers, provides himself with a pistol for the purpose of defending his person and property: on the way to the road, on the road, or on his return from the road, he is met by one, who attacks him, without any intention of robbing, but with a view of assaulting his person only, and the attack is made with so much violence, as to put his life in imminent hazard, whereupon he uses the pistol and destroys the assailant.Shall you draw from the fact, of his having a pistol, for the justand lawful purpose of defence, against one sort of violence, and using it to another, equally just and lawful, an argument to turn a justifiable homicide into the crime of murder? Surely a doctrine, which leads to such absurd consequences, cannot be founded in truth and justice, and it is on these principles, that this cause must be decided. The quality of every act must be determined, according to the intention and motive of the agent, at the moment of acting. It is by this intention and motive, that you must decide the quality of the act, not by the manner of doing it, or the event. So says our law, and so say the laws of God and of reason. For should a man have an instrument of death for an unlawful purpose, and be compelled to use it for one lawful and just, it would be the extreme of injustice, so to tincture this lawful act, by an unlawful intention, which was never executed, as to render that criminal, which was just and right in itself. For instance, suppose a man armed for the unlawful purpose of fighting a duel-in his way to the place of assignation, he is met by a person, who attacks him, and, in de. fence of his own life, he destroys the assailant-can you say, that the having a pistol would make this act a crime? If so, it would be to confound every principle of law and justice-you would de cide a lawful and just act to be a crime of the most aggravated nature, merely because of an unlawful intention, unexecuted, which, at the worst, could be but a misdemeanour. From these premises I draw this inference, that you cannot make any conclusion against the Defendant, from his having a pistol about him. It cannot be of the smallest weight: for if he had it, with an intention, that was lawful, it cannot afford an unlawful quality to this act of homicide. If he possessed it, for any other purpose, not lawful, and used it for a lawful end, it will not alter the nature of such lawful act. If you shall be satisfied, that the homicide committed was either justifiable or excusable in selfdefence, all presumptions, from Mr. Selfridge's having a pistol with him, are totally at an end for presumptions are resorted to only, in the absence of express testimony. Wherever there is express evidence, presumptions are necessarily excluded; otherwise you will go into the wide field of conjecture and uncertainty, when you have certainty to rely on. If you shall be satisfied, from all the circumstances which happened, at the moment of acting, that the homicide charged was a lawful act of self-defence, all further inquiry will be precluded, and, much more so, all presumption or conjecture of unlawful motives, from any preceding act. For the purpose of enabling you fully to understand the nature of the charge against the defendant, I shall read to you the law on the subject of homicide, and firstly from 3 Coke's Inst. p. 56. "Manslaughter is felony, and hereof there may be accessaries after the fact done but of murder, there may be accessaries, as well before, as after the fact. : "Some be voluntarily, and yet being done upon an inevitable cause, are no felony. As if A be assaulted by B, and they fight together, and before any mortal blow be given, A giveth back, until he cometh unto a hedge, wall, or other strait, beyond which he cannot pass, and then in his own defence, and for safeguard of his own life, killeth the other: this is voluntary and yet no felony, and the jury, that find it was done se defen dendo, ought to find the special matter. And yet such a precious regard the law hath of the life of man, though the cause was inevitable, that at the common law, he should have suffered death: and though the statute of Glocester save his life, yet he shall forfeit all his goods and chattels. Hereof there can be no accessaries, either before or after the fact, because it is not done felleo animo, but upon inevitable necessity se defendendo. If A assault B so fiercely, and violently, and in such a place, and in such manner, as if B should give back, he should be in danger of his life, he may in this case defend himself and if in that defence he killeth A, it is se defendendo, because it is not done felleo animo, for the rule is, when he doth it in his own defence, upon any inevitable cause, Quad quis ob tutelam corporis sui fecerit, jure id fecisse videtur.* I shall now call your attention to Foster's Crown Law, p. 273. "Self-defence naturally falleth under the head of homicide founded in necessity, and may be considered in two different views. "It is either that sort of homicide se et sua defendendo, which is perfectly innocent and justifiable, or that which is in some measure blameable and barely excusable. The want of attending to this distinction hath, I believe, thrown some darkness and confusion upon this part of the law. "The writers on the crown-law, who, I think, have not treated the subject of self-defence with due precision, do not in terms make the distinction I am aiming at, yet all agree that there are cases in which a man may without retreating oppose force to force, even to the death. This I call justifiable self-defence, they justifiable homicide. * What every one doth for the defence of his body, he seemeth to do lawfully. "They likewise agree, that there are cases in which the defendant cannot avail himself of the plea of self defence without shewing that he retreated as far as he could with safety, and then, merely for the preservation of his own life killed the assailant. This I call self defence culpable, but through the benignity of the law excusable. "In the case of justifiable self defence the injured party may repel force by force, in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoureth by violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable. The right of self defence in these cases is founded in the law of nature, and is not, nor can be, superceded by the law of society. For be fore civil societies were formed (one may conceive of such a state of things, though it is difficult to fix the period when civil societies were formed) I say before societies were formed for mutual defence and preservation, the right of self defence resided in individuals; it could not reside elsewhere; and since in cases of necessity, individuals incorporated into society cannot resort for protection to the law of the society, that law, with great propriety and strict justice, considereth them, as still in that instance, under the protection of the law of nature. "Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force by force; and his servant then attendant on him, or any other person present may interpose for preventing mischief, and if death ensueth, the party so interposing will be justified. In this case nature and social duty co-operate." There may, gentlemen, be some confusion in your minds from the expression a known felony." In order to do it away, and explain what is meant when the terms "of a known felony being intended" are made use of, I shall read some authorities to shew you that when there is, from circumstances, an apprehension of this tendency, the party is excused and may justify the killing his opponent. The first I shall advert to, is from East's P. C. 276. "Other cases have occurred, wherein the question has turned upon the apparency of the intent in one of the parties to commit such felony as will justify the other in killing him. As in Mawgridge's case: who upon words of anger between him and Mr. Cope, threw a bottle with great violence at the head of the latter, and immediately drew his sword: on which Mr. Cope returned a bottle with equal violence; which, says Lord Holt, it was lawful and justifiable for Mr. Cope to do; for he who hath shewn that he hath malice against another is not fit to be trusted with a dangerous weapon in his hand. The words previously spoken by Mr. Cope could be no justification for Mawgridge; and it was reasonable for the former to suppose his life in danger when attacked with so dangerous a weapon, and the assault foollowed up by another act indicating an intention of pursuing his life; and this at a time when he was off his guard, and without any warning. This latter circumstance forms a main distinction between that case and the case of death ensuing from a combat, where both parties engage upon equal terms: for there, if upon a sudden quarrel, and before any dangerous blow given or aimed at either of the parties, the one who first has recourse to a deadly weapon, suspend his arm till he has warned the other, and given him time to put himself on his guard; and afterwards they engage on equal terms; in such case it is plain that the design of the person making such assault is not so much to destroy his adversary at all events, as to combat, with him, and to run the hazard of his own life at the same time. And that would fall within the same common principle which governs the case of a sudden combat upon heat of blood, which has before been treated of." In the same work, page 273, the author speaking of known felonies, says--- "There seems, however, to be a distinction between such felonies as are attended with force, or any extraordinary degree of atrocity, which in their nature betoken such urgent necessity as will not allow of any delay, and others of a different sort, if no resistance be made by the felon ; and therefore a party would not be justified in killing another who was attempting to pick his pocket. But if one pick my pocket, and I cannot otherwise take him than by killing him, this falls under the general rule concerning the arresting of felons. The above is further confirmed by the term known felony, made use of in our books, which contra-distinguishes it from secret felonies; and seems to imply, that the intent to murder, ravish, or commit other felonies, attended with force or surprise, should be apparent, and not left in doubt: for otherwise the party killing will not be justified. It must plainly appear, says Lord HALE, speaking of a felonious attack upon B, by the circumstances of the case, as the manner of the assault, the weapon, &c. that his life was in danger, otherwise the killing of the assailant will not be justifiable self-defence. "Yet still if the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposit on kill him; although it should afterwards appear that there was no such design, it will only be manslaughter, or even misadventure; according to the degree of caution used, and the probable grounds for such belief. As where an officer, early in the morning, pushed abruptly and violently into a gentleman's chamber in order to arrest him, not telling his business, nor using words of arrest; and the gentleman, not knowing that he was an officer, under the first surprise, took down a sword that, hung in the chamber, and stabbed him: it was ruled manslaughter at common law, though the defendant was indicted on the statute of stabbing. It is to be inferred from the form of the indictment; and what was said by Lord HALE, that the bailiff had no offensive weapon in his hand, from whence the party might reasonably have presumed that his life or property was aimed at ; and therefore there seems to have been a manifest want of caution in not demanding the reason of such intrusion by a stranger: especially as some interval must have elapsed before the sword was taken down and drawn." From this authority it will appear that the officer went into the room without any weapon, and there could be no inference that he intended any bodily harm, yet it was neid manslaughter; but if he had had an offensive weapon, it would undoubtedly have been excusable if not justifiable homicide; this would have been so on the apparent attempt, and therefore if a man has reason to suppose any felony is to be attempted on him, he has a right to defend his own life, by taking that of his assailer, I will now read a case from the opinion of Powell J. in Nailor's case. "If A strike B without any weapon, and B retreat to a wall, and then stab A, that will be manslaughter, which HOLT C. J. said was the same G |