as the principal case, and that was not denied by any of the Judges.For it cannot be inferred from the bare act of striking without any dangerous weapon, that the intent of the aggressor was so high as the death of the party, stricken, and without there be a plain manifestation of a felonious intent, no assault, however violent, will justify killing the assailant under the plea of necessity."

It would seem here that if the party who kills, was resisting a person who had a dangerous weapon, it would be excusable homicide; and Nailor's case, which has been read to you by the Solicitor General, turned on that principle; for though the prisoner there, was the first in fault, it is clearly inferable, that if the other who was killed had had a dangerous weapon, it would have been justifiable homicide and not manslaughter, or at most excusable homicide.

On the same point as to the apprehension of a felony, I shall adduce the same authority, page 293.

"HAWKINS indeed says, that if a servant, coming suddenly, and finding his master robbed and slain, fall on the murderer immediately and kill him, it may be justified; for he does it in the heat of his surprise, and under just apprehensions of the like attempt on himself. But he adds, that in other circumstances (which must be understood where he has no just reason to apprehend the like attempt on himself, and the fact is not recent) he could not have justified the killing of such an one, but ought to have apprehended him. The fact will be either murder or manslaughter, according to the circumstances above alluded to."

You have already heard, gentlemen, that a man has a right to defend his own habitation, by taking the life of another who attempts to enter it feloniously. In the same book from which I last read to you, it is laid down in page 321.

"In civil suits the officer cannot justify the breaking open an outward door or window to execute the process: If he do, he is a trespasser, and consequently cannot be deemed acting in the discharge of his duty. In such case, therefore, if the occupier of the house resist the officer, and in the struggle kill him, it is only manslaughter. For every man's house is his castle for safety and repose for himself and his family. And it is not murder in this case, says Lord Hale, because it is unlawful in the officer to break the house to arrest. Secondly, it is manslaughter, because he knew him to be a bailiff. But, thirdly, had he not known him to be a bailiff, or one who came on that business, it had been no felony, because done in his house. This last instance, which is set in opposition to the second, must be understood to include at least a reasonable ground of suspicion that the party broke the house with a felonious intent; and that the party did not know, as in the second instance, nor had reason to believe, that it was merely a trespasser with a different intent."

I shall now quote another passage from the same book, of which perhaps you will see the applicability as I read, though it may possibly strike you more forcibly after you have heard the evidence.It is from page 278.

“If A challenge B, who declines to fight, but lets A know that he will not be beaten, but will defend himself: and B going about his oc

7

casions, and wearing his sword, be assaulted by A, and killed; this is clearly murder. But if B had killed A upon that assault, it would have been se defendendo, if he could not otherwise have escaped, or bare manslaughter, if he might and did not. But if B had only made this a disguise to evade the law, and had purposely gone to a place where it was probable he should meet A; then it had been murder: but herein the circumstances at the time of the fact done must guide the jury."

Thus if the person who is threatened says, I will not fight, but I will not be beaten, and under these circumstances meets a man who attacks him, and in resisting that man, destroys him, it is justifiable self-defence, and that I take to be the law of this

case.

In page 393, which I shall now read to you, you will find principles equally governing the present occasion.

"A mayhem, or maim, at common law is such a bodily hurt as renders a man less able in fighting to defend himself or annoy an adversary: but if the injury be such as disfigures him only, without diminishing his corporal abilities, it does not fall within the crime of mayhem. Upon this distinction, the cutting off, disabling, or weakening a man's hand or finger, or striking out an eye or fore-tooth, or castrating him, or, as Lord Coke adds, breaking his skull, are said to be maims, but the cutting off his ear or nose are not such at common law. But in order to found an indictment or appeal of mayhem, the act must be done maliciously; though it matters not how sudden the occasion."

You have it in evidence, gentlemen, that the defendant's skull was attempted to be broken; and as the authorities say, if a man be attacked by another with a view to commit a felony, that is, a known felony, as the law terms it, he may take away the life of the assailant. I shall now read a part of the same page to shew that a mayhem is a felony.

"All maims are said to be felony; because antiently the offender had judgment of the loss of the same member, &c. which he had occasioned to the sufferer but now the only judgment which remains at commen law is of fine and imprisonment."

I have quoted these last passages for the purpose of shewing that breaking a man's skull is a mayhem, and that every mayhem is a felony. We shall give the most satisfactory proof that the deceased intended to break the defendant's skull.

From a book which has been cited on the part of the government, I shall beg leave to read a few lines; it is from 4 Blackstone's Com. 184.

In the same volume of the same learned author, p. 192, he says,

"Manslaughter therefore, on a sudden provocation, differs from excusable homicide se defendendo in this: that in one case there is an apparent necessity for self-preservation, to kill the aggressor; in the other, no necessity at all, being only a sudden act of revenge,"

If, therefore, there was an apparent necessity, and if putting yourselves, gentlemen, in the defendant's situation, you think there was a necessity of preserving his life by taking away that of the deceased, it was done in excusable self-defence.

Manslaughter is a sudden act of revenge, excusable self-defence when there is an apparent necessity, though it may turn out not to be real, as was the case of the gentleman who was attacked in his room.

That this is the true distinction between manslaughter and excusable self-defence, I refer to

1 Hale's Hist. P. C. 479. "Homicide se defendendo is the killing of another person in the necessary defence of himself against him that assaults him."

"In this case of homicide, se defendendo, there are these circumstances observable."

"1. It is not necessary that the party killed be the first aggressor or assailant, or of his party, though commonly it holds."

"There is malice between A and B, they appoint a time and place to fight, and meet accordingly. A gives the first onset, B retreats as far as he can with safety, and then kills A, who had otherwise killed him; this is murder, for they met by compact and design, and therefore neither shall have the advantage of what they themselves each of them created." Ibid. 482. "In respect to the manner of the assault."

"If A assault B so fiercely, that B cannot save his life if he gives back, or if in the assault B falls to the ground, whereby he cannot fly, in such case if B kills A, it is se defendendo."

I will now support these positions from 1 Hawk. P. C. 113.

"And now I am to consider homicide se defendendo, which seems to be where one, who has no other possible means of preserving his life from one who combats with him on a sudden quarrel, or of defending his per son from one who attempts to beat him (especially if such attempt be made upon him in his own house) kills the persons by whom he is reduced to such an inevitable necessity.

"And not only he who on an assault retreats to a wall, or some such streight, beyond which he can go no further, before he kills the other, is judged by the law to act upon unavoidable necessity; but also he who being assaulted in such a manner, and such a place, that he cannot go back without manifestly endangering his life, kills the other without retreating at all."

In the Queen vs. Mawgridge, Kel. 120. "The jury found this special verdict: That William Cope was lieutenant of the Queen's Guards in the Tower, and the principal officer then commanding there, and was then upon the guard in the Guard-room: And that John Mawgridge was then and there, by the invitation of Mr. Cope, in company with the said William Cope, and with a certain woman of Mr. Cope's acquaintance, which woman Mawgridge did then affront, and angry words passed between them in the room, in the presence of Mr. Cope and other persons there present, and Mawgridge there did threaten the woman; Mr. Cope did thereupon desire Mawgridge to forbear such usage of the woman, saying that he must protect the woman; thereupon Mawgridge did continue the reproachful language to the woman, and demanded satisfaction of Mr.

Cope, to the intent to provoke him to fight; thereupon Mr. Cope told him it was not a convenient place to give him satisfaction, but at another time and place he would be ready to give it to him, and in the mean time desired him to be more civil, or to leave the company; thereupon John Mawgridge rose up, and was going out of the room; and so going, did suddenly snatch up a glass bottle full of wine then standing upon the ta ble, and violently threw it at him the said Mr. Cope, and therewith struck him upon the head, and immediately thereupon, without any intermission, drew his sword and thrust him into the left part of his breast, over the arm of one Robert Martin, notwithstanding the endeavour used by the said Martin to hinder Mawgridge from killing Mr. Cope, and gave Mr. Cope the wound mentioned in the indictment, whereof he instantly died. But the jury do further say, that immediately, in a little space of time between Mawgridge's drawing his sword and the giving the mortal wound by him, Mr. Cope did arise from his chair where he sate, and took another bottle that then stood upon the table, and threw it at Mawgridge, which did hit and break his head; that Mr. Cope had no sword in his hand drawn all the while; and that after Mawgridge had thrown the bottle, Mr. Cope spake not. And whether this be murder or manslaughter, the Jury pray advice of the Court."

In delivering the opinion of the Judges upon this verdict, Holt C. J. has the following passage-page 128 :

"In the second place, I come now to consider whether Mr. Cope's returning a bottle upon Mawgridge, before he gave him the mortal wound with the sword, shall have any manner of influence upon the case: I hold not. First, because Mawgridge by his throwing the bottle had manifested a malicious design. Secondly, his sword was drawn immediately to supply the mischief which the bottle might fall short of. Thirdly, the throwing the bottle by Captain Cope was justifiable and lawful; and though he had wounded Mawgridge, he might have justified it in an action of assault and battery, and therefore cannot be any provocation to Mawgridge to stab him with his sword. That the throwing the bottle is a demonstration of malice, is not to be controverted; for if upon that violent act he had killed Mr. Cope, it had been murder. Now it hath been held, that if A of his malice prepensed assault B to kill him, and B draws his sword and attacks A and pursues him; then A for his own safety gives back and retreats to a wall, B still pursuing him with his drawn sword, A in his defence kills B. This is murder in A. For A, having malice against B, and in pursuance thereof endeavouring to kill him, is answerable for all the consequences, of which he was the original It is not reasonable for any man that is dangerously assaulted, and when he perceives his life in danger from his adversary, but to have liber, ty, for the security of his own life, to pursue him that maliciously assault, ed him; for he that hath manifested that he hath malice against another, is not fit to be trusted with a dangerous weapon in his hand, And so resolved by all the Judges, 18 Car. 2, when they met in preparation for my lord Morley's trial."

cause.

Having read to you, gentlemen, the authorities which confirm, and go indeed beyond the principles I stated, I will proceed before I remark on the testimony adduced on the part of the government, to call some witnesses which the gentlemen on behalf of the Com. monwealth called, but did not choose to examine; that we may obtain from them the whole of the testimony respecting this transaction,

John Bailey-sworn.

Gore. Please to relate what you know respecting the transac tion now under consideration.

A. On the fourth of August, a little before one o'clock, being at work in Mr. Townsend's shop, I saw Charles Austin pass down the street, and afterwards saw him pass up as far as Mr. Smith's, he returned and took his stand directly in front of the shop where I was at work. Young Mr. Fales was with him; Austin had a stick in his hand of an unusual size. I had most frequently seen him with a rattan.-I said to a person in the shop "we shall have a caper." Soon after I saw the defendant passing down street: he had his right hand in his pocket, his left hanging down. I was standing in the door way of the shop, the door being open-When Mr. Selfridge first came in sight, the deceased was standing on the side pavement in front of the shop in conversation with Fales, and playing with his cane. The moment the

defendant caught his eye, he left Fales, and stepped off the brick pavement into the street. He moved with a quick pace, and while going shifted his cane from his left to his right hand-after he had got off the pavement, he turned and went towards the defendant with his cane raised up.-They met about seventeen paces from the place the deceased had left. The deceased held the cane by the upper or largest end.

Parker J. Did you take particular notice of the cane?

A. I did, and think this which I hold in my hand is the same -it is a solid one-The cane was uplifted, and actually descending to give a blow at the time the pistol was discharged. The blow was not struck till after the pistol was fired.

Parker J. Did it appear to you that the blow was intended to be given with the full force of the deceased?

A. It did so appear to me.

Att. Gen. Do you say on your oath that the blow was descending before the pistol was fired?

A. I do. The first blow was a long blow, which staggered the defendant. The deceased struck four or five blows after the

first.

Gore. Was the first blow on the defendant's forehead?

4. It appeared to me so. It was struck sideways, and I thought passed under the defendant's hat.

Gore. After the first blow, did the defendant hold up his hands to ward off the blows from his head?

A. He did. As the blows were repeated, the defendant aimed a blow at the deceased with his pistol, but I do not know that it hit him. At this time the defendant's face was down street, and inclining towards the shop where I stood.

Gore. Could Mr. Selfridge readily see Austin advancing towards him?