M. Carrol. I live in Flag alley, close by the market; I was oppofite to the Poft office, where I went to obtain a small balance of 3 dolls. 36 cents. I heard a pistol fired behind me; and I ran round to fee what had happened. I was in my fhirt fleeves. I faw Selfridge and Ritchie together; Ritchie faid to Selfridge, that he was extremely agitated; to which Selfridge replied-I am not agitated. I have done what I intended to do-or meant to do.

Att. Gen.

Benjamin Auflin, Efq. called.

Did you ever tell any one that you had deftroyed the letters received from Mr. Selfridge, by the hand of Mr. Welsh? Witnefs. I never did. The gentlemen here must know I could not have faid fo, the letters being in court now.

Att. Gen. lawyer?

Have you ever contradicted the story about the federal

Witness. I went to the infurance office, and there made a declaration that I had been mifinformed as to the circumftance. I asked Mr. Scott if I had ufed Selfridge's name; he told me I had not. In fhort, I cannot remember every particular, fo many diftreffing circumftances have happened to affect my mind fince, that it is not furprifing I fhould forget.

John Ofborn, fworn in behalf of the Defendant.

Gore. Was you at Mr. Benjamin Auftin's on the evening of the 4th of Auguft? A. Yes.

Gore. Was young Mr. Fales there? A. Yes.

Gore. Did he make any relation to Mr. Austin as to what took place in State Street? A. Yes. Some gentlemen asked him whether young Mr. Austin ftruck before the piftol was difcharged. Mr. Fales faid, that he was in State Street with Mr. Auftin, and fome other gentlemen, and on a fudden young Auftin stepped from them; that he then turned round, and faw Mr. Austin ftrike Mr. Selfridge one blow, and then the piftol was difcharged. He faid alfo, that Mr. Austin ftruck feveral blows after the piftol was discharged.

Gore.

Was Mr. Benj. Austin present at that time? A. He was. Gore. Was he attentive to this conversation? A. Yes, and asked many particulars.

Gore. Was it Mr. Benjamin Auftin that made these inquiries to which the answers were given? A. Yes; he was asking many particulars, and feemed very much agitated.

Gore. Was this statement deliberately made, and more than once ? A. I do not recollect that it was more than once. a few minutes.

I was there only

Perkins Nichols-fworn, in behalf of the Defendant. Gore. Was you at Mr. Auftin's on the evening of the 4th of Auguft? A. Yes. Gore.

A. I did.

Did you

hear any

Gore. Please to relate it.

converfation between him and Mr. Fales?

A. I heard Mr. Fales, among other things, fay to Mr. Austin, that he went down Cornhill with his fou

that day; his fon faid to him " I must be in State Street ;" that he, Fales, faid to him " you had better not go, but had better go home with me;" that he urged him to give up his cane to him; but that he refused; that they turned down State Street together; that he faw Selfridge before Auftin came up to him; that Austin went with his cane up, and ftruck him one blow over the head; that Selfridge made a paufe, and then drew his piftol from his pocket and fired it; that when the piftol went off, Auftin was ftriking a fecond blow.

Gore. Do you recollect that he said the discharge of the pistol was at the time of the fecond blow? A. Most perfectly; that he Aruck feveral blows after the discharge of the pistol.

Dexter. Were you fo attentive as to make a memorandum of it in writing? A. Yes.

Att. Gen. What induced you to make it? A. I thought that I might at fome time be called on as an evidence, and I wifhed to have it to refresh my mind.

John Parkman-sworn.

Gore. Pleafe to state what you heard Wm. Fales fay after the death of Charles Auftin.

Witnefs. About five minutes after the event, I was standing in State Street with feveral other perfons. Mr. Fales came up to us, and one of us asked him if the piftol was fired before any blow was given. He faid it was not; there was one blow first.

Gore. Are you certain of the anfwer? A. Yes, I am. He was a good deal agitated. Some days after I converfed with him, but he faid he could not recollect at that time how the facts were. William Fales called by the Attorney General.

Att. Gen.

fay of it?

You have heard this teftimony, what will you

I

Witness. I believe Mr. Parkman's relation is pretty correct. think I told him, at the time he alludes to, that Austin struck a blow before the pistol was fired. I do not recollect seeing those gentlemen at Mr. Auftin's houfe in the evening. I was very much confufed and agitated that evening.

Att. Gen. What do you fay now as to the fact? Witnefs. For three or four days after the event, I thought of the fubject anxiously, and endeavoured to recollect the circumstances; I then wrote them down as correctly as I could. I am not able now to fay whether a blow was given before the piftol was fired or not. What I have related is according to my best recollection and belief. Att. Gen. Who advised you to write down the account?

Witnefs. Several of Mr. Selfridge's friends; I remember particularly Major Ruffell advised me; none of Mr. Auftin's friends did. James T. Auflin, fq. (called by the Government's Counfel) fworn. Sol. Gen. Was you at Mr. Benjamin Auftin's in the evening of the 4th of Auguft?

Witnefs. I was. Every thing was in great confufion; Mr. Fales was much agitated, and we could get no diftin&t account from him.

I remember he faid the deceafed ftruck three or four blows, but I have no recollection of any difcrimination being made between blows before and after the piftol was discharged.

Jofeph Wiggin, (called by the Counfel for the Defendant) fworn. Gore. Pleafe to relate what circumftances you observed in State Street on the 4th of August.

Witness. About five minutes after one o'clock I left my store and went on 'Change; there I faw the deceased with a cane; he seemed uncafy. I faw Mr. Selfridge coming from the corner of the State Houfe, and turned round to fee if Austin had moved from his place, and found he had. At that moment I heard a found as of a ftroke of a stick on a coat. Cafting my eye round, I then faw Mr. Selfridge prefent his piftol, ftepping back one ftep, and fire. At the fame inftant Auftin was ftriking a blow; he afterwards ftruck two or three ftrokes more.

Foreman. How far was you from the place where the partics flood? Witness. About two rods; I cannot say exactly, but near enough to fee Mr. Selfridge move his foot.

James Cutler, (called by the Attorney General) fworn.

Att. Gen. [fbewing the witness the Gazette of the 4th of Auguft] Was that paper printed in your office?

Witnefs. It was.

Att. Gen. At whofe requeft did you print this Note, "Auftin posted"?

Witness. At the request and on the account of Mr. Selfridge. [Here the Attorney General read from the Gazette the following Advertisement, viz.]

"AUSTIN POSTED.

"Benjamin Austin, loan cicer, having acknowledged that he has circulated an infamous falfehood concerning my profeffional conduct, in a certain cause, and having refused to give the fatisfaction due to a gentleman in fimilar cafes-I hereby publish faid Auftin as a coward, a liar, and a fcoundrel; and if faid Austin has the effrontery to deny any part of the charge, he fhall be filenced by the most irrefragable proof. THOMAS Ó. SELFRIDGE.

Bofton, 4th Auguft.

"P. S. The various Editors in the United States are requested to infert the above notice in their journals, and their bills fhall be paid to their respective agents in this town."

Dexter. What directions did Mr. Selfridge give you when he gave you the note ?'

Witness. In the courfe of the Saturday before, he told me he expected to be under the neceffity of putting a piece in our Monday's paper. In the evening he fhewed me the piece. I hesitated about publishing it. He related to me the circumstances of the difpute; faid he could obtain no fatisfaction; expreffed his regret at being reduced to the neceffity of fuch a measure, and wifhed the printing de

layed to the last moment; defired it might not be printed, until we fhould have feen his friend Mr. Welfh. On Sunday I called on Mr. Welsh; he told me nothing had been done, and he gave me no directions to omit printing the note.

Ephraim French, (called by the counsel for the Government--fworn. Sol. Gen. Please to relate what you know of the tranfactions in State Street, on the fourth of Auguft.

Witness. About one o'clock I was in Mr. Townsend's fhop, and feeing old Mr. Auftin go down, expected a fquabble. I faw two young gentlemen go down ftreet, and prefently return. Mr. Bailey faid one of them was young Mr. Austin. I faw Mr. Selfridge coming from the corner of the State House; he walked very deliberately, and looked fober. Young Auftin went from near where I was ftanding, towards Mr. Selfridge. As he advanced, I faw the piftol go off, and Austin struck several fevere blows, and then fell near my feet. I should say, that the piftol, according to my obfer

I

vation, was one or two feconds before the fint blow was ftruck. did not fee any cane raised before the pistol went off. I looked particularly at Mr. Selfridge from the time he came in fight. After he had discharged the pistol, he held up his arms to defend his head from the blows, and afterwards threw his piftol. No person stood between me and the parties, fo that I faw them very diftinctly, having gone out of the shop and stood on the fidewalk by Mr. Townsend's fhop before they met.

Eber Eager (called by the Defendant's counsel)-fworn.

Gore. Pleafe to relate what was Mr. Selfridge's conduct in relation to your fuit against the committee.

Witness. I faw Mr. Selfridge paffing the ftreet; told him I was the landlord that provided the dinner on Copps' Hill, the 4th of July, and wanted him to fue the committee for my bill. I told him I would give him a five dollar bill to undertake it. Mr. Clough was to explain the whole to him. I afterwards called at his office, he told me he was fatisfied that I could fupport an action, but wifhed it to reft a few days. I went to fee him at Medford; he was discouraging in his discourse; talked about law fuits being long, and in that way. I asked him what I fhould do for money; requested him to advance me fome on account of this demand, and told him I was willing to take three hundred dollars in cash, for the whole account, rather than wait. He refufed to have any thing to do in this way; faid it would be dishonourable to him in his profeffion; that no honeft man as a lawyer would do it. He told me he would not work cheap. His fee was twenty-five dollars. I told him to go on with it. My whole bill was fix hundred and thirty dollars. They offered me at one time, three hundred and fixty dollars; but afterwards they told me they would have nothing to do with it.

Dexter. Did you offer him the half?

A. No-I offered to take 300 dolls.

1

Dexter. What was the amount of your bill? A. It was 630 dolls. Att. Gen. They offered you 360 dolls.-why did you not take it ? A. I would not take it then, because I thought I could get the whole; but afterwards finding it was not to be obtained, but by a fuit at law, I offered him the half. I certainly wished to have a part, rather than lofe the whole.

Parker, J. This was then fettled as a point of honour, between the Committee and yourself.

Att. Gen. This queftion has no bearing on the iffue. I have afked it merely to know whether the witness has acted from himself.

Gore. Before I proceed, I shall beg leave to read a few fentences from Grotius.

No man is permitted to destroy another except in defence of that which if once loft is irrecoverable for ever, as life and chastity. 2 Grotius, 19.

If a man is affaulted in fuch a manner that his life fhall appear in inevitable danger, he may not only make war upon, but very justly destroy the aggreffor; and from this inftance which every one must allow us, it appears that such a private war may be just and lawful; for it is to be obferved that this right or property of felf defence is what nature has implanted in every creature, with out any regard to the intention of the aggreffors. 2 Gro. 7.

What fhall we then say of the danger of lofing a limb, or a member?—when a member, ofpecially if one of the principal, is of the highest confequence, and even equal to life itself; and it is befides doubtful whether we can furvive the lofs; it is certain if there be no poffibility of avoiding the misfortune, the criminal perfon may be lawfully and inftantly killed. 2 Gro. 10.

So is he reputed innocent by the laws of all known nations, who by arms de fends himself against him that affaults his life which fo manifeft a confent is a plain testimony that there is nothing in it contrary to the law of nature.

1 Gro. 117.

If I cannot otherwise save my life, I may by any force whatever, repel him who attempts it, though perhaps he who does fo is not any ways to blameBecause this right does not properly arife from the other's crime, but from that prerogative with which nature has invested me, of defending myself. 3 Gro. ? Mr. Gore then proceeded in the following manner :

you

May it pleafe your Honour, and you Gentlemen of the Jury, After having made a few preliminary obfervations, which I thought pertinent, merely with a view to placing you in a fituation, in which I prefume you are difpofed to be placed, that of being free from every bias or prejudice; and I, in the like manner, wish to be heard, as the Attorney General faid he was difpofed to be heard, that is, as if this were a cause between two indifferent persons, of whom know nothing; for that I prefume to be the very effence of justice; and if it were poffible that a Court and Jury should ever decide the fuit before them, abftracted from the parties, and merely by fictitious names, we fhould have decifions more correct than we now have ; not that I mean to find fault with our own jurifprudence, or the organization of our Cuorts, but it is fometimes impoffible to be unaffected by the parties, who are to be benefited or to fuffer.

It was