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fane her temple of justice? Will you commit sake of argument, that the evidence proves mursacrilege while you kneel at her altar?

der. Our time will be more usefully employed I will now proceed to state the nature of the in considering the principles of the defence. charge on which you are to decide, and of the Let it be admitted, then, as stated by the coundefence which we oppose to it; then examine sel for government, that the killing being provthe evidence, to ascertain the facts, and then ed, it is incumbent on the defendant to discharge inquire what is the law applicable to those himself from guilt. Our defence is simply this, facts.

that the killing was necessary in self-defence; The charge is for manslaughter; but it has or, in other words, that the defendant was in such been stated in the opening, that it may be ne- imminent danger of being killed, or suffering othcessary to know something of each species of er enormous bodily harm, that he had no reasonhomicide, in order to obtain a correct idea of able prospect of escaping, but by killing the that which you are now to consider.

assailant. Homicide, as a general term, includes, in law, This is the principle of the defence stripped every mode of killing a human being. The of all technical language. It is not important highest and most atrocious is murder; the dis- to state the difference between justifiable and criminating feature of which is previous malice. excusable homicide, or to show to which the With that the defendant is not charged; the evidence will apply; because, by our law, either grand jury did not think that by the evidence being proved, the defendant is entitled to a submitted to them, they were authorized to ac- general acquittal. cuse him of that enormous crime. They have, Let us now recur to the evidence and see therefore, charged him with manslaughter whether this defence be not clearly established. only.

The very definition of this crime, excludes Mr. DEXTER here went into a minute examiprevious malice; therefore it is settled, that nation of the whole evidence. In the course of there cannot, with respect to this offence, be an accessory before the fact; because the intention it he labored to prove, that Mr. Selfridge went of committing it is first conceived at the moment on the Exchange about his lawful business, and of the offence, and executed in the heat of a without any design of engaging in an affray ; sudden passion, or it happens without any such that he was in the practice of carrying pistols, intent, in doing some unlawful act. It will not be contended that the defendant is guilty of and that it was uncertain whether he took the either of these descriptions of manslaughter. weapon in his pocket in consequence of expectNeither party suggests that the defendant was ing an attack; that if he did, he had a right so under any peculiar impulse of passion at the to do, provided he made no unlawful use of it; moment; and had not time to reflect; on the contrary, he is said to have been too cool and that the attack was so violent and with so dandeliberate. The case in which it is important gerous a weapon, that he was in imminent danto inquire, whether the act was done in the heat ger; that it was so sudden, and himself so of blood, is where the indictment is for murder, feeble, that retreat would have been attended and the intent of the defence is to reduce the crime from murder to manslanghter ; but Self- with extreme hazard ; that the pistol was not ridge is not charged with murder. There is no- discharged until it was certain that none would thing in the evidence that has the least tendency interfere for his relief, and that blows, which to prove an accidental killing, while doing some perhaps might kill him, and probably would unlawful act. It is difficult to say, from this view of manslaughter, when compared with the fracture his skull, were inevitable in any other evidence, on what legal ground the defendant way, and that the previous quarrel with the can be convicted; unless it be, that he is to be father of the deceased, if it could be considered considered as proved guilty of a crime which as affecting the cause, arose from the misbehamight have been charged as murder, and by vior of old Mr. Austin, and that the defendant law, if he now stood before you under an indictment for murder, you might find him guilty of had been greatly injured in that affair :—Mr. manslaughter, and therefore you may now con- DEXTER then proceeded : vict him.

This does not appear to be true; for the evi It cannot be necessary, gentlemen, for the dence would not apply to reduce the offence defendant to satisfy you beyond doubt, that he from murder to manslaughter, on either of the received a blow before the discharge of the pisaforementioned grounds. Perhaps it may be tol. There is positive evidence from one witsaid, that every greater includes the less, and ness, that the fact was so, and other witnesses therefore, manslaughter is included in murder; say much that renders it probable. But if the and that it is on this principle that a conviction defendant waited until the cane was descending, for manslaughter may take place on an indict- or even uplifted within reach of him, reason . ment for murder. I will not detain you to ex- and common sense say, it is the same thing; no <mine this, for it is not doing justice to the de- man is bound to wait until he is killed, and fendant to admit, for a moment, even for the being knocked down would disable him for de

VOL. II.-16

fence. The killing can be justified only on the to defend himself against it? As little is the ground that it was necessary to prevent an in- defendant to be censured for going about his jury that was feared ; not that it was to punish ordinary business, when he knew it would be for one that was past. This would be revenge, attended with danger, and arming himself for and not self-defence.

defence, in case such an emergency should hapThe same law authorities which tell you, that pen, as that the laws could not afford him proa man must retreat as far as he can, say also, tection. I have here supposed that the pistol that, if the assault be so violent that he can- was taken for the purpose for which it was not retreat without imminent danger, he is ex- used; this, however, is far from being certain cused from so doing. If this means any thing, from the evidence, as it is in proof, that the it is applicable to our case: for perhaps you defendant had daily occasion for pistols in passcan hardly imagine a more violent or more sud- ing between Boston and Medford, a road that den assault. When to this is added the muscu- has been thought attended with some danger lar debility of the defendant, it certainly forms of robbery; and that he sometimes carried pisa very strong case. He could neither fight nor tols in his pocket. There is not the least prefly. Had he attempted the latter, he must have tence for saying that he expected an affray with been overtaken by his more athletic and active young Mr. Austin. He could not presume that antagonist, and either knocked down, or maimed, his father would employ him; and it is not or murdered, as the passions of that antagonist probable that he knew him in the confusion might dictate.

that the sudden attack must have produced. But it is said, and some passages from law As to the publication in the newspaper against books are read to prove it, that the necessity old Mr. Austin; though this might be in some which excuses killing a man, must not be pro- sense a fault, yet it is far from being within the duced by the party killing: and that he must principle established by the books. When it is be without fault. You are then told that the said the party must be without fault, it is evident defendant sought the affray, and armed himself that nothing more is meant, than that he most for it; and that he had been faulty in calling be without fault in that particular transaction. Mr. Austin, the father, opprobrious names in the If we are to leave this and look back, where are newspaper.

we to stop? Are we to go through the life of As to the affray being songht by the defend the party to examine his conduct? If the de ant, there is no evidence to support such an fendant had libelled Mr. Austin; that was a assertion, but what arises from his conversa- previous and distinct offence, for which he was, tions with Mr. Richardson and Mr. Whitman, and yet is, liable to an action or an indictment; or from the fact of his having a pistol in his and unless it be presumed without evidence and pocket. These only prove, that he was prepared against all probability that it was intended to to defend himself, if attacked : and if he did de- produce this affray, it can have no connection fend himself lawfully, this is the best evidence with the principle stated. There is another to show what was his intention. It cannot be obvious motive for it, and there is nothing in the presumed that he took the pistol with an un- evidence tending to convince you that it was lawful intent, when he never expressed such intended to provoke an attack. The defendant intent, and when his subsequent conduct was had been defamed; retaliation was the natural lawful. He had been informed that he should punishment; and there is no reason to presume be attacked by a bully: in such case what was that any thing more was intended, unless it was his duty! Was he bound to shut himself up in to blunt the shafts of calumny from Mr. Austin, his own house? Was he bound to hire a guard? by destroying his credit and standing in society. If he had done so, this would have been urged It is true, that it is said by several respectable as the strongest evidence of his intention to compilers of law, that the party killing must be commit an affray. Could he obtain surety of without fault; but they all refer to one adjudged the peace from a future assailant, whose name case, which is found stated in 1. H. P. Č. page was unknown to him? Or was he bound to go 440. about his business, constitutionally feeble and By recurring to the statement of this case it unarmed, at the peril of his life? There would appears that the persons who killed, and would be more color for this snggestion if the defend have excused it on the ground of necessary selfant had gone on the Exchange, and then in- defence, had forcibly entered and disseized the sulted either old Mr. Austin or his son, or vol-rightful owner of a house, and continued forci. untarily engaged in an altercation with either bly to detain it against him; in an attempt by of them. But he went peaceably about his or the owner forcibly to recover possession, dinary business, and made use of his weapon those who held wrongfully were reduced to the orly when an unavoidable necessity happened. necessity of killing; and it was holden, that as

A man when about to travel a road infested they were then engaged in an unlawful act, with robbers, lawfully arms himself with pis- namely, forcibly detaining the house against tols; if he should be attacked by a robber, and him who had a right to enter, they had profrom necessity kill him, is he to be charged duced his necessity by their own wrongful conwith having sought this necessity, because he duct; and therefore it should not excuse them. voluntarily undertook the jonrney, knowing So that this principle seems to be related to the danger that attended it, and took weapons another, and in reality to be involved in it. I

mean the well known principle that he who , on a sudden affray without malice, A may still kills another by accident, while performing an excuse killing B from a subsequent necessity in unlawful act, is guilty of manslaughter. It his own defence; and yet none will deny that would be absurd that a man who kills by acci- first assaulting B, though without malice, was a dent, while performing an unlawful act, should fault. be guilty of manslaughter; and yet that he On this point, I submit to your consideration who kills, from design, while performing an one further remark. The publication in the unlawful act, however necessary it may have newspaper is nothing more than provoking lanbecome, should be guiltless.

guage; now if the defendant had, immediately It is settled that if, on a sudden affray, A before the affray, made use of the same lanmake an assault on B, and afterwards the guage to old Mr. Austin, no lawyer will pretend assaulter be driven to the wall, so that he can that this would have been such a fault as would retreat no farther, and then kill B necessarily have precluded the defendant from excusing in his own defence, that it is excusable homicide himself for the subsequent necessary killing in A; and yet here A was in fault in this very on the principle of self-defence.

If it were 80 affray, by making the first assault; but having we should find it so stated in books of authorafterwards retreated as far as he could, the law ity that treat on this subject; for the case must extends to him the right of self-defence. This often have happened, as provoking language shows that unless at the moment of killing, the generally precedes blows. On the contrary, we party be doing wrong, the principle contended find it settled, that even making the first asfor on the other side does not apply. In proof sault does not deprive the party of this defence. of this I will also read to you an authority from It would be absurd then to say, that rude and 1st Hale's P. C., 479. “There is malice be- offensive language, which cannot even justify tween A and B, they meet casually, A assaults an assault, should produce this effect. It can B and drives him to the wall, B in his own de- hardly be necessary to add, that, if these fence kills A. This is se defendendo, and shall words, spoken at the moment, would not have not be heightened by the former malice into deprived the defendant of this defence, having murder or homicide at large; for it was not a published them before in a newspaper, cannot killing on the former malice, but upon a neces- produce this consequence. sity imposed upon him by the assault of A. I have hitherto admitted that the publication

" A assaults B, and B presently thereupon in the newspaper was a fault in the defendant; strikes A without flight, whereof A dies ; this nor am I disposed entirely to justify it; yet ciris manslaughter in B and not se defendendo. cumstances existed which went far to extenuate But if B. strikes A again, but not mortally, and it. He had been defamed on a subject, the deliblows pass between them, and at length B re- cacy of which, perhaps, will not be understood tires to the wall, and being pressed upon by A, by you, as you are not lawyers, without some exgives him a mortal wound, whereof A dies; planation. Exciting persons to bring suits is an this is only homicide, se defendendo, although infamous offence, for which a lawyer is liable to that B. had given divers other strokes that indictment, and to be turned away from the bar. were not mortal before he retired to the wall It is so fatal to the reputation of a lawyer, that or as far as he could. But now, suppose that it is wounding him in the nicest point, to charge A by malice makes a sudden assault upon B, him with it. It is the point of honor; and who strikes again, and pursuing hard upon A, A charging him with barratry, or stirring up suits, retreats to the wall, and, in saving his own life is like calling a soldier a coward. Mr. Austin, kills B. Some have held this to be murder, the father, had accused the defendant publicly and not se defendendo, because A gave the first of this offence, respecting a transaction in assault, Cromp. fol. 22 b, grounding upon the which his conduct had been punctiliously corbook of 3 Edw., 3 Itin., North. Coron, 287 ; rect. The defendant first applied to him in but Mr. Dalton, ubi supra, thinketh it to be person, and with good temper, to retract the se defendendo, though Á made the first assault charge; afterwards in conversations with Mr. either with or without malice, and then re- Welsh, Mr. Austin acknowledged the accusatreated.”

tion to be false, and promised to contradict it I am bound in candor to add, that the law as as publicly as he had made it. Yet he neglectabove laid down, on the authority of Dalton, ed to do it; again he said he had done it; but has since been doubted as to that part of it the fact appeared to be otherwise. This inwhich supposes previous malice. This passage duced the defendant to demand a denial of it has been reviewed by Hawkins and East in in writing. Though Mr. Austin privately their several treatises, on Crown law, and I have acknowledged he had injured Mr. Selfridge, yet chosen to read it from this very circumstance, he refused to make him an adequate recombecause it appears that it has been well consid- pense, when he neglected to make the denial as ered; and when subsequent and eminent wri- public as the charge. This was a state of war ters on full examination reject a part, and ad- between them upon this subject, in which the mit the residue to be law, it is strong confirma- more the defendant annoyed his enemy, the tion of that residue. It is that alone on which less power he had to hurt him.

It was I rely, and it is amply sufficient to prove, what therefore a species of self-defence; and Mr. I have before stated; that if A first assault B | Austin, who had first been guilty of defama

tion, perhaps had little cause to complain. To to beat a man, and there be no possibility of try the correctness of this, we will imagine an avoiding it but by killing the assailant, it is extreme case.

excusable so to do. Suppose a man should have established his When the weight and strength of the cane, reputation as a common slanderer and calumni- or rather cudgel, which the deceased selected is ator, by libelling the most virtuous and emi-considered, and the violence with which it was nent characters of his country, from Washington used, can it be doubted that great bodily harm and Adams, down through the whole list of would have been the consequence, if Selfridge American patriots; suppose such an one to had not defended himself? The difference behave stood for twenty years in the kennel, and tween this weapon and the pistol made use of thrown mud at every well-dressed passenger; | by the defendant, perhaps, is greatly exaggersuppose him to have published libels, 'til his ated by the imagination. The danger from the style of defamation has become as notorious as former might be nearly as great as from the his face, would not every one say, that such latter. When a pistol is discharged at a man, conduct was some excuse for bespattering him in a moment of confusion and agitation, it is in turn?

very uncertain whether it will take effect at I do not apply this to any individual; but it all; and if it should, the chances are, perhaps, is a strong case to try a principle; and if such four to one, that the wound will not be mortal. conduct would amount almost to a justification Still further, when the pistol is once discharged, of him who should retaliate, will not the slan- it is of little or no use; but with a cane, a man, der of Mr. Austin against Mr. Selfridge furnish within reach of his object, can hardly miss it; some excuse for him?

and if the first blow should prove ineffectual, It has also been stated to you, gentlemen, he can repeat his strokes until he has destroyed and some books have been read to prove it, his enemy. that a man cannot be justified or excused in If it were intended to excite contempt for killing another in his own defence, unless a the laws of the country, a more effectual felony were attempted or intended. Some con- method could hardly be taken than to tell a fusion seems to have been produced by this, man, who has a soul within him, that one atwhich I will attempt to dissipate. It has been tempts to rob him of a ten-dollar bill, this is a settled that if a felony be attempted, the party felony, and therefore esteemed by the law an injured may kill the offender, without retreat- injury of so aggravated a nature, that he may ing as far as he safely can; but, that if the lawfully kill the aggressor; but that if the same offence intended be not a felony, he cannot ex- man should whip and kick him on the public cuse the killing in his own defence, unless he Exchange, this is only a trespass, to which he so retreat, provided circumstances will permit. is bound to submit rather than put in jeopardy On this principle, all the books that have been the life of the assailant; and the laws will read on this point, may easily be reconciled. recompense him in damages. But the position contended for by the opposing Imagine that you read in a Washington news. counsel, is in direct contradiction to one author- paper, that on a certain day, immediately on the ity which they themselves have read. In the rising of Congress, Mr. A., of Virginia, called fourth volume of Blackstone's Commentaries, Mr. B., of Massachusetts, a scoundrel for voting page 185, the law is laid down as follows: against his resolution, and proceeded deliberately “The party assaulted must therefore flee as far to cut off his ears. Mr. B. was armed with a as he conveniently can, either by reason of good sword-cane, but observed that his duty as some wall, ditch, or other impediment, or as à citizen forbade him to endanger the life far as the fierceness of the assault will permit of Mr. A., for, that cutting off a man's ear was him: for it may be so fierce as not to allow him by law no felony; and he had read in law books to yield a step, without manifest danger of his that courts of justice were the only proper life, or enormous bodily harm; and then, in his “vindices injuriarum,” and that he doubted defence, he may kill his assailant instantly. not, that by means of a lawsuit, he should And this is the doctrine of universal justice, as obtain a reasonable compensation for his ears. well as of the municipal law.”

What are the emotions excited in your breasts, Also in I Hawkin's Pleas of the Crown, chap. at this supposed indignity and exemplary pa29, sect. 13, the law on this point is stated tience of the representative of your country? thus: “And now I am to consider homicide se Would you bow to him with profound respect defendendo, which seems to be, where one, who on his return? or rather would not his dignity has no other possible means of preserving his life and usefulness, by universal consent, be lost from one who combats with him on a sudden for ever? quarrel, or of defending his person from one We have now taken a view of the facts, and who attempts to beat him, (especially if such the positive rules of law, that apply to them; attempt be made upon him in his own house) and it is submitted to you with great confidence, kills the person by whom he is reduced to such that the defendant has brought himself within an inevitable necessity."

the strictest rules, and completely substantiated From these two highly respectable authorities, his defence, by showing that he was under a it appears, that, though nothing more be at- terrible necessity of doing the act; and that by tempted than to do great bodily injury, or even law he is excused. It must have occurred to

you, however, in the course of this investiga- | nature has given us, and to secure our own haption, that our law has not been abundant in its piness, as well as that of others. These sacred provisions for protecting a man from gross in- precepts cannot be obeyed without securing to sult and disgrace. Indeed it was hardly to be ourselves the respect of others. Surely, I need expected, that the sturdy hunters, who laid the not say to you, that the man, who is daily beaten foundations of the common law, would be very on the public Exchange, cannot retain his standrefined in their notions. There is in truth much ing in society, by recurring to the laws. Reintrinsic difficulty in legislating on this subject. covering daily damages will rather aggravate Laws must be made to operate equally on all the contempt that the community will heap members of the community; and such is the upon him; nor need I say, that when a man difference in the situations and feelings of men, has patiently suffered one beating, he has althat no general rule, on this subject, can pro- most insured a repetition of the insult. perly apply to all. That, which is an irrepa- It is a most serious calamity, for a man of rable injury to one man, and which he would high qualifications for usefulness, and delicate feel himself bound to repel even by the in- sense of honor, to be driven to such a crisis, yet stantaneous death of the aggressor, or by his should it become inevitable, he is bound to meet own, would be a very trivial misfortune to an- it like a man, to summon all the energies of the other. There are men, in every civilized com- soul, rise above ordinary maxims, poise himself munity, whose happiness and usefulness would on his own magnanimity, and hold himself rebe for ever destroyed by a beating, which an- sponsible only to his God. Whatever may be other member of the same community would the consequences he is bound to bear them; to voluntarily receive for a five-dollar bill. Were stand like mount Atlas, the laws to authorize a man of elevated mind, and refined feelings of honor, to defend himself

“When storms and tempests thunder on its brow, from indignity by the death of the aggressor,

And oceans break their billows at his feet." they must at the same time furnish an excuse Do not believe that I am inculcating opinions, to the meanest chimney-sweeper in the country tending to disturb the peace of society. On the for punishing his sooty companion, who should contrary, they are the only principles that can fillip him on the cheek, by instantly thrusting preserve it. It is more dangerous for the laws his scraper into his belly. But it is too much to give security to a man, disposed to commit to conclude, from this difficulty in stating ex- outrages on the persons of his fellow-citizens, ceptions to the general rule, that extreme cases than to authorize those, who must otherwise do not furnish them. It is vain, and worse than meet irreparable injury, to defend themselves vain, to prescribe laws to a community, which at every hazard. Men of eminent talents and will require a dereliction of all dignity of char- virtues, on whose exertions, in perilous times, acter, and subject the most elevated to outrages the honor and happiness of their country must from the most vile. If such laws did exist, the depend, will always be liable to be degraded by best that could be hoped, would be, that they every daring miscreant, if they cannot defend would be broken. Extreme cases are in their themselves from personal insult and outrage. nature exceptions to all rules; and when a good Men of this description must always feel, that citizen says, that, the law not having specified to submit to degradation and dishonor, is imthem, he must have a right to use his own best possible. Nor is this feeling confined to men discretion on the subject; he only treats the of that eminent grade. We have thousands in law of his country in the same manner in which our country who possess this spirit; and withevery Christian necessarily treats the precepts out them we should soon deservedly cease to of his religion. The law of his Master is, “re-exist as an independent nation. I respect the sist not evil ;" “ if a man smite thee on one laws of my country, and revere the precepts of cheek, turn to him the other also.” No excep- our holy religion; I shoald shudder at shedding tions to these rules are stated; yet does not human blood; I would practise moderation and every rational Christian necessarily make them? forbearance, to avoid so terrible a calamity; I have been led to make these observations, not yet should I ever be driven to that impassable because I think them necessary in the defence of point, where degradation and disgrace begin, Mr. Selfridge; but because I will have no vol- may this arm shrink palsied from its socket, if I untary agency in degrading the spirit of my fail to defend my own honor, country. The greatest of all public calamities It has been intimated, that the principles of would be a pusillanimous spirit

, that would Christianity condemn the defendant. If he is tamely surrender personal dignity to every in- to be tried by this law, he certainly has a right vader. The opposing counsel have read to you, to avail himself of one of its fundamental prinfrom books of acknowledged authority, that the ciples. I call on you then to do to him, as in right of self-defence was not given by the law similar circumstances, you would expect others of civil society, and that that law cannot take to do to you; change situations for a moment, it away. It is founded then on the law of na- and ask yourselves, what you would have done, ture, which is of higher authority than any hu- if attacked as he was. And instead of being man institution. This law enjoins us to be use necessitated to act at the moment, and without ful, in proportion to our capacities; to protect reflection, take time to deliberate. Permit me the powers of being useful, by all means that to state, for you, your train of thought. You

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