f. $:|||p/,f ,v5nf$H ^ ■ .•'■j38mb»^v, • f. &# V T R I A ]L THOMAS O. SEJLFJRIJLDC-E, OF COUNSELLOR AT LAW, BEFORE THE HON. ISAAC PARKER, ESQUIRE. FOR KILLING CMARJLES r /cjyt SECOND EDITION. • \ . e'^MKiL PUBLISHED BY RUSSELL AND CUTLER, BELCHER AND ARMSTRONG, AND OLIVER AND MUNROE. SOLD BY THEM, BY fFM. BLJGROVE, NO. 5, SCHOOL-STREET, AND BY THE PRINCIPAL BOOKSELLERS THROUGHOUT THE UNION. {Retail Pricq One Dollar in Boards.] AMNBK In. *■ \ a DISTRICT OF MJSSJCHUSETTtP-To wit i BE IT REMEMBERED, that on the twenty-sixth day of January, in the thirty-first year of the Independence of the United States of Amer- ica, Russell ^Cutler, Belcher Sf Armstrong, Oliver 6f Munroe, and William Blagrove, of the said District, have deposited in this Of- fice the Title of a Book, the Right whereof they claim as Proprietors, in the words following, to wit : " Trial of THOMAS O. SELFRIDGE, Attorney at Law, before the Hon. Isaac Parker, Esq. for killing CHARLES AUSTIN, on the Public Exchange, in Boston, August 4th, 1806 ; taken in short hand, by T. Lloyd, Esq. Reporter of the Debates of Congress, and Geo. Caines, Esq. late Reporter to the State of New-York, and sanctioned by the Court, and Reporter to the State." In conformity to the Act of the Congress of the United States, intitled, " An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the times therein mentioned ;" and also to an Act intitled, " An Act supple- mentary to an Act, intitlcd An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Propri- etors of such Copies during the times therein mentioned ; and extending the Benefits thereof to the Arts of Designing, Engraving and Etching Historical Mother Print,'' WILLIAM S. SHAW, Clerk of the District of Massachusetts. ^^-*- ADVERTISEMENT. THE Publishers have spared no labour or expense, to obtain an authentic and accurate Report of this Trial.— The evidence, being originally taken by two eminent Stenog- raphers, has been compared by Mr. Tyng, Reporter of the Decisions of the Supreme Judicial Court, with the Notes of the Testimony taken by him, and with the Minutes of the Hon. Judge, who sat in the Trial. The several Addresses have been submitted to, and corrected by the respective Speakers. BAw-I''-i«'*V*l EiiOHANG^ Willi m V* »*v^ REPORT, &c, A HE Court was opened on Tuesday the 25th day of November, present* The Hon Theophilus Parsons, L. L. D. Chief Justice. The Hon. Theodore Sedgwick, L. L. D."l The Hon. Samuel Sewall, y Justices. The Hon. Isaac Parker, J The Grand Jury being impannelled and sworn, viz. Thomaa Handosyd Perkins, Esquire, Foreman. Samuel Emmons, George Paine, Daniel Tuttle, Joshua Davis, Jedidiah Parker, David Townsend, Jonathan Kelton, Moses Gard- ner, Joseph Francis, Mitchell Lincoln, Samuel Sturgis, Charles Vose, Stephen Gore, Gamaliel Bradford, William Harris, William AfJVeil Watts, Daniel Dennison Rogers, William Walter, William Shimmin, all of Boston, and Caleb Pratt of Chelsea, the Chief Jus- tice delivered a learned and impressive charge, from which the following extract, as having more immediate relation to the sub- ject of this Report, is copied by permission. ----" Felony affecting life is either murder, or manslaughter. Murder is the wilful killing any person of malice aforethought, either expressed or implied. The malice is express, when there was a -premeditated inten- tion to kill. Malice is implied, when the killing is attended with circumstances which indicate great wickedness and depravity of disposition, a heart void of social duty, and fatally bent on mis- chief. Formerly if the husband was maliciously killed by his wife, or the master by his servant, the offence was adjudged to be petit * It was understood that suggestions had been received from the At- torney General, that he had some legal objections to the return of the Jurors from Boston, upon which it was desirable to have the opinion of the full Court; and that these suggestions were the occasion of the presence of the other members of the Ceurt besides Judge Parker, to whom this session had been assigned. The objections being considered and over- ruled by the Court, but one Judge sat in the trials after the first day, except in the trial of one indictment for murder. B 6 TRIAL OF T. O. SELFRIDGE, ESQ. treason ; but by virtue of a late Statute it is now considered only as murder, and as such is indicted and prosecuted. And every man who kills another in a duel deliberately fought, is a murderer. » Manslaughter is the killing another, either wilfully, or through gross negligence, but not from malice aforethought. Homicide from accident is excusable—from necessity it is ei- ther excusable, or justifiable—when for the advancement, or in execution of public justice, it is justifiable. Observing in the list of prisoners, returned by the Gaol keeper, that twopersbns are in custody charged with felonious homicide, it may be useful to you, in your enquiries, to mention some prin- ciples of law, relating to this subject. In every charge of murder, the fact of killing being first proved against the party charged, to reduce the offence below that crime, by any circumstances of accident, necessity, or human infirmity, he must satisfactorily prove these circumstances, unless they arise out of the evidence produced against him. When the act which occasions the death is unlawful, yet if malice either express, or implied, be wanting, the killing is not murder, but manslaughter, the act being imputed to the infirmity of human nature. Neither words of reproach, however grievous, nor contemptu- ous or insulting gestures, without an assault on the person, are sufficient to free the party killing with a dangerous weapon, from the guilt of murder. An assault is any attempt or offer, with force and violence, to do a corporal hurt to another, as by striking at him, or even by holding up the fist at him in a threatening or insulting manner, or with such other circumstances as denote an intention and ability, at the time, of using actual violence against his person. And when the injury, however small, as spitting in a man's face, or unlawfully touching him in anger, is inflicted, it amounts to a battery, which includes an assault. Any assault made, not lightly, but with violence, or with cir- cumstances of indignity, upon a man's person, if it be resented immediately, and in the heat of blood, by killing the party with a deadly weapon, is a provocation, which will reduce the crime t» manslaughter ; unless the assault was sought for by the party kill- ing, and induced by his own act, to afford him a pretence for wreaking his maiice. To illustrate this exception, a case is stated of the fallint; out of A and B. A says, he will not strike, but will give B a pot of ale to touch him ; on which B strikes A, who thereupon kills B. This is murder in A, notwithstanding the provocation received by the blow from B, because A sought that provocation. A TRIAL OF T. O. SELFRIDGE, ESQ. 7 A man may repel force by force, in defence of his person, against any one who manifestly intends, or endeavours by violence, or surprise, feloniously to kill him. And he is not obhgtu to re- treat, but may pursue his adversary, until he has secured himself from all danger ; and if he kill him in so doing1, it is justifiable self- defence. But a bare fear, however well grounded, unaccompanied by any open act, indicative of such an intention, will not warrant him in killing. There must be an actual danger at the time. And, (in the language of Lord Chief Justice Hale,) it must-plainly jfppear by the circumstances of the caie, as the manner of the as- sault, the weapon, &c. that his life was in imminent danger; oth- erwise the killing of the assailant will not be justifiable homicide. But, if the party killing had reasonable grounds for believing, that the person slain had a felonious design against him, and under that supposition kill him ; although it should afterwards appear, that there was no such design, it will not be murder; but it will be either manslaughter, or excusable homicide, according to the degree of caution used, and the probable grounds of such belief. These principles have been recognised by the wisest and most humane writers on criminal law. After a due and impartial enquiry into the several cases, that may require your attention, you will ascertain the facts, and after- wards apply the principles of law, to obtain a just and legal result." On Tuesday, December 2d, the Grand Jury returned into Court, and, among ©ther bills, presented the following indictment against Thomas Oliver Selfridge, Esquire :— Commonwealth of Massachusetts. Suffolk, and \ At the Supreme Judicial Court begun and holden Nantucket, ss. ^ at Boston within the County of Suff'.Ik, and for the Counties of Suffolk and A'antuckcc, on the fourth Tuesday of November, in the year of our Lord one thousand eight hundred and six. The Jurors for the Commonwealth of Massachusetts upon their oath present,that Thomas Oliver Selfridge, of Boston, in the county of Suffolk, gentleman, otherwise called Thomas Oliver Selfridge of Medford, in the county of Middlesex, gentleman, not having- the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the fourth day of August in the pres- ent year, with force and arms, at Boston aforesaid, in the county of Suffolk aforesaid, in and upon one Charles Austin, in the peace of God and the said Commonwealth, then and there being, feloni- ously, wilfully, and of the fury of his mind, did make an assault; and that he the said Thomas Oliver Selfridge, a certain pistol of the value of five dollars, then and there loaded and charged with gun powder and one leaden bullet i which pistol he the said Thomas 8 TRIAL OF T. O. SELFRIDGE, ESQ. 'Oliver Selfridge, in his right hand, then and there held, to, against and upon the said Charles Justin, then and there, feloniously, wil- fully, and of the fury of his mind, did shoot and discharge ; and that he the said Thomas Oliver Selfridge, with the leacjen bullet aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder, shot and sent forth as aforesaid, the aforesaid Charles Austin, in and upon the left breast of him the said Charles Austin, a little below the left pap of him the said Charles Austin, then and there, with the leaden bullet aforesaid, out of the pistol aforesaid, by him the said Thomas Oliver Selfridge, so as aforesaid, shot, dis- charged and sent forth, feloniously, wilfully, and of the fury of his mind, did strike, penetrate and wound, giving to him the said Charles Austin, then and there, with the leaden bullet aforesaid, shot, discharged and sent forth out of the pistol aforesaid, by him the said Thomas Oliver Selfridge, in manner aforesaid, in and upon the left breast of him the said Charles Austin, a little below the left pap of him the said Charles Austin, one mortal wound of the depth of six inches, and of the breadth of one inch, of which mortal wound aforesaid the said Charles Austin then and there instantly died j and so the Jurors aforesaid, upon their oath aforesaid, do say, that he the said Thomas Oliver Selfridge, the said Charles Austin, then and there, in manner and form aforesaid, feloniously, wilfully, and of the fury of his mind, did kill and slay, against the peace of the Commonwealth aforesaid, and the law in such case made and provided. A true bill. T. HANDASYD PERKINS, Foreman. James Sullivan, Attorney General. The Defendant,being soon after brought into Court and arraign- ed upon the foregoing indictment, pleaded Not Guilty. Being en- quired of by the Court* at what time he would be ready for his trial; he prayed for a postponement of it to some future day in the term, He stated that he could not at that time name the day, as he should have occasion to send to a considerable distance for witnesses, whom he believed essential to his defence, of whom he had un- derstood that one was in the District of Maine, and another in the state of New York. On the motion of his Council that he might be admitted to bail, which was not opposed by the Council for the government, he was ordered to recognize himself, in two thousand dollars*, with sufficient surety or sureties in the same sum for his appear- ance de die, in diem during the present term, &c. On Tuesday, the 23d day of December, which had been previ- ously assigned by the Court, the trial commenced before the Hon. Mr. Justice Parker. • The Hon. Judge Sedgwick was then sitting in the place of Judge Parker. TRIAL OF T. O. SELFRIDGE, ESQ. 9 At nine o'clock the Court opened. The Clerk then proceeded to call the Jury in the following order : I. Paul Revere—sworn. Thomas Fracker. Mr. Selfridge. I wish to enquire if Mr. Fracker has not formed an opinion on this occasion. Mr. Fracker being sworn to answer, was asked by Parker J. Have you heard any thing of this case, so as to have made up your mind ? Ans. No. Parker J. Do you feel any bias or prejudice for or against the prisoner at the bar ? Ans. No. Parker J. Swear him. 2. Thomas Fracker—sworn. 3. Isaac Parker—sworn. 4. Micajah Clark—.sworn. "Ward Jackson. Mr. Selfridge. I wish Mr. Jackson to say whether he has not some bias in this case. Mr. Jackson being sworn to answer, was asked by Parker J. Have you formed any opinion as to the issue or this cause ? Ans. No. Parker J. Do you feel any bias or prejudice for or against Mr. Selfridge ? Ans. None. Parker J. Swear him. 5. Ward Jackson—sworn. Henry Sargent. Mr. Selfridge I object to him as having been one of the Jury of Inquest. 6. Francis Tufts. 7, Lemuel Gardner. 8. Elisha Learned. 5 9. Ebenezer Goffe. 5> -o 10. John Fox. 3 11. John West. 12. Dexter Dana. For the Commonwealth, James Sullivan, Attorney General, and Daniel Davis, Solicitor General. For the Defendant, Christopher Gore and Samuel Dexter. Clerk of the Court. Gentlemen of the Jury hearken to the Indictment found against Thomas Oliver Selfridge. tHere the Clerk read the indictment, see page 7.] IP TRIAL OF T. O. SELFRIDGE, ESQ. Clerk of the Court. To this Indictment the defendant hat pleaded not guilty, and has put himself on the country, which country you are, and you are now sworn to try the issue. Mr. Solicitor General. May it please your Honor, and tjou, Gentlemen of the Jury. You perceive by the indictment that has been read to you, that Thomas Oliver Selfridge is charged by the Grand Jury oi the body of this county, with the crime of manslaughter. The in- dictment particularly states that on the fourth day of August, in the present year, he discharged a loaded pistol at Charles Austin, in consequence of which he instantly died. This fact is alleged, in the indictment, to have been committed feloniously, wilfully, and in the fury of the mind of the defendant; and this is the appropriate description of the crime of manslaughter. It is not my duty, on this occasion, to pourtray the consequences that have resulted from the shocking event, which has brought Mr. Selfridge to the bar of his country. It is my more immediate and appropriate duty to explain the nature of the crime, and apply the facts which will be proved to you by the witnesses on the part of Government ; I shall then adduce the authorities and cases in the books which are applicable to the pre- sent issue. It is impossible for me to discharge this duty with any satisfaction to myself, or any assistance to you, without re- curring to the authorities, which treat on the subject of homi- cide. You will find by a recurrence to those authorities, that it will be impossible to understand them without attending to the subject of homicide at large. It will also be impossible to un- derstand the crime of manslaughter, without a previous acquaint- ance with the crime of murder. Writers have so blended the different degrees of guilt attached to these crimes, and the shades arc in many instances so faintly delineated between them, that it is difficult to be acquainted with the distinction, which it is your duty to make before you can understand and decide on the present case. Therefore I will, before I state the facts and call the witnesses to prove these facts, ask your attention for a few minutes to several passages that will be referred to, merely with a view to define the crime, and which you ought, in the be- ginning of the cause, to understand. I shall for your convenience and my own, trouble you no further than to read those authori- ties which contain the general definition ; and then will state the facts which are/o be proved by the witnesses that will be adduced, and then read certain rules of law which apply to this case in particular, and having done that, I shall have done all that the Government will require of me on the present occasion. I have not been able to find, by attention to the several treatises on the subject of homicide, any book that contains a better generr TRIAL OF T. O. SELFRIDGE, ESQ. U al description of the crime of manslaughter, than the 4th volume of Blackstone's Commentaries, in which the subject of homicide is treated at large. But at this time I shall ask your attention to those parts only which treat of the crime of which the defendant stands accused. In 4 Blackstone's Com. p. 177, that learned author says : " Of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away that life, which is the immediate gift of the great Creator ; and •f which therefore no man can be entitled to deprive himself, or another, but in some manner, either expressly commanded in, or evidently deducible from, those laws which the Creator has given us ; the divine laws, I mean, of either nature or revela- tion." The author then proceeds to state what would be justifia- ble homicide ; but as nothing can occur in the present trial, which can render the homicide of that nature, it will be unne- cessary to read it. In pages 180 and 181, he proceeds, in the next place, to con- sider such homicide as takes place to prevent a crime. . "^he Roman la*V' he says, " also justifies homicide, when committed in defence of the chastity either of one's self or relations ; and so also, according to Selden, stood the law in the Jewish republic. The English law justifies a woman, killing one who attempts to ravish her ; and so toe the husband or father may justify killing a man, who attempts a rape upon his wife or daughter ; but not if he takes them in adultery by con- sent, for the one is forcible and felonious, but not the other. And I make no doubt but the forcibly attempting a crime, of a still more detestable nature, may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own, and all other laws, seems to be this : that where a crime, in itself capital, is endeav- oured to be committed by force, it is lawful to repel that force by the deatn of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does; who holds, «that all manner of force, without right, upon a man's person, puts him in a state •t war with the aggressor ; and, of consequence, that, being in such a state of war, he may lawfully kill him that puts him under this unnatural restraint. However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of every well-regulated com- munity, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system ; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death. In page 183, the author considers that species which consists in self-defence. " Homicide in self-defence or se defendendo, upon a sudden affray, is also reusable rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime ; which is not only a. matter of excuse, but of justification. But the self-defence, which we are now speaking of, is that whereby a man may protect himself from a"a assault, or the like, in the course, of a sudden brawl or quarrel, by ^2 TRIAL OF T. O. SELFRIDGE, ESQ. Killing him who assaults him. And this is what the law expresses by the word chance-medley, or rather (as some choose to write it) chaud-medley t the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion: both of them are pretty mucn of the same import; but the former is in common speech too often erro- neouslv applied to any manner of homicide by misadventure ; whereas it appears by the statute 24 Hen. viii. c 5. and our antient books, that it is properly applied to such killing, as happens in self-defence upon a sud- den rencounter. This right of natural defence does not imply a right oi attacking ; for, instead of attacking one another for injuries past or im- pending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law.— Wherefore, to excuse homicide by the plea of self-defence, it must ap- pear that' the slayer had no other possible (or at least probable) means of escaping from his assailant." In page 188, the learned writer describes the nature of feloni- ous homicide : " Felonious homicide is an act of a very different nature from the for- mer, being the killing,of a human creature, of any age or sex, without justification or excuse. This may be done, either by killing one's self, or another man." I will thank you, gentlemen of the jury, to attend to the dis- tinction between that offence, and the one for which the defendant stands indicted, and which I am about to state from the same ele- gant author. In page 191, he says : " Manslaughter is therefore thus defined, the unlawful killing of anoth- er, without malice either express or implied: which may be either vol- untarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act." "As to the first, or voluntary branch : if upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter ; and so it is, if they upon such an occasion go out and fight in a field ; for this is one continued act of passion ; and the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendendo, since there is no absolute neces- sity for doing it to preserve himself; yet neither is it murder, for there is no previous malice ; but it is manslaughter." There is only one other definition, which I will trouble you, Gentlemen, to attend to in the opening of this trial; it is the defi- nition of the crime of murder, as given in the 195th page of the same book, in the words of Sir Edward Coke. " Murder is therefore now thus defined, or rather described, by Sir Edward Coke . " When a person of sound memory and discretion unlaw- fully killeth any reasonable creature in being, and under the King's peace, withmalice aforethought, either express or implied." TRIAL OF T. O. SELFRIDGE, ESQ. ft it is murder. He then goes on to give different descriptions of the feveral branches of murder, which it is not neceffary in this ftate of the trial to trouble you with. I thought it my duty, Gentlemen, to read to you fuch paffages in the book I have reforted to on this occafion, as contained a gen- eral defcription of all the different branches of homicide, from wilful murder down to juftifiable felf defence. I will now ftate my reafons for fo doing. So far as I am ac- quainted with the fa&s of this cafe, it will turn out, from the tefti- rriony of the witneffes on the part of the Government, that this event happened in fuch a manner, that it may become a queflion whether the Defendant has been guilty of murder or manflaughter. I do not mean to infinuate, that it is poffible to convift the De- fendant on this indi&ment of a higher fpecies of homicide than man- flaughter ; but you will find by a recurrence to other books, and on an inveftigation of the fa&s, that though he be indifted for man- flaughter, if from thofe fads he might have been found guilty of murder, he muft be found guilty of manflaughter. I mention this, becaufe, poflibly, it may be contended, that the fadls amount either to murder, or excufable felf defence, and that in either cafe you muft acquit. I fay it is poffible, becaufe it is out of my power to anticipate on what ground the Defendant's Counfel will place their defence. It is therefore neceffary that you fhould have a juft idea of the nature of thefe different fpecies of homicide ; for though you find that the fafts approach the degree of murder, you muft from every principle of public juftice fay, that the De- fendant is guilty of manflaughter only. I will now ftate to you generally, the fa&s which will appear ia evidence to you on the part of the Government, and before I pro- ceed "particularly to ftate thofe facts, I will mention that it is necef- fary that the Government proVe^thefe two things ; firft, that Charles Auftin, the perfon named in the indiftment, is dead ; fecondly, that he came to his death by the imirumentality of the Defendant at the bar, and under the circumflances alleged in the indictment ; which two fafts will amount to the crime of manflaughter. Thefe then are the fads which the Government muft prove before it can be en- titled to your verdift ; and you are to judge from the evidence that will be laid before you, whether thefe two points are or are not fub- ftantiated on the part of the Commonwealth. I expecY that it will appear, that on the day mentioned in the Ia- di&ment, between the hours of one and two o'clock in the after- aoon, Selfridge was in his office, employed about his ordinary bufi- aefs; that a few minutes before he proceeded from thence into C » TRIAL OF T. O. SELFRTDGE, ESQ. State ftreet, he had a convention, in which he mentioned that he anticipated fome attack in the courfe of the day, (probably about 'Change hours) and that he then ftated a converfation which took place between Mr. Benjamin Auftin and Mr. Welfh, in which Mr. Auftin had threatened to have him chaftifed ; that Mr. Selfndgfe declared to the perfon with whom he had that converfation, that he was not a man to engage at fifticuffs, though he was prepared to protea and defend himfelf ;. to this, will be added other circum- flances which tend to fhow, that Mr. Selfridge went out of his of- fice with the piftol, which was the inftrument of the death of the deceafed, and which was deliberately loaded for that purpofe. About twenty minutes after Mr. Selfridge went out of his office, down into State ftreet, and the deceafed was then on 'Change, Handing near the door of Mr. Townfend's shop ; that Mr. Selfridge walked down State ftreet, with his hands in his pockets, or behind him, with, prob- ably, an intent to conceal the inftrument he had in his pocket, and with which he gave the deceafed his death wound ; that in paffing down in this manner, Auftin leaving the place at which he flood, approached him with a flick in his hand ; that they met together a few paces from the door of the fhop, and that there a combat en- fued. It will appear that the deceafed came with a flick in his hand, in a manner to make, an affault; but from the evidence we fhall in- troduce, it will be impoffible, I think, to decide, whether the piftol was difcharged, and the death wound given, before, or after Auftin gave Selfridge a blow. It is not neceffary now fo very minutely to ftate the circumflances of this affecting tragedy ; I fhall rely on the information of the witneffes for thefe fa&s, but it will appear from the whole, that it was performed in the courfe of twenty feconds at the fartheft ; the parties met, the piftol and firft blow given and difcharged, probably, at the fame inftant. Auftin then fell to the ground, and foon expired ; he was carried into the fhop of Mr. Townfend, where his wound was examined, found mortal, and of which he died. When the people collected,' Mr. Selfridge appeared perfectly in poffeffion of his mind j declared himfelf in a ftate of recolle&iori, and laid, he knew what he had done, and was ready to anfwer for it at the bar of his country. Thefe are the outlines of this cafe ; thefe fafts, I am confident, from what I know of the foiper teftimony of the witneffes, they will again declare, and, perhaps, jfomething further in favour of the Gov- ernment. If fo, it will be impoffible the Defendant fhould^efcape the punifhment the law affixes to the crime. / Taking it for granted that I fhall prove the facts, it may be convenient at this time to afk your attention to th >fe rulei of law applicable to a cafe of this kind. TRIAL OF T. O. SELFRIDGE, ESQ. 15 When I have fo done, their applicability will eafily be perceived, and the caufe will be fully opened on the part of the Government. I do not know that the bpok I have in my hands, has ever been read as an authority. It is 1 Eaft's Pleas of the Crown, which contains the befl treatife on the fubject of homicide, that has been printed. I will begin, by reading fome part of the 19th fee. chap. 5, page 232. If any queftion is made as to the correctnefs of the principles, I have Hale, Hawkins, and the other authorities cited, which can be referred to. > Parker J. There are few authorities in that book, that are not taken from Hale and Hawkins. Sol. Gen. The part I cite, is that which treats of homicide from tranfport of paffion, or heat of blood. " Herein is to be confidered under what circumflances it may be prefumed that the act done, though intentional of death, or great bodily harm, was not the refult of a cool deliberate judgment and previous malignity of heart, but imputable to human infirmity alone. Upon this head it is principally to be ob- ferved, that whenever death enfues from fudden tranfport of paflion, or heat of blood, if upon a reafonable provocation and without malice, or if upon fud- den combat, it will be manflaughter; if without fuch provocation, or the blood has reafonable time or opportunity to cool, or there be evidence of ex- prefs malice, it will be murder. For let it be again obferved, that in no inftance can the party killing, alleviate his cafe, by referring to a previous provocation, if it appear by any means, that he acted upon exprefs malice." I fhall now read part of the 21ft fee. of the fame chapter: " It muft not however be underftood that any trivial provocation, which in point of law amounts to an aflault, or even a blow, will of courfe reduce the crime of the party killing to manflaughter. This I knqw has been fuppofed by fome, but there is no authority for it in the law. For where the punilhment inflicted for a flight tranfgreffion of any fort is outrageous in its nature, either in the manner or the continuance of it, and beyond all proportion to the offence, it is rather to be confidered as the effect of a brutal and a diabolical malignity, than of human frailty; it is one of the true fymptoms of what the Jaw denominates malice ; and therefore the crime will amount to murder, not- withftanding fuch provocation. Barbarity, fays Lord Holt, in Keate's cafe, will »ften make malice." I will now read another rule from the 23d fee. page 239 : " In no cafe, however, will the plea of provocation avail the party, if it were fought for and induced by his own act, in order to afford him a pretence for wreaking his malice. As, where A. and B. haying fallen out, A. fays he will not ftrike, but will give B. a pot of ale to touch him ; on which B. ftrike* A. and A. kills him : this is murder. And in all cafes of provocation, in order to extenuate the offence, it muft appear that the party killing acted upon fuch provocation, and not upon an old grudge ; for then it would amount to murder. Gore. The gentleman has ftated and laid down principle* 1$ TRIAL OF T. O. SELFRIDGE, ESQ. which I fhalloppofe; and I may as well take the opinion of the Court now, as at any time hereafter. The gentleman has faid that on this Indictment he fhall offer evidence to fhew, that there was that fort of malice, which is defcribed in the crime of murder. He has dated that by entering into the converfation and antecedent cir. cumftances, he will be able to prove there was a previous malice, and that thofe circumflances and malice, amount to the crime of murder j now the Indidmer.t being for manflaughter, negatives all idea of malice ; he therefore can give no teftimony on the ground of malice, as it does not comport with crimes ftated in the Indictment. It is confounding all rules of law, if under this Indictment for manflaugh- ter, he mould attempt to fet up a proof of malice ; to this point, I quote Hawkins, •fiook 1. chap* 30. " Homicide againft the life of another amounting to felony is either with or without malice. That which is without malice," I am reading now from the firft fection, " is called manflaughter, or fometimes chance medley, by which we underftand fuch killing as happens either on a fudden quarrel, or. in the commit. fion of an unlawful act, without any deliberate intention of doing any mifchief at all;" and in the fecond fection he goes on to ftate, " and from hence it follows, that there can be no aceeflaries to this offence before the fact, becaufe it muft be i^one without premeditation." Here is an exact definition of the crime of murder, corroborated by other definitions in the Books cited in the margin, which perfectly excludes all idea of malice. Therefore they cannot, under this In- dictment, attempt, according to any rule of law (that I know of,) to 'prove malice in my Client, for it would make a diftinct crime, differ- ent from that with which the Defendant is charged. Sol. Gen. I had no inducement to make this ftatement to the Ju- ry, or to intimate the nature of the evidence I fhould offer, but that of doing what I apprehend to be my duty. I ftated that it was impoffible for me to anticipate on what grounds the defence would be placed ; but if it fhould turn out that the Defendant is not guilty of the crime of manflaughter, according to the technical defini. tion of that crime, becaufe the evidence may fhow that it was either murder, or may tend to prove it juftifiable felf defence ; in the firft cafe, it is clearly law, that if, on an Indiftment for manflaugh- ter, the evidence fhould fhew the crime was murder with malice, the Jury would be juftifiable in convicting him at leaft of manflaughter. The reafon upon which I bottom this opinion is, that they being judges of the fafts, and of the law as it applies to thofe facts, they are competent to the decifion, and they will finti. themfelves tvarranted in fo doing by the opinion Judge Holt delivered in Maw- gridge's cafe, reported by Kelyng, page 125. The principle I lay down, was then recognized, and on the. authority of that cafe, I ground myfelf on the prefent occafion. Holt then, after fpeaking of hpmicide or manflaughter, fays, TRIAL OF T. O. SELFRIDGE, ESQ. W " The killing of a man By aflault of malice prepenfe, hath been, allowed to be murder, and to comprehend the other two inftances." Parker J. I fee no reafon to doubt that principle. M the evi- dence proves the Defendant guilty of a higher crime than that with which he ftands indicted : for example, if they prove him guilty of murder, it is competent to the jury, to find him guilty of manflaugh* ter, for which he is indicted. «- An. Gen. The books are fo full on this' point, that it is utmecef- fary to trouble the Court with the recital of them. Dexter. I wifh to know what is precifely the queftion, and to what point it is neceffary to turn our attention. If it be true, that the whole queftion before the Court and Jury, is whether the fame evidence can be given on a trial for manflaughter as on an in- dictment for murder, and it be decided that it can, it appears to fol- low that the caufe is to be tried on principles on which there can be no legal decifion ; if we are to try on the prefent occafion for mur- der, the Jury cannot convict nor acquit. It feems to me clear law that no cafe can be decided, but that which is in iffue. The Indictment is for manflaughter ; the definition of this crime is that it muft be committed on a hidden, without malice. If malice aforethought be proved, then no part of the definition is fubftantiat- ed. We cannot have come here to defend what we are not charged with. We have no objection to go into every fact anterior, but we ought to have had an opportunity to know of this, and of what was intended by the profecution, and further we ought to have known of it legally, that is by the Indictment. The Defendant is not prepared to meet fuggeftions of malice. We are not willing to exclude any facts, but the truth is, that not expecting a charge of this kind^ the Defendant is not completely prepared ; we do not wifh to efcape from the offence, if it be one ; but it ought to have been defcribed with technical precifion. We infift that it has not. The authorities exclude malice and premeditation, and we cannot be prepared to meet them, nor is It competent for the Government to fhew them, nor is it incumbent on us to prove that they were not in exiftence. Parker J. There is no definite motion before the Court ; the obfervations now made, arife from what the Solicitor General expect- ed to be able to prove. I Underftand, that he expected to fhow a previous preparation, and that what was done by the Defendant wai not to prptect himfelf from attack. Whether the offence was man- flaughter or excufable homicide, depends perhaps on the instrument that was employed, the opportunity to conceal it, whether he carried it before him, or whether he took up a flick in the ftreet to defend himfelf. The object of the Solicitor General was to fhew whether it was merely in defence of himfelf, or whether there was any previa ous malice ; it appeared to me proper to go into evidence to that effect. 18 TRIAL OF T. O. SELFRrDGE, E8Qs Attorney General. There are feveral authorities to fhow that this may be done. Dexter. There is but one, and that is from an opinion of Holt's. Parker J. I ftate this, that if from the evidence admitted, and kid before the Jury, they fhould be of opinion that the crime was of a higher nature, the fame facts would prove manflaughter was com- mitted. I believe there can be no doubt of this. Dexter. We do norhold as law, that if the facts come out to prove this offence to be an higher crime than manflaughter, the Jury are to acquit. Att. Gen. If by excluding evidence that would fhow a previous defign, they can get rid of this Indictment, it would amount to fay- ing, if it be proved that he was guilty of murder, he fhall not be found guilty of manflaughter. Sol. Gen. I was reading to you, Gentlemen, a paffage from the fame authority which occupied your attention when I was interrupted ; it was from Eaft's Pleas of the Crown, feet. 23, p. 239. " And in all cafes of provocation, in order to extenuate the offence, it muft appear that the party killing acted upon fuch provocation, and not upon an old grudge ; for then it would amount to murder." And in the next feet. 24, he proceeds, " But there is another clafs of cafes, where the degree or fpecies of provocation enters not fo deeply into the merits of them as the foregoing ; and thofe are, where upon words of reproach, or, indeed, any other hidden provocation, the parties come to blows, and a combat enfues no undue advan- tage being taken or fought on either fide : if death enftie, this amounts to man- flaughter." The application of this rule will be to that part of the cafe, by which it will appear that the Defendant took an undue advantage, by being fecretly armed ; a fact, of which the deceafed could have had no knowledge at the time. I fhall therefore next read the latter part of fection 30, from the fame chapter, page 251. " It has been fhewn, that fuch malice will be prefumed, even though the act be perpetrated recently after the provocation received, if the in- ftrument or manner of retaliation be greatly inadequate to the bffence given, and cruel, and dangerous in its nature ; becaufe the law fuppofes that a party capable of acting in fo outrageous a manner upon a flight provocation muft have entertained at leaft a general, if not a particular malice, and have before determined to inflict fuch vengeance upon any pretence that offered." I will now beg leave to ftate part of fection 44, of the fame chap- ter, page 272. " A man may repel force by force, in defence of his perfon, habitation, or property, againft any one who manifeftly intends or endeavours by -violence, or furprife, to commit a kno-um felony, fuch as murder, rape, robbery, arfon, burglary, and the like, upon either. In thefe cafes he is not obliged to retreat, but may purfue his adverfary until he has fecured himfelf from all danger ; and if he kiU, 1»im in fo doing, it is called juftifiable felf defence." TRIAL OF T. O. SELFRIDGE, ESQ. If The next authority, which I fhall afk your attention to, is in lection 47, page 246. " In another cafe, however, where the affault, though a very violent one, was plainly with a view to chaften the party for his mifbehaviour, and there appeared no intent to aim at his life ; his killing the affailant was holden not to be lawful or excufable under the plea of felf defence. That was Nailors cafe, tried before Holt C. J. Tracy J. and Bury B. The prifoner, who was in- dicted for the murder of hit brother, appeared to have come home drunk on the night the fact was committed : his father ordered him to go to bed, which he refufed to do ; whereupon a 9cufHe happened between the father and fon. The deceafed, who was then in bed, hearing the difturbance, got up, threw the prifoner on the ground, and fell upon him, and beat him, the prifoner lying upon the ground, with his brother upon him, not being able to avoid his blows, or make- any efcape from his hands. And as they were driving together, the prifoner gave his brother the mortal wound with a penknife. As a conference of all the Judges after Michaelmas Term, 1704, it was unanimoufly holden to be manflaughter ; for there did not appear to be any inevitable neceflity, fo as to excufe the killing in that manner. The deceafed did not appear to have aimed at the prifoner's life, but only to have intended to chafh'fe him for his mifbe- haviour to his father : and to excufe homicide upon the ground of felf defence, there muft always appear to have been fuch a degree of neceflity as may rea- fonably be deemed inevitable. At the conference in the above cafe, Po-well, J. put the cafe : If A. ftrike B. -without any -weapon, and B. retreat to a wall, and then flab A. that will be manflaughter ; which Holt, C. J. faid was the fame as the principal cafe : and that was not denied by any of the Judges. For it can- not be inferred from the bare act of ftriking -without any dangerous -weapon, that the intent of the aggreflbr rofe fo high as the death of the party ftricken: and withotit there be a plain manifeftation of a felonious intent, no affault, however violent, will juftify tilling the affailant under the plea of necefEty." And in the fame fection it is further laid down, * " In no cafe can a man juftify the killing of another under the pretence of neceflity, unlefs he were wholly without any fault imputable by law in bringing that neceflity upon himfelf." The next fection I fhall read is fection 51, page 279. This fection contains a rule and principle directly applicable to the pref- ent cafe, and the moft important diilinction you will have to take into consideration in this trial. I therefore afk your particular ati tention to it. " It has been fhewn that where death enfues from a combat on a fudden quarrel, without prepenfe malice, fuch act amounts but to manflaughter; being attributed to heat of blood arising from human infirmity." I prefume it will be impoffible for the Defendant's Counfel to place his defence on flronger grounds than the one in this rule. Now the authority proceeds, that in this neceflity, which you will proba- bly find to be the precife cafe of the Defendant. " In order to reduce fuch offence from manflaughter to felf defence upon chance medley, it is incumbent on the Defendant to prove two things ; 1 ft, that before a mortal ftroke gives he bad declined any further combat, and had re* SO TRIAL OF T. O. SELFRIDGE, ESQ. treated as far as he could with fafety ; 2d, that he then killed his adverfary through mere neceflity, in order to avoid immediate death." And here you obferve it will be a faft of inquiry whether the Defendant declined the combat and retreated as far as he could with fafety, and then killed the deceafed through mere neceflity, in order to avoid his own immediate death. If the fafts fhould turn out to be fuch that the Defendant cannot juftify himfelf on one or other of thefe principles, fo long as they remain the rule of law, the De- fendant muft be found guilty. Parker, J. There is a natural exception to that rule, which you will find in the book you have read ; it is, that if the retreat would be fuch as would caufe his own death, then the retreat is not neceffary. Sol. Gen. That forms a part of the rule itfelf, and is not, I pre- fume an exception to it. I fhall read fome authorities to that by and by, and will not trouble you any farther, except for the purpofe of reading part of fection 55, page 285 : " As to the other point to be eftablifhed, namely, the exiftence of the necefli- ty under which the party killing endeavours to excufe himfelf, he can in no cafe fubftantiate fuch excufe if he kill his adverfary, even after a retreat; unless there were reafonable ground to apprehend that he would otherwife have been killed himfelf. And therefore where nothing appeared in Nailors cafe above- xoentioned, to fhew that the deceafed aimed at the prifoner's life ; although he held him down on the ground, beating him, and the prifoner could not avoid his blows, it was ruled manflaughter." That is ihe rule to which your Honour referred. The author proceeds : " It is to he noted in that cafe, that the prifoner ftruck the mortal blow with a penknife, which was a dangerous^ mifchievous weapon ; from whence it was to be prefomed, that he intended to rid himfelf of the chaftifement which his brother was then inflicting on him, by his death. Mr. Juftice Fofter, in alluding to this cafe, feems to lay a ftrefs upon the want of an inevitable necellity, fo as to excufe the killing in that manner? ' Thefe principles you will find have a direct application to the prefent caufe ; the books which contain them will be adverted to in the courfe of the trial, by thofe gentlemen who follow me. I will only read a paffage from Fojler's Crown Law, and then pafs to one or two other authorities j and that will be all that if,neceffary in the opening. I do this for your information, by which you can apply the evidence more correctly, and alfo to advertife the Defend- ant's Counfel of the books we fhall rely on to eftablifh, that the Defendant muft be convicted of the crime for which he Hands in- dicted. The firft I fhall now read, is from Fojler's Crown Law, page 255 : " In every charge of murder, the fail of iilling being frfl proved, all ths^ •irsumftances of accident, neceflity, or infirmity, are to be fatisfa&ority TRIAL OF T. O. SELFRIDGE, ESQ. 21 proved by the prisoner, unless they arise out of the evidence produced against him ; for the law presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it is, that the law should so presume. The defendant, in this instance, standeth upon just the same foot that every other defendant doth: the matter tending to justify, excuse, or alleviate, must appear in evidence before he can avaii himself of them." There is a case, 1 st. Hale's History of the Pleas of the Crown, page 479. It contains a single sentence only, and very short, but which appears to me directly applicable to the present case. It is this: " A. assaults B, and B presently thereupon strikes A without flight whereof A dies ; this is not manslaughter in B, and not se dejendendo." He furtherr adds, in page 480 : " Regularly it is necessary that the person that kills another in his own defence, fly as far as he may to avoid the violence of the assault before he turn upon his assailant ; for though in cases of hostility between two na- tions, it is a reproach and piece of cowardice to fly from an enemy ; yet in cases of assaults and affrays between subjects under the same law, the laws own not any such point of honour, because the king and his laws are to be the vindices injuriarum, and private persons are not trusted to take capital revenge one of another." One or two other passages in Hawkins, are all that is necessary to trouble you with in opening and stating the law on the subject. In 1 st Hawkins* P. C. chap. 28, sec. 25, page 109, there is a sen- tence which has a remarkable degree of applicability to the present case: " However, perhaps in all these cases, there ought to be a distinction between an assault in the highway and an assault in a town. For in the first case itns said, that the person assaulted may justify killing the other, without giving back at all; but that in the second case, he ought to re^ treat as far as he can without apparently hazarding his life, in respect of the probability of getting assistance." You will recollect, gentlemen, the scene whefe this tragedy was performed, and will recollect from that scene, from the circum- stances, situation, and possibility of assistance, how immediately applicable the quotation is to the present case. tene other authority I shall adduce, which will have a reference to the Defendant's being master of his temper and in possession of his mind ; it is from page 123, chap. 31, sec. 23 of the book last cited: " And whenever it appears from the whole circumstances of the case, that he who kills another on a sudden quarrel, was master of his temper at the time, he is guilty of murder; as if after the quarrel he fall into other discourse, and talk calmly thereon j or perhaps if Jie have so much consideration, as to say, that the place wherein the quarrel happens is not convenient for fighting ; or that if he should fight at present, lie should have the disadvantage by reason of the height of his shoes, &c." D 22 -TRIAL OF T. 0. SELFRIDGE, ESQ These are the cases and" principles which I consider to have a direct reference to the nature of the cause you have to determine. 1 have now stated the facts, and the only remaining duty for me to perform is to call the witnesses to prove them. But before I do that, I will give you the usual evidence of the death, or first fact—- this I shall do by the inquisition taken by the coroner's jury. Dexter. We object to the reading of that. Sol. Gen. I read it merely to prove the fact of the death of the deceased. Parker J. I never knew it used, but as I have not been much conversant in trials for homicide, I may perhaps be mistaken. Att. Gen. It lias been the practice to use it. Gore. It was ten days ago attempted and rejected. Parker J. I do not recollect that circumstance. Att, Gen. It has been used as evidence of the death, and this before the revolution—it was done in the case of the British soldiers, and there admitted to prove the fact of the death—and it was re- cently offered in the case of Fairbanks of Dedham—it was there objected to and allowed by the Court. Dexter. If limited to that simple object, of merely proving the death, we shall not object to it. Att. Gen. We will go so far as to leave out the words killedand murdered. Solicitor General was then about to read the inquisition, but was interrupted by Dexter. We are unwilling to be troublesome, but we are told by some of the gentlemen of the bar, not now engaged, and who were engaged in the case of Hardy, that the same evidence was offered the present term and rejected by the Court. Blake as amicus curiae. I recollect the objection, and that I made the motion to reject the evidence, and whether the Court decided against it or not, or it was withdrawn, I cannot tell, but I recollect it was not read. Dexter. Mr. Otis recollects that it was not read ; and further.; that the Chief Justice overruled it; but if offered for no other object? than to prove the death of the deceased, it is really unimportant; there must, we think be some other design in offering it, and therefore we object to it. Parker J. I really should think it, were there other evidence of the fact of tlie death, very important, because it might prejudice the minds of the Jury on the subject ; have you not plenary evi- dence of another sort ? Sol. Gen. Yes, but I do it as being the course of the Court, and have no view to create an impression on the minds of the Jury ; we had agreed to leave out all those words which might have had that effect, and to read it merely to show that the death was occasioned by the injury received from the discharge of the pistol. TRIAL OF T. O. SELFRIDGE, ESQ. as Att. Gen. Yielding points will be construed into authorities; if this is evidence to prove the death, we have a right to it, and are not obliged to wave it, the idea of rejecting it because no better is offered is not law ; it is eilher evidence or not, if evidence, then it may be read, if a thousand witnesses to prove his death should be called they may not be believed, or may be discredited ; the ques- tion is whether it be law, that tl e*inquisition is to be read, to prove the death ; if the Court say it is not to be read, then I shall never offer it in any other case, except before a full Court to obtain their opinion. Dexter. I stopped in my objections because I understood that it was the invariable practice to read it, for we want no law that is not to apply in every other case ; but if, in a recent instance, it has been rejected, we are at liberty to investigate the principles on which its admissibility is attempted to be supported. It is the ver- dict of a Jury in the nature of an inquest of office, where the party charged has no opportunity of examining witnesses ; of being heard by himself or counsel; no Judge to lay down the law or instruct the Jury as to the nature of the offence : is it consistent with gen- eral principles that such a piece of testimony should be admitted as evidence? If then there be no usage for it, and general principles are against it, it is clear that it ought not to be received. Att. Gen. We can show from the authority of Hale, and Haw-' _ kins, that it is admissible. Parker J. As the practice has been, as stated, both ways, I should like fo hear some authorities upon the subject. Ait. Gen We will produce the authorities at another stage of the trial, if they should be necessary. Sol. Gen. We wave reading the coroner's inquest for the pre- sent, and now proceed to call our witnesses. Doctor Thomas Danforth—Sworn. Sol. Gen. Doct. Danforth, I understand you examined the de- ceased, and the wound of which he died; describe what you saw on that occasion. A. I was desired on the 4th of August, by some person, I do not know who, to step into the shop of Mr. Townsend, and there I saw the body of a dying man, laying on his back ; I asked where was the wound ? but the confusion of the by-standers would not let me see. The shirt was torn down and the neckcloth taken off when 1 discovered a wound a little below the left pap, the pulse was gone, there was yet a natural heat on the skin, and I thought some slight remains of life, but no respiration. I waited about a minute, when I noticed the body to give the last gasp, immediately after which it expired. I then proceeded to examine the wound, and introduced my finger into it, and noticed that the fifth rib was cut, this I knew fro'm the gritty feeling of the bone ; at the same time Doct. Jarvis came into the shop. I took up a small hammer, and TRIAL OF T. O. SELFRIDGE, ESQ. passed the handle of it about three inches into the wound ; I might have gone further, but I saw the direction was such that it nust have passed through some principal blood vessel; the wound was upward.and on withdrawing the hammer the blood flowed very freely from it; every circumstance satisfied me that he died of that wound. Parker J. Did you know the person ? A. I did not at first. Q. When did you recognize him to be Mr. Austin ? A. I found it was a young man described to be a Mr. Austin3 but I did not know him at first—I instantly after, however recog- nized him. Sol. Gen. Did you ascertain the direction of the wound ? A. Yes—It was oblique and diagonal with the trunk of the body, inclinging upwards towards the right side ; it must have pass- ed through the lungs, but not the heart, for it lodged above it. Parker J. Have you any doubt of the death being occasioned by that wound ? A. Not the least in the world. Sol. Gen. From the best opinion you can form, of the nature of that wound, are you of opinion which it would produce—instant death, or a temporary suspension of muscular power. A. It is a nice question, which cannot be answered definitively or directly ; we judge frequently from circumstances which have occurred—I should say, that the immense flow of blood would have produced syncope, and death; a wound of a large blood vessel might not be attended with instant death, but would produce syn- cope, and death afterwards. Sol. Gen. Is it your opinion then, that if the ball had pierced the heart of the deceased, he would have retained muscular motion, or not? A. None of the cavities of the heart could have been pierced, as no muscular action could take place after wounding a large vessel of the heart. Att. Gen. Must not a wound of the kind of which the deceased died, produce spasm ? A. A momentrry one, a sort of convulsive action, but it must be involuntary. James Richardson, Esq.—Sworn. Sol. Gen. Please to state to the Court and Jury what conversa- tion passed between the Defendant and you on the fourth of August last, immediately preceding the death of Mr. Austin. A. I was in his office some little time before the event happen- ed ; he gave me some short account of the cause of the controvert sy between him and Benjamin Austin— Parker J. You need not state that. TRIAL OF T. O. SELFRIDGE, ESQ. 25 Gore. We wish to take the opinion of the Court on the testimo- ny of this witness. I was g6ing to observe that it would be im- proper to go into evidence to prove malice, which I understand from the beginning of this evidence it was meant to establish, when from the definition given of manslaughter, the crime with which the Defendant is charged, there can be no malice. Parker J. State the facts that are meant to be proved by this witness, as I cannot pretend to judge of the tenderxy oi the evi- dence until it is heard. Gore. We understand it is meant to . prove the disposition with Which Mr. Selfridge went upon the Lxchange Sol. Gen. We shall prove a conversation which passed about two minutes before he went on 'Change, and three or four before lie gave the mortal wound ; in which he st .ted to the witness "hat every body who knew him, knew that he was a nvtn of rot a strong habit of body ; that he was a weak man, and not fit for bullying or fisticuffs ; that this succeeded the statement of a con- troversy between the Defendant and the father of the deceased. Att. Gen. Something further may perhaps be shown. I think he testified before the Grand Jury, that he saw an advertisement in the paper of that day, signed by Mr. Selfridge in which very abusive language was used against Mr. B. Austin, calling him a liar, coward, scoundrel, 8tc. that he went into the office of Mr. Selfridge and entered into a conversation with him of this nature ; that Mr. Selfridge told him, he was informed that B. Austin would lick him or get some other person to do it, that he could not make his way good by fisticuffs but was prepared in another manner, that the witness went out about one o'clock, and that Mr. Selfridge followed him out, and that within two or three minutes he heard the report of a pistol, and found that Austin was killed. We offer his testimony to prove that this was not done on a sudden occasion, but that the Defendant intending to destroy the life of B. Austin, the father of the deceased, or that expecting to meet some one on the "Change employed by him, or B. Austin himself, the defendant went out with a pistol concealed in his pocket meaning to kill some person, but shot the young man. Unless the Court is of opinion that the position of the opposite counsel be correct, that we can- not offer evidence to prove malice, because it would swell the crime into murder, but if the Court are of opinion that any thing may be shown to prove that the killing was unlawful, then we propose to show what took place before. Gore. Then from the opening it is plain they mean to prove premeditated malice, which would be murder; if they can do this, it would aggravate the offence to murder, whereas manslaughter is without malice or premeditation. We have shown that without confounding all distinctions they cannot be ad- 26 TRIAL OF T. O. SELFRIDGE, ESQ. mi tied in this case to introduce this evidence, as it would go to prove a crime for wJiich the defendant is rnot indicted, and against which he is not prepared to defend himself, it wovdd be bringing up, a quantity of evidence not relevant and therefore we object. But if they wish to enter into all antecedent circumstances we are ready to do so, though it would protract the cause by evidence not pertinent. Att. Gen. We have now'some authorities if the Court wish to hear them, to show that we are correct in offering this testimony. Parker J. I wish to decide rightly, and therefore wish to hear any authorities which apply to the question. The present question is whether witnesses shall be permitted to testify to conversa- tions immediately preceeding the attack. Att. Gen. If that is the question, I will not trouble the Court with any authority, but we are ready if required. Parker J. So far as I see there is no impropriety in going into the conversation, because whether the killing be manslaughter or in self-defence, will depend upon the nature of the instrument the party used, and a variety of other circumstances, anterior to the killing ; but as to any preceding circumstances, which did not take place immediately before the act, it is not necessary now to decide on their admissibility. Att*. Gen. Though before the Grand Jury circumstances were given in evidence which happened seven or eight days before the fact, and some of them favorable to the prisoner, and though there are more for than against him ; yet we (as this cause is of importance,) should make no objection to any thing that he might offer. Parker J. I cannot admit evidence not applicable, though it be agreed to ; I cannot go into facts that have no legal bearing on the cause, therefore the testimony must be confined to what immedi- ately preceded the event. Dexter. We wish to draw aline ; we really want to know how far, in the opinion of the Court, a matter previous to the affray, which proved fatal, but not a part of the same transaction, is ad- missible or not. We are content with the proposal of the Attor- ney General, and would prefer it; but if the evidence to be given in behalf of the government, be of that nature which constitutes no part of the offence, as we conceive (unless malice be a part of the offence which the law has determined it not to be, because it must immediately precede the transaction) it becomes important to know how far we may go under this principle. This will be found to be connected with something immediately before; and may we not explain that by something that was previous ? And may we not go on and-show the whole truth ? or must not the whole be rejected? We know not where we are to stop ; we ask for in- "v.-matfon ; what we are to do ? Our apprehension is, but per- TRIAL OF T. Q. SELFRIDGE, ESQ. 27 haps we are mistaken, that it was clearly settled in law, that man- slaughter was so perfectly unpremeditated, that there could not be an accessary before the fact.* Now let us suppose a case, that the witness had brought the defendant a pistol lor the purpose of going into State-street, and had gone another way, the witness would not have been an accessary before the fact ; because this being a crime in its nature and definition which has nothing relative to what preceded the fact, nothing can be admitted anterior, un- less it formed a part of that transaction itself; and when we have left this strict ground of law, I know not where we are to stop. And if we go buck, we must retrace the injury to the de- fendant ; and if we go on link by link, it will be found greatly to his advantage. Certainly that ought not to be introduced which is against him, and that which is for him excluded. Att. Gen. I do not wish to wear away the day about this evi- dence, if the Court are at all desirous of retracting their opinion, it may deaide the whole question by one opinion on this head. I have no feelling on this occasion, but what I think I should have had if the deceased had killed the defendant, and therefore I shall urge nothing, which I would not in another case ; but it is best that justice should be done, and that (if possible) on so broad a basis, as that no mis.take or error might happen. In this case jus- tice cannot perhaps be done as in common and ordinary cases.— Had this been an indictment for murder, the objection coidd not • have taken place. Had it been for murder, we must have had three judges on the bench, and not have cast on your honor alone the burden of this cause, so important to the defendant and the public. On an indictment for murder, the defendant might have been found guilty of manslaughter, or of no crime. This is the first instance, where a Grand Jury has usurped the authority of de- ciding i*n a private room such a question in the fit st instance.— The questions proposed by the court and gentlemen of the oppo- site side, are different. I have had some idea or hint given me, that the subject matter of the objection, would be a principle of the defence throughout the whole cause. I thought the authorities against it; 1 did not conceive there was any foundation for it. To admit that no evidence can be given which would prove him guilty of murder, would, under this midctment, be a new decision. In- deed neither in practice or in any of the books, is there any thing- like it; there is no precedent of any thing similar ; but in mam- cases that have occurred, where the evidence has turned out (though the indictment was for murder) to be only manslaughter, ihey have on the indictment for a high crime, found the defend ant guilty of a lesser. Every day's practice will support the po- sition I maintain, the reason why evidence of a higher crime- may be given on the present occasion is, that if murder be proved, the Court can infhV no higher punishment than for manc-l3u»»-h-- 28 TRIAL OF T. O. SELFRIDGE, ESQ. ter. If it be said, that if the. defendant be found guilty of man- slaughter, it would cast a reproach on his character. It is no reason why, if guilty of murder, he, should escape, it is clear that this indictment will be a bar, whether found guilty or not, to any other indictment for the same offence ; then what is the conclu- sion from the objection—that if the evidence tend to prove murder, (a higher crime) it must be rejected, and that the Grand Jury, having, without application to the court for instruction, found a bill for manslaughter ; therefore the defendant cannot be convicted of it, though the evidence show it to be murder. If this be a legal argument, then I say, that thirty years practice in courts of jus- tice, have only made me ignorant of the law. In 4 Blackstone's Com. p. 329 it is expressly said, that a plea of former acquittal is a bar to a subsequent indictment. " Special pleas in bar, which go to the merits of the indjctment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alledged. These are four kinds : a former acquit- tal, a former conviction, a former attainder, or a pardon. There are ma- ny other pleas, which may be pleaded in bar of an appeal; but these are applicable to both appeals and indictments. " First, the plea auterfaits aequit, or a former acquittal, is grounded on this universal u 'iximof the common law of England, that no man is to be brought into jeopardy of his life, more than once for the same offence. Andhence it is allovved as a consequence, that when a man is once fairly found not guilty upon ai.y indictment, or other prosecution, before any Court having competent jurisdiction of the offence, he may plead such ucquittal in bar of an> subsequent accusation for the same crime. There- fore an acquittal en an appeal is a good bar to an indictment of the same offence. And so also an acquittal on an indictment was a good bar to an appeal by the common law.'' In this cause, as the evidence has been opened by the Solicitor General, is exptcted to be shown by Mr. Richardson, that a few minutes before the fact happened he was in the Defendant's office, and he informed him that he expected a fracas with the de- ceased's father, who said, that he would employ some person to lick him, and he went out, and that the Defendant went out a few minutes after, prepared, not to fight with fisticuffs, but with a pis- tol, which he must have had in bis pocket at that instant, and drew it out and shot the deceased on an attempt to assault him ; and we shall prove that be knew him. and that he shot him as a person employed by the deceased's father to chastise him. The business of the present trial, is not to say that it is murder; the business of the Defendant may be, to say so, but it ought to be, that it was homicide to save bis life. But this the books say, that if he means to justify from provocation, he must not himself pro-* cure or seek the quarrel; but if the evidence be, that he went on 'Change to seek a quarrel, and that when he went there he was not under the necessity of killing for the purpose of defending himself to save his life it must be manslaughter b^c^use the description TRIAL OF T. O. SELFRIDGE, ESQ^ 29 in the books is, that when he does so he must have no chance to re- pair to the laws of his country for redress ; and the case put and read as to killing in the highway wheie it has been manslaughter, means when the country is not thickly inhabited and no person to assist, but if he went out in order to be his own defender, and would not apply to a majestrate or to another who stood by, shall it be said that this is a sudden affray, and one which he did not expect. This evidence is offered merely to show, that this was not a sudden affray, in which the killing was necessary in self- defence, but that the Defendant stept over the laws of his coun- try, threw aside that protection which the laws of civil society would have given him, and went out to seek a combat. But if it be said, that no evidence will be received, though agreed to, if illegal, I have oialy one observation to make, that before the Grand Jury, all the transactions were gone into, therefore, I shall make no objection to them now. Dexter. Will you be so good as to let me see the authority from Kelyng, 131. Solicitor General. The case I referred to I find on inspection was on the statute of stabbing, and not for murder, as I imagined. Yet the principle I contended for, of omne majus in se continet minus is contained in the case. I thought it was an indictment at Common Law, but it was not. " There has been another ca>e which I fear hath been the occasion of some mistake in the decision* of questions of tnis kind. Jones 4juJ, I>. Williams' case, he being a Welc.liman, upon St. David s day, having a fleek in his hat, a certain person pointed to a Jack of Lent that hung, up hard by, and said to him, look upon your countryman ; at which iJ. Williams was much enraged, and took a hammer that lay upon a stall hard by, and flung at liini, which missed him, and hit another and killed him. He was indicted upon the statute of stabbing. tiesoUed, he was not within that statute, but guilty of manslaughter at Common Law. J conceive with that judgment. that it is not within the statute of stabbing, for it is. not such a weapon, or act that Is within that statute, neither could he be found guilty of murder, but only of manslaughter, for the indictment was for no more. But if the indictment hud been for murder, I do think that the Welrhtnan ought to have been convicted thereof, for the provocation did not amount to that degree as to excite him designedly to destroy the person that gave it him." Dexter. I had some idea of making a few observations. I was about to say, that our motives will not be thought improper when it i-s recollected, that the only effect of excluding illegal testimony would be to prevent the necessity of moving for a new trial ; cer- tainly it is for pur interest to take the chance of an acquittal, and rely on a motion for a new trial if convicted • therefore it will ap- pear that we can be influenced by no motive but to prevent a new trial, if we are right. Attorney General. ' There must be another motive, for it is clear the verdict for the Defendant, though on improper testimony, would be final against the Government. Parker J. 1 am aware of that, and therefore should be for ad- mitting the testimony, becau e the Defendant cannot be injured by it, but the Government is conceded. 32 TRIAL OF T. O. SELFRIDGE, ESQ_ 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 believe 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 con- troversy, and gave me a detailed account on what it was ground- ed, 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. Ait. Gen. 'A'hat were the precise words he used in speakhig 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 DefenJant say any thing about arms ? A. Be 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. Gen Which way did you go when you left the Defend- ant's offic ? A. 1 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 ;eport within four minutes after I left Mr. Self- ridge in his office. T. 0. Selftidge. Might it not have been longer ? A. i do not think it was. Cross Examined. Gore. Did not Mr. Selfridge tell you that he had used all pos- sible means, and gone all lengths, to effect an accommodation with Mr. Austin ? A. >le staled to me that he had had an application fiom a tav- ern keeper to biingan 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, how- ever, insisting upon it, the writ was at length issued ; and that Mr. .13. t\ ustin had told some persons that there would net havj been any thing done about the business if it had not been for the inteiference of a damned federal lawyer. He said that he had Austin in his power ; that he could prove that he h^d 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. Gere. Lid la tell you whether any body applied to Austin a- bout it ?. TRIAL OF T. O. SELFRIDGE, ESQ^ 33 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 ver- bally 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 aspersion to the same individuals before whom it was made ? A. I understood he was to contradict it to the same individuals. T. 0. Selfriage. Did 1 not say that if he would recal his ex- pressions, I would be satisfied ? A I do not recollect. I did not endeavour to fix the partic- ulars in my mind. T. 0. Selfridge. Did I not say that I had ordered the publica- tion 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 1 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 clas'smate 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. 0. 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 ihat 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 i> jury of which he complained ? A. I do not think he mentioned any thing of that kind to me. T. 0. Selfriage. Did I show any symptoms of a vindictive tem- per during that conversation ? A. No ; you were calm and cool ; at least I saw nothing lik« ill temper in'cither your words or manners. 34 TRIAL OF T. O. SELFRIDGE, ESQ^ Perjamin Whitman, Fsq. Sworn. Sol. Gen. Relate the conversation which passed between you and the defendant previous to the death of Chares Austin, on the 4th of August last. Whitman. In the morning of that day, I bad seen the two pub- lications in the papers, one in the Chronicle, the other in the Ga- zette—one signed T. O Selfridge, and the other B. Austin. At the usual hour of going on the exchange, passing Mr. Selfridgc'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 stcod with his hands folded. When 1 got up to him, 1 asked him how he and B. Austin came on. He smiled and made this reply—1 under- stand 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 cool1 and hacj 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 de= fence he meant to use ? A. He did not. I passed on, and walked pretty direct to the head of the exchange, near Mr. TownsenJ's shop, when stepping up on the pavement, I heard the report of a pistol. Turning my- self instantly round, I saw a person in the act of striking a blow with a cane. The cane was elevated, but whether striking, or re- covering from a blow struck, I cannot say positively. 1 he de- fendant's position was inclining backwards : he seemed to me to be regaining a perpendicular posture, which he had lost as it we;e by a retreat. I saw the smoke of the pistol about breast high. The pistol itself was not raised higher than his chin. 1 saw a num- ber of blows struck at him with the cane ; I think as many as four. They grew fainter in succession. 1 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, I suppose from supporting the deceased when falling. Soon af- ter this, I saw Mr. S. standing near the spot where the rencoun- ter took place, a great crowd gathered round him. oome persons cried, Who is the damned rascal that has done this ? 1 heard Sel- fridge say, I am the man, or I have killed him. He retired soon afterwards, but which way I do not know. 1 had some conver- sation afterwards with Judge Paine and Dr. Jafvis. Sol. Gen. How neai were the parties together when the ren- counter happened. A. Within the reach of each others han :s. Gore. Did you see that the Defendant's head was wounded ? ,J. About two hours after, 1 saw Mr. Selfridge, lu had a wound TRIAL OF T. O. SELFRIDGE, ESCT 35 on his head and a.other 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 w?.s broken. T. 0. SelfUge. 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, an J was broken across the top about two inches in length, when I saw it. This was two hours after the affray. Parker J. 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 w th a white lining > A It was a Mack hat, but I do net recollect the lining. Jamet Richardson, Esq. called again. Dexter. Did Mr. Selfridge tell you it was his custom to go arm* ed, or prepared to defend himself, on account of his'debility ? A. I do not recollect any thing that passed, which led me Co suppose him armed at that time. John M. 1 .ane—Sworn. S'A Gen. Phase to relate what you saw on the 4th of August last. A. A little after one o'clock on that day, I was standing at the d.jor of my shop, which is on the north side of State-Street. I was looking directly across the Street, and there saw the Defen- dant, whom I knew, standing on the brick pavement or side walk, in iront of Mr. Townsend's shop. His face w.s 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 cross- ed horizontally, the right arm being uppermost, and in that posi- tion he iired the pistol, which I saw just as it went off, at the de- ceased. He turned round instantly, and gave the Defendant sev- eral strokes before he fell. He was not more than a foot from the Defendant when the pistol was discharged. I saw the Defen- dant throw the pistol at the deceased, while he was striking—At that time blood wav issuing from his mouth - He fell and I saw no more of him—I did not go from my slup door. Major Mel- ville and a gentleman from Salem were in the shop at the time. Att. Gen. Were there many people in the .Street at the time ? A. There might be fifteen <-r 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. A.re you positive that the Defendant was facing you ? 36 TRIAL OF T. O. SELFRIDGE, ESCL A. I am positive. Dexter. Are you positive his arms were crossed at the time the pistol was discharged ? J. ,1 am positive he did not extend his arms. His right arm rested on his left when he fired the pistol. Edward Howe—Sworn. Sol. Gen. Mr. i owe, please to relate what you know respect- ing this transaction ? A. t a quarter past one o'clock on the 4th of August, I sat off from Mr. Townsend's shop in State-Street, with an intention of going home to dinner. Crossing the east end of the old Stare House, met Mr. Selfridge, at the d stance of about two rods from Townsend's shop. rie passed me about 3 feet off on my right hand. I took particular notice of him, having seen the publica- tion in the Chronicle of that morning. He h-.d on a frock coat, and his hands were behind him, but I am not ablfe 'o say whether they were out »ide of his coat or not. 1 passed on six or eight steps, when I heard a very loud talking behind rne. I turned im- mediately round, and the firlt thing I saw was Mr. Selfridge's hand with a pistol in it, and immediately the pistol was discharg- ed. The instant afterwaids, I saw the person, who had been shot at, step forward from the side walk, and strike Mr. belfridge sev- eral very heavy blows on his head. The blows were struck with so much force that I think, if Mr. Selfridge had not had on a very thick hat, they must have fractured his skull. He stood about three or four feet from the brick pavement or side walk, in.front of Mr. Townsend's shop, and vvas facing up the street. 1 saw the Defendant throw his pistol at the deceased, but I cannot say whe- ther it hit him 0. not, I saw it roll on the pavement towards Mr. Russell's door. Dexter. Was the Defendant standing in the position you have described, when you first noticed him ? A. I saw him but an instair, and do not recollect seeing him change his position. Gore. Had the deceased separated himself from the persons he was standing with, before the pistol was discharged ? A. The instant after the pistol was fired, the deceased sprang from off the brick pavement towards the Defendant and struck him as I have related before. Parker J. The fact of killing is sufficiently proved, it is not ne- cessary to examine other witnesses on that p n-. Att. Gen. If the Court are sstisfied, we will not consurre any further time, though we h ve a multitude of witnesses to establish the fact and manner of killing. Jchab.d Fr-st—Sworn. to'. Gen. Please to relate, &c. A. On the 4th of August la^t, between 1 and 2 o'clock, I was TRIAL OF T. O. SELFRIDGE, ESQ, ST itanding at the door of No. 75, State street, directly opposite Mr. Townsend's shop. I was looking at some gentlemen who were standing at the door of the Post Office, I heard the report of a pis- tol, and turning my eyes, saw the smoke, and at that instant the deceased was stepping from the side walk with his stick up. He struck Mr. Selfridge several severe blows on his head, and Mr. Selfridge either struck at the deceased with his pistol, or threw it at him: I am unable to say whether it went out of his hands or not. At this moment I saw the blood issuing from the deceased's mouth. I had seen Mr. Selfridge pass down the street immediately before I heard the report of the pistil. Cross examined. Dexter. How near was the Defendant to the brick pavement ? A. Within six or seven feet. His face was towards the Post Office. Dexter. Did you see either of the parties before the pistol was discharged ? A. I did not, but instantly on the report, I turned towards them. The blows with the stick and the throwing or striking with the pistol seemed to be at the same instant. T. O. Selfridge. When you saw me passing down the street, were my arms behind me ? A. I cannot say. 71 O. Selfridge. How far was the place where you first saw me going down street, from the place, where the pistol was dis- charged ? A. About a rod. T. O. Selfridge. Did you not see me retreat from the deceased, with my hands held up to ward off the blows 2 A. I did not. T. 0. Selfridge. Did I appear to press towards the deceased ? A. I think you did. Att. Gen. Were there many people on the exchange ? A. There were a good many, though I think not quite so many as usual, and they were principally below the spot. Dexter. When you first saw the Defendant, after the report of the pistol, in what position was his arm ? A. It was lifted and aiming a blow with the pistol at the deceas- ed, who was -striking with his stick at the same moment. The Counsel for the Government said they should stop here. Mr. Gore. May it please your Honour, Gentlemen of the Jury, Permit me to ask your candid attention and indulgence, while I address you, in behalf of the Defendant at the Bar, who stands charged by the grand Inquest of this County, with the crime of manslaughter. A patient investigation of the evidence, so far as is necessary to the attainment of truth.; a strict observance of the law of the land, as it is derived from the nature and character of man, as it is recorded in our books, as it has been invariably known and practised in all civilized countries, as well as in our own, and 38 TRIAL OF T. O. SELFRIDGE, ESQ. as it shall be pronounced to you by the Court, with a due regard to such arguments and observations, as may be founded in reason and common senst, uninfluenced by any considerations, unbiassed by any impressions, but what shall be imposed by the law and the tes- timony, constitute what I have a right to ask, and be assured, Gen- tlemen, notwithstanding the solicitude I may justly be presumed to feel on this occasion, it is all I have even a wish to attain. After the most mature reflection on this cause, (such as I trust it will appear to you, when the whole transaction is exposed) I can- not prevail on my mind to raise a doubt, as to the issue, however important that may be to the public justice of the country, and however interesting to the property, the freedom, and character of my client, provided the case be decided on its own real and intrin- sic merits. Yet I cannot but feel some apprehension, from the va- rious measures taken to pre-occupy the public mind, nor will it be surprising that I should be thus apprehensive, when you call to mind the cruel, illegal, and unjustifiable means, which have been resorted to, through the medium of the newspapers, to influence the judgment of all men, to inflame the passions, and cause such an agitation throughout this whole community, that its effect might be felt even here', where the rights of all require, that justice, as- sisted by the calmest deliberation, should alone preside. Whence should be banished every thing that can tend to move the passions, every thing that can disturb the judgment or excite the imagina- tion, where should be admitted no impression, but from the uner- ring voice of truth and of law, which are the same to all men, and on all occasions ; which bend not to the supplications of mere dis- tress, however extreme or deplorable, nor to the clamors of the few or the many, however overbearing in power, or terrific in threat, however eager and violent in their calls for the sanction of judicial authority, on their own wild and intemperate decrees. It will not be strange, that I should feel something even like dismay, when I behold the effect of this excitement in the im- mense multitude that crowd, that throng this place. Many doubt- less, are brought hither by the most laudable motives, to witness a process, the most solemn, in a case, affecting an individual in every interest, that can be dear to man, on this side the grave. If there be any who come here with other views, more or less exceptiona- ble, I am sure they have seen* nothing, and that they will see nothing in the conduct and decision of this cause, but what will convince them of this irrefragable truth, that the liberty, the life, the reputation and the property of every man, essentially and main- ly depend on the impartial administration of justice, and be assur- ed, Gentlemen, this is true at all times and on all occasions, what- ever passion, prejudice, or party spirit may whisper to the contra- ry, or attempt to urge as an exception. On the impartial admin- istration of justice,] I repeat, depend at all times, and on all occa- TRIAL OF T. O. SELFRIDGE, ESQ.V 3* sions, the liberty, the life, the reputation, and the property of man. In the very best times, it is the best reliance, and surest founda- tion for all the rights of all men. In evil times, which sooner or later befal every community, it will be found the only protection for the possessions of the rich, against the grasp of the needy, and the violence of the profligate ; the only safeguard and shield for the rights of the poor and oppressed, against the insolence of wealth and power. May wc not, then indulge the hope, that all men, of whatever sect or party they may be, persuaded of this truth, which will be the more apparent, the more it is reflected on, will bring to the altar of public justice, all their passions and their prejudices, a willing sacrifice for their own good, and'that of their country. From the nature and circumstances of this case, known as they were,or could have been, at the moment of this dreadful catastrophe, which we all deplore ; from the age, and relation of the deceas- ed to the cause of that fatal event, which is the subject of our present inquiry ; the most unfavourable conclusions were made against my client. The deceased was a young man, just emerging from a state of pupilage to that of manhood, glowing in all the bloom of youth, and pride of strength ; to behold him, of graceful and well proportioned form, of athletic muscle, and of nervous arm, in a moment, stretched lifeless en the ground, his heart's blood gush- ing in copious streams from his manly face and breast, called forth the commisseration and regret of every beholder. These feelings almost instantly changed to resentment against him, who was sup- posed to have done the deed ; for of the hundreds, I may say, thous- ands, who saw the last part of this tragic scene, there were not ten, perhaps not five, who saw the whole transaction, and witnessed the necessity imposed on the Defendant, a necessity, with which he could neither equivocate nor compromise, of preserving his own life, at every expense to him who assailed it. And yet even of i these, some, hurried away by the impulses of the instant, and catch- ing the contagion of other meh's passions, surrendered their judg- ment to their emotions, and joined in the general execration ; and found, or thought they found, an apology for this strange abandon- ment of their reason, by assuming the doctrine, that no man can innocently spill the blood of another ; a position, unsupported by any law, human or divine, and contradicted by every principle of nature and of reason. I shall contend, and I have too much respect for those I address, to-doubt of proving, that every individual has not only the right, but is in duty bound to defend his own life, at every hazard and expense to him who assaults it. The principle of self defence is founded in the very nature and constitution of man. It is inherent in, and inseparable from his » character. It it not derived from books', nor from the institutions ©f civil society, though confirmed by them. It is born and created 40 TRIAL OF T. O. SELFRIDGE, ESQ. with us, is coexistent with the first germ of life, conceived, felt, and apparent in the earliest dawn of being, and continues the same through all stages, relations, and conditions of human existence. Without this right, and without its exercise, whenever the occasion arises, man could .perform no duties., and enjoy no rights. He could not discharge even those duties imposed on him by a state of nature, neither could he fulfil those superadded obligations, ere* ated by, and incurred in k state of society. If this be true, and that it is, is so self evident, that none can or will deny it, the conse- quence indisputably follows, that man has not only a right, but is in duty bound, a duty, which he owes to himself, to society, and to his Maker, to defend and protect his own life, by all the meens in his power, at every hazard and expense to him who shall assault it, and, however disastrous the consequences may Be, the same are im- putable not to the man assailed,but to him who imposed the necessity. The institutions of civil society are made, not only for the wholfc, but for every part, and to confirm those rights, which are derived from nature, and which are necessary for the performance of such duties, as are enjoined on man, by the laws of society. The first and fundamental principle of every government is, that obedience to the government, and protection to the subject, are rei ciprocal ; and whenever statutes are made, to abridge so essential a right, as that of self defence, they are bottomed on this condi- tion, implied as strongly, as if expressed in language the most forcible, that the government can and will afford complete and perfect protection. The minor and subordinate rights a subject is forbidden to defend, by force, because the laws of society hold out restoration, if deprived of them, or a full indemnity for th«s injury sustained by their loss. Now life, once taken away, cannot be re- stored, and for the privation of being there is no indemnity. It follows then, that every man is authorised, and in duty bound to protect and defend his own life, when the government does not or cannot afford protection, at every hazard, and expense of life to him who assaults it. Vain and absurd, nay impracticable' would be that statute, which should demand of an indivfdual to wait the slow and formal decision of a court of law, when the uplifted hand of violence was just ready to sink him to the earth, to place him, beyond the relief, beyond even the reach of any earthly tribunal. I have said, that the laws of civil society admit and confirm this right of self-defence—they go further—they authorise and justify a man, in taking the life of another, who shall attempt, feloniously, to enter his house in the night. They justify the taking the life of one who shall attempt to rob a man of the smallest mite of property- The law excuses a man, who shall take the life of another on a ne- cessity, apparent, though not real, of defending his own. TRIAL OF T. O. SELFRIDGE, ESQ. 41 When I shall read some of the authorities, which contain the law of our own country, you will be convinced, that I have ad- vanced no one principle, which they do not warrant ; neither do I wish, gentlemen, to extend them beyond their fair import, in be- half of the cause I defend. At present, my only purpose is, by propositions so plain, as must command the assent of every hu- man understanding, to efface any erroneous imprepsions, which may have been made in relation to the law on this subject. There is another important charge and prejudice, against my cli- ent, 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 out his brains with a club—, an 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, wsh to bring be- before 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 pr 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 evi- dence of malice. If it be lawful to possess and wear such an in- strument, 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'Jought not,"and I trust would not, in the opinion of any court or jury, change a justifiable homicide into manslaughter, or man- slaughter 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, occu^ pying a house thus furnished, is visited by a neighbour, and after some warm conversation an affray ensues, the owner glances his eye on a swordr 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* 4*2 TRIAL OF T. O. SELFRIDGE, ESQ. 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, law- ful 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, hav- ing 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 rob- bing, 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 haz- ard, whereupon he uses the pistel and destroys the assailant— Shall you draw from the fact, of his having a pistol, for the just and 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 he 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 com- pelled 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 rla- ture, 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 pis- tol about him. It cannot be of the, smallest weight: for if he had. TRIAL OF T. O. SELFRIDGE, ESQ. 43 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 o£ such lawful act. If you shall be satisfied, that the homicide committed was either justifiable or excusable in self- defence, 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 ex- press 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 be- fore 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 ©wn 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 clone 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 suS'ered death : and though the statut* 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, he- cause it is not done felleo animo, but upon inevitable necessity se dcfenden- do. If A assault B go fiercely, andviolen^y, 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 As it is *e defendendo, because it is not done felleo animo, for the rule is, when he doth it in his ovv n defence, upon any inevitable cause, ^uad quit, ob tute* lam 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 i%either that sort of homicide se et sua defendendo, which is per- fectly innocent and justifiable, or that which is in some measure blameable and barely excusable. The want of attending to this distinction hath, \ 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 sub- ject of self-defence with due precision, do not in terms make the distinc- tion 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 ont doth for tlie defence of his body, he seenieth to do lawfully. 44 TRIAL OF T. O. SELFRIDGE, ESQ. " 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 preser* vatton of his own life killed the assailant. This I call self defence culpa- ble, 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 dan- ger, and if in a conflict between them he happeneth t« kill, such killing is justifiable. " The right of self defence in these case9 is founded in the law of na- ture, 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 pre- servation, the rHjht of self defence resided in individuals ; it could not reside elsewhere ; and since in cases of necessity, individuals incorpo- rated 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 "ser- vant 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 inten- tion 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 dis- tinction 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 TRIAL OF T. O. SELFRIDGE, ESQ. 45 plain that the design of the person making sttch 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 de- lay, 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. Butt 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 conU-a-distin- guishes 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, other- wise 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 sup- position kill him ; although it should afterwards appear that there was no such design, it will only be manslaughter, or even misadventure ; accord- ing to the degree of caution used, and the probable grounds for such be- lief. As where an officer, early in the morning, pushed abruptly and violently into a gentleman's chamber in order to arrest himj 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 bim : 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 wa« taken down and drawn." From this authority it wiU 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 held manslaughter ; but if he had had an offensive weapon, it would undoubtedly have been ex- cusable 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'a case. " if A strike B vithout any weapon, and B retreat to a wall, and Mien stab A, that will be manslaughter, which Holt C. J. said was the same 4$ TRIAL OF T. O^ SELFRIDGE, ESQ. 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 dan- gerous weapon, that the intent of the aggressor was so" high as the death of the party stricken, and without the*fe be a plain manifestation of a felo- nious intent, no assault, however violent, will justify killing the assailant under the plea of nscessity." It would seem here that if the party who kills, was resisting a person who had a dangerous weapon, it would be excusable homi- cide -r and Nailor's case, which has been read to you by the Solici- tor 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 sesvant, coming suddenly, and find- ing hi& 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, • ana 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 bunself, 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 man- slaughter, 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 at- tempts to enter it feloniously. In the same book from which I feist read to yoii, it is laid down in page 321. " Ip 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 Ids castle for safety and repose for himself and his family- And it is not murder in this case, says Lord Hale, because jt 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 be- lieve, that it was merely a trespasser with a different mtent." I shall now quote another passage from the same book, of which perhaps you will see the applicability as I read, though it may pos- sibly strike you more forcibly after you have heard the evidence.— It is from page 278, " If A challenge B, who 'declines to fight, bujt lets A know that he wiB not be beaten, but will defend himself; and B going about his oc- TRIAL OF T. G. SELFRIDGE, ESQ. 47 easiorw, 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 man- slaughter, if he Blight and did not. But if B had only made this a dis- guise to evade the law, and had purposely gone to a place where it was probable he should meet A ; th.*n 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, andln 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 prin- ciples 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 kf the injury be such as disfigures him only, without diminishing his cor- poral abilities, it does not fall within the crime of mayhem. Upon this distinction, the cutting off, disabling, or-*eakening a man's hand or fin- ger, or striking out an eye or fore-tooth, or castrating him, or, as Lord CoEe adds, breaking his skull, are said to be maims, hut the cutting oft" 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 v^as attempted to be broken j 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 common 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 govern- ment, I shall beg leave to read a few lines ; it is from 4 Black' 6tone'sCom. 184, In the same volume of the same learned author, p. 192, he says, " Manslaughter therefore, on a sudden provocation, differs from ex- cusable homicide se defendendo in this : that in one case there is an appar- ent necessity for self-preservation, to kill the aggressor ; in the other, no necessity at all, being only a sudden act of revenge." 48 TRIAL OF T. O. SELFRIDGE, ESQ. 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 dune 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. • e N That this is the true distinction between manslaughter and ex- cusable self-defence, I refer to 1 Hale's Hist. P. C. 479. " Homicide .re defendendo is the killing of an- other 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, fbr 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 *e 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 Iris life, kills the other without re- treating 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 tli re, 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> TRIAL OF T. O. SELFRIDGE, ESQ. 49 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 de- sired 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 anoth- er 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 re- turning a bottle up«n 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 manifest- ed 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 ac- tion of assault and battery, and therefore cannot be any provocation to Mawgridge to stab him with his sword. That the threwjng 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 parsues 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 cause. 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- ad 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." 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 trans- action. SO TRIAL OF T. O. SELFRIDGE, ESQ. 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 conver- sation 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 defend- ant 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 r* A. It did so appear to me. Att. Gen. Do you say on your oath that the blow was descend- ing 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 ? A. 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 in- clining towards the shop where I stood. Gore. Could Mr. Selfridge readily see Austin advancing to» wards him ? TRIAL OF T, O. SELFRIDGE, ESQ. i\ A. He could ; and he stopped the instant Austin stepped off" the side walk. Gore. Where would Mr. Selfridge's course have carried him, had he pursued it ? A* To the corner of Congress-street. Att. Gen. How many people were there on the Exchange ? A. I cannot tell; as many as usual. Att. Gen. Were there any between you and the parties ? A. There were. Att. Gen. Was any one between Selfridge and Austin, when the latter left the side walk ? A. There were some on the side walk with Austin, and he passed between two gentlemen as he stept off into the street. The place where they met was nearly in a direct line from Mr. Townsend's shop to the northeast corner of the old State house. Att. Gen. How far from that corner ? A. About thirty of my paces. Att. Gen. How far from the shop ? A. About seventeen paces. Gore. When the deceased went off from the side walk, with his cane up, in the manner you have described, did any person at- tempt to stop him ? A. No. Foreman. If Mr. Selfridge had pursued the course he was taking, and the deceased had stood still, what would have been the distance between them, when abreast of each other ? A. Ten or twelve feet. I think Mr. Selfridge would have passed within three or four feet of the side walk in front of the shop, which is seven feet wide. Att. Qen. Did the defendant incline towards the shop ? A. He inclined towards the south side of the street, keeping a straight course until he was attacked. Gore. Was any one between the defendant and the deceased, so that the defendant could not have seen the deceased before he had stept off the side walk ? A. There were two gentlemen standing on the edge of the side walk, between whom the deceased passed, but I do not know whether they so covered the deceased that the defendant oould not see him, until he had passed by them. Zadock French—sworn. Gore. Please to relate to the Court and Jury what you know concerning this, cause. A. About one o'clock on the 4th of August I was going up State-street, and when near Mr. Townsend's shop, I heard a per- son say there was to be a scuffle. I recollected the piece in the news-paper, and stopped. The same person said, there's Selfridge- 52 TRIAL OF T. O. SELFRIDGE, ESQ. I looked up and saw him coming round the N. E. corner of the old State House. I made this observation ; they were pretty equally matched. He walked very deliberately with his hand behind him of under his coat. His course was towards the Branch Bank. When opposite to me, he was a little south of the middle of the street. All at once he turned or wheeled towards me—at the same instant Austin stept off from the brick pavement and walked with a very quick step towards him having his cane raised ; he made towards him as a man would rush upon a wild beast; Selfridge, as he tump- ed towards me, presented a pistol, as if to defend himself.—It appeared to me that Austin's breast went against the muzzle of the pistol—Austin struck the defendant a blow on the head, and the pistol was fired at the same instant. Dexter. Was the blow a heavy one ? A. It appeared to me so. Parker J. Was the pistol held out, before you saw Austin advancing towards the defendant ? A. I think it was not. Parker J. Did the defendant advance towards the deceased after he turned ? A. No, he stepped one foot back, as if to put himself in a pos- ture of defence. Att. Gen. Were there many people on 'Change ? A. There were a good many, but they stood chiefly lowe* down the street. Att. Gen. Did you hear Selfridge say any thing after the fact ? A. When people cried out, who is the damned rascal, who did it ? Mr. Selfridge said, " I am the man." Gore. Did you see Mr, Selfridge attempt to wrest the cane from the deceased ? A. He took hold of the cane after firing the pistol, but Mr. Austin retook it, apparently with great ease. Gore. At what distance would Mr. Selfridge have been from Mr. Austin in passing by, if the latter had kept his situation, and Mr Selfridge pursued the course he was going ? A. I should think fifteen or twenty feet. Gore. How far from the side walk did they meet ? A. About the same distance. Gore. Were there any persons between Austin and Selfridge when the latter came in sight ? A. I believe there were none. Gore. When Austin was going towards the defendant, was his sane raised ? A. The end which he had hold of was even with his hip, the other end was elevated about to the height of his shoulder. Foreman. Was Mr. Austin standing next the wall, or at the . edge of the side walk ? TRIAL OF T. O. SELFRIDGE, ESQ. 53 A I cannot tell* Not knowing Mr. Austin, I did not observe him until I saw h;m step from the side-walk. Dexter. When Mr. Selfridge wheeled towards you, was the deceased at that moment stepping towards him ? A He was—at the very moment. An. Gen. Did you see the pistol before it was fired ? A I did. Att. G-n. Did any time pass from Selfridge's taking out the pistol, and his firing it?—•Did he come to a rest ? A The whole was instantaneous—I saw nothing like coming to a rest. The Court was then adjourned to Wednesday morning, nine o'clock. Wednesday Morning, 9 o'clock. The Court opened pursuant to adjournment. Evidence in the defence continued. Richard Edwards—S worn. Gore. Please to relate what you saw, &c. A. As I was passing in State-street a little past one o'clock, I saw Mr. Benjamin \ustin going down the street—heard some one say there would be some scuifiing.—Standing with Mr. French near Mr. Townsend's shop, 1 saw Mr.' Selfridge come round the northeast corner of the old State-house—He was passing slowly in a direction towards the Branch Bank—I pointed him out to vlr. French, who did hot know him—In less than a minute a person passed quick from behind me towards the street, and brushed my arm as he passed me. This occasioned me to turn, and I saw the same person walking quickly towards the middle of the street— by the time I had turned he had got nearly to the middle, and I saw Mr Selfridge immediately before him, with his arm extended, and a pistol in his hand. The person had a cane in his hand, and at the instant the pistol was discharged, I saw the cane elevated, but am not able to say whether it was descending to strike a blow, or recovering from striking one. After the pistol was discharged, the deceased struck several blows with the cane. Mr. Selfridge raised his arm>, but whether to give blows, or to ward off those aimed at him, I am not able to say—The defendant retired to the side walk near me, and leaned against Mr. Townsend's shop, when the deceased fell. Dexter. Was the first blow with the cane a very severe one r A. I think it was not so severe as some of those which were struck afterwards. Dexter. Did the deceased move very quickly when going tO' wards Mr. Selfridge ? A. \ think he must. Gw, Was the first blow which you saw struck, on the defen- dant's head ? H 54 TRIAL OF T. O. SELFRIDGE, ESQ. A. It was aimed at the left side of the head, and if it hit at all, must have struck that or the shoulder. Gore. Have you any doubts that the deceased saw the pistol in the defendant's hand, before it was discharged ? A. It glistened so that 1 saw it very plainly—the deceased was nearly ih the same direction from it that I was. Att. Gen. Where was the defendant when you first saw him ? A. He was walking slowly from the northeast corner of the old State-house, with his hands behind him. Att. Gen. Did you see him take his hands from behind him ? A. I did not. Att. Gen. How long was it after you saw him with his hands behind him before you saw the pistol in his hand ? A. Four or five seconds. Att. Gen. Where was the deceased ? A. He was advancing very fast towards Mr. Selfridge, with his stick level with his shoulder. When the pistol was discharged, they were so nigh each other, that the stick might reach the de- fendant. Att. Gen. Was the first blow as violent as those given after- wards? A: I thought it was not. Zadock French—called again. Gore. After the pistol was fired, was there any thing like scuffling between the parties ? A. After the first blow was given, and the pistol discharged the deceased struck several blows, from three to five—Mr. Sel- fridge seemed to stand or pause, and finding the blows repeated, he struck at Mr. Austin with his pistol—Mr. Austin made a mis- step, and sallied two or three paces down street—-Mr. Selfridge threw the pistol at him, but it passed him without hitting him. Parker J. Had the pistol taken effect before the first blow was given ? A. I did not think at that time that the pistol had taken any effect at all. Gore. Did you see Mr. Selfridge attempt to take the cane from Mr. Austin ? A. After Mr. Austin had sallied, as I have mentioned, and re- turned, Mr. Selfridge lifted his hands, and seemed taking hold of the cane. Mr. Austin fell very soon. Defendant. Did I not retire as I saw Mr. Austin faulter ? A. You did. Gore. When Mr. Selfridge had hold of the cane, did not Mr. Austin recover it out of his hands with great ease ? A. He did—and fell with it in his hand ; he took it with as much ease as a man would from a boy. \ TRIAL OF T. O. SELFRIDGE, ESQ. 55 William Fales—Sworn. Gore. Please to relate to the Court and Jury what you know relative to this transaction. A. About half past nine o'clock in the morning of the fourth ©f August, I was walking in State-street, with a 'friend, and met Charles Austin—He asked us why we had not been to see him lately—I went with him to his father's house, and tarried there until near eleven o'clock, when I left him at home, and went over to Charlestown. Returning a littH before one o'clock, I again met the deceased in Court-street, and we went together into Con- cert-Hall, in company with two other young men who had joined us. One of these was a Mr. Prince, who appeared to be an officer of the navy. Prince and Austin were in conversation about a ball—They had something to drink, but I am not able to say what it was, not having tasted it myself—We tarried but a short time, and Austin and myself left Prince at the hall, and walked up to Judge Donnison's, to see his son—About one o'clock we went down State-street, intending to visit a Mr. Dexter in Broad-street, whom we had engaged to call upon—When we had gone as far as Kilby-street, Austin said he would go no further, and we re- turned up State-street. Opposite Mr. Townsend's shop we met Mr Horatio Bass, with whom Austin conversed until the affray took place. When Austin left the side walk where we were standing, my back was toward the street. He moved very rap- idly—When I turned round, I saw Mr. Selfridge standing with his face towards the Post-Office—Austin was opposite to him with his cane raised—I was greatly confused—I am not able to say whether a blow was actually given before the pistol was discharged *or not. I did not see the pistol until it was thrown by the De- fendant. After the pistol was fired, I was so much agitated and confused, that I apprehend I cannot relate any thing that passed correctly—I did not see the Defendant's arm extended with the pistol—I saw Austin strike several blows, I think four or five—I cannot say whether the cane, when I first saw it, was descending to give a blow, or ascending after having given one. Att. Gen. How far asunder were the parties when you first saw them after turning round ? A. I should think three or four feet. Gore. Did you not go down State-street with the deceased at his desire ? A. We went together in consequence of our having engaged to call on Dexter. Gore. What did the deceased say to you, while walking down with him, respecting his resenting insults offered to his father ? A. He said that so long as he remained connected with the college, he could not, consistently with that connection, take any notice of the publication of that morning; but that after he left TRIAL OF T. O. SELFRIDGE, ESQ. college, neither T. O. Selfridge, nor any one else, should asperse his father or his connections with impunity, or words to that effect. Gore. What cane did the deceased usually carry ? A. A rattan. Gore. Did you ever before see him with so large a one, as the one he had that day ? ■ A. Not in town; but when he walked to Cambridge, he fre- quently carried one as large. j| Att. Gen. What were the subjects of conversation at Concert- hall, and with Mr. Bass ? A. The conversation at the Hall was respecting a ball, which Was contemplated—He talked with Mr. Bass about his brother. Att. Gen. Did he seem agitated ? A. He did not—he had a smile on his countenance. Att. Gen. How old was he ? A. About eighteen. Att. Gen. Was he considered as a strong young man for his age ? A. He was tall, but not stout ; he was not called strong. Gore. Had he ever been taught to use a cane ? A. Not that I ever knew of Gore. Did you hear him in the course of the morning, express any expectations of a rencountre ? A I did not. Horatio Bass—Sworn. Gore. Please to relate what you saw of this transaction. A. ()n the fourth of August, as I was going from the Long Wharf to tut Post-Office. I saw the deceased and Mr. Fales stand- ing in front of Mr. Townsend's shop—I shook hands with Mr. Austin and. had some conversation with him—soon after this, I saw Mr. Selfridge coming from the north side of the State-house, and Mr. Austin left me, and walked quickly towards him, with his cane lifted, -^■lelfridge took out his pistol, and shot at Austin—at the same instant Austin was striking Selfridge with his cane. Gore. Which \ as first, the blow from the cane, or the dis- charge of the pistol ? A. It is impossible for me to say. Gore. What did Mr. Selfridge do, when he first saw-Mr. Austin ? A. When I first saw him, he was walking deliberately in a di- rection towards the Branch Bank, his hands hanging behind him, as 1 have observed him usually to walk ; on seeing Mr. Austin, he faced round towards him. Gore. Did the first blow hit Mr. Selfridge ? A. I cannot say. After the pistol was discharged, Mr. Austin struck three or four heavy blows, with the cane, and Mr. Selfridge struck two or three times with his pistol at Mr. Austin's face, but I cannot say that he hit him—Mr. Austin sallied, and Mr. Selfridge threw his pistol, which passed on the left side of Mr. Austin with* gut hitting him, TRIAL OF T. O. SELFRIDGE, ESQ. 57 Att. Gen. How long had you beat acquainted with the deceased ? A I never spoke to him above once or twice btlore—\ saw him the first time at his father's house, by whom I was introduced to him. John Erving—Sworn. Gore. Where was you on the fourth of August ? A. I was at No 1, Suffolk Buildings. Gore. Please to relate what you saw. A. I saw Charles Austin and Mr. Fales go down State-street, and very soon after saw them return—I observed Austin to have a stick much larger than he usually walked with—1 called a young man from the adjoining room, and soon saw Austin with his cane raised, moving from the side pavement, at a quick pace, but not running, towards Mr. Selfridge, who had his left arm lifted as if to parry a blow—he took a pistol from his right hand pocket and fired under his arm. The first blow and the firing of the pistol seemed to be at the same instant. Austin made a second blow— Selfridge held up his arm to defend his head, and threw his pistol at Austin. At the fourth blow Selfridge caught hold of the stick; Austin recovered it and fell immediately after. Dexter. Were the blows heavy ? A. They were—the first was a violent one—I do not know what part of Mr. Selfridge any of the blows hit. William Schatff r—Sworn. Gore. Did Mr. Charles Austin purchase a cane of you on the fourth of August. A. About a quarter past ten. he came into my shop, and picked out a cane—he bent it and asked me if it was a strong one, and would stand a good lick—I told him it would. Gore. Of what wood was it made ? A. It was a good piece of hickory—heavy for hickory.—I told him it was as good one as I had in the shop. [The stick was handed to the witness, and he declared it to be the same he had sold Mr Charles Austin.] Gore. What sticks had he usually bought of you ? A. He had usually bought small India joints. Att. Gen. Did you never sell him any but India joints A. Never, Att. Gen. How long had you sold canes to him i A. About six months. Gore. How often had you sold canes to him ? A. As often as once a week, and always small bamboos. Sol. Gen. Were there any larger sticks in the bundle ? A. There were. The one which Mr. Austin selected, was the second he took hold of. Lewis Glover—Sworn. Gore. Please to relate what you know relative to this ttransac- tion. 58 TRIAL OF T. O. SELFRIDGE, ESQ. A. I went into State-Street on the morning of the 4th August, expecting to see something take place. I was standing near the head of Congress-street, in State-street, when Mr. Selfridge came down from his office, in a direction which would have brought him to the Suffolk buildings ; when he came opposite Mr. Townsend's shop, a young man stepped quickly off from the side-walk, with his cane lifted ; Selfridge had his hands behind him, but suddenly turned ; when the deceased came up to Mr. Selfridge, he struck h.im on his hat—the deceased stepped out very quick, raising his cane as he went along ; while he was aiming the second blow, Selfridge presented a pistol and fired it; he afterwards threw away the pistol, while Austin continued striking him. Parker J. Where was you standing during the transaction ; had you a full view of the whole ? A. I had. I stood at fifteen feet distance from the parties, and I kept my eye steadily upon them. Parker J. Was there a blow struck before the pistol was fired ? A. I am confident there was one blow before the pistol was discharged, and that it was a violent one, sufficient, I should be- lieve, to knock a man down that had no hat on; Mr. Selfridge stepped back one pace, after he had turned, to take a position as it were to fire. Austin struck three or four blows afterwards before the blood issued from his mouth, and fell ; I went to his assistance, and with the aid of Mr- Scollay I carried him into Mr. Townsend's shop. Doctor Danforth shortly after came in, and I held the de- ceased up, took off his neckhandkerchief and hat, and stripped his shirt down to find the wound ; Dr. Danforth presently discovered that the person was dead. Q. How far was you from the Defendant when he fired his pis- tol ? A. I was not further than from here to the Judge (about fif- teen feet.) Q. How far was you from the parties when the affray began ? A. About as far as from here to the corner window (about thirty feet.) Gore. Did you go upon 'Change with the expectation of seeing an affray ? A. I went there on purpose to see it, though I own I might have been better employed. I had observed old Mr. Austin to go three or four times up and down the street, and I followed him, expecting that a fracas would take place between him and Mr. Sel- fridge. Att. Gen. Were there many people on 'Change at the time this transaction took place ? A. There were a good many about the Suffolk buildings and United States Branch Bank \ there were not many near the spot; ;here were none between me and the parties. TRIAL OF T. O. SELFRIDGE, ESQ. 59 Q. You say you saw Mr. Austin several times ; did you* see him after the fact ? A. I saw him several times between eleven and one o'clock—1 saw him go into Russell's Insurance Office a little before one : a few minutes after his son's death I saw him pass up the street. Q. Did you see Selfridge after the affray ? A. I paid no attention to him, though I heard several persons call out to seize him. Parker J. Were there any words before the blow was struck or the pistol went off ? A. I cannot say that there were any words spoken ; if there were, I did not hear them ; there was not time for many words— the thing was done instantaneously. Gore. If any words were spoken, were you in such a situation that you could bave heard them ? A. I heard none, for 1 kept a reasonable distance. Dexter desired the Sheriff to send for Selfridge's hat into Court. The hat being produced : Parker J. Did you observe the hat was broken from the first blow ? A. I cannot say that I did ; the whole was in a state of confu- sion. John C. Warren—sworn. Gore. Did you see the blow on Selfridge's head on the evening of the fourth of August ? A. I did. I was called on the evening of that day to visit him. I found a large contusion which he had received on his forehead. about the middle of it ; it was three inches in length, two in breadth, and one in depth. It was in my opinion so serious a wound, that I thought it necessary to let blood, which was done that evening. Q. Was the skin broken through ? A. No, I think it was not. Dexter. Was the blow in such a situation on the forehead, that a man with his hat on could possibly have received it, except through his hat ? A. No, he could not; he must have received it through his hat. The skin was not broken, and it was impossible to say what would be the consequence if the hat had been off. Dexter. If Mr. Selfridge had a hat on must the blow have been struck upon the .hat ? A. Yes. The centre of the blow was about the turn of the forehead, part in front and part under the hair. Dexter. I ask whether if such a blow, given on a man's head without a hat, would probably have fractured his skull ? Att. Gen. I object to this, and ask the Court whether it is propt- er to put a question for the opinion of a physician ? 60 TRIAL OF T. O. SELFRIDGE, ESQ. Parker J. A physician may, I think, be questioned as to tbe probable effect of a wound. 1 understand this to be the practice. Att. Gen. Is it not more proper for the Jury to draw from the facts what would be the consequence of the blow ? Gore. Every man cannot judge equally for want of anatomical knowledge. Parker J. I think a physician may declare what in his judg- ment would be the probable effect of a wound, but not as to the force of a blow. Dexter. I will submit the fact to the Jury. Lewis Glover—called again. Parker J. Was the Defendant's hat on when the deceased struck the first blow ? A. Yes. Dexter. Did he strike directly upon the hat ? A. He did. Dr. Warren—-called again. Gore, Do you think the blow would have fractured his skull if the hat had been off ? A. I cannot say whether the blow would have fractured the skull or not. It was on a part of the skull that is very liable to be frac- tured, as the bone is thinner there than in any other part of the skull, and was the hat off it is not unlikely that it would have caus- ed a fracture; but it is impossible to say what would have been the effect. Packer J. Was the blow directly in the front of the forehead ? A. About the middle of it. Parker J. You Say that the length of the wound was three inches, the breadth two, and the depth one—do you mean by the depth, that the depth of the bruize was an inch below the surface of the skin ? , A. The surface of the skin on that part of the forehead where the blow was, is about a quarter of an'inch from the bone, the swel- ling was perhaps more than half an inch ; the depth therefore was from the surface of the swelling to the bone near an inch. Parker J. There was then no wound, but a contusion only ? A. Yes, that is my idea. Dexter. Was you acquainted with the Defendant at college ? Was not you his class-mate ? A. Yes. Dexter. What was his habit then as to muscular strength and activity of body ? A. He was very feeble in muscular strength, more so than any young man of his size in the class, he must have been remarkably so, otherwise I should not have recollected the difference. Dexter. Did he ever engage in any of the athletic exercises ot amusements of the college. A. Never as I recollect. TRIAL OF T. 0. SELFRIDGE, ESQ. 61 Dtxter. Do you know of his having lost the use of his limbs while you was there, by a fit of sickness ? A. No, I have no knowledge of it. Dexter. Have you known what was the situation of the wound of which Mr. Austin died ? A. I have heard my father describe it. Dexter. I wish to know whether a man having received such a wound which caused his death within five or six minutes, could have sufficient muscular strength to have struck a blow to produce such a wound as that on Mr. Selfridge's forehead, through a thick bat ? Att. Gen. That is a complex question, and is to be decided ra- ther by opinion than by matter of fact. It contain* a perfect argu- ment. Att. Gen. After a shot had perforated the left lobe of the lungs, would it be possible to give a stronger blow instantly after the wound received than the person could have given before ? Parker J. Is this not the same question that was asked Dr. Danforth ? all these things are conjectural, and the Jury had better infer them from facts proved. William Ritchie—Sworn. Gore. Have you got the hat Mr. Selfridge wore on the fourth of August ? A. Yes. Q. When did you receive the hat ? A. From Mr. Selfridge in prison. Gore, (producing the bat.) Is that the hat he had on when the affray took place ? A. I presume it is ; it has a very similar appearance. When he came into my house the crown was raised up, and it was indented here, and it was broken here, (pointing to the front of it) on the edge of the crown in front, so as to see the lining through the aper- ture. Gore. [Shewing the fracture of the hat on the forepart."] Is not that the fore part of the hat, as this leather [that on the hinder part] marks the part of the hat that is worn behind i A. Yes, I think it is. Parker J. I think you observed it was indented on the fore side ? A. It was also on the back part, but I did not perceive it at the time. I noticed it when it was given to me. Dexter. You. saw the hat broken before Mr. Selfridge left the Exchange, and when he went into your house, did you not > Al I saw the hat was broken before we left the street. When he went into my house I took the hat, examined it more particularly, and found it as I have described. Dexter. Did he not go immediately from the Exchange into your house ? A. Yes, he did. Gore. Be so good as to relate what you know of the whole trans, action. W TRIAL OF T. O. SELFRIDGE, ESQ. A. I was standing near the Fire and Marine Insurance Office, with my face down the street, when a pistol went off. On hearing the report, I heard some one exclaim, " Selfridge has shot Austin. I was standing near the gutter looking down the street, and when I heard the pistol discharged, ran to the spot from whence the report came : as I was going to it, I saw the parties engaged. I did not then know it was Mr. Austin. Mr. Selfridge's hands were raised up ; but whether to strike or ward off blows I cannot say. When I got up to Mr. Townsend's shop, Mr. Austin had fallen. Mr. Selfridge was standing with his back towards the wall. Some of the people were about taking him. He spread open his arms, and said, four or five times, " I am the man." Gore, Did any body advise Mn Selfridge to go off the exchange ? A. Yes, I did. He declined it, and said he would not. 1 pre- vailed on him to go about ten paces, when Major Melvill came up tb him, and said, that after committing such a deed he ought not to go off. He said he did not mean to : but after some persuasion, I induced him to move a little, but very reluctantly ; and when he wae as much as ten pr eleven feet from the place, he said he would not fo away, but would go to my hpuse, and in making that declaration e went off. Gore. Did Mr, Selfridge desire any one to go to the officer* of justice, and inform them where he was to be found ? A. Yes, he did desire some one or other to say that he was gone to my house, and particularly to tell Mr. Bell, the Deputy Sheriff, to come to him. A little before I heard the report of the pi8tol, I saw Mr. Austin standing with two other young gentlemen, near the door of Mr. Townsend's shop. It was almost a quarter pf an hour before. Sol. Gen. Did Mr. Selfridge appear much agitated when you were endeavouring to persuade him to go off ? A. When I observed to him that he was agitated, he said, *« no,t so much as you are." Sol. Gen. Did he make use of this observation, that he knew what he had done ? A. Yes. I believe those were the very words. Sol. Geu. When Mr. Selfridge sent the message to inform Mr. Bell where he was to be found, did you understand the reason of thatj to have been on account of an engagement to dine ? A. No, I did not so understand at the time. Mr. Selfridge wa6 engaged to dine at Julian's that day with Mr. Bell, as I have since- heard. Sol. Gen. Was the message respecting that engagement ? A. No, to come to my house only. Att. Gen. Did Bell come ? A. I believe he did ; a number of officers came, Hartshorn and others. Sol. Gen. Is the hat in the same state, as it was when you first jaw it.? TRIAL Off T. 6. SELFRIDGE, ESQ. 6$ A. No t exactly. The top part that is broken, is the same. But the part of the hat that was indented on the fore side then, does not appear so now. Gore. Did not Mr. Selfridge desire that the people might be told that he was going to your house ? A. Yes, he did. Duncan Jngraham, Esq.—Sworn. Gore. Did you on the 4th of August, desire Mr. Selfridge Uf sue out an execution in a suit he had brought for you ? *d' No. It was on the Sunday evening before, on the third, that Mr. Selfridge was at my house in Medford. 1 desired him to get an execution for me at the clerk's office at Cambridge, on a judg- ment he had before obtaind for me. It was upon a mortgage of z house in Concord. Att. Gen. Is this proper ? Gore. I was going to shew the motive which induced Mr. Sel- fridge to go on 'Change on the 4th of August; that it was in conse- quence of an airangement with Mr. Ingraham, that he went there with the execution in his pocket, and that Mr. Ingraham went there himfelf to receive it. Parker, J. I think this evidence admiffible. Proceed. A. He promised to go to Cambridge for it, and it was agreed •hat he fhould give it me on 'Change the next day. Dexter. Did yougo upon the Exchange, to meet Mr. Selfridge there that *ay ? A. I went there twice to meet him, once before, and once after the accident. Parker, J. Do you fay it was agreed that Mr. Selfridge fhould meet you on the Exchange that day ? A. Yes, it was fo agreed, on Sunday night. Gore. Did you fend fome one the next day to the prifon, to oret the Execution ? A. No, I never got it, he lent it to an officer. Att. Gen. Do you know that Mr. Selfridge did take out the execution on Monday morning ? A. I know nothing about that. I know that when I went the next day to the office, the gentleman faid it was there. Parker, J. I believe that you had better prove this by another perfon. Doftor James jackfon-—fworn. Gore. Did you fee Mr. Selfridge in prifon on the evening of the fourth of Augult ? A. Yes. Gore. Did you examine the wound on his head ? A. Yes. Gore: Defcribe it and the nature of it. A. When I faw him it was almoft fix o'clock in the evening, perhaps towards fun fet, four or five hours after the accident. I ob- served a contusion on the forehead. It was about three inches long, near two wide, and elevated above the surface of the skin about half an inch ; near the centre the skin was broken, and it appeared to me to have been bleeding ; it was not bleeding when I saw it. He complained of great pain in his head generally, not only in the part whore he had received the blc*w, but through tho whole head 64 TRIAL OF T. O. SELFRIDGE, ESQ. Gore. Was he let blood ? A. Yes—he had also a blow on his arm, but it was not very con- siderable. Shortly after I thought in his particular situation, it might be important to have his condition stated, and that therefore other physicians should be called in. Gore. Did you feel his pulse, was there any appearance of a fe- ver ? A. Yes ; a considerable degree. Parker J. Was the wound so high on the forehead, that if a hat had been on his head, the blow must have struck his hat ? A. Yes; if he had a hat on, it would have covered the part where the blow was received. The highest part of the wound ex- tended a little under the hair. It was oblique upon the front part of the forehead. Gore. Was there not a question made at that time, whether thr skull was or was not fractured ? A. I do not recollect. When I say that, I do not mean that no one examined to ascertain what was the state of the skull. Gore. I mean whether it was not a subject of consultation ? A. Every man examined for himself, and when they went away there was no doubt that it was not fractured. Gore. What was the opinion of the physicians at that time, as to the probability of his skull being fractured ? Parker J. That question was put before in another form, and negatived. I thought it improper. The facts relative to the wound should go to the Jury, and the inferences be drawn by them. Dexter. Is not the human skull thinnest where the wound was ? .•/. yes—though the centre of the wound was not exactly on the thinnest part of the skull—the wound covered the thinnest part. Gore. Do you know any thing of the health and constitution of Mr. Selfridge j are they uncommonly feeble ? A. I have known him some years back, and I know they were very feeble. I have had occasion to know the state of Mr. Sel- fridge's health for several years past, having attended him profes- sionally. I recollect his telling me about four years ago, that his muscular strength was very little—that he was generally feeble from his having at some former period lost the use of his limbs, and that a boy of fifteen years of age could manage him. I considered therefore his strength in the prescriptions I ordered for him, and from the remarks I have made upon him, I consider his re- lation of his debility to be true ; his mode of walking and general manner of carrying his body, also satisfied me of the truth of his as- sertions. Dexter. Did he not consult you about an apprehension he had of loosing the use of his limbs, and some fears he entertained of a very great general debility ? A. He told me as I have mentioned, that he had lost the use of his limbs, but I do r.ot recollect that he expressed any fear of the- return of the complaint. TRIAL OF T. O. SELFRIDGE, ESQ. 65 Core. Did you see that evening the hat Mr. Selfridge vrtre •& the day he was attacked ? A. I saw a hat that was shewn to me as the one. Gore, (shewing the hat) Does this appear to you to be the nat^' A. It ha* the general appearance of being the same. Parker J. I do not think that any further testimony is necessa- ry about the hat. Mr, Ritchie's evidence appear* to me to be fully sufficient. Dudley Pickman—Sworn. Gore. Was you in Mr. Lane's shop on the 4th of August last i A. Yes. Uore. Was you there when the pistol was fired in State-street ? A. Yes ; I was sitting in the shop with my face towards the street. Gore. Where was Lane then ; wh at was his situation A. He was sitting within his shop with his back towards the in- side door when the pistol went off. Gore. You are-positive as to this, that Lane was within the shop ? A. Yes, I am. The door that leads from the street, leads into Mr. Lane's house. There is a partition with a door that leads into the shop. He was sitting within the shop ; his back was against the door, and one side of him towards the street. When the pistol was heard, I said, " Mr. Lane there is a report of a pistol." He ro»e up, went to the door, and I followed him. Parker J. Are you sure that Lane did not rise up 'till after the report of the pistol ? A. I am positive he did not till after the report. Sore. Did Lane say any thing at the time i A. He made some exclamation about its being a pistol. Gore. You say that you went out of Lane's shop with him— what was the situation of the parties ? A. I followed Lane to the door, we went out almost at the very same time, I then saw Mr. Selfridge and another person near the middle of the street, between Mr. Lane's shop and Mr. Townsend'6. Mr. Selfridge had his arms raised up to ward off the blows that Austin was giving. The blood was then gushing out of Mr. Austin's mouth. Mr. Selfridge retreated towards Mr. Townsend's shop. The crow! gathered around them, and Austin soon fell. Gore. You say that Lane and you went out of the deor at the same time ? A. He was between me and the door, and I went out directly at his back. John Brown—Sworn. • Gore. Did you live with Mr. Selfridge's father i ^. I lived a near neighbour to him. Gore. Did you know any thing of his losing the use of his limn? in the early part of his life ? A. He l©st the use of them in a great measure. 66 TJUAL Or T. O. SELFRIDGE, E3Q. Att. Gen. Before he went to College ? A. Yes. Att. Gen. How long 1 A. A Short time. Gore. Was he not always a feeble and weak young man ? A. A^ far as I have known him. J have heard him complain of his great weakness, and often express his fears that he should one day or other totally lose the use of his limbs. Parker J. What was the general appearance of Mr. Selfridge as to strength ? A. He was not called so stout or strong as many. Parker J. Did he appear as stout and strong as people usually are of his age and make ? A. No. He was freed from military duty in consequence of hie infirmity and weakness in his limbs. Doctor Isaac Rand-—Sworn. Gore. Did you examine the appearance of Mr. Selfridge's head the night of the 4th of August last, after the accident of that day i A. Yes. Gore. Will you please to relate the state and condition of it ? A. I was in the evening requested by Dr. Jackson, to visit Mr; Selfridge. I found a large tumour on the left side of the head. It was almost two inches and a half long, one and a half wide, and con- siderably elevated. He appeared to labour under a considerable acceleration in the circulations—His pulse was hard and quick, so much so that I thought it necessary he should be bled. The operJ ation took place. He said he should faint, the pain in his head was so very violent, he lay down, but immediately rose again, saying he could not lay. His countenance was flushed. The inflammation was so great that it was necessary to apply every method to alleviate it. I did not see him for a fortnight afterwards, the appearance of the wound was not gone, round the part where it was inflamed the dis- coloration remained, and the tumour was not totally dispersed. Parker J. You say that a fortnight afterwards there were, still visible marks of the blow ? A. Yes, very visible. There was a small fissure in a right line, and the blow not having broken the lower integuments of the head* the contusion was so much the greater : had the skin been broken, the effect on the brain might probably have been less. Dexter. Had this blow been directly on the skin, would it not kave torn the skin ? Att. Gen. Stop. Parker J. It seems to me these are facts to argue from, and on which the jury will judge. Dexter. If the blow had been given without the intervention of any substance, is it not highly probable that the skin would have been more lacerated ? A. Certainly; from the appearance of the contusion, it is. proba- ble that such a blow might have fractured the skull. Sol. Gen. Is it your opinion, that after a man has rece ived - TRIAL OF T. 0. SELFRIDGE, ESQ. 67 mortal wound in the lungs, k would have left him the power of mus- cular action ? A. I believe that when there is an existing vblitioh for a muscle to act, though a fatal wound be received, yet, that volition existing at the time, and exerting itself on the muscle, would take effect. The muscular power depends on the quantity of blood when a per- son is in health ; if a diminution of the blqod take place, the muscles will be less full, and less extended, their force and power therefore decreased, and as the pulmonary artery must have been injured, a great quantity of blood must have been discharged ; by this the muscular strength must have' been reduced ; but as this would not operate on the arm till the blood left the muscles there, the blow might not have been impeded by fhe wound. If the voli- tion was instantaneous or contemporaneous, the stroke would descend with the whole force of the blow ; but if the blow was- given three or four seconds after such diminution of blood, he could not have Struck with such force. Dexter. If the party was in the act of striking when he received the fatal shot, would the blow be equally forcible ? A. Yes. Dexter. But if it was a few seconds after it would be less pow- erful ? A. After the diminution of blood in the muscles, the bkW would become weaker and Weaker. A wound sometimes increases muscular action. I have seen persons spring up four or five feet af- ter receiving a mortal wound. Sol. Gen. Is not that the case of persons who are woonded in the heart ? A. There is such a sympathy between the heart and the other parts of the human system, that in general there is instant death. So . Gen. Have you not known a person to be wounded in the lungs and yet recover ? I have known a part of one of the lobes to be taken off and yet the patient recover. So!. Gen. Might not the immediate cause of the death of Mr. Austin have been the bursting of a blood vessel in consequence of the wound ? If so, might he not have given the blow with his full power ? A. When a ball passes through a man, it is with such velocity as to cauterize the wound and prevent an instantaneous haemorrage, $• that it does not immediately diminish the muscular strength. Dexter. Is it not supposed that gun shot Wounds usually take place without much pain ? A. Yes. V/arren Dutton, Esq.—Sworn. Gore. Did you see Mr. Selfridge walking down State street, on the morning of the 4th of August last ? A. Yes. Gore. Was it immediately preceding this rencontre \ A. I presume not one minute before. Gore. What was the position of his hands ? 68 TRIAL OF T. O. SELFRIDGE, ESQ. A. I cannot recollect with certainty. It is in my mind, that they were either folded or behind him under his coat. The sun shone in his face, he had his hat overplus eyes, and his arms as I think folded hehind him. I had hardly turned my eyes from him when I heard the pistol. Lemuel Shaw, Esq.—Sworn. Gore. Did you receive ah execution from Mr. Selfridge after he was in prison ? A. Yes. I recollect that on Monday the 4th of August, after re was in prison, I inquired of him whether he had any services for me. He said Yes. I called on him the next morning and took from him a writ of possession in favour of Duncan Ingraham Esq. against Oliver Williams of Concord ; and he requested me to de« liver it to Mr. Ingraham. Gore. Do you recollect the date of that writ of possession ? A. No, I do not. Sol. Gen. Did you see the Defendant on the fourth of August before the meeting between-him and the deceased ? A. I occupied the same office with Mr. Selfridge. He came to town on that day from Medford, between nine and ten o'clock. He mentioned the subject of his controversy with Mr. Benjamin Austin. The chief that I heard was when Mr. Richardson was present. Being engaged in business, and having known the affair before, I did sot pay much attention to the conversation at that time. There was a boy in the office at the time. Sol. Gen. Did you«ee any pistol in the office that day ? A. I do not recollect seeing any that day. He had kept for nany months before a pair of pistols in an open desk in the office. Gore. Did he usually carry pistols with him in riding to and from Medford ? A. I do not know that fact, he usually set off for Medford after iun set. i Att. Gen. Was you in the office when he went out to go on change ? A. Yes. Gore. Did you go with him ? A. No. I did not go till after I heard the report of the pistol. Gore. What was the form of the coat Mr. Selfridge had on, was it a fly coat, or a short one ? A. No, it was a common long coat ? Gore. Were the pockets behind ? A. I recollect there was a pocket inside, in which he usually kept kis pocket-book, but whether there were other pockets, or whether they were out-side or in-side, I cannot say. Gore. What is the usual manner of Mr. Selfridge's walking ? Is :t with his hands behind him ? A I think he generally rests his hands in some way or other ; either by folding them before or behind him, or supporting them Jn the arm-holes of his jacket. TRIAL OF T. O. SELFRIDGE, ESQ. $9 . &l. Gen. Should you know one of those pistols, if it was shewn tb you ? A. I think I should. They were steel barrels—what are'generally called screw-b ivrel pistols. Sol. Gen, [ shewing the pistol which Mr. Selfridge had carried] Is that one of them ? A I think it is—I have no doubt it is one of the same—It is the same sort, but there may be many others of the same kind., Dexter. Do you recollect this double guard ? [shewing it] A. Yes, I do. After hearing the pistol I ran out upon the ex- change, and saw Mr. Selfridge. I observed a break in his hat, and •saw something through it. G'irr. Was there any more than one pistol at a time in the desk, as you say he had two ? A. I do not knOw how it was generally. Gore. Did. you frequently see only one ? A I think I have. But I should ridt very distinctly know, for ajs the two cases are of woollen, and connected by a string, I should not easily know, unless I took up the cases, whether there were two, oi* die re was only one. Henry Cabot, Esq.Sworn. Gore. Had you any conversation with Mr. Selfridge on the morrt-' ir»g of the 4th of August, on the subject of his controversy with Mr. B. Austin? A. Yes. Gore. Please to relate what he told you. Art. Gen. I must object to evidence as to what the Defendant saiA fo any person respecting this matter, before it took place, unless when his confessions are given in evidence against him, and then What he said at the same time may be inquired of, and shewn in his favour. But to produce his declarations in testimony as to what he said before the fact, to establish the quo animo, is not otherwise admissible. Gore. I will then inquire only what Mr. Cabot told him ; which I understand to have been to this effect: that he was that day to be attacked by some one who would be procured or hired to beat him. Parker J. As the having a pistol, and conversations before the Defendant went on change have been shewn, I do not see but that Liie Defendant may now shew that it was necessary to put himself upon his guard. A. In the morning before this affair took place, I notified him chat he was to be attacked by a bully hired for the purpose. I drew this inference from a conversation with Mr. Welch. Att. Gen. I have a motion to make, that this may be considered as a transaction from the 1st day of August, to the day of the af- fray, Sec—it is in writing, and I shall use it bye and bye. Gore. If you will connect it with what passed in July, I hare rt* •bjection. K 70 TRIAL OF T. O. SELFRIDGE, LS(J. Att. Gen. 1 canrot say that 1 can do that, as I have JiO knowledgt of anv transactions in July being connected with that of the 4th of August. But if there be any connexion I have no objection to going back to January. Parker J. 11 the evidence offered be as to any information giv- en to the Defendant, of his being about to be attacked, so far as it is necessary to go back for that purpose, I see no impropriety in it. But I cannot permit improper testimony to be given, though it be agreed to by the parties. Ait. Gen. Can we not ask questions, in order to shew that the Defendant did not believe this was a reality ? Parker J, Yes. But as to going back, I do not see where the counsel mean to limit their inquiries. However, it is unnecessary to decide now, how far they may go back. The information of an intended attack, though previous to the affray, may, I think be re- ceived. Att. Gen. How came you by your knowledge ? A. From a conversation with Mr. Welch in the morning. He informed me that Mr. Austin, senior, had said to him that he would have no personal altercation with Mr. Selfridge, but that 'some one would take him in hand, who was able to handle him. The idea conveyed to me was, that he did not think himself able to contend with Mr. Selfridge, but that he would procure some body nearer his match, or one who was able to cope with him. Parker J. And this you informed Mr. Selfridge of ? A. Yes, I did. When I told him he was to be attacked by some one, I thought it would be some bully, from my having seen, as I came down the street, a stout, athletic person with a horsewhip in his hand, standing near Mr. Selfridge's office. I mentioned this to Mr. St-lfridge, but he said there was no danger of that man, as he was a client of his. Ait. Gen. What did Mr. Selfridge say to this ? A. I do not recollect the expression exactly ; but he bowed his head and gave me to understand, that he knew what was to happen, or had been previously notified, or was ready, or sbnie- thing to that effect; I do not recollect the words he used. John Bt'j: ki—Sworn. Gore. Was you in Stale-Street on the 4th day of August last A. I was. G Gore. Did you see this affray ? A. A part of it. G.rs. What part ? A. Nothing 'till after the pistol was fired. Gore. Did you see Mr. Selfridge before that going down towards the exchange? /. Yes, I did. Gore. How was he walking ? A. Slowly and with his hands hanging loosely behind him, out- side of ),is coat. Parker J. Did you see his hands ? A. I did. TRIAL OF T. O. SELFRIDGE, ESQ. 71 Parker J. Had he a pistol in one ? A. No, he had not. Gore. When did you lose sight of him ? A. When he got one third across the street. As long as I saw him, his hands were behind him, and without a pistol. , Mr French , called again. Packer J. Huve I rightly understood you, that Mr. Selfridge's hands were outside of his coat, and that he took the pistol from his pocket. A. His right hand was in his pocket; his left hand was held up. I am clear I saw him f ut his hand in his pocket and take out the pistol Gore. Before I proceed in the defence, as we have now closed our evidence, I will beg leave to read one or two authorities, Mr. Gore read from Crotius, book 2, chap. 1 § 3 page 7. " We have before observed, that lfa man is assaulted in such a manner, that his life shall ai>pear in inevitable danger, he may not only make war Upon, but very justly destroy the aggressor ; and from this ir.stance, which every one must allow us, it appears that such a private war may be just and lawful ; for it is to be observed, that this right or property of self defence is whflt nature has implanted in every creature, without any regard to the intention of the aggressor ; for if the person be no ways to blame, as for in- stance, a soldier upon duty ; or a man that should mistake me fur anothtr, or one distracted, or a person in a drcum, (wliich may possibly happen) I don't therefore lose that right that 1 have of self-diftnce ; for ii is sufficient that I am not obliged to suffer the wrong that he intends me, 110 more than if it was a man's l)east that came to set upon me." Ibid. § 6 page 10 " But what shall we then say of the danger of losing a limb, or a member ? When a member, especially if one of the principal, is of the highest Consequence, and even equal to life itself; and 'tis besides doubtful whether we can survive the loss ; 'tis certain, if there be no possi- bility of avoiding the misfortune, the criminal person may be lawfully and instantly killed." 3. Grotius. chap. 1. §. 2. page 2. " Wherefore, as we have remarked elsewhere, if I cannot otherwise save my life, I may by any force whatever, repel him who attempts it, though perhaps he who does so is not any ways to blame. Because this right does not properly arise from the other's crime, but hi) in \\\vX prsregative, with winch nature has invested me, of defending myself." Ail. Gen. We have some witnesses to examine in behalf of the Commonwealth, and who we beg may be called. /1 'iltiam Donninon, jun. —Sworn. Sol. Grn. Relate what you know of this transaction ? A. I db not know any thing of the transaction in State-street; all ;hat I know is as to the circumstances prior to it. Att. Gen. Do you know whether young Mr. Austin was known to the Defendant or not ? A. Yes. About three weeks or a fortnight previous to the circum- stance taking place in Sute-street, I was walking with Ch irles Aus- tin down Court-street, near Mr. John Phillips* office. Mr Selfridge met me and inquired respiting my father's health ; while 1 stop- ped to speak to him, Mr. Austin passed on, and Mr. Selfridge, point- & TRIAL OF T. O. SELFRIDGE, ESQ/ ing at him as he left me, asked whether that was not young Austin,, or something to that effect, I do not recotlect exactly the words, and I replied that it was young Austin. Att. Gen. Was there nothing more said ? A. That was all. It appeared to me to be a transient question. Dexter. Was young Austin a likely young man, and any way particularly neat in his dress, so that it would lead any one to ask. Who he was ? A. He was always very nice in his person. Att, Gen. What was his age ? A. About eighteen years old. Dexter. Was the question asked by Mr. Selfridge of you, " Who Is that young man ?" or " is that young Austin ?" Which of the two questions did Mr. Selfridge ask ? A. I think it was " Is that young Austin ?" But cannot be pre- cise that it was. I am not sure which it was. Sol Gen. Did you see any thing of young Mr. Austin on the 4tl\ pf August ? /f I did About or just after 12 I met him with young Mr. Fales, in Court-Street, near Concert Hall. Wre concluded to goiiij and I sat about a quarter of an hour, and after that, we went to my Father's house, and staid there till about 16 or 15 minutes after one The bell was ringing for one o'clock while we were standing at the door. He and young Fales went away together, leaving me at home. Foreman Of the Jury. Did you observe that he had a new stick J A. I did. He told me he had made a purchase of it that morning. Att. Gen. Did you go down upon change with him ? A. I did not. Att. Gen. Had you any conversation with him about the differ* ehce between his father and Mr. Selfridge ? A. I think I merely mentioned the circumstance in walking up Cornhill; he seemed to treat it very lightly, and observed, that he Could not with propriety resent it while in college, but after he came put of college he -would not suffer any thing of the kind to be said with impunity. I think that was all that passed on the subject. Dexter. Did you not tu* him why he bought that stick ? A. No. I knew he had brpken his own stick the Saturday before. Gore. Did you ever see him with so large a stick before ? A. I never did. The Reverend Charles LowrllSworn. Sol. Gen. Did you see Mr. Charles Austin on the dav he died ? ' A. [ believe I did. Sol. Gen. Where did you see him ? A. I called at the house of Capt. Prince that morning, to in- quire after the health of Mrs. Prince, and there met with a young man who was introduced to me as Mr. Austin ; I had never seen him before, and i conjectured then that he was the son of Mr. Berna- TRIAL OF T. 0. SELFRIDGE, ESI*. <*§ >,iin Austin. I was there about half an hour, and had considerable conversation with him. He appeared to me to be a pleasant young inan, and made a favourable impression on my mind. Sol. Gm. When was this ? A. About eleven o'clock. Sol. Gen. Do you recollect whether he had any weapon with him? A. I remember he had a cane; the reason why I took notice •f it was, a young daughter of Capt. Prince's had some conversation with him about the cane, and I believe about some letters on the head of it. k remember only that it was a black one. Sol. Gen. Did you see or hear any thing at that time about any other weapon, pistol, or any thing else ? " A. Nothing at all. I did not see or hear of any other weapon. When I heard of this event, I said I believed this must have been the young man I saw at Capt. Prince's. Sol Gen. Did he go out and leave you there ? A. I believe 1 left him there. Sol. Gen. What time of day was this? A. I cannot recollect. Sol. Gen. Was it about the middle of the day ? A. I should suppose it was a little before noon. Att. Gen. The evidence we propose now to offer is this :—Its na- ture and tendency will appear from the motion I now make, which, for the purpose of being explicitly understood, I have reduced to writing, and beg leave to read. " James Richardson, having, on a cross examination by the De- fendant's Counsel, said that the Defendant a few minutes before the fact of killing had said that Austin had abused his professional char- acter by saying that an action he had brought for a tavern keeper against Austin, would not have been brought but for the interference of a damned federal lawyer ; that he could prove it to be false, and had him in his power ; that he had applied to him, and he had con- fessed it and refused to publish it; that the advertisement that day published was overpowered by that slander ; and having sworn Dun- can Ingraham and Lemuel Shaw, to prove the design he went on Change with, and having produced Henry Cabot to prove that lie told Selfridge that morning that an attack would be made on him, and having produced Lemuel Shaw to prove that he commonly oarried pistols to guard himself 'when he went out of town :—The Government now offer evidence to prove that this threatening to defend himself was from his unlawful intent to draw the father of the deceased or his family and friends into a mortal combat, with a design to destroy the life of any one who should be so drawn in ; that in pursuance of this design he had within a few days previous, on the 1st and 2d of August, sent letters and messages to B. Aus- tin, the father of the deceased, to provoke him to a combat, and that he was under no fear of an assault but what arose from his own seeking, and from what he intended by the advertisement he ha*. ^ubl.tfjh.ed.on that day-" 74 TRIAL OF T. O. SELFRIDGE, ESQ. I do not pledge myself that the witnesses will support this to the full extent, but if I did not suppose they would in a great measure, I would not waste the time of the Court in hearing it, nor unless I be- lieved it to be pertinent. Gore. I do not exactly know from the course this cause has ta- ken, that we ought to object to this motion, because our desire is, if it be consistent with the rules of law, to go into all the anterior cir- cumstances. Parker*J. My own opinion is, that nothing is proper evide ce excepting what took place on the same day or very shortly belore ; and more particularly that any thing which goes to shew a previous quarrel with another person, or even with the same person, is not proper ; the law being clear, that no provocation by words w ill justi- fy blows. It therefore appears to me that this sort of evidence would not be proper. But as the Government, should I so decide, couJd not have the question revised in case of an acquittal, I do not wish to decide it alone, but am desirous to request the aid of the Chief Jus- tice, who is in town. Att. Gen. 1 would wish to hear the opinion of a full Court. If the evidence is admitted wrongfully, the Defendant can have the opinion of the whole Court. But if the Chief Justice should come in, 1 know not whether, not having heard the antecedent evidence, he would be competent to decide on the admissibility of the evidence pro- posed by the motion I have submitted. Parker J. I should not have proposed inviting the Chief Justice to come into Court, had you not stated m your motion all the cir- cumstances on which you ground it. Gore. I was about remarking what was our peculiar situation : while we have an earnest desire to shew every thing that relates back, and think it had better be admitted, we have had an inti- mation from the Court, that this would be improper ; we will accede to the motion, under this condition, that the Counsel for the Government will not object to what we may adduce. But it seems to be implied by the terms of the motion, that that part of the examination which went to what was prior to. and not a part of this transaction, was introduced by us. That is a mistake. A". Gen. 1 do not say so—if I am mistaken 1 wish to be cor- rected. Gore. The words of the motion are, « that James Richardson, Slaving on a cross examination by the Defendant's Counsel." Eve- ry thing that came out was from Richardson, who was called by the Government. He was their witness. We wanted to go into the question, and were not permitted. I meniion this merely to rebut ;he charge of any thing having proceeded from us. We consent that every particular antecedent to the rencounter shall be gone in- to without keeping ba-;k a tittle. Att. Gen. If the Court are willing to admit the whole I have n» objection. TRIAL OF T. O. SELFRIDGE, ESQ. 75 Parker J. I do not think the Court ought, if it be not admissible, to receive it as legal testimony, although it be so agreed by the eounsel on both sides. Att. Gen. I do not believe it would take up a quarter of an hour, or near so long us debating it. It may however go to the Jury by consent of parties, and 1 am willing that this motion, as it is on paper, and the evidence in support of it, should afterwards be laid before the whole Court, if the Defendant be found guilty. Parker J. Do you consent that the evidence shall be gone into ? [_ro the Defendant's Counsel.'] Dexter. If the whole of the antecedent, circumstances may be gone into ; upon that condition. Att. Gen. I wish to be set right if I am wrong, and as my voice is very feeble, and the gentlemen on the other side are at some distance, I wish also to set them right, for I find that thev misunderstand what I say, and therefore 1 will turn rather more towards them. I wish to be corrected in our facts if they be not so. I have said that " fames Richardson having on across examination by the Defen- dant's Counsel." I did not mean this as a charge against them. But I will appeal to the minutes of any person who is taking notes, if all that Richardson said respecting Mr. Selfridge's being the damned federal lawyer did not come from questions put by the Counsel on the other side. Dexter. You say you wish to be set right, and therefore I only mention that Richardson was called by the Attorney General to testify to the conversation. He did so at the request of the Attorney General, and when cross examined by the Defendant's Counsel they proceeded as to the same conversation. It was to facts which made part of the same conversation that they examined. Act. Gin. As there is some doubt respecting the right to go in- to the evidence proposed by the motion, I shali read some authori- ties which 1 think pertinent to the question. The first is from I. East's C. L p. 239. " In no case, however, will the plea of provocation avail the party, if it were sought for and induced by his own act, in order to aflbrd him a'pre- tence for wreaking his malice. As, where A. and B. having fallen out, A. sa;s he will not strike, but will give B. a pot of ale to touch him • on which B. strikes A. and A. kills him : this is murder. And in all case's of provocation, in order to extenuate the offence, it must appear that the par- ty killing, acted upon such provocation, and not upon an old grudge ; for then it would amount to murder." I expect by the testimony proposed to shew an old grudge 3r gainst the hither of the deceased ; and that the advertisemenCfrom tts common and usual effect, which the Defendant published that morning, must have been published with an intention to provoke a quarrel, and that his intention further, in going armed in an un- lawful, not to say felonious manner, was, to resent whatever he might conceive to be an injury to his person or character 76 TRIAL OF T. O. SELFRIDGE, ES<$. I will now read from 1 Hale's Hist. P. C. p. 457. After speak- ing of a killing on a sudden provocation, the author proceeds : " Admitting it would not, in case there had been a striking with such in instrument, as necessarily would have caused death, us stabbing with a sword, or pistolling, yet whether this striking,* that Was so improbable to cause death, will not alter the case ; the Judges were not unanimous in it: and in respect, that the consequence of a resolution on either side was great, it was advised the Kinr should be moved to pardon him ; which was accordingly done." w " A. and B. are at some difference, A. bids B. to take a pin out of the sleeve of A. intending therebv to take an occasion to st> ike or wound B. which B. doth accordingly, and then A. strikes B. whereof lie died ; this was ruled Murder. 1. Because it was no provocation, when he did it by the consent of A. 2 Because it appeared to be a malicious and deliberate ar- Sifice, thereby to take occasion to kill B" The principle is, that when there is a mischievous intention of killing, and in consequence of that a man does a deliberate act with intent to take occasion to kill; it cannot be excusable homicide, but manslaughter, if not murder. 1 Hawk. P. C. B. I. c. 31 §. 20. « As to murder in the first sense, Buch acts as shew a direct and deliberate intent to kill another, as poison- uig, stabbing, and such like, ore so clearly murder, that I know not any questions relating thereto worth explaining." «' But the cases which have borne dispute, have generally happened in the following instances.—First, in duelling.—Secondly, in killing another without any provocation, or but upon a slight one.—Thirdly, in killing one whom the person killing intended to hurt in the less degree." Sec 21. «' As to the first instance of this kind, it seems agreed, that whenever two persons in cool blood meet and fight on a precedent quarrel, and one of them ia killed, the other is guilty of murder, and cannot help himself by alleging that he was first struck by the deceased ; or that ha had often declined \o meet him, and was prevailed upon to do it by his importunity ; or that it was his only intent to vindicate his reputation ; or that he meant not to kill, but only to disarm his adversary : For since he deliberately engaged in an act highly unlawful, in defiance of the laws, he must on his peril abide the consequences thereof." Sec. 22. *' And from hence it clearly follows, that if two persons quar- rel over night, and appoint to fight the next day ; or quarrel in the morn- ing, and agree to fight in the afternoon ; or such a considerable time af- ter, by which, in common intendment, it must be presumed that the blood was' cooled, and then they meet and fight, and one kill the other, he is guilty of murder." Sec. 23. " And whenever it appears from the whole circumstances of Che case, that he who kills another on a sudden quarrel, was master of his temper at trie time, he is guilty of murder ; as if after the quarrel he fall into other discourse, and talk calmly thereon ; or perhaps if he have so much consideration, as to sav, that the place wherein the quarrel happens 19 not convenient for fighting; or that if he should fight at pre- sent, he should have the disadvantage by reason of the height ot his shoes, &c." * Throwing a broom staff: TRIAL OF T. O. SELFHIDGE, ESQ. 77 It is easy for the Court to see that the defence intended to be set 'jp is, that the Defendant killed the deceased on a sudden provoca- tion ; arid that it is designed to maintain this on two principles ; in the first place, that in all assaults, the person assaulted has a right to kill the assailant: secondly, that if the assault be such as to endan- ger the party attacked, he is then excusable, and perhaps justifiable in killing in his own defence. This is answered by observing that the excuse or justification of self-defence is taken away from the Defen- dant when it appears, that he saught the quarrel, and went out ex- pecting it; or that he armed unlawfully, and then did any thing to provoke an affray. Thus far the evidence proposed would shew that the Defendant published an irritating advertisement, in which he called the father of the deceased a liar, scoundrel, and coward. I hare to submit it, whether that is not evidence of its being done to provoke a quarrel. Should I be told that it is not to be deemed so, I will desist. But they have proved from the testimony of Mr. Ca- bot, that he told the Defendant, that he expected Mr. B. Austin was going to get some bully to handle him, probablv to chastise him pn the Exchange. Then the evidence will shew, that he went on 'Change unusually armed. There may be such a time in which a man may thus arm ; but it could not be necessary at noon day, and When going on so public a place. The next evidence is that he ex- pected this combat, not from the father, but from some other person, and went Out with art intention to kill such person. I say then that he went but with an unlawful design. They have put it on his going there on a lawful design to deliver an execution to a client, and not with a design to kill; and that the attack on him was a sudden af- fray, without any fault in him : if that be the point of de/ence, the Ju- ly bave a right to infer from the evidence I propose, that he was the cause of this attack, and that the advertisement was designed to bring on the resentment of Mr. Austin and his family ; that he went on 'Change to meet an occasion of quarrelling ; this will connect it- self with the defence set up, and shew that it is a mere pretence, and that he had other views. For he said to Mr. Welsh that he did ex- pect such a quarrel, and Mr. Welsh had orders for the printers to stop the press, and not to publish the advertisement, if Mr. Austia the elder would make sueh concessions as the Defendant might re- quire ; we shall shew that Austin said he would not, as he had given satisfaction enough. We have proved that Mr. Austin had not said the Defendant was a rascal, for the words are not of that import. We will shew that Mr. Austin said he was ready to give full satis- faction to him. If the killing happened from the preceding quarrel, it is not of consequence which was originally to blame. We mean to shew, that this going armed was unlawful, because he provoked the quarrel, and expected it* and that if he had not gone so, this manslaughter would not have been committed. He ought to have demanded sureties of the peace, or he need not have gone out with* L fS T^RIAL OF T. O. SELFRIDGE, ES$. out taking some friends with him ; but to say that he might go af noon day to meet any person who might attack him, having a fe- lonious intention to kill him, and to say that with this previous quar- rel it was lawful to go so armed, is more I hope than will ever be said in this Court. All the things 1 wish to shew, are parts of the case, and tend to prove that the. Defendant went on 'Change unlaw- fully armed, on account of a quarrel of his own seeking, and there- fore the loss of life being by his own act, it is not excusable; because if he would excuse himself, it is necessary, as all the authorities say, that he himself had no sort of blame. If this evidence is rejected, there will be no remedy for the Government, but if admitted, there is a remedy for the Defendant, for he may have the opinion of the whole Court whether it was or was not admissible. 1 further say, that as I suppose, what they wish to offer in evidence, is respecting the suit brought against Mr. B. Austin, as a member of the demo- cratic committee, and his saying that it was occasioned by Mr. Sel- fridge, or that it would not have been brought, I am willing to let in every thing to that point, and even to admit the facts. Parker J. Is the admitting this evidence consented to ? Dexter. If the whole transaction can be gone into. Parker J. How far do you mean to extend it ? Dexter. So far, as to the origin, as to shew that what Mr. Aus- tin said of Mr. Selfridge, was not true. Parker J. I am not inclined to give any opinion on the legality of the testimony, but to admit it, as it does not injure the Defen- dant. Att. Gen. That it may be fully judged of, I will file my motion with the Clerk. Jonathan Hastings, Esquire, Post Master—Sworn. Sol. Gen. Please to relate what you know relative to the trans- actions now on trial ? A. About a quarter past one, the deceased came to my office, - and inquired if there were any letters for him. There were none. He gave me an invitation to his commencement. Sol. Gen. Had you seen him before that day ? A. Yes, I met him in the morning, as I came down to the office, and the only ob- servation I made to him was, that there was a piece in the paper that might be attended with bad consequences, and that people ought to be cautious and guarded in their conduct. Sol.- Gen. What was his answer ? A. He said he hoped they would, I think, and passed on. Sol, Gen. Did you see Mr. Selfriclge after the affray ? A. I saw him after I heard the pistol discharged. I went to the window and saw a great concourse of people. Mr. Ritchie had hold of Mi» Selfridge, requesting him to go away. Sol. Gen. What did he say ? A, He said I am not at all agitated: I am the man, TRIAL OF T. O. SELFRIDGE, ESQ. 19 Gore. Had the deceased generally letters ? did he frequently call at the post office for letters ? A. Sometimes ; though but seldom. Gore. Do you recollect, whether when you made the observa- tion to Mr. Austin, he did not say something about Mr. Selfridge ? A. No he did hot. Mr. Selfridge's name was not mentioned, either in our first or last interview. Hugh Rogers Kendall—Sworn. Sol. Gen. State to the Court and Jury what you saw of this transaction. A. A little past one o'clock, on the fourth of August, I was passing from Congress-street, towai'dsthe market; when about the middle of State-street, I heard a pistol go off; turning round, I saw two persons engaged. I knew Mr. Selfridge, his face was to- wards me ; the back of the other was towards me, and I did not know him ; he was striking blows at Mr. Selfridge, with a cane. I saw the pistol in Mr. Selfridge's hand, but did not see him throw it. Mr. Austin struck two pre ty smart blows ; the two or three which he struck afterwards, were pretty faint ones. The cane was then out of my sight. I had lost sight of the pistol before. It ap- peared to me that the parties were too near each other for them to strike fair blows. The people crowded round them, and they mov- ed towards the side of the street. As Austin fell, it appeared to me, Mr Selfridge was in the act of striking with his fist. The first idea I had that there had been any thing more than powder in the pistol, arose from my seeing the blood. Mr. Selfridge retired from the crowd, and I saw no more of him. Israel Eaton Glover—Sworn. Sol. Gen. How old are you ? A, I am past thirteen. Sol. Gen. Have you lived with Mr. Selfridge, in his office ? A. Yes. ■*>» Sol. Gen. Did he on the Saturday before this affair send you t© %\iy shot ? A. He sent me to buy some lead first, but I did not get it. I went back, and there were several persons in the office, Mr. Shaw and Mr. Hayward. He then asked Mr. Shaw how much shot was a pound. He gave me 4,\d. piece to go and buy some shot. Sol. Gen. Did you ask him what sort of shot ? A. Yes. Sol. Gen. What did he then say ? A. He said it was no odds what sort. Sol. Gen. How long was this before night ? A. It was near night. I went and bought the money's worth at Mr.. Odin's shop It was small shot. Sol. Gen.' Was you in the office on Monday ? A. Yes. Sol. Gen. You live with Mr. Selfridge, don't you ? A. Yes. Sol. Gen. When did Mr. Selfridge come to town ? A. He came in between 9 and 10 o'clock, and then had a whip la his hand. 84? TRIAL OF T. O. SELFRIDGE, ESQ. Sol. Gen. Did he commonly go out of town on a Saturday i A Yes. Sol. Gen. Did you see any pistol in his office on the day the ac- cident happened ? A. Not on that day, but I had before. Sol. Gen. How long had they been there ? ./. About three or, four months; there used to be two of them ; for about three or four Weeks there was one missing. Sol. Gen. Do you know what was done with the shqt ? si i saw Mr. Selfridge put it in his pocket. Sol. Gen. Where did he then go ? A I do not know. Sue. Gen. How long did he stay in his office before he went; away, after he had put the shot in his pocket ? A. About half an hour. Sol. Gen. Do you know whether there was a pistol in his office on Saturday ? A. No, I did not see one. Sol. Gen. Where were they kept ? A. Generally in his desk. Sol. Gen. Was it open on Saturday ? A I don't know, I did not mind. Sol. Gm. How long before, had you seen them there ? / A. I do not know. Sol. Gen. Did you see them within a week or fomtight ? A. I believe I did. Sol. Gen. Did you see them within three days ? A. No, I do not think I did. Sol. Gm. At what time did you usually go home to dinner \ A. About one o'clock. Sol. Gen. At what time did you go that day ? A. Just before one. Sol. Gen. How long ? A. Not more than three or four minutes. Sol. Gen. Did you stay as late that day as usual ? A. No, there were some gentlemen in the office. I went putt* and came in again. sol. Gen. Do you know whether Mr. Richardson was one of those gentlemen ? A. No, I do not. Sol. Gen. How many gentlemen were there ? A. Three or four. Sol. Gen. What did Mr. Selfridge say to you when you came in again. A. He said is it not time for you to go to dinner ? I said not quite. Sol. Gen. Did he say it was time ; A. No, he said you may go. I went out and left tbose gentlemen there, Sol. Gen. Was Mr. Welsh one ? A. No. I do not know who they were. Sol. Gen. ro you know any, one that was there 1 A. >Io, I dp notji TRIAL OF T. O. SELFRIDGE* ES§. 81 Sol. G n. How much did the shot weigh ? A. 1 don't know, there was very little of it. Att. Gen. How long was you gone before you heard of the affair? A. About an hour. 1 heard of it a little before two, or a little after. Dexter. Did you not usually go to dinner as soon as that ? A. No, but near about that time ; one o'clock ; it was that day about 2 or 4 minutes before one. Dexter. Had Mr. Selfridge usually kept powder in his office ? A. I think I have seen some there. Some time before that a man brought some to the office. Dexter. Did Mr. Selfridge usually put his pistols in the car- riage when he went out of town ? A. Sometimes. I recollect once I put them in the chaise myself. Dexter. How long before this affair happened ? A. A great while. Thomas Welsh, Esquire—Sworn. Sol. Gen. Be so, good as to state what you know relative to this transaction. A. On Tuesday the 29th of July, Thomas O. Selfridge, Esq. re- quested me to deliver a letter, of which the following is a copy, to ^enjamin Austin, Esq. which I did in the afternoon of that day. Sol. Gen, Should you know the original if you saw it ? A. It is very probable. Sol. Gen. Was it dated 29th of July ? A. It was. Sol. Gen. {shewing a letter] Is that the letter ? A. This is the letter I think. Parker J. Read the letter. Welsh reads. Boston, 29th July, 18S6. Mr. Benjamin Austin, Sir----My friend, Mr. Welsh, will deliver you this note, and Receive any communication you may see fit to make. You have to various persons, and at various times and places, al- fedged, " that I sought Mr. Eager, and solicited him to institute a suit against the Committee (of which you were Chairman) who pro- vided the public dinner on Copp's Hill, on the fourth of July," or language of similar import. As the allegation is utterly false, and if believed, highly derogatory to any gentleman in his professi- onal pursuits, who conducts with fidelity to his clients, integrity to the Courts, and with honour to the bar; you will have the goodness to do me the justice, forthwith, to enter your protest against the falsehood, and furnish me with the means of giving the same degree ?f publicity to its retraction, that you have probably given to its propagation. I had hoped the mention of this subject to you yes- terday, would have spared me the trouble of this demand ;—that twenty-four hours would have enabled you, without difficulty, to have obtained cprrect information, as to the fact j and that a just 32 TRIAL OF T. ©. SELFRIDGE, ESQ. sense of propriety would have led you to make voluntary reparation, where you had been the instrument of injustice :—The contrary, however, impresses me with the idea, that you intended a wanton injury from the beginning, which I never will receive from any man with impunity. I am Sir, your humble serv't (Signed) THO. O. SELFRIDGE. Mr. Austin, after reading the letter, observed, that he could say nothing further, concerning the thing, than he had done to Mr. Selfridge yesterday ; that he had heard the thing from another gentleman, and had mentioned it merely as a report, which he had heard; that he had not mentioned Mr. Selfridge's name ; but had merely stated, in the presence of a number of persons, that he had been informed that Mr. Eager had not called upon the Attorney who filled the writ, but that the Attorney had called on him ; and he at the same time expressed an opinion that such conduct in an Attorney was disgraceful ; he then observed, and repeated it once or twice afterwards, that he would call on the person from whom he had heard the story, and would advise with him whether it was proper that he (Mr. Austin) should give up his name. v The next morning, Mr. Austin met me in the street, observed that he had made inquiry concerning the truth of the report which he had circulated concerning Mr. Selfridge's conduct in Eager's suit against himself and the other gentlemen of the committee ; that he was now convinced that the report was false, and that he had been to those persons to whom he had mentioned it, for the purpose of removing the unfavourable impression which such a re- port, if true, would naturally make upon their minds.—He then observed, that it was not true that he had used Mr. Selfridge's name ; that at the time when this conversation took place, he did not know the name of the Attorney ; and that this was the only apology that he should make. He also said that he had convinced the person from whom he had received his information concerning Selfridge's conduct in Eager's suit, that the information was incor- rect ; but did not mention the name of the person from whom he had received it, although I requested him to do it, because he (Mr. Austin) would then be exculpated, and the controversy would be between Mr. Selfridge and Mr, Austin's informant. Sol. Gen. What did you state to Mr. Selfridge on the 29th of July, when you returned from seeing Mr. Austin ? A. What I have just related. Sol. Gen. What did he reply ? A. That bis name, as he well understood, had been used, and that what Mr. Austin stated was not true. That it had been used raa number of persons, and to more than he had at first conceived. That he had learnt this from a variety of persons since he delivered oie the letter. He then requested me to call again on Mr. Austin. Trial of t. o. selfridge. esq. .83 The same day, July 30th, about 2 o'clock, I called Mr. Austin out of Russell's Insurance Office, and mentioned to him that I had communicated to Mr. Selfridge the conversation of the morning. 1 then observed to him that Mr. Selfridge was not satisfied with the result'of it; that he conceived that he had a right to demand of him the means of counteracting the effects of the falsehood, to which he acknowledged he had given currency. He answered that he entertained a different opinion, and did not conceive that any thing more could reasonably be expected of him. I then observ- ed, that he acknowledged that he had circulated a report highly injurious to Mr. Selfridge's reputation as a lawyer ; and that, as upon investigation he had convinced himself of its falsehood, Mr. Selfridge insisted upon an answer to his letter of yesterday, in which should be contained a retraction of the assertion. He said that he could not consent to do this, and that he did not perceive Mr. Sel- fridge's object in requesting it of him, as he had never mentioned the name of that gentleman, and as he had stated to Mr. Scott, the only person to whom he had related the thing, that he had made in- quiry of the truth of the report and was convinced of its falsehood. He then said, that it was impossible that he could have used Mr: Selfridge's name, as he did not know at that time when he had the conversation with Mr. Scott, that Mr. Selfridge was the Attorney who commenced the suit. I then expressed to him my opinion, that Mr. Selfridge ought to be satisfied with the acknowledgment which he had made, were it true that Mr. Selfridge's name had never been used by him, when speaking of this affair ; and were it also true that he had declared to the persons to whom he had spok- en concerning Mr. Selfridge^s conduct in the management of the suit in question, that upon inquiry he found that he had been mis- informed, and that Mr. Selfridge's conduct had been correct. At this moment, Capt Daniel Scott passed out of Russell's Of- fice, and Mr. Austin requested him to step to the place where we were talking, which Capt. Scott did. Mr. Austin inquired of him whether he had used Mr. Selfridge's name, when he mentioned to him the conduct of the " federal lawyer'1 who commenced the suit against the gentlemen of the democratic committee. Mr. Scott answered that he did not. Mr. Scott was then called away by a young man. Upon this I told Mr. Austin I would communicate to Mr. Selfridge the result of our conversation, and left him. On Thursday the 31st of July, I was prevented by business from calling on Mr. Austin with a letter, of which the following is a copy; and it was not delivered to that gentleman until the nev. day. Mr. B. Austin, JvLr. 30th,^ 1806. Sir,----The declarations you have made to Mr. Welsh are jesuitically false, and your concession wholly, unsatisfactory. You ackdowledge to have spread a base falsehqod, against my professional reputation. Two alternatives, therefore, present them- •4 TRIAL Or* T. 6. SELFRIDGE, ESQ. Selves to you; either give me the author's name ; or assume it, yourself. You call the author a gentleman, and probably a friend: He is in grain a liar and a scoundrel. If you assume the falsehood yourself to screen your friend ; you mufct acknowledge it under your own hand ; and give me the means of vindicating myself against the effect of you aspersion. A man, who has been guilty of so gross a violation of truth and honor, as to fabricate the story you have propagated, I will not trust; he must give me some better pledge than his word, for present in- demnity, and future security. The positions I have taken, are too obviously just to admit of any illustration, and there is no ingenuous mind would revolt from a compliance with my requisitions; I am Sir, your humble serv't. {Signed) THO. O. SELFRIDGE. As soon as he had read the letter, he observed that he did not expect to hear again from Mr; Selfridge upon this subject; that he had done all that could reasonably be expected from him, in a case of this kind; that after being convinced of the falsehood of the report, which he had circulated, and which he had merely mentioned again, after hearing it from another person, he had been to that person, and satisfied him as to its falsehood, which he likewise had done to all the other persons to whom he had repeated it. He then observed* that Mr. Selfridge was pursuing him in an extraordinary manner, and asked what Mr. Selfridge meant by taking this high ground. I then answered, that Mr. Selfridge would have been perfectly satisfied with the recantation, which Mr. Austin had declared that he had made, were he convinced that it had been done in a proper manner, and were he not in possession of evidence that he (Mr. Aus- tin) had not only used his name, (Selfridge's) connected with the report complained of, to other persons, but had never seen those persons for the purpose of declaring to them its falsehood. He then repeated that he had never mentioned Mr. Selfridge's name, when speaking of this business ; and that lie had done every thing that any gentleman would consent to do under similar circumstances. I then told him that Mr. Selfridge had procured from Mr. Abra- ham Babcock, a certificate, that he, (Mr. Austin) had told him3 that Mr. Selfridge had instigated the suit in question, that Mr. Eager did not apply to Mr. Selfridge, but that Mr. Selfridge had sought Eager ; had induced him to commence the suit, and that Mr. Austin had never made any recantation to Mr. Babcock. He then inquired who Mr. Babcock was ? I told him he was a friend of Eager, and was the person who had settled the Bill with him- self, and the other gentleman of the Democratic Committee ; at first, he said that he did not know Babcock, but afterwards he said he recollected him ; but made no observations upon what I stated to him, as the contents of Babcock's certificate ; he then adverted to the orders, which he pretended were given by Mr. Selfridge to Mr. Hartshorn, tht Deputy Sheriff, to arrest him, and the other gen* TRIAL OF T. O'. SELFRIDGE, ESQ. 85 tieman of the committee, and made use of this circumstance to justify his having spoken the words, at which Mr. Selfridge had *aken the exception I observed to him, that this, if true, would be no justification, and that he had time to convince himself, that it was not true, by applying to Mr. Hartshorn, to whom I had ap- plied, and who had informed me, that he had never received such orders from Mr. Selfridge ; and that according to what he had re- peatedly stated to me, it was impossible that he should have been nduced by any injury, which he supposed Mr. Selfridge had done him in giving such orders, to circulate such a report concerning Mr. Selfridge, because, he had invariably stated tp me, that at the time the suit was commenced, he was ignorant who the Attorney was. I also stated to him, that Mr, Selfridge was not satisfied with the retraction, if it were true that he had made it, because each of ♦hose persons, who had heard Mr. Austin utter the obnoxious words, might have repeated them to many other persons, and that verbal recantations to the persons, who heard them from Mr. Austin, were by no means commensurate with the injury. This conversation was extremely desultory.—Mr. Austin being very much irritated by the contents of the last letter ; after he became more calm, I requested him to take the letter into consideration, and give me an answer to it, in the course of the day, he answered that he would have nothing more to do with it, I then told him that Mr. Sel* fridge was determined to have satisfaction of some kind or other for the injury, which, had been done him, and that if he (Mr. Aus- tin) should alter his drtermination that I should be happy to be nulified of it, and be the bearer of any communication satisfactory to Mr. Selfridge ; he answered that he would give no further sat- isfaction whatever. After I had communicated to Mr. Selfridge, Mr. Austin's re« fusal to make any further concession, Mr. Selfridge said his only motive in moving in the affair, was to resque his professional con- duct from the foul imputation which Mr. Austin had so unjustifia- bly thrown upon it, and that he would not relinquish the pursuit, till the object was accomplished, but said before he adopted other measures, he would leave Mr. Austin a day or two to reflect, which might induce him to comply with one of the alternatives proposed in his last note. The time^elapsed and no proposals were made. From the temper discovered by Mr. Austin in my several inter- views with him ; but more especially the last—Mr. Selfridge thought any further advances for accommodation were not advisa- ble ; and remarked that his means of redress were reduced to a . triple alternative, a prosecution, chastisement, or posting—A prose- cution he said was out of the question, because a legal remedy, from its nature, were it certain in the event, could not be so prompt*. '.y and efficaciously administered as the degree and kind of injury imperiously renuired. It would take two or three years to have M S5 'iUUAL OF T. O. SELIIUD^E, ESQ. an action decided; but few persons, comparitively, would ever know the result, and those few would be those only, who were conversant with the reporter's volume, and not clients aud men of business, from whom he derived his living ; that the damage aris- ing to him would be unsusceptible of proof, for it would be impos- sible to prove who had abstained from employing him profession- ally, in consequence of the circulation of the report; and while the process was pending, his business would dwindle away, and the cause would be unknown or forgotten, and the permanency of the evil would' remain unrelieved;—from his imbecility, a per, >nal contest, he said, was impracticable ; and to rely upon fri.nds for protection, or to permit them to interfere when he commenced the affray, would be an act of cowardice :—that this mode of redress savoured too much of malice and revenge to be compatible with an honourable desire of procuring reparation for injury ; th-.t dog- fighting in the streets, was what he had ever repr bated, and it could have no tendency to disprove to those whose good opinion he was solicitous to retain ; a falsehood,the effects of which, if not efficiently resisted, must annihilate his business upon any oth'.-r suppostio;i than tlv.it the calumny of Mr. Austin could acquire no credit with the public. Posting, therefore, he said was the only remaining Alterna- tive. This preventive remedy could be promptly applied to the mischief, and in its operation, would be extensive with all its po... i- ble consequences. If one man injure another, no matter from what inducement, and after notice of the injury, and a demand of indem- nity, commensurate with the injury, he refused to make satisfac- tion, having the ability, he leaves the party injured a perfect right to protect himself against all the consequences of an injury, by the surest means in his power ; and the. severest exercise of this right absolves the party exercising it, from the imputation of malice 01* revenge ; for although the man who committed the originaf wrong, may suffer, his suffering is merely incidental, and follows from the exercise of a perfect right, which can never be adjudged an im- moral invasion of the rights of another, though it may sensibly ef- fect them. But no1 man has a right to complain of those consequential suf- ferings which may be reasonably expected to flow from his own falsehoods or injustice. Mr. Selfridge said, by adopting this mea- sure, the facts alledged by him, if denied, would come fairly before the public, and the infamy of barratrously stirring up law-suits would be justly laid at his door, or transferred to the villain, who engendered the lie, or who screens the liar from his merited deserts. I did not see Mr. Selfridge on Saturday, On Sunday I was re- quested by Mr. Cutler, one of the editors of the Boston Gazette, to call at their office, with which I complied ;—while there, Mr. Sel- fridge's advertisement, of the 4th August, was shewn to me ; and I was informed that Mr. Selfridge had directed it to be suppress- ed, in case I should have received any favourable communication TRIAL OF T. O. SELFRIDGE. ESQ.* .«7 from Mr. Austin. I told Mr. Cutler that I had not seen Mr- Austin since Friday, and had not received any communication from him since that time. The following is Mr. Selfridge's note of August 4th : AUSTIN POSTED. Benjamin Austin, loan officer, having acknowledged that he has circulated an infamous falsehood concerning my professional con- duct, in a certain cause, and having refused to give the satisfaction due to a gentleman in similar cases—I hereby publish said Austin as a coward, a liar, and a scoundrel ; and if said Austin has the effrontery to deny any part of the charge, he shall be silenced by the most irrefragable proof. THOMAS O. SELFRIDGE. Boston, 4>th August. P. S. The various Editors in the United States are requested to insert the above notice in their journals, and their bills shall be paid to their respective agents in this town.* Gore. Do you recollect seeing Mr. Austin on the 4th of Au- gust ? A. Yes. Gore. Did he not tell you that he would not attack Mr. Selfridge himself, but he would find some one that should ? A. About nine o'clock on Monday .morning, the 4th day of Au- gust, Mc Austin met me, and after some immaterial conversation, said "he should not meddle with Selfridge himself, but some per- son upon a footing with him should take him in hand"—or words to that effect. After leaving Mr. Austin, I was met by Mr. Henry Cabot, to Whom I mentioned the conversation which had just passed between Mr. Austin and myself. Sol. Gen. Did you see Mr. Selfridge that day before the affair? A. I think I did. Sol. Gen. Did you see him on Saturday ? A. I believe I did. I do not recollect distinctly. Sol. Gen. On Sunday ? A. I did. Sol. Gen. Where ? A. At Medford. Gore. During the course of your communications with Mr. Sel- fridge on this business, did he ever express a vindv:tive spirit against Mr. Austin ? A. He did not. Gore. Did he express a wish to have this matter accommodated ? A. Yes, he did : be said he only wished to have that done which would put his character on the same ground as it stood before the report against it. * Mr. Austin obtained knowledge that he was posted, and published in the Independent Chronicle of the same morning-, the following note, viz. Considering it derogatory to enter into a newspaper controversy with one T. O. Selfridge, in reply to his insolent and false publication in the Gazette of this day ; if any gentleman is desirous to know the facts, on which his impertinence is founded,any information will be given bv me on the subject. Boston, August 4. BENJAMIN AUSTIN. (Tj- Those who publish Selfridge's statement, are requested to insert the above, .And they shall be paid on presenting their bill;. 89 TRIAL OF T. O. SELFRIDGF, ESQ. Att. Gen. What did Mr. Selfridge say he expected ? A. 1 always conceived that Mr. Selfridge wished that Mr. Aus- tin should sign something to shew he had circulated a falsehood. Parker J. Was there any thing drawn up by Mr. Selfridge for Mr. Austin to sign ? A. I presume not; I never saw any thing. Gore. Was not that left to you ? A. I presume that if Mr. Austin had consented to sign any thing, what I might have drawn up, would have been satisfactory. Dexter. Did you ever ask him any thing mere, than that he should put on paper that the report was not true ? Did you ever ask him to criminate himself ? A. No, I never did. I only asked him to let me have something in writing, to shew that the story was false Dexter. Had not Mr. Austin satisfied himself that the statement he had made was not true ? A. Yes, as he told me. Dexter. Did you ask him to do any thing more than put that on paper I A. No. Att. Ge;-\ Did you propose to take a writing that he had heard it from another person, and had found it was not true ? A. There was no question as to tvt form of the paper, for there was a total refusal to give any thing in writing. Gore. Do you recollect that Mr. Selfridge told you frequently. that his only wish was to put his character on the same loot- ing as before the report, and that he wished the facts to be stated without criminating any body ? A. Yes, I do. Benjamin Austin, l:.sq—Sworn. Att. Gen. Mr, Austin, are the letters which you have heard read; those which Mr. Welsh delivered to you ? A. I heard but one read, and th'Jt is the same. Att. Gen. Is there any thing different from what Mr. Welsh States in the transactions between you and him ? A. Mr. Welsh has made a very lengthy statement; mine will be very shot; if there is any difference the Court will be able to judge of it. I met Mr. Selfridge about the 20th or 22d of July in Court-street: he came up to me, and said, he had understood by Capt. Scott, this.: I had used his name improperly at Russell's Insurance Office, res- pecting the action brought by him against the Committe of Arrange- ments-for the dinner on Copp's Hill, on the 4th of July. I replied, that I had never made use of his name, and was surprised that Mr, Scott had said so. As we went down the street, Mr. Selfridge said that it wus un injury to his character. I said there was a light conver- ' sation with Mr. Scott on the subject, but as I had not used his (Sel- fridge's) name, so nothing I had said could affect his character, and again expressed my surprise, tha* Capt. Scott should give such infor- mation. T afterwards saw Mr. Scott,and asked him if I had mentioned iMr.SeHndge's name,or hinted hi the Lightest manner to his person. I walked on. t i IT -I came by Mr. Selfridge's office ; Mr. Selfridge •ib!:?d me in. I answered that I was in baste, and did not go in,but 4/aui reputed tjhtit I had not used his nari.e to zi.y person. On the TRIAL OF T. O. SFLl KlDGL, ESQ. S9 tSrh or 29th of July, I received by the hands of Mr. Welsh the letter which has just been read. The epithets certainly raised some indignation. When 1 read it, I told Mr. Welsh that I would go with him to Russell's Insurance Office, and see Mr. Scott. We then went there, and found both Mr. Scott and Mr. Brazer. I asked them whether I had made use of Mr.Selfridge's name or not. They said I had not. I then turned to Mr. Welsh arid said, " You find, Sir, Mr. Selfridge. is wrong in his information, what more would you have me do :" He appeared'to be perfectly satisfied, and I thought the business was ended there. A few days afterwards I re- ceived another letter* which was also brought to me by Mr. Welsh. I then-fiold him I was surprised at Mr. Selfridge's pursuing this mat- ter, and asked, what more was wished for ? In short no proposition was made. Welsh answered that the contradiction had only been made verbally, and Mr, Selfridge wished me to sign a paper. I told him, I did not know what more I could say, and as to giving any *hing in writing, the case did not require it, for I had not mentioned Mr. Sslfridge's name, and Mr. Scott and Mr. Brazer had both de- clared the same thing in presence of Mr. Welsh. On parting, Mr. Welsh asked me what answer I m~ant to return to Mr.Selfridge. I said I do not know t'.-at I can do any thing more. Do you, said he mean to make any further answer. I said, I do not know of any I can make. He went away, and I heard nothing more of the business till 1 saw the publication in Monday's paper. Att. Gen. Did you see Mr. Welsh on Monday ? A. I did. He mentions that I said I would get some person to handle Mr. Sel- fridge. I said no such thing. I said, Your friend has pursued this matter a great way, and expressed my surprise at the publication in the Gazette. I told him I had put an answer in the Chronicle, and meant to take no further notice of it. 1 did not tell him that any one else would, for I did not know that any one would. I said, if Mr. Selfridge attackime, I'hope to have such support from friends at hand, as I shall be able to avoid any injury. I had no thoughts of assaulting him- Att. Gen. Had you ever any intention to employ any person to attack or assault Mr. Selfridge? A. I appeal to God, he would have passed me as safely as he stands here at your bar. Att. Gen. Were you on 'Change on the 4th of August ? A. Yes; I went down about half past 12 o'clock to the Insurance Office. Att. Gen. Did you know your son was on 'Change ? A. While I was in the Office I saw him go by the window with Mr. Fales, it could not be more than four or five minutes before the event took place. Att. Gen. Did you expect him there ? A. ■ Quite the reverse. I never said a word to him on the sub- ject of this dispute, or the publication. Aut Gen, What cane did your son usually walk with f 43 TRIAL OF T. O. SELFRIDGE, ESQ. A. A small one. I understood that he had botght one that day. But he had one at home, that when he had occasion to go o- ver to Cambridge after it was dark, he used to walk with ; it was twice as large, but he left it at home that morryng. Att. Gen. Was it as heavy as that produced ? A. As much as twice as heavy. He used it when he walked after dark. Gore. Did not Fales tell you, on the evening of the fatal event, that your son struck Mr. Selfridge one or two blows before the pis- tol was fired ? A. Not that I recollect. Dexter. You mentioned that you were surprised at seeing the publication of Mr. Selfridge in the Monday's paper, and yet put in one in the Chronicle of that day to eontradict it: How did you know Mr. Selfridge's advertisement would be put in ? A A boy brought me one of the papers on Sunday evening. I read it, and thought, merely to take off the impression of such a publication, I would put in the note I wrote for the Chronicle, or aome such little thing. Gore. Did not Mr. Welsh tell you that you had not contradicted the report, or the information you had mentioned to Mr. Babcock ? A. Babcock was the first person who told we there had been any application to Eager to commence the suit, and therefore what was said to Babcock was saying no more than he had said himself. Gore. Did not then this conversation pass between Mr. Bab- cock and you after what passed between Mr. Welsh and you ? A. I had no cenversation about it, other than merely mentioning ro Colonel Gardner, that the story about the lawyer, that was men- tioned as having solicited the suit, was-not the fact. 1 went down ro contradict it to Mr. Babcock who was present at the same time. Gore. Mr. Welsh states that Mr. Selfridge had had it certified from Mr. Babcock, that you had mentioned the report to him, and had not contradicted it. Do you recollect any thing about it ? A. All that I mean to say is, that after I found out that the law- yer, whoever he was, did not make the application, I went down to Col. Gardner's and there saw Mr. Babcock, and mentioned to them, that the report was not true. Gore. Can you account for not mentioning this to Mr. Welsh ? A. I said I had mentioned it generally. The reason why I made the observation as to Mr. Selfridge's conduct, was because I had contradicted it in every circle where I had mentioned it. I had mentioned it but twice, once in the Insurance Office, and once at Col Gardner's. Indeed, he first mentioned it to me there. Thomas Welsh, Esq. called again. Gore. I understand you to say, that the denial to Scott, was not satisfactory to Mr. Selfridge, as Mr. Austin had mentioned the re- port to Mr. Babcock, and had never contradicted it to him. A. When I called on Mr. Austin the last time, I gave him as a reason for Mr. Selfridge's dissatisfaction, that he had never con- flicted the report to Mr. Babcock. TRIAL OF T. O. SELFRIDGE, ESQ. frl Gore. Did Mr. Austin ever tell you he had it from Col. Gard- ner ? A. 1 never heard Mr. Austin mention Col. Gardner's name during the whole of our intercourse. Gore. When you named Mr. Babcock to Mr. Austin, did he say he had notified him of the report being untrue ? A. No, Sir, he said he did not recollect him. Gore. You hear what he relates as to the conversations with you, are you clear in your recollection of them ? A. I am very confident, and so is Mr. Cabot, to whom I communicated what pass- ed oetween Mr. Austin and myself within half a mjnute after we separated. He is as clear on this point as I am myself. Thomas Melville, Esq.—Sworn. Sol. Gen. Was you in Mr. Lane's shop at the time this affair took place ? A. I was. The boy had corned and lathered me for shaving when the report of the pistol was heard—Mr. Lane was standing at the street door ; I heard the report and asked what it was ? Mv. Lane made answer, u It is Mr. Selfridge, he has fired a pistol and he has killed a man." I asked if it was Mr. Austin ? M. Lane re- plied " No, it is some young man I do not know, he is a very young man." I went into the street and afterwards saw Mr. Selfridge. I wein up to him and tapped him gently on his shoulder, and told him is was i ported he hud killed a person, and desired him not to go a- way. He answered me with civility, and said he had no intention of going away. Some one called out loud, (and I am sure it was Maj. Russell,)and said no man had a right to stop him. Noperson had said at tiie time that any one had or had not a right to stop him. I said no more Parker J. How was you sitting in the shop when you heard the report of the pistol ? A. I sat facing towards the door. 1 asked Mr. Lane what noise it was, and Mr. Lane answered as I before mentioned. Dexter. Was it the noise of a blow or a pistol which you heard ? A. I though it was a pistob I thought so at the moment, and am now perfectly satisfied that it was. I do not know thi t it is of much importance, but I wish to state one circumstance. It has been saia out of doors that Mr. Selfridge was very abusive to me. I must do him the justice to say, that he did not express to me one word out of the way There was another gentleman in the shop with me ; 1 think it was Mr. Pickman of Salem. I feel decided that Mr. Lane was standing at the front door so that he could see the trans- action, otherwise i should not have asked him what it was. Gore. Is the door of Mr. Lane's shop immediately on the street? A. The street door and the shop door both fall together ; so that standing in either he might see directly across the street, but he was outside of the shop door and full in front of the street door- Henry Flagnor—Sworn. Sol. Gen. Was you in Mr. Lane's shop at the time refe?red ta 5 92 TRIAL OF T. O. SELFRIDGE, ESQ. A. I was. Mr. Lane was standing at the front door, with hi:* hands behind him ; he had been sitting ; but before the pistol was fired, he had gone to the door. [The Counsel for the Government said they should proceed no further at present in producing testimony.] The following witnesses were called by the Defendant's Counsel. Daniel Scott—Sworn. Gore. Please to relate what you heard Mr. C- Austin say about the lawsuit that has been alluded to. A. He told me that a federal lawyer, who filled the writ against the committee went down several times to the tavern keeper to persuade him to institute a suit against the Committee. Parker J. Did he state who was the lawyer ? A. No. Gore. Did he describe him so that you knew him ? A. Yes, I knew who he m?ant. Gore. Did you understand, from what he said at that time, that it was Mr. Selfriege ? A. Yes. Parker J. State what he said. A. A number of gentlemen had questioned Mr. Austin as to the suit commenced against the committee ; he said that the federal lawyer who filled the writ had been to the tavern keeper to persuade him to institute the suit; he repeated this observation turning round and speaking at me. I then asked him if he knetv the per- son who filled the writ; he did not state that he knew the person, but said the whole matter would come out by and by ; from his manner he gave me to understand, and every one in the office, that it was Mr. Selfridge. Gore. What did he say that led you to believe it was Mr. Sel- fridge ? A. I asked him if he positively knew that the lawyer who filled the writ did personally solicit the suit; he said, " Yes, I do." Parker J. At any time before, when conversing about this in the presence of Mr. Austin, was it said that Mr. Selfridge had filled the writ ?. A. No, Sir. Parker J. How did you know that Mr. Selfridge had filled it ? A. I did not know it 'till I communicated it to' Mr. Selfridge, which I did from wlmt I then conjectured. Gore. In any of these conversations, when Mr, Austin was pre- sent, had Mr. Selfridge's name been mentioned ? A. Yes. Gore. What did Mr. Austin tell you after this ? A. He mentioned that he had received a letter or two from Mr. Selfridge, and should take no notice of them. Gore. Did he tell you the story was not true about the soliciting the suit ? A. No, he did not. Att. Gen. Did he never say to you that he was mistaken ? A. No, he did not. Dexter. Did you ever ask Mr Austin to let you see those let *ers ? . A. Yes ; he said he had destroyed them. Parker J. Are you sure he said destroyed, was it not returned ' A No, Sir, it was destroyed TRIAL OF T. O. SELFRIDGE, ESQ. Abraham Babcock, fnvorn. Mr. Gore. Pleafe to relate what has paffed between you and Mr. Benjamin Auftin, relating to the lawfuit that has been mentioned. Witnefs. On the 28th of July, I met Mr. Auftin in Court Street, and told him I was defired by Mr. Eager to fettle for his bill of the Fourth of July dinner. Mr. Auftki defired me to go to Col. Gard- ner, and agree with him what fhould be paid for the dinner. I did fo, and we agreed. I afterwards told Mr. Auftin of this ; he faid he was glad of it, and told me that Dr. Noyes would pay me the money. He inquired of me how Mr. Selfridge came to be employed in this bufinefs. I told him I did not know. He replied, that he fought it, or went after it, I can't fay which expreffion he ufed. I went di- rectly to Mr. Selfridge's office, and informed him that the a&ion was fettled. He faid he was glad of it. He then obferved, Mr. Auftin fays I went after this bufinefs. I anfwered, yes, he has juft told me fo. Mr. Selfridge afked me to give him this in writing, which I de- clined doing ; he made a minute of it himfelf; Mr. Welfh was pref- ent in the office. Afterwards I met with Mr. Auftin in Col. Gard- ner's office. He inquired of me what he had faid to me in the ftreet; I related it to him ; he faid, if the ftory was not true, he had been wrongly informed. He faid it arofe from what he had heard from Col. Gardner, as he fuppofed. Dexter. When was this laft converfation ? Witnefs. It was fometime in the week before the affray, but I cannot tell what day it was. Deacon Warren, (called by the Counfelfor the Government) fworn. Sol. Gen. Pleafe to relate what you faw of the affair on the 4th of Auguft. Witnefs. I was in the ftreet, but faw nothing before the piftol was difcharged. On hearing that I turned round, and faw the young man ftrike Mr. Selfridge feveral ftrokes with his cane. I afterwards heard Mr. Selfridge fay he was not going to leave the ground ; he was ready to anfwer for what he had done. Nathaniel P. Ruffell, (called by the Defendant's Counfel) fivorn. Gore. Pleafe to relate what you heard Mr. Benjamin Auftin fay in your office refpefting the lawfuit ? * Witnefs. I heard him fay that the action againft the committee was commenced by a federal lawyer at his own folicitation. He did not mention the name of the lawyer, but I was led from what he did fay, to think it was Mr. Selfridge that was meant. I do not know that I heard him mention it more than once. There were a number #f gentlemen in the office at the time. Gore. Did you ever hear Mr. Auftin contradid this ? Witnefs. Never. Daniel Scott called. Gore. When Mr. Auftin told you this thing, did he fay it in a light or trifling manner ? Witnefs. He did not. N 94 TRIAL OF'T. O. SELFRIDGE, ESQ. M. Carrol. I live in Flag alley, clofe by the market ; I was op- pofite to the Poft office, where I w-ent to obtain a fmall.balance of 3 dolls. 36 cents. I heard a piftol fired behind me ; and I ran round v to fee what had happened. I was in my fhirt fleeveo. I faw Self- ridge 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. Benjamin Auflin, Efq. called. Att. Gen. Did you ever tell any one that you had deftroyed the letters received from Mr. Selfridge, by the hand of Mr. Welfh ? Witnefs. I never did. The gentlemen here muft know I could not have faid fo, the letters being in court now. Att. Gen. Have you ever contradicted the ftory about the federal lawyer ? Witnefs. I went to the infurance office, and there made a declara- ' tion that I had been mifiiiformed as to the circumftance. I afked 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 cir- cumflances have happened to affect my miad fince, that it is not fur- prifing I ftiould forget. John Ofb'rn,ftx)Qrn 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. Auftin as to what took place in State Street ? A. Yes. Some gentlemen afked him whether young Mr. Auftin 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 flepped from them ; that he then turned round, and faw Mr. Auftin ftrike Mr. Selfridge one blow, and then the piftol was difcharged. He faid alfo, that Mr. Auftin ftruck feveral blows after the piftol was difcharged. Gore. Was Mr. Benj. Auftin prefent at that time ? A. Fie was. Gore. Was he attentive to this converfation ? A. Yes, and afk- ed many particulars. Gore. Was it Mr. Benjamin Auftin that made thefe inquiries to which the anfwers were given ? A. Yes ; he was afking many par- ticulars, and feemed very much agitated. Gore: Was this ftatement deliberately made, and more than once ? A. I do not recollect that it was more than once. I was there only a few minutes. 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. Did you hear any converfation between him and Mr. Fales .' A. I did. Gore. Pleafe to relate it. A. I heard Mr. Fales, among other things, fay to Mr. Auftin, that he went down Cornhill with his fon TRIAL OF T. O. SELFRIDGE, ESQ. 95 that day ; his fon faid to him " I muft 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 refufed ; that they turned down State Street together ; that he faw Selfridge before Auftin came up to him ; that Auftin 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 blew. Gore. Do you rfcollect that he faid the difcharge of the piftol was at the time of the fecond blow ? A. Moft perfectly ; that he ftruck feveral blows after the difcharge of the piftol. Dexter. Were yon 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 refrefh my mind. John Parkman—fworn. G re. Pleafe to ftate what you heard Win. Fales fay after the death of Charles Auftin. * W'dnfs. About five minutes after the event, I was Handing in State Street with feveral other perfons. Mr. Fales came up to us, and one of us afked him if the piftol was fired before any bow was given. He faid it was not ; there was one blow firft. Gore. Are you certain of the anfwer ?. A. Yes, I am. He was a good deal agitated. Some days after I converted with him, but he faid he could not recollect at that time how the facts were. William Fale called by the Attorney General. At I. Gen. You have heard this teftimony, what will you fay of it ? Witnefs. I believe Mr. Parkman's relation is pretty correct. I think I told him, at the time he alludes to, that Auftin ftruck a blow before the piftol' was fired. I do not recollect feeing thofe crentlemen at Mr. Auftin's houfe in the evening. I was very much ... ■ confufed and agitated that evening. Aft. Gen. What do you fay now as to the fret ? Witnefs. For three or four days after the event, I thought of the Subject anxioufly, and endeavoured to recollect the circumftances ; I then wrote them down as correctly as I could. 1 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 beft recollection and belief. Att. Gen. Who advifed you o write down the account ? Witnefs. Several of Mr. Selfridge's friends ; I remember partic- ularly Major RurTell advifed me ; none of Mr. Auftin's friends did. James T. "AuJI'iu, '■ fq. (called by the Government's Counfel) fworn. Sol. Gen. Was vou at Mr. Benjamin Auftin's in the evening of the 4th of Auguft ? Wilncf. I was. Every thing was in great confufion ; Mr. Fale? was much agitated, and we could get no diftinct account from him. 96 TRIAL OF T. O. SELFRIDGE, EtM. I remember he faid the deceafed ftruck three or four blowt, but I have no recollection of any difcrimination being mado between blows before and after the piftol was difcharged. Jofeph Wiggin, (called by the Counfel for the Defendant) fworn. Gore. Pleafe to relate what circumflances you obferved in State Street on the 4th of Auguft. Witnefs. About five minutes after one-o'clock I left my ftore and went on 'Change ; there I faw the deceafed with a cane ; he feemed uneafy. I faw Mr. Selfridge coming from the corner of the State Houfe, and turned round to fee if Auftin had moved from his place, and found he had. At that moment I heard a found as of a ftrokc of a flick on a coat. Cafting my eye round, I then faw Mr. Self- ridge prefent his piftol, ftepping back one flep, 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 parties flood ? Witnefs. About two rods ; I cannot fay exactly, but near enough to fee Mr. Selfridge move his foot. James Cutler, (called by the Attorney General) fworn. Att. Gen. [fhewing the witnefs the Gazette of the kth of Auguft] Was that paper printed in your office ? Witnefs. It was. Att. Gen. At whofe requeft did you print this Note, " Auftin polled" ? Witnefs. At the requeft and on the account of Mr. Selfridge. [Here the Attorney General read from the Gazette the follow- ing Advertifement, viz.] " AUSTIN POSTED. " Benjamin Auftin, loan officer, having acknowledged that he has circulated an infamous falfehood concerning my profeffional conduct, in a certain caufe, and having refufed to give the fatisfaction due to a gentleman in fimilar cafes—I hereby publifh faid Auftin as a coward, a liar, and a fcoundrel ; and if faid Auftin has the effrontery to deny any part of the charge, he fhall be filenced by the moft irrefragable- proof. THOMAS O. SELFRIDGE. Boflon, 4>th Augufl. " P. S. The various Editors in the United States are requefted to infert the above notice in their journals, and their bills fhall be paid to their refpective agents in this town." Dexter. What directions did Mr. Selfridge give you when he gave you the note ? Witnefs. In the courfe of the Saturday before, he told me he ex- pected to be under the neceflity of putting a piece in our Monday's paper. In the evening he fliewed me the piece. I hefitated about publifhing it. He related to me the circumflances of the difpute ; faid he could obtain no fatisfaction ; expreffed his regret at being re- duced to the neceflity of fuch a meafure, and wifhed the printing de- TRIAL OF T. O. SELFRIDGE, ESQ. !>? layed to the laft moment ; defired it might not be printed, until we fhould have feen his friend Mr. Welfh. On Sunday I called on Mr. Welfh ; he told me nothing had been done, and he gave me no di- rections to omit printing the note. Ephraim French, (called by the counfel for the Government—fworn, Sol. Gen. Pleafe to relate what you know of the tranfactions in State Street, on the fourth of Auguft. Witnefs. About one o'clock I was in Mr. Townfend'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. Auftin. I faw Mr. Selfridge com- ing from the corner of the State Houfe ; he walked very delibe- rately, and looked fober. Young Auftin wrent from near where I was ftanding, towards Mr. Selfridge. As he advanced, I faw the piftol go off, and Auftin ftruck feveral fevere blows, and then fell near my feet. I fhould fay, that the piftol, according to my obfer- vation, was one or two feconds before the firft blow was ftruck. I did not fee any cane raifed before the piftol went off. I looked par- ticularly at Mr. Selfridge from the time he came in fight. After he had difcharged the piftol, he held up his arms to defend his head from the blows, and afterwards threw his piftol. No perfon flood between me and the parties, fo that I faw them very diftinctly, having gone out of the fhop and flood on the fidewalk by Mr. Townfend's fnop before they met. Eber Eager (called by the Defendant's counfel)—fworn. Gore. Pleafe to relate what was Mr. Selfridge's conduct in rela- tion to your fuit againft the committee. Witnefs. I faw Mr. Selfridge paffing the ftreet ; told him I was the landlord that provided the dinner on Copps' Hill, the 4th of Ju- ly, 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. Chough 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 difcour- aging in his difcourfe ; talked about law fuits being long, and in that way. I afked him what I fhould do for money ; requefted him to advance me fome on account of this demand, and told him I was willing to take three hundred dollars in cafh, for the whole account, rather than wait. Fie refufed to have any thing to do in this way ; faid it would be difhonourable to him in his profeffion ; that no hon- ePc 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 thev 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. 98 TRIAL OF T. O. SELFRIEGE, ESQ. Dexter. Whit was the amount of your bill ? A. It was 650 dolls. Att. Gen. They offered you 360 dolls.—why did you not take it ? A. I would not take it then, becaufe 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 wifhed to have a part, rather than lofe the whole. Parker, J. This was then fettled as a point of honour, between the Committee and yourfelf. Att. Gen. This queftion has no bearing on the ifiue. I have afked it merely to know whether the witnefs has acted from himfelf. Gore. Before I proceed, I shall beg leave to read a few fentences from Grotius. * No man is permitted to deftroy another except in defence of that which if once loft is irrecoverable for ever, as life and chaftity. 2 Grotius, 19. If a man is aflaulted in fuch a manner that his life mail appear in inevitable danger, he may not only make war upon, but very juftly deftroy the aggrefTor ; and from this inftance which every one muft allow us, it appears that fuch a private war may be juft 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 fay of the danger of lofing a limb, or a member ?—when a member, efpecially if one of the principal, is of the higheft confequence, and even equal to life itfelf ; and it is befides doubtful whether we can furvive the* lofs ; it is certain if there be no poffibility of avoiding the misfortune, the crimi- nal perfpn 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 himfelf againft him that affaults his life which fo manifeft a confent is a plain teftimony that there is nothing in it contrary to the law of nature.— 1 Gro. 117. If I cannot otherwife fave my life, I may by any force whatever, repel him who attempts it, though perhaps he who does fo is not any ways to blame.— Becaufe this right does not properly arife from the othei's crime, but from that prerogative with which nature has invefted me, of defending myfelf. 3 Gro. 2 Mr. Gore then proceeded in the following manner : 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, wifh to be heard., as the Attorney General faid he was difpofed to be heard, that is, as if this were a caufe between two indifferent perfons, of whom you know nothing ; for that I prefume to be the very effence of juftice ; and if it were poffible that a Court and Jury fhould 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 or- ganization of our Cuorts, but it is fometimes impoffible to be unaf- fected by the parties, who are to be benefited or to fuffer. It was TRIAL OF T. O. SELFRIEGE, ESQ. 99 therefore that I took the liberty to remark on the danger of preju- dice, and' to illuftrate it by propofitions fo fimple and plain, that they would receive the afient not only of the minds to which direct d, but of every human being to whom they could be addreffed. The confequences, that followed were fo natural and neceffary, that they eould not be miftaken, and I did flatter myfelf, and I do flatter my- felf that they apply to the caufe I now defend. Having ftated the law, from the feveral authorities, which I have read, in fupport of the principles I laid down, I w nt into the exam- ination of the evidence, and you have heard it with an attention and patience, which will enable you to determine this iffue, according to the dictates of impartial juftice. This is a day of anxiety and folicitude to my client, and of interefl to his counfel ; yet I can fay that to him it is a day of humble hope and tranquillity ; a day of firm confidence in the truth and juftice of his cafe, for it is on thefe that he muft depend for his acquittal, and on thefe alone does he wifh to depend. I flibuld fay, this was to him a day, not only of confolation, but of joy, if joy could be prefumed to enter the heart of a man who for more than four months has been immured with- in the damp and unwholefome walls of a prifon, when his conftitution demanded free and open air ;.who required liberty for the difcharge of the ufual duties of life ; who felt himfelf at that time fubject to the moft unfounded calumny, yet would not, from his refpect to the laws of his country, reply ; for though he could have replied, he did not. No fpeeches were made, no observations were addreffed to the public, except to requeft that they would not prejudge his caufe, but wait patiently for the time when he might have it in his power to ftate fairly to the world, the law and facts of his cafe ; when he would put himfelf on trial by his country^ which country, you, Gentlemen of the Jury, are ; and it is now on that law and on thofe facts, as they fhall be laid before you, that he is willing to depend for his acquittal. With refpect to the law, it is my duty, and I have no difpofition to go beyond it, to ftate the principles, as they have been read to you from the books ; to afcertain what it, is in this cafe, and when that is done, to ftate the facts, that you may apply the" one to the other, and come to a juft iffue. The law I read to you, is not of this day ; it is not novel, or of recent date. It is older than any- of us, older than fociety, old as nature herfelf. It is founded in nature and in the principles of fociety, and, without it man could not exift. Of the authorities that were read, one of the firft was from Lord Coke, who fays, that if A. affault B. fo fiercely and violently, and in fuch place and in fuch a manner, that if he fhould give back he fhould be in danger of his life, B. may defend himfelf, and if in that defence he killeth A. it isfe defendendo, becaufe it is not done felleo ani- 7,79. The rule is, Quod quis-ob tutelam corporis fuifecerit, jure id feciffc vidclur. That is, whatever a man does in prefervation of his perfon he 100 TRIAL OF T. O. SELFRIDGE, ESQ, does not do felonioufly. This I take to be the fenfe of the dot- tiine laid down by Lord Coke. I took the liberty of reading another authority from Grotius ; one of the firft and brighteft ornaments of the age in which he lived, who has doi.e more for civilizing and humanizing the world, than any author who ever wrote ; who has written more forcibly and ef- fectually on the rigiits of man and in fupport of the religion of Jefus, than perhaps any divine, however celebrated. What fays he ? He fays that if a perfoa.be in clanger of life, or lofing a limb, or a mem- ber, efpecially one of the higheft confequence, and it be even doubt- ful if he can furvive the lofs, and there be no probability of avoiding it, the criminal perfon may be lawfully and inflantly flain. We then come to Judge Fofter, one of the ableft Judges that ever fat on a Britifh bench : He tells you, that the injured party may repel force with force, in defence of his perfon, habitation, or prop- erty, againft one who manifeflly endeavours, with violence and fur- prife, to commit a known felony upon either : in thefe cafes, he is not obliged to retreat, but may purfue his adverfary, till he find him- felf out of danger ; and if in the conflict he happen to kill, fuch killing is in juftifiable felf defence. You have the fame doctrine laid down by Lord Hale, who was »ne of the befl and moft humane of Judges, as well as one of the moft devout chriftians that ever appeared. Both he and Hawkins fupport the fame doctrine ; and in Hawkins it is further faid, if the party affaulted can not conveniently and fofely retreat, and if he kill the affailant to avoid this beating, it is juftifiable homicide. This is the law from thofe writers. The next is Blackftone, whofe doctrines have never been contro- verted. He tells you, that the party affaulted muft flee, as far as the fiercenefs of the affault will permit him, for it may be fo fierce as not to allow him to yield a flep without manifeft danger of his life, or enormous bodily harm, and then in his defence he may kill his affailant. He does not put it on the queftion of life being in danger, but fays, that where a man is in danger of any enormous bodily harm, he is not to wait till the cafe has happened, but has a right to kill his affailant. This forms the law of juftifiable homicide, and is the doctrine of .univerfal juftice, as well as of our municipal law. Thus, Gentleman, I have fhewn from the books, the principles that govern in relation to juftifiable homicide. 1 will now read one or two cafes which more perfectly eflablifh this doctrine, and fhew what is the nature of the affault, ihat juftifies the affaulted in taking the life of the affailant. In Maugridge's cafe, who upon words of anger between him and a Mr. Cope, threw a bottle with great violence at the head of the lat- ter, and immediately drew his fword, on which Mr. Cope returned a bottle with equal violence, Lord Holt says, it was lawful for Mr. Cope fo to do, for he who hath fhewn that he hath malice agtrinft TRIAL OF T. O. SELFRIDGE, ESQ 101 .'Aiothe-' is not fit to be trusted with a dangerous weapon in his hand ; and he adds it was reasonable for Mr. Cope to suppose his life in danger when attacked with so dangerous a weapon, and the assault followed up by another act indicating an intention of pursuing his life. It appears to me that this case justifies him who shall kill, where a weapon is used which would endanger his life, though it have not the effect; and that the person assaulted has a right to attempt the destruction of the assailant, that he himself might not be destroyed. You there have the particular case. This case will depend on the law of excusable homicide. It therefore is not necessary to have re- course to such as are so strong as that I have read. The law says, that if there be reasonable ground to suspect that life is in danger, a man shall be excused, if he exercise the right nature has given him to destroy and take away the life of him, by whom his own has been endangered. As to Aailrr's case, I do not mean to contradict it, any further than it is contradicted by the doctrine I state. You recollect, Gen- tlemen, that it was the case, where1, a son in consequence of hearing a scutffe between his father and brother rose from his bed, threw his brother on the ground, fell upon him and beat him ; that while in this situation, he who was undermost, not being able to escape or avoid the blows he received, gave his brother a mortal wound with a penknife. This was ruled to be manslaughter, because the prison- er was, in the first placet in the wrong, as much so as any man can be who offends against the law of society and of nature by fighting with his father ; and further, because he was not necessitated from the attack of his brother, which brother was without any weapon in his hand, to have recourse to such violent means for defence ; be- cause also he was in a wrong act, andthenmadeuseofa mischievous weapon. For, says the book, from the manner in which he was at- tacked, there was no reason to believe his life was in danger. But had he been attacked by r. dangerous weapon, then he would have been clear of crime. The law will not countenance a man in der stroying his assailant, unless there be a reasonable ground to believe that his life or person is in imminent danger ; and whether it be so or not, may be determined from the circumstance of the weapon, whether it appeared to be such a one, with which life might be de- stroyed. * On this apparency of intent and reasonable ground of apprehension that life was in danger, was determined the case of the servant, who, coming up, found his master irobbed and slain, and instantly killed the murderer. Although not attacked himself, yet on account of the apprehension which it was supposed he might be under of being attacked, and his own life put in danger, it was held, excusable hom- icide. That is the principle on which some writers defend the authority given bv 'lie ho- of destroying the robber wv-o demands vour purse; O 102 TRIAL OF T. O. SELFRIDGE, ESQ. because the same man who comes to rob, would, if necessary for his purpose, take your life. Further, if an officer, going to arrest a man in civil suit, break in- to a house, which he is not justifiable in doing, and the person with- in kill him, knowing him to be a bailiff, it is manslaughter; but, adds the authority, if he had not known him to be a civil officer, the breaking in would have afforded a reasonable ground of suspicion that it was done with a felonious intent, and of course excusable homicide. There was another case read to you which it is important per- haps to notice. It is that of the officer who entered the chamber of a gentleman who was in bed, on which he sprang out of bed, seized a sword, and ran the officer through the body. This was determin- ed to be manslaughter. Because he did not use sufficient caution, and because the officer had no weapon in his hand, for had there been any, that circumstance might have led the gentleman to think there was a felonious intent in entering his room, and then it would have been excusable homicide. It will be important, Gentlemen of the Jury, for you to keep these doctrines in your minds, when you come to consider this case on the evidence. It will be ineumbent on you further to recollect the de- cision of Maugridge's case as to excusable homicide, as distinguish- ed from manslaughter. If I recollect aright* the true criterion be- tween homicide in chance medley upon self-delence, and man- slaughter is, where both parties are actually fighting at the time when the mortal stroke is given, the slayer is guilty of manslaughter ; but if the slayer had not begun to fight, or, having begun, had endeavour- ed to decline any further struggle, and afterwards, being closely pressed by his adversar'*, kill him to avoid Ins own destruction, this is homicide, excusable in his own defence. Manslaughter,therefoie, on a sudden provocation, differs from excusable homicide se defen- dendo in this, that in the one is an apparent necessity for sclfpveser- vation, to kill the aggressor ; in the other there is no necessity at all, being only a sudden act of revenge, and then it is manslaughter. This distinction I wish you, Gentlemen, to keep in your minds when you come to examine this particular case. Having stated the law as I conceive it to be, as, on reflection, it will be found to be supported by the books, which, have been read, and as it will I presume, be given to you by the Court, I now come to state the facts, for it is my duty, only to state the facts, as they have appeared in evidence, without arguing upon them.. In doing this, although I do not mem to go into a critical exam- inatit m of the testimony you have heard from some of the witnesses, nor in the least to question their veracity, yet there is a fitness and propriety that some of them should be laid out oftiie way. I mean Mr. Lane. And though I have not the slightest intention of im- peaching his character, yet it is manifest from the whole current of TRIAL OF T. O. SELFRIDGE, ESQ. 103 the testimony delivered, that Mr. Pickman must have been right, and Mr. Lane, as well as the other witnesses who were examined in support of his evidence, mistaken. Because Mr. Lane says, that the transactions, he attested to were on the brick pavement; when all the other witnesses, as well as Mr. Pickman, who was with him, say the scene was in the middle of the street. I shall say no more on this point. It would be wasting time to suppose you can attach the least Aveight to the testimony of Mr. Lane, On that of Mr. Howe, I have only to beg you will compare it with that of the other witnesses ; because, as the first time he saw the parties together; was when they were on the brick pavement, he could not have seen the first blow and the earlier parts of the transaction ; he could not have witnessed all those ingredients, which go to enable you to make a just conclusion from the whole ; he could not have seen those cir- cumstances, which took place before the firing. On the previous circumstances that have been detailed to you, I mean the misunderstandings that took place between the Defendant and Mr. Benjamin Austin, the father of the deceased, it is not ne- cessary to say much. I shall merely ask you to consider the state- ment, made to you, by the witnesses examined.' It is from them only, that 1 wish you to jutlge of the serious provocation received. You have the testimony of Messrs. Babcock, Scott, and Russell, as to expressions used by Mr. Austin, and the manner in which they were delivered. It is by putting yourselves in the situation, in which these witnesses stood, that you must examine the force of Mr. Austin's expressions. Mr. Scott so perfectly understood the meaning of Mr. Austin, that he went to Mr. Selfridge to communi- cate it; and permit me to say, that, whatever took place at that time, if from the general apprehension of yourselves, you think it was ap- plicable to Mr. Selfridge, you will believe and suppose it to be true, that Mr. Austin meant to charge Mr. Selfridge with being the damned federal lawyer, who had solicited the action ; and in a court of law it cannot but be believed to be as high a charge as could be made ; it amounted to a criminal offence, for it was that he went a- bout stirring up and soliciting suits. You saw Mr. Scott on the exam- ination stand, and have to decide whether he did, or could believe it was Mr. Selfridge that was meant. The story from Mr. Austin, is, that he had contradicted the report to the very persons to whom He mentioned it. Mr. Scott says that he never did ; Mr.- Russell, who also heard the imputation, and knew, it appears, how it was intended to be applied, says that Mr. Austin never did contradict that fact. The conduct then, of the Defendant, in demanding a written recanta- tion from Mr. Austin, must appear, 1 trust, to have been perfectly justifiable, and warranted from the general charge against him. He did not persist in his demand of reparation more pertinaciously, than what, in duty to himself, and family, he was bound to do. He asked onlv for the means of proving, that Mr. Austin himself had acquitted 104 TRIAL OF T. O. SELFRIDGE, ESQ. him, from the charge he had made against him, as he found Mr. Austin would not doit himself. This satisfaction was refused. You have it in evidence, that he never received any thing like a satisfac- tion, which a man of honour, in his profession, or as a man, of any decent standing in society, could be satisfied with. For, there is not the smallest evidence that there was a contradiction of the report, but only an evasion. Mr. Austin did not contradict the charge that he had made ; he merely said that he had not used the name of Mr. Sel-,' fridge ; this, too, was not done by way of disavowal to the man him- v self to whom he had said it j and was, from the very manner, rather a confirmation than denial Having thus acknowledged, that he had not used the name of Mr. Selfridge, Mr. Austin satisfies his con- science that he had made every amends. Can any honourable man say that he had, when Mr. Russell and Mr. Scott say that he never had contradicted it to them ? When asked, did you contradict it to Mr, Babcock ? he, in the first place, says that he heard it from Mr, Babcock, and that this was after the suit was brought. I shall not enlarge on this point; I refer you'to the evidence for Mr. Austin's behaviour. His own testimony is against him. Can you, then, have any doubt, that Mr, Selfridge persisted more, than he ought to have done, in requiring Mr. Austin to contradict, in writing what be had circulated; because, said Mr. Selfridge, I find tint when you say, you have contradicted the assertion in person, these very people to whom you say you have done it, declare it has not been done. Was it then honourable in Mr Austin, to refuse giving to the Defendant a written acknowledgment, that the report was without foundation ? I put it to you, Gentlemen, if you had stated to various persons, from misinformation, that which bore'hard on the character of any one, and you were asked to give a note in wiiting, that you were misin- formed, would either of vou have refused that small and honest a- vowal ? No ; I know you too well to tUinkit; for I know that no honourable man could or would refuse it. For where I have unde- signedly done an injury, by spreading a false report of another, Mould I not fly to retract it, that 1 might make reparation, as much as I could, and even put it in his power to shew, that he was right and I in an error ? Examine whether there was, throughout the whole, a desire in the Defendant for Mr. Austin to do any thing more, than to enable him to have this retraction, that it might be in his power to use it for his.own justification. He says, in his conversation with Mr. Welsh, that his only motive in moving in the affair, was to rescue his professional conduct from imputation. That he could not relin- quish this pursuit; but before he adopted other measures he would leave Mr. Austin a clay or two to reflect. Was this the language of a man who sought revenge I No ; it was that of calm and mild expos- tulation, asking redress for an injury sustained. I shall say no more on this part of the testimony, than to observe, if you give credit to Mr, Austin, you must believe Mr. Welsh tells a falsehood ; you TRIAL OF T. O. SELFRIDGE, ESQ. 10j must believe Eager, Russell, and Scott all tell falsehoods, or are most strangely, not to say grossly mistaken. You cannot, I say, believe the relation of Mr. Austin, unless you believe that all these persons are mistaken. I now come to the motives and to the conduct of the Defendant, on this unhappy clay. If you are of opinion that there was no fe- lonious intent on the part of Mr. Selfridge, at that time, then you cannot find him guilty of manslaughter, because manslaughter must be committed with a felonious intent. If there were no felony in his mind, no crime in his heart, he must be decided by your ver- dict to be an innocent man. 1 wish now to trace the conduct of Mr. Selfridge on that day:—« You find there had been a suit prosecuted by him, in which he was, by the desire of Capt. Ingraham, to sue out an execution, and de- liver it to him on the Exchange. Capt. Ingraham is positive, that he told the Defendant on Saturday, or Sunday evening, to get the Execution ; and that he himself went twice to the Exchange, for the purpose of receiving it from Mr. Selfridge. You have therefore the very reason, why the Defendant went there ; when in the com- mon practice of his profession- it would be natural to go on the Ex- change, in the general course of business ; but here is a particular piece of business, to meet a person by appointment; there can there- fore be ;k> doubt, that he went there for that purpose, and for that only. In the conversation with Mr. Richardson, the Defendant said, he could not confine himself; that his business was of a peculiar na- ture, and that he must go about it as usual. Perhaps he recollect- ed at the time, that he was to go out on special business, and that was the reason, why he spoke to Mr. Richardson as he did. When this took place with Mr. Richardson, he had no idea of the affray, which afterwards happened. It is hardly possible, if he had enter- tained the smallest intention of provoking a quarrel, that he should not have mentioned it, in conversation to Mr. Welsh and Mr. Rich- ardson, persons, who were his intimate professional acquaintances. After Mr. Selfridge left his office, you find him walking on the Ex- change, in as calm and deliberate a manner, as ever he did, in his life; and if any of you, Gentlemen, have observed Mr. Selfridge walk, you must recollect that he does hold his hands, in walking. exactly as the witnesses have described ; for it is the natural posi- tion of a man, who would wish to aid the debility of his body ; and the manner in which Mr. Selfridge is stated to have walked, gives the exact description of the walk of a weak and feeble man. From the testimony offered, you will further find, and particular- ly, by the evidence of Brooks, (for I wish to trace the Defendant down to the Exchange) that he is clear Mr. Selfridge's hands were behind him, and not in his pocket. Mr. Brooks stood at Clark's shop, and observed Mr. Selfridge, from the moment of his entering Sta.te-i.reet. He therefore must have seen the position of his arms 106 TRIAL OF T. O. SELFRIDGE, ESQ. best. Some of the witnesses suppose, that his hands were in his pocket; this was a mistake, that might easily arise from not having a full view of his body. It would be difficult in some kinds of coats, which have the pockets behind, to ascertain whether the hands were actually in them, or not; but Brooks, who saw him pass first in the front, and then in the rear, must be the best qualified to determine, what was the actual situation of the Defendant's hands. Irwin tells you, that his hands were behind him ; that, in this position, he came down the street, but that, when Austin came out from the side walk, Mr. Selfridge held up his left hand, as if to guard his head, took his right hand from behind him, put it into his pocket, drew out a pistol, extended his arm, and fired. Take this, with the testimony of French, Bailey, and Shaw, who received from the Defendant the execution he sued out, at the re- quest of Mr. Ingrariam, and the current of evidence, from other wit- nesses ; for on these facts it is, that you have to deter mine,'and if you must judge from the weight of evidence, and decide according to the number of witnesses, you can have no doubt that the Defen- dant, instead of going to meet an affray, was goiag down to the Ex- change on special business, with his hands behind him, and walking very deliberately, when he was assaulted by young Austin. Fur- ther, to prove, that he could not have gone to seek this insult; you will please to recollect that he went with his face looking towards the Branch Bank, and not towards the place, where the deceased was.. When in this situation, judge you whether a man with, as you are told, the sun in his eyes, and his hat flapped or slouched over them* could have seen Mr. Austin, who stood with his back against Mr. Townsend's shop. It is manifest that Mr. Selfridge could not, from the course he was taking, have looked that way, and it is in evidence that he did not bear towards Mr. Townsend's shop, till obliged, from the violence of young Austin's attack, to turn to de- fend himself. Some say that he stepped back, others, that he turn- ed round to do this. It would seem, that, when the Defendant had got a little to the southward of the middle of the street, the unfortunate young man rushed out and made an attack upon him. Let us, for the purpose of ascertaining this, now compare the testimony. Lewis Glover states to you, that he went into State- street that day, for the express purpose of seeing what would take place, supposing there would be an affray between Mr. Selfrjdge and some other person, in conse- quence of the publication in the Gazette. He says he took a station, where he had a full view of the Defendant, as he came down the street; that he walked very deliberately with his hands behind him ; that Austin went from the pavement with a quick pace, directly a- gainst Selfridge, with his can uplifted, and gave the Defendant one violent blow, and as he was giving the secoikl, Selfridge fired. If > ou believe this, there was, before the discharge of the pistol, as vio- ' nt a blow given, as could be struck by an athletic ycung man, di TRIAL OF T. O. SELFRIDGE, ESQ. 107 ■redly on the defendant's head. This witness's credit stands totally unimpeached, even if alone; but is it not corroborated? Mr. Ed- wards also was in expectation of some affray, and stopped before Mr. Townsend's shop. lie saw Mr. Selfridge walking in a direc- tion that would have brought him on the brick pavement near the Branch Bank, when a person brushed by him, and got near the middle of the street, with a stick in his hand ; he adds, that it was uplifted, but whether in the attitude of giving or receiving a blow, he could not say ; but that the cane descended, and the pistol was fired at the same fnstant. You have it, however, in evidence, that just before, something caught the eye of Mr. Edwards, and he turned his head to Mr. French. Does not this interval afford time for the first blow deposed to by Glover ? Were there no other testimony, but that delivered by these two witnesses, would not this of Edwards be the strongest corroboration of that of Glover ? Would you not, on giving a due credit to both, say that his evidence is confirmed by the statement of Edwards ? Consider the situation of the parties ; Sel- fridge coming down the street, pursuing a course that would have taken him to the left of Austin, towards the Branch Bank—as soon as Austin perceived him, he changed his stick from the left to the right hand, and brushed by every one with a quick pace. Consider the distance between him and Selfridge, the few paces that inter- vened ; that Mr. Austin was running on the Defendant, as you have been told, as if he was going to attack a wild beast; that he sprung from the pavement and rushed on him, when it was not possible for Mr. Selfridge, whose hat wa.s over his eyes, and when his hands were behind him, to guard himself before a blow could have been given. The circumstances of the case render the testimony of Glover so con- firmed, as not to leave you a possibility of doubting it, and unless what is testified be contradicted, you cannot reject it; but if it be of such a nature, that it can be reconciled with, and is supported by circumstances and other evkkr.ee, you cannot but believe it. See how tins is established more and more by every comparison. Wig- gin says that he was in State-street also, for the purpose of seeing any thing that might take place ; that he was conversing about young Austin and Selfridge ; that he saw Mr. Austin with a stick in his hand, and Selfridge coming down the street, that he looked round for Austin, after having seen Mr. Selfridge, and while his eye was thus momentarily directed, he heard y blow. Can you account for this, and the other blow which followed, unless there was one given before the pistol wis fired ? Mr. Wiggin could not have been decehe i, when all his attention was awake, for the purpose of observation ; and he saw, when the pistol was fired, the hand de- scending again. There is a corroboration as strong as possible of this fact, that a blow was given before the discharge of the pistol, fromithe testimony of Bailey and French. They tell you the assault was as violent as possible, and that they could not tell which wac 108 TRIAL OF T. O. SELFRIDGE, ESQ. first, the blow or the firing of the pistol. Now, if their eyes were turned aside, but for an instant, there can be no cloubt but'that this evidence is true, and that they did not see the whole of the transac- tion. From some of the testimony, it appears, that in wounds of this kind,the strength is very great,and the muscular action quicker and more sudden. Do not these circumstaces go to corroborate the statement of Mr. Glover, and to account for the instantaneous act of the blow, and discharge of the pistol ? It is but fair to draw this conclusion, that, when witnesses testify positively to a fact, which other persons might not have seen, but which is neither contradicted by,nor contradicts the testimony giveh by others, to believe that what was seen, by some of the witnesses might have escaped the observation of the others. Because, if you do this, you give credit to each party, without supposing either to have sworn falsely. ,1 now come to the testimony of Mr. Fales. I mean not by any means to discredit h'vh. I believe him to be an honourable young man ; nor has any thing that has taken place, caused me to doubt it. I however do believe, that when a transaction is recent and fresh, the impressions are stronger than at a future day. I need not contend for a proposition like this. There is no reason to suppose that he could then tell what was untrue. He relates that there was some conversation between young Austin and himself about the cane, from which you will draw your own conclusions. It appears, however. ihat he had some apprehensions about his friend's having this cane, for he asked young Austin to give it him, and he states, that, when at Townsend's shop, the deceased brushed by him, and went towards Mr. Selfridge. He further tells you, and he tells you very candidly, that he cannot tell which was first, the blow, or the firing of the pistol. When you see the sensibility of this young gentleman, who could not but be agitated on the occasion, when he was deceived and deluded by his friend, who had told him l\e was not on this errand, could he be unrufled, calm, and unagitate ? Surely no', for even at our time of life, when the nerves are hardened, when we are not so liable to be agitated as a young man, like Mr. Fales, should we see a person spring forward to do that which we should so earnestly wish he was not going to do, would we not feel agitated and alarmed ? Had he any motive on earth not to declare the actual fact ? Had he any occasion to prevaricate ? None. Would you, Gentlemen of the Jury, or would you not believe what he said at that time I Can you think he did not then feel every disposition to speak, in fa- vour of his friend,who lay bleeding and dead on the spo* he had left ? He must have had every feeling ah veto the memory of his friend,and would have been happy to raise it, in the estimation of those he ad- dressed. It is but natural that he should.. But it is not in nature that he should wish to say any thing against him. How then can you TRIAL-OF T. O. SELFRIDGE, ESQ. 109 account for the anfwer ? It was the undifguifed voice of truth, at a. moment, when fhe could be the leaft concealed, in anfwer to a diftinft and pofitive queftion. It is on that anfwer that I would rely, and it is on that, that you will, I trull, alfo rely. Look to the further declarations of Mr. Fales, on this unhappy occafion. In the courfe of the evening, when Mr. Benjamin Auftin muft have felt all that refentment, which a parent may be fuppofed to feel, againft the man, who had taken the life of his fon ; when he could not wifh to hear his child deemed the aggrefibr ; when Mr. Fales could not have wifhed to plant a dagger in a father's bofom ; when he muft have gone to the houfe of Mr. Auftin with far differ- ent intentions; when he went to adminifter balm and confolation to an aged and afflicted parent ; when it might, without impeaching the character of Mr. Fales, be well fuppofed, he wifhed to hide the truth, but truth muft be told. What was it that he then anfwered to a father's queftion ? " Your fon ftruck a blow firft ; a violent blow, before the piftol was fired." Had Mr. Fales the leaft motive to re- prefent his friend's conduct as influenced by the fpirit of a bravado, or to give that colour to the tranfaction ? Mr. Nichols went and made a memorandum of the words. You have this fact fully in evi- dence. There was, then, every motive, but that of truth, to tell a different ftory. From the reprefentations made, by the friend of the deceafed at the very hour of his death; from his anfwer to an inquiring and afflicted parent, you have the teftimony of Glover moft fully and completely corroborated. There muft necef- farily have been one violent blow firft, and on the fecond blow de- fending, the piftol was fired. Thus then ftands the evidence of this important fact ; you have to it, the pofitive teftimony of Glover, corroborated by that of Edwards, and of Wiggin, by a circumftance as ftrong, as if he had feen the blow, for he heard it. You have it corroborated, not only by the firft declarations of Mr. Fales, but from probability arifing, from the manner, in which he delivered his teftimony, when on the ftand. This then was the fituation of the Defendant, he was going down State ftreet, not only on his juft and ordinary bufinefs, but on a fpec- ial engagement, to meet a client there, for a particular purpofe. True, he had notice that fome perfon was to be hired to deftroy or attack him. It may have been faid that he could have gone to a magis- trate, and obtained the proteaion of the laws of his country and have taken fecurity, for keeping the peace. I agree that this would have been a fair anfwer to the queftion of, what could he do I If Mr. Cabot had faid, young Auftin is to attack you ; fpeaking as I do in a Court of Juftice, it was, under fuch a circumftance, his duty to have done fo. But it was not fo faid to him, it was merely mentioned to him, that fome perfon was to be hired or employed to deftroy or beat him. He had it not, then, in his power, to avail him- felf «f the prateaion of the law, by taking fecunty ; for he did net P 110 TRIAL OF T. O. SELFRIDGE, ESQ. know by whom he was to be affailed. It became then, as the laws of his country could not afford him protection, a duty in him to pro- tea his own life, by all the means in his power. The particular pur- pofe for which he had the piftol in his pocket I know not. What it was is not fully in evidence. But the plain faa, is this, that the De- fendant, with a piftol fn his pocket, was going down to the Exchange on bufinefs, and was met by a man coming upon him like a perfon attacking a wild beaft ; a blow was ftruck oii his head, which would have fractured his fkull, had it not been for the hat, which he had on. What did nature, what did law and reafon prompt to do on fuch an occafion ? Was it not to make ufe of every means in his power to de- fend himfelf ? Let me here afk what were thefe means ? You have heard accounts of his debilitated ftate, his total want of mufcular ftrength. He could not have defended himfelf, by his hands ; he could not have got out. of the way ; for he was unable to fly. You have it in evidence, that Auftin was on the run ; he could not then have even turned round, without receiving two or three blows, perhaps fatal ones. What then could he do ? that only which he Could do, in de- fence of his life. The only remaining thing he had to do, was what he was compelled to do. He took his piftol from his pocket, and, after having received one blow, killed, as he was receiving another, the affailant, who would have killed him. This is the defence we make to the charge againft Mr. Selfridge. This we contend to be the legal and proper one, of juftifiable homicide to preferve his own lire. If this be unwarrantable, our defence is gone. But if nature, if reafon, if inftiua impel every created being, when attacked, to make ufe of all the means in his power to defend his life and perfon, you cannot adjudge this to have been unlawful in the Defendant, without reducing every onej that is affailed by a ruffian, to this dreadful alter- native, of periifhing by the hand of violence, or by the verdia of a Jury. After this was done, Mr. Selfridge defended himfelf by hold- ing up his hands. Some fay he ftruck ; I muft fay, that from the teftimony, it appears to me he did not. But allowing that he did, it was natural that he fhould do fo. Fie threw his piftol, it is true ; but whether at the deceafed or not, does not appear. The perfon fays it was thrown at his head, and Howe tells us it rolled towards Mr. Ruffell's printing office. The conflia over, no violence vVas feen on the part of Mr. Selfridge. Nothing barbarous, nojthing even like anger or rage. He went for- ward as if exhaufted,.- and leaned againft Mr. Townfend's fhop. Some cried out, who is the rafcal that has killed him ? I, faid the Defen- dant, am the man. I mean not to go away. I know what I have done, and am ready to anfwer for it to the laws of my country. Mr. Melville came up to him, and faid, you ought not to go away. I do not intend to, was ftiil the anfwer. When other pcrfons, feeing a crowd affembled, and violence talked of, advifed him to retire. He went off, fending for the officers of TRIAL OF T. O. SELFRIDGE, ESQ. Ill Juftice, that.he might be ready to anfyver to the laws of his country, if he had offended againft them. He defired Mr. Bourne to let Bell be informed where he was to be found. This was the condua not of guilt, but of confcious innocence. It is attempted to be done away, by faying, that he was to have dined with Mr. Bell; but could any man, efpecially a lawryer, after an aa of this fort, have imagined that he might take his dinner, without interruption, in a public houfe ?— There can be no doubt therefore, that he told where he was to be found, by the fheriff of the county. True, he went away, but not to fly. It was in that awful moment, as in this, that he appealed from the paffions of the people to their judgment, from their imagination to their reafon, from their feelings, to their fenfe of juftice, from their violence, to his country. You, Gentlemen of the Jury, are that country. It is not poffible to conceive any motive to do this aa, but what arofe from neceflity, impofed at the very inftant. It is hardly in evi- dence, that Mr. Selfridge knew this unfortunate young man. If there had been any feelings of revenge to gratify, would he have gone on the Exchange to indulge them ? No, he would have fought fome other opportunity. And what was his behaviour there ? He was tranquil and calm.—Look at hi3 after condua. It was not the refult of hardnefs of heart, but of that confcious innocence, which. proteas the man, unpolluted with fin, when every friend flies from him ; which, in the hour of terror and difmay, whifpers comfort and confolation to his foul: for the heart which knows no crime, can be tortured with no remorfe. This, Gentlemen, is, I believe, the whole of our flory. I am not permitted, by the rules of the Court, to go into argument on the faas. I have barely ftated the law ; not what are my notions of it, but from the books. I took efpecial care not to ftate the cafe, before the witneffes were examined. For it was not my wifh either to exaggerate or diminifh. I meant to place it on the ground, of the evidence itfelf, and to leave, without any appeal to the paffions, your minds open to receive the fair impreffions from the teftimony, I have attempted to recapitulate. Having faid nothing but what they tes- tified, I have done all the duty, which, in this llate of the cafe, I am at liberty to perform. I therefore leave the Defendant with you, barely ftating my own conviaion, as a lawyer, a chriftian, and a man, that he has committed no offence, either againft the law of fociety, of religion, or of nature. That he has not, againft the law of foci- ety, I bottom myfelf on the authorities which have been read. That he has not againft the laws of religion, I infer from the duty which every created being owes to Him, who in his beneficence, brought ua into exiftence, to defend life, by all the means in his power. Not againft the law of nature, for whatever theorifts, or fpeculative men may fay to the contrary, when the alternative arifes, whether a man muft fall, or whether it rnuft be he who affaults him; whether 112 TRIAL OF T. O. SELFRIDGE, ESQ. he muft facrifice all his»duties to God, to religion, and to fociety, or put to death the man by whom he is affailed, nature would affert her prerogative, the aggreffor muft die, and the innocent man re- main alive. Stephen Skehon (called by the Counfel for the Government) fworn. Att. Gen. Did you. fee the Defendant on the fourth of Auguft ? Witnefs. Very fhortly after the death, I faw him, he was ftanding near the poft office. A gentleman that was by him faid to him, " you are agitated." He replied that he was not, he had done as he meant to do, or what he meant to do, or no more than he meant to do ; I cannot fay pofitively which of thefe expreffions he ufed. Richard Edwards called, in behalf of the Defendant. Gore. Was you by when Mr. Selfridge went from State Street ? Witnefs. I was ; had been obferving him, to fee if he was going away, and which way he fhould go. I heard him fay that he was the man ; that he did not intend to go away. When Major Melville came up and told him he hoped he would not think of going away, he faid he was not going off. Afterwards Mr. Ritchie preffed him, and took him away with him. I heard no fuch obfervation as Mr. Skelton has teftified to. William Ritchie, called by Mr. Gore. Gore. Pleafe to relate particularly the circumflances that occur- red after the death. Witnefs. I heard nothing of the fpeech which Mr. Skelton has teftified to. When I advifed him to go with me, he would not. I had hold of his arm, and was preffing him to go, when Major Melvill fpoke to him ; he broke from me and refufed to go. He faid he was not fo much agitated as I was : he knew very well what he had done. He afterwards went with me to my houfe, and when he heard of the death {I had no belief that Auftin was dead, before I went home) he expreffed great regret, and faid, if he fhould be permitted to attend the funeral, he believed he fhould be as fincere a mourner as any one in the proceffion, except the parents themfelves. Att. Gen. As the authorities read from Grotius and Hale are ex- plained by former and fubfequent paffages, I will beg have to read them now, that the oppofite fide may have an opportunity of com- menting on them. The firft is HaISs Hiji. P. C. 451. " Malice in fact is a deliberate intention of doing fome corporal harm to the perfon of another." " Malice in law, or prefumed malice, is of feveral kinds, viz. 1. In refpect of the manner of the homicide. 2. In refpect of the perfon killed, viz. a mini Iter cf juftice in execution of his office. 3. In refpect of the perfon killing." " Malice in fa>ft is a deliberate intention of doing any bodily harm to another, whereunto by law he is not authorized." " The evidences of fuch a malice nvift arife from external circumftances dif" covering that inward intention, as lying in wait, menacings antecedent, forme TRIAL OF T. ©. SELFRIDGE, ES£. SH grudges, deliberate compaffings, and the like, which are various according to va- riety of circumftances." Hid 452. " A. challenges C. to meet in the field to fight, C. declines it as much as he can, but is threatened by A. to be ported for a coward, &c. if he meet not, and thereupon A. and B. his fecond, and C. and D, his fecond, meet and fight, and C. kills A. this is murder in C. and D. his fecond, and fo ruled in Ta-verners cafe, though C. unwillingly accepted the challenge." %' " If A. challenge B. to light, B. declines the challenge, but lets A. know, that he will not be beaten, but will defend himfelf! if B. going about his occafions wears his fword, is affaulted by A. and killed, this is murder in A.; but if B. had killed A. upon that affault, it had been fe defendendo, if he could not otherwife efcape, or bare homicide, if he could efcape, and did not." " But if B. had only made this as a difguife to fecure himfelf from the danger of the law, and purpofely went to the place, where probably he might meet A and there they fight, and he kills A. then it had been murder in B.; but herein circumftances of the fact muft guide the jury." " If A. and B. fall fuddenly out, and they prefently agree to fight in the field, and run and fetch their weapons, and go into the field and fight, and A. kills B. this is not murder but homicide, and it is but a continuance of the fudden falling out, and the blood was never cooled ; but if there were deliberation, as that they meet the next day, nay, though it were the fame day, if there were fuch a com- petent diftance of time, that in common prefumption they had time of delibera- tion, then it is murder." " A boy came into Osterley park to steal wood, and feeing the woodward, climbs up a tree t6 hide himfelf, the woodward bids him come down, he comes down, and the woodward ftruck him twice, and then bound him to his horfe tail, and dragged him till his fhoulder was broke, whereof he died ; it was ruled mur- der, becaufe 1. The correction was excessive, and 2. It was an act of deliberate cruelty." " If the mafter defigneth moderate correction to his fervant, and accordingly ufeth it, and the fervant by fome misfortune dieth thereof, this is not murder, but per infortunium. Becaufe the law alloweth him to ufe moderate correction, and therefore the deliberate purpofe thereof is not ex malitia pracogitata." « But if the mafter 4efigneth an immoderate or unreafonable correction, either in refpect of the meafure, or manner, inftrument thereof, and the servant die thereof, I fee not how this can be excufed from murder, if done with deliberation and defign, nor from manflaughter, if done hastily, paffionately, and without deliberation ; and herein confideration muft be had of the manner of the prov- ocation, the danger of the inftrument, which the mafter ufeth, and the age or condition of the fervant that is ftricken, and the like of a fchoolmafter towards his fcholar." 4. Black. Com. 194. " We are next to confider the crime of deliberate and wilful murder ; a crime at which nature ftarts, and which is I believe punifhed almoft univerfaliy throughout the world with death. The words of the Mofai- cal law (over and above the general precept to Noah, " that whofo fheddetk man's blood, bv man fhall his b!oo4 be fhed") are very emphatical in prohibit- ing the pardon of murderers. " Moreover ye fhall take no fatisfaction for the life of a murderer, who is guilty of death, but he fhall furely be put to death ; for the land cannot be cleanfed of the blood that is fhed therein, but by the blood of him that fhed it" Ibid. 195. Murder is therefore now thus defined, or rather defenbed by Sir Edward Coke ; " when a perfon of found memory and difcretiori, unlawfully killeth any reafonable creature in being and under the king's peace, with malice aforethought, either exprefs or implied." Ibid. 196. " Next it happens when a perfon of fuch found difcreticn unlawfully lilUth. The ur'awfulnefs arifcth from the killing without warrant or excufe.'' 114 TRIAL OF T. O. SELFRIDGE, ESQ. Ibid. 200. " Alfo in many cafes where no malice is expreffed, the law v.il. imply it : as, where a man wilfully poifons another, in fuch a deliberate act the law prefumes malice, though no particular enmity can be proved. And if a man Irilk another fuddeniy, without any, or without a confiderable provocation, the law implies malice ; for no perfon, unlefs of an abandoned heart, would be guilty of fuch an act, upon a flight or no apparent caufe. No affront, by words or gi lures only, is a fufficient provocation, fo as to excufe or extenuate fuch acti of violence as manifeftly endanger the life of another. But if the perfon fo pro- voked had unfortunately killed the other, by beating him in fuch a manner as fhewed only an intent to chaftife and not to kill him, the law fo far confidcrs the provocation of contumelious behaviour, as to adjudge it only manflaughter, and not murder. In like manner if one kitts an officer of juftice, either civil or crim- inal, in the execution of his duty, or any of his affiftants endeavouring to conferve the peace, or any private perfon endeavouring to fupprefs an affray, or appre- hend a felon, knowing his authority or the intention with which he intcrpofc;, the law will imply malice, and the killer fhall be guilty of murder. And if one intends to do another felony, and undefignedly kills a man, this is alfo murder. Thus if one fhoots at A, and mines him, but kills B, this is murder; becaufe of the previous felonious intent, which the law transfers from one to the other. The fame is the cafe where one lays poifon for A; and B, againft whom the prifoner had no malicious intent, takes it, and it kills him ; this is likewife mur- der. So alfo, if one gives a woman with child a medicine to procure abortion, and it operates fo violently as to kill the woman, this is murder in the perfon hwo gave it. It were endlefs to go through all the cafes of homicide, which have been adjudged either exprefsly, or impliedly, malicious: thefe therefore may fuffice as a fpecimen ; and we may take it for a general rule that all homicide is malicious, and of courfe amounts to murder, onlefs where juftified by the com- mand or permiflion of the law ; excufed on the account of accident or felf pre- fervation; or alleviated into manflaughter, by being either the involuntary con- fequence of fome act, not ftrictly lawful, or (if voluntary) occafioned by fome fudden and fufficiently violent provocation. And all thefe circumftances of jufti- fication, excufe, or alleviation, it is incumbent upon the prifoner to make out, to the fatisfaction of the court and jury." The Attorney General then read an extract from Judge Trow- bridge's charge at the trial of the foldiers in 1770. " Homicide is of three kinds; juftifiable, excufable, and felonious: the firft has no fhare of guilt at all; the fecond very little ; but the third is the higheftcrime againft the law of nature. There arc alfo degrees of guilt in felonious homicide, which divide the offence into manflaughter and murder. I fhall give fome in- ftances under each head, proper to be confidered in this cafe, and known at this day. And firft of juftifiable homicide : killing him who attempts to rob or mur- der me, to break open my dwelling houfe in the night, or to burn it, or by force to commit any other felony on me, my wife, child, fervant, friend, or even a ftranger, if it cannot otherwife be prevented, is juftifiable. So in cafe of a fudden affray, if a private perfon interpofing to ^art the combatants, and giving notice ©f his friendly deiign, is affaulted by them, or either of them, and in the ftruggie happens to kill, he may juftify it, becaufe it is the duty of every man to interpofe in fuch cafes to preferve the public peace." " Homicide excufable in felf defence, is where one engaged in a fudden affray quits the combat before a mortal wound is given, retreat's as far as he fafely can, and then urged by mere neceilky, kills his adverfary in the defence of his own life. This differs from juftifiable felf defence, becaufe he was to blame for engag- ing in the affray, and therefore muft retreat as far as he can fafely ; wherea* in the other cafe aforementioned, neither the peace officers, nor his afliftants, nor the private perfon, is obliged to retreat, but may ftand and repel force by force. TRIAL OF T. O. SELFRIDGE, ESQ. 115 " Manflaughter is the unlawful killing another without malice exprefs or im- plied : as voluntarily upon a fudden heat, or involuntarily in doing an unlawful act. Manflaughter on a fudden provocation, differs from excufable homicide in felf defence, in this ; that in one cafe there is an apparent neceffity for felf pre- fervation to kill the aggreffor, in the other there is no neceflity at all, it being a. fudden adt of revenge." Sol. Gen. To rightly underftand the paffages from Grotius, read by Mr. Gore, in his opening, it will be neceffary to refer to other parts of the fame author. I therefore fhall read from Book II. ch. 1. § 3. " We have before obferved, that 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 juftly deftroy the aggreffor ; and from this inftance, which every one muft allow us, it appears that fuch a private war may be juft and lawful; for it is to be obfervcd, that this right or property of felf defence is what nature has implanted in every creature, without any regard to the inten- tion of the aggreffors ; for if the perfon be no ways to blame, as for inftance, a foldier upon duty ; or a man that fhould miftake me for another, or one diftradt- ed, or a perfon in a dream, (which may poffibly happen.) I do not therefore lofe that right that I have of felf defence; for it is fufficient that I am not obliged to fuffer the wrong that he intends me, no more than if it was a man's beaft that came to fet upon me." " It is a matter of difpute, whether we may kill or trample on innocent per- fons, who fhall hinder that defence, or efcape, that is abfolutely neceffary for the preservation of our lives. There are fome even among divines who think it lawful. And certainly, if we have regard to nature only, the refpect that we owe to fociety in general, is of lefs moment than the prefervation of ourfelves; but the law of charity, especially the evangelical, which has put our neighbour upon a level with ourfelves, does plainly not permit it." " It was wetl obferved of Aquinas, if apprehended rightly, that in our own defence we do not purpofely kill another; not but that it may be fometimes lawful, if all other means prove ineffectual, to do that purpofely by which the aggreffor may die ; not that this death was fo much our choice, or primary de- fign, (as in capital punifhments,) but the only means we had then left to preferve ourfelves; nay, and even then, one would wifh, if poffible, rather to fright or difable him, than to be obliged, even by mere neceffity, to kill him." Ibid. p. 9. " If then I am not threatened with any prefent danger, if I only difcover that fomebody has laid a plot and ambufcade againft me, that he defigns to poifon me, or by fuborning witneffes to procure an unjuft fentence againft me, why, in this cafe, I muft not kill him ; if either fuch a danger can be poffibly avoided any other way, or at leaft, that it does not then fufficiently appear that it may not be avoided. For time gives us frequent opportunities of remedy, and there may many things happen, as the proverb has it, betwixt the cup and the Ep. Though there are both divines and lawyers, who are a little too indulgent in thisaffair : however, the other opinion, which is certainly the fafer and better, is not altogether deftitute of authority." " But what fhall we then fay of the danger of lofing a limb, or a member ? when a member, efpeciafly if one of the principal, is of the higheft cocfequence, and even eqfal to life itfelf; 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." Ibid. p. l -i. '• There are fome of opinion, that if a man is in danger of receiv- » ^ a box on the ear, or any injury of the like nature, he has a right of revenging to fmall a crime, even by the death of him that attempts it. If regard be here only had to expletive juftice, I do not deny it; for although there be no mannex »f propei aon betwixt death, and fo flight am injury ; yet whoever f&all attempt 116 TRIAL OF T. O. SELFRIDGE, ESQ. to wrong me, gives me from that time a right, that is, a certain moral powcf againft him for ever; upon a fuppofition, that I am not otherwise capable of diverting fuch an injury from my own perfon. Neither does human affedhon itfelf feem to limit us here to any thing that may be in favour of the aggreffor ; but the gofpel does exprefsly forbid this, for Chrift commanded his apoftles rather to receive a fecond blow, than to hurt their adverfary. How much more then does he forbid the killing of a man for fo trivial an offence ?" Ibid, p. 15. " It is therefore very furprifing, that when God has fo manifeftly declared his will in the gofpel, we fhould find divines, nay chriftian divines, who maintain, that it is not only lawful to kill a man, in order to avoid fo trivial an injury; but to purfue him, in cafe he fhould endeavour to efcape, to recover their honour, as they call it; which to me feems as well contrary to reafon, as to piety. For honour being the opinion of fome excellency or merit, he that can put up fuch an affront, expreffes a particular excellency of temper ; and there- fore rather adds to his honour, than detracts from it. Neither is it at all mate- rial, if fome men of corrupt judgment fhall revile this virtue with an opprobrious name, their opinions being of no moment, either to alter the thing itfelf, or the reputation it carries among men of fenfe." Job Bafs (called by the Government's counfel)—fworn. Att. Gen. Did you fee this affair ? Witnefs. Yes, I firft faw Mr. Selfridge ftanding at his office door ; faw him walk down to the corner of the old State Houfe ; when paft the corner, he put his hands behind him, and walked flowly to- wards Congrefs Street. I faw Mr. Auftin ftanding near Mr. Townfend's fhop, and when he ftepped out towards Mr. Selfridge, he raifed his right arm. Mr. Selfridge's arm was removed from be- hind him, and raifed to a horizontal pofition. The piftol went off immediately, and then Mr. Auftin ftruck him violently acrofs the forehead. Dexter. May it please your honor, and you gentlemen of the jury—It is my duty to submit to your consideration some obser- vations in the close of the defence of this important and interesting cause. In doing it, though I feel perfec ly satisfied that you are men of pure minds, yet I reflect with anxiety, that no exertion or >:eal 0:1 the part of the defendant's counsel can possibly insure jus&ice, unless you likewise perform your duty. Do not suppqse that I mean to suggest the least suspicion with respect to your principles or monves. I know you to have been selected in a manner most likely to obtain impartial justice ; and doubtless you have honestly resolved, and endeavoured to lay aside all opinions which you may have entertained previous to this trial. But the difficulty of doing this, is perhaps not fully estimated ; a man de- ceives himself, oftener than he misleads others ; and he does in- justice from his errors, when his principles are all on the side of rectitude. To exhort him to overcome his prejudices, is like tell- ing a blind i;ran to see. He'may be disposed to overcome them, nr.d yet be unable because they ate unkown to himself. Wh..* •jrejudif" is ^ ce known, it is no longer prejudice, it becomes cor- , p:i'on , but so I~ not !--:g-.vn, the possessor ch?:Vt"-t • TRIAL OF T. O. SELtfRIDGE, ESQ;_ it withotit guilt; he feels indignation for vice, and pays homage to virtue ; and yet docs injustice. It is the apprehension that you may thus mistake—that you may call your prejudices, prin- ciple*, and believe them such, and that their effects may appear to you the fruits of virtue ; which leads us so anxiously to repeat the request, that you would examine your hearts, and ascertain that yoa do not Come here with partial minds. In ordinary cases there is no reason for this precaution. Jurors are so appointed by the institutions of our country, as to place them out of the reach of improper influence on common occasions; at least as much so as frail humanity will permit. But when a cause has been a long time the subject of party dis- cussion—when every man among us belongs to one party or the other, or at least is so considered—is hen the democratic presses, throughout the country, have teemed with publications, fraught with appeals to the passions, and bitter invective against the de^ fendant;—when on one side every thing has been done,, thai par- ty rage could do, to prejudice this cause ; and on the other, little has been said in vindication of the supposed offender ; though oh one occasion I admit that too much has been said ; when silence has been opposed to clamour and patient waiting for a trial to systematic labour to prevent justice;—when the friends of the accused, restrained by respect for the lavfrs, have kept silence, be- cause it was the exclusive right of a Couit of Justice to speak,-- when no voice has been beard from the walls of the defendant's prison, but a request that he may not be condemned without a trial ; the necessary consequence must be, that opinion will pro- gress one way,—that the stream of incessant exertion will wear a channel in the public mind ; and the current may be strong enough to carry away those who may be jurors, though they know not how, or when, they received the impulse that hurries them forward. - I am fortunate enough not to know, with respect to most ot you, to what political party you belong. Are you republican federalists ? I ask you to forget it 5 leave all your political opin- ions behind you; for it would be more mischievous, that you should acquit the defendant from the influence of these, than thdt an innocent man, by mistake, should be convicted. In the latter case, his would be the misfortune, and to him would it be confin- td ; but in the other, you violate a principle, and the consequence may be ruin. Consider what would be the effect of an impres- sion on the public mind, that in consequence of party qpinion and feelings, the defendant was acquitted. Would there still be resource to the laws, and *> the justice of the country? Would the passions of the citizen, in a moment of frenzy, be calmed by looking forward to the decision of courts of law for justice ? « lis TRIAL OF T. O. SELFRIDGE, ESQ;_ Rather every individual would become the avenger of imaginary transgression—V olence would be repaid with violence ; havoc would produce havoc ; and instead of a peaceable recurrence to the tribunals of justice, the spectre of civil discord would be seen stalking throogji our streets, scattering desolation, misery, and crimes. Such may be the consequences of indulging political prejudice on this day ; and if so, you are amenable to your country and your God. This I say to you who are federalists ; and have I not as much right to speak thus to those who are democratic republi- cans ? That liberty which you cherish with so much ardor, de- pends on your preserving yourselves impartial in a court of justice. It is proved by the hiftory of man, at least of civil society, that the moment the judicial power becomes corrupt, libarty expires. What is liberty but the enjoyment of your rights, free from out- rage or danger ? And whac security have you for these, but an impartiaj, administration of justice ? Life, liberty, reputation, pioperty, and domestic happiness, are all under its peculiar pro- tection. It is the judicial power, uncorrupted, that brings to the dwelling of every citizen, all the blessings of civil society, and makes it dear to man. Little has the private citizen to do with the other branches of government. What to him are the great and splendid events that aggrandize a few eminent men and make a figure in history ? His domestic happiness is not less real because it will not be recorded for posterity : but this happiness is his no longer than courts of justice protect it. It is true, inju- ries cannot always be prevented ; but while the fountains of jus- tice are pure, the sufferer is sure of a recompence. Contemplate the intermediate horrors and final despotism, that must result from mutual deeds'of vengeance, when there is no longer an impartial judiciary, to which contending parties may appeal, with full confidence that principles will be respected. fearful must be the interval of anarc^ ; fierce the alternate pangs of rage and terror ; till one party shalL/testroy the other, and a gloomy despotism tcrmfnate the struggles of conflicting factions. Again, I beseech you to abjure your prejudices. In the language once addressed from Heaven to the Hebrew pro- phet, " Put off your shoes, for die ground on which you stand is holy." You are the professed friends, the devoted worshippers of civil liberty ; will you violate her sanctuary ? Will you profane her temple of justice? Will you commit sacrilege while you kneel at her altar ? I will now proceed to state the'nature of the charge on which you are to decide, and of the defence \vhich we oppose to it; then examine the evidence, to ascertain the facts, and then inquire what is the law applicable to those facts. TRIAL OF T. 0. SELFRIDGE, ESQ^ n-9 The charge is for manslaughter ; but it has been stated in the opening, that it may be necessary to know something of each spe- cies of homicide, in order to obtain a correct idea of that which you are new to consider. ^ Homicide, as a general term, includes, in law, every mode of killing a human being. The highest and most atrocious is mur- der ; the discriminating feature of which is previous malice___ With that the defendant is not charged : the Grand Jury did not think that by the evidence submitted to them, they were author- ized to accuse him of that enormous crime. They have therefore charged him with manslaughter only. The very definition of this crime, excludes previous malice ; therefore it is settled, that there cannot, with respect to this of- fence, be an accessary before the fact ; because the intention of committing it is first conceived at the moment of the offence, and executed in the heat of a sudden passion, or it happens without any such intent, in doing some unlawful act. It wiU not be contended that the defendant is guilty of either of these descrip- tions of manslaughter. Neither party suggests that the defendant was under any peculiar impulse of paffion at, the moment, and had not time to reflect ; on the contrary, he is said to have been too cool and deliberate. The case in which it is important to inquire, whether the act was done in the heat of blood, is where the indictment is for murder, and the intent of the defence is to reduce the crime from murder to manslaughter ; but Selfridge is not charged with murder. There is nothing in the evidence that has the lea£ tendency to prove an accidental killing, while doing some unlawful act. It is difficult to say, from this view of manslaughter, when compared with the evidence, on what legal ground the defendant can be convicted ; unless it be, that he is to be considered as proved guilty of a crime which might have been charged as murder, and by law, if he now stood before you under an indictment for murder, you might find him guilty of manslaughter, and-therefore you may now convict him. This does not appear to be true ; for the evidence would not apply to reduce the offence from murder to manslaughter, on ei- ther of the aforementioned grounds. Perhaps it may be said that every greater includes the less, and therefore, manslaughter is included in murder ; and that it is on this principle that a con- viction for manslaughter may take place on an indictment for murder. I will not detain you to examine\his, for it is not do- ing justice to the defendant to admit, for a mement, even for the sake of argument, that the evidence proves murder. Our time will be more usefully employed in considering the principles of the defence. Let it be admitted then, as stated by the counsel for government, that, the killing being proved, it is incumbent 120 TRIAL OF T. O. SELFRIDGE, ESO^. on the defendant to discharge himself from guilt. Our defence is simply this, that the killing was necessary in self defence ; or, in other words, that the defendant was in such imminent danger of being killed, or suffering other enormous bodily harm, that he had no reasonable prospect of escaping, but by killing the as- sailant. This is the principle of the defence stripped of all technical language. It is not important to state the difference between jus- tifiable and excusable homicide, or to show to which the evidence ■will apply ; because, by our law, either being proved, the de- fendant is entitled to a general acquittal. Let us now recur to uie evidence and see whether this defence be not clearly established. [Mr. Dexter then went into a minute examination of the whole evi- dence, which it here omitted, because it was necessarily very long and the evidtnce itself is all before the public. In the course of it he laboured to prove, tiat Mr. Selfridge went on the exchange about his lawful bu- siness, and withont any design of engaging in an affray ; that he was in the practice of carrying pistols, and that it was uncertain whether he took the weapon in his pocket in consequence of expecting an attack ; that if he did, he had a right so to do, provided he made no unlawful use of it ; that the attack was so violent and with so dangerous a wea- pon, that he was in imminent danger ; that it was so sudden, and him- self so feeble, that retreat would have been attended with extreme haz- ard ; that the pistol was not discharged until it was certain that none would interfere for his relief, and that blows, which perhaps might kill him, and probably would fracture his skull, were inevijgble in any other way, and that the previous quarrel with the father of the deceased, if it could be considered as affecting the cause, arose from the misbehaviour of tld Mr. Austin, and that the defendant had been greatly injured in that affair.] Mr. Dexter then proceeded as folio irs.— It cannot be necessary, gentlemen, for the defendant to satisfy you beyond doubt, that he received a blow before the discharge of the pistol. There is positive evidence from one witness, that the fact was so, and other witnesses say much that renders it probable. But if the defendant waited until the cane was de- scending, or even uplifted within reach of him, reason and com- mon sense say, it is the same thing : no man is bound to wait until he is killed, and being knocked down, would disable him for defence. The killing can be justified only on the ground that it was necessary to prevent, an injury that was feared ; not that it was to punish for, One that was past. This would be revenge, and not self defence. The same law authorities, which tell you, that a man must re* treat as far as he can. say also, that if the assault be so violent, TRIAL OF T. O. SELFWDGE, E&^ 121 that he cannot retreat, without imminent danger, he is excused from so doing. If this means any thing, it is applicable to om case: for perhaps you can hardly imagine a more violent or more sudden assault. When to this is added the muscular debility of the defendant, it certainly forms a vary strong case. He could neither fight nor fly. Had he attempted the latter, he must have been overtaken by his more athletic and active antagonist, and cither knocked down, or maimed, or murdered, as the passions of that antagonist might dictate. But it is said, and some passages from law books are read to prove it, that the necessity which excuses killing a man, must not be produced by the party killing ; and that he must be without fault. You are then told, that the defendant sought the affray, and armed himself for it, and that he had been faulty in calling Mr. Austin, the father, opprobious names in the newspaper, As to the affray being sought by the defendant, there is 10 evidence to support such an assertion, but what arises from his conversations with Mr. Richardson and Mr. Whitman, or from the fact of his having a pistol in his pocket. These only prove, that he was prepared to defend himself, if attacked.; and if he did defend himself lawfully, this is the best evidence to show what was his intention : It cannot be presumed that he took the pistol with an unlawful intent, when he never expressed such intent, and. when his. subsequent conduct was lawful. He had been informed that he should be attacked by a bully ; in such case what was his duty ? Was he bound to shut himself up in his own house ? Was he bound to hire a guard ? If he had dofie so, this would have been urged as the strongest evidence of his in- tention to commit an affray. Could he obtain surety of the peace from a future assailant, whose name was unknown to him ? Or was he bound to go about his business, constitutionally feeble and unarmed, at the peril of his life ? There would be more colour for this suggestion, if the defendant had gone on the exchange and there insulted either old Mr. Austin, or his son, or volunta- rily engaged in altercation with either of them. But he went peaceably about his ordinary business, and made use of his wea-? pon only when an unavoidable necessity happened. A man when about to travel a road, infested with robbers, lawfully arms himself with pistols ; if he should be attacked by a robber, and from necessity kill him, is he to be charged with having sought this necessity, because he voluntarily undertook the journey, knowing the danger that attended it, and topk weapons to defend himself against it ? As little is the defendant to be censured for gQing about his ordinary business, when he knew that it would be attended with danger, and arming himself for defence, in case *uch an emergency sfcaujd happen, as that the laws could not af- 122 f RTAL OF T. O. SELFRIDGE, ESO^ ford him protection. I have here supposed that the pistol was taken for the purpose for which it was used ; this however is far from being certain from the evidence, as it is in proof, that the defendant had daily occasion for pistols in passing between Bos- ton and Medford, a road that has been thought attended with some danger of robbery ; and that he sometimes carried pistols in his pocket. There k not the least pretence for saying, thtt he expected an affray with young Mr. Austin. He could not pre- sume that his father would employ him ; and it is not probable that he knew him in the confusion that the sudden attack must have produced. As to the publication in the newspaper agains t old Mr. Austin, though this might be in some sense a fault, yet it is far from being within the principle established by the books. When it is said the party must be without fault, it is evident that nothing more is meant, than that he must be without fault in that particular transaction. If we are to leave this and look back, where are we to stop ? Are we to go through the life of the party to examine his conduct ? If the defendant had libelled Mr. Aus- tin, that was a previous and distinct offence, for which he was and yet is liable to an action or an indictment ; and unless it be presumed without evidence and against all probability, that it was intended to produce this affray it can have no connection with the principle stated. There is another obvious motive for it, and there is nothing in the evidence tending to convince you that it was intended to provoke an attack : The defendant had been defamed ; retaliation was the natural punishment ; and there is no reason to presume that any thing more was intended, unless it was to blunt the shafts of calumny from Mr. Austin, by destroying his credit and standing in society. It is true, that it is said by several respectable compilers of law that the party killing must be without fault; bur they all refer to one adjudged case, which is found stated in i. Hale's P. C. page 440. By recurring to the statement of this case it appears,that the per- sons who killed, and would have excused it on the ground of ne- cessary self defence, had forcibly entered and disseized the right- ful owner of a house, and continued forcibly to detain it against him ; in an attempt by the owner forcibly to recover possession ; those, who held wrongfully, were reduced to the necessity of killing ; and it was holden, that as they were then engaged in an unlawful act, namely, forcibly detaining the house against him who had a right to enter, they had produced this necessity by their own wrongful conduct, and therefore it should not excuse them. So that this principle seems to be related to another and in reality to be involved in it; I mean the well known principle that he who kills another by accident, while performing an unlawful 6 TRIAL OF T. O. SELFRIDGE, ESQ^ 12S act, is guilty of manslaughter. It would be absurd, that a man who kills by accident, while peforming an unlawful act, should be guilty of manslaughter ; and yet that he who kills, from de- sign, while performing an unlawful act, however necessary it may have become, should be guiltless. It is settled that if on a sudden affray, A make an assault on B, and afterwards the assaulter be driven to the wall, so that he can retreat no farther, and then kill B necessarily in his own defence, that is ex- cusable homicide in A ; and yet here A was in fault in this very affray, by making the first assault ; but having afterwards re- treated as far as he could, the law extend* to him the right of self-defence. This shews that unless at the moment of killing, the party be doing wrong, the principle contended for on the other side does not apply. In proof of this I will also read to you an authority from i st Hale's P. C. 479. " There is malice " between A and B, they meet casually, A assaults B and drives " him to the wall, B in his own defence kills A. This is se defen- " dendo, and shall not be heightened by the former malice into mur- " der or homicide at large; for it was not a killing on the " former malice, but upon a necessity imposed upon him by the " assault of A. " A assaults B and B presently thereupon strikes A without " flight, whereof A dies ; this is manslaughter in B and not se " defendendo. But if B strikes A again, but not mortally, and " blows pass between them, and at length B retires to the wall,* " and being pressed upon by A, gives him a mortal wound, " whereof A dies, this is only homicide st defendendo, although " that B had given divers other strokes that were not mortal be- " fore he retired to the wall or as far as he could. But now sup- " pose that A by malice makes a sudden assault upon B, who " strikes again and pursuing hard upon A, A retreats to the " wall, and in saving his own life, kills B. Some have held this " to be murder, and not se defendendo, because A gave the first " assault, Cromp.fol 22 b. grounding upon the book of 3 Edw. 3 " Itin. North. Coron- 287 ; but Mr. Dalton, ubi fupra, thinketh it " to be se defendendo, though A made the first assault either with " or without malice, and then retreated." I am bound in candor to add, that the law, as above laid down, on the authority of Dalton, has since been doubted as to that part of it which supposes previous malice. This passage has been reviewed by Hawkins and East in their several treatises on crown law, and I have chosen to read it from this very circum- stance, because it appears that it has been well considered ; and when subsequent and eminent writers on full examination reject a part, and admit the residue to be. law, it is strong confirma- tion of that residue. It is that alone on which I rely, and \i is 124 TRIAL OF T. 0. SELFRIDGE, ESO^ amply sttmcrent to prove, what Ihavie before stated ; that if A first assault B on a sudden affray without maliee, A may still excuse killing B from a subsequent necessity in his own defence ; and yet none will deny that first assaulting B, though without malice was a fault. On this point, I submit to your consideration One further re- mark. The publication in the newspaper is nothing more than provoking language ; now if the defendant had immediately be- fore the affray, made use of the same language to old Mr. Aus- tin, no lawyer will pretend that this would have been such a fault as would have precluded the defendant from excusing him- self fdr the subsequent necessary killing on the principle of self- defence. If it were so, we should find it so stated in books of authority that treat on this subject; for the case must often have happened, as provoking language generally precedes blows. On the contrary, we find it settled, that even making the first assault does not deprive the party of this defence. It would be Absurd then to say, that rude and offensive language, which can- hot even justify an assault, should produce this effect. It can hardly be necessary to add, that, if these words, spoken at the moment* would not have deprived the defendant of this defence, having published them before, in a newspaper, cannot produce this consequence. I have hitherto admitted that the publication in the newspa- per was a fault in the defendant ; nor am I disposed enth ely to justify it ; yet circumstances existed which went far to extenuate it. He had been defamed on a subject, the delicacy of whic'i, ■perhaps, will not be understood by you, as you are not lawyers, Without some explanation. Exciting persons to bring suits is an infamous offence, for which a lawyer is liable to indictment; and to be turned away from the bar. It is so fatal to the reputation rfa lawyer, that it is wounding him in the nicest pomt, to charge him with it. It is the point of honor ; and charging him with barratry, or stirring up suits, is like calling a soldier a coward. Mr. Austin, the father, had accused the defendant, publickly of this offence, respecting a transaction in which his conduct had been punctiliously correct ; the defendant first applied to him in person, and with good temper, to retract the charge ; afterwards in conversations with Mr. Welsh, Mr. Austin acknowledged the accusation to be false, and promised to contradict it as publickly as he had made it ; yet he neglected to do it; again he said he had done it; but the fact appeared to be otherwise. This in- duced the defendant to demand a denial of it in writing ; though Mr. Austin privately acknowledged he had injured Mr. Selfridge', yet he refused to make him an adequate recompence, when he neglected to make the denial as public as the charge. Tlris was TRIAL OF T. O. SELFRIDGE, ESO^ 1,2s a state of war between them upon this subject, in which ^he more the defendant annoyed hisenem,, the less power he hadt-> hurt him. It was therefore a species of self-defence ; and Mr. Austin, who had first been guilty of defamation, perhaps had little cause to complain. To try the correctness of this, we will imagine an extreme case. Suppose a man should have established his reputation as a com- mon slanderer and calumniator, by libelling the most virtuous and eminent characters of his country, fr>>m Washington and Ad- ams, down through the whole list of American patriots ; sup- pose such a one to have stood for twenty years in the kennel, and thrown mud at every well dressed passenger; suppose him to have published libels, 'till his stile of defamation has become as noto- rious as his facs, would not every one say, that such conduct was some excuse for bespattering him in turn ? I do not apply this to any individual ; but it is a strong case to try a principle ; and if such conduct would amount almost to a justification of him who should retaliate, will not the slander of Mr. Austin, against Mr. Selfridge, furnish some excuse for him ? It has also been stated to you, gentlemen, and some books have been read to prove it, that a man cannot be justified or excused in killing another^n his own defence, unless a felony were attempt- ed or intended. Some confusion seems to have been produced by this, which I will attempt to dissipate. It has been settled that if a felony be attempted, the party injured may kill the of- fender, without retreating as far as he safely can ; but, that if the offence intended, be not a felony, he cannot excuse the killing in his own defence, unless he so rstreat, provided circumstances will permit. On this principle, all the books that have been read to this point, may easily be reconciled. But the position contend- ed for by the oppcsing counsel, is in direct contradiction to one authority which they themselves have read. In the fourth vol- ume of Blackstone's Commentaries, page 185, the law is laid down as follows—"The party assaulted must theiefore flee as far as he " conveniently can,either by reason ol some wall,ditch, or other ini- " pediment,or as far as the fierceness of the assault will permit him ; " tor it may be so fierce as not to allow him to yield a step, with- " out manifest danger of his life or enormous bodily harm ; and 14 then in his defence he may kill his assailant instantly. And '• this is the doctrine of universal justice, as well as of the muni- •• cipal law." Also, in 1 * Hawkins Pleas of the Crown, chap. 29, sect. 13," the law on this point is stated thus : " And now i '* am to consider homicide se dtjendendv, 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'dclcnding IS6 TRIAL OF T. O. SELFRIDGE, ESQ. " his person from one who attempts to beat him, (especially it " such attempt be made upon him in his own house) kills the " person by whom he is reduced to such an inevitable necessity." From these two highly respectable authorities, it appears that, tho gh nothing more be attempted than to do great bodily injury, or even to beat a man, and there be no possibility of avoiding it, but by killing the assailant, it is excusable so to do. When the weight and strength of the^cane, or rather cudgel, which the de- ceased selected is considered, and the violence with which it was used, can it be doubted that great bodily harm would have been the consequence, if Selfridge had not defended himself ? The dif- ference between this weapon and the pistol m de use of by the de- fendant, perhaps, is greatly exaggerated by the imagination. The danger from the former might be nearly as great as from the latter : when a pistol is discharged at a man, in a moment of con- fusion and agitation, it is very uncertain whether it will take ef- fect at all ; and if it should, the chances are perhaps four to one, that the wound will not be mortal. Still further, when the pis- tol is once discharged, it is of little or no use ; but with a cane a man, within reach of his object, can hardly miss him ; and if the first blow should prove ineffectual, he can repeat his strokes until he has destroyed his enemy. If it were intended to excite contempt for the laws of the coun- try, a more effectual method could hardly be taken, than to tell a man, who lias a soul within him, that if one attempts to rob him of a ten dollar bill, this is a felony; and therefore esteemed by the law an injury of so aggravated a nature, that he may lawfully kill the aggressor ; but that, if the fame man should whip and kick him on the public exchange, this is only a trespass, to which he is bound to submit rather than put in jeopardy the life of the assailant; and the laws will recompense him in dam- ages. Imagine, that you read in a Washington newspaper, that on a certain day, immediately on the rising of Congress. Mr. A. of Virginia, called Mr. B. of Massachusetts, a scoundrel, for voting against his resolution ; and proceded deliberately to cut off his ears. Mr. B. was armed with a good sword cane, but observed, that his duty as a citizen forbade him to endanger the life of Mr. A. for, that cutting off a man s ears was by law no felony ; and he had read in law books that courts of justice were the only proper " vindices injuriarum," and th ne cheek turn to him he other also" No exceptions to these rules are stated ; yet does not every rational ch • tian necessarily make them ? I have been led to make these ob^ rvations, not because I think them necessary in the defence of Mr. 4>elfridg= ; but because 128 TRIAL OF T. O. SELFRIDGF, ESO^ I will have no voluntary agency in degrading the spirit of my country. The greatest of all public calamities, would be a pu- s/llanim; us spirit, that would tamely surrender personal dignity to every invader. The opposing counsel have read to you, from books of acknowledged authority, that the right of self-defence was not giv n by the law of civil society, and that, that law can- not take it away. It is founded then on the law of nature, which is of higher authority than any human institution. This law en- joins us to be useful, in proportion to our capacities ; to protect the powers of being useful, by all means that nacure has given us, and to secure our own happiness, as well as that of others. These sacred precepts cannot be obeyed without securing to our- selves the respect of others. Surely, 1 need not say to you, that the man who is daily beaten on thepublic exchange, cannot re- tain his standing in society, by recurring to the laws. Recover- ing daily damages will rather aggravate the contempt that the community will heap upon him ; nor need I say, that when a man has patiently suffered one beating, he has almost insured a repetition of the insult. It is a most serious calamity, for a man of high qualifications for usefulness, and delicate sense of honor, to be driven to such a crisis, yet should it become inevi-able, he is bound to meet it like a man, to summon a 1 the energies of the soul, rise above ordin- ary maxims, poise himself on his own magnanimity, and hold himself responsible only to his God. Whatever maybe the con- sequences, he is bound to bear them, to stand like mount Atlas, " When storms and termests thunder on hi* brow, " And oceans break their bil'ows at his feet " Do not believe that I am inculcating opinions, tending to dis- turb the peace of society. On the contrary, they are the only principles that can preserve it. It is more dangerous for the laws to give security to a man, disposed to commit outrages on the persons of his fellow-citizens, than to authorize those, who must otherwise meet irreparable injury, to defend themselves at every hazard. Men of eminent talents and virtues, on whose exertions, in perilous times, the honor and happiness of their country must depend, will always be liable to be degraded by every daring mis- creant, if they cannot defend themselves-from personal insult and Outrage. Men of this description must always feel, that to sub- mit to degradation and dishonor, is impossible. Nor is this feel- ing confined to men of that eminent grade. We have thousands in our country who possess this spirit ; and without them we should soon deservedly cease to exist as an independent nation. 1 respect the laws of my country, and revere the precepts of our holy religion ; 1 should shudder at shedding human blood ; I TRIAL OF T. O. SELFRIDGE, ESO^ 129 would practice moderation and forbearance, to avoid so terrible a < alamity ; yet, should I ever be driven to that impassable point, where degradation and disgrace begin, may this arm shrink palsied ftom its socket, if I fail to defend my own honor. It has been intimated, that the principles of Christianity con- demn the defendant. If he is to be tried by this law, he certainly has aright to avail himself of one of its fundamental principles. I call on youthentodoto him, as in similar circumstances,you would expect others to do to you ; change situations for a moment, and ask yourselves, what you would have done, if attacked as he was. And instead of being necessitated to act at the moment, and without reflection, take time to deliberate. Permit me to state, for you, your train of thought. You would say this man, who attacks me, appears young, athletic, active and violent. I am fee- ble and incapable of resisting him ; he has a heavy cane, which is undoubtedly a strong one, as he had leisure to select it for the purpose ; he may intend to kill me ; he may, from the violence of his passion, destroy me, without intending it ; he may maim or greatly injure me ; by beating me he must disgrace me. This alone destroys a'I my prospects, all my happiness, and all my usefulness. Where shall I fly, when thus rendered contemptible ? Shall I go abroad ? Every one will point at me the finger of scorn. Shall I go home ? My children—I have taught them to shrink from dishonor ; will they call me father? What is life to me, after suffering this outrage ? Why should I endtfi e this accu- mulated wretchedness, which is worse than death, rather than put in hazard the life of my enemy. Ask yourselves whether you would not make use of any weapon that might be within your power to repel the injury ; and if it should happen to be a pistol, might you not with sincere feelings of piety, call on the Father of Mercies to direct the stroke ? While we reverence the precepts of Christianity, let us not make them void by impracticable construction. They cannot be set in opposition to the law of our nature ; they are a second edition of that law ; they both proceed from the same author. Gentlemen, all that is dear to the defendant, in his future life, is by the law of h's country placed in your power. He cheerful- ly leaves it there. Hitherto he has suffered all that his duty as a good citizen required, with fortitude and patience ; and if more be yet in store for him, he will exhibit to his accusers an example of patient submission to the laws. Yet permit me to say in con- cluding his defence, that he feels full confidence that your verdict will terminate his sufferings. ISO TRIAL OF T. O. SELFRIDGE, ESQ. Attorney General. May it please your Honor, and you, Gentlemen of the Jury, It is my official duty to close this cause on the part of the Gov eminent.—-If 1 can perform this duty by a simple, accurate and in- telligible arrangement of the facts, and a just and pertinent applica- tion of the legal principle by which they are governed, I shall be satisfied. T will not play the orator before you, or pretend to make a speech if I was capable. I would not do it on this occasion. Circumstanced as I am, nothing but my duty could induce me to undertake the task. No pecuniary reward could engage me in the cause. Nothing, I repeat it, but the sense I have of my official du- ty and a compliance with the public expectation, could induce me to appear this day before you on this occasion. But, 1 thank God, ihat through a course of what may be called a long life, 1 have had firmness to do my duty when I had a duty to do. The prosecution of this cause on the part of the Government has been conducted in every respect similar to prosecutions in other cases on like occasions. When it was said, that one of our fellow Citizens, in the open street, at noon-day, had undertaken to destroy the life of another, it was necessary to inquire by what authority he did it; what legal process or warrant of law he had for conduct of such consequence to the public, as well as to an individual citizen. Is there any cause of wonder that on the day it happened, he should be apprehended and carried before a Magistrate, who exer- cised the same power in this particular as he would have been o- bliged to do had it been the case of either of you gentlemen of the Jury, or of any other member of the community ? The Magistrate found the killing to have been voluntary and not occasioned by any accident : what ought the Magistrate to do ? was he to undertake to decide the difficulties which you have to en- counter in this cause ? was he*to undertake to say that the act of killing amounted to murder, or manslaughter, or to justifiable or ex- cusable homicide ? The Magistrate was bound to commit him to take his trial, to which he is now brought. Was there any thing wrong in this ? if there was, he had the remedy in his own power. The Supreme Court upon a Habeas Corpus might have set him at liberty ; it is a writ of right, and would have been granted if by law it ought, as of course if he had applied for it. If he chose to decline the applica- tion and lay in prison, he had his reasons for it. He as a lawyer must have known the consequences. .Would not every other man in the community have had to suffer a like inconvenience with that sustained by the Defendant under similar circumstances ? Certain- ly they would. Why then this warm and eloquent address to the passions and feelings of the public ? Do they expect to influence you, gentlemen of the Jury, and divert your attention from the just- TRIAL OF T. O. SELFRIDGE, ESQ. 131 i icss of the case by an appeal to the feebleness of his health and the weakness of his person ? Is it to injure the reputation of the offi- cer, who, ex officio, moved the commitment of the Defendant to pri- son, that his counsel apply to your compassion and tender feelings ? Be it so, but I hope that I shall continue conscientiously to dis- charge the duties of my public function, regardless of every other consideration, than that of the duty which I owe the Common- wealth. It is said, that a great crowd has attended the court during this trial, and we are asked the reason—many, I suppose attend from curiosity. Is it to be wondered at that a crowd attended also at the exchange, on the day, that the Defendant shot the young man in State Street ? The human mind naturally shudders at death, and when a man destroys his fellow citizen, it naturally draws the at- tention of all men to the fact ! The insinuation respecting a crowd in this court room, seems to glance at party spirit, but had party spirit any thing to do with the crowd that assembled on the ex- change ? When one man has struck another out of being, so far as being depends upon his existence in this world, is it marvellous that the public attention should be on tiptoe on this occasion ? Is the agitation any thing more than the effect of nature's law ? Is it any thing more than the uniform principle of our holy revealed religion ? Is it not the voice of God ? It is true, when the crowd assembled in State-street, an inquiry- was made—who was the man that did this ? The Defendant boldly stood forth, and said. 1 am the man ; and it appears that he raised himself in the middle of the crowd to make the declaration. He had courage in the midst of this universal cry of who is the man that has done this, to stand forth and avow himself the perpetrator. Hut courage is not the criterion of truth, this firmness of nerve, this unexampled boldness has not changed the nature of the crime, nor can it give us the law to govern the fact. Does the definition of of- fence or the rights of men in civil society depend on the character of individuals, or the different constitutions of men ? The question before you, is this, has the Government produced evidence to convince you beyond a reasonable doubt, that the Defend- ant killed Charles Austin, in the manner and form as set forth in the indictment. If you are satisfied of this question, then the burthen of the'cause has devolved upon you, and you must undertake it, whatever may be the consequences. If you are not satisfied of this fact, there is no further inquiry to be made, but if you are, then there is a second question. Has the Defendant shown you beyond a reasonable doubt, that the fact of kill- ing, independent of any previous circumstances against him, attach- ed to it, was done in such a manner as will render the killing lawful, and excuse him from any share of guilt. 132 TRIAL Of T. O. SELI-RIDGE, ESQ. Why this devolves upon him I will show from an authority in which it is better expressed than I can express it in my own lan- guage. Fost. C. L. 255. " In every charge of murder, the fact of killing being first proved, all cir- cumstances of accident, necessity, or infirmity, are to be satisfactorily prov. ed by the prisoner, unless they arise out oftiie evidence produced against him, for the law presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it is, that the law should so pre- sume. The Defendant in this instance standeth upon just the same foot that every other Defendant doth, the matters tending to justify, excuse, or alleviate, must appear in evidence before he can avail himself of them." And why must it devolve upon him ? Because if he had a legal warrant he could produce it.—Whether there was malice or not, in killing, upon any other than legal authority, depends upon the feel- ings of the heart, and no man can be so well acquainted with them as the person who perpetrates the act. I will adduce another authority to the same point from I East. C. L. Byrne hid. 224. '* The implication of malice arises in every instance of homicide amount- ing in point of law to murder : and in every charge of murder, the fact of killing being first proved all the circumstances of accident,necessity or ii.- tirmityareto be satisfactorily proved by the prisoner unless they arise out of the evidence produced against him." The question you have before you is, whether the Defendant has proved either accident, or necessity, as fully as the Government has proved the fact of killing ? If he has not, he is guilty of the homi- cide charged in the indictment. Has he proved circumstances that will reduce it to excusable homicide ? or that he has done nothing but what he had a right to do. If there was any premeditation a share of blame attaches itself to the fact, though it were but mo- mentary : the law makes it a crime in that case, and it cannot be less than manslaughter; but if the Defendant has proved beyond a reasonable doubt by the evidence he has offered, or what arose out of the evidence offered on the part of the Government, that the fact of killing, in the manner it was committed, independent of any previous circumstances attached to, or explanatory of it, was ex- cusable homicide, yet if the Government has given convincing proof of a premeditation his excuse cannot avail him. First, have we proved the fact of killing ? that is admitted to be proved beyond a doubt. And you have secondly to inquire, whether the Defendant has given evidence to justify what he hub done, or to shew it to be excusable from a legal necessity. Thirdly, you will inquire whether the government has given evidence of such facts and circumstances previous to the transaction as will lake from the Defendant all his claim of excuse and render him guilty ol a felonious homicide. These three questions include every fact and every principle of law that can arise in the cause. They will embrace and call into examination every circumstance which has been given in evidence TRIAL OF T. 0. SELFRIDGE, ESQ. 133 to y the witnesses, and every principle of law by which the facts are to be governed and decided upon. This cause is an important one, arid presents to our discussion a question of principles : It is of no consequence who are the parties, or what the facts are, on which the issue rests, otherwise than to call into examination the principles tiiat are to guide you to a verdict. It would be desirable to lay out of the question the persons of the deceased and the Defendant; and to consider the cause in the ab- stract, as if between persons of whom you had never before heard. The principles on which this cause is to be tried, must stand or fall by themselves, without any regard to the parties. The principles upon which the issue rests must be fixed and determined. Without fixed and permanent principles, religion itself is a delu- sion, morality is a cneat, politics are a source of oppression and cruelty^ and the forms of law but the vehicle of corruption, the mask of chicane and injustice. Principles are no other but the primordial nature of things upon which systems are predicated, for the Use and happiness of rational nature ; without those, all is insecurity and confusion ; the world is a waste, society is a curse, and life itself but a dream of misery—while religion, founded in the self existence of the Deity, and the relation of man to the Divine nature. While mor- als, predicated upon the connexion between man and man, as breth- ren, while stubborn nature, fixed' on eternal and unchangeable laws, deny to yield to man the inflexibility of their principles, he is left to raise, for himself, those systems of civil social government, and jurisprudence, which are best adapted to his situation, and cir- cumstances, and in this society is left to decide for itself. When the sovereign will of the civil community has arranged theses the obligation of each member to submission, becomes a moral obligation, crimes result from disobedience to disobedience,, penalties must be attached. Despotism is adapted to a state of savage barbarity, where fear is the only motive to action or forbearance ; yet even there, the will of the people, let it be founded in what it may, either in prudence, or in cowardice, is the foundation of the sovereignty. A monarchy and aristocracy, mixed together to form a govern- ment, supports a state of servile dependence, where the hopes of fa- vour and interest exclude the idea of reward for merit, bring patri- otism and public virtue into base contempt, and render fraud, deceit, chicane and cunning, the insolent claimants of the rights of truth, talents and integrity. In a free government only, it is that principles, founded in the nature of social virtue, can claim the decision of what is right be- tween man and man, or between an individual and civil society, without the corruptions arising from the destruction or irregularity of rights and privileges, from party distinctions, from the frauds of 134 TRIAL OF T. O. SELFRIDGE, ESQ. chicanery, incident to factitious morals, and cunningly devised sys- tems of religion and policy. I will not spend any more of your time by such an appeal as has been made by the counsel tor the Defendant, who have preceded me. I will not invoke you to put aside your prejudices, if you have any ; an appeal on this head is altogether nugatory, for if you will not obey the obligation winch devolves upon you, from your situation resting on your consciences by the sacred solemnity of an oath, you are not to be reasoned into it, by the powers of rhetoric, I there- fore consider it as improper to attempt it. I conceive that it must necessarily follow from the circumstances of your situation, that a verdict will be given upon the facts according to the rules of Law. To a jury, acquainted with the obligation of an oath, a caution against being led astray by their prejudices, is to caution them against acting corruptly, and against doing wilfully wrong; if their oath cannot guide their consciences, I should despair of guiding them by any thing that I can sl'.y. I should have spared myself these observations as altogetbei irrelevant to the issue, had not the Defendant's counsel gone largely and learnedly into the subject, and urgixi ybU to do ypur duty free from the influence of party preju- dices, regardless of the clamours of News-paper writers, or address- es to the people. In this caution, the counsel for the Government heaivily concur The misconduct of News-papers, in publishing matters relative to a trial, while it is pending, is to be deprecated ; so is all conver- sation tending to spread false reports ; yet such are the feelings of mankind, throughout the world, that they will talk and also print on such subjects where the press is free : It is one of those alloys, which mingle with the precious metals. Better it is to enjoy the freedom of the press, though attended with this inconvenience, than to restrain it by governmental laws, as is the case in every other Country. '1 he impressions made in that way, are Very inconsiderable ; the enlightened minds of this jury are above all considerations, arising from that source, whatever you may- have heard out of doors, is left at the threshold of this sanctuary of justice, and passes by like the idle wind, and is no more regarded than the whistling of a school boy, trudging along with his satchel in his hand. As the report of this cause will probably be published, the world will judge how far your decision is made up from the testimony yOu have heard at this bar ; they will know how to esti- mate the various reports you have heard, and the News-paper clamours, and artfully devised handbills ; these, with the papers themselves, will be consigned ultimately to the neglect they deserve. One man has killed another ; the law of God, and of our Gov- ernment calls upon you to inquire, if he can excuse himself. This is no light subject There is ah omniscient judge before whose seat we shall all appear to answer for our conduct on this solemn day. TRIAL OF T. O, SELFRIDGE, ESQ. 135 We must therefore decide with purity and integrity, if we expect to avoid the judgment pronounced against those who corrupt the tribunals of human justice. I will place a mirror before your eyes, by which each of us may compare the fairness and justice of his intentions in the case, and perceive how far he is misled by his prejudices, or political prin- ciples. Suppose the slander, which is said to be traced to the father of the deceased, was correct, and suppose 3. Austin to have gone forth armed with a deadly weapon in expectation of an assault from Selfridge, or his friends ; that Selfridge had made an attack on him as young Austin did on Selfridge, and Austin the father had, with the weapon (carried as Selfridge carried his) killed him, at noon day in a crowded street, what would be your verdict on such a case ? I flatter myself, your verdict would be the same as that which you will give in this cause. This is the standard of security, this the solid tenure, by which our fellow citizens hold their equal right to public justice, ensured to us by our Constitution and our Laws. The counsel for the Defendant has addressed you with warmth and energy, as a politician ; he supposes you to consist of two con- flicting parties, and with elegance pf manner, and strength of language, peculiar to himself, he has conjured you to lay aside all political impressions, whether they be favourable to the federal re- publican, or democratic party, he particularly addressed himself to those who are of the same way of thinking as himself. I will im- itate him in some degree, but I will address you as being all of the same way of thinking as myself; for I believe none of you wish to subvert the government or infringe the law : If then, you mean to support our happy constitution, and obey the dictates of our holy religion, you are of the same party as myself. Would you break up the foundation of the great deep, and destroy the basis of the present federal government, and leave it to chance, when or how we should obtain another ? (you may think the present constitution might be made better, but yet it might be made worse, and though like other human inventions, it has its imperfections) you would not unnecessarily encounter the hazard : I say then you are all of my party. If you prefer our democratic government, to a monar- chy, an aristocracy, or a mixed government, then we all think alike. Is there on^ of you who would alter our svstem of jurisprudence, or relinquish the inestimable right of trial by jury ; if there is not, then you all think as I do. If there is one of you who think the millions of money expended at the city of Washington in the public buildings,and improvements, for the accommodation ofthe general government, which serves to tie the several states of this continent in the indissoluble knot of perpetual union and amity ; if you think that money well employed as a mean of producing that grand effect) 136 TRIAL OF T. O. SELFRIDGE, ESQ. I think so likewise. Is there one of you but believes the Slat§ Home on Beacon-hill, was intended for, and will produce the happy purpose of combining the interests of the several parts of the state of Massachusetts ? Although attended with expense, it may prove a blessing. All of you join in this belief. I also am pf your opinion (the gentlemen who are strangers, and reporting this cause, will pardon me for being so local: they are not perhaps acquainted with our domestic politics ; but I love and feci for my native state ; and the circumstance I have alluded to, has been of importance.) If you think of our union at home, and pur foreign relations, as Washington the great and good thought, and as he has written in his farewell address to the citizens of the United States, you will engrave it on the tablet of your memory, teach it to your children, and bind it as a talisman to your heart, in order to perpetuate the freedom of our common country to the end of time. Is there one of you who would engage your country in foreign wars, in order to benefit a few great men who would become the leaders, as they have been the agitators of such a desperate meas- ure ? The consequences of war are known to many who hear me ; never more do I wish to see the parched earth of my country drenched with the blood of my fellow men : the tender mothers, wives and children, flying from their dwellings into the wilderness, to escape tne foe. You, gentlemen of the jury, are friends to the peace of your country, and therein I cordially join with you. I ad- dress you as the lovers of your country, and there is no difference in our opinions. To return from this episode to the question in the cause, I will proceed tp inquire whether the fact of T. O. Selfridge's killing young Austin, is proved by the Government. That catastrophe has been clearly made manifest by the testimony of Doctor Danforth, Edward Howe, John Lane, Ichabod Frost, Isaac Warren, and many others. I will not attempt an argument on it. The second question is, has the Defendant shown you, beyond a reasonable doubt, that the fact of killing was done under such cir- cumstances, as that it was lawful, and he is excuseable of blame ? In this enquiry (and certainly, it is an important one) we must have some guide, some settled rule, some law, some known, estab- lished principles, or society no longer exists. A confused state of . nature reigns ! every man!s arm, his art or his cunning is his own safety ! and every man is the avenger of his own wrongs. Had I the sentiments expressed by my learned brother (Dexter) feeble and imbecile as I am,' I would go forth from day to day in arms, trusting in mine own arm alpne, with the aid of such wea- pons as my strength would bear : Magistrates should be avoided, and the volumes of laws become pavement for the soles of my ^hoes. \ TRIAL OF T. O. SELFRIDGE, ESQ. 1S7 Many things are said by professional men, in the feelings and >varmth of debate, which, in their cooler moments, they would gladly retract. Upon the manner and measure of resentment or self-defence, is there no law fixed, but the different feelings of men I Are there men, nay, a multitude of men,* who have a natural right, from their feelings, and a high sense of honor, to defend themselves, when and where others of less feelings could not do it in the same manner ? And is this the voice of nature, which makes the exception ? Is this sense of honor, and those feelings, a privi- leged exception to those individuals, above the rules of the gospel ? Is the rule, Do to others as you would be done unto, reduced to the standard, that a juror shall acquit the Defen- dant, if he believes he should have acted himself by the same motives, or been seduced by the same temptation ? Is there then- a distinction between the would-be nobleman and the chimney sweeper, (for I suppose these, from the distinction taken by the Defendant's counsel to be the Alpha and Omega, the head and the tail, of the links that form civil society.) Is there a distinction be- tween them as to the privilege of self-defence ? And is the push pf the sweep, or a stroke with his scraper, at the head of his com- rade, to be murder in hirn, whilst the would-be noble, shall be al- lowed with his gold-hilted cane, or his elegantly mounted pistol, in defence of his honor, to play a secure.but mortal game, and be just- ified in killing, on a like provocation, either his friend or his foe, or, as in this case, a man he is said hardly to know ? You are not then to determine his case by the circumstances attending it, but by the nice sense of honor of the gentleman, or the distinction and riig- pity of hte station in life ! 1 What then has become of that part of the constitution which de- plares ours to be a government of laws, and not of men. If the law does not apply equally to A and B, and so through every letter of the alphabet, how can it be said that every man holds his iii't and fortune by the same tenure as his fellow citizens, whatever may be his rank or his condition, or standing, in society. We are told that there are a number of men in society who will with their own arm vindicate their rights, and stand the guardians of their own honor. There may be such men, but I do not know them. I hope I shall not meet with any citizen who does not rely for his safety on the laws of the government, and the justice of civil society. But we are told that the laws of Christianity lend us a defence by our own arm ; and we are asked how then the laws of society can regulate this matter? I do not adroit this position to be just. All men are bound to surrender their natural rights upon altering into civil society, and the laws become the guardians of the equal rights of all men. Why are duels criminal, if the men who engage u. them haye this privilege pf maintaining their own honor. 138 TRIAL OF T. O. SELFRIDGE, ESQ. It is said the Defendant was driven to such an awful crisis, that he could not extricate his honor ; and his counsel ask, what could he do ? I answer, appeal to the laws, but say they, the laws are inef- fectual ; suits are slow of remedy, and uncertain in their end. Where would such reasoning lead us ? You have it in testimony, that the Defendant reasoned in this way ; and that mode of reason- ing brought on this sad event- You have heard his counsel, in a strain of eloquence, advance the same idea, and make a personal application of the principle. " No man," said he, " is bound to surrender his own honor : If I do, I wish my arm may be shrivel- ed by the palsy, and drop from its socket. No, I will vindicate mine own honor to the death." I would rather that he should re- tain the use of his limbs, as well as the faculties of his mind, in order to employ them in the true field of honor, the defence of his country, when necessity may require their exertion. The Defend- ant's counsel are obliged to adopt the same erroneous course of reasoning in order to justify him. Have we then, as a civil society, higher authorities than our pwn law books to appeal to, on such an occasion ? Are they such as the counsel on the other side would not shrink from on the penalty of his. life ? We will not take up the glove ; we will rest our defence, both of the lives and honor of our fellow citizens, upon the laws of the land ; we will trusttothem rather than to a deadly weapon, forour protection. Such declarations as are made by the gentlemen on the other side, would countenance all the duels that have been fought in the world, and render unavailing all the laws that have been enacted for the punish- ment of illegal and savage combats. It is said that the Defendant a- dopted this course because the tardy steps of the law were too slow to keep pace with his rapid stride to obtain immediate vengeance. What if his fame and character had been injured ? Has he superior privileges ? Or, ought he not to take the common lot of his coun- trymen ? Has he any excuse more than others ? Has he the ex- cuse even of an officer ? He is both a lawyer and a gentleman ; but this does not give him a right beyond what all the individuals of this society possess. If the Defendant suffers on this occasion, he will have to suffer no more than what every other person who should perpetrate a similar act must suffer, while controuled by the laws of his country. If he is innocent, he will be acquitted ; if he is guilty, he will take the common lot of other men. I do not feel any interest in what your verdict may be, further than that justice in the common way, and on general principles, should be done. Is the measure of a man's conduct, when he leaps the bounds of written established law, to receive a standard from the feelings of his wife and children, or the notions of honor in the congregation of fashionable men ? and can a man appeal to heaven in this way, and be a pious christian ? When I heard that this doctrine had been ad? vised on this occasion, by professional men, I shuddered at it. TRIAL ©F T. O. SELFRIDGE. ESQ. 135 Gentlemen—Not being able to fathom this abyss of troubled waters ; not having the courage and firmness to cast away the guardianship of social protection, and the laws ; not having an imagination that can show the lines of security beyond those of the civil government, I will yet believe the laws to be fully adequate, where we have time to apply to them ; and I will fondly suppose that I am, to every possible purpose, in a state of civil society and social security. The laws may be so imperfect, for human nature is so, that the remedy may be slow, and below my wishes ; but I will not, claim to be my own judge ; I will not say that I have a right to appeal to this arm to avenge an injury, whilst the law af- fords me a complete remedy. The defendant's counsel asks how he could have gone home to his wife and children, with his hon- our stained, by the blow he had received on the public exchange from young Austin. I put a case hypothetically : If a man of honor and great irritability of nerves, should have received a blow, could he appeal to the laws of his country without tarnishing his honor, or injuring his family ? If his wife was a virtuous woman, she would applaud his moderation, and be gratified in teaching her children to pursue a similar course through their future lives ; no person would deem him disgraced by the blow, though he had not destroyed his adversary. If we are to return to the barbarous times so well described by Robertson, in his history of Charles V, w ,er^ every great man was to go armed with his trained bands behind him, in order to encounter any whom he might meet, without re- gard to laws either human or divine—If heroism and honour and chivalry are to return, we may expect to see again those combats so well described in the well known ballad of Chevy Chase ; and this promised land, flowing with milk and honey, is to be turned into a field of battle, and crimsoned by the blood of our fellow citi- zens. I trust We are now too far advanced.in civilization to return from the light of this day to the barbarisms of the 13th century, when the interposition of the authority of the Pope and his council became necessary in order to prohibit these misadventures. \\ hat- ever opinions we may have of the Roman Catholic religion, we are indebted to its influence for this one good deed, which all the po* tentates of Europe combined together could not have effected. There is something in this cause which has unnecessarily been introduced, and which I wish to lay but of the question before we proceed : The gentleman on the other side is above personalities in a cause of this importance, but he draws a picture in the darkest colours, and leaves you to point to the original ;—he says that some one has been standing in the gutter for twenty years past, throwing mud at every well dressed gentleman that passed by, and that he can have no ground of complaint if he should be a little spattered himself, I ask whether if it was true that a man ha?l 140 TRIAL OF T. O. SELFRIDGE, ESQ. done this, is he to be outlawed ? Is he and his family to be hunt??.? and shot down at noon day ? That is not the punishment for libels. If he is to be condemned for libelling,alet the innocent man among his accusers cast the first stone. I have had my share of such opprobium, but it never came into my mind to redress myself by shooting one of my fellow citizens. He wrote against Washing- ton, they say ; so did Hamilton ;—-he wrote against Adams and others of his administration ; so did Alexander Hamilton and oth- ers ;—but Austin authorises me to deny the charge of his writing against Washington. Who wrote against Hancock and Samuel Adams and Washington and all the great men who produced the revolution ? Are all those writers outlawed ? If any of them were puni.shed, it was in pursviance of the laws of the country—we have no check beyond that. Who is there of consequence enough to deserve notice, but is the object of daily slander? Does Benjamin Austin do all this ? Where Avill these ideas carry its ? Are they compatible with the elegant expostulations of both my brethren against party politi- cal prejudice ? I think they would carry us back to the barbarous ages; in which case it will.become necessary for every man to become an expert combatant. These ideas will, I presume, ex- cuse robbery in those who are too proud to beg. Should we lower our notions of honour, and condescend to bring our feelings to the rules of law, we should then have to enquire,---- Whether the defendant has proved beyond a reasonable doubt, that the fact of killing was committed in such a manner as to ren- der it lawful, and excuse him of all blame. In this the first enquiry is—Was the death a voluntary killing ? —that is to be decided by the weapon and manner. Was it by justifiable or legal warrant ? was it an accident ? Avas it on a sudden provocation ? was it on a sudden combat ? or was it done in pur- suance of a design unlawful in itself, and unjustifiable by the estab- lished laws of our government ? Should you be satisfied from the opinion of the Court, that it is of no consequence as the evidence is, whether the pistol was fired before a blow was given by the de- ceased, you will be much relieved ; but if (that fact should be con* sidered as important in the case, you will then have to enquire— 1st, Was the assault previous to the mortal wound, '2d, Was it at the same instant, or r.d, Was it after the mortal stroke. In these enquiries, what shall guide you ? Are you left to the nice feelings of a man of honour, to be decided on his apprehen- sions of the moment, and to make a separate law in each case as it arises ?—or are these established laws to guide you ? The con- ' titution has fixed a system by which the courts of justice are to v governed :—these books which have been cited contain those TRIAL OF T. O. SELFRIDGE, ESQ. 141 laws, which are laws, though they were not made by the legislative authority ; they were made by the voice of the people ; and this, which is the highest authority, has said that these books shall be the law of the land : For this I refer you to the sixth section of the sixth chapter of the constitution, where it is declared that all the laws, rules and practices in the judiciary department, which have been heretofore adopted, shall continue to be law, until they shall be altered by the general court of this commonwealth.-— They were brought by your ancestors from the land of slavery ;i— they have been wet with the mists of the red sea, washed in the waters of Jordan, and are now our garments of comfort in the .promised land ;—yes, in the promised land ! You young men, who have only heard of the revolution, may smile at the simile, but the venerable and aged members of this community, many of whom I see around me, know what it was to have passed through the wilderness, through difficulties and dangers almost unparalleled ; those will not willingly relinquish their principles. By these rules, if the defendant entertained a grudge or ill will against the father /of the deceased, can the malice in such a case be transferred to the son ? if it should appear that the defendant went out armed with a deadly weapon, with an expectation of meeting the elder Mr. Austin, and did thereupon kill the son, it would be such a malice as to constitute the crime of manslaughter at least. On this point I will read from East's P. C. 231 Sept. 18. " Homicide from a general malice or depraved inclination to mischief, fell where it may, the act itself must be unlawful, attended with probable serious danger, and must be done with a mischievous intent to hurt peo- ple, in order to make the killing amount to murder in these cases ; for it is from these circumstances that the malice is to be inferred. But if an unlawful and dangerous act, manifestly so appearing, be done deliberate- ly the mischievous intent will be presumed unless the contrary be shewn : Thus if a person, breaking in an unruly horse willfully ride him among a crowd of persons, the probable danger being great and apparent, and death ensue from the viciousness of the animal; it is murder. For how can it be supposed that a person willfully doing an act, so manifestly at- tended with danger, especially if he shewed any consciousness of such danger himself, should intend any other than the probable consequence of such an act. But yet if it appears clearly to have been done heedlessly and incautiously only, and not with an intent to do mischief, it is only manslaughter ; though Hawkins considers it would be murder if the person intended to divert himsojf with the fright of the crowd. So if a man knowing that people are passing along the street, throw a stone likely to create danger, or shoot over the house or wall with intent to do hurt to people, and one is thereby slain ; it is murder on account of the previous malice though not directed against any particular individual; for it is no excuse since it appears that the party was bent upon mischief generally, but if the act were done incautiously, without any such intent which must be collected from the circumstances, it is only manslaughter. Again ; if the killing happen in the prosecution of an wdawfuil act, as T &* TRIAL OF T. O. SELFRIDGE, ESQ. where the party comes with a general resolution to resist all opposition;. lo commit a riot, to enter a park and death ensue, upon sucb resistance, it would be murder, but this- will be considered more fully in another place. To this point may be cited Foster 261, 262> 263 and 4 Black. 20(X also Hawk. 74 ch. 29. Sect. 12. S Jus. 50. Foster C. L. page 261. If an action unlawful in itself be done deliber- ately and with intention of mischief or great bodily harm to particulars, or mischief indiscriminately fall it where it may, and death ensue against or beside the original intention of the party, ft will be mtirdar. But if »uch mischievous intention doth not appear, which is matter of fact and to be collected from circumstances, and the act was done heedlessly and ^icautiously, it will be manslaughter; not accidental death. Because ihe act upon which death ensued was unlawful. Upon this head I will mention a case, which through the ignorance or lenity of Juries, hath been sometimes brought withjti the rule of acci- dental death, it is where a blow aimed atone person lighteth upon another and killeth him. This in a loose way of speaking may be called acciden- tal with regard to the person who dieth by a blow not intended against hiim But the law considereth this case in a quite different light. If from circumstances it appeareth that the injury intended to A, be it by poison or any other means nf death, would have amounted to murder supposing him to have been killed by it, 5t. will amount to the same offence if B happeneth to fall by the same means. Our books say that in this case the malice egneditun parsanam. But to speak more intelligibly, where the injury intended against A proceeded from a wicked, murderous, or mis- chievous motive, the party is answerable for all the consequences of the action, if death ensueth from it, though it had not its effect upon the person whom he intended to destroy. The malitia I have already explain- ed, the heart regardless of social duty and deliberately bent upon mis- chief, and consequently the guilt of the party is just the same in the one case as in the other. On the other hand if the blow intended against,A and lighting on B arose from a sudden transport of passion which in case A. had died by it would have reduced the offence to manslaughter, the feet will admit of the same alleviation, if B should happen to fall by it.. Now we come to an examination of the testimony which has been laid before you, and from which you will have to determine the degree of guilt incurred by the defendant. Was the assault of young Austin made upon Selfridge previ- ously to the firing of the pistol, that instrument which gave the mortal wound ? To this point we have the testimony of John M. Lane and Job Bass. I will make one or two observations on Lane's evidence. Mr. Lane said he was standing in his shop door and aaw Selfridge ■fire the pistol and* the person who was fired at raised the stick and struck at Selfridge after the pistol was discharged. The evidence of shooting before the blow was, is from the tes- timony of Bass and Lane (here the Attorney General recited the testimony of those two witnesses for which see pages 35 and 56. Howe, Frost and others say they did not see any blow struck be- fcre the pistol was fired, but perhaps these two witnesses will be suf- ficient to satisfy your mindsthat the deadly wound was given before fcbhyvr was- struck, and there is a distinction in law between an as- TRIAL OF T. O. SELFRIDGE, ESQ. Mf •sault and battery. The counsel for the defendant have attempted to disparage the testimony of Mr. Lane, without intending to im- peach his moral character. Mr. Lane's standing in society is above imputations of that sort, for my part I am astonished that the circumstances of this ca^se should not have been attended with greater variations then they appear to have from the witnesseson both sides. It is an extraordinary thing in a scuffle of this kind at noon day, on the public exchange, done on the sudden, that the testimonies should come so near together as they do in respect to the time, place, &c. I shall not however insist that the pistol was fired before the assault was made. I come now to the second question whether the killing and the blow Were at the same instant of time, and here you have the tes- timony of a number of witnesses to prove that both happened at the same moment, (the Attorney General here referred f the tes- timony, and read several extracts from, those of Edward Howe, I. Frost, J. Warren, J. Bailey, Z, French, R. Edwaids, H. Bass, and John Erving) which testimonies the reader will find stated at large in pages 36, 50, 51, 5,3, s^ sg, 57, and 59. I do not deny that from their testimonies, an assault may be in- ferred, and that there was an intention on the part of young Mr. Austin to commit a battery, but I do deny that it was such an as- sault as would justify the defendant in putting the assailant to death with a deadly mortal Weapon prepared and charged on pre- meditation for the purpose. I now come to the consideration of another point that the blow was given byMr. Austin before the defendant gave the mortal wound. On this head you have only the solitary testimony of Lewis Glov- £.v, I know nothing of his prejudices or party feelings, for he is quite a stranger to me; while on the stand, he told you that he had expected something would take place in the course of the day be- tween Selfridge and Austin, the father of the deceased, that he meant to amuse himself by attending the exhibition. As in former days the Romans had gladiators to amuse the public, so this witness watched the parties that he might see them sink below the.character of men, he owns however that he might have been better employed ; there I agree with him, I think he would have been better employed if he had gor>^ to a magistrate and apprised him of his suspicions, in which case the magistrate would have taken a necessary precaution to prevent the town of Boston being dis- graced by actions of this kind. He says that he saw the deceased give one violent blow, which struck Selfridge on the hat, that he recovered his cane in order to repeat the stroke, and that the sec- end blow and pistol went together. This I say is the solitary tes- timony of Glover, unless you take- the tesdmony of Mr. Wig- gin as a cowobetation of itj and tweo then, there are upwards of 144 TRIAL OF T. O. SELFRIDGE, ESQ. thirty others who were present at the time that know nothing of the circumstance. Mr, Wiggin has said that he thought he heard a blow which sounded as if it had been struck upon a coat; Mr. Glover may be right and Mr. Wiggin correct, their stories are consistent; for Glover says the first blow was not so severe as those which followed, therefore its sound might be softened, there is another circumstance urged in the defence as going in support of this testimony. The defendant's hat was indented and broken, and there Was a contusion on his forehead. This is answered in this way, all the witnesses agree in the fact, that the subsequent blows were given with increased violence, so much so that several of the witnesses thought the charge had not taken effect, or the pistol had been only loaded with powder. You have heard the opinion of the Physicians, and you learn from them that a wound in the lungs is not always mortal. They have mentioned a case where a part of the lobe of the lungs has been separated and the patient survived ; you have heard of animals being mortally wound- ed, and yet leaping from the ground, with increased muscular strength 6 or 8 feet high. Similar observations must be familiar to every one of you gentlemen, even the worm that you crush be- neath ytfur feet, springs with manifest vigour from the assault; we need no argument in support of these remarks ; give pain to a fly or a spider, and you have occular proof. Have we not then very full proof that this fracture of the hat and contusion of the fore- head was the consequence of one or more of the blows subsequent to the discharge of the pistol ? In that case as it must have been done after the pistol was fired and the deceased had received his death wound, however grievous and heavy the stroke might be, it fur- nishes no excuse for a mortal wound previously given. I am requested to make an observation upon the testimony of young Mr. Fales, the favourite and classmate of the deceased ; I do this merely because it is desired, not because it is necessary. The Court and you have already seen that his testimony is cor-? rect, it is on facts which happened on the agitation of hurry and con- fusion, and can only be according to the best of his recollection. The defendant has brought Perkins Nichols and J. Osborn, in order to discredit the testimony of young Fales j they say that thev went to Mr. Austin's house, not I apprehend as the friends of Mr. Austin, \o condole with him on the unfortunate death of his son, but to find and lay hold of any circumstance that might be beneficial at thL trial, to their friend Selfridge ; one of them, Mr. Nichols, made ?. memorandum of the conversation that had takenplacj, and he swears from that memorandum, that Mr. Fales had said that tlve young mun (meaning Mr. C. Austin) struck Selfridge before the pistol was fired ; that at the time of this con- fer sation, Mr. Fales appeared to b* extremely agitated. There TRIAL OF T. O. SELFRIDjGE, ESQ. 145 are two other witnesses, however, who were present at the same time, that declare that they did not hear any such declaration. But suppose such a declaration had been made by Mr. Fales to the father of the deceased, can it not be accounted for by supposing that Mr. Fales, in order to soothe the parent, who perhaps was half distracted at the horrid circumstance, that he should insinuate that his son was not wholly free from blame ; and that he had struck at the defendant before the pistol was discharged. The character of that young gentleman would have been safe if I had said nothing about ifc You have seen with what caution and diffidence he has delivered his testimony ; it appears that his mind was in a state of confusion, occasioned by the death of his friend, and that he does not even to this day pretend to have a perfect recollection of the order of time in which the facts took place: But admitting that the assault was made by the deceased before the defendant gave the mor- tal wound, you will have to enquire whether it was such an assault or such a battery as would justify the defendant in killing the deceas- ed at that time, in such a place, and in th»* maimer, with a formed intention, and with a deadV"nrtaPon# My state of health ancTwant of strength, seem to forbid my doing full justice to a cause of this magnitude. I will, however, endeav- our to add something more. To do this, I return to the enquiry, whether it is of any consequence that the blow was given after or before the mortal wound. This brings us to another question— whether, if the assault was made before the discharge of the pistol, the killing in that manner, and with such a weapon, was excusable. Was the defendant in such imminent danger of his life that he was obliged tq slay the deceased as the only means of saving him- self ? The law on this point will be found in Foster's C, L. page 276—277 and 278. ««Two eases of self defence are supposed. In the one a forfeiture of goods was incurred, in the other not. What therefore is the true import of the words self-defence upon chance-medley, which the statute vseth as description of Ithat offence which did incur the forfeiture, homicide per in- fortunium, which hath been styled chance medley, cannot possibly be meant; for in that case the party killing is supposed to have no intention of hurt; whereas in the case the statute mentioned, he is r1 es'-red to have an intention to kill or do some great bodily harm, at the tnne the death happened at least, but to have done it for the preservation of his cwn life The word chance-medley therefore as it rtandeth in this statute con- nected with self-defence must be understood in the sense which Cote and Kelynsr, in the passages already cited, say was the original import of i?,% sudden casual tflfeay commenced and carried or. in heat of blood ; and consequently self defence upon chance medley must. ss I apprehend imply that the person when engaged in a rudden affray, quit'cd the combat be, fore a mortal wound given, and retreated or fled-s frr as he. c.r.-^ with ■afety, and then urged by mere necessi*y,killed bis adversary for thepres, ecvatian of his cwn life 146 TRIAL OF T. O. SELFRIDGE, ESQ. " This case bordereth very nearly upon manslaughter and in fact and experience the boundaries are in some instances scarcely perceivable ; but in consideration of law they have been fixt. In both cases it is supposed that passion hath kindled on each side, and blows have passed between the parties. But in the case of manslaughter it is either presumed that the combat on both sides bath continued to the time the mortal stroke was Siven or that the party giving such stroke was not at that time in imminent anger of death. " He therefore, who in the case of a mutual conflict, would excuse himself upon the foot of self-defence, must show, that before a mortal stroke given, he had declined any farther combat, and retreated as far as he could with safety ; and also that he killed his adversary through mere necessity and to avoid immediate death ; if he faileth in either of these circumstances, he will incur the penalties of manslaughter." In East's C L. page 285, chap. v. sec. 54, treating on excus- able self-defence in combat, and sec. 55, as to the existence of such a necessity to kill as will be sufficient to excuse ; and here his weakness, which has been so much dwelt on by his counsel, does not alter the law. The same point is treated of at length in 4 Blackstone, p. 133, zvi>r 35\n " Lastly, the killing must be committed mtkntalice aforethought, to make it the crime of murder. This is the grand criterion wYiWh now distin- guishes murder from other killing : and this malice prepense, -malitia praecogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, de- praved, and malignant heart: une disposition a faire une male chose : and it may be either express or implied in law. Express malice is when one, with a 6edate, deliberate mind and formed design,doth kill another; which formed design is evidenced by external circumstances discovering that inward in- tention ; as lying in wait, antecedent menaces, former grudges,and concert. ed schemes to do him some bodily harm. This takes in the case of deliber- ately duelling, where both parties meet avowedly with an intent to mur- der : Thinking it their duty as gentlemen, and claiming it as their right to wanton with their own lives and tho:3 of their fellow creatures ; with* out any warrant or authority from any power eith*r divine or human, but indirect contradiction to the laws both of God and roan : and therefor* the law has justly fixed the crime and punishment of murder on them and on their seconds also : Yet it requires such a degree of passive valour to combat the dread of even undeserved contempt, arising from the false notions of honour too generally received in Europe, that the strongest prohibitions and penalties of the law will never be entirely effectual to eradicate this unhappy custom ; till a method be found o:tt ef compelling the original aggressor to make some other satisfaction to the affronted party which the world shall esteem equally reputable as that which is now given at the hazard of the life and fortane, as wefl of the person insulted as of him who hath given the insult. Also, if even upon a sudden provo- cation one beats another in a cruel and unusual manner, so that he dies though he did not intend his death, yet is guilty of murder by express malice ; that is by an express evil design the genuine sense of malitia. As when a park-keeper tied a boy that was stealing wood, to a horse's taiP and dragged him along the park; when a master corrected his servant with an iron bar, and a school-master stamped on his scholar's belly; so thtt each of the sufferers died; these were justly held to be murdejr& TRIAL OF T. Q. SELFRIDGE, ESQ. U1 fceeause the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter- Neither shall he be guilty of a less crime who kills another in consequence of such a wilful act as shews him to be an enemy to all mankind in general, as going deliberately and with an intent to do mischiefs upon a horse used to strike, or coolly discharging a gun among a multitude of people. So if a man resolvfi9 to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice. And if two or more come together to do an unlawful act against the king's peace, of which the probable consequence might be bloodshed ; as to beat a man, to commit a riot, or rob a park, and one of them kills a man, it is murder in them all, because of the unlawful act, the malitia pr.aecogi- tata, or evil intended beforehand." " Also in many cases where no malice is expressed, the law will imply it; as where a man willfully poisons another, in such a deliberate act the ■law presumes malice, though no particular enmity can be proved: And if a man kills another suddenly, without any or without a considerable provocation, the law implies malice ; for no person unless of an abandon- ed heart, would be guilty of such an act upon a slight or no apparent cause. No affront by words, «r gestures only, is sufficient provocation so to excuse or extenuate such acts of violence as manifestry endanger the life of another. But if the person so provofced, had unfortunately kitled the other, by beating him in wicli a manner as shewed only an intent to ehastise, and nut to Kill him, the law so far considers the provocation of contumelious behaviour, as to adjudge it only manslaughter, and not mur- der. In like manner, if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants, endeavour- ing to conserve the peace; or any private person, endeavouring to suppress an affray or apprehend a felon, knowing his authority or intention with which he interposes, the law will imply malice and the killer shall be guil- ty of murder. And one intends to do another felony and undesignedly kills a man, this is also murder. Thus if one shoots at A and misses him, but kills B, this is murder, because of the previous felonious intent, which the laws transfer from the one to the other. The same is the case wher» one lays poison for A, and B against whom the poisoner had no malicious intent, takes it, and it kills him ; this is likewise murder. So also if oast gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave< it. It were endless to go through all the cases of Homicide, which have been adjudged either expressly or impliedly malicious,, These therefore may suffice as a specimen ; and we may take it for a general rule that afflt Homicide is malicious, and of course amounts to murder unless where justified, by the command or permission of the law ; excused on the account of accident or self preservation ; or alleviated into manslaughter by being the involuntary consequence of some act, not strictly lawful, or (if volun- tary) occasioned by some sudden and sufficiently violently provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out to the satisfaction of the Court and Jury, the latter of whom are to decide whether the circumstance* alledged are proved to have actually existed ; The former, how far they extend or take away or mitigate the guilt.. For all Homicide is presumed to be malicious, until the contrary appeareth upon evidence." Whatever may have been advanced by the counsel to the con- trary, in this trial? yet by all the authorities it appears, that while, a 148 TRIAL OF T. O* SELFRIDGE, ESQ. man may defend himself against a felonious attack, there is a dif- ference in the law between a felonious and a simple assault, and that this difference is determined by the circumstances of each case : if a man is assaulted by another with his fist or a stick, not likely to kill, the other is not justified In employing a deadly wea* pon to kill the assailant. This runs through all the books, and it marks the intention of the person who employs such a weapon as being malicious. What were the facts in the rencontre between the defendant and the deceased ? Supposing the former to have been attacked, was he likely to have been killed ? You have seen the cane with which the deceased struck Selfridge—you know the place where the affray happened, and you have heard that it was done in the presence of numerous witnesses ;—is it possible that Under all the circumstances of this case, the defendant can be jus-* tifi>d by the defence in preservation of his life, or of that of his person from any great bodily harm ? Does it not absolutely appear to you in testimony, that the defendant went to the Exchange with a deadly weapon concealed in his pocket or behind him, and that he was assaulted by young Austin with a walking cane ? I will not stop to enquire Whether the defendant was lawfully on the Ex- change, though an attempt has been made to prove to you that he was there by appointment, on his lawful occasions ; they have pro- duced Mr. Ingraham to shew that there was an appointment to meet at the Exchange ; that the appointment was made on Sunday, 3d August, to meet the next day, in order to receive an execution which the defendant was to procure for Mr. Ingraham. This the jury will observe was an arrangement made by the defehdant sub" sequent to his writing the advertisement against Austin, which ap- peared in Monday's paper, and from the publication of which the affray is supposed to have arisen, and which he intentionally pro- voked by that piece of abuse. Laying aside every suspicion which may arise from these circumstances, yet we must enquire, whether it was lawful for him to be there with a loaded pistol concealed in his pocket ? Had he reason to apprehend, when he went on 'Change, that he was in iminent danger of his life ? From the testimonies of Mr. Richardson and Cabot, it does appear that this danger could have been avoided by a more prudent mode of con- duct. And was not his taking such measures full evidence of a heart void of social duty, and so fatally bent on mischief, as to be completely that kind of malice known in law under the descrip- tion of malice aforethought ? In the conversation he had with Cabot and Welsh, it was observed very cooly and deliberately that an attack would be made upon his person by some one employed by Mr. Austin. It does not appear, however, from the testimony, that this information was correct ; and the words used in the con versations were varied by the imagination of the reporter, Who is TRIAL OF T. O. SELFRIDGE, ESQ. H9 one of those witnesses ;—he went so far in his supposition, as to believe that a gentleman standing on the opposite side of the way with a whip in his hand was the person employed to chastise the defendant, and cautioned the defendant against it. Selfridge re- plied to him, with a nod and air of indifference, that he was pre- pared for the attack. Now, Gentlemen of the Jury, under these circumstances, what would you do ? Would you conceal a weapon to kill your antago- nist, as if you would act the assassin, or would you not say openly, I am not good at fisti-cuffs, neither have I learned the art of cudgelf ling, but if I am attacked and my life put in jeopardy, I carry opeuly in my hand a loaded pistol to defend myself against any fe- lonious attack which may be attempted, if I cannot save myself without ?-----Gentlemen, yoU would not have put a deadly, mur- derous weapon in your pocket to conceal it, until the. voice of death should give utterance to a municipal right;—-circumstanced in this way, you would carry it openly in your hand, and by such manly,, open conduct, would preserve yourselves from any assault. But if the defendant brought the assault upon himself, by his previous conr duct, in the publication of an advertisement calling the father of the'deceased a liar, scoundrel, and a coward ; if he has provoked a combat by such opprobious and abusive language, where are his grounds of defence ? From the conversation he had a few minutes before with Mr. Richardson and Cabot, it is apparent that he was determined on shooting any person who might assault him in any manner, however lightly, on the Exchange ; that he had prepared himself for that purpose ; and that he intended this; two days be- fore, when he purchased the lead, or the shot, for casting the bul- let. What is tiie law on this premeditation ?—clearly that the par- ty was guilty of murder ;—that without such premeditation, if it was done on a sudden affray, the slayer is guilty of manslaughter. Will his feeble habit of body be a justification under this premedi- tation ? A man who is a cripple, ar.d can walk only with a crutch, will be privileged to arm himself with a deadly weapon, in order to kill any man who may assault him ; he cannot be required to retreat to the wall, because his lameness prevents him from run- ning ; the ground upon which ht stands, or the crutch upon which he leans, is to him a wall, and heimiy shoot down his assailant :— thus the misfortune of decripitude throws a subject into a state of nature, and raises him above the control of, or dependence on, the laws of his country. Ought not the defendant in this case to have made some attempt to retreat, or have called for help before he employed his deadly Weapon in shooting the deceased ? It will not be pretended that the attack was made with a felonious intent, that Austin intended to rob him cu to kill him, neither did the defendant understand it in V fsk TRIAL OF T. 6. SELrRIDGE, ESQ. r that way} for he had said in the conversation wilh Cabot and Rich- ardson, vHiich I have already alluded to, that he was not good at fisti-cuffs of cudgelling, but had prepared himself in another way. By this it appears clearly that that the defendant expected to be at- tacked with a whip or a cane, and that he had determined to kill any one who assaulted him in that manner. Was not the language lie had Used in the scurrilous advertisement calling B. Austin a liar, a coward, arid a sc6undrel,such abuse as he might and did expect would be resented by a kicking or a caning ? In this reasonable view of a situation he courted, how is it possible that the defendant could ap- p'fe'henu' an^ other assault than a chastisement fbr his insolence, hot ah assault with a felonious intention ? Even if the defendant had reason to fear a felonious attack, Was there not such a want of cautiort, and such premeditation, sttch malice on a previous quarrel* fis Will deprive him of the excuse he would otherwise have had ? Shall we go into an examination of the right of one man to kill Buother for a "simple assault ? The counsel for the defendant have fedv&nced this doctrine : the authorities they rely on are Grotius, Hawkins, and '4th BiaCkstone. Where a man is unexpectedly assaulted and kills another avith ft Wetrpoh he has hi his hand, and without time to reflect, these ftuihb'tfties ddnot infer malice from the nature of the instrument, but Where a deadly Weapon is prepared for the purpose the case fs Widely different. Whether it was prepared fbr the purpose, and Whether it Was worn as a part of dress, areprime considerations in all questions of this kind. We have much law on this point, in the trial of the Soldiers in this town fbr a homicide, which took place on March 5th, 1770, on the very place where Austin was killed. In J Iyer's c"hse unAAbbott's case, more recently the distinction I now make were fcfereed to. In the trial of the soldiers it Was agreed that their arms Were legally in their hands, that they marched into the street in obe- dience of the orders of Capt. Preston, that they were sent to sup- port and protect the sentry stationed at the door of the Custom House, and it was admitted by the Court, that if they had not been there in obedience of their Captain's order, they Would have been guilty of murder, that the instruments they used, were lawful in- struments of labor being such as by which they obtained their liv- Wtg. Had they laid down their guns, and taken up other weapons, Vneh as axes, hatchets, spades or hammers, that Would have brought tfhe crime up to murder ; it is true only two of them were convic- ted of manslaughter, but that arose from the particular circum- -stances of the case. Thdse men, at that time, were found guilty of manslaughter fordoing that which was deemed to be their duty, &od-attempted to he justifiedhy the repeated assaults made by the townspeople, hy throwing lumps of ice, brick bats, and other tfirtfeives ; and though in f;n; they did retfeat to the y;ill, it was TRIAL OF T. O. SELFRIDGE, ES*. r-51; held to be manslaughter. Are the times so changed., and the laws g* altered, that what was then held to be a felonious homicide, shall now' be considered in this tpwn without auy extenuating circumstances justifiable homicide r has the distinction between Republicans and federalists, overset our Constitution ? is the one under the protec- tion of the law and the other left to a simple state of nature forh& protection ? I now come to a question which will fix the different shades of guilt on the various views of the fact ; was the defendant in notfe ing to blame in this unfortunate and bloody catastrophe ? Was-tie or was he not the provoker of this quarrel ? If he was in any wis* to blame in that respect, all the books concur, that he cannot avail himself of any circumstances, that may.be set up in justification oy texcuse, under pretence of necessity. And is there nothing to show- that he promoted this quarrel? What is .the nature of the adver* tisement that he wrote and caused to be published ? Did he not understand and expect in the morning of the publication, that it would provoke an assault, in consequence of which he unlawfully armed himself to be his own avenger. Before he put in this adver* tisement, could he not have informed Mr. Austin that he would defend himself as a Gentleman, why did he not write his adver- tisement in another manner ? Could he not Say .that my reputation as a lawyer is of the first consequence to me, that Mr. Austin has represented that I solicited a law suit from the man who furnished the entertainment of the Republicans on the 4th of July, that I pre- vailed upon the man to bring the suit against the Republican com- mittee, that I had convinced Mr. Austin that be .was mistaken in the fact, and he promised me to contradict it, which he has hither- to neglected to do ? Would not this statement haveobtainedthe same credit with those that knew him ? Where was the necessity of calling Mr. Austin a bar, coward and a scoundrel, admitting the mistake, why was it necessary to use the epithet coward, un- less he meant to provoke him up to an act of violence, that he might have a pretext to kill him ? That a combat of some kind was intended by the defendant is very apparent. Several of th£ witnesses have told you that they expected an attack by Mr. Aus- tin upon Selfridge, as the inevitable consequence of that publi- cation. Did he recollect, when he gave this challenge, the feeble- ness of his frame, or the weakness of bis nerves and limbs? And why did he not add in order to put Mr, Austin upon his guard, I will not join with you in fisticuffs or cudgelling, but I carry a loaded pistol concealed in my pocke^ to kill any one who shall dare attempt to horse-whip or cane me ? Is it not true that the ad- vertisement was the origin of this quarrel ? If he was to blame iii provoking it, if he went, out unlawfully armed with a deadly weapon conpealed in his pockeUxpeciing to be assaulted, and thereupon was 152 TRIAL OF T. O. SELFRIDGE, ESQ. assaulted,' under a determined resolution to shoot the person who should assault him, and did actually: kill the deceased the instant the assault was made, prusuant to a premeditated but concvaled design ; where is his ground of excuse or justification ? If he has no1>made out to you beyond any reasonable doubt, that he was*compelled to kill young Austin in his own defence it is your duty, and you are bound by your oath to return a verdict that he is guilty. If he is not guilty of manslaughter, he is guilty of nothing on this indictment j his being guilty of murder cannot excuse him on this issue. Suppose* the assault was not felonious but the person assaulted had some reason to suppose it so, is the person who is put upon his defence warranted in killing the assailant ? it is a fixt principle in our laws that no man can be justified in killing another, but from unavoidable necessity to preserve his own life or property which may be feloniously attacked. In every affray, where there is nq felonious.intent, it is a fixt principle, that the person put upon his defence shall retreat as far as possible before he is justified in killing the assailant. A robber on the high way may be killed the instant he makes the assault, so may a burglar in the attempt to rob a house, so a woman may kill a man in the necessary defence of her chastity ; but a woman knowing her chastity is to be assaulted, must not put herself in the way of the assailant and kill him, for in that case it will be considered, that she had premeditated the de- struction of the man's life, and this would constitute the crime of murder; and in like manner, if another expects to be assaulted, he must not go in way of the assailant with an intention of kil- ling by a concealed deadly weapon. Was such homicide to be al- lowed as lawful, where would it lead us ? Duels might openly, and excusably be fought at noon day in the open street, in the bo- som of the town. Suppose a truckman to be taken by the nose, and with the butt of his whip he strikes the person who assaults him and kills hiri dead with the stroke, he is held guilty of manslaughter onlv it is not excusable homicide, because the assault was not of that dan gerous nature as to put his life in jeopardy. The instrument I have mentioned in tins case is one belonging to his profession, and which he lawfully uses in pursuing his ordinary avocation But suppose a truckman, imitating those gentlemen of nice honor we have heard of, was to drive his truck about the streets anned • with a sword by his side, and another truckman 1,. "S his horses or his truck, the first had drawn his sword and Sd the other with the thrust, .this certainly would change the nature of the offence, instead of manslaughter it would be murde Tlthe ■ degree of guilt resulting from the nature of the instrument h folly exemplified A loaded pistol against a cane is equal to a sword against a truckman's whip.. The truckman has nclng to dwfch »«c sword ; the I,.wy.er has no concern w}th this pistol ' ' TRIAL Or T, C. SELFRIDGE, ESQ. 153 ' If a gentleman riding in his carriage should be ran against by a hackney coachman, uud he conceives that it was intended to injure his property in the carriage, or intended to kill his wife or children who may be with him, has he a right to fire his pistol and kill the hackney coachman on his box ? This principle as contended for, by the counsel on the other side, if supported, will go a mueh greater length than they acknowledge. He is pot only juftifiedin killing the coachman upon the affault, but he may be juftified upon the mere apprehenfion,and fuppofing that the hackney coachman intended to crofs him and ftrike the wheels of his carriage, he may fpring out, and with a fword, which is a gentlemanly weapon, run tfie coachman through the body, under a pretence of appar- ent neceffity to fave his wife or children. Shall I add any thing more, in order to expofe thefe extravagant and novel ideas of the privilege of felf defence ? If on every fmall, mifadventure, or trifling affault, a man has a right to lay another dead at his feet, \fchat nice calculations we are under a neceffity to be compelled to make ! A man defirous of kil- ling another fhould only go to a lawyer and inquire the degrees of affault that would bring down murder to manflaughter, and mSan- flaughter to excufable or juftifiable homicide. One man fias-a high- er notion of honor than another ; and the various notions of honor piuft be the graduated fcale upon which a jury is to determine the true degrees of guilt on homicide. This cannot be the law pf pur country ; yet fome authorities have been read- by the Defendant's coujrfel, to give it this colouring. I thought when they were read, they wrere but partially quoted. Grotius has been cited, to fhew that the right of felf defence is what nature has implanted in'every crea- ture, without any regard to the intention of the aggreffors. I fuf- pefted that this . general rule had fome qualifications, and a little further on I find in the fame author, that the danger to which the perfon k expofed, muft be that of lofing a limb, or a principle mem- ber of his body, or his life, and that there muft be no poflibility of avoiding J.he misfortune otherwife. Thefe are the circumftances that authorife .him, lawfully, and injlantly to kill the aggreffor. Further on he obferves, that felf defence may fometimes be omitted, that it is not lawful for a chriflian to murder a man for a box on the ear, or fuch other flight injury, or to avoid his running away. That murder in defence of our goods, is permitted by the law of na- ture, but even here, there muft he an abfohite neceflity of killing the Ithief to fave the goods. But this treatise of Grotius on the rights of war and peace, ex- plaining the. laws and claims of nature and of nations, and the principles that relate either to the civil government or the conduct pf private life, is a treatise that was written on what was the law .among the Romans and other antient nations, particularly what is fanned the civil law ; he explains what is the law pf nature, ?.:>d lb* TRIAL OF T. O. SELFRIDGE, ESQ. fee describes God as nature herself, and infers that men have all the rights in society which they possessed under the revealed will of their Creator, where the protecting laws of the government can- not be applied. In this case Selfridge had the whole state to pro- tect him, even in a quarrel he provoked himself. In 1 Hawkins, b. 1, chap. 30, sec. 1, it is held that homicide against ttte life of another, amounting to felony, is either with or without malice: ** That which i« without malice, is called manslaughter, or sometimes ch?»ice-s»edley, by which we understand such killinf as happens ekhcr on a sudden auarrel, .or in the commission of an unlawful act, without any deliberate intention of doing any mischief at all." The same author lays ft down, that if he who kills another on a sudden quarrel was master of his temper at the time, he is guilty of murder ; as if after the quarrel he fall into other discourse, and talk calmly thereon. ■ In 4 Blackstone, 184, it is laid down as a principle, that the person who kills another in his own defence, should have retired jas far as lie conveniently or safely can, to avoid the violence of thje assault, before he turns upon the assailant. There is a distinction iij the law between a combat and a sudden affray ; a combat is when two-men meet by agreement to fight. In the present case the defendant appears to be within the meaning of the word combat ; for it appears he was told that there would be an assault, and to make it a combat he went armed with a loaded pistol. The same author proceeds to say, that the person shall not fictitiously appear to retire or to avoid the affray, in order to catch his opportunity of killing the assailant, but from a real tenderness of shedding his brother's blood. Apply this doctrine to the present case, and ex- amine whether the, evidence has shewn to you that the defendant entertained this tenderness in shedding the blood of young Austin. When he armed himself with a deadly weapon, and concealed it in lib pocket, in order to shoot dowh any one who should assault him, can it be thought he had a tenderness against shedding human Hblood ? When he declined having a recourse to the laws of his -country for protection—when he chose to take vengeance into his ■own hands and perpetrated this act, can it be thought he had that -tenderness which the law requires in him who shall unfortunately fee driven from necessity to shed his brother's blood ? ffthe defendant had not written the advertisement, this quarrel would not have taken place—it was that which produced it. It appears that the consequences were produced exactly as he intend- wcl they should be, except that he killed one man instead of another. Retrace the whole of the transaction, and you will see the defend- ant bent on a bloody purpose : the letters of the 29th and SOth of July, appeared to have been intended to provoke a duel. But his counsel tell you that he was provoked to take these measures, on account of the injurious words spoken by B. A/istin. Suppose .it TRIAL OF T. O. SELFRIDGE, ESQ. 155 rue that Mr. Austin had spoken disrespectfully of the defendant, or that he had printed tire most opprobirous slander of him, would it justify the defendant's going armed with a loaded pistol concealed in his pocket ? The law holds that words either spoken or written can never justify an assault; it is of no consequence, therefore, whether B. Austin was to blame or not, the defendant ought not to have defended himsalf in this way. It is true that the reputa- tion of a lawyer is of great importance to himself, and of some to the community. As one of th« profession, I wish the order was more respectable than the conduct of some of its members havte lately rendered it; in that case we should not at this day have heard the outcry against them, which seems to prevail too much throughout the United States. To me the original conversation which is said to have occasioned this unhappy event, does not appear necessarily to have involved the affront which the defendant seems to have conceived. From the testimony of Mr Scott, we find that some gentlemen had beeft joking Mr. Austin, at Russell's Insurance Office, on the Republi- can Committee being sued for the expence of the dinner the party had on Copp's hill; and that Mr. Auftin, when he was going away, laughingly retorted, that if a federal lawyer had not interfered* it would not have happened ; it was a reply upon the other party, and not a perfonal attack upon Mr. Selfridge. Mr. Scott inferred that he alluded to Mr. Selfridge, becaufe he thought Mr. Auftin addreffed himfelf to him, as he was one of the federal party. Mr. Selfridge's reputation was not affe&ed, but he purfues him with a dreadful vengeance, and throughout the whole appears to be deter- mined to have him at his feet, alive or dead j how could he haye fuf- fered in his character or his bufinefs ? Is there any federalift who thinks it difhonourable to fue a democrat ? or is there any federalift who would decline to employ Selfridge on that account ? For my1 part, I apprehend from what I have feen on the prefent trial, there was no ground for what is faid to be the apprehenfion of the De- fendant. One further obfervation—Mr. Carrol fay6 that he heard the re- port of the piftol when he was at the poll office ; immediately aftor he faw Mr. Ritchie and Selfridge together, and Mr. Ritchie faid to the Defendant, that he was extremely agitated ; to which the De- fendant replied, I am not agitated, I have done what I intended to do, or meant to dp. Mr. Haftings fays that he heard Selfridge fpeak alfo, when it was inquired who had done the deed, and fay, I am the man, I am not agitated. Mr. Ritchie fays that the Defend- ant faid, I know what I have done, I am not fo much agitated as you are ; and that he ftopd firm, ereft, and upright. Does this look as if the killing was done upon a fudden affray ? would either of you Gentlemen, who fhould have been driving your carriage, and had the misfortune to run over a poor child begging alms in the ftreet, aod 156 TRIAL OF T. O. SKU III!)(.;:, l'.SQ. kill him, flop fhort, and fay, I am the man who has done it, T know what I have done, I am not agitated ! I am totally unacquainted with human nature, even at this advanced period of life, if there is a man among you but who would fhudder at the accident, and lament the effect of fuchcareleffncfs. If any of you, in firing a gun,fhould be fo unfortunate as to kill one of your neighbours without intending it, your hearts would be too full, and you would be too much affcct- ed, to vaunt in a confident manner that you was the man that had done it; that you had done nothing more than what you intended. If the Defendant had killed young Auftin by accident, he muft have fhown fome degree of agitation ; but he was cool and collected, and did no more than what he intended to do. Thia was true, or why did he carry with him a loaded piftol ? If there is in your opinion, any degree of premeditation, he muft be at leaft guilty of man- flaughter. I have, I think, candidly examined this cafe, and have done only that wliich appeared to me to be my duty to do. I did expect that the indictment would have been for murder. It ought on every prin- ciple to have been fo ; there is ho precedent to the contrary. The tef- timony I had heard,rendered fuch an indictment proper; not that I wifh- ed that he fhould have been convicted of that offence, but becaufe I thought it would furnifh an opportunity for a full examination of the unfortunate event. The Grand Jury having found a bill for manflaugh- ter only, have, in fome meafure, reftrained us-from fuch an inquiryi and the opportunity we might have had of conducting tiie trial be* fore a full bench of the Supreme Court. I have no doubt but what his Honor, the judge who prefides, will give you correct directions in his charge ; but ftill it is not the charge of a full bench, and therefore cannot be fo fatisfactory, as it might have been. 1 ought to have no expectation either that a wrong verdict will be given, or that the verdict, be it what it may, will throw the community into convulfions. Fear of confequences is an inadmiflible principle in our judicial proceedings ; higher motives muft urge us to our doty, and the bafe principle of fear, can have no effect in the trial. If the Defendant has fuffered, or muft fuffer, is it not the confe- quence of his own fault ? And is it not right that one who avow- edly raifes himfelf above the laws, fhould fuffer, rather than that the effential laws of fociety, the firft law of natural reafon, and the law of God, promulgated by the higheft fanctions, fhall be fet at defiance ? Gentlemen, I confign this caufe to you ; to be decided accord- ,ing to the laws of our country, which laws his Honor will ftate to you from the bench ; you will decide as in the prei'ence of Him who knows all our motives, and before whom we muft all foon appear and have to anfwer, ar.d in the prefence of the whole human rftcej for the motives on which the prefent d:cifion fhall be formed, * TRIAL OF T. 0. SELFRIDGE, ESQ. 157 PARKER. J. Gentlemen of the Jury ! As this most interesting trial has aL ready occupied four days—And as you must by this time be near- ly exhausted, I shall endeavour, in discharging the duty incum- bent on me, to consume as little more of your time as may be con- sistent with a clear exposition of the principles necessary to be understood, in order to form a just and legal decision. You have heard the important facts in the case, minutely and distinctly sta- ted by the witnesses, ably and ingeniously Commented upon by counsel, and the principles of law elaborately discussed and illus- trated in as forcible and eloquent arguments as were ever witness- ed in any court of justice in our country. It is now left to you upon the whole view of the case, both of the law as it shall be declared to you by the court, and the facts as proved by the testi- mony, to pronounce a verdict between the defendant and your country. That in so important a trial, it should have devolved upon me, alone, to preside over its forms, as well as to declare the princi- ples upon which your decision is to rest, is by no means a subject of congratulation. It is a situation which of all others I should have avoided, had not official duty imperiously imposed it upon me. But the organization of the court, and distribution of the services of its members are such as to have rendered any other ar- rangement difficult, if not impossible. . Under our present judi- ciary establishment, all criminal causes, other than capital, are tria- ble before one judge ; and this system has proved itself to be emi- nently calculated for the dispatch of public business : other pro- visions in the system ensure as great a degree of correctness as can be expected of any human institution. It is true that although at a term holden by one judge, if others are present, they may proceed together : But at this time, thq court being in session in three, if not four several counties, it was impracticable, had it been desirable, to have more than two judges engaged in the present trial. The great delay which would have taken place, in consequence of a division of opinion (a case not unlikely to happen in the course of any trial) between two judg- es rendered it altogether inexpedient that more than one should attend ; and as this term had been previously assigned to me, the unpleasant task of officiating in the present case, seemed unavoid- ably to belong to me. Since it has thus fallen to me to execute a painful and anxious duty, I shall not shrink from the task of declaring to you the principles of law by which you are to be governed in yotrr investi- gation and decision of this case. If in doing this, I should be found capable, in order to retain the favour of one class of the 'community, or to court that of another, of abusiDg my office by 158 TRIAL OF T. O. SELFRIDGE, ESQ. stating that to be law which I know to be otherwise ; this ia the last time I should be siiffered to sit upon this bench, and I ought to meet the execration and contempt of the society to which I be- long. The crime charged by the Grand Jury upon the defendant is manslaughter ; a crime of high consideration in the eye of the law. This crime, however, is not defined by,our statute, but its punishment is by it provided for. In order therefore, to ascertain the nature and character of the crime, it is necessary to resort to the books of the common law, the principles of which, by the constitution of our government, are made the law of our land, until they shall be changed or re- pealed, by our own legislature. The counsel for the government, as well as for the defendant, have therefore wisely and properly searched the most approved authorities of the common law, for the principles upon which the prosecution or the defence must be supported. It is from those books alone, that any clear ideas of the offence which is in trial, or the defence which has been set up, can be attained. The crime of manslaughter, according to those authorities, con- sists in the unlawful and wilful killing of a reasonable being, without malice express or implied, and without any justification or excuse- That the killing of a human being, under some circumstances, is not only excusable, but justifiable, is proved by the very terms of this definition. Some persons, however, have affected to entertain the vision- ary notion, that it is in no instance lawful to destroy the life of a- nother, grounding their opinion upon the general proposition in the Mosaic code, that iC whosoever sheddeth man's blood, by man shall his blood be shed." There is always danger in taking gen- eral propositions as the rules of faith or action, withput attending to those exceptions, which if not expressly declared, necessarily grow out of the subject matter of the proposition. Were the position above alluded to, true, in the extent con- tended for by some ; then the judge who sits in the trial of a cap- ital offence, the jury who may "convict, the magistrate who shall order execution, and the sheriff who shall execute, will all fall within this general denunciation, as by their instrumentality the blood of man has been shed. The same observations may be applied to one of the precepts in the decalogue. Thou shalt not kill, is the mandate of God him- self. Should this.be construed literally and strictly, then a man who, attacked bf a robber, or iu defence of the chastity of his wife, or of his habitation from the midnight invader, should kill the assailant, would offend1 against the divine command, and be TRIAL OF T. O. SELFRIDGE, ESQ. 159 obnoxious to punishment. But the common understanding of mankind will readily perceive that the very nature of man, and principles of self-preservation, will supply exceptions to these general denunciations. Our laws, like those of all other civilized countries, abundant- ly negative such unqualified definitions of crime, and have adopted certain principles by which the same act may be ascertained to ba more or less criminal or entirely innocent, according to the mo- tive and intent of the party committing it. Thus when the killing is the effect of particular malice or gen- eral depravity, it is murder and punished with death. When without malice, but caused by sudden passion and heat of blood, it is manslaughter. When in defence of life it is excusable. When in advancement of public justice, in obedience to the laws of the government, it is justifiable. These principles are all sanctioned by law and morality, and yet they all contradict the dogma, that " whosoever sheddeth man's blood, by man shall his blood he shed." It is not necessary for you to run a nice distinction between jus- tifiable and excusable homicide ; if the one now in trial be either the one or the other, it is sufficient for te purpose of the defen- dant. A distinction existed in England, which does not exist here, there the man who had committed an excusable homicide forfeited his goods and chattels ; while he who had a justification, forfeited nothing. Here, whether the homicide be justifiable or excusable, there must be an entire acquittal. Numerous authorities, ancient and modern, have been read to you upon this subject. Were it necessary for you to take those books with you, and compare the different prnciples and casesn which have been cited, your minds might meet with some embar- rasments, there being in some instances an apparent though in nose a real incongruity. But I apprehend you need not trouble yourselves with the books out of court, for I think I shall be a- ble to state all t he principles you will have occasion to consider ; there being in fact no disagreement about them from the time of Sir Edward Coke, one of the earliest sages of the law, down to Sir William Blackstone, one of its brightest ornaments. These same principles, although taken from English books, have been immemorially discussed, and practised upon by our lawyers, adopt- ed and enforced by our courts and juries, and recognized by out legislature. To prove this, I now need say no more, than that the same learned judge Trowbridge, who was quoted by the At- torney General, in his charge to the jury in the trial of the sole diers for the massacre in 1770, laid down, discussed and illus- TRIAL OF T. O. SELFRIDGE, ESQ, tratcd with great precision and clearness, every principle which can come in question in the present trial. These principles I will endeavour to simplify for your consul, eration. „ ,. , . First. A man, who, in the lawful pursuit'of his business, is attacked by another under circumstanees which denote an mten, tion to take away his life, or do him some enormous bodily harm ; may lawfully kill the assailant, provided he use all the means in his power, otherwise, to save his own life or prevent the intended harm—such as retreating as far as he can, or disabling his adversa- ry without killing him if it be in his power. Secondly. When the attack upon him is so sudden, fierce and violent, that a retreatwould not diminish, but increase his danger, he may instantly kill his adversary without retreating at all, Thirdly. When from the nature of the attack, there is reason, able ground to believe that there is"a design to destroy his life, or commit any felony upon his person, the killing the assailant will be excusable homicide, although it should afterwards appear that no felony was intended. Of these three propositions, the last is the only one which will be contested any where ; and this will not be doubted by any who are conversant in the principles of criminal law. Indeed, if this last proposition be not true, the preceding ones, however true and universally admitted, would in most cases be entirely inefficacious. And when it is considered that the jury who try the cause are to decide upon the grounds of apprehension, no danger can flow from the example. To,illustrate this principle, take the following case. A. in the peaceable pursuit of his affairs, sees B. rushing rapidly towards him, with an outstretched arm and a pistol in hfe hand, -and using violent menaces against his life as he advances. Having approached near enough, in the same attitude; A. who has-a club in his hand, strikes B. over the head before, or at the instant the pistol is discharged, and of the wound B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was only to terrify A. Will any reasonable man say that A. is more criminal than he would havo been if. there had been a bullet in the pistol 3 Those who hold such doctrine, must require, that a man so attacked, must, before, he strike the assailant, stop and ascertain how the' pistol is loaded. A doctrine -which would entirely take away the essential right of self defence, And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his ap- prehension, no danger can be supposed'to flow from thisi principle. ■■ These are the principles of Jawp gentlemen, fo which I call your attention. Having done this, I might leave the cause with yon, Were it not necessary, to take a brief view of some other parts of it, TRIAL OF T. O. SFXFRIDGE, ESQ. lfit As to the evidence, I have no intention to guide or interfere with its just and natural operation upon your minds. I hold the privilege of the jury to ascertain the facts, and that of the court to declare the law, to be distinct and independent. Should I in- terfere, with my opinion on the testimony, in order to influence your minds to incline either way, I should certainly step out of the province of a judge, into that of an advocate. All which j conceive necessary or proper for me to do, in this part of the cause, is to call your attention to the points of fact on which the cause may turn, state the prominent testimony in the case which may tend to establish or disprove those points, give,you some rules by which you are to weigh testimony, if a contrariety should' have occurred, and leave you to form a decision according fo your best judgment, without giving you to understand, if it can be a- ' voided, what my own opinion of the subject is. Where the in- quiry is merely into matters of fact, or where the facts and the law can be clearly discriminated ; I should always wish the jury to leave the stand without being able to ascertain what the opin- ion of the court as to those facts may be, that their minds may be left entirely unprejudiced, to weigh the testimony and settle the merits of the case. An important rule in the present trial is, that on a charge for murder or manslaughter, the* killing being confessed, or proVed, the law presumes that the crime as charged in the indictment, has "been committed, unless it should appear by the evidence for the prosecutor, or be shewn by the defendant on trial, that the kill-, ing was under such circumstances as entitle him to justification or excuse. On the point of killing, there is no doubt in this case. The young man named in the indictment, unquestionably came to his death, by means of the discharge of a pistol by the defendant a,t the bar. This part is confessed as well as proved. The o-reat question in the case is, whether according to the facts shewn to you on the part of the prosecution, or by the defendant, any reasonable, legal justification or, excuse ha^been proved— Whether the killing were malicious or not, is no farther a subejet of inquiry than that if you have evidence of malice,, although the, crime charged does not imply malice, it may be considered as prov- ing this crime, because it effectually disproves the only defence which can be set up, after a killing is established, ■ ■ From the testimony of several witnesses examined by the bo, licitor and Attorney Generals, it appears that on the day set forth in the indictment, the defendant was in his office a little be, fore one o'clock—that in a conversation about his quarrel with the father of the deceased, he intimated that he had been informed an attack upon him was intended, and that he was prepared—That 162 TRIAL OF T. 0. SELFRIDGE, ESQ. a short time afterwards, h» went down from his office, which is in the Old State House, crossing State-street diagonally, tcndiiig to- wards the United States Bank. That as he passed down his hand* were behind him, outside of his coat, without any thing in them, is proved by the testimony of Mr. Brooks, who saw him pass down, and by that of young Mr. Erving, who saw him when the deceased approached, put his right hand in his pocket, and take out his pistol, while his left arm was raised to protect his head from an impending blow. The manner of his going down upon 'Change, the weapon which he had with him, the previous intimation of an attack which he seems to have received, from Mr. Cabot or Mr. Welsh, and the errand upon which he went down as stated by Mr. Ingra- ham, arc all circumstances worthy of your deliberate attention. Passing down State-street, as before described, several witnesses testify that the deceased, who was standing with a cane in his hand, near the corner ofsthe Suffolk buildings ; having cast his eye up- on the defendant, shifted his cane into his right hand, stepped quick from the side walk on to the pavement, advanced upon the defendant, with his arm uplifted ; that the defendant turned, stepped one foot back, and that a blow fell upon the head of the defendant, and the pistol was discharged at the deceased, at one and the same instant. Several blows were afterwards given and attempted to be parried by the defendant, who threw his pistol at the deceased, seized upon his cane, which was wrested from him by the deceased, who becoming exhausted, feJLl down, and in a few minutes expired. This is the general course of the testimony ; the scene was a shocking one, and all the witnesses state to you that they were exceedingly agitated. This will'account for the relation given by Mr. Lane and one other witness, I believe Mr. Howe, who state the facts so differently from all the other witnesses produced by government, as well as by defendant, that however honest we may think them, it is impossible not to suppose they are mistaken.— Indeed, the Attorney General has wisely and candidly laid their testimony so far as it differs from that of the other witnesses, out of the case. There is one witness, Mr. Glover, who states the transactions somewhat differently from the other witnesses. He says, that hav- ing expected to see a quarrel upon Exchange, in consequence of the publication against the deceased's father, in the morning, he went there for the express purpose of seeing what should pass— that he saw Mr. Selfridge eoming down street, saw young Austin advance upon him, that he had a full view of both parties, was within fifteen feet of them, that he saw a blow fall upon the head ©f Selfridge with violence, the arm of the deceased raised to give TRIAL OF T. O. SERFRIDGE, ESQ. 163 a seeond blow, which fell the instant the pistol was discharged. This is the only witness who swears to a blow before the discharge of the pistol; but he swears positively, and says he has a clear, distinct recollection of the fact; his character is left without im- peachment. If you consider it important to ascertain whether a blow was or was not actually given before the pistol was fired, you will inquire whether there are any circumstances proved by other witnesses whieh may corroborate or weaken the testimony of Mr. Glover. On this point you will attend to the testimony of Mr. Wiggin, who swears that he heard a blow as if on the clothes of some per- son, that he turned, and saw the deceased's arm uplifted, and a- nother blow and the discharge of the pistol were together. You will consider the testimony of young Erviug, who swears that the left arm of the defendant was over his forehead, as though defending himself from blows, when he saw the blow fall. You will consider that all the witnesses but Glover, state, that the blow which they saw, and thought the first, was a long blow a- cross the head, that the blow, which Glover says was the first, was a direct, perpendicular blow, and that he then saw the second blow, which was a cross one, as testified by the other witnesses. If you find a difficulty in settling the fact of the priority of the blow, take this for your rule, that a witness who swears positive- ly to the existence of a fact, if of good character, and sufficient intelligence, may be believed, although twenty witnesses, of equal- ly good character, swear that they were present, and did not see the same fact. The confusion and horror of the scene was such, that it was easy for the best and most intelligent of men, to be mistaken, as to the order of blows, which followed each other m such rapid succession, that the eye could scarcely discern an inter- val. You will, therefore, compare the testimony of the witnesses, where it appears to vary, attending to their different situation, power of seeing, and capacity of recollecting and relating, and settle this fact according to your best judgment, never believing a witness who swears positively, to be perjured, unless you are ir- resistibly driven to such a conclusion. Upon this point you wiU also attend to the testimony of Mr. Fales, and of Mr. Osborne, and Mr. Perkins Nichols, touching the testimony of Mr. Fales. The counsel for the defendant seem, however, to deem it of little importance to ascertain whether the blow was given before the pistol was discharged or not, as there is evidence from all the wit- nesses, that an assault, at least, was made by the deceased, before the pistol was fired. I think differently from them upon this* point. When the defence is, that the assault was so violent and fierce that the defendant could not retreat, but was obliged:to kill ibe deceased, to Save himself, it surely is of importance to> ascer- 164 TRIAL OF T. O., SELFRIDGE, ESQ. tain whether the violent blow he received on his forehead, whitlh at the same time that it would put him off his guard, would satisfy fern of the, design of the assailant, was struck before he fired or not. , I doubt whether self defence could in any case be set up, where the killing happened in consequence of an assault only, unless the assault be made with a weapon which if used at all, would proba- bly produce death. t When a weapon of another sort is used, it seems to me that the effect produced, is the best evidence of the power and intention of the assailant to do that degree pf bodily harm, which would alone authorize the jtaking his life on "the principles of self defence. But whether the firing of the pistol was before Or after a blow Struck.by the deceased, there is another point of more impor- tance for you to settle, and about which you must make up your minds, from all the circumstances proved in the case ; such as the rapidity and violence of the attack, the nature of the weapon With which it was made, the place where the catastrophe happen- ed, the. muscular debility or vigour of the defendant and his pow- er to resist or to fly. The point I mean is, whether he could probably have saved himself from death or enormous ■ bodily harm, by retreating to the wall, or throwing himself into the arms ©f friends who would protect him. This Is the real stress of the case. If you believe under all the circumstances, the defendant could have escaped his adversary's vengeance, at the time of the attack, without killing him, the defence set up has failed, and the dofencUnt must be convicted. If you believe his only resort for safety was to take the life of his antagonist, he must be acquitted, unless his conduct has been such prior to theattack upon him, as will deprive him of the priv- iledge of setting up a defence of this nature. It has, however, been suggested by the defendant's counsel, that even if his life had not been in danger, or no great bodily harm, but only disgrace was intended by the deceased, there are certain principles of hon- our and natural right, by which the killing may be justified. These are principles which you as jurors, and I as a judge ean- not recognize. The laws which we are sworn to administer, ar« not founded upon them. Let those who chuse such principles for their guidance, erect a court for the trial of points and principles of honour ; but let the courts of law adhere to those principles which are laid down in the books, and whose wisdom ages of experience have sanction- ed. I therefore declare it to you as the law of the land, that un- less the defendant has satisfactorily proved to you, that no means of saving his life, or his person from the great bodily harm which was apparently intended by the deceased against him, except kill- I TRIAL OF T. O. SELFRIDGE, ESQ. 165 ing his adversary, were in his power—he has been guilty of man- slaughter, notwithstanding vou may believe with the grand jury who found the bill, that the case does not present the least evi- dence of malice or premeditated design in the defendant to kill th« deceased or any other person. 1 ought not to rest here ; for although I have stated to you that when a man's person is fiercely and violently assaulted, un- der circumstances which jeopardize his life or important members. he may protect himself by killing his adversary ; yet he may from the existence of other circumstances proved against him, forfeit his right to a defence which the laws of God and man would oth- erwise have given them. If a man, for the purpose of bringing another into a quarrel, provokes him so that an affray is commenced, and the person causing the quarrel is overmatched and to save himself from appa- rent danger kill his adversary, he would be guilty of manslaugh- ter, if not of murder, because the necessity being of his own crea- ting, shall not operate in his excuse. You are therefore to inquire whether this assault upon the de- fendant by the deceased, was or was not by the procurement of the defendant; if it were, he cannot avail himself of the defence, now set up by him. And here jou are called upon to distinguish pretty nicely, and to attend to a part of the case which I thought was going too far back to have an influence upon this trial, but which the urgency of the Attorney General and the consent of defendant's counsel finally induced me to admit. You have heard the whole story of the misunderstanding be- tween the defendant and the father of the deceased—who was o- riginally in the wrong, it is not for me to say, but 1 feel constrain- ed to say, that whatever provocation the defendant may have con- ceived to have been given him, and however great the injury which the deceased's father may have done him, he certainly proceeded a step too far in making the publication which appeared in the paper which came out on the morning of this unhappy disaster. To call a man coward, liar and scoundrel, in the public newspa- pers, and to t-a.ll upon other printers to publish the same, is not justifiable under any circumstances whatever Such a publication is libcllofllt in its very nature, as it necessarily excites to revenge and ill blood. Indeed, I believe a court of honour, if such exist- ed, to settle disputes of this nature, would not justify such a proc- lamation as the one alluded to. A posting upon 'change or in some public place, we have heard of, but I never before saw such a violent denunciation as this in a public newspaper. Neither can I refrain from censuring the managers of the paper who admitted such a publication, for so readily receiving mid pub. lishing, what in its \ cry nature would tend to disturb the public 1C6 TRIAL OF T. O. SELFRIDGE, ESQ. peace. But, gentlemen, it is one thing for a man to have done wrong, and another thing for that wrong to be of a nature to justi- fy an attack upon his person. If personal wrong, done by the father of the deceased to the defendant, would not justify him in publishing a libel ; neither would the libel have justified thede- ceased or his father in attacking the person of the author of the libel. No man can take vengeance into his own hands, he can use vi- olence only in defence of his person. No words, however aggra- vating, no libel, however scandalous, will authorize the sull'eriug party to revenge himself by biows. If therefore, Mr. Austin himself, the object of the newspaper publication, would not be justified had he attacked the defendant and beat him with a cane ; still less would the circumstances have justified the unfortunate young man, who fell a victim to the most unhappy and ever to be lamented dispute. For however a young and ardent son may find advocates in every generous breast, for espousing his father's quarrel, from motives of filial affection, and just family pride ; yet the same laws which govern the other parts of the case, would have pro- nounced him guilty, had he lived to answer for the attack which was the cause of his death. The laws allow a son to aid his father if beaten, and to protect him from a threatened felony, or personal mischief, and in like cases a father may assist a son, and should a killing in either case take place it is excusable ; but neither one nor the other can justify resorting to force, to avenge an injury consisting in words how- ever opprobrious, or writings however defamatory. You will therefore consider, whether these facts, antecedent to the meeting on 'Change, can have much operation in the cause, let which party will, be found by you to be in the wrong. Upon the whole, therefore, of these circumstances, should you be of opinion that the defendant, in order to avenge himself upon the father of the deceased, prepared himself with the deadly wea- pon which he afterwards used, went upon 'Change with a view to meet his adversary, and expose himself to an attack, in order that he might take advantage of and kill him, intending to resort to no other means of defence in case he should be overpowered ; there is no doubt the killing amounted to manslaughter—but if from the evidence in the case, you should believe that the defen- dant had no other view but to defend his life and person from aa attack which he expected, without knowing from whom it was to come—that he did not purposely throw himself in the way of the attack, but was merely pursuing his lawful vocations, and that in fact he could not have saved himself otherwise, than by the death of the assailant—then the killing was excusible, provided TRIAL OF T. O. SELFRIDGE, ESQ. kj; the circumstances of the attack would justify a reasonable ap- prehension of the harm which he would thus have a right to pre- vent. Of all this you are to judge and determine, having regard to the testimony of the several witnesses who have given evidence to these several points in the defence. The principles which I have thus stated are recognized by all the books which have been read, and are founded in the natural and civil rights, and in the social duties of man. The last subject on which I shall trouble you^ is the address which has been so forcibly urged upim your minds by the counsel on one side, and as zealously and ably commented on by the Attorney General on the other, touching the necessity of exclud- ing all prejudices and prepossessions relative to this cause. I do not apprehend these observations were in any degree necessary, as I cannot bring my mind to fear that the'verdict of twelve upright, intelligent jurors, selected by lot from the mass of their fellow-citizens, will be founded on any thing beside the law and evidence applicable to the case. Every person of this numerous assembly, let his own opinion of the merits of the cause be as it may, must be satisfied of the fairness, regularity, and impartiality of the trial, up to the present period ; and sure I am, that nothing which is left to be done by you, will impair the general character of the trial. If you dis- charge your duty conscient ously, as I have no doubt you will, whether your verdict be popular or unpopular, you may defy the censure, as I know you would disregard the applause of the sur- rounding multitude. Least of all do I apprehend that party spirit will come in to influence your opinions. However the storms of party rage may beat without these walls, I do not believe the time has yet come when they shall find their way within. Nor do I believe that a general apprehension is entertained, that a man accused of a crime is to be saved or de- stroyed according to political notions he entei tains. If ever the time should come when a general belief shall be entertained that trials are conducted and judgments given with a view to the polit- ical character of the parties interested ; vain and ineffectual will be the forms of your constitution, and useless the attempt to ad- minister the laws. A general resistance would be the conse- quence, and if this belief should be founded in fact and in truth ; that resistance would, in my apprehension, be perfectly justifiable, for no people would be bound to respect the forms of justice, when the substance shall have vanished ; when the fountains of justice shall be manifestly corrupt and the forms and parade ad- hered to for the purpose of imposing on the citizens and subject- ing them to oppression under the garb of law. 1S8 TRIAL OF T. O. SELFRIDGE, ESQ. You, Gentlemen, will not be the first to violate the solemn oath you have taken, and seek for a conviction or an acquittal of the defendant upon any other principles than those which that oath has sanctioned. And as I trust, that in performing »zyduty, I have conscientiously regarded that oath which obligerme " faith- fully and impartially to administer the laws according to my best skill andjudgment," so that in discharging yours, you will have due regard to that which imposes upon you the obligation well and truly to try the cause between the Commonwealth and the defendant, according to law and the evidence which has been giv- en you. VERDICT........NOT GLTLTY. Counsellors for the Defendant. Hon. SAMUEL DEXTER, Hon. CHRISTOPHER GORE, Ho*. HARRISON G. OTIS, CHARLES JACKSON, Esq. For the Prosecution. SOLICITOR 8c ATTORNEY GENERALS. J **>-■ #- \-. TABLE OF CONTENTS. Preliminary matter .... 5 Indictment for Manslaughter . 7 Plea......... 8 List of Petit J»iry .... 9 Solicitor General's Opening . 10 Argument on Shewing Malice . 15 Solicitor General's Opening, con. 18 Argument oh reading the Coro- ? gg nor's Inquest in evidence J Witnesses for the Government. Dr. Thomas Danforth ... 23 James Richardson, Esq ... 24 A"g. on admitting his testimony . ib. James Richardson's testimony . 31 Benjamin Whitman, Esq . . 34 John M. Lane ...... 35 Edward Howe.....36 Ichabod Frost......ib. Gore's Opening for Defendant . 37 Witnesses for Defendant. John Bailey .'...., 5') Zadock French . . , . . 51 Richard Edwards .... 53 Z. French, again . . . , . 54 "William Fales , . . . . 55 Horatio Bass......56 J. Erving ....... 57 W. Schaffer ......ib. Lewis Glover......ib. Dr. John C. Warren .... 59 Lewis Glover, again ... * 60 Dr. Warren, again .... ib. William Ritchie.....61 Duncan Ingraham, Esq. ... 63 Dr. James Jackson .... ib. D. Pickman ...... 65 John Brown......ib. Dr. I. Rand......66 Warren Dntton, Esq. ... 67 Lemuel Shaw, Esq.....68 Henry Cabot, Esq. . . . . 69 Mr. French, again .... 71 Gore cites authorities*before he? ., proceeds to the Defence $ Witnesses for Government W. Donnisen, . . . . Rev. C. Lowell..... Motion by the Attorney Gen for further Evidence Argument on the same J. Hastings Esq.for Gov. H. R. Kendall . . J. E. Glover . . . Thomas Welsh, Esq. Benj. Austin, Esq. Thomas Welsh, again Thomas Melvill, Esq. Henry Flagnor . . Daniel Scott . . . Abraham Babcock Dr. Warren, for Gov. N. P. Russell, for Def. D. Scott, again . • . B. Austin, again J. Osborne, for Def. Perkins Nichols, Esq. J. Parkman W. Fales, again . . James Cutler, for Gov. E. French .... Martin Carrol . . . E. Eager, for Def. Gore's summing up, S. Skelton, for Gov. . R. Edwards, for Def. Mr. Ritchie, again, . Attorney Gen. cites authoriO ties for Defendant's Counsel > to answer,.....) Job Bass, for Gov. . . . . Dexter, in close of Defence, Attorney General's concluding? argument,.....$ Parker, Judge, Charge to the? Jury,.......$ 71 72 72 74 78 79 ib. 81 83 91 ib. 92 ib. 93 ib. 94 ib. ib. ib. 95 ib. ib. 96 97 ib. ib. 96 112 ib. ib. 116 ib. 130 157