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fane 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 which we oppose to it; then examine the evidence, to ascertain the facts, and then inquire what is the law applicable to those facts. The charge is for manslaughter; but it has been stated in the opening, that it may be necessary to know something of each species of homicide, in order to obtain a correct idea of that which you are now to consider. Homicide, as a general term, includes, in law, every mode of killing a human being. The highest and most atrocious is murder; 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 authorized 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 offence, be an accessory 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 will not be contended that the defendant is guilty of either of these descriptions of manslaughter. Neither party suggests that the defendant was under any peculiar impulse of passion 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 least 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, find 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 either 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 conviction for manslaughter may take place on an indict- ment for murder. I will not detain you to ex3 mine this, for it is not doing justice to the defendant to admit, for a moment, even for the vol. II.-16
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 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 assailant. This is the principle of the defence stripped of all technical language. It is not important to state the difference between justifiable and excusable homicide, or to show to which the evidence will apply; because, by our law, either being proved, the defendant is entitled to a general acquittal. Let us now recur to the evidence and see whether this defence be not clearly established.
Mr. DEXTER here went into a minute examination of the whole evidence. In the course of it he labored to prove, that Mr. Selfridge went on the Exchange about his lawful business, and without 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 weapon, that he was in imminent danger; that it was so sudden, and himself so feeble, that retreat would have been attended with extreme hazard; 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 inevitable 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 misbehavior of old Mr. Austin, and that the defendant had been greatly injured in that affair:-Mr. DExTER then proceeded:
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 descending, or even uplifted within reach of him, reason and common 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 retreat as far as he can, say also, that, if the assault be so violent that he cannot retreat without imminent danger, he is excused from so doing. If this means any thing, it is applicable to our 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 very 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 either 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, opprobrious names in the newspaper. As to the affray being sought by the defendant, there is no 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 Fo that he took the pistol with an unwful 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 done so, this would have been urged as the strongest evidence of his intention 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 color for this suggestion if the defendant had gone on the Exchange, and then insulted either old Mr. Austin or his son, or voluntarily engaged in an altercation with either of them. But he went peaceably about his ordinary business, and made use of his weapon 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 too danger that attended it, and took weapons
to defend himself against it? As little is the defendant to be censured for going about his ordinary business, when he knew it would be attended with danger, and arming himself for defence, in case such an emergency should happen, as that the laws could not afford 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 Boston and Medford, a road that has been thought attended with some danger of robbery; and that he sometimes carried pistols in his pocket. There is not the least pretence for saying that he expected an affray with young Mr. Austin. He could not presume 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 against old Mr. Austin; though this might be in some sense a fault, yet it is #. 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 y to examine his conduct? If the defendant had libelled Mr. Austin; 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 anything 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; but they all refer to one adjudged
case, which is found stated in 1. H. P. C. page 440.
By recurring to the statement of this case it appears that the persons who killed, and would have excused it on the ground of necessary selfdefence, had forcibly entered and disseized the rightful 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 inst him who had a right to enter, they had produced his 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 act, is guilty of manslaughter. It would be absurd that a man who kills by accident, while performing an unlawful act, should be guilty of manslaughter; and yet that he who kills, from design, 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 it is excusable homicide in A; and yet here A was in fault in this very affray, by making the first assault; but having afterwards retreated as far as he could, the law extends to him the right of self-defence. This shows 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 1st 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 defendendo, and shall not be heightened by the former malice into murder 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 .. whereof A dies; this is only homicide, se defendendo, although that B. had given divers other strokes that were not mortal before he retired to the wall or as far as he could. But now, suppose 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., 8 Itin., North. Coron, 287; but Mr. Dalton, ubi supra, 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 circumstance, 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 confirmation of that residue. It is that alone on which I rely, and it is amply sufficient to prove, what I have before stated; that if A first assault B
on a sudden affray without malice, 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 remark. The publication in the newspaper is nothing more than provoking language; now if the defendant had, immediately before the affray, made use of the same language to old Mr. Austin, no lawyer will pretend that this would have been such a fault as would have precluded the defendant from excusing himself for 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 cannot 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 newspaper was a fault in the defendant; nor am I disposed entirely to justify it; yet circumstances existed which went far to extenuate it. He had been defamed on a subject, the delicacy of which, 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 of a lawyer, that it is wounding him in the nicest point, 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 publicly 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 publicly 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 induced 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 recompense, when he neglected to make the denial as public as the charge. This was a state of war between them upon this subject, in which the more the defendant annoyed his enemy, the less power he had to 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 common slanderer and calumniator, by libelling the most virtuous and eminent characters of his country, from Washington and Adams, down through the whole list of American patriots; suppose such an one to have stood for twenty years in the kennel, and thrown mud at every well-dressed passenger; suppose him to have published libels, 'til his style of defamation has become as notorious as his face, 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 in his own defence, unless a felony were attempted 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 offender, 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 retreat, provided circumstances will permit. On this principle, all the books that have been read on this point, may easily be reconciled. But the position contended for by the opposing counsel, is in direct contradiction to one authority which they themselves have read. In the fourth volume of Blackstone's Commentaries, page 185, the law is laid down as follows: “The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit him: for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm; and then, in his defence, he may kill his assailant instantly. And this is the floctrine of universal justice, as well as of the municipal law.” Also in I Hawkin's Pleas of the Crown, chap. 29, sect. 13, the law on this point is stated thus: “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 person from one who attempts to beat him, (especially if 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, though 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 deceased 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 difference between this weapon and the pistol made use of by the defendant, 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 confusion and agitation, it is very uncertain whether it will take effect at all; and if it should, the chances are, perhaps, four to one, that the wound will not be mortal. Still further, when the pistol is once discharged, it is of little or no use; but with a cane, a man, within reach of his object, can hardly miss it; 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 country, a more effectual method could hardly be taken than to tell a man, who has a soul within him, that 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 same 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 damages. 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 proceeded 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 ear was by law no felony; and he had read in law books that courts of justice, were the only proper “vindices injuriarum,” and that he doubted not, that by means of a lawsuit, he should obtain a reasonable compensation for his ears. What are the emotions excited in your breasts, at this supposed indignity and exemplary patience of the representative of your country? Would you bow to him with profound respect on his return? or rather would not his dignity and usefulness, by universal consent, be lost for ever? We have now taken a view of the facts, and the positive rules of law, that apply to them; and it is submitted to you with great confidence, that the defendant has brought himself within
| the strictest rules, and completely substantiated
his defence, by showing that he was under a terrible necessity of doing the act; and that by law he is excused. It must have occurred to
you, however, in the course of this investigation, that our law has not been abundant in its provisions for protecting a man from gross insult and disgrace. Indeed it was hardly to be expected, that the sturdy hunters, who laid the foundations of the common law, would be very refined in their notions. There is in truth much intrinsic difficulty in legislating on this subject. Laws must be made to operate equally on all members of the community; and such is the difference in the situations and feelings of men, that no general rule, on this subject, can properly apply to all. *. which is an irreparable injury to one man, and which he would feel himself bound to repel even by the instantaneous death of the aggressor, or by his own, would be a very trivial misfortune to another. There are men, in every civilized community, whose happiness and usefulness would be for ever destroyed by a beating, which another member of the same community would voluntarily receive for a five-dollar bill. Were the laws to authorize a man of elevated mind, and refined feelings of honor, to defend himself from indignity by the death of the aggressor, they must at the same time furnish an excuse to the meanest chimney-sweeper in the country for punishing his sooty companion, who should fillip him on the cheek, by instantly thrusting his scraper into his belly. But it is too much to conclude, from this difficulty in stating exceptions to the general rule, that extreme cases do not furnish them. It is vain, and worse than vain, to prescribe laws to a community, which will require a dereliction of all dignity of character, and subject the most elevated to outrages from the most vile. If such laws did exist, the best that could be hoped, would be, that they would be broken. Extreme cases are in their nature exceptions to all rules; and when a good citizen says, that, the law not having specified them, he must have a right to use his own best discretion on the subject; he only treats the law of his country in the same manner in which every Christian necessarily treats the precepts of his religion. The law of his Master is, “resist not evil;” “if a man smite thee on one cheek, turn to him the other also.” No exceptions to these rules are stated; yet does not every rational Christian necessarily make them? I have been led to make these observations, not because I think them necessary in the defence of Mr. Selfridge; but because I will have no voluntary agency in degrading the spirit of my country. The greatest of all public calamities would be a pusillanimous 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 given by the law of civil society, and that that law cannot take it away. It is founded then on the law of nature, which is of higher authority than any human institution. This law enjoins us to be useful, in proportion to our capacities; to protect the powers of being useful, by all means that
nature has given us, and to secure our own happiness, as well as that of others. These sacred precepts cannot be obeyed without securing to ourselves the respect of others. Surely, I need not say to you, that the man, who is daily beaten on the public Exchange, cannot retain his standing in society, by recurring to the laws. Recovering 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 inevitable, he is bound to meet it like a man, to summon all the energies of the soul, rise above ordinary maxims, poise himself on his own magnanimity, and hold himself responsible only to his God. Whatever may be the consequences he is bound to bear them; to stand like mount Atlas,
“When storms and tempests thunder on its brow, And oceans break their billows at his feet.”
Do not believe that I am inculcating opinions, tending to disturb 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 miscreant, if they cannot defend themselves from personal insult and outrage. Men of this description must always feel, that to submit to degradation and dishonor, is impossible. Nor is this feeling 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. I respect the laws of my country, and revere the precepts of our holy religion; I should shudder at shedding human blood; I would practise moderation and forbearance, to avoid so terrible a calamity; yet should I ever be driven to that impassable point, where degradation and disgrace begin, may this arm shrink palsied from its socket, if I fail to defend my own honor.
It has been intimated, that the principles of Christianity condemn the defendant. If he is to be tried by this law, he certainly has a right to avail himself of one of its fundamental principles. I call on you then to do to 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