community; to-wit,-Is the life of Professor Webster, now the prisoner at the bar, forfeited to the laws of his country, upon the ground, and for the reason, that it has been proved here, beyond a most reasonable doubt, that he has been guilty of one of the most horrible offenses that can be found in the long, dark catalogue of crime? A grave and serious duty has devolved upon us has devolved upon you, the Judges, and upon us, who represent him in this more than mortal struggle. It devolves upon you to say, whether Professor Webster shall depart hence to his family, and there remain, what he ever has been to them, the very center of their affections, the very object of their idolatry; or whether he shall depart hence to the scaffold, leaving to that family a name which they would prefer to bury in the grave-which they would conceive to be their greatest curse, their only disgrace. Yes, it does devolve upon you to say, whether the fire upon his hearthstone shall burn brightly, or whether your breath, Mr. Foreman, when you pronounce the verdict, shall extinguish that fire, so as to cause all its ashes to be scattered to the winds-to be forgotten in kindness by his friends, and in mercy by his enemies.

This duty does devolve upon you, and, if you err, you see the victim. He it is, and his is the family, who must be offered up as an atoning sacrifice to that error, unless, indeed, you err on Mercy's side-upon the side of that quality in which it is permitted man to approach nearer than in any other to the nature of his God-on a side where no prisoner's groan, no widow's sob or orphan's tear, bears witness to it.

And here, and here only, is your lot happier than ours. If we err here, we can err in no safe place. We must answer it to the prisoner and his friends. We must answer it to an exacting and scrutinizing profession. We must answer it to our consciences. There is no place for us to err in. There is a place for you.

Standing, then, as we do, and as you do, engaged in one and the same duty, to-wit: In examining, discussing, and deciding this great question, it behooves us to stand in no

antagonistic position to each other; but, on the contrary, to aid and assist each other, so far as in "s lies, and as we can truly do it. Ill would it become us, by any management and chicane, to obtain a verdict in this case; and ill would it become you to permit this defendant to suffer by any error of

ours.

It is your duty, and your right and privilege, to constitute yourselves the counsel for this defendant; to see that he has the benefit of everything that could be urged in his defense; to see that he shall have the evidence presented in every possible view that can be taken of it, whether we assume those views or not. And it is your duty to remember, and never for a moment to forget, that, in the words of your oath, it is this defendant whom you have in charge. Yet, it is not this defendant only, but this defendant's family, whom you have in charge.

And here I pray that you will allow me to make a few remarks, upon a subject I would not address men like you upon, on any less important cause, or on any less momentous occasion. But, in the name of this defendant, and all that he has at stake, I must entreat you to commence the examination of this case, by examining your own minds; and that you do it with a strong, settled, stern determination to eradicate everything that partakes aught of prejudice, or savors of suspicion.

I remember well that, before you took your oaths of office, by virtue of which the law has permitted you to exercise this trust, you each said that you were not sensible of prejudice. But, can you say so now-now that we stand at the end of this week of testimony, which the government have been pouring in upon us? Are you sure that you ever could say so, without an accurate and scrutinizing examination? What safety is there in the fact that a man is not sensible of prejudice, when we all know that it is the very essence and the very quality of prejudice, to lurk unseen in the mind of man, blinding his perceptive faculties, weakening his reasoning powers, distorting his judgment, so that the very source to which we

look for safety and protection becomes a source of ruin. There is no safety in the fact that a man is not sensible of prejudice. And I ask you to commence the examination of this case, by discarding prejudice. No man can be safe, without seeking to remove it. Why, if prejudice exists in a single mind, it is contagious; it is communicated by the intonation of the voice; it flies from eye to eye, and is imparted, as by an electric shock, from hand to hand; and there is no safety. We ask you, then, to search for it, and to extirpate it.

As between the prisoner and his jury, as between man and man, speaking as between friends, I do not pretend to say that we have felt, or can feel, positive, that there is no man upon your panel untainted by prejudice. By no means are we to forget, gentlemen, or are we to suppose that you have forgotten, the great excitement which existed in this city when it was first bruited abroad that George Parkman was murdered. Do we now forget that men then quit their avocations, that they were clustered together in the corners, in the doors, in the stores, the houses, and the churches,-and that their conversation was upon this one point, and upon no other. Have we forgotten the great indignation that was excited in this community-so creditable to the community, but so dangerous to the defendant-when it was first announced that his body was found in the Medical College, in the laboratory? Have we forgotten the prejudice against Professor Webster? Have we forgotten these things? By no means! They are burned into our memories, and we shall not forget them.

Are we to say that it is a certain and fixed positive fact, that there can be no prejudice? By no means! And therefore it is, that after you have heard and listened to the government evidence, we ask you, in the name of the defendant, to examine your minds, and to examine his side of the case free from all taint of prejudice.

I have thought, gentlemen, that, in opening this case, I might perhaps the best diminish the labors of the closing counsel-instead of stating to you minutely, or in detail, the

circumstances which we intend to prove here, in defenseby calling your attention, first, to the rules of law which are descriptive of the offense charged; what it is, gentlemen; what the definition is of the offense, as the government have charged it against him.

Secondly, that I should call your attention to the rules of law, as applicable to the manner in which that offense is charged; that is, to the indictment. Thirdly, gentlemen, that I should call your attention to the nature of the government's evidence, and to the rules of law applicable to that kind of proof. Then, gentlemen, that I should state to you, with great brevity and merely by scheduling together in heads-what the facts are which we intend to give in evidence; which facts, when proved, taken in connection with such of the government's facts as you shall conceive to be entitled to crediton which you can rely with any confidence-will constitute the entire mass of evidence on which you will eventually have to pass.

First, then, with regard to the rules of law which describe the offense charged. The offense charged here, gentlemen, generally, is murder. That is the offense charged in the indictment, the murder of George Parkman. We then wish to inquire and ascertain what are the rules describing this offense, so that we may know when it has been proved, and when it is left in doubt.

Murder is a division of homicide; the word homicide extending to every possible killing of a human being. If a man is killed under any circumstances, anywhere, or by anybody, the word homicide covers that act. A homicide must, necessarily, at once be divided into two great divisions: first, that which is criminal, and, therefore, punishable; secondly, that which is not criminal, and, therefore, which is not punishable by the law.

Now, criminal homicide, which is the only species of homicide with which we now have anything to do, is divided into two parts-into two divisions: first, murder, which is punished capitally, by the death of the offender; secondly, man

slaughter, which is not punished capitally, but which is punished ignominiously, though not with death. These two divisions constitute homicide.

Now, inasmuch as this indictment charges Professor Webster with murder, and inasmuch as it is always competent for a jury to acquit of murder and convict of manslaughter, or acquit of both, every man who is indicted for murder is in the same position as if he were indicted twice; first for one offense, and then for the other.

The first question is, What is murder, taking it by itself? The second question, then, will be, What is manslaughter, taking that, too, by itself? Murder is defined to be "The killing of any person with malice prepense or forethought, either expressed or implied by law." Two things are necessary to constitute murder: first, the killing; secondly, malice. And this definition is precisely no definition, because it gives you no idea of what is intended by the word murder, unless you have an accurate and well-defined idea what the meaning of the word malice is, as used in this connection.

Malice is divided, by all criminal writers, into two counts: first, what is called expressed malice, and, secondly, malice which is implied. Those are the definitions of the word malice. Express malice! When we use that term, we mean what is always meant by malice in its common outdoor use. It means a wicked disposition and perverse mind, which does induce a man, or may induce him, to commit a certain act.

"Express malice," say the books, "is when one person kills another with a sedate, deliberate mind and well-formed design; such design being evidenced by the noticed actions, antecedent menaces, former grudges, and an attempt to do great bodily harm." This is easily understood, without being dwelt upon at the bar.

called implied Implied malNow, it is a

We come next to what is meant by what is malice. And here the definition is not so easy. ice is where the malice is implied by the law. theory of the law, that it punishes not so much the overt act, as it does the wicked and depraved mind which prompts to