state what the laws are; to regulate the course of proceeding in a particular case; to direct what shall or shall not be considered competent evidence, and, generally, to conduct the trial.

But it is for the jurors to take this mass of evidence into consideration, to apply their best judgment and their best efforts to ascertain the truth, and then to declare that truth, in what is called the verdict, that is, in the declaration of truth. This is the province of the jury. And while each continues and keeps within its own province, the law will be administered; all will be done which should be done, for the punishment of the guilty, and the relief of the innocent.

With these preliminary considerations, I will consider this

case.

This, gentlemen, is an indictment charging the defendant, the prisoner at the bar, with the crime of murder. Homicide, gentlemen, of which murder is one of the highest species, is of various degrees, according to the circumstances. There may be homicide that is the death of another in self-defense; it may be in the execution of criminals, and in other ways. Homicide is a generic term, embracing every species, by which the life of man is taken. It may be lawful or unlawful. It is lawful, when it is alone justifiable, in war, or by an officer, under a proper warrant. And it is also justifiable in self-defense.

It is not necessary for me to go into those distinctions. But I will state them briefly, from the books, and then submit to your consideration the crime with which the defendant is specially charged.

The indictment, in the present case, charges that the present defendant, "Professor John W. Webster, of the Medical College, and professor in the College at Cambridge, did, on the 23d day of November last, violently make an assault upon Dr. George Parkman, and then and there did deprive him of his life by violent means"; and so the Grand Jury declared, that in these forms, or one of them, this crime was committed.

The law provides what the punishment shall be but, in de

termining what murder is, we all resort to that great magazine, the common law. This provides what murder is; but the statute provides only that the person who shall be guilty of wilful murder shall be punished with death. But the common law of England and of Massachusetts is as much binding as that of our own Legislature. We adopted it when our ancestors settled here. It has been successively adopted since that time, and was introduced into the constitution of our own state; and it has the same force as if it had been specially enacted by the Legislature.

Referring, then, to this, I may as well state it now, from a former memorandum of my own. I ought to have said, that, in rising to address you, it would have been, certainly, more satisfactory to have taken more time. But this would have prevented you from entering on your duty immediately.

But, gentlemen, I will state, therefore, from a former memorandum, revised for this purpose, that an unlawful homicide is distinguished into murder and manslaughter.

Murder, in the sense now understood, is the violently killing of any person, under the peace of the commonwealth, with malice prepense or aforethought, either express or implied by law.

Malice is used in a technical sense, not only including hatred and revenge, but every other unjustifiable motive. If a man should kill another, with a motive of gain, it is unlawful. It is not confined to one or more individual persons; but it is a thing done, ❝malo animo," with a malicious mind, when the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty, and fatally bent upon mischief. And, therefore, malice is implied from any deliberate and cruel act against another, however sudden. Manslaughter is the unlawful killing of another, without malice; and may be either voluntary, as that done with a real design and purpose to kill, but through the violence of sudden passion, occasioned by some provocation, which, in tenderness to human nature, the law considers sufficient to palliate it and rebut the presumption of malice; or from acci

dent, when not accompanied with any intention to take life. Hence, it will be seen that the characteristic distinction between murder and manslaughter is malice express or implied. It therefore becomes necessary to ascertain, with some precision, what constitutes the legal nature of malice, and what evidence is requisite to establish the proof of it.

The authorities, therefore, proceed to state that the implication of malice arises in every instance of intentional homicide, the fact of killing being first proved. Therefore, all the circumstances of excuse or palliation are to be satisfactorily proved, unless they result from the evidence produced against him, showing that if any killing is proved, it must have been with provocation by blows or other justification. And if there is no justification or excuse in the attendant circumstances, the case will be such as to warrant the conviction of the party.

This rule is founded upon the plain and obvious principle, that a person must be presumed to intend to do that which he in fact does; and that he must intend the natural, probable, and usual consequences of his own acts. Therefore, where he assails another with a dangerous weapon, with a weapon likely to do bodily harm, the presumption is that he intended death, or great bodily harm; and as there can appear no proper motive for such a cruel act, in the absence of proof, the consequence is inevitable, that it was done unlawfully. On the contrary, if death is inflicted so suddenly after provocation, and if there be any such cause of provocation, as the law allows, as to make it manslaughter, the act is deemed to be without malice aforethought.

It is a settled rule, that no provocation with words only will justify a mortal blow. Then if, upon provoking language, the party intentionally revenges himself with a mortal blow, it is unquestionably murder. It is a settled rule, that no provocation by words only, however opprobrious, will justify a mortal blow, intended to inflict death. I shall have occasion to explain, that where a pistol is discharged at the body of another; where a heavy bludgeon, or an axe, is used upon the body of another; where a knife is used,-these are dangerous

weapons, and are indicative of an intention to kill. The law will reduce it to manslaughter, if there be provocation sufficient for this. But words are not sufficient for this. It must be at least an assault. The word aforethought is used not as simply implying deliberation or the lapse of time, but as rather intended to indicate purpose or design, and in contradistinction from accident or mischance.

I may verify these positions, perhaps, by being permitted to read one or two passages from a work of good authority— one from which passages have already been read to you, by opening counsel for the defense,-from the Pleas of the Crown, by East, a gentleman afterwards one of the Judges in India.

East's Crown Law, chapter 5. section 2: "Murder, in the sense now understood, is the voluntary killing a person under the King's peace," and, in my definition, I use, in place of that term, the words, under the peace of the commonwealth,— "of malice prepense or aforethought, either express or implied by law; the sense of which word malice is not confined to a particular ill-will to the deceased, but it is intended to denote, as Mr. Justice Foster expresses it, an action flowing from a wicked and corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty, and fatally bent upon mischief. And, therefore, malice is implied, from any deliberate, cruel act against another, however sudden." Sec. 12: "The implication of malice arises in every instance of homicide amounting 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 infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him. But it is intended here only to speak of the more deliberate and depraved species of that offense, where a mind has brooded upon its prey, and marked out the object of destruction in cool blood; and not where there is heat of blood arising from provocation, or from mutual combat." Where there is a use of a dangerous weapon, where it is intended to destroy life, or to

do some great bodily harm, and I use this qualification of some great bodily harm, because a person may use a dangerous weapon, and say that he did not intend to kill,-if he intended to do some great bodily harm, and death ensue, it is not enough for him to say, "I meant merely to wound him, but the blow unluckily killed him": it is no excuse: he intends to do great bodily harm.

Then, what is that will reduce murder to manslaughter? It is said, in the passage that has been read, that it is out of regard for the frailty of human passion. Every man, called upon suddenly to defend himself, is inspired with a principle which puts him upon resistance; and if, during that period, he attacks the party thus injuring him, by blows, and death ensues, it is regarded as done through heat of passion, and not through malice, or that cold-blooded feeling of revenge, which more properly constitutes the emotion, the feeling, the passion, of malice.

And so, again, in an instance which may be presented of heat of blood in mutual combat. Two persons come together, not intending to quarrel; because, if they do intend to fight a duel, then it is murder. But two persons come together. Angry words arise. Then they come to blows. It is immaterial who strikes first, supposing that there is nothing unfair on either side, but it is a fair combat. One seizes an instrument, and strikes a deadly blow. That is regarded as heat of blood; and, though not excusable, because a man is bound to control his passions, yet it is not that higher offense, which is called murder.

We have gone into these distinctions, though there is not much necessity for it, because, where death ensues, and there is no evidence of provocation, or of heat of blood, or mutual combat, the fact of killing implies murder, and the jury would be warranted in finding a verdict of murder. There seems to have been little evidence, in the present case, that the parties had a contest. There is some evidence of angry feelings. But angry words are not sufficient. And, unless these angry feelings resulted in angry words, and words were followed by