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mind which prompts to that overt act. It punishes the mind, and
the wicked and perverted intention, as much as it does the overt act.
But you will ask, at once, how is the law to arrive at the mind of
man?-How shall it dive down into its hidden recesses, and bring
up the malice? It cannot do it, except by judging of the mind by
the acts, considering them to be the fruit of the mind. Then, Gentle-
men, by the fruit, the law undertakes to know the mind.
The law, then, Gentlemen, has adopted certain acts which it alleges
to be, and assumes to be, evidence of latent malice. The law says,
that when certain acts-and we now confine ourselves to homicide
-when a homicide is committed in a certain manner, under certain
circumstances, malice shall be implied from the act; and that is the
mode in which the law arrives at this matter of implied malice.
When we undertake to define it, all that we can say is, that when
certain acts are committed in a certain manner, and with certain
means, then malice is implied. If we would know what it is, we
must ascertain what are the acts and the circumstances. What are
the acts? We must arrive at what the malice is, by saying what the
acts are, from which it is to be inferred.
What, then, are the acts from which the law will imply malice, in
this matter of homicide ? For we are to consider only this one single
matter, malice in homicide.
Malice, Gentlemen, is implied by law from any deliberate and cruel
act,-I pray your attention to these words, front any deliberate cruel
act,-committed by one person to another, however sudden. There-
fore, where one person kills another suddenly, without any, or without
considerable, provocation, the law implies malice. Malice is inferred
from a deliberate and cruel act, as wLere one kills another without
any, or without considerable, provocation.
When, therefore, you ask when malice is implied by law, you must
look at the acts from which the law says malice is to be defined. And
that is the only way in which it is to be defined; a deliberate cruel
act, without any, or without considerable, provocation : and then the
law is, that it is implied malice. That is the definition which I shall
state to you, for the purposes of this trial.
Having stated this, you see shadowed out, at once, the real distinc-
tion between murder from implied malice and manslaughter. For one
is almost the reverse of the other. Murder from implied malice, is a
deliberate and cruel act, without any, or without considerable, provo-
cation. Now, manslaughter, as I have shown to you, is the reverse.
Manslaughter is not deliberate. It is a sudden act. It is not a
cruel act. But it is done in the heat of blood. Manslaughter is not
without provocation, but with it. And therefore, in terms, it is most
distinctly the reverse of murder from implied malice. Whenever
death ensues from sudden transport of passion or heat of blood, if
upon a reasonable provocation, and without malice, or if upon sudden
combat, it will be manslaughter. That, Gentlemen, is the definition
of manslaughter ; and here is shadowed out the line between the two.
One is considerate, deliberate, and cruel, without provocation. The
other is inconsiderate, sudden, in the heat of blood, and with provo-
cation, or sudden combat, one of the two.
Now this may be a very narrow line of distinction, but it is not to
be lost sight of by a Jury. For on one side is life, on the other,
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