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blows, and a combat ensues, no undue advantage being taken or
sought, on .either side ; if death ensue, this amounts to manslaugh-
ter. And here it matters not what the cause be, whether, real or im-
agined, or who draws or strikes first, provided the occasion be sud-
den."
It is thus, Gentlemen, that if two persons get into what is called a
combat with each other-no matter which begins it-if they get
into the combat, and then, being heated by the combat, one kills the
other, then the law considers the frailty of human nature, and, under
such circumstances, the offence is reduced from murder to manslaughter.
An example is given. A uses provoking language towards B, who
thereupon strikes him, and a combat ensues, wherein A is killed.
Held manslaughter; for it was a sudden affray, and they fought upon
equal terms.
But this has nothing to do with it, except when they commence.
If they get excited, on equal terms, and they commence their quar-
rel with the fist, and afterwards have some other weapon, it is ex-
cused, as caused by heat of blood, excited by the quarrel.
This is stated, perhaps, a little stronger in Whiteley's case, which I
cite from Lewis' Reports, page 175, in which the Justice says,
"° When persons fight on fair terms, and merely with fists; where life
is not likely to be at hazard, and the blows passing between them are
not likely to occasion death ; if death ensues, it is manslaughter."
These authorities, which I have stated, show the real distinction
between murder from implied malice, and manslaughter, - the one
being, as I have said, the reverse of the other : one being voluntary,
deliberate, and without provocation; the other being hasty and on
provocation, or with a sudden affray. The provocation being in vio-
lent assault, when a deadly weapon is used; the provocation being
words, when a weapon not deadly is used, and when, they being excited
by the combat, one chances to destroy the other. These are the defi-
nitions which I bring to your mind.
Professor Webster stands charged with murder and manslaughter.
.If he committed the murder, it must have been either express or im-
plied malice, or that he killed him in a deliberate and cruel manner,
without reasonable provocation, malice being judged of by the man-
ner and the want of provocation, and the provocation being judged of
by the weapon. And hence follows the extreme and vital importance,
in a case of this kind, of the Government's alleging and proving the
manner, beyond all reasonable doubt ; for it is the manner, the manner
of death, the manner in which the homicide is committed, which
creates.this crime of murder, from which all the distinguishing marks
are to be drawn between murder and manslaughter. And therefore
it is that I have been over this -that we may bear it in mind, and
apply it, when we consider this part of the case.
When the Government say that Professor Webster killed Dr. Park-
man with implied malice, they say he killed him cruelly, deliberate-
ly, and without provocation. And this is to be judged of by the man-
ner. When the Government says that he committed the act of man-
slaughter, then it virtually alleges that he killed him not deliberately,
but in heat of blood, and with some provocation. And there, Gen-
tlemen, as we apprehend, is the definition; and this is a statement of
the rules of law defining the various offences which are embraced vir-
tually under this indictment.
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