Chapter III · DUELS IN VARIOUS COUNTRIES, FROM 1820 TO 1841. (continued 3)

The Lord High Steward.—“What is the name?”

The Attorney-General.—“The case is anonymous, the name of the prisoner not being given; but it is an authentic case, and the point in doubt is clearly set forth in the question submitted to the fifteen judges. I will read what is material to your lordships:—‘The opinion of the judges is requested by Mr. Baron Parke and Mr. Baron Bolland, upon two questions which arose in the Norfolk Spring circuit, 1838.’ The first question only is material. The case first recites the 9th George IV. sec. 11 and 12, and the preamble and enacting part of 1st Victoria; points out the circumstance that the latter act does not contain the same proviso as is found in those of Lords Ellenborough and Lansdowne; and then submits this question for the opinion of the judges:—‘Is it now a defence to an indictment for wounding with intent to maim, &c. that, if death had ensued, the offence would not have been murder, but manslaughter?’ Your lordships will observe, that shooting at, with intent to maim or disable, and stabbing with the same intent, are in the same category, and must be attended with all the same rules and incidents. This opinion will therefore have the same authority as if the question submitted by Barons Parke and Bolland had been whether, on an indictment for shooting at, with intent to disable, it would be a defence to 386show, that, if death had ensued, the offence would not have amounted to murder. The opinion of the judges was as follows:—‘At a meeting of the judges in Easter term, 1838, they all thought it to be now no defence to such an indictment, that, if death had ensued, the offence would not have been murder, but manslaughter; except the Lord Chief Justice, Lord Denman, and Mr. Justice Littledale.’ The Lord Chief Justice and Mr. Justice Littledale, it will be observed, did not dissent, they only doubted; but the other thirteen judges seem clearly to hold, that the plea set forth does not now amount to any defence; and I apprehend that the judges probably reasoned in this manner,—the intention of the legislature being to make offences which before were capital, punishable only with transportation or imprisonment, the quality of the offence is not precisely the same as before; and that if a person maims another or disables him, or does him some grievous bodily harm, even though it were an unpremeditated act, arising out of a sudden scuffle, it should nevertheless be an offence under this act, which gives a discretionary power to the court before whom the offence is tried, either to transport for fifteen years, or to imprison for a single hour. The judges, doubtless, considering this discretionary power, and the omission of the proviso which was in the preceding acts,—seeing that the capital punishment was abolished,—came 387to the conclusion that the offence was committed, though, if death had ensued, it would not under the circumstances have amounted to the crime of murder. Looking to the authority of this case, I know not what defence can possibly be urged with respect to the second and third counts. I rejoice, my Lords, to think the noble prisoner will have an advantage upon this occasion, which has never before been enjoyed by any peer who has been tried at your lordships’ bar; an advantage which neither Lord Lovat, Lord Byron, Lord Ferrers, nor the Duchess of Kingston could claim. He will have the advantage of the assistance of my most able, ingenious, zealous, and learned friend. Sir William Follett, who will address your lordships in his behalf upon the facts and merits of the case. This privilege is secured to the noble prisoner under that most admirable law which your lordships passed a few years ago, by which, in all cases of felony, the party accused has the advantage of addressing, through his counsel, the tribunal which is to determine on his guilt or innocence. Notwithstanding, however, all the learning, ability, and zeal of my honourable and learned friend, I know not how he will be able to persuade your lordships to acquit his noble client on any one count of this indictment. My learned friend will not ask your lordships—and if he did, he would ask you in vain—to forget the law by which you are bound. My Lord, Captain Douglas 388stands on his trial before another tribunal, and his trial has been postponed by the judges, on the express ground that the same case is first to be tried by the highest criminal court known in the empire. Your lordships are to lay down the law by which all inferior courts are to be bound. I beg leave, on this subject, to read the words made use of at this bar by one of the most distinguished of my predecessors, who afterwards, for many years, presided with great dignity on the woolsack—I mean Lord Thurlow. When Lord Thurlow was Attorney-General, in addressing this House, in the case of the Duchess of Kingston, he made use of this language:—‘I do desire to press this upon your lordships as a universal maxim; no more dangerous idea can creep into the mind of a judge, than the imagination that he is wiser than the law. I confine this to no judge, whatever may be his denomination, but extend it to all; and, speaking at the bar of an English court of justice, I make sure of your lordships’ approbation when I comprise even your lordships, sitting in Westminster Hall. It is a grievous example to other judges. If your lordships assume this, sitting in judgment, why not the King’s Bench? Why not commissioners of oyer and terminer? If they do so, why not the quarter-sessions? Ingenious men may strain the law very far; but to pervert it, was to new-model it. The genius of our constitution says, judges have 389no such authority, nor shall presume to exercise it.’ I conclude, my Lords, with the respectful expression of my conviction, that your lordships’ judgment in this case, whatever it may be, will be according to the law and justice of the case; and that you will preserve the high reputation, in the exercise of your judicial functions, which has so long been enjoyed by your lordships and your ancestors.”—The honourable and learned gentleman then bowed to their lordships, and was about to withdraw, when he again turned to the House and said: “Will your lordships allow me to mention, that, on account of the sudden illness of my learned friend, the Solicitor-General, he is deprived of the honour of attending to-day before your lordships, as he had intended.”

Thomas Hunt Dann, the miller at Wimbledon, was then examined by Mr. Waddington, and deposed to the facts, as described by the Attorney-General. He said, he consented to allow the wounded gentleman to go home, on his giving him a card, with the address of the party upon it.—After which, the Attorney-General offered to give in as evidence the card which the witness received.—Sir William Follett objected to the reading of it as evidence; and, after considerable discussion, the Lord High Steward proposed to postpone the consideration of the objection.—The son and wife of the miller were then examined; after which, Sir James Anderson being sworn, 390the Lord High Steward said:—“With the permission of the House, I think it my duty to inform you, that, after the opening we have heard from the Attorney-General, you are not bound to answer any question which may tend to criminate yourself.” Sir James was then thus examined by the Attorney-General:—“Of what profession are you?”—“I am a physician.”—“Where do you live?”—“In New Burlington Street.”—“Are you acquainted with Captain Tuckett?”—“I must decline answering that question.”—“Were you on Wimbledon Common on the 12th of September?”—“I must decline answering that also.” (Laughter.)—“Were you on that day called on to attend any gentleman that was wounded?”—“I must decline that again.” (Laughter.)—“Can you tell where Captain Tuckett lives?”—“I must decline the question.”—“Has he a house in London?”—“I decline answering that question.” (Laughter.)—“Do you decline answering any question whatever respecting Captain Tuckett?”—“Any question that may criminate myself.”—“And you consider answering any question respecting Captain Tuckett may tend to criminate you?”—“Possibly it would.”—“And on that ground you decline?”—“I do.”

John Busain, an inspector of the metropolitan police, was examined by the Attorney-General. He deposed, that he was on duty when Lord 391Cardigan and Captain Douglas came to the station-house at Wandsworth, on the evening of the 12th of September.—“I bowed, and asked his business. He said he was a prisoner, he believed. ‘Indeed, sir,’ said I; ‘on what account?’ His lordship said, ‘I have been fighting a duel, and I have hit my man; but not seriously, I believe; slightly, merely a graze across the back.’ He then pointed over his shoulder and looked over, and said, ‘This gentleman also is a prisoner; my second. Captain Douglas.’ He presented me with his card, and I saw ‘The Earl of Cardigan, of the 11th Dragoons.’ I then alluded to the duel, and said, ‘Not with Captain Reynolds, I hope?’ and his lordship spurned the idea of fighting a duel with one of his own officers.” On being desired to repeat the words of the Earl of Cardigan, the witness said, “To the best of my recollection his lordship’s reply was—when I said I hoped it was not with Captain Reynolds, he stood up erect, and seemed to reject it, by his action, with the utmost disdain, and said, ‘Oh, no; do you suppose I would fight with one of my own officers?’ These were the words, to the best of my recollection.”

Charles William Walthew, chemist, residing at No. 29, in the Poultry, deposed, that Captain Tuckett occupied rooms in his house, and had carried on business there for fifteen months. His residence was at No. 13, Hamilton Place, 392New Road. On being asked to tell what the Captain’s Christian names were, if he knew them, Sir William Follett objected to this course of examination. Their lordships, he said, observed the question put: his learned friend had asked where Captain Tuckett lived, and the answer was, No. 13, Hamilton Place, New Road, for the purpose of identifying this Captain Tuckett, who carried on business in the Poultry, with a Captain Tuckett who lived in that place. The Lord High Steward agreed that there was no proof at present that that person lived at No. 13, Hamilton Place, New Road. The examination was not proceeded with. The last witness called was Edward Septimus Codd. He said he knew Captain Tuckett, of the 11th Light Dragoons. His Christian name was Harvey Garnett Phipps Tuckett.

The Attorney-General said, he would now, with their lordships’ permission, propose to read the card, upon which their lordships had been pleased to say that they would consider whether it was admissible or not. On being asked by Lord Brougham whether that was his case, he replied, that he should first wish to know whether the card was to be received or rejected. Sir William Follett requested to see the card; and, having examined it, he said he did not think it necessary to object to its being read. It was accordingly delivered in and read. Upon one 393side was engraved “Captain Harvey Tuckett, 13, Hamilton Place, New Road;” and on the other was written “Captain H. Wainwright.” The Attorney-General said that that was the case on the part of the prosecution.

Sir William Follett.—“This being the case on the part of the prosecution, I venture to submit to your lordships, that there is no case which calls on the prisoner for an answer; and I think your lordships will see at once, that the counsel for the prosecution have failed in proving an essential part of their case. My Lords, I apprehend it is not necessary to cite any authority to show that the prosecutor is bound to prove the Christian and surname of the person against whom the alleged offence is committed; and that if he fails to prove either the Christian or the surname, he fails in his case. Now, there is no evidence whatever to show that the person against whom the shot was discharged was Harvey Garnett Phipps Tuckett. The evidence before your lordships would rather lead to a contrary presumption, if presumption could be acted upon in a case like this. I apprehend that positive evidence must be given to prove the identity of the party. The evidence is this,—the counsel for the prosecution have called a person named Codd, who is an army-agent, and who receives the half-pay of a Captain Tuckett, who was formerly in the 11th Dragoons, and is named 394Harvey Garnett Phipps Tuckett. Is there anything in this evidence to identify that Captain Tuckett with the person alleged to have been on Wimbledon Common on the 12th of September? Mr. Codd does not know where that Captain Tuckett lives; he never saw him except at his office in Fludyer Street, and at an insurance office. What is the rest of the evidence on this point? A person who lives in the Poultry says that a Captain Harvey Tuckett rents offices of him, but that he does not know where he lives. There is, therefore, not an iota, not a scintilla of evidence, to connect that Captain Tuckett with the gentleman supposed to be engaged in this transaction. I therefore submit that my learned friends have entirely failed in an essential part of the case for the prosecution. I would beg leave to refer your lordships to the case of the King v. Robinson, in Holt’s Reports, p. 595, in which it is laid down that it is essentially necessary to prove the Christian and surname of the party against whom the offence is alleged to have been committed, and there is no proof of his Christian name in this case.”

The Attorney-General.—“My Lords, the question is, whether there is any evidence whatever to prove the fact of the Christian name of Captain Tuckett, the gentleman wounded. If there is the smallest scintilla of evidence on this point, the prosecution cannot be stopped on the ground 395taken up by my learned friend. We are now as if we were before a jury, and the learned judge who presided were called upon to direct an acquittal, upon the ground that there was no evidence for their consideration. I submit to your lordships, that there is abundant evidence to show that the name of the party wounded is Harvey Garnett Phipps Tuckett. How does the case stand? My learned friend withdrew all objection to the reading of the card. Well, then, the gentleman who was wounded by Lord Cardigan on the 12th of September, was Captain Harvey Tuckett. We have got, therefore, one of his names; and how does the case stand with regard to the rest? Am I obliged to call the clerk of the parish where he was baptised, in order to prove his baptismal register? Am I to call his father or his mother, or his godfathers or godmothers, to prove the name that was given to him at the baptismal font? I apprehend that such evidence is wholly unnecessary. I contend that, from the facts proved, there is abundant evidence to show the identity of the party wounded was Captain Harvey Tuckett. I suppose my learned friend will not deny that there is abundant evidence to show that the Captain Tuckett who was wounded lived at No. 13, Hamilton Place, New Road. One of the witnesses called there three times; he asks each time for Captain Tuckett, and each time he is introduced to a gentleman bearing that name. Your lordships, therefore, will have no doubt that 396the Captain Tuckett who lives at No. 13, Hamilton Place, New Road, is the one who fought the duel with Lord Cardigan on the 12th of September, on Wimbledon Common. Now, my Lords, we go by steps. Is there any doubt that this Captain Tuckett is the Captain Tuckett who took the offices in the Poultry? At the time he did so, he gave a reference to No. 13, Hamilton Place, New Road; and your lordships will therefore feel, no doubt, that there is evidence to show that the Captain Tuckett who took the place of business in the Poultry, was the same who lived in Hamilton Place. Then we have only one other stage, and that is to see whether the Captain Tuckett is the Captain Tuckett of whom Mr. Codd spoke, whose name he proved to be Harvey Garnett Phipps Tuckett, and who had been an officer of the 11th Dragoons, of which regiment the Earl of Cardigan was, and still is, the colonel.”

Sir W. Follett.—“There is no proof of that whatever.”

The Attorney-General.—“It was so stated, and the witness was not cross-examined. Well, then, my Lords, a Captain Tuckett, whose name is Harvey Garnett Phipps Tuckett, was proved by Mr. Codd to have been an officer of the 11th Hussars, Lord Cardigan’s regiment. He gave his card, with the 11th Hussars upon it.”

Sir W. Follett.—“No, no; you are quite mistaken.”

The Attorney-General.—“Well, he has one name 397at least corresponding with that of the Captain Tuckett who fought the duel on Wimbledon Common. Will your lordships require strict evidence of this gentleman’s Christian name—evidence that will amount to a demonstration? If there is evidence from which the inference may be fairly drawn, is not that sufficient? Well, then, here is a Captain Tuckett, whose name is proved to be Harvey Garnett Phipps Tuckett, who has been in the 11th Hussars, from which he retired three or four years ago, and who receives his half-pay quarterly from Mr. Codd, his agent. May it not be fairly inferred from these circumstances, that this was the same Captain Tuckett who had offices in the Poultry, and who had fought a duel? Is there not evidence from which that identity may be fairly inferred? Is the prosecution to be stopped on the ground that there is no evidence whatever to go to a jury, or to your lordships, that this Captain Tuckett, whose name is proved to be Harvey Garnett Phipps Tuckett, is the same who was the antagonist of the Earl of Cardigan on the 12th September? I believe there is no reasonable being, who, having heard this evidence out of a court of justice, would hesitate in drawing the inference. I apprehend, that what is sufficient to convince a reasonable man out of a court of justice ought to be sufficient to convince a judge or judges sitting in a court of justice, if the inference which is to be drawn can be drawn according to the rules of evidence. Now, according 398to the rules of evidence, would any person out of a court of justice doubt for a moment that this is the same individual who fought on the 12th of September? Well, then, if that inference would be drawn out of a court of justice, can it be said that in a court of justice there is not a scintilla of evidence from which such an inference can be drawn? This would be a most unsatisfactory conclusion of such a trial. Your lordships will weigh the evidence maturely and deliberately, and if you think that it is not sufficient to convict the noble Lord at the bar, of course you will acquit him, and will say, ‘Not guilty, upon my honour,’ but you will not stop the prosecution upon an objection like this.”

Sir W. Follett.—“My Lords, I will trouble your lordships with a very few words in reply to the observations of the Attorney-General. It may be a very unsatisfactory termination of this case after all the care and trouble which has been bestowed upon the prosecution, but I apprehend that this is not a case in which the noble lord at the bar will have to appeal to the honour or the conscience of his peers. The question is, whether sufficient evidence of identity has been given. My learned friend asks whether he is to call the clerk of the parish, or the father or mother of Captain Tuckett, to prove his Christian name. Now, that is not the objection, and the Attorney-General knows it perfectly well. What we object to is, that the counsel for the prosecution have called a person 399of the name of Codd, who has proved that he was acquainted with a Captain Harvey Garnett Phipps Tuckett, but there is not a scintilla of evidence to connect that Captain Tuckett with the gentleman who fought the duel on Wimbledon Common. What is the proof? Does any judge who hears me feel himself prepared to say that the fact of a Captain Tuckett having been in a particular regiment is evidence of identity in this case? My learned friend says, that if a person out of the House may fairly draw such an inference, such an inference may properly be drawn within its walls. May I ask your lordships if that is the way in which trials of this nature are to be conducted? It is possible that your lordships sitting out of the House, after all that has been said and written, might draw such an inference as that which my learned friend wishes you to make; but you are now sitting here, as if you had never heard one word of the case before. You are now sitting as judges on the evidence adduced, and you are to say whether, because a Captain Tuckett who was formerly in the 11th Dragoons has the same Christian name, he is to be identified with the Captain Tuckett who fought on Wimbledon Common. There is no evidence to show that the Harvey Tuckett mentioned in the evidence of Codd, is the same Harvey Garnett Phipps Tuckett mentioned in this indictment. Mr. Codd does not know him to be the same; he never saw him either in the Poultry or at Hamilton Place. The 400whole of his evidence is this,—that he knows a Captain Harvey Garnett Phipps Tuckett, that he was in the 11th Dragoons; and that he receives for him his half-pay. There may be two Harvey Tucketts; and since my learned friend, the Attorney-General, has referred to your lordships’ knowledge of what may have occurred out of doors, I would remind your lordships that in the very regiment commanded by the noble Lord at the bar there were two officers bearing the same surnames certainly, and I think the same Christian names. I submit to your lordships, that there is no evidence whatever to prove that Captain Harvey Tuckett mentioned in the evidence of Mr. Codd, is the same person as the Harvey Garnett Phipps Tuckett mentioned in this indictment; and, however unsatisfactory a termination it may be to the persons conducting the prosecution, I submit to your lordships that they have entirely failed in the proof of their identity.”

The Lord High Steward.—“I stated, when this objection was first taken, that I thought strangers ought to withdraw, and I am still of that opinion. The learned counsel, however, did not object to the argument of the Attorney-General, and therefore I did not think it right to interrupt him; but I wish to say, with a view to the general administration of criminal justice, that, when similar objections are taken in a criminal court, the counsel for the prosecution is at the utmost called 401upon to state what portion of evidence he believes to be sufficient to make out his case. I do not recollect any case in which an argument has been heard on the subject. I mention this as a point which may be of consequence in the practice of the courts of criminal law hereafter; and I now move your lordships that strangers be ordered to withdraw.”

The counsel and strangers were then ordered to withdraw, and the Earl of Cardigan retired in the custody of the Yeoman Usher. A protestation of the Archbishop of Canterbury, for himself and the rest of the Bishops, was delivered, desiring leave to be absent when judgment was given; leave was accordingly given. After which, the objection taken by Sir William Follett was taken into consideration. After the Lord High Steward had delivered his opinion thereupon, as an individual member of the court, and declared it to be his judgment that the Earl of Cardigan was entitled to be declared Not guilty, it was moved, that the House do now proceed to give their opinion whether the said Earl is guilty or not guilty of the charge in the indictment; which, being put, passed in the affirmative. Strangers being again admitted, after proclamation made for silence, the Lord High Steward, standing up, by a list called every peer by his name, beginning with the junior Baron, and asked him, “John Lord Keane, how says your lordship; is James 402Thomas Earl of Cardigan guilty of the felony whereof he stands indicted, or not guilty.” Whereupon each peer, upon his name being called, standing up in his place uncovered, and laying his right hand upon his breast, answered, “Not guilty, upon my honour:” the only exception being the Duke of Cleveland, who said, “Not guilty legally, upon my honour.” After all the peers had given their verdict, the Lord High Steward, standing up uncovered, declared his opinion to the same effect. The Earl of Cardigan being then brought to the bar, the Lord High Steward said, “James Thomas Earl of Cardigan, you have been indicted for a felony, for which you have been tried by your peers, and I have the satisfaction of informing you that their lordships have pronounced you not guilty, by an unanimous sentence. The number of their lordships who gave this verdict I have not precisely at this moment before me, or I should have been glad to have stated it to your lordship; but their lordships have unanimously said ‘Not guilty.’” The Earl of Cardigan having retired, proclamation was made for dissolving the commission; and the white staff being delivered to the Lord High Steward by the Gentleman Usher of the Black Rod, his Grace stood up uncovered, and, holding the staff in both hands, broke it in two, and declared the commission to be dissolved.

403HOUSE OF LORDS,

February 19, 1841.

In the House of Lords, on the motion that the trial of the Earl of Cardigan be printed,

The Earl of Eldon said, there were some matters connected with the subject, that ought not to pass without notice. It would be recollected that the right reverend prelates, towards the latter part of the trial, requested permission to withdraw, and did so. In a portion of the address of the Attorney-General to their Lordships, the learned gentleman made use of a certain expression,—no doubt out of his kind regard towards the noble Earl at the bar,—in which his feelings seemed to have carried him a little beyond what he originally intended. The expression to which he alluded was this:—“That he was glad that nothing of moral turpitude had occurred in this case.” Now, he was perfectly prepared to say, that, in the present state of society in this country, it was difficult to suppose that it could go on as it now did, unless certain allowances were made for the feelings of respectable individuals placed in situations of great difficulty, where, perhaps, their sentiments differed materially from the line of conduct they were pursuing. No man was more ready to make that allowance than he himself was; but, even admitting that, it appeared to him that the Attorney-General, in making the observation to which he had alluded, had gone a little beyond what he ought to have done. Now, as the trial had gone off on matter totally irrelevant to that point,—as no opinion had been given by their Lordships on the 404subject,—he thought it right to notice it, lest it might be supposed that their Lordships concurred in the sentiment to which he had referred. He believed their Lordships would agree with him in saying, that, in whatever situation a gentleman might be placed when driven to have recourse to duelling, it was not a custom that was sanctioned either by the law or by the moral principle of the country. Each specific case must stand between the individual, his conscience, and his God; but he could not conceive it possible how any man could pursue such a course without some delinquency being attached to the act, however the circumstances, in each particular case, might diminish the amount of it.

The Bishop of London said, he hoped it would not go forth to the public, that, if the right reverend prelates had been present at the conclusion of the trial, they would have considered themselves more than any other member of their Lordships’ House implicated in any expression of sentiment made use of by the Attorney-General. If he had been present on the occasion, he would have listened to the expression of those sentiments to which reference had been made with deep regret; and he felt it his duty to state, that there was not, in the matter before their Lordships, anything, in his opinion, that called for the expression of any such sentiments on the part of the legal officer of the Crown, who filled the situation of public prosecutor on that occasion, and who, it appeared to him, had gone beyond the limits of his province in making them. He felt himself bound to say, that he entirely concurred in the sentiments which the noble Earl had thrown out; and he now expressed a strong hope, that the recent unfortunate occurrence, together with other cases which had taken place during the last few years, would induce their 405Lordships, as the chief component part of the legislature, to take the question into their deep and serious consideration, and to see whether something could not be done to put an end to that which was a shame and a scandal. It was a custom derived from the barbarous ages: it was the remains of that system of chivalry, which, though perhaps it might have been of great use at the time when it prevailed, was utterly inconsistent with the manners and customs of the present day. The system in which it originated had long passed by; but it had unhappily left behind it one of its worst features in the barbarous, wicked, and unchristian practice of duelling.

The Earl of Mountcashell was of opinion, that something ought to be done on the subject of duelling; otherwise their Lordships would expose themselves, after the result of the recent trial, to the malignant aspersion, that they identified themselves with the system. He wished to know from her Majesty’s government, whether the act of the 1st of Victoria was framed with intent to put an end to duelling? If so, the trial which had occurred could only be considered as a mockery of justice. If their Lordships were really of opinion that duelling ought to be put an end to, then another measure, stronger than that now in existence, ought to be adopted. No later than yesterday morning, he found by the public prints, a duel had been fought by a Mr. Marsden and a Colonel Paterson, in which one of the parties was severely wounded. He therefore thought that this was a proper occasion for noticing the subject. He was one of those who held the opinion, that by proper means duelling might be put a stop to; the more especially if measures were taken to afford just redress for the different offences out of which duels frequently arose. Some mode, he conceived, ought to be 406adopted, to give due satisfaction in cases of minor offence, as well as those of a more grave and serious nature. For instance, a man received some degree of insult, and immediately called the aggressor out. Why did he thus call him out?—because the law afforded him no proper satisfaction. There was no law to prevent or punish the offence under which the challenger felt himself aggrieved. In this respect the law was extremely defective. Again, if a man’s daughter was seduced, he could only sue the seducer for the worth of her services; and who would be satisfied with such a mockery of justice as that? So long, therefore, as this defective state of the law remained, so long would the system of duelling prevail. Under the circumstances which he had stated, men really did not know how to act. For instance, an officer in the army received an affront: his brother officers expected that he should go out. What was he to do? On the one side, if he went out, he was threatened with the 1st of Victoria; on the other, if he refused, he was obnoxious to the contempt of his brother officers. The unfortunate man had to choose between these two evils. He hoped and trusted that her Majesty’s government would take this matter up, and that he should not be told by the noble Viscount, that he ought to introduce some measure himself. Ministers owed it to the nation itself, which called for some measure on the subject. The responsibility, in his opinion, lay entirely with them; and therefore he called on them to produce a measure that would meet the evil. If they were not prepared, let them appoint a committee to inquire into the subject. Let that committee investigate the matter as closely as possible, and report on it to the House; but let not the question be left in the state in which it was at present; for, while it thus remained, no 407man in the country was safe,—no man was exempt from being placed in fearful jeopardy. He should conclude by asking whether it was the intention of her Majesty’s government to propose any measure to parliament for the more effectual prevention of duelling?

Lord Melbourne said, he was fully sensible of the great importance of the subject; but, in answer to the noble Lord’s question, he had only to state, that her Majesty’s government did not mean to bring forward any measure of such a nature as the noble Earl had referred to. He apprehended that the noble Earl, on a more mature consideration of the subject, would find that the actual state of the law was not deficient in force, and that it was hardly capable of being made more stringent that it was at present.

The following is the paragraph in the morning paper, referred to by the Earl of Mountcashell:—

“Yesterday a hostile meeting took place between Colonel Paterson, of the East India service, and Robert Mark Marsden, Esq. of Park Lodge, Regent’s Park. The parties met in a field at the back of the Eyre Arms tavern, at daybreak, and exchanged shots without effect. The seconds then interfered, and endeavoured to reconcile the gentlemen; but, not succeeding, the parties were again placed on the ground. At the second fire the ball from Mr. Marsden’s pistol took effect on the right side of the gallant Colonel, which was severely shattered. The affair then terminated.”

This fresh violation of the act of the 1st of Victoria, and the notice taken of it in the House of Lords, drew, 408from the Editor of the Times journal, the following powerful remarks:—

“The ‘practical establishment’ of the doctrine, that to fight a duel is not to commit a felony, which certain of our contemporaries have discovered in the acquittal of the Earl of Cardigan, upon a point of form, by the House of Lords, seems to be bearing early fruits. It is in vain to expect that magistrates will do their duty in these cases, if they get nothing but ridicule for their pains, and meet with no co-operation from the law-officers of the Crown. We call upon the noble Secretary of State for the Home Department, therefore, as the chief of the police magistracy, to take care that an inquiry be instituted without delay into the truth or falsehood of this shameless advertisement of felony; and if these persons, named Paterson and Marsden, really have committed the crime imputed to them, to put the machinery of justice in motion for their conviction and punishment.

“No more disgraceful or demoralising spectacle can possibly be exhibited before the eyes of a people than the accommodation of the laws, or the submission of their administrators, to the popular crimes of the higher classes. Let the Attorney-General say what he will, a crime is not divested of its inherent moral turpitude by the frequency or the impunity with which it is committed; nor does felony cease to be a crime when the felon is countenanced, or even stimulated to the act, by the class-opinion of the circle which forms ‘his world.’ Every class has in it an aggressive self-centring principle, which aspires to ride rough-shod over society, and chafes under the restraint of law. It is the very object of law to bind together all these discordant interests, by restraining the eccentricities 409of each, and compelling each to submit its own opinion to the central intelligence, which consults for the common good.

“What the effect upon society in general must be, of letting it be understood, that there is a crime which must not, or cannot, be restrained or punished, because peers and ‘gentlemen’ think proper to commit it, while the law declares it to be felony, we leave those to judge who know the power of example, and the aptness of the lower orders to learn evil from their betters. We are firmly convinced, that no more pernicious or anarchical principle than that of the defenders of duelling was ever broached by Chartism or even Socialism itself. ‘Strict legal formality,’ says a contemporary, ‘brought Lord Cardigan to the bar of the House of Peers under an accusation of felony; and strict legal formality has given him an unanimous, and, in our opinion, honourable acquittal.’ All felons, we have no doubt, think the laws under which they are brought to justice are ‘strict legal formalities;’ and we doubt not that they will cheerfully accept the doctrine, which renders the law ‘Thou shalt do no murder,’ to be as mere a ‘formality,’ as that which requires every one of three Christian names to be proved, in order to sustain an indictment. Lord Cardigan’s acquittal is ‘honourable,’ no doubt, in the eyes of those who would have thought it equally honourable to be convicted, and of those alone.

“We beg to direct the attention of our readers to the important conversation which took place upon this subject yesterday evening in the House of Lords. Something, we trust, will be done to remedy the evil consequences of the late trial, ere it be yet too late.”

410February 23.

Lord Wharncliffe stated, in the House of Lords, that it was his intention, if no Law-Lord took up the subject, to bring in a bill to settle the point with reference to the right of a peer to plead privilege in case of a felony; as he happened to know that, in the case of the recent trial, if a conviction had taken place, that point would have been raised.

March 3.

TRIAL OF CAPTAIN DOUGLAS.

This day, the trial of Captain Douglas, second to the Earl of Cardigan in the recent duel, took place in the New Court, before Mr. Justice Williams and the Common sergeant. Mr. Thesiger informed the Court that the Captain now desired to surrender to take his trial. He then entered the dock, accompanied by three friends; and, the clerk of the Court having read the indictment, he pleaded “Not guilty.” On Mr. Justice Williams inquiring whether any one appeared for the prosecution, the clerk answered in the negative. Mr. Hobler, who originally had the case in hand, was in court, but had not been empowered to instruct counsel. He said he had taken measures to secure the attendance of the witnesses, when he received an intimation from the police commissioners to stay all proceedings. Mr. Justice Williams directed the trial to proceed; and the witness Dann, the miller, his wife and son, and also Busain the inspector of police, were examined, and repeated the statements made by them in the House of Lords on the trial of the Earl of Cardigan. Sir James Anderson, who attended the duellists professionally, declined, as before, to answer any questions, lest 411he should implicate himself. None of the Dann family could identify Captain Douglas, and Mrs. Dann pointed him out as the wounded man. After which,

Mr. Justice Williams, addressing the Jury, said he was totally ignorant of the circumstances or causes by which it had happened that nobody appeared in behalf of this prosecution. He ought to regret it, for it had imposed upon him the somewhat arduous task of examining the witnesses, and also a certain degree of anxiety, to take care, whatever might be the cause of no person appearing to conduct the prosecution, that it should not fail for want of every witness being called, who knew anything of the transaction. It now, therefore, only remained for him to communicate his judgment as to whether any case should be submitted to their consideration. They could not close their eyes to the fact, that a duel had been fought on Wimbledon Common, on the day mentioned. The prisoner was indicted for shooting at Harvey Garnett Phipps Tuckett, and it was asserted that it should be proved that a man bearing that name was so shot at by the prisoner at the bar; but of this there was not one tittle of evidence. Moreover, none of the witnesses who saw the duel had spoken to the person of Captain Douglas. The indictment, therefore, must fall to the ground, and the prisoner was entitled to an acquittal.

The Jury immediately returned a verdict of “Not guilty.”

March 12.

The Earl of Mountcashell gave notice, in the House of Lords, that he intended, shortly after the Easter recess, to call the attention of their Lordships to the subject of duelling. It was his intention to move for a committee to inquire into the causes of duelling, and to see whether 412some measure could not be adopted to put an end to so censurable a practice. It was necessary, in the present state of things, that some such course should be adopted; and, if their Lordships should refuse to take any steps in the matter, he would move for the repeal of the act of the 1st of Victoria; for it was quite ridiculous to allow the law to remain as it now stood. Individuals did not know whether they might fight a duel or not; although the act of Victoria seemed to declare that any one who did fight a duel was liable to be tried as a felon. His Lordship said, he knew the difficulties that attended the subject; but that was no reason why they should not be encountered.

In the progress of the proceedings against the Earl of Cardigan, many able articles, bearing immediately upon the subject of this Work, appeared in the public journals. From the “Times” of the 11th of February, a few days previous to the trial, I copy the following address:

TO THE HOUSE OF LORDS AND THEIR COMMITTEE.

My Lords,

One among the thousands in this country who look with reverence and love to the august assembly of the Peers of Great Britain, takes the liberty of addressing you on the important subject which is appointed to come under your judicial consideration on the 16th instant.

In regard to the immediate object of that inquiry I shall not trouble your Lordships. Every principle of fair play dear to an English heart, revolts at the idea of a man being taken off his guard. If it was intended to enforce an existing law in its rigour, or rather to put a construction upon it which was never contemplated, public notice ought previously to have been given of that intention. But this was not done in the case before your Lordships. 413Equity, therefore, and mercy, will sit assessors with justice on the trial of Lord Cardigan.

But the sentiments and principles on the subject of duelling, avowed and acted upon in the progress of this trial, will be of far more importance in their consequences than the issue of the trial itself. An opportunity, in fact, is about to be afforded your Lordships of adding yet another benefit to the many which England has already experienced at your hands—an opportunity of stamping your past exertions in the cause of truth, religion, and civilisation, with the seals of sincerity and consistency: nay, words still stronger befit the occasion; and I fear not to say, that your Lordships stand at this moment in a situation of great responsibility, in which the eyes of the nation are fixed upon you, anxiously expecting that you will embrace this favourable occasion to interpose the shield of your influence between society and that systematic violation of its laws which has so long and so unhappily prevailed amongst us. It is on the question, therefore, of duelling, that I would now respectfully engage your Lordships’ attention.

Every one will admit the absurdity of the bathos from the lance to the pistol,—from the grave and noble auto da fe which the combat of the chivalrous ages exhibited in its solemn appeal to God, as the witness and the judge of right and wrong, to the modern system, resorted to on the most trivial as well as the most important occasions, and as striking a proof of the degenerate faithlessness of the present, as the ancient custom, of which it is the distorted image, is of the simple faith and piety of the olden time.

The argument for the defence of duelling, as at present constituted, is short, simple, and intelligible. The ‘vantage-ground 414of principle is conceded at once; but the world, it is contended, could not go on without it. There are points where human legislation must stop, where unwritten must take the place of written laws; society cannot be kept in check except by fear of personal consequences attendant on the violation of those unwritten laws: the system of duelling affords that check; expediency, therefore, requires the toleration of duelling.

Now, were the edifice of society founded on the shifting and variable sands of human folly and weakness, such reasoning might pass current: but if, as we believe and know, its foundations are laid deep below the waves of time and change, on the eternal and immutable rock of divine strength and wisdom, it becomes our duty to test that reasoning by the revealed will of God; and if we find it ring false (as even its advocates confess it does), then, in the confidence that the expediency consists in the resolution of human wisdom and will into the wisdom and will of God, boldly to repudiate the perversion of the doctrine usually promulgated under its name, in this as well as in every other instance, as alike sinful and cowardly in its principle, short-sighted in its views, and destructive in its operation. The Bible is the only standard of right and wrong; and we read there, “Thou shalt not do evil that good may come of it.” The defence, therefore, of duelling on the ground of expediency falls to the ground; and no other defence is set up for it.

But the truth is, that society, so far from courting or needing the support of duelling, abhors and disowns a system which strikes at the very foundation of social order. Duelling is the mere foster-child of public opinion—the public opinion, moreover, not of the nation at large, but of a class, on whose sentiments and practices any 415opinion expressed by your Lordships, its brightest ornaments, must necessarily possess incalculable influence. It is this influence which we implore you to exercise on the present occasion.

It is not in the indulgence of malice or revenge that the essential iniquity of duelling consists. Many a man has fought a duel with perfect innocence as regards those points. Few, I believe, take their stations in the field with the deliberate intention of “killing, maiming, or doing some grievous bodily injury” to their antagonist, as imputed to the noble Earl now summoned to your Lordships’ bar for trial. Far from it. Few but would refuse a challenge, were it not for the disgrace with which such a refusal stamps the character. It has been often and truly said, that it requires more courage to refuse than to accept a challenge. It requires much for a single man to do so; but for the husband and the father, whose prospects for life may be blasted, and his wife and children reduced to beggary and wretchedness, in consequence of his refusal, the trial must be one of bitterness indeed. It is not, I repeat, in malice or revenge that the evil of the system lies. Nor need I insist upon the violation of the commandment, “Thou shalt not kill.” No one will dispute, at least no man who ever saw his antagonist fall in a duel, but will remember the blow with which conscience knocked at his heart in that moment of anguish,—the distinctness with which for days and years afterwards he heard the still calm voice of God whispering in the silence of his heart’s wilderness, “Where is thy brother Abel?” The evil lies deeper still. It consists in a total oblivion of that vital principle, of natural religion in the first instance, but far more emphatically so of Christianity,—a principle which every man who fights a duel, challenger 416or challenged, consciously or unconsciously violates,—a principle written in letters of light in the book of inspiration, in the following heart-stirring words, “Ye are not your OWN, for ye are bought with a price; wherefore glorify God in your body and in your spirit, which are God’s.” Life, then, is not a man’s own property to peril at his pleasure, any more than it is his own to dismiss by suicide; and, till this principle be recognised, not as involved in the mere question of duelling, but in its full uncompromising extent, a man can never be thoroughly depended upon in the full confidence of his proving, under all circumstances, and without mental reservation, loyal to his Sovereign, faithful to his God, and true to his country.

This, my Lords, is an age of recurrence to first principles, a period unexampled in the annals of the world. The shackles of ages are falling off, and the human intellect is rising up, unconscious of its strength, and likely, in pure ignorance how to restrain and economize that strength, to rend asunder the bones, the muscles, the ligaments which are alike its prison, and the necessary instruments of its energy and activity; in other words, to burst through and destroy the whole framework of society. To preserve that framework, to discipline that awakening strength, and to direct it to those high and noble purposes, which, from the elevation on which we now stand, we may see opening out before us in long vistas, as it were, of untrodden enterprise in the map of God’s providence, education must be resorted to; not that spurious education which draws its theory and its practice alike from the dust it studiously looks down upon, whose wisdom is of the earth, earthy—but that which God intended when he distinguished man from the beasts that perish, by 417creating him with his face erect to heaven, in the image of his Maker. If society is to be preserved, it must be Christianized. Your Lordships have acknowledged this great truth by your exertions to preserve the Christian principle in education. England owes you much for all you have done, for all you are still doing in this great cause. But it would be mockery to hold forth the decalogue with one hand, and with the other a charter of legitimation to that spurious offspring of human vice and folly, which, involving as it does a direct transgression not of one only, but of almost every law in the decalogue, virtually annuls it. And this charter your Lordships sign—the good that you have done your inconsistency may undo—if in the remotest degree you indirectly sanction the system in question.

The expediency of enacting prohibitory laws against duelling, such as exist in some foreign countries, must necessarily be left to the wisdom of the united Houses to determine; it would probably be decided in the negative, and perhaps rightly so. But a far more efficient remedy is in your Lordships’ own hands, as the highest court of honour in the kingdom,—the capital of the column of English nobility,—the sun, as it were, whose lustre and the spots that obscure its disk are alike reflected by that class of society in which the evil complained of has hitherto chiefly prevailed. Your influence on the “public opinion” of this class is immense. Let your Lordships simply declare duelling to be disgraceful, and it becomes so.

We, therefore,—for I speak but as one of a vast body who hold that Christianity and true Conservatism are synonymous,—we, who in these days of storm and tempest look to your Lordships as the sheet-anchor on which the preservation of the state depends,—we who, respecting 418your wisdom, and honouring your manly daring in the vindication and assertion of truth and duty, deeply believe, however, and know with unalterable conviction, that it is God’s blessing, and His only, which has hitherto maintained, or can hereafter maintain, you in your posts and in your usefulness; and who watch over you therefore with the jealousy of love, lest in aught, through inadvertence, you come short of your high and holy vocation. We call upon your Lordships, therefore, in the name of God and man, as you would be consistent with yourselves, as you hope God’s blessing to rest on your labours for your country’s good, to accompany the verdict you pronounce on the solemn occasion about to engage your attention with the fearless unqualified expression of your united abhorrence of the unhallowed system of duelling.

I have the honour, &c.

Lælius.

The following article contains a very graphic account of a duel, from the origin down to the acquittal of the prisoner:—

THE LAW RESPECTING DUELLING.

TO THE EDITOR OF THE MORNING CHRONICLE.

Sir,

Your correspondent, whose communication on the subject of duelling you printed on Friday, must have adopted the principle which he lays down from an article in Knight’s Quarterly Magazine, a periodical which was born and died some twenty years ago; but which, during its brief existence, could boast some contributors who have since risen to eminence; among others, et facile princeps, 419the Right Honourable Thomas Macaulay, then at Cambridge—not, however, that I have the slightest reason to believe the paper to which I refer to be his. As the work is now scarce, I have made a copy of the article, which is at your service.

I am, &c.

T.

Suppose a high-spirited, but good-natured, young man receives an insult. It is possible that his first, or, at least, his second impulse, may be to pass it over, and content himself with despising the brute who offered it. The brute, however, mistaking love of peace for fear of war, and glad of an opportunity of oppressing safely, repeats the aggression; the bystanders, who, to a young man, are the representatives of all mankind, past, present, and to come, begin to show by their looks that they had not expected so much philosophy. Our hero gives or sends a challenge; a “meeting takes place,”—the brute is shot dead, and nobody regrets him, not even his creditors, for they had lost all hopes.

But, in the mean time, what is the situation of the young man and the seconds? Divinity and Law have long ago settled the question—they are murderers. A warrant is issued for their apprehension; they possess, however, good friends who have spare attics, and the warrant cannot reach them. But their mothers, sisters, mistresses, and maiden aunts, who read in the papers that the coroner’s inquest has returned a verdict of “Wilful murder against John Smith, Charles Jones, and William Brown,” are in despair. The horrible visions of black caps, chains, and gibbets, flit before their eyes; and, in short, whole families are thrown into unaffected and very 420severe affliction. In the midst of all this suffering the assizes approach, and the accused surrender themselves for trial. The “unfortunate gentlemen” (to use the phraseology of the newspapers) appear at the bar, “dressed in genteel mourning, and deeply affected with their awful situation.” The counsel for the Crown details the case, lays down the law, “under the authority of his Lordship,” and then concludes by telling the jury, that, “if the facts are as he has stated them, he cannot see how they will avoid pronouncing the verdict of guilty; but he fervently hopes that something may arise to relieve them from so painful a duty.” In the examination of the evidence everybody is aware that the Judge, the counsel on both sides, and the witnesses, are straining all their ingenuity to prevent a verdict against the prisoners; and everybody sympathises with their endeavours. His Lordship, in his charge to the jury, explains to them again that every man killed in a duel is murdered; but he at the same time shows that there are some technical defects in the evidence, which he places before them in a strong light. The jury “turn round for a few minutes,” and find a verdict of “Not guilty.” Upon this there is considerable applause manifested among the auditory, “which meets with the marked reprehension of his Lordship,” who threatens to commit the offenders. The court is now cleared, all the world is pleased to find that poor Smith is acquitted, agrees that duels are horrid things, and hopes that, as they become so common, the Judge will direct the very next man who fights one to be hanged.

In this little sketch, extravagant as it would appear to any rational being who had never heard of the practice of duelling, we have tried not to “o’erstep the modesty of nature.” How we have succeeded, our readers must determine; 421but if we have erred we shall at least have no excuse; for, judging from what has been done by others, it should seem impossible either to preach, legislate, or write on the subject without being betrayed into some absurdity.

To begin with the preachers. Does it not, we ask, perplex all our ideas of morality to call the act of killing a man who has fired at me, and who has agreed to let me fire at him, a murder? Has it anything in common with stealing to his bed at the dead of night, and stabbing him in his sleep? Try to shake hands with one murderer (if he must be so called), and then with the other; do you not feel a difference? Can you doubt for a moment which man you would rather be, whose feelings you would rather have, whose remorse you would rather bear?

To legislators we have more to say. In the first place, they have provided no practical remedy for the wrongs which are now attempted to be redressed, or at least checked, by duels. If a fellow picks my pocket of an old handkerchief, I have him transported without much trouble; but if I am held up to the scorn and ridicule of my friends, provided the artist be skilful in his profession, provided he can

“Spargere voces

Ambiguas,”

and play off “all the cruel language of the eye,” I am, even in theory, without redress. Nay, he may venture to go much further, if he have legal knowledge enough to remember all the nice distinctions which have been made on the subject. For instance, he must not say I am a highwayman, but may affirm with impunity that I am worse than a highwayman; and he may load me with the 422epithets of “scoundrel, rascal, villain, knave, miscreant, liar, and fool,”^[9] as long as he pleases; unless I can show that some actual loss in money, or money’s worth, has accrued to me from his defamation. So that if my character stands so high, or his character so low, that nobody believes him, he goes unpunished. But we will suppose his rage to be so excessive as not to be confined within these ample bounds—we will suppose that after carefully noting down the words in my pocket-book, and calling upon the bystanders to con them over often enough to fix them firmly in their memory until the next assizes, I go to my attorney, and he enters an action against the slanderer. In due time, I obtain a sight of the pleadings, and find that I hold myself up as a person of the highest character, and impute the ill-conduct of the defendant to his great envy of “my happy state and condition.” Then the slanderous words are set out, as the lawyers call it, with so much verbiage, that they appear quite ludicrous even to myself. At length we come into court. My counsel affect great gravity, which does not impose on a single individual; states my case to the jury, the counsel for the defence laughing judiciously at every part of his address which is likely to produce any effect. The jury, who do not remember that an advocate may be paid for laughing as well as for talking, are, (unconsciously, perhaps,) more influenced by the smiling face than the oration. The witnesses are next examined, and another opportunity is offered for covering the whole transaction with ridicule. It is now the turn of my opponent’s counsel to speak. He represents the affair as a foolish quarrel which happened a long time ago; wonders that neighbours should come to tear themselves to pieces in a court of law; 423takes hold of anything ludicrous in the defamatory expressions, makes the audience laugh, and sits down. Now all this, on whichever side the verdict may be given, is a real triumph to the aggressor; the public feeling is too often with him: there is nothing natural or apposite in the tribunal. The delay, the machinery, the expenses, and the formality of the proceedings, cast an air of the mock-heroic over the whole matter, very little tending to satisfy the mind of the injured party. The offence, too, was addressed to the feelings, and the recompense is one to be pocketed.

Thus it is clear that the law has provided no efficient remedy, and perhaps can provide none, for a very large class of severe injuries. But this is not all; the injured party is often willing, as far as his own private feelings are concerned, to forego any redress, and bear the aggression as he may. But society, which has made one law to punish the duellist as a murderer, has, at the same time, by another, imposed upon him the necessity of fighting. This latter law, it is true, does not frown its terrors from columns of black letter, nor is it supported by volumes of cases and commentaries; but we rather think that the want of these auxiliaries is but too well compensated by the swiftness and certainty of its administration. No waiting until the assizes or sessions—no flaws in the indictment—no cajoling the jury. Whoever defies public opinion is convicted on view, and punished immediately on conviction. Who, then, shall say that he does not suffer by law? and that, in fact, the two laws, one of which commands, and the other prohibits duelling, are both the offspring of society? Is it, or can it be, of the least importance to the sufferer by this tyranny, that the framers of one of these enactments call the other law wicked and absurd? It may 424be absurd; the duellist may feel and think it to be so, but is he therefore to endure its punishment? Does he not act naturally, and we may even add rationally, in obeying the power which can best carry its will into execution? He knows that the penalty inflicted by the law of public opinion is certain; he knows also that it is the most galling which a man of high spirit and quick feelings can endure. On the other hand, he can be sure, even reasoning à priori, that two opposing laws cannot both exist in full vigour at one and the same time. But he has better evidence; he finds by his daily experience that the statute-book is almost a dead letter when it comes in contact with public opinion. Legislators, too, often forget that laws will not administer themselves. If a code of self-executing statutes could be framed, public feeling might for a time be disregarded; or if some ingenious mechanic could construct a steam-engine which, by different movements, should perform the work of judge and jury, there would then be some chance that iron laws might be enforced. But while the old plan of manual labour is pursued—while judges and juries, and witnesses and counsel, are human beings, and live in society, it will be in vain to expect from them the enforcement of edicts which run counter to all their sympathies. Let it not be supposed that we think harshly of legislators; we do not; but they have to do only with abstractions. It is easy to fulminate the terrors of the law against A, B, C, or any or all of the letters in the alphabet; but it is a very different thing to execute those threats upon real men of flesh and blood. A, B, and C, have no eyes; A, B, and C, have no hands, organs, senses, affections, passions. They are not fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the 425same winter and summer as men are. “If you prick them, they do not bleed; if you tickle them, they do not laugh; if you poison them, they do not die; and if you wrong them, they cannot revenge.” Poor A, B, and C, have neither mothers, mistresses, aunts nor sisters; they do not “appear at the bar in genteel mourning;” they are not “unfortunate gentlemen.” In short, they can awake no sympathies; and there is no possible reason why the law should not take its course in the cases of such wicked and daring offenders, except that these abstractions cannot be caught.

With respect to one class of the community, officers in the army, the case is even more glaringly absurd and unjust; for, with regard to them, the laws of the land are actually at variance among themselves. By the Mutiny Act, the King has an “unlimited power to create crimes, and annex to them any punishment not extending to life or limb.”^[10] If, then, he shall be found to have exercised the power in the punishment of officers for not fighting duels our position will be fully proved.^[11]

The intelligent reader must have been, at some time, struck with the mass of contradictions which, in one shape or other, has been offered to the world on the subject of duels; divines and law-givers crying murder; commentators^[12] extolling the justice of laws which cannot be executed; historians^[13] deducing effects which they call good, from causes which they call absurd; and lastly, the world at large, admitting all that can be said against duels, sometimes 426demanding sanguinary punishments, which they would shrink from seeing executed, and sometimes allowing that although they are shocking things, yet they are necessary “in a certain rank of life.”

While the public mind is in such a chaos, it is almost hopeless to expect any speedy amelioration, either in the law, or in popular opinion. Yet the period of improvement may not be so infinitely distant as at first sight we should be led to suppose.

The great principle of legislation, that the severity of punishment ought not to be so great as to shock the general feeling, is gradually toiling its way from the works of theorists (as they are called), into the heads of practical men, and in the course of a few ages these latter gentlemen may also be taught, that to visit with the same penalty the aggressor and his antagonist, whom he has forced into a duel, is not quite consistent with sound and enlightened maxims of justice; and, what will probably have more weight, they may discover that it is a species of legislation which cannot be carried into effect. In equally reasonable time it may be found, that what cannot be entirely abolished may be regulated. Suppose that after a duel was fought, the law condescended to inquire into the merits of the dispute, and punish him who had provoked the outrage; is it not probable that fear of legal punishment, superadded to the danger of being shot, would prevent some of those aggressions from which duels arise? Even the master of that most valuable accomplishment, the power of snuffing a candle with a pistol-bullet, might shrink from such an investigation as this, which would naturally be followed up with a severe penalty. Public feeling would offer no obstacle. The wretch who wantonly, or perhaps maliciously, puts a fellow-creature under the necessity 427of either suffering mental pain and degradation, or exposing his life to extreme danger, deserves no sympathy, and would receive none.

Nor ought the second, who assisted such a man, wholly to escape. To a certain degree he would be an object of public displeasure, and might therefore be visited with a punishment bearing some proportion to that of his principal. Where blame fairly attaches to both parties, then, let both be punished; but let the penalty have relation to the common feelings of mankind. It is impossible to treat the survivor in such a duel as a murderer, but he ought not therefore entirely to escape. The law as it now stands resembles Thor in Jutenheim; his hammer was able to beat down rocks, but he struck at shadows, and his real enemies laughed at his blows.

Much good would result from making it the duty of the coroner to hold an inquest after every duel, whether the consequences had been fatal or not. When a pistol is discharged, accident alone determines what shall be the consequence. The guilt of the shooter is just the same, whether the ball take effect or not. It is true the parties might, according to the law as it now exists, be prosecuted, and since Lord Ellenborough’s Act they are liable to be capitally convicted; but it has not been made the particular duty of any public officer to see the law put into execution, and consequently nothing is done. Since, however, a great, and perhaps the greatest part of the efficacy of punishment results from the certainty of its infliction, it is evident that every temptation to violate the law, from the hope that accident will be favourable, ought to be cut off.

In the present state of society, the total abolition of duels cannot, as experience abundantly shows, be effected. 428A speedy, certain, and reputable method of punishing insults must first be discovered and established. At present, with respect to those injuries, society is in a state of nature. The right of private war has only been surrendered, because the individual is better protected by the arm of the law than by his own strength. Whenever there shall be instituted a supreme court, to act as arbiter among nations, public war will, for the same reason, fall into disuse, or will only be made for the purpose of chastising a refractory member of this great community, just as the police officers may be said to carry on war against the criminals whom they apprehend. But as it would be preposterous to expect a nation to sit down quietly under its wrongs until such a court is appointed, so it is equally unreasonable to demand that private men should always refrain from redressing, by their own means, those grievances for which the law offers no remedy. By the plan which we have proposed the balance of pain would be fearfully against the aggressor; and that noxious animal, the bully, must soon become extinct. At present he stands on equal ground with his antagonist; or rather, from having made a just estimate of the worthlessness of his own life, he is aware that the stakes are in his favour. Add to this, he generally has no better occupation for his time than to become very expert at his weapons. In England, these creatures are happily become rare; but in Ireland, notwithstanding its boasted exemption from venomous animals, in France, in the United States, and in our own colonies, the breed still flourishes—at once the terror and the disgrace of civilized society.

THE END.

LONDON: PRINTED BY SAMUEL BENTLEY, BANGOR HOUSE, SHOE LANE.

FOOTNOTES

Transcriber’s Notes: Missing or obscured punctuation was silently corrected. Typographical errors were silently corrected. Inconsistent spelling and hyphenation were made consistent only when a predominant form was found in this book.