Kitabı oku: «Blackwood's Edinburgh Magazine, Vol. 68, No 422, December 1850», sayfa 13

MODERN STATE TRIALS

PART III. – DUELLING

[Note on Part II. on Criminal Responsibility in cases of Insanity.– A physician in a responsible official situation, affording him great opportunities for observation, has addressed to us a note from which we extract the following passages. Our only object is to aid in eliciting truth; and our anxiety to do so is proportionate to the difficulty and importance of the subject to which the ensuing letter has reference.³⁸

"The article on Oxford and M'Naughten has interested me very much; and though I cannot at all admit the principle of punishing a man for his misfortune, I am yet satisfied that the doctors have assumed too much, and have helped to let loose upon society some who deserved hanging as much as any who have ever suffered the extreme penalty. The test of insanity, as laid down by the Judges on the solemn occasion to which you refer, is manifestly of no value; for it is, I might almost say, the exception for an insane person not to know the difference between right and wrong. Many of them deliberately commit acts which they know to be wrong. Dadd killed his father, and immediately fled to France to avoid the consequences of his crime; and nobody ever doubted that he was one of the maddest, if not the maddest, of the mad. Touchet shot the gunmaker, not only with a full knowledge of the nature of the crime, but for the express purpose of bringing about his own death. He has entertained various delusions: amongst others, the notion that certain passages of Scripture have special reference to himself personally; and, as regards those in actual confinement, on account of their mental malady, the majority know perfectly well that it is wrong to tear, break, and destroy, to injure others, and indulge their various mischievous propensities. So well satisfied are many of them that they are doing wrong, that they will try to conceal acts which they know are not permitted; and, in this way, a propensity to bite, or kick, is indulged in only when it is believed that it can be done unobserved. It seems to me that, in these most painfully embarrassing cases, every one must stand on its own particular merits; and, as neither judges nor doctors can say where sanity ends, and insanity begins, so no possible rule that can be devised will be alike applicable to all; but the previous habits and course of life of the person accused, together with the absence or presence of any motive, will go far to remove the difficulties which necessarily beset the question. I am not at all prepared to say that, because any degree of mental disturbance has been shown to exist, a person should be held irresponsible. It is a doctrine fraught with such dreadful danger to society, that it is very properly viewed with jealousy; but, when clearly proved that the mind was so far disturbed as to entertain delusions before and at the time of committing the offence, I would never resort to capital punishment. The Omniscient alone can tell how far the disease has gone, and to what extent the unfortunate being was really responsible for his actions to his follow men."]

Is, or is not, a trial in this country for duelling to be regarded as a Farce following a Tragedy? There are those who say that it is; but we are not of the number. Such trials often greatly excite the public mind, and array opinions and prejudices against each other in such a manner as to disturb and derange the judgment. Then more or less is expected from the law, and its administration, than is right. If the heated public should have prepared itself for a conviction, loud and violent is its reclamation against an acquittal, especially if it have been brought about by what are styled technical objections, and vice versâ. They forget, under the impetuous impulses of a sense of natural justice, that settled rules of legal procedure must be observed indifferently on all occasions, if even-handed justice is to be administered in a court of justice. How did these rules come to be settled? They are the results of centuries of experience – of ten thousand instances of the advantage, nay, the absolute necessity, for observing them. If it could be imagined with any, even the slightest foundation of truth, that those sworn to decide according to the law and the facts had wilfully shut their eyes to the one or the other – or, either directly or indirectly, connived at an evasion of the letter or a violation of the spirit of the law, in order to secure a particular result – then there is no power in language adequate fitly to denounce so deliberate and awful a perjury, so monstrous an outrage on the administration of justice.

Bonâ fide duels are always lamentable affairs, under whatever circumstances they may happen, especially when attended by loss of life or serious personal injury – occurring, too, in a highly civilised and Christian country like ours. They properly arouse the grief and indignation of every thoughtful and virtuous member of the community; whom, however, they also satisfy as to the prodigious practical difficulty of dealing with such cases. While the law of the land is clear on the subject as the sun at noonday – alike unquestionable and unquestioned – there yet exist, in almost every detected duel, far greater difficulties than are suspected by the public, in bringing to justice the guilty actors. First of all, it must be borne in mind how deep an interest they have in cutting off all means of future evidence, by intrusting a knowledge of the affair to the fewest persons necessary for carrying it out, and by selecting scenes remote from observation. Then, again, let it be remembered that both principals and seconds, and all others present aiding and abetting, have incurred heavy criminal liability – are liable to be indicted for murder, as principals or accessories; and, consequently, none of them can be compelled to furnish any evidence which may even tend to criminate himself. This great rule of criminal law has doubtless operated as a great indirect encouragement to duelling; but how is this difficulty to be encountered? Must the rule be abrogated?

Assuming, however, the existence of evidence, and that it is satisfactorily adduced before the jury, it then becomes the duty of the judge and the jury to act in accordance with their oaths: the former to lay down the law distinctly and unequivocally; the latter to find their verdict conscientiously according to the principles of law so laid down, as applicable to the proved facts of the case. If a conviction ensue, the judge must then pronounce the sentence of the law; and it then depends upon the discretion and firmness of the executive whether that sentence shall be carried into effect. Take the case of a fatal duel, conducted with unimpeachable fairness, as far as concerns the practice of duelling – and that the prisoner had received great provocation from his deceased opponent, who had obstinately refused retractation or apology. What is to be the decision of the executive? What will be its moral effect, as an encouragement or discouragement of duelling? Will it operate as a tacit recognition, to any extent, of the practice of duelling, as at all events a necessary evil, and denuded of moral turpitude? These are questions by no means of easy solution.

In the present constitution of society in this country – a Christian community – duelling is a practice environed with difficulties, whichever way it may be approached by its most discreet and resolute opponents. We must deal with men and things as they are, at the same time that we would make them what we think they ought to be. How many professing Christians – men of otherwise pure and virtuous lives – have gone out deliberately to take the life of an opponent, or expose or sacrifice their own! – solely, it may be, from a puerile notion that their honour required the committing of the crime! "It is not one of the least evils of this system," it has been well observed, "that the word honour– which, rightly understood, denotes all that is truly noble and virtuous – should be prostituted as a pretext for gratifying the most malignant of human passions, or as a cover for that moral cowardice – the fear of being thought afraid." This is one of the chiefest roots of the poisonous tree: and can human laws kill it? We think they can. If the legislature were really intent upon annihilating duelling, its members would long ago have acted on the suggestion of Addison – that, "if every one who fought a duel were to stand in the pillory, it would quickly diminish the number of these imaginary men of honour, and put an end to so absurd a practice." If men will fight for a little stake, let them be made into little men, by enduring a degrading punishment; if for a great stake – that is to say, the gratification of malignant passions – let them be treated as great criminals, and die the felon's death, or live his life. Let justice be really blind in all such cases, her sword descending upon noble and ignoble of station alike.

We acknowledge that there is one aspect of the practice of duelling, which somewhat perplexes the moralist: for it cannot be denied, or doubted, that duelling operates as a great preventive check to ruffian insolence and violence – as a potent auxiliary in preserving the necessary restraints and the courtesies of society. "It must be admitted," says Robertson, "that to this absurd custom we must ascribe, in some degree, the extraordinary gentleness and complaisance of modern manners, and that respectful attention of one man to another, which at present renders the social intercourse of life far more agreeable and decent than among the most civilised nations of antiquity." How many a viper-tongued slanderer's lips have been sealed by the dread of a bullet! How many an insolent inclination to personal violence has been checked – how many a truculent heart has sickened, before the prospect of a "leaden breakfast!" Take a single case, which is really embarrassing to the candid opponent of duelling; an insult offered, by either words or deeds, to the character or person of a lady whom one is bound to protect – an injury beyond all legal cognisance, and perpetrated by one occupying the station of a gentleman. To one who does not bow under the paramount influence of religion, the harassing question occurs, – What is to be done? Cases may be easily imagined in which it would be idle to say – "treat the offence and the offender with contempt – leave them to the contempt of society;" where such a course would only add to the poignancy of the wrong or insult, and invite aggravation and repetition. Let the outraged lady be imagined one's own wife, or daughter, or sister! Is the wrong to be perpetrated with impunity? asks the upholder of duelling. "What would you do," retorts his opponent; "will you deliberately take the life of the offender, and give him an opportunity of taking yours?³⁹ Is that your notion of punishment, or satisfaction? What will be the effect of an example such as this, upon society at large? Is every one to be at liberty to do the like? – thus deliberately to ignore the law of God and of man?"

Duelling is, in truth, almost always the resource of the weak-minded, the vain, the vindictive, or the cowardly; and it is not right to ask society to be liberal in its allowances for the wrongdoings of its less worthy members. There are, nevertheless, cases in which persons have found themselves involved in duels under circumstances pregnant with extenuation in the eyes of even the hardest moralist, and such as warrant the executive, when the majesty of the law has been vindicated, and its authority recognised, in mitigating or remitting the punishment due to an acknowledged violation of the law.

The law of the land is better able to vindicate really outraged character and honour than may be imagined by many foolish hot-blooded persons, who give or accept "hostile messages." It is armed with ample powers of compensation and punishment, as may easily be ascertained by those who can satisfy it that they have been the victims of deliberate and wanton insult and injury. Little more than a year ago, one gentleman thought proper to write to some naval and military friends of another most offensive imputations upon his honour. When apprised of this, he instantly wrote to demand that his traducer should either prove the truth of his assertion, or unequivocally retract and apologise for them. Both alternatives were very contemptuously refused, on which the injured party brought an action for libel against his traducer; who, unable to justify, and unwilling to apologise, allowed the case to go before a jury. On their learning the true nature of the affair, and being reminded that they were appealed to as a jury of twelve gentlemen, to vindicate the honour of an unoffending gentleman, they gave such heavy damages (£500) as soon brought his infuriate opponent to his senses, and elicited an unequivocal retractation, and as ample an apology as could have been desired. A few instances of this kind would soon satisfy the most sceptical of the potency of the law in cases too often deemed beyond its reach, and of the effective reality of its redress in cases of wounded honour. Who could lightly esteem being solemnly and publicly branded by its fiat as a liar and a slanderer – its blighting sentence remaining permanently on record? He who would regard such a circumstance with indifference surely is not worth shooting, or running the risk of being shot by, or of being hanged or transported for shooting or attempting to shoot! If a person of distinguished station or character receive an insult or an injury of such a nature, as not to admit of being treated with silent contempt, it becomes his duty to society to set an example of magnanimous reliance on the protection of the laws of his country, and pious reverence for the laws of God. Against one thing, however, every one should be constantly on his guard – the entertaining and cherishing that false overweening estimate of personal dignity and importance, which predisposes too many to take offence, and then hurry to revenge it.

According to the law of England, as already stated, a death caused by duelling, though in the "fairest" possible manner, is clearly murder, to all intents and purposes whatsoever. In the year 1846, the majority of the Criminal Law Commissioners suggested a change in this law, recommending that, where two persons agree to fight, and a contest ensues, and one of them is killed, the homicide should be extenuated. The reasons on which this suggestion was founded appear to us of a very unsatisfactory nature; and one of the Commissioners – the late Mr Starkie – altogether dissented from the views of his brethren, embodying his reasons in an able and convincing protest or counter-statement. "Whilst," he observes, at its close, "as it seems to me, little good could be expected from the proposed alteration, it might be productive of much harm in a moral point of view. It would be understood to manifest an alteration in the opinion of the Legislature as to the heinousness of the crime of homicide, and of course tend to diminish the efficacy of the law against it." We entirely concur in the following remarks of Mr Townsend, in one of the best expressed passages in his book: —

"Founded on the law of God, the law of the land should remain clear and stringent, that whoever kills in a deliberate duel commits murder. The sanctity of human life would be impaired were this denunciation lessened, and the forfeit, for expediency's sake, commuted. The very good to be obtained by the compromise with 'codes of honour' would be temporary; for arguments of hardship, as the consequences of conviction, and appeals to compassion against a gentleman being adjudged guilty of felony, and transported – it might be for life – would equally tickle the ears of credulous jurors, and be listened to with as much avidity as the present topic of capital punishment. Let the law maintain its own independent straightforward path —irretortis oculis– and, be the fluctuations in fashionable feeling what they may, continue, in its austere regard for life, unchanged and unchangeable."⁴⁰

Thus stands the matter: the Legislature not having ventured to interfere with the law, which must be administered with rigorous faithfulness by those to whom that severe and responsible duty has been entrusted, God forbid that there should ever be coquetting with an oath on these occasions!

We have no hesitation in saying that our English Judges, as far as our inquiries have gone, invariably lay down the law, in these cases, with clearness and unfaltering firmness. The only approach towards a departure from this rule of right, is one which we trust has no other foundation than an erroneous report of what fell from Baron Hotham at Maidstone, in the year 1794, in trying a Mr Purefoy, who shot his late commanding officer, Colonel Roper. That Judge, according to Mr Townsend⁴¹– who also intimates a hope that the judge has been incorrectly reported – concluded his summing up, which produced, as might have been expected, an instant acquittal, by the following extraordinary passage: —

"It is now a painful duty which jointly belongs to us; it is mine to lay down the law, and yours to apply it to the facts before you. The oath by which I am bound obliges me to say that homicide, after a due interval left for consideration, amounts to murder. The laws of England, in their utmost lenity and allowance for human frailty, extend their compassion only to sudden and momentary frays; and then, if the blood has not had time to cool, or the reason to return, the result is termed manslaughter. Such is the law of the land, which, undoubtedly, the unfortunate gentleman at the bar has violated, though he has acted in conformity to the laws of honour. His whole demeanour in the duel, according to the witness whom you are most to believe, Colonel Stanwix, was that of perfect honour and perfect humanity. Such is the law, and such are the facts. If you cannot reconcile the latter to your consciences, you must return a verdict of guilty. But if the contrary, though the acquittal may trench on the rigid rules of the law, yet the verdict will be lovely in the sight both of God and man."

If Baron Hotham really uttered this drivel, he was totally unfit to administer justice, and should have been removed from the Bench. Mr Townsend, in one place, observes that Baron Hotham "must have allowed his kindly feelings to master his judgment;" and in another cites the case as "a very famous one, being the first of those occasions on which judges admitted, from the bench, the necessity and expediency of juries tempering the law, where, by a stern necessity, they have held themselves bound by it;" that is, in plain English, where judges advised juries to violate their oaths, in order to defeat the just administration of the law. We know no parallel to this "famous" case, except that of Justice Fletcher, a judge in Ireland, in the year 1812; who – as we learn from Mr Phillips' very interesting Memoirs of Curran, about to issue from the press – thus addressed an Irish jury, in a trial for murder occasioned in a duel: "Gentlemen, it is my business to lay down the law to you, and I shall do so. Where two people go out to fight a duel, and one of them falls, the law says it is murder. And I tell you, by law it is murder; but, at the same time, a fairer duel I never heard of in the whole coorse [sic] of my life!" The prisoners were, of course, immediately acquitted.

Mr Townsend states, that "the long series of judicial annals has not been darkened by a single conviction for murder, in the case of a duel fairly fought."⁴² If this be a correct statement, which we greatly doubt, it argues either a signal deficiency of evidence in every case, or a perverse disregard of duty by either judges or juries, or both. We repeat it, and do so anxiously desirous of giving every degree of publicity in our power to the fact, that our judges discharge their duties on these occasions with unwavering firmness. We shall give two or three modern and interesting instances. The late eminent Mr Justice Buller tried a clergyman – the Reverend Bennet Allen,(!)⁴³ and his second, for killing a Mr Dulany, in a duel fought at ten o'clock at night, in Hyde Park, at the distance of eight yards: the reverend duellist had put on his spectacles, in order to see his man. Mr Justice Buller told the jury that "they were bound to adhere to the law, as to which there never," he continued, "has been a doubt. In the case of a deliberate duel, if one person be killed, it is murder in the person killing him. Of that proposition of law there is not, there never has been, the smallest doubt. Sitting here, it is my duty to tell you what the law is, which I have done in explicit terms; and we must not suffer it to be frittered away, by any false or fantastical notions of honour." Here the judge did his duty: but the jury seem, according to Mr Townsend, who doubtless spoke after having duly examined the facts of the case, "to have temporised between their consciences and wishes, by acquitting the second, and finding the principal guilty of manslaughter."

Mr Justice Patteson, in trying the seconds for murder, in the case of the fatal duel between Dr Hennis and Sir John Jeffcott, who shot the former, thus plainly put the matter to the jury: "Whether duelling ought to be tolerated in this land, I say nothing. It is no question for any jury at all. The law of the land does not tolerate it. I repeat that, if you are satisfied on this evidence, that the three gentlemen went out to Haddon, knowing that Sir John Jeffcott and Dr Hennis were about to fight a duel there, without heat or irritation – but deliberately aiding and assisting the affair on a point of honour, after vainly endeavouring to effect an amicable arrangement – I cannot tell you, in point of law, that it is anything short of murder." The jury at once acquitted the prisoners!⁴⁴

In the year 1838, a young man named Mirfin was shot in a duel at Wimbledon, by a young man named Elliott, twenty-five years of age, under deplorable and aggravated circumstances. The former had been a linendraper in Tottenham Court Road; and, together with the latter, seemed to have led the dissolute life, for some time, of men about town. The duel arose out of a quarrel which had occurred in a certain indecent scene of infamy near Piccadilly! Two young men named Young and Webber, respectively only twenty-four and twenty-six years of age, were tried for the wilful murder of Mirfin. They had not acted as seconds of the survivor, but had accompanied him and his second to the scene of action. The chief witness was a surgeon, who detailed with a deadly simplicity and matter-of-fact air the whole particulars of the duel, at which he was present; and produced such an effect on the jury that, on delivering their verdict, they expressed the "horror" with which they had heard his evidence and regarded his conduct, and their regret that he had not himself been put upon his trial for murder. The reader shall have an opportunity of judging for himself on the subject, from a portion of the evidence given by this person.⁴⁵

"After the pistols were loaded, Mr Elliott and Mr Mirfin were placed on their ground, and a pistol was delivered to each. I then went and stood seven or eight paces from them, with the two seconds. I looked at the principals. The word to fire was given by Mr Elliott's second: he said, 'Gentlemen, are you ready? —Stop!' That was the agreed signal for firing: they were to fire instantly on the last word 'stop' being uttered, and not before. They fired together immediately on the signal. After they had fired, I observed that the ball had passed through the crown of Mr Mirfin's hat: I saw something fly up in the air: I saw a portion of the crown just raised at the moment. As soon as they had fired, the seconds interfered. I and they were standing together. They moved towards the principals, who remained in their places. Some conversation took place between the principals and seconds, and then between the seconds themselves – which lasted for a few minutes only. Mr Mirfin insisted on a second shot. He spoke loud enough for all present to hear. I stood within seven or eight paces of him, and could hear every word he said. I was intent looking at his hat – I saw the ball had passed through it. I could hear that the conversation was with a view to reconcile the parties; but Mr Mirfin would not hear of any reconciliation. I believe Mr Elliott would have made a verbal apology; but Mr Mirfin would accept nothing but a written apology, and insisted on a second shot. After he had made this statement, another pistol was delivered to each. They next left their ground. I told Mr Mirfin that his hat had been shot through, and he took it off and looked at it, and said nothing, but replaced it on his head. The second pistols were Mr Mirfin's, and were fired at a signal exactly similar to the former one. Mr Elliott fired first, but not till after the signal had been given. I distinctly heard the sound of his pistol, immediately after the word had been given; and Mr Mirfin's shot was fired almost immediately. I think his pistol was discharged after he had received the fatal shot. I think he felt the wound previous to his firing off his pistol. He did not sufficiently raise his hand. His ball struck the ground. He was in the act of bringing his pistol to the level, when he fired. After both shots had been fired, I looked at each of the men, and did not, at first, perceive that either was injured. Mr Mirfin walked towards me about six paces, I think, with his left hand on his right side, and, I think also, the pistol still in his right hand. I think he gave it to me. He advanced towards me saying, 'I am wounded.' I asked him where; he looked towards the wound and raised his fingers, showing me where he was wounded, but without speaking. I said, 'I am exceedingly sorry to hear it: good bye. God bless you!' He replied, 'Good bye, old fellow!' I then assisted him to lie on the grass. He did not fall immediately. I undid his pea-jacket and waistcoat, and pulled up his shirt, and probed the wound. The other persons were standing by. Mr Mirfin's second walked up, and asked if the wound were fatal. I said it was a very fatal wound. Mr Elliott and his second said nothing, merely looking on. Mr Broughton asked me again, after I had probed the wound, whether it was fatal. I said it was. He asked, 'What shall we do?' I replied, 'The sooner you leave the ground the better, and I will wait.' They all three left the ground together. Mr Mirfin died within ten minutes. I did not speak to him after this. I saw I could be of no service to him, and did not wish to fatigue him by saying anything to him. I examined the body after I had got it home, and discovered a small wound not quite the size of a (bird's?) egg, between the fifth and sixth ribs."

We have given these details in all their sickening simplicity and utter hideousness, because they are worth a world of comment on the nature and tendency of affairs of honour.

The trial came on before the late Baron Vaughan, and the present Baron Alderson, at the Old Bailey, on the 22d Sept. 1838; and the former thus laid down the law to the jury: "When upon a previous arrangement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, he who occasions the death is guilty of murder; and the seconds are also equally guilty. The question then is, did the prisoners give their aid and assistance by their countenance and encouragement of the principals, in this contest? Though neither of the prisoners acted as second, still, if either sustained the principal by his advice or his presence– or, if you think he went down for the purpose of encouraging and forwarding the unlawful conflict, although he did not say or do anything, yet if he were present, and was assisting and encouraging, at the moment when the pistol was fired – he will be guilty of the offence of wilful murder. Questions have arisen as to how far the second of a party killed in a duel is liable to an indictment for the murder of the deceased: I am clearly of opinion that he is."

The prisoners were convicted; but under the special circumstances of the case – for there existed, in the evidence, considerable doubt as to the part taken in the murderous affair by the prisoners – or even whether they, in fact, took any part in it – sentence of death was not passed upon them, but only ordered to be recorded against them; and they were afterwards sentenced to a lengthened term of imprisonment. Mr Townsend does not seem to have been aware of this case, as he makes no allusion to it.

We ourselves were present at a remarkable trial for duelling, about eighteen or twenty years ago, at the Old Bailey, before the late excellent and very learned Baron Bayley, on which occasion he also laid down the rule of law respecting duelling, with uncompromising firmness and straightforwardness. This was the case of Captain Helsham, who had shot Lieutenant Crowther in a duel, at Boulogne. There were rumours of foul play having been practised; and a clergyman, the brother of the deceased, made strenuous and persevering efforts to bring Captain Helsham to trial. The latter continued, for some time after the duel, in France, though anxious to return to England; and after (as we have heard) taking the opinion of a well-known counsel at the criminal bar – who advised him that he could not be tried in this country for a duel fought in a foreign country not under the British crown – he came to England, where he was instantly arrested, under Stat. 9 Geo. IV. c. 31, § 7, which had been passed two or three years previously – viz., in 1828 – and must have altogether escaped the notice of the counsel in question. That act authorises the trial, in England, of any British subject charged with having committed any murder or manslaughter abroad, whether within or without the British dominions, as if such crimes had been committed in England. Captain Helsham was admitted to bail to meet the charge, and, having duly surrendered, took his place at the bar of the Old Bailey, at nine o'clock on a Saturday morning.