I returned to Dublin, and, as my mind grew cooler, thanked Heaven that I had not personally found him. I, however, published advertisements widely, offering a reward for his apprehension; and at length he surrendered into the prison of Maryborough, to take his trial.
The assizes approached; and I cannot give the sequel of this melancholy story better than by a short recital of Gillespie’s extraordinary trial, and the still more extraordinary incidents which terminated the transaction.
The judges arrived at the assize town, (it was during the summer assizes of 1788,) accompanied in the usual way by the high sheriff, (Mr. Lyons, of Watercastle,) and escorted by numerous bailiffs and a grand cavalcade. Mr. Lyons was a gentleman of taste and elegance, who had travelled much, but very seldom came to Ireland: he possessed a small fortune and a beautiful cottage ornée, on the banks of the Nore, near Lord De Vesci’s. Mr. Thomas Kemmis (afterward crown solicitor of Ireland, and a sincere friend of mine,) was the attorney very judiciously selected by Captain Gillespie to conduct his defence.
The mode of choosing juries in criminal cases is well known to every lawyer, and its description would be uninteresting to an ordinary reader. Suffice it to say, that by the methods then used of selecting, arranging, and summoning the panel, a sheriff, or sub-sheriff, in good understanding with a prisoner, might afford him very considerable, if not decisive, aid. And when it is considered that juries must be unanimous, even one dissentient or obstinate juror being capable of effectually preventing any conviction,—and further, that the charge we are alluding to was that of murder or homicide, occurring in consequence of a duel, on the same ground and at the same time,—it might fairly be expected that the culprit would stand a chance of acquittal from military men, who, accustomed to duelling, and living in a country where affairs of that kind were then more frequent than in any other, might be inclined to regard the circumstance more indulgently than a jury of mere civilians.
To select, by management, a military jury, was therefore the natural object of the prisoner and his friends; and, in fact, the list appeared with a number of half-pay officers at the head of it, who, as gentlemen, were naturally pained by seeing a brother-officer and a man of most prepossessing appearance, in the dock for murder. The two prisoners (Gillespie and M‘Kenzie) challenged forty-eight; the list was expended, and the prosecutor was driven back to show cause why he objected to the first thirteen. No legal ground for such objection could be supported; and thus, out of twelve jurors, no less than ten were military officers! The present Lord Downs and the late Judge Fletcher were the prisoner’s counsel.
On this, perhaps, the most interesting trial ever known in that county, numerous witnesses having been examined, the principal facts proved for the prosecution were:—that after M‘Kenzie and my brother had fired four shots without effect, the latter said he hoped enough had been done for both their honours, at the same time holding out his hand to M‘Kenzie,—whose second, Captain Gillespie, exclaimed, that his friend should not be satisfied, and that the affair should proceed. The spectators combined in considering it concluded, and a small circle having been formed, my brother, who persisted in uttering his pacific wishes, interposed some harsh expressions toward Gillespie, who thereupon losing all control over his temper, suddenly threw a handkerchief to William Barrington, asking if he dared take a corner of that!—The unfortunate boy, full of spirit and intrepidity, snatched at the handkerchief, and at the same moment received a ball from Gillespie through his body;—so close were they together, that his coat appeared scorched by the powder. He fell, and was carried to a cabin hard by, where he expired in great agony the same evening. As he was in the act of falling, his pistol went off. Gillespie immediately fled, and was followed by three of his own dragoons, whom he had brought with him, and who were present at the transaction, but whom he declined examining on the trial. The spectators were very numerous, and scarcely a dry eye left the field.
Capt. Gillespie’s defence rested upon an assertion on his part of irritating expressions having been used by my brother, adding that the cock of his own pistol was knocked off by my brother’s fire. But that very fact proved every thing against him; because his shot must have been fired and have taken effect in my brother’s body previously; for if the cock had been broken in the first place, Gillespie’s pistol could not have gone off. In truth, the whole circumstance of a second killing a principal because he desired reconciliation was, and remains, totally unexampled in the history of duelling even in the most barbarous eras and countries.
Judge Bradstreet, who tried the prisoners, held it to be clearly murder by law. A verdict of even manslaughter must (he contended) be returned by a forced or rather false construction;—but acquit him (Gillespie) generally, the jury could not.
The prosecution was not followed up against M‘Kenzie, whose conduct throughout had been that of an officer and a gentleman, and who had likewise desired reconciliation. Of course he was acquitted.
The jury had much difficulty in making up their verdict. Some of them, being men of considerable reputation, hesitated long. They could not acquit; they would not convict;—and hence a course was taken which corresponded neither with the law nor the evidence. A verdict of “justifiable homicide” was returned, in consequence of which Capt. Gillespie was discharged on his recognizance to appear in the court of King’s Bench the ensuing term, and plead his Majesty’s pardon.