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."[41]
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 Townsend[42]—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."[43] 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,(!)[44] 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![45]
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.[46]