Chapter III (5)

The Attorney-General.—“Well, he has one name at 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 to 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 of 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 whole 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 upon 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 Thomas 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.

HOUSE 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 subject,—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 Lordships, 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 adopted, 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 man 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.

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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, from 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 of 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.”

February 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 he 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 some 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.

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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. Equity, 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 of 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 opinion 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 or 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 creating 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 your 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.

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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_, the 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.

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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 severe 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; but 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 epithets 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; takes 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 be 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 same 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 demanding 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 of 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.