Blackwood's Edinburgh Magazine, Vol. 68, No 422, December 1850

"Expend not the precious moments in similes," interrupted Alexis. "Remember only that the man is glib of tongue, and let him not mislead you by friendly professions."

"Not I, by the soul of Hereward!" replied Wirtig, leaving the room.

Alexis hastened to the Englishman.

"You must be off, my good sir," he said. "A detachment of the bodyguard of Prince Hector of Rauchpfeifenheim is in pursuit of you. Their officer is in the house, making clamorous inquiry."

"The devil he is!" cried the stranger, sobered by the intelligence. "What is to be done? The horse I came upon is foundered. Infernal country! Accursed steamboat! I cannot leave the place on foot."

"Leave the house, at any rate," said Alexis, "and we will then see what to do. Delay another minute, and escape is impossible. Follow me, as you love liberty and life."

The Englishman obeyed. Alexis led the way into a back-room, threw open a window, and stepped out upon a balcony, whence a flight of steps descended into the garden of the hotel. This was quickly traversed, and the two men reached a narrow and solitary lane, formed by stables and garden walls, and close to the outskirts of the town. Ten paces off stood a postchaise, the door open and the steps down.

"Now then, sir," said the driver in a sleepy voice, as they approached his vehicle, "Jump in. No time to lose."

"How fortunate!" said the Englishman, "here is a carriage."

"But not for you, is it?" said Alexis.

The Englishman laughed, and clapped his hand on his pocket.

"Everything for money. Drive on, postilion, and at a gallop. A double trinkgeld for you."

And he jumped into the vehicle, which instantly drove off, and had disappeared round a corner before Alexis, astonished by the suddenness of the proceeding, had time to reciprocate the farewell shouted to him by the fugitive. He was about to re-enter the garden, when a man came running down the lane. It was Elben.

"How now, William," cried Alexis, "what do you here?"

"The postchaise," cried the attorney, "where is it?"

"The postchaise, was it for you?"

"To be sure."

"It has just driven off with the Englishman."

"With the Englishman!" gasped Elben. "Destruction! And Emily in it!"

"Emily! my cousin! The devil! What do you mean?"

"Alexis, you are my friend – with you I need not dissemble. That carriage was to bear me and Emily from her father's tyranny. I put her into it ten minutes ago. She insisted I should be armed, and I returned for these!"

And, throwing open his cloak, he exhibited a pair of enormous horse pistols, and a rapier, which, from its antiquated fashion, might have belonged to a cotemporary of the Great Frederick.

"And whilst you were arming," cried the incorrigible Alexis, convulsed with laughter, "the Great Unknown ran off with your bride. Well, you may rely he will not take her far. He is in too great haste to escape, to encumber himself with baggage. And you will be spared a journey, for my uncle no longer opposes your marriage."

At that moment the garden door opened, and Emily stood before them. No sooner had the romantic damsel sent her knight to arm himself, than she remembered an indispensable condition of an elopement, which she had forgotten to observe, and hurried back to her apartment, to leave upon her table a line addressed to her father, deprecating his wrath, and pleading the irresistible force of love. A few words from Alexis gave her and Elben the joyful assurance that no obstacle now barred their union.

On re-entering the inn, Alexis encountered a French equerry of Prince Hector of Rauchpfeifenheim, who at once recognised him as his sovereign's newly appointed architect.

"Ah! Monsieur l'Architecte," he exclaimed, "how delighted I am to meet with a sane man. The people here are stark mad, and persist in knowing nothing of Scott, the engineer. I know very well he is here. Tell the drunken dog that the prince forgives him. I have ordered his baggage to be sent hither, and here is money for his expenses. The prince never seriously intended to visit upon him the fault of his bad machinery."

Alexis undertook to transmit Prince Hector's bounty and pardon, and was enabled to take his uncle the joyful intelligence that the bloodthirsty French general had departed in peace.

Elben and Emily were married. Alexis forwarded the property of the Great Unknown, and soon afterwards left Miffelstein. Wirtig wondered to hear nothing more of his illustrious visitor and benefactor, when one day a letter reached him, bearing the London postmark, and scrawled in execrable German. Its contents were as follows: —

"Dear Sir, – Once more back in Old England, which I ought never to have left, I remit you the enclosed note in discharge of my reckoning. Before this, you will doubtless have discovered who your Great Unknown really was, and that his business is with pistons and paddlewheels, not with novels and romances. My best regards to that merry fellow Alexis, and to your sentimental little daughter. And you, my comical old friend, have my best wishes for your welfare and prosperity. – William Scott."

When Wirtig had read this epistle, he remained for some time plunged in thought. From that day forward he left off novel-reading, and attended to his business; called Caleb Tobias; eschewed bagpiping and Scottish cookery; consigned plaid-curtains, oaken sideboards, and portraits of the Great Unknown to the lumber-room. And before the new year arrived, the Blessed Bear of Bradwardine had disappeared from the door, and the thirsty wayfarer might once more drink his glass by the light of the jolly old Star.

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.