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

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.

He was a middle-aged man, of gentlemanly appearance, his features indicating great determination of character; but they wore an expression of manifest anxiety and apprehension as he entered the dock, and, looking down, beheld immediately beneath him the brother of the man whom he had shot, and through whose ceaseless activity he was then placed on trial for his life as a murderer. And he was to be tried by an uncompromising judge – stern and exact in administering the law, and animated by pure religious spirit; but, withal, thoroughly humane. Throughout the whole of that agitating day, the prisoner stood firm as a rock – sometimes his arms folded, at others his hands resting on the bar; while his eyes were fixed intently on the judge, the witnesses, or the counsel – every now and then glancing with gloomy inquisitiveness at the jury and the judge. His lips were from first to last firmly compressed. It was understood that the counsel for the prosecution were in possession of a damning piece of evidence – viz., that the prisoner had spent nearly the whole of the night immediately preceding the duel in practising pistol-firing. However the fact might be, it nevertheless was not elicited at the trial; and probably the prisoner, who had been prepared for such evidence being produced, began, on finding that it was not so, to take a more favourable view of his chances. As the case stood, however, it looked black enough to those who knew the law, and the character of the judge who sat to administer it. That venerable person began his summing up to the jury about seven o'clock in the evening, and the scene can never be effaced from our memory. The court was extremely crowded; the lights burned brightly, exhibiting anxious faces in every direction: but what a striking figure was the central one – that of the prisoner! Immediately over his head was a mirror, so placed as to reflect his face and figure vividly, especially to the jury. A few moments after the judge had commenced his charge, we observed the Ordinary of Newgate glide into court, the late Rev. Dr Cotton, in full canonicals, and with flowing white hair, having a picturesquely venerable and ominous appearance, and take his seat near to, but a little behind the judge. It was then usual for the Ordinary to be present at the close of capital cases, in order to add a solemn "amen" to the prayer with which the sentence of death concluded – that "God would have mercy on the soul" of the condemned. "Gentlemen of the jury," commenced Mr Baron Bayley, amidst profound silence, "we have heard several times, during the course of this trial, of the law of honour; but I will now tell you what is the law of the land, which is all that you and I have to do with. It is this: that if two persons go out with deadly weapons, intending to use them against each other, and do use them, and death ensue, that is – murder, wilful murder." He paused for a moment, as if to give the jury time to appreciate the dread significance of his opening. As soon as he had uttered the last two words, Captain Helsham's cheek was instantaneously blanched. We were eyeing him intently at the moment, and shall never forget it. He stood, however, with rigid erectness, gazing with mingled anger and fear at the judge, whom he felt to be uttering his death-warrant; and after a while bent his eyes on the jury, from whom they wandered scarce a moment during that momentous summing-up – one which, with every word, was letting fall around him, as he must have felt, the curtain of death. "The law of honour," said the judge, towards the close of his charge, "is an imposture – a wicked imposture, when set against the law of the land, and the law of God Almighty, claiming the right to take away human life. I tell you, who sit there to discharge a sworn duty, that a fatal duel is malicious homicide – and that is wilful murder." The jury retired to consider their verdict; and the judge at the same time quitted the court till his presence should be required again. Captain Helsham, however, continued standing at the bar almost motionless as a statue. After a prolonged absence of an hour and forty minutes, the jury returned into court. The prisoner eyed them, as one by one they re-entered their box, with a solicitude dismal to behold, and the irrepressible quivering of his upper lip indicated mortal agitation. The verdict, however, was – Not Guilty; on which the prisoner heaved a heavy sigh, passed his hand slowly over his damp forehead, bowed slightly, but rather sternly to the jury, and was then removed from the bar and released from custody. When the verdict was a few minutes afterwards communicated to Baron Bayley, who had remained in attendance in an adjoining room, he remarked gravely, "I did my duty! It is well for Captain Helsham that the verdict is as it is; had it been the other way, I should certainly have left him for execution." In that case, the duellist would have died on the gallows on the ensuing Monday morning.

It is now, however, time to return to Mr Townsend's volumes, where we find two trials for duelling. One is that of the late Mr Stuart, who killed Sir Alexander Boswell, in Scotland, on the 26th March 1822, in a duel conducted with undisputed regularity and fairness. The other is that of the Earl of Cardigan, who fought and wounded Captain Harvey Tuckett, but not mortally, in a duel, on the 12th September 1840. This trial is one of remarkable interest, in every point of view; and we shall take some pains in bringing it distinctly and intelligibly before our readers.

About five o'clock on the afternoon of Saturday, the 12th September 1840, a person named Daun, a miller, together with his wife and son, observed from the stage of their mill, on Wimbledon Common, two carriages approaching it from opposite directions, and at once suspected what was about to take place. Two gentlemen first quitted the carriages – each with a pistol-case – duly loaded a brace of pistols, and stepped out twelve paces; on which two other gentlemen, the Earl of Cardigan and Captain Tuckett, came up, and took their stations at the points indicated. To each was given a pistol; the other two withdrew to a little distance; the word to fire was uttered, and immediately followed by an ineffectual discharge of both pistols. The principals remained at their posts; a second brace of pistols was given them; again both fired and Captain Tuckett fell, wounded in the small of the back – bleeding profusely, but, as it proved, not from a mortal, or even dangerous wound. Thus the aristocratic affair of honour was more fortunate in its issue than that plebeian one in which, two or three years before, the young linendraper Mirfin had received his mortal "satisfaction." Lord Cardigan's second was Captain Douglas, and Captain Wainwright was that of Captain Tuckett. The whole affair of the duel had been witnessed by the miller, (who was also a constable,) and his wife and son, standing on the stage of the windmill. The moment that Captain Tuckett fell, the miller and his son quitted their post of observation, ran up to the scene of action, and intimated to all the parties that they must consider themselves in his custody. Lord Cardigan still held in his right hand the pistol with which he had fired; and there lay on the ground two pistol-cases, one of them bearing the Earl's coronet. Captain Tuckett lay on the ground, his second Captain Wainwright kneeling beside him, supporting him; while Sir James Anderson, a surgeon, who had attended them to the field, was examining the wound. One of these three entreated the constable to allow the wounded gentleman to be removed to his own house, giving a solemn pledge that, on his recovery, he should attend before the magistrate. At the same time one of them took out a card, on which was printed – "Captain Harvey Tuckett, No. 13 Hamilton Place, New Road," and wrote in pencil, on the back of the card, the words, "Captain H. Wainwright." Who gave this card remains, in the evidence, a mystery; nor did it appear whether Lord Cardigan saw the card given, or knew what was printed or written on it, or heard what was said. As almost the whole interest of the trial, and also its unexpected issue, turned upon the identity of the wounded duellist, and the requisite adroitness and vigilance of the late Sir William Follett, the Earl's counsel, in dealing with this card, and the circumstances attending its delivery to the constable, the reader will find his account in remarking these circumstances accurately. On the constable's receiving the card, and the pledge above mentioned, he allowed those who had given it to depart. The conduct of the Earl of Cardigan was undoubtedly distinguished by soldierly straight-forwardness and frankness. He went direct, with Captain Douglas, to the Wandsworth police station, and, tapping at the door, the inspector presented himself, and asked what was wanted. "I am a prisoner, I believe," said Lord Cardigan. "Indeed, sir! – on what account?" asked the surprised inspector, as Lord Cardigan entered the station-house. "I have been fighting a duel," said his Lordship, "and hit my man – but not seriously, I believe – slightly – merely a graze across the back" – drawing his hand across his own back, to indicate the region where he believed his ball had struck Captain Tuckett. Lord Cardigan then turned to Captain Douglas, and said, "This gentleman, also, is a prisoner – my second, Captain Douglas." He then took several cards out of his right breast pocket, and handed one of them to the inspector. It bore the words, "The Earl of Cardigan, 11th Dragoons." On reading the name, the inspector said, "I hope the duel was not with Captain Reynolds?" – alluding to the notorious disputes between his Lordship and that officer, and which led to a court-martial on the latter. Lord Cardigan "stood up erect," said the inspector in giving his evidence, and seemed to reject the notion with the utmost disdain: saying, "Oh no, by no means! – do you suppose I would fight with one of my own officers?"46 He duly appeared before the magistrates, and was bound over in heavy recognisances to appear whenever his presence should be required. He did so from time to time. As soon as Captain Tuckett had sufficiently recovered, he also made his appearance at the police office, and gave his name. The affair had by this time attracted much public attention, chiefly, there can be little doubt, from the unpopularity of the Earl of Cardigan; the newspapers teeming with accounts of his alleged discourteous and oppressive treatment of the officers under his command. The prosecution of Lord Cardigan was loudly called for; it being alleged that the high rank of the offender imperiously demanded that evenhanded justice should be dealt to him. Mr Townsend speaks of this demand for prosecution as "a very pitiful manifestation of popular rancour and spleen."47 "As the duel," he adds, "had been fairly fought, and the code of honour satisfied, without loss of life, it seemed strange that the first unsheathing of the statute should be directed against a high-spirited and gallant nobleman, who had been exposed to violent prejudice and popular clamour; and the prosecution seemed justly obnoxious to the supposition that it originated in party malevolence, and not in respect to the law." We never shared in the hostility here spoken of as existing towards the gallant nobleman in question. Our political opinions are also his; and we are disposed to believe that he has been the victim of much misrepresentation and injustice. We desire, nevertheless, to be understood as vindicating the call for judicial inquiry into the transaction to which Lord Cardigan and his opponent, with their seconds, were parties, if that transaction had been of a criminal character. Only three or four years previously, two young men had been tried and convicted of wilful murder, for having only been present at the duel which cost one of the principals (Mirfin) his life. If Captain Tuckett had been killed, Lord Cardigan would clearly have been guilty of wilful murder – that is beyond all question, if the law of England be not a dead letter, and those who affect to set it in motion be not guilty of a vile mockery of justice. If, therefore, a peer of the realm, a member of the supreme judicature in the kingdom, had really been guilty of a conspicuous and grave violation of the law, which all are required to obey with implicit reverence, those who demanded inquiry ought to have been given credit for acting on public grounds. The peer should not escape, where the plebeian would be condemned. Let us see, then, how stood, and how stands the law on this momentous subject – for momentous it is.

In the first place, let it be understood that the mere challenging to fight a duel, whether verbally or in writing, and the mere carrying any such challenge, is a high misdemeanour, punishable by fine and imprisonment, according to the circumstances of the particular case. This offence consists in the provoking or inciting others to commit a breach of the peace; but may also be regarded in a much more serious light – namely, as an attempt to commit or provoke others to commit a felony, – and even wilful murder. In the present case, a challenge had been sent and accepted: those who had done so, met, and fired deliberately at each other with deadly weapons, at only a few paces distance – they fired twice; the first time innocuously; the second time, one of them was wounded. Every single step was here highly criminal; the earlier ones as misdemeanours, the later ones as felonies; the last indeed a capital felony, for which, beyond all question, the life of Lord Cardigan had become forfeited to the outraged law of the land. This we will shortly show, for the consolation of all future duellists. By the common law of the land, no personal violence, unattended by death, amounted to more than a misdemeanour. In the year 1722, was passed "the Black Act,"48 which, amongst various enactments levelled at the class of offenders who caused the passing of the statute, contains this brief general one. "If any person shall wilfully and maliciously shoot at any person, in any dwelling-house, or other place, he shall be adjudged guilty of felony, and suffer death." This was the first statute which made the mere act of shooting wilfully and maliciously at another – without reference to the result – felony. Subsequent statutes, respectively known as Lord Ellenborough's and Lord Lansdowne's Acts, made it a capital offence to shoot at another with intent to murder, or do grievous bodily harm, provided the death which might be occasioned would amount to murder. Though the matter had never become the subject of judicial decision, it had been suggested by a late eminent writer on the criminal law,49 that, where an ineffectual interchange of shots took place in a duel, both parties might be deemed guilty of the offence of maliciously shooting, within one of these acts, passed in the year 1803, (43 Geo. III. c. 58,) and the seconds also, as principals in the second degree. In the year 1837, however, was passed the Statute of the 1st Victoria, c. 85, which we advise every intending duellist to consult very deliberately, before committing himself to its meshes. It enacts first, (§ 2,) that "whoever shall wound any person, or by any means whatsoever cause to any person any bodily injury dangerous to life, with intent to commit murder, shall be guilty of felony, and suffer death." Again, secondly, (by § 3,) "whosoever shall shoot at any person, or, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, with intent to commit the crime of murder, shall, although no bodily injury be inflicted, be guilty of FELONY, and liable to be transported for life, or for any term not less than fifteen years, or imprisoned for any term not exceeding three years, at the discretion of the court." Lastly, thirdly, (by § 4,) "Whoever shall maliciously shoot at any person, or, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or wound any person, with intent to maim, disfigure, or disable, or to do some other grievous bodily harm to such person, shall be guilty of felony, and liable to the same punishment contained in the previous section."