J. G. Millingen

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ Sir Michael Foster, in his Discourse on Homicide, says:—‘Upon this principle, deliberate duelling, if death ensues, is, in the eye of the law, murder; because duels are generally founded on a feeling of revenge: and though a person should be drawn into a duel upon a motive not so criminal, but merely upon the punctilio of what the swordsmen call honour, that is no excuse; for those who deliberately seek the blood of another, act in defiance of all laws, human and divine. ”

“ It was proved that his sword had been broken. Howbeit, little doubt could exist as to the culpability of Lord Mohun, in having coolly and deliberately planned the act of violence against Mrs. Bracegirdle, with a determination to rid themselves of her supposed paramour any how; and we cannot but marvel at his peers allowing him to escape unpunished. It was the baseness and profligacy of this man that confirmed the general belief that the Duke of Hamilton had been foully murdered by M’Carthy, Mohun’s second and friend, no doubt as worthy as his former companion Hall. ”

“ 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? ”

“ No man has a right, whether in public or in private, by speech, or in writing, or in print, to insult another, by attributing to him motives for his conduct, public or private, which disgrace or criminate him. If a gentleman commits such an act indiscreetly, in the heat of debate, or in a moment of party violence, he is always ready to make reparation to him whom he may thus have injured. ”

“ 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. ”

“ The right of private war has only been surrendered, because the individual is better protected by the arm of the law than by his own strength. Whenever there shall be instituted a supreme court, to act as arbiter among nations, public war will, for the same reason, fall into disuse, or will only be made for the purpose of chastising a refractory member of this great community, just as the police officers may be said to carry on war against the criminals whom they apprehend. ”

“ And if, in such circumstances, it is permissible, you place a man in a painful dilemma, if, when made by the libeller an outcast of society, exposed to daily insult, shrunk from by friends, and met with the blushes of relations, you deprive him of the only means of wiping away those stains, and vindicating his character to the world. The analogy of the law, the reason of the thing, and the feelings of all mankind are against you. In the short reign of Henry the Fourth of France, about four thousand persons were calculated to have fallen in single combat ”

“ 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 ”

“ Stephen; faithful to all his engagements with the world, but a traitor to his country; for, after all, what is the language of opposition, but a strenuous endeavour to impugn an adversary’s veracity, to show, that for mere lucre or the vanity of possessing power and patronage, he betrays the most sacred trust reposed in him by his sovereign; that he hurries his country to perdition for the selfish motive of personal aggrandisement, and sacrifices the national weal for his own benefit and that of his family and dependants? can there be any insult offered to a man more pungent, more degrading? ”

“ 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 ”

“ If a party killed another in a deliberate duel, he was guilty of murder. Whenever two persons, in cool blood, met and fought on a preceding quarrel, and one was killed, the law said the other was guilty of murder; and he could not help himself by alleging, that the other struck the first blow, or that it was his intent only to vindicate his reputation: he had engaged in an act highly unlawful, and must abide the consequences; and not only the principal, but all persons aiding and assisting, or knowingly present at any deliberate duel, would be liable to a charge of murder. ”

“ Much good would result from making it the duty of the coroner to hold an inquest after every duel, whether the consequences had been fatal or not. When a pistol is discharged, accident alone determines what shall be the consequence. The guilt of the shooter is just the same, whether the ball take effect or not. It is true the parties might, according to the law as it now exists, be prosecuted, and since Lord Ellenborough’s Act they are liable to be capitally convicted ”

“ By our old law, if a man was killed in a quarrel, or in a sudden affray, it was equally felonious.
Many jurisconsults endeavoured to bring slaying in a duel within the class of murder, contrary to the general rule, that death ensuing in a mutual combat is only manslaughter; because, they said, when parties went out deliberately to fight with deadly weapons, there was presumptive malice aforethought, omitting all notice of treachery; which, in an ordinary duel, decided upon by seconds, appears to be the only ground for presuming that felonious malice was contemplated. ”

“ 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 ”

“ 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. ”

“ A change had come over the public mind, and universal sorrow for his fate had taken place of the prejudices which inaccurate reports of the duel had produced. By a strange concurrence of circumstances, his own regiment mounted guard round the scaffold. A vast multitude occupied every spot from which a view of the place of execution could be obtained. The crowd displayed the unusual show of all the gentry from the neighbouring country, assembled in deep mourning. ”

“ Were these excesses noticed at the pistol’s muzzle, it would only be adding murder to corruption; and, as society is constituted, when an electioneering hustings may be oftentimes compared to a stall at Billinsgate, a candidate who seeks to vindicate what he is complacently pleased to call his honour, must indeed be a Quixotic character, when he in general conscientiously knows that every syllable of his address to the voters is void of veracity, and all his pledges futile and false. ”

“ 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 ”

“ 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 415opinion expressed by your Lordships, its brightest ornaments, must necessarily possess incalculable influence. ”

“ 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. ”

“ 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. ”

“ 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 416or 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.” ”

“ 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. ”

“ By that act it was enacted, that if any person should wilfully and maliciously shoot at any person in any dwelling-house or other place, he should be guilty of felony, without benefit of clergy, although no wound were inflicted: but it was determined upon that statute,—and in fairness to the noble prisoner it is my duty to remind your lordships of it,—that unless the case was one in which, if death had ensued, it would have amounted to murder, no offence was committed under the statute. ”

“ 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. ”

“ I can scarcely imagine that a person holding the station in society that you do, or that any man who ought, by profession and education, to be a gentleman, could have gone so gratuitously out of his way to traduce the character of any individual behind his back ”

“ 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? ”

“ Skill in fencing might be of considerable advantage to a good swordsman; but it is also a well-known fact, that a man who has science in fencing, can not only parry a thrust, but inflict a mortal wound on one less dexterous. Moreover, when what was called the first blood was drawn, however trifling the scratch, the seconds generally interposed. It may be therefore concluded, that as mankind is taught to think soberly, the danger of a duel may deter many from rashly running its chance. ”