DUELLING.
—
Sir William SMITH's Charge,
(in continuation from our last.)
Sir William proceeded— His (DREW's) conduct might
be guided by a false punctilio of honour, but it hurried
on the fatal meeting, and shewed inflexibility of mind,
fatal in its consequences to himself. But all that Mr.
O'BREIN said to Mr. POLLOCK marked his conduct as
mild, peaceable, and divested of rancorous resentent
and perservering obstinacy. He offered, and it appeared
he was ready to submit to any conditiond Mr. POLLOCK
would prescribe. From these facts the presumption
was that the disposition of Mr. O'BRIEN, was conciliating
and that an accommodation would have taken
place, if Mr. O'BRIEN had not been hurried into the
commission of the offence he committed. That the
deceased had been killed in a duel was without doubt
—but whether the circumstances which provoked the
homicide constituted the crime of murder, or the lessor
offence of manslaughter, was the point to be secided,
and this would depend upon the law resulting
from a consideration of the facts. How stands the
law? Two persons have a difference, which they resolve
to decide by fighting; they go out deliberately, and
one of them falls—This is malicious and wilful murder,
not only in the principals, but in the seconds, and every
other person present, aiding, and abetting. Deliberate
duelling, if death ensue, is wilful murder—for duels are
generally founded on unforgiving resentment or implacable
revenge; and though a person should be drwn
into a duel, not upon a motive so criminal, but merely
on the punctillo of what is falsly called honour, that
will not be an excuse for the person who deliberatley
seeks to shed the blood of another, upon a private quarrel;
whatever motive may stimulate such a person to
such a crime, he acts in defiance of a;; law, human and
divine, and his offence is murder. But the law also
says, that if, upon a sudden quarrel, the parties fight
upon thw spot of if they presently fetch their weapons,
or go into the field and fight, and one of them falls by
the hand of the other, the homicide will be no more
than manslaughter, because a presumption arises that
the blood never cooled.
But if in heat of blood, arising from irritating circumstances,
from repitition of insults, a duel takes
place, and homicide ensue, the law does not impute to
the survivor wilful murder, such circumstances are a
mitigation of the crime into the offence of manslaughter
— and here it may be presumed, that if the prisoners
had not been hurried on, if time for consideration had
been given, the illegal contract to fight a duel might
have been annulled—but further, if the jury entertain
a doubt upon the question of cool and deliberate malice,
they are bound in conscience, as well as law, to accquit
the prisoners of murder, and to convict them of
manslaughter.
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