Page:Notes and Queries - Series 12 - Volume 8.djvu/519

 12 S.VIII. MAY 28, 1921.] NOTES AND QUERIES. 425 that convictions took place ; but the law was not ,the less clear on that account. He should be obliged to lay down principles which would be new to many who heard him. The laws of England differed from those which actuated j men of honour. He was aware that the practice had been sanctioned by the example of some of the most illustrious characters, and had received support from an eminent moralist, Dr. Johnson, who argued that, as it was consistent with the law of nature and society to defend our lives, and even pur property, by taking the life of those who assailed them our character being more valuable than pur property, or even life itself it followed that it was equally justifiable to defend that character, even at the expense of the life of the assailants. This was the doctrine, and he ! deeply deplored the condition of those who were | in such a state of society as to compel them to do | so, or to consent to be expatriated. It was true that persons who do put up with such insults as Captain Budkin had received were looked upon by their brother-officers with that contempt which requires a larger share of passive courage than men commonly possess to endure. That tyrant, false honour, was one of the most san- guinary that ever existed. At its altar had been j sacrificed more lives than had, perhaps, been im- : molated at the altars of all the heathen deities. | With regard to murder, it was essential that j malice should enter into it ; but malice was the dictate of bad dispositions. It was not that feeling which is called hatred ; nor is it envy. Envy, hatred, and malice are three distinct pas- j sions. In this case there might be nothing of hatred, nor even malice, according to its legal definition, as being " the dictate of a wicked, de- praved, and malignant heart." It frequently happens that persons go out without the feelings just described, but victims of that tyrant, custom, are goaded to do that which is opposed to reason, conscience, and revelation. In these instances it was hardly possible to say that malice, either in the common acceptance of the term, or even in the sense in which it is generally understood by lawyers, entered into the act yet by all the highest authorities in the law it is held that if two persons fight in cold blood, or after there has been sufficient time to cool, and one be slain, this is murder in the party killing and in his second. But his Lordship felt warranted in saying that the jury may acquit the second of the deceased. But the facts had been admitted now for the law. The law considers that persons may be guilty of crimes in different degrees. There were prin- cipals in the first degree, and there were principals in the second degree; and there were accessories before as well as accessories after the fact. In the present case the principal in the first degree was Captain Budkin ; and in the second degree, if guilty at all, was Dr. Strachan. The question then was, what is the degree of guilt involved ? The leading distinction between murder and man- slaughter is, that one arises from infirmity and the other from depravity. But the laws were indulgent to the infirmities of human nature in manslaughter a slight punishment was awarded ; in murder, the severest punishment which human laws could inflict. It was of importance to ascertain whether the act was done in the heat of passion or whether there was time to cooU If there was that time, it was impossible to reduce the crime below that of murder. The defendants had addressed themselves to the feelings, and had rested their defence upon what were termed the laws of honour ; but the law of England was as widely different from the law of honour as it was possible for two extremes to be. With r espect to the cooling time and the nature of the provocation, it was of importance to consider whether Captain Budkin proceeded to the ground in that state of mind which rendered him incapable of acting as he ought to have done for they must dismiss the usages of the army, and take the'law to be that deliberate duelling is murder. If there was sufficient time allowed for the passion to cool, the jury must bring in a verdict of murder. If the case had been tried by those rules which govern military gentlemen, it should seem that Captain Budkin must have been acquitted. Looking at his moral character under their rules of honour it was entitled to approbation ; but his Lordship was bound to look at the law. This was one of those distressing cases which grew out of the artificial state of society which most of us had had frequent occasion to witness and lament. That the conduct of the deceased was of the grossest nature there could be no doubt ; he therefore was most to blame. But notwithstanding the dreadful consequences of declining to resent Mr. Philpot's conduct, yet his Lordship was bound to say that the law does not tolerate duelling. Looking to the facts, they were awful. His Lord- ship adverted to the circumstance that the quarrel occurred at night, and the meeting did not take place until next day. It seems that before the meeting Captain Budkin should have reflected. He went to the field not influenced by passion but by custom. It clearly appeared that Captain Budkin's conduct hi the field was very different from that of the deceased. It would also appear that he believed he was only going through a formal ordeal, and that from the subsequent conduct of his antagonist he was provoked to take more deliberate aim. If the jury believed that the parties were in such a state of mind as would render human beings justly responsible for their conduct at the time of their being on the ground, they ought to return a verdict of murder against Budkin and Strachan. It was not for the Court or the jury to depart from the law, from considerations for the prisoners, but to look to its effects upon the state of society. His Lordship then recapitulated the evidence and commented upon it as he went along. The jury then retired, and in about an hour returned, when the foreman informed the Court that the jury could not agree upon a general verdict, but upon a special one, subject to the law as laid down by the Court. The Court said they were certainly at liberty to give in a special verdict upon the principles set forth ; but that care must be taken in wording such verdict, to enable the Court to proceed upon principles of law. When the special verdict was brought in, it appeared that the jury had acquitted the prisoners of everything like malicious intention ; when the Court observed that they had acquitted the prisoners of that which constituted the essence of murder ; but it was of opinion that such a special verdict could not, agreeably to law, be recorded that the jurors must reconsider, and