14 MARCH 1846, Page 13


to the Lieutenant Hawkey who shot Mr. Seton at Gosport, has been tried ; and has been acquitted, in the teeth of the facts, the evidence, and the Judge's charge to the Jury. People are outraged at the " stupidity " of the Jury, and at the monstrous incompetency of jurymen in general. But were these Jurymen so very absurd ?

Mrs. Hawkey was insulted by Mr. Seton her husband re- sented it; a challenge followed; Mr. Seton was shot, and wounded; the medical treatment seemed at first successful, but an arterial aneurism appeared in the wound, an operation was performed, and the patient died. He must have died of the aneurism, if that had been neglected ; but probably the immediate cause of death was the irritating effect of the operation. In these facts counsel for the defence detected a point on which, by a process of refine- ment, to raise a technical doubt—Could Mr. Seton be said to die of the wound, or of the operation; and if of the operation, who killed him, the challenger or the surgeon ? Furthermore, it was represented to the Jury, that Mr. Hawkey, the principal in the duel, sustained great provocation. Mr. Justice Erie told the Jury that they must not consider provocation as exonerating an accomplice in murder." And it is evident, that to all intents and purposes, by whatever intermediate process the symptoms might have been developed, Mr. Seton died by the act of Mr. Hawkey ; for no excessive refinements as to the possibility of avoiding the operation can disguise the simple fact. If the sur- geons had been altogether out of the way, the sufferer must have died. He had the best surgical attendance : surgical skill is not infallible; and, granting that error lurked in the advice given to Mr. Seton' the feet of his having that advice, diminished, not increased, the chances of his death. Practically, in the ordinary language of common sense Mr. Pym was an accomplice in the fatal act, and technically that act was murder : yet the Jury re- turned a verdict of "Not guilty." You say, the verdict is preposterous, and those who gave it must be dullards. But, again we ask, is that so sure? It is very easy for you, reading the newspaper, to say that the facts were plain, that the acts alleged were proved, that the explanation of the law was clear, and that the sole logical conclusion was a con- viction for murder; it is quite competent to you to remind us that in law duelling is murder, and that the Jury were expressly instructed not to meddle with the subject of provocation : all that is easy to you, because no immediate result follows your confi- dent assertion and contemptuous chuckle. But suppose that, in- stead of being a mere newspaper reader, you had been set down in a court with eleven other men sworn to examine minutely into all the facts; suppose that you heard the ablest professional controversy, medical as well as legal, on the complicated history of the wound—that you perceive, on close scrutiny, distinctions which escaped in the free broad view of a mere unconcerned spectator—doubts as to the perfect certainty whether the fatal access of disease which terminated in the article of death was the direct consequence of the shot or of the knife. Nay, more : the Judge tells you that death inflicted by duel is murder ; but you know better—you know that the two phrases of language mean things very different. You know too that the Jury are to judge of the law as well as of the fact. You know that in this particular instance professional and fashionable etiquettes almost com- pelled Mr. Hawkey to give the challenge as he did. And suppose that, knowing all these things, you reflect that you are respon- sible for a most awful decision—that on your judgment, right or wrong, hangs the life of a fellow creature. You are full of doubts—as to the facts, for all the witnesses speak so confidently— as to the law, for all Mr. Justice Erle is so infallible. Society has not made up its mind about duelling ; then how can the law be settled on the point? Parliament-made, and judge-made law is very peremptory in its mandates, but very inconsistent, quite capricious, in its assertion of principles. And now you, an erring mortal, oppressed with a sense of doubts all round, with- out and within, are called upon to utter, in one single word, an irrevocable decree of death. You are certain only of one thing— that the word " Guilty" means that you, thus doubting, pro- nounce that irrevocable decree of death; or that, saying "Not guilty," you may make a mistake, but at all events not at the cost of blood. Are you now prepared to pronounce your judg- ment as promptly and gaily as when you sat reading the news- paper, passing censures on the stupid Jury ? No; you confess that the difference of position makes the same man quite a dif- ferent being. We come back to the old story : it is because the law is so im- perfect in its processes, so arbitrary in its conclusions, that jury- men fly from an oppressive and undue sense of responsibility by refinements and evasions ; making one imperfection of the law compensate another. Let erring law no longer require mortal man to utter irrevocable decrees, the proper function only of un- erring omniscience, and juries would no longer be terrified at the contemplation of their own act. They would be content to fill up the round of doubts, and to utter the expected decree, even though it should involve an error. Improve the code of criminal dis- cipline; make it milder, more apposite to its purpose, more suitable to the humble insight of human nature ; and the dozens of men taken from society would administer the law with more confidence and consistency.