Limerick General Advertiser

7 September1810


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. 

© Nick Reddan 2006

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