The Sun.
London, England, 1837-06-30 00:00:00

COURT OF CASSATION.

(Sitting of June 22.—M. de Portalis, President.)
DUELLING.—An important question, namely, whether
duelling is permitted under the present laws, came on for
discussion this morning in the above Court. It was pre-
viously known that M. Dupin, Procureur-General, arid
President of the Chamber of Deputies, was to deliver
his opinion on this subject, consequently the different parts
of the Court appropriated to the bar as well as to the public
were crowded at an early hour.
Shortly after the President had entered the Court, at
half-past 11.
M. DEHAUSSY, the Counsel appointed to draw up a re•
port of the circumstances which led to this inquiry, ad-
dressed the Court, and submitted the following facts for its
consideration :

On the 29th of January last, two gentlemen—the one
M. Baron, a solicitor, and the other M. Pesson, a Deputy
Solicitor at the Chamber of Commerce—happened to be
supping at two separate tables at a cafe in the City of
Tours. In consequence of some words over-heard by
the one, and supposed to have been meant as an insult
to himself, a quarrel arose, the result of which was,
that M. Pesson, the Deputy Solicitor, received a box
on the cheek from the Solicitor, M. Baron, who ima-
gined himself the object of the sarcasms of the former.
A challenge was forthwith given and accepted, and on
the following morning the two adversaries met on the
ground fixed on the previous evening. To M. Pesson, as
the offended party, belonged the right of choosing the arms :
he decided in favour of swords ; his adversary, however,
having declared his total inability to use this weapon, having
never handled one, M. Pesson agreed to fight with pistols.
It was then agreed to send for pistols, which were soon pro-
cured, but on their being brought M. Baron said he should
prefer the sword, as with that instrument he should at least
have a chance of protecting his life.
One of the swords was longer than the other, and, upon
drawing lots, the former was declared to belong to M.
Baron. After an useless effort at reconciliation on the part
of the seconds, the combatants took their stand, and after a
few minutes' fighting M. Baron fell mortally wounded.
The fatal blade penetrated to the extent of several inches
through his right breast. At the expiration of a few seconds
he ceased to exist. M. Pesson, his antagonist, was also
wounded, but slightly, in the shoulder.
Proceedings were commenced by the legal authorities
against the author of this deplorable event ; but a decree of
the Council Chamber of the Tribunal of Tours, followed by
a decree of the Royal Court of Orleans, declared that there
were no grounds for prosecuting M. Pesson, inasmuch as
the Penal Code was silent on the subject, and consequently
the fact imputed could not be legally considered as a :crime
or an offence.

The Attorney-General of the Royal Court of Orleans ap-
pealed against the above decree ; Ist, upon tile ground of
an erroneous application of article 364 of the code of crimi-
nal proceedings ; and 2d, on that of a violation and false in-
terpretation o. articles 295, 296, and 302, of the Criminal
Code.

At ti!e conelu.ion of the licTort,
The President, addressing the bar, inquired if any coun-
sel was rad' ned in this case, and on roeckin7 no answer,
infora.c.l M. Unpin, the Proeureur-General, that it then
devolved on him to :address the Court.

M. Dupin then rare and spoke as follows Gentle-
men—The question relative to duels is one which Las ex-
cited anti still excites, nest anxious and general attention.
As yet of Lions are divided upon thi.; subject, which has
been differently viewed according to the varying- forms of
jerisprudence, the change of times, want: s, ideas, and the
several degrees of civilization. By some it has been consi-
&red as a sort of palladium, a safeguard of their honour
ond Co: tame ; but by others it ices regarded in quite a dif-
ferent light, and stiginntized as tin bra:it:le pr.judiee and a
remnaet of barbarous ages. Tiles various opinions have
passed from nee to age, have oceupied the attention of
tie most conseientioes and profound lawyers who espoused
different sides of the question. It must, however, be ad-
mitted, thit the wises, amongst the number always con-
tended that ilueEing eas in itself a culpable act, a real
erimit, and co;ht as south to be stamped with the .broad
letters of the Petoil Code." The learned I'n-tett:cur-
Gerterui havie; vont:I:Ilea the above exordium, oltservud,
hat althon:li 1 eo! authorities and cases of jori,pru-
dehee Of late years seemed opposed to his opinion, he
shoal:! (with fall confidence in the independent spirit of
the Court) role tvcur to prove that duels followed by iffir
sion of bided came within the application of articles 2L5,
29fi, U 2, 30=', and 811 of the Penal Code, which de-
crees punLhment more or less severe in cases in which
blows or wounds pave been intentionally hiflicted, or volun-
tary homicide committed. The learned magistrate then
drew the attention of the Court to the ancient legislation
on this head ; lie showed that in the feudal times the sa-
tisfactioa afforded to the offended party by duelling could
only be claimed by persons of noble Mirth, and whese con-
duct in such cases was not altogether screened ficm all
lege' observation, hot, might be submitted to a tribunal spe-
cially appointed for this purpose ; that a plebeian (villain)
who Inn! the insolence to challenge a nobleman was almost
sure to meet with an itidignant refusal from his adversary,
and if fortunate enough to find a champion who consented
to measure a s:vord with his, he was subsequently prose-
noted and Lanced for his contempt of nobility. The Re-
voletien of I 789 abolished nobility, and with it the special
enactments upon duelling ; the community then parted un-
der the du:ninion of the common law which is the law or
right of villains. The Procureur-General next took a view
of Coe legislation of 1791, of the code of the third Bru-
maire, year Four, and of the penal code of 1810 ; he
maintaitied that es the general terms of those enactments
specified pur.iebriwnt in cases of murder, or of wounds vo-
luntorily ibllicted, the same provisions ought to apply to
duelling followed by similar effects. After some observa-
tions in opposition to the decrees of the Court of Cessation,
pronounced in April 1819, and December, 1824, M. Un-
pin concluded his address by calling on the Court to annul
the decree issued in the present case.
The Court, after a deliberation which lasted nearly two
hours, came to a decision which completely alters its juris-
prudence in this point, and adopting the arguments urged
by the Learned Procureur-General pronounced tile follow-
ing decree :

"Taking into consideration articles 295, 296,297,302,309,
310, and 328, of the Penal Code, as well as the fact that
the special legislation upon duels had been abolished by the
laws of the Constituent Assembly, it cannot be inferred
that this abolition made a tacit exception in favour of mur-
der committed, and wounds and wilful injuries inflicted, by
duelling.
‘. That according to the code of crimes and offences of
1791, those particular kinds of murders, wounds, blows, &c.,
remained under the power of the common law ; that the
decree of the Order of the day of the 29th Messidor, Year
2, only referred to the military code, and only related to
mere provocations of soldiers addressed to their superior
officers.

" That the code of the third Brumaire, Year 4, was drawn
up, with the same view as that of 1791.
" As much as the provisions of articles 295 and 296 of
the Penal Code are absolute and without exception, that
persons guilty of crimes specified therein should be prose-
cuted in every instance ; that if in cases laid down by arti-
cles 327, 328, and 329, of the same code, the council cham-
bers and the chambers of accusation were at liberty to de-
clare that homicide, wounds, and blows, did not constitute a
crime of offence, because they were authorized by actual
and lawful necessity of self-defence, or that of others, it
could not be admitted that homicide committed, wounds
and blows inflicted, in a single combat, the fatal result of a
previous agreement between two individuals, were autho-
rized by absolute necessity and lawful self-defence, for in
this case the danger was entirely voluntary, the defence
without necessity, and the danger avoidable without combat.
" Considering that if no legislative enactment made a
crime of duelling, properly so called, and the circumstances
which led to or accompanied this act of homicide, no legal
provision included these circumstances in the number of
those which render murder, wounds, and blows justifiable.
" That it is an inviolable maxim of our public legislation,
that no one can take the levy into his own hands, that justice
is a debt of the whole body of society, and that all justice
emanates from the King, in whose name this debt is paid.
(Art. 48 of the Charter.)
" That it is another equally sacred maxim of our public
law, that any agreement contrary to good conduct, contra
bonos mores, and to public order, was null and void, and
consequently ought not to paralyse the hand of justice, or
suspend the course of public chastisement, by excusing a
crime against morality and natural rights.
" Considering that an agreement to fight a duel, entered
into by two persons who assume the right of setting aside
the laws, and of disposing of their own lives, thus doubly
usurping the rights of society, comes precisely within the
description of an agreement or convention, contra bonus »IG-•
res, and contrary to public order ;
" If, however, notwithstanding the silence of the law and
the radical fault of such an agreement, it could be compared
to a legal excuse, it could only be appreciated in a court of
justice, and decided by a jury.
'• That it results from the above, that whenever a murder
has been committed, wounds or blows inflicted, the judges
called on to examine into the facts are not required to as-
certain whether such murder, wounds, Sze., were the result
of a single combat arranged between the parties, and dis-
miss the case upon this proof, consequently that they can-
not (without usurping the power of juries, especially under
the authority of the law of April 28, 1832) decide in such
a case, which'must be submitted, even upon ground of pal-
liation, to the dictum of a jury.
" And as, according to article 1:•6 of the Charter, no
cl.ange can be effected in the institution of juries, except by
an express law, the law courts cannot take upon tlamselves
to pronounce in the above cases without infringing the
rights and privileges of juries.

" It, therefore, appearing from the above decree that the
individual named Pesson engaged in :a duel, and caused the
death of a person named Baron, that notwithstanding the
proof of the fact, the Chamber of Accusation of the Royal
Couit of Orleans declared that there were no grounds for a
prosecution in the absence of any special penal law against
duelling, that the judgment so pronounced was an express
violation of the articles 295, 296, 297, and 302, of the
said Penal Code.

" Upon the above ground the Court annuls that decree,
and refers the case to the Royal Court of Bourges:"
The responsible editor of the Europe has been cited to
appear on Saturday next before the Assize Court, to answer
for an article relative to the fatal accident in the Champ de
Mars. M. Plough°lm, Advocate-General, will support
the accusation on behalf of the Crown.—Courrier Francais.

IMPERIAL PARLIAMENT.

HOUSE OF COMMONS, Jrra 29.

The SPEAKER took the Chair at the usual hour.
Mr. Campbell, from the East India House, presented
returns which were laid on the table.
LONDON AND BRIGHTON RAILWAY.

Lord G. LENNOX brought up the Report of the Com-
mittee on the London and Brighton (Rennin's) Railway
Bill, and moved that the Report be taken into further con-
sideration to-morrow.---Agreed to.
Captain PECHELL gave notice that to-morrow he
would present a petition from 80,000 inhabitants of Brigh-
ton, in favour of that line.
LONDON AND SOUTHAMPTON RAILWAY.
On the motion of Mr. SHAW LEFEVRE, the
Lords' amendments to the London and Southampton Rail-
way Bill were agreed to.
NEWCASTLE ON TYNE IMPROVEMENT.
Mr. ORD moved that the Lords' Amendments to the
Newcastle on Tvne Improvement Bill be agreed to.

Mr. HODGSON II INDE said the House was not
aware of the nature of the amendments that had been made.
The SPEAKER said the amendments were of a very
important nature, and it would be desirable that some
plan should be devised for putting the House in possession
of the amendments made by the House of Lords. In one
case no loss than 17 clauses had been added to a Bill in
the other House.

Mr. HUME thought the amendments ought to be
printed.
The SPEAKER said the best plan would be to refer
these amendments to a Committee. The amendments
were then agreed to.