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London, England, 1846-07-17 00:00:00

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7, 1846.

PRICE SD.

Witness then had a consultation with Mr. Jenkins and Dr.
Stewart every day. The state of the tumour certainly ren-
dered an operation necessary. Without one the life of the
patient would have been in decided danger. Mr. Liston came
down and performed an operation in witness's presence, on
Saturday evening, the 31st, at ten o'clock. The operation
was tying the iliac artery. In witness's opinion no other
operation offered the same chances of success. Mr. Seton
was a little exhausted after the operation, but the operation
was perfectly successful, and the pulsation entirely ceased.
Mr. Seton died on the Monday. Witness was present at the
post mortem examination, and saw that the course of the
wound was superficial on the muscles of the belly, and then
divided a branch of the iliac artery. In witness's judgment
peritoneal inflammation was the immediate cause of death.
The gun -shot wound was a dangerous one.
Cross-examined by Mr. CocKnuns—The peritoneal in-
flammation
subsequent to the operation was, in wi,ness's
judgment, the immediate cause of death; but if no operation
had been performed, it was a matter of opinion whether the
wound itself would have caused death. if it bad, it would
have been death in a different form—from hemorrhage, and
not from peritoneal inflammation.
Dr. Stewart, surgeon, was examined—From the first mo-
ment he saw Mr. Seton, he considered him in imminent
danger, and communicated that fact to his friends. The
witness also described the nature and course of the wound,
and generally confirmed the preceding medical tes-
timony. Oa the Sunday morning after the operation Mr.
Seton was much worse, and witness communicated his danger
to him. The witness proceeded to say, Mr. Seton repeatedly
inquired my opinion, but I evaded the question as much as
I could ; but he said, " I sin not afraid to die," This was
towards Monday morning. He said, " I am most thankful
to you and the medical men who have attended me. lam
aware of 'your opinion. Do you think there is the least
chance?" 'I
told him there was not the least hope—none in
the world. He repeated to me a conversation he had had
with Inc during the night. He said, " I repeat to you, as I
did before, I know not why lam shot." He wept bitterly.
He had previously received the sacrament. He had seen
his lawyer paid ulna,. La-viii uu tale balm-Litz) UAW illu6 plc-
ViOUS to the operation. He appeared to believe what I said,
that there wits nci•hope for him. This was between six and
seven o'clock on Monday morning.
By Mr. COCKBURN— I sat up with him all night. It was during
the night that he asked me if there was any hope. It was
on the second time he asked me that I told him there was
was not the least hope. He did not afterwards repeat the
question. He died about seven o'clock on the evening of the
Monday. I was with him repeatedly in the course
of Monday. He asked me in the course of the
day how I thought him. I told him I thought worse. This
was about two o'clock. He did not say be was better and
felt free from pain. The statements he made to me followed
immediately on my tolling him that there was no hope.
His question to me in the course of the day did not imply
that he had the faintest hope.
By Mr. RAWLINSON—IIe said that had the duel taken
place at six paces, Lieut. Hawkey would have beenlplaced in
his position and he in Mr. Hawkey's. He said he was per-
fectly innocent. He said, " I know not why I have been
shot if I were to die this moment." There was very little
conversation after that. With respect to the pistol, lie said
he saw Lieutenant Hawkey present his pistol which did not
go off, and he saw him a second time present his pistol, which,
did go off, and the ball from which passed through his (Mr.
Seton's) body. He said," I fired myself on both occasions."
I asked him if he was sure it was Hawkey who fired the
pistol? anti he said, " I have no doubt of it."
By Mr. Sergeant KINGLAKF,--There were two causes of
death, primary and secondary. The first, the ball which
passed through his body; the second, the inflammation of the
peritoneum. If the operation had not taken place, death
would have ensued from hemorrhage.
By Mr. RAWLINSON—The operation was a tremendous one.
The deceased was so stout that it was necessary to cut to a
great depth to reach the artery.
Dr. Allen, a surgeon of Haslar Hospital, was called by the
prosecution, and cross-examined by Mr„ COCKBURN—He
stated that in his opinion the immediate cause of death was;
peritoneal inflammation, brought on by the operation.
By Mr. M. SAUTII—The ball wounded a small artery,
which was dangerous to life; it was a branch of the femoral
artery.
By Mr. Cocxnunsr—The artery taken up was the external
iliac artery.
By the JUDGE—By tying that artery the circulation was
cut off from this tumour. In my opinion the proper artery
was taken up.
This closed the case for the prosecution.
Mr. COCKBURN then submitted that upon the evidence in
this case the offence of murder, according to the English law,
was not made out. It appeared that a wound was inflicted,
in consequence of which an operation was thought necessary ;
and that, from the results of that operation, the person
wounded died. No decisions, or any distinct authorities,
were to be found in which this had been held to be murder.
The question is alluded to in 1 Russ. on Crimes, 505, but the
cases there cited were instances of the death being occa-
sioned by the physical consequences of the wound, though
somewhat remote. , In the Scotch law cases had occurred
analogous to the present, and there it was held not to be
murder. He cited Alison's Principles of Criminal Law in
Scotland, p. 145.
Baron PLATT on being informed that Mr. Justice Erle
had reserved the point upon the trial of Mr. Pym, said
that he would also reserve it, although he agreed with -Mr.
Justice Erle.

Mr. COCKBURN then objected that the cause of death
was not rightly described, as being by " the wound " by a
pistol bullet.

His Lordship also expressed his opinion to be against
the objection, but he said that as Mr. Justice Erle had
o❑ a former occasion reserved the point, he should do the
same.

Mr. CocteamiN then rose and addressed the jury on behalf
of the prisoner in a most eloquent and stirring speech, which
lasted two hours, and of which we can give
.only a brief
outline. He recapitulated the circumstances, already fami-
liar to the public, which occurred prior to the fatal encounter,
and dwelt with much earnestness and energy upon the deep
provocation Lieutenant Hawkey had received in the base at-
tempt upon the chastity cf his wife made by Mr. Seton. lie
commented with great force upon the evidence for the prose-
cution, contending that as it stood before the jury it demon-
strated both the provocation the prisoner had received, and
the absence of vindictiveness on his part. With respect to
the long absence of Lieutenant Hawkey from his regiment
since the fatal occurrence, it bad not been the result of his
own free will, but under the constraint, as it were, of those
who conducted his defence. A strong popular feeling had
been excited at the time of the fatal occurrence, and it had
been thought right to allow time for that feeling to subside
before the prisoner should be put upon his trial ; and, moreover,
it was only an act of justice to Mr. Pym, the old friend of Mr.
Hawkey, that his trial should take place under the most
favourable circumstances, and if Mr. Pym and Mr. Hawkey
had been tried at the same time, Mrs. Hawkey being the
wife of one of the prisoners, Mr. Pym could not have had the
benefit of her evidence. That was the reason the trial of
Mr. Hawkey had been dEferred, but he had this day sur-
rendered to take his trial of his own free will and unre-
strained choice. Mr. Hawkey, however, was not tried under
circumstances so advantageous as Mr. Pym, for by the law
he could not have the benefit of the evidence of his wife, who
could have detailed all the circumstances of provocation.
The Learned Counsel, in commenting upon the evidence, re-
presented the great danger that would ensue if juries were
to allow detached fragments of conversation, which had been
accidentally overheard, to bias their minds against a pri-
soner on trial for his life. He showed that no vindictivene=s
could be inferred from the practice in the shooting-gallery,
inasmuch as there had keen, in yact, no practice at all, only
three shots having been fired, just sufficient to try the
pistols. The evidence also showed that both Pm and
Hawkey were ignorant of the practice of duelling, for the
former was obliged even to observe how the pistol was loaded
by the man in attendance in the gallery. Ile called the at-
tention of the jury to the facts, that Seton was the challenger,
after the deadly injury he had attempted to inflict upon the
honour and peace of the prisoner; that at the meeting
Ilawkev's pistol missed fire once, that in that position it was
impossible for him to propose an accommodation, while it
was quite in Seton's power, as the challenger, to have done
so, but lie persisted, and he consequently tired twice, while
Mr. Hawkey had only fired once. The Learned Counsel
then made some general observations on duelling, and the
law relating to it, the substance of which has already ap-
peared in the report of his speech on the trial of Mr. Pym,
and urged upon the jury not to inflict the last penalties of
the law upon a man who had met his antagonist in fair and
equal combat, and class him in the same category with the
secret and cowardly assassin. He challenged the production
of a case where a jury had convicted of wilful murder a man
who had met his adversary in fair fight. He then contended
that no reliance was to be placed upon the last statement of
Mr. Seton, and beyond that there was no strict legal evi-
dence, such as the jury had a right to demand in such a case,
that the hand of Mr. Hawkey caused the death of Mr.
Seton. The Learned Counsel then argued that the cause of
death was not properly set forth in the indictment, inasmuch
as it was described as accruing from a leaden bullet, whereas
it was proved by the medical witnesses to have accrued
from peritoneal inflammation, resulting from the surgical
operation.
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Mr. COCKBURN 'laving concluded his most eloquent ad-
dress, called Colonel Swaile, Colonel Gordon, Colonel Ste-
phens, and a great many officers of the Marine corps and
other gentlemen, who gave the prisoner the highest cha-
racter as an officer and a gentleman, and as a person of a
very peaceable and kind disposition.
Mr. Baron Pi. Arr then proceeded to sum up the case to
the jury, and laid the law down to them to be, that..it two
persons go out to fight a duel after previous quarrel, and
.one
kill the other, all persons, whether principals or seconds, are
guilty of murder. If, therefore, they thought that the evi-
dence in this case made out to their satisfact..on that Mr.
Hawkey had shot Mr. Seton in a duel, it would be their
bounden duty to find him guilty on the present indictment.
He then went minutely through the evidence, commenting
upon it as he went on ; and concluded by telling them, that
whatever they might think the provocation had been to the
prisoner by the conduct of Mr. Seton to his (the prisoner's)
wife, and however they might commisserate the wounded
feelings of the husband, yet they must not allow that feeling
to prevent them doing their duty; and if, therefore, they
thought the charge was made out in evidence against the
prisoner, they were bound to convict him.
At the conclusion of the Learned Baron's address, the jury,
without the hesitation of a single instant—almost, it might
be said, without the formality of consulting together—re-
turned a verdict of Not Guilty.
The announcement was received with a vehement burst
of approbation, which the officers of the court strove in vain
to repress. The Learned Judge commanded silence, and was
compelled to order one of the most prominent and noisy of
the crowd into custody. The culprit, however, managed to
abscond ; and, in truth, nobody seemed disposed to make
very violent efforts for his apprehension.
Lieutenant Hawkey, immediately on his liberation, was
surrounded by friends and brother officers, offering him their
hearty congratulations; and upon his exit from the court he
was loudly cheered by the people.
Mr. Baron Platt was also saluted with hearty huzzas as
his carriage passed through the streets of the fine old city of
Winchester.

NORTHERN CIRCUIT.—York, July 15.
CIVIL SlDE.—(Before Mr. Justice WIGHTMAN.)
DYSON V. QUARMLEY.

Mr. Baines and Mr. Hugh hill were counsel for the plain-
tiff, and Mr. Knowles and Mr. Noggins for the defendant.
This was an action on the case, brought to recover compen-
sation for certain slanderous words uttered by the defendant,
concerning the plaintiff. It appeared that the plaintiff, Mr.
Eli Dyson, is a manufacturer, residing near Huddersfield, and
the defendant a clothier and farmer, living in the same neigh-
bourhood. The expressions complained of had been used by

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