The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1838-11-07


principal in the first degree was The man who
hired the shot and the principals in the Sc
cond degree, are those who, like prisosers at
the bar are present when the shot was fired,
and who, by their presence and countensnce,
aid, abct, and comfort, as the law describes II,
the principal in the first degree, in the ACT he
has committed. The jury. However, should
be aware TINT the mere presence of parties at
duel, did not therefore make them aiders and
abettors, for that would include all whose Gu
rlosity or other circumstances brought them
to the spot. Therefore, in order to convict
the prisoners, the jary must be satisfied that
they were not only present upon the occasion
IN question, bat that they did, by their pre-
sence, aid, abet, and comfort the parties to-
inc commission Of the offence charged against
Eliot. They were aware that when duel
took place, after suiiicient time had elapsed
for the blood to cool, and where deadly wea-
pons had been used, and that death ensued,
that the party who fred the deadly instrument
was guilty Of murder, and that the parties who
were aiding and abetting, were equally guilty
OF murder. II, however, death ensued in con-
sequence of collision, and when the parties
were in high blood and excited, tbs law in its
mercy declares, that the party who,was the
cause OF death under such circumstances was
guilty of manslaughter.
Such, then. being the state o. the law It
would be for the jury to say whether the pri-
soners were present at the duel in question,
and whether, by their presence, they counte-
nanced and comiorted the parties to the COM
mission OF the offence charged against the
principal in the present case. There were
some peculiarties which made il different
from others that had come under his notice.
One Of them was the number Of persons en-
gagged In it. he prisoners at the bar, although
present, were not called upon to oficiate as
seconds, for there were others present who
seemed to have acted in that capacity, for they
measured the ground, loaded the pistols and
gave the necessary signals; but the question
for the consideration Of the jury was not
whether the prisoners were seconds at the
time, for if the jury believed that they went
down with the parties engaged in the melan-
choly transaction to further il, then, although
they might not have acted as seconds, still
they would be guilty of aiding and abetting,
and liable to all the consequences of such
position. II, however, they had any doubt
that neither Of the prisoners were present on
the occasion, then they might give them the
was all matter peculiarly for their considera-
to them what the law m eant by the word .spre-
sence." 1t did not mean that the party I" aid
ing and abetting," should be at the elbow Of
the principal, but that he should be near
enough to give the principal assistance and
countenance in that which he was about to do.
Such, then, was the law affecting the case,
which he hoped he had fully explained to the
jury. The learned judge then proceeded to
revert to the facts as they appeared in evil
dence, and when he came to that part detail
ing the duel, he said that when the seconds
interfered they acted most properly, if their
intention was, as it seemed to be, to effect
reconciliation but when the deceased insisted
upon second shot they should have refused
to remain longer. In such cases the homer Of
the principals was placed in the hands Of the
seconds, and the former were mere machines,
put in motion by the latter, and when the latter
were satisfied so should be the former. A
tremendous responsibility rested with the Sc
conds, and he was astonished the seconds in
this case did not say, after endeavering 70
effect reconciliation, and verbal apology
was rendered, well, then, we will have
nothing more to do with the affair As to the
provocation which led to the duel there was a
total blank-there did not appear the least in
formation or explanation on that head
Mr.. Adoiphus here directed his lordship's
attention to the loading the pistols, and the
Misrepresentation that had been published.
MIR. Justice Faughan-Oh! yes, it is quite
necessary to 60 forth to the public that all was
fair in that respect. Each party had their
own brace ofpistols upon the toss for choice
Mr.. Eliot's pistols were first fred But in the
second Mr.. Mirfns were used, and it was
from one of his pistols that the shot was fired
which proved fatal. Again, Mr.. Scott, the
friend of the deceased, assisted in loading the
pistols As far as the evidence went, it had
been proved that the duel was fairly conduct
ed according to what was termed the rules of
honor: His lordship said lin reference to his
own Judicial situation) that the opinions Of the
man were often in painful conflict with the
judgment of the Judge. In this case the Jury
were not to strain inierences, but to draw fair
differences and fair conclusions. His lordship
having repeated the principal points, and COM
mented on the evidence, said that the question
for the jury to determine upon was, whether
MIR. Mirfin met his death by ball from pis-
tol fired by Eliot. Ifthey so determined, then
Eliot would be guilty of murder and next
they would have to consider whether the pr-
soners Weber and Young were present aid
ing, abetting, counselling. and comforting
and again, whether they were near enough by
their presence to "countenance" the princi-
pal. If they had doubts they would give the
prisoners the benefit Of them.
The jury after consulting short time ex-
pressed wish to retire. After an absence of
% minutes they returned, and, being called
over, pronounced the prisoners gully :>
Ihe fnrnnaa, oc tho mn, addod 10 tho ,.ox