It was a bright afternoon in the beginning of October, and the

little town of Miffelstein lay basking in the genial sunbeams. But

its streets, generally so cheerful, were upon that day solitary. The

town seemed deserted, and its unusual aspect evidently surprised a

pedestrian, who ascended the steep slope of the main street, and

gazed curiously about him, without perceiving a single face at the

windows. Everything was shut up. No children played on the thresholds;

no inquisitive serving wench peeped from door or garret: some fowls

were picking up provender in the road, and a superannuated dog blinked

and slumbered in the sun; but of human beings none were to be seen.

In seeming perplexity the traveller shook his head. Then--not with

the hesitating step of a stranger in the land, but with firm and

confident strides--he walked straight to the principal inn, whose

doors stood invitingly open upon the market-place. Like one familiar

with the locality, he turned to his left beneath the entrance archway,

and ascended the stairs leading directly to the coffee-room. The

coffee-room was empty. A waiter, who sat reading in the bar, welcomed

the new comer with a slight nod, but did not otherwise disturb his

studies.

"God bless you, old boy!" cheerfully exclaimed the traveller, casting

from his shoulders a handsome knapsack; "just see if you can manage

to leave your chair. I am no travelling tailor or tinker, but the

long-lost Alexis, returned from his wanderings, and well disposed to

make himself comfortable in his uncle's house."

With an exclamation of joyful surprise, the old servant sprang from his

seat, and grasped the hand of the unexpected guest.

"Thanks, my honest old friend," replied the young man to his

affectionate greeting, "and now tell me at once what the deuce has

come over Miffelstein? Has the plague been here, or the Turks? Are

the worthy Miffelsteiners all gathered to their fathers, or are they

imitating the southerns, and snoring the siesta?"

The waiter hastened to explain that the great harvest feast was being

celebrated at a short distance from the town, and that the entire

population of Miffelstein had flocked thither, with the exception of

the bedridden and the street keepers; and of his master, and the young

mistress, he added, the former of whom was detained by business, and

the latter was dressing herself, but who both would follow the stream

before half-an-hour was over.

"True!" cried Alexis, striking his forehead with his finger: "I have

almost forgotten my native village, with its vintage and harvest joys;

and I much fear it returns the ill compliment in kind. I can pass my

time, however, till my worthy uncle and fair cousin are visible. Bring

me something to eat: I am both hungry and thirsty."

"What cellar and kitchen contain is at your honour's service," replied

the waiter. "We had no strangers at table to-day, but cold meat is

there; and, if it so please you, some kail-soup shall be instantly

warmed."

"Kail-soup," said Alexis with a smile; "none of that, thank you. Cold

meat--_bene_. But don't forget the cellar."

"Assuredly not. Whatever your honour pleases. A flask of sack, or a jug

of ale?"

"Sack! sack!--Miffelstein sack!" cried Alexis, laughing heartily.

"Anything you like. Only be quick about it."

Whilst the waiter hurried to the larder, Alexis examined the apartment,

which struck him as strangely altered since his boyish days. The old

familiar furniture had disappeared, and was replaced by oaken tables,

stools, and settees of rude and outlandish construction. The shining

sideboard had made way for an antiquated worm-eaten piece of furniture

with gothic carvings. Altogether the cheerful dining-room had undergone

an odd change. The walls were papered with views of bleak mountain

scenery, dismal lakes and turreted castles, enlivened here and there

with groups of Scottish peasantry. The curtains, of many-coloured

plaid, were not very elegant, and contrasted strangely with the long

narrow French windows. "What on earth does it all mean?" exclaimed

the puzzled Alexis. Just as he asked himself the question, the waiter

entered the room, with a countenance of extraordinary formality,

bearing meat and wine upon a silver salver. This he placed before him

with an infinity of ceremonious gestures and grimaces.

"Your lordship will graciously put up with this poor refreshment," he

said. "The beef is as tender as if it came from the king's table, (God

bless him;) the sack, or rather the claret, is of the best vintage. The

kail-soup would hardly have been forthcoming; for although the cook is

kept at home by a cold, she is reading, and cannot leave her book. And

now, if it will pleasure your lordship, I will play you a tune upon the

bagpipes."

In mute and open-mouthed astonishment, Alexis stared at the speaker.

But the old man's earnest countenance, and a movement he made to fetch

the discordant instrument, restored to him his powers of speech.

"For heaven's sake!" he cried, "Tobias! stop, come hither, and tell me

if you have lost your senses! Lordship! claret! A cook who can't leave

her book! A bagpipe! Tobias! what has come to you?"

"Ah, Mr Alexis!" said the old fellow, suddenly exchanging his quaint

and ceremonious bearing for a plaintive simplicity of manner, "to say

the truth, I hardly know myself what has come to me. But pray don't

call me Tobias before the master. Caleb has been my name now for a

matter of three years. Master and the customers would have it so."

"Caleb?"

"Yes, my dear Mr Alexis. I and the inn were rebaptised on the same

day. I am sorry for both of us, but I am only the servant, and what

everybody pleases--"

Alexis pushed open the window and thrust out his head. "True, by all

that's ridiculous!" he exclaimed, turning to the rebaptised waiter;

"the old Star hangs there no longer. What is your house called now?"

"The Bear of Bradwardine; and since that has been its name, and

everything in it has been so transmogrified, the place is full of

strangers, particularly of English, who throng us in the summer. And

there's such laughing and tomfoolery, that at times I'm like to go

crazy. They stare at old Caleb as if he himself were the Bear, laugh

in his face, and apologise by a handsome tip. That would be all very

well, but the neighbours laugh at the master and the inn, and at me

and Susan, whose name is now Jenny, and never think of putting hand in

pocket to make amends. But what can I do, Mr Alexis? Master is wilful,

and I'm sixty. If he discharged me, who would give old Tobias--Caleb, I

mean--his daily bread?"

"I would, old fellow," replied Alexis heartily; "I would, Tobias.

You've saved me a thrashing for many a prank, and were always kinder to

me than my own uncle, who sometimes forgot that I was his sister's son.

If ever you want, and I have a crust, half is yours. But go on, I do

not yet understand--"

Tobias cast a timid glance at the door, and then continued, but in a

lower tone than before.

"Three years ago," he said, "the mistress died, and soon afterwards

things began to go badly. Your uncle neglected the house, and at last,

if we had one customer a-day, and three or four on Sundays, we thought

ourselves well off. It was all along of books. Every week there came

a great parcel from the next town, and master read them through and

through, and then the young lady, and then master often again. He

neither ate, nor drank, nor slept: he read. That may have made him

learned, but it certainly did not make him rich. One day, when things

were at the worst, a stranger came to the inn, and wrote himself down

in the book as an Englishman. He it was who turned master's head. The

first night they sat up talking till morning; all next day and the

day after that, they were poring over books. Then the folly began;

everything must be changed--house and furniture, sign and servants.

They say the Englishman gave your uncle money for the first expenses.

If everything had gone according to his and master's fancy, you would

have found us all in masquerade. The clothes were made for us just

like yonder figures on the paper. But we only wore them one day. The

blackguards in the street were nigh pulling down the house, and"--here

Tobias again lowered his voice--"Justice Stapel sent word to master

that he might make as great a fool of himself as he pleased, but that

he must keep his servants in decent Christian-like clothing. So we got

back to our hose and jackets. The Englishman, when he returned the

following spring, and a whole lot of people with him, made a great

fuss, and scolded and cursed, and said that we upon the Continent were

a set of miserable slaves, and that it was a man's natural right to

dress as he liked--or not at all, if it so pleased him. For my part,

slave or no slave, I was very glad Justice Stapel had more power

here than the mad Englishman. As it was, I had to learn to play the

bagpipes; and Jenny had to learn to cook as they do in England or

Scotland; and we all had to learn to speak as they speak in master's

books, eight pages of which we are obliged to read every day. Jenny

likes the books, and says they are better fun than cooking: for my

part, I can make nothing of them, and always forget one day what I

learned the----"

The old man paused in great trepidation, for just then the door opened,

and a beautiful girl, attired in gorgeous Scottish tartans, entered the

room.

"Emily! dear cousin!" cried Alexis, springing to meet the blooming

damsel, "though eighteen years instead of nine had elapsed since we

parted, I still should have recognised your bright blue eyes." Bright

the eyes certainly were, and at that moment they sparkled with surprise

and pleasure at the wanderer's return; but before Alexis had concluded

his somewhat boisterous greetings, their brightness was veiled by an

expression of melancholy, and the momentary flush upon the maiden's

cheek was replaced by a pallid hue, which seemed habitual, but

unnatural. The change did not escape the cousin's observant glance, and

he pressed her with inquiries as to its cause. At first he obtained no

reply but a sigh and a faint smile. His solicitude would not be thus

repelled.

"Upon my word, cousin," he said, "I leave you no peace till you tell

what is wrong. I see very well that, during my absence, house and

furniture, master and servants, have all been turned upside down. But

what can have caused this change in you? Have you too been rebaptised?

Has the barbarous Englishman driven you too through the wilderness of

his countryman's romances? Have you been compelled, like this poor

devil, to swallow Redgauntlet in daily doses, like leaves of senna?

Speak out, dear cousin, my old friend and playmate. Assuredly, I

little expected to find you still Miss Wirtig. Ere now, I thought

some fortunate Jason, daring and deserving, would have borne away the

treasure from the Miffelstein Colchis."

Emily cast a side-glance at Tobias, who stood at a short distance,

listening to their conversation with an air of respectful sympathy.

As if taking a hint, the old man left the apartment. When Emily again

turned to her cousin, her eyes glistened with tears.

"Dear Emily," said Alexis, laying aside his headlong bantering tone,

and speaking earnestly and affectionately, "place confidence in me,

and rely on my zeal to serve you and desire to see you happy. True, I

left this house clandestinely, because your father would have made a

tradesman of me, when my head was full of Euclid and Vitruvius, and my

fingers itched to handle scale and compasses. But it is not the worst

sort of deserter who returns voluntarily to his regiment. Think not ill

of me therefore, and confide to me your sorrows. It is nearly three

years since William Elben wrote to me that he hoped speedily to take

you home as his bride. But now I see that he deceived me."

"William spoke the truth," the maiden hastily replied; "the hope was

then justified. He had my consent, and my father did not object. But

fate had otherwise decreed. The author of _Waverley_ is the evil

genius who prevents our union and causes our unhappiness."

"The devil he does!" cried Alexis, starting back.

"Alas! good cousin," continued Emily sentimentally, "who knows how the

threads of our destiny are spun!"

"They are not spun in the study at Abbotsford, at any rate," cried the

impetuous Alexis. "But it is all gibberish to me. Our neighbours beyond

the Channel have certainly sometimes had a finger in our affairs, but I

never knew till now that their novelist's permission was essential to

the marriage of a Miffelstein maiden and a Miffelstein attorney. But--"

He was interrupted by Tobias, who threw open the door with much

unnecessary noise, and thrust in his head with an ominous winking of

his eyes, and a finger upon his lips. The next moment the innkeeper

entered the room.

Alexis found his uncle grown old, but he was more particularly struck

by his strange stiff manners, which resembled those of Caleb, but

were more remarkable in the master than the servant, by reason of

the solemn and magnificent style in which they were manifested. Herr

Wirtig welcomed his nephew with infinite dignity; let fall a few words

of censure with reference to his flight from home, a few others of

approbation of his return, and inquired concerning the young man's

present plans and occupations.

"I am an architect and engineer," replied Alexis. "My assiduity has won

me friends; I have learnt my craft under good masters, and have done my

best to complete my education during my travels in Italy, France, and

England."

"England?" cried Wirtig, pricking his ears at the word: "Did you visit

Scotland?"

With a suppressed smile, Alexis replied in the negative. His uncle

shrugged his shoulders with an air of pity. "And what prospects have

you?" he inquired.

"Prince Hector of Rauchpfeifenheim has given me a lucrative appointment

in his dominions. Before assuming its duties, I have come to pass a few

days here, and trust I am welcome."

Wirtig shook his nephew's hand.

"Welcome you are!" said he, kindly. "Hospitality is the attribute of

the noblest races. So long it please ye, remain under this poor roof.

By the honour of a cavalier! I would gladly have you with me in the

spring, when I think of rebuilding my house on a very different plan.

You will find many changes here, kinsman Alexis. Come, fill your glass.

A health to the Great Unknown! He has been my good genius. But we will

talk of that on our way to the harvest feast."

The innkeeper's conversation on the road to the hamlet, where the

festival was held, was in complete accordance with Caleb's account of

his vagaries. He was perfectly mad on the subject of the author of

_Waverley_. Never had human being, whether sage, poet, or philosopher,

made so extraordinary an impression on an admirer as had the poet

of Abbotsford on the host of the Star--now the Bear of Bradwardine.

Wirtig identified himself with all the most striking characters of the

Scottish novels. He assumed the tone by turns of a stern Presbyterian,

a gossiping and eccentric antiquary, a haughty noble, an enthusiastic

royalist, a warlike Highland chief. His intense study of the Waverley

Novels, at a time when he was much shaken by his wife's sudden death,

had warped his mind upon this particular subject. Combined with this

monomania was a feeling of boundless gratitude to the Scottish bard for

the prosperity the inn had enjoyed under the auspices of the Blessed

Bear. His portrait hung in the dining-room, where his birthday was

annually celebrated. Wirtig scarcely ever emptied a glass but to his

health, or uttered a sentence without garnishing it with his favourite

oaths and expressions. In his hour of sorrow, the honest German had

made himself a new world out of the novelist's creations. The sorrow

faded away, but the illusion remained. And Wirtig deeply resented

every attempt to destroy it. Emily's lover, Elben, a thriving young

attorney, had dared to attack the daily increasing folly of his future

father-in-law, and had boldly taken the field against his Scottish

idol. He paid dearly for his temerity. Argument sharpened into irony,

and irony led to a quarrel, whose consequence was a sentence of

banishment from the territory of the Clan Wirtig, pronounced against

the unlucky lover, who then heartily bewailed his rashness--the more so

that, whilst he himself was excluded from the presence of his mistress,

he was kept in constant alarm lest some one of the numerous English

visitors to the Bear of Bradwardine should seduce her affections, and

bear her off to his island. In vain did he endeavour, through mutual

friends, to mollify Scott's furious partisan; in vain did Emily, in

secret concert with her lover, exert all her powers of coaxing. At last

Wirtig declared he would no longer oppose their union when Elben should

have atoned for his crime by presenting him with a novel from his own

pen, written in the exact style of that stupendous genius whom the rash

attorney had dared to vilify. Elben was horrified at this condition,

but nevertheless, remembering that love works miracles, and has even

been known to make a tolerable painter out of a blacksmith, he did not

despair. He shut himself up with a complete edition of the Waverley

novels, read and re-read, wrote, altered, corrected, and finally tore

up his manuscripts. A hundred times he was on the point of abandoning

the task in despair; a hundred times, stimulated by the promised

recompense, he resumed his pen. But his labour was fruitless. A year

elapsed; he had consumed sundry reams of paper, bottles of ink, and

pounds of canister; the result was _nil_. The time allowed him expired

at the approaching Christmas. Poor Emily's cheeks had lost their roses

through anxiety and suspense. The Miffelstein gossips pitied her,

abused her father, and laughed at Elben.

These latter details did not reach Alexis through either his uncle

or his cousin. The former, on casual mention of the attorney's name,

looked as grim as the most truculent Celt that ever carried claymore;

in her father's presence Emily--or Amy, as the Scotomaniac now called

her--dared not even allude to her lover. Elben himself, whom Alexis

encountered gliding like a pale and melancholy ghost amidst the throng

of holiday-makers, confided to his former school-mate the story of his

woes. Alexis alternately pitied and laughed at him.

"Poor fellow!" said he, "how can I help you? I am no novelist, to write

your book for you, nor yet a magnificent barbarian from the Scottish

hills, to snatch your mistress from her father's tyranny and bear her

to your arms amidst the soft melodies of the bagpipe. I see nothing for

it but to give her up."

Elben looked indignant at the coldblooded suggestion.

"You do not understand these matters," said he, with an expression of

disdain.

"Possibly not," replied Alexis, "but only reflect--you a

romance-writer!"

Elben sighed. "True," he said, "it is a hopeless case. How many nights

have I not sat in the moonlight upon the ruins of the old castle, to

try and catch a little inspiration. I never caught anything but a cold.

How many times have I stolen disguised into the lowest pot-houses,

where it would ruin my reputation to be recognised, to acquire the

popular phraseology. And yet I am no further advanced than a year ago!"

To the considerable relief of Alexis, the despairing lover was here

interrupted by the explosion of two little mortars; a shower of squibs

and rockets flew through the air, and the women crowded together in

real or affected terror. In the rush, the two friends were separated,

and Alexis again found himself by the side of old Wirtig, who was

soothing the alarm of his timorous daughter. "Fear nothing, good Amy,"

he said; "danger there is none." Then turning to Alexis: "Cousin!" said

he solemnly, "by our dear Lady of Embrun! yon was a report! the loudest

ever made by mortar. The explosion of the steamboat which yesterday

blew Prince Hector of Rauchpfeifenheim and his whole court into the

air, could scarcely have been louder."

"Nay, nay," said Alexis, "things were not quite as bad as that. Rumour

has exaggerated, as usual. No one was blown into the air--no one even

wounded. The steamboat which the prince had launched on the lake near

his capital, was certainly lost, in consequence of the badness of the

machinery. But the prince and all on board had left the vessel in good

time. The slight service it was my good fortune to render, by taking

off Prince Hector in a swift row-boat, doubtless procured me, more

than any particular abilities of mine, my appointment as his royal

highness's architect."

The bystanders looked with redoubled respect at the man thus preferred

by the popular sovereign of the adjacent state. The sentimental Emily

lisped her congratulations. Her father shook his nephew vehemently by

the hand.

"By St Dunstan! kinsman," he cried, "it was well done, and I dare swear

thou art as brave a lad as ever handled oar! Give me the packet of

squibs; Amy, thou shall see me fire one in honour of thy cousin Alexis!"

The firework, unskilfully thrown, lodged in the coat skirts of a

stout broad-shouldered man in a round hat and a long brown surtout,

who was elbowing his way through the crowd. The stranger, evidently a

foreigner, strove furiously against the hissing sputtering projectile,

and at last succeeded in throwing it under his feet and trampling

it out with his heavy boot-soles. Then, brandishing a formidable

walking-cane, and grumbling most ominously, he began to work his way as

fast as a slight lameness in one of his feet permitted, to the place

where Wirtig was blowing his match and preparing for another explosion.

Emily called her father's attention to the stranger's hostile

demonstrations, but the valiant host of the Bear of Bradwardine heeded

them not. From time immemorial, he said, it had been use and custom

at Miffelstein harvest-home to burn people's clothes with squibs, and

he certainly should not, in the year of grace 1827, set an example of

deviation from so venerable a practice. When, however, he distinguished

some well-known English oaths issuing from the stranger's lips--and

when Caleb came up and whispered in his ear that the traveller had

alighted at the Bear, and, finding himself lonely, had demanded to

be conducted to the festival--the worthy innkeeper regretted that he

had directed his broadside against the stern of a natural ally, and

seemed disposed to make due and cordial apology. After some cursing

and grumbling in English, the stranger's wrath was appeased, and in a

sort of Anglo-German jargon, he declared himself satisfied. He said

some civil things to Emily, took a seat by her side, abused the squib

and rocket practice, praised his host's wine, and made himself at home.

Wirtig's attention seemed greatly engrossed by the new comer, whom he

examined with the corner of his eye, taking no further part in the

diversions of the festival, and quite omitting to observe the furtive

glances exchanged between his daughter and Elben, who lurked in the

vicinity.

Presently Alexis, who had been overwhelmed by the greetings of old

acquaintances and playmates, returned to his uncle's party. He started

at sight of the Englishman.

"How now!" he exclaimed; "you here, my good sir? By what chance?"

The stranger evidently shared the young man's surprise at their

meeting. Hastily quitting his seat, he took Alexis by the arm, and

led him out of the throng. At a short distance off, but out of all

earshot, Wirtig saw them walking up and down, the Englishman talking

and gesticulating with great earnestness, Alexis listening with smiling

attention. The host of the Bear sat in deep thought, his eyes riveted

upon the Englishman.

"Caleb," he suddenly demanded of the old waiter, who was moistening

his larynx with a mug of cider--"Caleb, how came yon gentleman to our

hostelry?"

"On horseback, Master Wirtig," replied Caleb, mustering up his

reminiscences of the _Tales of my Landlord_, "on a gallant bay gelding.

His honour wore spatterdashes, such as they wear to hunt the fox, I

believe, in his country. His cane hung from his button; and if it so

please ye, Master Wirtig, I will describe his horse furniture as well

as my poor old memory will permit."

"Enough!" said Wirtig, impatiently. "Whence comes the traveller, and

whither is he bound?"

Caleb shrugged his shoulders.

"Has he written his name in the strangers' book?"

"He has so, Master Wirtig, after long entreaty; for at first he

steadfastly refused. At last he wrote it. 'Let none see this,' he said,

'save your master; and let _him_ be discreet, or--'"

"Glorious!" interrupted Wirtig, and, in the joy of his heart, was near

embracing his astonished servant. "I had a presentiment of it, but

say--his name?"

Caleb looked embarrassed. "You alone were to see it, Master Wirtig, and

I--you know I am not very good at reading writing. I looked into the

book, but--"

"How looked the word, fellow?"

"To me it looked a good deal like a blot."

"Now, by St Bennet of Seyton! thou art the dullest knave that ever wore

green apron! How many letters?"

Caleb scratched his head. "Hard to say exactly; but not more than five,

I would wager that."

"FIVE! Varlet, thou rejoicest me. Heavens! that such good fortune

should be mine! Run, man, run as you never ran before! Bid Jenny kill,

roast and boil! A great supper! Scottish cookery! The oak-table shall

groan with its load of sack, ale, and whisky. Let Quentin put the

horses to, and fetch us with the carriage. Rob Roy must go round to

all the best houses, and invite the neighbours. Tell Rowena to leave

the goats, and help Jenny in the kitchen. By my halidome! I had almost

forgotten. Old Edith must sweep out the ballroom, and Front-de-Boeuf

put wax-lights in the chandeliers. Go! run! fly!"

Caleb disappeared. In his place came a crowd of the innkeeper's friends

and gossips. "What now? What is up?" was asked on all sides. And Wirtig

exultingly replied:--"A feast! a banquet! such as the walls of the Bear

of Bradwardine never yet beheld. For they are this day honoured by

the presence of the most welcome guest that ever trod the streets of

Miffelstein. Wine shall flow like water, and there's welcome to all the

world."

Breaking through the inquisitive throng, Wirtig hurried to meet Alexis,

who was now returning alone from his mysterious conference with the

stranger.

"Well?" cried the uncle, with beaming countenance and expanded eyes.

"Well?" coolly replied the nephew.

"Is it he, or is it not?"

"Who?"

"Who? Now, by the soul of St Edward! thou hast sworn to drive me mad.

You say you have not been in Scotland? Was it in Paris you knew him? Or

do you think I am blind? Is not that his noble Scottish countenance?

the high cheek-bones--the sharp gray eyes--the large mouth, and the

bold expression? And then the lame foot, and five letters! What would

you have more?"

"Really, uncle, I would have nothing more."

"Obstinate fellow! you will explain nothing! But the portrait, the

face, the five letters--your mystery is useless--the secret is out--the

stranger is--Scott!"

"Scott!" cried Alexis, greatly surprised. "How do you know that?"

"Enough! I know it. 'Tis the Great Unknown! Shame on you, Alexis, to

try to deceive your uncle! Tell the great man, with whom you, unworthy

that you are, have been so fortunate as to make acquaintance, that his

_incognito_ shall be respected, as surely as I bear an English heart in

my bosom. By the rood, shall it! For all Miffelstein he shall be the

Unknown. But I crave his good leave to celebrate his coming."

"I will answer for his making no objection," replied Alexis, who

apparently struggled with some inward emotion, for his voice was

tremulous, his face very red, and his eyes were steadfastly fixed on

the toes of his boots.

"Answer for yourself, Sir Architect!" said his uncle, somewhat sharply.

Then, in a lower and confidential tone, "Where is the immortal genius?"

he inquired.

"If I mistake not," replied Alexis, "I see him yonder, eating curds and

pumpernickel."

"Ah, the great man!" ejaculated Wirtig; "to condescend to food so

unworthy of his illustrious jaws. And see, he is about to fire off

the mortar! Engaging familiarity! Boom! The loudest report to-day!

The piece is mine, though it cost me a thousand florins! It shall be

christened Walter Scott!"

"Hush, hush!" interposed Alexis; "if you go on in this way, the

incognito will be in danger. And he himself must not perceive that

you--"

"True!" interrupted the excited Wirtig, clapping his hand on his lips.

"Ah, could I but speak Gaelic, or even English, the better to commune

with the inspired bard! But he has translated _Goetz von Berlichingen_,

so must understand the pure German of Miffelstein. But now tell me,

Alexis, in strict confidence, how comes the first of the world's

poets in our poor village? Has he, perchance, heard of the Bear of

Bradwardine, and of his faithful clansman, John Jacob Wirtig? Or does

he seek subject for a new romance, and propose to place his hero at

Miffelstein, as he conducted Durward to Plessis-les-Tours, and the

brave knight Kenneth to Palestine?"

"Neither the one nor the other, my dear uncle, unfortunately for

us," replied Alexis thoughtfully, and pausing between his sentences.

"Trusting to your discretion, and to convince you of its necessity, I

will not conceal from you that a great peril has brought the Author

of Waverley to Miffelstein. You must know that he has just published

an historical romance, in which, availing himself of the novelist's

license, he has represented Charlemagne and Henry the Fourth of France

vanquished in single combat by William Wallace and Robert the Bruce.

A French general, taking offence at this, has insisted upon his

retracting the statement, or fighting a duel with blunderbusses at six

paces. Of course a man of honour cannot retract--"

"Of course not! Never did Scottish chief so demean himself! I see it

all. The ---- Unknown has shot the general, and--"

"On the contrary, uncle. He does not want to be shot by the general,

and that is why he is here, where none will look for him."

"What!" cried the host of the Bear, taken very much aback; "but that

looks almost like--like a weakness, unknown to his heroes, who so

readily bare their blades! I scarcely understand how--"

"You misapprehend me," interrupted Alexis: "the baronet only asks to

put off the duel until he has finished a dozen novels, each in three

volumes, which he has in progress. And as the Vandal refuses to wait--"

"I see it all!" cried Wirtig, perfectly satisfied: "the Unknown

is right. What! the base Frenchman would rob the world of twelve

masterpieces! Not so. In Miffelstein is safe hiding for the Genius of

his century. _Montjoie_, and to the rescue! Let him wrap himself in his

plaid, and fear no foe! I will cover him with my target, and my life

shall answer for his! Where should he find refuge, if not in the shadow

of the Bear?"

Meanwhile, taking advantage of Wirtig's relaxed vigilance, Elben had

stolen to Emily's side.

"What is the matter with your father to-day?" said the lovesick

attorney to his mistress, when Wirtig and Alexis walked away in the

direction of the mortar, and the crowd that had assembled round the

host of the Bear dispersed, laughing and shaking their heads. "What new

crotchet possesses him, and whence comes his extraordinary excitement

and exultation?"

Emily pressed her lover's hand, and the tears stood in her sentimental

blue eyes.

"William," she said, "I greatly fear that all is over with our dearest

hopes. I am oppressed with a presentiment of misfortune. My father

is about to execute an oft-repeated threat. He will force me to wed

another!"

"Whom?" cried the unfortunate lawyer, his hair standing on end with

alarm: "surely not that rattlepate Alexis? The relationship is too

near, and the canon forbids."

"You mistake me, William," replied Emily; "I mean the Englishman. My

father's strange agitation--his boundless joy--certain hints that he

has let fall--I am convinced he has discovered in this stranger some

rich son-in-law for whom he had written to England."

"You pierce my very heart!" plaintively exclaimed Elben. "Unhappy day!

Accursed festival, date of my last hope's annihilation! How all this

merriment grates upon my soul! So might the condemned soldier feel,

marching to execution to the sound of joyous music!"

"William! William! what frightful images!" sobbed Emily from behind her

handkerchief.

"Romance! poetry!" continued the incensed attorney; "now, indeed,

might I hope to compose some tragic history, which should thrill each

reader's heart. Despair not, dearest Emily. There is still justice upon

earth. I will bring an action against your father. Or perhaps--from

this to the new-year there is yet time to invent tales and write

volumes. As to yonder lame foreigner, I will try some other plan with

him. By the bye, who knows if he has got a passport? I don't think he

has, by his looks. Respectable people do not travel about on horseback.

I must find out what he is, and his name."

And Elben was moving off, to commence his investigations, but Emily

detained him.

"Such means are unworthy your noble nature, my William," she said. "In

your cooler moments you will assuredly reject them."

Elben shrugged his shoulders. "At your command," he said, "even stern

Themis would drop the sword. But what can I do? Must I resort to a

pistol-ball, or to prussic acid, as sole exit from my misery? That

would be unbusinesslike, very unbefitting a respectable attorney. Nor

would it rescue you from persecution."

"Is there no way out of this labyrinth?" said Emily pensively,

apparently little apprehensive of her lover's resorting to suicide. "No

flight from the clutches of this odious foreigner?"

"Flight!" repeated Elben, catching at the word. "What a bold idea!"

"Realise it," said Emily, speaking low and very quickly. "Run away with

me!"

The attorney started.

"_Raptus_!" he exclaimed. "Dearest, what do you propose? The law

punishes such an act. The third chapter of our criminal code--"

"You have little chivalry in your nature," interrupted Emily,

reproachfully. "You are no Douglas! Leave me, then, to my fate. Alas!

poor Emily! to be thus sacrificed ere thy twenty-second summer has

fled!"

"Twenty-second!" cried the prosaic lawyer, unheeding the implied

inferiority to the Douglas; "there is something in that. I knew not

you were of age. You have a right to decline the paternal authority.

That alters the case entirely. Since you have completed your

one-and-twentieth year, an elopement is less perilous."

The lovers' colloquy was here interrupted by the arrival of Wirtig,

accompanied by his nephew and the Englishman. The festival approached

its close, and Wirtig, at last missing his daughter, and hearing

that she was with Elben, hurried in great alarm to seek her. He

was accompanied in his search by Alexis and the lame stranger, who

conversed in English.

"Is the innkeeper mad?" inquired the latter. "Does he want to borrow

money of me? Or what is he driving at?"

"He merely desires to make himself agreeable to you," replied Alexis.

"The devil take his agreeableness. I hate such fawning ways. You know

the unfortunate motive of my visit to Miffelstein. In my position,

compliments and ceremony are quite out of place."

"You must nevertheless endure them. They insure your safety. For a few

days you must be content to pass for a great man."

"There's none such in my family."

"No matter. Greatness is thrust upon you. Try to persuade yourself that

you are the great Scottish Unknown."

"Never heard of him. What has he done?"

"He has written romances."

"Pshaw! I hate your scribblers. For heaven's sake, don't say I am an

author."

"Unfortunately I have said so already. For your own sake, beware

of contradicting me. It is most unfortunate that you forgot your

passport. If Prince Hector of Rauchpfeifenheim learns that you are at

Miffelstein, you are no safer here than in his capital."

"Curse my luck," growled the Englishman between his teeth, "and

confound all smiths and boiler-makers! Had I but remained in Old

England! There, if a boiler does burst, money and a letter in the paper

will make all right. But the Continent is worse than a slave-market. No

_habeas corpus_ here! A foreigner is no better than an outlaw, and if

an accident occurs, he has no bail but leg-bail."

"It is certainly very wrong of the prince to be angry at such a trifle.

You were only within a hair's breadth of drowning him and his whole

court. However, it is for you to choose whether or not I shall say who

you really are."

"Not! certainly not! To get out of this scrape, I would consent to pass

for a Yankee. By all means let me be your Unknown friend."

"You shall," said Alexis, laughing; "but on one condition. You must

assist me to bring about the happiness of two deserving persons."

"Cost any money?" inquired the stranger suspiciously.

"Not a kreutzer. A few fair words, which I will teach you."

"I am willing. What is to be done? Who are the persons!"

"That pretty girl you were sitting by just now, and her lover, a worthy

young man."

"But I do not know him."

"Not necessary."

"Whatever you like, if it costs me neither liberty nor money. Though I

would give all the money in my pocket for a scrap of passport. Cursed

Continent! In my country, we don't know such things. Had I only--but in

my haste to escape the gendarmes, I forgot everything."

It was at this point of the conversation, carried on in English, and

therefore unintelligible to Wirtig, that the innkeeper pounced upon his

daughter and her lover.

"How now, attorney!" he exclaimed; "what means this? By St Julian of

Avenel! who permitted you to walk with my daughter? _Tête Dieu!_ let it

be for the last time! I trust thee not, attorney. But this is a happy

day, and you shall not be excluded from the banquet in honour of our

distinguished visitor. You will be welcome at the Bear of Bradwardine.

And what you there shall see and hear will quickly rid you of your

prejudices against--"

Alexis trod on the foot of his garrulous uncle. Elben looked daggers at

the Englishman. Emily smiled, and sighed.

"Now, your lordship, if it so please ye," quoth Wirtig, in huge

delight, "we will return to my poor house. The sun is below the

horizon, and the evening dews might endanger your precious health. My

forgetful Caleb has assuredly forgotten to send us the carriage."

"I am ready," replied the stranger. "I have had enough and to spare of

your rocket practice, and your music makes my head ache."

"The bagpipes are certainly pleasanter to the ear," said Wirtig,

submissively, "and I am grieved that I forgot to command Caleb's

attendance with them. Pardon the omission. At the house, things shall

be better managed. Amy, entertain Sir Wal--"

A crushing application of Alexis' boot-heel to Wirtig's tenderest toe,

substituted an exclamation of agony for the second syllable of the

forbidden name. The Englishman offered Emily his arm, and a signal

from her father compelled its acceptance. By the light of torches,

and preceded by a band of music, the Miffelsteiners now moved in long

procession homewards, forming a sort of escort for the stranger, who

was in front, attended by Wirtig and Alexis. The attorney marched close

behind, glaring like a hyena at his supposed rival. Amidst the cracking

of fireworks and the reports of guns and pistols, the procession

reached the town, and a considerable number of the men went direct to

the hotel of the Bear--some eager to profit by the gratuitous good

cheer, and others yet more desirous to ascertain its motive. Of this,

however, most of Wirtig's guests were by this time aware. Rumours will

arise, in small towns as in large cities; and thus it was that at

Miffelstein twenty busy tongues whispered the presence of the Great

Unknown. At the Bear, Wirtig's liberal instructions had been zealously

executed. Caleb, Rowena, Jenny, Front-de-Boeuf, and the rest of the

household, had done their duty. The table was loaded with English

and Scottish delicacies; the portrait of the Great Unknown--its frame

adorned with lamps of many colours--stared somewhat wildly, but, upon

the whole, benevolently, from the wall, doubtless well satisfied to

see its original doing ample honour to the repast. The appetites of

the other guests, which ungratified curiosity might have damped, were

sharpened by a confidential communication from the host of the Bear.

Notwithstanding his nephew's injunctions to secrecy, Wirtig could

not refrain from exhibiting to his friends, before they sat down to

supper, and of course in the strictest confidence, the name of W.

SCOTT, inscribed upon the last page of the strangers' book. There was

no mistaking the characters, blotted and strangely formed though they

were. Great were the awe and reverence with which the Miffelsteiners

contemplated the stranger, who, for his part, gave his chief attention

to his supper. He bolted beefsteaks, reduced fowls to skeletons, and

poured down, with infinite gusto, bumper after bumper of Burgundy

and Hochheimer. The guests remarked with admiration that he avoided,

doubtless with a view to the preservation of his incognito, the

Scottish drinks and dishes that adorned the board. He affected disgust

at a Miffelstein haggis, and neglected the whisky-bottle for the wines

of France and Germany. Once he was observed to smile as he glanced at

his portrait, and it was inferred that he was amused at the badness

of the likeness, which certainly did little credit to the artist. But

he made no remark, excepting that, the next moment, he requested his

neighbour to pass him a dish of pork with plum sauce.

Wirtig's discretion was far from equalling that of the Unknown. Seated

beside his honoured guest, in the joy of his heart he overwhelmed him

with compliments, made countless allusions to his works and genius,

and kept his glass constantly full. The stranger let him talk on,

and answered nothing, or only by monosyllables. In proportion to the

flattery and attentions lavished by Wirtig, were the sadness and

sullenness of Elben the attorney. He had arrived later than the other

guests. Seated at one end of the table, he looked Medusas at the

Unknown.

"What think you, nephew," said Wirtig aside, "if I were to send for Amy

and her harp to entertain our illustrious visitor? The bagpipes he has

forbidden."

"An excellent thought," replied Alexis; "but it cannot be, for Caleb

tells me that my cousin has retired to her apartment, complaining of a

violent headache."

"Mere woman's fancies!" grumbled the father. "Amy is no Die Vernon.

Did the girl but know whom our roof this day shelters--St George of

Burgundy how gladly would she come! How warm would be her welcome of

him she is bound to love and reverence!"

Elben overheard these last words, and smiled a grim smile. Owing to

his tardy arrival and mental preoccupation, he was unaware of the real

motive of the attentions paid to the stranger, and still believed him

to be a favoured candidate for the hand of Emily.

The Unknown had finished his pork and plums, and was resting on his

knife and fork.

"Where is Miss Amy?" said he, at last, looking particularly tender,

either at thoughts of the young lady or at sight of a dish of

partridges just then placed smoking before him. The jealous attorney

could stand it no longer. Starting from his chair, he rushed from the

room.

Wirtig apologised for his daughter's absence, and resumed his

complimentary strain.

"By our Lady of Cléry, noble sir!" he said, "the productions of your

genius have delighted my understanding, and made my house to prosper. I

am under the greatest obligations to you, and my debt of gratitude is

doubled by the honour of your visit. I pray you to command me in all

things."

The stranger seemed embarrassed by this excessive homage. Just then

Alexis spoke a few words to him in English. The Unknown emptied his

glass, laid his finger thoughtfully on his nose, and, after a minute's

pause, turned to his entertainer.

"You consider yourself under obligations to me?" he said. "I take you

at your word. Prove your sincerity."

"In purse and person, hand and heart, command me," cried Wirtig,

"Lord of the Isles and most honourable baronet. Do you lack money?

What I have is yours. Do you desire protection from the bloodthirsty

Frenchman? In my house you shall find shelter. In your defence, I and

mine will don tartan, gird claymore, and shoulder Lochaber axe."

"You are a gentleman," said the Englishman, looking rather puzzled,

"and I thank you for your good will, but have no need of your money.

The favour I would ask is not for myself, but for others. Consent to

your daughter's marriage with the man of her choice. You will do me a

great pleasure."

"Ha!" quoth the mystified Wirtig. "Blows the wind from that quarter?

The sly puss has enlisted a powerful ally. _Pasques Dieu!_ 'Tis a mere

trifle you ask, worshipful sir. I had gladly seen you tax my gratitude

more largely."

"Consent without delay," whispered Alexis to his uncle. "Let not the

great man think you hesitate."

"With all my heart," said Wirtig. "I had certainly made a condition,

and would gladly--but will Amy be happy with the prosaic attorney?"

Once more the Great Unknown laid his finger solemnly upon his nose.

"Undoubtedly," he said, tossing off another bumper of his host's best

Burgundy. He spoke rather thick, and his eyes had a fixed and glassy

look. "Undoubtedly," he repeated, as if speaking to himself. Just then

Caleb and Front-de-boeuf placed a fresh battery of bottles on table and

sideboard. "Upon my soul," added the stranger, in English, "this old

tavern-keeper is a jolly fellow, and his Burgundy is prime." He nodded

oracularly, and again filled his glass.

"Listen to him!" said Alexis to his uncle, who hung upon each sound

that issued from his idol's lips. "He prophesies! The second-sight is

upon him! He foretells their happiness. Consent at once!"

"The second-sight!" exclaimed Wirtig reverently. "Nay, then, in

heaven's name, be it as he wishes! I freely give my consent!"

Alexis would fain have left the room to seek Elben, and inform him of

his good fortune; but his uncle would not spare him. The Englishman

continued to imbibe the Burgundy, the other guests zealously followed

his example, conviviality was at its height, songs were sung, and the

evening wore on. During a tumultuous chorus of hurrahs, elicited by

an impromptu allusion to the guest of the evening, introduced by the

Miffelstein poet into a bacchanalian ditty, Caleb entered the room

with an important countenance, and beckoned Alexis from the table.

A foreigner, he said, who spoke more French than German, was making

anxious inquiries about one Schott or Scott, and insisted upon seeing

the landlord. At first somewhat staggered by this intelligence, which

threatened destruction to his schemes, the ready-witted architect

soon hit upon a remedy. Sending Caleb to announce to the stranger his

master's speedy appearance, he called Wirtig aside.

"Uncle," he said, "the moment for decisive action has arrived. The

French general is below. He is on the track of the Great Unknown,

and insists that he is here. Keep him at bay for a while, and I will

contrive the escape of your illustrious guest. Above all, parley not

with the false Frenchman."

"Ha! Beauséant!" exclaimed the valorous and enthusiastic Wirtig. "Is

it indeed so? Methinks there will be cut-and-thrust work ere the proud

Norman reach his prey. Ha! St Andrew! he shall have a right Scottish

answer. And though he were the bravest knight that ever put foot in

stirrup--"

"Expend not the precious moments in similes," interrupted Alexis.

"Remember only that the man is glib of tongue, and let him not mislead

you by friendly professions."

"Not I, by the soul of Hereward!" replied Wirtig, leaving the room.

Alexis hastened to the Englishman.

"You must be off, my good sir," he said. "A detachment of the bodyguard

of Prince Hector of Rauchpfeifenheim is in pursuit of you. Their

officer is in the house, making clamorous inquiry."

"The devil he is!" cried the stranger, sobered by the intelligence.

"What is to be done? The horse I came upon is foundered. Infernal

country! Accursed steamboat! I cannot leave the place on foot."

"Leave the house, at any rate," said Alexis, "and we will then see what

to do. Delay another minute, and escape is impossible. Follow me, as

you love liberty and life."

The Englishman obeyed. Alexis led the way into a back-room, threw open

a window, and stepped out upon a balcony, whence a flight of steps

descended into the garden of the hotel. This was quickly traversed, and

the two men reached a narrow and solitary lane, formed by stables and

garden walls, and close to the outskirts of the town. Ten paces off

stood a postchaise, the door open and the steps down.

"Now then, sir," said the driver in a sleepy voice, as they approached

his vehicle, "Jump in. No time to lose."

"How fortunate!" said the Englishman, "here is a carriage."

"But not for you, is it?" said Alexis.

The Englishman laughed, and clapped his hand on his pocket.

"Everything for money. Drive on, postilion, and at a gallop. A double

_trinkgeld_ for you."

And he jumped into the vehicle, which instantly drove off, and had

disappeared round a corner before Alexis, astonished by the suddenness

of the proceeding, had time to reciprocate the farewell shouted to him

by the fugitive. He was about to re-enter the garden, when a man came

running down the lane. It was Elben.

"How now, William," cried Alexis, "what do you here?"

"The postchaise," cried the attorney, "where is it?"

"The postchaise, was it for you?"

"To be sure."

"It has just driven off with the Englishman."

"With the Englishman!" gasped Elben. "Destruction! And Emily in it!"

"Emily! my cousin! The devil! What do you mean?"

"Alexis, you are my friend--with you I need not dissemble. That

carriage was to bear me and Emily from her father's tyranny. I put her

into it ten minutes ago. She insisted I should be armed, and I returned

for these!"

And, throwing open his cloak, he exhibited a pair of enormous horse

pistols, and a rapier, which, from its antiquated fashion, might have

belonged to a cotemporary of the Great Frederick.

"And whilst you were arming," cried the incorrigible Alexis, convulsed

with laughter, "the Great Unknown ran off with your bride. Well, you

may rely he will not take her far. He is in too great haste to escape,

to encumber himself with baggage. And you will be spared a journey, for

my uncle no longer opposes your marriage."

At that moment the garden door opened, and Emily stood before them. No

sooner had the romantic damsel sent her knight to arm himself, than she

remembered an indispensable condition of an elopement, which she had

forgotten to observe, and hurried back to her apartment, to leave upon

her table a line addressed to her father, deprecating his wrath, and

pleading the irresistible force of love. A few words from Alexis gave

her and Elben the joyful assurance that no obstacle now barred their

union.

On re-entering the inn, Alexis encountered a French equerry of

Prince Hector of Rauchpfeifenheim, who at once recognised him as his

sovereign's newly appointed architect.

"Ah! _Monsieur l'Architecte_," he exclaimed, "how delighted I am to

meet with a sane man. The people here are stark mad, and persist in

knowing nothing of Scott, the engineer. I know very well he is here.

Tell the drunken dog that the prince forgives him. I have ordered his

baggage to be sent hither, and here is money for his expenses. The

prince never seriously intended to visit upon him the fault of his bad

machinery."

Alexis undertook to transmit Prince Hector's bounty and pardon, and

was enabled to take his uncle the joyful intelligence that the

bloodthirsty French general had departed in peace.

* * * * *

Elben and Emily were married. Alexis forwarded the property of the

Great Unknown, and soon afterwards left Miffelstein. Wirtig wondered to

hear nothing more of his illustrious visitor and benefactor, when one

day a letter reached him, bearing the London postmark, and scrawled in

execrable German. Its contents were as follows:--

"Dear Sir,--Once more back in Old England, which I ought never to have

left, I remit you the enclosed note in discharge of my reckoning.

Before this, you will doubtless have discovered who your Great Unknown

really was, and that his business is with pistons and paddlewheels, not

with novels and romances. My best regards to that merry fellow Alexis,

and to your sentimental little daughter. And you, my comical old

friend, have my best wishes for your welfare and prosperity.--WILLIAM

SCOTT."

When Wirtig had read this epistle, he remained for some time plunged in

thought. From that day forward he left off novel-reading, and attended

to his business; called Caleb Tobias; eschewed bagpiping and Scottish

cookery; consigned plaid-curtains, oaken sideboards, and portraits of

the Great Unknown to the lumber-room. And before the new year arrived,

the Blessed Bear of Bradwardine had disappeared from the door, and the

thirsty wayfarer might once more drink his glass by the light of the

jolly old Star.

MODERN STATE TRIALS.

PART III.--DUELLING.

[_Note on Part II. on Criminal Responsibility in cases of

Insanity._--A physician in a responsible official situation,

affording him great opportunities for observation, has addressed

to us a note from which we extract the following passages. Our

only object is to aid in eliciting truth; and our anxiety to

do so is proportionate to the difficulty and importance of the

subject to which the ensuing letter has reference.[39]

"The article on Oxford and M'Naughten has interested me very much; and

though I cannot at all admit the principle of punishing a man for his

misfortune, I am yet satisfied that the doctors have assumed too much,

and have helped to let loose upon society some who deserved hanging as

much as any who have ever suffered the extreme penalty. The test of

insanity, as laid down by the Judges on the solemn occasion to which

you refer, is manifestly of no value; for it is, I might almost say,

_the exception_ for an insane person _not_ to know the difference

between right and wrong. Many of them deliberately commit acts which

they know to be wrong. Dadd killed his father, and immediately fled

to France to avoid the consequences of his crime; and nobody ever

doubted that he was one of the maddest, if not the maddest, of the

mad. Touchet shot the gunmaker, not only with a full knowledge of the

nature of the crime, but for the express purpose of bringing about

his own death. He has entertained various delusions: amongst others,

the notion that certain passages of Scripture have special reference

to himself personally; and, as regards those in actual confinement,

on account of their mental malady, the majority know perfectly well

that it is wrong to tear, break, and destroy, to injure others, and

indulge their various mischievous propensities. So well satisfied are

many of them that they are doing wrong, that they will try to conceal

acts which they know are not permitted; and, in this way, a propensity

to bite, or kick, is indulged in only when it is believed that it

can be done unobserved. It seems to me that, in these most painfully

embarrassing cases, every one must stand on its own particular merits;

and, as neither judges nor doctors can say where sanity ends, and

insanity begins, so no possible rule that can be devised will be alike

applicable to all; but the previous habits and course of life of the

person accused, together with the absence or presence of any motive,

will go far to remove the difficulties which necessarily beset the

question. I am not at all prepared to say that, because any degree of

mental disturbance has been shown to exist, a person should be held

_irresponsible_. It is a doctrine fraught with such dreadful danger

to society, that it is very properly viewed with jealousy; but, when

clearly proved that the mind was so far disturbed as to entertain

delusions before and at the time of committing the offence, I would

never resort to capital punishment. The Omniscient alone can tell how

far the disease has gone, and to what extent the unfortunate being was

really responsible for his actions to his follow men."]

Is, or is not, a trial in this country for duelling to be regarded as

a Farce following a Tragedy? There are those who say that it is; but

we are not of the number. Such trials often greatly excite the public

mind, and array opinions and prejudices against each other in such

a manner as to disturb and derange the judgment. Then more or less

is expected from the law, and its administration, than is right. If

the heated public should have prepared itself for a conviction, loud

and violent is its reclamation against an acquittal, especially if it

have been brought about by what are styled technical objections, and

_vice versâ_. They forget, under the impetuous impulses of a sense

of natural justice, that settled rules of legal procedure must be

observed indifferently on all occasions, if even-handed justice is to

be administered in a court of justice. How did these rules come to

be settled? They are the results of centuries of experience--of ten

thousand instances of the advantage, nay, the absolute necessity, for

observing them. If it could be imagined with any, even the slightest

foundation of truth, that those sworn to decide according to the law

and the facts had wilfully shut their eyes to the one or the other--or,

either directly or indirectly, connived at an evasion of the letter or

a violation of the spirit of the law, in order to secure a particular

result--then there is no power in language adequate fitly to denounce

so deliberate and awful a perjury, so monstrous an outrage on the

administration of justice.

_Bonâ fide_ duels are always lamentable affairs, under whatever

circumstances they may happen, especially when attended by loss of

life or serious personal injury--occurring, too, in a highly civilised

and Christian country like ours. They properly arouse the grief and

indignation of every thoughtful and virtuous member of the community;

whom, however, they also satisfy as to the prodigious practical

difficulty of dealing with such cases. While the law of the land is

clear on the subject as the sun at noonday--alike unquestionable and

unquestioned--there yet exist, in almost every detected duel, far

greater difficulties than are suspected by the public, in bringing

to justice the guilty actors. First of all, it must be borne in mind

how deep an interest they have in cutting off all means of future

evidence, by intrusting a knowledge of the affair to the fewest persons

necessary for carrying it out, and by selecting scenes remote from

observation. Then, again, let it be remembered that both principals

and seconds, and all others present aiding and abetting, have incurred

heavy criminal liability--are liable to be indicted for murder, as

principals or accessories; and, consequently, none of them can be

compelled to furnish any evidence which may even _tend_ to criminate

himself. This great rule of criminal law has doubtless operated as a

great indirect encouragement to duelling; but how is this difficulty to

be encountered? Must the rule be abrogated?

Assuming, however, the existence of evidence, and that it is

satisfactorily adduced before the jury, it then becomes the duty of the

judge and the jury to act in accordance with their oaths: the former to

lay down the law distinctly and unequivocally; the latter to find their

verdict conscientiously according to the principles of law so laid

down, as applicable to the proved facts of the case. If a conviction

ensue, the judge must then pronounce the sentence of the law; and

it then depends upon the discretion and firmness of the executive

whether that sentence shall be carried into effect. Take the case of a

fatal duel, conducted with unimpeachable fairness, as far as concerns

the practice of duelling--and that the prisoner had received great

provocation from his deceased opponent, who had obstinately refused

retractation or apology. What is to be the decision of the executive?

What will be its moral effect, as an encouragement or discouragement of

duelling? Will it operate as a tacit recognition, to any extent, of the

practice of duelling, as at all events a necessary evil, and denuded of

moral turpitude? These are questions by no means of easy solution.

In the present constitution of society in this country--a Christian

community--duelling is a practice environed with difficulties,

whichever way it may be approached by its most discreet and resolute

opponents. We must deal with men and things as they are, at the same

time that we would make them what we think they ought to be. How many

professing Christians--men of otherwise pure and virtuous lives--have

gone out deliberately to take the life of an opponent, or expose

or sacrifice their own!--solely, it may be, from a puerile notion

that their _honour_ required the committing of the crime! "It is not

one of the least evils of this system," it has been well observed,

"that the word _honour_--which, rightly understood, denotes all that

is truly noble and virtuous--should be prostituted as a pretext for

gratifying the most malignant of human passions, _or as a cover for

that moral cowardice--the fear of being thought afraid_." This is one

of the chiefest roots of the poisonous tree: and can human laws kill

it? We think they can. If the legislature were really intent upon

annihilating duelling, its members would long ago have acted on the

suggestion of Addison--that, "if every one who fought a duel were to

stand in the pillory, it would quickly diminish the number of these

imaginary men of honour, and put an end to so absurd a practice." If

men will fight for a little stake, let them be made into little men, by

enduring a degrading punishment; if for a great stake--that is to say,

the gratification of malignant passions--let them be treated as great

criminals, and die the felon's death, or live his life. Let justice be

really blind in all such cases, her sword descending upon noble and

ignoble of station alike.

We acknowledge that there is one aspect of the practice of duelling,

which somewhat perplexes the moralist: for it cannot be denied,

or doubted, that duelling operates as a great preventive check to

ruffian insolence and violence--as a potent auxiliary in preserving

the necessary restraints and the courtesies of society. "It must be

admitted," says Robertson, "that to this absurd custom we must ascribe,

in some degree, the extraordinary gentleness and complaisance of modern

manners, and that respectful attention of one man to another, which

at present renders the social intercourse of life far more agreeable

and decent than among the most civilised nations of antiquity." How

many a viper-tongued slanderer's lips have been sealed by the dread

of a bullet! How many an insolent inclination to personal violence

has been checked--how many a truculent heart has sickened, before the

prospect of a "leaden breakfast!" Take a single case, which is really

embarrassing to the candid opponent of duelling; an insult offered,

by either words or deeds, to the character or person of a lady whom

one is bound to protect--an injury beyond all legal cognisance, and

perpetrated by one occupying the station of a gentleman. To one who

does not bow under the paramount influence of religion, the harassing

question occurs,--What is to be done? Cases may be easily imagined in

which it would be idle to say--"treat the offence and the offender with

contempt--leave them to the contempt of society;" where such a course

would only add to the poignancy of the wrong or insult, and invite

aggravation and repetition. Let the outraged lady be imagined one's

own wife, or daughter, or sister! Is the wrong to be perpetrated with

impunity? asks the upholder of duelling. "What would you do," retorts

his opponent; "will you deliberately take the life of the offender, and

give him an opportunity of taking yours?[40] Is that your notion of

_punishment_, or _satisfaction_? What will be the effect of an example

such as this, upon society at large? Is every one to be at liberty to

do the like?--thus deliberately to ignore the law of God and of man?"

Duelling is, in truth, almost always the resource of the weak-minded,

the vain, the vindictive, or the cowardly; and it is not right to ask

society to be liberal in its allowances for the wrongdoings of its

less worthy members. There are, nevertheless, cases in which persons

have found themselves involved in duels under circumstances pregnant

with extenuation in the eyes of even the hardest moralist, and such as

warrant the executive, when the majesty of the law has been vindicated,

and its authority recognised, in mitigating or remitting the punishment

due to an acknowledged violation of the law.

The law of the land is better able to vindicate really outraged

character and honour than may be imagined by many foolish hot-blooded

persons, who give or accept "hostile messages." It is armed with ample

powers of compensation and punishment, as may easily be ascertained

by those who can satisfy it that they have been the victims of

deliberate and wanton insult and injury. Little more than a year ago,

one gentleman thought proper to write to some naval and military

friends of another most offensive imputations upon his honour. When

apprised of this, he instantly wrote to demand that his traducer should

either prove the truth of his assertion, or unequivocally retract and

apologise for them. Both alternatives were very contemptuously refused,

on which the injured party brought an action for libel against his

traducer; who, unable to justify, and unwilling to apologise, allowed

the case to go before a jury. On their learning the true nature of the

affair, and being reminded that they were appealed to as a jury of

twelve gentlemen, to vindicate the honour of an unoffending gentleman,

they gave such heavy damages (£500) as soon brought his infuriate

opponent to his senses, and elicited an unequivocal retractation, and

as ample an apology as could have been desired. A few instances of

this kind would soon satisfy the most sceptical of the potency of the

law in cases too often deemed beyond its reach, and of the effective

reality of its redress in cases of wounded honour. Who could lightly

esteem being solemnly and publicly branded by its _fiat_ as a liar and

a slanderer--its blighting sentence remaining permanently on record?

He who would regard such a circumstance with indifference surely is

not worth shooting, or running the risk of being shot by, or of being

hanged or transported for shooting or attempting to shoot! If a person

of distinguished station or character receive an insult or an injury of

such a nature, as not to admit of being treated with silent contempt,

it becomes his duty to society to set an example of magnanimous

reliance on the protection of the laws of his country, and pious

reverence for the laws of God. Against one thing, however, every one

should be constantly on his guard--the entertaining and cherishing that

false overweening estimate of personal dignity and importance, which

predisposes too many to take offence, and then hurry to revenge it.

According to the law of England, as already stated, a death caused by

duelling, though in the "fairest" possible manner, is clearly murder,

to all intents and purposes whatsoever. In the year 1846, the majority

of the Criminal Law Commissioners suggested a change in this law,

recommending that, where two persons agree to fight, and a contest

ensues, and one of them is killed, the homicide should be extenuated.

The reasons on which this suggestion was founded appear to us of a

very unsatisfactory nature; and one of the Commissioners--the late Mr

Starkie--altogether dissented from the views of his brethren, embodying

his reasons in an able and convincing protest or counter-statement.

"Whilst," he observes, at its close, "as it seems to me, little good

could be expected from the proposed alteration, it might be productive

of much harm in a _moral_ point of view. It would be understood to

manifest an alteration in the opinion of the Legislature as to the

heinousness of the crime of homicide, and of course tend to diminish

the efficacy of the law against it." We entirely concur in the

following remarks of Mr Townsend, in one of the best expressed passages

in his book:--

"Founded on the law of God, the law of the land should remain clear

and stringent, that whoever kills in a deliberate duel commits murder.

The sanctity of human life would be impaired were this denunciation

lessened, and the forfeit, for expediency's sake, commuted. The

very good to be obtained by the compromise with 'codes of honour'

would be temporary; for arguments of hardship, as the consequences

of conviction, and appeals to compassion against a _gentleman_ being

adjudged guilty of felony, and transported--it might be for life--would

equally tickle the ears of credulous jurors, and be listened to with

as much avidity as the present topic of capital punishment. Let the

law maintain its own independent straightforward path--_irretortis

oculis_--and, be the fluctuations in fashionable feeling what

they may, continue, in its austere regard for life, unchanged and

unchangeable."[41]

Thus stands the matter: the Legislature not having ventured to

interfere with the law, which must be administered with rigorous

faithfulness by those to whom that severe and responsible duty has been

entrusted, God forbid that there should ever be coquetting with an oath

on these occasions!

We have no hesitation in saying that our English Judges, as far as

our inquiries have gone, invariably lay down the law, in these cases,

with clearness and unfaltering firmness. The only approach towards a

departure from this rule of right, is one which we trust has no other

foundation than an erroneous report of what fell from Baron Hotham

at Maidstone, in the year 1794, in trying a Mr Purefoy, who shot his

late commanding officer, Colonel Roper. That Judge, according to

Mr Townsend[42]--who also intimates a hope that the judge has been

incorrectly reported--concluded his summing up, which produced, as

might have been expected, an instant acquittal, by the following

extraordinary passage:--

"It is now a painful duty which jointly belongs to us; it is mine to

lay down the law, and yours to apply it to the facts before you. The

oath by which I am bound obliges me to say that homicide, after a

due interval left for consideration, amounts to murder. The laws of

England, in their utmost lenity and allowance for human frailty, extend

their compassion only to sudden and momentary frays; and then, if the

blood has not had time to cool, or the reason to return, the result is

termed manslaughter. Such is the law of the land, which, undoubtedly,

the unfortunate gentleman at the bar has violated, _though he has acted

in conformity to the laws of honour_. His whole demeanour in the duel,

according to the witness whom you are most to believe, Colonel Stanwix,

was _that of perfect honour and perfect humanity_. Such is the law,

and such are the facts. _If you cannot reconcile the latter to your

consciences_, you must return a verdict of guilty. But if the contrary,

_though the acquittal may trench on the rigid rules of the law, yet the

verdict will be lovely in the sight both of God and man_."

If Baron Hotham really uttered this drivel, he was totally unfit to

administer justice, and should have been removed from the Bench. Mr

Townsend, in one place, observes that Baron Hotham "must have allowed

his kindly feelings to master his judgment;" and in another cites the

case as "a very _famous_ one, being the first of those occasions on

which judges admitted, from the bench, the necessity and expediency

of juries tempering the law, where, by a stern necessity, they have

held themselves bound by it;" that is, in plain English, where judges

advised juries to violate their oaths, in order to defeat the just

administration of the law. We know no parallel to this "famous" case,

except that of Justice Fletcher, a judge in Ireland, in the year

1812; who--as we learn from Mr Phillips' very interesting _Memoirs

of Curran_, about to issue from the press--thus addressed an Irish

jury, in a trial for murder occasioned in a duel: "Gentlemen, it is

my business to lay down the law to you, and I shall do so. Where two

people go out to fight a duel, and one of them falls, the law says it

is murder. And I tell you, by law it _is_ murder; but, at the same

time, _a fairer duel I never heard of in the whole coorse_ [_sic_] _of

my life_!" The prisoners were, of course, immediately acquitted.

Mr Townsend states, that "the long series of judicial annals has not

been darkened by a single conviction for murder, in the case of a duel

fairly fought."[43] If this be a correct statement, which we greatly

doubt, it argues either a signal deficiency of evidence in every case,

or a perverse disregard of duty by either judges or juries, or both.

We repeat it, and do so anxiously desirous of giving every degree of

publicity in our power to the fact, that our judges discharge their

duties on these occasions with unwavering firmness. We shall give two

or three modern and interesting instances. The late eminent Mr Justice

Buller tried a clergyman--the Reverend Bennet Allen,(!)[44] and his

second, for killing a Mr Dulany, in a duel fought at ten o'clock at

night, in Hyde Park, at the distance of eight yards: the reverend

duellist had put on his spectacles, in order to see his man. Mr Justice

Buller told the jury that "they were bound to adhere to the law, as to

which there never," he continued, "has been a doubt. In the case of a

deliberate duel, if one person be killed, it is murder in the person

killing him. Of that proposition of law there is not, there never has

been, the smallest doubt. Sitting here, it is my duty to tell you

what the law is, which I have done in explicit terms; and we must not

suffer it to be frittered away, by any false or fantastical notions

of honour." Here the judge did his duty: but the jury seem, according

to Mr Townsend, who doubtless spoke after having duly examined the

facts of the case, "to have temporised between their consciences and

wishes, by acquitting the second, and finding the principal guilty of

manslaughter."

Mr Justice Patteson, in trying the seconds for murder, in the case

of the fatal duel between Dr Hennis and Sir John Jeffcott, who

shot the former, thus plainly put the matter to the jury: "Whether

duelling ought to be tolerated in this land, I say nothing. It is

no question for any _jury_ at all. The law of the land does not

tolerate it. I repeat that, if you are satisfied on this evidence,

that the three gentlemen went out to Haddon, knowing that Sir John

Jeffcott and Dr Hennis were about to fight a duel there, without heat

or irritation--but deliberately aiding and assisting the affair on

a point of honour, after vainly endeavouring to effect an amicable

arrangement--I cannot tell you, in point of law, that it is anything

short of murder." The jury at once acquitted the prisoners![45]

In the year 1838, a young man named Mirfin was shot in a duel at

Wimbledon, by a young man named Elliott, twenty-five years of age,

under deplorable and aggravated circumstances. The former had been a

linendraper in Tottenham Court Road; and, together with the latter,

seemed to have led the dissolute life, for some time, of men about

town. The duel arose out of a quarrel which had occurred in a certain

indecent scene of infamy near Piccadilly! Two young men named Young and

Webber, respectively only twenty-four and twenty-six years of age, were

tried for the wilful murder of Mirfin. They had not acted as seconds

of the survivor, but had accompanied him and his second to the scene

of action. The chief witness was a surgeon, who detailed with a deadly

simplicity and matter-of-fact air the whole particulars of the duel,

at which he was present; and produced such an effect on the jury that,

on delivering their verdict, they expressed the "horror" with which

they had heard his evidence and regarded his conduct, and their regret

that he had not himself been put upon his trial for murder. The reader

shall have an opportunity of judging for himself on the subject, from a

portion of the evidence given by this person.[46]

"After the pistols were loaded, Mr Elliott and Mr Mirfin were

placed on their ground, and a pistol was delivered to each. I

then went and stood seven or eight paces from them, with the two

seconds. I looked at the principals. The word to fire was given by

Mr Elliott's second: he said, 'Gentlemen, are you ready?--_Stop!_'

That was the agreed signal for firing: they were to fire instantly

on the last word 'stop' being uttered, and not before.They fired

together immediately on the signal. After they had fired, I observed

that _the ball had passed through the crown of Mr Mirfin's hat_:

I saw something fly up in the air: I saw a portion of the crown

just raised at the moment. As soon as they had fired, the seconds

interfered. I and they were standing together. They moved towards

the principals, who remained in their places. Some conversation

took place between the principals and seconds, and then between the

seconds themselves--which lasted for a few minutes only. Mr Mirfin

insisted on a second shot. He spoke loud enough for all present to

hear. I stood within seven or eight paces of him, and could hear

every word he said. I was intent looking at his hat--I saw the ball

had passed through it. I could hear that the conversation was with

a view to reconcile the parties; but Mr Mirfin would not hear of

any reconciliation. I believe Mr Elliott would have made a verbal

apology; but Mr Mirfin would accept nothing but a written apology,

and insisted on a second shot. After he had made this statement,

another pistol was delivered to each. They next left their ground.

I told Mr Mirfin that his hat had been shot through, and he took

it off and looked at it, and said nothing, but replaced it on his

head. The second pistols were Mr Mirfin's, and were fired at a

signal exactly similar to the former one. Mr Elliott fired first,

but not till after the signal had been given. I distinctly heard the

sound of his pistol, immediately after the word had been given; and

Mr Mirfin's shot was fired almost immediately. I think his pistol

was discharged after he had received the fatal shot. I think he

felt the wound previous to his firing off his pistol. He did not

sufficiently raise his hand. His ball struck the ground. He was in

the act of bringing his pistol to the level, when he fired. After

both shots had been fired, I looked at each of the men, and did not,

at first, perceive that either was injured. Mr Mirfin walked towards

me about six paces, I think, with his left hand on his right side,

and, I think also, the pistol still in his right hand. I think he

gave it to me. He advanced towards me saying, 'I am wounded.' I

asked him where; he looked towards the wound and raised his fingers,

showing me where he was wounded, but without speaking. I said, 'I am

exceedingly sorry to hear it: good bye. God bless you!' He replied,

'_Good bye, old fellow!_' I then assisted him to lie on the grass.

He did not fall immediately. I undid his pea-jacket and waistcoat,

and pulled up his shirt, and probed the wound. The other persons

were standing by. Mr Mirfin's second walked up, and asked if the

wound were fatal. I said it was a very fatal wound. Mr Elliott and

his second said nothing, merely looking on. Mr Broughton asked me

again, after I had probed the wound, whether it was fatal. I said it

was. He asked, 'What shall we do?' I replied, 'The sooner you leave

the ground the better, and I will wait.' They all three left the

ground together. Mr Mirfin died within ten minutes. I did not speak

to him after this. I saw I could be of no service to him, and did

not wish to fatigue him by saying anything to him. I examined the

body after I had got it home, and discovered a small wound not quite

the size of a (bird's?) egg, between the fifth and sixth ribs."

We have given these details in all their sickening simplicity and utter

hideousness, because they are worth a world of comment on the nature

and tendency of affairs of honour.

The trial came on before the late Baron Vaughan, and the present Baron

Alderson, at the Old Bailey, on the 22d Sept. 1838; and the former

thus laid down the law to the jury: "When upon a previous arrangement,

and after there has been time for the blood to cool, two persons meet

with deadly weapons, and one of them is killed, he who occasions the

death is guilty of murder; and the seconds are also equally guilty. The

question then is, did the prisoners give their aid and assistance by

their countenance and encouragement of the principals, in this contest?

Though neither of the prisoners acted as second, still, if either

sustained the principal by his advice _or his presence_--or, if you

think he went down for the purpose of encouraging and forwarding the

unlawful conflict, although he did not say or do anything, yet if he

were present, and was assisting and encouraging, at the moment when the

pistol was fired--he will be guilty of the offence of wilful murder.

Questions have arisen as to how far the second of a party killed in a

duel is liable to an indictment for the murder of the deceased: I am

clearly of opinion that he is."

The prisoners were convicted; but under the special circumstances of

the case--for there existed, in the evidence, considerable doubt as

to the part taken in the murderous affair by the prisoners--or even

whether they, in fact, took _any_ part in it--sentence of death was not

passed upon them, but only ordered to be recorded against them; and

they were afterwards sentenced to a lengthened term of imprisonment. Mr

Townsend does not seem to have been aware of this case, as he makes no

allusion to it.

We ourselves were present at a remarkable trial for duelling, about

eighteen or twenty years ago, at the Old Bailey, before the late

excellent and very learned Baron Bayley, on which occasion he also laid

down the rule of law respecting duelling, with uncompromising firmness

and straightforwardness. This was the case of Captain Helsham, who had

shot Lieutenant Crowther in a duel, at Boulogne. There were rumours

of foul play having been practised; and a clergyman, the brother of

the deceased, made strenuous and persevering efforts to bring Captain

Helsham to trial. The latter continued, for some time after the duel,

in France, though anxious to return to England; and after (as we have

heard) taking the opinion of a well-known counsel at the criminal

bar--who advised him that he could not be tried in this country for a

duel fought in a foreign country not under the British crown--he came

to England, where he was instantly arrested, under Stat. 9 Geo. IV. c.

31, § 7, which had been passed two or three years previously--viz., in

1828--and must have altogether escaped the notice of the counsel in

question. That act authorises the trial, in England, of any British

subject charged with having committed any murder or manslaughter

abroad, whether within or without the British dominions, as if such

crimes had been committed in England. Captain Helsham was admitted to

bail to meet the charge, and, having duly surrendered, took his place

at the bar of the Old Bailey, at nine o'clock on a Saturday morning.

He was a middle-aged man, of gentlemanly appearance, his features

indicating great determination of character; but they wore an

expression of manifest anxiety and apprehension as he entered the dock,

and, looking down, beheld immediately beneath him the brother of the

man whom he had shot, and through whose ceaseless activity he was then

placed on trial for his life as a murderer. And he was to be tried by

an uncompromising judge--stern and exact in administering the law, and

animated by pure religious spirit; but, withal, thoroughly humane.

Throughout the whole of that agitating day, the prisoner stood firm as

a rock--sometimes his arms folded, at others his hands resting on the

bar; while his eyes were fixed intently on the judge, the witnesses, or

the counsel--every now and then glancing with gloomy inquisitiveness

at the jury and the judge. His lips were from first to last firmly

compressed. It was understood that the counsel for the prosecution

were in possession of a damning piece of evidence--viz., that the

prisoner had spent nearly the whole of the night immediately preceding

the duel in practising pistol-firing. However the _fact_ might be, it

nevertheless was not elicited at the trial; and probably the prisoner,

who had been prepared for such evidence being produced, began, on

finding that it was not so, to take a more favourable view of his

chances. As the case stood, however, it looked black enough to those

who knew the law, and the character of the judge who sat to administer

it. That venerable person began his summing up to the jury about seven

o'clock in the evening, and the scene can never be effaced from our

memory. The court was extremely crowded; the lights burned brightly,

exhibiting anxious faces in every direction: but what a striking figure

was the central one--that of the prisoner! Immediately over his head

was a mirror, so placed as to reflect his face and figure vividly,

especially to the jury. A few moments after the judge had commenced

his charge, we observed the Ordinary of Newgate glide into court, the

late Rev. Dr Cotton, in full canonicals, and with flowing white hair,

having a picturesquely venerable and ominous appearance, and take his

seat near to, but a little behind the judge. It was then usual for

the Ordinary to be present at the close of capital cases, in order to

add a solemn "amen" to the prayer with which the sentence of death

concluded--that "God would have mercy on the soul" of the condemned.

"Gentlemen of the jury," commenced Mr Baron Bayley, amidst profound

silence, "we have heard several times, during the course of this trial,

of _the law of honour_; but I will now tell you what is the _law of the

land_, which is all that you and I have to do with. It is this: that if

two persons go out with deadly weapons, intending to use them against

each other, and _do_ use them, and death ensue, that is--murder,

wilful murder." He paused for a moment, as if to give the jury time to

appreciate the dread significance of his opening. As soon as he had

uttered the last two words, Captain Helsham's cheek was instantaneously

blanched. We were eyeing him intently at the moment, and shall never

forget it. He stood, however, with rigid erectness, gazing with

mingled anger and fear at the judge, whom he felt to be uttering his

death-warrant; and after a while bent his eyes on the jury, from whom

they wandered scarce a moment during that momentous summing-up--one

which, with every word, was letting fall around him, as he must have

felt, the curtain of death. "The law of honour," said the judge,

towards the close of his charge, "is an imposture--a wicked imposture,

when set against the law of the land, and the law of God Almighty,

claiming the right to take away human life. I tell you, who sit there

to discharge a sworn duty, that a fatal duel is malicious homicide--and

_that_ is wilful murder." The jury retired to consider their verdict;

and the judge at the same time quitted the court till his presence

should be required again. Captain Helsham, however, continued standing

at the bar almost motionless as a statue. After a prolonged absence of

an hour and forty minutes, the jury returned into court. The prisoner

eyed them, as one by one they re-entered their box, with a solicitude

dismal to behold, and the irrepressible quivering of his upper lip

indicated mortal agitation. The verdict, however, was--Not Guilty; on

which the prisoner heaved a heavy sigh, passed his hand slowly over his

damp forehead, bowed slightly, but rather sternly to the jury, and was

then removed from the bar and released from custody. When the verdict

was a few minutes afterwards communicated to Baron Bayley, who had

remained in attendance in an adjoining room, he remarked gravely, "I

did _my_ duty! It is well for Captain Helsham that the verdict is as

it is; had it been the other way, I should certainly have left him for

execution." In that case, the duellist would have died on the gallows

on the ensuing Monday morning.

It is now, however, time to return to Mr Townsend's volumes, where we

find two trials for duelling. One is that of the late Mr Stuart, who

killed Sir Alexander Boswell, in Scotland, on the 26th March 1822, in

a duel conducted with undisputed regularity and fairness. The other is

that of the Earl of Cardigan, who fought and wounded Captain Harvey

Tuckett, but not mortally, in a duel, on the 12th September 1840. This

trial is one of remarkable interest, in every point of view; and we

shall take some pains in bringing it distinctly and intelligibly before

our readers.

About five o'clock on the afternoon of Saturday, the 12th September

1840, a person named Daun, a miller, together with his wife and

son, observed from the stage of their mill, on Wimbledon Common,

two carriages approaching it from opposite directions, and at once

suspected what was about to take place. Two gentlemen first quitted the

carriages--each with a pistol-case--duly loaded a brace of pistols,

and stepped out twelve paces; on which two other gentlemen, the Earl

of Cardigan and Captain Tuckett, came up, and took their stations

at the points indicated. To each was given a pistol; the other two

withdrew to a little distance; the word to fire was uttered, and

immediately followed by an ineffectual discharge of both pistols.

The principals remained at their posts; a second brace of pistols

was given them; again both fired and Captain Tuckett fell, wounded

in the small of the back--bleeding profusely, but, as it proved, not

from a mortal, or even dangerous wound. Thus the aristocratic affair

of _honour_ was more fortunate in its issue than that plebeian one

in which, two or three years before, the young linendraper Mirfin

had received his mortal "satisfaction." Lord Cardigan's second was

Captain Douglas, and Captain Wainwright was that of Captain Tuckett.

The whole affair of the duel had been witnessed by the miller, (who

was also a constable,) and his wife and son, standing on the stage

of the windmill. The moment that Captain Tuckett fell, the miller

and his son quitted their post of observation, ran up to the scene

of action, and intimated to all the parties that they must consider

themselves in his custody. Lord Cardigan still held in his right

hand the pistol with which he had fired; and there lay on the ground

two pistol-cases, one of them bearing the Earl's coronet. Captain

Tuckett lay on the ground, his second Captain Wainwright kneeling

beside him, supporting him; while Sir James Anderson, a surgeon,

who had attended them to the field, was examining the wound. One of

these three entreated the constable to allow the wounded gentleman

to be removed to his own house, giving a solemn pledge that, on his

recovery, he should attend before the magistrate. At the same time

one of them took out a card, on which was printed--"Captain Harvey

Tuckett, No. 13 Hamilton Place, New Road," and wrote in pencil, on the

back of the card, the words, "Captain H. Wainwright." Who gave this

card remains, in the evidence, a mystery; nor did it appear whether

Lord Cardigan saw the card given, or knew what was printed or written

on it, or heard what was said. As almost the whole interest of the

trial, and also its unexpected issue, turned upon the identity of the

wounded duellist, and the requisite adroitness and vigilance of the

late Sir William Follett, the Earl's counsel, in dealing with this

card, and the circumstances attending its delivery to the constable,

the reader will find his account in remarking these circumstances

accurately. On the constable's receiving the card, and the pledge above

mentioned, he allowed those who had given it to depart. The conduct

of the Earl of Cardigan was undoubtedly distinguished by soldierly

straight-forwardness and frankness. He went direct, with Captain

Douglas, to the Wandsworth police station, and, tapping at the door,

the inspector presented himself, and asked what was wanted. "I am

a prisoner, I believe," said Lord Cardigan. "Indeed, sir!--on what

account?" asked the surprised inspector, as Lord Cardigan entered the

station-house. "I have been fighting a duel," said his Lordship, "and

hit my man--but not seriously, I believe--slightly--merely a graze

across the back"--drawing his hand across his own back, to indicate

the region where he believed his ball had struck Captain Tuckett. Lord

Cardigan then turned to Captain Douglas, and said, "This gentleman,

also, is a prisoner--my second, Captain Douglas." He then took several

cards out of his right breast pocket, and handed one of them to the

inspector. It bore the words, "The Earl of Cardigan, 11th Dragoons."

On reading the name, the inspector said, "I hope the duel was not with

Captain Reynolds?"--alluding to the notorious disputes between his

Lordship and that officer, and which led to a court-martial on the

latter. Lord Cardigan "stood up erect," said the inspector in giving

his evidence, and seemed to reject the notion with the utmost disdain:

saying, "Oh no, by no means!--do you suppose I would fight with one of

my own officers?"[47] He duly appeared before the magistrates, and

was bound over in heavy recognisances to appear whenever his presence

should be required. He did so from time to time. As soon as Captain

Tuckett had sufficiently recovered, he also made his appearance at

the police office, _and gave his name_. The affair had by this time

attracted much public attention, chiefly, there can be little doubt,

from the unpopularity of the Earl of Cardigan; the newspapers teeming

with accounts of his alleged discourteous and oppressive treatment of

the officers under his command. The prosecution of Lord Cardigan was

loudly called for; it being alleged that the high rank of the offender

imperiously demanded that evenhanded justice should be dealt to him.

Mr Townsend speaks of this demand for prosecution as "a very pitiful

manifestation of popular rancour and spleen."[48] "As the duel," he

adds, "had been fairly fought, and the code of honour satisfied,

without loss of life, it seemed strange that the first unsheathing of

the statute should be directed against a high-spirited and gallant

nobleman, who had been exposed to violent prejudice and popular

clamour; and the prosecution seemed justly obnoxious to the supposition

that it originated in party malevolence, and not in respect to the

law." _We_ never shared in the hostility here spoken of as existing

towards the gallant nobleman in question. Our political opinions are

also his; and we are disposed to believe that he has been the victim

of much misrepresentation and injustice. We desire, nevertheless,

to be understood as vindicating the call for judicial inquiry into

the transaction to which Lord Cardigan and his opponent, with their

seconds, were parties, if that transaction had been of a criminal

character. Only three or four years previously, two young men had been

tried and convicted of wilful murder, for having only been present at

the duel which cost one of the principals (Mirfin) his life. If Captain

Tuckett had been killed, Lord Cardigan would clearly have been guilty

of wilful murder--that is beyond all question, if the law of England

be not a dead letter, and those who affect to set it in motion be not

guilty of a vile mockery of justice. If, therefore, a peer of the

realm, a member of the supreme judicature in the kingdom, had really

been guilty of a conspicuous and grave violation of the law, which

all are required to obey with implicit reverence, those who demanded

inquiry ought to have been given credit for acting on public grounds.

The peer should not escape, where the plebeian would be condemned.

Let us see, then, how stood, and how stands the law on this momentous

subject--for momentous it is.

In the first place, let it be understood that _the mere challenging_ to

fight a duel, whether verbally or in writing, and the mere _carrying_

any such challenge, is a high misdemeanour, punishable by fine and

imprisonment, according to the circumstances of the particular case.

This offence consists in the provoking or inciting others to commit

a breach of the peace; but may also be regarded in a much more

serious light--namely, as an attempt to commit or provoke others to

commit a felony,--and even wilful murder. In the present case, a

challenge had been sent and accepted: those who had done so, met,

and fired deliberately at each other with deadly weapons, at only a

few paces distance--they fired twice; the first time innocuously;

the second time, one of them was wounded. Every single step was here

highly criminal; the earlier ones as misdemeanours, the later ones

as felonies; the last indeed a capital felony, for which, beyond

all question, the life of Lord Cardigan had become forfeited to

the outraged law of the land. This we will shortly show, for the

consolation of all future duellists. By the common law of the land,

no personal violence, unattended by death, amounted to more than a

misdemeanour. In the year 1722, was passed "the Black Act,"[49] which,

amongst various enactments levelled at the class of offenders who

caused the passing of the statute, contains this brief general one.

"If any person shall wilfully and maliciously _shoot at_ any person,

in any dwelling-house, _or other place_, he shall be adjudged guilty

of felony, and suffer death." This was the first statute which made

the mere act of shooting wilfully and maliciously at another--without

reference to the result--felony. Subsequent statutes, respectively

known as Lord Ellenborough's and Lord Lansdowne's Acts, made it a

capital offence to shoot at another with intent to murder, or do

grievous bodily harm, provided the death which might be occasioned

would amount to murder. Though the matter had never become the subject

of judicial decision, it had been suggested by a late eminent writer

on the criminal law,[50] that, where an ineffectual interchange of

shots took place in a duel, both parties might be deemed guilty of

the offence of maliciously shooting, within one of these acts, passed

in the year 1803, (43 Geo. III. c. 58,) and the seconds also, as

principals in the second degree. In the year 1837, however, was passed

the Statute of the 1st Victoria, c. 85, which we advise every intending

duellist to consult very deliberately, before committing himself to

its meshes. It enacts first, (§ 2,) that "whoever shall _wound_ any

person, or by any means whatsoever cause to any person any bodily

injury dangerous to life, with intent to commit murder, shall be guilty

of felony, and suffer death." Again, secondly, (by § 3,) "whosoever

shall shoot at any person, or, by drawing a trigger, or in any other

manner, attempt to discharge any kind of loaded arms at any person,

_with intent_ to commit the crime of _murder_, shall, _although no

bodily injury be inflicted_, be guilty of FELONY, and liable to be

transported for life, or for any term not less than fifteen years, or

imprisoned for any term not exceeding three years, at the discretion

of the court." Lastly, thirdly, (by § 4,) "Whoever shall maliciously

shoot at any person, or, by drawing a trigger, or in any other manner,

attempt to discharge any kind of loaded arms at any person, or wound

any person, with intent to maim, disfigure, or disable, _or to do some

other grievous bodily harm_ to such person, shall be guilty of felony,

and liable to the same punishment contained in the previous section."

Blackstone, following Hawkins, thus lays down the law in the case of

duelling: "Express malice is, where one, with a sedate deliberate mind,

and formed design, doth kill another,--which formed design is evidenced

by external circumstances, discovering that inward intention,--as lying

in wait, antecedent menaces, former grudges, and concerted schemes to

do him some grievous bodily harm. _This takes in the case of deliberate

duelling, where both parties meet avowedly with an intent to murder;

thinking it their duty as gentlemen, and claiming it as their right,

to wanton with their own lives and those of their fellow creatures,

without any warrant or authority from any power either divine or

human, but in direct contradiction to the laws of both God and man;

and therefore the law has justly fixed the crime and punishment of

murder on them, and on their seconds also_."[51] This passage may be

said to reflect a somewhat ghastly light on the three sections of

the statute law given above, such as must have startled the Earl of

Cardigan and his advisers, as soon as they found that he had been

made the subject of _bonâ fide_ prosecution under that statute. We

affirm unhesitatingly, and no one will deny, that the facts relating

to the duel, as they appear above stated, brought Lord Cardigan's case

within every one of these three sections--as clearly within the first,

rendering the offence capital, as within the other two, declaring

it felony punishable with transportation. This the Attorney-General

himself stated to the House of Lords, in opening the case against

the prisoner: "The present indictment might have been framed on the

_capital_ charge." _A wound had been inflicted_, which constituted one

branch of the capital offence; but "the prosecutor had, very properly,

restricted the charge to firing with _an intent_, without alleging

that a bodily injury _dangerous to life_ had been inflicted."[52]

The indictment was founded on the third and fourth sections alone;

charging, in the first count, a shooting with _intent_ to murder; in

the second, to maim and disable; in the third, to do some grievous

bodily harm. Indictments were preferred before the grand jury, at the

Central Criminal Court, against both principals, and both seconds.

The grand jury ignored those against Captain Tuckett and his second,

but "found" those against Lord Cardigan and his second. As probably

the same evidence, precisely, was laid before the grand jury in both

cases, it is certainly difficult to account for the totally different

results, except on the supposition that the grand jury weakly suffered

themselves to be hurried into a forgetfulness of their sworn duty, by

feelings of commiseration for the party who had been wounded by one

who had escaped unhurt. Lord Cardigan was reputed to be "a dead shot,"

and was certainly very unpopular; but there was no pretence whatever

for saying that he had acted otherwise than with rigorous fairness in

his encounter with Captain Tuckett, who, for all the grand jury could

tell, was as "dead a shot" as the Earl. We would, however, fain hope

that this secret-sworn inquest were not obnoxious to the censures which

Mr Townsend[53] and others have levelled at them in this matter. On

the bill being found, Lord Cardigan, of course, claimed his right to

be tried by his peers--(_i. e. pares_, _æquales_)--a right which he

possessed in common with every fellow-subject; and the indictment was

removed by _certiorari_, to be tried before the House of Peers in full

Parliament. The court of the Lord High Steward of Great Britain is one

instituted for the trial of a Peer indicted for treason, or felony,

or misprision of either;[54] but when the trial take place during

the session of Parliament, as was the case on the present occasion

it is before the High Court of Parliament. A Lord High Steward is

appointed in either case; but in the latter he officiates, not as the

supreme judge in matters of law--as he would be in a trial during the

recess--but as speaker, or chairman, having an equal voice with his

brother peers, in matters both of law and fact.

This was the first time that duelling had been made the subject of

prosecution under the statutes against shooting with intent to kill,

maim, disable, or do grievous bodily harm; and the position of the Earl

of Cardigan had suddenly become perilous in the extreme, and doubtless

occasioned most serious apprehensions to himself and his advisers. If

his case should be held to fall within the statute in question, not

only was he liable to transportation for life,--and he knew that the

House of Peers would firmly do its duty, especially conscious as it

was that upon it were fixed the eyes of the whole country,--but what

would be the effect of _a conviction of felony_ on his property? Four

days after the trial, it was stated in the _Times_ newspaper,[55] and

has not been, as far as we know, contradicted, that "such had been the

doubts as to the issue of the trial, entertained by Lord Cardigan and

his legal advisers, that his lordship, to prevent the whole of his

property being forfeited to the crown, executed, some time before, a

deed of gift, assigning over the whole of his valuable possessions

to Viscount Curzon, the eldest son of Earl Howe, who had married a

sister of the Earl of Cardigan. It is stated that the legal expenses

of this transfer of property, arising from fines on copy-holds and the

enormous stamp-duties, amounted to about £10,000; and as the deed of

transfer was said to have been enrolled in due form, in the event of

an acquittal the immense expenditure would have to be again incurred,

in order to effect a re-transfer." So serious a matter, even in a

pecuniary point of view, has now become the fighting a duel, to a

nobleman or gentleman of fortune, who are recommended, consequently,

not to fight in a hurry--at all events, till they shall have had an

opportunity of taking the best advice of counsel learned in the law.

The deed of transfer in question, if executed at all, had probably been

executed before it was known to Lord Cardigan and his advisers, that it

was not intended to indict him for a capital offence, under the second

section of stat. 1 Vict. c. 85, and that he could not, consequently, be

attainted. Even, however, as the case stood, if he had been convicted

of the felony with which he was charged, the validity of his expensive

attempt to obviate the legal effect of that conviction upon his large

property would have been gravely questionable, had the law advisers of

the crown felt it their duty to impugn the transaction.