PRICE ONE SHILLING.
WILLIAM PLOMER , Knt. LORD MAYOR of the City of London; The Hon. FRANCIS BULLER , Esq; one of the Justices of his Majesty's Court of King's Bench; The Hon. JOHN HEATH , Esq; one of the Justices of his Majesty's Court of Common Pleas; JAMES ADAIR , Serjeant at Law, Recorder; and others his Majesty's Justices of Oyer and Terminer of the City of London, and Justices of Gaol Delivery of Newgate, holden for the said City and County of Middlesex.
THE Jurors for our Lord the King upon their oath present, That Bennet Allen , late of the parish of Saint George, Hanover-square , in the county of Middlesex, clerk , and Robert Morris , late of the same place, esquire , not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the 18th day of June , in the 22d year of the reign of our Sovereign Lord George the Third, King of Great-Britain, &c. with force and arms, at the parish aforesaid, in the county aforesaid, in and upon Lloyd Dulany , esquire, in the peace of God and our said Lord the King then and there being, feloniously, wilfully, and of their malice aforethought, did make an assault; and that he, the said Bennet Allen, a certain pistol, of the value of five shillings, then and there charged with gunpowder and one leaden bullet, which pistol he, the said Bennet Allen, in his right-hand then and there had and held, then and there feloniously, wilfully, and of his malice aforethought, did discharge and shoot off, to, against, and upon him, the said Lloyd Dulany ; and that the said Bennet Allen, with the leaden bullet aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said Bennet Allen discharged and shot as aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound the said Lloyd Dulany , in and upon the breast of him, the said Lloyd Dulany , below the right pap of the said Lloyd Dulany , giving to him, the said Lloyd Dulany , then and there, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said Bennet Allen, in and upon the said breast of him, the said Lloyd Dulany , below the said right pap of the said Lloyd Dulany , one mortal wound, of the depth of three inches, and of the breadth of half an inch, of which said mortal wound he, the said Lloyd Dulany , from the said 18th day of June, in the 22d year aforesaid, until the 21st day of the said month of June, in the year aforesaid, at the parish aforesaid, in the county aforesaid, did languish, and languishingly did live; on which said 21st day of June, in the year aforesaid, the said Lloyd Dulany , at the parish aforesaid, in the county aforesaid, of the mortal wound aforesaid, died: and that the said Robert Morris , at the time of committing the felony and murder aforesaid, then and there feloniously, wilfully, and of his malice aforethought, was present, aiding, abetting, comforting, assisting, and maintaining the said Bennet Allen, to kill and murder the said Lloyd Dulany , in manner and form aforesaid: And so the indictment charges, That the said Bennet Allen and Robert Morris , then and there, feloniously, wilfully, and of theirLloyd Dulany , in manner and form aforesaid, against the peace of our said Lord the King, his crown and dignity .
(They were also charged on the coroner's inquisition with the like murder.)
Counsel for the Crown.
Counsel for the Prisoners.
Messrs. WALLIS and TROWARD.
THE indictment was opened by Mr. ANSTRUTHER.
MAY it please your Lordship, and Gentlemen of the Jury, I am likewise of Counsel in this prosecution. - Gentlemen, I will briefly state to you the law upon the subject, and then those facts we have to give in evidence, to bring the law home against the Prisoner. - In all cases of murder there must be malice, either express or implied. It is to be collected from the circumstances of the case, whether you can imply malice, or whether there is clearly express malice arising from the circumstances. Express malice is defined to be, where a man with a sedate, deliberate mind, and formed design; sets about killing another: that is evidenced by either lying in wait, by menaces, by former grudges, or concerted schemes. - Where men appoint a certain place, thinking want only to risque their own lives, or to take away the lives of others, for a point of honour, the law has determined that to be murder, it being directly in violation of the laws both of God and Man. - The facts to bring this charge within that description, I will briefly state to you.
Mr. Allen is a Clergyman, and had a living in the province of Maryland, of 1000 l. a-year. Mr. Morris is a Gentleman of fortune, and is at the bar. In the year 1775, the deceased, Mr. Dulany, when the troubles commenced in America, preferred his allegiance to his private interest, and therefore left a considerable property in America, and came over to England. His Brother, who was Secretary of the Province of Maryland, remained there. In the year 1779, a paragraph appeared in the Morning-Post, giving the character of Daniel Dulany , the Brother of the deceased, the Secretary of Maryland. I will just read to you that paragraph, together with the answer to it, because they are alluded to in the letter sent by Mr. Allen, and delivered by Mr. Morris. In a paper inserted in the Morning-Post, on the 29th of June, 1779, entitled,
"CharactersDaniel Dulany :
'of Maryland, a person of still lower
'extraction than the former, offered the
'service of his pen to the Congress; which,
'as he would not act oftensibly, was rejected,
'and his name struck out of the list
'of toasts proposed at an entertainment
'made during a meeting of the first Congress,
'upon a motion of the Maryland
'Delegates, as inimical to the cause of Liberty.
'This and other instances of disaffection
'to the family, determined them to
'divide, part coming over to England, under
'the character of sufferers in the Royal
'cause, and part residing in America, to
'take care of their property, and to be
'ready to close with the winning side: -
'Policy too common on this occasion, as it
'only serves to prolong the war, and becomes
'a heavy burthen on this country;
'there being several of this name and family
'who have allowances from Government.'
Upon Mr. Dulany's seeing this paragraph in the paper, he immediately applied to the Editor to give up the Author: the Author could not be found; upon which the Editor immediately inserted this paragraph:
'THE Brother of Mr. Dulany, whose
'character was given in this paper of Tuesday
'last, amongst many others, as a leading
'man in the present Rebellion, having
'called at the office, and convinced us that
'the circumstances there alledged against
'his family are totally groundless; we are
'happy in the opportunity of publishing
'this his positive denial of the infamous
'charges advanced by our anonymous correspondent,
'whom Mr. Dulany calls upon
'to stand forth, and avow what he has
'so publicly asserted.'
This producing no avowal from the Author, Mr. Dulany thought it necessary on his part to insert a letter, to which he put his name, in order that the anonymous Writer might know it came from him. On the 5th of July, therefore, this letter appeared in the paper.
'To the anonymous Author of the Characters of
'the Leaders in the present Rebellion in
'America, in the Morning-Post of June 29,
'pretended to be written in the year 1776.
'YOU have held up my Brother, Mr.
'in the most odious and disgraceful colours.
'I have called upon you to produce yourself,
'and avow your charges, that I might
'see my enemy, and combat him fairly;
'but you still continue to skulk in the dark.
'I have used every method in my power to
'detect your person, but without effect.
'I call upon you once more either to
'publish your name, or to leave it at the
'Printer's; otherwise you must be content
'to pass with those to whom you have
'trusted your secret, and with the world,
'for what you know yourself to be, a detestable
'Liar and a cowardly Assassin!
Newman-street, No. 83.
This letter appeared in the news-paper in 1779. From that time till the unfortunate 18th of June last, Mr. Dulany heard no more of the author, nor of the paragraph: he could never find him out; nor perhaps did he search any further, having thus publicly called upon the author of that paper to avow himself.
Now, Gentlemen, this brings me to the circumstances which have occasioned this duel. - On the 18th of June, Mr. Morris came to the house of Mr. Dulany in Park-street; having called there the Sunday before, and not finding him at home, on the Tuesday he came and delivered a letter into Mr. Dulany's hand. That letter I will read to you.
'IT is not till the present moment that
'I find myself at liberty to avow, that the
'Maryland, published some time since in
'the Morning-Post, was written by me;
'the Author of which you call an infamous
'know you to be from facts, what I am only
'in your own imagination, both an infamous
'Liar, and a cowardly Assassin.
'I shall not go about to recriminate, because
'I do not wish to imitate, but to punish
'your insolence. The bearer will put
'you in a way of carrying it into immediate
What passed between Mr. Morris and Mr. Dulany, upon the delivery of the letter, can't now be laid before you. Mr. Dulany, upon the receipt of it, almost immediately took a coach; and in that coach, he and Mr. Morris went to the house of Mr. Delancey, in Wigmore-street. When they got there, Mr. Dulany got out of the coach, and told Mr. Delancey that he had received a challenge, by the hands of Mr. Morris, from the Rev. Mr. Allen, and begged Mr. Delancey would go with him. They all three then got into the coach, and went to Mr. Allen's house, at Islington Spa; they there heard that Mr. Allen was gone to a Gentleman's country house at Barking, and was likely to remain some time. Mr. Dulany then proposed following Mr. Allen. Mr. Morris objected to that, saying, that perhaps by the time they got to Barking, or Ilford, Mr. Allen might have left the place, and therefore their journey might be useless. Mr. Dulany then desired Mr. Morris to write, which I believe he did. From thence they went back again to Wigmore-street, to the house of Mr. Delancey; and when they came there, the three Gentlemen got out of the coach. Mr. Morris told them where he lodged in Oxford-street. Mr. Dulany and Mr. Delancey went to Mr. Delancey's house; they mentioned they would be at the Marybone Coffee-house about seven o'clock in the evening. Mr. Dulany and Mr. Delancey met at the Marybone Coffee-house, in Oxford-street; from thence they proceeded to Mr. Morris's lodgings in Oxford-street: Mr. Morris was at home. Then they all got into a coach, and went to the house of Mr. Fazakerly, in Clifford-street; when they came to Mr. Fazakerly's house, Mr. Morris got out, and two Gentlemen were seen to go into Mr. Fazakerly's house: one of them was supposed to be Mr. Allen. Mr. Morris went into the house, and returned in a few minutes, and said Mr. Allen was there; but that he had no balls for the pistols. Mr. Dulany, whose mind was agitated very much, said, he was sorry for this delay: he wished to God the affair was over - he wished it finished - he wished to get rid of it, and was very uneasy at these procrastinations. They then said they must go to Mr. Wogdon's; he is a famous man for making pistols, and lives in the Haymarket. There, in two coaches, they all four went, Mr. Dulany and Mr. Delancey in one coach, and Mr. Allen and Mr. Morris in the other. When they got to Mr. Wogdon's, Mr. Morris came out, and told the Gentlemen, that they must detain them some time, for Mr. Wogdon had no balls that would fit these pistols; it was necessary, therefore, that some balls should be cast. Mr. Dulany again expressed anxiety at these delays; he was hurt at it. Mr. Morris went back to the shop, and soon came again, and said the balls were cast; and desired Mr. Delancey to go into the shop, and see the pistols loaded. Mr. Delancey refused to see them loaded; upon which the pistols were loaded by Mr. Wogdon himself; and then they all four went away, two in each coach, as they came. They all proceeded to Grosvenor-gate, Hyde-park. When they came there, they got out, and were walking to this unfortunate spot, when a conversation passed between Mr. Morris and Mr. Delancey, to know what distance these two Gentlemen should stand. Mr. Delancey proposed twelve yards as a proper distance for these Gentlemen to take their ground. Mr. Morris objected to twelve yards as too far, saying he thought eight yards was distance enough. Mr. Dulany, who was anxious to have this affair over, said, Aye, with all my heart, eight yards. He did not object to it. - Then the next question was, How they should fire? It was first proposed that they should toss up: that
Gentlemen, These are the outlines of the case: but there is one circumstance which has lately come to our knowledge, which, if true, can leave no doubt in the mind - That circumstance is, that the very morning of this unfortunate duel, Mr. Allen himself was practising, for a long time, with a pistol, against a target. Gentlemen, if this fact should be true, it can leave no doubt in your minds. I don't wish, standing as I do in a prosecution of this sort, to aggravate the charge against either of these Gentlemen. I feel for them, and feel for their situation; and, if I don't wish to aggravate the charge, I must make no observations upon the case; because every observation that I should make, and that would occur to every man that hears me, must be an aggravation. I will, therefore, leave it to your own minds. I know you to be men of understanding. I would rather wish that the observations upon those circumstances should occur to your own minds, than come from me; because I know they will be just, I know they will be impartial: I shall therefore only proceed to call my evidence; and if the facts which I have opened to you, are proved by the witnesses which I shall call, you will then be able to determine whether this is, or is not, a sedate, deliberate, and premeditate act, in the two prisoners; and if it is the consequence of your verdict, must be Wilful Murder. The law will not suffer men, under mistaken notions of honour, wantonly to risque their own lives, or the lives of their fellow-creature - It has, therefore, very properly been determined, that not only the hand which kills, but his second likewise, is guilty - In what degree, you are to judge. I will call the evidence; and, when I have done so, I will leave it for you to determine the extent of the guilt of either or both of the prisoners.
EVIDENCE for the CROWN.
Examined by Mr. FIELDING.
Where do you live, and what is your situation in life? - I live in Wigmore-street, No. 39. I am a gentleman from America.
Do you know the other gentleman? - I cannot be positive to him; it was dark when I saw him.
Please to go nearer to him? - (The witness went near to the bar.) - I believe that is him; I saw him once in day-light.
Then you are not positive as to the person of Mr. Allen; but you believe you recollect him? - Yes.
Where do you believe that you have seen him? - I don't know that ever I saw him in my life before Tuesday, the 18th of June.
You think you recollect seeing him then? - Yes.
What time on the 18th of June was it you saw Mr. Morris? - Between the hours of one and two o'clock, I think it was: that was the first time, I think, that ever I saw Mr. Morris.
Was any body present, besides yourself and Mr. Morris, at that time? - Yes; Mr. Dulany.
What conversation passed between Mr. Morris, Mr. Dulany, and you? - Mr. Dulany called upon me; he called me from above stairs, to go down into the dining-parlour below, and said he had something particular to say to me. When he came into the parlour, he pulled out a letter, and said,
"Delancey, here is a challenge from Mr. Allen; will you go with me to Islington?" I asked who brought it. He told me, Mr. Morris. He said,
"Will you go with me to Islington, where Mr. Allen is?" I said, I would; it raining
Where did you return to then? - Mr. Dulany returned back to my lodgings. I was going to mention one circumstance. Our conversation, I think, in general, was upon indifferent subjects, except that Mr. Morris mentioned something that he knew nothing of the rise of the quarrel; and Mr. Dulany then related to him the circumstances of the publications as the rise of the quarrel. There was another thing: As Mr. Allen was absent from Islington, Mr. Morris proposed delaying the matter till next morning. This Mr. Dulany objected to, and mentioned what I said before of the situation of his wife; that it would keep her in distress, as he thought she suspected what he was going about. While we were coming back, Mr. Morris left his directions, where he dined, and where he would be in the afternoon; but I do not recollect where that was, but that he would be at Mr. Fazakerly's in the evening; and Mr. Dulany and I said we would be at the Marybone coffee-house, in Oxford-street, near Stratford-place, at half after seven o'clock. Mr. Morris set us both down at my lodging. Mr. Dulany went home, and I went to my own lodgings. There was one circumstance I omitted, because I don't recollect exactly the time it passed; but I remember it did pass; and that was, that Mr. Morris told Mr. Dulany that he knew nothing of the contents of the letter that he had brought him, but that Mr. Allen was in a passion when he wrote it. There was another circumstance, exclusive of the letter that Mr. Dulany wrote, that it is necessary for me to mention; that is, he left a verbal message with Mr. Morris, that, if he saw Mr. Allen before the evening, he would let him know that he (Mr. Dulany) would come prepared, and expected Mr. Allen would come prepared too.
Mr. Dulany having set you down, when was it that Mr. Dulany, you, and Mr. Morris, came together again? - I went to the coffee-house: I believe it was five minutes beyond the time. As soon as I came in, Mr. Dulany came up to me, and said, Mr. Allen is in town, Mr. Morris is at his own lodging.
Court. What time was that? - Between seven and eight. I asked him if he had seen him: I think he said, yes; and he then desired I would go with him to Mr. Morris's.
Did you go to Mr. Morris's? - We accordingly went together, the first time, to Mr. Morris's. Mr. Dulany told Mr. Morris, that he was now ready, and desired he would go and tell Mr. Allen so. Mr. Morris desired Mr. Dulany would write a letter, for he would carry no more verbal messages. Mr. Dulany seemed so intent upon the matter, that he sat down and wrote the letter; I do not exactly know the contents of
Mr. Fielding. Don't say any thing more about that letter, only that a letter was written.
Delancey. After this letter was written and sealed, Mr. Morris, Mr. Dulany, and I, walked together to the corner of New Bond-street; from thence we drove, in the coach, to Mr. Fazakerly's, the corner of Bond-street and Clifford-street, I think, the house is. I think it was immediately after the coach stopped, that Mr. Dulany, with a quick voice, observed to me, There is Mr. Allen! and I saw a person cross the street, and go into Mr. Fazakerly's: that was the first time I had ever seen Mr. Allen. Mr. Morris then went into the house, and soon after came out to us, and told Mr. Dulany that Mr. Allen had no balls to his pistols, and asked Mr. Dulany to lend him his, which he refused. Mr. Morris then said they must go down to Mr. Wogdon's, (I think the man's name is) a gunsmith, in the Hay-market, to get balls for his pistols. Accordingly a second coach was called, and Mr. Dulany and myself went in one coach, and I believe Mr. Allen and Mr. Morris in another. We drove to the Hay-market; our coach stopped rather beyond the shop, and their coach rather nearer.
At Wogdon's door what passed? - Mr. Morris came to the door of our coach, and told us that Wogdon had no balls that were fit. I shall mention one circumstance I had omitted, before we left Mr. Fazakerly's, upon want of the balls, that Mr. Dulany expressed great uneasiness at the delay. When we got to Mr. Wogdon's, Mr. Morris said Mr. Wogdon had no balls to fit Mr. Allen's pistols; but he must have some cast, which would take up six minutes. Here Mr. Dulany expressed great uneasiness, as the night was coming on, at the dilatoriness of the proceedings. Some time after this, I cannot exactly recollect the time, Mr. Morris came and said the balls were cast, and he desired I would come into Wogdon's, and see the pistols loaded; which I objected to, and refused. He came also a second time, and I objected to it still. I don't know whether it was in this interval, after the balls were cast, or before the balls were cast, but I remember particularly that Mr. Morris proposed then also deferring the matter till the morning; which Mr. Dulany objected to, as there might be light enough to finish it. After this, Mr. Morris came and told us they were ready; and we then drove off in the two coaches to Grosvenor-gate, Hyde-park. Our coach, I think, went first. We then got out: Mr. Allen and Mr. Morris out of one coach, and Mr. Dulany and I out of the other; and we walked across the Park, where the troops generally exercise, towards a large tree. In our passage there, Mr. Morris and I were speaking about the distance. I think I mentioned that the common distance, from what I had heard of it, for I had never been concerned in a duel myself, was twelve yards. Mr. Morris said eight. This Mr. Dulany did not object to, as it was so dark. I mentioned, that I had heard it was common to take a larger distance, and advance firing. That Mr. Morris also objected to, and said they should not certainly come nearer than eight yards.
Can you tell what the time was, when you arrived at Grosvenor-gate? - I think it was between nine and ten.
How light or dark was it? - It was rather darkish; it was pretty dark; one could not see at any great distance, but yet it was not so dark but a person might see another as far as the length of the court.
What other conversation passed between you and Mr. Morris? - No conversation but about the distance. As Mr. Dulany acquiesced in the distance they mentioned, that was agreed on. We then crossed over by that tree, and went across what they call the Ring, into a place called the Deer-park, I think, about twenty yards beyond the rail.
Did any farther conversation pass between you and him, before you arrived at the ground that was fixed upon? - I don't recollect any thing material.
When you arrived at the ground fixed upon, how far might that be from Grosvenor-gate?
Being arrived there, how did they proceed? - The distance was marked out.
How was it marked out? - I think Mr. Morris stopped it first: I stepped it afterwards. My steps were large: I think I made it about seven and a half: I made it short of Mr. Morris. Mr. Dulany said it did not signify, as it was so dark. That was the ground they took. Mr. Dulany then loaded his own pistols. I mentioned before, that Mr. Allen's pistols were loaded at the gunsmith's, which I objected to, and thought not proper. Mr. Dulany's pistols were screw-barrels, and Mr. Allen's were plain pistols. If any thing, I think Mr. Allen's were rather the longest; but there was, I think, a very immaterial difference between them.
You have, I suppose, had an opportunity of seeing the pistols since? - No; I have not.
Did any thing pass in conversation at this time? - While we were there, Mr. Allen mentioned that he had a bad cold, and the ground was wet, and that he wanted to move from that place over to the dry ground.
Did they move to any other ground? - No. Mr. Dulany objected to it, and said, We had better finish the matter where we are.
Then the ground that had been stepped out by you and Mr. Morris was fixed upon as the spot? - Yes. After Mr. Dulany's pistols were loaded, they took their ground. Mr. Morris proposed that the signal for their preparing should be the pulling off our hats. That signal was given; and I think, to the best of my recollection, after the signal was given, Mr. Dulany called to Mr. Allen to pull off his hat, and he would pull off his: and they did pull off their hats.
Was that after the signal was given? - I think it was. I am not positively certain whether it was after the signal was given or not; but I remember the circumstance.
Do you remember what passed, upon your giving the signal? - Very soon after, they both fired, as near together, I think, as possible.
Did you both pull off your hats at the same time? - As near as possible. There was some short interval between my hearing the report of the pistols and Mr. Dulany's falling; for I thought, at first, that they had both missed one another: but, however, it was very sudden. I saw Mr. Dulany fall. I then immediately ran to him, and said, My dear Lloyd, I hope you are not much hurt! He said, My dear Jemmy, I am afraid I am done for. I then endeavoured to get him upon his legs; which, after some time, I did: and, when I had got him up, he seemed to walk tolerably strong; so much so, that I thought I should be able to assist him to go away: but, however, after carrying him pretty near the rails, he fell again out of my hands; and I think I got him up two or three times. There is a circumstance I should mention to the Court, that I cannot be positively certain to: that is; when I was carrying him up to the rails, or after I had got him close to the rails, I saw Mr. Allen on the other side of the rails, and Mr. Morris. Then Mr. Allen was going off. I said to Mr. Morris, For God's sake, send the hackney-coach that we left at the gate, to carry my friend home: which Mr. Morris promised me he would do. I afterwards saw the coachman, and he told me -
Court. Don't mention what the coachman said.
Mr. Fielding. That was all that passed, then, between Mr. Morris and you, and between Mr. Allen and you? - I do not recollect that I exchanged a word with Mr. Allen during the whole time. After this, I saw a gentleman going by in a one-horse four-wheel chaise. I said, Here is a gentleman wounded in a duel, and I beg you will assist me in getting him home.
You carried Mr. Dulany home? - I afterwards got assistance, and carried him home.
How long did he live? - I saw him pretty late on Thursday evening; and his nephew came on Friday morning, at six, and informed me that he died at five that morning. After I got him home, I attended him, and saw the ball extracted. I was there generally twice a day, for two or three hours.
How near to the moment of his death was it that you had any conversation with him relative to this transaction? - I had very little conversation with him, relative to the transaction, during the whole time. I did not care to talk much to him upon the subject, because I thought it would distress him.
Have you any letter about you? - I have one letter from Mr. Morris to me, after the business arose, which he desired I would produce.
Did you receive any letter from the deceased? - The letters that passed between Mr. Allen and Mr. Morris, that were in his pocket, were given to me; and after Mr. Dulany's death, his relation called at my lodgings, and demanded them of me, on Friday morning; and I delivered them.
Do you know the letter, if you were to see it again? - I believe I shall; because I had it in my possession, and read it several times.
Look at that letter - (Inspects it). - That is the letter Mr. Dulany shewed to me at my lodgings, that was in my possession; and his relation demanded it of me after his death.
Cross-examined by Mr. MANSFIELD.
You had no acquaintance with Mr. Allen, I think you have told us, till this day, the 18th of June? - I never saw Mr. Allen before in my life, till Mr. Dulany pointed him out to me, pretty quick, There goes Mr. Allen!
Did you know Mr. Morris before? - I never saw him in my life, to my knowledge, till I saw him at the door of my lodging.
You did mention the time, I think; between the hours of one and two? - As near as I can recollect.
And you did not see him again till between seven and eight in the evening? - No, not after we parted; after we had been at Islington together.
What pistols had Mr. Dulany? - Screw-barrels.
Were they his own, or did he procure them? - He desired me to get them for him.
You do not know, I presume, where Mr. Allen got his pistols? - No.
You only know, that, when he was at Mr. Fazakerly's, he had pistols, but had not any ball? - I was informed so.
The first time you was with Mr. Morris and Mr. Dulany was in your way to Islington? - Yes.
And when you got to Islington, Mr. Morris wished to have had the matter postponed? - Yes: as Mr. Allen was gone to Ilford, and it was uncertain when he should return, he had better put the matter off till the morning.
I think you said Mr. Morris no less than three times urged this? - Twice there, and at the Hay-market.
Do you recollect, in the coach, at the time Mr. Morris and Mr. Dulany were talking of this matter, whether there was any question made about what had passed from Mr. Allen to Mr. Dulany amounting to a challenge? - Mr. Dulany considered it as a challenge, because he had mentioned to me that he had received a challenge.
I wanted to know of you, whether, in the conversation, and the explanation of the matter, Mr. Morris did not endeavour to persuade Mr. Dulany, that that letter, which he looked upon to be a challenge, really was not so? - I think there was something of that kind passed at Islington, something to that purpose.
What did Mr. Morris say? - I can't recollect exactly; I think it was, that he did not consider it altogether in the light of a challenge.
Whether, in the course of this sort of debate and discussion, when Mr. Morris was persuading Mr. Dulany that the letter which had been received by him from Mr. Allen did not amount to a challenge; whether he did not say, Possibly there might be no necessity for fighting at all, but that the matter might somehow or other be settled between them, and he might go again to America, and again be very happy? - I do not recollect
You say, during the whole of this conversation, Mr. Morris seemed to be averse to matters coming to extremities? - Yes.
Having heard, at Islington, that Mr. Allen was gone to Ilford, you came to town; and you parted, till you saw Mr. Morris and Mr. Dulany at a coffee-house? - No: I saw Mr. Dulany at a coffee-house, and went with him to Mr. Morris's lodgings.
You afterwards were all together at a coffee-house? - No: all together at Mr. Morris's lodgings.
And from thence you rode down to Mr. Fazakerly's? - Yes.
Mr. Morris, you say, desired Mr. Dulany to write a letter to Mr. Allen? - Yes.
Did not Mr. Morris, before he desired Mr. Dulany to write that letter, say that he had seen Mr. Allen? - I think he did.
And did not he say he had delivered Mr. Dulany's message to Mr. Allen? - Yes.
But that Mr. Allen said he would pay no more regard to verbal messages? - I recollect something of a circumstance of that sort; but the other I am positive to: Mr. Morris said he would carry no more verbal messages; which I concluded was from the message he had sent to Mr. Dulany in the morning; and I supposed Mr. Allen had desired him not to bring any more verbal messages.
I wanted to know, whether Mr. Morris did not represent to Mr. Dulany, that Mr. Allen would take no notice of verbal messages; and Mr. Dulany, upon that, expressed some resentment, and said it was a subterfuge, and that he would have no altercation in writing, but would have the thing decided? - I do not recollect that; but I recollect his refusing to receive a verbal message; and that might be because Mr. Allen had said he would not receive verbal messages.
Then you conclude something of that sort must have passed between Mr. Allen and Mr. Morris? - I suppose so, but I did not hear it.
You have told us, when you came down to Mr. Fazakerly's, there were no balls, and you drove to a gunsmith's to get some; and that Mr. Morris, before that was done, came to the coach, and desired Mr. Dulany to lend him some balls: do you recollect whether Mr. Dulany, upon that, made answer to Mr. Morris, That he had but five balls, and that he hoped to use them all? - I do not recollect that circumstance, as you state it; but I recollect something to the same purpose. When balls to the number of five were produced, it was objected to, on the part of Mr. Dulany, sparing any, as they might be all wanted.
Mr. Dulany produced five balls, and objected to sparing any, because, he said, they might be all wanted? - Yes.
Mr. Morris desired you to see the pistols loaded; which you refused? - Yes.
I believe it was proposed, on the part of Mr. Morris, that Mr. Dulany's pistols should also be loaded at the same place? - I believe it was; but I objected to going into the house altogether; I thought it an improper place to load the pistols in.
Why did you think it an improper place? - I thought it was improper that the pistols should be loaded before they came to the field; I had heard it was usual, upon occasions of that sort, to load in the field.
But Mr. Morris desired you would load yours there too? - Yes; but they were not loaded till they came to the ground.
You have said that Mr. Dulany several times expressed a great desire to have the matter ended that day; that he did not like delay: I wish you to recollect whether Mr. Dulany did not make use of some such expressions as these; particularly at Islington: that he would search Mr. Allen out, if he was to be found upon the globe? - No; I do not recollect that: but I recollect his wanting to go after him to Ilford: but the reason he did not go, was, Mr. Morris said that very likely he might be gone from Ilford, and he might not find him; but I don't recollect his expressing that he would search him through the globe.
Whether you added your endeavours to those of Mr. Morris, or made use of any endeavours, to prevent this coming to extremity? - Mr. Dulany never said any thing to me upon the subject. He always seemed so eager upon the business, that I had not an opportunity of endeavouring to persuade him from it.
Then I collect from what you now say, you used no endeavour to accommodate it, because, from the disposition in which you saw Mr. Dulany, you thought it was in vain? - Certainly. I should most certainly have embraced any opening for it.
Your reason for not endeavouring to prevent the meeting was, you thought, from the temper in which Mr. Dulany appeared to be, that it would be in vain? - I certainly should have had the humanity to have embraced every opening for that purpose.
You have said that Mr. Dulany seemed extremely eager in the business? - He certainly was.
Whether that eagerness was the reason for your not endeavouring to interpose to prevent it? - Certainly; I certainly should have embraced it, if there had been the least opening for it.
At the time when there was some talk about standing at a greater distance at first, and advancing afterwards, and firing, whether Mr. Morris did not make use of these expressions, that that would be downright murder, or sanguinary; that he would never consent to it? - I only mentioned it as a circumstance that I had heard of; I remember Mr. Morris using this expression, that they should not, he said, go nearer than eight yards.
But whether it was accompanied with that expression, that he would not suffer it, for it would be murder, cruel, or sanguinary, you do not recollect; but only that he said they should not go nearer than eight yards? - Yes.
Do you recollect whether, after Mr. Dulany had received his wound, he called out to Mr. Allen, by the name of Allen, to desire he would get a coach? - I do not recollect that; I remember my calling to Mr. Morris, but I don't recollect using a word to Mr. Allen, but that of pulling off his hat. I remember particularly my speaking to Mr. Morris, and his promising to procure a coach; but I do not recollect his changing one word more than that about his hat to Mr. Allen; and I have endeavoured to recollect every thing as minutely as possible.
The coach, I believe, that you desired, was sent to the place? - The coach was not sent: the coachman I saw afterwards, and paid him 4 s. The coachman told me, he had attempted to go into the park, but, being a hackney-coach, he was not permitted to go into the park.
At the time of this unfortunate fighting, it was, you have said, pretty dark? - It was; I suppose it must have been near ten o'clock. There is one circumstance that I forgot to mention, which I had given in my deposition, which was, that I declared then, and do now, that I saw nothing unfair in the duel.
Mr. Morris. Your Lordship will give me leave to ask this witness a few questions? - Court. Certainly.
Mr. Morris. Do you recollect my desiring, at the Spa, particularly of Mr. Dulany, to go home to his wife? - You did.
Mr. Morris. Whether I did not frequently desire him not to consider this as such a disastrous matter as it has since turned out? - I recollect something to that purpose; not to consider it as a challenge.
Mr. Morris. Whether I did not speak of my coming to live in Glamorganshire, my own country, with some other American gentlemen? - Yes; there was a conversation of that kind.
Mr. Morris. Whether I did not mention that, whenever he and Mr. Allen met, something serious must ensue? - I remember you seemed, in all the conversations, to
Mr. Morris. Did not we even argue upon the subject when he wanted me to explain one part of the letter and another, when I said that was not a challenge? - I think, during the conversation that passed, that Mr. Morris always considered it, as far as I can recollect, that it might not be altogether looked upon as a challenge.
Mr. Morris. Have not you expressed that you saw several instances of backwardness, both in Mr. Allen, and in me? - I have said there was a backwardness in you.
Mr. Morris. You do not comprehend my question, Whether, since this unfortunate business, you have not declared, that you saw several instances of backwardness, both in Mr. Allen, and in me? - In you. I never had any conversation with Mr. Allen, and therefore could only judge from the conversation of Mr. Morris.
Mr. Allen. Did you see any particular marks of forwardness in me, or the contrary? - No; I saw one instance, which I mentioned before, that you wanted to go over to the other side, which I looked upon in that light.
Mr. Allen. The light of delay? - Yes.
Mr. Morris. Mr. Dulany said, that he looked upon it that Mr. Allen's refusing a verbal message was a means of coming off, but it should not avail him? - He did, as a means of putting it off.
Mr. Allen. Did I, either by any actions or words, shew particular marks of resentment? - I do not know that I heard you open your lips till you mentioned the circumstance of going to another ground. I saw no eagerness, as far as I can recollect; it was very dark, and I could not be much of a judge, as there was very little conversation passed.
Mr. Allen. Did not I tell Mr. Dulany that I considered it merely as a point of honour, and that I dared say he did the same, to which he said, Entirely? - I do recollect that.
Court. When was that said? - Just before they took their ground.
Mr. Morris. At the conclusion of this unhappy business, were you so attentive as to observe that I went up and spoke to Mr. Dulany? - I do not recollect that.
Mr. Morris. Did he ever mention to you that I did? - No.
Mr. Morris. Whether afterwards I did not write to you a letter? - You did.
Mr. Morris. I beg your Lordship will permit that letter to be produced; it was written the same night.
Court. When did you receive it? - About an hour and a half after the time.
Court. What a man writes himself, cannot be evidence for him.
Examined by Mr. ANSTRUTHER.
Please to look at that letter. - ( Inspects it.)
Is that the hand-writing of Mr. Allen? - It is.
You know Mr. Allen? - I do.
(The Letter read.)
"IT is not till the present moment that
"I find myself at liberty to avow, that the
"Maryland, published some time since in
"the Morning-Post, was written by me;
"the Author of which you call an infamous
"Liar and cowardly Assassin; though I know
"you to be from facts, what I am only in
"your own imagination, both an infamous
"Liar and cowardly Assassin.
"I shall not go about to recriminate, because
"I do not wish to imitate, but to punish
"your insolence. If you harbour still
"the same degree of resentment, the bearer
"will put you in a way of carrying it into
(The other Exhibits read.)
(Morning Post and Daily Advertiser, Tuesday, June 29, 1779.)
"Characters of some of the Leading Men
"in the present Rebellion, continued.
DANIEL DULANY ,
"Secretary of Maryland, a person of still
"lower extraction than the former, offered
"the service of his pen to the Congress;
"which, as he would not act ostensibly,
"was rejected, and his name struck out of
"the list of toasts proposed at an entertainment
"made during the meeting of the first
"Congress, upon a motion of the Maryland
"delegates, as inimical to the cause of
"liberty. This and other instances of disaffection
"to the family, determined them
"to divide, part coming over to England,
"under the character of sufferers in the
"royal cause, and part residing in America
"to take care of their property, and to be
"ready to close with the winning side. -
"Policy too common on this occasion, as
"it only serves to prolong the war, and becomes
"a heavy burden on this country;
"there being several of this name and family
"who have allowances from Government."
(Morning Post and Daily Advertiser, Thursday, July 1, 1779.)
"The Brother of Mr. Dulany, whose
"character was given in this paper of Tuesday
"last, amongst many others, as a leading
"man in the present Rebellion, having
"called at the office, and convinced us that
"the circumstances there alledged against
"his family are totally groundless, - we are
"happy in the opportunity of publishing
"this his positive denial of the infamous
"charges advanced by our anonymous correspondent,
"whom Mr. Dulany calls upon
"to stand forth, and avow what he has
"so publickly asserted."
(Morning Post and Daily Advertiser, Monday, July 5, 1779.)
"To the anonymous Author of the Characters
"of the Leaders in the present
"Rebellion in America, in the Morning
"Post of June 29, pretended to be written
"in the year 1776.
"YOU have held up my brother, Mr.
"in the most odious and disgraceful colours.
"I have called upon you to produce
"yourself, and avow your charges, that I
"might see my enemy, and combat him
"fairly; but you still continue to skulk in
"the dark. I have used every method in
"my power to detect your person, but without
"I call upon you once more, either to
"publish your name, or to leave it at the
"Printer's, otherwise you must be content
"to pass with those to whom you have
"trusted your secret, and with the world,
"for what you know yourself to be, a detestable
"liar and a cowardly assassin!
Newman-street, No. 83.
Examined by Mr. SILVESTER.
What are you? - A gun-maker.
Where do you live? - In the Hay-market.
Do you recollect either of those Gentlemen coming to your house on Tuesday, the 18th of June? - Yes; I recollect Mr. Morris coming.
Was any body with him? - Yes; Mr. Fazakerly, and another Gentleman, whom I did not know.
Do you know that other Gentleman now? - I can't say I do.
Look at the other Gentleman? - I believe that is the Gentleman, but I will not be positive.
What did they come for? - To have a brace of pistols loaded.
Did you load them? - I did.
Who did you give them to? - To Mr. Morris.
In what manner were these pistols loaded? - In the usual method that I always load them.
How is that? - A proper charge of powder, and one ball; the usual charge I always deliver with pistols when I sell them
Have you any particular way of loading? - I put a piece of leather about the ball always.
I would ask you but one question, in order to get rid of a prejudice which has been entertained, and which has got into the public news-papers: Were these pistols rifled barrels? - No.
Smooth inside? - Yes.
Was it dark at this time? - Very near dark, and I could hardly see to prime them.
Examined by Mr. FIELDING.
You are a clergyman, and a friend of the deceased, Mr. Dulany? - Yes.
After this fatal affair, you saw him? - Yes.
Inform the court what was said relative to this transaction. - The only thing that I recollect respecting the duel was, next morning, some person observed that they understood Mr. Allen had bad eyes. Mr. Dulany said, He has not given any proof of that in this affair with me; but, said he, we were near, and I wonder how I happened to miss him: but, says he, there was a principle that I have heard of, in a screw-barrel pistol, which I did not attend to.
Mr. Mansfield. His own pistols were screw-barrels? - Yes. And then he added, But, poor wretch, it is better as it is.
Did any thing else pass? - I do not recollect any thing else respecting this business.
Cross-examined by Mr. Serjeant BOLTON.
This was his language, I wonder how I missed him? - The next morning: I repeated it exactly, I believe, in the order and course in which it was made. The observation was first made respecting Mr. Allen's bad eyes. Mr. Dulany said, He has not given any proof of that in this affair with me; but, said he, we happened to be near, or we were near, I can't be positive in the words; but that was the idea, we were near: upon that he added, he wondered how he missed him.
What were the words? I wonder how I missed Allen, were they not? - Yes.
There is a principle in a screw-barrel pistol, I have heard of, which I did not attend to? - Yes.
Those were his own pistols? - Yes.
Examined by Mr. SILVESTER.
What are you? - Head keeper of Hyde-park.
Was you in Hyde-park on Tuesday evening, the 18th? - I was.
About what time? - About 25 minutes after nine o'clock, or thereabouts.
What kind of night was it? - Dusky.
Did you hear or see any thing particular? - I heard a gun, as I imagined, go off: it appeared to be only one. I was within about 200 yards from the place where it was fired. I was in a chaise; I drove as fast as possible, upon the supposition that my servant had shot at a dog; which I do not allow. When I got to the place, I saw a Gentleman, who told me there was a wounded Gentleman who begged my assistance. I was very near my own house; I drove immediately to my servant. I came back in a few minutes, and, with the assistance of my servant, we got Mr. Dulany into my chaise. I proposed to carry him to my house, as it was near; but Mr. Delancey said his lodging was very near, and it would be better to take him home. My servant was in the chaise; he assisted to hold him up, and I drove him to Mr. Delancey's lodging.
Did any conversation pass between you? - In the chaise, I said there was but one pistol went off: he said there were two; but he is a better marksman than me.
Cross-examined by Mr. MORGAN.
Did Mr. Dulany express any sentiments of indignation against Mr. Allen? - Not a word.
Examined by Mr. ANSTRUTHER.
What are you? - A Surgeon.
Did you see Mr. Dulany any time about the 18th or 19th of June last? - I saw him on Tuesday night, the 18th of June, about ten o'clock. I was sent for to him: when I came to his lodging, he told me he had receivedJohn Adair . I said, it is necessary to send for somebody immediately; for I think he is a dead man. I called again about twelve o'clock: Mr. Adair was not come. I mentioned then Mr. Sinclair, an Army-Surgeon, to be sent for. Dr. Milman was called in the day after, which was the Wednesday. On Thursday Mr. Pott saw Mr. Dulany: he was of opinion he was a dead man; and he died on Friday, about five o'clock in the morning.
Did he die of that wound? - He did undoubtedly. When the Coroner desired the body to be opened, I found the ball, which had penetrated between the 6th and 7th rib, had passed through the right lobe of the lungs, passed between the 11th and 12th rib on the same side, took a circular turn round the vertebrae of the back, and lodged under the left shoulder.
Had you any conversation with Mr. Dulany respecting this matter? - About twelve o'clock at night he said to me, I hope you will not treat me as a child, but as a man; I have courage and resolution enough to bear any thing. I am sorry to part with my wife and children. I hope you think there is no danger? I said, All gun-shot wounds, I suppose, you know, are dangerous? The weather is hot. Yes, says he, and I may have a locked jaw. I said, I hope not. He replied, I hope so too. The next morning he said, It is surprising to think a pistol-ball could hurt in the manner it did: I had no conception of it. The ball knocked me over and over, and deprived me of my senses. When I got up, I found my eyesight failed me, and I dropped again. After that he said, I am very happy to think I have not wounded the poor wretch, (meaning, I suppose, the Prisoner, Mr. Allen) for he cannot well afford the expence of illness.
I live with Mr. Maintrue, who lives in Bennet-street, Black-friars Bridge.
Look at those two Gentlemen. - That is the Gentleman (pointing to Mr. Allen.)
Where did you see that Gentleman before? - I saw him shooting at a mark at our wall: that is the Gentleman: he made such a noise as made my mistress's head ache. I told him he must not shoot any more: h e said, Very well; he would have done.
How many times did he shoot? - Very near a dozen, I dare say: he made a very great noise every time he shot.
What did he shoot with? - I saw a pistol in his hand.
About what o'clock was this? - Between eleven and twelve, I think.
On what day? - Last Tuesday was fortnight.
Are you sure as to the day? - Yes.
Are you sure as to the time? - Yes.
Now look at the Gentleman, and see whether you are sure as to the person? - Yes, that is certainly the person (pointing to Mr. Allen.)
Cross-examined by Mr. MANSFIELD.
When did you see the Gentleman before? - I never saw him before.
Have you seen him from that time to this? - No.
It was about twelve o'clock, you say? - Very near twelve o'clock.
Do you recollect the time pretty exactly? - It might want a quarter of twelve o'clock.
You are sure it was not twelve o'clock? - It was not.
How long might the Gentleman be firing at the wall? - He might be a quarter of an hour in the field.
Your house is next to the field, is it? - Yes, it belongs to my master.
The Gentleman might be a quarter of an hour? - Yes. I went out, and desired him not to make such a noise: my mistress had got the head-ach, and desired he would not shoot any more.
What coloured clothes had the Gentleman on? - Black.
But you are very sure it could not be after twelve o'clock? - No, it was not.
And you are sure it was on Tuesday was
You had no particular reason to remark the Gentleman you saw there, only that the thing itself was odd? - No; but I saw him several times: I looked at him because he made such a noise. When I went to him, and told him my mistress could not bear it, he went away.
When did you first tell this story? - A Gentleman came yesterday to our house.
Had you talked about it? - He came to my master.
Had that Gentleman talked to you? - He came to me this morning, and asked me if I should be sure of the person: I told him, Yes.
Have not you talked of it to somebody? - No; I did not know what he was firing about.
Had not you talked of it to your master? - My master was at home at the same time.
But your master did not go to the Gentleman? - No; he did not speak to him, but he looked over the wall.
How near was the wall to the Gentleman? - About a dozen yards.
Did the person fire with ball? - I cannot say what he fired with.
Could not you see whether balls struck the wall, or not? - I did not look.
Mr. Allen. You say you are sure of my person? - Yes.
Mr. Allen. That you have seen me frequently? - No; I only saw you that day. I came to you, and asked you to have done firing. You said you would.
Mr. Allen. You saw my back, I suppose? - I saw your face.
Mr. Allen. You don't know whether the Gentleman had his hair round, or tied? - His hair round; and he had a flapp'd hat.
Mr. Morris. Was I there? - No; but there was another man in a light-coloured coat.
Examined by Mr. SILVESTER.
Where do you live? - The Surry side of Black-fryars Bridge.
Look at those two Gentleman. Have you seen either of them before? - I cannot positively say I have. I think I have seen that Gentleman (Mr. Allen) before.
Where? - Near my house.
On what day? - I think, on the day the thunder and lightning was.
What day of the week was that? - On a Tuesday.
What did you see him do there? - I saw a person there practising with pistols, firing at a mark.
Do you know whether he fired with ball? - With ball, I should suppose, because the balls were taken up afterwards.
What hour was it? - Between eleven and twelve o'clock, or thereabouts. I believe it might be an hour, or more, in the whole.
What number of times might he fire? - I think I heard about thirty.
The young woman that has just been called, is your servant? - Yes.
Did you look at the person who was firing those pistols? - Yes.
Did you speak to him? - I did not.
How near was you to him? - May be fourteen or sixteen yards.
You don't know either of the parties, I believe, on either side? - No.
Court. Is there any thing by which you are enabled in your mind to fix the time? - Yes, because it was about the time of day that I was going out: I think it was between eleven and twelve o'clock, or thereabouts.
Cross-examined by Mr. BEARCROFT.
Did you observe what kind of hat that person had on? - A round hat: he was habited in black, like the prisoner (Mr. Allen), there was another person with him, who was loading the pistols for him; and, as he discharged the pistols, that man gave him a loaded pistol.
How was that person dressed? - He was a short thickish man, dressed in a brownish coat, I believe; but I won't be certain. The person that fired, I am confident, was dressed in black, and was of a thin usage.
Mr. Silvester. Do you see that person in court that was with him? - I really do not.
How far is it from Black-fryars Bridge? - The field is at the back of my house.
By the turnpike? - No, immediately off the bridge.
You usually go out in your business about twelve o'clock? - Sometimes; I remember perfectly well then.
This Gentleman must have been a considerable time there before you went, if he fired thirty times? - I heard the beginning of it: that alarmed me.
How long do you suppose, in the whole, he was there firing? - I should suppose a full hour.
Then, supposing you to be pretty right in the recollection of the time you went out being about twelve o'clock, he must have come there about eleven, Does your recollection serve you so far as to say that it could not be more than a quarter of an hour, or some such matter after twelve o'clock? - I cannot say exactly to the time; it might be half after twelve.
Do you think half after twelve might be the latest of the time you went out? - I should think so.
And, as well as you can recollect, the Gentleman who was there shooting, had been there an hour before you went away; of course, then, he must have been there at half after eleven o'clock. - Certainly, if that was the case.
Mr. Silvester. Can you describe the person who was with him loading the pistols? - No, I took little notice of him; I attended more to the firing, than the persons.
Should you know that man again? - I can't say that I should; I saw him take the pistol from the Gentleman, but did not remark him.
Look about, and see if you can see that person? - I do not.
Examined by Mr. SILVESTER.
You live, I understand, with your father, on the other side Black-friars Bridge? - I do.
Look at these two Gentlemen: did you ever see either of them before? - I think I have seen the Gentleman on this side, (Mr. Allen) but I can't be positive.
Where did you see him? - I saw him from our back door: he was practising firing at a wall with a pistol, I believe.
What day? - I believe last Tuesday was a fortnight; it was the day it thundered.
Was any person with him? - Yes, a man was with him, and a boy was there; but whether the boy belonged to him or no, I cannot say.
What kind of a man? - He seemed to be rather a short, punchy man; I did not take particular notice of him.
In a wig, or his own hair? - I cannot say.
Look about; do you see him, or not? - I cannot say positively.
In what manner were their pistols loaded? - I did not see them loaded.
About what hour was it when you first heard the pistols? - I believe a little after eleven, or between eleven and twelve; but I did not take particular notice: it was about that time, or within a quarter of an hour, or thereabouts.
Cross-examined by Mr. MANSFIELD.
You never saw the Gentleman before or since? - No.
And you cannot be positive that either of these Gentlemen are the men? - No; I think one of them is, but I can't swear positive to that.
Are you pretty clear as to the time, that it was between eleven and twelve o'clock? - I think it must be that time, or within a quarter of an hour, or twenty minutes; he was there near an hour, I believe.
Then he was there a good while before twelve, according to your idea? - Yes, I think so.
What time did your father that day go out in his business? - I believe he did not go out 'till half after twelve that day.
Mr. Mansfield. Whoever that person was that fired the pistol at the wall of your house, could you judge at what distance he might fire? - Yes, he was about eight yards, as near as could be; I know where he stood.
Mr. Mansfield. I believe the Counsel for the prosecution will admit that the evidence given concerning this firing over the water is perfectly new; that no such evidence was given before any Justice of the Peace. It happens, that having subpoenaed several Persons who know this Gentleman very well, and with whom he spent the preceding days, and a great part of that Tuesday, I have no doubt but we shall prove to the most perfect satisfaction, that the girl must have been mistaken; and that this Gentleman neither was, nor could be, at the place where this firing was. But I would have it understood, for Mr. Allen's sake, and the sake of justice, that it was for another purpose that these Gentlemen came here. This story of the firing is perfectly new to every person acquainted with the cause.
MR. ALLEN's DEFENCE.
My Lord, and Gentlemen of the Jury,
IT is impossible for words to express the sincere grief and unfeigned sorrow I feel for the melancholy event by which I am this day exposed to the eyes of mankind as a public spectacle; nor can it be conceived how much I am shocked at the idea of the heinous crime of wilful murder, for which I stand arraigned before this Honourable Court; under which, nothing could support me but the consciousness of having only been the innocent occasion, the mere passive instrument of it. It is not without concern that I even enter upon my defence, which must of course throw a kind of blame upon the deceased Gentleman, who certainly searched me out with too fatal a zeal and determination to compel me to fight, using uncommon pains, not for a short space, but a whole day, to discover me; beset in person the door of the house where he accidentally found me, cut off all possibility of my escape, and had his pistols, and more than a double charge of ball, ready for action; led, or rather dragged me to the field at half past nine at night, where I received his fire at the distance of eight paces; and it is the mere chance of battle but I had been the slain, and he before you as the criminal. As far as want of preparation can prove I bore no malice, and had no intention to fight, much less to commit murder, facts speak most forcibly in my favour: I had not been at my lodgings for three days; I came that morning, and by accident too, out of the country; I called at the house I was inclosed in, by the merest accident in the world; I had no pistols with me, being totally disqualified for the use of them: I have lost the sight of one of my eyes, as to distinguishing of objects at all; I see very imperfectly, and through a mist with the other, and have been lately for a month quite blind of both. I had not fired a pistol before, or even a fowling-piece, for some years, because the flash in the pan materially injures my sight; I pass close by my intimate friends in the street without knowing them, and am often called to account for the neglect; and, in the present case, the fire from my adversary's pistol, not being able to distinguish the object, was the only direction I had so fatally to direct my own. My antagonist was too quick-sighted in respect of his honour, was conversant in the use of arms, his courage often tried and proved in single combat, skilled in all the etiquette of the field, and rules of duelling; and his impatience for action only, saved my life to this period. My situation was the most distressing in the world: I had not a moment to speak to one of my friends, or settle my affairs; I was at a distance from the gentlemen of the faculty I had been used to, who resided in the city; I had no bed or assistance provided, in case I had been wounded at that unseasonable hour; and nothing but the name and spirit of an Englishman could have supported me under so unequal a conflict: yet so fair and honourable was my conduct in the field, so much readier was I to give than to take an advantage, so far from using words of provocation, or betraying the least resentment, that I flatter myself
My general character will better appear from the testimony of others than my own. My acquaintance all know me to be a man of a mild, quiet, inoffensive behaviour. If I am to judge from my own experience in the world, it is so to a fault; and, so far am I from being thought malicious and revengeful, that I have often met with affronts from persons, only upon a presumption that I had not spirit enough to resent them.
Though I was advertised, as a murderer, in the public papers, (the first instance of the kind in any country upon earth, in an affair of honour); though any person was described like that of a common felon, or runaway negro, a price put upon my liberty, and the most diligent search made after me; yet such was the assiduity and vigilance of my friends, not my own, that they conducted me through every danger, and would, I doubt not, have landed me safe upon the continent, where, as a citizen of the world, I might, from a notion of honour, however false yet universal, have met with respect for the very action I now stand arraigned for as a criminal: but I disdained to fly from justice, or to leave a gentleman exposed to the persecution of my enemies, or the punishment of my offence; I resolved to trust my life with a jury of my Countrymen. I cannot acquit myself till they acquit me; and, if they condemn me, I shall die without murmuring, to live in the memory of my friends.
Mr. MORRIS's DEFENCE.
My Lord, and Gentlemen of the Jury.
I SHALL not attempt to imitate the language or eloquence of the Gentleman who has already been called upon for his defence: in veracity, only, I mean to follow him, for I cannot doubt all he has said is true; and, that I may the better attend to that rule of truth, you will indulge me in not trusting too much to the collection of my own mind at this awful moment, but permit me to recur for my Defence to the papers which I have in my hand, written at a cooler moment, but without dictation or suggestion from any other person.
It does not become me to complain of the severity of the law by which I stand as a criminal at this bar; and, I will acknowledge, that when a life is unhappily lost, a solemn and serious enquiry ought to be made into the cause of it. But, I trust, it will never be established as a doctrine in your breast, that the loss of one life must necessarily be expiated by the forfeiture of another. - There is no Gentleman who would wish to speak with more reverence of the deceased than myself; but, as his own rash precipitation and violent resolution to meet and fight with Mr. Allen, at all events, form a principal part of my Defence, I cannot avoid noticing it to you; as I am satisfied you are convinced that I frequently and urgently tried to check that precipitation, and to give the unfortunate Gentleman time, at least, to sleep upon his pillow, before he put his desperate resolution into force. It will be in vain for me to speak of any thing that passed between Mr. Dulany and me, when no other person was present; but I trust you will be convinced, by what has already been proved, that all that I could have said to him was, and must have been, of the same impression with what Mr. Delancey has proved I constantly said in his presence. - I always urged Mr. Dulany not to consider the letter as a challenge, told him that I did not know Mr. Allen would fight, and was certain that he was not prepared. Mr. Dulany was determined to be prepared: his immediate thoughts were upon pistols - He had settled all his own affairs - he would search Mr.
After this, Mr. Dulany comes to me, accompanied with Mr. Delancey, whilst I am sitting down at my lodgings, determines that no time shall be lost, insists upon accompanying me to Mr. Allen, and, in the coach, lets me know he has got pistols and balls. He counts those balls, afterwards, into his hand; when, notwithstanding all his precipitation to meet Mr. Allen, so determined was he to meet him for a bloody purpose, that, though these balls were five in number, he would not accommo date Mr. Allen with one; saying, with vehemence, That he should want them all.
The unhappy office that I afterwards performed, I trust, you will attribute to as worthy a motive as ever influenced a person in the same situation. It will be proved to you, that, although I was the person desired by Mr. Allen to deliver his letter to Mr. Dulany, I was not the man he had ever thought of as a Second. - On Mr. Dulany's coming after him to the house where he was in Clifford street, his first application was to another Gentleman, who declined, by saying, that if there should occur a chance of a compromise in the field, I was a better person to speak to that, as I was the person who, to that time, had been conferring with Mr. Dulany. But, for a compromise, I never had the slightest opportunity; Mr. Dulany was too determined for that. He had early declared he would make no apology: there was not, from beginning to the end, a hint given for any explanation, either by himself, or by his Second. Mr. Delancey, since this unhappy matter, has confessed, that he saw several instances of backwardness both in me, and in Mr. Allen; but he never saw one in Mr. Dulany.
What has been said of the parties going from Clifford-street, to the Haymarket, will be proved to you to have been accidentally caused by a fruitless attempt to get balls at the several Gunsmiths in the neighbourhood in the Haymarket. I again, upon every little difficulty or delay that occurred, took repeated occasion to desire Mr. Dulany not to be so precipitate, and at least to put off the matter 'till the next morning: to which he replied in these remarkable words;
"know that I have a right to put it off,
"and that Mr. Allen has not; but I will
"not put it off." - As to the circumstance of the pistols being loaded in the Haymarket, that arose from the lateness of the hour.
When we proceeded from hence to Hyde Park , which Mr. Dulany had himself proposed for the place of fatal decision, it was Mr. Dulany's coach which led the way, as it before had done to the Haymarket. The whole that passed in Hyde-Park was concluded in the space of a few minutes. - From the hurry of the events, some indulgence, I trust, will be given to me; but my recollection is perfect as to every circumstance. As to what has been said of the distance at which the parties stood, the distances arose not from any obstinate determination of mine, but from the hasty adoption of it by Mr. Delancey: you will judge of this circumstance from the true relation I shall give you of it.
The conversation which arose on the subject of distance, was exactly in these words. - Mr. Delancey said to me, What do you say to twelve yards? And I immediately said to him, in a hasty manner,
"And what do you say to eight?" I never said twelve yards was too far, nor did he ever say that eight yards was too near: on the contrary, I do most sacredly declare that his reply was exactly thus;
"Sir, it shall be six yards, if you please." To which I
The remainder of this melancholy business I would willingly hasten over; but there are some important particulars I must not omit. After Mr. Allen's fire, Mr. Dulany stood a little, before he fell; I had, for a moment, flattered myself that neither was wounded, and was advancing to propose a reconciliation, when I suddenly saw Mr. Dulany fall. He in a moment half rose up again, and his first words were these:
"Do, Mr. Allen, ran and call a coach." I ran also to Mr. Allen, to urge him to the same thing. Mr. Allen immediately went for the purpose. Upon this, my immediate attention was to Mr. Dulany, whom I now saw walking about; my first address was in saying,
"I hope, Sir, you are not wounded." To which he answered,
"Yes, Sir, I am, and mortally;" and added to me also to call a coach. Mr. Delancey was then coming up to Mr. Dulany: I called to him to hasten and take hold of Mr. Dulany's arm; for Mr. Dulany was by this time himself running, or seeming to run, in faultering steps: but, in a moment, he fell. I was urgently called by Mr. Delancey, to run as fast as I could for a coach, which I did. I told the coachman who brought Mr. Dulany to the park, to make what haste he could, with all the assistance possible, and told him the melancholy occasion. The coachman did come, with assistances, and told Mr. Delancey, who had sent him. I did not return, because I really thought Mr. Dulany, on his second falling, had fallen down dead; for so it seemed to me to be the case. I knew that I stood in a delicate situation respecting himself and his relations offices of mine, I was fearful, would not be well received; but I failed not afterwards to make every attentive inquiry, and express every real solicitude in my power.
I trust, that neither in my conduct before the fatal wound, nor afterwards, you will see any thing of the guilty man - I wrote to Mr. Delancey that night - I called at Mr. Dulany's house the next morning - I never absented myself from my lodgings: - Even after I had notice of the cruel handbill against me, I declared to my friends I would not fly, and proved I did not mean it.
That I was Mr. Allen's Second, I cannot deny. I trust I may with propriety observe to you, that the severity of the ancient law against persons in my situation, arose from an idea at that time prevailing, that Seconds did partake in the quarrel, and were equally prepared and desirous with the Principals to fight in it; and yet, under that notion of the law, there never was a Second convicted. It would be a hard retribution to me, for all my backwardness, to make me the first example. The Duel has had every thing fair and honourable in it, from beginning to the end, as has been proved by Mr. Delancey. The share I have had in this unfortunate business was only a test of friendship; and the general tendency of such an office, is to prevent murder; for the consequence of two angry and offended persons meeting without Seconds, would be foul work, and, in all cases, the cruellest bloodshed. I cannot conclude without most sincerely, from my heart, expressing my deepest sorrow and regret for the misfortune that has happened: Mr. Dulany's own relations cannot lament his death more than I do: I saw in him a hasty, but an honourable man. With this testimony in his favour, I trust I shall have your verdict in mine; and that you will not deem me, (guiltless as I am of any quarrel with the deceased) contrary to all examples before, deserving to be condemned as an Abettor of wilful Murder.
Mr. Morris. That last circumstance, of firing at a mark, I did not attend to in the least, in my Defence: I beg to attest most solemnly I never had the least knowledge, belief, or conception of it 'till this moment.
BAMBER GASCOYNE, Esq. sworn.
Examined by Mr. MANSFIELD.
You, I believe, know Mr. Allen, the prisoner? - Very well.
How long have you known him? - Mr. Allen came to Barking, in Essex, where I live, to officiate in the place of the Clergyman who had lately died. I was not acquainted with Mr. Allen before; but I had heard a very commendable character of him. Hearing he had officiated at church, the next Sunday I went to church, and there I saw Mr. Allen: the discourse he made was equally pleasing, the doctrine as the manner. I asked him to dinner; he officiated some time. I found him to be a Fellow of Wadham College, in Oxford: I heard several persons speak well of him. It happened about this time twelve months that a Gentleman who officiated at an hospital and a private chapel we have at Ilford, died; Mr. Allen applied, in my absence, to my wife, to desire to succeed to that chapel. As soon as I came home, I heard of it; it seemed agreeable to my family, and was agreeable to me, from the manner and doctrine of Mr. Allen, to present him to that, which I did; since that, he has made my house, in town and country, his home, which I always wished him to do. I found him a man of a very happy, amiable temper. The chapel was refitting, and consequently, for some time, there could be no service in it; but I desired him to come down as frequently as possible; he often came, and staid as long as he liked. The more I knew of him, the more I respected him; in any little altercations or disputes at table, he being a Gentleman of literature and learning, I conversed with him; I never found him warm in any matter where there was a contradiction, or a variety of opinions, (for our conversation was generally upon speculative points) but always very calm, and very free to communicate his mind. For about a fortnight before this unhappy affair, he had not been down to my house; but on the Sunday preceding, he came, not by a particular, but from a general invitation: A Gentleman who was coming to my house, took him up upon the road, as he was walking down, and brought him in his chariot; and he dined with us: we had a good deal of company, Mr. Bacon, Sir Hugh Palliser , Mr. Elliot, my Sons, and Mr. Gordon, a Gentleman who is here now. He was in his usual pleasantry and good humour; his eyes being extremely bad, he made an apology, and it was always permitted him to sit at table with his hat on: sometimes his eyes have been so bad, that I have seen him quite melancholy, upon an idea that he would certainly be blind. He lived chiefly at Islington Spa, for the purpose of drinking the waters for his health. The Gentleman, who brought Mr. Allen down to my house, went away after dinner; when he was going away, he asked Mr. Allen if he should take him up with him. Mr. Allen said, no, he should stay there some time. On Monday morning, after breakfast, it being a leisure day, I took him out in my chaise; I went about three miles a fishing; we did not return home 'till about three in the afternoon. He continued in the same affability of temper; he dined with me, and lay at my house that night. The next morning, Mr. Allen came to me in my library, about seven o'clock; we sat and talked about various subjects: we breakfasted at eight. It then occurred to me that Mr. Allen had been my Chaplain near a year, and, therefore, that the stipend was nearly due to him that is allowed by the charter of the Hospital: I said, Mr. Allen, though the chapel has not had service in it because I am laying out money upon it, that is no reason why you should not have your stipend; therefore, I will settle with you for the year. I shewed him a receipt of the former Chaplain's, to draw out a receipt by; he was going to date it the 18th of June: I said, Don't do that, date it the 25th, for I shall pay you a year; laughingly saying, Your Executors will call for the residue - if you should dispose of
Mr. Mansfield. I ask you, for form's sake, whether, from any thing you ever discovered in the disposition of Mr. Allen, he had the least appearance of being a man of malignity? - So far from it, that the most eligible part of his character was, that he was of a very free and amiable disposition: he had that character in all companies; and if I had not had so very good a character of him from the President of Wadham-college, and others, there was another person I should have presented to my chapel. I was extremely happy in finding such a companion, and relieving his difficulties, which I knew to be great, in giving him that chapel.
Whether the weakness in Mr. Allen's eyes caused him to be near-sighted? - Yes: I have often laughed at him for his mistaking objects I have pointed out to him, when we have been riding together; I never saw a more purblind man: it was as much my astonishment to hear the fortunate circumstance of his having saved his life, as of his having fought a duel.
I ask you, for form's sake, had Mr. Allen any pistol with him, when he came to town with you? - I saw none. If he had had any in his right-hand pocket, as I drove, I think I should have felt them. I think, from the esteem I had for him, and the attention I had shewn him, that he would have dealt very disingenuously to me, if he had not opened to me the critical situation he was in, if he had any thing of the kind in view; especially when I jocularly mentioned, upon his writing the receipt, that, if he disposed of himself, his executors might call upon me. I should have thought he would have said, Such a thing might happen; I am under such circumstances: but I did not see the least disturbance or anxiety about him; and when I set him down, I saw him walk down towards the Minories.
Examined by Mr. BEARCROFT.
Are you acquainted with Mr. Bennet Allen? - Yes.
How long have you been acquainted with him? - Between two and three years.
Do you recollect his coming to you, on Tuesday the 18th of last month? - I do, very well; it was the day of the storm.
And the day of this unfortunate accident? - Yes.
Do you recollect the hour? - It was about twelve o'clock, as near as I can recollect.
Upon your oath, do you suppose yourself to be correct as to the time? - I am.
Did you learn of him where he had been? - I did: he said he came from Mr. Gascoyne's that morning.
You do not know, of your own knowledge, where he had been; but he came to you soon after twelve o'clock, and staid with you till a quarter after two? - He did.
Did you observe any thing particular in his behaviour? - No; he was the same as usual.
Did he desire to see you that day, afterwards? - He asked me to take a walk in the evening of that day. I should have gone, but it did not suit me.
You have sometimes done so? - Very frequently.
During the time you have known him, what has been his general character, temper, and behaviour? - I should suppose him the last man that would take away another's life.
Do you know where he was going, when he left you? - He said he was going to Mr. Allen's, his brother.
Where do you live? - In Fenchurch-street.
You are the daughter of Mr. Pope there? - Yes.
Did Miss Palmer come in while Mr. Allen was with you? - She did.
Was he with you, in your house, all the time she was with you? - Yes.
Did you understand that you was brought here to give an account of any particular time, or only to speak to Mr. Allen's character? - Nothing more.
Miss PALMER sworn.
Examined by Mr. ERSKINE.
Do you know the last witness? - Yes.
Was you at her house on Tuesday the 18th of June? - I was.
At what time did you go there? - Between twelve and one o'clock.
Who did you find with her? - I found the Rev. Mr. Bennet Allen there with Miss Pope.
How long did you stay there? - About ten minutes.
When you went away from the house; did you leave him there? - Yes.
Have you been well acquainted with him during that time? - Yes, I have seen him frequently.
What character did you conceive him to have, from your knowledge of him? - A very good character.
You went out about half after twelve o'clock, you say? - I did.
Did you return again? - Yes; about half after one.
Mr. Bennet Allen was still with Miss Pope? - Yes.
How long, after you came back again, did you continue to stay with Miss Pope? - Till about a quarter after two o'clock.
Where did you go from thence? - To my sister's. Mr. Bennet Allen went with me.
Where does your sister live? - In Fenchurch-street.
I believe you went out of town after that? - Yes, about half an hour after.
You say you have known him six years? - Yes.
Did you ever see any thing in his disposition which was revengeful, that would lead you to think he would seek the life of another? - No.
What sort of a temper is he of? - A good-tempered man.
Cross-examined by Mr. SILVESTER.
What makes you so particular as to the time? - When I called on Miss Pope, it was after twelve o'clock. Before I went to Miss Pope's, my mother looked at her watch, and said it was past twelve o'clock.
Mr. Erskine. Did you observe Mr. Allen to be in any agitation that day? - No; he was the same as usual.
Are you pretty sure it was that time when you went to Miss Pope's? - Yes.
It could not be much later, could it? - No.
Mr. FAZAKERLY sworn.
Examined by Mr. MANSFIELD.
I believe you know Mr. Allen and Mr. Morris? - I do.
Do you remember Mr. Allen being at your house on the Tuesday this unfortunate business happened, and Mr. Morris coming there to him? - I do.
Did he apply to you to lend him any? - To the best of my recollection, he did.
Had Mr. Allen ever fired with those pistols, or ever seen them before? - Never.
I believe they had never been fired at all? - I had never fired them.
How long have you had them? - I bought them in October last, when I went abroad.
I may conclude from thence, I believe, that Mr. Allen had no pistols of his own with him? - None.
When Mr. Allen supposed himself under the unfortunate obligation of meeting Mr. Dulany, whether he applied to you to be his second? - He did.
What particular reason was there given, why you was not a fit person to be his second? - I said, I thought myself an improper person, because, if any conversation arose concerning a compromise, as I had not talked to any body before upon the subject, I was not sufficiently acquainted with the quarrel to settle any terms of accommodation.
And that was acquiesced in by Mr. Allen, and Mr. Morris afterwards went with him? - He did.
You had no balls at all, I believe, had you? - There were no balls in the house at the time Mr. Allen called upon me.
Mr. Morris. Was I under any promise or engagement to call upon you that evening, to go to some place of diversion? - I think Mr. Morris was.
Mr. Morris. Was Mr. Allen under any engagement to call upon you? - No; he called unexpectedly.
Mr. Morris. Did you see any thing in me like pushing Mr. Allen upon this matter? - I saw nothing of that sort.
- HOWARD sworn.
Examined by Mr. BEARCROFT.
You keep Islington Spa? - I do.
Mr. Allen has lodged some time at your house? - Yes.
Was Mr. Allen at your house that Tuesday? - No; he left it the Sunday morning before, I understood, to go to Mr. Gascoyne's.
When did he return? - I never saw him, from the Sunday morning, about ten o'clock, till I saw him now in court.
How long had Mr. Allen lodged with you? - He lodged with me from the 15th of last June was twelvemonth to this time, except about two months or ten weeks.
What was his manner of life, and general temper and behaviour? - Always very easy and quiet; remarkably so.
Was he short-sighted in any degree? - He dined with me, I may say, forty or fifty
Did you observe any thing revengeful or malicious in his temper? - Always the contrary: I never saw any man more easy and quiet: he is the last man in the world I should have thought that would fight a duel.
Examined by Mr. ERSKINE.
You are one of the surgeons of the London Hospital? - I am.
Do you know Mr Bennet Allen? - Very well; I have had the pleasure of his acquaintance many years.
You have had pleasure in that acquaintance? - A great pleasure.
What sort of person have you found him in the course of that acquaintance? - A very worthy man, a man of great integrity, a man of much temper and good nature. I have had a great many conversations with him on many occasions, on public and private matters.
Have you ever attended him on account of his eyes? - I have many times; Mr. Allen's sight is at all times very bad, so that he can at no time, I believe, distinguish persons at a very few yards from him; but he has many times had his eyes in so bad a condition, that I thought the sight would have been totally lost; and that was the case with them a very little while since: I know that, not only as a surgeon and anatomist, from looking at his eyes, but I know, from a long experience and acquaintance with him, that that is a fact.
The Right Honourable Lord Viscount BATEMAN sworn.
Examined by Mr. PHILIPS.
You know Mr. Allen? - Yes, I have known him a great many years. Since his return from America he has lived many days at my house, and I know him intimately.
How long is it since he returned from America? - Six or seven years.
What is his general character, particularly as to his temper and disposition? - One of the most amiable I ever knew; he is universally beloved; and I never saw any man bear in more good temper any jest or joke. I think I never saw a worthier, better man. I esteem him very much. I will add, I was not subpoena'd here. I set out with a great inconvenience to myself (having been very ill) from Herefordshire, on purpose to give this testimony.
The Right Honorable Lord Viscount MOUNTMORRES sworn.
Examined by Mr. MORGAN.
How long has your lordship known the prisoner? - I have known Mr. Allen for some years.
What do you know of Mr. Allen's temper and disposition? - I will endeavour to recollect all that I know of Mr. Allen's temper and character: when I was at the university of Oxford, I went through a course of mathematics with Mr. Stubbs, who was a fellow of Queen's: Mr. Stubbs was a very learned respectable man; between him and Mr. Allen a great intimacy subsisted. I usually spent two hours every evening with Mr. Stubbs, and frequently saw Mr. Allen at his chambers: the first time I saw him was in March 1765, and I was acquainted with him during the remainder of the time I staid at the university: I afterwards heard that he was promoted by Lord Baltimore to a living in Maryland. I saw him but once for some years; it was at the Duchess of Kingston's trial. Last June twelvemonth I met Mr. Allen in Islington Gardens; I fell into a discourse about America, and the characters of the leading people there; Mr. Allen closed the conversation by saying, I have made a compilation of characters in that country, and I will send it to you: I read them over carefully three or four times, and returned them; among them was the character of Mr. Daniel Dulaney . I received a letter from Mr. Allen last Monday,
Do you know any thing of the defect in his sight? - I remember his wearing his hat flapped, with his gown, at Oxford; that custom was not the academical style of dress; and he told me, I think, at Islington, that the sight of one of his eyes was much impaired, if not entirely gone.
Mr. LAMB sworn.
Examined by Mr. MANSFIELD.
Do you know Mr. Allen? - Very well.
How long have you known him? - Our acquaintance began very early in life: he is a son of a very respectable clergyman of Herefordshire: I have known him almost from our infancy.
What is his general disposition and character? - When he was a boy at school, he was a very ingenious lad, of a very mild disposition. He was always inclined to have sore eyes, and a puny constitution.
Has he preserved the same sort of disposition, is he of the same good temper now, as when he was a boy? - Just the same; in my opinion, much more improved by a good education and a great deal of learning. He is as good-natured, inoffensive, genteel a man, as ever lived: he has always borne that character in life. I was not subpoena'd to come here, but came voluntarily to give Mr. Allen a character.
Examined by Mr. MANSFIELD.
Do you know Mr. Allen? - Yes; I have known him three years.
What has appeared to you to be his temper and disposition? - I always considered him to be a very respectable, good-tempered man.
Did you ever see any thing of malice in his disposition? - I never saw the least appearance of it.
Dr. CAM sworn.
Examined by Mr. MANSFIELD.
You are acquainted with Mr. Allen? - I am; I have known him from a school-boy.
What has been his temper and character? - A very industrious, ingenious lad.
Has his temper been mild and good? - Mild to example.
Did you ever see any appearance of malice or revenge in his disposition? - No; nor I have never heard of any.
Has he borne the character of an amiable and agreeable man? - Yes, as far as I have known or heard of him.
You are of that country? - I am. He has been my patient.
You came here without being called upon? I was not subpoena'd.
Was he near-sighted? - He had bad eyes when a school-boy, and has been very near-sighted from that time.
Dr. GERRARD sworn.
Examined by Mr. MANSFIELD.
You are Warden of Wadham-college? - I am.
Mr. Allen has been of that college? - Yes, for the whole term of our acquaintance.
How long is that? - Twenty years.
What has been his temper and character? - As for his character, we have known him only at intervals, he being absent ten or eleven years at Maryland. I set out soon after him. I am his junior there. I never saw any thing amiss in his character, only he was of a hasty disposition, but not tending to malice or resentment; and the moment the fit was over, every thing was forgot. I mention this, only from observing one or two instances of it.
Is he a man who is by his acquaintance esteemed a good-natured man? - I never heard to the contrary. Upon his return again, I was absent from college; so there
Examined by Mr. MANSFIELD.
Do you know Mr. Allen? - Yes; I have known him fifteen or sixteen years.
What is his general temper and character? - I have always found him a sensible, good-natured man: I never knew any harm by him in my life.
And is he so esteemed? - Yes. I have been very intimate with him since my return from America. I never saw him quarrelsome or revengeful.
Are you acquainted with his eye-sight? - Yes: he could not see any object at a distance from him.
Mr. Justice BULLER.
Gentlemen of the Jury,
YOU have already heard from the evidence, that the deceased person, Mr. Lloyd Dulany , got his death in a duel: and this case, like all others upon the question of Murder, must consist partly of matter of fact, and partly of matter of law. It is my duty to state to you what the law is; and when I have stated that, I will likewise sum up the evidence to you, with such observations as occur to me; and it will be for you to decide what is the truth of the facts in the present case. As to the law, there is not, there never has been a doubt, but that in the case of a deliberate duel, if one person be killed, it is murder in the person killing him; and it is also murder in the person who was the Second: of that proposition of law there is not, there never has been, the smallest doubt. The question of fact will be, Whether this was a deliberate meeting, or whether it was only an encounter proceeding from some sudden quarrel, and in the heat of passion. If ever it has fallen to your lot to sit upon trials for murder, before the present time, you must have learned, that where the death is proved to have been by violent means, and that the prisoner is the author of that death, such circumstances as may tend to mitigate the offence lie upon him to prove: and therefore, if upon this evidence it should be clear to you that one of the prisoners killed the deceased, and that the other was his Second, present, and assisting him in the business, the question will be, Whether there is any evidence to satisfy you that this proceeded from a sudden provocation, and was not a premeditated or a deliberate act.
(Here his Lordship summed up the evidence given both for the crown, and the prisoners, and then proceeded as follows.)
Gentlemen, this is the whole of the evidence.
The greater part of the evidence which has been given on the part of the prisoner, Mr. Allen, is respecting his disposition and his temper. Supposing all that to be strictly true, and supposing him justly to have acquired a character to be equalled by few in the world, it does not go very far in exculpating him in this business. Whether it be, that people, from a mistaken principle of honour, think that there is no harm in committing the offence with which he is charged, or upon whatever other ground it may proceed, if it be clear that he committed this fact deliberately, and not under the impulse of any sudden passion, good character is no answer to the charge; and, as far as the verdict goes, we must adhere to the laws of the land.
There is another circumstance in the case, which I will mention to you before I state the facts upon which the prosecution principally depends; and that is, as to the evidence given by Lydia Lepine , confirmed in the manner you have heard by Mr. Maintrue, and his son. Lydia Lepine has taken upon herself to swear positively to
On the part of the prisoner, you have had a great deal of evidence, to shew that there must have been some mistake in this part of the evidence, because, during the hours these three witnesses have spoken of, Mr. Allen was in different places, and therefore could not be the person whom those three witness saw firing. - The evidence is material, and it deserves your attention. In the first place, Mr. Gascoyne has proved this Gentleman to have been in his company 'till past twelve o'clock; he says, he is sure it was past twelve o'clock, and he then set him down at Aldgate church. Between twelve and one, Miss Pope and Miss Palmer both prove that he was in Fenchurch-street; they have been long acquainted with him, are his intimate friends, and Miss Palmer fixes the time with a tolerable degree of certainty: for, though there may be some difference in clocks, yet at that time, by the watch which her mother had, it was a little after twelve when she first went to Miss Pope's, and Mr. Allen was there before her. Therefore, if the case had depended wholly upon this fact, whether he was or was not practising in a field in the manner Lydia Lepine , and the two Mr. Maintrues have mentioned, perhaps you might think there would be a very strong answer given on the part of the prisoner: but it is my duty to tell you, that that circumstance alone is not what is to decide your verdict. - It seems to me that that evidence is offered for the sake of its appearing in another place, if it should be necessary; and there it would be proper. But we must examine all the evidence that has been given, before we pronounce upon the guilt or innocence of the party. Then, upon the whole, what is the evidence which you have as to the transaction? - Here is a cause of quarrel subsisting between the parties, from the year 1779; every thing passes from that time, 'till the 18th of June, in perfect silence. Mr. Allen was unknown to Mr. Dulany, as the author of the papers, 'till he thought fit to explain that he was the author of them; and that is done by Mr. Allen, in the letter which I mentioned to you; in which he refers to these papers as the cause of animosity between them, and in which he retorts upon Mr. Dulany the charge of being an infamous liar and a cowardly assassin; and he ends the letter at last with saying, he does not wish to imitate, but to punish his insolence; and that, if he harbours still the same degree of resentment, the bearer, who is Mr. Morris, will put him in a way of carrying that into execution.
One question for you to consider, will be, What is the result and the meaning of this letter? - What could the person mean who wrote it? - does it import a challenge, or not? The terms are gross; he is referred to another person, who is the bearer of the letter, as the person who will point out the way of carrying any thing that might be proposed, into immediate execution. Can you put any other construction upon those words, than that the writer meant to appoint a place to meet?
Mr. Allen has said in his Defence, that this letter was not meant as a challenge, but only as an eclaircissement to bring on an explanation. Whether it will bear that sense or not, is for you to say; the terms are very gross. But, supposing the letter could bear that sense, and you should be of opinion that it was the real meaning of the letter, how then do these parties get together? - From the time that Mr. Allen came to England, to the moment that they met at Mr. Fazakerly's house, there is no evidence whatever of their having been in the same company; there was then no ground for a quarrel. What is the purpose of their going to Mr. Fazakerly's? - Mr. Dulany was prepared to fight a duel; a message had been sent by Mr. Morris, desiring that Mr. Allen would come prepared also. When they get to Mr. Fazakerly's, Mr. Dulany points out Mr. Allen to Mr. Delancey. There is not a word passes between them 'till they get out of
Gentlemen, if that be the case as to Mr. Allen, you must then examine what will be the situation of the other Gentleman at the bar, who was his Second. With respect to him, the law is equally clear, that every person present and assisting at such an act, is guilty of the same offence as the person who commits the act itself. There are many circumstances in Mr. Morris's case, which have been very properly laid before the Court, and which tend to show that he wished, at least, to postpone the business, if not to put an end to it. - But these are circumstances that are more proper in another place than this; because it is clear, if you believe the evidence, that though he had proposed to put it off 'till the next day, - that though there were several instances of backwardness, at different periods, in his conduct - and though at Islington he pressed Mr. Dulany to go home to his Wife - and though he took pains, as they say, to convince Mr. Dulany that the letter did not import to be a challenge, yet, at the last, he agrees to go with them; - he conducts Mr. Dulany and Mr. Delancey to the place where Mr. Allen was to be met with in the evening, having been in search of him at one o'clock at noon. Mr. Morris says he did not know the contents of the letter; but you will observe the letter refers to him as the person who would put Mr. Dulany in a way of carrying his resentment into immediate execution. Mr. Morris attends Mr. Dulany to Islington; and, though he finds that, notwithstanding all his remonstrances, Mr. Dulany is determined to proceed, yet he acquaints Mr. Dulany where he is to dine, and where he is to spend the evening, in order that he might be found at any moment when wanted. He tells him at half after seven o'clock he would be at the coffee-house. They went to the coffee-house, and from thence to Mr. Morris's lodgings; Mr. Morris accompanied them to Mr. Fazakerly's, where Mr. Allen was; Mr. Allen and Mr. Morris are in the house together; Mr. Morris brings out the message respecting the pistols and the balls; Mr. Morris attends Mr. Allen to Mr. Wogdon's; he comes out twice from Wogdon's to speak about the balls. After the pistols are charged, the Gentlemen all go to Hyde-park: when they come there, what is the conduct of Mr. Morris? He and the other Second settle the distance between them; and though the other Second proposed twelve yards, and Mr. Morris proposed eight, yet I think that circumstance will make no distinction between the case of the two seconds: but, however, this was thought the proper distance by both; and though
Now, Gentlemen, this is the case on the evidence. Mr. Delancey stopped, after he was gone from the bar, to tell you, that he observed nothing unfair in the duel. Taking that for a fact, it makes no difference as to the law. If they went there for the purpose of fighting this duel deliberately, as death did ensue, it was murder in all concerned; and, therefore, if you are of opinion, upon this evidence, that they did go upon a deliberate, design, and you do not see, upon the evidence, that there was some sudden immediate provocation, (of which I can find no evidence to lay before you) in that case it is your duty to pronounce the prisoners guilty.
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. If you see the facts in this light, you will be under the necessity of finding the Prisoners guilty; and whether the circumstances of the case are such as may admit of any indulgence or mercy hereafter, in the case of both, or either of the Prisoners, is not for us to decide, but must be left to the wisdom and the judgment of that Power in which the constitution has placed the right of sparing either life, or punishment, as it sees fit.
If you should find reasons to be satisfied that this duel was upon some sudden quarrel between the parties, and in heat of blood, that will reduce the offence to manslaughter.
The JURY withdrew for about a quarter of an hour, and then returned into court with a verdict, finding
BENNET ALLEN NOT GUILTY of MURDER, but GUILTY of MANSLAUGHTER only .
ROBERT MORRIS NOT GUILTY .
Mr. Morris was immediately discharged; Mr. Allen remaining at the bar to receive the judgment of the Court.
Bennet Allen, you have been convicted by the laws of your country of manslaughter. Your own feelings upon the occasion, in having been the cause, under any circumstances, of depriving a useful citizen of his life, must be sufficiently painful to such a mind as yours, by the evidence, appears to be; I shall therefore not add to those feelings, by any thing I shall say upon the subject: I can only express my regret, that a gentleman of your education, and situation in life, who has received so strong eulogiums from every one who has enjoyed your acquaintance, and one also placed in that sacred character you bear, should not have been preserved by such circumstances from the influence of those false principles of honour, by which your conduct, upon this unhappy occasion, appears to have been directed.
The practice of duelling has been justly reprobated by the laws of every well-regulated state. The principles upon which it is founded, are directly subversive of every tie of morality and religion; they have a tendency the most dangerous to society, and the most destructive of the domestic peace and happiness of families: They tend to confound the distinctions between right and wrong; to dress up guilt in the disguise of virtue; and to give to the passions of pride, and of revenge, the captivating names of Spirit, and of Honour. They influence men, (as we have unhappily seen to-day); even of the best characters, to
The circumstances of favour with which this unhappy case has been attended, and the very extraordinary good character which you have, in particular, received, has had such influence upon the minds of a very attentive jury, as to induce them, by their verdict, to mitigate the severity of the law; and I trust that the feelings of this day will effectually root out those false principles, upon which (in this unhappy instance at least) you appear to have acted.
It therefore only remains for me to pronounce the sentence of the Court, for that offence of which you have been convicted, which is, that you be fined One Shilling , and Imprisoned Six Months in his Majesty's gaol of Newgate .
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