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LIFE OF LORD KITCHENER. By Sir GEORGE

ARTHUR. 3 Vols.

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placed on half-pay in May, 1828, and died, unmarried, Dec. 15, 1869, at Blackrock, Dublin.

The following account of his trial by Duellist, Newfoundland, court-martial for shooting John Philpot in a duel is taken, somewhat abbreviated, from The Public Ledger and Newfoundland General Advertiser of Friday, April 28, 1826 :

As to the malice which the law implies in such cases, the same learned Judge says that:-

"Most if not all the cases which are ranged under the head of implied malice will, if carefully adverted to, be found to turn upon this single point, that the fact hath been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty, and fatally bent upon mischief (ibid., p. 257)

On the subject of accomplices the same learned Judge says that :

"In order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary" (ibid., p. 350).

A distinction was then drawn between the second of the deceased duellist and the second of the survivor. The Attorney-General observed that the law which he had cited was to be traced in the earliest authorities, and was recognized in our own days in Rice's case (3 East, 581); and among the cases therein referred to, the distinction between the seconds was again recognized. He then proceeded to call the evidence.

LIEUT.-COLONEL THOMAS ROWLAND BURKE, of the Veteran Companies, sworn and examined :Knows the prisoners at the bar. Captain Rudkin is under his orders; Dr. Strachan is AssistantSurgeon in the military establishment; Captain Morice commands the Governor's yacht in the harbour. John Philpot was lately Ensign in his corps he is recently dead. On the 30th March last, between three and four o'clock in the afternoon, Captain Rudkin rushed into witness's room, seemingly out of his mind, and told him that Mr. Philpot was dead. Witness asked for an explanation ; thinking from his manner that he was distracted. Captain Rudkin said that Mr. Philpot had kicked him last evening, that they had just fought, and that he had shot him dead. Mr. Philpot had been with witness several times that morning; he was then in good

health.

By the Court:-Witness inquired who the seconds were, when Captain Rudkin said, 66 Mr. Strachan "; and, after some hesitation, added "Captain Morice." Thinks Captain R. told him that Mr. Strachan was his (Capt. R.'s) second, but he is not very certain. Witness had seen Mr. Philpot several times that morning upon points of duty; there was nothing peculiar in his manner.

CAVENDISH WILLOCK :-Knows all the prisoners. Knew Ensign John Philpot. Knows of his death. Knows how and when he came by his death. He was killed in a duel by Captain Rudkin. On the last Thursday in March witness was in an enclosure at the back of West's farm, within a mile from the town, and saw there Captain Rudkin, Mr. Philpot, Dr. Strachan, and Capt Morice. The ground was measured out by Captain Morice and Dr. Strachan. The distance was 15 paces. At that time Captain R. was standing upwards of 100 yards from the others. Philpot was standing close to the seconds, and was the first who took his station, having previously taken off his coat. Captain Rudkin then took his station upon being beckoned to by the others,

without taking off his coat. The pistols were then given to them by the seconds, who tossed up, and the words Ready-fire were given by Dr. Strachan. They instantly fired, but without effect. Mr. Philpot immediately extended his pistol, as if to return it to Captain Morice, who took it. Rudkin kept his by his side until Strachan went up and took it from him. The seconds then talked together; but witness could not hear what they said. After conversing a short time, each went to his principal and talked to him with a view, as witness concluded, to an wards heard Captain Morice say that it was a accommodation of the dispute, because he afterpity Mr. Philpot would not apologize after the first shot. The seconds then returned to each other, and after a short time re-delivered the pistols to Captain Rudkin and Mr. Philpot. Strachan and Morice again tossed up, and the same word was given by Captain Morice as that which had before been given by Dr. Strachan. Instantly on the word they fired together; both shots appeared like one and Mr. Philpot fell. Witness immediately ran up to him and caught him by the hand; Captain Rudkin, at the same time, caught him by the other hand, and appeared very much agitated. He said he hoped he was not much hurt, and that he believed it was only in the arm. Dr. Strachan and witness both asked Mr. Philpot where he was hit; but he never spoke nor uttered even a groan except when he fell. Witness, Strachan, and Morice then turned him on his side, and having torn his shirt discovered that the ball had entered his right side, opposite the heart. Dr. Strachan immediately said the wound was mortal and that he was dying. Captain Rudkin then said he would go and tell the Colonel what had happened, and send persons to take care of the body. Witness, on perceiving that Mr. Philpot was quite dead, covered the body over with his coat and then left it.

By the Court :-The occurrence happened between 1 and 2 o'clock. Witness was, he believes, not more than fourteen yards from the parties. He went into the enclosure with Philpot and Morice. From the means which he had of knowing the parties, could have no doubt that Capt. Morice, Capt. Rudkin, and Dr. Strachan were the persons who were on the ground.

EDWARD KIELLEY:Is a surgeon. Knew Ensign John Philpot, was sent for by the Coroner, during the inquest, to inspect the body. Found a wound between the 5th and 6th ribs, on the right side, through the membrane and lining of the chest. It was a pistol-ball wound. It had penetrated the third lobe of the right lung. Found the pistol-ball in the body and extracted it. Has no doubt that that wound was the cause of the death of the deceased. (This witness was about to give an anatomical description of the appearance of the body upon opening it, but the Court thought this unnecessary, and therefore dispensed with it.)

Cross-examined:The ball entered between the 5th and 6th ribs; and from the situation in which it entered, the arm of the deceased must have been extended, as if in the act of firing when he received the wound.

This was the case for the prosecution.

MR. DAWE, for the defence, addressed the Court, and read the following appeals from the respective prisoners.

66

CAPTAIN RUDKIN'S ADDRESS.

My Lords, and Gentlemen of the Jury, "Labouring under feelings of the deepest regret, for the melancholy circumstance which has placed me and my fellow-prisoners in the unhappy situation in which we now stand before you, and charged as we are by the indictment, as principal and accessories in a crime at the bare mention of which human nature shudders, I have thought it prudent to commit to paper the few observations I have to address to you, lest, in the agitation I must naturally feel on so awful an occasion, I should omit anything which might be material to our defence.

"I will not, gentlemen, detain you by stating all the minute facts attending the lamentable

occurrence.

"The fatal quarrel, gentlemen, arose at a card-party at the quarters of a brother-officer, and the deceased addressed me in language which I will not repeat. he was in a state of great mental irritation, and I saw, however, that therefore left the room to prevent his further himself; committing followed me out of the door and kicked me. gentlemen, he Yes, gentlemen, I blush to acknowledge that I suffered the vile indignity; aye, and in the presence of a gentleman, and that gentleman I will call to prove the fact.

when,

"Of all the personal insults one man can give another, a kick is, gentlemen, the most galling A blow is certainly a very gross and degrading. "You have as yet only heard the mere naked provocation, but the man who strikes you, treats facts immediately attending the fatal rencounter in the scale of the creation; but, gentlemen, in you as if you were upon a level with himself in which I have unhappily, though unintentionally, deprived a fellow-being of existence; sinks you in your estimation, as it were, below a kick, contempt is coupled with violence; it but trust, gentlemen, that when the circum- humanity; it is an act which a man of correct stances which led to it have been given in evidence, and humane feeling would scarcely commit you will be satisfied that, as a British Officer, towards a dog he regarded; it leaves a stain upon I was bound to seek that satisfaction which, the character of the injured party, especially according to the laws of honour and the established rules and customs amongst military men, could alone atone for the gross insults and provocation I received-or, that I must otherwise for ever have forfeited all claim to that character which I had acquired by years spent in the arduous service of that country in whose cause I have so often fought and bled.

"Gentlemen, we stand indicted for wilful Murder. To constitute this crime, to use the language of a learned Judge, the fact must be attended by such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief.'

"It is not for me, nor for my fellow-prisoners, to speak of our own characters. What they are, gentlemen, you will hear from the witnesses; and I trust that when you have heard them

"By some means, gentlemen, it has acquired publicity that the insults offered me by the deceased, on the night previous to the fatal meeting, were not the first that I received from him it is, indeed, but too true.

:

"For his previous conduct he had apologized; and I most solemnly declare, standing, as I now do, at the bar of this tribunal, through whose decision I might, perhaps, in a few short hours appear before the more high and awful tribunal of my Creator, that I had, with all that candour and sincerity which are the characteristics of my countrymen, with all my heart and soul forgiven him, and that I entertained the same friendly disposition towards him which I had felt from our first acquaintance. And, gentlemen, it has been laid down, by the highest legal authorities, that if there be an old quarrel between A and B, and they are reconciled again, and then upon a new falling out A kills B, this is not murder, for it is not to be presumed that the parties fought upon the old grudge, unless it appears from the whole circumstances of the

in military life, which verbal apologies never can
efface; and, gentlemen, had I not redeeemed
my character by pursuing the course I did
(however much the event of it is to be deplored),
and held in contempt by my men.
I should have been scouted by my brother-officers
Vain would
it have been for me to quit my present regiment;
the disgrace would have stuck to me through
the army, would have driven me from it, and
have followed me even into the retirement of
private life. What would it have availed me
that I had served, with a reputation for courage
unsullied and undoubted, in all those campaigns
which have raised the British Army to the highest
pitch of military glory, had I submitted to this
degrading indignity without resenting it as an
officer and a gentleman. I should, notwith-
standing, for ever have been branded as a poltroon
and a coward.

"Gentlemen, I had no alternative. If I had reported his conduct to the commanding officer, his ruin would have been certain-but that would not have repaired my injured honour. An officer in the army, however high his rank, is bound to resent such an insult as I received in the manner I did; nor can he ever refuse a challenge from an inferior officer. It is not long since the Marquis of Londonderry, Colonel of the 10th Hussars, went out with Mr. Battier, a Cornet in his regiment.

"I requested Dr. Strachan, who was the friend of both parties, to wait upon him. He accepted my challenge. We went, gentlemen, to the fatal field, but with widely different feelings, and for widely different purposes-I, gentlemen, to repair my injured honour, and he, to seek my life. Had that, gentlemen, not been his fixed determination, he might, without even the shadow of an imputation on his courage, or indeed even without submitting to an apology, have averted his untimely fate. He might have fired in the air, and then the matter must have ended.

He