Who killed Colonel Montgomery in a Duel arising out of a Quarrel about Dogs, and was acquitted on a Charge of Manslaughter
THE Clerk of the Arraigns said: "James Macnamara, you stand charged on the coroner's inquest for that you, on the 6th of April, did, with force of arms, in the parish of St Pancras, in the county of Middlesex, on Robert Montgomery, Esq., feloniously make an assault, and a certain pistol, of the value of ten shillings, charged and loaded with powder and a leaden bullet, which you held in your right hand, to and against the body of the said Robert Montgomery, did feloniously shoot off and discharge, and did feloniously give, with the leaden bullet so as aforesaid discharged by force of the gunpowder, in the right side of the body of the said Robert Montgomery, one mortal wound; so the jurors aforesaid, upon their oaths, say that you, Robert Montgomery, in manner aforesaid, did feloniously kill and slay, against the peace of our lord the King, and against the form of the statute."
To which the prisoner pleaded not guilty.
Mr Knapp then said: "Gentlemen of the jury, the only question you have to try is, whether the gentleman who is stated in the inquisition to have lost his life lost it by the act of the prisoner -- lost it in a rencounter which took place between them at Primrose Hill; and if you are of opinion that the prisoner was the cause of the death of the deceased, in consequence of the pistol he fired at him in that rencounter, there can be no question; but your verdict must find him guilty of manslaughter. Both the prisoner at the bar and the gentleman who has lost his life are persons most respectably connected. The prisoner is a gentleman of acknowledged bravery in the service of his country, and eminent for his good qualities. The deceased was a man who deserved the affection and regard of everyone who knew him." The learned counsel shortly stated the facts: he adverted to the origin of the quarrel between the prisoner and the deceased; their subsequent meeting at Primrose Hill, attended by their seconds and surgeon, and the fatal result of that meeting. The following witnesses were then called.
William Sloane, Esq., sworn, said: "I was in Hyde Park on Wednesday, the 6th of April, between the hours of four and five in the afternoon. I was on horseback, in company with Colonel Montgomery, the deceased, and my brother, Stephen Sloane. There was a Newfoundland dog following Colonel Montgomery; there was another dog of the same species following some gentlemen who were also on horseback. We were in that part of Hyde Park between the bridge and the barrier when the dogs began fighting. Colonel Montgomery turned round and jumped off his horse to separate them: they were separated. I heard Colonel Montgomery call out: 'Whose dog is this?' Captain Macnamara answered: 'It is my dog.' Colonel Montgomery said: 'If you do not call your dog off I shall knock him down.' Captain Macnamara replied: 'Have you the arrogance to say you will knock my dog down?' Colonel Montgomery said: 'I certainly shall, if he falls on my dog.' About this time Lord Buckhurst came up, and some further conversation passed. I heard the word 'arrogance' made use of several times; Captain Macnamara made use of it. We all proceeded to Piccadilly. Colonel Montgomery and Captain Macnamara gave their names to each other. The prisoner said he was Captain Macnamara of the Royal Navy. Colonel Montgomery said: 'It is not my intention to quarrel with you, but if your dog falls on mine I shall knock him down.' I took leave of Colonel Montgomery at the top of St James's Street, with the intention of going home. I saw Mr Macnamara's party turning back to go down St James's Street: at that time I had first turned up Bond Street, but returned, and again joined Colonel Montgomery, who went down St James's Street with my brother. I afterwards saw Mr Macnamara in Jermyn Street. Colonel Montgomery had proceeded as far as St James's Church; they were about thirty yards from the church when a person, I believe Captain Barry, went from Mr Macnamara to Colonel Montgomery; I did not see him return again."
Lord Buckhurst (son of Lord Westmorland) said he was not present at the first dispute about the dogs; but he came up afterwards, and heard Captain Macnamara say that the way in which Colonel Montgomery had desired him to call off his dog was arrogant, and not in language fit to be used by one gentleman towards another. Captain Macnamara said he would as soon revenge an insult as any man, and would fight Colonel Montgomery as well as any other man who offered him an injury. Captain Macnamara was shaking his stick, but it appeared to be an involuntary action, the consequence of his passion, and not intended as an insult.
James Harding, vintner, Jermyn Street, said: "I was at Chalk Farm on the Wednesday, at half-past six. I observed the party -- Captain Macnamara, Colonel Montgomery and three other gentlemen -- ascending Primrose Hill. One of the party (Captain Barry) desired the servant to bring a case out of the chaise; this opened my eyes to the business. I stood about fifty yards distant from them. I saw Sir W. Keir and Captain Barry conversing together, and preparing the pistols; one was discharged to see whether they were in good condition. The parties separated to about six yards. Colonel Montgomery fired and Captain Macnamara fired; they stood face to face. Both fired at the same time. Colonel Montgomery fell; Captain Macnamara did not. I went up. Colonel Montgomery was extended on the ground, and, shortly after, Mr Heaviside opened his waistcoat and looked at his wound; it was on his right side. Mr Heaviside administered relief to him and then went to Captain Macnamara. I think he said he was wounded, and that he must bleed him. I assisted in carrying Colonel Montgomery; his eyes were fixed, and he was groaning. I saw the corpse afterwards on a bed in Chalk Farm."
The prisoner was now called upon for his defence. He entreated the Court to indulge him with the permission of addressing the jury sitting, as he felt much pain and inconvenience from his wound while standing. His request was instantly complied with, and he delivered himself in these terms, but in so low and tremulous a tone as scarcely to be heard:
"Gentlemen of the jury, I appear before you with the consolation that my character has already been freed, by the verdict of a Grand Jury, from the shocking imputation of murder, and that although the evidence against me was laid before them without any explanation or evidence of the sensations which brought me into my present unhappy situation, they made their own impression, and no charge of criminal homicide was found against me. I was delivered at once from the whole effect of the indictment. I therefore now stand before you upon the inquisition only, taken before the coroner, upon the view of the body, under circumstances extremely affecting to the minds of those who were to deliberate on the transaction, and without the opportunity, which the benignity of the law affords me at this moment, of repelling that inference of even sudden resentment against the deceased, which is the foundation of this inquest of manslaughter.
"The origin of the difference, as you see it in the evidence, was insignificant: the heat of two persons, each defending an animal under his protection, was natural, and could not have led to any serious consequences. It was not the deceased's defending his own dog or his threatening to destroy mine that led to the fatal catastrophe: it was the defiance alone which most unhappily accompanied what was said; for words receive their interpretation from the avowed intention of the speaker. The offence was forced upon me by the declaration that he invited me to be offended, and challenged me to vindicate the offence by calling upon him for satisfaction. 'If you are offended with what has passed, you know where to find me.' These words, unfortunately repeated and reiterated, have over and over again been considered by criminal courts of justice as sufficient to support an indictment for a challenge.
"Gentlemen, I am a captain in the British Navy. My character you can hear only from others; but to maintain any character in that station I must be respected. When called upon to lead others into honourable dangers I must not be supposed to be a man who had sought safety by submitting to what custom has taught others to consider as a disgrace. I am not presuming to urge anything against the laws of God, or of this land. I know that, in the eye of religion and reason, obedience to the law, though against the general feelings of the world, is the first duty, and ought to be the rule of action; but in putting a construction upon my motives, so as to ascertain the quality of my actions, you will make allowance for my situation."
Witnesses for the defence were then called.
Lord Hood said: " I have been acquainted with the prisoner, Captain Macnamara, eight or ten years; I had the good fortune to promote him in the year 1794. I always considered him a man of great moderation, and of gentlemanly manners. It was from the high situation in which he stood, in my opinion, as an officer of merit, that I promoted him."
Lord Nelson said: "I have known Captain Macnamara nine years; he has been at various times under my command. During my acquaintance with him I had not only the highest esteem and respect for him as an officer, but I always looked upon him as a gentleman, who would not take an affront from any man; yet, as I stand here before God and my country, I never knew nor heard that he ever gave offence to man, woman or child during my acquaintance with him."
Lord Hotham, Lord Minto, Sir Hyde Parker and Sir Thomas Trowbridge, K.B., one of the Lords of the Admiralty, also gave evidence.
Mr Justice Heath then addressed the jury, and they retired from court for about twenty minutes. On their return the foreman pronounced a verdict of not guilty.