BETWEEN eight and nine this morning, Captain Macnamara was removed from Blake's Hotel, attended by his brother, Townsend, the police officer, and the medical gentleman who has attended during the absence of Mr. Heaviside. He went in a coach, which, on account of the weak state of his body, drove very slowly to Newgate. He alighted at the house of Mr. Kirby, where he remained until a short time before his trial commenced. He was brought to the bar by Mr. Kirby a few minutes before one o'clock. At one o'clock the trial commenced.
The Clerk of the Arraigns read over the charge, which was founded on the verdict of the Coroner's Inquisition, of Manslaughter by a pistol-bullet discharged by the prisoner.
Mr. Knapp opened the case.
Gentlemen of the Jury — The Officer of the Court has stated to you the charge which imputes to the prisoner at the bar the death of Colonel Montgomery, in consequence of a ball discharged by the prisoner. In reciting the facts which it is my duty to lay before you, I shall carefully abstain from creating in your mind any prejudice whatever. Acting on the principle, that all cases tried by Juries should be tried on the evidence laid before them, and on that only, I feel, what often has been felt before in this Court, what every one of you must have felt, the ill consequence of prejudices excited by the public prints; the evil of which is not only injurious by the feeling which it creates in the public mind at large, but particularly by the influence it has on the minds of those who are to compose the Jury by which the offence is to be tried. I am confident that no prejudice can work on your minds, because I have seen, from the commencement of the sessions, that you will regulate your conduct by your oath, and by that alone. The charge which is brought before you is for manslaughter only. It will give you, as well as me, and every other person, satisfaction that it does not affect the life of the prisoner; but it is, however, highly important, and no doubt it will obtain from you attention equal to its importance. If any question of law shall arise, I will not trouble you with any opinion of my own upon it, as an opinion coming from me might possibly affect the prisoner, and as any law that may arise will be stated with so much more authority by the Court. I am not aware, however, of any point of law that can arise. The single question you are to try is, whether the deceased received his death from the hand of the prisoner, in consequence of a rencontre on Primrose Hill? If you find that fact, the law, I believe, is not liable to any doubt, but is clear and explicit. The prisoner is a Gentleman of rank and high respectability, famed for the courage and magnanimity which he has invariably displayed in the service of his country, and for every other quality that can do honour to a Man and a Gentleman. — The deceased was a man equally honoured and esteemed, and possessed of the affections of an extensive and respectable connection, highly beloved by a family whose feeble instrument I am in conducting the prosecution; in which it is my instruction, as well as my inclination, not to aggravate any thing that is to appear in evidence: but yet not to violate my professional duty, by passing over in silence anything that I ought to notice. (Mr. Knapp here entered into the circumstances of the provocation in Hyde Park, and dwelt particularly on the use made by Captain Macnamara of the word arrogance. In Piccadilly something farther passed, in which other persons were concerned, whose names he would not mention, as they were not now the object of accusation.) The transaction led to the rencontre at Primrose Hill, at which were present, besides the deceased and the prisoner, Captain Barry, Major Sir W. Keir, and Mr. Heaviside, a person of the highest professional character. — (Mr. Knapp then stated the progress and effect of the duel.) The Learned Gentleman concluded, by saying, that the prosecutor had no wish, as to the event of the trial, but to acquit himself of the duty to his deceased relative, and to the public. If, in consequence of this prosecution, a stop or check should be put upon such fatal transactions, this prosecution would be attended with the best effects that had resulted from any trial that had taken place before a Jury of the Country — The Witnesses were now called.
William Sloane, Esq. was in Hyde Park on Wednesday, the 6th of April last, between the hours of four and five o'clock, in company with the late Colonel Montgomery; Sir William Keir was of the party, and they were joined by the witness's brother. They were on horseback, and Colonel Montgomery had a large Newfoundland dog which followed him. There was another Newfoundland dog in the Park. There were several Gentlemen of the party to which it seemed to belong, and, among the rest, Captain Macnamara. The dogs began a fighting. Colonel Montgomery alighted from his horse in order to separate them. They were separated. Colonel Montgomery called out, “Whose dog is this?” Captain Maacnamara answered, “It is my dog.” Colonel Montgomery rejoined, “If you do not call your dog off, I shall knock him down." Captain Macnamara – “Have you the arrogance to say you will knock my dog down?” Colonel Montgomery – “I certainly shall, if it fall upon mine again." The same conversation was again almost repeated, and they mutually exchanged their names. Colonel Montgomery said he was Colonel Montgomery, and Captain Macnamara that he was Captain Macnamara, of the Royal Navy. They then all went towards Piccadilly. Colonel Montgomery said, " It is not my intention to quarrel with you, Captain Macnamara; but if your dog attack mine again, I will knock him down." Colonel Montgomery went through St. James's street, with the intention, as the witness supposed, of going home. The parties were then about thirty yards distant from each other. In Jermyn-street, a Gentleman, whom, the witness since knows to be Captain Barry, went from Captain Macnamara to Colonel Montgomery.
Cross-examined. — Had no reason to suppose that the dog was put on by the Gentleman whom he followed. Captain Macnamara had the dress and appearance of a Gentleman. Does not think that Colonel Montgomery asked Captain Macnamara to call off his dog in the manner in which Gentlemen would address each other where no offence had been taken. Colonel Montgomery told Captain Macnamara, if he was offended he knew where to find him. Whether this was before their exchanging names, or afterwards, he did not pretend to say; but Colonel Montgomery must have seen Captain Macnamara to be a Gentleman.
Stephen Sloane, Esq. brother to the preceding witness, joined Colonel Montgomery and his brother in Hyde Park on the afternoon of the 6th of April. Remembers that when they came near the bar, they heard the noise of dogs fighting. Colonel Montgomery had a dog with him. Looking behind, and seeing his dog engaged, he jumped off his horse, for the purpose of separating them, when another Gentleman, whom he knows to be Captain Macnamara, came up. Colonel Montgomery then said, "If you do not call off that dog, I'll knock him down." Captain Macnamara answered, "if you knock down the dog, you must knock down me too." Colonel Montgomery then said something which the witness cannot properly recollect; but he immediately added, "This is not the proper place for the adjustment of any dispute. My name is Colonel Montgomery, and you know where to find me." Captain Macnamara answered, "My name is Captain Macnamara, of the Royal Navy." Colonel Montgomery said, that he did not mean to give any offence by saying that he would knock down the dog, if it again attacked his; and Captain Macnamara answered, that he was not offended by any thing he had yet said; but if Col. Montgomery meant to give any offence he would take it up with zeal. Captain Macnamara, in the course of the dispute, used the word "arrogance." They immediately separated, and all rode up Piccadilly; Captain Macnamara and his friends riding first, and Colonel Montgomery, the witness's brother, and himself, following at the distance of about thirty yards. At this time the witness conceived it all over. When in Jermyn-street, one of the Gentlemen who had been in the Park with Captain Macnamara came up to Colonel Montgomery, and had some conversation with him, after which he returned to Captain Macnamara.
Cross-examined — Colonel Montgomery said, "Call off your dog, call off your dog," without seeming to know whose dog it was. He said, "I am Colonel Montgomery; you know where to find me."
Lord Burghurst, seeing several Gentlemen together in Hyde Park, upon the afternoon of Wednesday, the 6th of April, and Colonel Montgomery of the number, immediately made up to them. When he joined them, within about twenty yards from the upper bar, he heard a Gentleman opposite, whom he knows to be Captain Macnamara, say, "That language is arrogant, and not to be used by a Gentleman, or to a Gentleman," the witness cannot say which. Colonel Montgomery then said, “You know where to find me." Afterwards he added, "Do you feel yourself offended?" Captain Macnamara answered, "No, Sir; but if you say any thing to affront me, I'll take it up as soon as any man in England." Colonel Montgomery replied, "That, Sir, is not my intention; but I adhere to what I have already said; if your dog again attack my dog, I will knock him down." Captain Macnamara then said, "If he insulted him, he would fight Colonel Montgomery as soon as any man in England." Captain Macnamara then lifted up his stick, though not seemingly with the intention of conveying any insult, and the parties separated, the witness thinking that the business was at an end.
Charles Smith, Esq. was riding in Hyde Park on the afternoon of Wednesday, the 6th of April, towards the bar. Colonel Montgomery and four or five other Gentlemen were riding the same way. Two dogs began fighting. Colonel Montgomery, whom the witness had never before seen, said to another Gentleman, “I’ll knock down that dog, if you do not call him off." The other Gentleman, whom he since knows to be Captain Macnamara, answered, "If you do, you must take the consequences, or knock me down too." Colonel Montgomery then asked, “Why did you not call off your dog?” Captain Macnamara said, “I did not choose; and will not be dictated to by you or any man." Colonel Montgomery — “If your dog fight mine again, I repeat to you, I’ll knock him down.” Captain Macnamara —"Very well, Sir, you shall be very welcome to know where to find me." Colonel Montgomery — "As a Gentleman, you might have called your dog off." Captain Macnamara — “No, Sir, I did not choose to call him off; I chose to let him fight; and I tell you again, that I will not be dictated to by you or any man; and I wish now to know where to find you for what you have already said." Friends then came up, and the witness heard no more.
Cross-examined. — “Did not hear Captain Macnamara say, "I am not offended at what you have already said; but if you mean to affront me, I'll take it up as soon as any man in England." Was not examined before the Coroner, but was before Justice Ford.
Thomas Latch, servant to Mr. Steel, stable-keeper in Bond-street, was desired, on the afternoon of the 6th of April, to go with a chaise to St. James's street. Captain Barry came in a hackney-coach, and ordered the witness to follow him to Bennet-street, St. James's street. When he arrived there, Captain Barry pulled out a case out of the hackney-coach, and putting it into the witness's chaise, ordered him to drive to No. 8, Dover-street. When he arrived there he took out the case and delivered it to Captain Barry. In about a quarter of an hour Captain Barry came out again, and put in the case himself. Mr. Heaviside, and the Gentleman who fought, came out with him, and went into the chaise. Mr. Heaviside desired the witness to drive to Chalk-Farm. — Captain Barry got out, and went up the field. Mr. Heaviside and the other Gentleman, a little afterwards, came out, and went up also. A hackney-coach came up much about the same time. A Gentleman came out of it, whom the witness does not know. He saw nothing happen. All the Gentlemen went up the field in the same direction. In about twenty minutes the Gentlemen returned. One was brought down. The Gentleman whom he brought down did not return with him, but went into a chaise belonging to the Three Kings. He wished to get into the chaise himself, but could not without assistance.
Daniel Farrar, post-boy at the Three Kings, in Piccadilly, remembers a Gentleman's servant coming for him upon the afternoon of the 6th of April, to go to Chalk-Farm. He accordingly went to Chalk-Farm, with the servant in his chaise. He saw another chaise there, and a hackney-coach. Saw Gentlemen there talking to each other; heard the report of a pistol after they got into the field; heard only one report; saw two Gentlemen, with pistols in their hands, standing face to face, some yards distance from each other, with a Gentleman at the side of each; saw Colonel Montgomery fall, upon which he immediately ran up. Mr. Heaviside was applying lint to Colonel Montgomery's wound. A person came up, and said to Mr. Heaviside, that Captain Macnamara was wounded also. Mr. Heaviside, upon this, ordered the other Gentleman to clap his hand on the part where he had applied the lint, whilst he went to look after Captain Macnamara. Colonel Montgomery only fell. The witness remained about twenty minutes on the field. They sent for a chaise. Tlie witness took Captain Macnamara in his chaise, and drove him to the Hotel. Colonel Montgomery was not dead at the time; the witness helped to carry him up stairs.
James Harding, Vintner, St. James's-street, happened to be at Chalk-Farm on the afternoon of the 6th of April. About half past six o'clock he observed some Gentlemen on Primrose-Hill. Followed them. Captain Barry desired the servant to bring the case out of the post-chaise. The Gentlemen stood a few yards distance from each other upon the hill. Saw the pistols prepared, and one discharged, to try if they were in good condition. The different parties separated, and fired, at the distance of about fifteen or sixteen yards. They were face to face when they fired. Both Gentlemen fired, and Colonel Montgomery fell. The witness went up and saw Colonel Montgomery on the ground. Mr. Heaviside opened his waistcoat and looked at the wound, which was upon the right ride. When Mr. Heaviside had administered to Colonel Montgomery, he went up to Captain Macnamara, who was also wounded, and bleeding. The witness assisted in carrying Colonel Montgomery down the hill, groaning, his eyes fixed, with every appearance of a dying man.
Lord Burghurst proved the Colonel's Christian name, and that he was the person whom he met in Hyde Park, and whom he afterwards saw dead at Chalk-Farm.
The case for the prosecution being closed, and the prisoner called upon for his defence, he begged permission to sit while he read what he had to address to the Court. This being granted, Captain Macnamara read a written paper, of which the following is a copy:
"Gentlemen of the jury,
"I appear before you with the consolation that my character has already been delivered, 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 accusations 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; 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 at 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. These judgments of Courts are founded upon the universal understandings and feelings of mankind; and common candour must admit, that an Officer, however desirous to avoid a quarrel, cannot refuse to understand what even the grave Judges of the Law must interpret as a provocation and a defiance. I declare, therefore, most solemnly, that I went into the field from no resentment against the deceased: nothing, indeed, but insanity could have led me to expose my own life to such imminent peril, under the impulse of passion from so inadequate a cause as the evidence before you exhibits, when separated from the defiance which was the fatal source of mischief; and I could well have overlooked that too, if the world, in its present state, could have overlooked it also. I went into the field, therefore, with no determination or desire to take the life of my opponent, or to expose my own. I went there in hopes of receiving some soothing satisfaction for what would otherwise have exposed me in the general feelings and opinions of the world. The deceased was a man of popular manners, as I have heard and with very general acquaintance. I, on the other hand, was in a manner a stranger in this great town, having been devoted, from my infancy, to the duties of my profession in distant seas. If, under these circumstances, words which the deceased intended as offensive, and which he repeatedly invited to be resented, had been passed by and submitted to, they would have passed from mouth to mouth, have been even exaggerated at every repetition, and my honour must have been lost.
"Gentlemen, I am a Captain of the British Navy. My character you can only hear 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 any thing 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 allowances for my situation. It is impossible to define, in terms, the proper feelings of a Gentleman; but their existence has supported this happy country for many ages, and she might perish if they were lost. Gentlemen, I will detain you no longer; I will bring before you many honourable persons, who will speak what they know of me in my profession and in private life, which will the better enable you to judge whether what I have offered in my defence may safely be received by you as truth. Gentlemen, I submit myself entirely to your judgments. I hope to obtain my liberty through your verdict, and to employ it with honour in defence of the Liberties of my Country."
Lieutenant Hynde, of the first regiment of Life-Guards, was first called as to what passed in the Park, but he spoke only to the same circumstances, and not so accurately as the other witnesses.
Lord Hood had known the prisoner eight or nine years. He had the happiness of promoting him in the year 1794. He spoke highly of him, both as a Gentleman and an Officer.
Lord Nelson had known the prisoner nine years. He said, though he believed he was a man who would not take an insult from any one, yet he was so good-tempered that he was convinced he would not himself insult either man, woman, or child.
Lord Hotham had known him since the year 1794. They were then in the Mediterranean. He was a pleasant, good humoured man, and every thing that could be wished in a companion.
Lord Minto knew him from 1793 to 1797. When his Lordship left the Mediterranean he had frequent occasions to be on board Lord Keith's fleet, and frequently saw Captain Macnamara both there and at his own house in Bastia. He always found him a good humoured, pleasant, lively, companion, exactly the reverse of a quarrelsome man.
Sir Hyde Parker had known him since the year 1790: said he was a most honourable and respectable man.
Sir T. Proby, one of the Lords of the Admiralty, had known him for eight or ten years; he never saw the smallest tendency to quarrelsomeness in him.
General Churchill also spoke highly of him as a good-tempered man.
Captains Martin, Toury, Lyddyard, Moore, and Waller, of the Navy; Dr. Baine, Mr. Wright of the Admiralty, and Mr. Phillips, all agreed in giving to the prisoner the character of a humane and good-tempered man, and one more likely to make up a quarrel than to be himself an aggressor.
Mr. Justice Heath, after stating the charge which the Jury had to decide, observed, that their province was very much limited. The crime of manslaughter was, where one man killed another on sudden heat of passion. Most fortunately for the prisoner they were not now to enquire into the extent of that provocation; for, though they had it in evidence that there had been a quarrel, yet it happened a considerable time before the fact which they were trying took place. If the inquest had returned a presentment of murder, instead of manslaughter, it would have then been their painful task to inquire whether there had not been sufficient time for the passion to have cooled; and if there had, then the law, which knew nothing of these nice sentiments of honour, must have pronounced the crime murder. — There was a great deal of evidence respecting the provocation given, but it was not necessary to state it, as the extent of it was, under this charge, immaterial. It appeared they quarrelled, and they parted; but they met again at Chalk-Farm, after a long time, and at a distant place, and then the deceased fell by the hand of the prisoner; this he admitted by his defence. All the character they had heard, however respectable the persons who gave it, ought not to have any influenee on their verdict; they had only to inquire whether the deceased got his death from the hands of the prisoner; and this was admitted.
The Jury withdrew for about ten minutes, and then returned a verdict of Not Guilty.
Captain Macnamara entered the Court, from Newgate, a little after one, surrounded by a number of friends of the most respectable appearance, on two of whom he supported himself. He sat on a chair between the dock and the door towards Newgate, till he was ordered to the bar. When he came to the bar, and the arraignment proceeded, he stood for a considerable time. Though the Court had, at the beginning, voluntarily ordered him a chair, it was not till he was called by his Counsel to avail himself of the indulgence that he sat down. Captain Macnamara is above the middle size, rather stout, and of a good figure. His complexion is dark, his features marked and expressive, manly, and at the same time handsome. He was dressed in a dark olive surtout, lined with velvet at the breast. His appearance was altogether elegant and prepossessing, and he had very much the air of a man of fashion. His deportment was modest, without betraying any want of firmness, and his whole conduct was strictly correct. He looked very pale; and this, added to the other circumstances, rendered his appearance highly interesting, and made a deep impression in his favour on every person in the Court. — Lord Nelson sat on the Bench, and Lord Hood in the Ordinary's box, during the trial.