Duelling in colonial Sydney

2016
CC BY-SA 2.0
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Duelling in colonial Sydney

[media]Early one morning in March 1827 Colonel Henry Dumaresq, personal assistant, confidant and brother-in-law of Governor Ralph Darling, met Dr Robert Wardell, part owner of the Australian newspaper, editor and barrister, in a lonely field in Homebush, to fight a duel. Dumaresq had issued a challenge to Wardell after reading an article in the Australian called 'How-e to live by Plunder', alleging Dumaresq had improperly supplied a file belonging to the Australian to the Sydney Gazette. [1]

The old saying has it that the pen is mightier than the sword and, fortunately for Dumaresq and Wardell, it proved mightier than the pistol – despite three attempts to shoot each other from thirty paces they both emerged unhurt. [2] Wardell's friend and second, William Charles Wentworth, prevailed upon him to offer a verbal apology. Dumaresq magnanimously accepted and 'honour being satisfied, the parties mounted their horses, courteously saluted each other, and rode back to Sydney and breakfast.' [3]

[media]This was not the first duel Wardell had fought or emerged from uninjured. In 1826, he duelled with New South Wales' first Attorney General Saxe Bannister. Bannister was a rather maverick practitioner of the law and after a number of humiliating defeats in court he resigned in 1826. In the duel with Wardell, it seems he was as good a shot as he was advocate and no one was hurt. [4]

A code of honour

Duels were formal and civil events – mannered violence that ordered the relations of gentlemen with each other and the ways they were perceived by others. The ritual was well-established; a dispute was followed an exchange of calling cards or letters between two gentlemen and 'seconds' were appointed to act as mediators. If the seconds could not persuade the gentlemen to resolve their dispute verbally, they refereed the ensuing duel, which was governed by strict rules of equality (of weapons, timing and distance) and notions of 'fairness' (one shot at a time).

Today the duel seems a curious, antiquated and rather astonishing way of conflict resolution, yet in the eighteenth and nineteenth centuries disputes and disagreements between gentlemen sometimes ended with a demand for 'satisfaction' and an invitation 'to the field'. In theory, 'honourable' men could not refuse this dubious, double-edged invite; to decline meant an immediate loss of honour and yet to accept might result in murder or death. If both men survived the duel unscathed, honour was restored and nothing more was to be said of the matter, because 'after an affair of this kind is over, any party who was a gentleman would hold his tongue about it'. [5]

Maintaining reputation

As the historian Alan Atkinson has suggested, colonial men seeking their fortunes were often 'marginal men' who were utterly reliant on good luck, favours and the establishment of an impeccable reputation to secure grants of land and commercial deals. Men had to first acquire honour and then work obsessively hard to maintain it. [6] As a result colonial Sydney was a litigious and pugnacious place to live.

Sydney was also a small town, where social competition was rife and rumour and gossip flourished. Certain offences against the dignity of a gentleman were regarded as so heinous that the recipient would find it difficult to retain his place in society unless he took steps to requite them. As the Sydney Morning Herald suggested in 1842, 'the coarsest epithet in our language' was to be accused of 'falsehood', as a gentleman's word was supposed to be his honour. [7] Reputation was therefore both 'a matter of public anxiety and profound personal introspection'. [8]

The horsewhip was a prominent feature in disputes between gentlemen. Animals, children and convicts were whipped as both punishment and to uphold power relations, so to be horsewhipped was a physical assault and a symbolic challenge to a man's status – even uttering the phrase 'consider yourself horsewhipped' was as discrediting to a gentleman's honour as the physical act itself. [9] The traditional laws of honour demanded that a horsewhipped gentleman repair his honour by resorting to a duel but many gentlemen took their case to court for determination as to whether the action was an assault or an attempt to provoke or 'incite' a duel.

In colonial times, doing a thing with intent was, in the eyes of the law, regarded as a performance of the act intended. [10] In October 1840 James Mudie, who had just returned to Sydney after a trip to England, was struck repeatedly with a horsewhip by John Kinchela, who also 'put in some facers with his fist and cut him on the mouth' before throwing down his calling card to symbolically challenge Mudie to a duel. [11] Later, in court Mudie's lawyer Mr a'Beckett informed the proceedings that this clearly intimated 'that the spirited youth who had severely beaten an old man, was quite willing and ready to shoot him through the head'. [12]

Kinchela's wrath had been aroused by Mudie's book, The Felonry of New South Wales, which had been published in London in 1837, and which painted a damning picture of colonial New South Wales, the convict system and many of the colony's leading figures, including Kinchela's father, Dr John Kinchela, who was the attorney general until 1837. Mudie had described Kinchela senior as 'deficient in legal knowledge' and without 'the address or manners, or the language of a gentleman.'

His utterance is bad, and strongly tinctured with the brogue of Kilkenny, and, to crown the whole, he is excessively deaf – a defect necessarily subjecting him to the most mischievous or the most ludicrous mistakes. [13]

The invitation to duel came to nothing but Mudie sought £1,000 in damages for the horsewhipping assault and the subsequent damage to his honour as a gentleman. He was eventually awarded £50, which Kinchela's supporters paid. Unusually, John Kinchela was not ordered to keep the peace. [14]

Keeping the peace

In other cases of 'incitement to duel' men were ordered to keep the peace and heavily fined. In February 1836 Captain John Sylvester Brown of the Proteus challenged Captain John Brown of the Nimrod to a duel while out at sea whaling, after hearing his character had been impugned. Once ashore, John Brown sent two friends John Maughan and Edwin Parke to the residence of Sylvester Brown 'with an invitation to the field', which was refused. The following day posters alleging Sylvester Brown was 'a coward and a blackguard' were posted in the reading rooms of Sydney's public library. Maughan and Parke were both charged with a breach of the peace for posting the libel in the library and the court ordered they were to enter into sureties of £250 each to keep the peace for twelve months. [15]

However, in June 1837 the streets of Sydney were placarded with posters signed by Sylvester Brown informing the good inhabitants that, 'Having felt myself aggrieved, and denied every satisfaction I do hereby proclaim John Maughan, of Wellington, a liar, a slanderer, and a coward.' Sylvester Brown had heard rumours and gossip that Maughan had called him a 'blackguard' in public – a term that referred to a thoroughly unprincipled person, a coarse despicable person, a scoundrel, or a foul-mouthed person – the antithesis of the honest, honourable and principled gentleman. [16]

Maughan not only refused Sylvester Brown an apology, he also refused to send someone to meet Brown's friend. In short, he refused to duel. In revenge, Sylvester Brown sought his satisfaction by doing exactly what Maughan had done the year before – by publicly posting him. At the Supreme Court of New South Wales, Maughan sought £1,000 compensation for the 'false, scandalous and malicious' libel. Judge Dowling ruled the placard was unquestionably a libel but, as the act was a response to his conduct, the jury should set the recompense. The jury somewhat reluctantly agreed to 40 shillings. [17]

Public notices

The printer who published these scandalous placards and libellous posters was also in peril in the courts. William Jones told the court he initially refused to print Brown's libellous placard because of the 'danger of it on account of its contents' and had taken 'a great deal of persuading.' [18] However, Judge Dowling said;

The printer of the placard had incurred a serious responsibility, had it instigated the parties to go to the field and either had fallen he would have taken his trial for wilful murder; and if convicted, he would have suffered an ignominious death, as an accessory before the fact. [19]

The Sydney Herald hoped 'our typographical brethren' would be more cautious after this warning as 'to be tried for libel is bad enough, but to be tried for murder is no joke.' [20]

That public notices alleging cowardice and challenging gentlemen to the unlawful act of a duel were openly advertised says much about insouciance of attitudes towards duelling, as well as about the general ineffectiveness of the legal system. In truth, the state acknowledged no active duty to intervene and prosecute offenders in cases where duels had not led to a fatality and when 'both parties had conducted themselves honourably and both had been at equal hazard'. [21] Even in cases that did lead to death, juries often considered no murder had been committed if the rules of honour had been strictly followed and found for the lesser charge of manslaughter.

'False honour'

In April 1828 Charles Penberthy, chief officer on the female convict ship Elizabeth, had an altercation with Robert Atkin, the ship's third mate, while the ship was at anchor in Sydney Harbour. They agreed that they should meet the next morning on Garden Island 'to decide their mutual differences' with loaded pistols. [22] George Chalmers, the second mate, acted as Atkins' second and Henry Milton, boatswain, served as Penberthy's second. After two misfires, Chalmers tried but failed to bring about a reconciliation. The parties again took their ground. Atkin's pistol went off and Charles Penberthy immediately fell to the ground. He was promptly put on board the Elizabeth and shortly after, breathed his last. The surviving parties voluntarily surrendered their persons to the custody of the law. [23]

Both Robert Atkin and his second George Chalmers were tried for murder, however they were found guilty of the lesser crime of manslaughter. Both were sentenced to three months' confinement in His Majesty's Gaol at Sydney. [24] However, Supreme Court Judge Francis Forbes denounced Robert Aitkin's actions and the 'false honour' embodied in the duel. It would have been far more honourable of him if he had not accepted the challenge 'to go out' with Penberthy:

To proceed to such extremes as these, to satiate the ebullition of passions arising out of angry feeling, is false honour…You permitted yourself to be hurried on this step by an impulse of feeling which the giddy world is apt to say, arises out of injured feeling, and to resent what you conceive an insult – you satiate that resentment by causing a fellow creature's death. [25]

The judge opined that Chalmers' offence was the greater as he had 'no passions to satisfy – no feelings to sooth', but was mitigated by his attempts to intervene. [26]

Fist fighting and brawls

The notion of a 'fair fight' was essential in duelling, as well as in fisticuffs and brawling. In Sydney in November 1788 there was a rowdy late-night disturbance in the women's camp. Thomas Bulmore, a private marine who was far from a paragon of sobriety, had found James Baker in the hut of Mary Phillips, who had earlier refused Bulmore. There was much swearing and shouting and Bulmore announced 'no cock should head his hen that night', telling Baker to 'get up you dog and give me satisfaction.' [27]

Bulmore demanded a fight there and then. Baker refused and told him to go home and 'be peaceable', which was met with taunts from his rival that he was 'a cowardly dog and no man'. Baker eventually agreed to a fight, but with proper pugilistic rules. Seconds were appointed and the men shook hands both before and after the fist fight.

Bulmore died a couple of days later from blows inflicted to the head. Baker, his second Luke Haines and Belmore's second Richard Askew stood trial and were all found guilty of manslaughter. No distinction was drawn between the sentencing of Baker, who had inflicted the blows, and the seconds. All three were sentenced to 200 lashes. [28]

'Honest violence' and refusing to duel

The idea of equal terms and 'honest violence' was important in the eyes of the law and juries were rarely prepared to convict duellists when the code of honour had been upheld. Fairness and equality was similarly important in the eyes of a gentleman. In a duel with a bench colleague at Bathurst, the magistrate James Charles White declined to return his opponent's fire because he had been drinking all night and was not 'fair game'. [29]

Some men refused to respond to a challenge if they thought the challenger or his 'friend' was not their social equal. In Sydney in July 1801 Captain John Macarthur issued a challenge to duel with Lieutenant James Marshall after Marshall had called him a 'rascal' and had threatened to assault him. Macarthur appointed Captain Edward Abbott as his second, but when James Marshall appointed a Mr Jeffries who was a young shop keeper, Edward Abbott objected as Jeffries was not his social equal according to the rules of duelling. Macarthur asked every member of the New South Wales Corps to be his second, yet they all refused on the same grounds that Jeffries was not a co-equal. Whether the officers of the corps were being faithful to the 'equality principles' enshrined in the code of honour, or whether they objected to the duel itself, is difficult to ascertain. In court, however, the majority of the officers questioned suggested that Captain Macarthur had been too hasty in calling Lieutenant Marshall out 'whose conduct had been such as not to be considered by them worthy of a duel'. [30]

Sometimes duels were refused when the proposer was known to have refused to duel in the past; this deemed him a coward and thus the forfeiture of his entitlement to the status of gentleman and his 'privilege' to demand a duel. The very fact that a refused private duel often became public knowledge is a measure of the way private disputes between individual gentlemen became important to the wider community of gentlemen. It was also significant as to who might be considered worthy of the title of gentleman – or not.

Opposition to duelling

Local reports of duels were often nonchalant, as was the case in September 1831 when the Sydney Herald reported:

On Thursday morning a meeting took place on Garden Island, between two gentlemen, attended by their seconds, when after one party had fired, and the pistol of the other had burnt priming, the seconds interfered and the combatants returned to Sydney perfectly satisfied, in the same boat. The cause of the duel arose from a misunderstanding at cards. [31]

Some writers expressed sympathy for men who still felt compelled to indulge in this 'once common' practise but others saw no gentlemanly honour. Much of this opposition to duelling was based on its subversion of both God's law and that of the state. It was portrayed as an outdated aristocratic anachronism which put privileged gentlemen above the criminal law when all should be equal before it.

Other critics of the kind of masculinity embedded in the code of honour stressed physical and emotional self-control for all men, arguing that duelling meant excessive, impulsive physical abandonment and a lack of emotional restraint. Opposition voices portrayed the refusal to duel as the true act of heroism and moral courage. In 1848 the Sydney Morning Herald hailed the prominent politician Charles Cowper for being a man of 'true courage and magnanimity' for 'manfully' refusing to fight a duel with a political rival, Mr Boyd:

The acceptance of a challenge is an act of cowardice – of cowardice which, to avoid a transient inconvenience, incurs the double guilt of suicide and murder. The refusal of a challenge is an act of heroism – of heroism which, rather than violate the laws of God, braves all the punishment than can be inflicted by man…Like a sensible man and a right hearted Christian he 'declined' the invitation…Thanks to the progress of Christian civilization, duelling is getting out of fashion. And thanks to Mr. Charles Cowper for having done his part towards ridding this young country of a crime at once so detestable and so foolish. [32]

Similar sentiments were often expressed by members of the legal profession, although they often found themselves embroiled in legal battles over notions of gentlemanly honour with their professional rivals. Prominent barrister Edward Broadhurst and his famously provocative fellow Robert Lowe became entangled in an affair of honour in 1844 when both were residing in Horbury Terrace on Macquarie Street and Lowe publicly denounced the virtue of one of Broadhurst's sisters. In April the two barristers were bound over to keep the peace for twelve months. However, one year later, Broadhurst was still waiting for an apology for the slur that had been made against his sister's honour and that of his family name. He published placards and a provocative letter to Lowe asserting 'I have already defied you as a slanderer; I now denounce you as a coward'. [33]

Broadhurst was subsequently arrested and charged with inciting a breach of the peace. The case was heard on 12 July 1845 and a verdict of guilty was returned with a recommendation to mercy. Sir Alfred Stephen, in sentencing:

proceeded at some length to dwell upon the absurdity of the code of duelling, on the enormity of the offence, and the fallacy of the opinion which some strongly held, and which opinion might influence others, that going out to fight could either redress an injury, vindicate a character, or assist in the attainment of truth. [34]

Stephen said Broadhurst, known to the court as one 'of strong mind – of education and intellect', should have been unable to rise above the 'prejudices and absurd usages of society' and that the code of duelling was one which 'no Christian, no man of proper feeling, could reflect upon without horror'. He ordered Broadhurst to pay a fine of £100, enter into a bond of £200 and furnish two sureties of £100 each to keep the peace 'towards all Her Majesty's subjects' for two years. [35]

Conclusion

However, they were settled, affairs of honour between gentlemen were always, ultimately about men's anxieties about their reputations; sometimes personal, sometimes professional, and often both. [36] This anxiety was strong enough in colonial Sydney to ensure that, despite the imprecations of the legal profession and others, duelling was a feature of life in the city.

Further reading

Banks, Stephen. A Polite Exchange of Bullets: The Duel and the English Gentleman 1750–1850. Suffolk, UK: Boydell Press, 2010.

Gilchrist, Catie. 'Defending Honour in Australian Settler Societies.' Penny Russell and Nigel Worden (editors), Honourable Intentions? Violence and Virtue in Australian and Cape Colonies 17501850. London: Routledge, 2016.

Duffy, Michael. Man of Honour: John Macarthur – Duellist, Rebel, Founding Father. Sydney: Macmillan, 2003.

Mckenzie, Kirsten. 'Of Convicts and Capitalists: Honour and Colonial Commerce in 1830s Cape Town and Sydney.' Australian Historical Studies vol 33, 118 (2002):199–222

Russell, Penny. Savage or Civilized? Manners in Colonial Australia. Sydney: NewSouth Publishing, 2010.

Notes

[1] Australian, 17 March 1827

[2] Wardell was killed by a bullet fired by a runaway convict hiding near his Sydney estate in September 1834. CH Currey, 'Wardell, Robert (1793–1834)', Australian Dictionary of Biography, http://adb.anu.edu.au/biography/wardell-robert-2773/text3941, viewed 29 May 2016

[3] A Halloran, 'Some Early Legal Celebrities', Journal of the Royal Australian Historical Society 10 (1924), 345

[4] CH Currey, 'Bannister, Saxe (1790–1877)', Australian Dictionary of Biography, http://adb.anu.edu.au/biography/bannister-saxe-1738/text1919, viewed 29 May 2016

[5] Mr DG McArthur, Clerk, Surveyor General's Office and witness in the Maughan v Brown case, Supreme Court of New South Wales, Thursday June 29 1837, printed in the Sydney Gazette, 1 July 1837

[6] Alan Atkinson, 'John Macarthur Before Australia Knew Him', Journal of Australian Studies4 (1979), 22–37

[7] Sydney Morning Herald, 18 August 1842

[8] Stephen Banks, A Polite Exchange of Bullets: The Duel and the English Gentleman 1750-1850 (Suffolk, UK: Boydell Press, 2010) 103

[9] Catie Gilchrist, 'Defending Honour in Australian Settler Societies' in Penny Russell and Nigel Worden (eds), Honourable Intentions? Violence and Virtue in Australian and Cape Colonies 1750-1850 (London: Routledge, 2016), 149

[10] Even in the military, where the code of honour was more deeply entrenched than in civilian life, officers found guilty of incitement to duel were often dismissed from service.

[11] Sydney Herald, 28 October 1840; Australian, 26 September 1840; Australian, 27 October 1840

[12] Sydney Herald, 28 October 1840

[13] James Mudie, The Felonry of New South Wales Being a Faithful Picture of the Real Romance of Life in Botany Bay with Anecdotes of Botany Bay Society and a Plan of Sydney, 1837 ( Melbourne: Lansdowne Press, 1964), 147

[14] Sydney Herald, 28 October 1840

[15] This case was published in the Australian, 19 February 1836 and 23 February 1836 and in the Sydney Gazette, 20 February 1836

[16] The insult featured in other Sydney cases too. In 1841 Lieutenant Colonel Kenneth Snodgrass, a former acting lieutenant-governor of Van Diemen's Land and acting governor of NSW, called his next door neighbour James King Esq a blackguard and threatened to beat him with a stick. It appears that King had written to Governor George Gipps for advice on a letter from Snodgrass that was a thinly disguised invitation 'to the field'. Snodgrass in turn accused him of writing lies to the Governor and impugning his honourable reputation in the eyes of the colonial authorities. Their original dispute was a trifling matter over a broken fence which boarded their properties. Sydney Herald, 20 October 1841 and 1 November 1841

[17] Sydney Gazette, 1 July 1837

[18] Sydney Gazette, 1 July 1837

[19] Sydney Gazette, 1 July 1837

[20] Sydney Herald, 3 July 1837

[21] Stephen Banks, A Polite Exchange of Bullets: The Duel and the English Gentleman 1750–1850 (Suffolk, UK: Boydell Press, 2010), 141

[22] Australian 7 May 1828

[23] Australian 7 May 1828

[24] Australian, 9 May 1828

[25] Australian, 9 May 1828

[26] Australian, 9 May 1828

[27] State Records NSW, Court of Criminal Jurisdiction, Minutes of Proceedings, 5/1147A-65

[28] State Records NSW, Court of Criminal Jurisdiction, Minutes of Proceedings, 5/1147A-65

[29] David Denholm, 'White, James Charles (1809–1894)', Australian Dictionary of Biography, http://adb.anu.edu.au/biography/white-james-charles-4838/text8075, viewed 31 May 2016

[30] State Records NSW, Court of Criminal Jurisdiction, Minutes of Proceedings, Feb 1801 to Dec 1808, State Records, 5/1149. See also Ross Fitzgerald and Mark Hearn, Bligh, Macarthur and the Rum Rebellion (Kenthurst, Kangaroo Press, 1988), 51–52. The same year (1801) John Macarthur was sent home by Governor King after Macarthur had duelled with Colonel Paterson of the NSW Corps. See CMH Clarke, A History of Australia: From the Earliest Times to the Age of Macquarie (Melbourne: Melbourne University Press, 1962), 163; Michael Duffy, Man of Honour: John Macarthur – Duellist, Rebel, Founding Father (Sydney: Macmillan, 2003), 173–213

[31] Sydney Herald, 12 September 1831

[32] Sydney Morning Herald, August 18 1848

[33] Sydney Morning Herald, 13 June 1845; Sydney Morning Herald, 18 July 1845

[34] Sydney Morning Herald, 18 July 1845

[35] Sydney Morning Herald, 18 July 1845, 2; JM Bennett, 'Broadhurst, Edward (1810–1883)', Australian Dictionary of Biography, http://adb.anu.edu.au/biography/broadhurst-edward-3057/text4503, viewed 2 June 2016

[36] Catie Gilchrist, 'Defending Honour in Australian Settler Societies' in Penny Russell and Nigel Worden (eds), Honourable Intentions? Violence and Virtue in Australian and Cape Colonies 1750-1850 (London: Routledge, 2016), 143

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