On Tuesday, February the 16th, 1841, the Right Hon. the Earl of Cardigan was tried by his Peers at the bar of the House of Lords, for an assault with intent to murder, alleged to have been committed by him in fighting a duel with Mr. Harvey Garnett Phipps Tuckett.
In introducing this case to our readers we do not deem it to be necessary to enter into any minute or extended discussion in reference to the circumstances which preceded this trial, but it will be sufficient to point out the general facts by which the duel which was the subject-matter of the investigation was brought about.
The Earl of Cardigan in the year 1840 held the rank of Lieutenant-Colonel of the 11th Regiment of Hussars, of which His Royal Highness, Prince Albert had recently received a commission as Colonel. It appears to have been the object of the Earl of Cardigan to advance the discipline and general conduct of his regiment to such a state as to entitle it to be esteemed in the light in which it was held,-- that of a favourite regiment. The earl had been appointed to the regiment in the year 1838, while it was serving in India, but in the spring of the ensuing year, the usual period of service abroad having expired, the 11th Hussars were ordered home, and soon after received the title of "Prince Albert's Own." While stationed at Brighton, in the course of the year 1840, some differences arose between the noble earl and the officers under his command, which, whether justly or unjustly it is not for us to determine, procured for the former a considerable degree of notoriety, which placed his character as the commander of a regiment in an unenviable position. Complaints to the War Office were the result of these misunderstandings, and the subject became matter of discussion in the various newspapers of the day. Amongst those journals which took a prominent part in these debates was the Morning Chronicle, and in the columns of that paper a series of letters appeared under the signature of "An Old Soldier," which eventually proved to be the contributions of Mr. Tuckett, formerly a captain under the command of the Earl of Cardigan. Many of these letters undoubtedly contained matter highly offensive personally to the Earl of Cardigan, and the noble earl having discovered their author, called upon him to afford him that satisfaction usually deemed to be due from one gentleman to another under circumstances of insult or any other provocation. A meeting took place at Wimbledon Common, on the 12th of September 1840, the respective combatants being attended by seconds, the result of which was that, at the second shot Captain Tuckett was wounded. The whole affair was witnessed by some persons resident in the neighbourhood, and the parties were all taken into custody, and eventually bound over to appear to answer any charge which might be preferred against them at the ensuing sessions at the Central Criminal Court.
A police constable was directed to institute a prosecution, and bills of indictment were laid before the grand jury against Captain Tuckett, and Captain Wainewright, his second; and also against the Earl of Cardigan, and Captain Douglas, who had attended him in the capacity of his friend. In the cases of the two first-named individuals the bill was ignored, but a true bill was returned against the Earl of Cardigan and Captain Douglas.
The extent of jurisdiction of the judges at the Old Bailey prevented them from trying the Earl of Cardigan, whose alleged offence the noble earl was entitled to have inquired of by his peers, and the investigation of the case against the parties indicted was therefore postponed from session to session until the sitting of Parliament, the court declining to enter upon the case of Captain Douglas until that of the principal to the offence alleged against him had first been disposed of. Parliament assembled on the 16th of January 1841, and then, so soon as the forms of the House of Lords would admit, the bill of indictment was removed by certiorari, in order to be disposed of by their lordships. The customary preliminary forms having been complied with on the day above named, namely, Tuesday the 16th of February, the trial took place.
The public had been made acquainted with the fact that the trial would not take place in Westminster-hall, and that the Painted Chamber, in which the peers had met for parliamentary business since the destruction of the old house by fire, was under preparation for this solemn and imposing scene. The smallness of the apartment, and the general desire amongst the peeresses and the various members of the nobility and rank of the land to be present upon so important and interesting an occasion, rendered it necessary that very extensive alterations should be made to secure sufficient accommodation, and considerable ingenuity had been exercised in order to accomplish that object, every corner and nook from which a glimpse of the court can be snatched being provided with sittings. But the capacity of the building prevented the architect, with all his skill, from making the supply equal to the demand. The benches, galleries, and floor, were covered with crimson cloth, and the walls themselves with paper, in which that colour was predominant, and the effect was to make the gorgeous robes of the peers and the splendid dresses of the peeresses stand out in dazzling relief. When the court had opened, and the chamber was filled, the tout ensemble was magnificent.
At a quarter before eleven o'clock the lords' speaker (Lord Denman), having robed in his private room, entered the house. A procession was formed in the usual manner, his lordship being preceded by the purse-bearer with the purse, the sergeant with the mace, the black rod carrying the lord high steward's staff, and garter carrying his sceptre.
Garter and black rod having taken their places at the bar, the lord speaker proceeded to the woolsack, where, being seated, prayers were read by the Bishop of Lichfield.
The clerk-assistant of Parliament then proceeded to call over the peers, beginning with the junior baron.
This necessary ceremony being completed, the clerks of the crown in Chancery and in the Queen's Bench jointly made three reverences, and the clerk of the crown in Chancery, on his knee, delivered the commission to the lord speaker, who gave it to the clerk of the crown in the Queen's Bench to read; and both clerks retired with like reverences to the table.
The sergeant-at-arms then made proclamation, and the lord speaker informed the peers that her majesty's commission was about to be read, and directed that all persons should rise and be uncovered while the commission was reading.
The commission appointing Lord Denman as lord high steward was then read, and garter and black rod having made their reverences, proceeded to the woolsack and took their places on the right of the lord high steward, and both holding the staff, presented it on their knees to his grace.
His grace rose, and having made reverence to the throne, took his seat in the chair of state provided for him on the uppermost step but one of the throne. Proclamation was then made for silence; when the queen's writ of certiorari to remove the indictment, with the return thereof, and the record of the indictment, were read by the clerk of the crown in the Queen's Bench. The lord high steward then directed the sergeant-at-arms to make proclamation for the yeoman usher to bring the prisoner to the bar.
The Earl of Cardigan immediately entered the house, and advanced to the bar, accompanied by the yeoman usher. He made three reverences, one to his grace the lord high steward, and one to the peers on either side, who returned the salute. The ceremony of kneeling was dispensed with. The noble earl, who was dressed in plain clothes, was then conducted within the bar, where he remained standing while the lord high steward acquainted him with the nature of the charge against him.
The prisoner was arraigned in the usual form, for firing at Harvey Garnet Phipps Tuckett, on the 12th of September, with intent to kill and murder him. The second count charged him with firing at the said Harvey Garnet Phipps Tuckett with intent to maim and disable him; and the third count varied the charge -- with intent to do him some grievous bodily harm.
The clerk then asked, "How say you, James Thomas Earl of Cardigan, are you guilty or not?"
The Earl of Cardigan, in a firm voice, replied, "Not guilty, my lords. "
The clerk --"How will you be tried, my lord?"
The Earl of Cardigan --"By my peers."
The noble prisoner then took his seat on a stool within the bar, and his grace the lord high steward removed to the table, preceded by garter, black rod, and the purse-bearer, as before, and his grace being seated, black rod took his seat on a stool at a corner of the table, on his grace's right hand, holding the staff, garter on a stool on black rod's right, and the sergeant at the lower end of the table on the same side.
Mr. Waddington opened the pleadings, stating the nature of the offence as set out in the indictment, and added that the noble prisoner had, for his trial, put himself upon their lordships, his peers.
The attorney-general addressed their lordships as follows:-- "I have the honour to attend your lordships on this occasion as attorney-general for her majesty, to lay before you the circumstances of the case upon which you will be called to pronounce judgment, without any object or wish on my part, except that I may humbly assist your lordships in coming to a right conclusion upon it, according to its merits. An indictment has been found against a peer of the realm by a grand jury of his country, charging him with a felony, the punishment of which is transportation or imprisonment. That indictment has been removed before your lordships at the request of the noble prisoner, and, I must say, most properly removed, for an inferior court had no jurisdiction to try him. The charge is, upon the face of it, of a most serious character, and it would not have been satisfactory if it had gone off without any inquiry. The policeman, however, who was bound over to prosecute, fulfilled his recognizances by appearing at the Central Criminal Court, and preferring the indictment. It is possible that in the course of this trial, questions of great magnitude on the construction of acts of Parliament or respecting the privileges of the peerage may arise, which it is of great importance to this house, to the crown, and to the community, should be deliberately discussed. According to all the precedents that can be found, whenever a peer has been tried in Parliament, the prosecution has been conducted by the law-officers of the crown. Fortunately, we have no living memory on this subject. It is now sixty-four years since any proceeding of this sort has taken place, and I am rejoiced to think that on the present occasion the charge against the noble prisoner at the bar does not imply any degree of moral turpitude, and that, if he should be found guilty, his conviction will reflect no discredit on the illustrious order to which he belongs. At the same time, it clearly appears to me that the noble lord at the bar has been guilty of infringing the statute law of the realm, which this and all other courts of justice are bound to respect and enforce. Your lordships are not sitting as a court of honour, or as a branch of the legislature; your lordships are sitting here as a court bound by the rules of law, and under a sanction as sacred as that of an oath. The indictment against the Earl of Cardigan is framed upon an act of Parliament which passed in the first year of the reign of her present majesty. It charges the noble defendant with having shot at Captain Harvey Tuckett, with the several intents set forth in the indictment. I think I shall best discharge my duty to your lordships by presenting to you a brief history of the law on this subject. By the common law of England, personal violence, when death did not ensue from it, amounted to a mere misdemeanour, and if the wounded party did not die within a year and a day, no felony was committed. The first act which created a felony where death did not ensue was the 5th of Henry IV. By that act certain personal injuries, without death, were made felonies without benefit of clergy. Then came the Coventry Act, the 22nd and 23rd of Charles II., whereby any person lying in wait for and wounding another with intent to maim or disfigure, was guilty of felony, without benefit of clergy. Under both these acts no offence was committed unless a wound was inflicted, and it was not until the 9th George I., commonly called the Black Act, that an attempt, where no wound was given, was made a felony. By that act it was enacted, that if any person should wilfully and maliciously shoot at any person in any dwelling-house or other place, he should be guilty of felony without benefit of clergy, although no wound were inflicted: but it was determined upon that statute-- and in fairness to the noble prisoner it is my duty to remind your lordships of it -- that unless the case was one in which, if death had ensued, it would have amounted to murder, no offence was committed under the statute. That was determined in the case of the King and Gastineaux, which is reported in the first volume of Leach's 'Crown Cases,' page 417. In that case the law was thus laid down:--'The offence charged in this indictment is described by the statute, in which it is framed, in very few and very clear words, which are --'That if any person or persons shall wilfully and maliciously shoot at any person in any dwelling-house or other place, he shall be adjudged guilty of felony, without benefit of clergy,' The word maliciously is made to constitute the very essence of this crime; no act of shooting, therefore, will amount, under this statute, to a capital offence, unless it be accompanied with such circumstances as, in construction of law, would have amounted to the crime of murder if death had ensued from such act. This proposition most clearly and unavoidably results from the legal interpretation of the word maliciously, as applied to this subject; for there is no species of homicide in which malice forms any ingredient but that of murder; and it follows, that neither an accidental shooting, nor a shooting in the transport of passion, excited by such a degree of provocation as will reduce homicide to the offence of manslaughter, is within the meaning of the statute; for from both of these cases the law excludes every idea of malice.' The law continued on this footing until an act was passed in the 43rd of George III., which is commonly called Lord Ellenborough's Act. This act did not repeal the Black Act, but greatly extended its operation, and, among other enactments, contains this:--'That if any person or persons shall wilfully, maliciously, and unlawfully shoot at any of his majesty's subjects, or shall wilfully, maliciously, and unlawfully present, point, or level any kind of loaded fire-arms at any of his majesty's subjects, and attempt, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons, or shall wilfully, maliciously, or unlawfully stab or cut any of his majesty's subjects, with intent in so doing, or by means thereof, to murder, or rob, or to maim, disfigure, or disable such his majesty's subject or subjects, or with intent to do some other grievous bodily harm to such his majesty's subject or subjects, he shall be guilty of felony, without benefit of clergy.' This act, however, has the following express proviso:--'Provided always, that in case it shall appear on the trial of any person or persons indicted for the wilfully, maliciously, and unlawfully shooting at any of his majesty's subjects, or for wilfully, maliciously, and unlawfully presenting, pointing, or levelling any kind of loaded fire-arms at any of his majesty's subjects, and attempting, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons, or for the wilfully, maliciously, and unlawfully stabbing or cutting any of his majesty's subjects, with such intent as aforesaid, that such acts of stabbing or cutting were committed under such circumstances as that it death had ensued therefrom the same would not in law have amounted to the crime of murder; then and in every such case the person or persons so indicted shall be deemed and taken to be not guilty of the felonies whereof they shall be so indicted, but be thereof acquitted.' Your lordships will observe that, by this act, it is made a capital offence to shoot at with intent to murder, or maim, or disfigure, or do grievous bodily harm, but the offence came within the statute only when, if death would have ensued, it would, under the circumstances, have amounted to the crime of murder. Next came the statute of the 9th of George IV. cap. 31, which, I believe, is generally called Lord Lansdowne's Act, that noble lord having introduced it into Parliament when he was Secretary for the Home Department. This is an act for consolidating and amending the statutes relating to offences against the person. It repeals the Black Act, and Lord Ellenborough's Act; but it contains provisions similar to those of the latter. The 11th section enacts:--"That if any person unlawfully and maliciously shall administer or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlawfully and maliciously attempt to drown, suffocate, or strangle any person, or shall unlawfully and maliciously shoot at any person, or shall, by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to murder such person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon." By the 12th section it is enacted:--"That if any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable such person, or do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of the party so offending, or of any of his accomplices, for any offence for which he or they may respectively be liable by law to be apprehended or detained, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall suffer death as a felon." This act contains the same proviso as was inserted in Lord Ellenborough's; but still it remained a capital offence to shoot at, with intent to murder, or maim, or disfigure, or do bodily harm, although no wound was inflicted. Things remained on this footing till the act was passed on which the present indictment is framed. That act, which received the royal assent on the 17th of July 1837, is the 1st of Victoria, cap. 85, and is entitled "An Act to amend the laws relating to offences against the Person." The preamble recites that it is expedient to repeal so much of the act of the 9th George IV., and of the 10th of the same reign, as relates to any person who shall unlawfully and maliciously shoot at any person, or who shall, by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person, or who shall unlawfully and maliciously stab, cut, or wound any person, &c. And by the second and third sections it is enacted:-- "That whosoever shall administer to or cause to be taken by any person any poison or other destructive thing, or shall stab, cut, or wound any person, or shall by any means whatsoever cause to any person any bodily injury dangerous to life, with intent in any of the cases aforesaid to commit murder, shall be guilty of felony, and being convicted thereof, shall suffer death. And be it enacted, that whosoever shall attempt to administer to any person any poison or other destructive thing, or shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall attempt to drown, suffocate, or strangle any person, with intent in any of the cases aforesaid to commit the crime of murder, shall, although no bodily injury shall be effected, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." Therefore, to shoot at a person and inflict a wound dangerous to life, remains by this act a capital offence; but the act of shooting, when no wound is inflicted, is no longer a capital offence, and remains a felony punishable only with transportation or imprisonment. The fourth section enacts:-- "That whosoever unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall stab, cut, or wound any person, with intent in any of the cases aforesaid to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." This act contains no such proviso as is found in Lord Ellenborough's Act, and that of the 9th of George lV., a circumstance which it is material your lordships should bear in mind when you come to deliberate on your judgment with respect to the second and third counts of the indictment. I am happy to say that the indictment contains no count on the capital charge. A wound was inflicted; but the prosecutor has very properly restricted the charge to firing at with intent, without alleging that any wound dangerous to life was inflicted. The first count charges, that the Earl of Cardigan shot at Captain Tuckett with intent, in the language of the law, to commit the crime of murder. The second count charges his lordship with the same act with intent to maim, disfigure, or disable Captain Tuckett, and the third count charges him with the same act with intent to do Captain Tuckett some grievous bodily harm. It will be for your lordships to say whether, upon the facts which I shall lay before you, and which I am instructed to say can be clearly made out in evidence, each and every one of the counts must not be considered as fully established. The substance of the evidence in this case is, that on the l2th of September last the Earl of Cardigan fought a duel with pistols on Wimbledon Common with Captain Tuckett, and wounded him at the second exchange of shots. It will appear that about five o'clock on the afternoon of that day, two carriages, coming in opposite directions, were seen to arrive on Wimbledon Common, and a party of gentlemen alighted from each. It was evident to those who observed what was going on, that a duel was in contemplation. The parties went to a part of Wimbledon Common between the road that leads to Lord Spencer's park and a windmill. The seconds made the usual preparations; the principals, the Earl of Cardigan and Captain Tuckett, were placed at a distance of about twelve yards; they exchanged shots without effect; they received from their seconds each another pistol; they again fired, and Captain Tuckett was wounded by the Earl of Cardigan. Mr. Dann, who occupied the mill, and his son, and Sir James Anderson, a surgeon, who was standing close by, went up immediately. The wound was examined: it bled freely but most fortunately -- and I am sure that no one rejoices at the circumstance more than the noble prisoner at the bar -- it proved to be not of a dangerous nature.
Mr. Dann, the miller, who was a constable, took the whole party into custody. The wound was again formally examined, and Sir J. Anderson pressed that he might be set at liberty and allowed to take Captain Tuckett to his house in London, which was immediately acceded to upon Captain Tuckett promising to appear before the magistrates when he was recovered. The miller retained the Earl of Cardigan, and his second,. Captain Douglas, as well as Captain Wainwright, the second of Captain Tuckett. The Earl of Cardigan had still a pistol in his hand when the miller approached him; and two cases of pistols were still on the ground, one of which bore the crest of the noble earl, and was claimed by him as his property. The parties in custody were conducted before the magistrates at Wandsworth, when the Earl of Cardigan made use of these words:--'I have fought a duel; I have hit my man I believe, but not seriously.' Then pointing to Captain Douglas, he said, 'This gentleman is also a prisoner and my second.' He was asked whether the person he had hit was Captain Reynolds, upon which he replied, 'Do you think I would condescend to fight with one of my own officers? 'His lordship was compelled by the magistrates to enter into recognizances to appear when called upon, which he did from time to time, till at last the matter was carried to the Central Criminal Court. The witnesses I shall call before your lordships are, the miller, his wife, and son, and the policeman named Busaine, who was at the station-house, and will speak to the declarations made by the Earl of Cardigan. I can offer no evidence respecting the origin of the quarrel. Captain Douglas is to take his trial for his share in the transaction; he, as your lordships will observe, is jointly indicted with the Earl of Cardigan. A bill was also preferred against Captains Tuckett and Wainwright, but the grand jury have thrown it out. Those gentlemen, however, are still liable to be tried, and it would not be decorous to summon them before your lordships to give evidence which might afterwards be turned against themselves, probably, when they would be on trial for their lives. I shall call Sir J. Anderson, who has hitherto spoken fairly on the subject, and, I suppose, will now make no objection to state all that fell within his observation. Upon these facts it will be for your lordships to say whether all the counts of the indictment are not fully proved and supported. With respect to the first count, it is painful to use the language which it necessarily recites; but it will be for your lordships to say whether, in point of law, the noble prisoner at the bar did not shoot at Captain Tuckett with intent to commit the crime therein mentioned. I at once acquit the Earl of Cardigan of anything unfair in the conduct of this duel. Something has been said respecting the noble earl's pistols having rifle barrels, whilst those of Captain Tuckett had not such barrels. However that may have been, I have the most perfect conviction that nothing but what was fair and honourable was intended, and that the Earl of Cardigan most probably imagined, when he carried his pistols to the field with him, that one of them would be directed against his own person. Nor do I suppose that there was any grudge -- any personal animosity -- any rancour or malignity on the part of the noble earl towards his antagonist. Whether the noble earl gave or received the invitation to go out, I believe his only object was to preserve his reputation, and maintain his station in society as an officer and a gentleman. His lordship is in the army -- he is Lieutenant-Colonel of the 11th Hussars, and no doubt he on this occasion only complied with what he considered to be necessary to be done according to the usages of society. But if death had ensued under these circumstances it would have been a great calamity; and although moralists of high name have excused and even defended the practice of duelling, your lordships must consider what, in this respect, is the law of England. There can be no doubt that by the law of England parties who go out deliberately to fight a duel, if death ensues, are guilty of murder. It will be my duty to state to your lordships a few of the leading authorities on this point. I will mention the highest authorities known to the law of England -- Hale, Plawkins, Foster, and Blackstone. Hale, in his 'Pleas of the Crown,' says, 'If A and B suddenly fall out, and they presently agree to fight in a field, and run and fetch their weapons and go to the field and fight, and A kills B, this is not murder, but homicide, for it is but a continuance of the sudden falling out, and the blood was never cooled; but if there were deliberation, as that they went on the next day -- nay, though it was the same day, if there was such a competent distance of time that in common presumption they had time of deliberation -- then it is murder.' In the 1st vol. of 'Hawkins' Pleas of the Crown,' cap. 13, sec. 21, p. 96, the law on this subject is thus laid down:-- 'It seems agreed, that whenever two persons in cold blood meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was struck first by the deceased, or that he had often declined to meet him, and was prevailed upon to do it by his importunity, or that it was his intent only to vindicate his reputation -- or that he meant not to kill, but to disarm his adversary -- for since he deliberately engaged in an act highly unlawful, in defiance of the laws, he must at his peril abide the consequence thereof.' 'And from hence it follows, that if two persons quarrel over night, and appoint to fight next day -- or quarrel in the morning, and agree to fight in the afternoon, or such a considerable time after by which in common intendment it must be presumed that the blood was cooled, and then they meet and fight, after one kills the other, he is guilty of murder.' . . . 'And whenever it appears from the whole circumstances, that who kills another on a sudden quarrel, was master of his temper at the time, he is guilty of murder, as if after the quarrel he falls into a discourse, and talks calmly thereon, or perhaps if he have so much consideration as to say that the place wherein the quarrel happens is not convenient for fighting, or that if he should fight at present he should have the disadvantage by reason of the height of his shoes.' The last observation refers to Lord Morley's case, where though a case of manslaughter, it was a circumstance strongly pressed to show that the offence was one of deeper dye. Sir M. Foster, in his discourse on homicide, says:--'Upon this principle deliberate duelling, if death ensues, is, in the eye of the law, murder, because it is generally founded on a feeling of revenge. And if a person be drawn into a duel, not from motives so criminal, but merely for the protection of what he calls his honour, that is no excuse for those who, in seeking to destroy another, act in defiance of all laws human and divine. But if, on a sudden quarrel, parties presently fetch their weapons, and go into a field and fight, and one of them is killed, that is manslaughter, because it is presumed that their blood never cooled. Otherwise, if the parties appoint the next day to meet, or even the same day, at such an interval as that their passion may have subsided, or if, from circumstances in the case, it may be reasonably presumed that their judgment had controlled the first transports, if death then ensue, it is murder. The same rule will hold if, after a quarrel, the parties fall into other conversation or discussion, and remain so engaged, so as to afford reasonable time for cooling.' Blackstone, in his fourth volume, p. 199, thus writes, when describing and defining the crime of murder:-- 'This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder: thinking it their duty, as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power, either divine or human, but in direct contradiction to the laws both of God and man; and, therefore, the law has justly fixed the crime and punishment of murder on them, and on their seconds also.' Those are the highest authorities known to the law of England, and they are uniformly followed by the English judges. Such being the definition of murder constantly given from the bench on trials for life and death, ought not your lordship to suppose that the legislature has made use of the word 'murder' in the same sense, and that when we find in Lord Ellenborough's Act, in that of the 9th of George lV., and in that of the 1st of Victoria, the expression 'with intent to commit murder,' it means with intent to do that which, if accomplished, would amount in law to the crime of murder. The legislature, and your lordships as part of it, must be taken to have well known what was the legal definition of murder, and to have used the expression, in a judicial act, in its legal sense. However painful the consideration may be, does it not necessarily follow that the first count of the indictment is completely proved? The circumstances clearly show that the Earl of Cardigan and Captain Tuckett met by appointment. The arrangements being completed, they fired twice; the Earl of Cardigan took deliberate aim, fired, and wounded his antagonist. He must be supposed to have intended that which he did. If, unfortunately, death had ensued, would not this have been a case of murder? The only supposition by which the case could be reduced to one of manslaughter would be, that the Earl of Cardigan and Captain Tuckett met casually on Wimbledon Common -- that they suddenly quarrelled, and, whilst their blood was hot, fought; but your lordships will hardly strain the facts so far as to say this was a casual meeting, when you see that each party was accompanied by a second, and supplied with a brace of pistols, and that the whole affair was conducted according to the forms and solemnities observed when a deliberate duel is fought. With respect to the second count I know not what defence can possibly be suggested, because even if it had been a casual meeting, and if death had ensued under circumstances which would have amounted only to manslaughter, that would be no defence to the second and third counts. I presume to assert that on the authority of a case which came before the fifteen judges of England, and which was decided, two most learned judges doubting on the occasion, but not dissenting from the decision. The two judges who doubted were his grace the high steward, who presides over your lordships' proceedings on this occasion, and Mr. Justice Littledale. It would not become me to say anything of the learning and ability of the noble high steward in his presence, but with respect to Mr. Justice Littledale, I will say that there never was a more learned or acute judge than he was, whose retirement from the bench the bar have lately witnessed with reluctance and regret. I therefore attach the greatest weight even to doubts proceeding from such a quarter; but the thirteen other judges entertained no doubt upon that occasion, and came to the conclusion that, upon the 4th section of the act upon which the present indictment was framed, it is not necessary for a conviction that if death ensued the offence should amount to murder. The case to which I refer is to be found in the second volume of Moody's 'Crown Cases,' page 40. It was a case tried before Mr. Baron Parke, on the Norfolk spring circuit, 1838; and I will read what is material to your lordships: The case first recites the 9th of George IV., sec. 11 and 12, and the preamble, and enacting part of the 1st of Victoria, points out the circumstance that the latter act does not contain the same proviso as is found in those of Lords Ellenborough and Lansdowne, and then submits this question for the opinion of the judges: 'Is it now a defence to an indictment for wounding with intent to maim, &c., that, if death had ensued, the offence would not have been murder, but manslaughter?' Your lordships will observe that shooting at with intent to maim or disable, and stabbing with the same intent, are in the same category of subjects, and must be attended with all the same rules and incidents. This opinion will therefore have the same authority as if the question submitted by Barons Parke and Bolland had been whether, on an indictment for shooting at with intent to disable, it would be a defence that if death had ensued the offence would not have amounted to murder. The opinion of the judges was as follows:-- 'At a meeting of the judges in Easter term 1838, they all thought it to be no defence to such an indictment, that if death had ensued, the offence would not have been murder, hut manslaughter, except the Lord Chief Justice Lord Denman, and Mr. Justice Littledale.' The Lord Chief Justice and Mr. Justice Littledale, it will be observed, did not dissent, they only doubted; but the other thirteen judges seem clearly to hold that the plea set forth does not now amount to any defence; and I apprehend that the judges probably reasoned in this manner -- the intention of parliament being to make offences, before capital, punishable only by transportation, the quality of the offence is not precisely the same as before, and that if a person maims another, or disables him, or does him some grievous bodily harm, even though it were an unpremeditated act, arising out of a sudden scuffle, it should nevertheless be an offence under this act, which gives a discretionary power to the court before whom the offence is tried, either to transport for fifteen years, or to imprison for a single hour. The judges, doubtless, considering this discretionary power, and the omission of the proviso which was in the preceding acts -- seeing that the capital punishment was abolished, came to the conclusion that the offence was committed, even though if death had ensued, it would not, under the circumstances, have amounted to the crime of murder. Looking at the authority of this case, I know not what defence can possibly be urged with respect to the second and third counts. I rejoice, my lords, to think that the noble prisoner will have an advantage upon this occasion which has never before been enjoyed by any peer who has been tried at your lordships' bar -- an advantage which neither Lord Lovat, Lord Ferrers, nor the Duchess of Kingston, could claim. He will have the advantage of the assistance of my most able, ingenious, zealous, and learned friend. Sir William Follett, who will address your lordships in his behalf on the facts and merits of the case. This privilege is secured to the noble prisoner under the admirable law your lordships passed a few years ago, by which, in all cases, the party has the advantage of addressing, through his counsel, the tribunal which is to determine on his guilt or innocence. Notwithstanding, however, all the learning, ability, and zeal of my honourable and learned friend, I know not how he will be able to persuade your lordships to acquit his noble client on any one count of this indictment. My learned friend will not ask your lordships -- and if he did, it would be in vain -- to forget the law by which you are bound. Captain Douglas stands on his trial before another tribunal, and his trial has been postponed by the judges on the express ground that the same case is first to be tried by the highest criminal court known in the empire. Your lordships are to lay down the law by which all inferior courts are to be bound. I beg leave, on this subject, to read the words made use of at this bar by one of my most distinguished predecessors, who afterwards for many years presided with great dignity on the woolsack -- I mean Lord Thurlow. When Lord Thurlow was Attorney-general, in addressing this house, in the case of the Duchess of Kingston, he made use of this language:--'I do desire to press this upon your lordships as an universal maxim; no more dangerous idea can creep into the mind of a judge than the imagination that he is wiser than the law. I confine this to no judge, whatever may be his denomination, but extend it to all. And speaking at the bar of an English court of justice, I make sure of your lordships' approbation when I comprise even your lordships sitting in Westminster Hall. It is a grievous example to other judges. If your lordships assume this, sitting in judgment, why not the King's Bench? why not commissioners of oyer and terminer? if they do so, why not the quarter sessions? Ingenious men may strain the law very far, but to pervert it was to new-model it -- the genius of our constitution says, judges have no such authority, nor shall presume to exercise it.' I conclude, my lords, with the respectful expression of my conviction, that your lordships' judgment in this case, whatever it may be, will be according to truth and the justice of the case, and that you will preserve the high reputation in the exercise of judicial functions which has so long been enjoyed by your lordships and your ancestors."
The evidence of the various persons who had witnessed the transaction of the duel, and which supported the statement made by the learned Attorney-general, was then produced; but, at the close of the case, it was objected by Sir William Follett, on behalf of the Earl of Cardigan, that there was no evidence to show that the person against whom the shot was discharged was Mr. Harvey Garnett Phipps Tuckett. The card of "Mr. Harvey Tuckett" had been put in; but this might be quite another person from the individual pointed to by the indictment.
The Attorney-general was heard on the other side; but, after a short deliberation, the lord high steward announced that the evidence which fixed the identity of the individual was insufficient; and the peers thereupon declared the noble defendant "Not guilty."
At the Central Criminal Court, on Wednesday the 3rd of March, Captain Douglas was put upon his trial, before Mr. Justice Williams, upon the indictment which had been found against him; but the jury, in the absence of positive evidence to identify Mr. Tuckett, came to the same conclusion as that which had been arrived at by the House of Peers; and a verdict of acquittal was returned.
