[Note on Part II. on Criminal Responsibility in cases of Insanity.—A physician
in a responsible official situation, affording him great opportunities
for observation, has addressed to us a note from which we extract
the following passages. Our only object is to aid in eliciting truth; and
our anxiety to do so is proportionate to the difficulty and importance of
the subject to which the ensuing letter has reference.[39]
"The article on Oxford and M'Naughten has interested me very much;
and though I cannot at all admit the principle of punishing a man for his
misfortune, I am yet satisfied that the doctors have assumed too much, and
have helped to let loose upon society some who deserved hanging as much
as any who have ever suffered the extreme penalty. The test of insanity,
as laid down by the Judges on the solemn occasion to which you refer, is
manifestly of no value; for it is, I might almost say, the exception for an
insane person not to know the difference between right and wrong. Many of
them deliberately commit acts which they know to be wrong. Dadd killed
his father, and immediately fled to France to avoid the consequences of his
crime; and nobody ever doubted that he was one of the maddest, if not the
maddest, of the mad. Touchet shot the gunmaker, not only with a full
knowledge of the nature of the crime, but for the express purpose of bringing
about his own death. He has entertained various delusions: amongst others,
the notion that certain passages of Scripture have special reference to himself
personally; and, as regards those in actual confinement, on account of
their mental malady, the majority know perfectly well that it is wrong to tear,
break, and destroy, to injure others, and indulge their various mischievous
propensities. So well satisfied are many of them that they are doing wrong,
that they will try to conceal acts which they know are not permitted; and, in
this way, a propensity to bite, or kick, is indulged in only when it is believed
that it can be done unobserved. It seems to me that, in these most painfully
embarrassing cases, every one must stand on its own particular merits; and,
as neither judges nor doctors can say where sanity ends, and insanity begins,
so no possible rule that can be devised will be alike applicable to all; but
the previous habits and course of life of the person accused, together with the
absence or presence of any motive, will go far to remove the difficulties which
necessarily beset the question. I am not at all prepared to say that, because
any degree of mental disturbance has been shown to exist, a person should
be held irresponsible. It is a doctrine fraught with such dreadful danger to
society, that it is very properly viewed with jealousy; but, when clearly
proved that the mind was so far disturbed as to entertain delusions before
and at the time of committing the offence, I would never resort to capital
punishment. The Omniscient alone can tell how far the disease has gone,
and to what extent the unfortunate being was really responsible for his
actions to his follow men."]
Is, or is not, a trial in this country
for duelling to be regarded as a Farce
following a Tragedy? There are
those who say that it is; but we are
not of the number. Such trials often
greatly excite the public mind, and
array opinions and prejudices against
each other in such a manner as to
disturb and derange the judgment.
Then more or less is expected from
the law, and its administration, than is
right. If the heated public should
have prepared itself for a conviction,
loud and violent is its reclamation
against an acquittal, especially if it
have been brought about by what are
styled technical objections, and vice
versâ. They forget, under the impetuous
impulses of a sense of natural
justice, that settled rules of legal procedure
must be observed indifferently
on all occasions, if even-handed justice
is to be administered in a court
of justice. How did these rules come
to be settled? They are the results
of centuries of experience—of ten
thousand instances of the advantage,
nay, the absolute necessity, for observing
them. If it could be imagined
with any, even the slightest foundation
of truth, that those sworn to
decide according to the law and the
facts had wilfully shut their eyes to
the one or the other—or, either
directly or indirectly, connived at an
evasion of the letter or a violation of
the spirit of the law, in order to secure
a particular result—then there is no
power in language adequate fitly to
denounce so deliberate and awful a
perjury, so monstrous an outrage on
the administration of justice.
Bonâ fide duels are always lamentable
affairs, under whatever circumstances
they may happen, especially
when attended by loss of life or serious
personal injury—occurring, too,
in a highly civilised and Christian
country like ours. They properly
arouse the grief and indignation of
every thoughtful and virtuous member
of the community; whom, however,
they also satisfy as to the prodigious
practical difficulty of dealing with
such cases. While the law of the
land is clear on the subject as the
sun at noonday—alike unquestionable
and unquestioned—there yet exist,
in almost every detected duel, far
greater difficulties than are suspected
by the public, in bringing to justice
the guilty actors. First of all, it must
be borne in mind how deep an interest
they have in cutting off all means
of future evidence, by intrusting a
knowledge of the affair to the fewest
persons necessary for carrying it out,
and by selecting scenes remote from
observation. Then, again, let it be
remembered that both principals and
seconds, and all others present aiding
and abetting, have incurred heavy
criminal liability—are liable to be indicted
for murder, as principals or
accessories; and, consequently, none
of them can be compelled to furnish
any evidence which may even tend to
criminate himself. This great rule of
criminal law has doubtless operated
as a great indirect encouragement to
duelling; but how is this difficulty to
be encountered? Must the rule be
abrogated?
Assuming, however, the existence
of evidence, and that it is satisfactorily
adduced before the jury, it then
becomes the duty of the judge and the
jury to act in accordance with their
oaths: the former to lay down the
law distinctly and unequivocally;
the latter to find their verdict conscientiously
according to the principles
of law so laid down, as applicable
to the proved facts of the case. If a
conviction ensue, the judge must then
pronounce the sentence of the law;
and it then depends upon the discretion
and firmness of the executive
whether that sentence shall be carried
into effect. Take the case of a fatal
duel, conducted with unimpeachable
fairness, as far as concerns the practice
of duelling—and that the prisoner
had received great provocation from
his deceased opponent, who had obstinately
refused retractation or apology.
What is to be the decision of the
executive? What will be its moral
effect, as an encouragement or discouragement
of duelling? Will it
operate as a tacit recognition, to any
extent, of the practice of duelling, as
at all events a necessary evil, and
denuded of moral turpitude? These
are questions by no means of easy
solution.
In the present constitution of
society in this country—a Christian
community—duelling is a practice
environed with difficulties, whichever
way it may be approached by its most
discreet and resolute opponents. We
must deal with men and things as they
are, at the same time that we would
make them what we think they ought
to be. How many professing Christians—men
of otherwise pure and virtuous
lives—have gone out deliberately
to take the life of an opponent, or
expose or sacrifice their own!—solely,
it may be, from a puerile notion that
their honour required the committing
of the crime! "It is not one of the
least evils of this system," it has been
well observed, "that the word honour—which,
rightly understood, denotes
all that is truly noble and virtuous—should
be prostituted as a pretext for
gratifying the most malignant of
human passions, or as a cover for that
moral cowardice—the fear of being
thought afraid." This is one of the
chiefest roots of the poisonous tree:
and can human laws kill it? We
think they can. If the legislature
were really intent upon annihilating
duelling, its members would long ago
have acted on the suggestion of Addison—that,
"if every one who fought
a duel were to stand in the pillory, it
would quickly diminish the number of
these imaginary men of honour, and
put an end to so absurd a practice."
If men will fight for a little stake, let
them be made into little men, by
enduring a degrading punishment; if
for a great stake—that is to say, the
gratification of malignant passions—let
them be treated as great criminals,
and die the felon's death, or live his
life. Let justice be really blind in
all such cases, her sword descending
upon noble and ignoble of station
alike.
We acknowledge that there is one
aspect of the practice of duelling,
which somewhat perplexes the moralist:
for it cannot be denied, or
doubted, that duelling operates as a
great preventive check to ruffian insolence
and violence—as a potent
auxiliary in preserving the necessary
restraints and the courtesies of society.
"It must be admitted," says
Robertson, "that to this absurd custom
we must ascribe, in some degree,
the extraordinary gentleness and complaisance
of modern manners, and that
respectful attention of one man to
another, which at present renders the
social intercourse of life far more
agreeable and decent than among the
most civilised nations of antiquity."
How many a viper-tongued slanderer's
lips have been sealed by the dread of
a bullet! How many an insolent inclination
to personal violence has been
checked—how many a truculent heart
has sickened, before the prospect of a
"leaden breakfast!" Take a single
case, which is really embarrassing to
the candid opponent of duelling; an
insult offered, by either words or
deeds, to the character or person of a
lady whom one is bound to protect—an
injury beyond all legal cognisance,
and perpetrated by one occupying the
station of a gentleman. To one who
does not bow under the paramount
influence of religion, the harassing
question occurs,—What is to be done?
Cases may be easily imagined in
which it would be idle to say—"treat
the offence and the offender with contempt—leave
them to the contempt
of society;" where such a course
would only add to the poignancy of
the wrong or insult, and invite
aggravation and repetition. Let the
outraged lady be imagined one's own
wife, or daughter, or sister! Is the
wrong to be perpetrated with impunity?
asks the upholder of duelling.
"What would you do," retorts his
opponent; "will you deliberately
take the life of the offender, and give
him an opportunity of taking
yours?[40] Is that your notion of
punishment, or satisfaction? What
will be the effect of an example such
as this, upon society at large? Is
every one to be at liberty to do the
like?—thus deliberately to ignore the
law of God and of man?"
Duelling is, in truth, almost always
the resource of the weak-minded, the
vain, the vindictive, or the cowardly;
and it is not right to ask society to be
liberal in its allowances for the wrongdoings
of its less worthy members.
There are, nevertheless, cases in
which persons have found themselves
involved in duels under circumstances
pregnant with extenuation in the
eyes of even the hardest moralist,
and such as warrant the executive,
when the majesty of the law has been
vindicated, and its authority recognised,
in mitigating or remitting the
punishment due to an acknowledged
violation of the law.
The law of the land is better able
to vindicate really outraged character
and honour than may be imagined
by many foolish hot-blooded persons,
who give or accept "hostile messages."
It is armed with ample powers
of compensation and punishment, as
may easily be ascertained by those
who can satisfy it that they have
been the victims of deliberate and
wanton insult and injury. Little more
than a year ago, one gentleman
thought proper to write to some naval
and military friends of another most
offensive imputations upon his honour.
When apprised of this, he
instantly wrote to demand that his
traducer should either prove the truth
of his assertion, or unequivocally retract
and apologise for them. Both
alternatives were very contemptuously
refused, on which the injured party
brought an action for libel against his
traducer; who, unable to justify, and
unwilling to apologise, allowed the
case to go before a jury. On their
learning the true nature of the affair,
and being reminded that they were
appealed to as a jury of twelve gentlemen,
to vindicate the honour of an
unoffending gentleman, they gave such
heavy damages (£500) as soon
brought his infuriate opponent to his
senses, and elicited an unequivocal
retractation, and as ample an apology
as could have been desired. A few
instances of this kind would soon
satisfy the most sceptical of the potency
of the law in cases too often
deemed beyond its reach, and of the
effective reality of its redress in cases
of wounded honour. Who could
lightly esteem being solemnly and
publicly branded by its fiat as a liar
and a slanderer—its blighting sentence
remaining permanently on record?
He who would regard such a
circumstance with indifference surely
is not worth shooting, or running the
risk of being shot by, or of being
hanged or transported for shooting or
attempting to shoot! If a person of
distinguished station or character receive
an insult or an injury of such a
nature, as not to admit of being treated
with silent contempt, it becomes his
duty to society to set an example of
magnanimous reliance on the protection
of the laws of his country, and
pious reverence for the laws of God.
Against one thing, however, every
one should be constantly on his guard—the
entertaining and cherishing that
false overweening estimate of personal
dignity and importance, which
predisposes too many to take offence,
and then hurry to revenge it.
According to the law of England,
as already stated, a death caused by
duelling, though in the "fairest" possible
manner, is clearly murder, to all
intents and purposes whatsoever. In
the year 1846, the majority of the
Criminal Law Commissioners suggested
a change in this law, recommending
that, where two persons
agree to fight, and a contest ensues,
and one of them is killed, the homicide
should be extenuated. The reasons
on which this suggestion was
founded appear to us of a very unsatisfactory
nature; and one of the
Commissioners—the late Mr Starkie—altogether
dissented from the views of
his brethren, embodying his reasons
in an able and convincing protest or
counter-statement. "Whilst," he
observes, at its close, "as it seems to
me, little good could be expected from
the proposed alteration, it might be
productive of much harm in a moral
point of view. It would be understood
to manifest an alteration in the
opinion of the Legislature as to the
heinousness of the crime of homicide,
and of course tend to diminish the
efficacy of the law against it." We
entirely concur in the following remarks
of Mr Townsend, in one of
the best expressed passages in his
book:—
"Founded on the law of God, the
law of the land should remain clear
and stringent, that whoever kills in a
deliberate duel commits murder. The
sanctity of human life would be impaired
were this denunciation lessened,
and the forfeit, for expediency's sake,
commuted. The very good to be
obtained by the compromise with
'codes of honour' would be temporary;
for arguments of hardship, as
the consequences of conviction, and
appeals to compassion against a gentleman
being adjudged guilty of felony,
and transported—it might be for life—would
equally tickle the ears of
credulous jurors, and be listened to
with as much avidity as the present
topic of capital punishment. Let the
law maintain its own independent
straightforward path—irretortis oculis—and,
be the fluctuations in fashionable
feeling what they may, continue,
in its austere regard for life, unchanged
and unchangeable."[41]
Thus stands the matter: the Legislature
not having ventured to interfere
with the law, which must be
administered with rigorous faithfulness
by those to whom that severe
and responsible duty has been entrusted,
God forbid that there should
ever be coquetting with an oath on
these occasions!
We have no hesitation in saying
that our English Judges, as far as our
inquiries have gone, invariably lay
down the law, in these cases, with
clearness and unfaltering firmness.
The only approach towards a departure
from this rule of right, is one
which we trust has no other foundation
than an erroneous report of what
fell from Baron Hotham at Maidstone,
in the year 1794, in trying a Mr Purefoy,
who shot his late commanding
officer, Colonel Roper. That Judge,
according to Mr Townsend[42]—who also
intimates a hope that the judge has
been incorrectly reported—concluded
his summing up, which produced, as
might have been expected, an instant
acquittal, by the following extraordinary
passage:—
"It is now a painful duty which
jointly belongs to us; it is mine to lay
down the law, and yours to apply it to
the facts before you. The oath by
which I am bound obliges me to say
that homicide, after a due interval left
for consideration, amounts to murder.
The laws of England, in their utmost
lenity and allowance for human frailty,
extend their compassion only to sudden
and momentary frays; and then,
if the blood has not had time to cool,
or the reason to return, the result is
termed manslaughter. Such is the
law of the land, which, undoubtedly,
the unfortunate gentleman at the
bar has violated, though he has acted
in conformity to the laws of honour.
His whole demeanour in the duel, according
to the witness whom you are
most to believe, Colonel Stanwix,
was that of perfect honour and perfect
humanity. Such is the law, and such
are the facts. If you cannot reconcile
the latter to your consciences, you must
return a verdict of guilty. But if the
contrary, though the acquittal may
trench on the rigid rules of the law, yet
the verdict will be lovely in the sight
both of God and man."
If Baron Hotham really uttered
this drivel, he was totally unfit to administer
justice, and should have been
removed from the Bench. Mr Townsend,
in one place, observes that
Baron Hotham "must have allowed
his kindly feelings to master his judgment;"
and in another cites the case
as "a very famous one, being the first
of those occasions on which judges
admitted, from the bench, the necessity
and expediency of juries tempering
the law, where, by a stern necessity,
they have held themselves bound
by it;" that is, in plain English,
where judges advised juries to violate
their oaths, in order to defeat the just
administration of the law. We know
no parallel to this "famous" case, except
that of Justice Fletcher, a judge
in Ireland, in the year 1812; who—as
we learn from Mr Phillips' very
interesting Memoirs of Curran, about
to issue from the press—thus addressed
an Irish jury, in a trial for
murder occasioned in a duel: "Gentlemen,
it is my business to lay down
the law to you, and I shall do so.
Where two people go out to fight a
duel, and one of them falls, the law
says it is murder. And I tell you,
by law it is murder; but, at the same
time, a fairer duel I never heard of in
the whole coorse [sic] of my life!"
The prisoners were, of course, immediately
acquitted.
Mr Townsend states, that "the
long series of judicial annals has not
been darkened by a single conviction
for murder, in the case of a duel fairly
fought."[43] If this be a correct statement,
which we greatly doubt, it
argues either a signal deficiency of
evidence in every case, or a perverse
disregard of duty by either judges or
juries, or both. We repeat it, and do
so anxiously desirous of giving every
degree of publicity in our power to
the fact, that our judges discharge
their duties on these occasions with
unwavering firmness. We shall give
two or three modern and interesting
instances. The late eminent Mr Justice
Buller tried a clergyman—the
Reverend Bennet Allen,(!)[44] and his
second, for killing a Mr Dulany, in a
duel fought at ten o'clock at night, in
Hyde Park, at the distance of eight
yards: the reverend duellist had put
on his spectacles, in order to see his
man. Mr Justice Buller told the jury
that "they were bound to adhere to
the law, as to which there never," he
continued, "has been a doubt. In
the case of a deliberate duel, if one
person be killed, it is murder in the
person killing him. Of that proposition
of law there is not, there never
has been, the smallest doubt. Sitting
here, it is my duty to tell you what
the law is, which I have done in explicit
terms; and we must not suffer
it to be frittered away, by any false
or fantastical notions of honour."
Here the judge did his duty: but the
jury seem, according to Mr Townsend,
who doubtless spoke after having
duly examined the facts of the case,
"to have temporised between their
consciences and wishes, by acquitting
the second, and finding the principal
guilty of manslaughter."
Mr Justice Patteson, in trying the
seconds for murder, in the case of the
fatal duel between Dr Hennis and
Sir John Jeffcott, who shot the former,
thus plainly put the matter to the
jury: "Whether duelling ought to
be tolerated in this land, I say nothing.
It is no question for any jury
at all. The law of the land does not
tolerate it. I repeat that, if you are
satisfied on this evidence, that the
three gentlemen went out to Haddon,
knowing that Sir John Jeffcott and
Dr Hennis were about to fight a duel
there, without heat or irritation—but
deliberately aiding and assisting the
affair on a point of honour, after vainly
endeavouring to effect an amicable
arrangement—I cannot tell you, in
point of law, that it is anything short
of murder." The jury at once acquitted
the prisoners![45]
In the year 1838, a young man
named Mirfin was shot in a duel at
Wimbledon, by a young man named
Elliott, twenty-five years of age, under
deplorable and aggravated circumstances.
The former had been a linendraper
in Tottenham Court Road;
and, together with the latter, seemed
to have led the dissolute life, for some
time, of men about town. The duel
arose out of a quarrel which had occurred
in a certain indecent scene of
infamy near Piccadilly! Two young
men named Young and Webber, respectively
only twenty-four and
twenty-six years of age, were tried
for the wilful murder of Mirfin. They
had not acted as seconds of the survivor,
but had accompanied him and
his second to the scene of action. The
chief witness was a surgeon, who detailed
with a deadly simplicity and matter-of-fact
air the whole particulars of
the duel, at which he was present;
and produced such an effect on the
jury that, on delivering their verdict,
they expressed the "horror" with
which they had heard his evidence and
regarded his conduct, and their regret
that he had not himself been put upon
his trial for murder. The reader shall
have an opportunity of judging for
himself on the subject, from a portion
of the evidence given by this person.[46]
"After the pistols were loaded, Mr
Elliott and Mr Mirfin were placed on
their ground, and a pistol was delivered
to each. I then went and stood
seven or eight paces from them, with
the two seconds. I looked at the
principals. The word to fire was given
by Mr Elliott's second: he said, 'Gentlemen,
are you ready?—Stop!' That
was the agreed signal for firing: they
were to fire instantly on the last word
'stop' being uttered, and not before.
They fired together immediately on
the signal. After they had fired, I
observed that the ball had passed
through the crown of Mr Mirfin's hat: I
saw something fly up in the air: I
saw a portion of the crown just raised
at the moment. As soon as they had
fired, the seconds interfered. I and
they were standing together. They
moved towards the principals, who
remained in their places. Some conversation
took place between the principals
and seconds, and then between
the seconds themselves—which lasted
for a few minutes only. Mr Mirfin
insisted on a second shot. He spoke
loud enough for all present to hear.
I stood within seven or eight paces of
him, and could hear every word he
said. I was intent looking at his hat—I
saw the ball had passed through
it. I could hear that the conversation
was with a view to reconcile the
parties; but Mr Mirfin would not
hear of any reconciliation. I believe
Mr Elliott would have made a verbal
apology; but Mr Mirfin would accept
nothing but a written apology, and
insisted on a second shot. After he
had made this statement, another
pistol was delivered to each. They
next left their ground. I told Mr
Mirfin that his hat had been shot
through, and he took it off and looked
at it, and said nothing, but replaced
it on his head. The second pistols
were Mr Mirfin's, and were fired at a
signal exactly similar to the former
one. Mr Elliott fired first, but not
till after the signal had been given.
I distinctly heard the sound of his
pistol, immediately after the word had
been given; and Mr Mirfin's shot
was fired almost immediately. I
think his pistol was discharged after
he had received the fatal shot. I
think he felt the wound previous to
his firing off his pistol. He did not
sufficiently raise his hand. His ball
struck the ground. He was in the
act of bringing his pistol to the level,
when he fired. After both shots had
been fired, I looked at each of the
men, and did not, at first, perceive
that either was injured. Mr Mirfin
walked towards me about six paces, I
think, with his left hand on his right
side, and, I think also, the pistol
still in his right hand. I think he
gave it to me. He advanced towards
me saying, 'I am wounded.' I
asked him where; he looked towards
the wound and raised his fingers,
showing me where he was wounded,
but without speaking. I said, 'I am
exceedingly sorry to hear it: good
bye. God bless you!' He replied,
'Good bye, old fellow!' I then
assisted him to lie on the grass. He
did not fall immediately. I undid his
pea-jacket and waistcoat, and pulled
up his shirt, and probed the wound.
The other persons were standing by.
Mr Mirfin's second walked up, and
asked if the wound were fatal. I said
it was a very fatal wound. Mr Elliott
and his second said nothing, merely
looking on. Mr Broughton asked me
again, after I had probed the wound,
whether it was fatal. I said it was.
He asked, 'What shall we do?' I
replied, 'The sooner you leave the
ground the better, and I will wait.'
They all three left the ground together.
Mr Mirfin died within ten minutes.
I did not speak to him after this. I
saw I could be of no service to him,
and did not wish to fatigue him by
saying anything to him. I examined
the body after I had got it home, and
discovered a small wound not quite
the size of a (bird's?) egg, between the
fifth and sixth ribs."
We have given these details in all
their sickening simplicity and utter
hideousness, because they are worth
a world of comment on the nature and
tendency of affairs of honour.
The trial came on before the late
Baron Vaughan, and the present
Baron Alderson, at the Old Bailey, on
the 22d Sept. 1838; and the former
thus laid down the law to the jury:
"When upon a previous arrangement,
and after there has been time
for the blood to cool, two persons meet
with deadly weapons, and one of them
is killed, he who occasions the death is
guilty of murder; and the seconds are
also equally guilty. The question then
is, did the prisoners give their aid and
assistance by their countenance and
encouragement of the principals, in this
contest? Though neither of the prisoners
acted as second, still, if either
sustained the principal by his advice
or his presence—or, if you think he
went down for the purpose of encouraging
and forwarding the unlawful
conflict, although he did not say or do
anything, yet if he were present, and
was assisting and encouraging, at the
moment when the pistol was fired—he
will be guilty of the offence of wilful
murder. Questions have arisen as
to how far the second of a party killed
in a duel is liable to an indictment
for the murder of the deceased: I am
clearly of opinion that he is."
The prisoners were convicted; but
under the special circumstances of the
case—for there existed, in the evidence,
considerable doubt as to the
part taken in the murderous affair by
the prisoners—or even whether they,
in fact, took any part in it—sentence
of death was not passed upon them,
but only ordered to be recorded against
them; and they were afterwards sentenced
to a lengthened term of imprisonment.
Mr Townsend does not
seem to have been aware of this case,
as he makes no allusion to it.
We ourselves were present at a remarkable
trial for duelling, about
eighteen or twenty years ago, at the
Old Bailey, before the late excellent
and very learned Baron Bayley, on
which occasion he also laid down the
rule of law respecting duelling, with
uncompromising firmness and straightforwardness.
This was the case of
Captain Helsham, who had shot Lieutenant
Crowther in a duel, at Boulogne.
There were rumours of foul play having
been practised; and a clergyman, the
brother of the deceased, made strenuous
and persevering efforts to bring
Captain Helsham to trial. The latter
continued, for some time after the
duel, in France, though anxious to
return to England; and after (as we
have heard) taking the opinion of a
well-known counsel at the criminal
bar—who advised him that he could
not be tried in this country for a duel
fought in a foreign country not under
the British crown—he came to England,
where he was instantly arrested,
under Stat. 9 Geo. IV. c. 31, § 7, which
had been passed two or three years
previously—viz., in 1828—and must
have altogether escaped the notice of
the counsel in question. That act
authorises the trial, in England, of
any British subject charged with having
committed any murder or manslaughter
abroad, whether within or
without the British dominions, as if
such crimes had been committed in
England. Captain Helsham was admitted
to bail to meet the charge, and,
having duly surrendered, took his
place at the bar of the Old Bailey,
at nine o'clock on a Saturday morning.
He was a middle-aged man, of
gentlemanly appearance, his features
indicating great determination of
character; but they wore an expression
of manifest anxiety and apprehension
as he entered the dock, and,
looking down, beheld immediately
beneath him the brother of the man
whom he had shot, and through whose
ceaseless activity he was then placed
on trial for his life as a murderer.
And he was to be tried by an uncompromising
judge—stern and exact in
administering the law, and animated
by pure religious spirit; but, withal,
thoroughly humane. Throughout the
whole of that agitating day, the prisoner
stood firm as a rock—sometimes
his arms folded, at others his hands
resting on the bar; while his eyes
were fixed intently on the judge, the
witnesses, or the counsel—every now
and then glancing with gloomy inquisitiveness
at the jury and the judge.
His lips were from first to last firmly
compressed. It was understood that
the counsel for the prosecution were
in possession of a damning piece of
evidence—viz., that the prisoner had
spent nearly the whole of the night
immediately preceding the duel in
practising pistol-firing. However the
fact might be, it nevertheless was not
elicited at the trial; and probably the
prisoner, who had been prepared for
such evidence being produced, began,
on finding that it was not so, to
take a more favourable view of his
chances. As the case stood, however,
it looked black enough to those who
knew the law, and the character of
the judge who sat to administer it.
That venerable person began his summing
up to the jury about seven
o'clock in the evening, and the scene
can never be effaced from our memory.
The court was extremely crowded;
the lights burned brightly, exhibiting
anxious faces in every direction: but
what a striking figure was the central
one—that of the prisoner! Immediately
over his head was a mirror,
so placed as to reflect his face and
figure vividly, especially to the jury.
A few moments after the judge had
commenced his charge, we observed
the Ordinary of Newgate glide into
court, the late Rev. Dr Cotton, in full
canonicals, and with flowing white
hair, having a picturesquely venerable
and ominous appearance, and
take his seat near to, but a little
behind the judge. It was then usual
for the Ordinary to be present at the
close of capital cases, in order to add
a solemn "amen" to the prayer with
which the sentence of death concluded—that
"God would have mercy on
the soul" of the condemned. "Gentlemen
of the jury," commenced Mr
Baron Bayley, amidst profound silence,
"we have heard several times, during
the course of this trial, of the law of
honour; but I will now tell you what
is the law of the land, which is all that
you and I have to do with. It is
this: that if two persons go out with
deadly weapons, intending to use
them against each other, and do use
them, and death ensue, that is—murder,
wilful murder." He paused
for a moment, as if to give the jury
time to appreciate the dread significance
of his opening. As soon as he
had uttered the last two words, Captain
Helsham's cheek was instantaneously
blanched. We were eyeing
him intently at the moment, and shall
never forget it. He stood, however,
with rigid erectness, gazing with
mingled anger and fear at the judge,
whom he felt to be uttering his death-warrant;
and after a while bent his
eyes on the jury, from whom they
wandered scarce a moment during
that momentous summing-up—one
which, with every word, was letting
fall around him, as he must have felt,
the curtain of death. "The law of
honour," said the judge, towards the
close of his charge, "is an imposture—a
wicked imposture, when set against
the law of the land, and the law of
God Almighty, claiming the right to
take away human life. I tell you,
who sit there to discharge a sworn
duty, that a fatal duel is malicious
homicide—and that is wilful murder."
The jury retired to consider their
verdict; and the judge at the same
time quitted the court till his presence
should be required again. Captain
Helsham, however, continued standing
at the bar almost motionless as a
statue. After a prolonged absence of
an hour and forty minutes, the jury
returned into court. The prisoner
eyed them, as one by one they re-entered
their box, with a solicitude
dismal to behold, and the irrepressible
quivering of his upper lip indicated
mortal agitation. The verdict, however,
was—Not Guilty; on which the
prisoner heaved a heavy sigh, passed
his hand slowly over his damp forehead,
bowed slightly, but rather
sternly to the jury, and was then
removed from the bar and released
from custody. When the verdict was
a few minutes afterwards communicated
to Baron Bayley, who had remained
in attendance in an adjoining
room, he remarked gravely, "I did my
duty! It is well for Captain Helsham
that the verdict is as it is; had it been
the other way, I should certainly have
left him for execution." In that case,
the duellist would have died on the gallows
on the ensuing Monday morning.
It is now, however, time to return
to Mr Townsend's volumes, where we
find two trials for duelling. One is
that of the late Mr Stuart, who killed
Sir Alexander Boswell, in Scotland,
on the 26th March 1822, in a duel
conducted with undisputed regularity
and fairness. The other is that of
the Earl of Cardigan, who fought and
wounded Captain Harvey Tuckett,
but not mortally, in a duel, on the
12th September 1840. This trial is
one of remarkable interest, in every
point of view; and we shall take some
pains in bringing it distinctly and intelligibly
before our readers.
About five o'clock on the afternoon
of Saturday, the 12th September
1840, a person named Daun, a
miller, together with his wife and son,
observed from the stage of their mill,
on Wimbledon Common, two carriages
approaching it from opposite directions,
and at once suspected what was
about to take place. Two gentlemen
first quitted the carriages—each with
a pistol-case—duly loaded a brace of
pistols, and stepped out twelve paces;
on which two other gentlemen, the
Earl of Cardigan and Captain Tuckett,
came up, and took their stations at the
points indicated. To each was given
a pistol; the other two withdrew to a
little distance; the word to fire was
uttered, and immediately followed by
an ineffectual discharge of both pistols.
The principals remained at their posts;
a second brace of pistols was given
them; again both fired and Captain
Tuckett fell, wounded in the small of
the back—bleeding profusely, but, as
it proved, not from a mortal, or even
dangerous wound. Thus the aristocratic
affair of honour was more
fortunate in its issue than that plebeian
one in which, two or three years before,
the young linendraper Mirfin
had received his mortal "satisfaction."
Lord Cardigan's second was
Captain Douglas, and Captain Wainwright
was that of Captain Tuckett.
The whole affair of the duel had been
witnessed by the miller, (who was
also a constable,) and his wife and
son, standing on the stage of the
windmill. The moment that Captain
Tuckett fell, the miller and his son
quitted their post of observation, ran
up to the scene of action, and intimated
to all the parties that they
must consider themselves in his
custody. Lord Cardigan still held in
his right hand the pistol with which
he had fired; and there lay on the
ground two pistol-cases, one of them
bearing the Earl's coronet. Captain
Tuckett lay on the ground, his second
Captain Wainwright kneeling beside
him, supporting him; while Sir James
Anderson, a surgeon, who had attended
them to the field, was examining
the wound. One of these
three entreated the constable to allow
the wounded gentleman to be removed
to his own house, giving a solemn
pledge that, on his recovery, he should
attend before the magistrate. At the
same time one of them took out a
card, on which was printed—"Captain
Harvey Tuckett, No. 13 Hamilton
Place, New Road," and wrote
in pencil, on the back of the card, the
words, "Captain H. Wainwright."
Who gave this card remains, in the
evidence, a mystery; nor did it appear
whether Lord Cardigan saw the card
given, or knew what was printed or
written on it, or heard what was said.
As almost the whole interest of the
trial, and also its unexpected issue,
turned upon the identity of the
wounded duellist, and the requisite
adroitness and vigilance of the late
Sir William Follett, the Earl's counsel,
in dealing with this card, and the
circumstances attending its delivery
to the constable, the reader will find
his account in remarking these circumstances
accurately. On the constable's
receiving the card, and the
pledge above mentioned, he allowed
those who had given it to depart.
The conduct of the Earl of Cardigan
was undoubtedly distinguished by
soldierly straight-forwardness and
frankness. He went direct, with
Captain Douglas, to the Wandsworth
police station, and, tapping at the
door, the inspector presented himself,
and asked what was wanted. "I am
a prisoner, I believe," said Lord Cardigan.
"Indeed, sir!—on what account?"
asked the surprised inspector,
as Lord Cardigan entered the station-house.
"I have been fighting a duel,"
said his Lordship, "and hit my man—but
not seriously, I believe—slightly—merely
a graze across the back"—drawing
his hand across his own back,
to indicate the region where he believed
his ball had struck Captain
Tuckett. Lord Cardigan then turned
to Captain Douglas, and said, "This
gentleman, also, is a prisoner—my
second, Captain Douglas." He then
took several cards out of his right
breast pocket, and handed one of
them to the inspector. It bore the
words, "The Earl of Cardigan, 11th
Dragoons." On reading the name,
the inspector said, "I hope the duel
was not with Captain Reynolds?"—alluding
to the notorious disputes
between his Lordship and that officer,
and which led to a court-martial on
the latter. Lord Cardigan "stood up
erect," said the inspector in giving
his evidence, and seemed to reject
the notion with the utmost disdain:
saying, "Oh no, by no means!—do
you suppose I would fight with one
of my own officers?"[47] He duly
appeared before the magistrates, and
was bound over in heavy recognisances
to appear whenever his presence
should be required. He did so from
time to time. As soon as Captain
Tuckett had sufficiently recovered, he
also made his appearance at the police
office, and gave his name. The affair
had by this time attracted much
public attention, chiefly, there can be
little doubt, from the unpopularity of
the Earl of Cardigan; the newspapers
teeming with accounts of his alleged
discourteous and oppressive treatment
of the officers under his command.
The prosecution of Lord Cardigan
was loudly called for; it being alleged
that the high rank of the offender
imperiously demanded that evenhanded
justice should be dealt to him.
Mr Townsend speaks of this demand
for prosecution as "a very pitiful
manifestation of popular rancour
and spleen."[48] "As the duel,"
he adds, "had been fairly fought,
and the code of honour satisfied,
without loss of life, it seemed strange
that the first unsheathing of the
statute should be directed against
a high-spirited and gallant nobleman,
who had been exposed to violent prejudice
and popular clamour; and the
prosecution seemed justly obnoxious
to the supposition that it originated
in party malevolence, and not in respect
to the law." We never shared
in the hostility here spoken of as existing
towards the gallant nobleman in
question. Our political opinions are also
his; and we are disposed to believe
that he has been the victim of much
misrepresentation and injustice. We
desire, nevertheless, to be understood
as vindicating the call for judicial inquiry
into the transaction to which
Lord Cardigan and his opponent, with
their seconds, were parties, if that
transaction had been of a criminal
character. Only three or four years
previously, two young men had been
tried and convicted of wilful murder,
for having only been present at the
duel which cost one of the principals
(Mirfin) his life. If Captain Tuckett
had been killed, Lord Cardigan would
clearly have been guilty of wilful
murder—that is beyond all question,
if the law of England be not a dead
letter, and those who affect to set it in
motion be not guilty of a vile mockery
of justice. If, therefore, a peer of the
realm, a member of the supreme judicature
in the kingdom, had really been
guilty of a conspicuous and grave
violation of the law, which all are required
to obey with implicit reverence,
those who demanded inquiry ought
to have been given credit for acting on
public grounds. The peer should not
escape, where the plebeian would be condemned.
Let us see, then, how stood,
and how stands the law on this momentous
subject—for momentous it is.
In the first place, let it be understood
that the mere challenging to fight a duel,
whether verbally or in writing, and
the mere carrying any such challenge,
is a high misdemeanour, punishable by
fine and imprisonment, according to
the circumstances of the particular
case. This offence consists in the provoking
or inciting others to commit a
breach of the peace; but may also be
regarded in a much more serious light—namely,
as an attempt to commit or
provoke others to commit a felony,—and
even wilful murder. In the present
case, a challenge had been sent
and accepted: those who had done so,
met, and fired deliberately at each
other with deadly weapons, at only a
few paces distance—they fired twice;
the first time innocuously; the second
time, one of them was wounded.
Every single step was here highly
criminal; the earlier ones as misdemeanours,
the later ones as felonies;
the last indeed a capital felony, for
which, beyond all question, the life of
Lord Cardigan had become forfeited
to the outraged law of the land.
This we will shortly show, for the
consolation of all future duellists. By
the common law of the land, no personal
violence, unattended by death,
amounted to more than a misdemeanour.
In the year 1722, was
passed "the Black Act,"[49] which,
amongst various enactments levelled
at the class of offenders who caused
the passing of the statute, contains
this brief general one. "If any person
shall wilfully and maliciously shoot at
any person, in any dwelling-house, or
other place, he shall be adjudged guilty
of felony, and suffer death." This was
the first statute which made the mere
act of shooting wilfully and maliciously
at another—without reference to the
result—felony. Subsequent statutes,
respectively known as Lord Ellenborough's
and Lord Lansdowne's
Acts, made it a capital offence to shoot
at another with intent to murder, or
do grievous bodily harm, provided the
death which might be occasioned
would amount to murder. Though
the matter had never become the subject
of judicial decision, it had been
suggested by a late eminent writer on
the criminal law,[50] that, where an ineffectual
interchange of shots took
place in a duel, both parties might be
deemed guilty of the offence of maliciously
shooting, within one of these
acts, passed in the year 1803, (43
Geo. III. c. 58,) and the seconds
also, as principals in the second
degree. In the year 1837, however,
was passed the Statute of the 1st
Victoria, c. 85, which we advise every
intending duellist to consult very deliberately,
before committing himself
to its meshes. It enacts first, (§ 2,)
that "whoever shall wound any person,
or by any means whatsoever
cause to any person any bodily injury
dangerous to life, with intent to commit
murder, shall be guilty of felony,
and suffer death." Again, secondly,
(by § 3,) "whosoever shall shoot at any
person, or, by drawing a trigger, or in
any other manner, attempt to discharge
any kind of loaded arms at any
person, with intent to commit the
crime of murder, shall, although no
bodily injury be inflicted, be guilty of
FELONY, and liable to be transported
for life, or for any term not less than
fifteen years, or imprisoned for any
term not exceeding three years, at
the discretion of the court." Lastly,
thirdly, (by § 4,) "Whoever shall
maliciously shoot at any person, or,
by drawing a trigger, or in any other
manner, attempt to discharge any kind
of loaded arms at any person, or wound
any person, with intent to maim, disfigure,
or disable, or to do some other
grievous bodily harm to such person,
shall be guilty of felony, and liable to
the same punishment contained in the
previous section."
Blackstone, following Hawkins,
thus lays down the law in the case of
duelling: "Express malice is, where
one, with a sedate deliberate mind,
and formed design, doth kill another,—which
formed design is evidenced
by external circumstances, discovering
that inward intention,—as lying in
wait, antecedent menaces, former
grudges, and concerted schemes to do
him some grievous bodily harm. 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 of
both God and man; and therefore the
law has justly fixed the crime and
punishment of murder on them, and on
their seconds also."[51] This passage
may be said to reflect a somewhat
ghastly light on the three sections of
the statute law given above, such as
must have startled the Earl of Cardigan
and his advisers, as soon as they
found that he had been made the subject
of bonâ fide prosecution under
that statute. We affirm unhesitatingly,
and no one will deny, that the
facts relating to the duel, as they
appear above stated, brought Lord Cardigan's
case within every one of these
three sections—as clearly within the
first, rendering the offence capital, as
within the other two, declaring it
felony punishable with transportation.
This the Attorney-General himself
stated to the House of Lords, in opening
the case against the prisoner:
"The present indictment might have
been framed on the capital charge."
A wound had been inflicted, which
constituted one branch of the capital
offence; but "the prosecutor had,
very properly, restricted the charge
to firing with an intent, without alleging
that a bodily injury dangerous to
life had been inflicted."[52] The indictment
was founded on the third and
fourth sections alone; charging, in
the first count, a shooting with intent
to murder; in the second, to maim
and disable; in the third, to do some
grievous bodily harm. Indictments
were preferred before the grand jury,
at the Central Criminal Court,
against both principals, and both
seconds. The grand jury ignored
those against Captain Tuckett and his
second, but "found" those against
Lord Cardigan and his second. As
probably the same evidence, precisely,
was laid before the grand jury in both
cases, it is certainly difficult to
account for the totally different results,
except on the supposition that
the grand jury weakly suffered themselves
to be hurried into a forgetfulness
of their sworn duty, by feelings
of commiseration for the party who
had been wounded by one who had
escaped unhurt. Lord Cardigan was
reputed to be "a dead shot," and was
certainly very unpopular; but there
was no pretence whatever for saying
that he had acted otherwise than with
rigorous fairness in his encounter with
Captain Tuckett, who, for all the
grand jury could tell, was as "dead a
shot" as the Earl. We would, however,
fain hope that this secret-sworn
inquest were not obnoxious to the
censures which Mr Townsend[53] and
others have levelled at them in this
matter. On the bill being found,
Lord Cardigan, of course, claimed his
right to be tried by his peers—(i. e.
pares, æquales)—a right which he
possessed in common with every fellow-subject;
and the indictment was
removed by certiorari, to be tried before
the House of Peers in full Parliament.
The court of the Lord High
Steward of Great Britain is one
instituted for the trial of a Peer indicted
for treason, or felony, or misprision
of either;[54] but when the trial
take place during the session of Parliament,
as was the case on the present
occasion it is before the High
Court of Parliament. A Lord High
Steward is appointed in either case;
but in the latter he officiates, not as
the supreme judge in matters of law—as
he would be in a trial during the
recess—but as speaker, or chairman,
having an equal voice with his brother
peers, in matters both of law and
fact.
This was the first time that duelling
had been made the subject of prosecution
under the statutes against
shooting with intent to kill, maim,
disable, or do grievous bodily harm;
and the position of the Earl of Cardigan
had suddenly become perilous
in the extreme, and doubtless occasioned
most serious apprehensions to
himself and his advisers. If his case
should be held to fall within the statute
in question, not only was he liable
to transportation for life,—and he
knew that the House of Peers would
firmly do its duty, especially conscious
as it was that upon it were fixed the
eyes of the whole country,—but what
would be the effect of a conviction
of felony on his property? Four days
after the trial, it was stated in the
Times newspaper,[55] and has not been,
as far as we know, contradicted, that
"such had been the doubts as to the
issue of the trial, entertained by Lord
Cardigan and his legal advisers, that
his lordship, to prevent the whole of
his property being forfeited to the
crown, executed, some time before, a
deed of gift, assigning over the whole
of his valuable possessions to Viscount
Curzon, the eldest son of Earl Howe,
who had married a sister of the Earl
of Cardigan. It is stated that the
legal expenses of this transfer of property,
arising from fines on copy-holds
and the enormous stamp-duties,
amounted to about £10,000; and as
the deed of transfer was said to have
been enrolled in due form, in the
event of an acquittal the immense
expenditure would have to be again incurred,
in order to effect a re-transfer."
So serious a matter, even in a pecuniary
point of view, has now become
the fighting a duel, to a nobleman or
gentleman of fortune, who are recommended,
consequently, not to fight in
a hurry—at all events, till they shall
have had an opportunity of taking the
best advice of counsel learned in the
law. The deed of transfer in question,
if executed at all, had probably
been executed before it was known to
Lord Cardigan and his advisers, that
it was not intended to indict him for
a capital offence, under the second
section of stat. 1 Vict. c. 85, and that
he could not, consequently, be attainted.
Even, however, as the case
stood, if he had been convicted of the
felony with which he was charged,
the validity of his expensive attempt
to obviate the legal effect of that conviction
upon his large property
would have been gravely questionable,
had the law advisers of the
crown felt it their duty to impugn the
transaction.
The House of Lords presented,
on the morning of Tuesday the 16th
February 1841, a most imposing
appearance. Lord Denman, the
Lord Chief Justice of the Queen's
Bench had been appointed by commission
from the Queen, pro hâc vice,
Lord High Steward.[56] The judges
were in attendance in their state
robes, and took their seats on the
woolsack. The peers were attired in
their robes, such of them as were
knights also wearing the collars of
their respective orders. The Lord
Chancellor (Lord Cottenham) was
absent through illness; but there
were, independently of the Lord High
Steward, no fewer than five law lords
present—Lords Lyndhurst, Brougham,
Wynford, Abinger, and Langdale.
The side galleries were covered with
ladies; and the scene was one of
great solemnity and magnificence.
The Lord High Steward having made
reverences to the throne, to which he
had been conducted by the state
officer—the Garter King-at-Arms bearing
the sceptre, and the Gentleman
Usher of the Black Rod the Lord
Steward's staff—took his seat on
the chair of state placed on the upper
step but one of the throne. The
necessary formalities of reading the
commission, the writ of certiorari,
and indictment, having been gone
through, the Lord High Steward ordered
proclamation to be made to the
Yeoman Usher of the Black Rod "to
bring James Thomas, Earl of Cardigan,
to the bar." This was quickly
complied with—the Earl, accompanied
by the officer above mentioned, appearing
at the bar, dressed in plain
clothes. As he approached, he made
three "reverences," and knelt, till
directed by the Lord High Steward
to rise. He again made three reverences,
respectively to the Lord High
Steward, and his brother peers on
each side of the house, they returning
his courtesy. He was then conducted
to a stool within the bar near his
counsel. His demeanour was calm
and dignified, and he had a very
soldierly bearing. He was then in
his forty-fourth year. The Lord
High Steward's deep impressive tones
were then heard, as he thus addressed
the noble prisoner: "My Lord Cardigan,
your lordship stands at the
bar charged with the offence of firing
with a loaded pistol at Harvey
Garnett Phipps Tuckett, with intent
to murder him; in a second count,
you are charged with firing with intent
to maim and disable him; and
in a third count, you are charged with
firing with intent to do him some
grievous bodily harm. Your lordship
will now be arraigned on that
indictment." The Earl was then arraigned
in the usual manner, by the
Deputy Clerk of the Crown, in the
Queen's Bench, who thus proceeded:—
"How say you, my Lord, are you
guilty of the felony with which you
stand charged, or not guilty?"
Earl of Cardigan.—Not guilty, my
lords.
Deputy Clerk of the Crown.—How
will your lordship be tried?
Earl of Cardigan.—By my peers.
Deputy Clerk of the Crown.—God
send your lordship a good deliverance.
The Earl then, by leave of the
House, sate down uncovered: and
after the usual proclamation had been
made for all persons to come forward
and give evidence, the Lord Steward,
with the leave of the House, descended
from his seat on the throne, and took
his seat at the table. The counsel for
the Crown were the Attorney-General
(the present Lord Campbell), and
Mr Waddington, (now Under Secretary
of State); and for the prisoner,
Sir William Follett, Mr Serjeant
Wrangham, and the late Mr Adolphus.
It has been said, and is indeed intimated
by Mr Townsend, that, imperturbable
as was the self-possession of
Sir William Follett, on this occasion
he exhibited unusual indication of an
oppressive sense of responsibility.
Both facts, indeed, and law were so
dead against his noble client, and the
consequences of conviction so exceedingly
serious, that nothing was left
for him but to watch with lynx-eyed
acuteness, in order to see that nothing
but rigorously exact legal proof was
adduced against his client.
The opening address of the Attorney-General
was temperate, clear, and
able; most faithfully stating the law
which he charged Lord Cardigan with
having violated, and the facts constituting
the violation. He reminded
the House that sixty-four years had
elapsed since a similar trial had taken
place—that of Lord Byron, for killing
his opponent in a duel. "I am rejoiced,
my Lords, to think," continued
the Attorney-General, in terms which
immediately occasioned great observation,
"that 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,
the conviction will reflect no discredit
upon the illustrious order to which he
belongs. But, my Lords, it seems to
me that he has been clearly guilty of
a breach of 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
here as a court of honour, or as a
branch of the legislature, but as a
court of justice, bound by the rules of
law, and under a sanction as sacred
as that of an oath.... Your
lordships are aware that the noble
Earl is in the army—Lieutenant-colonel
of the 11th Hussars; and I
have no doubt that, on this occasion,
he only complied with what he thought
necessary to the usages of society.
But, under these circumstances, though
it would have been considered, if
death had ensued, a great calamity,
and not a great crime—though moralists
of the highest authority have
defended duelling—it remains for
your lordships to consider what duelling
is by the law of England." After
quoting from the known great authorities,
Hale, Hawkins, Foster, and
Blackstone, proving that a death by
duelling was wilful murder, the
Attorney-General correctly observed—"It
necessarily follows, from this
definition of murder, that the first
count of the indictment is [that is, he
expected that it would be] completely
proved. The only supposition, my
Lords, by which the case can be reduced
to one of manslaughter would
be, that Lord Cardigan and Captain
Tuckett casually met at Wimbledon
Common—that they suddenly quarrelled—and
that, while their blood
was up, they fought. But your lordships
can hardly strain the facts so
far as to suppose that this was a
casual meeting, when you find that
each was supplied with his second—that
each had a brace of pistols—and
that the whole affair was conducted
according to the forms and solemnities
observed when a deliberate duel is
fought." Could anything be more
clear and cogent? "Then, my Lords,
with regard to the second and third
counts of the indictment, I know not
what defence can possibly be suggested;
because, even if there had
been this casual meeting, contrary to
all probability and all the circumstances
of the case—if it would only,
had death ensued, have amounted to
the crime of manslaughter—that would
be no defence to the second and third
counts of the indictment, as has been
expressly decided (in the case of
Anonymous, 2 Moody's Crim. Cases,
p. 40) by the fifteen Judges of England."
Such was the opening of the Attorney-General—such
as must have left
not a single crevice through which a
glimpse of hope could be caught.
The words of the Act of Parliament
could not have applied more exactly
to the facts of the case, as our readers
must see, even if the act had been expressly
framed to meet these particular
facts! The miller of Wimbledon, his
wife and son, had witnessed the whole
affair—the arrival of the parties on
the ground, and the double interchange
of shots. Lord Cardigan, on
the spot, and at the police office, in
plain terms avowed who he was, and
what he had done, and who had been
his second—the inspector of the police-station
being present to prove
such avowal. Sir James Anderson,
the surgeon, who had also seen the
duel, and accompanied Captain Tuckett
home, was in attendance as a witness.
The miller, who had received Captain
Tuckett's card, went, a week afterwards,
to the residence mentioned in
the card, and asked for, and saw,
Captain Tuckett. It would seem as
though the wit of man could not suggest
how these facts could be evaded,
or how they could fail of being
proved! Yet the case totally broke
down; the whole prosecution crumbled
into pieces, under the subtle and
watchful dexterity of the consummate
advocate to whom Lord Cardigan had
committed his almost hopeless case.
What does the reader suppose to have
been the fatal flaw? The prosecution
could not prove the identity
of Captain Tuckett! Each of the
three counts in the indictment charged
Lord Cardigan with having fired at—Harvey
Garnett Phipps Tuckett.
That was his real name, but it became
impossible to prove the fact; and,
without such proof, the prisoner was,
beyond all question, entitled to an
acquittal. A man cannot be indicted
for firing at A B, and convicted of
firing at C D. If Captain Tuckett
had been called, he could, of course,
have instantly disposed of the difficulty;
and it is said that that gentleman was
actually in, or near, the House of
Lords; but the Attorney-General
explained that he could not call that
gentleman, nor his second, because,
though the bill against them had been
ignored by the grand jury, "they
were still liable to be tried," and
therefore "it would not be decorous
to summon them to give evidence
which might afterwards be turned
against themselves." And as for
Captain Wainwright, he was in the
situation of his noble fellow prisoner,
as a true bill had been found against
him at the Central Criminal Court.
What, then, shall be said against
calling Sir James Anderson? Fortunately
for himself and for Lord
Cardigan, he was in a position to be
tried himself on a charge of having
been present, aiding and assisting at
the commission of a felony. On this
gentleman being sworn, the Lord
High Steward thus cautioned him, as
he was bound to do in the case of any
witness similarly situated:—
"Sir James Anderson,—With the
permission of the House, I think it
my duty to inform you, after the
opening we have heard made by the
Attorney-General of the facts of the
case, that you are not bound to answer
any question which may tend to
criminate yourself." Doubtless, Sir
James Anderson expected nothing
less, and had come to the House of
Lords perfectly at his ease. Therefore
he came like a shadow, and so
departed. Thus "had he his entrance
and his exit."
"Attorney-General.—Of what profession
are you?
"A.—I am a physician.
"Q.—Where do you live?
"A.—New Burlington Street.
"Q.—Are you acquainted with
Captain Tuckett?
"A.—I must decline answering that.
"Q.—Were you on Wimbledon
Common on the 12th September last?
"A.—I must decline answering that
also!
"Q.—Were you on that day called
in to attend any gentleman that was
wounded?
"A.—I am sorry to decline that
again!
"Q.—Can you tell me where Captain
Tuckett lives?
"A.—I must decline answering the
question!
"Q.—Has he a house in London?
"Sir William Follett.—He 'declines
to answer the question.'
"A.—I have already said that I decline
answering the question.
"Attorney-General.—Where did
you last see Captain Tuckett?
"Sir William Follett.—We [the
counsel for the prisoner] have no
right, my Lords, to interfere in this
case;[57] but, the witness having several
times declined to answer the question,
I apprehend that it is not regular for
the Attorney-General, by circuitous
questions, to endeavour to get him to
answer.
"Attorney-General.—I have never
pressed him in any question I have
put. [To Sir James Anderson.]—Do
you decline answering any question
whatever respecting Captain Tuckett?
"A.—Any question which may
'tend to criminate' myself.
"Q.—And you consider that answering
any question respecting Captain
Tuckett may tend to criminate
yourself?
"A.—It is possible that it would.
"Q.—And on that ground you decline?
"A.—Yes.
"Attorney-General, [to the House.]—Then,
unless your Lordships wish
to ask any question of the witness, he
may withdraw.
"The witness was directed to withdraw."
Here, then, were four avenues
through which light might have been
thrown on a transaction which was
the subject of such solemn and dignified
inquiry by the most illustrious
judicial assembly in the world, carefully
closed: Sir James Anderson,
Captain Tuckett, Captain Douglas,
and Captain Wainwright. It will be
further observed that Lord Cardigan,
in his frank avowal at the police
station, had happened not to mention
the name of the gentleman whom he
had fought and wounded—an omission
probably altogether accidental, for his
Lordship seems to have been in a
humour of signal yet becoming and
characteristic frankness.
The sole question in this celebrated
case thus became one of identity—the
indictment charging Lord Cardigan
with having fired at one Harvey Garnett
Phipps Tuckett—it being the duty
of the prosecutors to prove that the prisoner
fired at a person bearing these
names. There was abundant evidence
that Lord Cardigan had fired at and
wounded a Captain Harvey Tuckett;
but this might be a person totally different
from him named in the indictment.
The skill and vigilance of the prisoner's
counsel were visible in tripping
up his opponents whenever they
approached inconveniently near his
client. There is no reason to believe
that Lord Cardigan's counsel were
aware of there being the slightest
difficulty, on the part of the prosecution,
in proving the identity of the
wounded man with the one specified
in the indictment; but at the very
first start, Sir William Follett perceived
a faint possible advantage, and
never for one instant lost sight of it.
"You tell us," said the counsel for
the prosecution, examining the first
witness—the miller, "that you saw
the pistols fired a second time: did
you observe whether either of the
shots took effect?
"A.—I thought Captain Tuckett was
wounded—or, at least, the other
gentleman: I did not know who it
was.
"Q.—You thought that the gentleman,
whom you afterwards knew to
be Captain Tuckett, was wounded?
"A.—Yes.
"Q.—Did you see what that gentleman
did with his pistol, after the
second shots were fired?
"A.—No.
"Q.—You did not see whether he
held it in his hand, or what he did
with it?
"A.—Which are you alluding to?
"Q.—I am speaking of Captain
Tuckett.
"Sir William Follett.—He has said
he did not know who it was!"
Here was a stumble by the prosecutors,
which their wary adversary
never allowed them to recover. The
miller then stated the giving of the
card of address of "Captain Harvey
Tuckett, 13 Hamilton Place, New
Road," and produced it; but Sir William
Follett would not allow it to be
read in evidence against Lord Cardigan,
without evidence that Lord
Cardigan had seen it given, and was
aware of what it was: and such evidence
was not forthcoming. The Attorney-General
then withdrew the
card for the present, and asked the
miller whether, on receiving it, he
allowed the wounded gentleman to
go; to which the answer was "Yes."—"In
consequence of receiving this
card, did you afterwards call at a particular
house?" (meaning the house
mentioned on the card, but which Sir
William Follett had succeeded in excluding,
for the present, from evidence.)
Sir William Follett objected
that the question was a leading one,
and it was not pressed. The witness
then stated that, a week afterwards,
he called at No. 13 Hamilton Place;
asked for "Captain Harvey Tuckett."
"Q.—Whom did you see?
"A.—Captain Harvey Tuckett.
"Q.—Did you speak to him?
"A.—I did.
"Sir William Follett.—I wish you
would put your questions differently!
"Attorney-General.—We ask him
whom he saw.
"Sir William Follett.—He does not
know Captain Harvey Tuckett, I suppose.
"Q.—Did you speak to him?
"A.—I did."
The Attorney-General then tendered
the card in evidence: and Sir William
Follett, ignorant of what was written
in it, (for the Attorney-General had
not specified in stating the case,) objected
to its being received. On this
a very ingenious and elaborate argument
ensued between him and the
Attorney-General, whether this card
was or was not admissible in evidence,
at all events in that stage of the case.
The latter insisted on the affirmative,
on the ground that the card had been
given to the constable in Lord Cardigan's
presence, and the constable had
afterwards gone to the address specified
in the card. It was therefore a
part of the res gestæ. "No," answered
Sir William Follett; "it does not
appear who it was that gave this card,
or that Lord Cardigan saw it, nor that
he knew what was written on it. The
Attorney-General is trying to prove
an important fact in the case, by an
apparent admission of Lord Cardigan;
whereas he is not shown to have had
any cognisance whatever of the fact
which he is supposed to have admitted!"
The Lord High Steward said
that, at all events, the House would
postpone for the present its decision
as to the admissibility of the card.
"Whether the Attorney-General,"
said Sir William Follett, "will have
any other evidence to prove who it
was that had given the card, or to
connect the card with the Earl, is another
question"—which doubtless occasioned
no little anxiety to the Earl
and his astute counsel.
The next witnesses were the miller's
wife and son, who were cross-examined
by Sir William Follett irritably
and severely, but ineffectually.
They did not, nevertheless, appear to
carry the case much farther than had
the miller. Then came Mr Busain, the
police inspector, who gave evidence of
the facts already stated in connection
with his name, in the Earl's avowal
that he had just fought a duel, and hit
his man. On his being asked a very
critical question, viz., as to Captain
Tuckett's having called at the magistrate's
office and given his name, Sir
William Follett anxiously and hastily
interposed—"Was Lord Cardigan
present then and there?" to which the
answer was, "No, he was not." Sir
William Follett therefore succeeded in
excluding what Captain Tuckett had
said on calling at the magistrate's
office, and thus again "averted the
decisive stroke."[58]
Then the Attorney-General called a
Mr Matthew, a chemist in the Poultry,
in whose house "Captain Tuckett"
occupied rooms for business. Mr
Matthew said that Captain Tuckett
lived at "No. 13, Hamilton Place,
New Road." He was then asked the
Christian names of Captain Tuckett.
On this Sir William Follett interposed,
and having elicited the fact that the
witness had never been at the house
No. 13, Hamilton Place, New Road,
objected to the witness being asked
the Christian names of the gentleman
who had lodged with the witness in
the Poultry! This objection, however,
was overruled; but on the question
being put, it turned out that the
only names by which the witness knew
his lodger were "Harvey Tuckett!"
As a last resource, the Attorney-General
called Mr Codd, an army agent,
who paid "Captain Tuckett," of the
"11th Light Dragoons," his half-pay,
and knew his name to be "Harvey
Garnet Phipps Tuckett!!" But the
witness added that he used to pay the
money at his own house in Fludyer
Street, Westminster, and had never
seen Captain Tuckett except there,
and at an insurance office! Again
was the Earl of Cardigan's star in the
ascendant. How could the prosecutor
connect the half-pay officer spoken of
by this witness, with the Captain
Tuckett shot by Lord Cardigan, and
afterwards seen wounded in Hamilton
Place?
The case was brought, at length,
pretty nearly to a stand-still. "Is
that your case, Mr Attorney?" inquired
Lord Brougham; on which the
Attorney-General pressed for the decision
of the House as to the admissibility
in evidence of the card which
had been delivered by one of the parties
on the ground to the constable.
"Lord High Steward.—You object
to its being received, Sir William
Follett?
"Sir William Follett.—Certainly,
my lord: and I should wish to address
your lordships, if any doubt is entertained
on the subject.
"Lord High Steward.—Their lordships
are ready to hear your objection.
"Sir William Follett, (to the Attorney-General.)—Will
you let me look
at the card?"
The card was handed to Sir William
Follett, who, on examining it, addressing
the Lord High Steward, said calmly
and resolutely—"My lord, I do not
think it necessary to object to this
card being read." And, indeed, he
had no need to do so; for, as the
reader must see, it did not advance
the case a single hair's-breadth.
"Is that your case, Mr Attorney?"
inquired Sir William Follett, with
mingled anxiety and hope. "That,
my lords, is the case on the part of
the prosecution," said the Attorney-General:—on
which, turning to the
High Steward with a confident exulting
air, Sir William Follett "submitted
to their lordships that no case
had been made out, requiring an answer
from the prisoner at the bar."
Into what a minute point this great
case had dwindled! "There is no
evidence whatever to prove," said
Sir William Follett, "that the person
at whom the noble Earl is charged to
have shot, on the 12th September last,
was Harvey Garnett Phipps Tuckett—the
name contained in every count
of the indictment. The evidence would
rather lead to a contrary presumption,
if presumption could be entertained in
such a case; but it is incumbent on
the prosecutor to give positive evidence
of the identity of the person named in
the indictment with the person against
whom the offence is alleged to have
been committed.... Is there anything
before your lordships to identify
the Captain Tuckett spoken of by the
army agent, Mr Codd, with the person
who is said to have been at Wimbledon
Common on the 12th September last?
There is nothing whatever."—"If
there be the smallest scintilla of evidence,"
answered the Attorney-General,
"the prosecution cannot be
stopped on this ground; and there is
abundant evidence from which it may
be inferred that the person wounded
in this duel was—Harvey Garnett
Phipps Tuckett. We prove that the
wounded gentleman was a 'Captain
Tuckett;'—that it was 'Captain Harvey
Tuckett:' that the wounded Captain
Tuckett lived at 13 Hamilton
Place, New Road. Is there any doubt
that it was that Captain Tuckett who
had taken the premises in the Poultry?
When he did so, he gave a reference to
No. 13 Hamilton Place, New Road.
Is it not an irresistible evidence, then,
that the Captain Tuckett of the Poultry
and of Hamilton Place, and who
fought with Lord Cardigan, was one
and the same person? There is only
one other stage—that this Captain
Tuckett is the Captain Tuckett of whom
Mr Codd speaks. Is there not cogent
evidence to prove the identity here?
Would any person, out of a court of
justice, for a moment doubt the identity
here? If not, can this House undertake
to say that there is not a scintilla
of evidence of identity before it?"
"What we object," said Sir William
Follett, in reply, "is this—that Mr
Codd, who says he knows a Captain
Tuckett who bears the names mentioned
in the indictment, gave no scintilla of
evidence to connect that individual
with the gentleman who was on Wimbledon
Common on the 12th September
last. It depended altogether on Mr
Codd to give such proof—and that
proof he wholly failed to give. Your
Lordships are now sitting as judges,
to decide solely on the evidence
which has been laid before you. The
Attorney-General says that the card
afforded one of the Christian names—'Harvey
Tuckett;' but is that proof
that the person mentioned in that
card is the 'Harvey Garnett Phipps
Tuckett' mentioned in this indictment?
There may be two, or ten,
or fifty persons named 'Harvey Tuckett.'
I ask your Lordships, sitting
as judges on a criminal case, and
looking at the evidence alone—disregarding
surmise, conjecture, and what
you may have heard out of doors—whether
there is any evidence to
prove that the gentleman wounded
on Wimbledon Common bears the
name and surname of 'Harvey Garnett
Phipps Tuckett?'"
The Lord High Steward, during
the deliberation of the House with
closed doors, delivered a luminous
and convincing exposition of the legal
merits of the case before the House:—
"There is an absolute want of circumstances
to connect the individual
at whom the pistol was fired, and who
afterwards was seen wounded in Hamilton
Place, with the half-pay officer
known to Mr Codd as bearing the
names set forth in the indictment on
which your Lordships are sitting in
judgment; for the mere fact of the
wounded person bearing some of the
names used by the half-pay officer, is
no proof that the former and the latter
are the same; and the representation
by that officer of his having held
a commission in the same regiment of
which Lord Cardigan told the policeman
that he himself was colonel,
(which, coupled with the actual receipt
of half-pay, may sufficiently prove
that fact,) cannot, I apprehend, be
turned into a presumption that those
two individuals would meet in hostile
array. Here are two distinct lines of
testimony, and they never meet in
the same point."
"No fact (i. e. of identity) is easier
of proof in its own nature; and numerous
witnesses are always at hand
to establish it, with respect to any
person conversant with society. In
the present case, the simplest means
were accessible. If those who conduct
the prosecution had obtained
your Lordships' order for the appearance
at your bar of Captain Tuckett,
and if the witnesses of the duel had
deposed to his being the man who left
the field after receiving Lord Cardigan's
shot, Mr Codd might have been
asked whether that was the gentleman
whom he knew by the four names
set forth in the indictment. His
answer in the affirmative would
have been too conclusive on the
point to admit of the present objection
being taken.
"Several other methods of proof
will readily suggest themselves to
your Lordships' minds. Even if obstacles
had been imposed by distance
of time and place, by the poverty of
those seeking to enforce the law, by
the death of witnesses, or other
casualties, it cannot be doubted that
the accused must have had the benefit
of the failure of proof, however occasioned;
and here, where none of
those causes can account for the deficiency,
it seems too much to require
that your Lordships should volunteer
the presumption of a fact which, if
true, might have been made clear and
manifest to every man's understanding
by the shortest process. Your
Lordships were informed that no persons
out of doors could hesitate, on
the proof now given, to decide that
the identity is well made out. Permit
me, my Lords, to say that you
are to decide for yourselves upon the
proofs brought before you, and that
nothing can be conceived more dangerous
to the interests of justice, than
for a judicial body to indulge in any
speculations on what may possibly
be said or thought by others who
have not heard the same evidence,
nor act with the same responsibility,
nor (possibly) confine their attention
to the evidence actually adduced.
Your lordships," continued the Lord
High Steward, "sitting in this High
Court of Parliament, with the functions
of a judge and a jury, I have
stated my own views, as an individual
member of the court, of the question
by you to be considered, discussed,
and decided. Though I have commenced
the debate, it cannot be necessary
for me to disclaim the purpose of
dictating my own opinion, which is
respectfully laid before you with the
hope of eliciting those of the House at
large. If any other duty be cast upon
me, or if there be any more convenient
course to be pursued, I shall be greatly
indebted to any of your lordships who
will be so kind as to instruct me in it.
In the absence," concluded the noble
Lord, "of any other suggestion, I
venture to declare my own judgment,
grounded on the reasons briefly submitted,
that the Earl of Cardigan is
entitled to be declared NOT GUILTY."[59]
This was followed by the unanimous
declaration of "Not Guilty,"—pronounced
successively "upon my
honour"—by every peer present, beginning
with the junior baron. The
only variation of the form occurred
in the case of the Duke of Cleveland,
who said—instead of not guilty,
upon my honour"—not guilty,
legally, upon my honour." The white
staff of the Lord High Steward was
then broken in two; and so was dissolved
the first—may it be the last—commission,
during the present
century, for the trial of a peer on a
charge of felony.
Lord Denman's reasons for recommending
an acquittal were unanswerable;
and by special direction of the
House of Lords, though not in conformity
with precedent,[60] were published,
to enable the country to judge
of the grounds on which the House
had proceeded. The result, however,
so contrary to that which had been
expected, excited no little indignation;
and the bonâ fides, even of
those who conducted the prosecution,
was very sternly questioned. It was
insinuated by some of the most powerful
organs of public opinion, that the
prosecution had been taken up unwillingly,
and with not even ordinary
precautions to secure the ends of
justice. "We ask," said the Times,
"whether the law officers of the
Crown had no foresight to anticipate,
or no disposition to provide against,
a conclusion so unsatisfactory? Is
any man capable of believing that if
some tailor, or linendraper, had been
indicted at the Old Bailey for the
crime of stealing—or that he, having
an honour to vindicate equally with
noble lords, pistolled and wounded
one of his companions—does any man
believe that, in such a case, we should
have heard of any miscarriage, or of
any name that could not be proved?
Oh no! there would then have been
precautions in abundance—there
would have been no loophole left—there
would have been no lack of
friends and relatives carefully subpœnaed
to prove all the Christian
names of the necessary party."
We ourselves have reflected frequently
on the result of this trial;
and the points which have occurred
to us are two. First, Why was not
Captain Tuckett summoned to the bar
of the House of Lords—if merely to
be asked his name[61]—or even only to
be pointed out to the witnesses to see
if they could identify him? The
miller could have been required to
look at him, and been then asked—"Is
that the person whom you saw
lying wounded on the common?"—and
Mr Codd could then have been also
required to look at Captain Tuckett,
and say—"Is that the gentleman to
whom you used to pay half-pay as
Captain Tuckett of the 11th Light
Dragoons, and whose name you knew to
be Harvey Garnett Phipps Tuckett?"
On both these witnesses answering
these questions in the affirmative, it
would have required a thousand times
even Sir William Follett's ingenuity
to suggest a further doubt on the
point of identity. This was the course
which the Lord High Steward plainly
pointed at, in his address to his brother
peers, as that which might have been
adopted. Secondly, Why was not the
name of Captain Tuckett varied in
various counts of the indictment, so
as to meet not every probable, but
every possible doubt and difficulty?
If in one count he had been called
"Harvey Tuckett," it would have
sufficed to meet the evidence actually
adduced; and the other
counts might have, respectively
described him as "Harvey Garnett
Phipps Tuckett"—"Harvey Garnett
Tuckett"—"Harvey Phipps Tuckett"—"Garnett
Tuckett"—"Phipps Tuckett"—even adding to these other
combinations of the four names in
which Captain Tuckett rejoiced. To
dispose first of this latter point—we
verily believe that, up to the moment
when the question of identity was
started, the counsel for the prosecution,
and their clients, believed that
the proof of identity was a matter of
course. The indictment had been preferred
before the Grand Jury at the
Central Criminal Court; and was
doubtless framed, in the ordinary
course, by the clerk of indictments,
from the depositions—in which might
have appeared all the four names of
Captain Tuckett, without any intimation
of doubt or difficulty as to the
fact of those being his names, or as to
proof that they were. Possibly the
clerk had before him a positive statement
that Mr Codd, the army agent,
who paid Captain Tuckett his half-pay,
could clearly prove that his
name was "Harvey Garnett Phipps
Tuckett;" and that, if so, it was a
needless and expensive encumbering
of the record to insert counts aimed at
only imaginary difficulties. The indictment
having once gone before the
Grand Jury, and been returned a true
bill, no alteration could have been
made in it, especially after it had been
removed by certiorari.... Doubtless
the brief of the counsel for the
prosecution would contain the evidence
of Mr Codd, in as direct and
positive a form as could be imagined;
and they would regard him, as the
army-agent of Captain Tuckett, as
peculiarly qualified to prove his real
names. When the difficulty had been
started, we know of no degree of ingenuity
that could have been exhibited
by counsel, exceeding that of the
Attorney-General, in his contests on
the point with Sir William Follett.
All experienced practical lawyers will
acknowledge the probability that the
solution of the question here proposed
is the true one. It is easy to be wise
after the result. A blot is not a blot,
until it has been hit.
Secondly, Why was not Captain
Tuckett brought to the bar, to be
asked his names, or identified by Mr
Codd? There is no evidence that he
was in attendance, or that he could
have been met with, at the exact
moment when his presence was required.
It may have been that no
order of the House had been obtained
for his attendance, only because it had
not been thought necessary—that no
difficulty would arise which his attendance
could solve; and in the absence
of direct legal compulsion, Captain
Tuckett may have felt it a point of
honour not to volunteer himself as a
witness against his brother duellist.
We can also readily believe that
the counsel for the prosecution were
anxious to conduct a perfectly novel
case—the first instance on record of
an attempt to bring an abortive duel
under the category of felony, with
its alarming incidents and consequences—with
unusual liberality,
and not to exhibit anything like a
vindictive pressure upon the accused.
They also knew that Captain Tuckett
was himself liable, at that very moment,
to be placed in the same situation
as Lord Cardigan, and that it
would have been idle to call before
the House of Lords a witness who
would come armed with a right to
decline answering any single question—possibly
even that above suggested
as to his name—which he believed
might even tend to criminate himself.
It must also be borne in mind that the
Attorney-General boldly avowed, before
the House of Lords, that he regarded
the act with which Lord Cardigan
stood charged as one devoid of
"any degree of moral turpitude,"
and that "a conviction would effect
no discredit on the illustrious order to
which he belonged." These observations,
proceeding from an Attorney-General
on a solemn official occasion,
became, a few days afterwards, the
subject of grave discussion and censure
in the House of Lords. But even
the excellent Earl of Mountcashel
thus pointed at the practical hardship
of Lord Cardigan's position,—"An
officer in the army receives an affront.
His brother officers expect he shall
go out. If he do, he encounters the
pains and penalties of the statute
1 Victoria c. 85; if he refuse, he is
obnoxious to the contempt of his
brother officers."[62] It was, certainly,
not to be expected that an Attorney-General,
entertaining and averring
the views of duelling which he did—and
having to deal with a nobleman
bearing her Majesty's commission,
who was placed in the dilemma indicated
by Lord Mountcashel, and had
fought his duel fairly, and unattended
by fatal consequences—should have
been as eagle-eyed a prosecutor
as if he had had to deal with a
man, gentle or simple, military or
civil, who had shamefully provoked,
and as disgracefully fought, a fatal
duel.
Had Lord Cardigan been convicted,
he had still a chance of escaping the
serious personal consequences by claiming
that absurd and unjust privilege
of the peerage of which Lords Mohun,
Warwick, and Byron in past
times had respectively availed themselves,
immediately on their having
been convicted, in cases of fatal duels,
of manslaughter. This privilege had
been confirmed by statute, 1st Edward
VI. c. 12, § 14, which was passed in
the year 1547, and consisted in
enabling a lord of parliament and
peer of the realm to have benefit of
clergy for a first conviction of felony,—that
is to say, to escape the penal
consequences of conviction, on simply
alleging that he was a peer, and praying
the benefit of that act! In 1827,
however, by one of the statutes which
effected so salutary a reform of our
criminal law, (statute 7th and 8th
Geo. IV. c. 28, § 6,) it was enacted as
follows,—that "benefit of clergy,
with respect to persons convicted of
felony, shall be abolished." It had
been intended, by this section, to
repeal that of the 1st Edward VI. c.
12, § 14; but serious doubts were entertained,
during the pendency of
Lord Cardigan's trial, whether that
intention had been effectuated. We
offer no opinion on the point, which
would have been argued, of course,
with desperate pertinacity, and consummate
learning and ingenuity, had
the occasion for such an exhibition
arisen. To extinguish, however, all
possible doubt, and prevent any future
failure of justice, an act was passed
in the same session during which
Lord Cardigan was tried, (statute 4th
and 5th Vict. c. 22, 2d June 1841,)
asserting that "doubts had been entertained"
whether, notwithstanding
the statute of 1827, that of 1547
"might not, for some purposes, still
remain in force." The statute of 1841
had but one section, which declared
the 1st Edward VI. c. 12, § 14, to be
"thenceforth repealed, and utterly
void, and no longer of any effect;"
and enacted that "every lord of parliament,
or peer of the realm having
place in parliament, against whom
any indictment for felony may be
found, shall plead to such indictment,
and shall, upon conviction, be liable
to the same punishment as any other
of her Majesty's subjects are, or may
be, liable upon conviction for such
felony."
Here stands the law of duelling,
alike for lord and commoner, whom we
trust we have satisfied of the really
alarming responsibilities entailed upon
those who may choose to perpetuate
these outrages upon the laws of their
country.
In closing this paper, and taking
leave of a painfully interesting topic,
we would fain express a hope and
a belief, that a better feeling on
the subject of duelling is gaining
ground, in this country, than has
existed for centuries. There is growing
up a spirit of dignified submission
to the law of man, based as it is on
the law of God, which totally prohibits
these unholy exhibitions of
murderous malevolence. A truer
estimate is formed of the nature of
HONOUR—one which forbids alike the
offering and the resenting of insults.
The following noble paragraph, recently
introduced into the Articles of
War, is worthy of being written in
letters of gold—of being exhibited
(with suitable variation of expression)
in every place of public resort,
and in every possible manner brought
under the notice of men of the world,
and the youths in our public schools:—
"We hereby declare our approbation,"
says her most gracious Majesty,[63]
"of the conduct of all those
who, having had the misfortune of
giving offence to, or of injuring, or of
insulting others, shall frankly explain,
apologise, or offer redress for the
same; or who, having had the misfortune
of receiving offence, injury, or
insult from another, shall cordially
accept frank explanation, apology, or
redress for the same; or who, if such
explanations, apology, or redress, are
refused to be made or accepted, and
the friends of the parties shall have
failed to adjust the difference, shall
intrust the matter to be dealt with by
the commanding officer of the regiment
or detachment, fort or garrison; and
we accordingly acquit of disgrace, or
opinion of disadvantage, all officers
who, being willing to make or accept
such redress, refuse to accept challenges,
as they will only have acted as
is suitable to the character of honourable
men, and have done their duty as
good soldiers, who subject themselves
to discipline."
There speaks the Queen of England!
The following is the stringent
Article of War (Art. 101) on the subject
of duelling:—
"Every officer who shall give,
send, convey, or promote a challenge;
or who shall accept any challenge to
fight a duel with another officer; or who
shall assist as a second at a duel; or
who, being privy to an intention to
fight a duel, shall not take active
measures to prevent such duel; or
who shall upbraid another for refusing
or for not giving a challenge; or who
shall reject, or advise the rejection of,
a reasonable proposition made for the
honourable adjustment of a difference,
shall be liable, if convicted by a general
court-martial, to be cashiered, or
suffer such other punishment as the
court may award.
"In the event of an officer being
brought to a court-martial for having
assisted as a second in a duel, if it
shall appear that such officer had
strenuously exerted himself to effect
an adjustment of the difference, on
terms consistent with the honour of
both the parties, and shall have failed,
through the unwillingness of the
adverse parties to accept terms of
honourable accommodation, then our
will and pleasure is, that such officer
shall suffer such punishment, other
than cashiering, as the court may
award."