Part 98

The attorney-general addressed their lordships as follows:--"I have the honour to attend your lordships on this occasion as attorney-general for her majesty, to lay before you the circumstances of the case upon which you will be called to pronounce judgment, without any object or wish on my part, except that I may humbly assist your lordships in coming to a right conclusion upon it, according to its merits. An indictment has been found against a peer of the realm by a grand jury of his country, charging him with a felony, the punishment of which is transportation or imprisonment. That indictment has been removed before your lordships at the request of the noble prisoner, and, I must say, most properly removed, for an inferior court had no jurisdiction to try him. The charge is, upon the face of it, of a most serious character, and it would not have been satisfactory if it had gone off without any inquiry. The policeman, however, who was bound over to prosecute, fulfilled his recognizances by appearing at the Central Criminal Court, and preferring the indictment. It is possible that in the course of this trial, questions of great magnitude on the construction of acts of Parliament or respecting the privileges of the peerage may arise, which it is of great importance to this house, to the crown, and to the community, should be deliberately discussed. According to all the precedents that can be found, whenever a peer has been tried in Parliament, the prosecution has been conducted by the law-officers of the crown. Fortunately, we have no living memory on this subject. It is now sixty-four years since any proceeding of this sort has taken place, and I am rejoiced to think that on the present occasion the charge against the noble prisoner at the bar does not imply any degree of moral turpitude, and that, if he should be found guilty, his conviction will reflect no discredit on the illustrious order to which he belongs. At the same time, it clearly appears to me that the noble lord at the bar has been guilty of infringing the statute law of the realm, which this and all other courts of justice are bound to respect and enforce. Your lordships are not sitting as a court of honour, or as a branch of the legislature; your lordships are sitting here as a court bound by the rules of law, and under a sanction as sacred as that of an oath. The indictment against the Earl of Cardigan is framed upon an act of Parliament which passed in the first year of the reign of her present majesty. It charges the noble defendant with having shot at Captain Harvey Tuckett, with the several intents set forth in the indictment. I think I shall best discharge my duty to your lordships by presenting to you a brief history of the law on this subject. By the common law of England, personal violence, when death did not ensue from it, amounted to a mere misdemeanour, and if the wounded party did not die within a year and a day, no felony was committed. The first act which created a felony where death did not ensue was the 5th of Henry IV. By that act certain personal injuries, without death, were made felonies without benefit of clergy. Then came the Coventry Act, the 22nd and 23rd of Charles II., whereby any person lying in wait for and wounding another with intent to maim or disfigure, was guilty of felony, without benefit of clergy. Under both these acts no offence was committed unless a wound was inflicted, and it was not until the 9th George I., commonly called the Black Act, that an attempt, where no wound was given, was made a felony. By that act it was enacted, that if any person should wilfully and maliciously shoot at any person in any dwelling-house or other place, he should be guilty of felony without benefit of clergy, although no wound were inflicted: but it was determined upon that statute--and in fairness to the noble prisoner it is my duty to remind your lordships of it--that unless the case was one in which, if death had ensued, it would have amounted to murder, no offence was committed under the statute. That was determined in the case of the King and Gastineaux, which is reported in the first volume of Leach's 'Crown Cases,' page 417. In that case the law was thus laid down:--'The offence charged in this indictment is described by the statute, in which it is framed, in very few and very clear words, which are--'That if any person or persons shall wilfully and maliciously shoot at any person in any dwelling-house or other place, he shall be adjudged guilty of felony, without benefit of clergy.' The word maliciously is made to constitute the very essence of this crime; no act of shooting, therefore, will amount, under this statute, to a capital offence, unless it be accompanied with such circumstances as, in construction of law, would have amounted to the crime of murder if death had ensued from such act. This proposition most clearly and unavoidably results from the legal interpretation of the word maliciously, as applied to this subject; for there is no species of homicide in which malice forms any ingredient but that of murder; and it follows, that neither an accidental shooting, nor a shooting in the transport of passion, excited by such a degree of provocation as will reduce homicide to the offence of manslaughter, is within the meaning of the statute; for from both of these cases the law excludes every idea of malice.' The law continued on this footing until an act was passed in the 43rd of George III., which is commonly called Lord Ellenborough's Act. This act did not repeal the Black Act, but greatly extended its operation, and, among other enactments, contains this:--'That if any person or persons shall wilfully, maliciously, and unlawfully shoot at any of his majesty's subjects, or shall wilfully, maliciously, and unlawfully present, point, or level any kind of loaded fire-arms at any of his majesty's subjects, and attempt, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons, or shall wilfully, maliciously, or unlawfully stab or cut any of his majesty's subjects, with intent in so doing, or by means thereof, to murder, or rob, or to maim, disfigure, or disable such his majesty's subject or subjects, or with intent to do some other grievous bodily harm to such his majesty's subject or subjects, he shall be guilty of felony, without benefit of clergy.' This act, however, has the following express proviso:--'Provided always, that in case it shall appear on the trial of any person or persons indicted for the wilfully, maliciously, and unlawfully shooting at any of his majesty's subjects, or for wilfully, maliciously, and unlawfully presenting, pointing, or levelling any kind of loaded fire-arms at any of his majesty's subjects, and attempting, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons, or for the wilfully, maliciously, and unlawfully stabbing or cutting any of his majesty's subjects, with such intent as aforesaid, that such acts of stabbing or cutting were committed under such circumstances as that if death had ensued therefrom the same would not in law have amounted to the crime of murder; then and in every such case the person or persons so indicted shall be deemed and taken to be not guilty of the felonies whereof they shall be so indicted, but be thereof acquitted.' Your lordships will observe that, by this act, it is made a capital offence to shoot at with intent to murder, or maim, or disfigure, or do grievous bodily harm, but the offence came within the statute only when, if death would have ensued, it would, under the circumstances, have amounted to the crime of murder. Next came the statute of the 9th of George IV. cap. 31, which, I believe, is generally called Lord Lansdowne's Act, that noble lord having introduced it into Parliament when he was Secretary for the Home Department. This is an act for consolidating and amending the statutes relating to offences against the person. It repeals the Black Act, and Lord Ellenborough's Act; but it contains provisions similar to those of the latter. The 11th section enacts:--"That if any person unlawfully and maliciously shall administer or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlawfully and maliciously attempt to drown, suffocate, or strangle any person, or shall unlawfully and maliciously shoot at any person, or shall, by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to murder such person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon." By the 12th section it is enacted:--"That if any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable such person, or do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of the party so offending, or of any of his accomplices, for any offence for which he or they may respectively be liable by law to be apprehended or detained, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall suffer death as a felon." This act contains the same proviso as was inserted in Lord Ellenborough's; but still it remained a capital offence to shoot at, with intent to murder, or maim, or disfigure, or do bodily harm, although no wound was inflicted. Things remained on this footing till the act was passed on which the present indictment is framed. That act, which received the royal assent on the 17th of July 1837, is the 1st of Victoria, cap. 85, and is entitled "An Act to amend the laws relating to offences against the Person." The preamble recites that it is expedient to repeal so much of the act of the 9th George IV., and of the 10th of the same reign, as relates to any person who shall unlawfully and maliciously shoot at any person, or who shall, by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person, or who shall unlawfully and maliciously stab, cut, or wound any person, &c. And by the second and third sections it is enacted:--"That whosoever shall administer to or cause to be taken by any person any poison or other destructive thing, or shall stab, cut, or wound any person, or shall by any means whatsoever cause to any person any bodily injury dangerous to life, with intent in any of the cases aforesaid to commit murder, shall be guilty of felony, and being convicted thereof, shall suffer death. And be it enacted, that whosoever shall attempt to administer to any person any poison or other destructive thing, or shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall attempt to drown, suffocate, or strangle any person, with intent in any of the cases aforesaid to commit the crime of murder, shall, although no bodily injury shall be effected, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." Therefore, to shoot at a person and inflict a wound dangerous to life, remains by this act a capital offence; but the act of shooting, when no wound is inflicted, is no longer a capital offence, and remains a felony punishable only with transportation or imprisonment. The fourth section enacts:--"That whosoever unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall stab, cut, or wound any person, with intent in any of the cases aforesaid to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." This act contains no such proviso as is found in Lord Ellenborough's Act, and that of the 9th of George IV., a circumstance which it is material your lordships should bear in mind when you come to deliberate on your judgment with respect to the second and third counts of the indictment. I am happy to say that the indictment contains no count on the capital charge. A wound was inflicted; but the prosecutor has very properly restricted the charge to firing at with intent, without alleging that any wound dangerous to life was inflicted. The first count charges, that the Earl of Cardigan shot at Captain Tuckett with intent, in the language of the law, to commit the crime of murder. The second count charges his lordship with the same act with intent to maim, disfigure, or disable Captain Tuckett, and the third count charges him with the same act with intent to do Captain Tuckett some grievous bodily harm. It will be for your lordships to say whether, upon the facts which I shall lay before you, and which I am instructed to say can be clearly made out in evidence, each and every one of the counts must not be considered as fully established. The substance of the evidence in this case is, that on the 12th of September last the Earl of Cardigan fought a duel with pistols on Wimbledon Common with Captain Tuckett, and wounded him at the second exchange of shots. It will appear that about five o'clock on the afternoon of that day, two carriages, coming in opposite directions, were seen to arrive on Wimbledon Common, and a party of gentlemen alighted from each. It was evident to those who observed what was going on, that a duel was in contemplation. The parties went to a part of Wimbledon Common between the road that leads to Lord Spencer's park and a windmill. The seconds made the usual preparations; the principals, the Earl of Cardigan and Captain Tuckett, were placed at a distance of about twelve yards; they exchanged shots without effect; they received from their seconds each another pistol; they again fired, and Captain Tuckett was wounded by the Earl of Cardigan. Mr. Dann, who occupied the mill, and his son, and Sir James Anderson, a surgeon, who was standing close by, went up immediately. The wound was examined: it bled freely but most fortunately--and I am sure that no one rejoices at the circumstance more than the noble prisoner at the bar--it proved to be not of a dangerous nature. Mr. Dann, the miller, who was a constable, took the whole party into custody. The wound was again formally examined, and Sir J. Anderson pressed that he might be set at liberty and allowed to take Captain Tuckett to his house in London, which was immediately acceded to upon Captain Tuckett promising to appear before the magistrates when he was recovered. The miller retained the Earl of Cardigan, and his second, Captain Douglas, as well as Captain Wainwright, the second of Captain Tuckett. The Earl of Cardigan had still a pistol in his hand when the miller approached him; and two cases of pistols were still on the ground, one of which bore the crest of the noble earl, and was claimed by him as his property. The parties in custody were conducted before the magistrates at Wandsworth, when the Earl of Cardigan made use of these words:--'I have fought a duel; I have hit my man I believe, but not seriously.' Then pointing to Captain Douglas, he said, 'This gentleman is also a prisoner and my second.' He was asked whether the person he had hit was Captain Reynolds, upon which he replied, 'Do you think I would condescend to fight with one of my own officers?' His lordship was compelled by the magistrates to enter into recognizances to appear when called upon, which he did from time to time, till at last the matter was carried to the Central Criminal Court. The witnesses I shall call before your lordships are, the miller, his wife, and son, and the policeman named Busaine, who was at the station-house, and will speak to the declarations made by the Earl of Cardigan. I can offer no evidence respecting the origin of the quarrel. Captain Douglas is to take his trial for his share in the transaction; he, as your lordships will observe, is jointly indicted with the Earl of Cardigan. A bill was also preferred against Captains Tuckett and Wainwright, but the grand jury have thrown it out. Those gentlemen, however, are still liable to be tried, and it would not be decorous to summon them before your lordships to give evidence which might afterwards be turned against themselves, probably, when they would be on trial for their lives. I shall call Sir J. Anderson, who has hitherto spoken fairly on the subject, and, I suppose, will now make no objection to state all that fell within his observation. Upon these facts it will be for your lordships to say whether all the counts of the indictment are not fully proved and supported. With respect to the first count, it is painful to use the language which it necessarily recites; but it will be for your lordships to say whether, in point of law, the noble prisoner at the bar did not shoot at Captain Tuckett with intent to commit the crime therein mentioned. I at once acquit the Earl of Cardigan of anything unfair in the conduct of this duel. Something has been said respecting the noble earl's pistols having rifle barrels, whilst those of Captain Tuckett had not such barrels. However that may have been, I have the most perfect conviction that nothing but what was fair and honourable was intended, and that the Earl of Cardigan most probably imagined, when he carried his pistols to the field with him, that one of them would be directed against his own person. Nor do I suppose that there was any grudge--any personal animosity--any rancour or malignity on the part of the noble earl towards his antagonist. Whether the noble earl gave or received the invitation to go out, I believe his only object was to preserve his reputation, and maintain his station in society as an officer and a gentleman. His lordship is in the army--he is Lieutenant-Colonel of the 11th Hussars, and no doubt he on this occasion only complied with what he considered to be necessary to be done according to the usages of society. But if death had ensued under these circumstances it would have been a great calamity; and although moralists of high name have excused and even defended the practice of duelling, your lordships must consider what, in this respect, is the law of England. There can be no doubt that by the law of England parties who go out deliberately to fight a duel, if death ensues, are guilty of murder. It will be my duty to state to your lordships a few of the leading authorities on this point. I will mention the highest authorities known to the law of England--Hale, Hawkins, Foster, and Blackstone. Hale, in his 'Pleas of the Crown,' says, 'If A and B suddenly fall out, and they presently agree to fight in a field, and run and fetch their weapons and go to the field and fight, and A kills B, this is not murder, but homicide, for it is but a continuance of the sudden falling out, and the blood was never cooled; but if there were deliberation, as that they went on the next day--nay, though it was the same day, if there was such a competent distance of time that in common presumption they had time of deliberation--then it is murder.' In the 1st vol. of 'Hawkins' Pleas of the Crown,' cap. 13, sec. 21, p. 96, the law on this subject is thus laid down:--'It seems agreed, that whenever two persons in cold blood meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was struck first by the deceased, or that he had often declined to meet him, and was prevailed upon to do it by his importunity, or that it was his intent only to vindicate his reputation--or that he meant not to kill, but to disarm his adversary--for since he deliberately engaged in an act highly unlawful, in defiance of the laws, he must at his peril abide the consequence thereof.' 'And from hence it follows, that if two persons quarrel over night, and appoint to fight next day--or quarrel in the morning, and agree to fight in the afternoon, or such a considerable time after by which in common intendment it must be presumed that the blood was cooled, and then they meet and fight, and one kills the other, he is guilty of murder.' ... 'And whenever it appears from the whole circumstances, that who kills another on a sudden quarrel, was master of his temper at the time, he is guilty of murder, as if after the quarrel he falls into a discourse, and talks calmly thereon, or perhaps if he have so much consideration as to say that the place wherein the quarrel happens is not convenient for fighting, or that if he should fight at present he should have the disadvantage by reason of the height of his shoes.' The last observation refers to Lord Morley's case, where though a case of manslaughter, it was a circumstance strongly pressed to show that the offence was one of deeper dye. Sir M. Foster, in his discourse on homicide, says:--'Upon this principle deliberate duelling, if death ensues, is, in the eye of the law, murder, because it is generally founded on a feeling of revenge. And if a person be drawn into a duel, not from motives so criminal, but merely for the protection of what he calls his honour, that is no excuse for those who, in seeking to destroy another, act in defiance of all laws human and divine. But if, on a sudden quarrel, parties presently fetch their weapons, and go into a field and fight, and one of them is killed, that is manslaughter, because it is presumed that their blood never cooled. Otherwise, if the

## parties appoint the next day to meet, or even the same day, at such an