Part 99

interval as that their passion may have subsided, or if from circumstances in the case, it may be reasonably presumed that their judgment had controlled the first transports, if death then ensue, it is murder. The same rule will hold if, after a quarrel, the parties fall into other conversation or discussion, and remain so engaged, so as to afford reasonable time for cooling,' Blackstone, in his fourth volume, p. 199, thus writes, when describing and defining the crime of murder:--'This takes in the case of deliberate duelling, where both

## parties meet avowedly with an intent to murder: thinking it their duty,

as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power, either divine or human, but in direct contradiction to the laws both of God and man: and, therefore, the law has justly fixed the crime and punishment of murder on them, and on their seconds also.' Those are the highest authorities known to the law of England, and they are uniformly followed by the English judges. Such being the definition of murder constantly given from the bench on trials for life and death, ought not your lordship to suppose that the legislature has made use of the word 'murder' in the same sense, and that when we find in Lord Ellenborough's Act, in that of the 9th of George IV., and in that of the 1st of Victoria, the expression 'with intent to commit murder,' it means with intent to do that which, if accomplished, would amount in law to the crime of murder. The legislature, and your lordships as part of it, must be taken to have well known what was the legal definition of murder, and to have used the expression, in a judicial act, in its legal sense. However painful the consideration may be, does it not necessarily follow that the first count of the indictment is completely proved? The circumstances clearly show that the Earl of Cardigan and Captain Tuckett met by appointment. The arrangements being completed, they fired twice; the Earl of Cardigan took deliberate aim, fired, and wounded his antagonist. He must be supposed to have intended that which he did. If, unfortunately, death had ensued, would not this have been a case of murder? The only supposition by which the case could be reduced to one of manslaughter would be, that the Earl of Cardigan and Captain Tuckett met casually on Wimbledon Common--that they suddenly quarrelled, and, whilst their blood was hot, fought; but your lordships will hardly strain the facts so far as to say this was a casual meeting, when you see that each party was accompanied by a second, and supplied with a brace of pistols, and that the whole affair was conducted according to the forms and solemnities observed when a deliberate duel is fought. With respect to the second count I know not what defence can possibly be suggested, because even if it had been a casual meeting, and if death had ensued under circumstances which would have amounted only to manslaughter, that would be no defence to the second and third counts. I presume to assert that on the authority of a case which came before the fifteen judges of England, and which was decided, two most learned judges doubting on the occasion, but not dissenting from the decision. The two judges who doubted were his grace the high steward, who presides over your lordships' proceedings on this occasion, and Mr. Justice Littledale. It would not become me to say anything of the learning and ability of the noble high steward in his presence, but with respect to Mr. Justice Littledale, I will say that there never was a more learned or acute judge than he was, whose retirement from the bench the bar have lately witnessed with reluctance and regret. I therefore attach the greatest weight even to doubts proceeding from such a quarter; but the thirteen other judges entertained no doubt upon that occasion, and came to the conclusion that, upon the 4th section of the act upon which the present indictment was framed, it is not necessary for a conviction that if death ensued the offence should amount to murder. The case to which I refer is to be found in the second volume of Moody's 'Crown Cases,' page 40. It was a case tried before Mr. Baron Parke, on the Norfolk spring circuit, 1838; and I will read what is material to your lordships: The case first recites the 9th of George IV., sec. 11 and 12, and the preamble, and enacting part of the 1st of Victoria, points out the circumstance that the latter act does not contain the same proviso as is found in those of Lords Ellenborough and Lansdowne, and then submits this question for the opinion of the judges: 'Is it now a defence to an indictment for wounding with intent to maim, &c., that, if death had ensued, the offence would not have been murder, but manslaughter?' Your lordships will observe that shooting at with intent to maim or disable, and stabbing with the same intent, are in the same category of subjects, and must be attended with all the same rules and incidents. This opinion will therefore have the same authority as if the question submitted by Barons Parke and Bolland had been whether, on an indictment for shooting at with intent to disable, it would be a defence that if death had ensued the offence would not have amounted to murder. The opinion of the judges was as follows:--'At a meeting of the judges in Easter term 1838, they all thought it to be no defence to such an indictment, that if death had ensued, the offence would not have been murder, but manslaughter, except the Lord Chief Justice Lord Denman, and Mr. Justice Littledale.' The Lord Chief Justice and Mr. Justice Littledale, it will be observed, did not dissent, they only doubted; but the other thirteen judges seem clearly to hold that the plea set forth does not now amount to any defence; and I apprehend that the judges probably reasoned in this manner--the intention of parliament being to make offences, before capital, punishable only by transportation, the quality of the offence is not precisely the same as before, and that if a person maims another, or disables him, or does him some grievous bodily harm, even though it were an unpremeditated act, arising out of a sudden scuffle, it should nevertheless be an offence under this act, which gives a discretionary power to the court before whom the offence is tried, either to transport for fifteen years, or to imprison for a single hour. The judges, doubtless, considering this discretionary power, and the omission of the proviso which was in the preceding acts--seeing that the capital punishment was abolished, came to the conclusion that the offence was committed, even though if death had ensued, it would not, under the circumstances, have amounted to the crime of murder. Looking at the authority of this case, I know not what defence can possibly be urged with respect to the second and third counts. I rejoice, my lords, to think that the noble prisoner will have an advantage upon this occasion which has never before been enjoyed by any peer who has been tried at your lordships bar--an advantage which neither Lord Lovat, Lord Ferrers, nor the Duchess of Kingston, could claim. He will have the advantage of the assistance of my most able, ingenious, zealous, and learned friend, Sir William Follett, who will address your lordships in his behalf on the facts and merits of the case. This privilege is secured to the noble prisoner under the admirable law your lordships passed a few years ago, by which, in all cases, the party has the advantage of addressing, through his counsel, the tribunal which is to determine on his guilt or innocence. Notwithstanding, however, all the learning, ability, and zeal of my honourable and learned friend, I know not how he will be able to persuade your lordships to acquit his noble client on any one count of this indictment. My learned friend will not ask your lordships--and if he did, it would be in vain--to forget the law by which you are bound. Captain Douglas stands on his trial before another tribunal, and his trial has been postponed by the judges on the express ground that the same case is first to be tried by the highest criminal court known in the empire. Your lordships are to lay down the law by which all inferior courts are to be bound. I beg leave, on this subject, to read the words made use of at this bar by one of my most distinguished predecessors, who afterwards for many years presided with great dignity on the woolsack--I mean Lord Thurlow. When Lord Thurlow was Attorney-general, in addressing this house, in the case of the Duchess of Kingston, he made use of this language:--'I do desire to press this upon your lordships as an universal maxim; no more dangerous idea can creep into the mind of a judge than the imagination that he is wiser than the law. I confine this to no judge, whatever may be his denomination, but extend it to all. And speaking at the bar of an English court of justice, I make sure of your lordships' approbation when I comprise even your lordships sitting in Westminster Hall. It is a grievous example to other judges. If your lordships assume this, sitting in judgment, why not the King's Bench? why not commissioners of oyer and terminer? if they do so, why not the quarter sessions? Ingenious men may strain the law very far, but to pervert it was to new-model it--the genius of our constitution says, judges have no such authority, nor shall presume to exercise it.' I conclude, my lords, with the respectful expression of my conviction, that your lordships' judgment in this case, whatever it may be, will be according to truth and the justice of the case, and that you will preserve the high reputation in the exercise of judicial functions which has so long been enjoyed by your lordships and your ancestors."

The evidence of the various persons who had witnessed the transaction of the duel, and which supported the statement made by the learned Attorney-general, was then produced; but, at the close of the case, it was objected by Sir William Follett, on behalf of the Earl of Cardigan, that there was no evidence to show that the person against whom the shot was discharged was Mr. Harvey Garnett Phipps Tuckett. The card of "Mr. Harvey Tuckett" had been put in; but this might be quite another person from the individual pointed to by the indictment.

The Attorney-general was heard on the other side; but, after a short deliberation, the lord high steward announced that the evidence which fixed the identity of the individual was insufficient; and the peers thereupon declared the noble defendant "Not guilty."

At the Central Criminal Court, on Wednesday the 3rd of March, Captain Douglas was put upon his trial, before Mr. Justice Williams, upon the indictment which had been found against him; but the jury, in the absence of positive evidence to identify Mr. Tuckett, came to the same conclusion as that which had been arrived at by the House of Peers; and a verdict of acquittal was returned.

HARRISON FLATHER.

IMPRISONED FOR LARCENY.

We cannot refrain from presenting to the notice of our readers the circumstances of this very singular case.

At the assizes at Carlisle, on the 23rd of February 1841, Harrison Flather was indicted for stealing five sovereigns, a purse, and a pair of ear-rings, the property of Morris Davis.

It appeared from the opening statement of the counsel for the prosecution, that the prosecutor, Mr. Morris Davis, was a Pole, and had been for some time resident in Carlisle, where he carried on business as a furrier. The prisoner was writing-master to the grammar-school, and was on this account probably selected by the prosecutor to give him lessons in the English language, and especially in writing and accounts. In the course of this employment a friendship sprung up between them; and Mr. Flather was finally made the confidant of the prosecutor in a matter of great delicacy, and was employed by him to conduct a correspondence with a young lady, to whom the prosecutor had become attached. Two letters were addressed by Mr. Davis to Miss Moore, the lady in question, the prisoner Flather being employed as amanuensis. Miss Moore was absent from Carlisle when these letters were sent to her residence; but immediately on her return she enclosed them to the prosecutor, and there, so far as she was concerned, all correspondence ceased. It appeared, however, that letters continued to be written in her name to the prosecutor, which he received through the Carlisle post. In these, reasons flattering to Mr. Davis were given for a renewal of the correspondence. Mr. Flather continued in Mr. Davis's confidence, read and explained the letters when received, wrote the answers, and to his hands the delivery of them was confided. Early in the correspondence, however, a circumstance occurred which, had Mr. Davis been better acquainted with the feelings and manners of English women, would certainly have awakened his suspicions; this was an application for money, specifying the precise sum which the lady wanted. Many of these applications were made, and always complied with. Among others was one on the 19th of November 1840, which formed the subject of the present charge. An application was made for five guineas, and, in replying to it, Mr. Davis took the opportunity of further inclosing a purse and a pair of jet ear-rings, which he had purchased for the purpose. One of the shillings enclosed was somewhat remarkable, being marked with the letter "A" on the head of the impression. About a month afterwards an inquiry took place, and it then appeared that Miss Moore knew nothing whatever of this pretended correspondence, and had never received any letter or communication from Mr. Davis whatsoever, except the two first, which she had promptly returned. The prisoner was apprehended; his house was searched; and there was found the identical shilling which Mr. Davis had so inclosed to Miss Moore some time before, and committed, as he had committed the other inclosures, to the hands of the prisoner.

To support this statement in evidence, Mr. Morris Davis and other witnesses were called. The simple Pole detailed the circumstances under which he had been so impudently bamboozled by the prisoner with much ingenuousness. He had set great store upon the supposed effusions of Miss Moore, which amounted to between twenty and thirty in number, and kept them tied up in a bundle in his parlour. On the Friday before the Christmas-day preceding the prosecution, however, he quitted his sitting-room, while the prisoner was there, for a short time, and, on his looking for the love-letters a few days afterwards, he found that they were gone. The letters were usually couched in the most affectionate terms, commencing "My dear, dear love," and terminating, "Your ever affectionate betrothed wife, E. Moore;" but the greater part of them contained requests for the loan of money, the amount of the sum demanded varying from 2_l._ to 5_l._ He invariably complied with the demands made, and advanced in all no less than 85_l._ Flather always took away the letters; and the answers either came by his hands or through the post. He never had any suspicion that anything was wrong until he learned that Miss Moore was at Liverpool at the same time that he supposed she was writing to him from her residence at Carlisle.

On his cross-examination, Davis admitted that he was a person of inferior education, and that he was scarcely able to read or write his own or any other language. He had paid Flather a guinea for the instruction which he received from him, and a guinea for the love-letters; but the schoolmaster frequently took his meals at his house. Flather had also kept his books and had written business-letters; and since this prosecution an attorney had applied for the amount of an alleged claim he had upon him in this respect, which, however, he had not paid. In reference to the love affair the witness said, that he knew nothing of Miss Moore except that she had dealt at his shop, and that she had never personally favoured his advances. After the first two letters had been returned, he asked her whether she had sent them back, and she answered in the affirmative. He replied that he was satisfied; but subsequently he was induced to recommence the correspondence, upon receiving a note, apparently from her, stating that she had been compelled to discourage his addresses in obedience to the wishes of her friends, and that she was desirous of maintaining a communication with him. In subsequent letters she made appointments to meet him, which, however, were invariably postponed; and she even went so far as to speak of running away with him to Gretna-Green, for which purpose he sent her 5_l._ in obedience to her request; but this scheme was also abandoned.

Miss Moore, of Paternoster-row, Carlisle, was called to prove that she had never written letters to the prosecutor, and had never received any from him through the medium of the prisoner; and other witnesses spoke to the facts opened by the prosecuting counsel, as well as to the additional circumstance that green-edged paper, like that on which Miss Moore's supposed letters had been written, had been found in the possession of the prisoner.

The jury found the prisoner "Guilty." He was then tried upon a second indictment, charging him with a like offence in reference to some of the other sums which he had obtained of the prosecutor, and a similar verdict was returned.

Mr. Justice Maule immediately sentenced him to be confined in the House of Correction for sixteen months.

RICHARD MOORE.

TRANSPORTED FOR FORGERY.

At the Central Criminal Court, on Saturday the 6th of February 1841, Richard Moore, aged thirty, was indicted for feloniously uttering and putting off a forged note, purporting to be a genuine note of the Salop bank, for 5_l._ well knowing the same to be forged, with intent to defraud Messrs. Glyn, Halifax, Mills and Co., the bankers, of Lombard-street.

The circumstances which transpired in the course of the investigation were of a remarkable character. Mr. Moore was a person of gentlemanly appearance, and was a member of a highly respectable Irish family, possessed of good means. The unfortunate young man when he came of age received a property sufficient to have placed him in a situation above the common rank. Naturally wild and unsettled in his disposition, he soon became involved in all the gaieties of the metropolis of his native country; but he ere long changed the scene of his actions to London. Here he entered even more largely into the amusements of life; and few years had elapsed before he had dissipated the greater part of his possessions. The gambling-table had served in a great measure to produce this unfortunate effect, and to the gambling-table he resorted for the purpose of renewing those means of which it had already deprived him. Every effort served but to plunge him deeper into difficulty; and at length he was driven in despair to a method of retrieving his lost fortunes which rendered him open to a prosecution for putting off forged notes.

The circumstances proved in reference to the particular case upon which he was first tried were these:--On the evening of the 31st of January, the prisoner, accompanied by a gentleman who was in the habit of visiting the billiard-rooms of a person named Cooke, at No. 358, Strand, entered those rooms, and after a short time, sat down to play loo with a party. He played throughout the evening with varied successes, paying his first losses with what appeared to be genuine country bank-notes; but when he rose to quit the room, he was in debt to Cooke, the keeper of the house, in the sum of 30_l._ which he had advanced to him. He gave his I.O.U. for the amount, stating his address to be "Wright's Hotel," Strand, and went away. In the course of the evening Cooke had given change for nine of the notes which had been paid by the prisoner; and in the morning he sent his wife into the city to procure cash for them at the various banking-houses at which they purported to be payable. She received the money for some of them; but at length, upon her presenting a note at Messrs. Glynn and Co.'s, she was detained. She immediately explained what she knew of the transaction; and her husband having been sent for, he confirmed her statement, and they were liberated. On that evening a note was taken to Mr. Cooke by the porter of the Hotel Fricour, Leicester-square, which was written by the prisoner, in which he expressed his regret at having disposed of notes which he had discovered were forged; but he assured Mr. Cooke of his desire at some future time to repay him what he had lost, saying, that he had received the notes on the day before from a school-fellow in payment of a bet upon a race which he had won some time before. Cooke, accompanied by Forrester, the city officer, who had been engaged to trace the prisoner, immediately proceeded to the hotel from which the letter was dated, and found the prisoner in the coffee-room. They directly took him into custody, and he made no effort to escape or to deny the guilt imputed to him.

Subsequent inquiries proved that the notes which the prisoner had put off were genuine impressions of the plates prepared for the various banking companies, by whom they purported to have been issued, but all that part of them which gave them the character of genuine instruments, including the signature of the director, was forged. The exact means by which these impressions had come into the possession of the prisoner was a mystery; but upon application to Messrs. Perkins and Co. of Fleet-street, who had prepared the plates, it was elicited that it was their custom to send out to the various country banking firms proof impressions of the plates which they had engraved as specimens of their work. The notes uttered by the prisoner were of this character, and they bore upon them evidence of the employment of great ingenuity in their preparation. The specimen notes were invariably issued, pasted upon card-board of considerable thickness; it appeared that the notes in question had been removed from the card-board, but being of insufficient substance, by reason of their being impressions on India paper, a piece of paper of the ordinary quality used in the genuine notes had been placed upon the backs of them so as to give them all the appearance of the notes in common circulation. The signatures appended to them did not appear to have been copied from any of the original notes; and in some instances, indeed, names had been employed entirely dissimilar to those of any of the directors of the bank.