Various

[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.

Bon 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 bon 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 bon 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 subpoenaed 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."