The History of Duelling. Vol. 2 (of 2)

by J. G. Millingen

October 14.

Lieutenant Tuckett being sufficiently recovered to appear before the magistrates of the Wandsworth Court, a special session was this day held, for the purpose of entering into his examination, on the charge of shooting at the Earl of Cardigan, with intent to murder him. The former evidence having been read over, he was fully committed to take his trial upon the charge of felony, and ordered to enter into his own recognizance in the sum of 1000l., and two sureties in 500l. each.

October 21.

At the session of the Central Criminal Court, Mr. Adolphus, in behalf of the Earl of Cardigan, this day begged leave to ask the judges on the bench a question, before their lordships proceeded to the business of the day. He found, he said, that on the list of causes to be tried, there appeared against the seventh, the name of James Thomas Brudenell, Earl of Cardigan. Now, Lord Cardigan, being a peer of the realm, could not be tried in that court. He therefore submitted, that the name of the noble Earl should be taken from the list. Mr. Justice Bosanquet and Mr. Justice Erskine agreed, that the course would be to remove the indictment, by a writ of certiorari, into the Court of the Lord High Steward, and that it would be very inconvenient to try the case of Captain Douglas before that of Lord Cardigan. It was finally arranged, that the recognizances of all the parties should be respited until the next session.

February 16.

TRIAL OF THE EARL OF CARDIGAN, BEFORE THE HOUSE

OF LORDS, IN FULL PARLIAMENT, FOR FELONY.

A little before eleven o’clock. Lord Denman, in the absence of the Lord Chancellor, on account of indisposition, entered the House of Lords in his robes, preceded by the Sergeant with the mace, Black Rod carrying the Lord High Steward’s staff, and Garter with the sceptre, and took his seat on the woolsack as Lord Speaker. After prayers the roll of peers was called over, beginning with the junior Baron; after which, the Clerk of the Crown in Chancery delivered the commission to the Lord Speaker, who gave it the Deputy Clerk of the Crown in the Queen’s Bench to read; which he did, the peers standing. The commission authorised their lordships to proceed with the trial of James Thomas Earl of Cardigan, on an indictment found against him for felony, which had been removed before them by certiorari, and appointed Lord Denman Lord High Steward. After the writ of certiorari and the record of the indictment had been read, proclamation was made for the Yeoman Usher to bring the Earl of Cardigan to the bar. On approaching it, he made three reverences, and knelt till directed by the Lord High Steward to rise. He then made three reverences, one to the Lord High Steward, and one to the peers on each side: after which, he was conducted to the stool provided for him within the bar, near to his counsel. The Lord High Steward informed him, that he was charged with the offence of firing with a loaded pistol at Harvey Garnett Phipps Tuckett, with intent to murder him; in a second count with firing with intent to maim and disable him; and in a third count with firing with intent to do him some grievous bodily harm. Being then arraigned by the Deputy Clerk of the Crown, and asked whether he was guilty of the said felony, and how he would be tried, the Earl answered, “By my Peers.” The Attorney-General and Mr. Waddington appeared as counsel for the prosecution; and Sir William Follett, Mr. sergeant Wrangham, and Mr. Adolphus, for the Earl of Cardigan. Mr. Waddington having opened the indictment.

The Attorney-General then addressed their lordships as follows:—“I have the honour to attend your lordships on this occasion as Attorney-General for her Majesty, to lay before you the circumstances of the case upon which you will be called to pronounce judgment, without any object or wish on my part, except that I may humbly assist your lordships in coming to a right conclusion upon it, according to its merits. An indictment has been found against a peer of the realm by a grand jury of the country, charging him with a felony, the punishment of which is transportation or imprisonment. That indictment has been removed before your lordships, at the request of the noble prisoner; and, I must say, most properly removed; for an inferior court had no jurisdiction to try him. The charge is, upon the face of it, of a most serious character, and it would not have been satisfactory if it had gone off without any inquiry. The policeman, however, who was bound over to prosecute, fulfilled his recognizances by appearing at the Central Criminal Court, and preferring the indictment.—It is possible, my Lords, that in the course of this trial, questions of great magnitude on the construction of acts of parliament, or respecting the privileges of the peerage, may arise, which it is of great importance to this House, to the Crown, and to the community, should be deliberately discussed. According to all the precedents that can be found, whenever a peer has been tried in parliament, the prosecution has been conducted by the law-officers of the Crown. Fortunately, we have no living memory on this subject. It is now sixty-four years since any proceeding of this sort has taken place; and I am rejoiced to think, that on the present occasion the charge against the noble prisoner at the bar does not imply any degree of moral turpitude, and that, if he should be found guilty, his conviction will reflect no discredit on the illustrious order to which he belongs. At the same time, my Lords, it clearly appears to me, that he has been guilty of infringing the statute law of the realm, which this and all other courts of justice are bound to respect and enforce. Your lordships are not sitting as a court of honour, or as a branch of the legislature: your lordships are sitting here as a court bound by the rules of law, and under a sanction as sacred as that of an oath.

“My Lords, the indictment against the Earl of Cardigan is framed upon an act of parliament which passed in the first year of the reign of her present Majesty. It charges the noble defendant with having shot at Captain Harvey Tuckett, with the several intents set forth in the indictment. I think I shall best discharge my duty to your lordships by presenting to you a brief history of the law on this subject. By the common law of England, personal violence, where death did not ensue from it, amounted to a mere misdemeanour; and, if the wounded party did not die within a year and a day, no felony was committed. The first act which created a felony where death did not ensue was the 5th of Henry IV. cap. 5. By that act certain personal injuries without death were made felonies, with benefit of clergy. Then came the Coventry Act, in the 22nd and 23rd of Charles II, whereby any person lying in wait for, and wounding another with intent to maim or disfigure, was guilty of felony, without benefit of clergy. Under both these acts no offence was committed unless a wound was inflicted; and it was not until the 9th of George I, commonly called the Black Act, that an attempt, where no wound was given, was made a felony. By that act it was enacted, that if any person should wilfully and maliciously shoot at any person in any dwelling-house or other place, he should be guilty of felony, without benefit of clergy, although no wound were inflicted: but it was determined upon that statute,—and in fairness to the noble prisoner it is my duty to remind your lordships of it,—that unless the case was one in which, if death had ensued, it would have amounted to murder, no offence was committed under the statute. That was determined in the case of the King and Gastineaux, which is reported in the first volume of Leach’s Crown Cases, page 417. In that case the law was thus laid down:—‘The offence charged in this indictment is described by the statute on which it is framed, in very few and very clear words, which are—That if any person or persons shall wilfully and maliciously shoot at any person in any dwelling-house or other place, he shall be adjudged guilty of felony, without benefit of clergy. The word ‘maliciously’ is made to constitute the very essence of this crime; no act of shooting, therefore, will amount, under this statute, to a capital offence, unless it be accompanied with such circumstances as, in construction of law, would have amounted to the crime of murder if death had ensued from such act. This proposition most clearly and unavoidably results from the legal interpretation of the word “maliciously,” as applied to this subject; for there is no species of homicide in which malice forms any ingredient but that of murder; and it follows that neither an accidental shooting, nor a shooting in the transport of passion, excited by such a degree of provocation as will reduce homicide to the offence of manslaughter, are within the meaning of the statute; for from both of these cases the law excludes every idea of malice.’ The law continued on this footing until an act was passed in the 43rd of George III, which is commonly called Lord Ellenborough’s Act. This act did not repeal the Black Act, but greatly extended its operation, and among other enactments contains this:—‘That if any person or persons shall wilfully, maliciously, and unlawfully shoot at any of his Majesty’s subjects, or shall wilfully, maliciously, and unlawfully present, point, or level any kind of loaded fire-arms at any of his Majesty’s subjects, and attempt, by drawing a trigger or in any other manner, to discharge the same at or against his or their person or persons, or shall wilfully, maliciously, or unlawfully stab or cut any of his Majesty’s subjects, with intent in so doing, or by means thereof, to murder, or rob, or to maim, disfigure, or disable such his Majesty’s subject or subjects, or with intent to do some other grievous bodily harm to such his Majesty’s subject or subjects, shall be guilty of felony, without benefit of clergy.’ This act, however, has the following express proviso:—‘Provided always, that in case it shall appear on the trial of any person or persons indicted for the wilfully, maliciously, and unlawfully shooting at any of his Majesty’s subjects, that if death had ensued therefrom the same would not in law have amounted to the crime of murder; that then and in every such case the person or persons so indicted shall be deemed and taken to be not guilty of the felonies whereof they shall be so indicted, but be thereof acquitted.’ Your lordships will observe, that by this act it is made a capital offence to shoot at, with intent to murder, or maim, disfigure, or do grievous bodily harm; but the offence came within the statute only when, if death should have ensued, it would have amounted to the crime of murder.