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

by J. G. Millingen

“Next came the statute of the 9th of George IV. cap. 31, which, I believe, is generally called Lord Lansdowne’s Act; that noble Lord having introduced it into parliament when he was Secretary of State for the Home Department. This is entitled ‘An Act to consolidate and amend the statutes relating to offences against the person.’ It repeals the Black Act and Lord Ellenborough’s Act, but it contains provisions similar to those of the latter. The eleventh section enacts, ‘That if any person unlawfully and maliciously shoot at any person, with intent to maim, disfigure, or disable such person, or do some other grievous bodily harm to such person, he shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon.’ But this act contains the same proviso as was inserted in Lord Ellenborough’s Act, ‘That in case it shall appear on the trial of any person, that, if death had ensued therefrom, the same would not have amounted to the crime of murder, the person so indicted shall be acquitted of felony.’ Still it remained a capital offence to shoot at with intent to murder, or maim, or disfigure, or do bodily harm, although no wound was inflicted.

“Things remained on this footing until the act was passed on which the present indictment was framed. This act, which received the royal assent on the 17th of July 1837, is the 1st of Victoria, cap. 85, and is entitled, ‘An Act to amend the laws relating to offences against the person.’ The preamble recites that ‘it is expedient to amend so much of the act of the 9th of George IV. as relates to any person who shall unlawfully and maliciously shoot at any person, or who shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person,’ &c.; and by the second and third section it enacts, ‘That whosoever shall stab, cut, or wound any person, or shall, by any means whatsoever, cause to any person any bodily injury dangerous to life, with intent in any of the cases aforesaid to commit murder, shall be guilty of felony, and, being convicted, shall suffer death.’ Therefore, by this act, to shoot at a person and inflict a wound dangerous to life remains a capital offence; but the act of shooting, when no wound is inflicted, is no longer a capital offence, and remains a felony only, punishable with transportation or imprisonment. The fourth section enacts, ‘That whosoever unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, attempt to discharge any kind of loaded arms at any person, with intent to maim, disfigure, or disable such person, or do some other grievous bodily harm to such person, he shall be guilty of felony, and, being convicted thereof, shall be liable to be transported beyond the seas,’ &c. This act contains no such proviso as is to be found in Lord Ellenborough’s Act, and that of the 9th of George IV.; a circumstance which it is material your lordships should bear in mind, when you come to deliberate on your judgment with regard to the second and third counts of the indictment.

“My Lords, I am happy to say that the indictment contains no count on the capital charge: a wound was inflicted; but the prosecutor has very properly restricted the charge to firing at, with intent, without alleging that any wound dangerous to life was inflicted. The first count charges, that the Earl of Cardigan shot at Captain Tuckett with intent, in the language of the law, to commit the crime of murder. The second count charges the Earl of Cardigan with the same act, with intent to maim, disfigure, or disable Captain Tuckett; and the third count charges his lordship with the same act, with intent to do some grievous bodily harm. It will be for your lordships to say whether, upon the facts which I shall lay before you, and which I am instructed to say can be clearly made out in evidence, each and every one of the counts must not be considered as fully established. The substance of the evidence in this case is, that on the 12th of September last the Earl of Cardigan fought a duel with pistols, on Wimbledon Common, with Captain Tuckett, and wounded him at the second exchange of shots. It will appear that, about five o’clock in the afternoon of that day, two carriages, coming in opposite directions, were seen to arrive on Wimbledon Common, and a party of gentlemen alighted from each. It was evident to those who observed what was going on, that a duel was in contemplation. The parties went to a part of the common between the road that leads to Lord Spencer’s park and a windmill. The seconds made the usual preparations: the principals, the Earl of Cardigan and Captain Tuckett, were placed at a distance of about twelve yards; they exchanged shots without effect; they received from their seconds each another pistol; they again fired, and Captain Tuckett was wounded by the Earl of Cardigan. Mr. Dann, who occupied the mill, his son, and Sir James Anderson, a surgeon, who was standing close by, went up immediately. The wound was examined, it bled freely; but fortunately—and I am sure no one rejoices at the circumstance more than the noble prisoner—it proved to be not of a dangerous nature. Mr. Dann, the miller, who was a constable, took the whole party into custody. The wound was again formally examined, and Sir James Anderson pressed that he might be set at liberty, and allowed to take Captain Tuckett to his house in London; which was immediately acceded to, upon the Captain’s promising to appear before the magistrates, when he was recovered. The miller retained the Earl of Cardigan, and his second, Captain Douglas, as well as Captain Wainwright, the second of Captain Tuckett. The Earl of Cardigan had still a pistol in his hand when the miller approached him; and two cases of pistols were on the ground, one of which bore the crest of the noble Earl, and was claimed by him as his property. The parties in custody were conducted before the magistrates at Wandsworth, when the Earl of Cardigan made use of these words:—‘I have fought a duel; I have hit my man, I believe not seriously.’ Then, pointing to Captain Douglas, he said, ‘This gentleman is also a prisoner, and my second.’ He was asked whether the person he had hit was Captain Reynolds; upon which he replied, ‘Do you think I would condescend to fight with one of my own officers?’ His lordship was compelled by the magistrates to enter into recognizances to appear when called upon; which he did from time to time, till at last the matter was carried to the Central Criminal Court. The witnesses I shall call before your lordships are the miller, his wife and son, and the policeman named Busain, who was at the station-house, and will speak to the declarations made by the Earl of Cardigan. I can offer no evidence respecting the origin of the quarrel. Captain Douglas is to take his trial for his share in the transaction: he, as your lordships will observe, is jointly indicted with the Earl of Cardigan. A bill was also preferred against Captain Tuckett and Captain Wainwright, but the grand jury had thrown it out. Those gentlemen, however, are still liable to be tried; and it would not be decorous to summon them before your lordships, to give evidence which might afterwards be turned against themselves when they would be on trial for their lives. I shall call Sir James Anderson, who has hitherto spoken fairly on the subject, and, I suppose, will now make no objection to state all that fell within his observation.

“Upon these facts it will be for your lordships to say whether all the counts of the indictment are not fully proved and supported. With respect to the first count, it is painful to use the language which it necessarily recites; but it will be for your lordships to say whether, in point of law, the noble prisoner at the bar did not shoot at Captain Tuckett with intent to commit the crime therein mentioned. I at once acquit the Earl of Cardigan of anything unfair in the conduct of this duel. Something has been said respecting the noble Earl’s pistols having rifle barrels, while those of Captain Tuckett had not such barrels. However that may have been, I have the most perfect conviction, that nothing but what was fair and honourable was intended; and that the Earl of Cardigan most probably imagined, when he carried his pistols to the field with him, that one of them would be directed against his own person. Nor do I suppose that there was any grudge, any personal animosity, any rancour or malignity, on the part of the noble Earl towards his antagonist. Whether the noble Earl gave or received the invitation to go out, I believe his only object was to preserve his reputation, and maintain his station in society as an officer and a gentleman. His lordship is in the army; he is Lieutenant-Colonel of the 11th Hussars; and no doubt he, on this occasion, only complied with what he considered to be necessary to be done, according to the usages of society. But, if death had ensued under these circumstances, it would have been a great calamity; and, although moralists of high name have excused and even defended the practice of duelling, your lordships must consider what, in this respect, is the law of England. There can be no doubt that, by the law of England, parties who go out deliberately to fight a duel, if death ensues, are guilty of murder. It will be my duty to state to your lordships a few of the leading authorities on this point. I will mention the highest authorities known to the law of England—Hale, Hawkins, Foster, and Blackstone. Hale, in his Pleas of the Crown, vol. i. page 453, says:—‘If A and B suddenly fall out, and they presently agree to fight in a field, and run and fetch their weapons, and go to the field and fight, and A kills B, this is not murder, but homicide; for it is but a continuance of the sudden falling out, and the blood was never cooled; but if there were deliberation, as that they went on the next day,—nay, though it was the same day, if there were such a competent distance of time that in common presumption they had time of deliberation,—then it is murder.’ In the first volume of Hawkins’s Pleas of the Crown, c. 31, sec. 21, the law on this subject is thus laid down:—‘It seems agreed, that whenever two persons in cool blood meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was struck first by the deceased; or that he had often declined to meet him, and was prevailed upon to do it by his importunity; or that it was his intent only to vindicate his reputation; or that he meant not to kill, but only to disarm his adversary; for, since he deliberately engaged in an act highly unlawful, in defiance of the laws, he must, at his peril, abide the consequence thereof. And from hence it follows, that if two persons quarrel over-night, and appoint to fight next day, or quarrel in the morning and agree to fight in the afternoon, or such a considerable time after, by which, in common intendment, it must be presumed that the blood was cooled, and then they meet and fight, and one kills the other, he is guilty of murder. And whenever it appears, from the whole circumstances, that he who kills another on a sudden quarrel, was master of his temper at the time, he is guilty of murder; as if, after the quarrel, he fall into a discourse, and talks calmly thereon; or, perhaps, if he have so much consideration as to say that the place wherein the quarrel happens is not convenient for fighting, or that, if he should fight at present, he should have the disadvantage by reason of the height of his shoes.’ The last observation refers to Lord Morley’s case, where, though a case of manslaughter, it was a circumstance strongly pressed to show that the offence was one of a deeper dye. Sir Michael Foster, in his Discourse on Homicide, says:—‘Upon this principle, deliberate duelling, if death ensues, is, in the eye of the law, murder; because duels are generally founded on a feeling of revenge: and though a person should be drawn into a duel upon a motive not so criminal, but merely upon the punctilio of what the swordsmen call honour, that is no excuse; for those who deliberately seek the blood of another, act in defiance of all laws, human and divine. But if, on a sudden quarrel, they fight upon the spot, or if they presently fetch their weapons, and go into a field and fight, and one of them falleth, that is but manslaughter, because it may be presumed the blood never cooled. It will be otherwise if the parties appoint the next day to fight, or even the same day, at such an interval as that the passion may have subsided, or if, from any circumstances attending the case, it may reasonably be presumed that their judgment had controlled the first transports of passion before they engaged. The same rule will hold if, after a quarrel, the parties fall into other discourse or diversions, and continue so engaged as to afford reasonable time for cooling.’ Blackstone, in his fourth volume, page 199, thus writes, when describing and defining the crime of murder:—‘This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder; thinking it their duty, as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power, either divine or human, but in direct contradiction to the laws both of God and man; and therefore the law has justly fixed the crime and punishment of murder on them, and on their seconds also.’

“My Lords, these are the highest authorities known to the law of England, and they are uniformly followed by the English judges. The most recent cases of this nature which have occurred within the last few years, are those of Sir John Jeffcott,[^[8]] and the parties concerned in the death of Mr. Mirfin; and in these the doctrine I have stated to your lordships was laid down and acted upon strictly. Such, then, being the definition of murder constantly given from the bench on trials for life and death, are not your lordships to suppose that the legislature has made use of the word ‘murder’ in the same sense; and that when we find in Lord Ellenborough’s Act, in the 9th of Geo. IV. and in this of the 1st of Victoria, the expression ‘with intent to commit murder,’ it means with intent to do that which, if accomplished, would amount in law to the crime of murder? The legislature, and your lordships as part of it, must be taken to have well known what was the legal definition of murder, and to have used the expression, in a judicial act, in its legal sense. Then, my Lords, however painful the consideration may be, does it not necessarily follow, that the first count of the indictment is completely found? The circumstances clearly show that the Earl of Cardigan and Captain Tuckett met by appointment. The arrangements being completed, they fired twice; the Earl of Cardigan took deliberate aim, fired, and wounded his antagonist. He must be supposed to have intended that which he did. If, unfortunately, death had ensued, would not this have been a case of murder? The only supposition by which the case could be reduced to one of manslaughter would be, that the Earl of Cardigan and Captain Tuckett met casually on Wimbledon Common; that they suddenly quarreled; and that, whilst their blood was hot, they fought; but your lordships will hardly strain the facts so far as to say that this was a casual meeting, when you see that each party was accompanied by a second, and supplied with a brace of pistols, and that the whole affair was conducted according to the forms and solemnities observed when a deliberate duel is fought.—With respect to the second and third counts, I know not what defence can possibly be suggested; because, even if it had been a casual meeting, and if death had ensued under circumstances which would have amounted only to manslaughter, that would be no defence to the second and third counts. I presume to assert that, on the authority of a case which came before the fifteen judges of England, and which was decided; two most learned judges doubting on the occasion, but not dissenting from the decision. The two judges who doubted, were his Grace the Lord High Steward, who presides over your lordships’ proceedings on this occasion, and Mr. Justice Littledale. It would not become me to say anything of the learning and ability of the noble High Steward in his presence; but, with respect to Mr. Justice Littledale, I will say, that there never was a more learned or acute judge than he was, whose retirement from the bench the bar has lately witnessed with reluctance and regret. I therefore attach the greatest weight to any doubts proceeding from such a quarter; but the thirteen other judges entertained no doubt upon that occasion, and came to the conclusion, that, upon the fourth section of the act upon which the present indictment was framed, it is not necessary for a conviction, that if death ensued the offence should amount to murder. The case to which I refer is to be found in the second volume of Moody’s Crown Cases, page 40. It was a case tried before Mr. Baron Parke, on the Norfolk Spring Circuit, in 1838.”

The Lord High Steward.—“What is the name?”

The Attorney-General.—“The case is anonymous, the name of the prisoner not being given; but it is an authentic case, and the point in doubt is clearly set forth in the question submitted to the fifteen judges. I will read what is material to your lordships:—‘The opinion of the judges is requested by Mr. Baron Parke and Mr. Baron Bolland, upon two questions which arose in the Norfolk Spring circuit, 1838.’ The first question only is material. The case first recites the 9th George IV. sec. 11 and 12, and the preamble and enacting part of 1st Victoria; points out the circumstance that the latter act does not contain the same proviso as is found in those of Lords Ellenborough and Lansdowne; and then submits this question for the opinion of the judges:—‘Is it now a defence to an indictment for wounding with intent to maim, &c. that, if death had ensued, the offence would not have been murder, but manslaughter?’ Your lordships will observe, that shooting at, with intent to maim or disable, and stabbing with the same intent, are in the same category, and must be attended with all the same rules and incidents. This opinion will therefore have the same authority as if the question submitted by Barons Parke and Bolland had been whether, on an indictment for shooting at, with intent to disable, it would be a defence to show, that, if death had ensued, the offence would not have amounted to murder. The opinion of the judges was as follows:—‘At a meeting of the judges in Easter term, 1838, they all thought it to be now no defence to such an indictment, that, if death had ensued, the offence would not have been murder, but manslaughter; except the Lord Chief Justice, Lord Denman, and Mr. Justice Littledale.’ The Lord Chief Justice and Mr. Justice Littledale, it will be observed, did not dissent, they only doubted; but the other thirteen judges seem clearly to hold, that the plea set forth does not now amount to any defence; and I apprehend that the judges probably reasoned in this manner,—the intention of the legislature being to make offences which before were capital, punishable only with transportation or imprisonment, the quality of the offence is not precisely the same as before; and that if a person maims another or disables him, or does him some grievous bodily harm, even though it were an unpremeditated act, arising out of a sudden scuffle, it should nevertheless be an offence under this act, which gives a discretionary power to the court before whom the offence is tried, either to transport for fifteen years, or to imprison for a single hour. The judges, doubtless, considering this discretionary power, and the omission of the proviso which was in the preceding acts,—seeing that the capital punishment was abolished,—came to the conclusion that the offence was committed, though, if death had ensued, it would not under the circumstances have amounted to the crime of murder. Looking to the authority of this case, I know not what defence can possibly be urged with respect to the second and third counts. I rejoice, my Lords, to think the noble prisoner will have an advantage upon this occasion, which has never before been enjoyed by any peer who has been tried at your lordships’ bar; an advantage which neither Lord Lovat, Lord Byron, Lord Ferrers, nor the Duchess of Kingston could claim. He will have the advantage of the assistance of my most able, ingenious, zealous, and learned friend. Sir William Follett, who will address your lordships in his behalf upon the facts and merits of the case. This privilege is secured to the noble prisoner under that most admirable law which your lordships passed a few years ago, by which, in all cases of felony, the party accused has the advantage of addressing, through his counsel, the tribunal which is to determine on his guilt or innocence. Notwithstanding, however, all the learning, ability, and zeal of my honourable and learned friend, I know not how he will be able to persuade your lordships to acquit his noble client on any one count of this indictment. My learned friend will not ask your lordships—and if he did, he would ask you in vain—to forget the law by which you are bound. My Lord, Captain Douglas stands on his trial before another tribunal, and his trial has been postponed by the judges, on the express ground that the same case is first to be tried by the highest criminal court known in the empire. Your lordships are to lay down the law by which all inferior courts are to be bound. I beg leave, on this subject, to read the words made use of at this bar by one of the most distinguished of my predecessors, who afterwards, for many years, presided with great dignity on the woolsack—I mean Lord Thurlow. When Lord Thurlow was Attorney-General, in addressing this House, in the case of the Duchess of Kingston, he made use of this language:—‘I do desire to press this upon your lordships as a universal maxim; no more dangerous idea can creep into the mind of a judge, than the imagination that he is wiser than the law. I confine this to no judge, whatever may be his denomination, but extend it to all; and, speaking at the bar of an English court of justice, I make sure of your lordships’ approbation when I comprise even your lordships, sitting in Westminster Hall. It is a grievous example to other judges. If your lordships assume this, sitting in judgment, why not the King’s Bench? Why not commissioners of oyer and terminer? If they do so, why not the quarter-sessions? Ingenious men may strain the law very far; but to pervert it, was to new-model it. The genius of our constitution says, judges have no such authority, nor shall presume to exercise it.’ I conclude, my Lords, with the respectful expression of my conviction, that your lordships’ judgment in this case, whatever it may be, will be according to the law and justice of the case; and that you will preserve the high reputation, in the exercise of your judicial functions, which has so long been enjoyed by your lordships and your ancestors.”—The honourable and learned gentleman then bowed to their lordships, and was about to withdraw, when he again turned to the House and said: “Will your lordships allow me to mention, that, on account of the sudden illness of my learned friend, the Solicitor-General, he is deprived of the honour of attending to-day before your lordships, as he had intended.”

Thomas Hunt Dann, the miller at Wimbledon, was then examined by Mr. Waddington, and deposed to the facts, as described by the Attorney-General. He said, he consented to allow the wounded gentleman to go home, on his giving him a card, with the address of the party upon it.—After which, the Attorney-General offered to give in as evidence the card which the witness received.—Sir William Follett objected to the reading of it as evidence; and, after considerable discussion, the Lord High Steward proposed to postpone the consideration of the objection.—The son and wife of the miller were then examined; after which, Sir James Anderson being sworn, the Lord High Steward said:—“With the permission of the House, I think it my duty to inform you, that, after the opening we have heard from the Attorney-General, you are not bound to answer any question which may tend to criminate yourself.” Sir James was then thus examined by the Attorney-General:—“Of what profession are you?”—“I am a physician.”—“Where do you live?”—“In New Burlington Street.”—“Are you acquainted with Captain Tuckett?”—“I must decline answering that question.”—“Were you on Wimbledon Common on the 12th of September?”—“I must decline answering that also.” (Laughter.)—“Were you on that day called on to attend any gentleman that was wounded?”—“I must decline that again.” (Laughter.)—“Can you tell where Captain Tuckett lives?”—“I must decline the question.”—“Has he a house in London?”—“I decline answering that question.” (Laughter.)—“Do you decline answering any question whatever respecting Captain Tuckett?”—“Any question that may criminate myself.”—“And you consider answering any question respecting Captain Tuckett may tend to criminate you?”—“Possibly it would.”—“And on that ground you decline?”—“I do.”

John Busain, an inspector of the metropolitan police, was examined by the Attorney-General. He deposed, that he was on duty when Lord Cardigan and Captain Douglas came to the station-house at Wandsworth, on the evening of the 12th of September.—“I bowed, and asked his business. He said he was a prisoner, he believed. ‘Indeed, sir,’ said I; ‘on what account?’ His lordship said, ‘I have been fighting a duel, and I have hit my man; but not seriously, I believe; slightly, merely a graze across the back.’ He then pointed over his shoulder and looked over, and said, ‘This gentleman also is a prisoner; my second. Captain Douglas.’ He presented me with his card, and I saw ‘The Earl of Cardigan, of the 11th Dragoons.’ I then alluded to the duel, and said, ‘Not with Captain Reynolds, I hope?’ and his lordship spurned the idea of fighting a duel with one of his own officers.” On being desired to repeat the words of the Earl of Cardigan, the witness said, “To the best of my recollection his lordship’s reply was—when I said I hoped it was not with Captain Reynolds, he stood up erect, and seemed to reject it, by his action, with the utmost disdain, and said, ‘Oh, no; do you suppose I would fight with one of my own officers?’ These were the words, to the best of my recollection.”

Charles William Walthew, chemist, residing at No. 29, in the Poultry, deposed, that Captain Tuckett occupied rooms in his house, and had carried on business there for fifteen months. His residence was at No. 13, Hamilton Place, New Road. On being asked to tell what the Captain’s Christian names were, if he knew them, Sir William Follett objected to this course of examination. Their lordships, he said, observed the question put: his learned friend had asked where Captain Tuckett lived, and the answer was, No. 13, Hamilton Place, New Road, for the purpose of identifying this Captain Tuckett, who carried on business in the Poultry, with a Captain Tuckett who lived in that place. The Lord High Steward agreed that there was no proof at present that that person lived at No. 13, Hamilton Place, New Road. The examination was not proceeded with. The last witness called was Edward Septimus Codd. He said he knew Captain Tuckett, of the 11th Light Dragoons. His Christian name was Harvey Garnett Phipps Tuckett.