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:—