“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.

“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.

The Attorney-General said, he would now, with their lordships’

permission, propose to read the card, upon which their lordships had

been pleased to say that they would consider whether it was admissible

or not. On being asked by Lord Brougham whether that was his case, he

replied, that he should first wish to know whether the card was to be

received or rejected. Sir William Follett requested to see the card;

and, having examined it, he said he did not think it necessary to object

to its being read. It was accordingly delivered in and read. Upon one

side was engraved “Captain Harvey Tuckett, 13, Hamilton Place, New

Road;” and on the other was written “Captain H. Wainwright.” The

Attorney-General said that that was the case on the part of the

prosecution.

Sir William Follett.—“This being the case on the part of the

prosecution, I venture to submit to your lordships, that there is no

case which calls on the prisoner for an answer; and I think your

lordships will see at once, that the counsel for the prosecution have

failed in proving an essential part of their case. My Lords, I apprehend

it is not necessary to cite any authority to show that the prosecutor is

bound to prove the Christian and surname of the person against whom the

alleged offence is committed; and that if he fails to prove either the

Christian or the surname, he fails in his case. Now, there is no

evidence whatever to show that the person against whom the shot was

discharged was Harvey Garnett Phipps Tuckett. The evidence before your

lordships would rather lead to a contrary presumption, if presumption

could be acted upon in a case like this. I apprehend that positive

evidence must be given to prove the identity of the party. The evidence

is this,—the counsel for the prosecution have called a person named

Codd, who is an army-agent, and who receives the half-pay of a Captain

Tuckett, who was formerly in the 11th Dragoons, and is named Harvey

Garnett Phipps Tuckett. Is there anything in this evidence to identify

that Captain Tuckett with the person alleged to have been on Wimbledon

Common on the 12th of September? Mr. Codd does not know where that

Captain Tuckett lives; he never saw him except at his office in Fludyer

Street, and at an insurance office. What is the rest of the evidence on

this point? A person who lives in the Poultry says that a Captain Harvey

Tuckett rents offices of him, but that he does not know where he lives.

There is, therefore, not an iota, not a scintilla of evidence, to

connect that Captain Tuckett with the gentleman supposed to be engaged

in this transaction. I therefore submit that my learned friends have

entirely failed in an essential part of the case for the prosecution. I

would beg leave to refer your lordships to the case of the King v.

Robinson, in Holt’s Reports, p. 595, in which it is laid down that it is

essentially necessary to prove the Christian and surname of the party

against whom the offence is alleged to have been committed, and there is

no proof of his Christian name in this case.”

The Attorney-General.—“My Lords, the question is, whether there is any

evidence whatever to prove the fact of the Christian name of Captain

Tuckett, the gentleman wounded. If there is the smallest scintilla of

evidence on this point, the prosecution cannot be stopped on the ground

taken up by my learned friend. We are now as if we were before a jury,

and the learned judge who presided were called upon to direct an

acquittal, upon the ground that there was no evidence for their

consideration. I submit to your lordships, that there is abundant

evidence to show that the name of the party wounded is Harvey Garnett

Phipps Tuckett. How does the case stand? My learned friend withdrew all

objection to the reading of the card. Well, then, the gentleman who was

wounded by Lord Cardigan on the 12th of September, was Captain Harvey

Tuckett. We have got, therefore, one of his names; and how does the case

stand with regard to the rest? Am I obliged to call the clerk of the

parish where he was baptised, in order to prove his baptismal register?

Am I to call his father or his mother, or his godfathers or godmothers,

to prove the name that was given to him at the baptismal font? I

apprehend that such evidence is wholly unnecessary. I contend that, from

the facts proved, there is abundant evidence to show the identity of the

party wounded was Captain Harvey Tuckett. I suppose my learned friend

will not deny that there is abundant evidence to show that the Captain

Tuckett who was wounded lived at No. 13, Hamilton Place, New Road. One

of the witnesses called there three times; he asks each time for Captain

Tuckett, and each time he is introduced to a gentleman bearing that

name. Your lordships, therefore, will have no doubt that the Captain

Tuckett who lives at No. 13, Hamilton Place, New Road, is the one who

fought the duel with Lord Cardigan on the 12th of September, on

Wimbledon Common. Now, my Lords, we go by steps. Is there any doubt that

this Captain Tuckett is the Captain Tuckett who took the offices in the

Poultry? At the time he did so, he gave a reference to No. 13, Hamilton

Place, New Road; and your lordships will therefore feel, no doubt, that

there is evidence to show that the Captain Tuckett who took the place of

business in the Poultry, was the same who lived in Hamilton Place. Then

we have only one other stage, and that is to see whether the Captain

Tuckett is the Captain Tuckett of whom Mr. Codd spoke, whose name he

proved to be Harvey Garnett Phipps Tuckett, and who had been an officer

of the 11th Dragoons, of which regiment the Earl of Cardigan was, and

still is, the colonel.”

Sir W. Follett.—“There is no proof of that whatever.”

The Attorney-General.—“It was so stated, and the witness was not

cross-examined. Well, then, my Lords, a Captain Tuckett, whose name is

Harvey Garnett Phipps Tuckett, was proved by Mr. Codd to have been an

officer of the 11th Hussars, Lord Cardigan’s regiment. He gave his card,

with the 11th Hussars upon it.”

Sir W. Follett.—“No, no; you are quite mistaken.”

The Attorney-General.—“Well, he has one name at least corresponding with

that of the Captain Tuckett who fought the duel on Wimbledon Common.

Will your lordships require strict evidence of this gentleman’s

Christian name—evidence that will amount to a demonstration? If there is

evidence from which the inference may be fairly drawn, is not that

sufficient? Well, then, here is a Captain Tuckett, whose name is proved

to be Harvey Garnett Phipps Tuckett, who has been in the 11th Hussars,

from which he retired three or four years ago, and who receives his

half-pay quarterly from Mr. Codd, his agent. May it not be fairly

inferred from these circumstances, that this was the same Captain

Tuckett who had offices in the Poultry, and who had fought a duel? Is

there not evidence from which that identity may be fairly inferred? Is

the prosecution to be stopped on the ground that there is no evidence

whatever to go to a jury, or to your lordships, that this Captain

Tuckett, whose name is proved to be Harvey Garnett Phipps Tuckett, is

the same who was the antagonist of the Earl of Cardigan on the 12th

September? I believe there is no reasonable being, who, having heard

this evidence out of a court of justice, would hesitate in drawing the

inference. I apprehend, that what is sufficient to convince a reasonable

man out of a court of justice ought to be sufficient to convince a judge

or judges sitting in a court of justice, if the inference which is to be

drawn can be drawn according to the rules of evidence. Now, according to

the rules of evidence, would any person out of a court of justice doubt

for a moment that this is the same individual who fought on the 12th of

September? Well, then, if that inference would be drawn out of a court

of justice, can it be said that in a court of justice there is not a

scintilla of evidence from which such an inference can be drawn? This

would be a most unsatisfactory conclusion of such a trial. Your

lordships will weigh the evidence maturely and deliberately, and if you

think that it is not sufficient to convict the noble Lord at the bar, of

course you will acquit him, and will say, ‘Not guilty, upon my honour,’

but you will not stop the prosecution upon an objection like this.”

Sir W. Follett.—“My Lords, I will trouble your lordships with a very few

words in reply to the observations of the Attorney-General. It may be a

very unsatisfactory termination of this case after all the care and

trouble which has been bestowed upon the prosecution, but I apprehend

that this is not a case in which the noble lord at the bar will have to

appeal to the honour or the conscience of his peers. The question is,

whether sufficient evidence of identity has been given. My learned

friend asks whether he is to call the clerk of the parish, or the father

or mother of Captain Tuckett, to prove his Christian name. Now, that is

not the objection, and the Attorney-General knows it perfectly well.

What we object to is, that the counsel for the prosecution have called a

person of the name of Codd, who has proved that he was acquainted with a

Captain Harvey Garnett Phipps Tuckett, but there is not a scintilla of

evidence to connect that Captain Tuckett with the gentleman who fought

the duel on Wimbledon Common. What is the proof? Does any judge who

hears me feel himself prepared to say that the fact of a Captain Tuckett

having been in a particular regiment is evidence of identity in this

case? My learned friend says, that if a person out of the House may

fairly draw such an inference, such an inference may properly be drawn

within its walls. May I ask your lordships if that is the way in which

trials of this nature are to be conducted? It is possible that your

lordships sitting out of the House, after all that has been said and

written, might draw such an inference as that which my learned friend

wishes you to make; but you are now sitting here, as if you had never

heard one word of the case before. You are now sitting as judges on the

evidence adduced, and you are to say whether, because a Captain Tuckett

who was formerly in the 11th Dragoons has the same Christian name, he is

to be identified with the Captain Tuckett who fought on Wimbledon

Common. There is no evidence to show that the Harvey Tuckett mentioned

in the evidence of Codd, is the same Harvey Garnett Phipps Tuckett

mentioned in this indictment. Mr. Codd does not know him to be the same;

he never saw him either in the Poultry or at Hamilton Place. The whole

of his evidence is this,—that he knows a Captain Harvey Garnett Phipps

Tuckett, that he was in the 11th Dragoons; and that he receives for him

his half-pay. There may be two Harvey Tucketts; and since my learned

friend, the Attorney-General, has referred to your lordships’ knowledge

of what may have occurred out of doors, I would remind your lordships

that in the very regiment commanded by the noble Lord at the bar there

were two officers bearing the same surnames certainly, and I think the

same Christian names. I submit to your lordships, that there is no

evidence whatever to prove that Captain Harvey Tuckett mentioned in the

evidence of Mr. Codd, is the same person as the Harvey Garnett Phipps

Tuckett mentioned in this indictment; and, however unsatisfactory a

termination it may be to the persons conducting the prosecution, I

submit to your lordships that they have entirely failed in the proof of

their identity.”

The Lord High Steward.—“I stated, when this objection was first taken,

that I thought strangers ought to withdraw, and I am still of that

opinion. The learned counsel, however, did not object to the argument of

the Attorney-General, and therefore I did not think it right to

interrupt him; but I wish to say, with a view to the general

administration of criminal justice, that, when similar objections are

taken in a criminal court, the counsel for the prosecution is at the

utmost called upon to state what portion of evidence he believes to be

sufficient to make out his case. I do not recollect any case in which an

argument has been heard on the subject. I mention this as a point which

may be of consequence in the practice of the courts of criminal law

hereafter; and I now move your lordships that strangers be ordered to

withdraw.”

The counsel and strangers were then ordered to withdraw, and the Earl of

Cardigan retired in the custody of the Yeoman Usher. A protestation of

the Archbishop of Canterbury, for himself and the rest of the Bishops,

was delivered, desiring leave to be absent when judgment was given;

leave was accordingly given. After which, the objection taken by Sir

William Follett was taken into consideration. After the Lord High

Steward had delivered his opinion thereupon, as an individual member of

the court, and declared it to be his judgment that the Earl of Cardigan

was entitled to be declared Not guilty, it was moved, that the House do

now proceed to give their opinion whether the said Earl is guilty or not

guilty of the charge in the indictment; which, being put, passed in the

affirmative. Strangers being again admitted, after proclamation made for

silence, the Lord High Steward, standing up, by a list called every peer

by his name, beginning with the junior Baron, and asked him, “John Lord

Keane, how says your lordship; is James Thomas Earl of Cardigan guilty

of the felony whereof he stands indicted, or not guilty.” Whereupon each

peer, upon his name being called, standing up in his place uncovered,

and laying his right hand upon his breast, answered, “Not guilty, upon

my honour:” the only exception being the Duke of Cleveland, who said,

“Not guilty legally, upon my honour.” After all the peers had given

their verdict, the Lord High Steward, standing up uncovered, declared

his opinion to the same effect. The Earl of Cardigan being then brought

to the bar, the Lord High Steward said, “James Thomas Earl of Cardigan,

you have been indicted for a felony, for which you have been tried by

your peers, and I have the satisfaction of informing you that their

lordships have pronounced you not guilty, by an unanimous sentence. The

number of their lordships who gave this verdict I have not precisely at

this moment before me, or I should have been glad to have stated it to

your lordship; but their lordships have unanimously said ‘Not guilty.’”

The Earl of Cardigan having retired, proclamation was made for

dissolving the commission; and the white staff being delivered to the

Lord High Steward by the Gentleman Usher of the Black Rod, his Grace

stood up uncovered, and, holding the staff in both hands, broke it in

two, and declared the commission to be dissolved.

HOUSE OF LORDS,

February 19, 1841.

In the House of Lords, on the motion that the trial of the Earl of

Cardigan be printed,

The Earl of ELDON said, there were some matters connected with the

subject, that ought not to pass without notice. It would be recollected

that the right reverend prelates, towards the latter part of the trial,

requested permission to withdraw, and did so. In a portion of the

address of the Attorney-General to their Lordships, the learned

gentleman made use of a certain expression,—no doubt out of his kind

regard towards the noble Earl at the bar,—in which his feelings seemed

to have carried him a little beyond what he originally intended. The

expression to which he alluded was this:—“That he was glad that nothing

of moral turpitude had occurred in this case.” Now, he was perfectly

prepared to say, that, in the present state of society in this country,

it was difficult to suppose that it could go on as it now did, unless

certain allowances were made for the feelings of respectable individuals

placed in situations of great difficulty, where, perhaps, their

sentiments differed materially from the line of conduct they were

pursuing. No man was more ready to make that allowance than he himself

was; but, even admitting that, it appeared to him that the

Attorney-General, in making the observation to which he had alluded, had

gone a little beyond what he ought to have done. Now, as the trial had

gone off on matter totally irrelevant to that point,—as no opinion had

been given by their Lordships on the subject,—he thought it right to

notice it, lest it might be supposed that their Lordships concurred in

the sentiment to which he had referred. He believed their Lordships

would agree with him in saying, that, in whatever situation a gentleman

might be placed when driven to have recourse to duelling, it was not a

custom that was sanctioned either by the law or by the moral principle

of the country. Each specific case must stand between the individual,

his conscience, and his God; but he could not conceive it possible how

any man could pursue such a course without some delinquency being

attached to the act, however the circumstances, in each particular case,

might diminish the amount of it.

The Bishop of LONDON said, he hoped it would not go forth to the public,

that, if the right reverend prelates had been present at the conclusion

of the trial, they would have considered themselves more than any other

member of their Lordships’ House implicated in any expression of

sentiment made use of by the Attorney-General. If he had been present on

the occasion, he would have listened to the expression of those

sentiments to which reference had been made with deep regret; and he

felt it his duty to state, that there was not, in the matter before

their Lordships, anything, in his opinion, that called for the

expression of any such sentiments on the part of the legal officer of

the Crown, who filled the situation of public prosecutor on that

occasion, and who, it appeared to him, had gone beyond the limits of his

province in making them. He felt himself bound to say, that he entirely

concurred in the sentiments which the noble Earl had thrown out; and he

now expressed a strong hope, that the recent unfortunate occurrence,

together with other cases which had taken place during the last few

years, would induce their Lordships, as the chief component part of the

legislature, to take the question into their deep and serious

consideration, and to see whether something could not be done to put an

end to that which was a shame and a scandal. It was a custom derived

from the barbarous ages: it was the remains of that system of chivalry,

which, though perhaps it might have been of great use at the time when

it prevailed, was utterly inconsistent with the manners and customs of

the present day. The system in which it originated had long passed by;

but it had unhappily left behind it one of its worst features in the

barbarous, wicked, and unchristian practice of duelling.

The Earl of MOUNTCASHELL was of opinion, that something ought to be done

on the subject of duelling; otherwise their Lordships would expose

themselves, after the result of the recent trial, to the malignant

aspersion, that they identified themselves with the system. He wished to

know from her Majesty’s government, whether the act of the 1st of

Victoria was framed with intent to put an end to duelling? If so, the

trial which had occurred could only be considered as a mockery of

justice. If their Lordships were really of opinion that duelling ought

to be put an end to, then another measure, stronger than that now in

existence, ought to be adopted. No later than yesterday morning, he

found by the public prints, a duel had been fought by a Mr. Marsden and

a Colonel Paterson, in which one of the parties was severely wounded. He

therefore thought that this was a proper occasion for noticing the

subject. He was one of those who held the opinion, that by proper means

duelling might be put a stop to; the more especially if measures were

taken to afford just redress for the different offences out of which

duels frequently arose. Some mode, he conceived, ought to be adopted, to

give due satisfaction in cases of minor offence, as well as those of a

more grave and serious nature. For instance, a man received some degree

of insult, and immediately called the aggressor out. Why did he thus

call him out?—because the law afforded him no proper satisfaction. There

was no law to prevent or punish the offence under which the challenger

felt himself aggrieved. In this respect the law was extremely defective.

Again, if a man’s daughter was seduced, he could only sue the seducer

for the worth of her services; and who would be satisfied with such a

mockery of justice as that? So long, therefore, as this defective state

of the law remained, so long would the system of duelling prevail. Under

the circumstances which he had stated, men really did not know how to

act. For instance, an officer in the army received an affront: his

brother officers expected that he should go out. What was he to do? On

the one side, if he went out, he was threatened with the 1st of

Victoria; on the other, if he refused, he was obnoxious to the contempt

of his brother officers. The unfortunate man had to choose between these

two evils. He hoped and trusted that her Majesty’s government would take

this matter up, and that he should not be told by the noble Viscount,

that he ought to introduce some measure himself. Ministers owed it to

the nation itself, which called for some measure on the subject. The

responsibility, in his opinion, lay entirely with them; and therefore he

called on them to produce a measure that would meet the evil. If they

were not prepared, let them appoint a committee to inquire into the

subject. Let that committee investigate the matter as closely as

possible, and report on it to the House; but let not the question be

left in the state in which it was at present; for, while it thus

remained, no man in the country was safe,—no man was exempt from being

placed in fearful jeopardy. He should conclude by asking whether it was

the intention of her Majesty’s government to propose any measure to

parliament for the more effectual prevention of duelling?

Lord MELBOURNE said, he was fully sensible of the great importance of

the subject; but, in answer to the noble Lord’s question, he had only to

state, that her Majesty’s government did not mean to bring forward any

measure of such a nature as the noble Earl had referred to. He

apprehended that the noble Earl, on a more mature consideration of the

subject, would find that the actual state of the law was not deficient

in force, and that it was hardly capable of being made more stringent

that it was at present.

* * * * *

The following is the paragraph in the morning paper, referred to by the

Earl of Mountcashell:—

“Yesterday a hostile meeting took place between Colonel Paterson, of the

East India service, and Robert Mark Marsden, Esq. of Park Lodge,

Regent’s Park. The parties met in a field at the back of the Eyre Arms

tavern, at daybreak, and exchanged shots without effect. The seconds

then interfered, and endeavoured to reconcile the gentlemen; but, not

succeeding, the parties were again placed on the ground. At the second

fire the ball from Mr. Marsden’s pistol took effect on the right side of

the gallant Colonel, which was severely shattered. The affair then

terminated.”

This fresh violation of the act of the 1st of Victoria, and the notice

taken of it in the House of Lords, drew, from the Editor of the Times

journal, the following powerful remarks:—

“The ‘practical establishment’ of the doctrine, that to fight a duel is

not to commit a felony, which certain of our contemporaries have

discovered in the acquittal of the Earl of Cardigan, upon a point of

form, by the House of Lords, seems to be bearing early fruits. It is in

vain to expect that magistrates will do their duty in these cases, if

they get nothing but ridicule for their pains, and meet with no

co-operation from the law-officers of the Crown. We call upon the noble

Secretary of State for the Home Department, therefore, as the chief of

the police magistracy, to take care that an inquiry be instituted

without delay into the truth or falsehood of this shameless

advertisement of felony; and if these persons, named Paterson and

Marsden, really have committed the crime imputed to them, to put the

machinery of justice in motion for their conviction and punishment.

“No more disgraceful or demoralising spectacle can possibly be exhibited

before the eyes of a people than the accommodation of the laws, or the

submission of their administrators, to the popular crimes of the higher

classes. Let the Attorney-General say what he will, a crime is not

divested of its inherent moral turpitude by the frequency or the

impunity with which it is committed; nor does felony cease to be a crime

when the felon is countenanced, or even stimulated to the act, by the

class-opinion of the circle which forms ‘his world.’ Every class has in

it an aggressive self-centring principle, which aspires to ride

rough-shod over society, and chafes under the restraint of law. It is

the very object of law to bind together all these discordant interests,

by restraining the eccentricities of each, and compelling each to submit

its own opinion to the central intelligence, which consults for the

common good.

“What the effect upon society in general must be, of letting it be

understood, that there is a crime which must not, or cannot, be

restrained or punished, because peers and ‘gentlemen’ think proper to

commit it, while the law declares it to be felony, we leave those to

judge who know the power of example, and the aptness of the lower orders

to learn evil from their betters. We are firmly convinced, that no more

pernicious or anarchical principle than that of the defenders of

duelling was ever broached by Chartism or even Socialism itself. ‘Strict

legal formality,’ says a contemporary, ‘brought Lord Cardigan to the bar

of the House of Peers under an accusation of felony; and strict legal

formality has given him an unanimous, and, in our opinion, honourable

acquittal.’ All felons, we have no doubt, think the laws under which

they are brought to justice are ‘strict legal formalities;’ and we doubt

not that they will cheerfully accept the doctrine, which renders the law

‘Thou shalt do no murder,’ to be as mere a ‘formality,’ as that which

requires every one of three Christian names to be proved, in order to

sustain an indictment. Lord Cardigan’s acquittal is ‘honourable,’ no

doubt, in the eyes of those who would have thought it equally honourable

to be convicted, and of those alone.

“We beg to direct the attention of our readers to the important

conversation which took place upon this subject yesterday evening in the

House of Lords. Something, we trust, will be done to remedy the evil

consequences of the late trial, ere it be yet too late.”

February 23.

Lord WHARNCLIFFE stated, in the House of Lords, that it was his

intention, if no Law-Lord took up the subject, to bring in a bill to

settle the point with reference to the right of a peer to plead

privilege in case of a felony; as he happened to know that, in the case

of the recent trial, if a conviction had taken place, that point would

have been raised.

March 3.

TRIAL OF CAPTAIN DOUGLAS.

This day, the trial of Captain Douglas, second to the Earl of Cardigan

in the recent duel, took place in the New Court, before Mr. Justice

Williams and the Common sergeant. Mr. Thesiger informed the Court that

the Captain now desired to surrender to take his trial. He then entered

the dock, accompanied by three friends; and, the clerk of the Court

having read the indictment, he pleaded “Not guilty.” On Mr. Justice

Williams inquiring whether any one appeared for the prosecution, the

clerk answered in the negative. Mr. Hobler, who originally had the case

in hand, was in court, but had not been empowered to instruct counsel.

He said he had taken measures to secure the attendance of the witnesses,

when he received an intimation from the police commissioners to stay all

proceedings. Mr. Justice Williams directed the trial to proceed; and the

witness Dann, the miller, his wife and son, and also Busain the

inspector of police, were examined, and repeated the statements made by

them in the House of Lords on the trial of the Earl of Cardigan. Sir

James Anderson, who attended the duellists professionally, declined, as

before, to answer any questions, lest he should implicate himself. None

of the Dann family could identify Captain Douglas, and Mrs. Dann pointed

him out as the wounded man. After which,

Mr. Justice WILLIAMS, addressing the Jury, said he was totally ignorant

of the circumstances or causes by which it had happened that nobody

appeared in behalf of this prosecution. He ought to regret it, for it

had imposed upon him the somewhat arduous task of examining the

witnesses, and also a certain degree of anxiety, to take care, whatever

might be the cause of no person appearing to conduct the prosecution,

that it should not fail for want of every witness being called, who knew

anything of the transaction. It now, therefore, only remained for him to

communicate his judgment as to whether any case should be submitted to

their consideration. They could not close their eyes to the fact, that a

duel had been fought on Wimbledon Common, on the day mentioned. The

prisoner was indicted for shooting at Harvey Garnett Phipps Tuckett, and

it was asserted that it should be proved that a man bearing that name

was so shot at by the prisoner at the bar; but of this there was not one

tittle of evidence. Moreover, none of the witnesses who saw the duel had

spoken to the person of Captain Douglas. The indictment, therefore, must

fall to the ground, and the prisoner was entitled to an acquittal.

The Jury immediately returned a verdict of “Not guilty.”

March 12.

The Earl of MOUNTCASHELL gave notice, in the House of Lords, that he

intended, shortly after the Easter recess, to call the attention of

their Lordships to the subject of duelling. It was his intention to move

for a committee to inquire into the causes of duelling, and to see

whether some measure could not be adopted to put an end to so censurable

a practice. It was necessary, in the present state of things, that some

such course should be adopted; and, if their Lordships should refuse to

take any steps in the matter, he would move for the repeal of the act of

the 1st of Victoria; for it was quite ridiculous to allow the law to

remain as it now stood. Individuals did not know whether they might

fight a duel or not; although the act of Victoria seemed to declare that

any one who did fight a duel was liable to be tried as a felon. His

Lordship said, he knew the difficulties that attended the subject; but

that was no reason why they should not be encountered.

* * * * *

In the progress of the proceedings against the Earl of Cardigan, many

able articles, bearing immediately upon the subject of this Work,

appeared in the public journals. From the “Times” of the 11th of

February, a few days previous to the trial, I copy the following

address:

TO THE HOUSE OF LORDS AND THEIR COMMITTEE.

My Lords,

One among the thousands in this country who look with reverence and love

to the august assembly of the Peers of Great Britain, takes the liberty

of addressing you on the important subject which is appointed to come

under your judicial consideration on the 16th instant.

In regard to the immediate object of that inquiry I shall not trouble

your Lordships. Every principle of fair play dear to an English heart,

revolts at the idea of a man being taken off his guard. If it was

intended to enforce an existing law in its rigour, or rather to put a

construction upon it which was never contemplated, public notice ought

previously to have been given of that intention. But this was not done

in the case before your Lordships. Equity, therefore, and mercy, will

sit assessors with justice on the trial of Lord Cardigan.

But the sentiments and principles on the subject of duelling, avowed and

acted upon in the progress of this trial, will be of far more importance

in their consequences than the issue of the trial itself. An

opportunity, in fact, is about to be afforded your Lordships of adding

yet another benefit to the many which England has already experienced at

your hands—an opportunity of stamping your past exertions in the cause

of truth, religion, and civilisation, with the seals of sincerity and

consistency: nay, words still stronger befit the occasion; and I fear

not to say, that your Lordships stand at this moment in a situation of

great responsibility, in which the eyes of the nation are fixed upon

you, anxiously expecting that you will embrace this favourable occasion

to interpose the shield of your influence between society and that

systematic violation of its laws which has so long and so unhappily

prevailed amongst us. It is on the question, therefore, of duelling,

that I would now respectfully engage your Lordships’ attention.

Every one will admit the absurdity of the _bathos_ from the lance to the

pistol,—from the grave and noble _auto da fe_ which the combat of the

chivalrous ages exhibited in its solemn appeal to God, as the witness

and the judge of right and wrong, to the modern system, resorted to on

the most trivial as well as the most important occasions, and as

striking a proof of the degenerate faithlessness of the present, as the

ancient custom, of which it is the distorted image, is of the simple

faith and piety of the olden time.

The argument for the defence of duelling, as at present constituted, is

short, simple, and intelligible. The ‘vantage-ground of principle is

conceded at once; but the world, it is contended, could not go on

without it. There are points where human legislation must stop, where

unwritten must take the place of written laws; society cannot be kept in

check except by fear of personal consequences attendant on the violation

of those unwritten laws: the system of duelling affords that check;

expediency, therefore, requires the toleration of duelling.

Now, were the edifice of society founded on the shifting and variable

sands of human folly and weakness, such reasoning might pass current:

but if, as we believe and know, its foundations are laid deep below the

waves of time and change, on the eternal and immutable rock of divine

strength and wisdom, it becomes our duty to test that reasoning by the

revealed will of God; and if we find it ring false (as even its

advocates confess it does), then, in the confidence that the expediency

consists in the resolution of human wisdom and will into the wisdom and

will of God, boldly to repudiate the perversion of the doctrine usually

promulgated under its name, in this as well as in every other instance,

as alike sinful and cowardly in its principle, short-sighted in its

views, and destructive in its operation. The Bible is the only standard

of right and wrong; and we read there, “Thou shalt not do evil that good

may come of it.” The defence, therefore, of duelling on the ground of

expediency falls to the ground; and no other defence is set up for it.

But the truth is, that society, so far from courting or needing the

support of duelling, abhors and disowns a system which strikes at the

very foundation of social order. Duelling is the mere foster-child of

public opinion—the public opinion, moreover, not of the nation at large,

but of a class, on whose sentiments and practices any opinion expressed

by your Lordships, its brightest ornaments, must necessarily possess

incalculable influence. It is this influence which we implore you to

exercise on the present occasion.

It is not in the indulgence of malice or revenge that the essential

iniquity of duelling consists. Many a man has fought a duel with perfect

innocence as regards those points. Few, I believe, take their stations

in the field with the deliberate intention of “killing, maiming, or

doing some grievous bodily injury” to their antagonist, as imputed to

the noble Earl now summoned to your Lordships’ bar for trial. Far from

it. Few but would refuse a challenge, were it not for the disgrace with

which such a refusal stamps the character. It has been often and truly

said, that it requires more courage to refuse than to accept a

challenge. It requires much for a single man to do so; but for the

husband and the father, whose prospects for life may be blasted, and his

wife and children reduced to beggary and wretchedness, in consequence of

his refusal, the trial must be one of bitterness indeed. It is not, I

repeat, in malice or revenge that the evil of the system lies. Nor need

I insist upon the violation of the commandment, “Thou shalt not kill.”

No one will dispute, at least no man who ever saw his antagonist fall in

a duel, but will remember the blow with which conscience knocked at his

heart in that moment of anguish,—the distinctness with which for days

and years afterwards he heard the still calm voice of God whispering in

the silence of his heart’s wilderness, “Where is thy brother Abel?” The

evil lies deeper still. It consists in a total oblivion of that vital

principle, of natural religion in the first instance, but far more

emphatically so of Christianity,—a principle which _every man_ who

fights a duel, challenger or challenged, consciously or unconsciously

violates,—a principle written in letters of light in the book of

inspiration, in the following heart-stirring words, “Ye are _not your_

OWN, for ye are bought with a price; wherefore glorify God in your body

and in your spirit, WHICH ARE GOD’S.” Life, then, is not a man’s own

property to peril at his pleasure, any more than it is his own to

dismiss by suicide; and, till this principle be recognised, not as

involved in the mere question of duelling, but in its full

uncompromising extent, a man can never be thoroughly depended upon in

the full confidence of his proving, under all circumstances, and without

mental reservation, loyal to his Sovereign, faithful to his God, and

true to his country.

This, my Lords, is an age of recurrence to first principles, a period

unexampled in the annals of the world. The shackles of ages are falling

off, and the human intellect is rising up, unconscious of its strength,

and likely, in pure ignorance how to restrain and economize that

strength, to rend asunder the bones, the muscles, the ligaments which

are alike its prison, and the necessary instruments of its energy and

activity; in other words, to burst through and destroy the whole

framework of society. To preserve that framework, to discipline that

awakening strength, and to direct it to those high and noble purposes,

which, from the elevation on which we now stand, we may see opening out

before us in long vistas, as it were, of untrodden enterprise in the map

of God’s providence, education must be resorted to; not that spurious

education which draws its theory and its practice alike from the dust it

studiously looks down upon, whose wisdom is of the earth, earthy—but

that which God intended when he distinguished man from the beasts that

perish, by creating him with his face erect to heaven, in the image of

his Maker. If society is to be preserved, it must be Christianized. Your

Lordships have acknowledged this great truth by your exertions to

preserve the Christian principle in education. England owes you much for

all you have done, for all you are still doing in this great cause. But

it would be mockery to hold forth the decalogue with one hand, and with

the other a charter of legitimation to that spurious offspring of human

vice and folly, which, involving as it does a direct transgression not

of one only, but of almost every law in the decalogue, virtually annuls

it. And this charter your Lordships sign—the good that you have done

your inconsistency may undo—if in the remotest degree you indirectly

sanction the system in question.

The expediency of enacting prohibitory laws against duelling, such as

exist in some foreign countries, must necessarily be left to the wisdom

of the united Houses to determine; it would probably be decided in the

negative, and perhaps rightly so. But a far more efficient remedy is in

your Lordships’ own hands, as the highest court of honour in the

kingdom,—the capital of the column of English nobility,—the sun, as it

were, whose lustre and the spots that obscure its disk are alike

reflected by that class of society in which the evil complained of has

hitherto chiefly prevailed. Your influence on the “public opinion” of

this class is immense. Let your Lordships simply declare duelling to be

disgraceful, and it becomes so.

We, therefore,—for I speak but as one of a vast body who hold that

Christianity and true Conservatism are synonymous,—we, who in these days

of storm and tempest look to your Lordships as the sheet-anchor on which

the preservation of the state depends,—we who, respecting your wisdom,

and honouring your manly daring in the vindication and assertion of

truth and duty, deeply believe, however, and know with unalterable

conviction, that it is God’s blessing, and His only, which has hitherto

maintained, or can hereafter maintain, you in your posts and in your

usefulness; and who watch over you therefore with the jealousy of love,

lest in aught, through inadvertence, you come short of your high and

holy vocation. We call upon your Lordships, therefore, in the name of

God and man, as you would be consistent with yourselves, as you hope

God’s blessing to rest on your labours for your country’s good, to

accompany the verdict you pronounce on the solemn occasion about to

engage your attention with the fearless unqualified expression of your

united abhorrence of the unhallowed system of duelling.

I have the honour, &c.

LÆLIUS.

* * * * *

The following article contains a very graphic account of a duel, from

the origin down to the acquittal of the prisoner:—

THE LAW RESPECTING DUELLING.

TO THE EDITOR OF THE MORNING CHRONICLE.

SIR,

Your correspondent, whose communication on the subject of duelling you

printed on Friday, must have adopted the principle which he lays down

from an article in Knight’s Quarterly Magazine, a periodical which was

born and died some twenty years ago; but which, during its brief

existence, could boast some contributors who have since risen to

eminence; among others, _et facile princeps_, the Right Honourable

Thomas Macaulay, then at Cambridge—not, however, that I have the

slightest reason to believe the paper to which I refer to be his. As the

work is now scarce, I have made a copy of the article, which is at your

service.

I am, &c.

T.

* * * * *

Suppose a high-spirited, but good-natured, young man receives an insult.

It is possible that his first, or, at least, his second impulse, may be

to pass it over, and content himself with despising the brute who

offered it. The brute, however, mistaking love of peace for fear of war,

and glad of an opportunity of oppressing safely, repeats the aggression;

the bystanders, who, to a young man, are the representatives of all

mankind, past, present, and to come, begin to show by their looks that

they had not expected so much philosophy. Our hero gives or sends a

challenge; a “meeting takes place,”—the brute is shot dead, and nobody

regrets him, not even his creditors, for they had lost all hopes.

But, in the mean time, what is the situation of the young man and the

seconds? Divinity and Law have long ago settled the question—they are

murderers. A warrant is issued for their apprehension; they possess,

however, good friends who have spare attics, and the warrant cannot

reach them. But their mothers, sisters, mistresses, and maiden aunts,

who read in the papers that the coroner’s inquest has returned a verdict

of “Wilful murder against John Smith, Charles Jones, and William Brown,”

are in despair. The horrible visions of black caps, chains, and gibbets,

flit before their eyes; and, in short, whole families are thrown into

unaffected and very severe affliction. In the midst of all this

suffering the assizes approach, and the accused surrender themselves for

trial. The “unfortunate gentlemen” (to use the phraseology of the

newspapers) appear at the bar, “dressed in genteel mourning, and deeply

affected with their awful situation.” The counsel for the Crown details

the case, lays down the law, “under the authority of his Lordship,” and

then concludes by telling the jury, that, “if the facts are as he has

stated them, he cannot see how they will avoid pronouncing the verdict

of _guilty_; but he fervently hopes that something may arise to relieve

them from so painful a duty.” In the examination of the evidence

everybody is aware that the Judge, the counsel on both sides, and the

witnesses, are straining all their ingenuity to prevent a verdict

against the prisoners; and everybody sympathises with their endeavours.

His Lordship, in his charge to the jury, explains to them again that

every man killed in a duel is murdered; but he at the same time shows

that there are some technical defects in the evidence, which he places

before them in a strong light. The jury “turn round for a few minutes,”

and find a verdict of “Not guilty.” Upon this there is considerable

applause manifested among the auditory, “which meets with the marked

reprehension of his Lordship,” who threatens to commit the offenders.

The court is now cleared, all the world is pleased to find that poor

Smith is acquitted, agrees that duels are horrid things, and hopes that,

as they become so common, the Judge will direct the very next man who

fights one to be hanged.

In this little sketch, extravagant as it would appear to any rational

being who had never heard of the practice of duelling, we have tried not

to “o’erstep the modesty of nature.” How we have succeeded, our readers

must determine; but if we have erred we shall at least have no excuse;

for, judging from what has been done by others, it should seem

impossible either to preach, legislate, or write on the subject without

being betrayed into some absurdity.

To begin with the preachers. Does it not, we ask, perplex all our ideas

of morality to call the act of killing a man who has fired at me, and

who has agreed to let me fire at him, a murder? Has it anything in

common with stealing to his bed at the dead of night, and stabbing him

in his sleep? Try to shake hands with one murderer (if he must be so

called), and then with the other; do you not feel a difference? Can you

doubt for a moment which man you would rather be, whose feelings you

would rather have, whose remorse you would rather bear?

To legislators we have more to say. In the first place, they have

provided no practical remedy for the wrongs which are now attempted to

be redressed, or at least checked, by duels. If a fellow picks my pocket

of an old handkerchief, I have him transported without much trouble; but

if I am held up to the scorn and ridicule of my friends, provided the

artist be skilful in his profession, provided he can

“Spargere voces

Ambiguas,”

and play off “all the cruel language of the eye,” I am, even in theory,

without redress. Nay, he may venture to go much further, if he have

legal knowledge enough to remember all the nice distinctions which have

been made on the subject. For instance, he must not say I am a

highwayman, but may affirm with impunity that I am worse than a

highwayman; and he may load me with the epithets of “scoundrel, rascal,

villain, knave, miscreant, liar, and fool,”[9] as long as he pleases;

unless I can show that some actual loss in money, or money’s worth, has

accrued to me from his defamation. So that if my character stands so

high, or his character so low, that nobody believes him, he goes

unpunished. But we will suppose his rage to be so excessive as not to be

confined within these ample bounds—we will suppose that after carefully

noting down the words in my pocket-book, and calling upon the bystanders

to con them over often enough to fix them firmly in their memory until

the next assizes, I go to my attorney, and he enters an action against

the slanderer. In due time, I obtain a sight of the pleadings, and find

that I hold myself up as a person of the highest character, and impute

the ill-conduct of the defendant to his great envy of “my happy state

and condition.” Then the slanderous words are _set out_, as the lawyers

call it, with so much verbiage, that they appear quite ludicrous even to

myself. At length we come into court. My counsel affect great gravity,

which does not impose on a single individual; states my case to the

jury, the counsel for the defence laughing judiciously at every part of

his address which is likely to produce any effect. The jury, who do not

remember that an advocate may be paid for laughing as well as for

talking, are, (unconsciously, perhaps,) more influenced by the smiling

face than the oration. The witnesses are next examined, and another

opportunity is offered for covering the whole transaction with ridicule.

It is now the turn of my opponent’s counsel to speak. He represents the

affair as a foolish quarrel which happened a long time ago; wonders that

neighbours should come to tear themselves to pieces in a court of law;

takes hold of anything ludicrous in the defamatory expressions, makes

the audience laugh, and sits down. Now all this, on whichever side the

verdict may be given, is a real triumph to the aggressor; the public

feeling is too often with him: there is nothing natural or apposite in

the tribunal. The delay, the machinery, the expenses, and the formality

of the proceedings, cast an air of the mock-heroic over the whole

matter, very little tending to satisfy the mind of the injured party.

The offence, too, was addressed to the feelings, and the recompense is

one to be pocketed.

Thus it is clear that the law has provided no efficient remedy, and

perhaps can provide none, for a very large class of severe injuries. But

this is not all; the injured party is often willing, as far as his own

private feelings are concerned, to forego any redress, and bear the

aggression as he may. But society, which has made one law to punish the

duellist as a murderer, has, at the same time, by another, imposed upon

him the necessity of fighting. This latter law, it is true, does not

frown its terrors from columns of black letter, nor is it supported by

volumes of cases and commentaries; but we rather think that the want of

these auxiliaries is but too well compensated by the swiftness and

certainty of its administration. No waiting until the assizes or

sessions—no flaws in the indictment—no cajoling the jury. Whoever defies

public opinion is convicted _on view_, and punished immediately on

conviction. Who, then, shall say that he does not suffer by law? and

that, in fact, the two laws, one of which commands, and the other

prohibits duelling, are both the offspring of society? Is it, or can it

be, of the least importance to the sufferer by this tyranny, that the

framers of one of these enactments call the other law wicked and absurd?

It may be absurd; the duellist may feel and think it to be so, but is he

therefore to endure its punishment? Does he not act naturally, and we

may even add rationally, in obeying the power which can best carry its

will into execution? He knows that the penalty inflicted by the law of

public opinion is certain; he knows also that it is the most galling

which a man of high spirit and quick feelings can endure. On the other

hand, he can be sure, even reasoning _à priori_, that two opposing laws

cannot both exist in full vigour at one and the same time. But he has

better evidence; he finds by his daily experience that the statute-book

is almost a dead letter when it comes in contact with public opinion.

Legislators, too, often forget that laws will not administer themselves.

If a code of self-executing statutes could be framed, public feeling

might for a time be disregarded; or if some ingenious mechanic could

construct a steam-engine which, by different movements, should perform

the work of judge and jury, there would then be some chance that iron

laws might be enforced. But while the old plan of manual labour is

pursued—while judges and juries, and witnesses and counsel, are human

beings, and live in society, it will be in vain to expect from them the

enforcement of edicts which run counter to all their sympathies. Let it

not be supposed that we think harshly of legislators; we do not; but

they have to do only with abstractions. It is easy to fulminate the

terrors of the law against A, B, C, or any or all of the letters in the

alphabet; but it is a very different thing to execute those threats upon

real men of flesh and blood. A, B, and C, have no eyes; A, B, and C,

have no hands, organs, senses, affections, passions. They are not fed

with the same food, hurt with the same weapons, subject to the same

diseases, healed by the same means, warmed and cooled by the same winter

and summer as men are. “If you prick them, they do not bleed; if you

tickle them, they do not laugh; if you poison them, they do not die; and

if you wrong them, they cannot revenge.” Poor A, B, and C, have neither

mothers, mistresses, aunts nor sisters; they do not “appear at the bar

in genteel mourning;” they are not “unfortunate gentlemen.” In short,

they can awake no sympathies; and there is no possible reason why the

law should not take its course in the cases of such wicked and daring

offenders, except that these abstractions cannot be caught.

With respect to one class of the community, officers in the army, the

case is even more glaringly absurd and unjust; for, with regard to them,

the laws of the land are actually at variance among themselves. By the

Mutiny Act, the King has an “unlimited power to create crimes, and annex

to them any punishment not extending to life or limb.”[10] If, then, he

shall be found to have exercised the power in the punishment of officers

for not fighting duels our position will be fully proved.[11]

The intelligent reader must have been, at some time, struck with the

mass of contradictions which, in one shape or other, has been offered to

the world on the subject of duels; divines and law-givers crying murder;

commentators[12] extolling the justice of laws which cannot be executed;

historians[13] deducing effects which they call good, from causes which

they call absurd; and lastly, the world at large, admitting all that can

be said against duels, sometimes demanding sanguinary punishments, which

they would shrink from seeing executed, and sometimes allowing that

although they are shocking things, yet they are necessary “in a certain

rank of life.”

While the public mind is in such a chaos, it is almost hopeless to

expect any speedy amelioration, either in the law, or in popular

opinion. Yet the period of improvement may not be so infinitely distant

as at first sight we should be led to suppose.

The great principle of legislation, that the severity of punishment

ought not to be so great as to shock the general feeling, is gradually

toiling its way from the works of _theorists_ (as they are called), into

the heads of _practical men_, and in the course of a few ages these

latter gentlemen may also be taught, that to visit with the same penalty

the aggressor and his antagonist, whom he has forced into a duel, is not

quite consistent with sound and enlightened maxims of justice; and, what

will probably have more weight, they may discover that it is a species

of legislation which cannot be carried into effect. In equally

reasonable time it may be found, that what cannot be entirely abolished

may be regulated. Suppose that after a duel was fought, the law

condescended to inquire into the merits of the dispute, and punish him

who had provoked the outrage; is it not probable that fear of legal

punishment, superadded to the danger of being shot, would prevent some

of those aggressions from which duels arise? Even the master of that

most valuable accomplishment, the power of snuffing a candle with a

pistol-bullet, might shrink from such an investigation as this, which

would naturally be followed up with a severe penalty. Public feeling

would offer no obstacle. The wretch who wantonly, or perhaps

maliciously, puts a fellow-creature under the necessity of either

suffering mental pain and degradation, or exposing his life to extreme

danger, deserves no sympathy, and would receive none.

Nor ought the second, who assisted such a man, wholly to escape. To a

certain degree he would be an object of public displeasure, and might

therefore be visited with a punishment bearing some proportion to that

of his principal. Where blame fairly attaches to both parties, then, let

both be punished; but let the penalty have relation to the common

feelings of mankind. It is impossible to treat the survivor in such a

duel as a murderer, but he ought not therefore entirely to escape. The

law as it now stands resembles Thor in _Jutenheim_; his hammer was able

to beat down rocks, but he struck at shadows, and his real enemies

laughed at his blows.

Much good would result from making it the duty of the coroner to hold an

inquest after every duel, whether the consequences had been fatal or

not. When a pistol is discharged, accident alone determines what shall

be the consequence. The guilt of the shooter is just the same, whether

the ball take effect or not. It is true the parties might, according to

the law as it now exists, be prosecuted, and since Lord Ellenborough’s

Act they are liable to be capitally convicted; but it has not been made

the particular duty of any public officer to see the law put into

execution, and consequently nothing is done. Since, however, a great,

and perhaps the greatest part of the efficacy of punishment results from

the certainty of its infliction, it is evident that every temptation to

violate the law, from the hope that accident will be favourable, ought

to be cut off.

In the present state of society, the total abolition of duels cannot, as

experience abundantly shows, be effected. A speedy, certain, and

reputable method of punishing insults must first be discovered and

established. At present, with respect to those injuries, society is in a

state of nature. The right of private war has only been surrendered,

because the individual is better protected by the arm of the law than by

his own strength. Whenever there shall be instituted a supreme court, to

act as arbiter among nations, public war will, for the same reason, fall

into disuse, or will only be made for the purpose of chastising a

refractory member of this great community, just as the police officers

may be said to carry on war against the criminals whom they apprehend.

But as it would be preposterous to expect a nation to sit down quietly

under its wrongs until such a court is appointed, so it is equally

unreasonable to demand that private men should always refrain from

redressing, by their own means, those grievances for which the law

offers no remedy. By the plan which we have proposed the balance of pain

would be fearfully against the aggressor; and that noxious animal, the

bully, must soon become extinct. At present he stands on equal ground

with his antagonist; or rather, from having made a just estimate of the

worthlessness of his own life, he is aware that the stakes are in his

favour. Add to this, he generally has no better occupation for his time

than to become very expert at his weapons. In England, these creatures

are happily become rare; but in Ireland, notwithstanding its boasted

exemption from venomous animals, in France, in the United States, and in

our own colonies, the breed still flourishes—at once the terror and the

disgrace of civilized society.

THE END.

---------------------

LONDON: PRINTED BY SAMUEL BENTLEY, BANGOR HOUSE, SHOE LANE.

FOOTNOTES

-----

Footnote 1:

See Spelman’s Glossary ad vocem “Campus.”

Footnote 2:

The following is his memorable letter written to Lord Viscount

Villiers in the year 1616:—

“MY VERY GOOD LORD,—Yesterday was a day of great good for his

Majesty’s service, and the peace of this kingdom concerning duels, by

occasion of d’Arcey’s case. I spake big, and publishing his Majesty’s

strait charge to me, said, it had struck me blind, as in point of

duels, cartels, &c., I should not know a coronet from a hatband. I was

bold also to declare how excellently his Majesty had expressed to me a

contemplation of his concerning duels; that is, that when he came

forth and saw himself princely attended with goodly noblesse and

gentlemen, he entered into the thought, that none of their lives were

in certainty, not for twenty-four hours, from the duel; for it was but

an heat or a mistaking, and then a lie, and then a challenge, and then

life; saying, that he did not marvel seeing Xerxes shed tears to think

not one of his great army should be alive in a hundred years. His

Majesty was touched with compassion to think that not one of his

attendants but might be dead within twenty-four hours by the duel.

This I write, because his Majesty may be wary what he saith to me (in

things of this sort), I being so apt to play the blab. In this also, I

forgot not to prepare the judges, and wish them to protest, and as it

were to denounce, that in all cases of duel capital before them, they

will use equal severity towards the ‘_insolent_’ murder by the duel,

and the ‘_insidious_’ murder; and that they will extirpate that

difference out of the opinion of men, which they did excellently

well.”

Footnote 3:

Charles Moore.

Footnote 4:

Whitelocke’s Memorials.

Footnote 5:

William, first Duke of Devonshire.

Footnote 6:

The officious interference of the Speaker on this occasion was

evidently offensive to the professional character of Dr. Brocklesby

and Mr. Graves; and Mr. Wilkes, by the delicacy of his behaviour,

conveyed a severe censure on his conduct and that of the House.

Footnote 7:

On discovering his wound, and in allusion to a report then prevalent

as to the badness of the ammunition supplied to the army, it is said

that Fox jocosely exclaimed, “Egad! Adam, it would have been all over

with me, if you had not been charged with Government powder!”

Footnote 8:

See pp. 327, 349.

Footnote 9:

Christian’s Blackstone, vol. iii. p. 125.

Footnote 10:

Blackstone.

Footnote 11:

See the verdict of a court-martial, holden 1818, on charges preferred

against Lieutenant-Colonel Abernethie, of the Marines, for

_neglecting_ to demand the “_honourable adjustment_” of a dispute, and

the subsequent decision of the Prince Regent on that occasion.

Footnote 12:

Blackstone.

Footnote 13:

Robertson.

● Transcriber’s Notes:

○ Missing or obscured punctuation was silently corrected.

○ Typographical errors were silently corrected.

○ Inconsistent spelling and hyphenation were made consistent only

when a predominant form was found in this book.

○ Text that was in italics is enclosed by underscores (_italics_).