honour to attend your lordships on this occasion as attorney-general for
her majesty, to lay before you the circumstances of the case upon which
you will be called to pronounce judgment, without any object or wish on
my part, except that I may humbly assist your lordships in coming to a
right conclusion upon it, according to its merits. An indictment has
been found against a peer of the realm by a grand jury of his country,
charging him with a felony, the punishment of which is transportation or
imprisonment. That indictment has been removed before your lordships at
the request of the noble prisoner, and, I must say, most properly
removed, for an inferior court had no jurisdiction to try him. The
charge is, upon the face of it, of a most serious character, and it
would not have been satisfactory if it had gone off without any inquiry.
The policeman, however, who was bound over to prosecute, fulfilled his
recognizances by appearing at the Central Criminal Court, and preferring
the indictment. It is possible that in the course of this trial,
questions of great magnitude on the construction of acts of Parliament
or respecting the privileges of the peerage may arise, which it is of
great importance to this house, to the crown, and to the community,
should be deliberately discussed. According to all the precedents that
can be found, whenever a peer has been tried in Parliament, the
prosecution has been conducted by the law-officers of the crown.
Fortunately, we have no living memory on this subject. It is now
sixty-four years since any proceeding of this sort has taken place, and
I am rejoiced to think that on the present occasion the charge against
the noble prisoner at the bar does not imply any degree of moral
turpitude, and that, if he should be found guilty, his conviction will
reflect no discredit on the illustrious order to which he belongs. At
the same time, it clearly appears to me that the noble lord at the bar
has been guilty of infringing the statute law of the realm, which this
and all other courts of justice are bound to respect and enforce. Your
lordships are not sitting as a court of honour, or as a branch of the
legislature; your lordships are sitting here as a court bound by the
rules of law, and under a sanction as sacred as that of an oath. 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, when 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. By that act
certain personal injuries, without death, were made felonies without
benefit of clergy. Then came the Coventry Act, 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 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, in 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, is 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, he 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, or for
wilfully, maliciously, and unlawfully presenting, pointing, or levelling
any kind of loaded fire-arms at any of his majesty's subjects, and
attempting, by drawing a trigger, or in any other manner, to discharge
the same at or against his or their person or persons, or for the
wilfully, maliciously, and unlawfully stabbing or cutting any of his
majesty's subjects, with such intent as aforesaid, that such acts of
stabbing or cutting were committed under such circumstances as that if
death had ensued therefrom the same would not in law have amounted to
the crime of murder; 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, or disfigure, or do grievous
bodily harm, but the offence came within the statute only when, if death
would have ensued, it would, under the circumstances, 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
for the Home Department. This is an act for consolidating and amending
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 11th section enacts:--"That if any
person unlawfully and maliciously shall administer or attempt to
administer to any person, or shall cause to be taken by any person, any
poison or other destructive thing, or shall unlawfully and maliciously
attempt to drown, suffocate, or strangle any person, or shall unlawfully
and maliciously shoot at any person, or shall, by drawing a trigger, or
in any other manner attempt to discharge any kind of loaded arms at any
person, or shall unlawfully and maliciously stab, cut, or wound any
person, with intent, in any of the cases aforesaid, to murder such
person, every such offender, and every person counselling, aiding, or
abetting such offender, shall be guilty of felony, and, being convicted
thereof, shall suffer death as a felon." By the 12th section it is
enacted:--"That if any person unlawfully and maliciously shall shoot at
any person, or shall, by drawing a trigger, or in any other manner,
attempt to discharge any kind of loaded arms at any person, or shall
unlawfully and maliciously stab, cut, or wound any person, with intent,
in any of the cases aforesaid, to maim, disfigure, or disable such
person, or do some other grievous bodily harm to such person, or with
intent to resist or prevent the lawful apprehension or detainer of the
party so offending, or of any of his accomplices, for any offence for
which he or they may respectively be liable by law to be apprehended or
detained, every such offender, and every person counselling, aiding, or
abetting such offender, shall be guilty of felony, and being convicted
thereof, shall suffer death as a felon." This act contains the same
proviso as was inserted in Lord Ellenborough's; but 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 till the act was passed on which the present
indictment is framed. That 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 repeal so much of the act of
the 9th George IV., and of the 10th of the same reign, 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, or who shall unlawfully and
maliciously stab, cut, or wound any person, &c. And by the second and
third sections it is enacted:--"That whosoever shall administer to or
cause to be taken by any person any poison or other destructive thing,
or 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 thereof, shall suffer death. And be it
enacted, that whosoever shall attempt to administer to any person any
poison or other destructive thing, or shall shoot at any person, or
shall, by drawing a trigger, or in any other manner, attempt to
discharge any kind of loaded arms at any person, or shall attempt to
drown, suffocate, or strangle any person, with intent in any of the
cases aforesaid to commit the crime of murder, shall, although no bodily
injury shall be effected, be guilty of felony, and being convicted
thereof shall be liable, at the discretion of the court, to be
transported beyond the seas for the term of his or her natural life, or
for any term not less than fifteen years, or to be imprisoned for any
term not exceeding three years." Therefore, to shoot at a person and
inflict a wound dangerous to life, remains by this act a capital
offence; but the act of shooting, when no wound is inflicted, is no
longer a capital offence, and remains a felony punishable only with
transportation or imprisonment. The fourth section enacts:--"That
whosoever unlawfully and maliciously shall shoot at any person, or
shall, by drawing a trigger or in any other manner, attempt to discharge
any kind of loaded arms at any person, or shall stab, cut, or wound any
person, with intent in any of the cases aforesaid to maim, disfigure, or
disable such person, or to do some other grievous bodily harm to such
person, or with intent to resist or prevent the lawful apprehension or
detainer of any person, shall be guilty of felony, and being convicted
thereof shall be liable, at the discretion of the court, to be
transported beyond the seas for the term of his or her natural life, or
for any term not less than fifteen years, or to be imprisoned for any
term not exceeding three years." This act contains no such proviso as is
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 respect to the second
and third counts of the indictment. 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 his lordship with the same
act with intent to maim, disfigure, or disable Captain Tuckett, and the
third count charges him with the same act with intent to do Captain
Tuckett 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 on 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 Wimbledon 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, and his son, and Sir
James Anderson, a surgeon, who was standing close by, went up
immediately. The wound was examined: it bled freely but most
fortunately--and I am sure that no one rejoices at the circumstance more
than the noble prisoner at the bar--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 J. 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
Captain Tuckett 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 still 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, but 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 Busaine, 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 Captains Tuckett and Wainwright, but the grand jury
have 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,
probably, when they would be on trial for their lives. I shall call Sir
J. 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, whilst 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,'
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 was such a competent distance of
time that in common presumption they had time of deliberation--then it
is murder.' In the 1st vol. of 'Hawkins' Pleas of the Crown,' cap. 13,
sec. 21, p. 96, the law on this subject is thus laid down:--'It seems
agreed, that whenever two persons in cold 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 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 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 falls 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 deeper dye. Sir M. Foster, in his discourse
on homicide, says:--'Upon this principle deliberate duelling, if death
ensues, is, in the eye of the law, murder, because it is generally
founded on a feeling of revenge. And if a person be drawn into a duel,
not from motives so criminal, but merely for the protection of what he
calls his honour, that is no excuse for those who, in seeking to destroy
another, act in defiance of all laws human and divine. But if, on a
sudden quarrel, parties presently fetch their weapons, and go into a
field and fight, and one of them is killed, that is manslaughter,
because it is presumed that their blood never cooled. Otherwise, if the
parties appoint the next day to meet, or even the same day, at such an
interval as that their passion may have subsided, or if from
circumstances in the case, it may be reasonably presumed that their
judgment had controlled the first transports, if death then ensue, it is
murder. The same rule will hold if, after a quarrel, the parties fall
into other conversation or discussion, and remain so engaged, so as to
afford reasonable time for cooling,' Blackstone, in his fourth volume,
p. 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.' Those are the highest authorities known to the law
of England, and they are uniformly followed by the English judges. Such
being the definition of murder constantly given from the bench on trials
for life and death, ought not your lordship 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 that of the 9th of
George IV., and in that 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. However painful the
consideration may be, does it not necessarily follow that the first
count of the indictment is completely proved? 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 quarrelled, and, whilst their blood
was hot, fought; but your lordships will hardly strain the facts so far
as to say 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
count 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 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 have lately
witnessed with reluctance and regret. I therefore attach the greatest
weight even to 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 4th 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, 1838; and I will read what is material to your lordships: The
case first recites the 9th of George IV., sec. 11 and 12, and the
preamble, and enacting part of the 1st of 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 of subjects,
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 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 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 parliament being to make offences, before
capital, punishable only by transportation, 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, even though if death had ensued, it would not, under the
circumstances, have amounted to the crime of murder. Looking at 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 that 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 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 on
the facts and merits of the case. This privilege is secured to the noble
prisoner under the admirable law your lordships passed a few years ago,
by which, in all cases, the party 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, it would be in vain--to forget the law by which you are bound.
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 my most distinguished 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 an 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 truth and the justice of the case, and that you will
preserve the high reputation in the exercise of judicial functions which
has so long been enjoyed by your lordships and your ancestors."
The evidence of the various persons who had witnessed the transaction of
the duel, and which supported the statement made by the learned
Attorney-general, was then produced; but, at the close of the case, it
was objected by Sir William Follett, on behalf of the Earl of Cardigan,
that there was no evidence to show that the person against whom the shot
was discharged was Mr. Harvey Garnett Phipps Tuckett. The card of "Mr.
Harvey Tuckett" had been put in; but this might be quite another person
from the individual pointed to by the indictment.
The Attorney-general was heard on the other side; but, after a short
deliberation, the lord high steward announced that the evidence which
fixed the identity of the individual was insufficient; and the peers
thereupon declared the noble defendant "Not guilty."
At the Central Criminal Court, on Wednesday the 3rd of March, Captain
Douglas was put upon his trial, before Mr. Justice Williams, upon the
indictment which had been found against him; but the jury, in the
absence of positive evidence to identify Mr. Tuckett, came to the same
conclusion as that which had been arrived at by the House of Peers; and
a verdict of acquittal was returned.
HARRISON FLATHER.
IMPRISONED FOR LARCENY.
We cannot refrain from presenting to the notice of our readers the
circumstances of this very singular case.
At the assizes at Carlisle, on the 23rd of February 1841, Harrison
Flather was indicted for stealing five sovereigns, a purse, and a pair
of ear-rings, the property of Morris Davis.
It appeared from the opening statement of the counsel for the
prosecution, that the prosecutor, Mr. Morris Davis, was a Pole, and had
been for some time resident in Carlisle, where he carried on business as
a furrier. The prisoner was writing-master to the grammar-school, and
was on this account probably selected by the prosecutor to give him
lessons in the English language, and especially in writing and accounts.
In the course of this employment a friendship sprung up between them;
and Mr. Flather was finally made the confidant of the prosecutor in a
matter of great delicacy, and was employed by him to conduct a
correspondence with a young lady, to whom the prosecutor had become
attached. Two letters were addressed by Mr. Davis to Miss Moore, the
lady in question, the prisoner Flather being employed as amanuensis.
Miss Moore was absent from Carlisle when these letters were sent to her
residence; but immediately on her return she enclosed them to the
prosecutor, and there, so far as she was concerned, all correspondence
ceased. It appeared, however, that letters continued to be written in
her name to the prosecutor, which he received through the Carlisle post.
In these, reasons flattering to Mr. Davis were given for a renewal of
the correspondence. Mr. Flather continued in Mr. Davis's confidence,
read and explained the letters when received, wrote the answers, and to
his hands the delivery of them was confided. Early in the
correspondence, however, a circumstance occurred which, had Mr. Davis
been better acquainted with the feelings and manners of English women,
would certainly have awakened his suspicions; this was an application
for money, specifying the precise sum which the lady wanted. Many of
these applications were made, and always complied with. Among others was
one on the 19th of November 1840, which formed the subject of the
present charge. An application was made for five guineas, and, in
replying to it, Mr. Davis took the opportunity of further inclosing a
purse and a pair of jet ear-rings, which he had purchased for the
purpose. One of the shillings enclosed was somewhat remarkable, being
marked with the letter "A" on the head of the impression. About a month
afterwards an inquiry took place, and it then appeared that Miss Moore
knew nothing whatever of this pretended correspondence, and had never
received any letter or communication from Mr. Davis whatsoever, except
the two first, which she had promptly returned. The prisoner was
apprehended; his house was searched; and there was found the identical
shilling which Mr. Davis had so inclosed to Miss Moore some time before,
and committed, as he had committed the other inclosures, to the hands of
the prisoner.
To support this statement in evidence, Mr. Morris Davis and other
witnesses were called. The simple Pole detailed the circumstances under
which he had been so impudently bamboozled by the prisoner with much
ingenuousness. He had set great store upon the supposed effusions of
Miss Moore, which amounted to between twenty and thirty in number, and
kept them tied up in a bundle in his parlour. On the Friday before the
Christmas-day preceding the prosecution, however, he quitted his
sitting-room, while the prisoner was there, for a short time, and, on
his looking for the love-letters a few days afterwards, he found that
they were gone. The letters were usually couched in the most
affectionate terms, commencing "My dear, dear love," and terminating,
"Your ever affectionate betrothed wife, E. Moore;" but the greater part
of them contained requests for the loan of money, the amount of the sum
demanded varying from 2_l._ to 5_l._ He invariably complied with the
demands made, and advanced in all no less than 85_l._ Flather always
took away the letters; and the answers either came by his hands or
through the post. He never had any suspicion that anything was wrong
until he learned that Miss Moore was at Liverpool at the same time that
he supposed she was writing to him from her residence at Carlisle.
On his cross-examination, Davis admitted that he was a person of
inferior education, and that he was scarcely able to read or write his
own or any other language. He had paid Flather a guinea for the
instruction which he received from him, and a guinea for the
love-letters; but the schoolmaster frequently took his meals at his
house. Flather had also kept his books and had written business-letters;
and since this prosecution an attorney had applied for the amount of an
alleged claim he had upon him in this respect, which, however, he had
not paid. In reference to the love affair the witness said, that he knew
nothing of Miss Moore except that she had dealt at his shop, and that
she had never personally favoured his advances. After the first two
letters had been returned, he asked her whether she had sent them back,
and she answered in the affirmative. He replied that he was satisfied;
but subsequently he was induced to recommence the correspondence, upon
receiving a note, apparently from her, stating that she had been
compelled to discourage his addresses in obedience to the wishes of her
friends, and that she was desirous of maintaining a communication with
him. In subsequent letters she made appointments to meet him, which,
however, were invariably postponed; and she even went so far as to speak
of running away with him to Gretna-Green, for which purpose he sent her
5_l._ in obedience to her request; but this scheme was also abandoned.
Miss Moore, of Paternoster-row, Carlisle, was called to prove that she
had never written letters to the prosecutor, and had never received any
from him through the medium of the prisoner; and other witnesses spoke
to the facts opened by the prosecuting counsel, as well as to the
additional circumstance that green-edged paper, like that on which Miss
Moore's supposed letters had been written, had been found in the
possession of the prisoner.
The jury found the prisoner "Guilty." He was then tried upon a second
indictment, charging him with a like offence in reference to some of the
other sums which he had obtained of the prosecutor, and a similar
verdict was returned.
Mr. Justice Maule immediately sentenced him to be confined in the House
of Correction for sixteen months.
RICHARD MOORE.
TRANSPORTED FOR FORGERY.
At the Central Criminal Court, on Saturday the 6th of February 1841,
Richard Moore, aged thirty, was indicted for feloniously uttering and
putting off a forged note, purporting to be a genuine note of the Salop
bank, for 5_l._ well knowing the same to be forged, with intent to
defraud Messrs. Glyn, Halifax, Mills and Co., the bankers, of
Lombard-street.