The attorney-general addressed their lordships as follows:--"I have the

honour to attend your lordships on this occasion as attorney-general for

her majesty, to lay before you the circumstances of the case upon which

you will be called to pronounce judgment, without any object or wish on

my part, except that I may humbly assist your lordships in coming to a

right conclusion upon it, according to its merits. An indictment has

been found against a peer of the realm by a grand jury of 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.

The Chronicles of Crime or The New Newgate Calendar. v. 2/2 being a series of memoirs and anecdotes of notorious characters who have outraged the laws of Great Britain from the earliest period to 1841 · 第 87 / 90 段