Chapter XIII: Part III: Duelling (2)

This was the first time that duelling had been made the subject of prosecution under the statutes against shooting with intent to kill, maim, disable, or do grievous bodily harm; and the position of the Earl of Cardigan had suddenly become perilous in the extreme, and doubtless occasioned most serious apprehensions to himself and his advisers. If his case should be held to fall within the statute in question, not only was he liable to transportation for life,--and he knew that the House of Peers would firmly do its duty, especially conscious as it was that upon it were fixed the eyes of the whole country,--but what would be the effect of _a conviction of felony_ on his property? Four days after the trial, it was stated in the _Times_ newspaper,[55] and has not been, as far as we know, contradicted, that "such had been the doubts as to the issue of the trial, entertained by Lord Cardigan and his legal advisers, that his lordship, to prevent the whole of his property being forfeited to the crown, executed, some time before, a deed of gift, assigning over the whole of his valuable possessions to Viscount Curzon, the eldest son of Earl Howe, who had married a sister of the Earl of Cardigan. It is stated that the legal expenses of this transfer of property, arising from fines on copy-holds and the enormous stamp-duties, amounted to about £10,000; and as the deed of transfer was said to have been enrolled in due form, in the event of an acquittal the immense expenditure would have to be again incurred, in order to effect a re-transfer." So serious a matter, even in a pecuniary point of view, has now become the fighting a duel, to a nobleman or gentleman of fortune, who are recommended, consequently, not to fight in a hurry--at all events, till they shall have had an opportunity of taking the best advice of counsel learned in the law. The deed of transfer in question, if executed at all, had probably been executed before it was known to Lord Cardigan and his advisers, that it was not intended to indict him for a capital offence, under the second section of stat. 1 Vict. c. 85, and that he could not, consequently, be attainted. Even, however, as the case stood, if he had been convicted of the felony with which he was charged, the validity of his expensive attempt to obviate the legal effect of that conviction upon his large property would have been gravely questionable, had the law advisers of the crown felt it their duty to impugn the transaction.

The House of Lords presented, on the morning of Tuesday the 16th February 1841, a most imposing appearance. Lord Denman, the Lord Chief Justice of the Queen's Bench had been appointed by commission from the Queen, _pro hâc vice_, Lord High Steward.[56] The judges were in attendance in their state robes, and took their seats on the woolsack. The peers were attired in their robes, such of them as were knights also wearing the collars of their respective orders. The Lord Chancellor (Lord Cottenham) was absent through illness; but there were, independently of the Lord High Steward, no fewer than five law lords present--Lords Lyndhurst, Brougham, Wynford, Abinger, and Langdale. The side galleries were covered with ladies; and the scene was one of great solemnity and magnificence. The Lord High Steward having made reverences to the throne, to which he had been conducted by the state officer--the Garter King-at-Arms bearing the sceptre, and the Gentleman Usher of the Black Rod the Lord Steward's staff--took his seat on the chair of state placed on the upper step but one of the throne. The necessary formalities of reading the commission, the writ of certiorari, and indictment, having been gone through, the Lord High Steward ordered proclamation to be made to the Yeoman Usher of the Black Rod "to bring James Thomas, Earl of Cardigan, to the bar." This was quickly complied with--the Earl, accompanied by the officer above mentioned, appearing at the bar, dressed in plain clothes. As he approached, he made three "reverences," and knelt, till directed by the Lord High Steward to rise. He again made three reverences, respectively to the Lord High Steward, and his brother peers on each side of the house, they returning his courtesy. He was then conducted to a stool within the bar near his counsel. His demeanour was calm and dignified, and he had a very soldierly bearing. He was then in his forty-fourth year. The Lord High Steward's deep impressive tones were then heard, as he thus addressed the noble prisoner: "My Lord Cardigan, your lordship stands at the bar charged with the offence of firing with a loaded pistol at Harvey Garnett Phipps Tuckett, with intent to murder him; in a second count, you are charged with firing with intent to maim and disable him; and in a third count, you are charged with firing with intent to do him some grievous bodily harm. Your lordship will now be arraigned on that indictment." The Earl was then arraigned in the usual manner, by the Deputy Clerk of the Crown, in the Queen's Bench, who thus proceeded:--

"How say you, my Lord, are you guilty of the felony with which you stand charged, or not guilty?"

_Earl of Cardigan._--Not guilty, my lords.

_Deputy Clerk of the Crown._--How will your lordship be tried?

_Earl of Cardigan._--By my peers.

_Deputy Clerk of the Crown._--God send your lordship a good deliverance.

The Earl then, by leave of the House, sate down uncovered: and after the usual proclamation had been made for all persons to come forward and give evidence, the Lord Steward, with the leave of the House, descended from his seat on the throne, and took his seat at the table. The counsel for the Crown were the Attorney-General (the present Lord Campbell), and Mr Waddington, (now Under Secretary of State); and for the prisoner, Sir William Follett, Mr Serjeant Wrangham, and the late Mr Adolphus. It has been said, and is indeed intimated by Mr Townsend, that, imperturbable as was the self-possession of Sir William Follett, on this occasion he exhibited unusual indication of an oppressive sense of responsibility. Both facts, indeed, and law were so dead against his noble client, and the consequences of conviction so exceedingly serious, that nothing was left for him but to watch with lynx-eyed acuteness, in order to see that nothing but rigorously exact legal proof was adduced against his client.

The opening address of the Attorney-General was temperate, clear, and able; most faithfully stating the law which he charged Lord Cardigan with having violated, and the facts constituting the violation. He reminded the House that sixty-four years had elapsed since a similar trial had taken place--that of Lord Byron, for killing his opponent in a duel. "I am rejoiced, my Lords, to think," continued the Attorney-General, in terms which immediately occasioned great observation, "that the charge against the noble prisoner at the bar _does not imply any degree of moral turpitude_; and that, if he should be found guilty, the conviction will reflect no discredit upon the illustrious order to which he belongs. But, my Lords, it seems to me that he has been clearly guilty of a breach of the statute law of the realm, which this and all other courts of justice are bound to respect and enforce. Your lordships are not sitting here as a court of honour, or as a branch of the legislature, but as a court of justice, bound by the rules of law, and under a sanction as sacred as that of an oath.... Your lordships are aware that the noble Earl is in the army--Lieutenant-colonel of the 11th Hussars; and I have no doubt that, on this occasion, he only complied with what he thought necessary to the usages of society. But, under these circumstances, though it would have been considered, if death had ensued, _a great calamity, and not a great crime_--though moralists of the highest authority have defended duelling--it remains for your lordships to consider what duelling is by the law of England." After quoting from the known great authorities, Hale, Hawkins, Foster, and Blackstone, proving that a death by duelling was wilful murder, the Attorney-General correctly observed--"It necessarily follows, from this definition of murder, that the _first count_ of the indictment is [that is, he expected that it would be] completely proved. The only supposition, my Lords, by which the case can be reduced to one of _manslaughter_ would be, that Lord Cardigan and Captain Tuckett _casually_ met at Wimbledon Common--that they _suddenly_ quarrelled--and that, while their blood was up, they fought. But your lordships can hardly strain the facts so far as to suppose that this was a casual meeting, when you find that each was supplied with his second--that each had a brace of pistols--and that the whole affair was conducted according to the forms and solemnities observed when a deliberate duel is fought." Could anything be more clear and cogent? "Then, my Lords, with regard to the second and third counts of the indictment, I know not what defence can possibly be suggested; because, even if there had been this casual meeting, contrary to all probability and all the circumstances of the case--if it would only, had death ensued, have amounted to the crime of manslaughter--that would be no defence to the second and third counts of the indictment, as has been expressly decided (in the case of _Anonymous_, 2 Moody's Crim. Cases, p. 40) by the fifteen Judges of England."

Such was the opening of the Attorney-General--such as must have left not a single crevice through which a glimpse of hope could be caught. The words of the Act of Parliament could not have applied more exactly to the facts of the case, as our readers must see, even if the act had been expressly framed to meet these particular facts! The miller of Wimbledon, his wife and son, had witnessed the whole affair--the arrival of the parties on the ground, and the double interchange of shots. Lord Cardigan, on the spot, and at the police office, in plain terms avowed who he was, and what he had done, and who had been his second--the inspector of the police-station being present to prove such avowal. Sir James Anderson, the surgeon, who had also seen the duel, and accompanied Captain Tuckett home, was in attendance as a witness. The miller, who had received Captain Tuckett's card, went, a week afterwards, to the residence mentioned in the card, and asked for, and saw, Captain Tuckett. It would seem as though the wit of man could not suggest how these facts could be evaded, or how they could fail of being proved! Yet the case totally broke down; the whole prosecution crumbled into pieces, under the subtle and watchful dexterity of the consummate advocate to whom Lord Cardigan had committed his almost hopeless case. What does the reader suppose to have been the fatal flaw? The prosecution could not prove THE IDENTITY OF CAPTAIN TUCKETT! Each of the three counts in the indictment charged Lord Cardigan with having fired at--Harvey _Garnett Phipps_ Tuckett. That was his real name, but it became impossible to prove the fact; and, without such proof, the prisoner was, beyond all question, entitled to an acquittal. A man cannot be indicted for firing at A B, and convicted of firing at C D. If Captain Tuckett had been called, he could, of course, have instantly disposed of the difficulty; and it is said that that gentleman was actually in, or near, the House of Lords; but the Attorney-General explained that he could not call that gentleman, nor his second, because, though the bill against them had been ignored by the grand jury, "they were still liable to be tried," and therefore "it would not be decorous to summon them to give evidence which might afterwards be turned against themselves." And as for Captain Wainwright, he was in the situation of his noble fellow prisoner, as a true bill had been found against him at the Central Criminal Court. What, then, shall be said against calling Sir James Anderson? Fortunately for himself and for Lord Cardigan, he was in a position to be tried himself on a charge of having been present, aiding and assisting at the commission of a felony. On this gentleman being sworn, the Lord High Steward thus cautioned him, as he was bound to do in the case of any witness similarly situated:--

"Sir James Anderson,--With the permission of the House, I think it my duty to inform you, after the opening we have heard made by the Attorney-General of the facts of the case, that you are not bound to answer any question _which may tend to criminate yourself_." Doubtless, Sir James Anderson expected nothing less, and had come to the House of Lords perfectly at his ease. Therefore he came like a shadow, and so departed. Thus "had he his entrance and his exit."

"_Attorney-General._--Of what profession are you?

"_A._--I am a physician.

"_Q._--Where do you live?

"_A._--New Burlington Street.

"_Q._--Are you acquainted with Captain Tuckett?

"_A._--I must decline answering that.

"_Q._--Were you on Wimbledon Common on the 12th September last?

"_A._--I must decline answering that also!

"_Q._--Were you on that day called in to attend any gentleman that was wounded?

"_A._--I am sorry to decline that again!

"_Q._--Can you tell me where Captain Tuckett lives?

"_A._--I must decline answering the question!

"_Q._--Has he a house in London?

"_Sir William Follett._--He 'declines to answer the question.'

"_A._--I have already said that I decline answering the question.

"_Attorney-General._--Where did you last see Captain Tuckett?

"_Sir William Follett._--We [the counsel for the prisoner] have no _right_, my Lords, to interfere in this case;[57] but, the witness having several times declined to answer the question, I apprehend that it is not regular for the Attorney-General, by circuitous questions, to endeavour to get him to answer.

"_Attorney-General._--I have never pressed him in any question I have put. [_To Sir James Anderson._]--Do you decline answering any question whatever respecting Captain Tuckett?

"_A._--_Any_ question which may 'tend to criminate' myself.

"_Q._--And you consider that answering any question respecting Captain Tuckett _may_ tend to criminate yourself?

"_A._--It is possible that it would.

"_Q._--And on that ground you decline?

"_A._--Yes.

"_Attorney-General_, [_to the House_.]--Then, unless your Lordships wish to ask any question of the witness, he may withdraw.

"The witness was directed to withdraw."

Here, then, were four avenues through which light might have been thrown on a transaction which was the subject of such solemn and dignified inquiry by the most illustrious judicial assembly in the world, carefully closed: Sir James Anderson, Captain Tuckett, Captain Douglas, and Captain Wainwright. It will be further observed that Lord Cardigan, in his frank avowal at the police station, had happened not to mention the name of the gentleman whom he had fought and wounded--an omission probably altogether accidental, for his Lordship seems to have been in a humour of signal yet becoming and characteristic frankness.

The sole question in this celebrated case thus became one of identity--the indictment charging Lord Cardigan with having fired at one _Harvey Garnett Phipps Tuckett_--it being the duty of the prosecutors to prove that the prisoner fired at a person _bearing these names_. There was abundant evidence that Lord Cardigan had fired at and wounded a Captain Harvey Tuckett; but this might be a person totally different from him named in the indictment. The skill and vigilance of the prisoner's counsel were visible in tripping up his opponents whenever they approached inconveniently near his client. There is no reason to believe that Lord Cardigan's counsel were aware of there being the slightest difficulty, on the part of the prosecution, in proving the identity of the wounded man with the one specified in the indictment; but at the very first start, Sir William Follett perceived a faint possible advantage, and never for one instant lost sight of it.

"You tell us," said the counsel for the prosecution, examining the first witness--the miller, "that you saw the pistols fired a second time: did you observe whether either of the shots took effect?

"_A._--I thought Captain Tuckett was wounded--or, at least, the other gentleman: _I did not know who it was_.

"_Q._--You thought that the gentleman, whom you afterwards knew to be Captain Tuckett, was wounded?

"_A._--Yes.

"_Q._--Did you see what that gentleman did with his pistol, after the second shots were fired?

"_A._--No.

"_Q._--You did not see whether he held it in his hand, or what he did with it?

"_A._--Which are you alluding to?

"_Q._--I am speaking of Captain Tuckett.

"_Sir William Follett._--He has said he did not know who it was!"

Here was a stumble by the prosecutors, which their wary adversary never allowed them to recover. The miller then stated the giving of the card of address of "Captain Harvey Tuckett, 13 Hamilton Place, New Road," and produced it; but Sir William Follett would not allow it to be read in evidence against Lord Cardigan, without evidence that Lord Cardigan had seen it given, and was aware of what it was: and such evidence was not forthcoming. The Attorney-General then withdrew the card for the present, and asked the miller whether, on receiving it, he allowed the wounded gentleman to go; to which the answer was "Yes."--"In consequence of receiving this card, did you afterwards call at a particular house?" (meaning the house mentioned on the card, but which Sir William Follett had succeeded in excluding, for the present, from evidence.) Sir William Follett objected that the question was a leading one, and it was not pressed. The witness then stated that, a week afterwards, he called at No. 13 Hamilton Place; asked for "Captain Harvey Tuckett."

"_Q._--Whom did you see?

"_A._--Captain Harvey Tuckett.

"_Q._--Did you speak to him?

"_A._--I did.

"_Sir William Follett._--I wish you would put your questions differently!

"_Attorney-General._--We ask him whom he saw.

"_Sir William Follett._--He does not know Captain Harvey Tuckett, I suppose.

"_Q._--Did you speak to him?

"_A._--I did."

The Attorney-General then tendered the card in evidence: and Sir William Follett, ignorant of what was written in it, (for the Attorney-General had not specified in stating the case,) objected to its being received. On this a very ingenious and elaborate argument ensued between him and the Attorney-General, whether this card was or was not admissible in evidence, at all events in that stage of the case. The latter insisted on the affirmative, on the ground that the card had been given to the constable in Lord Cardigan's presence, and the constable had afterwards gone to the address specified in the card. It was therefore a part of the _res gestæ_. "No," answered Sir William Follett; "it does not appear who it was that gave this card, or that Lord Cardigan saw it, nor that he knew what was written on it. The Attorney-General is trying to prove an important fact in the case, by an apparent _admission_ of Lord Cardigan; whereas he is not shown to have had any cognisance whatever of the fact which he is supposed to have admitted!" The Lord High Steward said that, at all events, the House would postpone for the present its decision as to the admissibility of the card. "Whether the Attorney-General," said Sir William Follett, "will have any other evidence to prove who it was that had given the card, or to connect the card with the Earl, is another question"--which doubtless occasioned no little anxiety to the Earl and his astute counsel.

The next witnesses were the miller's wife and son, who were cross-examined by Sir William Follett irritably and severely, but ineffectually. They did not, nevertheless, appear to carry the case much farther than had the miller. Then came Mr Busain, the police inspector, who gave evidence of the facts already stated in connection with his name, in the Earl's avowal that he had just fought a duel, and hit his man. On his being asked a very critical question, viz., as to Captain Tuckett's having called at the magistrate's office _and given his name_, Sir William Follett anxiously and hastily interposed--"Was Lord Cardigan present then and there?" to which the answer was, "No, he was not." Sir William Follett therefore succeeded in excluding what Captain Tuckett had said on calling at the magistrate's office, and thus again "averted the decisive stroke."[58]

Then the Attorney-General called a Mr Matthew, a chemist in the Poultry, in whose house "Captain Tuckett" occupied rooms for business. Mr Matthew said that Captain Tuckett lived at "No. 13, Hamilton Place, New Road." He was then asked the Christian names of Captain Tuckett. On this Sir William Follett interposed, and having elicited the fact that the witness had never been at the house No. 13, Hamilton Place, New Road, objected to the witness being asked the Christian names of the gentleman who had lodged with the witness in the Poultry! This objection, however, was overruled; but on the question being put, it turned out that the only names by which the witness knew his lodger were "Harvey Tuckett!" As a last resource, the Attorney-General called Mr Codd, an army agent, who paid "Captain Tuckett," of the "11th Light Dragoons," his half-pay, _and knew his name to be "Harvey Garnet Phipps Tuckett_!!" But the witness added that he used to pay the money at his own house in Fludyer Street, Westminster, and had never seen Captain Tuckett except there, and at an insurance office! Again was the Earl of Cardigan's star in the ascendant. How could the prosecutor connect the half-pay officer spoken of by this witness, with the Captain Tuckett shot by Lord Cardigan, and afterwards seen wounded in Hamilton Place?

The case was brought, at length, pretty nearly to a stand-still. "Is _that_ your case, Mr Attorney?" inquired Lord Brougham; on which the Attorney-General pressed for the decision of the House as to the admissibility in evidence of the card which had been delivered by one of the parties on the ground to the constable.

"_Lord High Steward._--You object to its being received, Sir William Follett?

"_Sir William Follett._--Certainly, my lord: and I should wish to address your lordships, if any doubt is entertained on the subject.

"_Lord High Steward._--Their lordships are ready to hear your objection.

"_Sir William Follett_, (to the Attorney-General.)--Will you let me look at the card?"

The card was handed to Sir William Follett, who, on examining it, addressing the Lord High Steward, said calmly and resolutely--"My lord, I do not think it necessary to object to this card being read." And, indeed, he had no need to do so; for, as the reader must see, it did not advance the case a single hair's-breadth.

"Is _that_ your case, Mr Attorney?" inquired Sir William Follett, with mingled anxiety and hope. "That, my lords, is the case on the part of the prosecution," said the Attorney-General:--on which, turning to the High Steward with a confident exulting air, Sir William Follett "submitted to their lordships that no case had been made out, requiring an answer from the prisoner at the bar."

Into what a minute point this great case had dwindled! "There is no evidence whatever to prove," said Sir William Follett, "that the person at whom the noble Earl is charged to have shot, on the 12th September last, was Harvey Garnett Phipps Tuckett--the name contained in every count of the indictment. The evidence would rather lead to a contrary presumption, if presumption could be entertained in such a case; but it is incumbent on the prosecutor to give positive evidence of the identity of the person named in the indictment with the person against whom the offence is alleged to have been committed.... Is there anything before your lordships to identify the Captain Tuckett spoken of by the army agent, Mr Codd, with the person who is said to have been at Wimbledon Common on the 12th September last? There is nothing whatever."--"If there be the smallest _scintilla_ of evidence," answered the Attorney-General, "the prosecution cannot be stopped on this ground; and there is abundant evidence from which it may be inferred that the person wounded in this duel was--Harvey Garnett Phipps Tuckett. We prove that the wounded gentleman was _a_ 'Captain Tuckett;'--that it was 'Captain _Harvey_ Tuckett:' that the wounded Captain Tuckett lived at 13 Hamilton Place, New Road. Is there any doubt that it was _that_ Captain Tuckett who had taken the premises in the Poultry? When he did so, he gave a reference to No. 13 Hamilton Place, New Road. Is it not an irresistible evidence, then, that the Captain Tuckett of the Poultry and of Hamilton Place, and who fought with Lord Cardigan, was one and the same person? There is only one other stage--that this Captain Tuckett is the Captain Tuckett of whom Mr Codd speaks. Is there not cogent evidence to prove the identity here? Would any person, out of a court of justice, for a moment doubt the identity here? If not, can this House undertake to say _that there is not a scintilla_ of evidence of identity before it?" "What we object," said Sir William Follett, in reply, "is this--that Mr Codd, who says he knows _a_ Captain Tuckett who bears the names mentioned in the indictment, gave no _scintilla_ of evidence to connect that individual with the gentleman who was on Wimbledon Common on the 12th September last. It depended altogether on Mr Codd to give such proof--and that proof he wholly failed to give. Your Lordships are now sitting as judges, to decide solely on the evidence which has been laid before you. The Attorney-General says that the card afforded _one_ of the Christian names--'_Harvey_ Tuckett;' but is that proof that the person mentioned in that card is the 'Harvey _Garnett Phipps_ Tuckett' mentioned in this indictment? There may be two, or ten, or fifty persons named 'Harvey Tuckett.' I ask your Lordships, sitting as judges on a criminal case, and looking at the evidence alone--disregarding surmise, conjecture, and what you may have heard out of doors--whether there is any evidence to prove that the gentleman wounded on Wimbledon Common bears the name and surname of 'Harvey Garnett Phipps Tuckett?'"

The Lord High Steward, during the deliberation of the House with closed doors, delivered a luminous and convincing exposition of the legal merits of the case before the House:--

"There is an absolute want of circumstances to connect the individual at whom the pistol was fired, and who afterwards was seen wounded in Hamilton Place, with the half-pay officer known to Mr Codd as bearing the names set forth in the indictment on which your Lordships are sitting in judgment; for the mere fact of the wounded person bearing _some_ of the names used by the half-pay officer, is no proof that the former and the latter are the same; and the representation by that officer of his having held a commission in the same regiment of which Lord Cardigan told the policeman that he himself was colonel, (which, coupled with the actual receipt of half-pay, may sufficiently prove that fact,) cannot, I apprehend, be turned into a presumption that those two individuals would meet in hostile array. Here are two distinct lines of testimony, and they never meet in the same point."

* * * * *

"No fact (_i. e._ of identity) is easier of proof in its own nature; and numerous witnesses are always at hand to establish it, with respect to any person conversant with society. In the present case, the simplest means were accessible. If those who conduct the prosecution had obtained your Lordships' order for the appearance at your bar of Captain Tuckett, and if the witnesses of the duel had deposed to his being the man who left the field after receiving Lord Cardigan's shot, Mr Codd might have been asked whether that was the gentleman whom he knew by the four names set forth in the indictment. His answer in the affirmative would have been too conclusive on the point to admit of the present objection being taken.

"Several other methods of proof will readily suggest themselves to your Lordships' minds. Even if obstacles had been imposed by distance of time and place, by the poverty of those seeking to enforce the law, by the death of witnesses, or other casualties, it cannot be doubted that the accused must have had the benefit of the failure of proof, however occasioned; and here, where none of those causes can account for the deficiency, it seems too much to require that your Lordships should volunteer the presumption of a fact which, if true, might have been made clear and manifest to every man's understanding by the shortest process. Your Lordships were informed that no persons out of doors could hesitate, on the proof now given, to decide that the identity is well made out. Permit me, my Lords, to say that you are to decide for yourselves upon the proofs brought before you, and that nothing can be conceived more dangerous to the interests of justice, than for a judicial body to indulge in any speculations on what may possibly be said or thought by others who have not heard the same evidence, nor act with the same responsibility, nor (possibly) confine their attention to the evidence actually adduced. Your lordships," continued the Lord High Steward, "sitting in this High Court of Parliament, with the functions of a judge and a jury, I have stated my own views, as an individual member of the court, of the question by you to be considered, discussed, and decided. Though I have commenced the debate, it cannot be necessary for me to disclaim the purpose of dictating my own opinion, which is respectfully laid before you with the hope of eliciting those of the House at large. If any other duty be cast upon me, or if there be any more convenient course to be pursued, I shall be greatly indebted to any of your lordships who will be so kind as to instruct me in it. In the absence," concluded the noble Lord, "of any other suggestion, I venture to declare my own judgment, grounded on the reasons briefly submitted, that the Earl of Cardigan is entitled to be declared NOT GUILTY."[59] This was followed by the unanimous declaration of "Not Guilty,"--pronounced successively "upon my honour"--by every peer present, beginning with the junior baron. The only variation of the form occurred in the case of the Duke of Cleveland, who said--instead of not guilty, upon my honour"--not guilty, _legally_, upon my honour." The white staff of the Lord High Steward was then broken in two; and so was dissolved the first--may it be the last--commission, during the present century, for the trial of a peer on a charge of felony.

Lord Denman's reasons for recommending an acquittal were unanswerable; and by special direction of the House of Lords, though not in conformity with precedent,[60] were published, to enable the country to judge of the grounds on which the House had proceeded. The result, however, so contrary to that which had been expected, excited no little indignation; and the _bonâ fides_, even of those who conducted the prosecution, was very sternly questioned. It was insinuated by some of the most powerful organs of public opinion, that the prosecution had been taken up unwillingly, and with not even ordinary precautions to secure the ends of justice. "We ask," said the _Times_, "whether the law officers of the Crown had no foresight to anticipate, or no disposition to provide against, a conclusion so unsatisfactory? Is any man capable of believing that if some tailor, or linendraper, had been indicted at the Old Bailey for the crime of stealing--or that he, having an honour to vindicate equally with noble lords, pistolled and wounded one of his companions--does any man believe that, in such a case, we should have heard of any miscarriage, or of any name that could not be proved? Oh no! there would then have been precautions in abundance--there would have been no loophole left--there would have been no lack of friends and relatives carefully subpoenaed to prove all the Christian names of the necessary party."

We ourselves have reflected frequently on the result of this trial; and the points which have occurred to us are two. _First_, Why was not Captain Tuckett summoned to the bar of the House of Lords--if merely to be asked his name[61]--or even only to be pointed out to the witnesses to see if they could identify him? The miller could have been required to look at him, and been then asked--"Is that the person whom you saw lying wounded on the common?"--and Mr Codd could then have been also required to look at Captain Tuckett, and say--"Is that the gentleman to whom you used to pay half-pay as Captain Tuckett of the 11th Light Dragoons, and whose name you knew to be Harvey Garnett Phipps Tuckett?" On both these witnesses answering these questions in the affirmative, it would have required a thousand times even Sir William Follett's ingenuity to suggest a further doubt on the point of identity. This was the course which the Lord High Steward plainly pointed at, in his address to his brother peers, as that which might have been adopted. _Secondly_, Why was not the name of Captain Tuckett varied in various counts of the indictment, so as to meet not every probable, but every possible doubt and difficulty? If in one count he had been called "Harvey Tuckett," it would have sufficed to meet the evidence actually adduced; and the other counts might have, respectively described him as "Harvey Garnett Phipps Tuckett"--"Harvey Garnett Tuckett"--"Harvey Phipps Tuckett"--"Garnett Tuckett"--"Phipps Tuckett"--even adding to these other combinations of the four names in which Captain Tuckett rejoiced. To dispose first of this latter point--we verily believe that, up to the moment when the question of identity was started, the counsel for the prosecution, and their clients, believed that the proof of identity was a matter of course. The indictment had been preferred before the Grand Jury at the Central Criminal Court; and was doubtless framed, in the ordinary course, by the clerk of indictments, from the depositions--in which might have appeared all the four names of Captain Tuckett, without any intimation of doubt or difficulty as to the fact of those being his names, or as to proof that they were. Possibly the clerk had before him a positive statement that Mr Codd, the army agent, who paid Captain Tuckett his half-pay, could clearly prove that his name was "Harvey Garnett Phipps Tuckett;" and that, if so, it was a needless and expensive encumbering of the record to insert counts aimed at only imaginary difficulties. The indictment having once gone before the Grand Jury, and been returned a true bill, no alteration could have been made in it, especially after it had been removed by _certiorari_.... Doubtless the brief of the counsel for the prosecution would contain the evidence of Mr Codd, in as direct and positive a form as could be imagined; and they would regard him, as the army-agent of Captain Tuckett, as peculiarly qualified to prove his real names. When the difficulty had been started, we know of no degree of ingenuity that could have been exhibited by counsel, exceeding that of the Attorney-General, in his contests on the point with Sir William Follett. All experienced practical lawyers will acknowledge the probability that the solution of the question here proposed is the true one. It is easy to be wise after the result. A blot is not a blot, until it has been _hit_.

_Secondly_, Why was not Captain Tuckett brought to the bar, to be asked his names, or identified by Mr Codd? There is no evidence that he was in attendance, or that he could have been met with, at the exact moment when his presence was required. It may have been that no order of the House had been obtained for his attendance, only because it had not been thought necessary--that no difficulty would arise which his attendance could solve; and in the absence of direct legal compulsion, Captain Tuckett may have felt it a point of honour not to volunteer himself as a witness against his brother duellist. We can also readily believe that the counsel for the prosecution were anxious to conduct a perfectly novel case--the first instance on record of an attempt to bring an abortive duel under the category of felony, with its alarming incidents and consequences--with unusual liberality, and not to exhibit anything like a vindictive pressure upon the accused. They also knew that Captain Tuckett was himself liable, at that very moment, to be placed in the same situation as Lord Cardigan, and that it would have been idle to call before the House of Lords a witness who would come armed with a right to decline answering any single question--possibly even that above suggested as to his name--which he believed might even _tend_ to criminate himself. It must also be borne in mind that the Attorney-General boldly avowed, before the House of Lords, that he regarded the act with which Lord Cardigan stood charged as one devoid of "any degree of moral turpitude," and that "a conviction would effect no discredit on the illustrious order to which he belonged." These observations, proceeding from an Attorney-General on a solemn official occasion, became, a few days afterwards, the subject of grave discussion and censure in the House of Lords. But even the excellent Earl of Mountcashel thus pointed at the practical hardship of Lord Cardigan's position,--"An officer in the army receives an affront. His brother officers expect he shall go out. If he do, he encounters the pains and penalties of the statute 1 Victoria c. 85; if he refuse, he is obnoxious to the contempt of his brother officers."[62] It was, certainly, not to be expected that an Attorney-General, entertaining and averring the views of duelling which he did--and having to deal with a nobleman bearing her Majesty's commission, who was placed in the dilemma indicated by Lord Mountcashel, and had fought his duel fairly, and unattended by fatal consequences--should have been as eagle-eyed a prosecutor as if he had had to deal with a man, gentle or simple, military or civil, who had shamefully provoked, and as disgracefully fought, a fatal duel.

Had Lord Cardigan been convicted, he had still a _chance_ of escaping the serious personal consequences by claiming that absurd and unjust privilege of the peerage of which Lords Mohun, Warwick, and Byron in past times had respectively availed themselves, immediately on their having been convicted, in cases of fatal duels, of manslaughter. This privilege had been confirmed by statute, 1st Edward VI. c. 12, § 14, which was passed in the year 1547, and consisted in enabling a lord of parliament and peer of the realm to have benefit of clergy for a first conviction of felony,--that is to say, to escape the penal consequences of conviction, on simply alleging that he was a peer, and praying the benefit of that act! In 1827, however, by one of the statutes which effected so salutary a reform of our criminal law, (statute 7th and 8th Geo. IV. c. 28, § 6,) it was enacted as follows,--that "benefit of clergy, with respect to persons convicted of felony, shall be abolished." It had been intended, by this section, to repeal that of the 1st Edward VI. c. 12, § 14; but serious doubts were entertained, during the pendency of Lord Cardigan's trial, whether that intention had been effectuated. We offer no opinion on the point, which would have been argued, of course, with desperate pertinacity, and consummate learning and ingenuity, had the occasion for such an exhibition arisen. To extinguish, however, all possible doubt, and prevent any future failure of justice, an act was passed in the same session during which Lord Cardigan was tried, (statute 4th and 5th Vict. c. 22, 2d June 1841,) asserting that "doubts had been entertained" whether, notwithstanding the statute of 1827, that of 1547 "might not, for some purposes, still remain in force." The statute of 1841 had but one section, which declared the 1st Edward VI. c. 12, § 14, to be "thenceforth repealed, and utterly void, and no longer of any effect;" and enacted that "every lord of parliament, or peer of the realm having place in parliament, against whom any indictment for felony may be found, shall plead to such indictment, and shall, upon conviction, be liable to the same punishment as any other of her Majesty's subjects are, or may be, liable upon conviction for such felony."

Here stands the law of duelling, alike for lord and commoner, whom we trust we have satisfied of the really alarming responsibilities entailed upon those who may choose to perpetuate these outrages upon the laws of their country.

In closing this paper, and taking leave of a painfully interesting topic, we would fain express a hope and a belief, that a better feeling on the subject of duelling is gaining ground, in this country, than has existed for centuries. There is growing up a spirit of dignified submission to the law of man, based as it is on the law of God, which totally prohibits these unholy exhibitions of murderous malevolence. A truer estimate is formed of the nature of HONOUR--one which forbids alike the offering and the resenting of insults. The following noble paragraph, recently introduced into the Articles of War, is worthy of being written in letters of gold--of being exhibited (with suitable variation of expression) in every place of public resort, and in every possible manner brought under the notice of men of the world, and the youths in our public schools:--

"We hereby declare our approbation," says her most gracious Majesty,[63] "of the conduct of all those who, having had the misfortune of giving offence to, or of injuring, or of insulting others, shall frankly explain, apologise, or offer redress for the same; or who, having had the misfortune of receiving offence, injury, or insult from another, shall cordially accept frank explanation, apology, or redress for the same; or who, if such explanations, apology, or redress, are refused to be made or accepted, and the friends of the parties shall have failed to adjust the difference, shall intrust the matter to be dealt with by the commanding officer of the regiment or detachment, fort or garrison; and we accordingly acquit of disgrace, or opinion of disadvantage, all officers who, being willing to make or accept such redress, refuse to accept challenges, as they will only have acted as is suitable to the character of honourable men, and have done their duty as good soldiers, who subject themselves to discipline."

There speaks the Queen of England!

The following is the stringent Article of War (Art. 101) on the subject of duelling:--

"Every officer who shall give, send, convey, or promote a challenge; or who shall accept any challenge to fight a duel with another officer; or who shall assist as a second at a duel; or who, being privy to an intention to fight a duel, shall not take active measures to prevent such duel; or who shall upbraid another for refusing or for not giving a challenge; or who shall reject, or advise the rejection of, a reasonable proposition made for the honourable adjustment of a difference, shall be liable, if convicted by a general court-martial, to be cashiered, or suffer such other punishment as the court may award.

"In the event of an officer being brought to a court-martial for having assisted as a second in a duel, if it shall appear that such officer had strenuously exerted himself to effect an adjustment of the difference, on terms consistent with the honour of both the parties, and shall have failed, through the unwillingness of the adverse parties to accept terms of honourable accommodation, then our will and pleasure is, that such officer shall suffer such punishment, other than cashiering, as the court may award."

THE DEFENCES OF BRITAIN.[64]

Sir Francis Head is a bold man. When the cry for economy and retrenchment, arising out of the straightened circumstances of the nation, is at its loudest, he has ventured to argue the proposition--once admitted as a truism, but now apparently denied by many--that there are national duties, of surpassing magnitude, which must be undertaken and fulfilled irrespective of pecuniary considerations, if we intend to preserve this country, not simply from a diminution of its greatness, but from the imminent danger of invasion and of hostile occupation. His courage is not lessened by the fact that, in maintaining that axiom, he is fortified by the practical testimony, without any exception whatever, of all our greatest living military and naval authorities; his boldness is not less notable because the Duke of Wellington, Sir John Burgoyne, Admiral Bowes, Admiral Sir Thomas Cochrane, Sir Charles Napier, Captain Plunkett, and others, have year after year protested against the insufficiency of our national defences; and demonstrated that, under the present system, and with the inadequate force at our disposal, we could not, in the event of a rupture with France, calculate on maintaining the inviolability of the British coast, or the security of our capital, London. He is a bold man, and a man of moral courage, because he has ventured once more to stem the tide of popular prejudice and clamour; to expose himself to the sneers of the unthinking, the foolish, and the ignorant, and to the insolent imputations of the professional agitator and demagogue. The individual who was base enough to insult the gray hairs and honoured age of the first soldier of the world, was not likely to refrain from vituperation in the case of a humbler antagonist; and, accordingly, we are not in the least degree surprised to observe, that, at a late meeting in Wrexham, this person, Cobden, who three years ago insinuated that the Duke of Wellington was a dotard, has now turned his battery of coarse abuse against Sir Francis Head.[65]

We have, fortunately, something else to do than to answer the wretched calumniator. We consider it our bounden duty, in so far as we can, to recommend to our readers the exceedingly able and temperate work of Sir Francis Head, which not only embraces all that can be said upon the topic in the way of abstract argument, but exhibits in the clearest form, and from the most authentic sources, the amount of foreign military and naval preparation, at the present moment, as contrasted with our own. It is, we think, a most timely and needful warning, which every one will do well to consider, not in a rash or hasty manner, but calmly, deliberately, and dispassionately, with reference to his own individual interests, and to those of the nation at large. The question, as it now presents itself to our notice, is not one of peace or war. The most zealous peace-monger alive need not be ashamed of adopting the conclusions or seconding the suggestions of the writer. The question, as put by Sir Francis Head, is simply this,--Are we, or are we not, supposing us to become involved in hostilities with France, in a condition successfully to resist all attempts at invasion?

Of course there are several considerations collateral and connected with this. Military and naval establishments being, in effect, the insurance which we pay against the risk of invasion, the risk must be calculated in order to ascertain the amount. Only in one respect the parallel does not hold good between national and private insurance. A man may insure his premises or his life inadequately, and yet he or his representatives will be entitled to recover something. In the case of a nation, inadequate insurance is really equivalent to none. Either the insurance is good altogether, and fully adequate to the risk, or it need not have been effected at all. Therefore, in estimating this matter of sufficiency of defence, we must attempt to ascertain, as clearly as can be done by human foresight, aided by past experience, the amount of possible danger. This is unquestionably a most intricate consideration, yet no one can deny its importance.

It is a very simple matter for those who have never turned their attention to the state of Great Britain, as one great military and naval power surrounded by others, to treat with entire contempt the idea of any possibility of invasion. We have no doubt that a large proportion of the British nation consider themselves at this moment invincible. It is quite natural that this should be the case. We have accustomed ourselves, in consequence of the result of the last war, to look upon British prowess as something absolutely indomitable. The issue of Waterloo has wiped away all memory of the disastrous retreat to Corunna. We remember Trafalgar with pride, and forget that even in naval matters we found our match in the American. The flag of England has not always been supreme on the seas, or even in her own estuaries. Little more than a century and a half has elapsed since a Dutch fleet entered the Thames without resistance, burned the shipping in the Medway, and held Chatham at its mercy. But the present generation knows little about those things, and is disposed to limit its recollections to comparatively recent events. Nor are even these viewed fairly and fully. We are content to take the catastrophe as the measure of the whole. We overlook the disasters, loss, misery, and bloodshed, which our former state of bad preparation entailed upon the nation, and we will not listen to the testimony of the great living witness--still happily spared to us--when he raises his voice to warn us against wilfully incurring a repetition of the same, or the infliction of worse calamities. Not even by tradition do our common people know anything of the horrors of foreign and invasive war. Of all the European nations we are incomparably the least warlike in our ideas and our habits. Our population knows nothing of military training, is wholly unaccustomed to the use of arms. A few muskets in the hands of a few old pensioners have been found sufficient to overawe and disperse the most infuriated mob. And yet we are told to consider ourselves, and do in part believe it, as capable of resisting any attempt at organised military invasion, at a moment's notice, notwithstanding the enormous numerical inferiority of the whole disciplined troops which we could summon from all parts of the kingdom, to even a fractional part of the force which could easily be brought against us!