Blackwood's Edinburgh Magazine, Vol. 68, No 422, December 1850

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."58 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,59 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 subpœnaed 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 name60– 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."61 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,62 "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. 63

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.64