The Sun.
London, England, 1863-06-10 00:00:00

LAW INT.

,This Day,

COURT OF QUEEN'S BENCH.

(Sittings in Banco at Westminster, before the Lord Chief
Justice, Mr, Justice Wightman, Mr. Justice Crompton,
and Mr. Justice Blackburn)

THE EARL OF CARDIGAN V. LIEUT.•COLONEL THE HON,

SOMERSET TALBOT CALTHORPE-THE LIGHT CAVALRY

CHARGE AT BALAKLAVA.
Mr. Boviil having replied on behalf of the Earl of Car-
digan's application to make rule absolute.
Mr. Garth, at the sitting of the Court this morning,
followed on the same side, dealing at some length with the
three points raised yesterday by Mr. Sergeant Shee. He
contended that the manner in which Colonel Calthorpe
had met the allegations made against his work by Lord
Cardigan were uncandid and ungenerous. He had said,
"I cheerfully declare myself satisfied that Lord Cardigan
entered the Russian battery," thus turning the noble lord
into a plaything without making him a single atom of
reparation, and refusing him an apology. Considering
that the slanderer was an. officer who held a low rank in
the army, while the slandered was lieutenant- General the
Earl of Cardigan, who had received the thanks of Parlia-
ment and the acknowledgments of Lord Raglan and Lord
Lucan and of his country in many nays, he considered that
Colonel Calthorpe's was the most unhandsome, the most un-
generous, the most uncandid, and the most unbecoming
style of retractation that could be imagined.
The Lord Chief Justice said he cculd entertain no doubt
that the passage in Colonel Calthorpe's work, upon which
the present application had been male for a criminal infor-
mation, contained a most serious libel upon the Earl of Car-
digan. He thought it was impossib.e to read that passage
without coming to the conclusion that that which it was
intended to convey was an imputation upon the Earl of
Cardigan of having been wanting in his duty at a time when
he was in command of a detachment of cavalry ordered to
attack the Russian battery, of hating been wanting in
his duty from want of personal courage. It was true
that, in the first edition of this work, the absence of
Lord Cardigan as a general officer vas suggested when his
presence was necessary, and it was ascribed to an accident.
It was said that his horse became alarmed by the discharge
of a cannon close to his head, and that the horse swerved
and carried Lord Cardigan away, in spite of himself,
off the field. This was cleary intended to imply,
that Lord Cardigan never reached the battery
which the detachment under his orders was directed to take,
but it ascribed his failure to reach that battery which others
reached, and through which they carried their attack, to an
accident. Lord Cardigan, feeling that he had reason to com-
plain of this statement, as of many others contained in that
work, made it the subject of complaint and remonstrance.
In the second edition a notice was prefixed to the work,
which in the third edition was incorporated in the shape of a
note, and in that notice in the second edition and the note in
the third, that which was given in the first edition as a cir-
cumstance accounting for Lord Cardigan's failure to reach
the battery, which the rest of the line tinder his command
did reach, was withdrawn in the shape of a compliment,--
a compliment ostensibly on the face of it, but which con-
veyed, in his judgment, the bitterest sarcasm—that it
was not the fault of Lord Cardigan's horse, but
his own fault, that he failed to reach the scene
of danger through which the others passed, It was
impossible, he thought, to doubt that that was intended to
convey that Lord Cardigan had been wanting in that per-
sonal courage necessary to the discharge of his duty. To
say that a soldier ordered to attack an enemy, much more a
general and a leader whose duty it was to lead others into
action, stopped short midway in the path which led to
danger, and perhaps to death, while others went in
without any obstacle or any cause to prevent them, must,
he was sure, convey to the mind of any railitary man, and
to the mind of any man conversant with such matters,
an imputation of personal cowardice, disgrace, and dis-
honour. It was impossible, therefore, not to feel that this
was a matter of a most libellous character. Heaven forbid
that the time should ever come when the honour and repu-
tation of the soldiers and sailors engaged in the service of
this country should ever be unjustifiably assailed without
redress being opened to them. There could be no doubt, if this
were a true view, as he (the learned judge) thought it was,
that looking to the position of the paries, looking to the
importance of the service to which this passage had refer-
ence, the matter was one that would, probably, be the sub
ject of a criminal information, unless some special cause
could be shown why a rule for a criminal information should
not be made absolute. Now, these reasons had been put
forward why the Court should not make the rule absolute
in this case. First, that the substance of the passage com-
plained of was true, or that at,all events that the affidavits
that had been produced on the part of the defendant so
conflicted with those of the complainant, that the Court
could not take upon itself to try the natters on affidas it.
Secondly, it was said that at all event' whether the state-
ments were well or ill founded, it was written in reference
to a matter of public importance and public inte-
rest, a matter of history, that it was a privi-
leged matter, and not the subect matter of a
criminal information. Thirdly, teat the conduct
of the parties had been such that what had taken
place subsequently to the publication ol the work had pre-
cluded the prosecutor from applying to the court success-
fully. He would deal briefly with their points in the order
in which they had been stated. In the first place it was
stated that substantially the statemett contained in the
passage upon which this application as founded was true.
He must say he could not understand what was meant by
any argument founded on that assetion. It turned indeed
upon what was the true construction of the libel in
question. If, as was contended yesterday, all which that
passage conveyed was that Lord Cardigan, from some cause
or other, was absent when his presence Kits desired, it might
be said that, to a certain extent, it !ad been made out
that that was true. But that, in his udgment, was not the
true character or meaning of this lbellous passage. He
thought it was not the gist of the statement complained of
that Lord Cardigan was absent when his presence as general
was much to be desired. The gist and sting of the libel was
did to
face, face
and
thed hanger;
noblybrava
that
this, that Lord Cardigan was abseil:, not from defect of
judgment, or Irene any accideetal cease, but because he had
not the h
courage
it was incorrect to say that the substance of this charge was
led,
cntead which
against. the
So men
whom
true; and Col. Calthorpe had been, terough his counsel,
constrained to say, that if that was the view, he was satis-
fied by the affidavits which had been fled, that his view was
incorrect, and that his statements wen ill-founded. Then
with regard to the affidavits which had been adduced. It
was said that there was a conflict upon lose affidavits, and
that the court could not try the queston. There was no
conflict of any substantial character beween the affidavits
of the prosecution and the defendan, but the defendant
seemed to give the go-by to the real question at issue. The
libel was that Lord Cardigan failed toreach the battery be-
cause he turned short half-way in the path that
led to it. Colonel Calthorpe had admitted that
that was an erroneous and it-founded statement.
He was constrained to admit teat Lord Cardigan
did reach the battery, and that he passed through it, and
he meets the charge by saying that, admitting all, he
took the ground upon the statement that Lord Cardigan
came out of the battery sooner than he ought to have done.
But that was a totally different charge from that to which
the affidavits of the prosecutor were addressed. So that he
thought there was no conflict when the real nature of the
charge came to be considered. He should be sorry to lay
down any rule on this point as of universal application, or
to state what the Court would do in any ease because there
were conflicting affidavits. It was tree generally that the
Court would not try questions upon affidavits but would
leave parties to their , remedy; that however was not a rule
of universal application, and he sawn° reakon why in this case
the Court shou I d not make the rule absolute, if, looking to other
circumstances it was thought a fit one for a criminal infor-
mation. But it was said that whether :he imputation was
true or not this was a case in which the defendant, writing
as an historian of the events of that campaign, had a right
to make such comments as he pleased upon Lord Cardigan,
who had borne so conspicious a part in it; but this again
must be taken with certain limitations. It was true that
the events in question were of the deepest public character
and importance. It was true that the conduct of the men
who were engaged in thosetransactions was fairly and legi-
timately matter of public. He adverted to what had passed
between Col. Calthorpe and one of the friends authorised
by Lord Cardigan to negotiate en the matter, and which
altogether took away the foneditien on 'which this rule
was absolutely granted. Connected with this subject
was the destruction of I,COO copies of the last edition,
a fact which was not known to the Court when the
application for a rule nisi was made; otherwise it
might
have made a difference in the decision
of the Court.
The learned Judge, having passed a high eulogium on the
military career of Lord Cardigan, said the rule must be dis-
missed, but without costs.
The other judges concurred,
Rule discharged.

COURT OF BANKRUPTCY.

(Before Mr. Commissioner Goulbutn.)

IN RE W, P. WAUGH.

His Honour to-day gave judgment on the question as to
whether this bankrupt, Colonel Waugh, formerly one of
the directors of the London and Eastern Bank, should be
allowed to surrender after having been outlawed. After a
long argument on Monday his honour, on the authority of
several cases quoted on behalf of the bankrupt by Mr.
Roxburgh, decided that the Court had the power to inter-
pose and accept the surrender. Mr. C. E. Lewis, on be
half of the official liquidators of the London and Eastern
Bank, proceeded to show that, although the Court might
nvvewas
bankruptcy,possessed
have the power it was discretionary, and he opposed ; but
his honour held that Mr. Lewis had nobahioneerupsttahnaddi, bu
left the question open whether a bankrupt could be ad-
mitted to the privilege of surrendering, and by so doing
avoiding the penalties incident to outlawry
ofwithout
att
he
tbringinge
o hisinto
The
ad-
mitted that when he left England he had £5OO which he
stated he had expended for the use of himself and family.
His Honour now referred to the main facts of the case,
and said it was one which showed to what extraordinary
lengths and to what awful depths a man might be led by
speculation, and the "making haste to get rich," without
his cousiciering his duty to others. For years the bank-