The Sun.
London, England, 1841-02-19 00:00:00

tween himself and the claimants, as had been represented ;
and then proved that it was so, by tleclaring that he would
take no steps to carry out the wishes of the House if they
should vote for the Committee.
(From the Times.)
The slight and superficial way in which some of our
Contemporaries appear disposed to treat the recent disap-
pointment of the public demand for justice in the case of
Lord Cardigan, will but inflame the feelings which that
event is calculated to produce in the minds of thinking
men. Expressions such as those of the Morning Post,
which speaks of " the public business having been sus-
pended, that their Lordships might he employed judicially,
for the amusement of the wiseacres of Wandsworth, in the
trial of the Earl of Cardigan," and of the Standard,
which " thinks that, whether the blunder" (on the part of
the proSecution) " was or was not intentional, it ought not
to be regretted," and that " the House of Lords has hap-
pily escaped a great difficulty," can only tend to direct in-
dignation against the House of Lords, and to foster the
belief that the judicial proceedings of Tuesday were a
mere solemn farce, and that none but wiseacre.; could have
given their Lordships credit for a disposition to exe-
cute criminal justice upon one of their own order. Others
may do what they will; but we will never play so far into
the hands of Chartism as to disseminate so foul a libel
upon that illustrious bode. That the offerce of which
Lord Cardigan was accused was a felony within the mean-
ing of the statute 1 Victoria, cap. 85, no man who has
the slightest knowledge of the law can possibly doubt.
That, in committing him to take his trial for that o:-
fence, the Wandsworth Magistrates discharged a plain
and inevitable duty, must be admitted by all but those who
think " such divinity cloth hedge an. Earl," as to give
him a prescriptive right to defy the laser. That a convic-
tion must have ensued but for a deficiency of evidence
upon a point of form, our Contemporary of the Morning
Post believes (we are sure) quite as firmly as we do. The
Peers are not responsible either for the way in which the
evidence for the prosecution was got up, or for the legal
quibble to which they were compelled, judicially,
to submit their reason. Precedents, both ancient and
modern, have settled the point, and left them no alter-
native. It is not long since a soldier was tried on the
Western Circuit for the murder of his comrade. Tnat
a murder had taken place, and that the prisoner was the
murderer, was fully proved; but the evidence produced
was not enough to satisfy the supererogetory curiosity
of the law, tie to the Christian name of the murdered
is' ; and so the prisoner was acquitted. The ground en
which Lord Cardigan was acquitted was precisely the
same. But that any man should think the escape of a
criminal from justice, upon grounds like these, matter of
congratulation to the country, especially when that criminal
is a inan of rank and mark, and when it has been all
along suspected (must we rather nay foreseen ?) that one or
more of those convenience loophopes, which English juris-
prudence furnishes in such plenty, would be left open pur-
, uosely for his benefit, does, we must confess, astonish IV.
If the law which makes a given action criminal, is unjust
or inexpedient, let it be repealed ; if the contrary, let it be
enforced ; but to leave it upon the statute book without
the wish to enforce it, and to felicitate ourselves up )n get-
ting rid of its effect by a side-wind of negligence or cul-
pable connivance on the part of the public prosecutor, is
to pursue a cowardly, hypocritical, vicious, and dishonest
course. We are tired of hearing it said, that to punish
Lend Cardigan (if convicted), under the statute of I Vic-
toria, cap. 85, would have been to take an individual by
surprise, to " begin to repress a custom sanctioned by the
usage of centuries," " by the sacrifice of a victim, caught
up, as it were, by accident, and without notice of his
danger ;" as if duelling had been made a felony for the
first time by this statute, or as if nobody had ever
been taught to expect, or had ever suffered, punish-
ment for that offence. To kill in a deliberate duel
has been murder in England from time immemo-
rial • to attempt life in such a duel, though without
fatal consequences, bas been a capital felony ever
since the time of George I ; and the recent Act, though
it may have somewhat increased the penalty in cases where,
if death had ensued, the crime would not have been mur-
der, ;et, with respect to such duels es that of Lord Car-
digan with Captain Tuckett, has mitigated rather than
augmeneed the sLverity of the previous law. The notion
of a distinction between shooting with intent to kill at a
consenting party, who takes his shot in return, and doing
the settle act with the same intent under any other tit-.
cumstanccs, has never yet been recognised, and it is to be
hoped, it never will. But we shall be told, though such has
been the law, still it has not been executed ; it has slept,
and become obsolete, and ought not now to be suddenly
enforced. We admit that it has not been executed
so stringently as it ought to have been; proper
vigilance has not been used either to suppress duels,
or to punish duellists ; and we think the argument a
valid one against the infliction of the extreme penalty
for this offence without previous notice. But if
pushed further than this, the argument fails, as
resting upon a false and exaggerated statement of facts.
Why does every man who is concerned in a fatal duel fly
front the pursuit of justice, if the law is suffered so entirely,
to go to sleep ? The Standard says, that if Lord Cardi-
gan had been convicted, the House of Lords must have
sentenced him to " a long imprisonment" (the Attorney-
General, by the way, was so benevolent as to suggest one
hour), " for an offence, for the commission of which, under
like circumstances, no man was ever before imprisoned or
even questioned." Has the Standard never heard of a certain
duel, in which a linen-draper named Mirfin fell? And
does not our Contemporary know that for acting as seconds
in that duel, only three years since, two gentlemen (not
quite so exalted in rank as Lord Cardigan) were both
" questioned," and imprisoned too; ay, and obliged to sub-
mit to strict prison discipline, cropped heads, the tread-
mill, oatmeal diet, and all ? The only difference of " cir-
cumstances" was in the act of God, by which, with-
out any greater fault of Elliot in the one ease,
or merit of Lord Cardigan in the other, it happened that
Mirfin died of his wound, while Captain Tuckett reco-
vered. The alleged want of notice is nothing, unless it
can be supposed to have influenced a man's conduct.
When Lord Cardigan discharged his pistol at Captain
Tuckett, he was as fully aware, as if a Queen's proclama-
tien had been then sounding in his ears, that the act in
which he was engaged was felonious, and that its conse-
quences might place him in a worse position thin that of
the seconds of Elliot and Mirfin. But the Standard has
discovered not only that " the House of Lords has hap-
pily escaped a great difficulty," in tieing saved from the
necessity of treating one of its members as an inheritor of
the same flesh and blood, and a debtor to the same law,
with the ignoble seconds of a linendraper, but that we must
not even suppose the proceedings in Lord Cardigan's case
" to be altogether useless ;" since " they have practically
established the fact, previously admitted only in theory,
that the fighting of a duel, even though neither death nor
wound ensue, constitutes a felony." And this position
our Contemporary labours to demonstrate by some grave
buffoonery about pleas, cognizance, and demurrers, which
raust be mightily amusing to the junior students of West-
minster•hall, but which it is really not worth ink and
paper to refute. Those proceedings have established:nothing,
except the difficulty of proving the plainest and most no-
torious facts when a Peer is in the case. The proposition
which the Standard alleges to have been established is
not even true in the extent in which the Standard states
it (for there may be duels, as when a party fires into the
air, in which there is no felony at all); and so far as it is
true, it has received no new light whatever from Lord Car-
digan's trial. The only proceedings which can be said
to have done anything towards " practically establish-
ing the fact," are those of Mr. Dann, the miller, who
took the Noble Lord into custody ; the Wandsworth Ma-
gistrates, who committed him for trial ; and the Middle-
sex Grand Jury, which found a true bill upon the indict-
ment. Altogether, we deeply lament the whole of this
affair. We lament it, because it will be difficult to
persuade the people (as, indeed, it is difficult to believe)
that due diligence has been used to procure a conviction.
We lament it, because it must inevitably give a great en-
couragement to the practice of duelling among those aris-
tocratical and military circles to which Lord Cardigan be-
longs; and must as certainly discourage Magistrates from
exerting themselves to prevent or suppress duels for the
future. We lament it especially, because an opinion,
most dangerous to the aristocracy, prevails, that in Eng-
land there is one law for the rich and another for the
Poor • and the license which bas been conceded of late
years to certain juvenile scions of nobility, who seem to
have resolved upon trying the experiment whether there
exists among us any law too strong for a coronet and gold,
has greatly strengthened that unfortunate delusion. A cir-
cumstance happened only last week, unhappily too corro-
borative of such a view. The Earl of Waldegrave and
Captain Duff were committed in June last, upon a charge
of assaniting a policeman at Hampton. The defendants
procured their case to be removed by certiorari into the
Court of Queen's Bench, and (having pleaded " not
guilty") contrived to get the trial put off till Saturday last.
On that day they requested permission, by their counsel,
to withdraw their original pleas, and plead " guilty,"
which (as a matter of course) was assented to. The fol-
lowing conversation is then reported to have taken place
" Sir Frederick Pollock" (Lord Waldegrave's counsel)
" said, there was every desire on the part of the defendants
to mark their sense of the impropriety of their conduct. "
" Lord Denman said, he hoped this might be a case of such
a nature as to admit of a private reparation being made "
" Sir F. Pollock said, he felt deeply indebted to his Lord-
ship for the suggestion." We take it for granted, that
Lord Denman, who is an upright man, did not know the
history of this case : he could not have known that these
Noble defendants had attacked the policeman in the exe-
cution of his duty, and beaten him so savagely, as to
place his life in danger. But whether he knew this or
not, a painful conviction forces itself into our minds, that
if these persons had not belonged to the Corinthian order,
it would never have been suggested from the seat of jus-
tice that such an outrage could possibly be a fit subject for
pecuniary compromise. We know not whether such a
way of dealing with cases in which the Nobility is con-
cerned is to be accounted for on the principle that they
have privilege of Peerage, and that it is useless to convict
where it would be impossible to punish. It may seem at
first sight, that for Lord Cardigan to have been convicted,
and to have escaped punishment by pleading his Peerage
(assuming the validity of such a plea), would have been even
more unsatisfactory than the actual termination of his trial.
We think otherwise ; for if such a privilege still exists, it
is high time that it should be drugged from its lurking
place, and once for all abolished. That it did exist so late
as 1825 when Mr. Justice Coleridge, in his annotations
en Blackslone's Commentaries, penned the following very
pertinent remarks, is only too certain : —" This is one of the
very few cases of privilege," said that Learned Judge,
" retained in the English law ; and of all privileges, that
of impunity in the commission of crime is the most dis-
graceful to those who enjoy it, and the most odious to those
who are debarred from it. By this law a Peer may at this
day rob on the highway, steal horses once, break a house,
or rob a church (crimes capital in a commoner), and is li-
able to no personal punishment whatever."
(From the Morning Chronicle.)
ve do not suppose that our readers would thank us for
endeavouring to show how the guilt of the Earl of Cardi.
gan could have been established. Before tbo solemn farce
of this trial was n entered conjecture was often busied
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been claimed, odious as the distinction is, it would have