The Sun.
London, England, 1841-02-17 00:00:00

provision similar to Lord Ellenborough's Act or
to the Act of 9th Geo. IV., and this is a circum-
stance most material for your Lordships to bear
in mind in deliberating on the judgment you
may have to come to on the third and fourth
counts of the indictment. lam happy to say the
indictment contains no count on the capital
charge. A wound was inflicted, but the
prosecutor has very properly restricted the charge
to firing, without stating that any injury has
been inflicted. The first count charges the
shooting as having taken place with intent to.
murder. The second count charges the same
act with intent to maim and disable; and the
third count with intent to do some grievous
bodily harm. It will be for your Lordships to
say whether the facts which I shall lay before
you, and what I am instructed will prove clearly
the act of shooting, are clearly made out;
and. if so, whether the crime charged in
the indictment is fully established. My
Lords, the substance of the evidence is this,
that upon the 12th day of September last the
Earl of Cardifs,an, fought a duel with pistols, on
Wimbledon Common, with Capt. Harvey Tuc-
kett, and wounded him at the second exchange
of shots. My Lords, it will appear before your
Lordships, that about five o'clock in the afternoon
of that day two carriages were seen to come in
opposite directions in the neighbourhood of
Wimbledon Common, and a party alighted from
each. It was evident to those who observedwhat
was taking place that a duel was in contemplation.
They came to a part of Wimbledon Common be-
tween the road that leads by Lord Spencer's
park and the windmill standing on the top of the
Common. The seconds first came upon the
ground, and made the usual preparations. The
principals, the Earl of Cardigan and Captain
Tuckett, were then placed at a distance of
about 12 yards from each other ; they exchanged
shots without effect; they again fired, and Captain
Tuckett was wounded. Mr. Dann, who occupies
the mill to which I have referred, and his son,
together with Sir James Anderson, a surgeon,
who had been standing close by, came up almost
immediately. The wound was examined—it bled
copiously, but most fortunately—and no one, I
believe, rejoiced at that more titan the Earl of
Cardigan—it was not of a dangerous. nature. The
parties were all removed by the miller (who was
a constable, and took thdm into custody) to the
nearest station. The wound was there further exa-
mined, and Sir James Anderson pressed that he•
should be at liberty to take Captain Tuckett to
his house in London, which was immediately'
agreed to upon his promising to appear when re=
covered from the effects of the wound before the
Magistrates. The miller took the Earl of Cardi-
rrn a and his second, Captain Douglas, into
,cus-
tody. Captain Douglas was the second of the
Earl of Cardigan, and Captain Wainwright, the
second of Captain Harvey Tuckett. The Earl of
Cardigan had still a pistol in his hand when the
miller apprehended him. There were two cases
of pistols on the ground—one with the crest of
the Earl of Cardigan upon it, which he claimed
as being his property. The other parties were
conducted ti: fore the Magistrates stWandArorth,
and upon that occasion the Earl of Cardigan
made use of these words—" I have fought a duel,
and hit my man—l believe not seriously." He
then said, pointing to Captain Douglas, "This
gentleman is also a prisoner, and my second."
He was asked if the person he had hit was Cap-
tain Reynolds, to which he replied, "Do you
think I would condescend to fight with one
of my own officers ?" He was compelled
by the. Magistrates to enter into recog-
nizances to appear when called for, which
lie did from time to time, and at last the matter
was sent to the Central Criminal Court. My
Lords, the witnesses I shall bring before you are
the miller, his wife, and his km, with a police-
man of the name of Dunning, who was at the sta-
tion, and will speak to the declarations of Lord
Cardigan, and what there took place. I shall
offer no evidence, and can offer no evi-
dence before your Lordships, respecting the origin
of the quarrel. Captain Douglas is to take his
trial. He, as your Lordships will observe, is
jointly indicted with the Earl of Cardigan.
A bill of indictment was preferred against
Captain Tuckett and Captain Wainwright, it was
thrown out by the Grand Jury; but they,
as your Lordships well know, are still liable
to be tried, and it would not be decorous that I
should summon them before your Lordships to
give evidence which might afterwards be turned
against themselves, and prove that they were
guilty of a felony. I will call before your Lord-
ships Sir James Anderson, who has hitherto
spoken freely upon the subject, and I suppose
will now make no objection to state to your
Lordships all that fell within his ob-
servation. Now, my Lords, upon these facts
it will be for your Lordships to say whether all
the counts of the indictment are not fully proved
and supported. With regard to, the first count,
it is painful to use the language which the first
count necessarily employs, but it will be for your
Lordships to say whether, in point of law,
the Earl of Cardigan did not shoot at
Captain Tuckett, with intent to commit tha t
crime which is there mentioned. My Lords, I
at once acquit the Earl of Cardigan of anything
unfair in the conduct of the duel. Something
has been said about his Lordship's pistols
having rifle barrels, and those of Capt. Tuckett
not having rifle barrels. My Lords, however
that may have been, I have the most firm con-
viction that nothing but what was fair and ho-
nourable was intended, and that the Earl of Car-
digan most probably imagined that when he car-
ried those pistols to the field with him, that one
of them would be directed against his own
person. Nor do I suppose, my Lords, that
there was any grudge, any personal enmity, any
rancour or malignity whatever, when his Lord-
ship gave or received the invitation. lam will-
ing to believe his only object was to preserve his
reputation, and to maintain his station in society
as an officer and a gentleman. His Lordship
is in the army—he is a Lieutenant-Colonel
a the 11th Hussars; and I have no doubt that he,
upon this occasion, only complied with what he
considered necessary to be done, according to the
usages of society. But, my Lords, under those
circumstances, and though, if death had ensued,
it would have been considered a great calamity,
although not morally a great crime, because high
names have excused and even defended duels, yet
your Lordships must consider by thet.,awdo,f
land—my Lords--by the law of
can be no doubt that the parties
are uilty of
rhielgt;
duty
rately to fight a duel, if death ens.
leading 3-
s a few of the
to state to your Lordship
the crime of murder. My Lords,iwtrwio:ill'in-b
I will mention the
authorities upon the subject.
Hawkins, Foster, and Black-
England. Hale,
four highest authorities known to the law of
"If A and B fall sud-
denly4s3, it is thus laid down—
stone. In Hale's Pleas of the Crown vol. 1 page
the field, and run and fetch their weapons and
out and they presently agree to fight in
field and fight, and A kills B,
murderhe but homicide, for it is but a
this
sg ono intot ues, aeengt delibe_
continuance of the sudden falling out, and the
blood was never cooled. But if there were
deliberation, as that they meet the next day, nay,
srtdveollib. of
delibe-
ration, it were time same day, if there were
such a competent distance of time, that in
common presumption
they had time fo
nraatiNoviki,inst,hepnleasit
ois f ittuer der"
Crown,
.ht
chap: 13 time 1,
sec. 13,
it is thus stated :—" It-seems agreed that when-
ever cool blood meet and fight on a
prec teZ persons
preceding. quarrel,
, and one of them is killed, the
'other is guilty of murder, and cannot help himself
by alleging that he was just struck by the fie-
ceased, or that he had even declined to meet hint,
or was prevailed upon to do it by his own