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

The Earl of CARDIGAN, in a firm voice, re-
plied. " Not guilty, my Lord."
The Clerk—" How will you be tried, my Lord ?"
The Earl of CARDIGAN—" By my Peers."
The Noble prisoner then took his seat on a
stool within the bar, and his Grace the Lord
High Steward removed to the table, preceded by
Garter; Black Rod, and the Purse-bearer.as be-
fore, and his Grace being seated, Black Rod took
his seat on a stool at a corner of the table, on his
Grace's right hand, holding the staff, Garter on a
stool on Black Rod's right, and the Serpant at
the lower end of the table on the same side.
Mr. WADDINGTON then opened the pleadings,
stating the nature of the offence as set out in the
indictment, and added- that the Noble prisoner
had, for his trial, put himself upon their Lord-
ships, his Peers.
The ATTORNEY-GXNERAL—My Lords, I have
the honour to attend you as Attorney-General
for her Majesty to lay before you the circum-
stances-4k t this case, .without any object or wish
except that I may humbly assist your Lordships
in coming to a right conclusion upon it, accord-
ing to its merits. My Lords, an indictment has
been found against a Peer of the realm by the
Grand Jury of the country, charging him with a
felony, the punishment of which is transportation
or imprisonment. My Lords, that indictment
has been removed before your Lordships at
the request of the Noble prisoner, most
properly made, for an inferior Court had
• • •
no jurisdiction to try him. My Lords, upon
a charge which upon the face of it so serious, it
would not have been satisfactory if it had gone
off without an inquiry ; and, my Lords, the police-
man who is upon this case bound over to prose-
cute, had fulfilled the conditions of his recogni-
zances by appearing at the Central Criminal
court and preferring an indictment. My Lords,
in the course of this trial it is possible that ques-
tions of great magnitude upon the construction
of Acts of Parliament respecting the privileges
of the Peerage may arise, which it is of great
importance to this House, to the Crown, and to
the community, should be deliberately discussed.
My Lords, according to all the precedents that
can be found, wherever there has been a Peer
tried in Parliament the prosecution has been
conducted by the law officers of the Crown.
Fortunately, my Lords, we have no living me-
mory upon this subject. It is now sixty-four
years since any proceeding of this sort has taken
place ; and I am rejoiced to think, my Lords,
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 it
seems to me that he clearly has been guilty of a
breach of the statute law of the realm, which
those in all Courts of Justice are bound to re-
spect and enforce. Your Lordships are not
sitting here as a Court of Honour, or a branch
of the Legislature. You are sitting as a Court
bound by the rules of law, and under a
sanction as sacred as that of an oath.
My Lords, the indictment against the Earl of
Cardigan is framed on an Act of Parliament
which was passed in the first year of the reign
of her present Majesty Queen Victoria. It
charges the Noble Defendant with having
fired a shot at Captain Harvey 'Puckett, with
several intents which are stated in the indict-
ment. I think it but a duty that I owe to
the accused oa this occasion, to remind your
Lordships briefly of the state of the law on this
subject. 1)y the common law of England when
death da" not ensue, no personal- violence,
however great, amounted to more than
a misdemeanor, and if the person wounded
did not die within a year and a day
then no felony had been committed-. My
Lords, the first Act of Parliament which created
it a felony, where death did not ensue, was the
sth of Henry IV., chap. 5, whereby the cutting a
person so as to injure him, although death did not
ensue, was made felony, with benefit of clergy.
By the Coventry Act, passed in the 22d and 23d
of Charles 11., any person lying in wait for, and
wounding any person, with intent to maim or
disfigure him, was guilty of felony, without bene-
fit of clergy. Under both of these Acts your
Lordships will perceive that no offence was com-
mitted unless a wound was inflicted. But by
the Act of the 9th of George 1., com-
monly called the " Black Act," the at-
tempt, even when no wound was given,
was made felony. By that Act it was
enacted that if any person should wilfully and
maliciously shoot at any person in a dwelling-
house or other place, he should be considered
guilty of felony without benefit of clergy. But I
think it my duty in fairness to the Noble Prisoner,
to remind your Lordships that unless the case
was such that if death ensued, it would be a case
of murder, no offence had been committed within
the statute. My Lords, the law in this case has
been very clearly laid down, in the case of " The
King against Gastineau," which is reported in
the Ist vol. of Leach's Crown Cases, p. 417. In
that case the law is thus stated—the
offence charged in the indictment is de-
scribed in this statute in few and clear
words—it is enacted, " that if any per-
son shall wilfully and maliciously shoot at
any person in a dwelling-house or other
place, he shall be guilty of felony without benefit
of clergy." The words "maliciously" and " wil-
fully" are made to constitute the essence of the
crime. No act of shooting is within the meaning of
the statute, unless accompanied by circumstances
which would have made the crime murder if
death had ensued in consequence of such act.
The proposition is clearly laid down, but there
must be clearly the intention of malice, and in no
species of homicide can malice be argued except
in murder; and therefore no accidental shooting,
nor any shooting committed in the transport of
passion, in which case, if death ensues, the crime
is manslaughter only within the meaning of this
statute. My Lords, things continued in this posi-
tion until the Act of the 43d Geo. 111., commonly
called Lord Ellenborough's Act. This Act did
not repeal the Black Act, but extended it to
many cases which were not before felony. My
Lords, by that Act it was enacted, that if any
person should maliciously shoot at any person
with intent to murder him, or with intent to
maim, disfigure, or disable him, or to do him
some grievous bodily harm, such person should
be adjudged guilty of felony. But, my Lords,
in this Act there is an express provision, that
if supposing death had ensued, it would
not amount to murdz,-r, then the person indicted
shall be acquitted. My Lords, you will observe
that by this Act of Parliament it is,made a capi-
tal offence to shoot at a person with intent to
murder him, or to maim, or disfigure, or disable
him, or to do him some grievous bodily harm;
but the case is within the meaning of the sta-
tute, only' supposing that if death ensued the
case would amount to murder. The next Act
on this subject is the Act of the 9th George
IV. cap. 31, which is generally called Lord
Lansdowne's Act, because the Marquis of Lans-
downe was at that time Secretary of State for the
Home Department, and lie had. introduced that
Act into Parliament. It consolidates and amends
the statutes relating to offences against the per-
son; it repeals the Black Act and Lord Ellen-
borough's Act; but it contains similar provisions
to Lord Ellenborough's Act. By the 10th se&-
tion it is enacted, " that if any person shall ma-
liciously shoot at any other person with intent to
murder him, he shall suffer death as a
felon." By the 12th section it is enacted,
" that if he shall shoot at any person with
intent to maim, disfigure, or disable him, or to
do him some grievous bodily harm, he shall
suffer death." It contains, however, the same
provisions as Lord Ellenborough's Act, that,
supposing death ensued in consequence, if the
crime would not amount to murder, then Ithe
person should be acquitted under this Aet. :But
it was still a capital offence to shoot at any
person with intent to maim, disfigure, or disable_
him, or to do him some grievous bodilyfliarm.
My Lords, things remained on this footing
until, oting
until, the Act was passed on which this n-
- dictment is founded. This Act received the
Royal Assent on the 17th of July, 1837.