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

merely on the punctilio of what was falsely
called honour, that will nut be an excuse for him
for deliberately seeking the blood of another in
a private quarrel, acting in defiance of alI laws,
human and Divine, whatever his motives may be.
It would, however, be but manslaughter if the
parties did not act in cold blood, or if it could be
concluded that their judgment had no control
over the first transport of passion, before they
engaged. Sir *William Blackstone, my Lords,
in the 4th volume of his Commentaries, thus.
writes—" This takes in cases of deliberate duel-
ings, when both parties met avowedly with in-
tent to murder." My Lords, he is then qualify-
ing cases which he considers to be murder ; and
he says that in all cases " when the parties meet,
it is to be considered as murder, thinking it
their duty as, gentlemen, and claiming it as
their right to wanton with their own lives,
and those of their fellow-creatures, without any
warrant or authority.from any power either Di-
vine or human, but in direct contradiction both
to the law of God and man. And, therefore,
the law has justly fixed the crime and punish-
ment of murder on them And on the second.
also." My Lords, those are the highest authori-
ties known to the law of England, and those
authorities have been unifinanly followed by
English Judges. It was so in the case of
Mirtin, in the Central Criminal Court,
and •it was so in the case of Sir John
Jefcott, which was tried before Mr. Justice Pat-
teson, one of the most learned Judges on the
Western Circuit; and on that occasion his 'Lord-
ship laid down the same law in the most precise
and authoritative terms. Such being the defini-
tion of murder to be found hi all our books of
authority, and such being the definition con-
stantly given of it on the Bench in the cases of
those who stood for trial, are not your Lordships
to suppose that the Legislature makes use of the
word murder iu the same sense, and. that
when we find in the 9th George IV.,
and in this Act of the Ist Victoria, the expres-
sions " with intent to murder," that that means
with intent to do that which, if accomplished,
amounted, in point of law, to- the crime of mur-
dere? The Legislature when they passed those
Acts must be taken—your Lordships must be
taken—as giving a sanction to those—you must
be taken to have well known what was the
legal definition of murder, and to have
used that expression, in these judicial.. Acts,
in in; legal sense. Then, my Lords, how-
ever painful the consideration may be, does
it not necessarily follow that the first count
of this indictment is completely proved ? The cir-
cumstances, my Lords, clearly show that the
Earl of Cardigan amt Captain Tuckett met by
appointment, Lund i Cardigan—the ground being
prepared—twice fired loaded pistols, taking de-
liberate aim, and hitting and wounding his anta-
gonist. lie ninst be supposed to have intended
that which be did. If uefbrtunately death had
ensued, would this have been a case of murder ?
My Lords, tile only- supposition by which
it could be reduced to manslaughter would be
that the Earl of Cardigan and Captain Tuckett
casually met on Wimbledon Common ; that they
suddenly quarrelled, and that while their blood
was hot they fought. But your Lordships can
hardly strain the facts so far as to suppose that
this was a Casual meeting while each was sup-
plied with seconds—while each had a bailee of
pistols,and allwas canielucted according to the forms
and solemnities observed when deliberate duels
take place. Thee, may lairds, with regard to the
second and-third counts of the indictment,. T know
not what defence can possibly be suggested, lie-
cause even if there had been this casual meeting,
contrary to all probability and all the circum-
stances of the case—if it would only, had death
ensued, amount to the crime of manslaughter—
would be no defence for the second and third
counts of the indictment. My Lords, I pre-
sume to say so on the authority of a case
which came before the fifteen Judges of
England, and which was decided on—two most
learned Judges doubting on that occasion, not
dissenting. Those • two Judges were his Grace
the Lord High Steward, and Mr. Justice Little-
dale. It would • not now become me to express
the opinion which I entertain of the learning of
his Grace, before your Lordships ; but of Mr. ills-
tice Littledale I will sety, that there never was
a more learned or a more acute -Judge: The
Bar of England have lately bid him adieu,
and I know not whether we shall ever
see • a more learned • Judge on the Bench.
I would therefore ascribe the greatest weight to
doubts even in duel quarrels. But the other
thirteen Judges entertained no doubts, and they
came to the conclusion, on the 4th section of the
Act of Parliament, that it was not necessary for
conviction, that if death had ensued the crime
would amount to murder. The case to which I
refer is to be found in the second volume of
Mudie's " Crown Cases of Reserve," vol. 2,
page 40. The case was tried before Mr.
Baron Parke, on the Norfolk Spring Cir-
cuit in 1838. It is entitled " anonymous."
The name of the prisoner is not given,
but the report seems very authentic, and it seems
to be in the words of the case submitted by the
Learned Judges for the opinion of their brethren.
It will be found, my Lords, expressly in point.
The opinion of the Judges was requested by Mr.
Baron Parke and his colleague on two questions
which arose on the Northern Circuit. It is the first
only that is material here. The case recited the
9th George IV., and the Ist Victoria, and pointed
out the circumstances that the Act of Queen Victo-
ria,t
given,
did not contain that same proviso with Lord
Ellenborough's Act and Lord Lansdowne's Act.
It submitted this question for the opinion of the
Judges. Is it any defence to an indictment for
wounding with intent to maim, that if death
had ensued that offence would not be mur-
der, but manslaughter? Now, your Lord-
ships will observe that shooting •at with in-
tent to maim or disable, and stabbing with
intent to maim or disable, are in the same
punish-
ment, and must be attended with t same_ results.
Phis, have the same
category, are subject to the samreltmy Lords, would This, therefore,
question
submitteddonbla n indictmentl Y'
authorityßaron
Parke as
for shooting at with intent
.toat e, would,be
ad. ensued,
a defence to
the crime would • not have amounted to
en
Easter Term, 1838, they all
iit:adthbee
whetherest
not: defence to such indict-
arguine en, but
mounted
the Juages—" At a meeting
risrdisetrile
murder,-1-
but to man-
show thnatts
merit, that if death had ensued the offence would
andrrh d Justice
not
dissent,L Littledale, dtiaileey,
only
not have
siatqliter, except,Lord Denman, the Chief
thought o theue rh t Judgesit Tdat
doubted. The other thirteen Judges, seemed
clearly to hold that that this would 'not amount
doubted.jstc
to any defence ; and I humbly apprehend they
probably reasoned in this manner, that the in-
tention of the Legislature being to mitigate the
penal code, and make those offences which be-
fore were capital now only punishable with trans-
portation, the quality of the offence was not
to be precisely the same; and that if there were.
maiming or disabling, or grievous bodily harm,
done when there was a sudden quarrel
in the heat of the blood without ,premeditation,
that still it should not be an offence within the
section of this Act of Parliament, which gave a
discretionary power to the Court before which
the offence is tried either to transport for fifteen
years, or to imprison for a single hour. There-
fore
those learned Judges, seeing the discre-
tionary power
givenseeing the omission of
• -
a proviso—seeing it was no longer a capital
offence, came to the • conclusion that the
offence was committed, although if death
. had ensued the crime would not have amounted
to murder. Now, my Lords, in that case
I know not what defence can possibly be at-
tenipted with regard to the second and third counts
-of the indictment. My Lords, I rejoice to con-
, sider that the Noble Prisoner will have an advan-
tage that was•not enjoyed by any Peer who has
ever been tried at your Lordships' bar
—an advantage which was not enjoyed