• LORD CARDIGAN'S TRIAL.

The trial of the Earl of Cardigan by the Peers, sitting in their capa- city of a High Court of Parliament for the administration of justice, the preparation for which has occupied so much of their Lordships' attention, came on and was ended on Tuesday. The trial excited the greater interest, that more than sixty years had elapsed since a Peer was tried for felony by the House of Lords. For the purpose of affording additional room in the small chamber where their Lordships now assemble, the gallery opposite the throne was protruded several feet into the body of the house ; and on each side a temporary gallery was erected, extending from the ordinary side-galleries very nearly to the great gallery, under which a small additional one was formed. The side-galleries were occupied by ladies and foreigners of distinction, chiefly members of the Corps Diplomatique. The great gallery was almost exclusively filled by ladies. At half-past ten o'clock, the Judges made their appearance, dressed in their state-robes, and took their seats in front of the woolsack. The Lord Chancellor was pre- vented from attending by indisposition. The body of the house was crowded to excess ; and the Peers being attired in their robes, and wearing the collars of their respective orders, looked unusually magni- ficent.

The Attorney-General and Mr. Waddington conducted the prosecu- tion; and Sir William Follett, Mr. Sergeant Wrangham, and Mr. Adolphus were retained for the defence. The Solicitor-General was also engaged for the prosecution, but was unable to attend from illness. At a quarter to eleven o'clock, Lord Denman entered the House as Lord High Steward ; preceded by the Sergeant-at-Arms with the mace, Garter King at Arms bearing his sceptre, and the Gentleman Usher of the Black Rod carrying the Lord High Steward's staff. His Lordship having taken his seat on the woolsack, the Bishop of Chichester read prayers. Mr. Birch, the Deputy Clerk of the Parliaments, proceeded to call over the roll of the Lords, beginning with the junior Baron.

The Lords having been called over, the Clerks of the Crown in Chancery and in the Queen's Bench having made three reverences, de- livered the commission to the Lord Speaker ; who gave it to the Clerk in the Queen's Bench to read ; which he immediately did, the Peers standinr, at the time. The commission authorized their Lordships to proceed with the trial of James Thomas Earl of Cardigan, on an in- dictment found against him, which had been removed before them by certiorari; and it appointed Lord Denman to preside as Lord High Steward on the occasion. The commission having been read, Garter and Black Rod made their reverences to the throne ; proceeded from the bar to the woolsack ; and having presented Lord Denman with the staff, placed him as Lard High Steward, in the chair provided for his Grace on the uppermost step but one of the throne.

Proclamation was made for silence ; when the Queen's writ of certio- rari to remove the indictment, with the return thereof, and the record of the indictment, were read by the Clerk of the Crown in the Queen's Bench.

The Lord High Steward then directed the Sergeant-at-Arms to make proclamation for the Yeoman Usher to bring the prisoner to the bar. The Yeoman Usher immediately appeared at the bar, having the Earl of Cardigan in his custody. The prisoner having reached the bar, made three reverences, one to the Lord High Steward, and one to the Peers on each side. He then was conducted to a seat placed for him within the bar.

Proclamation was again made for silence; when the Lord High Steward informed the prisoner, that he was indicted for feloniously shooting at Harvey Garnett Phipps Tuckett.

The Clerk of the Crown in the Queen's Bench then read the indict- ment. It contained three counts : the first charging Lord Cardigan with "feloniously and unlawfully shooting at Harvey Garnett Phipps Tuckett with a pistol loaded with gunpowder and ball, Intending there- by, of his malice aforethought, the said Harvey Garnett Phipps Tuckett to kill and murder ": in the second count he was charged with intending to mains and disable the same person ; and in the last count he was charged with intending to do him some grievous bodily harm.

Called upon by the Clerk of the Crown in the usual form Lord Car- digan, in a firm tone of voice, answered, "Not guilty, my 'Ards." He was next asked how he would be tried ; and said, "By my Peers." He then sat down uncovered.

Mr. Waddington opened the indictment, in the technical way as at trials of prisoners in a criminal court.

The Attorney-General addressed their Lordships. Having explained the preliminary circumstances which brought the trial to that bar, he proceeded to comment on the nature of the offence— It was now sixty-four years since any proceeding of this sort had taken place; and he was rejoiced to think that the charge against the noble prisoner at the bar did not imply any degree of moral turpitude ; and that if he should be found guilty, the conviction would reflect no discredit on the illustrious order to which he belonged. But it certainly did appear to him that the noble pri- soner had been guilty of a breach of the statute law of this realm, which he and all their Lordships were bound to obey.

He noticed at great length the different enactments which had been passed relative to the charge of maliciously shooting previously to the passing of the recent act on which the indictment was founded— That act received the Royal assent on the 17th of July 1837; it is known ae the 1st of Victoria, chapter 85, and is entitled "An Act to Amend the Law re-

lating to Offences against the Person." It recites, " Whereas it is expedient

to amend so much of an act passed in the 9th year of the reign of King George IV. as relates to any person who shall unlawfully and maliciously shoot at any person, or who shall by drawing a trigger or in any other manner attempt to discharge any kind of loaded arms at any person," Sze.; and then it repeals 9th George IV. c. 31, pro tanto. Then, by the second section, it enacts, that "whosoever shall stab, cut, or wound any person or shall by any means what- soever cause to any person any bodily injury dangerous to life, with intent in any of the Cases aforesaid to commit murder, shall be guilty of felony, and, being convicted thereof, shall suffer death." Therefore, by this act, to shoot at and give a wound dangerous to life remains a capital offence ; but to shoot at any person, whereby no wound is inflicted, is no longer a capital offence, but is only a felony punishable by transportation or imprisonment, whether. the in- tent be murder or any other grievous bodily harm. By the third section it is enacted, that " whosoever shall shoot at any person, or shall, by drawing a trigger or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall attempt to drown, suffocate, or strangle any person, with intent in any of the cases aforesaid to commit the crime of murder, shall, although no bodily injury shall be effected, be guilty of felony, and, being con- victed thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." By the fourth section it is enacted, that " whosoever unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger or in any other man- ner, attempt to discharge any kind of loaded arms at any person, or shall stab, cat, or wound any person with intent in any of the cases aforesaid to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person," shall be guilty of felony, and be liable to the same penalties as are contained in the 3d section of the act. He was happy to inform their Lordships that this indictment contained no counts on the capital charge. A wound was inflicted ; but the prosecutor, in the discharge of his duty, did not think it right to aver that any wound dangerous to life had been inflicted. The first count charged the noble lord with having shot at Captain Tuckett, with intent to commit murder. The second count charged him with the same act with intent to maim, disfigure, or disable Captain Tuckett ; and the third count with intent to do him some other grievous bodily harm. Now it was for their Lordships to say, whether, upon the facts, every one of these counts must not be considered fully supported and established.

The Attorney-General then described the circumstances of the duel ; the arrival of the parties at Wimbledon Heath ; the wounding of Captain Tuckett at the second fire ; the apprehension of the whole party by Dann the miller ; and their examinations before the Magistrates—.

The witnesses whom he should call to prove these facts would be Dann the miller, his son, his wife, and Sir James Anderson. He should offer no evi- dence—indeed, he could offer no evidence—as to the origin of the quarrel out of which this duel sprung. Captain Douglas, the second of the noble earl, had to take his trial. Ile haa been indicted with the Earl of Cardigan. A bill, which was thrown out, had also been preferred against Captain Tuckett and Captain Wainwright. They were liable, however, to have another bill presented against them; and if that bill were found, they too must take their trial. It would therefore not be decorous for him to summon them before their Lordships to give evidence, which might on other occasions be turned against themselves. It was painful to use the language which the first count made it necessary for him to employ ; but it was for their Lordships to say whether the noble earl had not shot at Captain Tuckett with an intent of crime. "I acquit at once, my Lords," said the Attorney-General, "the noble earl of any thing unfair in the course of this duel. Something has been said about his pistols having been rifle-barrelled, whilst Captain Tuckett's were not so. However that may have been, I entertain the most firm conviction that nothing was intended by the noble earl that was not most fair and honourable; and I have no doubt he thought that one of his own pistols might be directed against his own person. Nor do I suppose that there was any grudge, personal animosity, rancour, or malignity, against Captain Tuckett in the breast of the noble earl. Whether the noble earl gave or received the invitation, I believe his only object was to maintain his reputation as an officer and a gentleman. Your Lordships are aware that the noble earl is in the army, and that he is Lieutenant-Colonel of the Eleventh Hussars; and I have no doubt that upon this occasion he only complied with what he thought necessary to the usages of society. But under these circumstances, though it would have been considered, if death had ensued, a great calamity and not a great crime—though moralists of the highest autho- rity have defended duelling—it remains for your Lordships to consider what 'duelling is by the law of England. By the law of England there can be no doubt that parties who meet deliberately to fight a duel, are guilty of murder if death ensues."

The Attorney-General read from the law-books different definitions of the crime of murder, and cited also cases bearing on the second and third counts of the indictment. Having adduced these authorities, he said that when the facts were proved as stated, be could not conceive what defence could be made to enable their Lordships to pronounce a verdict of acquittal on any one count of the indictment. He intimated that such a decision could only be arrived at by straining the law to suit their opinions of the peculiar nature of the case— Captain Douglas having to stand trial before an inferior tribunal, that trial bad been postponed by the Judges on the express grounds that the same case should first be tried by the highest criminal court known in the empire. Their Lordships were to lay down the law by which all inferior courts were to be guided. Lord Thurlow, when addressing the House of Lords in the case of the Dutchess of Kingston, made use of these expressions—" I do desire to im- press this upon your Lordships as an universal maxim, that no more dangerous idea can creep into the mind of a judge than the imagination that he is wiser than the law. I confine this to no judge, whatever his denomination, but ex- tend it to all ; and speaking at the bar of the highest court of justice, I make sure of your Lordships' approbation when I comprise even your Lordships. It is a grievous example to other judges. If your Lordships assume this power of sitting in judgment upon the law, why not the King's Justices ? Why not the Commissioners of Oyer and Terminer ? If they do so, why not the Quarter- sessions ? Ingenious men may strain the law very far, but to pervert it, and to new-model it, the genius of our constitution says the judges have no such authority, nor shall presume to exercise it."

Witnesses were then called, who stated the circumstances as they occurred on the morning of the duel, which are already too well known to require repetition. The first witness was Dann the miller. A discussion arose, during his examination, respecting the admissibility as evidence of a card delivered to Dann, with the name and address of Captain Tuckett, when he allowed him to be conveyed home. The card was at length admitted, as Sir William Follett, when he saw it, did not any longer object. Dann stated that he had called three times at" 13, Hamilton Place," the address mentioned in the card, and saw Captain Tuckett there each time. On one occasion Captain Tuckett wrote a note to be taken to the Magistrate ; and the witness saw him write his name, " Tuckett."

The miller's son and wife were next examined. Their evidence was to the same effect as that of the miller : they saw the transaction from the first meeting of the parties on the ground. It came out on their cross-examinations, that the witnesses has been sent for to the Home Office last Saturday, and had been examined by 1%1r. Vizard.

The next witness called was Sir James Eglinton Anderson, who 'went with the parties to Wimbledon Common in his medical capacity, and who attended Captain Tuckett after he was wounded. As soon as this witness was called, the Lord High Steward informed him that he was not bound to answer any question tending to criminate himself. Of this privilege the witness took ample advantage ; as will be per- ceived from the following report of his examination.

The Attorney-General—" What is your profession ?"---" A physician." " Where do you live?"—" In New Burlington Street." "Are you acquainted with Captain Tuckett ?"—" I must decline answering that question.

" Were you at Wimbledon Common on the 12th of September last?"—"! must decline answering that question also." (Laughter.) " Were you on that day called on to attend any gentleman who was wounded?" —"I must decline that again." (Laughter.)

"Can 3 on tell where Captain Tuckett lives ?"—" I must decline answering that question."

"Has Captain Tuckett any house in London ?"—" I decline answering that question." (Laughter.)

" When did you last see Captain Tuckett ?" Sir W. Follett—" I must really submit to your Lordships, that, the witness having declined answering certain questions, it is not right in the Attorney- General to press him with circuitous questions."

The Attorney-General (to the witness)—" Then you decline answering any question whatever respecting Captain Tuckett ?"— 'I decline answering any question that may tend to criminate myself."

" And you consider any question respecting Captain Tuckett may tend to criminate you ?"—" Possibly it would." The Attorney-General—" Then, unless your Lordships have any question to ask of him, the witness may withdraw."

The witness was then desired to withdraw.

John Busain, an Inspector of Police at the Wandsworth Stationhouse when Lord Cardigan and Captain Douglas were taken there in the cus- tody of the miller, stated some additional circumstances regarding the conduct and expressions of Lord Cardigan at the Stationhouse-

" The door was open, and his Lordship walked in. His Lordship said, I have been fighting a duel; and I have hit my man, but not seriously ; I believe slightly—a mere graze across the back '—and his Lordship passed his hand across his back this way. (The witness passed his hand across his back.) His Lordship also looked over his shoulder and said, This gentleman also is a pri- soner—my second, Captain Douglas.'"

"Did you see any thing more then?"—" His Lordship passed his hand be- hind him into his pocket : in the act some cards fell upon the door: he pm - sented me with one; when I saw the addresz, The Earl of Cardigan, 11th Dragoons.' I believe I alluded to the duel again, and said, I hope not with Captain Reynolds.' His Lordship appeared indignant at the idea, and said, Do you think I would fight with an inferior officer of my own ? ' "

The shorthand-writer was asked to repeat the answer. He read it—' Do you think I would fight with an inferior officer '—(Loud cries of "No, no I")

The Lord High Steward desired the witness to repeat this answer.

Witness—" When I made this observation about Captain Reynolds to his Lordship, he drew himself indignantly up erect, and said, with a tone of dis- dain, 'No; do you suppose I would fight with one of my own officers ? ' These were his words to the best of my recollection."

This witness underwent a severe cross-examination, for the purpose of showing that the words imputed to Lord Cardigan were not correctly stated : but the witness adhered firmly to his former evidence; and ex- plained the cause of the expressions not appearing in the deposition to be, that the Magistrate's Clerk told him they were irrelevant.

Mr. Charles Valthen, a chemist in the Poultry, was called for the purpose of proving the identity of Captain Tuckett. He stated that fifteen months ago he had let rooms in his house to "Captain Harvey Tuckett," to carry on the business of colonial-agent ; that the Captain Harvey Tuckett who took the rooms gave his address at "No. 13, Hamilton Place, New Road"; but the -witness had never been to the house, nor seen Captain Tuckett there. He only knew him as Captain Harvey Tuckett.

Mr. Codd, the army-agent who pays Captain Tuckett his half-pay as a retired officer of the Eleventh Light Dragoons, stated that the Christian and surnames of Captain Tuckett are "Harvey Garnet Phipps Tuckett." He had never seen him at 13, Hamilton Place.

The card given to Dann the miller was engraved " Captain Harvey Tuckett, 13, Hamilton Place, New Road."

This was the case for the prosecution.

Sir William Follett then addressed their Lordships. He contended that there was no case that called on the defendant for an answer, as there was no proof of the identity of Captain Tuckett. The prosecutor was bound to prove the Christian name and surname of the party against whom the offence is alleged to have been committed; and if that failed, the proof of the case must fail as a necessary consequence.

The Attorney-General recapitulated the evidence relative to the identity, and contended that no reasonable man could conclude other- -wise than that the Captain Tuckett who lived at 13,-Hamilton Place, was the Captain Tuckett with whom Lord Cardigan fought the duel— "I believe," said the Attorney-General, "there is no human being who, having beard this evidence out of a court of justice, would hesitate draw- ing the inference; and I believe that the same weight of evidence which would be sufficient to convince a reasonable man out of a court of justice, ought to convince a judge or judges sitting in a court of justice, pro- vided it be adduced according to the known rules of evidence. And again ask your Lordships, whether, according to those rules of evidence, any one out of a court of justice, upon the evidence your Lordships have Allis day heard, would doubt for a moment that this Captain Tackett, of whom you have had evidence, is the person who fought the duel with the Earl of Cardi- gan on the 12th of September ? If this inference would have been drawn out of a court of justice, shall it be said that in a court of justice there is not a scintilla of evidence from which it could be drawn ? This would be a most Unsatisfactory conclusion to this trial. Your Lordships will weigh the evidence fairly and deliberately. If you think that this is not the same individual, of course you will acquit the prisoner, saying 'Not guilty, upon my honour '; but you will not stop the prosecution upon this objection, which must be con- sidered a trivial one.'

*Sir William Follett, in reply, said that this might be a very unsatis- factory conclusion to come to for the parties who had undertaken the prosecution; but still he must submit that, with all the care they had taken with this case, they had utterly failed in putting together such evidence as would be neccessary to support their indictment— The whole of the evidence of Mr. Codd was, that he knew a person of such a name who received half-pay.. But there was no evidence to show that this Captain Tuckett mentioned in the evidence of Codd is the same Harvey Garnet Phipps Tuckett mentioned in this indictment, as having been on Wimbledon Common on theoccasion in question. No judge sitting in a criminal court would leave such a question to the decision of a jury. There might be two Harvey Tucketts; and since the Attorney-General had referred to their Lord- ships' knowledge of what might have occurred out of doors, he would remind their Lordships, that in the very regiment commanded by the noble defendant* there were two officers bearing the same surnames certainly, and he believed one Christian name in common.

Strangers were then ordered to withdraw, while their Lordships con- sidered the objection raised by Sir William Follett. After an absence of about twenty minutes, the doors were again opened, and it was un- derstood that their Lordships had decided in favour of the objection, or, in other words, that there was not evidence to go to their Lordships sitting as a jury.

The concluding ceremonials of this mock trial are thus described by the reporter of the Times— On our return to the House, we understood their Lordships to have decided the objection to be valid ; and we found the Lord High Steward at the chair putting the question to each Peer,—Guilty or Not Guilty ; e.g. "John Sin- gleton Lord Lyndhurst, how says your Lordship ? is James Thomas Earl of Cardigan guilty of this felony whereof he stands indicted, or not guilty ?" Whereupon each Peer, upon his name being called, rose, and placing his right band upon his breast said, "Not guilty, upon my honour "; the only:exception to the general rule being the Duke of Cleveland, who in the first instance

• said, "Not guilty, legally, upon my honour." After all the Peers had given their verdict, the last of whom was the Duke of Cambridge, The Lord High Steward, standing on the steps of the throne, himself said, "Not guilty, upon my honour."

The Sergeant-at-Arms then said, "Yeoman Usher, call in James Thomas Earl of Cardigan."

The noble earl was then placed outside the bar ; when

The Lord High Steward, addressing him, said—" James Thomas Earl of Cardigan, you have been indicted for a felony, for which you have been tried bzyour Peers; and I have the satisfaction of declaring to you that their Lord- ships have pronounced you 'Not guilty,' by an unanimous sentence. The number I have not precisely at this moment before me, or I would have been glad to have stated It your Lordship ; but their Lordships have unanimously said, Not Guilty.'"

The Earl of Cardigan then bowed and retired.

The proclamation dissolving the commission was then read ; and his Grace the Lord High Steward, standing in front of the Throne, received the staff from the Garter King-at-Arms and the Usher of the Black Rod jointly, held it in both hands, and broke it in two; and so the commission was dissolved, at half-past five o'clock.

Their Lordships adjourned till Friday, to allow time for the removal of the fittings-up for the trial ; the cost of which is estimated at from 3,000/. to 4,0001.

The journals of the House of Lords give the following record of the trial of Lord Cardigan-

" The Lord Denman sat Speaker. Earl of Cardigan, trial of. Several wit- nesses ordered to attend forthwith. House called over. Letters of excuses communicated by the Lord Speaker. Commission appointing a Lord High Steward read. Trial proceeded with. Indictment read, and the evidence for the prosecution closed. Objection taken by the counsel for the Earl of Car- digan, that the evidence failed to prove the identity of Captain Tuckett, as described in the indictment. Then the Bishops desire leave to be absent when judgment is given upon the Earl of Cardigan; upon which leave is given. Objections taken by the counsel for the Earl of Cardigan to the evidence ; con- sidered. After some time, moved that the House do now proceed to give their opinion, whether the said Earl is guilty or not guilty of the charge in the in- dictment. When each Peer present declared, upon his honour, Not Guilty. The Earl of Cardigan brought to the bar, and informed by the Lord High Steward that the Lords had unanimously declared him Not Guilty. And the commission was then dissolved. House resumed; and adjourned to Friday next, at half-past three o'clock."