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conviction but for manslaughter, which tion, and I think it places the question of ought to have modified the strong lan- law in cases of duel, upon more stable and guage with which Mr. Townsend opens more tenable grounds, than the shifts and his narrative of the following remark
artifices which have been so generally reable case :
sorted to.'" " There is a singular case, of Sheppard,
But by far the most eloquent, and tried before Sir Henry Russell
, the recorder
in all its circumstances the best charge of Bombay, which issued in a verdict of
to be found in this class of cases, is manslaughter, though, if there be any au- that of Baron. Smith on the trial of thority in law for a concerted duel being a Alcock. Alcock and Colclough were crime, it is either a murder or no offence at candidates for an Irish county. Alcock all. It is as much a departure from the autho- had gained the interest of a proprietor, rity of the law to find manslaughter, as to find some of whose tenants, forty-shilling it no crime. This, however, was an aggra- freeholders, were about voting for vated case. A quarrel took place between two officers in garrison, who chose to go out,
Colclough. Alcock remonstrated with after a long delay, several weeks having
Colclough, who said he had not solibeen spent in the exchange of notes, in the
cited the votes. “But they shall not dark, and to fight by the light of a lantern
vote for you,” said Alcock.
“ How held by a black servant between them, with- can I prevent them?" said Colclough. out the inspection of a single European ; no
Alcock said he must have satisfaction. witnesses were present. The offence of the They fought, and Colclough was shot party who suffered was of a very vague de- dead. The prosecution, it would apscription, only one person saying that he
pear, was vindictively conducted by thinks he had heard Captain Phillips speak the friends of the deceased by the lightly of Sheppard on some occasion or other. On this provocation the challenge is
very persons who were on the ground hands, and meets and kills him in a duel, and not in any other way, is it possible the offence, altering its character, becomes to prevent duelling. That change has at once murder ; and if you are bound to arrived. But we are glad that in convict the prisoner here, you would be also
witnessing and encouraging the violagiven, the parties fight alone (for the black
tion of the law—and in the witnessing servant was not permitted to give evidence) in the dark, and Captain Phillips is killed
and encouraging a crime, themselves on the spot. The boldness with which the
criminal. The same principle that judge spoke out (what all judges in their runs through the latter part of this hearts must feel) is remarkable.
charge, of the practice of society having “Sir Henry says, after stating that the abrogated or varied the admitted letter crime of killing in a duel is murder: • At the of the law, was strenuously urged by same time, in compassion to human infirmity, Jeffrey in his defence of Stuart, and courts of law and juries have been in the
it is impossible not to allow it great habit of making great allowances for the cir
weight :cumstances in which persons called upon to fight a duel may have been placed. When "If an officer at the head of his regia fellow-creature is put to death from motives ment,' said Baron Smith, charging the of deliberate malice, the law pronounces the jury, be called a coward and a scoundrel, crime to be murder. When the same act is and instead of cutting the offender down, committed under the immediate influence of challenge and kill him in a duel, he is a violent passion, it is merely accounted man- murderer by law; and if you are bound to slaughter. Now, in the case before you, it find the prisoner Alcock guilty, you will be will be for you to consider whether the pre- equally obliged to return a verdict of convicsent circumstances of society, as applied to a tion against a gallant officer, under the cirgentleman and a soldier, do not take away cumstances which I have described. Yet, the particular character of malice from the on the other hand, the military punishment crime. A man is placed in a situation where, and intolerable disgrace which must ineviif he does not go out to fight a duel, he has tably follow from his submitting to the afno prospect before him in life but that of front, it cannot be necessary for me to dwell contempt and ignominy. Surely the feelings upon. If an aged, an infirm, a beloved, and which are inseparable from such a situation respectable parent be insulted and reviled, may be supposed to deprive a man of self- or even struck and beaten in the presence of possession and self-command, as well as a a son, and this latter happen to kill the asviolent gust of passion. And I see no reason sailant in a duel, the transaction will be why the law should deny, nor do I believe that murder ; and, if you cannot acquit the prithe law does deny, the same indulgence to soner, you could not acquit the child. If a those feelings, that it yields to a brutal im- husband find his wife in the embraces of pulse, which it is the chief object of all another, and kill him unarmed and unrehuman and divine institutions to control. sisting, this is manslaughter of the lowest In declaring this opinion, I believe I go and most venial kind. But if, giving the farther than most judges have done, but I adulterer further time for preparation, and a have not formed it without mature delibera- fairer chance for his life, he puts arms in his
every part of the empire judges refused bound to a conviction in the case which I
to make the effort of coercing juries to have supposed. Not because in morals the
find verdicts against the common sense criminality is equal; but because both offences are murder in the eye of the law. But
of the country. Had they done so, it let me ask of your consciences and your
seems to us probable that the custom bearts as men, could you convict the officer,
of duelling would have survived some the busband, or the son ?
half century longer. ** I will not repeat, lest I might seem to Some cases are mentioned of duels inculcate, the austere doctrine of the law. In in Scotland where the survivor was once stating it, I conceive that I have suffi
acquitted; the judge telling the jury ciently discharged my painful duty. Nay, how it was impossible to disguise the even sitting where I do, I think myself war
truth, that the manners of the times, ranted in doubting whether this doctrine is
and the feelings of the people, were in not a sort of anomaly in our code ; existing in theory, almost abrogated in practice, by
direct opposition to the laws of the the acuteness of the judges, the humanity of
land, and then approving the verdicts jurors, the mercy of the Crown. This, gen
of acquittal. tlemen, is all I have to say. The evidence
The Commissioners of Criminal Law, is before you. If you believe it, you have in their “Second Report” (1846), reheard its legal results from the bench. You commend the abolition of capital pubave the law of the land bearing witness nishment in the case of duelling. Withagainst the prisoner on the one hand, the out reference to the distinctions belaw of opinion, on the other, endeaveuring to tween this offence and other cases of excuse him ; the one prescribing rigour, the murder, they think it casts a stigma on other suggesting mercy. It is for you to the law to be unable to carry its sancpronounce which call you will obey! The
tions into effect. If it says one thing trammels of ny office forbid my adding more. But there is another, a far better voice than
and juries another, mischief, and nomine, to which, though I be silent, you may
thing but mischief, is done, by leaving listen still. I mean that “ still, small voice" the law unaltered. of which you read in Scripture, and which Let us not be supposed to vindicate addresses itself to the consciences of good the practice of duelling. We only and pious men in the soft and soothing ac- quarrel with what has been proved by cents of clemency and peace. Its dictates the experience of centuries to be an may be followed with a confidence the most
ineffective mode of getting rid of the explicit. It is the voice of Him who cannot
evil. The trial of Mr. Stuart is, in err- who cannot lead his creatures into error - who, to justice without blemish, can unite high spirits which, perhaps, form an
all respects, an interesting one. In the mercy without bounds-who, all criminal as we are, can acquit us, and yet be just. To
excuse for the wildest excesses of gaiety the influence of those secret and divine mo
in a political writer_in some such exnitors, and as far as human infirmity can
uberant spirits as animated Coleridge follow) of this divine example, I surrender
in his “Fire, Famine, and Slaughter"you, and commit the care of the prisoner at Sir Alexander Boswell wrote a numthe bar. I wait with some anxiety and much ber of songs and pasquinades against impatience for your verdict. Judge, then, persons politically opposed to him, and whether I am impatient for a capital convic
amongst others, against Stuart. We tion.'
believe that the mere feeling of fun “ The jury, in one moment, acquitted the disguises from lively writers the pain prisoner."
they give, and that the persons lam
pooned or libelled can scarcely be said Mr. Townsend comments on this not to have any personal existence to the very reasonably. “In a country where mind of the writer who is so engaged. statesmen, members of parliament, He exists as pure an abstraction as the lawyers, physicians, and country gen- Achilles or the Agamemnon of the tlemen, had measured their twelve paces, Iliad. Sir Alexander Boswell was a the stern dictates of the law ought ra- man of great intellectual power, of ther have been urged.” We think with very lively talents, and one whose juries, who tried this and similar cases, verses, now that we suppose it is imthat the law of opinion is the law of possible they can give offence to any the land, or is paramount to the law. one, ought to be collected. Stuart By a change in that law of opinion, was offended by the incessant attacks on him in the Beacon, and in the Sen. fixed opinion, and not merely engage 1 tinel newspapers, and he brought an in gladiatorial argument, are found action of damages. In the course of recorded in his life by the father of the proceedings he learned the name Sir Alexander Boswell, made the refeof the author of the attacks. Sir Alex. rence to him appear more natural than ander had the excuse of having been it could in any other case.
The diffi. himself the object of similar attacks, culty of acquitting a man of murder, and he was under the mistake of sup- who deliberately has shed the blood of posing Stuart the author. One of another, while the legal definition of Sir Alexander's stanzas ran thus. It inurder remains what it is, is dealt alluded to Stuart's bringing an action with in much the same way as in the at law instead of trying the case by cases tried in England and in Ire. single combat :
“Some knights of the pen, man,
"I conceive the criminal law of this Are all gentlemen, man,
happy country to consist, not in the barbaIlk body's a limb of the law, man ;
rous and implacable severity of its antiquated Tacks, bonds, precognitions,
statutes, not in the severe and impracticable Bills, wills, and petitions,
doctrines that may still retain their places in And ought but a trigger some draw, man."
books of law, eren of the greatest authority;
not even, I say it with great submission, in “The Earl of Rosslyn, on reading these the dicta that may fall from the lips of those documents, saw at once that there was but one
high and stern magistrates, the judges of the course to be followed. He sought and ob
land, who are bound to assert all the seretained an interview with the late Baronet, rity of the code which they are appointed to and made two propositions ; in the first place,
uphold, and in their places to countenance that if he would deny the calumnies were or sanction no relaxation of it, however hard his, his simple assertion would be taken as
and inoperative in the correction of crimes it conclusive against all evidence whatever.
may be. But, I say, the criminal law of But he did not say that they were not his.
this happy country consists in the authorised I wish he could have said so; but he was a
and approved praciice of its courts of crimigentleman, and he knew he could not say so nal law-as this is ultimately embodied in truly. Yet another proposal was made to
the popular, admired, and consistent verhim. "Let us take it, Sir Alexander, as a dicts of juries. I am far from saying that mere bad joke. Say but you are sorry for juries have any dispensing power over the it; that it was a squib; and that you had law. I am far from saying, though that no serious intention of impeaching the honour has been said, that they have a rightful or courage of Mr. Stuart.' I am sure that was
power to disappoint the law, where its sanca proposition as mild as the greatest peace- tions have been plainly incurred. But, I maker could possibly have made; and it was a
say, that where the verdicts of juries have proposition to which the party might have
met, for a course of time, with the general acceded without the slightest imputation on
approbation of the community, and the sanchis honour. Yet that satisfaction he re- tion of the courts under whose authority they fused. He said, 'I cannot submit to be ca
are pronounced—when they go on in an techised. I will make neither denial nor
uniform series, and all point one way, they apology.'”
then make and constitute that real and prac
tical law, on which all the subjects of the It was scarce possible after this, in the feelings on the subject of duelling nistration of which the people
, with the
land are entitled to rely, and on the admithat prevailed some eight-and-twenty
greatest security, may depend. And, in years ago, perhaps that still prevail, to
truth, it is a proud and fortunate circumavoid a meeting. Boswell fired in the
stance for this country, that such an instiair — Stuart's pistol was discharged tution as a jury should exist, with power with fatal effect. The details of the occasionally to temper the severity of that evidence produced on his trial are not law, which a court of another description important for us to adduce; it is fit, would too inflexibly enforce, and thus silently however, to state that they are of con- to abrogate statutes, or maxims of common siderable interest, and are well given law, which the course of the times, the proby Mr. Townsend. The speech of
gress of manners, the disappearance of some
crimes, and the rise of others, may have Lord Jeffrey in this case is above all
rendered inapplicable and unnecessary. If praise. It rests the defence mainly on
the law had become too severe for the age, the ground taken by Dr. Johnson, and juries should refuse to enforce it
. In Engthe circumstance that Johnson's con
land this power of juries is not only recogversations on the subject, so frequent nised as existing, and winked at by judges, as to prove that he was delivering a but is subscribe i to by them, and applauded
not only ly the ccuntry at large, amons attracted public attention in a degree whom these juries liave never been known perhaps unexamplel. Something of to have lost their credit, but even by the injustice had been done, or seems to judges themselves, from whose dicta they
have been done, to the traverser. The occasionally dissent.'"
grand jury at the Central Criminal
Court, who found true bills against He then instances the cases of steal- Lord Cardigan and his second, threw ing to the amount of forty shillings. out the bills against Captain Tuckett This offence was a capital crime; juries and his second, though sustained by refused to convict, or, with the appro- the same evidence. It is probable that bation of the judges, evaded subjecting the sympathies of the tribunal by whom the prisoner to this extreme penalty, Lord Cardigan was to be tried were by finding the value of the goods stolen with the accused, and it was the same to be of less value than forty shillings. contest between the course of conduct In indictments for child-murder, a supposed to be imperatively required Scotch act of parliament made conceals by the conventional usages of society, ment of pregnancy on the part of the and that enjoined by the law, which mother proof of guilt-juries refused was in principle involved in this as in to convict, and judges did not disap- all former judicial investigations of prove; in one case, Jeffrey said he crime by duel. That the life of the acremembered the presiding judge re- cused was not involved in the resultbuking the public prosecutor for bring for the pleading did not state the fact ing such a case to trial, and telling of Captain Tuckett's being wounded, him plainly “if he did proceed on that which would have varied the offence, statute he (the judge) would take care and the indictment was not framed there should be an acquittal.”
under Lord Ellenborough's Act, but In his instructions to the jury, the under a recent statute of 1 Victoriapresiding judge on Mr. Stuart's trial increased the probability of a finding dwelt on the provocations given, the against the accused. On the whole, terms of accommodation proposed and the position of Lord Cardigan was one rejected, and the conduct and bearing of serious danger. Lord Denman
preof the prisoner throughout; and though sided as Lord High Steward, the Athe stated that “no false punctilio of a torney-General (now Lord Campbell) notion of honour could vindicate an stated the case for the prosecution, act terminating fatally to a fellow- and the defence was conducted by Sir creature,” he yet thought the jury had William Follett. a right to consider the provocation, A duel was proved to have taken and the unsuccessful overtures for ac. place between two gentlemen, one of commodation. The verdict was an whom was wounded. Immediately after immediate one of acquittal. We find the duel, the parties who fired, and their by a note to this “trial” that Mr. seconds, were arrested. One of the Stuart, who afterwards edited the parties was the Earl of Cardigan—the Courier, and who published - Travels other, on giving a card with his name in America,” died a few months ago and address, was allowed to be taken while Mr. Townsend's book was passing to his lodgings. The Attorney-General through the press.
sought to give the card in evidence, The next trial is one to which, at the and a long discussion took place as to his time of its occurrence, unusual interest right to do so. For the House to have was attached. It is the trial of Lord come to any decision on the admissibiCardigan for felony, in shooting at lity of the evidence it would have been Captain Tuckett.
This was a case necessary to order strangers to withbefore the House of Peers. The rank draw; and to avoid this inconvenience of the party accused—the frequent the Attorney-General delayed pressing mention of his name in the newspa- this piece of evidence. pers from disputes in his regiment- The indictment in all its counts the notoriety of the fact of the duel - called Captain Tuckett “ Harvey Garthe circumstance that this was the first nett Phipps Tuckett." A policeman criminal trial that had ever taken proved the fact of the duel, and was place for engaging in a duel which had proving that Captain Tuckett called not been attended with loss of life-and at the police office and gave his name, more than all, the unusual solemnity when he was interrupted by Sir Wilof a trial before the House of Peers, liam Follett with the question, “Was Lord Cardigan present ?" and being proof. Although an unusual course, obliged to answer that he was not, the Lord Denman's reasons for advising examination of this witness closed. this course were published by special Another witness for the prosecution direction of the House. We regret was asked the Christian names of Cap- that we have not space for more than tain Tuckett, whose place of residence a sentence:he proved, and answered “ Harvey Tuckett.” The army agent, through “ • It was urged, that the person using and whom Tuckett received his pay, was owning the four names was not shown to be called. He knew Harvey Garnett Phipps the same person who, under the name of Tuckett, but did not know where he Captain Harvey Tuckett, had been engaged lived. Every effort to connect the
in a duel fought on Wimbledon Common.
* * No fact is easier of proof in its own Harvey Tuckett of the witnesses who
nature, and numerous witnesses are always proved the facts of the duel, with the
at hand to establish it with respect to any Harvey Garnett Phipps Tuckett of the
person conversant with society. In the preindictment, had failed, when the Attor
sent case the simplest means were accessible. ney-General again produced the card. If those who conduct the prosecution had On the card's being shown to Sir W. obtained your lordships' order for the apFollett he said, “I do not object to its pearance at your bar of Captain Tuckett, and being read.” The card was given in if the witnesses of the duel had deposed to and read, “Captain Harvey Tuckett,
his being the man who left the field after 13, Ilamilton-place, New-Road.” The receiving Lord Cardigan's shot, Mr. Codd case for the prosecution closed–Fol
might have been asked whether that was lett's triumph" was complete, and the
the gentleman whom he knew by the four
namos set forth in the indictment. His anfailure of the case for the prosecution
swer in the affirmative would have been too seems to have taken the Crown by conclusive on the point to admit of the presurprise. It was impossible to say that
sent objection being taken. the person at whom Lord Cardigan “ Several other methods of proof will shot was the Harvey Garnett Phipps readily suggest themselves to your lordships' Tuckett of the indictment. The pre- minds. Even if obstacles had been intersumption from the evidence would be posed by distance of time and place, by the the other way, if it were a case for poverty of those seeking to enforce the law, presumption. But," said Lord Car- by the death of witnesses, or other casualgan's counsel, “ours is a yet
ties, it cannot be doubted that the accused tronger case. This is not a case for
must have had the benefit of the failure of
proof, however occasioned ; and here, where presumption ; positive evidence must
none of those causes can account for the debe given to prove the identity of the
ticiency, it seems too much to require that person mentioned in the indictment as
your lordships should volunteer the presumpbeing the party against whom the of
tion of a fact, which, if true, might have fence is alleged to have been com- been male clear and manifest to every man's mitted."
understanding by the shortest process.'” There can be no doubt that there was disappointment in the public The next of these trials is that of mind at the abortive issue of this Courvoisier, for the murder of Lord prosecution, which seemed to depend William Russell. The facts of this on legal technicalities. It was proved case are probably within the recollec. that Lord Cardigan had shot at some tion of most of our readers; but atone, and this constituted the crime. tention has been accidentally directed The reasons, absolutely unanswerable, to it from the circumstance, that the which render it necessary for the pur- barrister who defended Courvoisier poses of justice that the very facts of a was, in the course of the trial, made accase should be stated in the indict- quainted by the prisoner with his guilt. ment, and that the allegation, which That barrister was placed in circumthe prosecutor pledges himself to, stances exceedingly embarrassing; and should be proved, and not one which comments, the most unreasonable that may be equivalent to it, are not such can be imagined, have been made as to as the public mind easily appreciates, the course he adopted. It is said that and the result was regarded as the he spoke of "the secret guilt known effect of a preconcerted trick.
to heaven alone," and this at a time The finding was necessarily one of when he himself knew who the guilty acquittal, Lord Denman informing person was ; that he cross-examined the House that there was a failure of some of the witnesses on the suppo