conviction but for manslaughter, which ought to have modified the strong language with which Mr. Townsend opens his narrative of the following remarkable case:

"There is a singular case, of Sheppard, tried before Sir Henry Russell, the recorder of Bombay, which issued in a verdict of manslaughter, though, if there be any authority in law for a concerted duel being a crime, it is either a murder or no offence at all. It is as much a departure from the authority of the law to find manslaughter, as to find it no crime. This, however, was an aggravated case. A quarrel took place between two officers in garrison, who chose to go out, after a long delay, several weeks having been spent in the exchange of notes, in the dark, and to fight by the light of a lantern held by a black servant between them, without the inspection of a single European; no witnesses were present. The offence of the party who suffered was of a very vague description, only one person saying that he thinks he had heard Captain Phillips speak lightly of Sheppard on some occasion or other. On this provocation the challenge is given, the parties fight alone (for the black servant was not permitted to give evidence) in the dark, and Captain Phillips is killed on the spot. The boldness with which the judge spoke out (what all judges in their hearts must feel) is remarkable.

"Sir Henry says, after stating that the crime of killing in a duel is murder: At the same time, in compassion to human infirmity, courts of law and juries have been in the habit of making great allowances for the circumstances in which persons called upon to fight a duel may have been placed. When a fellow-creature is put to death from motives of deliberate malice, the law pronounces the crime to be murder. When the same act is committed under the immediate influence of violent passion, it is merely accounted manslaughter. Now, in the case before you, it will be for you to consider whether the present circumstances of society, as applied to a gentleman and a soldier, do not take away the particular character of malice from the crime. A man is placed in a situation where, if he does not go out to fight a duel, he has no prospect before him in life but that of contempt and ignominy. Surely the feelings which are inseparable from such a situation may be supposed to deprive a man of selfpossession and self-command, as well as a violent gust of passion. And I see no reason why the law should deny, nor do I believe that the law does deny, the same indulgence to those feelings, that it yields to a brutal impulse, which it is the chief object of all human and divine institutions to control. In declaring this opinion, I believe I go farther than most judges have done, but I have not formed it without mature delibera

tion, and I think it places the question of law in cases of duel, upon more stable and more tenable grounds, than the shifts and artifices which have been so generally resorted to.'

But by far the most eloquent, and in all its circumstances the best charge to be found in this class of cases, is that of Baron. Smith on the trial of Alcock. Alcock and Colclough were candidates for an Irish county. Alcock had gained the interest of a proprietor, some of whose tenants, forty-shilling freeholders, were about voting for Colclough. Alcock remonstrated with Colclough, who said he had not solicited the votes. vote for you," said Alcock. "How can I prevent them?" said Colclough. Alcock said he must have satisfaction. They fought, and Colclough was shot dead. The prosecution, it would ap pear, was vindictively conducted by the friends of the deceased-by the very persons who were on the ground witnessing and encouraging the violation of the law-and in the witnessing and encouraging a crime, themselves criminal.

"But they shall not

The same principle that

runs through the latter part of this charge, of the practice of society having abrogated or varied the admitted letter of the law, was strenuously urged by Jeffrey in his defence of Stuart, and it is impossible not to allow it great weight:

"If an officer at the head of his regiment,' said Baron Smith, charging the jury, 'be called a coward and a scoundrel, and instead of cutting the offender down, challenge and kill him in a duel, he is a murderer by law; and if you are bound to find the prisoner Alcock guilty, you will be equally obliged to return a verdict of conviction against a gallant officer, under the circumstances which I have described. Yet, on the other hand, the military punishment and intolerable disgrace which must inevitably follow from his submitting to the affront, it cannot be necessary for me to dwell upon. If an aged, an infirm, a beloved, and respectable parent be insulted and reviled, or even struck and beaten in the presence of a son, and this latter happen to kill the assailant in a duel, the transaction will be murder; and, if you cannot acquit the prisoner, you could not acquit the child. If a husband find his wife in the embraces of another, and kill him unarmed and unresisting, this is manslaughter of the lowest and most venial kind. But if, giving the adulterer further time for preparation, and a fairer chance for his life, he puts arms in his

hands, and meets and kills him in a duel, the offence, altering its character, becomes at once murder; and if you are bound to convict the prisoner here, you would be also bound to a conviction in the case which I have supposed. Not because in morals the criminality is equal; but because both offences are murder in the eye of the law. But let me ask of your consciences and your hearts as men, could you convict the officer, the busband, or the son?

You

"I will not repeat, lest I might seem to inculcate, the austere doctrine of the law. In once stating it, I conceive that I have sufficiently discharged my painful duty. Nay, even sitting where I do, I think myself warranted in doubting whether this doctrine is not a sort of anomaly in our code; existing in theory, almost abrogated in practice, by the acuteness of the judges, the humanity of jurors, the mercy of the Crown. This, gentlemen, is all I have to say. The evidence is before you. If you believe it, you have heard its legal results from the bench. have the law of the land bearing witness against the prisoner on the one hand, the law of opinion, on the other, endeavouring to excuse him; the one prescribing rigour, the other suggesting mercy. It is for you to pronounce which call you will obey! The trammels of my office forbid my adding more. But there is another, a far better voice than mine, to which, though I be silent, you may listen still. I mean that "still, small voice" of which you read in Scripture, and which addresses itself to the consciences of good and pious men in the soft and soothing accents of clemency and peace. Its dictates may be followed with a confidence the most explicit. It is the voice of Him who cannot err-who cannot lead his creatures into error -who, to justice without blemish, can unite mercy without bounds-who, all criminal as we are, can acquit us, and yet be just. To the influence of those secret and divine monitors, and (as far as human infirmity can follow) of this divine example, I surrender you, and commit the care of the prisoner at the bar. I wait with some anxiety and much impatience for your verdict. Judge, then, whether I am impatient for a capital conviction.'

"The jury, in one moment, acquitted the prisoner."

Mr. Townsend comments on this not very reasonably. "In a country where statesmen, members of parliament, lawyers, physicians, and country gentlemen,had measured their twelve paces, the stern dictates of the law ought rather have been urged." We think with juries, who tried this and similar cases, that the law of opinion is the law of the land, or is paramount to the law. By a change in that law of opinion,

and not in any other way, is it possible to prevent duelling. That change has arrived. But we are glad that in every part of the empire judges refused to make the effort of coercing juries to find verdicts against the common sense of the country. Had they done so, it seems to us probable that the custom of duelling would have survived some half century longer.

Some cases are mentioned of duels in Scotland where the survivor was acquitted; the judge telling the jury how it was impossible to disguise the truth, that the manners of the times, and the feelings of the people, were in direct opposition to the laws of the land, and then approving the verdicts of acquittal.

The Commissioners of Criminal Law, in their "Second Report" (1846), recommend the abolition of capital punishment in the case of duelling. With out reference to the distinctions between this offence and other cases of murder, they think it casts a stigma on the law to be unable to carry its sanctions into effect. If it says one thing and juries another, mischief, and nothing but mischief, is done, by leaving the law unaltered.

We

Let us not be supposed to vindicate the practice of duelling. We only quarrel with what has been proved by the experience of centuries to be an ineffective mode of getting rid of the evil. The trial of Mr. Stuart is, in all respects, an interesting one. In the high spirits which, perhaps, form an excuse for the wildest excesses of gaiety in a political writer-in some such exuberant spirits as animated Coleridge in his "Fire, Famine, and Slaughter"Sir Alexander Boswell wrote a number of songs and pasquinades against persons politically opposed to him, and amongst others, against Stuart. believe that the mere feeling of fun disguises from lively writers the pain they give, and that the persons lampooned or libelled can scarcely be said to have any personal existence to the mind of the writer who is so engaged. He exists as pure an abstraction as the Achilles or the Agamemnon of the Iliad. Sir Alexander Boswell was a man of great intellectual power, of very lively talents, and one whose verses, now that we suppose it is impossible they can give offence to any one, ought to be collected. Stuart was offended by the incessant attacks

"The Earl of Rosslyn, on reading these documents, saw at once that there was but one course to be followed. He sought and obtained an interview with the late Baronet, and made two propositions; in the first place, that if he would deny the calumnies were his, his simple assertion would be taken as conclusive against all evidence whatever. But he did not say that they were not his. I wish he could have said so; but he was a gentleman, and he knew he could not say so truly. Yet another proposal was made to him.

Let us take it, Sir Alexander, as a mere bad joke. Say but you are sorry for it; that it was a squib; and that you had no serious intention of impeaching the honour or courage of Mr. Stuart.' I am sure that was a proposition as mild as the greatest peacemaker could possibly have made; and it was a proposition to which the party might have acceded without the slightest imputation on his honour. Yet that satisfaction he refused. He said, 'I cannot submit to be catechised. I will make neither denial nor apology.""

It was scarce possible after this, in the feelings on the subject of duelling that prevailed some eight-and-twenty years ago, perhaps that still prevail, to avoid a meeting. Boswell fired in the air Stuart's pistol was discharged

with fatal effect. The details of the evidence produced on his trial are not important for us to adduce; it is fit, however, to state that they are of considerable interest, and are well given by Mr. Townsend. The speech of Lord Jeffrey in this case is above all praise. It rests the defence mainly on the ground taken by Dr. Johnson, and the circumstance that Johnson's conversations on the subject, so frequent as to prove that he was delivering a

fixed opinion, and not merely engage l in gladiatorial argument, are found recorded in his life by the father of Sir Alexander Boswell, made the reference to him appear more natural than it could in any other case. The difficulty of acquitting a man of murder, who deliberately has shed the blood of another, while the legal definition of murder remains what it is, is dealt with in much the same way as in the cases tried in England and in Ireland:

"I conceive the criminal law of this happy country to consist, not in the barbarous and implacable severity of its antiquated statutes, not in the severe and impracticable doctrines that may still retain their places in books of law, even of the greatest authority; not even, I say it with great submission, in the dicta that may fall from the lips of those high and stern magistrates, the judges of the land, who are bound to assert all the severity of the code which they are appointed to uphold, and in their places to countenance or sanction no relaxation of it, however hard aud inoperative in the correction of crimes it may be. But, I say, the criminal law of this happy country consists in the authorised and approved practice of its courts of criminal law as this is ultimately embodied in the popular, admired, and consistent verdicts of juries. I am far from saying that juries have any dispensing power over the law. I am far from saying, though that has been said, that they have a rightful power to disappoint the law, where its sanctions have been plainly incurred. But, I say, that where the verdicts of juries have met, for a course of time, with the general approbation of the community, and the sanction of the courts under whose authority they are pronounced-when they go on in an uniform series, and all point one way, they then make and constitute that real and practical law, on which all the subjects of the nistration of which the people, with the land are entitled to rely, and on the admigreatest security, may depend.

And, in truth, it is a proud and fortunate circumstance for this country, that such an institution as a jury should exist, with power occasionally to temper the severity of that law, which a court of another description would too inflexibly enforce, and thus silently to abrogate statutes, or maxims of common

law, which the course of the times, the pro

gress of manners, the disappearance of some crimes, and the rise of others, may have rendered inapplicable and unnecessary. If the law had become too severe for the age, juries should refuse to enforce it. In England this power of juries is not only recog nised as existing, and winked at by judges, but is subscribed to by them, and applauded

not only by the country at large, among whom these juries have never been known to have lost their credit, but even by the judges themselves, from whose dicta they occasionally dissent.'"

He then instances the cases of stealing to the amount of forty shillings. This offence was a capital crime; juries refused to convict, or, with the approbation of the judges, evaded subjecting the prisoner to this extreme penalty, by finding the value of the goods stolen to be of less value than forty shillings. In indictments for child-inurder, a Scotch act of parliament made concealment of pregnancy on the part of the mother proof of guilt-juries refused to convict, and judges did not disapprove; in one case, Jeffrey said he remembered the presiding judge rebuking the public prosecutor for bringing such a case to trial, and telling him plainly if he did proceed on that statute he (the judge) would take care there should be an acquittal."

In his instructions to the jury, the presiding judge on Mr. Stuart's trial dwelt on the provocations given, the terms of accommodation proposed and rejected, and the conduct and bearing of the prisoner throughout; and though he stated that "no false punctilio of a notion of honour could vindicate an act terminating fatally to a fellowcreature," he yet thought the jury had a right to consider the provocation, and the unsuccessful overtures for ac commodation. The verdict was an immediate one of acquittal. We find by a note to this "trial" that Mr. Stuart, who afterwards edited the Courier, and who published "Travels in America," died a few months ago while Mr. Townsend's book was passing through the press.

The next trial is one to which, at the time of its occurrence, unusual interest was attached. It is the trial of Lord Cardigan for felony, in shooting at Captain Tuckett. This was a case

before the House of Peers. The rank of the party accused the frequent mention of his name in the newspapers from disputes in his regiment the notoriety of the fact of the duelthe circumstance that this was the first criminal trial that had ever taken place for engaging in a duel which had not been attended with loss of life-and more than all, the unusual solemnity of a trial before the House of Peers,

attracted public attention in a degree perhaps unexampled. Something of injustice had been done, or seems to have been done, to the traverser. The grand jury at the Central Criminal Court, who found true bills against Lord Cardigan and his second, threw out the bills against Captain Tuckett and his second, though sustained by the same evidence. It is probable that the sympathies of the tribunal by whom Lord Cardigan was to be tried were with the accused, and it was the same contest between the course of conduct supposed to be imperatively required by the conventional usages of society, and that enjoined by the law, which was in principle involved in this as in all former judicial investigations of crime by duel. That the life of the accused was not involved in the resultfor the pleading did not state the fact of Captain Tuckett's being wounded, which would have varied the offence, and the indictment was not framed under Lord Ellenborough's Act, but under a recent statute of 1 Victoriaincreased the probability of a finding against the accused. On the whole, the position of Lord Cardigan was one of serious danger. Lord Denman presided as Lord High Steward, the Attorney-General (now Lord Campbell) stated the case for the prosecution, and the defence was conducted by Sir William Follett.

A duel was proved to have taken place between two gentlemen, one of whom was wounded. Immediately after the duel, the parties who fired, and their seconds, were arrested. One of the parties was the Earl of Cardigan-the other, on giving a card with his name and address, was allowed to be taken to his lodgings. The Attorney-General sought to give the card in evidence, and a long discussion took place as to his right to do so. For the House to have come to any decision on the admissibility of the evidence it would have been necessary to order strangers to withdraw; and to avoid this inconvenience the Attorney-General delayed pressing this piece of evidence.

The indictment in all its counts called Captain Tuckett "Harvey Garnett Phipps Tuckett." A policeman proved the fact of the duel, and was proving that Captain Tuckett called at the police-office and gave his name, when he was interrupted by Sir William Follett with the question, "Was

Lord Cardigan present?" and being obliged to answer that he was not, the examination of this witness closed. Another witness for the prosecution was asked the Christian names of Captain Tuckett, whose place of residence he proved, and answered "Harvey Tuckett." The army agent, through whom Tuckett received his pay, was called. He knew Harvey Garnett Phipps Tuckett, but did not know where he lived. Every effort to connect the Harvey Tuckett of the witnesses who proved the facts of the duel, with the Harvey Garnett Phipps Tuckett of the indictment, had failed, when the Attorney-General again produced the card. On the card's being shown to Sir W. Follett he said, "I do not object to its being read." The card was given in and read, "Captain Harvey Tuckett, 13, Hamilton-place, New-Road." The case for the prosecution closed-Follett's triumph was complete, and the failure of the case for the prosecution seems to have taken the Crown by surprise. It was impossible to say that the person at whom Lord Cardigan shot was the Harvey Garnett Phipps Tuckett of the indictment. The presumption from the evidence would be the other way, if it were a case for presumption." But," said Lord Cargan's counsel, "ours is a yet tronger case. This is not a case for presumption; positive evidence must be given to prove the identity of the person mentioned in the indictment as being the party against whom the of fence is alleged to have been committed."

There can be no doubt that there was disappointment in the public mind at the abortive issue of this prosecution, which seemed to depend on legal technicalities. It was proved that Lord Cardigan had shot at some one, and this constituted the crime. The reasons, absolutely unanswerable, which render it necessary for the purposes of justice that the very facts of a case should be stated in the indictment, and that the allegation, which the prosecutor pledges himself to, should be proved, and not one which may be equivalent to it, are not such as the public mind easily appreciates, and the result was regarded as the effect of a preconcerted trick.

The finding was necessarily one of acquittal, Lord Denman informing the House that there was a failure of

proof. Although an unusual course, Lord Denman's reasons for advising this course were published by special direction of the House. We regret that we have not space for more than

a sentence:

"It was urged, that the person using and owning the four names was not shown to be the same person who, under the name of Captain Harvey Tuckett, had been engaged in a duel fought on Wimbledon Common.

"No fact is easier of proof in its own nature, and numerous witnesses are always at hand to establish it with respect to any person conversant with society. In the present case the simplest means were accessible. If those who conduct the prosecution had obtained your lordships' order for the appearance at your bar of Captain Tuckett, and if the witnesses of the duel had deposed to his being the man who left the field after receiving Lord Cardigan's shot, Mr. Codd might have been asked whether that was the gentleman whom he knew by the four names set forth in the indictment. His answer in the affirmative would have been too conclusive on the point to admit of the present objection being taken.

"Several other methods of proof will readily suggest themselves to your lordships' minds. Even if obstacles had been interposed by distance of time and place, by the poverty of those seeking to enforce the law, by the death of witnesses, or other casualties, it cannot be doubted that the accused must have had the benefit of the failure of proof, however occasioned; and here, where none of those causes can account for the deficiency, it seems too much to require that your lordships should volunteer the presumption of a fact, which, if true, might have been made clear and manifest to every man's understanding by the shortest process."

The next of these trials is that of Courvoisier, for the murder of Lord William Russell. The facts of this case are probably within the recollec. tion of most of our readers; but attention has been accidentally directed to it from the circumstance, that the barrister who defended Courvoisier was, in the course of the trial, made acquainted by the prisoner with his guilt. That barrister was placed in circumstances exceedingly embarrassing; and comments, the most unreasonable that can be imagined, have been made as to the course he adopted. It is said that he spoke of "the secret guilt known to heaven alone," and this at a time when he himself knew who the guilty person was; that he cross-examined some of the witnesses on the suppo