"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 airStuart'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 engaged 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 and 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 verdiets 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

If

law, which the course of the times, the progress of manners, the disappearance of some crimes, and the rise of others, may have rendered inapplicable and unnecessary. the law ind 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 steal

ing 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-murder, 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 accommodation. 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.

66

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 regimentthe 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 unexample. 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 Tucket, 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.

66.6 '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 recollection 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

sition of their guilt, at a time that he must have known their innocence. We believe that every one of these statements is, in point of fact, inaccurate; but, were every one of them literally true, we think he did no more than his professional duty. As to the statement, that the guilt was known to Heaven alone, it is unlikely that such a phrase was used; but if it were, it does not seem to us in reality to express more with reference to the case than is implied in the fact, that the prisoner is there an unconvicted man-that we have no right to presume his guilt. Some person must have committed the crime. The statement that Heaven alone knows who the guilty person is, cannot be intended to mean that the undiscovered criminal does not know his own guilt; and we cannot think that, whether such language was used or not, there is any violation of truth or candour in its use, when limited and restricted in its meaning by the known relations of client and counsel. As to suggesting, in his cross-examination of witnesses, that they, or any others, were guilty, and thus persuading a jury to acquit his client, we think nothing but the improbability of such a course succeeding, should necessarily deter counsel from venturing on it. We agree with Lord Brougham, in the fullest meaning that can be given to his words, that an advocate should know, in the discharge of his office, but one person in the world-his client, and none other. To save that client by all expedient means-to protect that client at all hazard, and all cost to all others, and among others, to himself— is the highest and most unquestioned of his duties." It is mere affectation to say that, in ninety-nine out of every hundred cases in which counsel holds a brief for a prisoner, he does not know that prisoner to be guilty. Scarcely a man is put on his trial who is not guilty; and we think counsel's duty is in no degree affected by the fact of whether there has been a formal communication by the client of his guilt. On the contrary, we think the prisoner should not be deprived of the advan

tage of being able to consult with his counsel, and that for this purpose he should be free to tell him the fact of his guilt, without being, by such communication, deprived of his advocacy. As to the kind of pledges and protestations which counsel may give of their clients' innocence, we think this a mere question of taste, and that they imply nothing more of either truth or falsehood than the plea of "not guilty," which does no more than defy you to prove guilt. This entire controversy about Courvoisier's counsel seemed to us, from first to last, exceedingly foolish. No other right was claimed or exercised than the ordinary one of counsel; and had the barrister who held Courvoisier's brief thrown it down when he learned his client's guilt, such an act would, in our opinion, have been altogether inexcusable. The prisoner's counsel has the right—nay, we think it is his duty-to suggest every possible interpretation of the facts proved, consistent with the presumed innocence of his client; and in cross-examining, however severely, or however pointedly, a Crown witness, whatever suspicion such examination may throw on the witness, it seems to us plain that, in reality, no more is done than if counsel said in words, "It is just as reasonable to try and fix guilt on you as on the prisoner at the bar; as plausible a case might be made against you." To this, and to nothing more, does the assumed right amount; and this right does not seem to us in the slightest degree varied by the fact of counsel, from whatever reason, disbelieving his client's innocence. Courvoisier's counsel is not interested in pressing this to the extent that in principle it may be pressed, as it was on the first day of the trial he cross-examined one of the witnesses for the Crown in such a way as to suggest her participation in the crime; and it was only on the second that Courvoisier communicated to him the fact of his having committed the murder. We think that if, in his conduct with respect to his trial, counsel made any mistake, it was that of consulting with

some of his professional friends how he ought to act in the circumstances that arose, as it is plain that cases may be easily imagined in which his communication to any one whatever of this confidential disclosure, might possibly affect his client's life. In this, and in this alone, we think he was wrong. There were in this trial some very remarkable circumstances. Though sus picion from the first was directed to Courvoisier, there was the absence of probable motive to the crime. His

trunk was searched by the police, and nothing to confirm suspicion was found there. A large reward was offered: and then, on a second search in the same trunk, gloves stained with blood were found; and again, some eight or ten days after, are found at the top of the trunk two blood-stained handkerchiefs, marked with the prisoner's initials. The handkerchiefs, which were not found on the two previous searches, it was surely fair in counsel to suggest had been placed in the trunk afterwards. Courvoisier was in gaol in the interval, and had no opportunity of placing them there. What is the fairness of reproaching counsel with suggesting that they had been afterwards placed there by others, and for the purpose of obtaining, by Courvoisier's conviction, a share in the large reward that was offered? Such a solution of the fact may not have been a true one. That is not the question. Was it not a possible one?-was it not a supposition that it was fair for the jury to examine? So much did one of the policemen shuffle, when examined with respect to this search of the trunk, that the judge who tried the case (Tindal) bid the jury to place no reliance on his testimony.

A strange incident occurred during the course of the trial, calculated to remove such doubt from the mind of the jury, as the absence of adequate motive might create. Courvoisier, a few weeks before the murder, left a parcel in the care of a Frenchwoman, who kept a sort of hotel, where he had been a servant some years before. She laid the parcel aside, and forgot all about it, till, on the second day of the trial, looking accidentally at a French newspaper, she saw something about Courvoisier, which led her to

examine the parcel, which was found to consist of plate stolen from Lord William Russell's. If there was a as a doubt, this unexpected circumstance, coming to light at such a moment, disposed of it. The sort of management, as it could not but appear to be, about the trunk, would have made it appear not improbable that there was something of trick in the getting up of other parts of the evidence, intended to show Courvoisier to be a thief. This came in to fix all that was doubtful. To conceal his thefts, and enjoy in security the stolen property, was the probable motive of the murderer. We regret that Mr. Townsend has been enabled only to give us fragments of the speech in defence of Courvoisier, which appears to have been a very able one.

In considering the question of the extent of counsel's privilege, it should not be forgotten that cases exist of moral guilt, where the prisoner is not legally guilty. It is not enough that a man is criminal, but a precise crime must be alleged against him; and with whatever skill an indictment may be framed, the crime charged may be different from that proved. The confessions of a prisoner will be to some particular fact, which it is not impossible may not amount to the crime charged, or may even exceed it; and, in either case, he may be legally entitled to an acquittal. Is that legal right to be annulled because he has said to his counsel "I am guilty-do the best you can for me?" With the exception that we have stated, we throughout approve of the course adopted by Courvoisier's counsel.

The remarkable case of "The King against M'Naughten, for the murder of Mr. Drummond," is the next in the volume. On this we are not now disposed to dwell, as it was a subject of discussion with us at the time of the occurrence; and there does not seem to be at the moment any object in bringing before the public mind the question of the responsibility of the insane in criminal cases. It does not seem possible to fix the law with more precision, than in the language of the judges of England, to questions submitted by the Lord Chancellor for their decision. Where insanity is set up as