The Chronicles of Crime or The New Newgate Calendar. v. 2/2 / being a series of memoirs and anecdotes of notorious characters who have outraged the laws of Great Britain from the earliest period to 1841

THE EARL OF CARDIGAN

TRIED AT THE BAR OF THE HOUSE OF LORDS, FOR AN ASSAULT WITH INTENT TO MURDER.

A police constable was directed to institute a prosecution, and bills of indictment were laid before the grand jury against Captain Tuckett, and Captain Wainewright, his second; and also against the Earl of Cardigan, and Captain Douglas, who had attended him in the capacity of his friend. In the cases of the two first-named individuals the bill was ignored, but a true bill was returned against the Earl of Cardigan and Captain Douglas.

The extent of jurisdiction of the judges at the Old Bailey prevented them from trying the Earl of Cardigan, whose alleged offence the noble earl was entitled to have inquired of by his peers, and the investigation of the case against the parties indicted was therefore postponed from session to session until the sitting of Parliament, the court declining to enter upon the case of Captain Douglas until that of the principal to the offence alleged against him had first been disposed of. Parliament assembled on the 16th of January 1841, and then, so soon as the forms of the House of Lords would admit, the bill of indictment was removed by certiorari, in order to be disposed of by their lordships. The customary preliminary forms having been complied with on the day above named, namely, Tuesday the 16th of February, the trial took place.

The public had been made acquainted with the fact that the trial would not take place in Westminster-hall, and that the Painted Chamber, in which the peers had met for parliamentary business since the destruction of the old house by fire, was under preparation for this solemn and imposing scene. The smallness of the apartment, and the general desire amongst the peeresses and the various members of the nobility and rank of the land to be present upon so important and interesting an occasion, rendered it necessary that very extensive alterations should be made to secure sufficient accommodation, and considerable ingenuity had been exercised in order to accomplish that object, every corner and nook from which a glimpse of the court can be snatched being provided with sittings. But the capacity of the building prevented the architect, with all his skill, from making the supply equal to the demand. The benches, galleries, and floor, were covered with crimson cloth, and the walls themselves with paper, in which that colour was predominant, and the effect was to make the gorgeous robes of the peers and the splendid dresses of the peeresses stand out in dazzling relief. When the court had opened, and the chamber was filled, the tout ensemble was magnificent.

At a quarter before eleven o’clock the lords’ speaker (Lord Denman), having robed in his private room, entered the house. A procession was formed in the usual manner, his lordship being preceded by the purse-bearer with the purse, the sergeant with the mace, the black rod carrying the lord high steward’s staff, and garter carrying his sceptre.

Garter and black rod having taken their places at the bar, the lord speaker proceeded to the woolsack, where, being seated, prayers were read by the Bishop of Lichfield.

The clerk-assistant of Parliament then proceeded to call over the peers, beginning with the junior baron.

This necessary ceremony being completed, the clerks of the crown in Chancery and in the Queen’s Bench jointly made three reverences, and the clerk of the crown in Chancery, on his knee, delivered the commission to the lord speaker, who gave it to the clerk of the crown in the Queen’s Bench to read; and both clerks retired with like reverences to the table.

The sergeant-at-arms then made proclamation, and the lord speaker informed the peers that her majesty’s commission was about to be read, and directed that all persons should rise and be uncovered while the commission was reading.

The commission appointing Lord Denman as lord high steward was then read, and garter and black rod having made their reverences, proceeded to the woolsack and took their places on the right of the lord high steward, and both holding the staff, presented it on their knees to his grace.

His grace rose, and having made reverence to the throne, took his seat in the chair of state provided for him on the uppermost step but one of the throne. Proclamation was then made for silence; when the queen’s writ of certiorari 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 Earl of Cardigan immediately entered the house, and advanced to the bar, accompanied by the yeoman usher. He made three reverences, one to his grace the lord high steward, and one to the peers on either side, who returned the salute. The ceremony of kneeling was dispensed with. The noble earl, who was dressed in plain clothes, was then conducted within the bar, where he remained standing while the lord high steward acquainted him with the nature of the charge against him.

The prisoner was arraigned in the usual form, for firing at Harvey Garnet Phipps Tuckett, on the 12th of September, with intent to kill and murder him. The second count charged him with firing at the said Harvey Garnet Phipps Tuckett with intent to maim and disable him; and the third count varied the charge—with intent to do him some grievous bodily harm.

The clerk then asked, “How say you, James Thomas Earl of Cardigan, are you guilty or not?”

The Earl of Cardigan, in a firm voice, replied, “Not guilty, my lords.”

The clerk—“How will you be tried, my lord?”

The Earl of Cardigan—“By my peers.”

The noble prisoner then took his seat on a stool within the bar, and his grace the lord high steward removed to the table, preceded by garter, black rod, and the purse-bearer, as before, and his grace being seated, black rod took his seat on a stool at a corner of the table, on his grace’s right hand, holding the staff, garter on a stool on black rod’s right, and the sergeant at the lower end of the table on the same side.

Mr. Waddington opened the pleadings, stating the nature of the offence as set out in the indictment, and added that the noble prisoner had, for his trial, put himself upon their lordships, his peers.

The attorney-general addressed their lordships as follows:—“I have the honour to attend your lordships on this occasion as attorney-general for her majesty, to lay before you the circumstances of the case upon which you will be called to pronounce judgment, without any object or wish on my part, except that I may humbly assist your lordships in coming to a right conclusion upon it, according to its merits. An indictment has been found against a peer of the realm by a grand jury of his country, charging him with a felony, the punishment of which is transportation or imprisonment. That indictment has been removed before your lordships at the request of the noble prisoner, and, I must say, most properly removed, for an inferior court had no jurisdiction to try him. The charge is, upon the face of it, of a most serious character, and it would not have been satisfactory if it had gone off without any inquiry. The policeman, however, who was bound over to prosecute, fulfilled his recognizances by appearing at the Central Criminal Court, and preferring the indictment. It is possible that in the course of this trial, questions of great magnitude on the construction of acts of Parliament or respecting the privileges of the peerage may arise, which it is of great importance to this house, to the crown, and to the community, should be deliberately discussed. According to all the precedents that can be found, whenever a peer has been tried in Parliament, the prosecution has been conducted by the law-officers of the crown. Fortunately, we have no living memory on this subject. It is now sixty-four years since any proceeding of this sort has taken place, and I am rejoiced to think that on the present occasion the charge against the noble prisoner at the bar does not imply any degree of moral turpitude, and that, if he should be found guilty, his conviction will reflect no discredit on the illustrious order to which he belongs. At the same time, it clearly appears to me that the noble lord at the bar has been guilty of infringing the statute law of the realm, which this and all other courts of justice are bound to respect and enforce. Your lordships are not sitting as a court of honour, or as a branch of the legislature; your lordships are sitting here as a court bound by the rules of law, and under a sanction as sacred as that of an oath. The indictment against the Earl of Cardigan is framed upon an act of Parliament which passed in the first year of the reign of her present majesty. It charges the noble defendant with having shot at Captain Harvey Tuckett, with the several intents set forth in the indictment. I think I shall best discharge my duty to your lordships by presenting to you a brief history of the law on this subject. By the common law of England, personal violence, when death did not ensue from it, amounted to a mere misdemeanour, and if the wounded party did not die within a year and a day, no felony was committed. The first act which created a felony where death did not ensue was the 5th of Henry IV. By that act certain personal injuries, without death, were made felonies without benefit of clergy. Then came the Coventry Act, the 22nd and 23rd of Charles II., whereby any person lying in wait for and wounding another with intent to maim or disfigure, was guilty of felony, without benefit of clergy. Under both these acts no offence was committed unless a wound was inflicted, and it was not until the 9th George I., commonly called the Black Act, that an attempt, where no wound was given, was made a felony. By that act it was enacted, that if any person should wilfully and maliciously shoot at any person in any dwelling-house or other place, he should be guilty of felony without benefit of clergy, although no wound were inflicted: but it was determined upon that statute—and in fairness to the noble prisoner it is my duty to remind your lordships of it—that unless the case was one in which, if death had ensued, it would have amounted to murder, no offence was committed under the statute. That was determined in the case of the King and Gastineaux, which is reported in the first volume of Leach’s ‘Crown Cases,’ page 417. In that case the law was thus laid down:—‘The offence charged in this indictment is described by the statute, in which it is framed, in very few and very clear words, which are—‘That if any person or persons shall wilfully and maliciously shoot at any person in any dwelling-house or other place, he shall be adjudged guilty of felony, without benefit of clergy.’ The word maliciously is made to constitute the very essence of this crime; no act of shooting, therefore, will amount, under this statute, to a capital offence, unless it be accompanied with such circumstances as, in construction of law, would have amounted to the crime of murder if death had ensued from such act. This proposition most clearly and unavoidably results from the legal interpretation of the word maliciously, as applied to this subject; for there is no species of homicide in which malice forms any ingredient but that of murder; and it follows, that neither an accidental shooting, nor a shooting in the transport of passion, excited by such a degree of provocation as will reduce homicide to the offence of manslaughter, is within the meaning of the statute; for from both of these cases the law excludes every idea of malice.’ The law continued on this footing until an act was passed in the 43rd of George III., which is commonly called Lord Ellenborough’s Act. This act did not repeal the Black Act, but greatly extended its operation, and, among other enactments, contains this:—‘That if any person or persons shall wilfully, maliciously, and unlawfully shoot at any of his majesty’s subjects, or shall wilfully, maliciously, and unlawfully present, point, or level any kind of loaded fire-arms at any of his majesty’s subjects, and attempt, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons, or shall wilfully, maliciously, or unlawfully stab or cut any of his majesty’s subjects, with intent in so doing, or by means thereof, to murder, or rob, or to maim, disfigure, or disable such his majesty’s subject or subjects, or with intent to do some other grievous bodily harm to such his majesty’s subject or subjects, he shall be guilty of felony, without benefit of clergy.’ This act, however, has the following express proviso:—‘Provided always, that in case it shall appear on the trial of any person or persons indicted for the wilfully, maliciously, and unlawfully shooting at any of his majesty’s subjects, or for wilfully, maliciously, and unlawfully presenting, pointing, or levelling any kind of loaded fire-arms at any of his majesty’s subjects, and attempting, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons, or for the wilfully, maliciously, and unlawfully stabbing or cutting any of his majesty’s subjects, with such intent as aforesaid, that such acts of stabbing or cutting were committed under such circumstances as that if death had ensued therefrom the same would not in law have amounted to the crime of murder; then and in every such case the person or persons so indicted shall be deemed and taken to be not guilty of the felonies whereof they shall be so indicted, but be thereof acquitted.’ Your lordships will observe that, by this act, it is made a capital offence to shoot at with intent to murder, or maim, or disfigure, or do grievous bodily harm, but the offence came within the statute only when, if death would have ensued, it would, under the circumstances, have amounted to the crime of murder. Next came the statute of the 9th of George IV. cap. 31, which, I believe, is generally called Lord Lansdowne’s Act, that noble lord having introduced it into Parliament when he was Secretary for the Home Department. This is an act for consolidating and amending the statutes relating to offences against the person. It repeals the Black Act, and Lord Ellenborough’s Act; but it contains provisions similar to those of the latter. The 11th section enacts:—“That if any person unlawfully and maliciously shall administer or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlawfully and maliciously attempt to drown, suffocate, or strangle any person, or shall unlawfully and maliciously 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 unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to murder such person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon.” By the 12th section it is enacted:—“That if any person unlawfully and maliciously 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 unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable such person, or do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of the party so offending, or of any of his accomplices, for any offence for which he or they may respectively be liable by law to be apprehended or detained, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall suffer death as a felon.” This act contains the same proviso as was inserted in Lord Ellenborough’s; but still it remained a capital offence to shoot at, with intent to murder, or maim, or disfigure, or do bodily harm, although no wound was inflicted. Things remained on this footing till the act was passed on which the present indictment is framed. That act, which received the royal assent on the 17th of July 1837, is the 1st of Victoria, cap. 85, and is entitled “An Act to amend the laws relating to offences against the Person.” The preamble recites that it is expedient to repeal so much of the act of the 9th George IV., and of the 10th of the same reign, 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, or who shall unlawfully and maliciously stab, cut, or wound any person, &c. And by the second and third sections it is enacted:—“That whosoever shall administer to or cause to be taken by any person any poison or other destructive thing, or shall stab, cut, or wound any person, or shall by any means whatsoever 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. And be it enacted, that whosoever shall attempt to administer to any person any poison or other destructive thing, or 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 convicted 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.” Therefore, to shoot at a person and inflict a wound dangerous to life, remains by this act a capital offence; but the act of shooting, when no wound is inflicted, is no longer a capital offence, and remains a felony punishable only with transportation or imprisonment. The fourth section enacts:—“That whosoever unlawfully and maliciously 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 stab, cut, 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, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted 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.” This act contains no such proviso as is found in Lord Ellenborough’s Act, and that of the 9th of George IV., a circumstance which it is material your lordships should bear in mind when you come to deliberate on your judgment with respect to the second and third counts of the indictment. I am happy to say that the indictment contains no count on the capital charge. A wound was inflicted; but the prosecutor has very properly restricted the charge to firing at with intent, without alleging that any wound dangerous to life was inflicted. The first count charges, that the Earl of Cardigan shot at Captain Tuckett with intent, in the language of the law, to commit the crime of murder. The second count charges his lordship with the same act with intent to maim, disfigure, or disable Captain Tuckett, and the third count charges him with the same act with intent to do Captain Tuckett some grievous bodily harm. It will be for your lordships to say whether, upon the facts which I shall lay before you, and which I am instructed to say can be clearly made out in evidence, each and every one of the counts must not be considered as fully established. The substance of the evidence in this case is, that on the 12th of September last the Earl of Cardigan fought a duel with pistols on Wimbledon Common with Captain Tuckett, and wounded him at the second exchange of shots. It will appear that about five o’clock on the afternoon of that day, two carriages, coming in opposite directions, were seen to arrive on Wimbledon Common, and a party of gentlemen alighted from each. It was evident to those who observed what was going on, that a duel was in contemplation. The parties went to a part of Wimbledon Common between the road that leads to Lord Spencer’s park and a windmill. The seconds made the usual preparations; the principals, the Earl of Cardigan and Captain Tuckett, were placed at a distance of about twelve yards; they exchanged shots without effect; they received from their seconds each another pistol; they again fired, and Captain Tuckett was wounded by the Earl of Cardigan. Mr. Dann, who occupied the mill, and his son, and Sir James Anderson, a surgeon, who was standing close by, went up immediately. The wound was examined: it bled freely but most fortunately—and I am sure that no one rejoices at the circumstance more than the noble prisoner at the bar—it proved to be not of a dangerous nature. Mr. Dann, the miller, who was a constable, took the whole party into custody. The wound was again formally examined, and Sir J. Anderson pressed that he might be set at liberty and allowed to take Captain Tuckett to his house in London, which was immediately acceded to upon Captain Tuckett promising to appear before the magistrates when he was recovered. The miller retained the Earl of Cardigan, and his second, Captain Douglas, as well as Captain Wainwright, the second of Captain Tuckett. The Earl of Cardigan had still a pistol in his hand when the miller approached him; and two cases of pistols were still on the ground, one of which bore the crest of the noble earl, and was claimed by him as his property. The parties in custody were conducted before the magistrates at Wandsworth, when the Earl of Cardigan made use of these words:—‘I have fought a duel; I have hit my man I believe, but not seriously.’ Then pointing to Captain Douglas, he said, ‘This gentleman is also a prisoner and my second.’ He was asked whether the person he had hit was Captain Reynolds, upon which he replied, ‘Do you think I would condescend to fight with one of my own officers?’ His lordship was compelled by the magistrates to enter into recognizances to appear when called upon, which he did from time to time, till at last the matter was carried to the Central Criminal Court. The witnesses I shall call before your lordships are, the miller, his wife, and son, and the policeman named Busaine, who was at the station-house, and will speak to the declarations made by the Earl of Cardigan. I can offer no evidence respecting the origin of the quarrel. Captain Douglas is to take his trial for his share in the transaction; he, as your lordships will observe, is jointly indicted with the Earl of Cardigan. A bill was also preferred against Captains Tuckett and Wainwright, but the grand jury have thrown it out. Those gentlemen, however, are still liable to be tried, and it would not be decorous to summon them before your lordships to give evidence which might afterwards be turned against themselves, probably, when they would be on trial for their lives. I shall call Sir J. Anderson, who has hitherto spoken fairly on the subject, and, I suppose, will now make no objection to state all that fell within his observation. Upon these facts it will be for your lordships to say whether all the counts of the indictment are not fully proved and supported. With respect to the first count, it is painful to use the language which it necessarily recites; but it will be for your lordships to say whether, in point of law, the noble prisoner at the bar did not shoot at Captain Tuckett with intent to commit the crime therein mentioned. I at once acquit the Earl of Cardigan of anything unfair in the conduct of this duel. Something has been said respecting the noble earl’s pistols having rifle barrels, whilst those of Captain Tuckett had not such barrels. However that may have been, I have the most perfect conviction that nothing but what was fair and honourable was intended, and that the Earl of Cardigan most probably imagined, when he carried his pistols to the field with him, that one of them would be directed against his own person. Nor do I suppose that there was any grudge—any personal animosity—any rancour or malignity on the part of the noble earl towards his antagonist. Whether the noble earl gave or received the invitation to go out, I believe his only object was to preserve his reputation, and maintain his station in society as an officer and a gentleman. His lordship is in the army—he is Lieutenant-Colonel of the 11th Hussars, and no doubt he on this occasion only complied with what he considered to be necessary to be done according to the usages of society. But if death had ensued under these circumstances it would have been a great calamity; and although moralists of high name have excused and even defended the practice of duelling, your lordships must consider what, in this respect, is the law of England. There can be no doubt that by the law of England parties who go out deliberately to fight a duel, if death ensues, are guilty of murder. It will be my duty to state to your lordships a few of the leading authorities on this point. I will mention the highest authorities known to the law of England—Hale, Hawkins, Foster, and Blackstone. Hale, in his ‘Pleas of the Crown,’ says, ‘If A and B suddenly fall out, and they presently agree to fight in a field, and run and fetch their weapons and go to the field and fight, and A kills B, this is not murder, but homicide, for it is but a continuance of the sudden falling out, and the blood was never cooled; but if there were deliberation, as that they went on the next day—nay, though it was the same day, if there was such a competent distance of time that in common presumption they had time of deliberation—then it is murder.’ In the 1st vol. of ‘Hawkins’ Pleas of the Crown,’ cap. 13, sec. 21, p. 96, the law on this subject is thus laid down:—‘It seems agreed, that whenever two persons in cold blood meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was struck first by the deceased, or that he had often declined to meet him, and was prevailed upon to do it by his importunity, or that it was his intent only to vindicate his reputation—or that he meant not to kill, but to disarm his adversary—for since he deliberately engaged in an act highly unlawful, in defiance of the laws, he must at his peril abide the consequence thereof.’ ‘And from hence it follows, that if two persons quarrel over night, and appoint to fight next day—or quarrel in the morning, and agree to fight in the afternoon, or such a considerable time after by which in common intendment it must be presumed that the blood was cooled, and then they meet and fight, and one kills the other, he is guilty of murder.’... ‘And whenever it appears from the whole circumstances, that who kills another on a sudden quarrel, was master of his temper at the time, he is guilty of murder, as if after the quarrel he falls into a discourse, and talks calmly thereon, or perhaps if he have so much consideration as to say that the place wherein the quarrel happens is not convenient for fighting, or that if he should fight at present he should have the disadvantage by reason of the height of his shoes.’ The last observation refers to Lord Morley’s case, where though a case of manslaughter, it was a circumstance strongly pressed to show that the offence was one of deeper dye. Sir M. Foster, in his discourse on homicide, says:—‘Upon this principle deliberate duelling, if death ensues, is, in the eye of the law, murder, because it is generally founded on a feeling of revenge. And if a person be drawn into a duel, not from motives so criminal, but merely for the protection of what he calls his honour, that is no excuse for those who, in seeking to destroy another, act in defiance of all laws human and divine. But if, on a sudden quarrel, parties presently fetch their weapons, and go into a field and fight, and one of them is killed, that is manslaughter, because it is presumed that their blood never cooled. Otherwise, if the parties appoint the next day to meet, or even the same day, at such an interval as that their passion may have subsided, or if from circumstances in the case, it may be reasonably presumed that their judgment had controlled the first transports, if death then ensue, it is murder. The same rule will hold if, after a quarrel, the parties fall into other conversation or discussion, and remain so engaged, so as to afford reasonable time for cooling,’ Blackstone, in his fourth volume, p. 199, thus writes, when describing and defining the crime of murder:—‘This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder: thinking it their duty, as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power, either divine or human, but in direct contradiction to the laws both of God and man: and, therefore, the law has justly fixed the crime and punishment of murder on them, and on their seconds also.’ Those are the highest authorities known to the law of England, and they are uniformly followed by the English judges. Such being the definition of murder constantly given from the bench on trials for life and death, ought not your lordship to suppose that the legislature has made use of the word ‘murder’ in the same sense, and that when we find in Lord Ellenborough’s Act, in that of the 9th of George IV., and in that of the 1st of Victoria, the expression ‘with intent to commit murder,’ it means with intent to do that which, if accomplished, would amount in law to the crime of murder. The legislature, and your lordships as part of it, must be taken to have well known what was the legal definition of murder, and to have used the expression, in a judicial act, in its legal sense. However painful the consideration may be, does it not necessarily follow that the first count of the indictment is completely proved? The circumstances clearly show that the Earl of Cardigan and Captain Tuckett met by appointment. The arrangements being completed, they fired twice; the Earl of Cardigan took deliberate aim, fired, and wounded his antagonist. He must be supposed to have intended that which he did. If, unfortunately, death had ensued, would not this have been a case of murder? The only supposition by which the case could be reduced to one of manslaughter would be, that the Earl of Cardigan and Captain Tuckett met casually on Wimbledon Common—that they suddenly quarrelled, and, whilst their blood was hot, fought; but your lordships will hardly strain the facts so far as to say this was a casual meeting, when you see that each party was accompanied by a second, and supplied with a brace of pistols, and that the whole affair was conducted according to the forms and solemnities observed when a deliberate duel is fought. With respect to the second count I know not what defence can possibly be suggested, because even if it had been a casual meeting, and if death had ensued under circumstances which would have amounted only to manslaughter, that would be no defence to the second and third counts. I presume to assert that on the authority of a case which came before the fifteen judges of England, and which was decided, two most learned judges doubting on the occasion, but not dissenting from the decision. The two judges who doubted were his grace the high steward, who presides over your lordships’ proceedings on this occasion, and Mr. Justice Littledale. It would not become me to say anything of the learning and ability of the noble high steward in his presence, but with respect to Mr. Justice Littledale, I will say that there never was a more learned or acute judge than he was, whose retirement from the bench the bar have lately witnessed with reluctance and regret. I therefore attach the greatest weight even to doubts proceeding from such a quarter; but the thirteen other judges entertained no doubt upon that occasion, and came to the conclusion that, upon the 4th section of the act upon which the present indictment was framed, it is not necessary for a conviction that if death ensued the offence should amount to murder. The case to which I refer is to be found in the second volume of Moody’s ‘Crown Cases,’ page 40. It was a case tried before Mr. Baron Parke, on the Norfolk spring circuit, 1838; and I will read what is material to your lordships: The case first recites the 9th of George IV., sec. 11 and 12, and the preamble, and enacting part of the 1st of Victoria, points out the circumstance that the latter act does not contain the same proviso as is found in those of Lords Ellenborough and Lansdowne, and then submits this question for the opinion of the judges: ‘Is it now a defence to an indictment for wounding with intent to maim, &c., that, if death had ensued, the offence would not have been murder, but manslaughter?’ Your lordships will observe that shooting at with intent to maim or disable, and stabbing with the same intent, are in the same category of subjects, and must be attended with all the same rules and incidents. This opinion will therefore have the same authority as if the question submitted by Barons Parke and Bolland had been whether, on an indictment for shooting at with intent to disable, it would be a defence that if death had ensued the offence would not have amounted to murder. The opinion of the judges was as follows:—‘At a meeting of the judges in Easter term 1838, they all thought it to be no defence to such an indictment, that if death had ensued, the offence would not have been murder, but manslaughter, except the Lord Chief Justice Lord Denman, and Mr. Justice Littledale.’ The Lord Chief Justice and Mr. Justice Littledale, it will be observed, did not dissent, they only doubted; but the other thirteen judges seem clearly to hold that the plea set forth does not now amount to any defence; and I apprehend that the judges probably reasoned in this manner—the intention of parliament being to make offences, before capital, punishable only by transportation, the quality of the offence is not precisely the same as before, and that if a person maims another, or disables him, or does him some grievous bodily harm, even though it were an unpremeditated act, arising out of a sudden scuffle, it should nevertheless be an offence under this act, which gives a discretionary power to the court before whom the offence is tried, either to transport for fifteen years, or to imprison for a single hour. The judges, doubtless, considering this discretionary power, and the omission of the proviso which was in the preceding acts—seeing that the capital punishment was abolished, came to the conclusion that the offence was committed, even though if death had ensued, it would not, under the circumstances, have amounted to the crime of murder. Looking at the authority of this case, I know not what defence can possibly be urged with respect to the second and third counts. I rejoice, my lords, to think that the noble prisoner will have an advantage upon this occasion which has never before been enjoyed by any peer who has been tried at your lordships bar—an advantage which neither Lord Lovat, Lord Ferrers, nor the Duchess of Kingston, could claim. He will have the advantage of the assistance of my most able, ingenious, zealous, and learned friend, Sir William Follett, who will address your lordships in his behalf on the facts and merits of the case. This privilege is secured to the noble prisoner under the admirable law your lordships passed a few years ago, by which, in all cases, the party has the advantage of addressing, through his counsel, the tribunal which is to determine on his guilt or innocence. Notwithstanding, however, all the learning, ability, and zeal of my honourable and learned friend, I know not how he will be able to persuade your lordships to acquit his noble client on any one count of this indictment. My learned friend will not ask your lordships—and if he did, it would be in vain—to forget the law by which you are bound. Captain Douglas stands on his trial before another tribunal, and his trial has been postponed by the judges on the express ground that the same case is first to be tried by the highest criminal court known in the empire. Your lordships are to lay down the law by which all inferior courts are to be bound. I beg leave, on this subject, to read the words made use of at this bar by one of my most distinguished predecessors, who afterwards for many years presided with great dignity on the woolsack—I mean Lord Thurlow. When Lord Thurlow was Attorney-general, in addressing this house, in the case of the Duchess of Kingston, he made use of this language:—‘I do desire to press this upon your lordships as an universal maxim; 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 may be his denomination, but extend it to all. And speaking at the bar of an English court of justice, I make sure of your lordships’ approbation when I comprise even your lordships sitting in Westminster Hall. It is a grievous example to other judges. If your lordships assume this, sitting in judgment, why not the King’s Bench? why not 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 was to new-model it—the genius of our constitution says, judges have no such authority, nor shall presume to exercise it.’ I conclude, my lords, with the respectful expression of my conviction, that your lordships’ judgment in this case, whatever it may be, will be according to truth and the justice of the case, and that you will preserve the high reputation in the exercise of judicial functions which has so long been enjoyed by your lordships and your ancestors.”

The evidence of the various persons who had witnessed the transaction of the duel, and which supported the statement made by the learned Attorney-general, was then produced; but, at the close of the case, it was objected by Sir William Follett, on behalf of the Earl of Cardigan, that there was no evidence to show that the person against whom the shot was discharged was Mr. Harvey Garnett Phipps Tuckett. The card of “Mr. Harvey Tuckett” had been put in; but this might be quite another person from the individual pointed to by the indictment.

The Attorney-general was heard on the other side; but, after a short deliberation, the lord high steward announced that the evidence which fixed the identity of the individual was insufficient; and the peers thereupon declared the noble defendant “Not guilty.”

At the Central Criminal Court, on Wednesday the 3rd of March, Captain Douglas was put upon his trial, before Mr. Justice Williams, upon the indictment which had been found against him; but the jury, in the absence of positive evidence to identify Mr. Tuckett, came to the same conclusion as that which had been arrived at by the House of Peers; and a verdict of acquittal was returned.

HARRISON FLATHER.

IMPRISONED FOR LARCENY.

To support this statement in evidence, Mr. Morris Davis and other witnesses were called. The simple Pole detailed the circumstances under which he had been so impudently bamboozled by the prisoner with much ingenuousness. He had set great store upon the supposed effusions of Miss Moore, which amounted to between twenty and thirty in number, and kept them tied up in a bundle in his parlour. On the Friday before the Christmas-day preceding the prosecution, however, he quitted his sitting-room, while the prisoner was there, for a short time, and, on his looking for the love-letters a few days afterwards, he found that they were gone. The letters were usually couched in the most affectionate terms, commencing “My dear, dear love,” and terminating, “Your ever affectionate betrothed wife, E. Moore;” but the greater part of them contained requests for the loan of money, the amount of the sum demanded varying from 2l. to 5l. He invariably complied with the demands made, and advanced in all no less than 85l. Flather always took away the letters; and the answers either came by his hands or through the post. He never had any suspicion that anything was wrong until he learned that Miss Moore was at Liverpool at the same time that he supposed she was writing to him from her residence at Carlisle.

On his cross-examination, Davis admitted that he was a person of inferior education, and that he was scarcely able to read or write his own or any other language. He had paid Flather a guinea for the instruction which he received from him, and a guinea for the love-letters; but the schoolmaster frequently took his meals at his house. Flather had also kept his books and had written business-letters; and since this prosecution an attorney had applied for the amount of an alleged claim he had upon him in this respect, which, however, he had not paid. In reference to the love affair the witness said, that he knew nothing of Miss Moore except that she had dealt at his shop, and that she had never personally favoured his advances. After the first two letters had been returned, he asked her whether she had sent them back, and she answered in the affirmative. He replied that he was satisfied; but subsequently he was induced to recommence the correspondence, upon receiving a note, apparently from her, stating that she had been compelled to discourage his addresses in obedience to the wishes of her friends, and that she was desirous of maintaining a communication with him. In subsequent letters she made appointments to meet him, which, however, were invariably postponed; and she even went so far as to speak of running away with him to Gretna-Green, for which purpose he sent her 5l. in obedience to her request; but this scheme was also abandoned.

Miss Moore, of Paternoster-row, Carlisle, was called to prove that she had never written letters to the prosecutor, and had never received any from him through the medium of the prisoner; and other witnesses spoke to the facts opened by the prosecuting counsel, as well as to the additional circumstance that green-edged paper, like that on which Miss Moore’s supposed letters had been written, had been found in the possession of the prisoner.

The jury found the prisoner “Guilty.” He was then tried upon a second indictment, charging him with a like offence in reference to some of the other sums which he had obtained of the prosecutor, and a similar verdict was returned.

Mr. Justice Maule immediately sentenced him to be confined in the House of Correction for sixteen months.

RICHARD MOORE.

TRANSPORTED FOR FORGERY.

The circumstances proved in reference to the particular case upon which he was first tried were these:—On the evening of the 31st of January, the prisoner, accompanied by a gentleman who was in the habit of visiting the billiard-rooms of a person named Cooke, at No. 358, Strand, entered those rooms, and after a short time, sat down to play loo with a party. He played throughout the evening with varied successes, paying his first losses with what appeared to be genuine country bank-notes; but when he rose to quit the room, he was in debt to Cooke, the keeper of the house, in the sum of 30l. which he had advanced to him. He gave his I.O.U. for the amount, stating his address to be “Wright’s Hotel,” Strand, and went away. In the course of the evening Cooke had given change for nine of the notes which had been paid by the prisoner; and in the morning he sent his wife into the city to procure cash for them at the various banking-houses at which they purported to be payable. She received the money for some of them; but at length, upon her presenting a note at Messrs. Glynn and Co.’s, she was detained. She immediately explained what she knew of the transaction; and her husband having been sent for, he confirmed her statement, and they were liberated. On that evening a note was taken to Mr. Cooke by the porter of the Hotel Fricour, Leicester-square, which was written by the prisoner, in which he expressed his regret at having disposed of notes which he had discovered were forged; but he assured Mr. Cooke of his desire at some future time to repay him what he had lost, saying, that he had received the notes on the day before from a school-fellow in payment of a bet upon a race which he had won some time before. Cooke, accompanied by Forrester, the city officer, who had been engaged to trace the prisoner, immediately proceeded to the hotel from which the letter was dated, and found the prisoner in the coffee-room. They directly took him into custody, and he made no effort to escape or to deny the guilt imputed to him.

Subsequent inquiries proved that the notes which the prisoner had put off were genuine impressions of the plates prepared for the various banking companies, by whom they purported to have been issued, but all that part of them which gave them the character of genuine instruments, including the signature of the director, was forged. The exact means by which these impressions had come into the possession of the prisoner was a mystery; but upon application to Messrs. Perkins and Co. of Fleet-street, who had prepared the plates, it was elicited that it was their custom to send out to the various country banking firms proof impressions of the plates which they had engraved as specimens of their work. The notes uttered by the prisoner were of this character, and they bore upon them evidence of the employment of great ingenuity in their preparation. The specimen notes were invariably issued, pasted upon card-board of considerable thickness; it appeared that the notes in question had been removed from the card-board, but being of insufficient substance, by reason of their being impressions on India paper, a piece of paper of the ordinary quality used in the genuine notes had been placed upon the backs of them so as to give them all the appearance of the notes in common circulation. The signatures appended to them did not appear to have been copied from any of the original notes; and in some instances, indeed, names had been employed entirely dissimilar to those of any of the directors of the bank.

Mr. C. Phillips, who was retained as counsel for the prisoner, addressed the jury on his behalf, urging that in truth he had no intention which was actually dishonest, and suggesting that the unfortunate man having been deprived of his property by gamblers, had sought to recover it back again by means, undoubtedly dishonest, but scarcely more blameable than those which had been employed by those by whom he had been fleeced. He was informed that it was by no means uncommon for flash notes to be employed by persons connected with gambling-houses, as a means of decoying their prey; and he asked whether, in truth, the prisoner had been guilty of anything more dishonest. The absence of all evil intention had been plainly shown in the immediate notice which he had given of the notes which he had put off being fictitious, and this at least was a point in the case which entitled him to some consideration.

The jury returned a verdict of “Guilty,” but recommended the prisoner to mercy upon the ground suggested by the learned counsel.

The prisoner was then indicted upon a second charge, of uttering two notes of the respective amounts of 5l. and 10l., with intent to defraud the Boston Bank.

The means employed by the prisoner in putting off these notes were very similar to those which he had used in the former case. The offence was alleged to have been committed on the 28th of January; and it appeared that on that night the prisoner went to a notorious gambling-house situated at No. 7, Leicester-square, kept by a person named Thompson, and demanded to know whether there was any play, and what bank there was. He was informed that the bank contained 130l., and Chappell, the attendant in the rooms, offered to play with him, in default of there being any one else there. They played, and in a short time Chappell won 70l., which the prisoner paid in what appeared to be country bank-notes, of various denominations. The prisoner declared that he had no more money left then; but asked whether, if he went for some more, the rooms would be open when he returned. He was answered in the affirmative, and in about fifteen minutes he went back. At this time Thompson, the keeper of the rooms was there, and the prisoner having played again, by about four o’clock in the morning he had lost 75l. more, which he also paid in notes of the same description as those which he had before put off. He said he would fetch more money, if the rooms would be open; but Thompson expressed some unwillingness to allow any more play, as the usual time for closing the house had passed. The prisoner, however, went away and returned, but he found the door closed. He appeared angry and excited, and insisted upon having his revenge, and Chappell at length let him in. By nine o’clock in the morning he had lost 380l. in addition to the sums which he had previously paid; and he handed over a Manchester bank-post bill for 300l., and another for 80l., and then he went away. In the course of the day Thompson and Chappell went into the city to procure change of the country notes, and they obtained cash for some of them, which were not payable in London, at a bullion-dealer’s in Cheapside, upon the deduction of two and a half per cent.; but upon their presenting some others at the banking-houses at which they were payable, they were taken into custody. They explained their characters and the manner in which they had obtained the notes, and were set at liberty. When the prisoner was taken into custody, a letter was found on his person addressed to Thompson, which, it appeared, he was about to despatch to that individual, in which he declared that he had just discovered that he had been imposed upon, and had paid him with forged notes, but offered to give him bills of exchange for the amount which he owed him, at various dates.

The defence in this case was the same as that which had been before put forward, and the inquiry was attended with a similar result,—the conviction of the prisoner.

Mr. Justice Coltman, who was the presiding judge, in passing sentence upon the prisoner, remarked that his offence was materially aggravated by the station in society which he had held, and the education which he had received. In a commercial country, where so much depended upon the proper maintenance of the public securities, forgery could not be looked at as a slight offence. In this case the safety of the commercial transactions of the country might have been peculiarly affected, and a severe example was called for. His lordship then sentenced the prisoner to be transported for fifteen years.

PATRICK MAXWELL STEWART WALLACE; AND MICHAEL SHAW STEWART WALLACE.

TRANSPORTED FOR INCITING A PERSON TO CAST AWAY AND DESTROY A MERCHANT SHIP.

The proceedings commenced on Wednesday the 3d of March, when Mr. Jervis, as counsel for the prisoners, took an objection to the proceedings. Edmund Loose, who was charged as the principal felon, did not appear to plead, and he contended, that it was incompetent for the court to try the prisoners upon the indictment, alleging them to be accessories only in the absence of Loose. He admitted that they might be tried for a substantive felony, but that was not the nature of the offence alleged.

The Attorney-general contended that, by the Act 7th Geo. IV. chap. 64, sect. 9, the accessories could be tried in the absence of the principal felon.

After some further discussion, the court ruled that the prisoners could be tried for a substantive felony, according to the statute, and that they might proceed upon the present indictment; but he left the question open, so that the prisoners might have the advantage of a more full consideration of the point.

The Attorney-general then elected to proceed separately with the trials of the two prisoners, and the case of Patrick Maxwell Stewart Wallace was determined to be taken first. The evidence produced in the two cases, however, was exactly similar, and the statement of the facts proved in one of them only will be sufficient to put our readers in possession of all that was material to the inquiries.

The evidence was divided into two classes, the first of which referred to the conduct of the two prisoners in procuring excessive policies of insurance to be effected upon the ship and cargo; while the second related to the demeanour of Loose, the captain of the Dryad, on her voyage, from which it was sought to prove that he had wilfully cast away the vessel.

With reference to the first part of the case, it was shown that the Dryad was a brig, of which one-fourth share belonged to Messrs. Howden and Ainslie, ship-brokers, while the remaining three-fourths were the property of the prisoner Michael Wallace. The latter had purchased his share of a Mr. Gillespie in the year 1838, for 1600l.; and the vessel after that was docked and rendered a first-class ship, an outlay of 600l. having been made upon her. In July 1839, the Dryad was chartered to Messrs. Zulueta and Co., merchants of Liverpool, for a voyage from that port to Santa Cruz, for 300l.: Michael Wallace acted as ship’s husband, and he directed Messrs. Howden and Ainslie to effect policies of insurance upon the vessel in 2200l., and upon the freight in 300l. These policies were accordingly effected in the office of the Marine Insurance Company. In the same month, however, other policies were effected in respect of the same ship by directions of the two Wallaces. In the Alliance Insurance Company, a policy for 715l. was effected on goods; in the General Maritime Insurance Company, a policy for 1265l. was likewise effected on goods; in the Neptune Insurance Company, a policy of 700l. was effected on the ship and outfit, and a policy of 687l. on goods; in the Mutual Marine Insurance Company, a policy was effected on goods; and another policy for 650l. was also effected by Messrs. Bahr and Bearing, of Liverpool. Independently of these policies, an insurance to the amount of 3000l. was also effected by Messrs. Zulueta and Co. at Lloyd’s, in respect of the cargo which they sent out by the vessel. The total amount, therefore, insured upon the Dryad and her cargo was 10,117l.; of which, deducting the value of Messrs. Zulueta’s policy, and of that effected by Messrs. Howden and Ainslie, 6617l. stood in the names of the prisoners—a sum far exceeding the real worth of their interest in the vessel and her cargo. The Dryad having arrived at Liverpool, Messrs. Zulueta proceeded to load her with such goods as they wished her to convey to Santa Cruz. About three hundred tons were put on board, and on the 7th of September the vessel sailed from port. When she had gone, the prisoner Michael Wallace informed Stott, an agent whom he had employed, that he had put some goods of his own on board, although it would have been contrary to his agreement with Messrs. Zulueta if he had done so. In January 1840, a claim was sent in to the various insurance offices for the amount of the policies effected as for a total loss of the Dryad. Some conversations took place between Patrick Wallace and Stott, in which the former made use of expressions which seemed to imply that Loose, the captain, had purposely lost the ship, but the greater part of the insurances were paid to the two brothers, and placed to their accounts at the banking-houses where they usually deposited their money. The return of some of the seamen of the Dryad to London, subsequently enabled the parties to the policies to obtain evidence confirmatory of suspicions which they had entertained with regard to the loss of the Dryad; and in the month of November 1840, Patrick Wallace was taken into custody. His brother, Michael, at that time was living in Tredegar-square, Commercial-road; but upon inquiries being made for him, he was found to have absconded, and his house was discovered furnished throughout, but abandoned by its occupants. On the 16th of December, however, Michael was also secured, having been found living in a small row of houses in the outskirts of Lancaster, whither, according to his own account, he had gone that he might not be called upon to give testimony against his brother.

The evidence for which it was sought to prove that the Dryad had been wilfully cast away, a fact which, it may be observed, was necessary to be shown as an ingredient of the offence charged against the prisoners, was as follows:—

Ronald Maxwell said—I sailed as first-mate in the Dryad on a voyage from Liverpool to Santa Cruz. Captain Loose engaged me in Liverpool on the 4th of September, 1839, to go from Liverpool to Santa Cruz, from Santa Cruz to St. Jago, and thence to Swansea. I have commanded a ship in the South American trade, and I have crossed the Atlantic frequently. I have been to the West Indies, and I know the navigation of those seas. On the 4th of September we took in a few cases of hardware and a few kegs of paint. They came from Zulueta’s, and I signed bills for them. From the time I entered the ship to the time we sailed, we took no goods on board except Zulueta’s. I locked the ship up at night, and saw her again in the morning. One-third of the hold remained unfilled. After I went on the 4th of September there was no earthenware taken on board, nor were there any cases of flannels, cloth, or prints. There were no barrels of butter, beef, or pork taken on board, except for the ship’s use. There were on board two tierces of beef and four barrels of pork. That was scarcely a sufficient quantity for the outward voyage. When a vessel sails for a place such as Santa Cruz, it is usual to take provisions for the homeward as well as the outward voyage. We went out of the dock on the 6th, and sailed on the 7th of September. We had ten hands on board, including the boy and the captain. We went through the North Channel. It is not unusual, according to the wind, to go by the North Channel. Captain Loose ordered me to get tackles rove and coiled in the long-boat, that she might be ready if she were wanted. We had no log-line when we sailed. I endeavoured to make one of spun-yarn, but I found that it was too heavy. We had no proper log-line while I remained on board. The log-board was choked when I endeavoured to sound, a short time after we got to sea. I tried to clear it out, but I could not do it. I told Captain Loose of it, and he said nothing particular. The pump was never made to suck. There was a chronometer on board, I think, but I never saw it. I frequently asked to use it, but Captain Loose would not allow me to see it. We pursued our course to the West Indian seas. There is generally a course laid down on the chart as a guide. About longitude 59 deg. W., Loose deviated from the proper track, and steered to the northward. We first made land at Virgin Guarda. I told the captain that I had seen the land, and he came on deck, where he remained several minutes. A few minutes afterwards I observed breakers a-head and low land. The breakers denoted a reef, and the low land was Anagada. We were about five miles from it. I observed it about six o’clock in the morning. I told the captain that I observed breakers a-head, and he jumped out of bed, and came on deck. Benjamin Shooltz was at the helm, and I told him to put the helm down, and put the ship round to keep her off the breakers. The captain then ran to the wheel and put the helm up, and the ship went direct on towards the breakers. Loose took the wheel himself, and remained at it a short time. Two of the crew came into the waist and complained of the captain, and they said that they would take the helm themselves and put the ship round, for they were not going to be lost. Upon this the captain left the wheel and Shooltz took it. He put the helm down again and the ship came round. When the helm was put down, the ship just cleared the breakers. In a few minutes she would have been on shore. When the ship came round, the captain said he did not think she was so near. Before the ship came round, the captain told me to mind my own d—d business, and take the studding-sails down. He also said that he would have me tried for mutiny for taking charge of the ship. This happened on the 17th of October. On the 19th we were on the Silver Keys, to the north of St. Domingo. He ought, I consider, to have gone by the south side of St. Domingo, between Antigua and Guadaloupe, to get to Santa Cruz. The ship ought to have been nearer the shore to avoid the Silver Keys. They are laid down on all the charts I have seen. About half-past six or seven o’clock in the morning, I saw a rock on the larboard bow, about three or four fathoms off. I told this to the captain, and he came on deck. I pointed the rock out to him. The captain said he could not see it. He had his telescope in his hand. The water a-head was discoloured. This indicates a shoal in these seas. One of the crew from the fore-yard called out, “Rocks under the fore-foot!” and I and the captain ran forward and looked over the bow. I saw the rocks, and Captain Loose said, “We are lost! we are all lost!” Immediately afterwards the ship struck, and remained fast for fifteen or twenty minutes. Loose ordered the jolly-boat to be hove overboard, and we put tackles over the long-boat to save ourselves. After about twenty minutes she got off. She afterwards struck another rock, and remained upon it a few minutes, but then dragged past it. The captain was putting a “life-preserver” on during this time. By the second rock the rudder was unshipped. We now trimmed the sails, to keep the ship before the wind. I wanted to make a temporary rudder, and I asked the captain to allow me to take some spars to do so, but he refused, and said we were in a pretty state—a ship at sea without a rudder—we had better have been all asleep a few days before, and have allowed the ship to run ashore at Anagada. The carpenter at length made a temporary rudder, and on the 20th we got to St. Domingo. Until the 22nd we proceeded along the coast. We ought, in order to avoid the breakers, to have kept further off. We were frequently near them, and the crew had all their clothes packed up ready if the ship should strike. On the 22nd we were near a reef off Cape Hayti, and the jury-rudder unshipped. The captain asked me what was best to be done; I said there was no danger if we were to put in to the harbour. He asked Shooltz and another what they thought, and they said that the harbour was before them, and they thought they could get in. Loose said he would not do so, for he had no pilot on board, and if anything happened to the vessel he should lose the insurance. I then said that we might put out to sea and replace the jury-rudder, and stand in and get a pilot the following morning. The captain went to bed at eight o’clock. I saw a sail about nine on the larboard quarter. I mentioned this to the captain, and he came on deck. I said she was a large ship, probably a man-of-war, and she could give us assistance if we ran down to her. We could have easily gone down before the wind. The captain would not allow us to go down, and he went to bed again. At daybreak we were to the south-east of the entrance of the port. We saw a ship to the north of the port. We were steering towards the reef, and we could see the breakers a-head. They were probably two miles off. Loose was on deck about seven o’clock in the morning. The Dryad was then steering towards the reef, in the direction which he ordered. The ship we saw to the northward fired a gun, and we found it was the Bencoolen. This was to warn us that we were running into danger. The Bencoolen had a union jack hoisted for a pilot, but Loose would not allow me to hoist one, saying if the pilots were too lazy to come off without a signal, they might stay ashore. The Dryad kept the same course until a pilot came on board. When I told Loose that the ship to the northward had fired a gun and hoisted a signal, he said that was nothing to him. The pilot came on board about eleven o’clock in the forenoon. The captain called him aft and showed him the jury-rudder, and asked him if he would take charge of the vessel. He said he would if the crew would work the ship in. He then took us into port. This was on Wednesday the 23rd of October. I left the Dryad on the 2nd of November. I assigned a reason to Loose for leaving the vessel. I was paid my wages (excepting 2l.) by Captain Loose, and I went on board the Bencoolen. [The witness pointed out on the chart the course taken by the Dryad, and showed the track that he considered she ought to have gone]. There was nothing in the state of the wind or weather to induce the captain to keep the ship so near the shore at St. Domingo.

Benjamin Shooltz examined: In 1839, I shipped on board the Dryad at Liverpool for Santa Cruz. I have recently come from the coast of Africa. I came to England seventeen days ago. Captain Loose engaged me. We had very little provisions on board, and we were poorly furnished with spare spars, &c. The captain frequently told me to keep the long-boat always in good order and ready for sea at once. We hove in sight of Anagada on a Thursday. I saw the breakers and called Maxwell the mate. We were about four or five miles from them. I received orders from the mate to put the ship round, and he then went to the captain. When I brought the ship round, she was going from the breakers. When the captain came on deck, he cursed me, and asked me who gave me orders to put the ship about. He took the helm and brought the ship round towards the reef again. I said to the captain, “I took the orders myself, and I did not wish to put the ship on a reef in broad daylight.” When the captain put her up again, the crew all came aft to him, and asked him what he intended to do. He did not keep the helm long, and I went to it when he went below, and put it down, and the ship went away and cleared the rocks. If she had gone on two minutes longer, she would have been on the rocks. Two days afterwards we were on the Silver Keys. We saw breakers a-head, and a lump of rock a little on the larboard side. I had the helm at this time. When I saw the Silver Keys, I hailed the mate, and he went down and informed the captain. When the captain came up, he said he did not see the rock. He had his glass then. I saw the rock with my naked eye. A man on the fore-yard, about five minutes afterwards, shouted out that there was about four feet water under the keel, and he saw rocks. The captain was on deck, but he did nothing. Shortly afterwards the vessel struck. The captain was very frightened at the time, and cried out “What shall we do, lads?—we are lost!” The long-boat was lying on the gripes off the ship, and the jolly-boat lay upon her. This is the usual way they are stowed away. When the ship struck, the rudder unshipped. This was about seven o’clock in the morning. The captain went to the helm shortly after the Dryad struck. The day before we made St. Domingo, the strap came off the jury rudder. At that time the captain’s life-preserver was on deck. The crew told him if he put that on, they would cut it all to pieces. We were then five miles from Cape Hayti. There was no reason for keeping so close to the shore as we did. I remember the night before the gun was fired; that night we kept out to sea. We were about five miles from the breakers when the gun was fired, and we were then steering direct upon them. The ship’s course was not altered when the gun was fired. The previous night the captain asked me and Davis, the second mate, what we should do, as we had got no rudder. We said that the best way would be to keep out to sea, and stand in for Hayti in the morning. We had not signalled for a pilot on board the Dryad. When the pilot came on board, he easily put the ship round and took us into the harbour, where we remained nine or twelve days. Many complaints were then made by the crew to the captain. We made an effort to be permitted to leave the ship at St. Domingo, but we were not allowed by the captain. The mate left the Dryad on the 2d of November. On the 5th we sailed from Hayti, and on the 10th the Dryad struck on the reef at Cape Cruz. About ten minutes before, we struck on a small lump of rock. We saw the reef all the day before, but the ship’s course was not altered to avoid it. I was acting under the orders of the captain when the ship struck. He was on deck all the night. She struck about half-past two o’clock in the morning. The captain never was on deck all night before. A man named Simpson was at the helm, and the captain told him to run away, or he would get hurt. The crew came on deck and spoke to the captain. The ship did not make a drop of water that night. I sounded one of the pumps frequently. No orders were given to the crew to get the ship off the reef, and he went below. In my judgment, the ship might have been got off, as the vessel was making no water. The captain left all the sails up. The crew were willing to work if they had been directed. If an anchor had been put out and her sails dowsed, she might have got off. A canoe came off to us. There were Spaniards in it, and the captain asked if there was a town near, and he was told there was one about thirty miles over the mountains. The Spaniards also said there was a consul ashore. The captain went ashore in the boat. He came back and said he had been to the Spaniard’s house. The crew, with the exception of Simpson and myself, went ashore. The ship made no water at this time. When the captain was ashore, we made sail with the other boat and went round the ship. At her stern we found a cigar-box and a bolt attached to it. The water was clear, and we took it up. We found several letters and some leaves of the log-book in it. Loose came back from the shore that night, and the next day he had a conversation with me and the crew. He took the long-boat with him and we all went to Jamaica, where the protest was noted. We kept the letters, and at one time produced them to the captain, and he snatched them away from Simpson, and gave him four pound-notes for them. This was two days after we got to Jamaica. After we went to Jamaica, none of us went back to the vessel. Before I left the ship I found a hole under her stern. No rock could make such a hole. It was big enough to admit my shoulders. The previous day she made no water, and I told the captain so. It was on the evening of the next day I discovered the hole. The weather was not at all boisterous then. The position in which the ship was could not account for the hole. I sounded her after finding the hole, and found five feet of water in the hold. The next day we left for Jamaica. The vessel could then have been got off. I saw the hole from the inside. It was in the state-room, which was locked. The captain saw it plainly, being in the cabin where it was. From the time we struck upon the Silver Keys the crew kept their clothes in bags in readiness to leave the vessel, expecting she would get upon a reef. It is my opinion that the ship was wilfully cast away by the captain.