The Earl of Shaftesburymoved that the trial of the Earl of Cardigan be forthwith printed and published.
§ The Earl of Eldonsaid, there were some matters connected with the subject of the noble Earl's motion, that he could not allow to pass without notice. On the occasion of the trial of the noble Earl it appeared that an order was issued calling on those who had business at the House to attend in their places. Now, by an order of the House, which was on their Lordships' table, it appeared that Masters in Chancery were considered in the light of messengers to their Lordships, and were therefore included in the order to attend on that occasion. One of the Masters had, in consequence, come down to the House, and applied for admission, but he was refused, on the ground that he had no order from the Lord Chamberlain. One would suppose, that standing in such a situation, he did not require such an order. There was another point, which he conceived demanded the attention of the House. It would be perceived, by the statement of the proceedings on that day, that the right rev. Prelates towards the latter part of the trial asked permission to withdraw, and withdrew accordingly. In a portion of the address made by the Attorney-general to their Lordships, the learned Gentleman made use of a certain expression, no doubt out of his kind regard towards the noble Earl at the bar, in which his feelings seemed to have carried him a little beyond what he originally intended. The expression to which he alluded was this—" That he (the Attorney-general) was glad that nothing of moral delinquency had occurred in this case." He was perfectly prepared to say, that in the present state of society in this country, it was difficult to suppose that it could go on as it now did, unless certain allowances were made for the feelings of respectable individuals placed in situations of great difficulty, where, perhaps, their sentiments differed materially from the line of conduct which they were pursuing. No man was more ready to make that allowance than he himself was. But, even admitting that, it appeared to him that the Attorney-general, in making the observation to which he had alluded, had gone a little beyond the true line of duty. Now, as the trial had gone off on matter totally irrelevant to that point—as no opinion of their Lordships had been given on the subject—as, in point of fact, the matter was now placed before the public 731 in this state—and as, at the latter part of the day, the right rev. Prelates as well as several noble Lords had retired from the House,—he thought it right to notice the subject, lest it might be supposed that their Lordships concurred in the sentiment to which he had referred. He believed, that their Lordships would concur with him in saying, that, in whatever situation a Gentleman might be placed, when driven to have recourse to duelling, it was not a custom that was sanctioned either by the law or by the moral principles of the country. Each specific case must stand between the individual, his conscience, and his God; but he could not conceive it possible how any man could pursue such a course without some delinquency being attached to the act, however the circumstances in each particular case might diminish the amount of delinquency. He begged pardon for calling their Lordships' attention to this subject, but he deemed it to be his duty to notice it.
The Bishop of Londonhoped it would not go forth to the public, that if the right rev. Prelates had been present at the conclusion of the trial they would have considered themselves, more than any other Member of their Lordships' House, implicated in any expression of sentiment made use of by the Attorney-general. If he had been present on the occasion, he should have listened to the expression of those sentiments to which reference had been made with deep regret; and he felt it his duty to state, that there was not, in the matter before their Lordships, anything, in his opinion, that called for the expression of any such sentiments on the part of the legal officer of the Crown who filled the situation of public prosecutor on that occasion; and who, it appeared to him, had gone beyond the limits of his province in making them. The noble Earl having alluded to the absence of the right rev. bench (the reasons for which absence their Lordships would no doubt justly appreciate), he felt himself bound to say that he entirely concurred in the sentiments which the noble Earl had expressed; and although, had he been present on the occasion, he should have forborne from any attempt to give expression to his own sentiments (because, looking to the whole princip'e of the proceeding, it was hardly competent for their Lordships to enter into discussion on such a subject), yet he now expressed a strong hope that the recent unfortunate occurrence, together with other cases which had occurred during the last few years, 732 would induce their Lordships, as the chief component part of the Legislature, to take the question into their deep and serious consideration, and to say whether something could not he done to put an end to that which was a shame and a scandal. It was a custom derived from the barbarous ages. It was the remains of that system of chivalry which, though perhaps it might have been of great use at the time when it prevailed, was utterly inconsistent with the manners and customs of the present day. The system in which it originated had long passed by, but it had unhappily left behind it one of its worst features, in the barbarous, wicked, and unchristian practice of duelling.
The Earl of Shaftesburysaid, with reference to the statement made by the noble Earl (Eldon), that all the peers and judges were ordered to attend on the trial; but the Masters in Chancery, by virtue of their office, as messengers of the House, had no claim to attend on that occasion.
§ The Marquess of Lansdownesaid, that the right rev. bench in retiring from the House had acted, on this occasion, in accordance with the established practice. It was customary for them in criminal cases to hear the evidence on both sides, but to ask leave to retire when the verdict was about to be considered and given.
Lord Ellenboroughwas of opinion, that the bishops were no more compelled to ask for leave to quit the House, in cases of trials for criminal offences, than any other members of it. The House, it was true, could compel the attendance of peers at all its proceedings, but the House had no power to compel any Peer to give his vote. Cases might arise when a noble Lord could not conscientiously give an opinion on the subject before the House, and he was at perfect liberty to retire. He well recollected, at what was called the Queen's trial, the understanding was, that any peer who thought proper might withdraw from the decision.
§ The Marquess of Lansdownehad no doubt that a peer had a right to withdraw, and not to vote, if he pleased. But he apprehended the reason why the bishops, when they wished to retire, did so under protest was, lest, if they did not adopt that course, it might be inferred, that they retired because they had no right to vote. Their object was to assert and maintain their right of sitting at all proceedings, and of giving their votes, if they deemed it necessary.
§ Lord Redesdalesaid, the bishops, in the case of the Duchess of Kingston, had retired under a similar protest. He believed the Lords spiritual always put in this claim, by protest, because the Peers denied their right of sitting in judgment on Peers.
The Earl of Shaftesburybelieved the proceedings would be found to have been conducted in the usual form. It was customary for the bishops to ask leave to retire, without voting, on criminal cases, and it had been done on this occasion as on former trials. The question was put to their Lordships not on any interlocutory point, but when they approached a verdict of guilty or not guilty. It was at that period that the Archbishop of Canterbury asked leave for the Lords spiritual to retire.
§ Trial ordered to be printed.
The Earl of Mountcashellwished to put a question to her Majesty's Government on the subject which had recently been brought under their Lordships' attention. He wished to know whether the act of the 1st of Victoria was framed with intent to put an end to duelling? If so, the trial which had occurred, could only be considered a mockery of justice. If their Lordships were really of opinion that duelling ought to be put an end to, then another measure, stronger than that now in existence, ought to be adopted. No later than yesterday morning, he found by the public prints, a duel had been fought between a Mr. Marsden and a Colonel Paterson, in which one of the parties was severely wounded. He, therefore, thought, that this was a proper occasion for noticing the subject. He was one of those who held the opinion, that by proper means duelling might be put a stop to, the more especially if measures were taken to afford just redress for different offences, out of which duels frequently arose. Some mode, he conceived, ought to be adopted, to give due satisfaction in cases of minor offences, as well as those of a more grave and serious nature. For instance, a man received some degree of insult, and immediately called the aggressor out. Why did he thus call him out? Because the law afforded him no proper satisfaction. There was no law to prevent or punish the offence under which the challenger felt himself aggrieved. In this respect the law was extremely defective. Again, if a man's daughter were seduced, he could only sue the seducer for the worth of her services; and who would be satisfied with such a 734 mockery of justice as that? So long, therefore, as this defective state of the law remained, so long would the system of duelling prevail. The law, it was said, demanded reform in many respects; but certainly in that point as much as in any other. He believed there were many noble Lords who felt as he did on this subject. Under the circumstances which he had stated, men really did not know how to act. For instance, an officer in the army received an affront. His brother officers expected that he should go out. What was he to do? On the one side, if he went out he was threatened with the 1st of Victoria; on the other, if he refused, he was obnoxious to the contempt of his brother officers. The unfortunate man had to choose between these two evils. He hoped and trusted that her Majesty's Government would take this matter up, and that he would not be told by the noble Viscount that he ought to introduce some measure himself. Ministers owed it to the nation itself, which called for some measure on the subject. The responsibility, in his opinion, lay entirely with Ministers; and, therefore, he called on them to produce a measure that would meet the evil. If they were not prepared, let them appoint a committee to inquire into the subject. Let that committee investigate the matter as closely as possible, and report on it to the House; but let not the question be left in the state in which it was at present, for, while it thus remained, no man in the country was safe—no man was exempt from being placed in fearful jeopardy. He should conclude by asking, whether it were the intention of her Majesty's Government to propose any measure to Parliament for the more effectual prevention of duelling?
§ Viscount Melbournewas fully sensible of the great importance of the subject to which the noble Earl had directed the attention of the House; but, in answer to his question, had only to state, that her Majesty's Ministers did not mean to bring forward any measure of such a nature as the noble Earl had referred to. He apprehended that the noble Earl on a more mature consideration of the subject, would find that the actual state of the law, as it now existed, was not deficient in force, and that it was hardly capable of being made more stringent than it was at present.