Blackwood's Edinburgh Magazine, Vol. 68, No 422, December 1850

"Q.– Were you on Wimbledon Common on the 12th September last?

"A.– I must decline answering that also!

"Q.– Were you on that day called in to attend any gentleman that was wounded?

"A.– I am sorry to decline that again!

"Q.– Can you tell me where Captain Tuckett lives?

"A.– I must decline answering the question!

"Q.– Has he a house in London?

"Sir William Follett.– He 'declines to answer the question.'

"A.– I have already said that I decline answering the question.

"Attorney-General.– Where did you last see Captain Tuckett?

"Sir William Follett.– We [the counsel for the prisoner] have no right, my Lords, to interfere in this case;[56 - The meaning of this observation is, that the privilege of not answering questions tending to criminate the witness belongs to the witness, and not to the parties wherefore the objection to such questions ought to come from the witness, and not from the counsel for either of the parties.] but, the witness having several times declined to answer the question, I apprehend that it is not regular for the Attorney-General, by circuitous questions, to endeavour to get him to answer.

"Attorney-General.– I have never pressed him in any question I have put. [To Sir James Anderson.] – Do you decline answering any question whatever respecting Captain Tuckett?

"A.—Any question which may 'tend to criminate' myself.

"Q.– And you consider that answering any question respecting Captain Tuckett may tend to criminate yourself?

"A.– It is possible that it would.

"Q.– And on that ground you decline?

"A.– Yes.

"Attorney-General, [to the House.] – Then, unless your Lordships wish to ask any question of the witness, he may withdraw.

"The witness was directed to withdraw."

Here, then, were four avenues through which light might have been thrown on a transaction which was the subject of such solemn and dignified inquiry by the most illustrious judicial assembly in the world, carefully closed: Sir James Anderson, Captain Tuckett, Captain Douglas, and Captain Wainwright. It will be further observed that Lord Cardigan, in his frank avowal at the police station, had happened not to mention the name of the gentleman whom he had fought and wounded – an omission probably altogether accidental, for his Lordship seems to have been in a humour of signal yet becoming and characteristic frankness.

The sole question in this celebrated case thus became one of identity – the indictment charging Lord Cardigan with having fired at one Harvey Garnett Phipps Tuckett– it being the duty of the prosecutors to prove that the prisoner fired at a person bearing these names. There was abundant evidence that Lord Cardigan had fired at and wounded a Captain Harvey Tuckett; but this might be a person totally different from him named in the indictment. The skill and vigilance of the prisoner's counsel were visible in tripping up his opponents whenever they approached inconveniently near his client. There is no reason to believe that Lord Cardigan's counsel were aware of there being the slightest difficulty, on the part of the prosecution, in proving the identity of the wounded man with the one specified in the indictment; but at the very first start, Sir William Follett perceived a faint possible advantage, and never for one instant lost sight of it.

"You tell us," said the counsel for the prosecution, examining the first witness – the miller, "that you saw the pistols fired a second time: did you observe whether either of the shots took effect?

"A.– I thought Captain Tuckett was wounded – or, at least, the other gentleman: I did not know who it was.

"Q.– You thought that the gentleman, whom you afterwards knew to be Captain Tuckett, was wounded?

"A.– Yes.

"Q.– Did you see what that gentleman did with his pistol, after the second shots were fired?

"A.– No.

"Q.– You did not see whether he held it in his hand, or what he did with it?

"A.– Which are you alluding to?

"Q.– I am speaking of Captain Tuckett.

"Sir William Follett.– He has said he did not know who it was!"

Here was a stumble by the prosecutors, which their wary adversary never allowed them to recover. The miller then stated the giving of the card of address of "Captain Harvey Tuckett, 13 Hamilton Place, New Road," and produced it; but Sir William Follett would not allow it to be read in evidence against Lord Cardigan, without evidence that Lord Cardigan had seen it given, and was aware of what it was: and such evidence was not forthcoming. The Attorney-General then withdrew the card for the present, and asked the miller whether, on receiving it, he allowed the wounded gentleman to go; to which the answer was "Yes." – "In consequence of receiving this card, did you afterwards call at a particular house?" (meaning the house mentioned on the card, but which Sir William Follett had succeeded in excluding, for the present, from evidence.) Sir William Follett objected that the question was a leading one, and it was not pressed. The witness then stated that, a week afterwards, he called at No. 13 Hamilton Place; asked for "Captain Harvey Tuckett."

"Q.– Whom did you see?

"A.– Captain Harvey Tuckett.

"Q.– Did you speak to him?

"A.– I did.

"Sir William Follett.– I wish you would put your questions differently!

"Attorney-General.– We ask him whom he saw.

"Sir William Follett.– He does not know Captain Harvey Tuckett, I suppose.

"Q.– Did you speak to him?

"A.– I did."

The Attorney-General then tendered the card in evidence: and Sir William Follett, ignorant of what was written in it, (for the Attorney-General had not specified in stating the case,) objected to its being received. On this a very ingenious and elaborate argument ensued between him and the Attorney-General, whether this card was or was not admissible in evidence, at all events in that stage of the case. The latter insisted on the affirmative, on the ground that the card had been given to the constable in Lord Cardigan's presence, and the constable had afterwards gone to the address specified in the card. It was therefore a part of the res gestæ. "No," answered Sir William Follett; "it does not appear who it was that gave this card, or that Lord Cardigan saw it, nor that he knew what was written on it. The Attorney-General is trying to prove an important fact in the case, by an apparent admission of Lord Cardigan; whereas he is not shown to have had any cognisance whatever of the fact which he is supposed to have admitted!" The Lord High Steward said that, at all events, the House would postpone for the present its decision as to the admissibility of the card. "Whether the Attorney-General," said Sir William Follett, "will have any other evidence to prove who it was that had given the card, or to connect the card with the Earl, is another question" – which doubtless occasioned no little anxiety to the Earl and his astute counsel.

The next witnesses were the miller's wife and son, who were cross-examined by Sir William Follett irritably and severely, but ineffectually. They did not, nevertheless, appear to carry the case much farther than had the miller. Then came Mr Busain, the police inspector, who gave evidence of the facts already stated in connection with his name, in the Earl's avowal that he had just fought a duel, and hit his man. On his being asked a very critical question, viz., as to Captain Tuckett's having called at the magistrate's office and given his name, Sir William Follett anxiously and hastily interposed – "Was Lord Cardigan present then and there?" to which the answer was, "No, he was not." Sir William Follett therefore succeeded in excluding what Captain Tuckett had said on calling at the magistrate's office, and thus again "averted the decisive stroke."[57 - Townsend, vol. i. p. 229.]

Then the Attorney-General called a Mr Matthew, a chemist in the Poultry, in whose house "Captain Tuckett" occupied rooms for business. Mr Matthew said that Captain Tuckett lived at "No. 13, Hamilton Place, New Road." He was then asked the Christian names of Captain Tuckett. On this Sir William Follett interposed, and having elicited the fact that the witness had never been at the house No. 13, Hamilton Place, New Road, objected to the witness being asked the Christian names of the gentleman who had lodged with the witness in the Poultry! This objection, however, was overruled; but on the question being put, it turned out that the only names by which the witness knew his lodger were "Harvey Tuckett!" As a last resource, the Attorney-General called Mr Codd, an army agent, who paid "Captain Tuckett," of the "11th Light Dragoons," his half-pay, and knew his name to be "Harvey Garnet Phipps Tuckett!!" But the witness added that he used to pay the money at his own house in Fludyer Street, Westminster, and had never seen Captain Tuckett except there, and at an insurance office! Again was the Earl of Cardigan's star in the ascendant. How could the prosecutor connect the half-pay officer spoken of by this witness, with the Captain Tuckett shot by Lord Cardigan, and afterwards seen wounded in Hamilton Place?

The case was brought, at length, pretty nearly to a stand-still. "Is that your case, Mr Attorney?" inquired Lord Brougham; on which the Attorney-General pressed for the decision of the House as to the admissibility in evidence of the card which had been delivered by one of the parties on the ground to the constable.

"Lord High Steward.– You object to its being received, Sir William Follett?

"Sir William Follett.– Certainly, my lord: and I should wish to address your lordships, if any doubt is entertained on the subject.

"Lord High Steward.– Their lordships are ready to hear your objection.

"Sir William Follett, (to the Attorney-General.) – Will you let me look at the card?"

The card was handed to Sir William Follett, who, on examining it, addressing the Lord High Steward, said calmly and resolutely – "My lord, I do not think it necessary to object to this card being read." And, indeed, he had no need to do so; for, as the reader must see, it did not advance the case a single hair's-breadth.