Blackstone, following Hawkins, thus lays down the law in the case of duelling: "Express malice is, where one, with a sedate deliberate mind, and formed design, doth kill another,--which formed design is evidenced by external circumstances, discovering that inward intention,--as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some grievous bodily harm. _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 of both God and man; and therefore the law has justly fixed the crime and punishment of murder on them, and on their seconds also_."[51] This passage may be said to reflect a somewhat ghastly light on the three sections of the statute law given above, such as must have startled the Earl of Cardigan and his advisers, as soon as they found that he had been made the subject of _bonâ fide_ prosecution under that statute. We affirm unhesitatingly, and no one will deny, that the facts relating to the duel, as they appear above stated, brought Lord Cardigan's case within every one of these three sections--as clearly within the first, rendering the offence capital, as within the other two, declaring it felony punishable with transportation. This the Attorney-General himself stated to the House of Lords, in opening the case against the prisoner: "The present indictment might have been framed on the _capital_ charge." _A wound had been inflicted_, which constituted one branch of the capital offence; but "the prosecutor had, very properly, restricted the charge to firing with _an intent_, without alleging that a bodily injury _dangerous to life_ had been inflicted."[52] The indictment was founded on the third and fourth sections alone; charging, in the first count, a shooting with _intent_ to murder; in the second, to maim and disable; in the third, to do some grievous bodily harm. Indictments were preferred before the grand jury, at the Central Criminal Court, against both principals, and both seconds. The grand jury ignored those against Captain Tuckett and his second, but "found" those against Lord Cardigan and his second. As probably the same evidence, precisely, was laid before the grand jury in both cases, it is certainly difficult to account for the totally different results, except on the supposition that the grand jury weakly suffered themselves to be hurried into a forgetfulness of their sworn duty, by feelings of commiseration for the party who had been wounded by one who had escaped unhurt. Lord Cardigan was reputed to be "a dead shot," and was certainly very unpopular; but there was no pretence whatever for saying that he had acted otherwise than with rigorous fairness in