“My Lords, 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, where 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. cap. 5. By that act certain personal injuries without death were made felonies, with benefit of clergy. Then came the Coventry Act, in 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 of 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 on 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