TWELVE LONG PACES
PART 1 – THE TYRANNY OF SOCIETY
Introduction
Two hundred years ago a sensational murder trial took place in the High Court in Edinburgh. The pannel (the accused) was the survivor of a duel between two landowning gentlemen. They were James Stuart of Dunearn WS and Sir Alexander Boswell, the son of Samuel Johnson’s biographer.
How did things come to such a sorry pass between two gentlemen who enjoyed the great advantages of their stations in life, who were distantly related, who studied at the University of Edinburgh together and who were said to have been friends? The answer is to be found in the politics of the day and in the code of honour which governed relations between gentlemen in that age.
James Stuart was a prominent Whig and Sir Alexander Boswell was a life-long Tory. Boswell was the MP for the English constituency of Plymton Erle from 1817 to 1821 which he purchased at a price of £1,000. When he gave up this seat he was given a Baronetcy.
The political climate in Scotland at that time was polarised. The ruling Tory party had long held a stranglehold on power north of the Border. The system was rigged in their favour. Nearly all of the important public offices were controlled by a tight group of high caste Tory politicians. Patronage prevailed over talent at every turn. The right to vote was confined to a small class of male landowners virtually all of whom were Tories. For a quarter of a century the Tories had successfully stifled all opposition and all calls for social or political reform by exploiting the national crisis and the popular hysteria caused by the French Revolution and the Napoleonic Wars.
Leading figures in the legal profession were at the centre of the Scottish political scene in those days. Advocates were frequently Members of Parliament or became peers on both sides of the political divide. The Law Officers (Lord Advocate and Solicitor General) were appointed by the party in power from the ranks of their own supporters. The Faculty of Advocates was one of the few institutions in which Whigs could express their political opinions without being repressed but they did so with caution and at the cost of being excluded from public office. By the 1820s the Tory grip was loosening although oppressive anti-sedition laws were still being used to quash unrest amongst the urban and rural poor. In 1820 Boswell, as a Colonel in the Ayrshire Yeomanry, played a vigorous part in quelling sedition in that County.
By 1822 the Tory ascendancy was increasingly under challenge from a confident and articulate Whig opposition. They were garnering support on a platform which included some expansion of the franchise, catholic emancipation and the abolition of slavery. There was no call from the Whigs for universal suffrage at that stage, no question of giving the vote to working class people or to any women. By then the Whigs had found the means to reach a willing audience for political reform in newspapers which espoused their cause. Prominent amongst these were the Edinburgh Review founded in 1802 and the Scotsman founded in 1817. The Edinburgh Review was founded by the prominent Advocate Francis Jeffrey who edited it for many years. The Whigs also organised a series of hugely popular public meetings and public dinners where rousing speeches in favour of reform were rapturously received.
According to Henry Cockburn (Memorials of His Time p314), himself a prominent Whig and therefore not an impartial historian on this, “The whole official power of Government was on one side, nearly the whole talent and popularity on the other.” Cockburn was a leading figure of his age. He was an accomplished Advocate. He successfully defended Helen McDougal when she was tried along with her husband the notorious grave robbing murderer William Burke. He held the post of Solicitor–General in the Whig Government from 1830 to 1834 before taking his seat on the Bench. He was a chronicler of his times (Memorials published posthumously in 1856) and wrote enduring memoirs (Journal and Circuit Journeys published in 1874 and 1888 respectively). He was an early champion of architectural conservation and his name was adopted by the Cockburn Association (founded 1875) which promotes that cause in his native city to this day. His brothers John and Robert founded the wine importing firm Cockburns of Leith. For readers too young to remember the firm’s amusing TV adverts of the 1980s the “ck” in the name are silent.
In the Georgian age the rank of gentleman was reserved for the upper echelons of male society. It included the aristocracy, the landed gentry and the upper reaches of the more respectable professions. Gentlemen were very conscious of their status and its exclusivity. A gentleman was a member of polite society and was accepted everywhere. All gentlemen enjoyed gilt edged opportunities to better themselves in all the important walks of life which were their exclusive domain. Most of them were born to be gentlemen but occasionally a man could acquire the badge by effort or patronage.
The conduct and affairs of gentlemen were governed by three overlapping but by no means coextensive codes, religion, the law and the code of honour. Gentlemen often set most store by the last of these. The code of honour was at its most prescriptive in regulating relations between gentlemen. They could not cheat, insult or assault each other without the gravest consequences. Being of good character, in the sense of enjoying an unblemished reputation as opposed to being inherently virtuous, was the be all and end all. A gentleman whose good name or reputation was traduced must of necessity defend his honour regardless of any legal or religious constraints.
Which brings us to duelling. Where the assault on a gentleman’s honour came from one of his own rank the offended party had no option but to demand satisfaction by way of an apology failing which a duel. Never mind any Christian notions of forgiveness or turning the other cheek. Never mind that duelling was against the law and that the survivor in a fatal encounter was liable to prosecution for murder. The code of honour on this point was so uncompromising that the offended party would himself be dishonoured and expelled from society if he failed to demand satisfaction and, if necessary, to risk his own life. Cockburn referred to this as “the tyranny of society.” Gentlemen were frequently pitched into duels through no fault of their own.
In the first half of the nineteenth century duelling was still common in the upper classes throughout Europe and in the New World. The list of celebrity duellists of that age includes The Duke of Wellington, Lord Canning, Lord Castlereagh, President Andrew Jackson, Vice President Andrew Burr, Alexander Hamilton and Alexander Pushkin. Duels featured in works of fiction by Walter Scott, Jane Austen, Charles Dickens and Thackeray. Countless gentlemen from all the better walks of life became embroiled in duels, often over insults which nowadays seem rather petty. Some of these were resolved without a shot being fired. In many others the hapless gentleman who had been compelled to demand satisfaction ended up dead.
Gentlemen on opposite sides of the political divide routinely behaved in a civil fashion towards each other. They often held their rivals in high regard. They were often friends. Much of the favourable character evidence given for the pannel in this case came from gentlemen who were of the opposite political persuasion. But subterranean animosity did occasionally erupt to the surface. According to Cockburn (Memorials p314) the political rivalry between the two parties created “a general shock between those who wished to perpetuate old systems, and those who wished to destroy or reform them.”
The Beacon
The Tory response to the blossoming Whig Press included something which is familiar to us in the modern world, scurrilous journalism and the trolling of opponents. In 1820 a new Tory newspaper called the Beacon was published in Edinburgh from premises near what is now Argyle Place on the south side of the Meadows. It was secretly financed by a group of fifteen prominent Tories including Sir Walter Scott, the Lord-Advocate (Sir William Rae), and the Lord Provost of Edinburgh.
From the outset the Beacon took an aggressive, often scandalous line launching vicious personal attacks on prominent Whigs. The articles and letters it published were anonymous. This content infuriated the Whig lawyers and politicians who were on the receiving end. James Stuart was a frequent target. He was mocked about his appearance and his position in society. The public face of the Beacon was its printer Duncan Stevenson. Stuart confronted him in Parliament Square and struck him with a horsewhip. Stevenson then challenged Stuart to a duel which he declined to accept on the ground that Stevenson was of a lower social class, not a gentleman. Stevenson put up posters around Edinburgh branding Stuart a “Ruffian, a COWARD, and a Scoundrel.” This coincided with more attacks on Stuart in the Beacon branding him a coward. The newspaper also pointed out that Stevenson was in fact a gentleman by birth from a landed family in Argyll where he was a Justice of the Peace and a Deputy-Lieutenant. The confrontation with Stevenson damaged Stuart’s reputation and he was painfully aware of that.
The furore created by the Stuart affair and the Beacon’s attacks on other prominent Whigs electrified the rivalry between the two parties. Stevenson was successfully sued for libel by two prominent Whigs. Scott was nearly dragged into a duel by another. He predicted that violence would occur. The identity of the funders became public knowledge and this prompted them to withdraw their support. The Beacon was snuffed out in September 1821. Scott lamented its demise. He claimed that its backers never intended it to be so scurrilous and that the content had been hijacked by young firebrands. This seems disingenuous. Scott and his friends were content to let the newspaper carry on with its low brow attacks for as long as they remained behind the scenes. There is reason to doubt Scott’s claim that he never contributed any copy to the Beacon. It seems unlikely that he was unaware that his close friend Boswell was a regular contributor.
Cockburn (Memorials 400-401) described the state of affairs created by the Beacon as “political cannibalism by which our comfort has been torn.” He was critical of Scott for not reining in the young hotheads of his party who were responsible for the scandalous articles and for giving their conduct “countenance” instead. In conciliatory mode Cockburn then said of Scott “there could not be a better natured, or a better hearted man. It was neither malice nor selfishness which made him go wrong; but the inconsiderate weakness of yielding to those of his party whose talents he admired, and who worshipped him as their star…His was the fault of unreflecting acquiescence.” Cockburn cannot have known that two days after the duel Scott wrote to a friend saying that Stuart had “behaved as a blackguard and a coward … and then tried to wash clean his character with poor Boswell’s blood.” (John Chalmers – Duel Personalities p89). Scott added that had he been in Boswell’s shoes at the duel he would have done his best to rid the country of Stuart.
The Sentinel
No sooner had the Beacon expired than it was reincarnated in Glasgow in a Tory newspaper called the Sentinel. The incendiary attacks on Whig politicians continued. From the first edition the allegations of cowardice against Stuart, centred on his refusal to duel with Stevenson, were renewed. Stuart began defamation proceedings against the publishers William Borthwick and Robert Alexander. This did not stem the flow of attacks on his character.
Sir Alexander Boswell was an acknowledged wit and poet. He composed poems and songs in the Scots language which were the delight of his gregarious Tory friends. He was the poet-laureate of the Harveian Society, a prestigious Edinburgh dining club. He was a frequent guest at Sir Walter Scott’s informal weekly dinner parties at 39 North Castle Street. According to Cockburn (Memorials p398) “Boswell was able and literary; and when in the humour of being quiet, he was agreeable and kind. But in general he was boisterous and overbearing, and addicted to course personal ridicule.”
Boswell was the anonymous author of several of the scandalous pieces published in the Beacon. He turned his sights on James Stuart in the Sentinel. After the commencement of Stuart’s defamation action that newspaper published a series of unattributed articles written by Boswell repeating the allegation of cowardice. The one which caused the greatest offence, which enraged Stuart, was a piece called the “Whig Song.” It referred to him as being “Kent for that fat cow-art” and linked this to the Stevenson affair. In other published letters written under the pseudonyms “Ignotus” and “Mark Tod” Boswell made several more sly digs at Stuart on the same themes of cowardice and corpulence. One can well imagine him merrily firing off these “squibs” as he called them after boozy dinners with his jovial male friends.
Boswell Exposed
At some stage before his involvement was revealed, according to evidence heard at the trial, Boswell realised that he had been rash in writing the libellous items. He ordered the newspaper publishers to destroy his hand-written texts and to disclose his identity to anyone demanding satisfaction of them for publishing the material. Neither of these things happened. Stuart discovered that Boswell was the author of the libellous material by a circuitous route. The publishers of the Sentinel had fallen out and were engaged in acrimonious legal proceedings against each other. Borthwick was imprisoned for civil debt. His agent approached Stuart and offered, on Borthwick’s behalf, to assist Stuart in identifying the author of the libels if Stuart would drop his action of damages against Borthwick. Stuart, without making any promises to Borthwick, travelled to Glasgow with Borthwick’s agent where they procured the release of Borthwick and the recovery of certain papers from the Sentinel’s office. These included the manuscripts of the Whig Song, the Mark Tod letter and the Ignotus letter. They also recovered a letter subscribed by Boswell which enabled them to match it with the anonymous manuscripts and thus to establish that Boswell was their author. This comparison exercise was carried out in the Tontine Hotel in the Trongate on 11 March 1822 where Stuart was in residence. Stuart then rushed back to Edinburgh where he shared his astounding discovery with his Whig friends.
The Appointment
Stuart decided to confront Boswell with his allegation that he was the libeller. With the likelihood of a duel in mind Stuart appointed the Earl of Rosslyn to act as his second. This was an indispensable step to ensure that the business was conducted in an honourable fashion. Seconds could pursue a settlement without bloodshed but they were not peace makers. An important part of their function was to ensure that their principal did not back down or accede to a dishonourable resolution. The Earl (James Alexander St Clair-Erskine) was a soldier, a Major General no less, who saw action and held staff appointments in the Napoleonic Wars. He was also a politician who held Government offices as an MP and subsequently as a peer. He was a Whig in his early years but switched to the Tory side in later life. He owned slaves in Antigua. That was no impediment then to his standing as a gentleman of the first rank. He proved to be a wise choice as second.
The appointment with Boswell was delayed because he was in London following the recent death of his brother there. On his return to Edinburgh Rosslyn called upon Boswell by appointment on 25 March. Boswell clearly knew what was coming as his own choice of a second, John Douglas (later 7th Marquess of Queensberry), was in attendance at the meeting. The Earl explained that Stuart had reason to think that Boswell was the author of the Whig Song. The Earl stated that if Boswell denied authorship that would be treated as “conclusive against any evidence.” Boswell and Douglas conferred about how to respond. In answer to questions from the bench at the trial Douglas said that he advised Boswell against his own inclination to admit authorship and to decline to answer the question put to him. He gave this advice because he knew Boswell had made up his mind not to apologise. The advice was followed and the outcome was inevitable.
According to the Earl’s evidence at a second meeting between the seconds Boswell was offered an alternative means of resolving the issue by apologising for a bad joke of which he was ashamed and by declaring that he had no serious intention of reflecting on Mr Stuart’s courage or character. According to the Earl “the manner in which that proposition… was received, led me to understand that Mr Douglas had no hopes that Sir Alexander would say such a thing.” In Douglas’s evidence the bad joke solution was suggested and rejected at the first meeting with Rosslyn. Whether or not Boswell had any remorse for slandering his former friend it was a disreputable thing for him to have done. But he could not see his way to offering an apology in these terms because that would also bring him into disrepute. On the way to the duel Boswell told his travelling companions – “I have made a clout to wipe off former stains.” The duel gave him a way to salvage his honour from the damage it suffered by his furtive attacks on Stuart as long as he did not apologise.
At least two other prominent Whigs of a higher social standing than Stuart who had been libelled by Boswell made it known that they were considering a challenge at this time. How convenient for them that Stuart got his in first.
The Time and Place
At Boswell’s request the parties initially agreed that the duel should be delayed for fourteen days and that it should be held in France. That same evening (25th March) the timescale was hastily accelerated and this gave rise to a change of venue. News of the encounter reached Sheriff Duff in Edinburgh who summoned both men to appear before him in the early hours of 26th March and bound them over to keep the peace. Immediately after that it was agreed between the seconds that the duel must go ahead nonetheless and that it should do so without delay for fear that further steps might be taken by the authorities to prevent it. Stuart was of the same mind. At this stage James Brougham, a prominent Whig and a friend of Stuart, was standing in for the Earl of Rosslyn who had gone home to his estates in Fife. Boswell was roused from his bed at 2 am on 26 March by Douglas and agreed to conduct the duel later that same morning. The principals could honour their undertaking to the Sheriff by moving the duel to a location outwith his jurisdiction.
The seconds discussed the option of fixing Berwick-Upon-Tweed as the meeting place leaving it open to the parties to choose either side of the Border for the duel. Meanwhile Boswell had received legal advice from Lord Meadowbank, a Court of Session judge, that it would be better to fight the duel in Scotland thereby placing himself in the hands of a gentleman like the Lord Advocate, rather than an English Grand Jury, if he survived a fatal encounter. It is doubtful that this advice was coloured by the knowledge that the Lord Advocate was a fellow Tory. Presumably Lord Meadowbank knew that a prosecution would ensue despite this connection. It seems the judge thought it unlikely that there would be a conviction. Boswell accepted this bold advice and the venue was switched to Scotland. Stuart was willing to duel in Scotland and to run the risk of conviction despite being a political opponent of the Lord Advocate. Not unreasonably he may have calculated that the code of honour could trump the law and bridge the political divide. The survivor would be tried by men of the same stamp. Nevertheless, the possibility of a conviction coloured the behaviour of all concerned. To increase the chance of avoiding the gallows everyone involved had to be seen to be acting reasonably and honourably at every stage. The venue was fixed for Auchtertool in Fife to enable the Earl of Rosslyn to attend. Within twenty four hours of the initial meeting of the seconds the two men were on their way to a lethal encounter.
The Duel
Stuart drank the better part of a bottle of claret before leaving Edinburgh. Both men travelled separately to Fife in the chilly gloom of the early morning. Their paths crossed briefly at South Queensferry as they waited for small boats to take them across the Forth. Each was accompanied by a surgeon whose mere presence must have heightened the sense of foreboding. Boswell’s second John Douglas travelled with him. Stuart went first to his house at Hillside where he wrote his will and gave directions for what was to happen if he was brought back to the house later that morning injured. On the way to Auchtertool he told his surgeon Robert Liston that he bore no ill-will towards Boswell and that he hoped any injury which his opponent suffered would be slight. A noble sentiment although a sceptic might suggest that this was said with some regard to the possibility of a murder trial. It also shows that Stuart was not going to aim to miss.
Stuart gave Liston a note requesting that his wife be summoned from Edinburgh if he was not too badly injured. It stated that “She is of all her family, that one who would the least wish me to live with a dishonoured name.” He was not, it seems, blaming her for his predicament but it was a bit rich to rope her into the justification for his duel when she, in common with all women of that age, had so little influence over the conduct of their head strong husbands.
The Boswell party had their breakfast in North Queensferry before setting off for Auchtertool. On the way Boswell told his surgeon George Wood that Stuart had no choice but to challenge him to a duel. As he trundled through Fife Boswell drank whisky and brandy.
The parties from Edinburgh met up on the road between Auchtertool and Kirkcaldy (now the B925) near a farm called Balbarton. The Earl of Rosslyn joined them bringing the pistols which were used in the duel. The seconds selected a secluded spot in a dell on the farm out of sight of the farmhouse. The seconds exchanged comments about the possibility of settling the affair. The Earl of Rosslyn said in evidence that this was done without any hope on his part of a peaceful outcome. Douglas told the court that Boswell had made it clear to him that he would not give way in any respect.
The Earl described Stuart as composed and temperate as was to be expected of a man of “constancy and courage.” Stuart told his second that he was minded not to take aim at Boswell and the Earl agreed with that. Presumably this was to save time and was not expressive of any desire to avoid shooting his opponent.
At the trial the evidence revealed that on the way to the duel Boswell told Douglas and Mr Wood that he had no ill-feelings towards Stuart and that he had decided to fire in the air because of the injury he had inflicted on Stuart by writing “squibs against him.” Douglas expressed his approval of this. Boswell insisted that his opponent should be given no hint of it. This may be the real reason for Boswell accepting the advice about fighting the duel in Scotland. He was not running the risk of a prosecution for murder. It might also explain why he was imbibing on the road to Balbarton. He was not concerned that the alcohol might affect his aim. Presumably Boswell meant what he said about his lack of animosity for Stuart as there was no need for him to put this on the record given his decision not to fire at his opponent. Or was he concerned about his reputation in the event of his death? At the trial the Earl of Rosslyn said that he had no knowledge of Boswell’s intention to fire in the air and that “such an intimation given to me would necessarily have concluded all proceedings.” His opposite number was content to let the duel go ahead as a one sided affair. No one criticised Douglas for this. He may well have thought that Boswell had placed himself in a dishonourable position by slandering Stuart and that the best way for him to retrieve his reputation was to give Stuart a free shot.
The seconds marked out twelve long paces and the protagonists faced each other pistols in hand. At that point Douglas told Boswell to make it as obvious as possible that he was aiming away from Stuart by firing at a bank “in the direction where the seconds stood.” Douglas said in his evidence that he hoped by this means the matter would be brought to a conclusion without any further firing. He cannot have thought that Stuart would not fire at all. That would have required Stuart to show incredible presence of mind in a fraught situation in which he had no incentive and little or no opportunity to assess his opponent’s response to the command to fire. Presumably Douglas was alluding to the possibility of a second round of shots if both missed the first time. This was not uncommon in duels. There was never any suggestion that Stuart knew he was in no danger when he faced Boswell in the field. In his opening speech in the trial Cockburn said that Stuart “knew” Boswell was willing to kill him because Boswell originally stipulated France as the venue for the duel to avoid the prospect of him being prosecuted for murder in Scotland.
It was agreed that the two men should fire together. The Earl gave two commands, to present and then to fire. Two shots sounded in rapid succession. Stuart later told his counsel Henry Cockburn that “he was never more dumbstruck than when on the smoke clearing he saw his adversary sinking gently down” (Memorials. p394).
According to the Earl it was immediately obvious that Boswell had sustained a very serious wound and he told Stuart to leave the field. At the trial the surgeon Mr Wood explained that the ball had entered the middle of Boswell’s right clavicle severely fracturing it. The two surgeons removed two pieces of bone but could not find the ball or remove all the shattered pieces of bone. Mr Wood knew at once that it was a mortal wound. Before he quit the scene of the duel Stuart asked the Earl if he could bow to Boswell “expressive of a wish to be reconciled.” The Earl agreed to this but Boswell was facing away from Stuart by this time. If the objective was to improve the light in which Stuart would be viewed at his trial then it was achieved without the gesture being made.
Mindful of his reputation to the end the stricken Boswell told Douglas that he feared he had not made his gesture of firing in the air as obvious as he would have wished. Boswell, a heavily built man about six feet tall, was carried from the field on a make-shift stretcher made from a door with the assistance of two local blacksmiths who, no doubt, did most of the heavy lifting. He was taken to nearby Balmuto Castle, the home of his cousin the Court of Session judge Lord Balmuto. Boswell died there the following day at about 3.30pm with his wife and daughter at his bedside. By then Stuart was on his way to France.
The Aftermath
According to Cockburn (Memorial p395) “the death of so valuable a partisan threw the Tory party into a flame, the heat of which, I fear reached the public prosecutor.” The ill-will towards Stuart found expression in a letter to Sir Walter Scott from his son-in-law John Gibson Lockhart in which he mentioned the other two offended Whigs who were shaping up to challenge Boswell. He said “it certainly would have been less painful to Boswell and his friends had he fallen by the hand of either of these Gentlemen rather than by a hand such as this.” (Chalmers p92).
The Lord Advocate must have felt the heat before Boswell died because he petitioned the court on the day of the duel craving arrest warrants for Stuart, for the Earl of Rosslyn and for Douglas. These were granted the following day by the Lord Justice Clerk.
Within two days of Boswell’s death Stuart’s friend and fellow Whig James Gibson informed Sheriff Duff that Stuart was willing to return to Edinburgh to stand trial as soon as it could be arranged by the Crown. An announcement to the same effect was placed in two newspapers the Star and the Edinburgh Advertiser. The initial piqued response from the Crown was that an indictment would not be served on Stuart until he was in custody in Scotland. The Crown later relented on this and Stuart returned to Scotland in June 1822. The Earl of Rosslyn put up bail in the sum of £1200 and Stuart stayed out of prison pending his trial.
The court records show that unsuccessful attempts were made to execute the warrant for Douglas in Dumfriesshire at the homes of his brother the Marquis of Queensberry (Kinmount House) and his mother Dame Grace Douglas Johnstone (Lockerby House). The two seconds were in fact lying low together in Henry Brougham’s house in Westmoreland (Cumbria) where they hid in the priest’s hole to evade Messengers-at-Arms who visited there to execute the warrants. (Chalmers p91). On 6 April 1822 the Crown Agent Andrew Rolland instructed that the extant warrant for the Earl of Rosslyn be returned to him. Perhaps the Lord Advocate had cooled down by them or perhaps he thought better of imprisoning two leading lights of Scottish society. According to the letter of the law the two seconds were guilty of murder art and part but there was never any question of putting them on trial. The Earl of Rosslyn was treated with fawning respect by the Lord Justice Clerk at Stuart’s trial. The seconds were required to appear before a Sheriff to give sworn declarations setting out their knowledge of the events.
Lady Boswell’s agent wrote to the Crown Agent on her behalf on a number of occasions prior to the trial. The letters were written on black edged note paper and fixed with a black seal. She thought that Stuart and his Whig friends had conspired against her husband. She was incensed by James Brougham’s relatively minor part in the drama as a stand-in second. A letter of 16 April stated that “Lady Boswell supposes that you have not been informed of the active part which Mr Brougham took in the conspiracy to murder her husband.” It goes on to say that Brougham had her husband “called out of his bed in the dead of night to have their purpose accomplished.” This overlooks the fact that Boswell’s own second was the person who roused him on the morning of the duel having agreed with Brougham that this was the best course. In another letter of 25 April Lady Boswell asserted that Brougham should also be prosecuted as a second or as “an instigator and witness of bloodshed.” Lady Boswell prevailed upon her teenage daughter Theresa to write to Sir Walter Scott on her behalf about the “foul conspiracy.” She described Douglas as an “agent of murder” and asked whether The Earl of Rosslyn should be prosecuted “for standing behind a hedge whilst his bloody purpose” was perpetrated. Her Ladyship can hardly be blamed for lashing out like this having suffered such a pointless bereavement. Presumably she knew nothing about the duel or the circumstances giving rise to it before receiving word that her husband had been mortally wounded.
The Law
Long before the beginning of the nineteenth century the common law of Scotland was clear. Killing an opponent in a duel by deliberately firing a pistol at him was murder. This was set out in an authoritative work of the Institutional writer Baron David Hume, Commentaries on the Law of Scotland Respecting Crimes (Hume on Crimes) vol. I p230 et seq and was vouched by case law going back over two hundred years. It was not open to the pannel to plead provocation or self-defence. Hume was listed as a defence witness at the trial but did not give evidence. Defence counsel may have been minded to call him to speak to a passage in the edition of his book which was current in 1822 where he mentioned three recent trials in which the jury had declined to return verdicts of murder despite the strict rule of law. These cases were central to the main line of defence advanced at the trial.
Another highly influential writer on criminal law Archibald Alison was in full agreement with Hume’s view that killing an opponent in a duel is murder – see Alison’s Criminal Law 1831 p53 et seq. Presumably Alison spoke for a large body of enlightened opinion in that time when he described duelling as – “this inhuman and savage custom, which permits individuals to take upon themselves, by the most violent means, the redressing of their own wrongs, which entrusts the punishment of injuries to the chance of combat, or the coolness of premeditation, and exposes the person who has suffered an injury to the additional and greater evil of becoming a murderer, or of being murdered.” These were the policy considerations which had shaped the law despite the prevalence of duelling in society.
The crucial question was whether the Judges would apply the strict rule and exclude any defence centred on the character of the pannel or the conduct of the parties or whether, on the other hand, the Court would permit the jury to try the case on the evidence at large as a court of honour.
The Indictment
No one doubted the propriety of prosecuting Stuart for murder but according to Cockburn the way in which the case was pursued by the Lord Advocate was tainted with impropriety. The Lord Advocate and the Solicitor General were connected to the Beacon and may well have had some involvement with the Sentinel. The junior prosecuting counsel Advocate-Depute Duncan M’Neill visited Boswell on his death bed at Balmuto and later signed the indictment charging Stuart with murder.
The printer Borthwick was indicted for theft of the Sentinel documents which contained Boswell’s libels of Stuart and was remanded in custody despite having a legitimate claim of ownership of those papers. According to Cockburn the imprisonment of Borthwick was a pretence carried out to bolster the case against Stuart by showing that he obtained the proof of Boswell’s involvement by dishonourable means.
When it came to presenting the Crown case against Stuart in writing the Crown had to decide how they would portray the whole affair. They realised that it might not be enough to simply prove the bare requirements for a murder charge, that Stuart pointed his pistol in the direction of Boswell and fired the fatal shot. They knew that the trial might develop into a broad inquiry into the character and conduct of the protagonists. They knew that their audience, the judges and jury, would be sympathetic to Stuart because he was the party injured by the libellous articles. Boswell on the other hand might be viewed as an unsympathetic character. The Crown lawyers might simply, as Cockburn suggests, have been over-zealous in their determination to secure a conviction because Boswell was their friend and a fellow Tory.
In any event Cockburn’s allegation of Crown misconduct was given some credence by the terms of the indictment itself which was served at Stuart’s house at 2 North Charlotte Street, Edinburgh on 22 May 1822 while he was still in France. It seriously over-egged the case against Stuart in a number of respects and it is doubtful that this was simply poor judgement on the part of the prosecutors. The narrative which the Crown pled echoed Lady Boswell’s conspiracy theory. It was that Stuart “having conceived malice and ill-will against [Boswell]” hatched a plot to challenge him to a duel before he (Stuart) knew or could prove that Boswell was the author of the libellous pieces published in that newspaper. The indictment went on to allege that in furtherance of this unlawful design Stuart, acting in concert with Borthwick, repaired to Glasgow where they unlawfully obtained the Sentinel papers. It then narrated that Stuart examined these papers and “having found; or pretended to have found among them, some writings holograph of the said Sir Alexander Boswell, … did wickedly and maliciously challenge the said Sir Alexander Boswell to fight a duel….” So, according to the Crown, there was at least the possibility that Boswell was not the author of the libels but whether he was or not Stuart acted dishonourably by wickedly and maliciously provoking a duel and committing a theft along the way. To cap it all, the indictment contained an allegation that, after the duel, Stuart “conscious of [his] guilt in the premises, did abscond and flee from justice.” The Lord Advocate and his team were going for broke. But could they prove that Stuart was a bounder? Thirty six Crown witnesses were listed on the Indictment.
Read me my Rights 