PART 2 – THE PANNEL IS A LANDED GENTLEMAN
On 8 June 1822 written Defences to the Indictment (a procedural step not now in use), written by Cockburn, were lodged on behalf of Stuart. The main planks of the defence were set out in the following excerpts: “the pannel is a landed gentleman…..whose concern in [the duel] was excusable and unavoidable: ….. the pannel was guilty of no offence or irregularity in the mode in which he discovered that Sir Alexander Boswell was the author of these calumnies; …..the charges of malice against [Stuart] — of a determination to provoke him or any of the other lieges to fight with the pannel, and of absconding from justice, are all utterly denied.” The document made it clear that the defence were going to prove that Boswell was the author of the libellous pieces and that the sordid history of the Beacon and the Sentinel would be revealed to the jury. It ended with a confident prediction – “however deeply [Stuart] deplores the melancholy event which has occasioned this investigation, he is satisfied that, if he be tried by his peers, he cannot be found guilty of any crime.”
The Trial Begins
The case of Her Majesty’s Advocate v James Stuart called for trial on Monday 10 June 1822 less than three months after the duel. It was held in the High Court of Justiciary in Edinburgh. Writing some years later Cockburn said that “No Scotch trial in my time excited such interest” (Memorials p396).There spoke a man involved in Scottish criminal trials as counsel and as a judge over a period of fifty years. According to the Scotsman account of the trial published a few days later public interest was at fever pitch and the “avenues to the Court” were crowded for several hours before the trial started and throughout its duration. The Court sat continuously until a verdict was reached in the early hours of the next day. By then the atmosphere in court must have been ripe with more than anticipation.
As was the practice then there were several judges. In the chair was Lord Justice Clerk Boyle. The others were Lords Hermand, Succoth, Gillies and Pitmilly. Lord Meadowbank recused himself because of the advice he had given Boswell before the duel. Lord Pitmilly was a friend of the pannel and he left the court before the trial ended. The judges were accompanied on the bench by distinguished lay observers including Prince Czartoriski from Poland, a Whig peer Lord Belhaven and the Honourable Henry Fox, the nephew of Charles James Fox. A vestige of this practice of having dignitaries on the bench lingered on into modern times at the beginning of High Court circuits held in Inverness.
The Crown team was led by the Lord Advocate and the Solicitor General. Perhaps these Tory Law Officers blushed when the newspaper which they had funded was sternly criticised by the Lord Justice Clerk during the trial. The prosecution team also included two Tory Advocate-Deputes Duncan M’Neill (later a Dean of the Faculty of Advocates) and Robert Dundas. Stuart had seven counsel, all Whigs, led by Francis Jeffrey and including Henry Cockburn. There was no dock. Stuart sat at the Bar of the court accompanied by a small posse of distinguished supporters including the Earl of Moray, a leading Scottish aristocrat. He was part of the defence in a very real sense.
The trial began with Stuart entering a plea of not guilty to the charge of murder. The next stage was something not seen in modern practice, an opening speech by the defence counsel Henry Cockburn before the jury was selected. Cockburn began by giving his reasons for making the speech. The first of these was to provide a statement of the facts to enable the Court “to judge on the bearing and relevancy of [Stuart’s] defences.” He was anticipating the possibility that the Court would rule out any parts of the defence which sought to get round the strict rule of law that killing someone in a duel is always murder. Cockburn’s second reason was an overture for the main piece. Counsel said that Stuart wanted his position set out at the beginning of the trial “because this is a proceeding which involves considerations to the party far dearer to him than his life.” It was a question of honour and Stuart wanted the world to know his position from the outset just in case the trial collapsed before he got his chance to explain himself. This sounds contrived. There was an obvious advantage in taking the first opportunity to put the case to the jury.
Cockburn then alluded briefly to the political undercurrents in the case promising not to delve into that any more than was strictly necessary. He deftly dealt with the tricky issue of speaking ill of the dead. He said of Boswell that he wished – “….we could pass through the business of the day, without casting even a shade of doubt on the memory of one whose unfortunate loss has occasioned this discussion. I am afraid that we cannot. But I trust that your Lordships will go along with me, and keep it always in remembrance, that, if we shall be obliged to charge that person with impropriety, we are most willing to ascribe it to indiscretion alone.” He went on to say that Boswell had a great gift for irony and that his conduct here could understandably be ascribed to the propensity all men have to exert the talents for which they are known. Writing about the case years later Cockburn was much less charitable about Boswell saying –“The fact of a person of his rank writing anonymous libels, for a blackguard newspaper, against an acquaintance, in a disguised hand, affords a humiliating example of the extent to which faction and bad taste may corrupt men even of bold temperament, and accustomed to the society of gentlemen” (Memorials p399). His last word on Boswell at the trial was a somewhat patronising observation that even the friends of the deceased must accept that the lustre of his memory could not be increased by concealing the full facts.
Cockburn then embarked on a line which sounds extraordinary to a modern reader but which must have seemed obvious to all concerned at the time. He described at length Stuart’s family connections including the fact that his father had nearly succeeded to the title of the Earl of Moray. Stuart’s father Charles had been a Presbyterian minister at Cramond Kirk but had left the established church to pursue a more eccentric calling. In a letter to a friend at the time of the trial Scott described the elder Stuart as a foolish old man who has spent his whole life in finding a north-west passage to heaven…All this argues a touch of madness, which, as they come of a very respectable family in Fife (where all the gentry are a little crazy), is not improbable.”
Cockburn then told the Court that the present Earl of Moray was right there in court supporting Stuart having – “chosen to forego the privileges of the peerage, which would have given him a place beside your Lordships, and with great manliness and good taste, has rather preferred to sit at the bar with his relative and his friend” – take a bow your Lordship. Next came an exaltation of Stuart’s impeccable character which, Cockburn assured the Court, would be vouched “by disinterested and spontaneous witnesses, — all tendering their services, from the ranks of his political adversaries.”
Cockburn then gave a detailed history of the two newspapers and of the published items which libelled Stuart. He spoke of how Stuart bore these attacks with patient courage and of how the Whig Song had an “edge” and a “lustre” thanks to the talents of its author. In a florid passage he said – “These arrows struck the mark for which they were intended, and they cleft that heart they were directed against, though the quiver from which they came had not been discovered.”
Cockburn then described how the author was exposed, the dealings between the seconds and of how Boswell’s refusal to apologise for making bad jokes made the duel inevitable. Of the duel itself he said only that “they fired together and Sir Alexander fell.” It could be taken for granted that the duel was conducted fairly by the character and the presence of the seconds. He finished what was undoubtedly an elegant speech by emphasising the great suffering occasioned to Stuart by Boswell’s slurs and by stating that, in fighting the duel, Stuart “acted under the operation of a great moral necessity, and that a verdict of Not Guilty is the result, which will give most satisfaction both to the law and to all reasonable men.”
The Solicitor-General declined an opportunity to reply to Cockburn’s speech save by saying – “the pannel is entitled to the favourable benefit of the able and eloquent statement which has just fallen from his counsel.”
At this point in the proceedings the jury was selected. There was no ballot. There were forty five prospective jurors in attendance and from this List of Assize the presiding judge selected the fifteen jurors. Of these eleven were landed gentlemen including Sir James Dalyell of Binns. The other four were (of course) men and were by occupation, a clothier, an ironmonger, a wine merchant and another merchant of unspecified wares. According to the Scotsman account of the trial “the jurors were almost to a man the political opponents of Mr Stuart and.. the party who had fallen was of some rank, and of some consequence to the side in power….” Perhaps the defence team were unnerved by the Lord Justice Clerk’s picks.
The Prosecution Case
The evidence followed a pattern familiar in modern practice with the Crown leading its evidence first and with some cross-examination of witnesses. The questioning was relatively brief by current standards and there were no acrimonious exchanges between counsel and witnesses. With one notable exception very little of the evidence was actually contentious at all. The two distinguished seconds spoke to the events leading up to and including the duel.
The contentious matter was whether Boswell was in fact the author of some or all of the libellous pieces. The evidence on this was all over the place. In cross-examination by Stuart’s senior counsel The Earl of Rosslyn offered the opinion that all the pieces, including the specimen letter signed by Boswell, were in the same handwriting although some attempt had been made to disguise the handwriting of the Whig Song. No one asked how he was able to reach that conclusion. The Crown led witnesses who said that the Whig Song was not written in Boswell’s hand. These included, his cousin Alexander Boswell and James Walker the tutor to his children. Defence counsel did not challenge this evidence in cross-examination. The Crown then led William Lizars, a well known engraver, who said that on first sight he thought that the libellous pieces were not written by Boswell but that on seeing them again with other specimens of Boswell’s handwriting he had changed his mind.
A key piece of evidence taken from the Earl of Rosslyn in cross-examination was that Stuart bore no ill-will or resentment against Boswell. Stuart, he said, acted out of “a deep sense of the unavoidable necessity of vindicating his own honour.” Senior counsel went to town on this line when he made his speech to the jury. The Crown made no attempt to question whether Stuart really had no option but to risk two lives in order to salvage his honour over a state of affairs for which he was not to blame. Whether, for example, Stuart could have let sleeping dogs lie in the Sentinel Office.
John Douglas was examined for the Crown by Boswell’s friend M’Neill. At one stage near the end of this Stuart’s senior Francis Jeffrey objected to a line of questioning. Before Jeffrey could explain his grounds of objection Stuart caused a stir when he intervened and addressed the Court directly saying –“My Lord, the more complete this investigation is, the more agreeable it will be to me and I have to request of my counsel not to object to any questions put by the Counsel of the Crown.” Jeffrey appeared flustered by this as any counsel in his position would be. He said, no doubt with as much dignity as he could muster, – “It is not in every case I would be disposed to yield to any such request on the part of a client, but here I am disposed to allow the fullest possible investigation.” This might have been a ploy on Stuart’s part to create a good impression with the jurors. It seems unlikely that Jeffrey was a party to it. On the contrary he may have taken umbrage. His junior John Cunninghame took on the cross-examination of Douglas moments later.
In that cross-examination Douglas said that Stuart’s conduct on the field was in every respect “consistent with that of a man of honour and courage.” Given that an unhelpful answer would have been hugely damaging counsel must have been very confident of getting this reply despite the fact that this was evidence from a crown witness from the Boswell camp. He would not have been the first (or last) counsel to damage his own case with an over ambitious question in cross-examination.
The Crown closed their case without trying to prove that Stuart was maliciously out to get Boswell before he got his hands on the libellous pieces from the Sentinel Office or that he acted dishonourably in any way before, during or after the duel. Their attempt to prove that Boswell was not the author of the offensive material was feeble.
The Defence Case
According to Cockburn writing a few years later – “If the prosecutors were really anxious for a conviction, their hopes vanished long before their own case was closed” (Memorials p396). If that really was his assessment when the defence case began it was not shared by his senior Francis Jeffrey who, judging by his exhaustive presentation, thought that his client remained in serious jeopardy throughout the trial.
The law then in force did not allow Stuart to give evidence on his own behalf. The defence opened their case with two witnesses who gave unchallenged evidence that Stuart was astonished to discover that Boswell was the libeller and that he had not suspected this before he got his hands on the Sentinel papers. The Crown did not challenge that evidence. One of these witnesses was James Gibson. He said that in the afternoon of the day on which the duel occurred Stuart arrived back in Edinburgh and met with Gibson. Stuart was very upset about the plight of Boswell. Stuart told him that he had not taken aim and that he wished he had as he would have been certain to miss because he had never fired a pistol on foot before. No mention was made of the obvious risk that he might well have been shot himself while in the act of taking aim. According to Gibson he advised Stuart to leave the country. Stuart refused to do so at first out of concern for Boswell. No one asked what good he thought he could do for his opponent at that stage by remaining in Scotland. He eventually agreed to go to France on condition that Mr Gibson gave notice of Stuart’s willingness to stand trial.
Another friend of Stuart’s called Thomas Allan gave evidence as a defence witness about breaking the news of Boswell’s death to Stuart in France. Stuart was very upset. Allan consoled Stuart by telling him to remember that the duel had been forced upon him. Stuart replied “but remember his poor wife and family.” Another noble sentiment which Stuart’s counsel must have thought would go down well with the jury. Then there were more witnesses to the fact that the libellous writings were in Boswell’s hand. His Bank Manager, a Mr Gairdner, echoed the Earl’s evidence by opining that the manuscript of the Whig Song was partly disguised by the deceased.
The final chapter of evidence for the defence came from a raft of Tory gentlemen who gave character evidence for Stuart. Dr Robertson Barclay said that Stuart was well tempered, not quarrelsome. Mr Erskine of Cardross, who had been sitting at the bar of the court with Stuart’s team, said that the pannel was mild and gentle and that “there was more of the milk of human kindness in him than any person I ever met with.” Other witnesses described Stuart as remarkably good tempered, as honourable and not disputatious. None of this evidence was challenged by the Crown. No one mentioned Stuart’s violent public attack on Stevenson in Parliament Square not long before the fatal duel.
The defence closed their case with Cockburn reading to the jury the libellous material including the offending verses of the Whig Song which he (presumptively) declared to have been “proved to be in the handwriting of Sir Alexander Boswell.”
Closing Speech by the Lord Advocate
The Lord Advocate began by promising the jury a short speech. He was as good as his word. The opening part was an exercise in self-justification. He trusted that the jury would agree that he could not be criticised for bringing the prosecution because when any death occurs by violence, however “low in society” the deceased might be, there should be a trial. In this case a trial was – “eminently required, where an individual has suffered, it certainly must be admitted, by illegal violence, where that individual was in the prime of life, the father of a numerous family, a zealous and active magistrate, a Vice- Lieutenant of a considerable county, a person gifted with talents and qualities alike useful to society, and to endear him to the circle of his private acquaintance.” Bringing the case was the right thing to do for the deceased’s suffering family and for the accused who should be convicted if he is guilty and should get the benefit of an acquittal if he is not. Unsurprisingly the Lord Advocate said nothing about the Beacon or the Sentinel. He did not mention the libellous material, the events leading up to the duel or the duel itself. He made no criticisms of Stuart’s conduct at any stage of the affair.
The Lord Advocate then dealt with the crux of the case. He said that on any view of the law the charge had been “proved most distinctly” by the undisputed evidence that the duel took place and that Stuart fired a loaded pistol at Boswell. He said there was no defence to the charge and he stated “without fear of contradiction from my Learned Friend” that, as a matter of law, shooting some-one in a duel cannot be self-defence. He said that the jury were not entitled to consider the circumstances giving rise to the duel or to proceed as “a not so much a court of law as a court of honour.” The Lord Advocate was, of course, correct about this but it seems clear that he thought that the jury would be permitted to look beyond the letter of the law. He ended his speech by saying (again) that he had done his job by laying all the relevant evidence before the jury and he added – “I heard with much satisfaction the statement which was made in defence, and all the evidence which has been brought forward in support of it. These are now before you, and you will judge of them without my entering into the circumstances with which they are connected…… I leave the case with you, under the directions which you will receive from the Bench, to aid you in forming your opinion of the evidence produced….. I am sure your verdict will be satisfactory to the country and to your own consciences.” The Lord Advocate was leaving it to the Lord Justice Clerk to tell the jury whether they had to apply the strict law. He did not even attempt to run an argument that the pannel should be convicted in a court of honour if it came to that.
Francis Jeffrey’s Speech
This was as long as the Lord Advocates’ was brief. Given that it started in the early hours of the morning it must have felt like a long three hours for the jury to endure. Jeffrey began by agreeing that the Crown were correct to bring the prosecution to enable the full truth to reach the public domain. He then, with a cockiness that might not have appealed to all the jurors, predicted that it would not be difficult to induce the jury to deliver Stuart from the danger of a conviction.
Jeffrey then majored on the absence of malice or wickedness on the part of Stuart saying – “though, unluckily, his hand was the instrument of Sir Alexander Boswell’s death, he did not kill him wickedly and maliciously ; that his mind was pure from every spark of malignity, vindictiveness, or rancour ; that he acted in this matter from motives totally unconnected with personal animosity ; and that he ought now to be considered, not as having committed a great crime, but as having fallen under a great calamity.” There were three strands to this. The first was to counter the Crown’s over-zealous allegations in the indictment about Stuart scheming to kill Boswell. The defence line was that since the Crown had failed to prove this that was an end of the matter. The second was that there could be no crime if there was no malicious intent. That was correct as far as it went but, as with the first strand, it ducked the central issue of whether malice should, in accordance with the letter of the law, simply be inferred from the mere act of shooting at an opponent in a duel. The third strand was to pave the way for a defence in the court of honour if the Court (the judges) would permit this.
At this point Jeffrey set out to persuade the judges and the jury that the full defence centred on Stuart’s conduct and character was “admissible.” He made the startling submission that, although duelling may appear to be an “evil practice…..imperfect, unequal and immoral…..in point of historical fact it has come as a corrective to greater immoralities and a preventive of greater crimes…” How so? – because it had “superseded the guilt and atrocity of private assassination.” Counsel then went into orbit on this saying – “that to this practice…..we are not only indebted for the polish and refinement that belong to the members of our upper society, but for, — what is a great deal more valuable, — not only the high and general esteem in which courage and intrepidity are held, — but also for the universal diffusion of fairness, manliness, forbearance, and handsome conduct among all the Gentlemen of the land.” To the modern reader this is pompous guff with a dollop of snobbery mixed in. Maybe it was entirely acceptable to his audience of peers although Cockburn, writing about the trial a few years later, described duelling as “an absurd and shocking remedy for private insult” (Memorials p396). As Jeffrey acknowledged in other parts of his speech there was in that age, as Alison had said, widespread abhorrence of the practice centred on strong political and moral objections to it. We should, however, credit Jeffrey with a keen sense of what would go down well with this jury.
Jeffrey then employed another line still present in the populist playbook by saying that in countries where there is no practice of duelling to settle disputes amongst gentlemen (he mentioned Spain, Portugal, and Italy) “assassinations are daily occurring, poisonings, stabbings, the basest and most cruel murders.” Tempering this, if only to the extent of assuring us that this could never happen in our country, Jeffrey said that if duelling was abolished here it would lead to private and secret meetings without witnesses or other safeguards to ensure fairness.
The next section of the speech contained detailed references to passages from the writings of “authors of the highest and strictest morality and of the deepest sense of religion” in support of his arguments that duelling was both legal and morally justifiable. These included Samuel Johnson, Professor Adam Ferguson and Lord Kames. On this and on other points Jeffrey’s eloquence outshone the quality of his arguments. Some of the passages he quoted were more nuanced than his headline argument which was that a gentleman who received an insult was morally obliged to demand satisfaction. Johnson made it clear that his personal wish was that this “superfluity of refinement” did not exist and Ferguson referred to it as “a caprice of manners in modern times.” Taking up a proposition touched on by Lord Kames, that a statutory ban on duelling is absurd law because it contradicts “honest principles,” Jeffrey developed a highly dubious argument that the statutory prohibition had been “abrogated by a contrary usage, and by that change of times and manners, which we know, in this country, can effectually wipe away all penal enactments, whether formally repealed or not.” Furthermore juries had consistently acquitted duellists despite the statutory prohibition and in the face of judicial directions that killing an opponent in a duel is murder. According to Jeffrey it was – “a proud and fortunate circumstance for this country, that such an institution as a jury should exist, with power occasionally to temper the severity of that law, which a court of another description would too inflexibly enforce ; and thus silently to abrogate statutes, or maxims of common law, that the course of the times, the progress of manners, the disappearance of some crimes, and the rise of others, may have rendered inapplicable and unnecessary.” Were the jury taken in by this, or bamboozled or did they simply switch off and fall back on the sum of their personal prejudices, their common sense. Later in the trial the Lord Justice Clerk directed the jury that – “as to what moral writers may have said of the advantages which may have arisen from this practice of duelling, this affords no safe ground of judgement.”
In modern times it is not unheard of for defence counsel to take some liberties with the facts but not to the extent which Jeffrey did in this case. Duelling had been illegal since at least the early seventeenth century and by 1822 the numbers of duels in Scotland had decreased. One might reasonably contend that the law had had some deterrent effect. Jeffrey turned this on its head. Without any evidential support for this he said – “I believe it is mentioned somewhere, that, in the short reign of Henry IV of France [1589 to 1610], no fewer than 4000 gentlemen were slain in duels ; and it is quite well known, that, during the sixteenth and seventeenth centuries, the same practice prevailed to an intolerable excess in these islands.” Times had changed by 1822. He quoted statistics about the prevalence of duels during the reign of George III (1760 to 1820) in Great Britain and Ireland taken from “a book perhaps of no great authority.” The figures quoted were about 170 duels resulting in 60 to 70 deaths leading to about 20 trials for murder and 2 or 3 capital convictions. According to him there had been very few Scottish cases and none within the last 150 years had resulted in a conviction. He added (without any evidential basis) that duels were, by 1822, confined to honourable contests between gentlemen. The law had achieved its purpose. Having arrived at that state of affairs, Jeffrey argued, it was proper that these cases should always be prosecuted leaving it to the accused to prove circumstances which make his case an exception to the general rule. In a case where the killing was not malicious and where the accused had behaved honourably a conviction would be “the most extreme of all absurdities.”
Jeffrey then lifted the code of honour to dizzying heights in submissions about the need for a gentleman to defend his good name. According to him if Stuart had not challenged Boswell to a duel he would have been placed in a position of – “living as an outcast from society — of being exposed to all manner of insults and contumelies — of being excluded from all honourable pursuits and professions — shrunk from by [his] ancient friends—the cause of blushing to [his] relations, and sorrow to [his] children-—the stain of an honourable name, and a hopeless outcast, and exile from society — without hope, means, or chance of restoration.” It was monstrous to suggest that he was guilty of murder. It was a matter of self-defence. This is where his argument crashed into the law because Hume had made it abundantly clear that it was no such thing. Jeffrey knew that and was happy to blur the distinction between what the law actually was and what he thought it should be. He was aiming at two possible outcomes. Either that the Lord Justice Clerk would leave the door open to this defence or that the jury would disregard any direction from the bench which sought to close it down.
To keep his defence within manageable limits Jeffrey made a concession which the circumstances of this case conveniently allowed. The defence has two necessary ingredients. First, that the duel was fairly fought and second that it was fought for an honourable reason. He sought to illustrate this by an exhaustive survey of recent duelling cases in England and Scotland. At one point deep into Jeffrey’s speech a rumour circulated outside the Court that a verdict of acquittal had been returned. Jeffrey was drowned out by loud shouting from Stuart’s supporters. Perhaps one of the weary court officials was the source of this rumour. If he was, his relief was short lived and proceedings resumed once order had been restored.
Jeffrey dealt with one of Hume’s three recent cases at some length. In 1798 Major Macdonell of Glengarry was acquitted of the murder of a fellow officer Lieutenant M’Leod despite being “egregiously to blame in the origins of the quarrel.” Glengarry picked a quarrel with M’Leod over an imagined insult at a regimental ball and supper. He then indulged in “unpardonable excesses” by striking and kicking the young man. In fact this case undermined Jeffrey’s own point about the defence being confined to cases in which the duel was fought for an honourable reason. There was nothing honourable about Glengarry’s behaviour. It illustrated the difficulty of departing from the strict rule and leaving it to the jury to apply their own variable judgement of what was criminal.
The grand finale of Jeffrey’s speech reiterated at considerable length his main theme that Stuart acted out of necessity. Seemingly confident that he was on the same wavelength as his audience he said – “ I trust, therefore, you will not find him guilty, for doing that which, in his circumstances, you must feel that every one of you would have done ; that which you must in your hearts wish that the best and dearest friend you have in similar circumstances should do.” It would have been unsurprising if he had added that Boswell himself would have voted for acquittal had he been on the jury.
The Lord Justice Clerk’s Charge to the Jury
This opened with His Lordship referring to Stuart as “the unfortunate gentleman at the bar.” Only the most optimistic prosecutor would have taken that to mean that a misfortune was about to be visited on the pannel by the judge. Turning to the law his Lordship wound the clock back to the influential jurist Sir George Mackenzie who, in 1678, described fatal duels as “illustrious and honourable murders” adding that he wished this was not the case because “honour persuades men that obedience is cowardice.” (Mackenzie’s Criminal Institutes Title XII p72). Next he returned to the passages in Hume which made it clear that self-defence is not available in these cases “whatever may have been the history of the quarrel, and though the deceased may have fallen victim to his own insolence and indiscretion.” The judge then referred to the most recent edition of Hume in which the learned author included references to the three recent cases cited by Jeffrey (including Glengarry) which resulted in acquittals. The Lord Justice Clerk pointed out that Hume had adhered to his strict view of the law despite having these recent cases distinctly in view.
Had his Lordship left it there Stuart might have been in deep trouble but the judge then embarked on a line which was much more favourable to the defence. He cited another influential author John Burnett who, writing in 1811, followed the same line as Hume on this but with an all important addition. Having described the general principle excluding self-defence and having mentioned the same three recent cases Burnett went on to say – “ Notwithstanding of this, it may be difficult for a jury to lay out of view altogether, in a case of homicide in a duel brought to trial at common law, the circumstance on which side the original aggression lay, or the nature of the antecedent provocation……..without regard to who was the immediate challenger thereby making allowance so far for the notions of honour which usage and custom have sanctioned” (emphasis added Burnett’s Criminal Law Cap 1 p47).
Modern lawyers would find it impossible to conclude that a handful of verdicts returned in contradiction, arguably in defiance, of settled law was a sound basis for permitting juries to follow the same course in all subsequent cases. Furthermore, in the Glengarry case the jury had given a written explanation of their verdict stating that Glengarry had narrowly saved his own neck by making a belated offer to apologise shortly before the duel. They also stated that – “ it was proper to observe, that the jury had no idea of finding, by their verdict, that what is called fairly killing a man in a duel, could afford, by itself, any defence against a charge of murder.” That case could not sensibly be taken as sanctioning a practice of the sort described by Burnett. Nevertheless, his Lordship in Stuart’s case told the jurors that he had quoted this material to them “as showing the course of modern practice on this subject.” He could not bring himself to say that they must apply the strict rule in Hume or that they were entitled to disregard it. The direction quoting Burnett’s dubious proposition that recent acquittals somehow sanctioned a departure from the strict rule gave the jurors a licence to return a verdict based on their notions of honour.
The Lord Justice Clerk then turned to the circumstances of this case and gave a series of directions which were highly favourable to the defence. First, he criticised the part of the Indictment which alleged that Stuart had conceived a plan to challenge Boswell before he had obtained the Sentinel papers pointing out that the Lord Advocate had abandoned this by the time he made his speech to the jury. Second, the judge told the jury that the defence had proved that Stuart had no prior knowledge of Boswell’s involvement before he obtained those papers. Third, his Lordship turned to the evidence about the duel itself beginning with a ringing endorsement of the Earl of Rosslyn’s evidence – “Generally speaking, the evidence has been given in a very distinct manner ; and I would, in particular, say, that the evidence of the Noble Lord, one of the seconds, was given in the most correct manner I almost ever heard.” No place here for the cardinal principle of modern criminal trials that the jurors are the sole judges of fact.
Then came a series of directions which must have been music to the pannel’s ears. The Sentinel pieces were “offensive articles of the most aggravated nature” and gave the “unfortunate gentleman at the bar ” good cause to complain. Were gentlemen of that age, the judge included, really so precious about their reputations? Or was it simply necessary for his Lordship to reassure the like-minded jurors that there was a just cause of sorts for challenging Boswell to a duel. Next, his Lordship told the jury without the necessity of them applying their own minds to it that there was nothing improper in the manner in which Stuart had obtained the Sentinel papers. Likewise they were bound to be satisfied that Boswell was indeed the author of the libels because Boswell had never denied this and because (always a clincher) the Earl of Rosslyn said so.
His Lordship then endorsed the evidence of Stuart’s honourable behaviour repeating what Jeffrey had said about “the very becoming way” in which he had expressed grief about the death of Boswell and had expressed concern for his wife and children. His Lordship turned to Stuart’s general character saying that this must “necessarily weigh greatly” in determining whether Stuart had a malicious intent to kill. For the benefit of any jurors who slumbered through the evidence on this his Lordship said – “sure I am you will all agree with me when I state to you, that I never had occasion to witness a stronger, more perfect, and more entirely concurring body of evidence in favour of character, than the prisoner has this day exhibited. And it is another remarkable feature of the greater part of this evidence, that it has, with extreme good taste, been extracted from the mouths of gentlemen who happen to be politically opposed to the prisoner.” At this point the judge reached the high point of his pro-defence directions saying “with such a body of evidence as this, it is impossible to require higher testimony of the improbability of a crime such as that here libelled.”
Conscious, perhaps, that he had gone too far the Lord Justice Clerk then commented on the defence line that Stuart acted out of necessity. He said that this was – “a delicate and dangerous position to put the case upon ; for I apprehend the rule of law is quite clear in cases of this description, that no false punctilio or notion of honour can vindicate an act which terminates fatally to another fellow-creature.” It was nonetheless a consideration that they could take into account along with the other circumstances favourable to Stuart which he summarised again before telling the jury that these all gave them a case “well deserving of your most calm, deliberate, and dispassionate consideration.” The judge conspicuously avoided saying anything else about duelling. He did not mention the policy considerations underlying the legal prohibition as summarised by Alison. His Lordship must have been one of the many of his class who thought that duels were an acceptable form of alternative dispute resolution.
In the penultimate passage of his charge the judge reverted to his major themes and laid to rest any suggestion that the strict rule of law must be applied. He made it very clear what he would have done had he been a juror by saying – “You will consider the charge, the evidence for the charge, and the strong body of evidence which has been brought forward on the part of the prisoner. You will recollect that, as to the narrative part of the charge — that of malice in seeking a quarrel — it has been directly negatived ; and, with regard to anything like personal rancour, there is the strongest evidence that no such feeling entered into the mind of the prisoner. Considering, therefore, the circumstances in which he was placed — the strong necessity he felt himself under to vindicate himself—the deliberate way and manner in which he set about his vindication, not proceeding instantly himself, but sending to the Noble Lord, whom he employed as his friend, who told him that he had no other alternative but to act as he did — the total absence of all rancour — the great sorrow that he expressed on account of the fatal consequences of the meeting, and the uncommon body of testimony to the mildness of his character, — taking all these things into your consideration, you will consider whether you can, with propriety, pronounce him Not Guilty.”
The judge concluded his charge with a swipe at the Beacon and the Sentinel expressing a sentiment which has a contemporary ring – “It is one of the greatest misfortunes and evils of the present day that we have to witness the disgraceful licence of the periodical press.” To this he added an observation which enraged the widow of the deceased – “and I do lament, from the bottom of my heart, that the unfortunate gentleman deceased should have had any concern with writings of this description, — for it is impossible to shut your eyes against the evidence by which it is proved that Sir Alexander Boswell was engaged in these writings.”
The Verdict
At about 5 am the Jury conferred for a few minutes without retiring. Their Chancellor (Chairman) Sir John Hope then announced their verdict – “My Lord, The Jury unanimously find Mr Stuart Not Guilty.” No doubt the jurors regarded the case as clear cut but they may also have been anxious to avoid the risk of more wordy speeches or directions if they hesitated before reaching a verdict. The result was celebrated by the large crowd gathered in Parliament Square. Stuart evaded the supporters waiting there but they caught up with him in Thistle Street where he urged them to curb their celebrations.
According to Cockburn “Never was there such a triumph. Never were wretches so wretched as the Crown counsel that day! Never was calumny so put down.” (see Chalmers p104). Not for the last time the prosecutors in a case which resulted in acquittal were painted as the villains of the piece. Apart from the over aggressive indictment, crown counsel played with a relatively straight bat in the course of the trial. As Cockburn himself acknowledged they could not be faulted for bringing the case given the state of the law. Borthwick undoubtedly had cause for complaint about his harsh treatment. He was released without trial after Stuart was acquitted and the Lord Advocates’ conduct in prosecuting him was heavily criticised in Parliament. It may have cost him the customary reward for a retiring Lord Advocate, a seat on the Court of Session bench.
The case was widely reported in the press throughout the English speaking world. After the trial the Scotsman declared that the judge’s charge was – “admirable and judge-like in every respect…that it was admired by all who heard it – that it will receive the approbation of the country at large.” Not everyone agreed. Lady Boswell wrote a number of furious letters to Walter Scott attacking the Earl of Rosslyn (heaven forbid), Douglas, Cockburn and others. She railed against the Lord Justice Clerk for throwing obloquy on the conduct of her husband. She suggested publishing her grievances against him in a newspaper. She lamented that he would remain in office until the “Government removed him to a better place and the Almighty to another place.” Scott advised her not to go to the press or to intervene in the legal process. Lady Boswell was still writing letters to the Lord Advocate two years after the trial challenging the fact that her late husband was the author of the libellous pieces.
Having lavished praise on the judge and the jury for being “pure and impartial” the Scotsman, with a Napoleonic flourish, asked – Had the presiding judge been disposed to select a jury of shopkeepers for the purpose of influencing them by a charge of a very opposite description what might have been the consequence to Mr Stuart – what the disappointment to the country.” This was the newspaper lending gentle support to a Whig campaign to end what Cockburn referred to as the “abhorrent practice” of the judge selecting the jurors.
The Scotsman excoriated the Lord Advocate, “his minions” and the other Tory politicians for their involvement with the Beacon and the Sentinel describing them as “a knot of place hunting ultras of Edinburgh.” It posed the question – “Is the Government of this part of the country still to be entrusted to those who have openly patronised the base and lurking assassins of reputation and character?”
As for Stuart, having preserved his precious reputation by killing Boswell, he trashed it six years later when he was sequestrated for debt and fled the country in disgrace to avoid his creditors. These included the Widow’s Fund of the Writer’s to the Signet Society. Stuart had held the post of Collector of the Fund and had secretly borrowed from it a sum with a present day value of about £400,000 applying the money to his own use. This was, of course, a gross breach of his fiduciary duty to the Fund. Other persons who were near relations and clients of Stuart suffered large losses at his expense. History does not record whether the Earl of Rosslyn was one of them.
Read me my Rights 