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Decisions of the Superior Courts of New South Wales, 1788-1899

Ex parte Lettsom [1840] NSWSupC 65

duelling, criminal procedure, Australian Club

Supreme Court of New South Wales

Stephen and Willis JJ., 2 June 1840

Source: Sydney Herald, 3 June 1840[1]

In the case exparte Letsome in which a rule had been obtained during last term calling on the defendant to show cause why a criminal information should not be filed against him, for endeavouring to provoke the plaintiff to fight a duel, Mr. A'Beckett stated that he appeared to show cause against the rule, on which Mr. Justice Willis stated that the best cause that could be shown would be for them to meet over a beef-steak and a bottle of wine with a few friends, and each party to pay his own expenses.  The Attorney-General requested that the case might be postponed till Saturday and in the mean time perhaps something might be done to effect a compromise.  Mr. A'Beckett for the defendant, Mr. Boyd said, as he was ready to show cause why the rule should be discharged, and Mr. Darvell on the same side urged that the Court should in mercy to his client discharge the rule, who had been already subjected for three months to the charge which he was prepared to disapprove.  The Attorney-General for the plaintiff contended that until the affidavits by the defendant had been filed he was not in a condition to go on with the case besides he was anxious that the argument should be heard before a full Court.  Mr. Justice Willis stated that he thought the case was one in which the mutual friends of both the parties ought to interfere in order to keep the matter out of Court as from the highly respectable station in which each of them moved, the one being an officer of the Queen's service and the other a member of the bar, it could not but subject the Court to a most unpleasant task if the case was gone into.  The Attorney-General insisted as a matter of right he was entitled to copies of the affidavits, while Mr. A'Beckett said as a matter of courtesy he had no objection to give the affidavit, but he denied the right.  The case was then postponed till Saturday.

Dowling C.J., Willis and Stephen JJ, in Banco, 6 June 1840

Source: Sydney Herald, 8 June 1840[2]

Ex-parte Lettsom. - In this case the rule nisi for a criminal information against Archibald Boyd, Esq., for endeavouring to excite the prosecutor to fight a duel, was made absolute.  Their Honors, at the same time, expressing a hope, that after the mutual explanations which had been given for the parties by their respective counsel, the parties would not proceed farther in the case, but settle the matter without again coming into court, and in order to second their Honor's recommendation, we refrain from publishing any report of the observations made by the counsel of either party.

Dowling C.J., 24 October 1840

Source: Australian, 29 October 1840[3]

            SATURDAY - Before his Honor the Chief Justice and a Special Jury.

The Queen on the prosecution of Lettsom against Boyd - This was a criminal information filed against Archibald Boyd, Esq., of New England, by the Attorney General, at the instance of Major Samuel Lettsom, of her Majesty's 80th regiment, a magistrate of the territory, and in command of a detachment stationed in Maitland, charging the defendant with wickedly, maliciously, and illegally sending the prosecutor a challenge to fight a duel on the 7th of March last, "against the peace of our Sovereign Lady the Queen, her Crown and dignity." To which the defendant pleaded Not Guilty.

It appeared in evidence that previous to the 5th of last March the defendant was quite unknown to the prosecutor; on that day as he was riding in company with a gentleman named Garrard through Maitland, they were met by the defendant, with whom Mr. Garrard stopped to speak, the prosecutor having pulled up his horse and waited at a little distance until joined by Mr. Garrard; when the defendant was going away he turned round and addressing the prosecutor, said "Sir, you look at me very hard." The prosecutor replied "that he was not aware that he had looked at him hard." Defendant replied "yes, you do, and I wont be looked at." Prosecutor replied "I can look at any body I like. I don't care a d__n who looks at me in the Colony, I can look at any body in the face, and if you don't like to be looked at you had better lock yourself up;" after this the parties separated. This conversation took place opposite Cox's hotel. In about an hour and a half afterwards the prosecutor passed the defendant who had stopped to talk to some person in a carriage on the road to West Maitland. On the following morning the prosecutor was waited upon at his quarters at the stockade, by a Mr. Maclean, as the friend of the defendant, who informed him that he came to demand an apology from him for his rude behaviour to the defendant on the previous day in Maitland. The prosecutor said he did not consider he hade done anything that required an apology and he certainly should not make one. Mr. Maclean then said the only alternative was to meet Mr. Boyd, and requested him to appoint the time and place, and to name his friend. The prosecutor then replied "that he would neither apologise nor fight Mr. Boyd, neither would he have anything to do with him, for as he had nothing to apologise for, he had nothing to fight for, but he expected Mr. Sayers shortly from Newcastle (whither he had gone on duty that morning) and he would speak to him on the subject." On the following day, which was the 7th. The day charged in the information, defendant sent a letter to the prosecutor expressing surprise that he had heard nothing from him although he had waited for Mr. Sayers and intimating that if he heard nothing from him after waiting one half hour more, he would feel himself under the disagreeable necessity of posting the prosecutor at his Club at Sydney, and at Cox's and Cohen's Inns at Maitland, as a coward and no gentleman. Agreeably to this intimation the defendant put the following placard on the mantel piece of the public room at Cox's hotel in Maitland:

"I, Archibald Boyd, of the Australian Club of Sydney, and of New England, post and declare Major Lettsom of Her Majesty's 80th Regiment, and in command of a detachment at Maitland, as a coward, and no gentleman."

At this time the prosecutor was performing the duties of police magistrate, at the request of Mr. Grant, during his temporary absence. Mr. Percy Simpson, the Police Magistrate, of Patrick's Plains, happening to be at Cox's Hotel, when the defendant and his friend put up the placard, immediately caused it to be removed and bound the defendant over to keep the peace. He did not think it necessary to bind over the prosecutor, he having declared it to be far from his intention to commit any breach of the peace in consequence of the placard alluded to.

Major Lettsom and Mr. Percy Simpson were called to prove the foregoing facts; and Mr. Matthew Dysert Hunter, merchant of Sydney, to prove the handwriting of the defendant, which closed the case for the prosecution.

Mr. A'Beckett addressed the Jury in a lengthy and eloquent speech for the defence, but he declined calling any witnesses. He impressed upon them that the defendant came before them in every respect as the equal of the prosecutor, as regarded respectability of character, connections, and standing in society as a gentleman, and adverted in strong terms of reprobation to the unfair advantage sought over his client by the defendant having recourse to a criminal prosecution, whereby he was precluded from adducing testimony in his defence or justification; for the law regarded things of this nature in a different light to that sanctioned by the conventional laws of society. He said the prosecutor, who would seem to be keenly alive to the nice feelings of honour and gentlemanly sensibility displayed nothing of it either at the time he insulted the defendant, or in his subsequent mode of conducting the prosecution. He then commented upon the evidence, and particularly dwelt upon the admission made by Major Lettsom on his examination, that being near sighted, he might have looked sharply at the defendant, having mistaken him for Mr. Sempill (a gentleman with whom he was acquainted), and the coarse and insulting language of his address to he defendant, which he expounded as follows:- "I don't care a d__n who looks at me;" here was language from a gentleman and an officer of Major Lettsom's high rank in her Majesty's service to use - as much as to say, "you do care who looks at you:" "I can look any man in the colony in the face," from which it might be inferred that his client could not, that he was ashamed to do so from some cause or other, or that (as they had all had ocular demonstration from the Major's appearance in the box that day, that he was a very handsome man) in personal advantages he was so greatly inferior, that he ought to "lock himself up" from public observation. He concluded by an appeal to the feelings of the Jury as regarded the laws of honor, and the conduct which they would naturally be induced to pursue under similar provocation, and impressed upon them, that by the repeal of a certain law relating to libel, which deprived juries of the privilege of giving their opinion on the law of such cases, they were now entitled to consider the whole case, and give their opinion thereon- both as regarded the law and the evidence - without being influenced by any thing which the Court might tell them to the contrary. They would also recollect that the posting, charged in the information as the incitement to fight, was not so, but the consequences of the prosecutor's refusing to fight.

When Mr. A'Beckett had concluded his address; the Attorney General rose and claimed his right of reply, as is usual in all criminal prosecutions. Mr. A'Beckett opposed the claim in cases of private prosecutions like the present.

The Chief Justice said he thought the Attorney General had better nor urge the privilege in this case.

The Attorney General replied that Mr. A'Beckett had indulged in such strong terms of animadversion on the conduct of his client, that he certainly claimed the right, if his Honor would allow him to reply.

The Chief Justice said, that he himself had, in his opening the proceedings, used some very strong expressions against Mr. Maclean, who was an absent party, and he would not sit there and allow any one, not legitimately before the Court, to be abused behind their backs.

The Attorney General replied (with some warmth), that in the discharge of his public duties he would never fail to drag parties forward before the public who had conducted themselves as Mr. Maclean had.

Mr. A'Beckett asked the Attorney General whether he was then acting in his public capacity, or as a private advocate, and in which character he claimed the right of reply.

The Attorney General replied, as private advocate, and no other. Would his Honor permit him to proceed?

The Chief Justice said he would yield him his right if he claimed it; but he did not think he would be exercising a sound discretion in doing so in the present case.

The Attorney General then bowed acquiescence and sat down.

The Chief Justice then charged the jury that although they had been told by Counsel that they were not to be influenced by what the judges might say he must remind them that the judges in this country exercised part of the functions of a grand jury at home, and they would not sanction the prosecution of a party unless they considered there were good grounds to found one upon. Their judgments, minds or consciences, were not to be fettered by the opinion of judges he would therefore leave them to their own unbiassed judgment. But they ought to bear in mind that that was not a court of honor but a court of law, and the only question for them to decide was whether the defendant had been guilty or not of a breach of the law; and in arriving at their decision they were not to be guided by any opinions which might be entertained out of doors regarding a barbarous practice which custom might have sanctioned. The question for them to try was whether the defendant had been guilty of an offence against the criminal law of the land. It was laid down as an offence to write a letter to a person inciting him to fight a duel; no matter how great the provocation might be, and it was not competent to a principal to redress his own wrongs. With motives or inducements they had nothing to do in a court of justice. The question was had the case been made out to their satisfaction, and if any mitigating circumstances were to be taken into consideration, the judges, in another stage of the proceedings, would exercise a sound discretion in considering them. In a court of law, he was bound to say, that the prosecutor deserved public commendation and thanks for instituting the proceedings both as an officer in Her Majesty's service, whose life is not his own but at the disposal of Her Majesty, and (especially) as a magistrate who is a conservator of the public peace, and bound to preserve it rather than break it in resisting this hostile invitation conveyed in the letter which they had in evidence (here his Honor read the letter and the placard). It would, perhaps, be convenient for him to read in that place the law relating to transactions of this kind, which were not to be tolerated in civilised societies (his Honor then read the judgment of an eminent judge in the celebrated case of King v. Peirce severely censuring the provocation given by the prosecutor in that case, and strongly commenting upon the awful consequences of duelling). His Honor continued: sending a letter was an offence, no matter whether the party challenged was the aggressor or not (his Honor then read over the evidence and commented thereon as he proceeded). The only question for this jury to consider was whether the defendant was guilty or not guilty; and whatever had been urged by Counsel would, he hoped, be taken into consideration by the jury in such a manner as not to disgrace either party.

The jury retired for about half an hour and returned with the following verdict - Guilty, "under circumstances of great provocation, irritating conduct, and coarse language of the prosecutor."

The Attorney General submitted that the expression of the opinion of jury was no part of the record and ought not to be taken down. If they had any recommendation to make, the court would afterwards attend to it.

Mr. A'Beckett said that Mr. Justice Burton did not repudiate receiving such a verdict from a jury.

Mr. Darval (on the same side with Mr. A'Beckett) submitted that the verdict ought to be recorded as given in by the jury, as the effect of their recommendation would be afterwards shown.

The Chief Justice told the jury if they had any recommendation to make, and they would state their grounds for making it he would take it down for after consideration.

Colonel Wilson (as foreman of the jury) replied that they felt bound by law to find the defendant guilty, but they recommended him to the mercy of the Court upon the grounds they had stated.

His Honor then took a note of the recommendation, and the next case was called on.

Counsel for the prosecution, the Attorney General, and Messrs. Foster and Cheeke; for the defence, Messrs. A'Beckett and Darval.

Notes

[1]              See also Australian, 4 June 1840.

[2]              See also Australian, 9 June 1840.

[3]              See also Sydney Herald, 27 October 1840.

 

Published by the Division of Law, Macquarie University