[duelling - gentlemanly conduct - criminal procedure - Grand Jury, Supreme Court acting as - mens rea - jury, judges of law and fact]

R. v. Boyd

Supreme Court of New South Wales

Dowling C.J., 24 October 1840

Source: Sydney Herald, 27 October 1840

Before the Chief Justice and a Special Jury.

            The Queen on the Prosecution of Lettsom v. Boyd. - The prosecutor in this case was Major Lettsom, of the 80th regiment, a magistrate of the territory, and superintendent of the stockades and iron gangs, at Maitland, and the defendant Archibald Boyd, Esq., barrister-a[t]-law, resident at New England.

            This was a criminal information granted during last term on an application by the prosecutor against the defendant, on an affidavit by the prosecutor charging the defendant with endeavouring to incite him (Major Lettsom) to fight a duel.

            After the information had been read, the Attorney General addressed the Court at considerable length.  He commenced by giving an outline of the case, and stated that, in order to get a meeting with the prosecutor, the defendant had sought out a Mr. McLean, who it appeared had earned a reputation as a fighting gentleman like the celebrated Sir Lucius O’Trigger, whom he deputed to act as his friend, and who he was sorry had not been included in the same information with the defendant, as he was in his opinion, as well as in the eye of the law, even more guilty than the defendant.  He was not aware of what were the laws of honour, but however refined or absurd they might be, he certainly never heard of any place in the civilized world, where they were carried to the extent of requiring their misguided votaries to go out and fight for nothing: in fact, the greatest extent ever he had heard of their being carried out to was in a certain country well known to the foreman of the jury, (Colonel Wilson), where the people fight for love.  The respectability of the defendant was evident from his being a member of the Australian Club of Sydney, but still he was not to be screened by his respectability and standing in society, from the effects of his indiscretion, or want of obedience to the laws; on the contrary, his rank was rather an aggravation of the offence than otherwise.  He was not opposed to clubs - he highly approved of them, and of their general modes of proceeding, but he could not approve of their being made the means of causing breaches of the peace, nor did he think that when they were employed for posting parties in order to make them go out, that they were promoting the morality of the community, but he felt convinced that such was not the design of the club which the defendant belonged to.  With respect to the laws of honor, they had not been instituted to cause bloodshed and murder, but on the contrary, their intention was to keep society together, to promote good will and peace in the community, at the same time they were employed as a means of preserving and extending the practices and usages of respectable society.  He also stated that although the Queen’s name had been introduced into the present case, yet she had no more to do with it than with other civil cause, and if Her Majesty’s Attorney General appeared in it, he did not come before them in his public capacity but in his private character as a Barrister of the Court, and as the advocate of the complaining party, who had exercised his discretion, and made his election, as he was entitled to do, of throwing himself on the laws of his country, rather than that of proceeding by an action to recover damages for the injury which he had sustained, and which was of a very serious description, as it was not only a direct attempt to deprive him of his rank as a gentleman, but also proclaimed him as being an unfit and improper person to hold Her Majesty’s Commission as an Officer of the Army, which had for its object the protection of the British Empire, and whose glory was the bravery and courage which every officer in the service  must possess, or resign his commission.  He concluded by reading the law which applied to the case, and stated that he felt confident the jury would conscientiously return such a verdict as would check the illegal practice of duelling, and at the same time prove salutary to the defendant.

From the evidence of the prosecutor it appeared that on the 5th of March he was riding, in company with a Mr. Garrard, nearly opposite Cox’s Hotel, in Maitland, when the defendant met them, and stopped to have some conversation with Mr. Garrard, on which the prosecutor pulled up his horse and looked at the defendant, thinking that he was Mr. Sempill, with whom the prosecutor was slightly acquainted.  When Mr. Garrard and the defendant had done speaking, the defendant instantly said to the prosecutor, “Sir, you are looking very hard at me;” the prosecutor replied, “I do not think I do.”  When the defendant said, “Yes, you are, and I won’t be looked at in such a way.”  The prosecutor then said, “I do not care a d___ who looks at me; if you do not like to be looked at, you had better lock yourself up.”  He afterwards passed the defendant on the same day, and in passing might have turned his face towards him, but did not do so for the purpose of annoying him; he also deposed, that the reason why he had mistaken the defendant for Mr. Sempill was, that he was somewhat short sighted, which caused him to look harder at objects than people whose eyes are not so affected; but, at the same time, he was not conscious of having looked at him harder than he usually looks at people - he also had no recollection of having ever seen the defendant before, nor did he then know who he was.  On the morning following, about eight o’clock, Mr. McLean came to the prosecutor’s quarters at the stockade, and stated that he waited on him from Mr. Boyd (the defendant) to receive an apology for the rudeness offered him on the peceding day.  The apology was refused, and the prosecutor before anything was spoken about “going out,” told Mr. McLean that he would not go out with the defendant, as he had not given him any offence.  Mr. McLean then enquired who would be the witness’ friend, in order that he might communicate with him, when the witness named Lieutenant Sayers, who, he thought was at the time sitting reading in the adjoining room, and went to communicate with him, but found he had set off early that morning for Newcastle, but was to return in the course of the day.  Mr. McLean then left the stockade, and on the following he received the subjoined letter:-

Maitland, Saturday, March 7, 1840.

Sir, - I was a good deal surprised to hear from my friend Mr. McLean yesterday morning, that you refused either to apologise to me for the insulting conduct I received from yon[sic] or go out with me; as however, you referred Mr. McLean to Mr. Sayers, as your friend, and stated that that gentleman had gone down to Newcastle, and would probably return by one o’clock yesterday afternoon, I waited patiently for his appearance.  Twenty-four hours have now elapsed, and, as Mr. McLean has heard nothing of him, or from him, I have to conclude that he is still absent.  Any further delay is, of course, out of the question, but Mr. McLean and I will wait here one half hour more, in the hopes of seeing some friend on your behalf, or hearing something definite.  If in that time we receive no communication from you, we shall take it for granted that you still adhere to your original intention, expressed to Mr. McLean, of neither apologising to nor going out with me, and will feel myself under the disagreeable necessity of posting you at my club at Sydney, and at Cohen’s and Cox’s Inns, here. - I have the honor to be, Sir, your obedient servant,

                                                                        (Signed)                       A. BOYD.

            It did not appear that any notice was taken of this letter and Percy Simpson, Esquire, P.M., proved that the posting had taken place at Cox’s Hotel on the same day that the letter was dated in consequence of which, he being a magistrate took immediate steps to preserve the peace, and bound over the defendant, and would also have bound over Major Lettsom, but refrained from doing so, as he had assured him that he was determined not to have an hostile meeting with the defendant, as he had given him no offence.  The Attorney-General stated that he would not call any more witnesses.

            Mr. a’Beckett applied to the Court in order to know whether it was not imperative on the prosecutor to call all the witnesses whose names he had furnished to the defendant.  The Attorney-General stated, that the witnesses’ names had been placed on the information, in fairness to the defendant, and they were in attendance, in order that should he require them, he might avail himself of their evidence, but that to save the time of the Court, he declined calling them.  The Court held, that it was not imperative on [the prosecutor to call more witnesses than he] thought would make out his case.

            Mr. a’Beckett commenced the defence by stating, that it was to be lamented that Major Lettsom should have thought proper to come into Court by a criminal information, when he could have obtained as satisfactory redress with compensation for his injuries by a civil action, as he could possibly expect to obtain by the present mode, which was as unfair to the defendant as it was ungenerous.  It was in fact dragging his opponent into Court on the most unequal terms, as his client could only, supposing him guilty, give evidence in mitigation of that which, by another mode of proceeding would have constituted a legitimate defence, and thus he sought not only to preserve the purity of the laws, but also to get something like revenge; for if the defendant was convicted he must be subjected to all the disquietude of mind arising from the time that must elapse between a verdict of guilty being returned, and the time when he would be called before the Court to receive his sentence, in addition to whatever pains or penalties he might be subjected to, - and from what he had seen he had a right to conclude that if a verdict of guilty was returned, that Major Lettsom would follow up that verdict and call for judgment.  From the station in society, and the honorable calling of the plaintiff, the jury were bound to conclude that he was keenly alive to the laws of honor, in fact no one doubted or disputed that he was so, but by bringing his action in the form of criminal information, he had acted most unfavorably to his fame and reputation as a generous opponent, who would only avail himself of the fair merits of his cause.  There had been no evidence given to support the prosecutor’s evidence; not that he at all doubted the veracity with which Major Lettsom had made his statements, but then it was always the best mode when our own actions were to be judged by a jury, to let others tell what we did, said, or how we looked.  In some cases this was impossible, but not on the present occasion, as there was a third party a friend of the prosecutors, viz., Mr. Garratt, who was sworn to have been present, and he felt convinced that his testimony would have been highly satisfactory to the jury, and would no doubt have been corroborative of that given by the prosecutor; indeed his client had no wish to impugn the evidence given the prosecutor; he admitted the truth of it; but then such was the situation of Mr. Boyd, that he could not put Mr. Garratt into the witness box, to prove that he had not said what he admitted he had said.  In like manner it was not in the power of the defendant, with any prospect of success, to put Mr. McLean or Mr. McCurdy into the box: in fact he would by so doing, be giving only additional advantages to the prosecutor.  Lieutenant Sayers had also been mentioned and ought to have been called, in order to explain the why and the wherefore of his not meeting the defendant’s friend in the time that elapsed between the plaintiff’s nominating him and the ensuing day when the posting took place.  It was but proper that these gentlemen should have been produced by the plaintiff for another reason, and that was, in order to enable the Court to judge of their conduct in the transaction.  (The Chief Justice remarked that these gentlemen were not before the Court, and therefore the Court would not allow insinuations to be thrown out against them).  Mr. a’Beckett resumed, by stating that he had no intention of doing any such thing, but all these gentlemen had been adverted to by the Attorney-General in [his] opening speech, and a most uncalled for imputation had been thrown out against the defendant’s friend, Mr. McLean, by the Attorney-General saying that he had earned a reputation of a fighting gentleman like the celebrated Sir Lucius O’Trigger, of which imputation there had not been the least tittle of evidence given; on the contrary it appeared that he was in the character of a peacemaker, for the plaintiff had sworn, that when he went to the stockade for the apology which was all he mentioned, he (the prosecutor) was the first to mention about going out, and therefore, if Mr. McLean was to be wantonly assailed, it was but fair that he should have had the opportunity of setting himself right in the eyes of the Court, friends, and the world.  The mode which the prosecutor had followed was harrassing, it was persecution.  It however injured rather than advanced the end he had in view, which was evidently not such as was professed by his counsel, that of clearing his own reputation from being posted.  If publicity was required of the unsullied character of Major Lettsom, that had already been done by putting the affidavits on the file of the Supreme Court: why not have allowed the matter to rest there?  If his character as a reputable member of society was what had been injured, then he might have brought a civil action, and have had the injury estimated by the same Court and compensation adequate to the injury he had sustained awarded him.  If his reputation as a gentleman of courage and a military officer had been assailed, that had been set right by the enquiry which had been made by his brother officers, and who had given him credit for having acted in the affair as an officer and a gentleman.  But Major Lettsom may have set as little value on the opinion of the enquiry by his brother officers, as he had told the Court indirectly he had set on the opinion of his friend Lieutenant Sayers, for the Jury would remember that although he had named Lieutenant Sayers as his friend to Mr. McLean, he had also informed Mr. McLean that he would not go out to meet the defendant, and therefore, should Mr. Sayers have been of an opinion different from that of Major Lettsom, no meeting could have taken place.  The plaintiff had sworn in Court that day, what it would have satisfied Mr. Boyd at once to have heard in a civil jocular manner, from his own lips, on the 5th of March, when the fracas occurred.  Even when Mr. McLean applied to him on the morning of the following day, would his dignity as an officer and a gentleman have been at all compromised, by stating to that gentleman that he was sorry Mr. Boyd had been offended at his looking at him, as he intended no insult, and in a jesting manner have explained the causes, viz., that he had done so under the impression that Mr. Boyd was Mr. Sempill, and have set all things to rights, by a well-timed joke about Mr. Boyd being a little touchy and himself being a little short-sighted?  but to-day for the first time is Mr. Boyd made aware of the real facts of the case.  He would appeal to the jury themselves if they were to receive such an answer from a gentleman - an officer of Her Majesty’s army, a magistrate of the Territory, Police Magistrate of the district (for they had heard from Major Lettsom’s own lips that he acted as such) as well as being superintendent of the stockades and iron-gangs in the district - if they, the jury, would not be annoyed at it?  Was the reply about “not caring a d__n” and “shutting himself up”, the reply which one gentleman, although a stranger, had to expect from another, whose respectability was at once shown to the prosecutor by the intimacy between him and Mr. Garratt, in whose presence the irritating answer was given; besides, when the prosecutor told the defendant that “he did not care a d__n who looked at him” might not the manner in which it was said to him, have appeared as an insinuation that “I don’t care who looks at me, but you do.”  In fact the jury must have seen that the conduct of the prosecutor was irritating throughout, and that no explanation was ever offered.  Had the prosecutor been a coxcomb, newly dressed, the gilt burnishing of whose clothing was yet untarnished, Mr. Boyd might have felt himself justified by giving him a little wholesome flagellation for his rudeness, and kicking him about his business, but such a mode of acting towards an officer of rank, a Major of the 80th Regiment, and who held several important colonial appointments, would at once have been indecorous, improper, and have subjected his client to serious consequences.  He was no advocate for duelling, nor did he come there to advocate any such illegal practice, but he did say that when properly made aware that we have unintentionally given offence, that the principles of honor and of true moral courage were best evinced by a plain straightforward, and at the same time a civil and dignified statement of facts.  That the language addressed to this client was at once insulting and dogmatic, was apparent from a review of the circumstances of the case - and he was sure that it was not such language as officers and gentlemen address to one another, even when they are strangers and meet alone, much less in the presence of common friends; he also submitted that, even if Major Lettsom had been inclined to avoid giving an apology or to go out he might have taken a far better stand on the ground of principle than by acting as he had done; in fact he could hardly conceive any mode of acting throughout the affair, which could have been more domineering that that which Major Lettsom had pursued.  On the other hand, the conduct of Mr. Boyd had been that of a perfect gentleman; he felt aggrieved by being stared at, and no one liked too much of that.  He stated what he thought, and received, not a straight forward, but an indirect cut - “I do not think I do”; no matter what Mr. Boyd evidently felt, no attempt is made to set him right; he replied in civil language, and received as a rejoinder a most rude, insulting, and at the same time a most ungentlemanly answer, with a gratuitous piece of advice, not at all calculated to allay, but on the contrary framed so as to still farther to excite his feelings; he felt aggrieved, and employed a friend, a most respectable gentleman, to obtain an apology for the rude language in which he had been addressed, but an apology was refused, and that friend was also told that the person causing the offence would not go out; a friend was however nominated, but he never appeared to explain or take the steps for a settlement of the matter, when finding every scheme ineffectual to get the satisfaction of an explanation, or an apology, the letter before the Court was sent, and the placard was posted up at Cox’s Inn, Maitland.  He felt it his duty to inform the Jury that they were to exercise their judgment on the law as well as the facts of the case, and it was only by finding that the law applied to the case that they could find his client guilty.  It was but fair for him to point out to them that whatever might be the intent of the letter, and the placard, still no collision could take place; Major Lettsom had set that point at rest by his own evidence as well as by that of Mr Simpson, who had so little fear of a duel that he did not even bind over Major Lettsom, who had shown that neither by threat, persuasion, insult, nor any other means, would he be induced to go out to shoot Mr. Boyd, or be shot at by him, which was certainly praise-worthy conduct in him as a gentleman holding the commission of the peace.  He had almost forgotten another rather curious circumstance - and that was that even Mr. Simpson’s services were not necessary in the affair, so little danger was there of collision, as Mr. Lettsom might have bound over the defendant himself, he being a Magistrate of the territory, as well as an officer and a gentleman, whose sense of duty to his country and public was such that nothing on earth could have induced him to fight a duel with his client.  Such being the case, he trusted that the jury would acquit his client, who was dragged into Court for inciting Major Lettsom to do that which it was impossible to accomplish.  If, however, they felt bound by the law and the facts of the case to return a verdict against his client, he trusted that they would frame it in such a way as would lessen the rigour of the law, as he had little doubt but without some such recommendation, if convicted, he might be severely dealt with; but he left his case with confidence in their hands.

            The Attorney-General enquired if the defendant did not intend to call witnesses, and was told that he did not.

            The Attorney-General then submitted to the Court that he was entitled to a reply, as the Counsel had introduced many topics into his address which had not arisen out of the evidence adduced for the prosecution.

            Mr. a’Beckett submitted that he had merely followed his example in his opening address, into which he had introduced names and statements, but had neither produced the persons nor proved the facts, as instanced in his observations about Mr. McLean.

            The Chief Justice said, certainly his name had been made use of, and yet he had not been put into the box; but he would not, so far as his power of prevention went, allow any man to be scandalized before the Supreme Court.  If any individual has committed an offence, let him be put on his trial, but it was not to be tolerated that charges were to be uttered in the opening speeches of Counsel affecting the characters of persons, and yet no opportunity afforded them of clearing up what might be asserted.  His Honor enquired on what ground the Attorney-General wished to reply, as the defendant had called no witnesses, nor given any evidence after the case for the prosecution had been closed; if the Attorney-General applied in his public capacity, then he must hear him, but he thought he had told the court that he appeared in is private capacity, as a member of the Bar.

            The Attorney-General said he applied only in his private capacity, but at the same time he respectfully submitted that it was in power of the Court to allow him to reply.

            The Chief Justice said as he applied in his private capacity he would not hear him.

            His Honor, in putting the case to the Jury, told them that in cases of criminal informations, the Judges at the initiating of the proceedings acted in the capacity of Grand Jurors.  That the Supreme Court was not a court of honor, but a court of law, and they (the Jurors) were Judges of the law and of the fact.  They were not to allow their minds to be fettered by the laws and usages of the barbarous custom of duelling, nor were they to allow their minds, their judgments, or their consciences to be fettered by any thing they had heard from the counsel on either side.  With motives which had induced the prosecutor to come into court they had nothing to do, as, if they returned a verdict of guilty, the defendant could avail himself of these, if favourable to him, at another stage of the proceedings in order to obtain a mitigated sentence.  Abstractly speaking, the prosecutor deserved commendation for coming into court rather than giving way to the incitements which he alleged the defendant had unlawfully presented to him, and the more so, as he was a gentleman of the honourable profession of arms, whose life was not his own but dedicated to the service of his country; he also deserved commendation for the example he had set, as a conservator of the public peace, as well as of public morals; for as a magistrate of the territory, as well as by his other appointments, he was such.  The whole question for the jury to try was, whether the charge had been made out.  His Honor then laid down the law of the case, and read the opinions of Sir Matthew Hale, Sir Edmund Coke, Mr. Justice Foster, and several other eminent British lawyers on the illegality of duelling, in which opinions he expressed his entire concurrence, and having read the evidence left it to the jury to find whether the intent had been made out, as doing a thing with intent was in the eye of the law, regarded as a performance of the act intended; at the same time, if there were any circumstances which might avail to the defendant, as tending to mitigate the offence, they were at liberty to state these as the grounds on which they recommended him to the favourable consideration of the court, and at the proper time that recommendation would be attended to.  The jury retired about a quarter of an hour, and returned a verdict of guilty, but under circumstances of great provocation arising from the irritating conduct and coarse language of the prosecutor.