[duelling – gentlemanly conduct]

R.  v. Boyd

Supreme Court of New South Wales

Dowling C.J. and Stephen J., 15 February 1841

Source: Australian, 16 February 1841[1]

The defendant in this case, Mr. Archibald Boyd, who was found guilty some time ago of attempting to provoke Captain Lettsom to commit a breach of the peace, appeared in person for the purpose of receiving the sentence of the Court, when several affidavits were read on the behalf of the defendant, in order to palliate judgment, by which it appeared that the prosecutor had been guilty of extreme insolence towards the defendant - that he was in the habit of insulting other persons in a similar manner, and that he possessed extraordinary power of vision instead of being short-sighted, as he had stated on the trial. The Court was also addressed at considerable length on the same subject by Messrs. A’Beckett and Darvall, on the behalf of the defendant, and by the Attorney General on that of the prosecutor; and the defendant was ultimately adjudged to pay a fine of £40.

February 1841

Source: Sydney Herald, 16 February 1841

In the case of the Queen on the prosecution of Samuel Lettsome, of the 80th regiment, of Archibald Boyd, Esquire, of Hunter’s River - The latter of whom had been convicted of having, in the month of March last, incited the said Samuel Lettsome to fight a duel, but had been strongly recommended to the mercy of the Court, on account of the great provocation given him by the prosecutor, and also for the gross and ungentlemanly language which had been addressed to him by the said Samuel Lettsome, and also by his insulting conduct to the defendant.

The Chief Justice, before whom the case had been tried, went over the case from his notes, and enquired if there were any affidavits in mitigation, when an affidavit to that effect was put in by the defendant, by Mr. McLeay, Mr. Bloxome, Captain Biddulph, and several other gentlemen, from which it appeared that the prosecutor had excellent powers of vision: although he had sworn the contrary on the trial; also that he had made it his boast that he had a pleasure in annoying respectable people by staring at them, and that several other civilians, in and about Maitland, had been greatly annoyed by such conduct being practised towards them by the said Captain Lettsome. In aggravation of punishment an affidavit was also put in by the prosecutor and Mr. Henry Garratt, detailing the circumstances of the case as it had occurred, and by Mr. Percy Simpson as to the defendant having posted the prosecutor, and having been bound over by him to keep the peace; also one by Mr. Cox, the innkeeper, in whose room the posting had taken place. The defendant then put in the affidavit of Mr. Minithorpe, his attorney, stating that the defendant had already been subjected to upwards of £300 expenses by the mode in which the prosecutor had acted to him in dragging him three times into Court, viz:- one to oppose the rule nisi, once for trial and once for judgment.

Mr. a’Beckett then addressed the Court in mitigation, and stated that when he addressed the jury on the trial, that he stated his conviction, that if the defendant was found guilty, the prosecutor would follow up the same, and drag the defendant into Court for judgment. He was under no necessity to trouble the Court with his opinion of the conduct of Mr. Lettsome, as the jury had done that in such a way as would, he felt convinced, induce the Court to inflict merely a nominal punishment on his client, who had been peculiarly provoked and irritated by the coarse and ungentlemanly conduct of the prosecutor. He then went over the circumstances of the case, and pointed out the extenuating circumstances in the evidence, which went in favor of his client; he also contended that the conduct of the prosecutor was highly vindictive, as he had, without any just cause, dragged the defendant before the Court, seeing that in so far as the prosecutor’s character had been concerned, that had been placed in a proper light by the jury, and his brother officers had, when his conduct had been subjected to their inspection, cleared him of all blame; while, by the verdict of the jury, he had been cleared of the expenses.

Mr. Darvall followed on the same side, and contended, that it was any thing but gentlemanly conduct in the prosecutor to persist in the case after he had been warned, first, by the bench, and then again and again by the verdict of the jury. He considered that the language in which Major Lettsome had addressed Mr. Boyd was coarse, low, vulgar, and such as only could be addressed to a ruffian. As to Mr. Lettsome’s affidavit, it could not be believed, as he, when called upon to state that no insult was intended, commenced in gross and insulting manner, coupling it with a vulgar oath, “I don't care a damn”.

The Attorney-General in aggravation of punishment addressed the Court by stating, that he would not follow the example set him by the other side, of abusing and insulting the prosecutor up to the last moment, he also had an opposite view of what had fallen from the Court and jury about the case, as in his view of the matter these were admonitions to the defendant. He then entered into a very learned and humorous discussion of vision, squinting, and the use of the quizzing glass as an aid to vision, rather than as an instrument for annoying and insulting respectable people, and adverted to his Honour the Chief Justice using it in the Supreme Court. On which his Honour disclaimed ever having used it to annoy any one. The Attorney-General then went over the case and contended that the defendant had, at the commencement of the quarrel, by telling Captain Lettsome that he was looking hard at him, given him the lie direct had been the first to give provocation; he also thought, that considering the prosecutor’s calling, the conduct of the defendant was highly culpable as he bore the Queen’s commission in the army, where the rules of honour were minutely acted upon; it was also an aggravation that Mr. Lettsome had been asked “to give an apology for his insulting conduct, or go out,” when it was not at all evident that any insult had been even intended, far less offered. In fact Captain Lettsome had denied it on his oath. He also took a very lengthened review of the affidavits in mitigation, and contended that it was by a mere trick that these had now been brought forward, as the fair and honorable mode for the defendant would have been to have put the parties into the box for the defence on the trial, and have allowed them to be cross-examined, and commented, with marked severity on the affidavit made by Lieutenant Quint[en] Smith, which imported that the prosecutor had boasted of taking pleasure in annoying people by staring at them. As to the doctrine which had been broached by Mr. Carvall, viz.:- that the conduct of the defendant had only been such that might reasonably have been expected from him, he should leave that to be dealt with by the Court in the manner which it deserved, as the time was gone by when such doctrines could be broached, or if they were broached, they could not be acted on with impunity, and conclude by informing the court, that in his opinion the conduct of the defendant was of the most annoying description to his client, and left [him] no other course to pursue than that which he had adopted of bringing the defendant [to] receive judgment. Mr. Cheeke fol[lowed on] the same side, and contended that the [?] as a barrister must have been aware [that] in regard to such conduct, and there[fore it] was a legal aggravation of his endea[vour] to incite the prosecutor, a justice of the [peace to] commit a breach of the peace. His [Honor] delivered the judgment of the court as [?]. [Archi]bald Boyd, Esq., you were convicted on [21st] October last, by a special jury, upon [examina]tion filed by leave of the Court, for [?ring] to provoke and excite one Samuel [Lettsome], Esq., now a Major in Her Majesty’s [Regi]ment of Foot, and a Magistrateof this [Court] to fight a fuel. The jury recommended [?] to favourable consideration, on the [?] that the offence was committed “under [circums]tances of great provocation from the [?] conduct and coarse language of the [?]tor.” You are now to receive the judg[ment of] this Court, at the instance of the [?] notwithstanding the strong recom[mentation] of the jury. That recommendation [of] the Court from the necessity of visiting [?ence] with that severity which a transaction [of that] kind would imperatively involve in a [?] Justice. It is unnecessary to inform a [?] of your education, that duelling is a very [serious] crime, and that no conventional notions [of] honor, or any sense of barbarous chivalry [exonerate] it in the eyes of the law. You may be [?] that it is even no excuse, for a party so offen[?] that he has received provocation, for it is laid [by] the highest authority “that if one per[son co]uld kill another, in a deliberate duel, [then] the provocation of charges against his [?er] and conduct ever so grievous, it will be [?] in him and his second; - the bare in-[?] to fight, though under such provocation, [?self] a very high misdemeanour, though no [?uance] ensue therefrom against the peace.” [This] case falls within the latter category, but [?suring] the punishment due to your offence, [the C]ourt must have regard to all the circum[stances] which betrayed you into a violation of [?]. The forbearance of the persecutor to your hostile invitation is what you might [have] expected on the part of an officer of rank [in He]r Majesty’s service and a Magistrate, bound to preserve his life for higher destinies, and [obs]serve the public peace at all hazards. [The] prosecutor, for his forbearance in this respect, [?led] undoubtedly to commendation. The [?] is ignorant of the particular reasons in[fluencing] the jury in their recommendation; but [?gh] appears in the evidence on the trial, to [?y] the court, in remarking with regret, that [Maj]or Lettsome really intended no offence in [?g] at you, he did not, when called upon, [immed]iately in the spirit of soldierly frankness [g]entlemanly feelings disabuse your mind of [m]istake into which you have fallen, and set [?] right in this particular as an officer and [a gent]leman. Major Lettsome denies that he [?ded] any insult to you; and to this disclaimer [the C]ourt gives full credit. But the fact renders [?ly] the more extraordinary, that, since this [?o], he did not openly make that disclaimer, [?] you first addressed him, when waited upon [?] our friend. Instead of adopting this course, [Majo]r Lettsome admits himself to have met your [?strance] in a manner, and with language, [?h] the jury have justly characterised as irri-[?g] and coarse. This conduct on the part of the [Ex]ecutor, the Court thinks itself bound to notice [?rms] of censure. Another circumstance also, [?s] part, appears to us to demand some remark. [?] he at once peremptorily declared his [rimination] not to apologise or give you a [ile] meeting, the Court wish it had not been [ed] that, notwithstanding this, he proceeded [to name] a brother officer as his second - a step [?], unexplained, would seem to indicate a [p]osition not perfectly congruous with his pre[viou]sly expressed disinclination for a duel. [The]se circumstances, coupled with the strong [rec]ommendation of the Jury, induce the Court [to] mitigate your sentence, whilst it at the same [time] denounces the offence as a grievous outrage [of the] law, and dangerous to the peace and wel[?] of society. The sentence of the Court is, [that] this Court doth order and adjudge, that you pay a fine of £40 to Her Majesty, and that [you] be imprisoned in the common gaol until [that] fine shall be paid.

Notes