the plaintiff: but the jury, in es timating the damages, would consider that the libel did not arise from personal malice, but from the warmth of political zeal.

The lord chief justice stated to the jury, that as the defendants had not accepted the opportunity offered, of proving that their statements were true, they must be regarded as false. It had been proposed to call evidence, indeed, as to alleged circumstances, not specified in any plea; but this he had refused to admit for this plain reason-that it is incumbent on every man, who comments on the character of another, to take care that he states no more than he can prove. His lordship then alluded to the first four counts of the declaration, and intimated an opinion that the charge of imputing felony, specified in them, was not sustained, and directed the jury, if they thought so, to find a verdict for the defendants upon them. But the charge respecting the purchase of the shawls was, as it stood by itself, a most grave one, deeply affecting the character of the plaintiff as a tradesman and a man of honesty. The other charge of perjury, though any one acquainted with the proceedings must at once perceive that it was false-for no oath ever was taken, unless in case of an appeal, which the libel said had not been made-would appear very serious to persons unacquainted with the statute under which the tax was collected.

The jury retired for nearly 50 minutes, and, on their return, gave their verdict for the defendants on the first four counts, and for the plaintiff on the residue.-Damages

5001.

HIGH COURT OF JUSTICIARY,

EDINBURGH, JUNE 10.

Trial of Mr. Stuart, for the Murder of Sir Alexander Boswell. -The indictment was as follows:

"James Stuart, clerk to the signet, lately residing in Charlottestreet, of Edinburgh, you are indicted, and accused at the instance of sir Wm. Rae, of St. Catharine's, baronet, his majesty's advocate for his majesty's interest: that, albeit, by the laws of this and of every other well-governed realm, murder is a crime of a heinous nature, and severely punishable; yet true it is and of verity, that you the said James Stuart are guilty of the said crime, actor, or art and part: in so far as you the said James Stuart, having conceived malice and illwill against the late sir Alexander Boswell, of Auchinleck, baronet, and having formed the unlawful design of challenging the said sir Alexander Boswell, and others of the lieges, to fight a duel or duels, you did, upon the 9th, or one or other of the days of March, 1822, in order to enable you the better to accomplish your said unlawful design, repair to Glasgow to obtain, through the mediun of William Murray Borthwick, formerly one of the proprietors or printers of the newspaper called the Glasgow Sentinel, and then a prisoner in the gaol of Glasgow, the manuscripts of sundry articles which had been published in the said newspaper, and other papers and documents connected with the said newspaper, which were then in the premises in Nelson-street of Glasgow, occupied by Robert Alexander, editor and proprietor of the said newspaper, and in the lawful possession and custody of the said Robert Alexander; and the said

William Murray Borthwick having been liberated from gaol, as arranged and concerted by or with you, and having, on the 11th, or one or other of the days of the said month of March, carried, or caused to be carried, away from the said premises in Nelson-street of Glasgow, sundry writings, the property, or in the lawful possession of the said Robert Alexander; and having brought, or caused to be brought, the said writings to the Tontine-inn or hotel in Glasgow, where you then was, you did thereby obtain access to the said writings; and having found, or pretended to have found among them, some writings holograph of the said sir Alexander Boswell, you did wickedly and maliciously challenge the said sir Alexander Boswell to fight a duel with you; and a time and place of meeting having been concerted, you did, upon Tuesday, the 26th day of March, 1822, or upon one or other of the days of that month, or of February immediately preceding, or of April immediately following, upon the farm of Balbarton, in the shire of Fife, a little to the northward of the road from the village of Auchtertool to the burgh of Kirkcaldy, and about three quarters of a mile or thereby distant from the said village of Auchtertool, in the said shire, wickedly and maliciously discharge at the said sir Alexander Boswell a pistol loaded with ball, whereby the said sir Alexander Boswell was mortally wounded, the ball having entered near the root of the neck on the right side, and shattered the collar-bone, of which mortal wound the said sir Alexander Boswell died in the course of the next day, and was thus murdered by you the said James Stuart. And you the

said James Stuart, conscious of your guilt in the premises, did abscond and flee from justice: and a letter, bearing to be dated Auchinleck, Nov. 7, 1821,' and to be subscribed Alexander Boswell;' as also a writing, intituled Whig Song,' and addressed on the back, For Mr. Alexander, Sentinel-office, Glasgow;' a letter or writing, bearing to be dated Dumbarton, December 17, 1821,' subscribed 'Ignotus;' and a writing entitled 'James Perry, esq., late proprietor and editor of the Morning Chronicle,' and addressed on the back, Mr. Alexander, Sentinel-office, Glasgow,' being all to be used in evidence against you at your trial, will be lodged in due time in the hands of the clerk of the high court of justiciary, before which you are to be tried, that you may have an opportunity of seeing the same: at least, time and place above libelled, the said sir Álexander Boswell was murdered; and you, the said James Stuart, are guilty thereof, actor, or art and part. All which, or part thereof, being found proved by the verdict of an assize, before the lord justicegeneral, the lord justice clerk, and lords commissioners of justiciary, you, the said James Stuart, ought to be punished with the pains of law, to deter others from committing the like crimes in all time coming. (Signed)

"DUN. M'NEILL, A.D.”

Mr. Stuart's plea was "Not Guilty."

The Earl of Rosslyn being called, deposed as follows:-On the 25th of March last, he called on sir A. Boswell, and told him, he had come at the desire of Mr. Stuart; and that Mr. Stuart had in his possession certain papers, some of which

appeared to be in sir Alexander's handwriting, and bore the post mark of Mauchlin, and the counter post-mark of Glasgow. Some of them purported to be originals of papers published in the Glasgow Sentinel, and one of them, particularly (a song), "contained allusions disrespectful to Mr. Stuart's family, and charged Mr. Stuart with cowardice. Among the papers there was a letter to the editor of the Sentinel, signed A. Boswell, containing some praise of the song, and other papers reflecting on Mr. Stuart, which were in the same hand-writing with the letter which bore sir Alexander's signature. The similarity of the handwriting and of the post-mark furnished so strong a presumption, that sir Alexander was the author, that he thought it proper to ask sir Alexander, if he was the author, or if he had sent them to the newspaper, stating at the same time, that if sir Alexander could say that he was not the author, and had not sent them to the newspaper, that would be conclusive, notwithstanding any evidence to the contrary.

Sir Alexander said, that this was a delicate affair, and he thought he ought to have a friend present. Witness said, he thought it very desirable. Sir Alexander went away, and returned with Mr. Douglas, when witness repeated what he had previously said. Sir Alexander and Mr. Douglas desired to confer together. Witness went away, and when he returned, found Mr. Douglas alone. Mr. Douglas then said, that he could not advise sir Alexander to give any answer; that Mr. Stuart was in possession of the evidence, on which this application rested; but if this affair should proceed any further, there were two proposals

which he had to make:-1. That no meeting should take place within 14 days, because sir Alexander had some family business to dispose of. 2. That the meeting, if any, should take place on the continent. Witness had no hesitation in replying, that on these conditions he thought the terms were such as would be agreed to. He had copies of the manuscripts and papers in his hand, when he called on sir Alexander. He had a song and a paper signed "Ignotus." He thought the song of far the greater importance, because it contained two direct imputations of cowardice. He considered Mr. Stuart's character implicated by those papers (which, being shown to the witness, he identified in court.) Mr. Douglas said, he would not advise sir Alexander to make any answer at all. Witness afterwards saw Mr. Stuart, and proceeded immediately to Mr. Douglas, and stated that witness was grieved that no alternative was left to Mr. Stuart; that Mr. Stuart agreed to both the conditions stated by Mr. Douglas, namely, the delay of 14 days, and that the meeting should be upon the continent. agreed, that all subsequent arrangements respecting the meeting on the continent should be settled when all the parties were in London. Witness then asked Mr. Douglas, if there was any possibility of not carrying this affair any further-that Mr. Stuart would be content to treat the song as a very bad joke on his part, provided sir Alexander would say, that he did not intend any reflection on Mr. Stuart's courage. Mr. Douglas said, he had no hope that sir Alexander would say any such thing. Witness left Mr. Douglas to return to Fife, in the conviction that every thing was finally settled.

It was

The

boat was ready, but before he embarked, he was accosted by Mr. Douglas, who said sir Alexander had taken the advice of a legal friend, and in consequence thought it no longer necessary to go to the continent, and that he preferred to have the meeting in Scotland. Witness objected to that; after some discussion, Mr. Douglas returned to Edinburgh, saying at parting, that at any rate, if the meeting took place in France, and Mr. Stuart fell, sir Alexander could not be hanged for it. Mr. Brougham called on witness next morning, at about from a quarter to eight to half past eight, and stated, that sir Alexander had been . bound over by the sheriff of Edinburgh to keep the peace, and that it had been settled that sir Alexander and Mr. Stuart should meet at Auchtertool that morning, and requested witness to meet Mr. Stuart, which he did. He went there, and had some conversation, and fixed on a piece of ground near the road side. Mr. Stuart and sir Alexander arrived in carriages, and got out at the place they had fixed upon, he believed at ten o'clock. The pistols were produced by Mr. Douglas and witness, Mr. Douglas sitting down, and witness standing; Mr. Douglas received from witness the measure of powder for each pistol, and the ball, and rammed them down. There were but two pistols, of which Mr. Douglas took one, and witness the other. The ground was measured, 12 very long paces. The pistols were delivered to the two parties respectively, one by Mr. Douglas and one by me; and it was agreed that they should fire by a word. Mr. Douglas looked upon him (witness) to give the word, which he did, and they fired. Sir Alexander

fell. Mr. Stuart advanced with great anxiety towards sir Alexander; but witness hurried Mr. Stuart away. Those who re mained, together with witness, lent their assistance to convey sir Alexander to Balmuto. Before any thing took place on the ground, Mr. Stuart asked witness, if it was not fit that he should make a bow to sir Alexander, and express his wish for a reconciliation. Witness thought it right. Mr. Stuart advanced towards sir Alexander, apparently for that purpose; sir Alexander's back was then turned, and he appeared to be walking away from Mr. Stuart.

Cross-examined by Mr. Jeffrey. -Witness was satisfied in his own mind, that the letter signed "Ignotus," and the letter containing the song, were in the same handwriting as the letter bearing sir Alexander's signature; and that both papers threw an imputation of cowardice on Mr. Stuart. From the whole of Mr. Stuart's conduct throughout the proceeding, there was no appearance of personal ill will or resentment on the part of Mr. Stuart against sir Alexander; but only anxiety to defend his own character from the imputations with which it had been assailed, particularly from that of cowardice. He found Mr. Stuart perfectly reasonable throughout the proceedings. Mr. Stuart's conduct, from first to last, was cool, composed, and temperate, and such as might be expected from a man of constancy and courage. This observation applied as well to his conduct on the field as previously. On the field, witness desired Mr. Stuart to present his side, and not his bust; Mr. Stuart replied, "I do not think I ought to take an aim." The word agreed

upon was (both parties having been asked if they were ready)"Present, fire," as quickly in succession, as they could be given. Both the pistols went off, also, as quickly in succession as possible; but Mr. Stuart's pistol was rather the first. From his acquaintance with Mr. Stuart, he could say that he never knew a man less quarrelsome or vindictive. Mr. Stuart was much occupied in public business, and had made great improvements in the county of Fife. Never, though field sports were going on, saw Mr. Stuart with a gun in his hand in his life.

Mr. Douglas, after stating the previous circumstances which had been mentioned by lord Rosslyn, described the arrival of the parties on the ground. Witness advised lord Rosslyn not to pass through the village, lest he should be known. Lord Rosslyn went another road, and was first on the ground. The ground was approved of by all parties. Witness asked lord Rosslyn, if he thought there was any chance of an amicable arrangement. Lord Rosslyn said, he feared not. Lord Rosslyn measured off the ground. Witness desired Dr. Wood not to stand so near: he replied, "he wished to be near, lest sir Alexander might die, before he could come up to his assistance." The parties having taken their positions, lord Rosslyn proposed, that witness should give the command; witness said, he wished lord Rosslyn to do it, which his lordship did. On their way to the ground, sir Alexander consulted witness as to firing in the air or not. Witness said, he (sir Alexander) must consult his own feelings on that subject. Sir Alexander said, he had, perhaps, in an unhappy moment, injured Mr.

Stuart, and therefore he should fire in the air. Witness said, that was exactly his own opinion. On the field, he did not notice, how sir Alexander fired, as he felt that Mr. Stuart was in no danger, but he kept his eye on Mr. Stuart. Saw him raise his arm, which appeared firm and nervous, but he could not tell the direction exactly in which it pointed. Both fired: there was just a difference between the time of the two reports. Mr. Stuart's was rather first. Alexander fell. Assistance immediately was rendered to him. Mr. Stuart approached, and witness advised him to flee. The only words, which sir Alexander spoke to witness then, were, that he regretted he had not made his fire in the air more decided than it had been. Sir Alexander's wound was not dressed on the field, but at Balmuto-house, whither he was immediately conveyed.

Sir

Cross-examined by Mr. Cunninghame.-The injury done to Mr. Stuart, to which sir Alexander alluded, witness understood to be some squibs that he had written concerning him. Sir Alexander had called on witness the Sunday before he met lord Rosslyn, and said he expected a challenge from Mr. Stuart, in consequence of some papers, and among them a song, having been seized in the Sentinel office. Sir Alexander recited the stanza which he considered obnoxious, and it was the same as that now shown to witness. The information to the sheriff was given by some friends of sir Alexander. On the field, witness went up to sir Alexander, and directed him to make his fire in the air as distinct as possible, as that would facilitate an adjustment of the dispute. He directed sir