DORANDO AND THE
Looking out at tonight's audience I feel confident that the vast majority know the name James Boswell; perhaps a slightly smaller number have even read his magisterial (a favorite word of reviewers) biography, The Life of Samuel Johnson. A still smaller number may be familiar with The Journal of a Tour to the Hebrides; a much diminished minority will have read Boswell's London Journal. None, I will guess, without meaning to condescend to such a distinguished gathering of readers, will know Dorando, A Spanish Tale, or its origins in the Douglas Cause. At least, I hope not, for the sake of telling you something you did not already know.
Why Boswell at all? Why bother with the work or life of an eighteenth century Scots lawyer and author who was as dissolute as he was prolific, as debauched as he was engaged in the wide world of culture and politics and law in England and the rest of Europe? And who, now, seldom appears in the syllabus listings of even the largest English departments? The reason was best stated by the late Prof. Frederick Pottle of Yale, known to afficionados as "Boswellianissimus." Prof. Pottle wrote:
There is nothing painful in the autobiography either of a saint or of a complacent libertine. John Wesley's Journal is not painful, nor does one suffer as he reads the Memoirs of Casanova. We can stand apart from such men and judge their lives as we would works of pure fiction. But Boswell's Journal is painful to read, because, while we are laughing with him and at him, while we are being shocked at him and disgusted with him, the scales fall from our eyes and we come suddenly to see that he is ourselves. He is the articulate honest expression of that state of being which nearly all of us experience: of piety that seldom issues in righteousness; of primordial indecencies mocking our boast of civilization; of ambitions misdirected beyond our strength; of warring motives which can never be reconciled; of childish dreams carried over into mature life. Like him we do our best work half-heartedly while we pursue phantoms; we spend our lives in turmoil and heartache, lacking the power to shape our destinies.
Born in 1740 Boswell was admitted to the Scots Bar as
Advocate in 1766. He practiced law until
his death in 1795, and was surely among the first lawyers anywhere to do
"pro bono" criminal defense work.
In 1768 his published account of his visit to
James Boswell was a proud even vain man in many
respects. Among the most deep-seated
sources of his pride was his lineage.
His father, Alexander Boswell, Lord Auchinleck, was a distinguished
member of the Court of Session and the High Court of Justiciary, respectively
the highest civil and criminal courts in
Given his concern with family and lineage and hereditary
property, it is no surprise that Boswell was attracted to what was known as the
Douglas Cause perhaps the most famous litigation in Scotland even all of
Britain in the eighteenth century.
Although the litigation began in 1762, about a year after the death of
the Duke of Douglas in 1761, its roots went back to the relationship between
Archibald Douglas and his sister Lady Jane.
As might be expected the siblings had their occasional
spats; during one of those fallings-out, Lady Jane, then forty-eight, fell in
love with Col. John Stewart, age fifty-nine.
The Colonel, although of good family, was unfortunately the second son,
and penniless. The Duke of Douglas found
John Stewart unacceptable for this and other reasons, and since Lady Jane
depended on her brother for her living, the not-so-young couple deliberately
and secretly eloped in 1746, leaving immediately for the continent. Now the story gets interesting. According to one version, the Stewarts
traveled anonymously, with Lady Jane's companion, Mrs. Hewit, and two maids, in
Holland and France, until, mirabile dictu,
in 1748 Lady Jane's pregnancy at the age of fifty necessitated disclosure of
the marriage. By this version of the
story, in July of 1748, Lady Jane gave birth in
Thus, in 1752 Lady Jane went from
The Duke, in 1754, and at urging of interested parties, executed a settlement of his whole estate on the Duke of Hamilton, failing the existence of heirs of his own. In 1757 he executed a second deed, confirming the first, and adding explicitly that the surviving son of his sister should in no event succeed to his estate and title. Let us turn to a contemporary account for what happened next:
The Duke of Douglas had, during the greater part of his life, so entirely withdrawn himself from the world, and had lived in such constant retirement at his Castle in Douglas, that there was little reason to expect he would ever think of marriage, though his entering into that state was an event much wished for by every friend of his family. However the Duke disappointed the public expectations; for , in the year 1758, he entered into a marriage. . . .
The new Duchess, a tough and persistent woman, was a
supporter of young Archibald Douglas. In
fact it was widely thought that she had married the old Duke, in part at least,
to foil the
Rather than appeal, the
Immediately after the decision in 1761 serving Archibald Douglas as heir to the Duke, the Hamilton side had sent a representative rather like a private investigator to Paris to track down the truth. He reported back that the whole history of Lady Jane's alleged pregnancy and delivery was a fraud, that the travels of the Stewarts around the time of the alleged pregnancy, the Stewart's finances, affidavits and records, were lies and forgeries. The Stewarts did not stay where they claimed, the deliveries had not taken place where or as described, the witnesses for the Stewarts had either lied or could not be found, and, in general, every aspect of the Douglas/Stewart claim and story was asserted by the Hamiltons' investigators to be false, and countered by contradictory witnesses and records found and developed by the Hamiltons' agents.
Although James Boswell had first met Archibald Douglas in
1762, they were merely casual acquaintances, young new men-around-town. A great deal had happened in the course of
the litigation before Boswell's interest was aroused. A Condescendence
of Facts . . . was printed by the "Pursuers," that is, the
Since by this time the case had been pending for four
years, and Boswell was merely a newly admitted practitioner, he could not have
expected to be engaged to participate as counsel, although his father,
Alexander Boswell, Lord Auchinleck, was one of the judges on the Court of
Session before which the case was pending.
Under rules slightly different from today's, much of Boswell's early
work came to him precisely because it involved appearing before his
father. In fact, writing to his
Nevertheless, the Douglas Cause was too important for
James Boswell to remain only an observer, and too close to his heart for him to
be dispassionate. Although the
To James Boswell this was a case of law, not fact, and the principle of law at stake was well, here is how he himself described it:
Filiation or birthright is of all things the most valuable to mankind; for all the blessings and comforts of life, the succession of property and of honors, all the rights and all the affections of blood flow from it: therefore it is that the wisdom of law hath been particularly careful that the birthright of the subject should be inviolably protected.
This is Boswell, the man who had written, you will recall, that his most fervent hope was "to be a worthy Scots laird." If the claim of a man's parents to be his parents could be easily overturned, then, he said "you are taking the very pavement from under this feet. You are depriving him of half his cause." Boswell went on with a telling example:
I asked my father where I was born. He mentioned a house. I asked an old woman who was in the house at the birth, and she said another house. . . . [I]f my birth had been scrutinized, my father and this old woman would have been declared perjured, as contradicting one another.
Boswell and his father had, in fact, a very difficult relationship . Lord Auchinleck more than once and with cause threatened his son with disinheritance, and James lived in fear that the lairdship he so valued, his heritage, his own "filiation," would be taken from him. Little wonder he was passionate for Lord Douglas.
Boswell was also a man of imagination, and of action. And so, in 1767, he became a self-appointed
shill for Lord Archibald Douglas, the Defender, against the Pursuers, the
Hamiltons. He began, after reading the
Pursuers' voluminous Memorial, by
composing a song. The Memorial had been compiled by Sir Adam
Ferguson, a distinguished lawyer and an amateur mathematician. In one section Sir Adam had calculated the
odds against the infants Archibald and Sholto being other than the kidnapped
Alas! My poor brethren,
poor sons of the laws,
You're all knock'd o' the head by the Hamilton Cause;
No more can you live by your noisy vocation,
The plan now is silent and slow calculation.
. . . .
You may e'en make a bonfire of Bankton and Stair,
And betake you to Sherwin, to Cocker and Mair;
The Roman Twelve Tables exploded shall be,
The table of Multiplication for me.
"Bankton and Stair" to be burned are law books; "Sherwin, Cocker and Mair," mathematicians. Subsequent verses all include arithmetic puns and word play.
Warned by one of his advisors to burn the poem, rather
than antagonize important Hamiltonions, Boswell instead showed it to its
intended target, Sir Adam Ferguson himself, and to David Hume. Both of these distinguished men assured him
that since everyone knew that he personally was a man without malice or venom,
neither would be attributed to him as a result of circulating this example of
his wit. Thus encouraged, Boswell
performed the song in his wig and his gown to the amusement of his peers
around the courthouse, and even published it in the "Scots
Magazine." A few months later
another ballad came from his pen, a companion piece called "The Douglas Cause." This he had published as a broadside in
May. Yet another song, probably the best
of three, was also written in May, but circulated only in a letter to Boswell's
friend John Johnston. So began nearly
two years of Boswell written and directed propaganda for
Boswell was nothing if not prolific. His efforts on behalf of Archibald Douglas illustrate this tendency. His involvement in the Cause occurred during a period early in his legal career when he was extremely busy building his practice, seeing to his many social obligations, seeking a suitable wife in both Scotland and England, and writing his first long book, An Account of Corsica. Despite these competing commitments, in the twenty-one months beginning just before the original decision in the Court of Session in July of 1767, and ending with the subsequent decision on appeal in the House of Lords in February of 1769, Boswell wrote and published, without the promise of any compensation, more than twenty-five articles in eight newspapers, and three books, all promoting the Douglas Cause.
While we examine this outpouring of propaganda in greater detail, we also must recognize them for what they were. Boswell's efforts were remarkable attempts to influence the fifteen judges, including his father, before whom the case was pending, or, at the least, to bring public opinion to bear on those judges. The litigation had been ongoing between the "Pursuer" and the "Defender" since 1762, and by the spring of 1767, the judges had thousands of printed pages of material before them. Boswell knew, perhaps from his father, that a decision would soon be announced. He did not wish to antagonize his father or risk a certain finding of contempt of court by publishing explicit materials obviously intended to influence the outcome while the case was awaiting resolution. Thus he came up with the inspired notion of a fiction, an allegory.
And so, in two days of dictation to his secretary in May
of 1767, Boswell produced his only novel or at least novella fifty pages
entitled Dorando, A Spanish Tale. A blatant attempt to influence the decision,
it tells the story of Don Carlos of Dorando, an amiable recluse obviously
patterned after the Duke of Douglas, Donna Eleanor appears as the Duchess, and
Lady Maria, obviously intended to be Lady Jane.
The Lord President of the Court, Robert Dundas was outraged, but he did not attempt to suppress it recognizing the difficulty of proving that it was an allegory (since it told a story that stood alone, without reference to secondary meanings). Boswell himself wrote a series of anonymous reviews, each quoting extensively, and praising even more lavishly, his own little book. The review of his work which he wrote for The London Chronicle called it "the production of no ordinary genius." In his articles and reviews the parallels to the Douglas Cause were explicitly recognized. Nor did he stop there. Prof. Pottle of Yale called his next series of capers "the most impudent act of a life not unremarkable for impudent actions."
Boswell began his newspaper campaign in May of 1767, after
finishing Dorando. An anonymous article but written by Boswell
appeared in the London paper announcing that the Court of Session would soon
meet to hear and decide the case, in the largest room in Edinburgh; that
special seating would be constructed for the public, and that admission would
be charged. In the same paper Boswell
separately and again anonymously reported that five accomplished court
shorthand experts (he even gave them names) would attend, from London, and
provide word-for-word reports. Since it
would have been illegal for them to transcribe and publish the proceedings,
they might even, he suggested, be disguised as women, and could not be detected
and prevented from telling the public what really went on. This was followed by frequent articles about
the progress of these five court reporters on their way to
Lord Dundas finally had enough, and cited the newspaper publishers for contempt, demanding that they appear before his court. Astonishingly, none other than Boswell himself defended them, for publishing what most knew he himself had written. Attributing his articles to harmless good humor and public interest, he succeeded in getting the publishers and himself off the hook with only a stern rebuke from Lord Dundas. Boswell did not stop with this victory, of course; instead he followed up with another lengthy piece, this time questioning Lord Dundas' efforts to pursue the publishers at all. And when there was no answer from Lord Dundas or his supporters, Boswell wrote one himself, under another assumed name.
It is impossible to say whether the judges were influenced by either Dorando or Boswell's enthusiastic reviews emphasizing its allegorical connection to the Douglas Cause, or even by his incessant series of articles drawing attention to it. But the public was moved. One commentator in this case not Boswell himself wrote:
. . . it is amazing how great an effect this pamphlet, and other such arts used by the favourers of the defendant, have had. . . . The writing and publishing [of] that pamphlet was a manifest attempt to bias the judges by hopes of great popularity in case of their giving their decree for the defendant, and the fears of a general odium in the case of their deciding for the plaintiffs.
To that extent it worked.
The public had been aroused to the degree that threatening letters were
sent to the judges, graffiti was painted on walls, and mobs in
On July 7 the Court began the delivery of its
opinions. Four of the fifteen judges had
been counsel for either Hamilton or Douglas before being named to the Court,
and rather than recusing themselves, they voted, two each, for their former
client's positions. The remaining eleven
were split, five for
In all questions about filiation, skeptical people may have opportunities of raising abundance of doubts; as it is possible that wives may be unfaithful, nurses false to their charge, and that they may both conspire to bring in false children. Yet, though such things may happen in almost every possible case, yet the law will determine such questions upon general principles, requiring a legal certainty of filiation, not certainty in the abstract. Of this daily instances occur in this Court. And, in the case of alleged bastardy particularly, the law will take its course, and hold the child to be lawful, except there be an absolute impossibility of its being the child of the husband. Indeed, if we had not these rules, every thing would run into absolute confusion. I would observe further, that if a person is acknowledged by a married couple to be their child, this is legal evidence of it; and such a train of acknowledgment must be held to be a probatio probata, or pro veritate, till the contrary be proved by clear and undoubted evidence.
Lord Auchinleck went on to review the evidence, recognizing that it is contradictory and confusing, that it may contain false or mistaken representations on both sides, wishing it more clear, and concluding that the very uncertainty of it compels him, consistent with his "general observations," to find for Douglas.
It was not enough.
If the Court was equally divided, the Lord President, Robert Dundas,
would cast the tie-breaking vote, and only then would he vote. No doubt having counted noses before-hand,
the Lord President spoke first on 7 July, saying that since there might be a
tie, he wanted to give his fellow judges his opinion at the beginning of their
deliberations. And his opinion began
with a very lawyerly poke at the way an argument had been advanced in the
The Douglas side immediately appealed to the House of Lords in London, which would have the last word. Boswell turned up the P.R. campaign a few notches. Buried in the thousands of pages of the Proofs submitted by the Douglas side had been a package of letters written by Lady Jane to her husband while he was imprisoned for debt. She was no doubt the most sympathetic character in all of this, and Boswell, recognizing her appeal, had the inspired notion of publishing a condensed version of her letters. Their genuineness was unchallenged, and they had been written at a time when no ulterior motive could have existed the Duke of Douglas was still alive, no challenge had yet been raised to the legitimacy of her children, and the letters were obviously not intended for the eyes of any but her then wretched husband. In them she writes tenderly of their little boys and her happy, if poverty-stricken, family. Boswell carefully selected and edited these letters, and published them in a small book, Letters of the Right Honorable Lady Jane Douglas, to which he appended the "dying declarations" of Lady Jane, Col. Stewart, and Mrs. Hewit, as well as a commentary, by Boswell, the title of which says it all a "Cool and Candid inquiry how far such Declarations should weigh with the rational Part of Mankind." Obviously, observed the cool and candid Boswell, with the fear of impending death, no one would lie while facing the imminent prospect of the last judgment. Boswell also had the audacity to put two epigrams on the title page, quoting from the opinions of two of the Judges who had voted against Douglas, one on the importance of the character of the parties, and one on judging the judges. The little book is a masterpiece of spin.
Nor was it Boswell's only other book length effort. His most sophisticated work on behalf of Douglas was his third book The Essence of the Douglas Cause. This eighty page effort is truly a brilliant distillation of the arguments and evidence spread through the massive records. It clearly sets out law and fact and motive, and answers every important Hamiltonian argument. Boswell's own assessment of it years later reflects his usual modesty. He wrote, in the third person:
With a labor of which few are capable, he compressed the substance of the immense volumes of proofs and arguments into an octavo pamphlet . . . and as it was thus made intelligible without a tedious study, we may ascribe to this pamphlet a great share of the popularity on Mr. Douglas' side, which was of infinite consequence when a division of the House of Lords upon an appeal was apprehended; not to mention that its effect was said to be considerable in a certain important quarter. He also took care to keep the newspapers and other publications incessantly warm with various writings, both in prose and verses all tending to touch the heart and rouse the parental and sympathetic feelings.
One last arrow remained in his quiver, after the publication of his three books and all his newspaper articles, poems, and letters. It had to do with the "certain important quarter" just mentioned.
William Murray, a Scot and friend of his father, was Lord Mansfield, Lord Chief Justice of the King's Bench, one of the most towering figures in the history of English jurisprudence, and then the most powerful judge in Britain. He would preside over the appeal to the House of Lords, and what he said would greatly influence how the Lords voted. And so, in London on 20 May 1768, Boswell paid a call on Lord Mansfield. He was warmly received, and after an exchange of pleasantries, Boswell, a young lawyer with about two years' experience, began to manipulate the conversation and one of the greatest legal intelligences of all time. Gradually moving the conversation to the appeal of the Douglas Cause then pending in the House of Lords, Boswell managed to undermine the written opinions of the pro-Hamilton judges below, and then opine on how unfortunate it was that Lord Dundas' own opinion had shaken the confidence of the people in their judges, it being so lacking in foundation. Mansfield was thoroughly engaged, so much that although his carriage was waiting to take him to another appointment, he had it wait longer, and asked Boswell to stay, and listened to his further arguments for Douglas, and about "that great principle of law filiation on which we all depend."
On 19 January 1769 the House of Lords began consideration of the appeal. The Douglas side's printed case was so harsh concerning the conduct of the French investigation by Hamilton's private detective that the detective challenged Douglas' lawyer to a duel, which was actually fought bloodlessly while the case was still being heard. Finally, on 27 February, judgment came. Lord Mansfield spoke passionately for Douglas, as did Lord Camden, then the Lord Chancellor. The Lords voted unanimously to reverse the Court of Session, and restore Archibald Douglas to his title and estates. The news reached Edinburgh on the evening of 2 March. Boswell was there. Here is the last chapter of our story.
The people of Edinburgh had been anticipating a decision, and the vast majority inflamed by Boswell favored the Douglas side. The news was thus met with great joy. Boswell rushed to tell his father, whose muted reaction disappointed him, and so he went out in the street where massive crowds were gathering. Victory celebrations were planned, with Boswell in charge. Bonfires were lit in the streets, and it was determined that Douglas' supporters would illuminate their windows with candles to signal their rejoicing. Dark windows were to be broken. Robert Dundas' own windows were broken, and the mob even attempted to break down his door, terrifying his family. His sedan chair was attacked the next day, although he was not harmed. The apartment of the Duke of Hamilton was also attacked, as were the windows of other Hamiltonians, including those of the now infamous private detective. Finally the dragoons were called in, and the riot was quelled, but not until even Lord Auchinleck's dark windows had been broken by the mob, with Boswell in the lead. His noble father had refused to "illuminate," even though he had voted for Douglas, choosing instead to support the dignity of the Court, and to stand by Dundas and his fellow judges. Lord Auchinleck demonstrated how much he differed from his son in temperament, even when they agreed in principle.
A reward was offered by the magistrates for the apprehension of the leaders of the mob. Attention turned immediately to Boswell. He himself had boasted of his role, even of the rock thrown through his father's window. His father, reportedly with tears in his eyes, had asked Dundas to have him jailed. Dundas who truly admired Lord Auchinleck, would not have him subjected to such humiliation, but he did have young James questioned by the sheriff. It was, however, not easy to identify rioters no home video being available and Boswell wriggled free, often thereafter bragging about his role in the riotous celebrations and vandalism.
James Boswell would thus forever be linked with the Douglas Cause, and the linkage brought him both fame and infamy. From it he had recognition in Scotland and England as an imaginative, bold and creative advocate, as well as the gratitude and, for a while, even the affection, of Archibald Douglas. And from it he suffered the reputation of a less than scrupulous and almost ungentlemanly radical. Worse still was the permanent damage to his always fragile relationship with his father, never to be healed. But that is another story.
Paul T. Ruxin
© Paul T. Ruxin 2004