AN EIGHTEENTH-CENTURY • "CAUSE CELEBRE."
IT is curious how soon the echoes of a great lawsuit die away. A case which has shaken the country becomes in a few years' time only a reminiscence of lawyers, and unless some important point of law has been involved, even the pro- fession soon ceases to remember it. The Tichborne case is now almost forgotten, save for some rhymes of Lord Bowen and a few witticisms of Lord Coleridge. And yet in their own day few public events have a more volcanic effect. Popular interest centres on them to the exclusion of far graver matters, and the plaintiff and defendant become as much party leaders as the Prime Minister. Now and then an event happens which resuscitates these dead controversies for a moment. A few months ago the Swilecki case at Berlin roused intense popular feeling in Poland, and it was remarked by antiquarians that its facts were almost identical with the great Douglas case which in 1769 nearly set Scotland on fire, and was the one topic for long in London society. The recent announcement of a book on the case may revive our curiosity about the ancient scandal. The notion of a rightful heir kept out of his own by the devices of rich and unscrupulous kinsfolk has as strong a hold upon the popular imagination to-day as it has had upon folk-literature in the past. From fairy-tales to the latest melodrama, it dominates the kind of art in which the populace delights. The Douglas case never attained the celebrity of the Tichborne ease, for it lasted a comparatively short time, and was not a strife between a plebeian and an aristocrat, but between two aristocrats equal in position and education, if not in blood ; but in Scotland at least it had an inflammatory power which belongs as a rule only to political trials. If it had no news- paper of its own, it had a very bulky literature ; and it had the advantage of filling the diaries of contemporaries whom we now regard as classics.
The facts of the case were simple. Two children, Archibald and Sholto, were born in Paris to Lady Jane Douglas and her husband, Sir John Stewart, when the lady, like the defendant in the Polish case, had reached the age of fifty without previous family. The elder son was brought up by his parents as their child, and recognised as the heir-general to his maternal grandfather, the Duke of Douglas, and the enormous Douglas estates. The Duke of Hamilton, the heir-male of the Douglases, who was entitled to succeed in default of issue of Lady Jane, came forward with the extraordinary story that the two children had been purchased from a Parisian rope
dancer and a glass-seller, and brought an action in the Court of Session to contest their claim. There were many suspicious circumstances about the birth, and there were undoubtedly pieces of forged evidence; on the other hand, the child had been acknowledged by his parents, an acknowledgment which was repeated on his mother's deathbed. The broad principle of law is that a child is the offspring of his apparent parents unless his paternity has been expressly disavowed; but in this case there seemed to be sufficient suspicion of 9nala fides to rebut the presumption of law. The Court of Session Judges were equally divided, and the famous Lord President Dundas gave his casting vote in favour of the Hamilton heir. It was the signal for a popular ferment which came very near being a revolution. Scotland divided herself, as she had often done in the past, into opposite camps of Douglases and Hamiltons, the lower classes to a man favouring the Douglas claim. The
Judges were mobbed in the streets, their windows were broken, and a sort of Gordon Riots began while the case was appealed to the House of Lords.
The whole Peerage attended at the trial, and, as was then the custom in a cause célèbre, the lay Peers spoke and voted as well as the lawyers. Thurlow led for the Douglas claimant, and Wedderburn, then at the height of his popularity with the Whigs, represented the Hamiltons.
According to Horace Walpole, the latter spoke "with greater applause than was almost ever known." But the speech of the day was Thurlow's, who by his performance stepped at once into the front rank of the Bar. That black-browed advocate did not mince matters, and he attacked the Hamil- tons, and especially their agent, Mr. Stuart, with a violence of which we have happily lost the art. Stuart sent him a challenge, which, being a breach of privilege of the House, he might well have refused. But he was perfectly prepared to face the consequences of his words, accepted joyfully, met his adversary early next morning after eating a huge breakfast at a tavern near Hyde Park Gate, advanced, and, according to the challenger, "stood up to him like an elephant," and failed either to receive or inflict any damage. The Lords wisely took the case on its merits, refusing to allow the element of suspicion in the evidence to taint what was other- wise a final proof, and rejecting the doctrine that "false in one thing is false in all things"; and without a division upset the verdict of the Court of Session, though five lay Peers sub- sequently signed a protest. The delivery of judgment was begun by the Duke of Newcastle, and continued by Lord Sandwich, who found in the case a fair field for his dis- reputable talents. According to Horace Walpole, he had, with his usual industry, studied the midwifery of the case, and so scandalised the Bishops that they gathered up their skirts and fled. Camden, the Lord Chancellor, delivered the real judgment, laying his hand on his heart, we are told, after his usual fashion, and pledging his honour for the integrity of the appellant. Mansfield, the Chief Justice, spoke Flo violently that he fainted with fatigue, and by universal consent he seems to have made one of the worst speeches of his life. His chief argument was the antiquity of the house of Douglas, which no one doubted, and the conse- quent purity of Lady Jane's character,—a strange de- duction for one familiar with the history of that remark- able house. He laid himself open, also, to the charge so often made against him, that there was no uniformity in his decisions, for a few years later, in the Anglesea Peerage case, he laid down strongly the doctrine that a clear proof of forgery was sufficient to cancel parole evidence. Mansfield's position, however, was probably logical enough. He believed that all absolute rules as to the credit of evidence were vain, and varied with each case; and while in one case he might declare that a fourth part forged made the other three void, in others be might hold that three-fourths forged did not necessarily invalidate the remainder.
It is a curious story, both as an instance of the legal pro- cedure of another age, and as a comment upon a permanent trait in the popular mind. Dr. Johnson, who, according to Boswell, had given little attention to the ease, expressed the common-sense view of it. "I am of opinion that positive proof of fraud sh.ould not be required of the plaintiff, but that the judge should decide according as probability shall appear to preponderate, granting to the defendant the presumption of filiation to be strong in his favour. And I think, too, that a good deal of weight should be allowed to the dying declarations, because they were spontaneous. There is a great difference between what is said without our being urged to it, and what is said from a kind of compulsion." But the common-sense view was never the popular one. Let a claimant only be a poor man, and he will have many to support him without listening to a word of evidence. It is an exaggerated form of a very honest instinct which has been fostered through many generations by a particular convention into which popular literature has fallen. A sense of the inequalities of life and a desire for fair play predispose the "man in the street" to scent dark oppression in every instance where u poor man is pitted against a rich. The enormous difficulty which a real heir might have in establishing his claim in the teeth of vested interests leads easily to the assumption that all such claims are likely to be true. To hint darkly of birth in the style of, "If I had my rights I should be riding in my carriage," is gt common form of boasting ; and the missing heir is as dear to the popular fancy as to the penny novel. After .all, it is an element of romance which we should be sorry to see lost to the world:
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