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Scotland Magazine Issue 50
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The Douglas Cause
James Irvine Robertson investigates a nation-gripping court case.
In the mid 18th century the outcome of a law case gripped the nation. It led to death threats, riots and the equivalent of £150m was bet upon its outcome. This was the Douglas Cause.
Had Archibald, the Duke of Douglas, not been a duke and the owner of vast swathes of Scotland, history would not have heard of him. He was virtually illiterate, took no part in the affairs of the nation, lived as a recluse, died childless and may well have been insane. In order to ensure the loyalty of the Douglases to the new regime, his dukedom came from Queen Anne when he was aged nine. His heir was his sister Jane and, should she fail to produce offspring, the duke’s fortune and most of his string of ancient titles would pass to his cousin, married to the Duchess of Hamilton. All looked set fair for the Hamiltons. Both Jane and her brother were unmarried, at least until 1746 when she made an unsuitable union with Colonel John Stewart, a Jacobite sympathiser. But that did not seem to be a problem for the Hamiltons since Jane was 48.
The couple went to the Continent and, two years later, Jane claimed to have given birth in Paris to twin boys, Archibald and Sholto.
Encouraged by the Hamiltons, her brother refused to recognise the boys as her children and his heirs. He cut off his sister’s allowance and when the couple returned to Britain in 1751, Stewart was imprisoned for debt. Jane and her son Sholto both died in 1753 and young Archibald ended up in the care of the Duke of Queensberry who saw to his education. To general astonishment Douglas married in 1758. Three years later and only 10 days before he died his duchess managed to persuade him to accept Archibald as his heir.
Archibald changed his name from Stewart to Douglas and, after a brief legal tussle with the Hamiltons, he duly entered into his inheritance, then worth the remarkable sum of £12,000 a year.
With so much at stake, it was unsurprising that the Hamiltons objected. They sent a shady investigator to Paris who came back with the information that Archibald was actually Jacques Louis Mignon, son of a glassworker, who had been kidnapped in July 1748 by ‘a Lady, a Gentleman and their maid’, that Sholto was the son of Sanry the Rope Dancer who had vanished in similar circumstances. The gumshoe also reported that the whole story of Jane’s pregnancy was a fraud, that witnesses to it could not be found, that the couple had not stayed where they said they had.
In 1762, the Hamiltons launched an action in the Court of Session in Edinburgh claiming that Archibald was no Douglas and had no right to the inheritance and that it was absurd to claim that Jane could have had twins at 51. By 1767, at the request of the judges, each side had published memorials - 1,000 page statements of their cases, containing letters, documents, witness reports, affidavits, citations of Scots and French law and anything else that the lawyers could think of. For the legal profession the case was a bonanza, lasting eight years and racking up costs of £52,000 before it was resolved. Litigation took place in Scotland, England and France with immense public interest throughout Europe being taken in every stage of the process.
Everyone had an opinion and everyone took sides. David Hume, Adam Smith and Dr Samuel Johnson all supported the Hamiltons. Johnson’s biographer, James Boswell, disagreed and became a propagandist for Archibald’s faction, producing more than 20 articles and three books on the subject. He had the Edinburgh mob on his side.
Amid intense interest, a total of 24 lawyers read speeches to the 15 judges before whom the case was heard. The speechifying lasted 21 days, making it the longest ever pleading before the Court of Session. On 14th July 1767, the Court gave its opinion. The judges were split down the middle, seven in favour of the Hamiltons and seven for Archibald.
The Lord President, Robert Dundas, gave a casting vote in favour of Hamilton. As one contemporary observer, lawyer Robert Stewart wrote ‘poor Douglas lost his cause yesterday by the president’s casting vote, leaving him without father or mother, sister or brother or any relation on Earth for the evidence on which he is condemned does not give him in law other parents’.
Archibald’s lawyers immediately launched an appeal to the House of Lords in London. Apart from anything else £100,000’s worth of bets depended on the outcome, perhaps £150 million in today’s money. The case opened in January 1769 and lasted over a month. During its hearing, the private detective challenged and fought a duel against one of Archibald’s lawyers who had called him a liar. Pistols were fired but both missed. The decision was unanimously reversed and Edinburgh went wild with joy.
The judges who had opposed Douglas had their windows smashed and the mob plundered the Hamilton apartments in Holyrood House. For two days it was dangerous for opponents of Archibald to be in Edinburgh. Then troops were ordered to the city and order was restored.
The dukedom died with Archibald’s uncle but the young man became one of the richest magnates in Scotland, owning land in Wiltshire as well as eight counties north of the border.
He was an improving landlord, married twice into ducal families and entered politics as MP for Forfarshire. In 1782 was raised to the peerage as Baron Douglas of Douglas in 1790. After an unexceptional life he died in 1827 aged 79.
In a corollary to the story, in 2008 letters were found in the archives of the Earl of Home written by Archibald’s mother Jane and one of her lawyers. They strongly indicate that she and her husband did actually buy the babies in Paris.