Upon hearing of this injurious report, Sinclair sent a challenge to Ensign Schaw. It was dispatched through the medium of a brother officer, to whom the Ensign replied, at first, that he had just heard of his brother George's being wounded before Lisle, and that it was of far greater importance that he should go to him than accept the Master of Sinclair's challenge; besides, the young man added, that since his last misfortune, probably a fatal duel, he had pledged himself neither to receive nor to give a challenge. Should a rencontre happen, he would defend himself as he could; that, after all, he had said nothing but what he could prove. Upon these words being repeated to the Master of Sinclair, he fell into a violent passion, and swore that he would not give Schaw fair play; that his honour was concerned. The second whom he had employed then threatened to take the challenge to Colonel Preston; upon which the Master told him "he was a rascal if he did it."
On the following day, the Master met Ensign Schaw, and taking a stick from underneath his coat, struck the Ensign two blows over the head with it. They both drew, and fought with such fury that the Master's sword was broken, and that of the Ensign bent; upon which Sinclair retired behind a sentinel, desiring him "to keep off the Ensign, as his sword was broken." Schaw then said, "You know I am more of a gentleman than to pursue you when your sword is broken." But the young soldier Schaw had at this time received a mortal wound, of which he died; but not until after the verdict of the court-martial ultimately held on Sinclair.
In the course of three days a second fatal rencontre succeeded this deadly contest; and another brother, Captain Alexander Schaw, fell a victim to the vindictive and brutal notions at that period considered in the army to constitute a code of honour.
Captain Schaw was naturally indignant at the death of his brother; he expressed his anger openly, and said, that the Master of Sinclair had "paper in his breast," against which his brother's sword was bent; and that he had received the fatal wound after his sword had thus become useless. The Master of Sinclair having heard of these assertions, resolved to avenge himself for these imputations cast upon him. On the thirteenth of September, as Captain Schaw was riding at the head of Major How's regiment, the sound of his own name, repeated twice, announced the approach of the hated Sinclair. Captain Schaw turned, and inquired of the Master what he wanted. Sinclair replied, by asking him to go to the front, as he wanted to speak to him; to which Captain Schaw rejoined, that he might speak to him there. "Yes," returned Sinclair, "but if I fire at you here, I may shoot some other body." Captain Schaw answered, that he might fire at him if he pleased, he bore him no ill-will. "If you will not go to the front," returned Sinclair, "beg my pardon." This was refused, some words of further aggravation ensued; then the Master of Sinclair drew his pistol and fired at Schaw. The Captain was also preparing to fire; his hand was in the act of drawing his pistol when it was for ever checked, whether employed for good or evil; the aim of Sinclair was certain, and Schaw fell dead from his horse. Sinclair, without waiting to inquire how far mortal might be the wound he had inflicted, rode away.
Thus perished two young officers, described by their brother, Sir John Schaw, as "very gallant gentlemen." To complete the tragedy, a third, wounded at Lisle, was brought to the camp at Wynendale, and expired in the same room with his brother, Ensign Schaw, partly of his wounds, partly of grief for his brother's death; so that the offender, as the surviving brother remarked, "was not wholly innocent even of his blood:" yet both these rencontres, to adopt the mild term employed by Sir Walter Scott, were viewed in a very lenient manner by the officers of the court-martial which afterwards sat upon the case, and even by Marlborough himself. The Master of Sinclair speaks of them in his narrative in terms which imply that one, whose hands were so deeply dyed in crime, regarded himself as an injured man; there can scarcely be a better exemplification of the deceitfulness of the heart than such a representation.
On the seventeenth of October, 1708, a court-martial upon the Master of Sinclair was held at Ronsales by the command of the Duke of Marlborough. Upon the first charge, that of challenging Ensign Hugh Schaw (in breach of the twenty-eighth article of war), Sinclair was acquitted, the court being of opinion that the challenge was not proved.
Of the second accusation, that of killing Captain Alexander Schaw, the Master of Sinclair was found guilty, and sentenced to suffer death. He was, however, recommended to the mercy of the Duke of Marlborough, in consideration of the provocation which he had received,—the prisoner having declared that, not only on that occasion, but upon several, and in different regiments, Captain Schaw had defamed him; that he was forced to do what he did, and that he had done it with reluctance.
The case was, however, afterwards referred to the Attorney General and the Solicitor General, who gave it their opinion that Sinclair was guilty of murder; for had the trial taken place in England before a common jury, the judge must have directed the jury to find him guilty of murder, no provocation whatever being sufficient to excuse malice, or to make the offence of killing less than murder, when it is committed with premeditation. How far the provocation was to be considered as a ground of mercy, these legal functionaries declined to judge.
Upon the publication of this sentence, Sir John Schaw addressed a petition to Queen Anne, praying for justice on the murderer of his brothers, and appealing to his Sovereign against the extraordinary recommendation of the court to mercy. He also wrote urgent letters to the Earl of Stair and the Duke of Argyle, praying for their intercession with the Duke of Marlborough that the murderer of his brothers might be punished. He next wrote to the Duke of Marlborough himself. The following letters show the earnestness of the pleader, and prove the caution and subtlety of the General. Some deep political motive lay beneath the mercy shown to Sinclair, otherwise it seems impossible to account for the conduct of so great a disciplinarian as Marlborough in this affair.