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 Lord Ellenborough, on 24 Feb. 1806. A technical verdict of guilty was returned. On 26 April a new trial was moved for. In the meantime many other charges brought by Fullarton against him had been under investigation by the privy council, and in January 1807 they reported that ‘there was no foundation whatever for further proceedings in any of them.’ In February 1808 Fullarton died, and on 11 June Picton's second trial came on again before Lord Ellenborough and a special jury. A special verdict was returned, ‘That by the law of Spain torture existed in the island of Trinidad at the time of the cession to Great Britain, and that no malice existed in the mind of the defendant against Luise Calderon independent of the illegality of the act.’ An argument on this special verdict was heard on 10 Feb. 1810, when the court ordered the defendants' recognisances to be respited until they should further order. This practically ended the case, as no judgment was ever delivered. Picton's defence was that he had to administer the laws of the island as they existed at the time of the capitulation; that he looked to the judge appointed to administer those laws to state what the law was; that if Luise Calderon had been tried by English laws she would have been hanged for stealing from a dwelling-house above the value of forty shillings. While the idea of torture was repugnant to English feelings, this particular form of punishment was not severe, and was at one time resorted to in the English army for minor offences.

The people of Trinidad subscribed 4,000l. towards Picton's legal expenses. But when shortly afterwards a disastrous fire in Port of Spain, the capital of Trinidad, rendered many of the poorer inhabitants destitute, Picton, who warmly appreciated the loyalty of his former subjects, sent the whole amount to the island for the relief of the sufferers by the fire. Similarly, the old Duke of Queensberry offered, although a stranger, to assist Picton in his legal expenses with any sum up to 10,000l. Picton declined the offer, as his uncle supplied him with the necessary funds. When he went to the Peninsular war, Queensberry again sent for him, and begged him to write regularly to him, which he did as long as the duke lived.

On 25 April 1808 Picton was promoted major-general. During the four years in which he had been fighting in the law courts he had not been unmindful of his profession. He had addressed a letter to Addington on organisation for home defence, which contained many valuable suggestions which might well be adopted in the present day. In July 1809 he was appointed by the Duke of York to the staff of the Earl of Chatham in the expedition to Flushing. Picton embarked at the end of the month with the army in the fleet commanded by Sir Richard Strachan. He took part in the siege and capture of Flushing, and was appointed commandant of Flushing and the neighbouring country with a force of four regiments. After the departure of Lord Chatham with the greater part of the troops for England, on 14 Sept., Picton was appointed governor of Flushing, but was attacked by the epidemic fever, and was invalided home. He went first to Cheltenham, and then to Bath, where, in January 1810, he received orders to join the army in Portugal.

On Picton's arrival in Portugal he was placed in command of the third division, near Celerico. This division consisted of Colonel Mackinnon's brigade—viz. 1st battalion of the 45th foot, the 74th foot, and the 1st battalion of the 88th foot—and Major-general Lightburne's brigade, viz. the 5th foot, the 2nd battalion of the 58th foot, the 2nd battalion of the 83rd foot, and the 5th battalion of the 60th regiment. The army numbered under twenty-four thousand men. The first division was stationed at Viseu, the second at Abrantes, the fourth at Guarda, the light division at Pinhel, and the cavalry along the bank of the river Mondego. Ciudad Rodrigo and Almeida had been placed in an efficient state of defence, and the lines of Torres Vedras were in an advanced state of progress. Wellington's object at this time was to avoid a general engagement with the greatly superior army of Masséna, but to retard its advance and exhaust its resources before drawing it into the snare he had been long and skilfully preparing. The confidence of the British troops was maintained by the daring manœuvres of Crawfurd and the light division.

On Crawfurd's advance to the Agueda, Picton was directed to move to Pinhel to support him if necessary, but to avoid an action if possible. After the fall of Ciudad Rodrigo on 10 July, Crawfurd fought the battle of the Coa on the 24th. Napier the historian blamed Picton for not bringing up the third division to the support of Crawfurd; but it is very doubtful whether Crawfurd asked Picton to come to his aid, or whether Picton knew of the engagement in time to do so; and, even if he had known of it in time to be of use, he deserved credit rather than blame for the moral courage he displayed in keeping in mind at such a time Wellington's general strategy and his instructions to avoid, if possible, a general action.