"Alexander Humphreys, or
Alexander, pretending to be Earl of
Stirling," said Lord Meadowbank,11
addressing his prisoner, on his being
first placed at the bar, "you have
been served with an indictment charging
you with the crimes of forgery,
and of feloniously using and uttering
as genuine, certain documents therein
described, and alleged to have been
forged and fabricated, you knowing
them to be so. Are you guilty, or
not guilty?"
"Not guilty, my Lord," replied the
prisoner, standing beside his friend
Colonel D'Aguilar. But now occurs
the question—how was he to be tried?—as
a peer of Scotland, or as a commoner?
If as a peer, the court
before whom he stood was incompetent
to try him; for he was entitled,
by the Treaty of Union, as a peer of
Scotland, to be tried as peers of Great
Britain are tried—viz., in the Court
of the Lord High Steward; and the
mode of procedure is that prescribed
in 1825 by Statute 6 Geo. iv. c. 66,
which required the Scottish judges to
be summoned and to sit with the
English judges, and according to the
law of Scotland, [pp. 5, 6.] This
privilege, however, as will be presently
seen, the prisoner waived. Then came
another question: was he to be tried
as a "landed man?"—by which is
meant a landed proprietor. It is a
very ancient privilege of landed men,
by the Scotch law, that they should
be tried only by their peers—i.e., their
brother landed proprietors. In process
of time, however, this right has
been so far modified as to entitle the
prisoner to a majority only of his
landed brethren. This right also, as
will shortly be seen, the prisoner
waived—having probably no pretence
to the possession of any lands in Scotland,
except such as he claimed as
Earl of Stirling. To meet any possible
difficulty, however, on this score, two
lists of assize had been prepared—respectively
consisting of "landed men"
and common jurors, and "special
jurors" and common Jurors: the
former to be adopted "if the said
Alexander Humphreys claimed, and
was entitled to, the privilege of a
landed man;" the latter, "if he did
not claim, or was not entitled to, the
privilege of a landed man."
After the prisoner had pleaded not
guilty, the clerk in court read aloud
the defences which, according to
the procedure in Scotland, had been
lodged in court for the prisoner,
signed by his two counsel. They
were entitled "Defences for Alexander
Alexander, Earl of Stirling,12
against the indictment at the instance
of her Majesty's Advocate."
These Defences were comprised
in two paragraphs. The first stated
that, as Lord Cockburn's interlocutor,
though not final, had decided
against the prisoner's claim to be
the heir of the Earl of Stirling,13
"he was advised that he was not
in a condition to plead the privilege
of peerage; but was bound to
acknowledge the competency of that
court to proceed under the indictment
before it." The second proceeded
thus:—
"The panel pleads not guilty of
the libel generally; and, even particularly,
he denies that he had the
slightest ground to suspect that all,
or any, of the documents libelled on
were forged or fabricated. He produced
them under legal advice, in the
belief of their being genuine, and useful
for the support of his interest."
"A third paragraph consisted of an
application to postpone the trial, on
the ground that the prisoner was not
prepared for it, as one of his counsel
and his agent had gone to London
and Paris to make inquiry as to
several of the witnesses for the Crown,
and such further investigation as
might be necessary for his defence."
The words which we have placed in
italics indicate a course of procedure
altogether at variance with that
adopted at the English bar.
As soon as their Defences had
been read, the prisoner's counsel rose
and said, "My lords, I do not mean
to claim for the panel the privilege
of a landed man; nor do we intend to
state any objections to the relevancy
of the indictment." By "relevancy"
(a technical term in Scotch law) is
signified "the justice and sufficiency of
the matters stated in the indictment
to warrant a decree in the terms
asked;"14 and, according to the criminal
law of Scotland, this objection
must be taken, if at all, before the
trial. If it be not, the prisoner cannot
make it the subject of arrest of
judgment by the court, but must
refer it to the law advisers of the
Crown, after the sentence has been
pronounced by them, to have such
weight attached to it as may be
deemed proper, with a view to pardon
or mitigation of punishment.15
"Let the relevancy of the indictment
be determined," said the Solicitor-General,
"by your lordships
pronouncing the usual interlocutor."
Lord Meadowbank.—"Alexander
Humphreys, or Alexander, attend to
the interlocutor of the court," which
the clerk read as follows:—
"The Lords Commissioners of Justiciary
find the libel RELEVANT to
infer the pains of law, but allow the
panel a proof in exculpation and
alleviation; and in respect that the
panel has by his counsel waived his
right, if he any have, to be tried by
a jury, of which the majority shall
consist of landed men, remit the
panel, with the libel as found relevant,
to the knowledge of the ordinary
assize."
Lists of all the witnesses and documentary
proofs, on both sides, were,
as it would appear, interchanged;
and the trial having been postponed
from the 3d to the 29th April 1839,
on the latter day it commenced—not
however, as in England, with a preliminary
statement on the part of the
prosecutor of the course of expected
proof, but with the evidence itself in
detail. After that on both sides had
been adduced, the counsel for the
Crown addressed the jury, and then
the counsel for the prisoner; after
which Lord Meadowbank summed
up. We beg to say that we think
the English course of procedure greatly
preferable to the Scottish, in commencing
the trial with a temperate and
lucid statement of the case intended
to be made out by the Crown,
enabling both the Court and the jury—but
especially the latter—to obtain
an early clue through the labyrinth
of oral and documentary proof, to
see the drift of it, and appreciate, in
going along, the significance of what
is being done. In the present case,
for instance, the jury were plunged
instanter into a series of details of
somewhat complicated legal proceedings,
and legal and other documents:
the Solicitor-General feeling the necessity
many times of interposing, to
intimate that "the object of this or
that evidence was to show so and so,"
&c. &c. And, indeed, if the jury
really saw their way with only middling
clearness through the evidence,
as it was being adduced, they were a
far shrewder and more experienced
jury than it has been our lot to see
for many a long year, even at Guildhall
or Westminster. In the present
case, a half-hour's calm preliminary
statement, by the Solicitor-General,
of the points of the charge, and the
application to them of the evidence,
would have greatly assisted the jury,
possibly even the Court, and, long
afterwards, ourselves. In despair, we
leaped out of the intricate evidence
into the speeches of counsel, and the
summing up of the judge, afterwards
recurring to the evidence and appendices.
At length we found ourselves
on sure ground, and in a clear atmosphere;
and grudged not the effort
we had made to overcome the obstacles
of which we have been complaining,
and also the difficult technicalities
of Scottish criminal law
procedure.
It will be recollected that the indictment
embraced three distinct classes of
alleged forgeries—the excerpt
charter of Novodamus, the Le
Normand packet, and the De Porquet
packet. To establish the "using"
and "uttering" of these instruments,
evidence was given of their having
been adduced, on the part of the
prisoner, in the various Scottish
courts in which he had from time to
time asserted, and endeavoured to
maintain his claims. Lord Cockburn's
important judgment of the 10th December
1836 was also put in evidence,
as were also the examinations of the
prisoner, some of his correspondence,
and the instruments charged by the
indictments to be forgeries. Let us
take these latter in their order;
and—
I. The Excerpt Charter of Novodamus
of the 7th December 1639.
Was this a genuine or a forged document?
The acute and learned scrutiny
to which it was subjected elicited
remarkable and most decisive results.
We know a little more than was disclosed
to the Court—namely, that the
mysterious discovery of this "excerpt"
was communicated to the prisoner
from Ireland by his indefatigable
agent, Mr Banks, on the 17th March
1829. All that was proved before
the Court was, that the prisoner delivered
it in that year to his law-agents,
who immediately commenced
proceedings in the Scotch courts to
"prove its tenor." Let it be observed,
that "this most suspicious scrap of
writing," as the Solicitor-General
styled it,16 professed to be only an
"excerpt" of a lost charter of King
Charles I., dated the 7th December
1639—not an entire copy, but only
"an abridged copy;" and the exigencies
of the prisoner's case had
required that that identical excerpt
should have been in existence at least
as long ago as the year 1723,17 since
it bore an indorsement18 by "Thomas
Conyers," attesting its authenticity,
dated the 10th July 1723. It will
be impossible, however, to appreciate
the force of the delicate but decisive
evidence brought to bear upon this
unlucky document, unless we have a
distinct idea of the different stages
of progress through which a royal
charter would have to pass in the
year 1639. They were explained at
the trial by several learned and experienced
officials; and we have taken
some pains to clear away technicalities,
and present their evidence briefly and
popularly. The stages, then, through
which a royal charter had to pass
were three.
First came the Signature. This
was not, as the word would ordinarily
import, and in England, a mere name
signed, or mark, but an entire document,
constituting the foundation of
the proposed charter, and containing
its essential elements. It is drawn
up in English by a Writer to the
Signet, and brought by him, on a
given day, to a Baron of the Exchequer
to be examined, in order to
ascertain that it is correct, especially
as to the "reddendo," or annual feu-money
due to the Crown. On being
satisfied of its accuracy, the Baron
marks the signature as "revised;"
and in due time the sign-manual is
affixed to it. It is then complete—is
recorded in the Exchequer Record—and
retained by the Keeper of the
Signet. There is subscribed to it
only the date, and the words, "At
Whitehall, [ ] the day of [ ] ."
Secondly, Warranted by the possession
of this revised "signature," the
Keeper of the Signet issues a "Precept
to the Privy Seal," which is
simply a Latin translation of the
English signature, and is recorded in
the Privy Seal Office. That office
then issues this precept to the Great
Seal; and it is to be noted that this
Privy Seal Precept has subscribed to
it the words, "Per Signetum,"
which seems to be an abbreviation of
the words, "per preceptum datum
sub signeto nostro."
Thirdly, As soon as this Privy Seal
Precept has reached the Chancery
Office, the functionaries there draw
up formally, and in extenso, the
Charter, which is sealed with the
Great Seal; the Privy Seal Precept
on which it is grounded either remaining
in the Chancery Office, or
being lodged in the General Records
of Scotland. This completed Charter,
alone, has a testing clause; and
it is the Privy Seal Precept only
which bears, as we have seen, the
words "per signetum."
See, then, the origin, progress,
and completion of a Royal Charter
in 1639—Signature; Privy
Seal Precept; Charter; each
having its appropriate depositary or
record—the Signet Office, the Privy
Seal Office, the Great Seal Office; to
which, indeed, may be added a fourth,
the Comptroller of Exchequer's
Register, where also was recorded
every instrument of the above description,
to enable that officer to account
to the Crown for the feu-duties. These
four old registers, or records, are all
completed from periods long anterior
to the year 1639, down to the present
day, with the exception of a hiatus of
twelve leaves at the commencement
of the fifty-seventh volume of the
Great Seal Record; but the contents
of these twelve leaves were clearly
ascertainable from the indexes of
other records. "It is the boast of
this country," said Lord Meadowbank,
in summing up, to the jury,19
"and always has been, that its registers
have been kept with a regularity
unknown elsewhere."
If, therefore, there ever had been
such a charter as that of which the
document under consideration professed
to be an excerpt, that charter
ought to have been found in every one
of the four records or registers above
mentioned.20 Add to this, that William
Earl of Stirling was himself, at
the time, the Keeper of the Signet,21
and also "a man of talent, and attentive
to his own interests—not likely
to have received grants of such unusual
importance as those contained in
the charter in question, without seeing
them properly carried through the
seals."22
Now for the excerpt itself, and its
aspect. It was written on several
single leaves of paper, not numbered,
apparently cut recently out of some
book, and stitched together, the outside
leaf being brought round and stitched
down on the remaining leaves. The
colour was a uniform deep brown—equally
so underneath the margin
covered over at the stitching. There
were ruled red lines round the pages.
The writing appeared "fresh"—at all
events, not so old as the paper; and
was not in a Scotch chancery-hand, or
any hand used in the Register Office,
but like that used in engrossing deeds
in England and Ireland. The language
of the excerpt was Latin—but
such Latin! and it extended to about
thirty English common-law folios,
containing seventy-two words each.
At the beginning of the charter, on the
right-hand side, were the abbreviations,
"Reg. Mag. Sig. Lib. LVII."—i.e.,
"Registrum Magni Sigilli,
Liber LVII."
The only portion of the excerpt
with which we shall trouble the
reader in extenso, is the conclusion—the
testing part—which (especially
the part in italics) is worthy of the
utmost attention; and we adopt the
translation used at the trial:—"Witnesses:
the most reverend father in
Christ and our well-beloved councillor,
John, by the mercy of God Archbishop
of St Andrew's, Primate and Metropolitan
of our kingdom of Scotland, our
chancellor; our well-beloved cousins
and councillors, James, Marquis of
Hamilton; Earl of Arran and Cambridge;
Lord Aven and Innerdaile;
Robert, Earl of Roxburghe; Lord
Ker, of Cesford and Casertoun,
Keeper of our Privy Seal; our beloved
familiar councillors, Sir John
Hay of Barro, Clerk of our Rolls,
Register, and Council; John Hamiltoun
of Orbestoun, our Justice-Clerk;
and John Scot of Scotstarvet, Director
of our Chancery, Knights. At our
Court of Quhythall, the 7th day of
the month of December, in the year of
God 1639, and of our reign the 15th
year.
[Gratis]
Per Signetum."
On the back of this document was
written—"Excerpt from the original
charter to William, Earl of Stirling,
7th December 1639. T. C." [i.e.,
Thomas Conyers.] This indorsement
was also alleged in the indictment
to be a forgery. Here, then, we
have an "excerpt" or "abridged
copy" of a royal charter, dated the 7th
December 1639, granted by King
Charles I. to one of his most distinguished
subjects, conferring high dignities
and vast possessions; a charter
yielded to the anxious importunity
of the Earl in his old age, "when
labouring under great dejection of
spirits, after losing three of his sons,
who had given him the highest hopes,
and fearing, from the declining health
of two of the survivors, that his honours
might, at no distant period, pass
to a collateral branch of his family."23
And this Earl, too, the head of the
office in which the charter originated.
Now, First, the records of every one
of the four departments above mentioned—viz.,
the Signature Record, the
Comptroller of the Exchequer's Record,
the Privy Seal Record, and the
Great Seal Record—had been rigorously
searched, and not the faintest trace
of such an instrument appeared in any
of, them!—it being sworn that, had
it ever existed, it must have been
found in ALL! "This might possibly
have been accounted for,"
said the Solicitor-General,24 "had
there been but one register only;
more especially if a blank had occurred
in that register, through the obliteration,
imperfection, or loss of a
volume, or part of a volume. But
where there are four independent
registers, and these all concurring to
supply, in the fullest detail, the necessary
evidence as to all other charters,
[of which various instances
were proved at the trial,] and when
you find that this charter is not recorded
in any one of them, it is quite
impossible to believe—it would
really be asking too much of credulity
itself to believe—that such a document
could ever have existed." If this
instrument were the handiwork of a
forger, it may be reasonable to suppose
him capable of appreciating the
efficacy of the negative evidence which
might be brought against him, and to
endeavour to supply it. This brings
us, Secondly, to the memorandum in
the margin of the first page of the
excerpt—i.e., Reg. Mag. Sig. Lib. LVII.—which
meant that the charter itself
was to have been found "in the fifty-seventh
volume of the Register (or
Record) of the Great Seal." We have
already seen25 that, in point of fact,
twelve leaves, at the beginning of that
volume, were amissing; and the suggestion,
or rather assertion, of the
prisoner, when he commenced his
legal proceedings to prove the tenor
of the missing charter, was, that it
was to have been found in one of
these twelve leaves, "which had
perished, or disappeared—that being a
matter of public notoriety, and was so
observed by the Lords of Council and
Session in their return of the 27th
February 1740, to an order of the
House of Lords of the 12th June
1719, respecting the state of the Peerage
in Scotland."26 Here, then, are
only twelve leaves missing; and on
referring to one of the writings indorsed
on the map of Canada, (in the
Le Normand packet,) the writer stated
he had seen the charter, and "it extended
over fifty pages of writing."27
On this subject, Lord Meadowbank
proposed the following question to
the jury—"Putting aside the evidence
of this index, could you have
believed, when there is no evidence or
trace of this charter in the volume
where it should be found, that it
could, out of its place, have been
crammed into the twelve pages that
are lost, when the prisoner's own evidence
tells you the charter extended
to fifty-eight?"28 To proceed, however—What
will the reader suppose
was proved at the trial? First, two
ancient indexes of the missing twelve
pages of vol. lvii. were produced, unerringly
indicating the charters which
had stood recorded there, and among
which was not the charter in question,
but only those of date subsequent to
the year 1639; while all the charters
of that year 1639 stood regularly
recorded in the previous—the fifty-sixth
volume; and among them, also,
was not to be found the charter in
question. Mr George Robertson, one
of the Joint-Keepers of the Records,
thus certified on oath: "I have
searched the principal record of the
fifty-seventh volume of the Great Seal
Register, and at the beginning of the
said fifty-seventh volume, twelve
leaves have been destroyed or lost.
The charters originally recorded in
these missing leaves are, however,
ascertained with precision from two
ancient indexes of the Great Seal
Record. I have examined these, and
can state as the result, that the twelve
leaves now lost did not contain any
charter, diploma, patent, nor other
grant, in favour of William, Earl of
Stirling, nor of any Earl of Stirling,
nor of any person of the name of
Alexander." Still further, however:
the words on the margin, "Reg. Mag.
Sig. Lib. LVII.," purported to have
been written there by the framer of
the excerpt, in the year 1723; and
three experienced official gentlemen
declared their confident opinion,
that no such marking was coeval
with the making of the excerpt itself.
It was established at the
trial, that this mode of referring
to the Great Seal Records was
quite a modern one, commencing
with the year 1806 only: a fact
proved by the very author of the
arrangement, and his assistant; by
whom, in the latter year, the Records
were re-bound, and the titles made
uniform, for facility of reference, in
lieu of the loose and discordant
methods of reference till then in use!
Other experienced officials proved
that till the year 1806 no such mode
of reference as "Reg. Mag. Sig."
existed, and they gave specimens of
the former mode: e. g. "Chart. in
Archivis," appeared in a law book of
1763; and in a subsequent edition,
in the year 1813, the reference was
altered to "Mag. Sig." If, therefore,
the "excerpt" were a modern
forgery, it would almost appear as if
the fabricator, aware of the missing
leaves of Vol. LVII., but not knowing
how very recent was the lettering on the
back—"Reg. Mag. Sig."—had taken
it for granted that it was coeval
with the original formation of the
volume, or at least had been there
for a century—viz. since 1723. But
if this reference—"Reg. Mag. Sig. Lib.
LVII."—were a forgery, it must have
been a very modern one, necessarily
later than the year 1806, the date
of Mr Thomson's rebinding of the
Record, and changing the titling.
But we have seen that the prisoner
had accompanied his father to France
in the year 1802, and did not return
to England till 1814; and in the subsequent
year told his own agent, Mr
Corrie, that he had no documents to
support his claim. Is it a fair inference
from these dates that, down to at least
the year 1815, the famous excerpt
was not in existence—or at least unknown
to the prisoner? So much for
the negative evidence that any such
genuine document as the alleged
Charter of 7th December 1639 had
ever existed. But,
Thirdly, the excerpt itself seemed
to furnish a most conspicuous and
glaring demonstration of spuriousness:
we allude to the alleged attestation
of the Charter by Archbishop
Spottiswoode, in the capacity of
"our Chancellor" of the kingdom,
and as such, keeper of the Great
Seal. Spottiswoode, the Archbishop
of St Andrews, was undoubtedly for
a considerable period Chancellor of
Scotland; and his name is found in
the Records as an official witness to
all Charters from the Crown, passing
the Great Seal of Scotland during the
time that he held it. In the excerpt
Charter, he appears in that capacity
at the alleged date of the instrument—viz,
the 7th December 1639; but,
behold! not only had he ceased to be
Chancellor on the 13th November
1638, but he had actually died on the
26th November 1639—that is, eleven
days before that on which he was
made to attest the alleged Charter of
Novodamus! These facts were proved,
beyond all doubt, both directly and
collaterally, as, for instance, by an
instrument of a nature similar to that
before the Court, dated only four
days afterwards—namely the 11th
December 1639—a Charter in favour
of the City of Edinburgh, and attested,
&c., not by "John, Archbishop and
Chancellor," but by his successor, the
Marquis of Hamilton, (whose appointment
on the 13th November 1638
was proved,) and this very "William
Earl of Stirling and Canada," and
others: all of whom were also witnesses,
on the same day, to another
charter, to Heriot's Hospital. Here,
then, was a great Charter, making
under the Great Seal magnificent
grants to a Scottish nobleman, and
attested by a non-existent Chancellor,
whose temporary successor had been
installed in office thirteen months
previous to the date of the Charter!
Mr Swinton acutely points out29 the
source of this blunder, assuming the
excerpt to be altogether a forgery.
Archbishop Spottiswoode, as has been
seen, ceased to be Chancellor on the
13th November 1638, and died on the
26th of the ensuing November—i.e.
eleven days before the date of the
alleged Charter. Now, from the date
of the Archbishop's resignation, till
the appointment of the Earl of Loudon
as Chancellor in 1641, the Great
Seal was in commission, the head
commissioner being the Marquis of
Hamilton. But it singularly happens,
that, in the catalogues of the Scottish
Chancellors appended to Spottiswoode's
History, and other works,
the list during the reign of Charles I.
and the Commonwealth, is given as
follows:—
"1622, George Hay, Earl of Kinnoul.
1635, John Spottiswoode, Archbishop of St Andrews.
1641, John Campbell, Earl of Loudon.
1660, William Cunninghame, Earl of Glencairne."
——no mention being made, nor any
notice taken, of the interval between
the resignation of the Archbishop and
the appointment of the Earl of Loudon.
From this it may be inferred
that the fabricator of the document,
if it were fabricated, took it for
granted that from 1635 to 1641, and
consequently in the year 1639, falling
within that interval, the Archbishop
was Chancellor of Scotland. But again—Is
there any reason assignable for the
supposed fabricator having pitched on
the particular date of 9th December
1639? Yes! In Crawford's Life of
the Archbishop, the death of that
prelate is erroneously alleged to have
occurred on the 27th December 1639!—i.e.,
just eighteen days after the completion
of the alleged Charter.30 These
really seemed rather awkward facts!
But,
Fourthly, there was apparently
another great blot pointed out by
the lawyers. Immediately after the
above-mentioned testing clause, followed
the words "Gratis.—Per
Signetum."31 Now, it has been
seen that the testing clause is
the conclusion of only a completed
Charter. This "excerpt," therefore,
if taken from any document, must have
been taken from a completed Charter.
It could not have been taken from the
Signature, nor the Signet Precept,
nor the Privy Seal Precept, for in
none of these instruments could such
a clause appear. But in addition to
this testing clause, appear the words
"Per Signetum!" which are never to
be found in any charter at all, but
only in the Privy Seal Precept! So that
here was a document containing, on
the one hand, words (the testing clause)
which are to be found in only a completed
charter, and which could not
exist in a Privy Seal Precept; and,
on the other hand, certain other
words (Per Signetum) never to be
found in a completed charter, but
only in a Privy Seal Precept! It was
accordingly sworn unhesitatingly by
all the professional witnesses, even
on the strength of these conclusive
elements of intrinsic evidence alone,
that the document before the Court
could not be an excerpt, or copy, of
any authentic writ of any description
whatever, known in the law of Scotland.
There seems some little force
in the Solicitor-General's observation
on this part of the case: "Gentlemen,
is there not here, then, the
clearest and most satisfactory evidence
that this is not, and cannot be,
an excerpt from any real or genuine
document? There is an incongruity
about it, which shows it could not
have been copied from any document
that ever existed. The writer of it—whoever
he was—may have had a
sort of glimmering of what it ought to
have been; but still, in his ignorance,
he has made a monster of it. It is
utterly impossible, looking merely to
the intrinsic evidence, that it could
be the document which it professes
to be."
Fifthly, Not satisfied with these
rigorous assaults upon the genuineness
and authenticity of this unfortunate document,
the Scotch lawyers detected,
as they considered, several serious intrinsic
evidences of spuriousness. First,
the alleged charter professed to convey
estates which had never belonged to
the Scottish Crown—viz., lands, provinces,
and territorial rights in New
England. "It is not possible," said
Lord Meadowbank, and the professional
witnesses supported him,
"that a charter granted by a king of
Scotland could convey—or be granted,
as if it had conveyed any property
not belonging to the Crown of Scotland.
That such a Signature should
have passed the Barons of Exchequer,
and their officers, is beyond all
belief:" for it must be remembered,
that the "Signature" is, in its first
stage towards a charter, submitted to
a Baron of Exchequer, to be "revised,"
before the sign-manual is
affixed to it. This is, undoubtedly, a
fact lending great weight to any
really inconsistent or objectionable
provisions in the "Signature," or
subsequent charter. Secondly, In
Crown charters of resignation, to
which that in question professed to
belong, it was proved that the dates
of the resignation were "invariably
given:" here were none—and this
objection also must have escaped the
somnolent Baron of the Exchequer of
1639. Thirdly, The "Charter"
stated a resignation to have been
made by a grandson of the Earl of
Stirling, in the Earl's lifetime; which
resignation the grandson had no title
to make; and till he had, having
nothing, he could resign nothing
according to the law of Scotland;
and such could never have passed the
Exchequer. Fourthly, The alleged
charter professed to convey the titles
and dignities of the earldom; the
Earl professed to resign his earldom,
which the king, by that deed, was made
to reconvey, with precedency from
the date of the first grant. "This,"
said Lord Meadowbank, and the evidence
supported him, "I believe to
be altogether unprecedented. It was
totally unnecessary—the precedency
conveyed following as a matter of
course. I have seen many such grants,
and never such a dignity reconveyed,
with such a stipulation." Fifthly,
While the invariable practice, in
Royal Charters to Peers, is to address
the one concerned as "consanguineus
noster," and never to give that title
to a commoner, the alleged charter
in question twice applied that title to
Alexander, the son of the peer, (consequently
a commoner,) and not to
the Earl himself!
Lastly, As to the structure and
aspect of the "Excerpt." It had red
lines round the margin, which (said
the principal witness, Mr Thomson,
the Deputy-Clerk Register,)
"were not introduced till the year
1780: at least it has not come under
my notice at an earlier period."
Then, again, three gentlemen, "the
most experienced," said Lord Meadowbank,
"as to old writings that
are to be found here or anywhere
else," stated that, at looking at the
document, they had at first sight not
the least doubt or difficulty in saying,
that they did not believe it to be
genuine, but of recent fabrication.
One of them, the Mr Thomson above
mentioned, declared that the paper
was older than the ink in which the
words on the face of it were written;
that where the paper was folded over
and stitched down, it was of the same
tinge with the body of the paper
which had been exposed to the air,
and which could not be, had it been
folded for any length of time. Here
it must have been so folded for at
least a century. That the "excerpt"
appeared to consist of separate leaves
recently cut from a book—all of them
half-sheets detached from each other;
and that where, under the cover, the
paper should have been whiter,
through non-exposure to the atmosphere,
it was not of a different colour
from the rest of it. Two eminent
professors of chemistry were engaged
by the Court to make experiments
on a portion of the paper, in order to
ascertain whether the dark colour of
the paper was the natural result of
age, or of artificial means used to
obtain that result. The doctors,
however, came to opposite conclusions;
and their evidence, therefore,
was properly discarded from the case.
Finally, As to the character of the
handwriting, one of the most experienced
of the professional witnesses,
Mr Mackenzie, a Writer to the Signet
of thirty-six years' standing, made,
in the opinion of Lord Meadowbank,
"a very striking remark:" that the
writing was in a peculiar hand, in
imitation of old hand, which was
altogether different from the Chancery
hand in which charters in Scotland
are written; that he had never before
seen a copy made like the one in
question, in old hand; and that a
person sitting down to make a copy
of such a charter, would do it in the
running-hand of the country where
it was written. "It is my duty to
observe to you," said Lord Meadowbank,
"that impressions made by
such appearances," as the above, "on
the minds of persons of skill, at first
sight, are often of great weight....
I leave this part of the case with
this single observation—that the impression
of these witnesses, when they
first saw it, was to the prejudice of
the genuineness of this document, as
an excerpt from a genuine charter.
Whether it was a writing somewhat
older, or only thirty years old, seems
to be very little to the purpose; but
they said it appeared to be a document
of recent formation—that that
was the first impression made upon
their minds, when it was submitted
to their inspection." The Solicitor-General
had thus closed his remarks
on the subject of the above excerpt
charter: "These considerations make
the absence of all explanation as
to the history of this document a
most suspicious circumstance in the
prisoner's case; so much so, with
submission, that the possession of the
deed must be accounted for by the
prisoner in some way or other, before
he can shake himself free from the
charge that is now made against
him."
The following is the substance of
the answer to this portion of the case,
offered by his eloquent and ingenious
advocate. Unable to struggle against
the bulk of the professional evidence
tending to impeach the genuineness
of the excerpt, and to disprove the
existence of the alleged charter from
which it was taken, Mr Robertson
admitted that there were the great distinctions
which had been alleged, between
a completed charter and the
instrument which preceded it; that
the words "per signetum" could not
properly appear on a completed
charter; that the document under
consideration purported to be an
excerpt of such completed charter;
that the abbreviations "Reg. Mag.
Sig. Lib. LVII." could not appear
on an excerpt of the date assigned by
the prisoner to that which he had
brought forward before the Scottish
courts; that it was proved that no
such charter as that of the 9th Dec.
1639 was entered on record; and that
Archbishop Spottiswoode could not
have attested such an instrument,
having undoubtedly ceased to be chancellor,
and died previously to its date.
But he said that there was a vast
difference between a genuine, though
erroneous copy, and a forged principal;
and also between a forgery (if
such it were) so palpable as to challenge
everybody's notice, and one so
skilfully executed as to have been
capable of deceiving all the Scottish
law functionaries, and the prisoner's
own law advisers, and himself, for a
period of ten years, during which it
had been courting examination, without
forgery having been suggested till
that prosecution. But was the excerpt
proved to be a forgery? The statement
in the Lord Ordinary's judgment, relating
to Hovenden's affidavit, showed
that there was evidence—or something
like it—in that proceeding, to
establish the existence of the excerpt
in 1723. The document was not a
copy of the alleged charter, but only
an excerpt or extract; and so might
be explained the absence of some
matters which would be in the original.
And as to the admitted errors,
the excerpt was made in Ireland, not
in Scotland; was "an old Irish
bungled copy"—a "blundered Irish
extract"—"an Irish excerpt of a
copy of a deed"—"an Irish copy."
The marking "Reg. Mag. Sig. Lib.
LVII." in the margin may have been
an ex post facto addition by some
third person, who may be the person
who had invented the story of Cromwell
carrying off the records of Scotland.
"Consanguineus noster," and
the attestation of the Archbishop,
were both Irish blunders. "And on
such evidence," said Mr Robertson,
"this bungled excerpt is to be held
proved to be a deliberate forgery!"32
Before leaving this part of the case,
let us remind the reader of the fact
mentioned in our former Number,
that it was Mr Thomas Christopher
Banks who, according to his
own letter, discovered this challenged
"excerpt" in Ireland, and transmitted
it to the prisoner; that the
prisoner's council elicited at the trial
that this Mr Thomas Christopher
Banks had been seen, by a witness,
alive, at Edinburgh, a few weeks before
the trial, and at the office of the
Crown Solicitor; and that Mr Banks
was not called as a witness by either
side.
Was then this "excerpt charter" a
forgery, or a genuine document? The
reader has before him the same materials
for forming a judgment which
were presented to the Edinburgh jury.
Let us proceed now to—
II. The Le Normand Packet—i. e.,
the French evidence. It
now lies before us, in the large facsimile,
nearly a yard square, (one
prepared for use at the trial,) prefixed
to Mr Swinton's Report, representing
eight different inscriptions or indorsements,
on the back of an old French
map of Canada. Six of them are
written on the paper itself of the map,
and two on two other pieces of paper,
which were afterwards pasted on the
back of the map. We beg to repeat
emphatically the observation made in
our last Number,33 that "we doubt
whether such an extraordinary document,
or series of documents, as this
map, with its accompaniments, has
ever, before or since, challenged deliberate
judicial investigation." It is
at once fearful and ludicrous to regard
these documents as forgeries, expected
by their fabricators to be received as
genuine, and intrepidly submitted to
competent scrutiny. So, at least, we
own it would have appeared to ourselves;
but, after all, there is nothing
like a jury for deciding upon conflicting
testimony. We cordially concur
in the following admirable observations
of Lord Brougham, delivered on
a very important occasion, when he
was sitting as Lord Chancellor,34—"The
best tribunal for investigating
contested facts is a jury [of twelve
men] of various habits of thinking, of
various characters of understanding,
of various kinds of feeling, of moral
feeling—all of which circumstances
enter deeply into the capacity of such
individuals.... The diversity
of the minds of the jury, even if they
are taken without any experience as
jurors, their various habits of thinking
and feeling, and their diversity of
cast of understanding, and their discussing
the matter among themselves,
and the very fact of their not being
lawyers, their not being professional
men, and believing as men believe, and
acting on their belief, in the ordinary
affairs of life, give them a capacity of
aiding the court in their eliciting of
truth, which no single judge, be he
ever so largely gifted with mental
endowments, be he ever so learned
with respect to past experience in
such matters, can possess." Without
presuming therefore to express, or even
to suggest or insinuate, anything like
dissatisfaction with the conclusions
arrived at by the jury with reference
to the class of facts now before us,
but more fully laid before them, we
request the reader to imagine himself
a juryman, under a sacred obligation
to resist prejudice and guard against
first impressions.
It is proper to remind the reader
that the very essence of the prisoner's
pedigree, as he endeavoured to establish
it before Lord Cockburn, consisted
of proof that the Reverend
John Alexander (John No. 3)35 was
the son of John of Antrim, (John No.
2;) and that this John No. 2 was
the son of John of Gartmore (John
No. 1.) "The whole of the case,"
said Lord Cockburn on the 3d December
1836, "depends upon the genuineness
of these two descents."36 And his
judgment, as has been seen, demolished
the case which had been set up
before him, for he pronounced "that
the evidence, whether considered in
its separate parts or as a whole, was
utterly insufficient."37 Now, if the
writings on the back of the map were
genuine and authentic, they exactly
established, beyond all possibility of
cavilling, the case which it was the
prisoner's object to establish; going,
moreover, far beyond the exigencies
springing out of the adverse judgment
of Lord Cockburn. For, first, those
writings were designed to demonstrate
not only that John No. 3 was son of
John No. 2, and the son of John No.
1; but also, secondly, that the original
Charter of Novodamus, of the
9th December 1639, was bodily in
existence in the archives of Canada in
the year 1702—as indubitably attested
by those who had seen and examined
it, and made copies and extracts
from it!—as testified by right
reverend, noble, and royal personages,
two very eminent bishops, a marchioness,
and a king of France—all under
their own hands. These singular
writings, eight in number, were given
in extenso and verbatim, but translated
into English in our last Number;38
and we hope that the reader will take
the trouble of referring to, and carefully
reading them, before he proceeds
further with the present paper. We
promise him that his trouble shall be
amply repaid, by disclosures which he
will then, and then only, fully appreciate.
I. First comes the statement, written
on the back of the map, of a
certain "M. Mallet"—supposed to
be a Canadian French gentleman—who
simply makes the memorandum
in question, without signing it, or
mentioning his own name, but heading
it, "Lyons, 4th August 1706."
He states that in the year 1702 he
was residing in Acadia [Nova Scotia.]
"His curiosity had been excited by
what he was told of an 'ancient'
charter, preserved in the archives of
that province—it is the charter of
confirmation, De Novo Damus, of
date 9th December 1639." He says,
"My friend Lacroix gave me a copy
of it, which I took the precaution of
having duly attested. From this
authentic document I am about to
present some extracts, in order that
every person who opens this map
[the one in question] of our American
possessions, may form an idea of the
vast extent of territory which was
granted by the King of England to
one of his subjects. If the fate of
war, or any other event, should replace
New France and Acadia under the
dominion of the English, the family
of Stirling would possess these two
provinces, as well as New England,
as well as—" and then he quotes
the "passages," as from the original
charter. He proceeds, "The order of
succession! to this inheritance is as
follows:" and gives the entire of the
new limitations of the alleged charter
in extenso!—concluding, "Thus the
King of England has given to the
Earl, and has secured to his descendants
in perpetuity, enough of land
to found a powerful empire in
America." So much for M. Mallet.
Opposite his important memorandum
was the following autograph memorandum,
forming No.—
VIII. in our series, of Louis XV!
"This note is worthy of some attention,
under present circumstances;
but let THE COPY of the original
charter be sent to me." Subjoined
to M. Mallet's memorandum was
another—
II. Signed "Caron Saint Estienne,"
and dated "Lyons, 6th
April 1707," announcing the sudden
death of the aforesaid M. Mallet,
whose loss was, it seems, an irreparable
one to his friends, from his "good
qualities and rare understanding."
He it was who "first procured M.
Saint Estienne a perusal of the
charter—an extraordinary document
extending over fifty pages," and the
"unclassical Latin" of which shocked
the accomplished reader. He says that
"the above note of M. Mallet is
precious—giving in few words an
extremely correct idea of the wonderful
charter in question." "As to
the copy," which M. Mallet had
"taken the precaution of having
duly attested," M. Estienne informs
us by whom it had been attested—viz.
by the Keeper of the Records,
and the Acadian witnesses—and it,
(the copy) must be in entire conformity
with the register of Port
Royal."—"M. Mallet had foreseen,"
observes his friend St Estienne, "that
the copy would not make the charter
known in France, hence he conceived
the idea of writing, on one
of the beautiful maps of Guillaume
de l'Isle, a note which all
the world may read with interest.
Had he lived long enough"—poor
soul—"he could have added to this
interest; for he wished to obtain information
in England as to the then
situation of the descendants of the
Earl who had obtained the charter;
and all the information which he might
have received respecting them, he
would have transferred to this very
map." M. St Estienne, however, concludes
with the consolatory assurance—"But,
after all, with the two documents
[i. e. the duly attested copy,
and his own memorandum on the
map] "which he has left to us, no
person in France can question the
existence of such a charter." Here
then were two gentlemen who had
been actually favoured with a sight
of the ipsissima charta; had obtained
a copy of it from a third (M. Lacroix)—himself,
doubtless, similarly privileged;
had taken the precaution of
having that copy officially attested;
and had given accurate extracts of
its essential provisions. We are,
however, under still farther obligations
to the solicitous vigilance of St
Estienne; for two months afterwards
he procured no less a person than
Flechier, the eminent Bishop of
Nismes, to add the sanction of his
eminent name to the authenticity of
his—St Estienne's—memorandum.
Accordingly, the obliging Bishop
wrote on the map the following certificate:—
III. Signed "Esprit, Ev. de
Nismes," [i. e. Esprit Flechier, Bishop
of Nismes] and dated, "Nismes, 3d
June 1707." The Bishop had been
shown by St Estienne the "copy" of
the charter, and thus chronicles the
event—"I read lately at the house
of Monsieur Sartre, at Caveyrac, the
copy of the Earl of Stirling's charter.
In it I remarked many curious particulars,
mixed up with a great many
uninteresting details, [what a natural
observation!] I think, therefore,
that the greatest obligations are due
to M. Mallet for having, by the above
note, enabled the French public to
judge of the extent and importance
of the grants made to the Scottish
nobleman. I also find that he has
extracted the most essential clauses of
the charter; and, in translating them
into French, he has given them with
great fidelity (!) Monsieur Caron St
Estienne has asked me to bear this
testimony. I do so with the greatest
pleasure." Courteous and venerable
Bishop of Nismes! But you must
now make your exit, for an Archbishop
approaches, and that no less
a personage than the great, the good,
the justly revered Fenelon, Archbishop
of Cambray, who, in the ensuing
autumn—viz., on the 16th
October 1707—on the solicitation
doubtless of St Estienne, and other
zealous friends of the excellent deceased
M. Mallet, condescended to
write the following memorandum
round the margin of a letter presented
to him for that purpose, and
forming No.—
V. "The friends of the late Mr.
Ph. Mallet will doubtless read with
great interest this letter of a grandson
of the Earl of Stirling's! M.
Cholet, of Lyons, setting out to-day,
16th October 1707, on his way home,
will have the honour of delivering it
to M. Brossette, on the part of
Madame de Lambert. To authenticate
it, I have written and signed
this marginal note. Fr. Ar. Duc
de Cambray." "Nec Deus intersit,"
says our ancient astute adviser, "nisi
dignus vindice nodus." Who, thinks
the reader, was the writer of the
letter thus solemnly authenticated by
so distinguished a witness? Who
but (the very man of all others on
earth that was wanted)—John of
Antrim—John No. 2—John
Alexander, grandson of the first
Earl of Stirling!
IV. This was a letter of John
Alexander, dated "Antrim, 27th
August, 1707,"—i. e. five years only
before his death—addressed to a
certain Marchioness de Lambert, a
lady of fashion, whose splendid
hospitalities he therein commemorates.
He there thanks her ladyship
for having, through the good-natured
interposition of the Archbishop, favoured
him so soon with a copy of "the
note respecting 'my grandfather's charter.'"
"I shall preserve with care the
interesting note of M. Mallet. The
charter was at one time registered in
Scotland, as well as in Acadia: but
during the Civil War, and under the
usurpation of Cromwell, boxes containing
a portion of the records of that
kingdom were lost during a storm at
sea; and, according to THE ANCIENT
TRADITION of our family, the REGISTER
in which this charter was RECORDED
was amongst the number of
those that perished! Such, madam,
is all that I can say in reply to your
questions; for it is impossible, in this
country of Ireland, to obtain any other
information with regard to the registered
charter. I believe that MY
GRANDMOTHER" [i. e. the first countess]
"gave the ORIGINAL CHARTER
(which she brought from Scotland,
when she came to take up her abode in
Ireland) to her son-in-law, Lord Montgomery,
in order that he might preserve
it carefully in Castle Comber, where he
resided. I shall ascertain what this
family have done with it; and I shall
have the honour of acquainting you
with any discovery which I may
make." He proceeded to give a remarkably
neat and succinct account
of that state of the pedigree which
the Lord Ordinary had so ruthlessly
annihilated; particularly explaining
that John of Gartmore (John
No. 1) had had a second wife, named
Maxwell, "the mother" of the communicative
writer. The benevolent
and indefatigable Marchioness de
Lambert seems to have pushed her
inquiries, even after the death of her
correspondent; for we have, constituting
No.—
VII. A memorandum, though without
signature or date, showing that
"this lady had not ceased to bestow
on the son," the Rev. John Alexander,
(John No. 3,) "of this distinguished
man," (John No. 2) "marks
of her good-will and friendship. This
son is favourably known in England
as a Protestant clergyman, and a
learned philologist.... He is at the
head of a college for the education of
young clergymen, established at Stratford,
in the county of Warwick." But
this memorandum contained, as the
first sentence, one of infinite
significance—"This
inscription has been
communicated by Madame de Lambert!"
And that was document
VI. Forming the inscription on the
tombstone of John of Antrim,39 whom
it stated to be "the best of husbands,
the most indulgent of fathers; as a
friend warm, sincere, faithful; a man
of such endowments, &c.; and universally
respected for his piety and
benevolence." But what was vastly
more to the purpose, as far as concerned
his descendants, he was also
the only son of the Hon. John Alexander!
who was the fourth son of
William Earl of Sterline! and "married
Mary, eldest daughter of the Rev.
Mr Hamilton of Bangor," by whom he
had issue a son, John, who "at this
present time is the Presbyterian minister
at Stratford-on-Avon, in England."
There could not be a doubt
as to these facts, seeing that a certain
"W. C. Gordon, junior," of Stratford-on-Avon,
certified, on the margin of
a copy of the inscription, that it "was
a faithful copy!" Here, however,
occurred a somewhat disagreeable fact.
The figure "7" in the date, "Oct.
6th, 1723," was originally a figure
"8" [i. e. 1823] "made into a 7."
This swore Mr Lizars; on which "a
juryman asks, Has there been an erasure?—A.
No. It has been a different
figure, corrected, and made into a
7. Lord Meadowbank.—Look at it
again, Mr Lizars. Are you sure it
has not been a blot? The witness,
(having carefully examined the document
with a glass.)—No, my lord, it,
has been decidedly a figure. There
are both the top and middle of a figure
here, my lord."
Such were the documents indorsed
on and attached to the map of Canada;
and a perusal of them suggests a
few questions. First, According to
them, the original charter of the 7th
December 1639 was, in the year 1702,
in Acadia, "in the archives there."
How did it get thither, and why was
it sent? According to another part
of the prisoner's case before the Lord
Ordinary, the first Earl, grievously
dejected by the death of three
of his sons, and fearing, from the declining
health of two of the survivors,
that his honours might, at no distant
period, pass to a collateral branch of
the family, obtained the new charter
in question in 1639. This charter
conveyed large estates in Scotland as
well as in America: "but," as Lord
Meadowbank observed, "while the
former were within reach, and easily
accessible, those in Canada and the
State of Maine, being" [then, i. e. in
1639, the original grants having been
made in 1626 and 1628] "in the hands
of the French, were altogether out
of the reach of the grantees. In these
circumstances, you are required to
believe that the Earl, in place of retaining
this charter in Scotland, and
getting it recorded and perfected there,
where he might have got something
by it, carried it to Canada, and had
it recorded, where he could get nothing;
and where, except as a matter
of curiosity to men like Monsieur Mallet
and his friend Lacroix, it was altogether
a piece of waste paper.... I
again put it to you, is it credible that,
if the Earl had really got such a charter,
and had wished to change the
destination of his estates—and we
know that he was a person of no ordinary
talents—he would have omitted
taking means for preserving in his
own country the evidence of what he
had done?" But, secondly, again, the
original charter was, in 1702, in Nova
Scotia. Now, we have seen that, in
1723, this 'original charter' was, on
the 10th July 1723, in Ireland, in the
hands of a Mr Thomas Conyers, of
Carlow, who "permitted" Mr Hovenden
"to see it, and he did most minutely
examine the contents:" and on
the 20th of that month, in the same
year, the son of the aforesaid Conyers
certified that that charter "had been
trusted to his late father, in troublesome
times, by the deceased Mary,
Countess of Mount Alexander." At
that time the fifth Earl was living.
When, then, did the charter return
from Acadia to Scotland, and go
thence to Ireland? According to the
letter of John of Antrim on the map,
his grandmother, the first Countess,
took it to Ireland to her son-in-law,
Lord Montgomery, to be taken care
of. That son-in-law died in 1670.
What did he do with it? Did he send
it to Canada?—and why? What were
the three Earls of Stirling about, that
they did not get possession of this
document, the very foundation of
their fortunes and honours? It gets,
however, to Canada in 1702; is back
again, and in Ireland, at all events,
in 1723; and then gets placed in uncomfortable
circumstances, and encounters
queer adventures. It found
its way into the hands of the Rev.
John Alexander, (John No. 3,) in the
lifetime of the fifth Earl of Stirling;
and on his death, in 1743, it gets into
the hands of his widow, who took it
to Birmingham when she went to
reside there; whence it was stolen, in
1758, by an emissary of the then
claimant of the peerage, William Alexander,
who took it off to America,
and either suppressed or destroyed it,
the latest trace of it existing in 1806
or 1812, when it was presumably
destroyed. All this was the original
official statement of his case,
by the prisoner himself, in 1829, in
the process of "proving the tenor."40
Thirdly, In 1702, this M. Mallet
speaks of the charter as "an ancient
one;" whereas it was then only
sixty-three years old—its date being
1639. Fourthly, It having been thus
a dead letter for sixty-three years,
owing to the altered ownership of the
territories included in it—they having
become the undisputed property of
France, and so continued for half a
century afterwards, namely, till General
Wolff's conquest of Quebec in
1760: yet we have a Frenchman, in
1702, represented as calmly speculating
in the year 1702, without
anything to suggest such an idea,
on the possibility of the territories
being reconquered from France by
the English, and in that event the
charter becoming an object of great
interest! Fifthly, We have him also
giving himself very particular concern
with the limitations and family destinations
of the tenures of the
foreign grantees claiming under this
"ancient" dead letter—then a mere
useless piece of parchment, likely to
attract the eye and attention of
none but some curious antiquarian.
Who was this M. Mallet? There
is no suggestion that he was acquainted
with any member of the family,
or had ever been concerned in any
way with them. Why, then, should
he feel it necessary to "take the
precaution" of having the copy
which he had made "duly attested?"
Who, again, was Lacroix? What
was there then to interest any one
in France or America in the fortunes
of the noble Scottish family of the
Alexanders? Why was it to be
expected that "all the world would
read with interest" the note which
M. Mallet had so quietly written on
his map, and then committed it to
his bureau? Sixthly, In 1702, and
1706, and 1707, Acadia was in the
hands of the French, and consequently
its archives or registers were
under their control; and a copy of
any instrument deposited there could
be easily obtained. Why, then, was
not the command of Louis XV.
obeyed, and a copy procured for his
Majesty? Again, what became of
the solemnly-attested copy spoken of
by M. Mallet, Lacroix, and St
Estienne? No account whatever is
given of it, nor any reason why it
was necessary to set such store by a
brief epitome of one or two of the
clauses to be found in that copy!
Why, therefore, was the "Note" of
M. Mallet so "precious," when those
interested in the matter to which it
related could have so easily seen the
original of which it spoke, and
obtained a verbatim copy of the
whole? The "Note" of M. Mallet
might, indeed, be precious in the
eyes of his suddenly-bereaved survivors
as an autograph memento of
their deceased friend, but not otherwise.
Seventhly, Why should there
be, in 1707, in the family of John of
Antrim, a tradition, and that, too,
an "ancient" one—i. e., forty or
fifty years old—concerning the loss
of the record of a copy of the
charter, when the original was in
existence in the archives of Acadia?
Lastly, Why is the great shade of
the author of Telemachus evoked?
Simply to "authenticate" the letter
of John Alexander to the Marchioness
De Lambert, to whom that letter
was then on its way! This much
for the intrinsic indication of genuineness
or spuriousness afforded by the
indorsements on the map of Canada,
which we have hitherto been considering.
We have now to record a
remarkable incident which occurred
at the trial, in open Court. As
already stated, one of the two documents
pasted on the back of the map
was the alleged tombstone inscription.
As the map was lying on the
table of the court, owing to either
the heat of the densely crowded
Court, or some other cause, one of
the corners of the paper on which
the inscription was written curled up
a little—just far enough to disclose
some writing underneath it, on the
back of the map. On the attention
of the Solicitor-General being directed
to the circumstance, he immediately
applied to the Court for its
permission to Mr Lizars, the eminent
engraver, then present, to detach
from the map the paper on which the
tombstone inscription was written.
Having been duly sworn, he withdrew
for that purpose, and soon
afterwards returned, having executed
his mission very skilfully, without
injury to either paper. That on
which the inscription was written
proved to be itself a portion of another
copy of the map of Canada, and the
writing which it covered was as
follows, but in French:—
"There has just been shown to
me a letter of Fenelon, written in
1698, having reference to this grandson
of Lord Stirling, who was in
France during that year, and with
regard to whom he expresses himself
as follows:—'I request that you will
see this amiable and good Irishman,
Mr John Alexander, whose acquaintance
I made some years ago. He is
a man of real merit, and whom every
one sees with pleasure at Court, and
in the best circles of the capital.'"
These were the initials, as far as
they are legible, "E. Sh." This was
represented by the Solicitor-General
as palpably an incohate abortive
forgery; and Lord Meadowbank
pointed out to the jury the evident
and partially successful effort which
had been made to tear off that
portion of the surface of the map on
which the above had been written.
That effort failing, said he, "the
only precaution that remained to
prevent its appearing was to cover
it over; for which purpose the
parties used the inscription. But
then the apprehension of its appearing,
if the map were held between the
light and the eye, seems to have
come across the minds of the parties
engaged in the operation, and hence,
with a very singular degree of foresight,
expertness, and precaution,
they used for their cover that by
which the eye of the inquirer might
be misled in his investigation; for
you have seen that the lines and
words of the map forming the back
of the inscription were exactly such
as would naturally fall in with those
on the front of the map of Canada,
from which the extract from the pretended
letter of Fenelon had refused
to be separated. Accordingly the
invention, it would appear, had
proved hitherto most successful; for
though this map has been examined
over and over again by persons of
the first skill and talent, and scrutinised
with the most minute attention,
the writing which was thus
covered up escaped detection, till,
by the extreme heat of the Courthouse
yesterday, or some other cause
of a similar nature, a corner of the
inscription separated from the map,
and revealed to our observation that
which was hidden below. Gentlemen,
it is for you to consider the
effect of this revelation; but I must
fairly tell you, that, in the whole
course of my experience, I have
never seen more clear and satisfactory
evidence than has hereby been
unexpectedly afforded, of the progress
of a palpable and impudent
forgery." The reader will bear in
mind these observations against the
time when we apprise him of the
finding of the jury. The reason
suggested by Lord Meadowbank for
the abandonment and concealment of
this sub-inscription was, that it was
of such a nature as could not acquire
credit from any one, as Fenelon was
therein made to speak as if he were a
courtier, familiar with the gay scenes
of the court and the capital; whereas
it was notorious that he lived more at
his diocese than at Paris. Mr Lizars
stated that this newly discovered writing
did not resemble that of the letter
signed "John Alexander." "How the
Crown counsel would have chuckled,"
said the prisoner's counsel to the jury,
"if the marvellous new discovery
had resembled that of Mallet or
Alexander!" And that was his
only remark on the subject. To us
the handwriting of these three manuscripts
appears certainly different:
all those on the map, indeed, appear
different; but an obvious suggestion
occurs, that, if they were really forgeries,
those perpetrating them may
have taken the precaution of employing
distinct writers. Let us now come
to the extrinsic evidence, to determine
the genuineness or spuriousness of
these multifarious writings. First, as
to the ink and character of the writings.
Two eminent French witnesses,
(MM. Teulet, joint-secretary of the
archives of the kingdom of France,
and Jacobs, geographical engraver
attached to the Institute of France at
Paris) peculiarly conversant with the
art of making fac-similes of ancient
writings, solemnly and confidently
pronounced their opinions that all the
documents on the back of the map
were false, that they were written
with ink generally used for that purpose—viz.,
a composition of China
ink, yellow and carmine, or red; and
the paper afforded visible indications
of little red splashings, or spottings,
the result of accidents in using that
composition.
"Q.—'M. Teulet, from what you
know, are you of opinion that these
writings on the back of the map are
authentic writings of the dates they
bear?'
A.—'I have considered them;
and say, on my conscience, that all
the writings on the back of that map
are false.'
Q.—To M. Jacobs.—'Forming a
judgment from the ink alone, and the
appearance of the writing itself, is it
your opinion that these are genuine
or false documents—documents of the
dates they bear?'
A.—'I should think them
false.'"
Mr Lizars also stated that "there
was a very great resemblance between
the ink in the writing signed 'Ph.
Mallet' and the letter signed 'John
Alexander,' and it was 'like common
water paint.'" He said that "if he
were to make any conjecture, it would
be that the ink was composed of sepia
and amber." But on being asked—"Suppose
the ink were made of a
mixture of China ink, yellow, and
carmine, might the carmine come out
at the edge?" He answered—"It
would be sure to do it: a bungler
only would use such a mixture, as
the carmine would certainly precipitate:
it were much better to use sepia
and amber." This gentleman also
stated that he had compared the
writings on the back of the map with
those of the prisoner and Mademoiselle
le Normand, but found no
resemblance between them. He also
stated, that he thought the writings
in question genuine, and written in a
natural, not a feigned hand.
We come now, however, to an
astounding fact, rendering all such
speculations and surmises superfluous.
It will have been observed that all
the writings on the back of the map,
by Mallet, Estienne, John Alexander,
Bishop Flechier, and Archbishop
Fenelon, bore date in the years 1706
and 1707; that of Mallet only being
in the former year. What will the
reader say on being told that it was
proved beyond all possible doubt at
the trial, that the map on which these
various indorsements were written, was
positively not in existence till eleven
years afterwards—viz., 1718; and,
moreover, that Bishop Flechier had
died in 1711, and Archbishop Fenelon
in 1715? Proof so complete and
crushing as that establishing these
facts, scarcely ever before came under
our notice; and the circumstance which
had led to this result would have
ensnared the most cautiously astute
into the belief, that the true date of
the map's coming into existence was
that which it appeared to bear—viz.,
1703—and with relation to, and in
consistency with which, all the above
five dates had evidently been selected.
Guillaume de l'Isle was the greatest
French geographer of his day, and
his maps were held in the highest
repute for their accuracy and beauty.
Amongst others was a very elaborate
one of Canada: and the copy of that
on which the memorable indorsements
were made bore the following printed
description, or title, on the back.
We give it verbatim et literatim, and
beg particular attention to the vacant
space following the name Guillaume
De l'Isle, which is indicated by
brackets, and the italic words "et
Premier Geographe du Roy" in the
line but one following, and which is
unduly close to the one before, as we
shall endeavour to represent:—
"Carte
Du Canada
ou de la
Nouvelle France
et des Decouvertes qui y ont été faites
dresseé sur plusieurs Observations
et sur un grand nombre de Rélations imprimées ou manuscrites
Par Guillaume De l'Isle [ ]
de l'Academie Royale des Sciences
et Premier Geographe du Roy
A Paris
chez l'Auteur sur le Quai de l'Horloge a l'Aigle d'Or
avec Privilege de sa Majte pour 20 ans
1703."
The date at the foot, "1703," and
which had so cruelly misled the
gentlemen who prepared the indorsements
on the map, was the date, not
of the publication of that edition of
the map, but of the original publication,
from which dated the twenty
years' copyright granted by the king
as above stated. When that impression
of the map was originally printed,
in the year 1703, the printed title
varied from the above, by having the
word "Géographe" occupying the
vacant space above-contained in
brackets; and by the absence of the
line "et premier Géographe du Roy,"
so evidently interposed subsequently
between the preceding and subsequent
lines. And the fact was, that
on the 24th August 1718, fifteen
years after the original publication of
the map, De l'Isle had received the
high appointment of "Premier Géographe
du Roi." M. Teulet, one of
the keepers of the "Register of the
Secretary of State" in France, a
"register of the greatest possible
authenticity,"—"the only register
of authentic documents in which the
commission of Guillaume De l'Isle
could be found," produced an "extract
made after the most authentic
manner in France, certified by the
keeper of the register, and by the seal
of the archives of France,"—an "extract
which would have all possible
authenticity in a court of justice
in France," and which extract M.
Teulet "had compared twice over,
word for word, and letter for letter,
with the record," and swore that "it
was correct." The extract was as
follows:—
"Du vingt quatre Aout mil sept
cent dix huit
"Brevet de Premier Géographe du
Roy pour l Sr. De l'Isle." The entry
runs thus in English:—
"This day (24th August 1718) the
king being in Paris, having authentic
proofs of the profound erudition of the
S. Guillaume de l'Isle, of the Royal
Academy of Sciences, in the great number
of geographical works which he has
executed for his Majesty's use, and
which have been received with general
approbation by the public, his
Majesty, by the advice," &c. &c.,
"wishing to attach him more particularly
to his Majesty's service by a
title of honour, which may procure
him at the same time the means of
continuing works of such usefulness,
has declared, and declares,
wishes, and enjoins, that the said
S. de l'Isle be henceforward ['DORESNAVANT']
his first geographer," &c.
&c. This appointment was signed
by the king, and countersigned by
the Secretary of State. It was
distinctly sworn by M. Teulet and
M. Jacobs, than whom there could
not have been higher authorities on
such a subject, that they had carefully
examined the map in question—and
that, till the 24th August 1718,
there never was a map of De l'Isle
thrown off having on its face the title
of "Premier Géographe du Roi;" but
that, after that date, this designation
was invariably added to his name;—and
though the period of printing was
later than 1718, it was necessary to
retain the original date of the map,
1703, in order to secure the copyright;
because the privilege of printing it, as
recited on the map, extended to only
twenty years from the time of the
map being originally published.
Thus was clearly and most satisfactorily
explained the erasure of the
word "Géographe" after the name of
Guillaume de l'Isle, and the contemporaneous
interpolation of the new
title of dignity—Premier géographe du
Roy—between the next line and the
one following. All the three witnesses
(MM. Teulet, Jacobs, and Mr
Lizars) swore, and gave conclusive
reasons for doing so, that the same
copperplate was used in making the
engravings—that De l'Isle was in the
habit of retouching his plates, and
making alterations in them from time
to time; and great numbers of his
plates were produced, showing that,
in the maps dated anterior to 1718, the
words "Premier Géographe du Roy"
were interpolated; and in the one
before the court, the interpolated line
was much "fresher" than the rest of the
inscription. In those subsequent
to 1718 there was no such interpolation,
the words being always regular
with the other part of the title." In
addition to this, it was proved, that
the word "Géographe" had been
mechanically effaced from the copper;
for, on carefully examining the under
side of the copper, there were "evident
traces of hammering, which had been
done to fill up the spaces where the
words had been effaced." Nothing
could be more lucid and decisive than
the evidence given by the eminent M.
Teulet on these points; the result
being a downright demonstration, as
far as the nature of the case admitted
of demonstration, that the copy of the
map in question could not have been,
and was not, in existence, till after
the 24th August 1718. The prisoner's
counsel, fearfully pressed by these
considerations, frankly—but necessarily—admitted,
that "if the map
were not in existence till 1718, the
writings on it purporting to be dated
prior to 1718 were forgeries." But
he contended that, though "he should
be ashamed to deny that there were
strong reasons for supposing the fact
to be so, there was not conclusive
evidence that the copy of the map in
question was not in existence till
1718; for the Crown had not proved
a search of the Records of France
prior to 1718, and it might be, that
the commission which had been proved,
was not the first in favour of
De l'Isle—there might have been a
previous one." "But this," said Lord
Meadowbank, unanswerably, "was a
strange supposition, refuted by the
patent proved before the jury. Had
any former grant existed, it must have
been there referred to; notice of it
could not have been omitted." One
other suggestion was offered, faintly,
from a sense of its hopelessness; that
the alterations on the title of the map,
might have been effected by the use
of double plates; the additional line
having been inserted by a second impression
on the same sheet of paper.
Such a process, however, could not
have effaced the word "Geographe," or
effected the changes which appeared
in the statement of De l'Isle's residence—the
words "à l'Aigle d'Or"
being manifestly engraved on the site
of only partially-obliterated previous
letters. That this, in point of fact,
had been the process, was distinctly
sworn to by those who had seen the
original plate. Before quitting this
part of the case, we shall quote a very
critical section of the evidence given
by the Crown—that of Pierre François
Joseph Leguix, a print and map
seller at Paris, whom the prisoner's
counsel made a very desperate effort
to exclude from the witness-box. He
said, "My print-shop is in the Quai
Voltaire, Paris. I remember in the
winter of 1836-7 a person coming frequently
to my shop in search of maps.
I think he was an Englishman. The
maps he sought for were maps of
Canada. He came during the length
of five or six weeks. I sold him
several maps of Canada. He wished
to get one map of a particular date.
It was the date of 1703. I sold him a
map of 1703. It was procured by me
after considerable search. He came
to my shop no more after getting that
map. It was similar to this [the one
in question]. There were no writings
then on the back of it. He did not
explain who he was, nor say why he
wished to have that map. He inquired
chiefly for a map of 1703.
"Q.—'Have you seen the prisoner
before?'
A.—'Yes.'
Q.—'It was not he?'
A.—'No, Sir.'"41
What a moment for the prisoner!
In a letter written to the prisoner
by Mademoiselle Le Normand, dated
Paris, 8th January 1839, occurs the
following passage, (read in evidence
at the trial) which may possibly relate
to the facts above deposed to.
"... Seulement on a découvert
l'homme du Quai; on veut le faire
partir pour l'Ecosse; il déclare que
voilà 18 mois il a vendu une Carte du
Canada à un Anglais, qui plusieurs
fois est venu chez lui, on lui a dit: le
reconnaitriez-vous? je le crois."
Finally, M. Teulet proved that Fenelon,
Archbishop of Cambray, died at
five o'clock in the morning of the 7th
February 1715, by the following examined
extract from the Register of
the Chapter of Cambray—"Feria 2,
die vii Januarii 1715.—Hodie circa
quintam matutinam obiit illustrissimus
Dominus Franciscus de Salignac de la
Mothe Fenelon, Archiepiscopus et Dux
Cameracensis, sacri Romani Emperii
Princeps, Comes Cameracensis, etc.
Requiescat in pace."42
The death of Flechier, Bishop of
Nismes, in 1711, was also proved by
M. Teulet, who produced an examined
copy of letters patent for the installation
of the successor of Flechier,
dated the 26th February 1711; and
one of the witnesses, M. de Pages,
stated that the Bishop died in the
year 1710. Notwithstanding, however,
this evidence, M. de Pages, (a
nephew of the Marquis de Valfour,
and attached to the Historical department
in the King's Library, and possessing
some little familiarity with
ancient manuscripts,) having brought
over some alleged writings of Louis
the XV. and Flechier, said "that the
writing on the map attributed to
Louis was exactly like the specimens
of his writing which the witness had
brought;" and of that attributed to
Flechier he said, "I think it is the
same as the writing of his which I
produce." On this, one of the
Judges (Lord Moncrieff) put this
acute question:—
"Q.—'If you were assured that
that map had no existence till 1718,
would you still say that the writing
on it was Flechier's?'
A.—'Wherever it might be
placed, I find it conformable to the
writing of Flechier.'
Lord Moncrieff to the Interpreter.—Remind
him that he said Flechier
ceased to be Bishop of Nismes in
1710, and then ask him the question
again. [This was done.]
A.—'It would be not the less like.'"
Lord Meadowbank, it may be observed
in passing, regarded the
writings brought over by M. de Pages
as "important," and handed them to
the jury, on their retiring to consider
their verdict.
The signatures of Louis, Fenelon,
and Flechier were attempted to be
proved also by certificates from
M. Daunou, M. Villenave, and other
eminent French antiquaries; but as
they were living, such certificates
were of course rejected. If these
writings, then, were forgeries, they
must have been most skilfully executed;
and, in fact, the question as to
their genuineness or spuriousness excited—as
we learn from Mr Swinton,—great
interest and much discussion
in Paris. It may also be here mentioned,
as a somewhat singular circumstance,
that, a few years previously to
this trial—as we also learn from Mr
Swinton—a series of portraits and
autographs of illustrious Frenchmen,
published by Delpech, (Quai Voltaire,
Paris,) contained fac-similes of the
writing of Louis XV., Fenelon, and
Flechier, exactly resembling the
writings on the map attributed to
them;—and in the specimen given in
that work of the writing of Louis
XV., which was taken from the collection
of M. Villenave above-mentioned,
occur the very two expressions,
and similarly spelled, which are found
on the map—"les cerconstances presentes"—and
"oregenale." Mr
Swinton speaks of this coincidence as
"remarkable;" but to us it appears
not at all so. What is easier than to
conceive that, if the writings on the
map were forgeries, the fabricator had
before him at the time these very fac-similes,
and astutely determined to
introduce the expressions in question,
with the peculiar spelling?
Let us now recur for a moment to
the excerpt charter of the 7th February
1639. On the assumption that
it was a forgery—what becomes of the
writings on the map of De l'Isle?
They then speak of—are bottomed on—a
document of which there is no
earthly trace whatever, except in a
forged extract! If the excerpt be
annihilated, so is the charter! And
if so,—in the name of holy truth and
ordinary common sense, how comes it,
but by a double forgery, that we find
on the map of De l'Isle, produced for
the first time in 1837, all the essential
elements of that charter, as far as sufficed
to further the interests of the
prisoner—viz., the altered destination
of the titles and property, set forth
verbatim et literatim, in conformity
with the terms of the forged excerpt?
"How, but through the evidence of one
in the possession of this first forgery
of the charter," asked the Solicitor-General,43
"could the persons who
executed the second arrive at such
a close and perfect correspondence
with the terms and effect of the former,
as has been exhibited through the
whole contents of the last?"
The prisoner's counsel said, in defence
to this serious section of the
charge—the map is not pretended to
have been forged; nor is the date
"1703" false. Who Ph. Mallet, or
Caron St. Estienne, was, "at the
distance of one hundred and thirty
years, no one could tell." Flechier
was alive in 1707, and therefore
might have written the note attributed
to him in that year, and so
with Fenelon. "Now, gentlemen,"
said Mr Robertson, "what is the case
of the Crown on the map? I think it
rests entirely on the appointment of
De l'Isle as premier géographe du
Roi," which was unquestionably the
true—the inevitable—issue on which
to put the case; and he proceeded to
contend, on grounds which we have
already indicated in passing, that the
Crown had not established the act of
forgery, by clear, irrefragable, irresistible
proof.
What, then, says the considerate
reader, we ask, as we did in the former
instance—were these writings on
the map of Canada—any or all of
them—genuine or spurious?
III. The De Porquet Packet.
With every disposition to treat this
item of evidence with the gravity and
impartiality befitting quasi-judicial
investigation, we acknowledge feeling
extreme difficulty in doing so. To us,
as English lawyers, intense would seem
the simplicity of those expecting any
rational being to give credit for an
instant to the contents of this astonishing
packet, as genuine. Two
months after the judgment of the
Lord Ordinary, pointing out the fatal
flaw in the prisoner's pedigree—(viz.,
the non-proof of two particular steps
in that pedigree—that John No.
3 descended from John No. 2, and
the latter from John No. 1,) a sensitive
and conscientious thief died—viz. in
March 1837—in the exact nick of
time, having kept by him till that
sad event a packet which he had
purloined from his employer in 179844
i. e. for forty years; and which packet
contained four family documents, of
vital moment, applying themselves
with miraculous exactness to the
deficiency in the pedigree aforesaid!
We are here stating shortly, but correctly,
the effect of a document under
this head of the charge, set forth in
the indictment. That document we
gave verbatim in our last Number.45
Messrs De Porquet, London booksellers,
received a packet by the penny
post, on opening which they found
one addressed to Lord Stirling, accompanied
by a note from a "Mrs. Innes
Smyth," (of whom no one has hitherto
seen, heard, or known anything whatever,)
requesting them to send it to
his lordship; whose son happening
in the month of April 1837—i. e., a
few weeks after the opportune death
of the mysterious thief—to call at
Messrs De Porquet, they gave him
the packet addressed to his father.
Instead of at once forwarding it to
him, the young gentleman instantly
took it to his solicitors; and after an
exciting colloquy as to what this
packet might contain, (the idea never
occurring to him, that it would be the
proper formal course to send it off to
his parent according to its address,)
it is arranged that they should go on
the ensuing morning to a notary
public, and open the packet in his
presence! This was done; on which
they discovered the interesting document
above referred to, explaining
the theft of the packet which it accompanied,
cased in parchment, sealed
with three black seals, "evidently,"
said the young Alexander, in his
letter to the prisoner, "my grandfather's
seals—not like those we
have"—and with the following words,
also instantly recognised as being
in his grandfather's handwriting,
on the packet—"Some of my wife's
family papers"—that wife being the
prisoner's mother, Hannah, daughter
of John No. 3 (the Rev. John
Alexander,) the "person of such
great humility, and so perfectly unostentatious,"
according to her daughter's
statement,46 "that she did not
take upon herself the title of Countess,
though she often told her children
that they had noble blood in their
veins;—that she had two brothers,
'John' and 'Benjamin,' who had
fully intended assuming their peerage
honours, but for their premature death—unmarried!—whereby
she," the
lady aforesaid, "believed herself the
last of the family of Alexander who
were entitled to be Earls of Stirling!"
The sheet of paper accompanying this
mystic parchment packet had a black
border, "owing to the death of the
thief!"—who "had never dared to
break the seals"—the threefold seals
of the packet—"which accounts for
the admirable state of preservation"
in which the contents were after this
forty years' interval!!!47 This inner
packet the modest notary felt to be
of too solemn a character to be opened
in his presence; and recommended its
being taken for that purpose to a
functionary of commensurate solemnity—to
wit, a proctor.48 No sooner
said than done: away they went to
the proctor, with whom they were
closeted five hours; and in whose
presence—and that "of four witnesses"—the
young gentleman ventured
to cut the parchment over the
middle black seal—and there appeared
four enclosures which completely settled
the business in favour of the
claimant of the Stirling peerage.
Never was anything so beautiful in
aptitude. First, was a genealogical
tree—thus:
John,
Eldest Son, born at
Dublin, 1736, heir
to the title and
estates (!) |
Benjamin,
Second Son,
born at Dublin
in 1737. |
Mary,
Eldest Daughter, born at Dublin, 1733. |
Hannah,
Second Daughter, born at Dublin in 1741. |
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John,
Sixth Earl of Stirling, (dejure,)
died at Dublin, Nov. 1st, 1743, buried there. |
Mary,
Eldest Daughter, born 1683, died unmarried. |
Elizabeth,
born 1685, died 1711, leaving issue. |
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John,
Married Mary Hamilton
of Bangor; settled at Antrim! after living many years in
Germany! Died 1712. Buried at Newtown. |
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Janet,
only surviving child of the heiress of Gartmore!!! |
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"Part
Of the Genealogical Tree
of the
Alexanders of Menstry,
Earls of Stirling in Scotland,
Shewing
only the Fourth and now-existing
branch (!)
Reduced to pocket size, from the
Large Emblazoned Tree in the
possession of Mrs Alexander,
of King St., Birm.
By me,
Thomas Campbell,
April 15, 1759."
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John,
Fourth Son—marry'd (1.) Agnes Graham,
the heiress of Gartmore! (2.) Elizabeth
Maxwell!!! of Londonderry; settled in
Ireland in 1646; died 1665. |
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William,
1st Earl of Stirling—born 1580—m: Janet
Erskine. Had issue, 7 sons and 3 daurs.
Died 1640. Buried at Stirling." |
Secondly, came a letter from the
above-mentioned "Benjamin" to the
above-mentioned "John," his elder
brother, (John No. 3,) speaking of
the tombstone, and giving many interesting
particulars concerning John of
Antrim—his portrait, his education
at Londonderry under his maternal
grandsire Maxwell! his travels abroad,
and "visiting foreign courts," (as
indeed Fenelon would seem to have
testified, as well as the aforesaid John
himself, on Madlle. le Normand's map.)
Thirdly, a letter to the same "John,"
(No. 3,) from a certain "A. E. Baillie,"
certifying as to the missing
tombstone, who had written the inscription,
(which was given at length
in Madlle. Le Normand's map,) and assuring
"John No. 3" that the writer
had "always heard that your great-grandfather,
the Hon. Mr Alexander,
(who was known in the county as
Mr Alexander of Gartmoir,) died at
Derry, but 'the Papists of the
north' had unfortunately destroyed
the parish registers." Lastly, "a
beautiful miniature painting of John
of Antrim!"
Such were the contents of the De
Porquet packet; and we must here
add, that the superscription on the
parchment, "Some of my wife's family
papers," was clearly proved to be
really the handwriting of the prisoner's
father.
The Solicitor-General, partly from
the intrinsic preposterous absurdity of
this whole transaction, and partly
from his extended and very able analysis
of the two former heads of evidence,
dealt rather summarily with
the De Porquet packet. "This
packet, too," he observed, "was received
through the post-office. We
have not, therefore, had the same
means of tracing these documents as
we possessed in regard to the map."49
His commentary, however, though
brief, was cutting, particularly on the
"absurd solemnity" of the "opening"
of the packet by the prisoner's
son, the "death of the thief in the
very nick of time," and the mysterious
unknown "Mrs Innes Smyth." "I
admit," said he, "that there is no
direct evidence as to these English
documents. But it must be taken
into account how closely the whole
case is here riveted and dovetailed
together; so that I think the documents
produced are all parts and
portions of the grand machinery of
forgery which has been set agoing
here, to meet the effect of the Lord
Ordinary's interlocutor setting aside
the panel's title."50
The prisoner's counsel prudently
dealt still more briefly with this part
of the case. The very little that he
did say, however, was excellently
said. He dwelt on the proof that the
superscription, "Some of my wife's
family papers,"51 had been proved to
be genuine. "Yet a verdict of forgery
is demanded on that paper, and
all the documents contained in that
parcel are said to be forged—the one,
because we have proved it to be
genuine; the others, because the
Crown has proved—nothing at all.
That is the plain English of it, gentlemen,
and I leave it in your hands."52
Lord Meadowbank dealt with this
portion of the case at considerably
greater length, and very carefully.
He remarked on the absurd improbability
of so notable a discovery
being made at the precise moment
of difficulty, and in the manner alleged,
by the son of the prisoner—a
packet full of most critical documents,
sent anonymously—exactly as in the
case of the Le Normand packet, in
both respects—the one in April, the
other in July next, after the Lord
Ordinary's judgment had indicated
the hiatus in the proof which these two
windfalls exactly filled up. The two
letters enclosed in it—viz., from Benjamin
Alexander to his brother John,
(No. 3,) and from "A. E. Baillie"
to the same person—Lord Meadowbank
regarded as "deserving the most
serious consideration of the jury, not so
much for the sake of the letters themselves,
as from being a part of that
great mass of evidence which bore
upon the whole question of the authenticity
of these various productions."53
He remarked strongly on young Alexander's
letter announcing to his father
the discovery of the packet—his
going to a notary and proctor
to have it opened, instead of at
once sending it on to his father.
"For aught his son is supposed to
have known, or could possibly tell, it
was strictly confidential to his father,
and he had no right to make any
conjectures as to the contents of it.
Did you ever hear a more extraordinary
story than he tells? I leave
it to you to consider whether such a
proceeding can be accounted for on
any rational principle. Did you ever
hear of such a thing as this being
done before? For my own part, the
proceeding is altogether incomprehensible
upon any supposition but
one—and that is, upon the notion
that the contents of the packet were
not unknown to some of the performers
in the drama, before ever it [the
packet] entered the shop of De Porquet."
Lord Meadowbank laid
great stress on the following certainly
very significant passage in this
letter, relating to the "inscription"
mentioned in the two letters of "Benjamin
Alexander" and "A. E. Baillie,"—"You
will see that the inscription
is now made a good document,
being confirmed by the letters of B.
Alexander and A. E. Baillie. The
cause is enrolled to be heard on the
31st day of May." The son was
writing on the 23rd April. "The
better to appreciate this letter," continued
Lord Meadowbank, "let me
recall your recollection to the map of
Canada. You have thus three letters,
and that inscription confirming another
inscription (as stated in young
Alexander's letter) fixed on the map;
and if you do not hold the map or the
papers upon it to be genuine, you will
consider how the two sets of papers
are affected by each other—the one
produced at the same moment to
confirm that which had been produced
before." As for the superscription,
"Some of my wife's family papers,"
the "writing on the cover," said Lord
Meadowbank, "may be genuine, while
the documents said to be contained
in it may be forged; original enclosures
may have been withdrawn,
and others substituted."—"If you
have arrived at the conclusion that
the documents at the back of the old
map are forgeries, (and how you are
to do otherwise it is difficult for me
to imagine,) I think you will not find
it very easy to disconnect this reference
to the inscription, and to the alleged
genealogy of the persons with whom
it was the object of the prisoner to
connect himself, from these documents,
or to entertain any reasonable
doubt that both are in pari casu—were
fabricated with the view of bolstering
up one another, and must be
alike liable to the imputation of forgery:
both sets of documents were
exactly calculated for making up those
defects in the chain of evidence pointed
out by the Lord Ordinary. I shall
conclude what I have to say upon this
matter with an observation which
will have occurred to yourselves—that
if you hold the excerpt charter a
forgery, and that the documents written
and pasted upon the back of the
map are forgeries, it will be difficult
for you not to hold that this must
affect in a most material degree the
evidence relating to the other documents,
which the public prosecutor
avers to be also forgeries. In other
words, if you are satisfied that the
proof is clear that any of these sets of
documents are forged, but that the
evidence with respect to others is not
so conclusive, you will have to make
up your minds whether, considering
that the whole are so connected with
and bear upon each other, there can
be any good reason for fixing a character
upon the one which must not
also belong to the other."
We have been thus particular in
laying before the reader the just and
able observations of Lord Meadowbank
on this last portion of the case,
chiefly because of the result at which
the jury arrived. It seems to us not
a little singular that one material enclosure
in the De Porquet packet
escaped the notice of both the counsel
for the Crown and the prisoner, and
also the judge: we allude to the
Genealogical Tree, professed to be
certified by "Thos. Campbell, 15th
April 1759," and forming one of the
charges in the indictment. If this be
really a forgery, it seems one of extraordinary
impudence.
Again, then, as in the two former
instances, we ask the reader, weighing
well the evidence, and particularly
the above observations upon it
of Lord Meadowbank, to say Ay or
No to the question, Were the documents
contained in the De Porquet
packet genuine or spurious? Bearing
in mind that all three were the contributions
of anonymous informants—the
excerpt charter, sent to Mr Banks
by—he knew not whom; the Le
Normand papers, by—an exceedingly
mysterious and exalted personage;
and the De Porquet packet, by—a
third mysterious unknown: the first
sent to the confidential agent of the
prisoner in Ireland; the second to
one of his oldest and most confidential
friends at Paris; the third to his
bookseller in London. It may also
be worth mentioning that neither Mr
Banks, nor Mademoiselle Le Normand,
nor either of the prisoner's
sons, nor his sister, "Lady Eliza
Pountney," was called as a witness
by the prisoner, nor by the Crown.
There remains to be determined,
however, a question of infinite moment
to the prisoner—whether, in
the event of the foregoing documents,
or any of them, being pronounced
forgeries, he was guilty of either having
forged them, or having used and
uttered any of them, knowing them to
have been forged? "This," said Lord
Meadowbank, with an air of deepening
solemnity, "is the heaviest part
of the charge against the panel; and
I assure you, gentlemen, that in the
whole course of my life I never addressed
a jury with greater anxiety
than I do at present."
Let us pause, however, for a moment,
to see how this very grave question was
first dealt with by the counsel for the
Crown, and then for the prisoner.
I. The Solicitor-General, it will be
observed, according to the Scottish
mode of criminal procedure, had only
one opportunity of addressing the
jury—and that after the whole evidence
on both sides had been laid
before them, and immediately before
the speech by the prisoner's
counsel. In England, the counsel
for the Crown speaks also only once,
but that before the evidence has been
adduced, unless the prisoner call evidence—in
which event the counsel for
Crown "has the last word," as it is
called, "to the jury." This difference
may perhaps account for the earnestness
with which the Solicitor-General,
in the case before us, appears to have
"pressed for a conviction"—such is
the phrase used on such occasions in
England. We are bound, however,
to say that, in our opinion, the Solicitor-General
did not exhibit any
undue or unseemly eagerness; nor
approach even towards unfairness,
or exaggeration, misrepresentation,
or suppression. The prisoner, said
he, is at all events, de facto the
utterer of these various documents,
and the presumption is always against
the utterer—especially when, as in
the present case, these documents were
calculated to advance his own direct
personal interest exclusively. The
onus lay on him to prove that he innocently
uttered, having been deceived
by others. Could the jury, in
the face of such a marvellous coincidence
of times, of means, of objects,
believe that a number of different persons
were concerned in promoting the
prisoner's objects and interests, and
he all the while profoundly ignorant
of what was being done? The documents
are all proved forgeries; and
these he utters, and for the advancement
of his own interests alone! In
the agony of his difficulty—the crisis
of his fate—he goes to France clandestinely,
and is proved to have been
in constant intercourse with Mademoiselle
le Normand, and to have incurred
immense pecuniary liabilities
to her at that very period; giving,
however, a most contradictory account
of his relations and transactions with
her! Up to the hour of his trial, he
had given no explanation whatever
of his doings at Paris, whither he
went immediately after Lord Cockburn's
adverse judgment, and returned
so shortly after the discovery of the
Le Normand and the De Porquet
packets! And Leguix is found selling
a map of Canada, of 1703, exactly
at the time of the prisoner's being at
Paris; and Mademoiselle Le Normand
writes to him—"They have
found the man on the quay!"
II. The prisoner's counsel made an
ingenious, eloquent, and judicious
address—very brief, and directed
vigorously and steadily towards the
strong parts of the defence, and leaving
untouched the formidable points
arising out of the prisoner's correspondence
with Mademoiselle Le Normand,
and the conflicting accounts of
his movements and transactions given
in his judicial examinations. All the
forgeries are charged on, or supposed
to be, the act of one man—the prisoner;
yet not only does no single
witness trace the faintest resemblance,
in any of the alleged forgeries, to the
handwriting of the prisoner, or
Mademoiselle Le Normand, but an
able witness for the Crown, Mr
Lizars, negatives such a fact. Well
might the prisoner be deceived—if the
documents were forgeries—when his
counsel, his agents—the Lord Advocate,
and the Judge Ordinary,
every one concerned during the
ten years' litigation—was so deceived,
and never once suspected
it. Why did not the Crown produce
Mademoiselle le Normand?
And as to the purchase of the old
map of Canada from Leguix, on the
Quai Voltaire, he explicitly stated
that the prisoner was not the man!
But there was no evidence of the
forgery, and therefore the guilty
knowledge, using, and uttering, fell
to the ground. If even there were
doubts on the subject, the prisoner
was clearly entitled to the benefit of
them: his character "was everything;"
for he had received as high
as man could give. In an early part
of his address, Mr Robertson averred
that he saw in the countenances of
the jury "the cheering light of an
acquittal—so that he could almost
stop there;" and his last sentence was
one which would be deemed highly
objectionable on the part of counsel,
under such circumstances, in England—"On
my conscience I believe him
innocent of the crimes here charged,
and to have been merely the dupe of
the designing, and the prey of the
unworthy!"54 So solemn an expression
of belief could not, of course, have
been made by a gentleman if he were
not sincere; but it is certainly not a
part of the duty of counsel to make
such protestations; and in doing so
he trespasses beyond his province
upon that of others, and that one the
confines of which ought to be most
jealously and sacredly guarded—we
mean the province of the witness,
and that of the jury. Bating a little
wilful blindness to ugly facts, which
is occasionally to be found elsewhere
than in Scotland, the address of Mr
Robertson was as fair as can be expected
from a prisoner's advocate, and
calculated to make a strong impression
upon the jury.
III. Lord Meadowbank's summing
up was long and elaborate: stern
and uncompromising from first to
last in the expression of a very
hostile view of the whole case, as
against the prisoner, but still never
straining the proved facts. It is the
charge of an upright yet severe judge,
not ambitious of replying to the prisoner's
counsel, but vigorously expressing
his own conscientious opinions.
It is evident that Lord Meadowbank
regarded the advantage derived
by the prisoner from the presence in
the dock of his distinguished friend
Colonel D'Aguilar, and also from the
very flattering testimony to character
which he had received, as likely to
prove a disturbing force to the jury
in forming their estimate of the case.
He therefore, in the first instance,
addressed himself with a very evident
air of anxiety to this section
of the evidence. "That of
Colonel D'Aguilar," said he, "of the
gallant officer now seated with the
panel at the bar,55 was not more
creditable to the panel than it was to
the witness. It proved that his feelings
of obligation, long ago conferred,
had not been obliterated by the lapse
of time; and it was given with an
earnestness which, if it told on your
minds as it did on mine, must have
been by you felt as most deeply affecting....
But in weighing
this evidence to the character of the
prisoner, you must attend to what
that proof really amounts."56 He
proceeded to point out the chasm of
thirty years in their personal intercourse;
and then exhibited, in lively
colours, by way of set-off, the conduct
of the prisoner in raising large
sums of money on false representations
as to his resources—"raising a
sum of £13,000 on bonds granted by
him for £50,000. All this, gentlemen,
is, to say the least of it, a most
discreditable proceeding on the part
of a person bearing the high character
which has been given the prisoner....
It is for you, gentlemen, to
consider if the evidence which has
been given as to the character he once
bore, be or be not counterbalanced by
these disreputable proceedings at a
later period."57
The "evidence of the prisoner having
uttered the whole of the instruments
and documents charged in the
indictment to be forgeries has not
been called in question by the prisoner's
counsel, he not having said
one word on the subject. For my
own part, I see no ground for disputing
that the whole were uttered by
the prisoner, and I shall content myself
with referring to the evidence of
the official witnesses, who received
them from the agents of the prisoner;
who again, in so producing, and so
delivering them, acted under his authority,
and were the mere instruments
for carrying into effect those
acts for which he alone can be responsible."
Shortly afterwards, Lord
Meadowbank gave a blighting summary
of undisputed facts.
On the 10th December 1836, the
Lord Ordinary issued his note, pointing
out the evidence that was deficient:
"The prisoner admits that he
left the country immediately afterwards,
and went to Paris. Where he
went to then, he does not tell; under
what name he went, he does not tell;
where he got his passport has not
been discovered, because he concealed
the name under which he travelled.
He continued in Paris till the ensuing
August, when he returned, as he says,
to Scotland, to be present at the
Peers' election, and there he voted.
He then despatched his son to Paris,
and he returned with the map (which
you are now, in considering the case
in this view, to assume to be a fabrication)
in the month of October,
having all these documents written or
pasted upon it." Lord Meadowbank
proceeded to point out a circumstance
"of the last importance to this
branch of the case," which "had been
lost sight of by the prisoner's counsel,
and had not attracted the attention of
the counsel for the Crown." And certainly
the judge was right. This was
the "circumstance" in question. One
of the documents pasted on the back
of the map was a portion of the envelope
in which the supposed letter of
John of Antrim (John No. 2) had
been enclosed; and on this envelope
was the impression of a seal. Now,
in the prisoner's judicial examination
before the Lord Ordinary, (the step
admitted by Mr Swinton to have
been "unusual,") he was shown the
parchment packet contained in the De
Porquet packet, indorsed, "Some of
my wife's family papers;" and the
seal attached "was an impression of
his grandfather's seal (John No. 3);
he had not seen that seal later than
the year 1825; it is in the possession
of my sister, Lady Elizabeth Pountney."
The judge then pointed out
to the jury a fact which he had himself
discovered, that the impression of
the seal on this packet and that on
the envelope on the map were identical—a
fact, indeed, which the prisoner
himself had admitted in another part
of his examination. "Now, gentlemen,"
continued Lord Meadowbank,
"supposing there was not another
tittle of evidence in the case to connect
the prisoner with these proceedings,
see what this amounts to. You
find a link in his pedigree wanting in
December 1836. Immediately after
this has been pointed out he is in
Paris, and stays there till August.
During this short interval he is
brought into immediate and close connection
with this mass of fabrications,
of fabrications of no earthly use or
moment to any human being but himself,
and having among them the impression
of that seal which he admits to
be in the possession of his own sister.
Gentlemen, suppose that the name of
Mademoiselle le Normand had never
been heard of in this case, I leave it
to you to consider, whether the irresistible
inference be not, that that seal
could have been appended only by
the person in possession of it, and, at
least, that that person was within his
own domestic circle!"
Next followed some weighty remarks
on the evidence of Leguix as to
the purchase, by an Englishman, in
the winter of 1836-7, of the map of
Canada of 1703; and then Lord
Meadowbank pointed out certainly a
most serious contradiction in the
prisoner's statements, under his different
"examinations," as to the
period of his becoming acquainted
with Lord Cockburn's judgment of
December 1836. When first examined,
on the 18th December 1838,
in answer to the direct question when
he first knew of that judgment, he
declared that "it was not till the
month of March or April following,
[i. e. 1837,] that he was made acquainted
with that or any part of his
Lordship's judgment or proceedings,
except as to their general import, which
he had learned from a letter addressed
to him by his own family." Then
he was asked whether he had not
been made acquainted with Lord
Cockburn's judgment in the same
month of December in which it was
pronounced. He declared "that he
had not, and even then, [i. e., 18th
December 1838,] he knew nothing of
the particulars of that judgment."
On the 14th February 1839, however,
on being again examined before the
Sheriff, he declared that, "when in
Paris, in March or April 1837, he
heard that Lord Cockburn had pronounced
an unfavourable judgment in
his case; and at that time a copy of
the printed papers of the judgment and
of the note was sent him by his
family from Edinburgh, and until
that time he was not aware that
Lord Cockburn had formed an unfavourable
opinion of his case!"
"Here are declarations of the
prisoner, contradictory on matters as
to which there could be no error in
point of recollection,—an important
contradiction, and one testifying a
desire of concealment of the truth,
which, in all cases like this, has ever
been deemed greatly to affect the
innocence or guilt of a party." Again,
"if these declarations establish the
prisoner's knowledge of what had
been done by Lord Cockburn, you
are bound to consider whether that
knowledge does not materially affect
the evidence of the fabrication of
these documents, as having been
known to him, to whom alone they
could be useful."
Then Lord Meadowbank came to
the prisoner's visits to Mademoiselle
le Normand—his having trafficked
with her as far back as 1812, since
which time he said, "she had been
in the constant habit of advancing
money to himself and his wife;" and
yet her existence, even, was not
known to his most intimate friends!
Then he admits that he and his wife
"desire her to institute a search for
documents and charters to support
his claims;" that he had never
dreamed of searching in France for
documents illustrative of his own
pedigree; and it was with the greatest
surprise he afterwards learned
that they had been discovered!
Then Lord Meadowbank contrasted
the prisoner's statements as to the
paucity of his visits to this old lady
with the evidence of one Beaubis, the
porter at the hotel where she resided,
and who stated that the prisoner
"saw her every night." Infinitely
more serious, however, were the conflicting
answers given by the prisoner,
as to the nature and amount of his
pecuniary liabilities to Mademoiselle
le Normand, which Lord Meadowbank
pronounced to be "a mass of
contradictions." At one time he
stated that he had given her his bond
for four hundred thousand francs!—then
only two bonds for 100,000 francs
each, sent by him to her in 1837!—"payable,
palpably, on the event of his
succeeding in his claims on the Earldom
of Stirling. This," continued Lord
Meadowbank, "perhaps affords a
pretty good key for solving the mystery
of the interest that this woman has
taken in these productions!" Having
adverted to various portions of
this old lady's correspondence with
the prisoner, which had been seized
at his house—certainly containing
matters pregnant with violent suspicion—Lord
Meadowbank said,
"These are the circumstances from
which you are to infer, or not, the
guilty knowledge of the panel, and
of his being, or not, art and part in
the forgery of these documents.
Remember, it is not said or proved
that he forged them with his own
hand; the question is, whether he
had a knowledge of the forgeries that
were going on at Paris during his
stay there.... You will judge
whether his obligation to Mademoiselle
le Normand for 400,000 or
200,000 francs was or was not given
for the fabrication of that document.
And in looking to that document
itself, [i. e., the map with its indorsements,]
you will see his statement
as to the seal on the back of it; and
consider whether he be not thereby
brought into immediate contact with
the fabrication of that document,
in consequence of the impression of
the seal on its back, which he admits
was in the possession of a member
of his family." Lord Meadowbank
proceeded to advert briefly to "the
exculpatory evidence," and said that
the fact of the fabricated excerpt
charter having escaped the notice of
the Lord Ordinary, and also of Mr
Lockhart, was "no doubt a strong
circumstance in favour of the prisoner,"
if that excerpt charter had been
the only case against him; but it was
altogether a different matter when
regard was had to the great number
of other documents alleged to have
been forged, or knowingly uttered as
forged, by the prisoner. "Gentlemen,"
said Lord Meadowbank, "the
prisoner may have been a dupe in all
these transactions;... but you
have it clearly made out that the
only person who enjoyed the fruits
of the imposition was the prisoner
himself!... Gentlemen, I
have now laid before you the whole
case as it occurs to me. I have never
bestowed more pains upon any case
than I have upon this; and in none
have I ever summed up the evidence
with greater pain.... Our business
is to do justice, and you, in particular,
have to weigh the evidence
calmly and deliberately; and, should
you doubt of that evidence being
sufficient to bring the present charge
home to the prisoner, to give him
the full benefit of that doubt. But,
to entitle you to do so, these doubts
must be well considered, and the
circumstances on which they are
founded deliberately weighed. To
doubts that are not reasonable, you
have no right whatever to yield.
You are not entitled to require from
the Procurator direct proof of the
facts laid in his charge. The circumstances
laid in evidence must be put
together; and it is your duty, then,
to consider what is the reasonable
inference to be drawn from the whole
of them: in short, whether it be
possible to explain them upon
grounds consistent with the innocence
of the party accused; or
whether, on the contrary, they do
not necessarily lead to a result directly
the reverse."
The jury, thus charged with their
solemn responsibility, withdrew to
consider their verdict; and as they
were absent for FIVE HOURS, we
have time to ask the reader what
would have been his decision, as one
of that jury, on this deeply interesting,
this most serious and remarkable
case.
First, Were any or all of these
documents forgeries?
Secondly, If they were, did the
prisoner forge them?
Thirdly, If forgeries, though not by
the prisoner, did he use and utter
them with a guilty knowledge of their
being forgeries?
We regard Lord Meadowbank's
summing up as a dignified and
righteous one, blinking no responsibility,
and making difficult matters
plain to the humblest capacity, and
leaving no excuse for an inefficient
performance of duty. At length,
however, after their long absence
from Court—a torturing five hours'
absence—the return of the jury is announced;
the four judges resume
their seats with stern gravity and expectation;
the agitated prisoner, still
accompanied by his chivalrous friend,
Colonel D'Aguilar, appears at the
bar; the anxious crowd is hushed
into silence; and the chancellor (or
foreman) delivered in the following
verdict:—
I. "The Jury UNANIMOUSLY find
it proved that the excerpt charter is a
forged document; and, BY A MAJORITY,58
find it NOT PROVEN that the
panel forged the said document, or
is guilty art or part thereof,—or that
he UTTERED it, knowing it to be
forged." [Here arose a burst of applause
from the audience, in consequence
of which the Court immediately
ordered the gallery to be
cleared.]
II. "Unanimously find it proved
that the documents on the map are
forged; and by A MAJORITY find it
NOT PROVEN that the panel forged
the said documents, or is guilty art
and part thereof, or that he UTTERED
them, knowing them to be forged."
III. "Unanimously find it Not
Proven that the documents contained
in De Porquet's packet are forged; or
were uttered by the panel as genuine,
knowing them to be forged."
IV. "Unanimously find it Not
Proven that the copy letter to Le
Normand,59 in the fifth and last charge
of the Indictment, is either forged, or
was uttered by the panel as genuine,
knowing it to be forged."
As soon as the chancellor of the
jury had finished delivering the above
verdict the prisoner swooned, and
was carried out of court insensible.
On one of his counsel certifying to
the court, on the authority of a medical
gentleman in attendance on
him, the continued indisposition of
the prisoner, and that it would be
dangerous to bring him back into
court, his further attendance was dispensed
with, the Public Prosecutor
consenting; and as soon as the verdict
had been formally approved of
and recorded, the Court pronounced
the following sentence:—
"The Lords Commissioners of
Justiciary, in respect of the foregoing
verdict of Assize, assoilzie the panel
simpliciter, and dismiss him from the
bar."
By the law of Scotland a verdict of
"Not Proven" has the same effect as a
verdict of "Not Guilty," with reference
to liability to a second or subsequent
trial on the same charge.
Thus ended, on Friday the 3d May
1839, this extraordinary trial—than
which we know none more so on
record. That the jury found the
slightest difficulty in pronouncing the
excerpt charter, and the Le Normand
map, with its indorsements, to be
forgeries, no one can think probable;
but we own our very great surprise
at finding them of opinion, and
that "unanimously," that the forgery
of the De Porquet packet, and the
letter accompanying the Le Normand
packet, had "not" been "proven."
One thing, however, is perfectly clear,
that these forgeries could not have
been committed by lawyers, either
Scottish or English; for the slightest
smattering of legal knowledge would
have sufficed to show the stark staring
absurdity of imagining that such
"evidence!" could be received or
acted upon, for a moment, by any
court of justice in a civilised country.
In an English court, the De Porquet
packet would have been hailed, but
for decorum's sake, with a shout of
laughter. A single rule of English
law, that documents offered in evidence—especially
ancient ones—must
be proved to have come from the
proper custody, would have disposed
of the whole matter in a trice.
On what grounds proceeded the
verdict of "not proven," with reference
to the charge against the prisoner
of forgery, or guilty uttering of forged
documents, we know not, and it were
almost idle to speculate. We doubt
not, however, that Colonel D'Aguilar
played the part of a guardian angel
to his friend throughout his ordeal,
and think that the jury attached
the utmost weight to the suggestion
with which the prisoner's counsel
skilfully concluded his address,
that "the prisoner had been merely
the dupe of the designing, and the
prey of the unworthy."60 He may,
indeed, have been a weak and insanely
credulous person, and may
have unconsciously encouraged others
to be guilty of forgery, in imaginary
furtherance of his own ambitious objects,
by the promise of liberal recompense
in the event of his being successful—as
in the case of Mademoiselle
le Normand, to whom he had given
a bond for four hundred thousand
francs.
In conclusion, we have to express
our obligation to the accomplished and
learned editor of the report of this
trial, Professor Swinton, for the fulness
and fidelity with which he has
placed it before us. It is a valuable
and deeply interesting addition to the
records of Scottish jurisprudence; and
it is also well worth the while of an
English lawyer to procure and study
it. Nay, even the novelist may find
it well worth his while to ponder its
marvellous details.