Blackwood's Edinburgh Magazine, Volume 69, No. 427, May, 1851

"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:

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.