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

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.

THE DINNER TO LORD STANLEY

Fifteen years have elapsed since Sir Robert Peel made his memorable speech in Merchant Tailors' Hall; and the foundation was laid, in the unanimity of three hundred and fifteen independent members of the House of Commons, of that great party which at length proved triumphant in the country, and some years afterwards returned him by a majority of 700,000 out of 1,000,000 of electors, and a majority of 91 in the House of Commons, as Prime Minister of England. The victory then achieved, the triumph then gained, rendered the future a matter of comparative ease in Government, of certainty in anticipation. The nation had spoken out: Protection to Native Industry in all its branches – agricultural, manufacturing, and colonial – was the principle which had banded the majority together; and the victory was so great, the bond which united them so strong, that, for this generation at least, all attempts, by external aggression, to shake their government must have proved nugatory. England was once again united: the great cause of domestic industry of the universal people had triumphed. All that was required of its leaders was to have remained true to themselves, to have adhered to their principles, to have proved faithful to their professions; and most assuredly the great majority of the nation would have proved faithful to them. An opening was afforded, a foundation was laid, for the formation of a great National Party, which, discarding the now senseless divisions of former times, was intent only on fostering the industry of the whole working-classes of the community, and on rearing up, on the basis of experienced benefits and acknowledged blessings, a great and united British empire in every quarter of the globe.

What has prevented the realisation of so glorious a vision? what has stepped between Great Britain and the diadem encircling the earth thus presented to her grasp, and converted an empire which might now have daily, and for centuries to come, been growing in strength, overflowing with prosperity, unanimous in loyalty, into one declining in numbers, shivered in power, divided in opinion? Whence is it that, while the debates in Parliament are daily filled with the piteous, and, alas! too faithful accounts of Irish destitution, of metropolitan suffering, of agricultural distress, of industrial depression, the colonies are all meditating separation from the mother country, and Government at home, anticipating a severance of the empire which they can no longer defend, are already, like the Romans of old, abandoning the distant parts of the empire to their own resources? How has it happened that, after reading a glowing eulogium in the leading articles of the Times on the prosperous condition of the country, the increase of its exports and imports, the cheapened food of its inhabitants, we read in the next columns of the very same paper a piteous statement from Lord Ashley on the frightful condition of the working-classes in the metropolis – a heart-rending account from Mr Reynolds of the daily declining resources and increasing pauperism of Ireland – an alarming statement, from the official return, of the daily increasing importation of foreign grain, at prices below what it can be raised at in this country – a decisive proof, in the monthly return, of the decline of British and increase of foreign shipping – and Lord Grey's circular to Australia and the Mauritius, announcing the approaching withdrawal of the British troops from those valuable settlements? Whence have arisen those obvious and undeniable and well-known symptoms of national decline, immediately after the opening of so glorious a dawn, and when the means of such lasting and universal prosperity had, by the benignity of a gracious Providence, been placed within our grasp?

No one need be told from what these melancholy results, after such splendid prospects, have arisen. It is dereliction of principle which has done the whole. A statesman was placed at the helm, of great ability, of unwearied industry, of vast influence, but who wanted the one thing needful for great statesman-like achievement – singleness and consistency of principle. He rose to power by the exertions of the Conservative party; and the first use he made of that power, when fully acquired, was to spread dissension among that party, and for a time destroy their influence. He made himself not the representative of the nation, but of a section of the nation; not of the British empire in every part of the world, but of Manchester and Glasgow. To their interests everything else was sacrificed. The agricultural interest was sacrificed by the repeal of the Corn Laws; the colonial, by the equalising the duties on sugar and wood; the shipping, by the repeal of the Navigation Laws; the manufactures for the home market, by the unrestrained admission of foreign manufactured produce. The interests of no class were consulted but those of the buyers and sellers of commodities, and of the great manufacturers for the export sale, the class from whom Sir Robert Peel sprang; and as the interests of that class are on most points adverse to the interests of the rest of the community, the vast majority are now suffering for their benefit.

The time was when such an anomaly as this could not have existed. Within the lifetime of half the present generation, the interests of the merchant, the manufacturer, and the farmer were identified; and no one of these classes could be benefited without extending the impulse to all the others. The toast of "The Plough, the Loom, and the Sail," was as regularly to be heard at public dinners as that of the "British Constitution, and may it be perpetual." But now neither is heard – they have gone out of fashion together. Whence this extraordinary, this woeful change, in so short a time, and in a nation which has not been subjected to the convulsions of at least a violent and bloody revolution? It is that the principle of protection to native industry has been abandoned by the Government. A section of the community has become so rich and powerful, from the shelter afforded to it during a hundred and fifty years of protective policy, that it has succeeded in setting all other classes at defiance, and changing our policy for its own immediate benefit, but their certain decline and ruin.

This class is that of manufacturers for the export sale. When Great Britain was a self-supporting country, as it was to all practical purposes down to 1842, the growth of our manufactures, whether for the home or the foreign market, acted immediately and powerfully on the interests of all other classes, agricultural and commercial, with which they were surrounded. They eat the British or Irish farmer's bread and beef; they were clothed in the British manufacturer's clothing; the machinery they made use of was made by English hands; their goods, when completed, were exported in British bottoms; and the profits of the master manufacturers, who put the whole in motion, were for the most part spent in the purchase of British luxuries and the encouragement of British industry. Thence the universal feeling, that the interest of all classes was identical, and that you could not benefit the one without at the same time benefiting the others. But since the fatal period when protection was abandoned, this mutual dependence has been done away with – this great and beautiful bond of cohesion has been destroyed. We can no longer give "The Plough, the Sail, and the Loom," at any public dinner. Every one feels that the interests of these classes have now been set at variance. The old fable of the Sheaf of Arrows has been realised. One arrow, marked "Protection to Native Industry," has been drawn out, and the whole sheaf is falling to pieces.