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

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. —