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

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 - Swinton, p. 196.] 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 - Ante, p. 470, et passim.] since it bore an indorsement[18 - Ante, p. 474.] 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 - Swinton, p.309.] "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 - Per Lord Meadowbank, Id. ib.] Add to this, that William Earl of Stirling was himself, at the time, the Keeper of the Signet,[21 - Id., p. 84.] 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 - Id., p. 94.]

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 - Ante, p. 473.] 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 - Swinton, p. 205.] "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 seen[25 - Ante.] 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 - Id., p. 475. Swinton, App., p. vii.] 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 - Ante, p. 484.] 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 - Swinton, p. 311. This seems a slight inaccuracy, on the part of the learned Judge, of fifty-eight instead of fifty. —Ante, p. 484.] 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 out[29 - Pref. p. xxi.] 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 - Swinton, p. 209.] 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 - When the precept issues in favour of a Writer to the Signet, or of the Keeper of the Signet, (as Lord Stirling then was,) the precept passes the signet gratis: and that word is written at the bottom. – Swinton, p. 84.] 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 - Ante, p. 470.] 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 - Ante, p. 483.] 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 - Starkie On Evidence, vol. i. p. 8, note G. 3d ed.]– "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 - See the Pedigree, ante, p. 473.] 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 - Swinton, Append., p. xxiii.] 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 - Id., p. xxix.] 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 - Ante, p. 484-7.] 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 - See it in extenso, ante, p. 486.] 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 - Ante, p. 475.]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