The papers were no longer in it. Fassifern, being examined, could remember having abstracted no such deeds as interested the Court. Next day Fassifern asked for a copy of his statement, ‘as he was apprehensive he might have inadvertently fallen into some mistakes in the hurry of the examination, which he was extremely desirous to rectify.’ The Lords refused his petition: he might have a copy of his examination ‘when he is brought upon trial.’ Next day he was charged with being guilty, or ‘art and part in forging the deeds, or of using them, knowing them to be forged.’ He was to be detained in prison till his trial.
He protested that he had already lain in prison for three months, on a charge (Pickle’s) of ‘being privy to unlawful designs carried on by disaffected persons’—namely, a rising to follow on the kidnapping of the Royal Family. He ‘has reason to believe that no such prosecution is seriously intended,’ which is pretty obvious, Pickle not being producible, but absent, at that very hour, in France, with Prince Charles! Moreover Fassifern was not told on whose information he was examined, though he was ‘heckled’ for several hours.
The charge of forgery was, in fact, based, as usual, on the evidence of an Informer, whom we need not name. Here is a report of his accusations:—
‘... Says he has been certainly informed that Fassfarn caused Forge several Grounds of Debt, in Order to be the Foundation of Claims upon the Estate of Lochiel, some of which were written by Charles Stewart present prisoner in the Castle, and Lochiel’s name was Forged by one Allan Cameron of Landavrae, who could write like him, and there were Forced Discharges by Lochiel to his Tenants for Crops in 1746 and Proceedings in Order to prevent the Government from getting payment of the Rent of 1746 and arrears.’
Says on knowing this he ‘instantly told Crawfurd’!
Now even the Government’s plea against Fassifern says no word of ‘forged discharges of Lochiel to his tenants!’[102]
The interest of this case is partly the mystery—had Fassifern really been concerned in tampering with documents?—partly the procedure, which we know had political motives, and was iniquitous in method. As to Fassifern’s guilt, if any, we are not likely to learn the truth; as to the kind of justice he got—there can only be one opinion.
On August 10 Fassifern was ‘ordained’ to receive a full copy of his examination. He was anxious that the evidence of an aged solicitor, Alexander Stewart, in Appin, a man over eighty, and unable to travel, should be taken by commission. This Stewart had written, or witnessed, several of the old disputed deeds, and was the only person alive able to testify, of his own knowledge, to their authenticity. Fassifern also remonstrated against being described, in the Lord Advocate’s charge, as ‘the immediate younger brother of Donald Cameron, late of Lochiel, attainted.’ He ‘ventures to hope that this is not meant to make a point of dittay.’ It was obviously meant to suggest prejudice. He asked for bail, after his already long imprisonment. Bail was refused by the Lords of Session, nor would they examine Alexander Stewart by commission; but they promised to remove Fassifern from the Castle to the Tolbooth. The full charges, or ‘improbatory articles’ against him, he was not to receive.
On August 24 the prisoner once more protested against ‘the practice of dropping out charges one after the other,’ which unpleasantly resembles the system of Titus Oates. If the Government, as appears certain, had this accusation of forgery pigeon-holed before they locked up the prisoner in May, why did they not bring it forward at first? Fassifern’s imprisonment, he justly remarks, ‘approaches to a kind of torture.’ He is denied the free use of pen and ink, so necessary in his preparation of a defence. An armed sentinel is in his room day and night. This petition was so far successful that pen and ink were given, but what he wrote was inspected, and even his lawyer’s chief clerk, Mr. Flockhart, could only visit him by special license. He was allowed to take the air, under a guard, but he seems to have been detained in the Castle, at least the Deputy-Governor is charged to remove the armed sentinel.
In January 1754 articles of accusation were placed before the Lords of Session, and witnesses were examined, including old Alexander Stewart, who was brought from Appin ‘in a chaise.’ He attested that, as early as 1713, he had written and witnessed some of the deeds, and again in 1728. Appin (whom one of the deeds especially concerned) gave evidence as to the authenticity of others, and quoted Lochiel’s remarks to him, in 1746, about 1,000l. borrowed from Fassifern in 1741, and a bond given for the money by himself. He averred that Charles Stewart, writer in Banavie, accused now of forging that instrument, had really written and witnessed it, with Torcastle (in exile) and others (Culchenna and Lundavra), now dead. On these grounds Fassifern petitioned for bail. He had lain in prison for ten months, and his eyes were so impaired that he could not see to read. He must sink sub squalore carceris, and be ‘uprooted’ in earnest.