To all this plea it was replied ‘that many persons, even of those who would not do injustice in private affairs, are too easily induced to countenance an injustice done to the public’—that is, by getting public money out of the forfeited estates. Fassifern, with his ‘connections and influence, might, if at liberty, use means to prevent discoveries.’ There is thus one law (an unpleasant law) for the rich, and another for the poor. Finally Fassifern’s ‘coolness and silence on the loss of papers of such consequence, notwithstanding his being confessedly a sensible careful man, were mentioned as very suspicious circumstances.’
No doubt they are suspicious, but that a ‘sensible careful man,’ of the best family, should, as charged, forge a bond of 90l. from his own gardener, still in his service, is also a very improbable kind of accusation. Fassifern and Charles Stewart were, therefore, left sub squalore carceris (March 6, 1754).
In August 1754 they again petitioned for bail. They had lain in gaol for fifteen months on no capital charge. ‘There is not one of the deeds under challenge that does not seem to be supported by unimpeachable evidence,’ as of Appin, a man of honour, and old Alexander Stewart. ‘They have suffered punishment beyond bounds already, without example, and since The Happy Revolution, neither heard of nor dreamed of in our neighbouring country,’ England.
Bail was not granted, and the Lord Advocate told a very extraordinary and, it may be said, inconsistent tale. His witnesses, he alleged, ‘have thought fit to stand a second diligence for compelling them to appear, and, though wrote to, have not given any answer.’ Of course there may be two interpretations of this reluctance, or even three. The witnesses may be coerced by local sentiment, or may not care to take oath to their evidence, or may have reason to suppose that they are not really wanted, as the Crown manifestly merely wishes to keep Fassifern out of his own country. The evidence of one informer has been given as to forged discharges of Lochiel’s. The Government, however, dropped that slander, while keeping up other charges, not supported by evidence given in Court.
The Advocate then carries back the origin of the trouble to the Loch Arkaig treasure. In some quarrel about this, a person was ‘heard to declare, that, in self defence, he would make known to persons in the King’s service what he knew, or had learned, concerning forged deeds prepared by Fassfern and Charles Stewart.’ This information he actually gave to Colonel Crawfurd. This was certainly one of the witnesses who would not answer to his subpœna, or come to the trial in spite of repeated ‘diligences.’ Lochaber was not likely to be a happy home for him afterwards; Lochaber no more! would probably be the burden of his song. Even Glenevis had three shots fired at him, in November 1752, between Fort William and his own house. So he alleges in a memorial, or petition, in the State Papers. The Colonel then sent for Charles Stewart, who had been introduced to him as a fit person for managing prosecutions against wearers of the philabeg. Charles Stewart, before the arrest of Fassifern, gave Colonel Crawfurd, at Fort William, a written set of Remarks on Fassifern’s claims, impeaching the authenticity of those to which Appin and Charles Stewart had sworn, including the gardener’s 90l. But Charles Stewart, when examined before the Lords, withdrew all this, and vowed that he had already denied it to the Colonel. When shown the written statement, he acknowledged that it was in his hand, but that he had written it ‘to pacify the Colonel, who was then in a great rage.’ For, in early summer, 1752, ‘a very hot inquiry was going on touching the murder of Glenure.’ Relations of Charles Stewart were imprisoned, and Colonel Crawfurd, interrogating Charles on the claims of Fassifern, told him that he, Charles, ‘was suspected of some accession to Glenure’s murder, and was to be imprisoned if he did not speak out, and make discoveries against the claims upon Lochiel’s forfeiture.’ Charles ‘cannot affirm’ that he did not ‘soothe Col. Crawfurd, who appeared to be in great passion,’ by telling tales against the claims, but rather suspects that he did. But, if he did, he admits that he lied, ‘in the confusion and terror he was then in.’ So far, the evidence before the Court is that of a witness who declines to be sworn, and of a prisoner who withdraws testimony extorted by threats.
The Lord Advocate next quoted a letter to Fassifern, from his Edinburgh agent, Mr. Macfarlane, of December 1751—that is, shortly after Fassifern’s release in the affair of the treasure. Mr. Macfarlane obscurely warns him in this letter ‘not to be carried, for the sake of a small paultry sum of money into difficulties.’ ‘Mines were to be sprung,’ ‘odd appellations are given,’ phrases which may, or may not, refer to the business of the French gold.
The Advocate then told how Fassifern, in summer, 1752, a year before his arrest in 1753, got his bag of papers from Mr. Macfarlane and returned it, since when no mortal has seen the incriminated deeds. This, of course, is the crucial point; but Mr. Macfarlane had himself prepared Fassifern’s claim from the very deeds which, having disappeared, are now said to have been recently forged. Mr. Macfarlane can have seen nothing suspicious in them, or he would not have made them the basis of a claim drawn up by himself. His suspicions of 1751 would have revived, and he would have abandoned the case. He still acts daily for Fassifern, but Fassifern has not recovered the documents, nor tried seriously to recover them.
On these grounds bail was again refused.
No decision was arrived at by the Lords of Session till January 1755. By that time all danger from Jacobitism was over. Charles was deserted by Prussia, by the Earl Marischal, and by his English adherents. The Lords found Fassifern guilty of abstracting his own papers, from the bag in Mr. Macfarlane’s custody. These papers it was inferred, were forged. He was sentenced to ten years of banishment, which he passed at Alnwick. Charles Stewart was deprived of his office of notary public. ‘Some of the Lords were of opinion that there was not a proof of guilt sufficient to infer any punishment. But others were of a different opinion.’ In Fassifern’s plea he complained of Colonel Crawfurd’s frequent examinations of Charles Stewart, and of a present of 10l. made by him to that notary.