MODERN STATE TRIALS.[10]
PART V.—THE ROMANCE OF FORGERY—Concluded.
"Alexander Humphreys, or Alexander, pretending to be Earl of Stirling," said Lord Meadowbank,[11] addressing his prisoner, on his being first placed at the bar, "you have been served with an indictment charging you with the crimes of forgery, and of feloniously using and uttering as genuine, certain documents therein described, and alleged to have been forged and fabricated, you knowing them to be so. Are you guilty, or not guilty?"
"Not guilty, my Lord," replied the prisoner, standing beside his friend Colonel D'Aguilar. But now occurs the question—how was he to be tried?—as a peer of Scotland, or as a commoner? If as a peer, the court before whom he stood was incompetent to try him; for he was entitled, by the Treaty of Union, as a peer of Scotland, to be tried as peers of Great Britain are tried—viz., in the Court of the Lord High Steward; and the mode of procedure is that prescribed in 1825 by Statute 6 Geo. iv. c. 66, which required the Scottish judges to be summoned and to sit with the English judges, and according to the law of Scotland, [pp. 5, 6.] This privilege, however, as will be presently seen, the prisoner waived. Then came another question: was he to be tried as a "landed man?"—by which is meant a landed proprietor. It is a very ancient privilege of landed men, by the Scotch law, that they should be tried only by their peers—i.e., their brother landed proprietors. In process of time, however, this right has been so far modified as to entitle the prisoner to a majority only of his landed brethren. This right also, as will shortly be seen, the prisoner waived—having probably no pretence to the possession of any lands in Scotland, except such as he claimed as Earl of Stirling. To meet any possible difficulty, however, on this score, two lists of assize had been prepared—respectively consisting of "landed men" and common jurors, and "special jurors" and common Jurors: the former to be adopted "if the said Alexander Humphreys claimed, and was entitled to, the privilege of a landed man;" the latter, "if he did not claim, or was not entitled to, the privilege of a landed man."
After the prisoner had pleaded not guilty, the clerk in court read aloud the defences which, according to the procedure in Scotland, had been lodged in court for the prisoner, signed by his two counsel. They were entitled "Defences for Alexander Alexander, Earl of Stirling,[12] against the indictment at the instance of her Majesty's Advocate."
These Defences were comprised in two paragraphs. The first stated that, as Lord Cockburn's interlocutor, though not final, had decided against the prisoner's claim to be the heir of the Earl of Stirling,[13] "he was advised that he was not in a condition to plead the privilege of peerage; but was bound to acknowledge the competency of that court to proceed under the indictment before it." The second proceeded thus:—
"The panel pleads not guilty of the libel generally; and, even particularly, he denies that he had the slightest ground to suspect that all, or any, of the documents libelled on were forged or fabricated. He produced them under legal advice, in the belief of their being genuine, and useful for the support of his interest."
"A third paragraph consisted of an application to postpone the trial, on the ground that the prisoner was not prepared for it, as one of his counsel and his agent had gone to London and Paris to make inquiry as to several of the witnesses for the Crown, and such further investigation as might be necessary for his defence." The words which we have placed in italics indicate a course of procedure altogether at variance with that adopted at the English bar.
As soon as their Defences had been read, the prisoner's counsel rose and said, "My lords, I do not mean to claim for the panel the privilege of a landed man; nor do we intend to state any objections to the relevancy of the indictment." By "relevancy" (a technical term in Scotch law) is signified "the justice and sufficiency of the matters stated in the indictment to warrant a decree in the terms asked;"[14] and, according to the criminal law of Scotland, this objection must be taken, if at all, before the trial. If it be not, the prisoner cannot make it the subject of arrest of judgment by the court, but must refer it to the law advisers of the Crown, after the sentence has been pronounced by them, to have such weight attached to it as may be deemed proper, with a view to pardon or mitigation of punishment.[15]
"Let the relevancy of the indictment be determined," said the Solicitor-General, "by your lordships pronouncing the usual interlocutor."