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] 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] "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] 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] 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] 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] 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] 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."