The Solicitor-General, partly from the intrinsic preposterous absurdity of this whole transaction, and partly from his extended and very able analysis of the two former heads of evidence, dealt rather summarily with the De Porquet packet. "This packet, too," he observed, "was received through the post-office. We have not, therefore, had the same means of tracing these documents as we possessed in regard to the map."[49] His commentary, however, though brief, was cutting, particularly on the "absurd solemnity" of the "opening" of the packet by the prisoner's son, the "death of the thief in the very nick of time," and the mysterious unknown "Mrs Innes Smyth." "I admit," said he, "that there is no direct evidence as to these English documents. But it must be taken into account how closely the whole case is here riveted and dovetailed together; so that I think the documents produced are all parts and portions of the grand machinery of forgery which has been set agoing here, to meet the effect of the Lord Ordinary's interlocutor setting aside the panel's title."[50]
The prisoner's counsel prudently dealt still more briefly with this part of the case. The very little that he did say, however, was excellently said. He dwelt on the proof that the superscription, "Some of my wife's family papers,"[51] had been proved to be genuine. "Yet a verdict of forgery is demanded on that paper, and all the documents contained in that parcel are said to be forged—the one, because we have proved it to be genuine; the others, because the Crown has proved—nothing at all. That is the plain English of it, gentlemen, and I leave it in your hands."[52]
Lord Meadowbank dealt with this portion of the case at considerably greater length, and very carefully. He remarked on the absurd improbability of so notable a discovery being made at the precise moment of difficulty, and in the manner alleged, by the son of the prisoner—a packet full of most critical documents, sent anonymously—exactly as in the case of the Le Normand packet, in both respects—the one in April, the other in July next, after the Lord Ordinary's judgment had indicated the hiatus in the proof which these two windfalls exactly filled up. The two letters enclosed in it—viz., from Benjamin Alexander to his brother John, (No. 3,) and from "A. E. Baillie" to the same person—Lord Meadowbank regarded as "deserving the most serious consideration of the jury, not so much for the sake of the letters themselves, as from being a part of that great mass of evidence which bore upon the whole question of the authenticity of these various productions."[53] He remarked strongly on young Alexander's letter announcing to his father the discovery of the packet—his going to a notary and proctor to have it opened, instead of at once sending it on to his father. "For aught his son is supposed to have known, or could possibly tell, it was strictly confidential to his father, and he had no right to make any conjectures as to the contents of it. Did you ever hear a more extraordinary story than he tells? I leave it to you to consider whether such a proceeding can be accounted for on any rational principle. Did you ever hear of such a thing as this being done before? For my own part, the proceeding is altogether incomprehensible upon any supposition but one—and that is, upon the notion that the contents of the packet were not unknown to some of the performers in the drama, before ever it [the packet] entered the shop of De Porquet." Lord Meadowbank laid great stress on the following certainly very significant passage in this letter, relating to the "inscription" mentioned in the two letters of "Benjamin Alexander" and "A. E. Baillie,"—"You will see that the inscription is now made a good document, being confirmed by the letters of B. Alexander and A. E. Baillie. The cause is enrolled to be heard on the 31st day of May." The son was writing on the 23rd April. "The better to appreciate this letter," continued Lord Meadowbank, "let me recall your recollection to the map of Canada. You have thus three letters, and that inscription confirming another inscription (as stated in young Alexander's letter) fixed on the map; and if you do not hold the map or the papers upon it to be genuine, you will consider how the two sets of papers are affected by each other—the one produced at the same moment to confirm that which had been produced before." As for the superscription, "Some of my wife's family papers," the "writing on the cover," said Lord Meadowbank, "may be genuine, while the documents said to be contained in it may be forged; original enclosures may have been withdrawn, and others substituted."—"If you have arrived at the conclusion that the documents at the back of the old map are forgeries, (and how you are to do otherwise it is difficult for me to imagine,) I think you will not find it very easy to disconnect this reference to the inscription, and to the alleged genealogy of the persons with whom it was the object of the prisoner to connect himself, from these documents, or to entertain any reasonable doubt that both are in pari casu—were fabricated with the view of bolstering up one another, and must be alike liable to the imputation of forgery: both sets of documents were exactly calculated for making up those defects in the chain of evidence pointed out by the Lord Ordinary. I shall conclude what I have to say upon this matter with an observation which will have occurred to yourselves—that if you hold the excerpt charter a forgery, and that the documents written and pasted upon the back of the map are forgeries, it will be difficult for you not to hold that this must affect in a most material degree the evidence relating to the other documents, which the public prosecutor avers to be also forgeries. In other words, if you are satisfied that the proof is clear that any of these sets of documents are forged, but that the evidence with respect to others is not so conclusive, you will have to make up your minds whether, considering that the whole are so connected with and bear upon each other, there can be any good reason for fixing a character upon the one which must not also belong to the other."
We have been thus particular in laying before the reader the just and able observations of Lord Meadowbank on this last portion of the case, chiefly because of the result at which the jury arrived. It seems to us not a little singular that one material enclosure in the De Porquet packet escaped the notice of both the counsel for the Crown and the prisoner, and also the judge: we allude to the Genealogical Tree, professed to be certified by "Thos. Campbell, 15th April 1759," and forming one of the charges in the indictment. If this be really a forgery, it seems one of extraordinary impudence.
Again, then, as in the two former instances, we ask the reader, weighing well the evidence, and particularly the above observations upon it of Lord Meadowbank, to say Ay or No to the question, Were the documents contained in the De Porquet packet genuine or spurious? Bearing in mind that all three were the contributions of anonymous informants—the excerpt charter, sent to Mr Banks by—he knew not whom; the Le Normand papers, by—an exceedingly mysterious and exalted personage; and the De Porquet packet, by—a third mysterious unknown: the first sent to the confidential agent of the prisoner in Ireland; the second to one of his oldest and most confidential friends at Paris; the third to his bookseller in London. It may also be worth mentioning that neither Mr Banks, nor Mademoiselle Le Normand, nor either of the prisoner's sons, nor his sister, "Lady Eliza Pountney," was called as a witness by the prisoner, nor by the Crown.
There remains to be determined, however, a question of infinite moment to the prisoner—whether, in the event of the foregoing documents, or any of them, being pronounced forgeries, he was guilty of either having forged them, or having used and uttered any of them, knowing them to have been forged? "This," said Lord Meadowbank, with an air of deepening solemnity, "is the heaviest part of the charge against the panel; and I assure you, gentlemen, that in the whole course of my life I never addressed a jury with greater anxiety than I do at present."
Let us pause, however, for a moment, to see how this very grave question was first dealt with by the counsel for the Crown, and then for the prisoner.
I. The Solicitor-General, it will be observed, according to the Scottish mode of criminal procedure, had only one opportunity of addressing the jury—and that after the whole evidence on both sides had been laid before them, and immediately before the speech by the prisoner's counsel. In England, the counsel for the Crown speaks also only once, but that before the evidence has been adduced, unless the prisoner call evidence—in which event the counsel for Crown "has the last word," as it is called, "to the jury." This difference may perhaps account for the earnestness with which the Solicitor-General, in the case before us, appears to have "pressed for a conviction"—such is the phrase used on such occasions in England. We are bound, however, to say that, in our opinion, the Solicitor-General did not exhibit any undue or unseemly eagerness; nor approach even towards unfairness, or exaggeration, misrepresentation, or suppression. The prisoner, said he, is at all events, de facto the utterer of these various documents, and the presumption is always against the utterer—especially when, as in the present case, these documents were calculated to advance his own direct personal interest exclusively. The onus lay on him to prove that he innocently uttered, having been deceived by others. Could the jury, in the face of such a marvellous coincidence of times, of means, of objects, believe that a number of different persons were concerned in promoting the prisoner's objects and interests, and he all the while profoundly ignorant of what was being done? The documents are all proved forgeries; and these he utters, and for the advancement of his own interests alone! In the agony of his difficulty—the crisis of his fate—he goes to France clandestinely, and is proved to have been in constant intercourse with Mademoiselle le Normand, and to have incurred immense pecuniary liabilities to her at that very period; giving, however, a most contradictory account of his relations and transactions with her! Up to the hour of his trial, he had given no explanation whatever of his doings at Paris, whither he went immediately after Lord Cockburn's adverse judgment, and returned so shortly after the discovery of the Le Normand and the De Porquet packets! And Leguix is found selling a map of Canada, of 1703, exactly at the time of the prisoner's being at Paris; and Mademoiselle Le Normand writes to him—"They have found the man on the quay!"
II. The prisoner's counsel made an ingenious, eloquent, and judicious address—very brief, and directed vigorously and steadily towards the strong parts of the defence, and leaving untouched the formidable points arising out of the prisoner's correspondence with Mademoiselle Le Normand, and the conflicting accounts of his movements and transactions given in his judicial examinations. All the forgeries are charged on, or supposed to be, the act of one man—the prisoner; yet not only does no single witness trace the faintest resemblance, in any of the alleged forgeries, to the handwriting of the prisoner, or Mademoiselle Le Normand, but an able witness for the Crown, Mr Lizars, negatives such a fact. Well might the prisoner be deceived—if the documents were forgeries—when his counsel, his agents—the Lord Advocate, and the Judge Ordinary, every one concerned during the ten years' litigation—was so deceived, and never once suspected it. Why did not the Crown produce Mademoiselle le Normand? And as to the purchase of the old map of Canada from Leguix, on the Quai Voltaire, he explicitly stated that the prisoner was not the man! But there was no evidence of the forgery, and therefore the guilty knowledge, using, and uttering, fell to the ground. If even there were doubts on the subject, the prisoner was clearly entitled to the benefit of them: his character "was everything;" for he had received as high as man could give. In an early part of his address, Mr Robertson averred that he saw in the countenances of the jury "the cheering light of an acquittal—so that he could almost stop there;" and his last sentence was one which would be deemed highly objectionable on the part of counsel, under such circumstances, in England—"On my conscience I believe him innocent of the crimes here charged, and to have been merely the dupe of the designing, and the prey of the unworthy!"[54] So solemn an expression of belief could not, of course, have been made by a gentleman if he were not sincere; but it is certainly not a part of the duty of counsel to make such protestations; and in doing so he trespasses beyond his province upon that of others, and that one the confines of which ought to be most jealously and sacredly guarded—we mean the province of the witness, and that of the jury. Bating a little wilful blindness to ugly facts, which is occasionally to be found elsewhere than in Scotland, the address of Mr Robertson was as fair as can be expected from a prisoner's advocate, and calculated to make a strong impression upon the jury.
III. Lord Meadowbank's summing up was long and elaborate: stern and uncompromising from first to last in the expression of a very hostile view of the whole case, as against the prisoner, but still never straining the proved facts. It is the charge of an upright yet severe judge, not ambitious of replying to the prisoner's counsel, but vigorously expressing his own conscientious opinions.