It is evident that Lord Meadowbank regarded the advantage derived by the prisoner from the presence in the dock of his distinguished friend Colonel D'Aguilar, and also from the very flattering testimony to character which he had received, as likely to prove a disturbing force to the jury in forming their estimate of the case. He therefore, in the first instance, addressed himself with a very evident air of anxiety to this section of the evidence. "That of Colonel D'Aguilar," said he, "of the gallant officer now seated with the panel at the bar,[55] was not more creditable to the panel than it was to the witness. It proved that his feelings of obligation, long ago conferred, had not been obliterated by the lapse of time; and it was given with an earnestness which, if it told on your minds as it did on mine, must have been by you felt as most deeply affecting.... But in weighing this evidence to the character of the prisoner, you must attend to what that proof really amounts."[56] He proceeded to point out the chasm of thirty years in their personal intercourse; and then exhibited, in lively colours, by way of set-off, the conduct of the prisoner in raising large sums of money on false representations as to his resources—"raising a sum of £13,000 on bonds granted by him for £50,000. All this, gentlemen, is, to say the least of it, a most discreditable proceeding on the part of a person bearing the high character which has been given the prisoner.... It is for you, gentlemen, to consider if the evidence which has been given as to the character he once bore, be or be not counterbalanced by these disreputable proceedings at a later period."[57]
The "evidence of the prisoner having uttered the whole of the instruments and documents charged in the indictment to be forgeries has not been called in question by the prisoner's counsel, he not having said one word on the subject. For my own part, I see no ground for disputing that the whole were uttered by the prisoner, and I shall content myself with referring to the evidence of the official witnesses, who received them from the agents of the prisoner; who again, in so producing, and so delivering them, acted under his authority, and were the mere instruments for carrying into effect those acts for which he alone can be responsible." Shortly afterwards, Lord Meadowbank gave a blighting summary of undisputed facts.
On the 10th December 1836, the Lord Ordinary issued his note, pointing out the evidence that was deficient: "The prisoner admits that he left the country immediately afterwards, and went to Paris. Where he went to then, he does not tell; under what name he went, he does not tell; where he got his passport has not been discovered, because he concealed the name under which he travelled. He continued in Paris till the ensuing August, when he returned, as he says, to Scotland, to be present at the Peers' election, and there he voted. He then despatched his son to Paris, and he returned with the map (which you are now, in considering the case in this view, to assume to be a fabrication) in the month of October, having all these documents written or pasted upon it." Lord Meadowbank proceeded to point out a circumstance "of the last importance to this branch of the case," which "had been lost sight of by the prisoner's counsel, and had not attracted the attention of the counsel for the Crown." And certainly the judge was right. This was the "circumstance" in question. One of the documents pasted on the back of the map was a portion of the envelope in which the supposed letter of John of Antrim (John No. 2) had been enclosed; and on this envelope was the impression of a seal. Now, in the prisoner's judicial examination before the Lord Ordinary, (the step admitted by Mr Swinton to have been "unusual,") he was shown the parchment packet contained in the De Porquet packet, indorsed, "Some of my wife's family papers;" and the seal attached "was an impression of his grandfather's seal (John No. 3); he had not seen that seal later than the year 1825; it is in the possession of my sister, Lady Elizabeth Pountney." The judge then pointed out to the jury a fact which he had himself discovered, that the impression of the seal on this packet and that on the envelope on the map were identical—a fact, indeed, which the prisoner himself had admitted in another part of his examination. "Now, gentlemen," continued Lord Meadowbank, "supposing there was not another tittle of evidence in the case to connect the prisoner with these proceedings, see what this amounts to. You find a link in his pedigree wanting in December 1836. Immediately after this has been pointed out he is in Paris, and stays there till August. During this short interval he is brought into immediate and close connection with this mass of fabrications, of fabrications of no earthly use or moment to any human being but himself, and having among them the impression of that seal which he admits to be in the possession of his own sister. Gentlemen, suppose that the name of Mademoiselle le Normand had never been heard of in this case, I leave it to you to consider, whether the irresistible inference be not, that that seal could have been appended only by the person in possession of it, and, at least, that that person was within his own domestic circle!"
Next followed some weighty remarks on the evidence of Leguix as to the purchase, by an Englishman, in the winter of 1836-7, of the map of Canada of 1703; and then Lord Meadowbank pointed out certainly a most serious contradiction in the prisoner's statements, under his different "examinations," as to the period of his becoming acquainted with Lord Cockburn's judgment of December 1836. When first examined, on the 18th December 1838, in answer to the direct question when he first knew of that judgment, he declared that "it was not till the month of March or April following, [i. e. 1837,] that he was made acquainted with that or any part of his Lordship's judgment or proceedings, except as to their general import, which he had learned from a letter addressed to him by his own family." Then he was asked whether he had not been made acquainted with Lord Cockburn's judgment in the same month of December in which it was pronounced. He declared "that he had not, and even then, [i. e., 18th December 1838,] he knew nothing of the particulars of that judgment." On the 14th February 1839, however, on being again examined before the Sheriff, he declared that, "when in Paris, in March or April 1837, he heard that Lord Cockburn had pronounced an unfavourable judgment in his case; and at that time a copy of the printed papers of the judgment and of the note was sent him by his family from Edinburgh, and until that time he was not aware that Lord Cockburn had formed an unfavourable opinion of his case!" "Here are declarations of the prisoner, contradictory on matters as to which there could be no error in point of recollection,—an important contradiction, and one testifying a desire of concealment of the truth, which, in all cases like this, has ever been deemed greatly to affect the innocence or guilt of a party." Again, "if these declarations establish the prisoner's knowledge of what had been done by Lord Cockburn, you are bound to consider whether that knowledge does not materially affect the evidence of the fabrication of these documents, as having been known to him, to whom alone they could be useful."
Then Lord Meadowbank came to the prisoner's visits to Mademoiselle le Normand—his having trafficked with her as far back as 1812, since which time he said, "she had been in the constant habit of advancing money to himself and his wife;" and yet her existence, even, was not known to his most intimate friends! Then he admits that he and his wife "desire her to institute a search for documents and charters to support his claims;" that he had never dreamed of searching in France for documents illustrative of his own pedigree; and it was with the greatest surprise he afterwards learned that they had been discovered! Then Lord Meadowbank contrasted the prisoner's statements as to the paucity of his visits to this old lady with the evidence of one Beaubis, the porter at the hotel where she resided, and who stated that the prisoner "saw her every night." Infinitely more serious, however, were the conflicting answers given by the prisoner, as to the nature and amount of his pecuniary liabilities to Mademoiselle le Normand, which Lord Meadowbank pronounced to be "a mass of contradictions." At one time he stated that he had given her his bond for four hundred thousand francs!—then only two bonds for 100,000 francs each, sent by him to her in 1837!—"payable, palpably, on the event of his succeeding in his claims on the Earldom of Stirling. This," continued Lord Meadowbank, "perhaps affords a pretty good key for solving the mystery of the interest that this woman has taken in these productions!" Having adverted to various portions of this old lady's correspondence with the prisoner, which had been seized at his house—certainly containing matters pregnant with violent suspicion—Lord Meadowbank said, "These are the circumstances from which you are to infer, or not, the guilty knowledge of the panel, and of his being, or not, art and part in the forgery of these documents. Remember, it is not said or proved that he forged them with his own hand; the question is, whether he had a knowledge of the forgeries that were going on at Paris during his stay there.... You will judge whether his obligation to Mademoiselle le Normand for 400,000 or 200,000 francs was or was not given for the fabrication of that document. And in looking to that document itself, [i. e., the map with its indorsements,] you will see his statement as to the seal on the back of it; and consider whether he be not thereby brought into immediate contact with the fabrication of that document, in consequence of the impression of the seal on its back, which he admits was in the possession of a member of his family." Lord Meadowbank proceeded to advert briefly to "the exculpatory evidence," and said that the fact of the fabricated excerpt charter having escaped the notice of the Lord Ordinary, and also of Mr Lockhart, was "no doubt a strong circumstance in favour of the prisoner," if that excerpt charter had been the only case against him; but it was altogether a different matter when regard was had to the great number of other documents alleged to have been forged, or knowingly uttered as forged, by the prisoner. "Gentlemen," said Lord Meadowbank, "the prisoner may have been a dupe in all these transactions;... but you have it clearly made out that the only person who enjoyed the fruits of the imposition was the prisoner himself!... Gentlemen, I have now laid before you the whole case as it occurs to me. I have never bestowed more pains upon any case than I have upon this; and in none have I ever summed up the evidence with greater pain.... Our business is to do justice, and you, in particular, have to weigh the evidence calmly and deliberately; and, should you doubt of that evidence being sufficient to bring the present charge home to the prisoner, to give him the full benefit of that doubt. But, to entitle you to do so, these doubts must be well considered, and the circumstances on which they are founded deliberately weighed. To doubts that are not reasonable, you have no right whatever to yield. You are not entitled to require from the Procurator direct proof of the facts laid in his charge. The circumstances laid in evidence must be put together; and it is your duty, then, to consider what is the reasonable inference to be drawn from the whole of them: in short, whether it be possible to explain them upon grounds consistent with the innocence of the party accused; or whether, on the contrary, they do not necessarily lead to a result directly the reverse."
The jury, thus charged with their solemn responsibility, withdrew to consider their verdict; and as they were absent for FIVE HOURS, we have time to ask the reader what would have been his decision, as one of that jury, on this deeply interesting, this most serious and remarkable case.
First, Were any or all of these documents forgeries?
Secondly, If they were, did the prisoner forge them?
Thirdly, If forgeries, though not by the prisoner, did he use and utter them with a guilty knowledge of their being forgeries?
We regard Lord Meadowbank's summing up as a dignified and righteous one, blinking no responsibility, and making difficult matters plain to the humblest capacity, and leaving no excuse for an inefficient performance of duty. At length, however, after their long absence from Court—a torturing five hours' absence—the return of the jury is announced; the four judges resume their seats with stern gravity and expectation; the agitated prisoner, still accompanied by his chivalrous friend, Colonel D'Aguilar, appears at the bar; the anxious crowd is hushed into silence; and the chancellor (or foreman) delivered in the following verdict:—