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a defence, "the jury ought to be told in all cases, that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."
The next trial-that of "Alexander Alexander, claiming the title of Earl of Stirling, for forgery”—is the most remarkable in the volume. The rank of the accused, his character for integrity, and the nature of the documents alleged to be forgeries, gave to the trial unusual interest. It was before the High Court of Justiciary, Edinburgh.
In 1621, James the First granted by charter the territory of Nova Scotia to Sir William Alexander; and on the 2nd of February, 1628, he received from Charles the First a grant of the province, since called Canada, and was raised to the peerage by the title of Viscount Stirling; he was afterwards created Earl of Stirling and Viscount Canada, and died at London in February, 1640. In 1739, on the death of the fifth Earl of Stirling, the title was supposed to have expired. Twenty years after, an ineffectual claim was made for it by some William Alexander, who was a general in the American army. The original patents were to the grantee and his heirs male. This William's statement was that the male heir, on the death of the fifth Earl, was John, uncle of the first Earl, whom he claimed to represent. In his petition to the House of Lords in 1761, he stated that his family had long resided in North America, from which he described himself as having returned in 1757. He also stated, as a formal part of his case, that he had been served and returned nearest and lawful heir of Henry the fifth Earl on the 20th of March, 1759. The claim was, it would seem from the journals of the House of Lords, abandoned, and William Alexander returned to America without having produced any evidence in support of
VOL. XXXVI.-NO. CCXI.
his petition. His, however, appears to have been by no means a claim destitute of some colour of probability, and one, at all events, consistent with the terms of the original patents. Half a century passed away, and no more was heard of the Stirling peerage, when another claimant rose up in the person of Alexander Alexander.
Alexander Alexander was the son of a Birmingham merchant of the name of Humphries, who went to France in 1802, was caught up like other English visitors, and imprisoned in Verdun, where he died in 1807. His son, who had accompanied him, was detained at Verdun till 1814; the affairs of the Humphries' became deranged, and how they were supported in France is not known. În 1812, Alexander married a Neapolitan lady, an intimate acquaintance of Madame Normand, the celebrated Parisian sybil." The prophetess read his destiny-he was "to attain high honour, and encounter severe trials." The oracle was not altogether out, and the judicial investigation of Edinburgh was, we suppose, one of the predicted trials.
In 1814 he came to England, and set up a school at Worcester.
In 1815, he first stated his claim to the earldom of Stirling, through his mother, Hannah Alexander, the daughter of a Presbyterian clergyman in Dublin. In 1824, he obtained the royal licence to take the name of Alexander, and soon after assumed the title of Earl of Stirling and Dovan, and designated his mother countess.
In 1831, he granted to his agent 16,000 acres of land in Canada, and made him a baronet, in the terms of a clause in the charter of 1621. In the same year he petitioned for leave to do homage at the coronation, as hereditary lieutenant of Nova Scotia. He then issued a proclamation to the baronets of Nova Scotia, informing them of important rights and interests of which they were not aware. He published a prospectus, offering for sale lands in any quantities that might be agreed on; and one of his advertisements stated that "at the hereditary lieutenancy office of the Lord Proprietor of Nova Scotia, New Brunswick, and Canada, every encouragement and countenance would be given to individuals who might be disposed to form a company, and the hereditary
lieutenant would himself take onetenth of the shares of which each company might think it desirable it should consist." Oh, John Bull, John Bull, thou that hast ears to hear everything but the truth, for ten long years didst thou listen to these addresses to thy cupidity-for ten long years, thou that stonest and starvest thy prophets-yea, and in thy self-glorification, buildest monuments to those whom thou hast stoned and starved, didst support in what might be almost called affluence, this man, who had no other claim on thee than these impudent pretensions. It was, perhaps, but natural that the individual should be-as he certainly was a kind of favorite in society. He, and those to whom his applica. tions were addressed, were worshippers of the same idols. His was but a shorter cut to wealth and rank, and for a while it seemed successful. In whatever state of mind he commenced this strange proceeding, it was soon tainted with fraud. The notoriety of his claims, and the boldness with which they were advanced, enabled him to raise money to large amounts. Through one agent he got £13,000. He sent in a protest to Lord Grey against any interference with his hereditary rights by Colonial Governments; and petitioned the House of Commons against the New Brunswick Company Bill, as interfering with the territories of the Earl of Stirling and Viscount Canada. He voted at all elections of Scottish peers since 1825; and pleaded successfully, in the Common Pleas in England, his privilege as a peer from arrest. If he did not believe himself Earl of Stirling, never was there a bolder or more fearless impostor; if guiltless of imposture, never was there a man who lived so long in such strange delusion. It is not impossible that he was the dupe of a fraudulent trick; this, though there is little in the evidence to suggest or sustain such a view, we almost believe to have been the case.
descended from Sir William, he was not heir male :
In one of the many proceedings in which he claimed to be Earl of Stirling, he produced documents to establish his right which were impounded, and a prosecution for forgery directed against him.
The original patent gave the dignity of Earl to Sir William Alexander and his heirs male. This could answer no purpose for the present claimant, as, even on the supposition of his being
The excerpt on which he founded his claims, alleged to be a forgery, pretended to be taken from a charter which operated a change in the destination, and was a grant from the crown to William, first Earl of Stirling, and the heirs male of his body; whom failing, to the eldest heirs female, without division, of the last of such heirs male.' The Crown officers contended that this was not a genuine but a forged document, and made three startling propositions:-that it was not the excerpt of any charter; that there never was such a charter; that there never could have been such a charter. Each of these positions was proved by internal and historical evidence."
It would appear that the forms of Scottish law give some facilities for fraud in the case of titles. Suppose a person wishing to represent himself as heir to anybody, he has but to get a brieve from Chancery, and a jury is empannelled, and such evidence as the party chooses to produce is laid before the jury. The proceeding is altogether ex parte, and no person is heard in opposition to the claims, except one who makes precisely the same claim in the same right. Imagine a man choosing to give himself any extinct title, and no one heard in opposition to this who has not a fancy for the same title. In this way a case is made, and where property is not affected, the thing is very likely never to be examined, and an ambitious man may exalt himself into a peer, perhaps, or a baronet of Nova Scotia, or some such dignity, with no great difficulty. He is served, as it is called, as heir of so and so, and the service being returned into the Court of Chancery, is evidence of his right. In this way the claimant of the Stirling peerage had himself served as heir of the first and the fifth Earls of Stirling. The claimant appears to have thought that there was no way of getting rid of the effect of the service, inasmuch as there was no rival claimant; but by some prerogative process, if we understand the matter rightly, his pedigree was investigated, and the services reduced; or, as we would say, quashed. Lord Cockburn's judicial decision against the validity of the services was expressed in a very able judgment. This was in 1836. When that judgment was pronounced, he went to Pa.
ris-again consulted the prophetess, and in July, 1837, received from her a map of Canada, with certificates on the back which supplied all the defects pointed out in his case by the judicial determination of 1836. These certificates were all charged to be forgeries. They were dated in 1706, and purported to be statements about an ancient charter preserved in Acadia. One is from a person named Philip Mallett, who sends his friend this map to show him what vast territories the King of England has given to one of his subjects; and he then states the grant to be to William Earl of Stirling and the heirs male of his body, whom failing, to the eldest heirs female, without division, &c., of the last of said males." This memorandum, which runs to great length, is followed by another, in which a M. St. Estienne certifies all the reasons which led Mallet to inscribe this on the map, and adds:-"With such documents, no person in France can question the existence of such a charter." Then comes another inscription on the map:-"Flechier" Bishop of Nismes authenticates it with his autograph, and his certificate is so framed as to imply that he has compared the abstract on the map with a copy of the original charter.
Pasted on the back of the map was a letter from John Alexander, whom the claimant calls John of Antrim, and who makes such a statement in this document of the pedigree as meets Lord Cockburn's objections. This letter is dated Antrim, August 25th, 1707.
This old map must have been a curiosity; for in addition to all that we have mentioned, there was a certificate from Fenelon, Archbishop of Cambray, who vouches for Mallet, and authenticates the map. Next comes the strongest fact of all: Louis XV. writes on the map-" This note is worthy of more attention under present circumstances, but let the copy of the original charter be sent to me.'
De Foe himself could not conjure up more shadows from the world in which dead kings and archbishops are likely to be found, than appear on this map which came from the hands of the French prophetess. It seems almost a pity to disturb the necyomantia. On the front of the map was the date of 1703, and all the docu
ments, whether written or pasted, on the back-some were written, others pasted-bore dates later than 1703. Unluckily, the date on the map was not that of the issue of the particular copy, but of the period from which the copyright was to run: the words at the bottom of the map were, "Avec privilege pour vingt ans, 1703." The particular copy adds the words, "Par Guillaume Delisle, premier geographe du Roi." Delisle did not obtain his appointment of premier geographe till 1718. The patent appointing Delisle was put in evidence, and bore date August 24th, 1718. Flechier and Fenelon had both died before this copy of the map was in existence.
Evening visits of the claimant to the prophetess, who was seventy-five years of age, were proved; and letters proved to have been given by her to the claimant, secking to establish some of the facts stated on the map. But these were not proved to be forgedthey were very probably genuine, but proved a part of the fraud.
It does not seem necessary, after what we have stated, to give the evidence of chemists and others as to the character of the ink with which the certificates on the map were written. The jury unanimously found, "the excerpt-charter and the documents on the map to be forged; and they, by a majority, found it not proven that the pannel [the traverser] forged the said documents, or is guilty art and part thereof, or that he uttered them knowing them to be forged." This is an exceedingly painful case. Nothing could be higher than the testimony given in favour of the claimant's honour and integrity, by witnesses of the highest rank-men who had known him at school and through life, and who continued his friends. It is certainly consistent with the evidenceperhaps with the probabilities of the case that this man, possibly half insane with his dream of peerage and property, was himself, as has occurred in the case of other claimants of titles, the victim, not alone of his own eager credulity, but of the dishonest purposes of persons speculating on the success of this miserable imposture. The French prophetess, and the documents supplied by her, are more like this than anything else. It is im. possible not to regard the claimant as
to the proceedings, which a feeling of chivalrous fidelity to the desperate fortunes of his client alone could justify." Neither of Whiteside's speech in defence of his client, nor of any other part of the case, do we think Mr. Townsend's a faithful abstract. Much of what was most effective in it was
altogether omitted. Of the legal arguments which from time to time arose in the progress of the case, we have no account whatever. Indeed, the fault, the great fault, of Mr. Townsend's book is, that he seldom states a law argument like a man who fully appreciates its force. A short, small, smart joke is what he loves best; and the dulness of detail in some of the English and Scottish cases, seems, every now and then, to be relieved to his mind by some miserable quibble or other, which the ori ginal utterer of it must grieve to see reported. Where there is anything of powerful reasoning preserved in these volumes, it seems but a fortunate accident; of Whiteside's best pas sages none, or next to none, are given; of Fitzgerald's, in the same way, very little is preserved. The counsel for the Crown, and the presiding judge, are not much better used; and poor Meagher, who was convicted of high treason at the same commission with O'Brien, has to complain of a note in which his foolish-it is here called his pathetic-appeal at the close of his trial, is printed.
The Chief Justice (Blackburne's) charge is broken into piece-meal fragments. Its great value was as a whole, and there can be no excuse whatever for its omission.
personally mixed up in every part of the case; and we think some taint of lurking insanity must have first suggested pretensions, which actually had no ground whatever to rest on. There does not seem the slightest reason to think he had any connexion whatever with the Stirling family. The case is one which it is difficult to understand on any supposition.
The next trial, that with which Mr. Townsend's first volume closes, is an Irish case-no other than that of Smith O'Brien for high treason. There can be no object in our bringing before our readers any of the particulars of that strange case; and, even if we did not shrink instinctively from the discussion, we have not left ourselves room for comment. Where there is so much to deplore, and so much to make us, as a people, ashamed of the whole business of 1848; while the absurdity of the affair is almost more disgraceful to beings endowed with reason than its criminality-it is some comfort to find an English barristerno great judge, certainly, though Recorder of Macclesfield-praising the mode in which the trial was conducted. He seems somewhat disappointed, no doubt, at the Attorney-General's calm statement of the case for the Crown ; the plain business-speech-the only one proper on such an occasion-was not to the Recorder's taste. "The Attorney-General despaired of wearing the mantle of Plunket, and discarded eloquence altogether." But on whomsoever else his praises fall, the hero of his narrative is our eloquent countryman, Whiteside; and it does our heart good to see how much he is admired. In him he recognises the great orator to whom is entrusted "the forensic honour of his country." In describing eloquence, Townsend himself fancies that he is emulating the great sublime he draws. But this is a mistake. The Recorder of Macclesfield is not destined to be a great speaker. Still let us hear him. "Mr. Whiteside, for the defence, struck a key note of national pathos which must have vibrated through the hearts of his hearers. His wit and humour flashed forth occasionally in cross-examining the adverse witnesses, but under manifest restraint, for he must have felt bowed down and oppressed by the hopelessness of his position, and constrained to make technical objections
Nothing could be more distinctly proved than the treason of O'Brien and his associates. The verdict could not be other than of guilty; but it was accompanied with a recommendation to mercy; and Lord Clarendon, when in the exercise of the royal prerogative he spared the lives of these men, acted with humanity, which was felt, under all the circumstances of the case, to have been wisdom. After the conviction, there was an argument in the Queen's Bench, in which it was endeavoured to be shown that there was a mis-trial; and the points relied on by the prisoner's counsel were felt by them to be so strong that they applied for a writ of error. Writs of error in capital cases are not allowed "without
express warrant under the king's sign manual, or at least by the consent of the Attorney-General. These therefore can rarely be brought by the party himself, especially where he is attainted for an offence against the State; but they may be brought by his heir or executor, after his death, in more favourable times; which may be some consolation to his family.' Such was the practice in England. As soon as a verdict was obtained, and sentence pronounced, that sentence was carried into effect: and, as in Lord Russell's case, when times became more favourable, if the family had interest enough for the purpose, the attainder was reversed. In the bill for reversing the attainder of Lord Russell, his execution is called a murder. In our day, humanity and good sense are rather more consulted than of old, and the writ of error was not refused. The case thus went formally to the House of Lords; but they somewhat impatiently decided points of law without hearing the case to an end, which points of law, we think it exceedingly probable, had O'Brien been already hanged, would have been disposed of in the other way. The fact seems to be, that the House were afraid of these writs of error being issued in every Irish case, and that the course of justice would be thus impeded by one captious objection or another. The old plan, of not chopping logic till after the criminal was executed, and the friends of his family had come into power, would seem to have been a more reasonable way of securing this result, than the modern one of cutting short a forensic argument. We should hope that the occasion may never again arise of seeking to investigate any of the questions then agitated; as, if the law of Ireland be not the same as that of England in the conduct of trials for high treason—as was successfully asserted by the Crown in O'Brien's case-such anomaly ought at once be cured by legislation.
When the writ of error was disposed of, a new difficulty arose. O'Brien insisted that the capital sentence could not be commuted for transportation without his consent, and he expressed
* 4 Blackstone.
a decided preference for being hanged. It was doubted whether he was quite sincere in this, as it was impossible for Lord Clarendon to gratify him, consistently with communications made to O'Brien that it was intended to spare his life. To have hanged and beheaded him at this stage, in compliance with the legal rights he insisted on, would have looked like sharp practice, and a bill was passed very rapidly through the Houses to remove any doubts as to the power of the Crown in such a case. Great lawyers said such a bill was unnecessary; yet we incline to think it was wise to pass it, as the view of the law taken by O'Brien is that put forward in several works of authority. See, for instance, Christian's note to Vol. I. of Blackstone, p. 137. The Act was passed, and the prisoners, convicted of high treason and of treason-felony in the Irish insurrection of 1848, were at last shipped off.
Since their arrival in the penal settlement they have been offered tickets of leave, which all but O'Brien have
accepted. His refusal to accept a ticket of leave, or give any parole, has necessarily subjected him to the inconvenience of imprisonment; and nothing can be more unfair than to reproach either the government, which seems to have treated him with all possible humanity, or the governor of the prison in which he insists on living-who is responsible for his safe custody-for consequences which arise from his own determination to preserve the dignity of a rebel general unimpaired. The public sympathy with the family of this most impracticable and wrongheaded man makes every one seek to forgive his strange outrage on the laws of society; but it is one thing to seek excuses or palliations for his conduct in the peculiar constitution of his mind, and another to suffer men engaged in the discharge of very difficult and very onerous duties to be maligned, as every one who tries to do his duty, without ministering to the vanity of a man, in every possible point of view most criminal, is sure of being. This can only be corrected by a saner state of feeling, to which we believe the country is fast returning.